You are on page 1of 385

30 Nev.

1, 1 (1908)
RULES OF THE BOARD OF PARDONS.
____________
1. The regular meetings of the board shall be held on the Wednesday after the first
Monday in January, and on the second Monday of July of each year. As amended, January,
1906.
2. Special meetings may be called by the governor at any time when the exigencies of any
case demand it, notice thereof being given to each member of the board.
3. No application for the remission of a fine or forfeiture, or for a commutation of
sentence, or pardon, shall be considered by the board unless presented in the form and manner
required by the law of the state approved February 20, 1875.
4. In every case where the applicant has been confined in the state prison, he or she must
procure a written certificate of his or her conduct during such confinement, from the warden
of said prison, and file the same with the secretary of this board, on or before the day of
hearing.
5. All oral testimony offered upon the hearing of any case must be presented under oath,
unless otherwise directed by a majority of the board.
6. Action by the board upon every case shall be in private, unless otherwise ordered by the
consent of all the members present.
7. After a case has once been acted upon, and the relief asked for has been refused, it shall
not, within twelve months thereafter, be again taken up or considered upon any of the grounds
specified in the application under consideration, except by the consent of a majority of the
members of the board; nor in any case except upon new and regular notice as required by law
in case of original application.
8. In voting upon any application the roll of members shall be called by the secretary of
the board in the following order:
FirstThe Attorney-General.
SecondThe Junior Associate Justice of the Supreme Court.
ThirdThe Senior Associate Justice.
FourthThe Chief Justice.
FifthThe Governor.
30 Nev. 1, 2 (1908) Rules of Board of Pardons
Each member, when his name is called, shall declare his vote for or against the
remission of the fine or forfeiture, commutation of sentence, pardon, or restoration to
citizenship.
9. No document relating to a pending application for pardon or commutation of sentence,
or to a prior application which has been denied, shall be withdrawn from the custody of the
clerk after filing, unless by consent of the board.
10. Application for pardon or commutation of sentence must be filed with the clerk at
least two days before the regular meeting of the board, at which the application is to be
considered.
11. All papers pertaining to applications for pardon, or for restoration to citizenship, must
be properly indorsed before presentation for filing; and the name of the attorney for the
applicant must appear in such indorsement on the petition and notices to the district judge and
district attorney. The indorsement on each paper must begin at the top with Board of
Pardons, and include the name of the document.
12. Attorneys shall first present their evidence through witnesses, affidavits, the record or
documents, and then argue their cases concisely and not exceeding one-half hour for each
counsel appearing, unless additional time be granted by the board, and in the event that an
attorney digresses from the evidence, or states facts not supported thereby, or reiterates in his
argument, he shall be called to order. Papers shall be filed separately, or attached before they
are read in evidence, and shall not be withdrawn without the order of the board or some
member thereof.
13. Upon behalf of an applicant for pardon who has been convicted of felony, evidence of
facts relating to the commission of the crime other than that contained in the record, may be
presented only by witnesses, who know the circumstances, appearing and testifying under
oath, or by depositions or affidavits, copies of which shall have been served upon the district
judge and district attorney of the county in which the indictment was found, at least thirty
days before the hearing, unless, for good cause shown, this time be shortened by the board.
____________
30 Nev. 3, 3 (1908) State Library Regulations
NEVADA STATE LIBRARY.
____________
Sections of the Law Relating to Use of Books.
____________
From Compiled Laws of 1900.
Sec. 1518. The state librarian shall keep a register of all books, magazines, papers,
pamphlets, maps, charts, and other property added to the library, and of the cost thereof, and
shall stamp the same with the library seal. He shall keep a register of all books taken from the
library, when taken out, by whom, and when returned. He shall not permit any person or
persons, except such as are authorized by law, to take from the library any book, magazine,
paper, or other property belonging thereto.
Sec. 1522. Upon assuming the duties of his office the secretary of state, as ex officio state
librarian, shall execute a receipt and deliver the same to the justices of the supreme court for
all books and other property in the state library.
Sec. 1523. All books, maps, and charts, now belonging to, or which may hereafter come
into possession of this state, by purchase or otherwise; all books, maps, charts, pamphlets,
and other documents, which, by any state officer, may be received in their [his] official
capacity from the general government, or in exchange from other states and territories, or
received from foreign nations, or donated to the state by any person or corporation, shall be
placed in the state library, and shall be carefully preserved by the librarian.
Sec. 1525. Books may be taken from the state library by the members of the legislature
during its session, and at any time by the governor and other officers of the executive
department of this state who are required to keep their offices at the seat of government, the
justices of the supreme court, and attorney-general; provided, that no person shall be
permitted to have more than two volumes of miscellaneous works from said library at the
same time.
30 Nev. 3, 4 (1908) State Library Regulations
Sec. 1526. The librarian shall cause to be kept a register of all the books issued and
returned at the time they shall be so issued and returned, and none of the books, except the
laws, journals and reports of this state, which may be taken from the library by members of
the legislature, during the session, and law books taken by the judges of the supreme court,
shall be retained more than two weeks; and all books taken by the members of the legislature
shall be returned at the close of the session.
Sec. 1527. If any person materially injure, or fail to return any books taken from the
library within the time prescribed in the foregoing section, he shall forfeit and pay to the
librarian, for the benefit of the library, three times the value thereof, or of the set to which it
belongs.
____________
30 Nev. 5, 5 (1908) Rules of State Library
RULES OF STATE LIBRARY.
____________
The number of users of the library is so small under the law that it has not heretofore been
considered necessary by those in charge to publish any rules in addition to those included in
the statute.
The office hours are from 10 to 12 o'clock in the morning, and from 1 to 4 in the
afternoon, on judicial days.
Those using books, except members of the supreme court, are requested not to replace
them on the shelves.
Books are not allowed to be taken beyond the limits of the capital city.
Books of reference, including law and miscellaneous, art works and unbound magazines,
are not to be taken from the library.
The use of the library is extended to attorneys practicing before the supreme and district
courts, when in the capital city.
____________
30 Nev. 7, 7 (1908) Rules of Supreme Court
RULES
OF THE
Supreme Court of the State of Nevada
Adopted September 1, 1879; as amended to July 7, 1908.
___________
RULE I.
1. Applicants for license to practice as attorneys and counselors will be examined in open
court on the first day of the term.
Examination for Attorneys-at-Law.
2. The supreme court, upon application of the district judge of any judicial district, will
appoint a committee to examine persons applying for admission to practice as attorneys and
counselors-at-law. Such committee will consist of the district judge and at least two attorneys
resident of the district.
The examination by the committee so appointed shall be conducted and certified according
to the following rules:
Examination by Committee.
The applicant shall be examined by the district judge and at least two others of the
committee, and the questions and answers must be reduced to writing.
No intimation of the questions to be asked must be given to the applicant by any member
of the committee previous to the examination.
Examination to Embrace.
The examination shall embrace the following subjects:

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

2
The constitutional relations of the state and federal governments;

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

4
The various sources of our municipal law;

5
The general principles of the common law relating to property and personal rights and
obligations; 6 The general grounds of equity jurisdiction and principles of equity
jurisprudence;
30 Nev. 7, 8 (1908) Rules of Supreme Court

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

7
Rules and principles of pleadings and evidence;

8
Practice under the civil and criminal codes of Nevada;

9
Remedies in hypothetical cases;

10
The course and duration of the applicant's studies.
3. The examiners will not be expected to go very much at large into the details of these
subjects, but only sufficiently so fairly to test the extent of the applicant's knowledge and the
accuracy of his understanding of those subjects and books which he has studied.
Examination by Committee.
4. When the examination is completed and reduced to writing, the examiners will return it
to this court, accompanied by their certificate showing whether or not the applicant is of good
moral character and has attained his majority, and is a bona fide resident of this state. Such
certificate shall also contain the facts that the applicant was examined in the presence of the
committee; that he had no knowledge or intimation of the nature of any of the questions to be
propounded to him before the same were asked by the committee, and that the answers to
each and all the questions were taken down as given by the applicant without reference to any
books or other outside aid.
Fee To be Deposited Before Examination.
5. The fee of thirty-five dollars for license must in all cases be deposited with the clerk of
the court before the application is made, to be returned to the applicant in case of rejection.
RULE II.
Filing Transcript.
In all cases where an appeal has been perfected, and the statement settled (if there be one)
thirty days before the commencement of a term, the transcript of the record shall be filed on
or before the first day of such term.
RULE III.
Appeal May Be DismissedCan Be Restored.
1. If the transcript of the record be not filed within the time prescribed by Rule II, the
appeal may be dismissed on motion during the first week of the term, without notice. A cause
so dismissed may be restored during the same term, upon good cause shown, on notice to the
opposite party; and, unless so restored, the dismissal shall be final and a bar to any other
appeal from the same order or judgment.
30 Nev. 7, 9 (1908) Rules of Supreme Court
unless so restored, the dismissal shall be final and a bar to any other appeal from the same
order or judgment.
How Restored.
2. On such motion there shall be presented the certificate of the clerk below, under the
seal of the court, certifying the amount or character of the judgment; the date of its rendition;
the fact and date of the filing of the notice of appeal, together with the fact and date of service
thereof on the adverse party, and the character of the evidence by which said service appears;
the face and date of the filing of the undertaking on appeal; and the same is in due form; the
fact and time of the settlement of the statement, if there by one; and also that the appellant has
received a duly certified transcript, or that he has not requested the clerk to certify to a correct
transcript of the record; or, if he has made such request, that he has not paid the fees therefor,
if the same have been demanded.
RULE IV.
Printed Transcripts.
1. All transcripts of record in civil cases, when printed, shall be printed on unruled white
paper, ten inches long by seven inches wide, with a margin on the other edge of not less than
one inch. The printed page shall not be less than seven inches long and three and one-half
inches wide. The folios, embracing ten inches each, shall be numbered from the
commencement to the end, and the numbering of the folios shall be printed between lines.
Nothing smaller than minion type leaded shall be used in printing.
Transcripts in Criminal Cases.
2. Transcripts in criminal cases may be printed in like manner as prescribed for civil
cases; or, if not printed, shall be written on one side only of transcript paper, sixteen inches
long by ten and one-half inches wide, fastened or bound together on the left sides of the pages
by ribbon or tape, so that the same may be secured, and every part conveniently read. The
transcript, if written, shall be in a fair, legible hand, and each paper or order shall be
separately inserted.
To Be Indexed.
3. The pleadings, proceedings, and statement shall be chronologically arranged in the
transcript shall be prefaced with an alphabetical index, specifying the folio of each
separate paper, order, or proceeding, and of the testimony of each witness; and the
transcript shall have at least one blank fly-sheet cover.
30 Nev. 7, 10 (1908) Rules of Supreme Court
script shall be prefaced with an alphabetical index, specifying the folio of each separate
paper, order, or proceeding, and of the testimony of each witness; and the transcript shall
have at least one blank fly-sheet cover.
Cannot Be Filed.
4. No record which fail to conform to these rules shall be received or filed by the clerk of
the court.
RULE V.
Printing Transcripts.
The written transcript in civil causes, together with sufficient funds to pay for the printing
of the same, may be transmitted to the clerk of this court. The clerk, upon the receipt thereof,
shall file the same and cause the transcript to be printed, and to a printed copy shall annex his
certificate that the said printed transcript is a full and correct copy of the transcript furnished
to him by the party; and said certificate shall be prima facie evidence that the same is correct.
The said printed copy so certified shall also be filed, and constitute the record of the cause in
this court, subject to be corrected by reference to the written transcript on file.
RULE VI.
Cost of Typewriting or Printing Transcripts.
1. The expense of printing or typewriting transcripts, affidavits, briefs, or other papers on
appeal in civil causes and pleadings, affidavits, briefs, or other papers constituting the record
in original proceedings upon which the cause is heard in this court, required by these rules to
be printed or typewritten, shall be allowed as costs, and taxed in bills of costs in the usual
mode; provided, that no greater amount than twenty-five cents per folio of one hundred words
shall be taxed as costs for printing, and no greater amount than twelve and one-half cents per
folio for one copy only shall be taxed as costs for typewriting. All other costs to be taxed by
the clerk in accordance with the fee bill.
To Serve Cost Bill, When.
2. Either party desiring to recover as costs his expenses for printing or typewriting in any
cause in this court, shall, before said cause is submitted, file with the clerk and serve upon the
opposite party a verified cost bill, setting forth or stating the actual cost of such printing or
typewriting, and no greater amount than such actual cost shall be taxed as costs.
30 Nev. 7, 11 (1908) Rules of Supreme Court
no greater amount than such actual cost shall be taxed as costs.
Mode of Objecting to Costs.
3. If either party desires to object to the costs claimed by the opposite party, he shall,
within ten days after the service upon him of a copy of the cost bill, file with the clerk and
serve his objections. Said objections shall be heard and settled and the costs taxed by the
clerk. An appeal may be taken from the decision of the clerk, either by written notice of five
days, or orally and instanter, to the justices of this court, and the decision of such justices
shall be final. If there be no objections to the costs claimed by the party entitled thereto, they
shall be taxed as claimed in his cost bill.
Indorsed Upon Remittitur.
4. In all cases where a remittitur or other final order is sent to a district court or other
inferior tribunal, the costs of the party entitled thereto as taxed by the clerk shall be indorsed
upon such remittitur or order, and shall be collected as other costs in such district court, or
other inferior court or tribunal, and shall not be subject to retaxation in such district court or
other tribunal.
RULE VII.
To Correct Error in Transcript.
For the purpose of correcting any error or defect in the transcript from the court below,
either party may suggest the same, in writing, to this court, and, upon good cause shown,
obtain an order that the proper clerk certify to the whole or part of the record, as may be
required, or may produce the same, duly certified, without such order. If the attorney of the
adverse party be absent, or the fact of the alleged error or defect be disputed, the suggestion,
except when a certified copy is produced at the time, must be accompanied by an affidavit
showing the existence of the error or defect alleged.
RULE VIII.
ExceptionsDiminution of Record.
Exceptions or objections to the transcript, statement, the undertaking on appeal, notice of
appeal, or to its service or proof of service, or any technical exception or objection to the
record affecting the right of the appellant to be heard on the points of error assigned, which
might be curred on suggestion of diminution of the record, must be taken at the first term
after the transcript is filed, and must be noted in the written or the printed points of the
respondent, and filed at least one day before the argument, or they will not be regarded.
30 Nev. 7, 12 (1908) Rules of Supreme Court
term after the transcript is filed, and must be noted in the written or the printed points of the
respondent, and filed at least one day before the argument, or they will not be regarded.
RULE IX.
Substitution in Case of Death.
Upon the death or other disability of a party pending an appeal, his representative shall be
substituted in the suit by suggestion in writing to the court on the part of such representative,
or any party on the record. Upon the entry of such suggestion, an order of substitution shall be
made and the cause shall proceed as in other cases.
RULE X.
Calendar to Consist ofUpon Motion.
1. The calendar of each term shall consist only of those cases in which the transcript shall
have been filed on or before the first day of the term, unless by written consent of the parties;
provided, that all cases, both civil and criminal, in which the appeal has been perfected and
the statement settled, as provided in Rule II, and the transcript has not been filed before the
first day of the term, may be placed on the calendar, on motion of either party, after ten days'
written notice of such motion, and upon filing the transcript.
Subdivision 2 is hereby abrogated.
3. Causes shall be placed on the calendar in the order in which the transcripts are filed by
the clerk.
RULE XI.
Time for Appellant to Serve BriefRespondent.
1. Within fifteen days after the filing of the transcript on appeal in any case, the appellant
shall file and serve his points and authorities or brief; and within fifteen days after the service
of appellant's points and authorities or brief; and within fifteen days thereafter, appellant shall
file and serve his points and authorities or brief in reply, after which the case may be argued
orally.
2. The points and authorities shall contain such brief statement of the facts as may be
necessary to explain the point made.
Oral Argument.
3. The oral argument may, in the discretion of the court, be limited to the printed or
typewritten points and authorities or briefs filed, and a failure by either party to file points
and authorities or briefs under the provisions of this rule and within the time herein
provide, shall be deemed a waiver by such party of the right to orally argue the case, and
such party shall not recover cost for printing or typewriting any brief or points and
authorities in the case.
30 Nev. 7, 13 (1908) Rules of Supreme Court
ties or briefs filed, and a failure by either party to file points and authorities or briefs under
the provisions of this rule and within the time herein provide, shall be deemed a waiver by
such party of the right to orally argue the case, and such party shall not recover cost for
printing or typewriting any brief or points and authorities in the case.
4. No more than two counsel on a side will be heard upon the oral argument, except by
special permission of the court, but each defendant who has appeared separately in the court
below may be heard through his own counsel.
Optional in Criminal Cases.
5. In criminal cases it is left optional with counsel either to file written, printed, or
typewritten points and authorities or briefs.
When Submitted.
6. When the oral argument is concluded, the case shall be submitted for the decision of
the court.
Stipulation as to Time.
7. The times herein provided for may be shortened or extended by stipulation of parties or
order of court, or a justice thereof.
RULE XII.
Printing and Paper To Be Uniform.
In all cases where a paper or document is required by these rules to be printed, it shall be
printed upon similar paper, and in the same style and form (except the numbering of the
folios in the margin) as is prescribed for the printing of transcripts.
RULE XIII.
Number of Copies To Be Filed.
Besides the original, there shall be filed ten copies of the transcript, briefs, and points and
authorities, which copies shall be distributed by the clerk.
RULE XIV.
Opinions Recorded.
All opinions delivered by the court, after having been finally corrected, shall be recorded
by the clerk.
RULE XV.
RehearingRemittitur to Issue, WhenTime May Be Shortened or Extended.
All motions for a rehearing shall be upon petition in writing, and filed with the clerk
within fifteen days after the final judgment is rendered, or order made by the court, and
publication of its opinion and decision.
30 Nev. 7, 14 (1908) Rules of Supreme Court
lication of its opinion and decision. Personal service or service by mail upon counsel of a
copy of the opinion and decision shall be deemed the equivalent of publication. The party
moving for a rehearing shall serve a copy of the petition upon opposing counsel, who within
ten days thereafter may file a reply to the petition, and no other argument shall be heard
thereon. No remittitur or mandate to the court below shall be issued until the expiration of the
fifteen days herein provided, and decisions upon the petition, except upon special order. The
times herein provided for may be shortened or extended, for good cause shown, by order of
court.
RULE XVI.
Opinion To Be Transmitted.
Where a judgment is reversed or modified, a certified copy of the opinion in the case shall
be transmitted, with the remittitur, to the court below.
RULE XVII.
No Paper To Be Taken Without Order.
No paper shall be taken from the court room or clerk's office, except by order of the court,
or of one of the justices. No order will be made for leave to withdraw a transcript for
examination, except upon written consent to be filed with the clerk.
RULE XVIII.
Writ of Error, or Certiorari.
No writ of error or certiorari shall be issued, except upon order of the court, upon petition,
showing a proper case for issuing the same.
RULE XIX.
Writ of Error to Operate as Supersedeas.
Where a writ of error is issued, upon filing the same and a sufficient bond or undertaking
with the clerk of the court below, and upon giving notice thereof to the opposite party or his
attorney, and to the sheriff, it shall operate as a supersedeas. The bond or undertaking shall be
substantially the same as required in cases on appeal.
RULE XX.
When Returnable.
The writ of error shall be returnable within thirty days, unless otherwise specially directed.
30 Nev. 7, 15 (1908) Rules of Supreme Court
RULE XXI.
To Apply.
The rules and practice of this court respecting appeals shall apply, so far as the same may
be applicable, to proceedings upon a writ of error.
RULE XXII.
Time Concerning Writ.
The writ shall not be allowed after the lapse of one year from the date of the judgment,
order, or decree which is sought to be reviewed, except under special circumstances.
RULE XXIII.
Concerning Change of VenueAdditional Notice Given.
Appeals from orders granting or denying a change of venue, or any other interlocutory
order made before trial, will be heard at any regular or adjourned term, upon three days'
notice being given by either appellant or respondent, when the parties live within twenty
miles from Carson. When the party served resides more than twenty miles from Carson, an
additional day's notice will be required for each fifty miles, or fraction of fifty miles, from
Carson.
RULE XXIV.
Notice of Motion.
In all cases where notice of a motion is necessary, unless, for good cause shown, the time
is shortened by an order of one of the justices, the notice shall be five days.
RULE XXV.
Transcripts May Be TypewrittenTo Be Bound in Boards with Flexible Backs.
1. Hereafter all transcripts of the record in any action or proceeding may be typewritten.
The typewriting shall be the first impression, clearly and legibly done, with best quality of
black ink, in type not smaller than small pica, upon a good quality of typewriting paper,
thirteen inches long by eight inches wide, bound in boards with flexible backs, in volumes of
a size suitable for convenient handling and ready reference, and arranged and indexed as
required by the rules of this court. When so typewritten such transcript, in the discretion of
the party appealing, need not be printed, but, if printed, all the rules concerning the same shall
still apply thereto.
30 Nev. 7, 16 (1908) Rules of Supreme Court
Briefs May Be Typewritten.
2. Briefs and points and authorities, instead of being printed, may be typewritten upon the
same paper and in the same style and form as is prescribed for typewritten transcripts.
Copy To be ServedTwo Copies To Be Filed.
3. When so typewritten, but one copy of such transcript need be filed in the case; but a
copy thereof shall be served upon the opposite party. Two copies of the briefs and points and
authoritiesviz., the first impression and a copy thereofshall be filed with the clerk, and a
copy shall be served upon each opposite party who appeared separately in the court below.
RULE XXVI.
Concerning Certificate of Naturalization.
Under no circumstances shall this court, or any of the district courts of the State of
Nevada, hear proof for the issuance of, or issue, final papers or certificates of naturalization to
any applicant therefor, at any time within the sixty days immediately preceding any general or
special state election of this state.
RULE XXVII.
Payment of Advance Fee RequiredClerk Prohibited from Filing.
No transcript or original record shall be filed or cause registered, docketed, or entered until
an advance fee of twenty-five dollars is paid into the clerk's office, to pay accruing costs of
suit. The clerk of the court is prohibited from filing or registering any record without first
having received as a deposit the aforesaid fee.
____________
30 Nev. 17, 17 (1908) Rules of District Court
RULES
OF THE
District Court of the State of Nevada
___________
RULE I.
The hour of 10 o'clock a.m. is fixed for the opening of court, unless otherwise ordered.
RULE II.
Calendars to ContainAttorneys.
The clerk of each county of the state shall make three calendars for the district court of his
county, upon one of which he shall place all civil causes at issue upon questions of fact as
soon as the issue is made; upon another of which he shall place all civil causes at issue upon a
question of law, and all motions of every nature, except ex parte motions, as soon as the issue
is made, or as soon as notice of motion is filed; and upon the third of which he shall place all
criminal business of every kind. The names of the attorneys of the respective parties shall be
appropriated placed on such calendars. The clerk shall, on every Saturday, forward to the
presiding judge of the court, and also to the judge who is to sit in his county, a full statement
of the condition of the business of the court as shown by the calendars.
RULE III.
Notice as to Time.
The judge who is to hold court in any county shall give the clerk of such county notice of
the time when court will sit. The clerk shall, immediately upon receiving such notice, give all
the attorneys having business in said court, as shown by the calendar, and also all attorneys
practicing in his county, notice in writing of the time when court will be held. He shall also
give notice of the time of holding court, in some newspaper printed and published at the
county seat of his county, provided it can be done without expense.
30 Nev. 17, 18 (1908) Rules of District Court
court, in some newspaper printed and published at the county seat of his county, provided it
can be done without expense.
RULE IV.
When Calendar CalledOrder.
Upon the meeting of the court, as provided in Rule III, the law calendar will first be called
and disposed of. The trial calendar will then be called, and causes at issue upon questions of
fact disposed of. When the calendar is called the causes will be set for a time certain. Parties
are expected to be ready to try their causes, whether at issue upon questions of law or fact,
when the calendar is called, and in the order in which they are set. Parties may, prior to the
meeting of the court, fix the day of trial by stipulation in writing, subject to the approval of
the court or judge. The daily business of the court will be disposed of in the following order:
FirstThe minutes of the previous day's business shall be read, approved, and signed by
the judge.
SecondEx parte motions.
ThirdProbate business, when there is no contest.
FourthIssues arising subsequent to the calling of the calendar shall be set.
FifthTrial of causes, as previously set.
SixthQuestions of law.
RULE V.
Law Day.
On each Saturday of any session of court held by any district judge, law questions shall
take precedence, and be heard without previous setting or notice.
RULE VI.
Relating to Motions.
When any motion or proceeding has been noticed, or set for a time certain, and for any
cause is not heard at the time appointed, the hearing of the same shall be continued without
further order, and the motion or proceeding shall be placed upon the calendar and disposed of
as other issues thereon.
RULE VII.
Issues of LawDecision.
Any issue of law, and any motion of any nature or kind, may be heard orally by stipulation
of the parties, at any time or place agreed on in the state, with the consent of the judge first
having jurisdiction of the cause, or such questions of law, or motions, as the case may be,
may be submitted on briefs of such judge, with his consent, and the decision may be filed
thereafter at any time, which decision shall fix the time when the decision of the court is
to be complied with; and in all such cases the party who is required to act by such
decision shall receive due written notice thereof from the opposite party.
30 Nev. 17, 19 (1908) Rules of District Court
judge first having jurisdiction of the cause, or such questions of law, or motions, as the case
may be, may be submitted on briefs of such judge, with his consent, and the decision may be
filed thereafter at any time, which decision shall fix the time when the decision of the court is
to be complied with; and in all such cases the party who is required to act by such decision
shall receive due written notice thereof from the opposite party. Time for complying with
such decision shall commence to run from the time when service is made in the manner
required by the statutes for service of pleadings in a case; provided, that when the parties are
present by their respective attorneys when the decision is rendered, no notice shall be
required.
RULE VIII.
DemurrerSet Down for Trial.
When a demurrer is interposed in any case, if it be made to appear to the satisfaction of the
court that such demurrer has not been interposed in good faith, but merely for delay, the
defendant shall only answer upon such terms as the court may prescribe, and, upon the filing
of the answer, the case shall be set down for trial for as early a day as the business of the court
will permit. In cases other than those above mentioned, ten days shall be allowed to amend or
plead, as the case may be, unless the court by its order fix a different time.
RULE IX.
Documents and Pleadings.
All documents and pleadings, intended for the files of this court, shall be on paper known
as legal cap, of good quality, and without interlineations, unless noted thereon by the clerk
at the time of filing. No original pleading or paper shall be amended by making erasures or
interlineations thereon, or by attaching slips thereto, except by leave of court. Copies of all
papers issued from this court, or to be used therein, which are required by law or rule of court
to be served, shall be upon legal cap paper in a legible hand, and in default of so doing, the
party failing shall be compelled to renew the paper, or be precluded from using the original,
as the court may deem proper.
RULE X.
Motions.
Motions in all cases, except ex parte motions, motions for continuance, and motions to
amend pleadings pending a trial, shall be noticed at least five days before the day
specified for a hearing, and a copy of all papers to be used by the moving party, except
pleadings or other records of the court, shall be served with the notice of motion.
30 Nev. 17, 20 (1908) Rules of District Court
continuance, and motions to amend pleadings pending a trial, shall be noticed at least five
days before the day specified for a hearing, and a copy of all papers to be used by the moving
party, except pleadings or other records of the court, shall be served with the notice of
motion. The notice of motion shall be in writing, and shall specify the papers to be used and
the names of witnesses to be examined by the moving party, and the grounds upon which the
motion is made; provided, that the court may, upon good cause shown, shorten or enlarge the
time for hearing. For a failure to comply with this rule the motion shall be denied.
RULE XI.
Hearing of Motions.
Upon reading and filing the notice of motion, with due proof of service of the same, and of
the papers mentioned therein, if no one appears to oppose the motion, the moving party shall
be entitled to have the motion decided. Upon the hearing, the affidavits to be used by either
party shall be endorsed and filed before the affidavits shall be used. The manner of making
motions shall be as follows:
FirstThe moving party shall read the moving papers, or state the contents thereof, or
introduce his oral evidence.
SecondThe party opposing shall then read or state the contents of his opposing papers,
or introduce his oral evidence.
ThirdThe moving party may then read his rebutting papers, or introduce oral evidence, if
admissible under the rules of practice in law or equity. The counsel for the moving party shall
make his argument, to be followed by the counsel of the opposing party, and the counsel for
the moving party may reply.
RULE XII.
Hearing of Motions of ContinuanceTestimony of AbsenteesCounter Affidavit.
All motions for the continuance of causes shall be made on affidavit; and, when made on
the ground of absence of witnesses, the affidavit shall state:
FirstThe names of the absent witnesses, and their present residence or abiding place, if
known.
SecondWhat diligence has been used to procure their attendance, or depositions, and the
causes of a failure to procure the same.
30 Nev. 17, 21 (1908) Rules of District Court
ThirdWhat the affiant has been informed and believes will be the testimony of each of
such absent witnesses, and whether or not the same facts can be proven by other witnesses
than parties to the suit, whose attendance or depositions might have been obtained.
FourthAt what time the applicant first learned that the attendance or depositions of such
absent witnesses could not be obtained.
FifthThat the application is made in good faith, and not for delay merely. And no
continuance will be granted unless the affidavit upon which it is applied for conforms to this
rule, except where the continuance is applied for in a mining case, upon the special ground
provided by statute. A copy of the affidavits upon which a motion for a continuance is made,
shall be served upon the opposing party as soon as practicable after the cause for the
continuance shall be known to the moving party. Counter affidavits may be used in
opposition to the motion. No amendments or additions to affidavits for continuance will be
heard on motions for a continuance, except such as relate to the sufficiency of the affidavits
read on the hearing.
RULE XIII.
Attorneys as Witnesses.
If the attorney or counsel of either party offers himself as a witness on behalf of his client,
and gives evidence on the merits of the cause, he shall not argue the cause, or sum it up to the
jury, without the permission of the court.
RULE XIV.
Sureties.
No attorney will be received as surety on any bond or recognizance to be filed or entered
into in any action or proceeding in this court.
RULE XV.
DepositionsInterrogatories, How Settled.
A party making application for a commission to take the deposition of a witness out of the
state, shall serve, with the notice of such application, a copy of the direct interrogatories; and,
at least one day before the hearing of the application, the adverse party shall serve upon the
moving party a copy of the cross-interrogatories. The direct and cross-interrogatories shall be
settled at the time of hearing the application, unless the court or judge otherwise direct;
provided, that parties may agree to the interrogatories without submission to the court or
judge, or may stipulate that the depositions may be taken without written interrogatories.
30 Nev. 17, 22 (1908) Rules of District Court
application, unless the court or judge otherwise direct; provided, that parties may agree to the
interrogatories without submission to the court or judge, or may stipulate that the depositions
may be taken without written interrogatories.
RULE XVI.
Depositions.
When a deposition is received by the clerk, he shall endorse upon the envelope the time of
receiving it, and immediately file it with the papers of the case in which it was taken; and at
any time afterward, upon the application of any attorney in the case, he shall open the same,
and endorse upon the envelope the time of opening, and the name of the attorney upon whose
application it was opened, and shall then file the deposition.
RULE XVII.
Amended Pleadings.
In cases where the right to amend any pleading is not of course, the party desiring to
amend shall serve, with the notice of application to amend, an engrossed copy of the
pleading, with the amendment incorporated therein, or a copy of the proposed amendment,
referring to the page and line of the pleading where it is desired that the amendment be
inserted, and, if the pleading were verified, shall verify such amended pleading, or such
proposed amendment, before the application shall be heard.
RULE XVIII.
To Strike Out.
The party moving to strike out any part of a pleading shall, in the notice of motion,
distinctly specify the part asked to be stricken out.
RULE XIX.
Withdrawal of Papers.
No paper or record belonging to the files of the court shall be taken from the office and
custody of the clerk, except upon the special order of the judge in writing, specifying the
record or paper, and limiting the time the same may be retained; but in no case shall original
documentary evidence be taken from the office of the clerk.
RULE XX.
Additional UndertakingAttachments.
If the undertaking required before issuing a writ of attachment is shown to the satisfaction
of the court or judge, upon proper notice, to be insufficient to secure the party whose
property is attached, against damages, the court or judge may require an additional
undertaking to be filed, and if not filed, the attachment shall be dissolved.
30 Nev. 17, 23 (1908) Rules of District Court
property is attached, against damages, the court or judge may require an additional
undertaking to be filed, and if not filed, the attachment shall be dissolved. No attachment
shall be dissolved by reason of any defect in the attachment papers that can be amended
without affecting the substantial rights of the parties.
RULE XXI.
Trials.
Upon a reference to try all the issues, both of fact and law, and to report a judgment
thereon, the referee shall set forth in his report the facts found and conclusions of law
separately, and shall, upon the day when his report is filed, serve upon the respective parties,
or their attorneys, notice that such report is filed; and the trial of the cause for the purpose of
notice and motion for new trial shall not be deemed concluded until such notice is served.
RULE XXII.
AppealsCertificate of Appeal to StateSupersedeas.
When an appeal is perfected and a proper undertaking to stay proceedings is filed, it shall
stay all further proceedings in the court below, upon the judgment or order appealed from or
upon the matter embraced therein; and if an execution or other order shall have been issued to
the sheriff, coroner, or elisor, he shall return the same, with the cause therefor, and his
proceedings thereunder, endorsed thereon upon receiving from the clerk a certificate, under
the seal of the court, of the perfecting of the appeal. The certificate shall state the title of the
action, the filing and service of the notice of appeal and the date of such filing and service,
together with the filing and approval of the undertaking staying all proceedings, and the date
of such filing and approval; and such certificate shall operate as a supersedeas of the
execution, or a vacation of the order.
RULE XXIII.
Foreclosing MortgageService by Publication.
If, in an action to foreclose a mortgage, the defendant fails to answer within the time
allowed for that purpose, or the right of plaintiff as stated in the complaint is admitted by the
answer, the court may make an order referring it to some suitable person as referee, to
compute the amount due to the plaintiff, and to such of the defendants as are prior
incumbrancers of the mortgages premises, and to examine and report whether the
mortgages premises can be sold in parcels, if the whole amount secured by the mortgage
has not become due.
30 Nev. 17, 24 (1908) Rules of District Court
brancers of the mortgages premises, and to examine and report whether the mortgages
premises can be sold in parcels, if the whole amount secured by the mortgage has not become
due. If any of the defendants have been served by publication, the order of reference shall also
direct the referee to take proof of the facts and circumstances stated in the complaint, and to
examine the plaintiff, or his agent, on oath, as to any payments which have been made, and to
compute the amount due on the mortgage, preparatory to the application for decree of
foreclosure.
RULE XXIV.
Further Time.
When an order shall be made enlarging the time to file a statement or affidavits on motion
for new trial, the adverse party shall have the same number of days to propose amendments or
file counter affidavits as was allowed by such order to file such statement or affidavits.
RULE XXV.
Settled by Referee.
When a motion for a new trial is made in a cause tried before a referee, the statement shall
be settled by the referee.
RULE XXVI.
UndertakingsStay of ExecutionCertificate to State.
No stay of execution upon motion for a new trial shall be granted or allowed, nor
execution or other proceeding be stayed in any case, except upon the giving of a good and
sufficient undertaking, in the manner and form as other undertakings are given, to be
approved by the judge, with at least two sureties, for the payment of the judgment or debt, or
performance of the act directed by the judgment or order, in such amount as may be fixed by
the judge. An order to stay execution, or other proceedings in an action, shall be of no effect
until a copy of notice thereof is served upon the opposite party, or his attorney, and any other
party or officer whose proceedings are to be stayed thereby, unless said attorney or officer be
present at the time of making such order. And if an execution or other order shall have been
issued to the sheriff, coroner, elisor, or other person, he shall return the same with the cause
therefor and his proceedings thereunder indorsed thereon, upon receiving from the clerk a
certificate, under the seal of the court, of the granting of the stay of execution or other
proceedings.
30 Nev. 17, 25 (1908) Rules of District Court
the stay of execution or other proceedings. The certificate shall state the title of the action, the
order staying the execution or other proceedings, and the date of such order, together with the
filing and approval of the undertaking above required, and the date of such filing and
approval; and such certificate shall operate as a supersedeas of the execution or a vacation of
the order.
RULE XXVII.
Stipulations.
No agreement or stipulation between the parties in a cause, or their attorneys, in respect to
the proceedings therein, will be regarded, unless the same shall be entered in the minutes in
the form of an order, by consent, or unless the same shall be in writing, subscribed by the
party against whom the same shall be alleged, or by his attorney or counsel.
RULE XXVIII.
Juror, How Excused.
No juror shall be excused except in open court; and when a juror is excused, the clerk shall
immediately withdraw his name from the box for the period for which he has been excused.
RULE XXIX.
Guardians.
No person shall be appointed guardian ad litem, either upon the application of the infant or
otherwise, unless he be the general guardian of the infant, or an attorney or other officer of
this court, or is fully competent to understand and protect the rights of the infant; has no
interest adverse to that of the infant, and is not connected in business with the attorney or
counsel of the adverse party, nor unless he be of sufficient pecuniary ability to answer to the
infant for any damage which may be sustained for his negligence or misconduct in defense of
the suit.
RULE XXX.
Attorneys as Guardians Ad Litem.
Every attorney, or officer of this court, shall act as guardian of an infant defendant,
whenever appointed for that purpose by an order of the court. He shall examine into the
circumstances of the case, so far as to enable him to make the proper defense, and shall be
entitled to such compensation as the court may deem reasonable.
30 Nev. 17, 26 (1908) Rules of District Court
RULE XXXI.
Guardians Ad Litem.
No guardian ad litem shall receive any money or property, or proceeds of sale of real
estate, until he has given security by bond, in double the amount of such property or money,
with two sureties, who shall justify as in other cases, approved by the judge and filed by the
clerk, conditioned for the faithful discharge of his trust.
RULE XXXII.
To Furnish to the Clerk.
The counsel obtaining any order, judgment, or decree, shall furnish the form of the same to
the clerk.
RULE XXXIII.
To Be Filed.
The sheriff shall file with the clerk the affidavit and order on which any arrest is made,
within five days after such arrest is made.
RULE XXXIV.
Retax Costs.
The party against whom judgment is entered shall have two days after service of a copy of
the cost bill in which to move to retax costs.
RULE XXXV.
Mechanics' Liens.
In actions to enforce mechanics' liens, other lienholders coming in under the notice
published by the plaintiff shall do so by filing with the clerk and serving on the plaintiff, and
also on the defendant, if he be within the state, or be represented by counsel, a written
statement of the facts constituting their liens, together with the dates and amounts thereof,
and the plaintiff and other parties adversely interested shall be allowed five days to answer
such statements.
RULE XXXVI.
Motions.
No motion once heard and disposed of shall be renewed in the same cause, nor shall the
same matters therein embraced be reheard, unless by leave of the court granted upon motion
therefor, after notice of such motion to the adverse parties.
RULE XXXVII.
Appeal from Justices' CourtDismissed, When.
When an appeal from the justices' court to this court has been perfected, and the papers are
not filed in this court within fifteen days from the day of filing the undertaking on appeal,
this court, on the production of a certificate from the justice to the effect that an appeal
has been ordered up, or the proper costs not paid, or upon showing that any other
necessary steps have not been taken, shall dismiss the appeal at the cost of the appellant.
30 Nev. 17, 27 (1908) Rules of District Court
appeal, this court, on the production of a certificate from the justice to the effect that an
appeal has been ordered up, or the proper costs not paid, or upon showing that any other
necessary steps have not been taken, shall dismiss the appeal at the cost of the appellant.
RULE XXXVIII.
Appeal Dismissed, When.
The plaintiff shall cause the papers in a case certified to this court under the provisions of
the 539th section of the practice act, to be filed in the office of the clerk of this court within
fifteen days from the day upon which the order of the justice is made directing the transfer of
the case. If the papers are not so filed the case shall be dismissed, upon filing a certificate
from the justice to the effect that he has certified the papers as required by said section, but
that the same has not been ordered up, or the proper costs paid; or if it shall appear that such
papers are not filed in this court by reason of the neglect of the plaintiff to pay the fees of the
clerk for filing the same.
RULE XXXIX.
Duties of Sheriff.
During the time the court remains in session it shall be the duty of the sheriff in attendance
to prevent all persons from coming within the bar, except officers of the court, attorneys and
parties to, or jurors or witnesses in, the cause or matter being tried or heard. The sheriff shall
also keep the passage way to the bar clear for ingress or egress.
RULE XL.
Instructions To Be Settled, When.
Before the argument begins, counsel shall prepare their instructions, submit them to the
inspection of the opposite party, and then deliver them to the court. The court will hear
objections to instructions, and will, when practicable, settle the instructions in advance of the
agreement, and permit counsel to use them when addressing the jury.
RULE XLI.
Trials.
When any district judge shall have entered upon the trial or hearing of any cause or
proceeding, demurrer or motion, or made any ruling, order or decision therein, no other judge
shall do any act or thing in or about said cause, proceeding, demurrer or motion, unless
upon the written request of the judge who shall have first entered upon the trial or
hearing of said cause, proceeding, demurrer or motion.
30 Nev. 17, 28 (1908) Rules of District Court
shall do any act or thing in or about said cause, proceeding, demurrer or motion, unless upon
the written request of the judge who shall have first entered upon the trial or hearing of said
cause, proceeding, demurrer or motion.
RULE XLII.
Writs.
When an application or petition for any writ, rule or order shall have been made to a
district judge and is pending, or has been denied by such judge, the same application or
motion shall not again be made to the same or another district judge, unless upon the consent
in writing of the judge to whom the application or motion was first made.
RULE XLIII.
Duties of Judge.
No judge, except the judge having charge of the cause or proceeding, shall grant further
time to plead, move, or do any act or thing required to be done in any cause or proceeding,
unless it be shown by affidavit that such judge is absent from the state, or from some other
cause is unable to act.
RULE XLIV.
Causes Certified by State Land Register.
When a cause shall have been certified by the state land register to the district court for
trial, it shall be the duty of the first applicant, within thirty days after receiving notice of such
certification, to file and serve upon the adverse party a complaint setting forth the facts upon
which he claims to be entitled to the land. The adverse party shall, within ten days after
service of the complaint, file and serve his answer, in which answer he shall set forth the facts
upon which he relies.
RULE XLV.
Vacating Judgments, Orders, Etc.Time to Amend.
No judgment, order, or other judicial act or proceeding, shall be vacated, amended,
modified or corrected by the court or judge rendering, making, or ordering the same, unless
the party desiring such vacation, amendment, modification or correction shall give notice to
the adverse party of a motion therefor, within six months after such judgment was rendered,
order made, or action or proceeding taken.
30 Nev. 17, 29 (1908) Rules of District Court
To the Honorable Judges of the District Court of the State of Nevada:
Your Committee appointed to prepare Rules of Court submit for your approval and
adoption the foregoing rules, forty-five in number.
TRENMOR COFFIN,
ROBT. M. CLARKE,
R. H. LINDSAY,
W. E. F. DEAL,
H. F. BARTINE,
Committee.
Attest: James D. Torreyson, Secretary.
____________
It is hereby ordered that the foregoing rules, forty-five in number, be and they are hereby
adopted as the Rules of Practice of the District Court of the State of Nevada, and that they be
in force in each county thirty days after the date of their filing in the clerk's office of such
counties.
RICHARD RISING,
Presiding District Judge.
R. R. BIGELOW,
A. L. FITZGERALD,
District Judges.
____________
30 Nev. 43, 43 (1908)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
JANUARY TERM, 1908.
____________
30 Nev. 43, 43 (1908) Costello v. Scott
[No. 1723.]
THOMAS J. COSTELLO and LEONA K. NEWHALL, Respondents, v. MURRY SCOTT,
N. R. FITZPATRICK, WILLIAM MAYS, and L. A. SAVAGE, Appellants.
1. JuryRight to Jury TrialEquity Case. In an equity case, a party cannot demand a jury as a matter of right,
the calling of a jury being within the discretion of the judge.
2. SameLegal and Equitable Issues. Where a suit to establish a partnership and for an accounting was treated
by all the parties as an equitable proceeding throughout, and a jury was called to aid the court in
determining certain questions of fact, but no jury was ever demanded to try the legal issues raised by
defendant's answer, their right to a jury trial of such issues was waived, and the court was authorized to
disregard the jury's conclusions on the facts, and to file his own findings and base a decree thereon.
3. Mining PartnershipsCreation. In a suit for an accounting of an alleged mining partnership and to establish
plaintiffs' interest in certain mining claims discovered by defendant S., evidence held to sustain a finding
that a partnership for the location and operation of mines existed between plaintiffs and defendant S.,
covering the locality in controversy, at the time the claims in question were discovered, and that plaintiffs
were entitled to an interest therein.
4. SameGrub-Stake Contract. A grub-stake contract, by which one agrees to furnish supplies for a prospector
and share in any mining claims he may discover, does not constitute a partnership, unless the agreement
extends beyond the mere furnishing of supplies in consideration of a participation in the discoveries.
30 Nev. 43, 44 (1908) Costello v. Scott
5. SameContractModification. Plaintiffs and defendant S. having formed a partnership for location and
operation of mining claims, S., on May 4, 1906, wrote plaintiffs that he had arrived in F. and secured a
two-thirds lease on certain property; that he would need $50 to carry on the lease, giving plaintiffs
one-third or one-half thereof. Plaintiffs in reply on the 10th complained of their inability to raise money,
but promised to send the same not later than the following Tuesday, and called for a description of the
camp and lease. On May 19th plaintiffs wrote another letter, inclosing the $50, and again called for a full
description of the lease and the claims S. had located between G. and F. Held, that such correspondence
did not constitute a termination of the prior partnership between the parties, and a new contract to operate
the leased ground, but contemplated a continuance of the prior relations between plaintiffs and S.
6. AppealAdmission of EvidencePrejudice. Defendant S. was not prejudiced by the admission of a letter in
evidence in an equity suit, where its admission could not have changed the rights of the parties.
7. Same. Where the question of partnership in issue was a matter of legal construction to be placed on prior
correspondence between the parties, which, as found by the court, established a partnership, the
admission of other subsequent letters, even though erroneous, because they contained self-serving
declarations, was not prejudicial to defendants.
8. Fraudulent ConveyancesNoticeEvidence. Plaintiffs and defendant S., having entered into a prospecting
partnership, S., while living with defendant F., located a number of claims, some in the name of plaintiff
C., and S. and F., of which F. had knowledge, and later conveyed to F. surface town-site rights in land
covering a number of claims in controversy. F. testified that he first learned that plaintiff C. was
interested with S. when he (F.) first went to G. Held, that such facts were insufficient to charge F. with
notice of the existence of a partnership between plaintiffs and S.
9. AppealFinding of FactConclusiveness. A finding of fact in an equity suit, supported by the evidence, is
conclusive on the supreme court.
10. Mines and MineralsMining PartnershipContractsPerformance. Where S., while a member of a
prospecting partnership, located certain mining claims, and with others transferred town-site surface
rights to F., in consideration of his performance of the location work necessary to hold the claims, and to
survey and plat the same, neither plaintiffs nor S. were entitled to complain that F. subsequently made
arrangements that such work should be done by another.
11. SameAuthority. Where a partnership for the location of mining claims, etc., was practically without funds,
a member of the firm was authorized in good faith to convey certain town-site surface rights embracing
such claims, in consideration of the grantee's performance of the location work, etc., necessary to hold the
claims.
12. PartnershipAccountingJudgment. A receiver in proceedings for an accounting of the assets of a firm in
which plaintiffs were entitled to a half interest with defendant S. became possessed of $1,816 belonging
to the firm, and the final decree adjudged to plaintiffs against S.
30 Nev. 43, 45 (1908) Costello v. Scott
the sum of $2,180.60, which sum included the $1,816. Held, that such judgment was erroneous, as in
effect a double judgment for plaintiffs for one-half of the $1,816.
13. New TrialErrorsCorrectionRemittitur. Where a judgment for plaintiffs in a suit for an accounting of a
partnership was excessive through mere oversight of the trial judge, and on an application for a new trial
plaintiffs confessed the error, and offered to remit the excess, the court had power to deny the motion on
plaintiffs filing a remission.
14. AppealReviewDisposition of Cause. Where a judgment was excessive through misadvertence of the
trial judge, the supreme court, in the event of a denial of a new trial without requiring remission of the
excess, on its attention being called to the error, would modify the judgment, and affirm the order
denying the motion for a new trial, as authorized by Comp. Laws, 3434.
15. Mines and MineralsMining PartnershipAccountingDecree. Defendant S., while a partner of plaintiffs,
located, with his two codefendants, certain valuable mining claims, which defendants transferred to a
corporation. Plaintiffs then sued for an accounting, to which the corporation was not a party, and a decree
was entered giving plaintiffs an undivided half of an undivided third of the claims in question; the decree
also reciting that plaintiffs were entitled to an undivided one-half of any and all further moneys or other
consideration received or to be received by S., or contracted to be paid to him, accruing or arising out of
any interest, property right, claim or demand of S. to such mining claims, etc. Held, that such decree did
not attempt to adjudicate plaintiffs' rights to stock in the corporation nor any of its rights, and was
therefore not objectionable as being a double judgment, in giving plaintiff one-half of S.'s third in the
claims deeded to the corporation, and also one-half of all stock issued by the corporation to S. in
consideration of the transfer.
16. JudgmentConclusivenessParties. Where a corporation to which certain mining claims had been
transferred was not a party to a suit for an accounting between plaintiffs and the corporation's grantors,
the corporation was not bound by a decree establishing plaintiffs' rights as against such grantors.
17. AppealAdmission of EvidencePrejudice. Where, in a suit for accounting between partners and others
concerning certain mining claims transferred to a corporation, the question whether a deed by one of the
partners of his interests in the claims to the corporation conveyed the title so as to cut out plaintiffs'
equities was not involved nor attempted to be determined, the admission of such deed was not prejudicial
to defendants.
On Petition for Rehearing.
1. AppealReviewEstoppel to Allege Error. Appellants, by treating a judgment as final and appealing
therefrom, are estopped to deny its finality.
2. SameDecision ReviewableFinality. Where a judgment determined the existence of a partnership, and
ordered a dissolution thereof, gave to plaintiffs an undivided half interest in certain property, determined
to have belonged to the partnership, and in the hands of the receiver, gave judgment against the
defendant for one-half of a certain sum less certain specified deductions, such sum
having been received by defendant on account of the partnership affairs prior to the
institution of the suit and the appointment of the receiver, and further allowing
plaintiffs their costs taxed at a certain sum, it was a final judgment, though the
right to make a supplemental decree was reserved by the court.
30 Nev. 43, 46 (1908) Costello v. Scott
gave judgment against the defendant for one-half of a certain sum less certain specified deductions, such
sum having been received by defendant on account of the partnership affairs prior to the institution of the
suit and the appointment of the receiver, and further allowing plaintiffs their costs taxed at a certain sum,
it was a final judgment, though the right to make a supplemental decree was reserved by the court.
3. PartnershipDissolutionActionDecree. Where, at the time a decree was entered dissolving a partnership,
appointing a receiver, and awarding plaintiffs one-half of all moneys in the hands of the receiver, there
was no showing of any partnership indebtedness, and the court proceeded on the theory that there was
none, such judgment should be modified on appeal, that the claims of third parties be first paid out of the
property in the hands of the receiver.
4. SameCostsDiscretion of Court. The allowance of fees of the receiver as costs in proceedings for
dissolution of a partnership is a matter in the legal discretion of the trial court.
5. SameAppealModification of Decree. Where a decree recited that the court deemed the appointment of a
receiver for the best interest of said copartnership, and then proceeded to impose all fees and expenses
of the receiver upon defendants, such decree will be modified on appeal by directing that such fees and
expenses be borne by the partners equally.
Appeal from the District Court of the Second Judicial District of the State of Nevada,
Churchill County; B. F. Curler, Judge.
Action by Thos. J. Costello, et al., against Murry Scott, et al. From a decree in favor of
plaintiffs, defendants appeal. Modified and affirmed as to all the defendants, except N. R.
Fitzpatrick, and reversed and new trial granted on certain of the issues between plaintiffs
and defendant Fitzpatrick. Petition for rehearing. Denied.
The facts sufficiently appear in the opinion.
Thomas S. Ford, L. N. French, and T. W. Wampler, for Appellants:
I. A cardinal principle of pleading and practice was violated in this case by entering
judgment against the defendants upon the testimony produced. By the complaint, and the
plaintiffs' theory of the case, the plaintiffs were to have supplied Scott with money. They
claim that they did so, and they specify and base their rights to recovery on the allegation that,
at the time of the discovery of the Wonder mines, he was living on money which had been
supplied by them. Upon this allegation there was an entire absence of proof.
30 Nev. 43, 47 (1908) Costello v. Scott
The contrary was established beyond all question of doubt. It will be noticed by the court that
when plaintiffs concluded to sue defendants it became necessary to show that the contract
extended outside of Goldyke District, an that they had furnished Scott the money he wrote
for. They had promised to send fifty dollars to Fairview. Two of the main issues presented by
the pleadings were these: (1) Did defendant Scott receive fifty dollars in currency alleged to
have been sent by plaintiffs on May 19th, in a letter by mail? (2) Was Scott subsisting on the
proceeds of this money on May 25th, when the Wonder mines were discovered? That it
became necessary for plaintiffs to prove these facts will become apparent to the court, not
only from an inspection of the pleadings, but from the law applicable to the case. As to the
law, it is clearly set forth in the case of Prince v. Lamb, 128 Cal. 128. In that case the court
says: Neither can the complaint be upheld on the theory that it counts on a grub-stake
contract. It is essential to a right in property under a grub-stake contract that such property
should be acquired by means of the grub-stake furnished and pursuant to the grub-stake
contract. The complaint does not show that the fifty dollars was used in procuring any
portion of the property. (Emery v. Mason, 75 Cal. 222; Miller v. Butterfield, 79 Cal. 62; Berry
v. Woodburn, 107 Cal. 512; Gisua v. Mallory, 84 Fed. 851). It will be thus seen that a
grub-stake agreement is neither alleged nor proved unless plaintiff shows that the property
was acquired by means of the money sent and received. That the counsel had this case in his
mind when he framed the complaint is apparent from the allegations which specifically allege
that this letter enclosing the currency was sent and received, and that Scott was subsisting on
the money at the time of the discoveries alleged.
II. Where the judgment is for too much, the case must be remanded for a new trial.
(Greenleaf v. Hill, 30 Me. 165; Frank v. Morrison, 55 Md. 399; Clark v. Robinson, 15 R. I.
231; 10 Atl. 642.) And in those courts which hold that the appellate court may exercise such
power, it will not do so when the judgment does not show what is the true amount to be paid.
(Seeman v. Feeney, 19 Minn. 79; 5 Minn. 373; 18 N. Y. 522; 9 Misc. N. Y. 698; 30 N. Y.
Sup. 257; 61 N. Y.
30 Nev. 43, 48 (1908) Costello v. Scott
St. 114; 56 Wis. 221; 13 N. W. 925.) In the present case the receiver is, by the judgment,
ordered to render his account for settlement, and until such settlement and allowance of
expenses, fees, etc., the amount due cannot be ascertained. The supreme court will not
undertake to readjust complicated matters of account for the purpose of reforming instead of
revising a judgment. (Williams v. Durst, 35 Tex. 421.) Actions for tort, in cases of excessive
damages, where the amount is reduced, have no application to the present case. A district
judge cannot alter, amend, modify, or correct a judgment entered or rendered by his
predecessor, who tried the case. (Broder v. Conklin, 78 Cal. 365; Mace v. O'Reilly, 70 Cal.
231.) Upon this point we submit the motion for a new trial should have been granted, and we
ask this court to order such new trial (unless it directs judgment in our favor without such
new trial).
III. Another error committed was the admission in evidence against defendants' objection
of the deed by Mays, Scott and Savage to Hidden Treasure Mining Corporation, a
corporation, and also the finding of the court that the plaintiffs were entitled to an undivided
one-sixth interest in the property of this corporation. The deed was signed and delivered
before the commencement of the action. The corporation was an innocent purchaser. There
was no evidence of any lis pendens having been filed. If there had been, it would only be
notice to purchasers subsequent to the commencement of the trial. The corporation purchased
prior thereto. The object of recording is to give notice to subsequent purchasers. The deed
was valid and binding between the parties. Plaintiffs did not purchase after the conveyance.
By paying full consideration without notice the corporation acquired the legal title, and also
had the superior equity. We are at a loss to understand the position of court and counsel in
this matter, as an innocent purchaser cannot be deprived of his property this way.
IV. The court below assumed, as a matter of course, in this case that it had the right to
pursue the extraordinary course of summarily setting aside the verdict without pursuing the
usual course, viz., entering judgment upon the findings of the jury, and thereafter reviewing
the case on motion for a new trial.
30 Nev. 43, 49 (1908) Costello v. Scott
for a new trial. In this the court committed error. The court assumed that all the issues were
tendered on the equity side of the court. Such was not the case. The answer raised legal
issues. The main portion of the judgment is devoted to granting legal relief. It affords money
damages and possession of all the real property in litigationpurely legal remedies. The only
way the judgment could or should be set aside was by ordinary motion for a new trial, in
orderly and usual proceedings, subsequent to judgment. The case was tried as an action at
law. Plaintiffs made no objection to calling a jury or submitting the case to them. As the
record is silent the law presumes they were called by their consent. Out of twenty special
issues plaintiffs prepared, fifteen, at their request, were submitted to the jury. They asked for
the verdict upon these issues. If the verdict had been favorable to them they would not have
objected. They waited until they found the verdict was against them, and then objected. We
submit that a party cannot blow hot and cold in a court of justice on the same proposition. In
this case the title and possession of real estate was asked for, and direct judgment given for its
recovery. It could be recovered by writ of possession. Direct money damages were given.
They can be recovered by execution. We have given bond to stay execution in the court
below. All this relief was obtained in a court of law. Equity acts on the personnot the
property.
V. Unless the case is of exclusive equitable cognizance, the right of jury trial remains.
(Muncie v. Martin, 72 N. E. 882; 123 Fed. 506; 19 How. 271; 13 Wall. 616; 15 Wall. 373;
119 U. S. 347; 138 U. S. 151.) In all cases involving title to money or personal property either
party is entitled to a jury as of right. (Neff v. Manuel, 97 N. W. 73.) Where issues of fact in an
equity case are tried by jury and involve title or damages, the verdict is binding. (Bowles v.
Gandle, 45 S. E. 835.) Where in an action in equity plaintiff tenders issues of damages, the
defendant is entitled to a jury. (Horton v. Simon, 97 N. W. 604.) An action for breach of
contract which involves an accounting is a jury case. (Hoosier v. National, 72 N. E. 473.) A
party cannot, by giving an equitable form to a legal action, deprive his adversary of the right
to a jury trial.
30 Nev. 43, 50 (1908) Costello v. Scott
right to a jury trial. And legal questions in equity cases should be so tried. (Curtis v. Sutter,
15 Cal. 262; Wiggins v. Williams, 36 Fla. 637; 70 Ind. 490; 15 Mich. 322; 75 Mich. 274; 64
Pa. St. 275; 42 Pa. St. 488; 141 Ill. 308; 32 W. Va. 41; 82 Am. Dec. 530; 13 Am. St. Rep.
438; 73 Pa. St. 172.)
McIntosh & Cooke, for Respondents:
I. A partnership formed for mining and trading in California, though not expressed to be
for any definite period, will be presumed to be intended to last at least one mining season, and
cannot be dissolved at will. (Potter v. Moses, 1 R. I. 430.) A partnership for the
accomplishment of certain definite objects, but not expressly specifying any time for its
continuance, is not a partnership at will, within the meaning of the rule just stated, but it is
regarded as a partnership to continue until its purpose is accomplished, or the impracticability
thereof is demonstrated. (22 Am. & Eng. Ency. Law, 2d ed. 205, and note 5.) But as
conclusive of the correctness of the court's finding we refer to the evidence. Scott says in his
very first letter, December 8, 1905: I am satisfied this will make a great camp in the spring.
* * * We will come out all right in the spring. * * * This camp will be a hummer before many
months.
II. The court did only what the established facts compelled it to dofound a general
partnership for mining business. While such partnership was in law subject to be dissolved at
will, such a dissolution must have been made in good faith, on notice at a reasonable time,
and without any unfair or selfish purpose, and without any purpose of thereby acquiring a
private gain or advantage. (Howell v. Harvey, 39 Am. Dec. 376.)
III. A subpartnership exists where one partner in an existing firm agrees to share his
proportion of the profits with a third person in such a manner as to constitute himself and
such third person partners. Such a contract does not violate the principle of delectus
personarum, for it does not make such third person a partner in the original firm. The
members of the principal firm have no interest in the controversy between members of the
subpartnership. (22 Am. & Eng. Ency. Law, 2d ed. p. 17, notes 7-11, and cases cited;
George on Part.
30 Nev. 43, 51 (1908) Costello v. Scott
George on Part. 75-79; Burnett v. Snyder, 76 N. Y. 344-349, 37 Am. Rep. 527; Fitch v.
Harrington, 74 Am. Dec. 641; Kerrick v. Stevens, 20 N. W. 888; Sears v. Collins, 12 Mg.
Rep. 400.) But independently of the legal effect of partnership relations, dissolution under
reasonable time, conditions, etc., as elaborated on supra, we contend the evidence shows
conclusively that at the very time Scott acquired the Wonder properties, he was actually
subsisting on provisions, moneys and supplies furnished him by plaintiffs.
IV. Counsel concede the power of an equity court; that verdict of jury is merely advisory,
but they claim the action of the court in declining to adopt the findings of the jury was an
abuse of its power, claiming also that some of the findings made by the court were upon no
evidence or slight evidence. If the court has made such findings, counsel's remedy, instead
of railing at the court for not adopting jury findings, is to ask for a new trial on the ground
that the findings are wholly unsupported, and not complicate matters by injecting jury
findings, which, in any view of the case, must be utterly foreign to the matter in hand.
V. The claim that the power of the judge to deny a new trial, should the prevailing party
consent to a modification or reduction, is confined to damage cases and the like, is not correct
under the authorities. (3 Estee, Pl. 485; Pierce v. Payne, 14 Cal. 420; Hayne, New Tr. and
App. 166; 14 Ency. Pl. & Pr. 939.) The contention made by counsel has been before this court
and decided adversely to counsel's position. (Bonelli v. Jones, 26 Nev. 176.) The California
case of Eames v. Haver, 43 Pac. 1120, was an action involving an exchange of corporate
stock, and the value of certain stock, which defendant refused to produce and deliver to the
plaintiff. Judgment went for the plaintiff in the lower court, and on appeal it was found from
the record that the sum of $525 represented an excess, or, as in this case, was included by
error of calculation. The supreme court said, speaking of the lower court having granted a
new trial for this error of calculation: The order granting a new trial should be reversed on
the conditions that, within ten days after filing of the remittitur in the court below, the
appellant remit from the judgment the sum of $525, and pay all costs of this appeal.
30 Nev. 43, 52 (1908) Costello v. Scott
appeal. * * * Perhaps the conditions that appellant pay all costs of the appeal would not be
just if he had offered to remit the $525 in the lower court before a new trial was ordered.
And this is exactly what plaintiffs did in the case at baroffered to and did remit the alleged
excess in the lower court before the court passed upon defendants' motion for new trial, and
remittitur was made with approval of lower court, accepted by it, and thereupon motion for
new trial denied.
VI. The decree is none the less final because some future orders of the court may become
necessary to carry it into effect. It is not essential that the judgment settle all the rights of the
parties. If it determines the issues involved in that particular action, it is a final judgment,
though some future orders of the court may be necessary to carry it into effect. The
confusion has sprung up from failing to observe the distinction between the facts and things
to be ascertained preparatory to final decree, and facts and things to be ascertained in
execution of final decree. (Perkins v. Sierra Nevada M. Co., 10 Nev. 405.) Where decree
disposes of equities of case, the fact that it reserves jurisdiction to make some future order
necessary to carry the decree into effect does not affect its finality. Where a final order as to
the disposition of matter reserved can have no effect on the decree previously rendered, the
decree is necessarily final, whether such reservation relates to the manner of carrying decree
into execution or ascertainment of the state of the accounts between parties by reference in
accordance with the equities by the decree. (13 Am. & Eng. Ency. Law, 28, 29.) A decree
which decides all the equities involved is not rendered interlocutory because it concludes all
points and questions not herein expressly decided are reserved to the final decree. (Jones v.
Wilson, 54 Ala. 50, cited in 13 Am. & Eng. Ency. Law, 28, note.)
Thomas S. Ford, L. N. French, and T. W. Wampler, for Appellants, in reply:
I. Where a case is tried in the court below upon the theory that the pleadings present
particular issues, the appellate court will not adopt a different theory. (Horton v. Dominguez,
6S Cal.
30 Nev. 43, 53 (1908) Costello v. Scott
Dominguez, 68 Cal. 642; Tully v. Trainor, 53 Cal. 274; 20 N. Y. 58; 99 Mass. 256; 87 N. Y.
128; 11 Mont. 523.)
II. A plaintiff must frame his pleading with reference to some particular theoretical right
of recovery. (Logansport v. Uhl, 99 Ind. 539.) A complaint cannot be made elastic, so as to
change to the bending views of counsel as the case proceeds. It must proceed to the end, upon
the theory upon which it is constructed. (Toledo v. Levy, 127 Ind. 168.) The prayer of the
complaint does not determine its character, and plaintiff cannot obtain relief upon a different
theory from that on which his pleadings are based. (Hays v. Fine, 91 Cal. 391; 62 N. Y. 508;
36 N. Y. App. Div. 159.)
III. Counsel cites authorities to the effect that, in an equity case, the court should make
findings. Where the case is one of exclusive cognizance in a court of equity, this is true. We
did not deny the proposition involved. We raised the point that where there was no evidence
to sustain a finding, the making of a finding adverse to the verdict of a jury was an abuse of
the discretion of the court. Counsel says in the absence of statutory modification, the jury is
not a part of the chancery system. Comp. Laws, 3278, says: Chancery cases may be tried by
the court, with or without the finding by a jury, on issues formed by the court. It was held in
2 Nev. 75, that, where legal and equitable issues arise in the same case, a jury might properly
try the legal issues. As to the legal issues in a chancery case, the verdict is not advisory. It is
compulsory. Counsel cites a number of authorities to the effect that, in a chancery case, the
court below must make its own findings. This is true, as we said, where the issue is purely
one of equitable cognizance. But this is not true where there is an entire want of evidence
upon any issue.
IV. Counsel says that the petition for intervention injected new issues, but the court will
note that the issue of its right to the property was tried against it, just the same as if it had
been a party to the action. He further says the filing of the petition would necessitate delay in
trying the action. We are at a loss to understand how that would result when its rights to the
property were tried just the same as if it had been allowed to intervene.
30 Nev. 43, 54 (1908) Costello v. Scott
same as if it had been allowed to intervene. But had the judgment of the lower court not
attempted to foreclose the rights of the corporation, or adjudicate its title to its property, the
action of the court, in denying it the right to intervene, might be considered harmless. But to
deny it the right to be heard, and then to adjudicate its rights, is one of the most glaring and
gross instances of depriving a party of its property without due process of law which this
court ever had brought to its attention. This court will look through the record in this case in
vain, to find out why the sales and options made by Scott, Mays and Savage to Rigdon and
others were respected by the judgment and the action of the court below, and the sale made to
the Hidden Treasure Company was made a mark of discrimination, and not only the interest
which Scott formerly held in the real property, but the stock which Scott received for that
interest, were both given to plaintiff. Why there should have been such discrimination and
gross injustice cannot be explained by anything appearing in the record.
V. Counsel says that we filed our exceptions to the findings, and that is all we were
entitled to do under the statute. Comp. Laws, 3858, says that exceptions shall be made in the
court below, to the findings, and, upon failure of the court below to remedy the alleged
error, the party shall have his exceptions. We submit that this section makes this proceeding
a part of the trial in the court below. It is no answer to say that the court below would have
paid no attention to our exceptions, and made every finding against us. A party is entitled to a
trial. He is entitled to a hearing, and without a trial and without a hearing his case has been
erroneously and illegally decided, and he is entitled to a reversal of the case, so that he may
be heard upon every question which the statute says that he may be heard, in the court below.
By reason of not being given sufficient time by the court below, we were obliged to file our
exceptions after judgment was entered and after the judge who heard the case had gone out of
office.
VI. Counsel cites the case of Bonelli v. Jones, 26 Nev. 176, and claims that that is against
us. Quite the contrary.
30 Nev. 43, 55 (1908) Costello v. Scott
That was a case in which the judge who tried the case was the same person who made the
conditional order that a new trial be granted. In that case the court granted an excessive
amount of water, and, on motion for a new trial, ordered that the same be denied, provided
the plaintiff accept a less amount. The ruling of the court was that the appeal from the order
be dismissed, the court saying: There is nothing before this court which can be considered.
We submit that, under this ruling, any language of the court pertaining to the power of the
court was mere obiter. Where this point was not before the court, and was not decided by the
court, we submit that the decision should have no weight with this court; but, if we consider
the decision and the language used, as if the point had been decided, we find that the question
was whether the court could impose reasonable terms upon granting or denying the motion,
and not whether the court could alter or amend the judgment, or make different findings. The
authority there referred to (14 Ency. Pl. & Pr. 939) holds that the conditions there referred to
concern the payment of costs, or that the new trial shall be confined to certain issues, or be
confined to one of the defendants, or that appeal be waived. These matters were not judicial
principles upon which the cases were determined. We call the court's attention to the case of
Anderson v. Rome, 54 N. Y. 334, cited in the note to the text in that case, in which the court
says: Where legal error has been committed upon the trial, a new trial is a matter of right,
and the court cannot impose terms. See also Shaw v. McMaren, 2 Hill (N. Y.) 417, there
referred to. In the other reference made by the court in that case (Hayne, N. T. & App. 166)
the result of the summing up of the authorities on the point is that the court can make the
conditional order where the motion is made upon grounds which are addressed to the
discretion of the court below. The statute of this state gives the party the right to a new trial
where there is (Comp. Laws, 3290) insufficiency of evidence and the decision is against law,
or errors in law occurring at the trial. Where such errors have occurred, we submit that the
party has such right as a matter of course.
30 Nev. 43, 56 (1908) Costello v. Scott
Thomas S. Ford, L. N. French, and T. W. Wampler, for Appellants, on petition for
rehearing:
I. The complaint does not allege community of title in the property or the proceeds, but an
undivided half ownership in each. There is no joint ownership which should exist to
constitute partnership. A partner has a joint interest in the whole, but not a separate interest in
the whole, or any particular part, of the property. He cannot convey an undivided interest in
any particular piece of property. The coownership of property does not constitute partnership,
although they use it for making gains. If property is purchased for the purpose of reselling it
and dividing the gross receipts, the parties are not partners. An agreement to share the gross
returns, as distinguished from the net returns, does not constitute partnership. All the
authorities agree on this. The reason is that such an agreement cannot possibly constitute the
parties joint proprietors of the profits. (Story on Part. 34; Lindley on Part. 4th ed. 16, 17;
Everett v. Coe, 5 Denio, 180; Brown v. Jaquette, 94 Pa. St. 113; Walker v. Tupper, 152 Pa.
St. 9; Flint v. Eureka Co., 53 Vt. 669; 22 Am. & Eng. Ency. Law, 44, and cases cited.)
Bradley v. Harkness, 26 Cal. 76, is a similar case to this. In that case the court says: The
complaint proceeds upon two legal theories, which are wholly inconsistent. It first alleges a
copartnership in general terms. * * * It then drops the copartnership theory, and adopts that of
a tenancy in common in real estate. * * * The pleader seems to have been unable to determine
which was the true theory, and * * * concluded to partially incorporate both in his complaint,
being satisfied that one or the other must suit the facts to be developed by the evidence. * * *
This style of pleading, if allowed, would lead to the most pernicious results. All
correspondence between matters of allegation and matters of proof would be dispensed with.
* * * The court held there was no cause of action. On the death of one partner, title vests in
the survivor, but not so with tenants in common. Profits is the excess of receipts over
expenditures. (Connolly v. Davidson, 15 Minn. 519; Story on Part. 36, note 3.) If one share in
the net profits, that will constitute him a partner; if in the gross profits, then it will be
otherwise.
30 Nev. 43, 57 (1908) Costello v. Scott
(Story on Part. 34, 42, and cases cited.) While the plaintiffs were paying expenses, plaintiffs
and defendant were to share equally all gross profits and property acquired. Such is the
allegations of the complaint, and such relation does not constitute partnership.
II. The judgment is void, and does violence to all principle and established precedent. The
judgment in this case does not settle the partnership affairs. It gives piecemeal relief upon
some matters and leaves the final settlement uncertain and undetermined. The decree should
be definite and certain, and make a final settlement between the parties, so that execution may
issue for the balance. (Filbrun v. Ivers, 92 Mo. 388; Honore v. Colmesmill, J. J. Marsh, Ky.
525; Griggs v. Clark, 23 Cal. 428.) The judgment in the case at bar is not a final settlement of
the partnership affairs. Paragraph 16 gives plaintiffs judgment against defendant Scott for
$2,182.60 upon which execution may issue. This is also a separate judgment for costs of
$936, also a separate judgment for one-half of the mining property. There is no balance
struck. The judgment is for separate items of the partnership account. In paragraph 18 the
plaintiffs are given judgment for one-half of all moneys in the custody of the receiver, gross,
and plaintiffs are entitled to have the same delivered to them (eo instante). No account has
been rendered by the receiver, who has possession of all the property. We submit that this
judgment is indefinite and uncertain, so much so that this court cannot permit its execution or
attempted execution by the lower court. It is to be executed piecemeal, in part by the delivery
of specific real property; in part by execution upon separate items for money judgments; in
part by the delivery of a divided one-half of money in the receiver's hands as against the
claims of the receiver himself and the creditors of the estate, and those having prior charges
against the property itself, to be paid out of those funds, where there is no balance struck as
between the contending litigants. Confusion must arise upon attempting to satisfy, by
execution, the separate items, when the officer may levy upon the very property directed by
the other part of the judgment to be delivered to plaintiffs. The record does not show that the
receiver possesses sufficient to pay his own claims and expenses, and, if his account were
first settled, the court might direct to be paid to him, out of the funds of the estate, such
an amount that there could be no independent judgment for separate money items.
30 Nev. 43, 58 (1908) Costello v. Scott
to pay his own claims and expenses, and, if his account were first settled, the court might
direct to be paid to him, out of the funds of the estate, such an amount that there could be no
independent judgment for separate money items. The court might find it necessary to sell all
the real property to pay creditors or other claimants, and the sale of all the real property and
division of the proceeds is the usual and ordinary method of settlement in partnership affairs.
This court will take special notice of the fact that the judgment was prepared by the opposing
counsel for the lower court and without our knowledge or consent. The appropriate method of
procedure is to have the receiver's compensation and other necessary expenses fixed by the
court to be allowed out of the assets in his hands. (High on Receivers, 1st ed. 796; High on
Receivers, 19, 20; 23 Ency. Law, 2d ed. 1119; Garniss v. Superior Court, 88 Cal. 413; 11
Ency. Pl. & Pr. 935, 936.)
III. In the present case there are no means by which the amounts can be made certain. The
court must hold that an account should be rendered by the receiver, and his expenses allowed
him. If the defendant is compelled to pay the whole necessary expense involved in caring for
the property since the receiver came into the possession, one-half of which has inured to the
benefit of plaintiffs, it would in inequitable. Settling a partnership account consists of
discharging its liabilities, collecting its assets, ascertaining the surplus, and striking the
balance. The receiver has the right of appeal from the order settling his account. The relation
of debtor and creditor between partners cannot exist, and does not arise while the affairs are
being wound up, but only after all the affairs are settled and the balance is struck. (Ross v.
Cornell, 45 Cal. 133; Grant v. Los Angeles, 116 Cal. 71; Gleason v. White, 34 Cal. 258.)
IV. In this case the receiver claims a bill for $6,000. Some of this is for annual assessment
work on claims adjudged by the decree to belong to plaintiffs and defendant. Opposing
counsel claim that we must pay the whole of this, and that they are entitled to one-half of the
whole of the money in the receiver's hands. It is true their claim accords with the reading of
the judgment, but we must submit it is clearly erroneous and unjust.
30 Nev. 43, 59 (1908) Costello v. Scott
clearly erroneous and unjust. We are also notified by the attorney for the receiver that one of
the alleged creditors of the firm of Costello & Scott has, within thirty days last past, presented
a bill to the receiver on firm account for over $1,800, alleged commission on sales of mining
claims, and is about to commence suit. This loss, if suit should be successful, might fall
entirely on appellant, as the present judgment would be then satisfied, and upon another
judgment both would be jointly liable, and possibly, for some reason, appellant be compelled
to pay the whole claim, whereas, if creditors were paid out of the assets of the estate, as they
should be, all the partnership affairs would be settled in this case. The findings and judgment
both proceed upon the theory that the interests of no person are involved except plaintiffs and
defendant, and that they are tenants in common. We have but one appeal from the judgment.
That we have taken. If this estate is distributed as now directed, we are without further
remedy. We do not believe that such was the intent of this court in affirming the judgment. If
so distributed, the plaintiffs will obtain more than they pray for in the complaint, and more
than law or good conscience can sanction.
By the Court, Norcross, J.:
This is an appeal from the judgment and an order denying defendants' motion for a new
trial. The action was brought by respondents, alleging a copartnership for mining purposes
between themselves and defendant Murry Scott. They prayed for a decree dissolving the
alleged copartnership, for the appointment of a receiver, for an accounting, and for other
appropriate relief incidental to the dissolution of the copartnership. The nature and character
of the copartnership between respondents and defendant and appellant Scott is alleged in the
complaint as follows: That on or about the 8th day of December, 1905, the plaintiffs and
defendant made and entered into a contract and agreement in and by which it was then and
there mutually stipulated, contracted, and agreed by and between said plaintiffs and defendant
that they would engage together as copartners in the business of prospecting for, discovering,
locating, leasing, acquiring and working mines and mineral claims in the Counties of Nye
and Churchill in the State of Nevada, and in such other counties and places in said state as
might be subsequently agreed on; that said defendant should give his time and attention
to said business, and should furnish his work, labor, and services necessary for the
purposes of said business, and that the plaintiffs should from time to time advance and
pay the expense of said business, exclusive of defendant's said labor, and until said
business should become self-sustaining; that any and all property so discovered, located,
or in any manner acquired by said defendant should be held and owned by said plaintiffs
and defendant in common, each {that is to say, plaintiffs) having, holding, and owning an
undivided one-half part, share, and interest therein, and the defendant having, holding,
an owning the remaining undivided one-half part, share, and interest therein; that the
proceeds of any and all sales, options for sales, working bonds, or leases arising from, or
in any manner or wise accruing out of, said business and property so acquired should be
divided, as aforesaid, between plaintiffs and defendant, share and share alike; that
plaintiffs and defendant should have, hold, and own, as aforesaid, respectively, an
undivided one-half interest of, in, and to any and all mines and mining claims located or
otherwise or in any manner acquired in pursuance of said agreement or subject thereto,
and should have, hold, and own an undivided one-half interest, as aforesaid, of, in, and to
all profits, proceeds of sales or other consideration arising from the said business."
30 Nev. 43, 60 (1908) Costello v. Scott
working mines and mineral claims in the Counties of Nye and Churchill in the State of
Nevada, and in such other counties and places in said state as might be subsequently agreed
on; that said defendant should give his time and attention to said business, and should furnish
his work, labor, and services necessary for the purposes of said business, and that the
plaintiffs should from time to time advance and pay the expense of said business, exclusive of
defendant's said labor, and until said business should become self-sustaining; that any and all
property so discovered, located, or in any manner acquired by said defendant should be held
and owned by said plaintiffs and defendant in common, each (that is to say, plaintiffs) having,
holding, and owning an undivided one-half part, share, and interest therein, and the defendant
having, holding, an owning the remaining undivided one-half part, share, and interest therein;
that the proceeds of any and all sales, options for sales, working bonds, or leases arising from,
or in any manner or wise accruing out of, said business and property so acquired should be
divided, as aforesaid, between plaintiffs and defendant, share and share alike; that plaintiffs
and defendant should have, hold, and own, as aforesaid, respectively, an undivided one-half
interest of, in, and to any and all mines and mining claims located or otherwise or in any
manner acquired in pursuance of said agreement or subject thereto, and should have, hold,
and own an undivided one-half interest, as aforesaid, of, in, and to all profits, proceeds of
sales or other consideration arising from the said business.
The answer of defendant Scott denies that he ever entered into any contract of
copartnership with the plaintiffs Costello and Newhall, and denies that he had ever entered
into any agreement or business relations whatever with the plaintiff Newhall. He further
alleges that he and the plaintiff Costello did enter into a (so-called) grub-stake agreement,
which was confined exclusively to the Goldyke District, in Nye County. The nature of this
agreement is set forth in defendant Scott's answer to be as follows: By the terms of said
agreement, the plaintiff Costello was to furnish money to this defendant, and with said
moneys defendant was to purchase necessaries to support him, and materials for working said
mines, and the said contract was fully performed and carried out by this defendant; but
the amount of moneys furnished by said Costello was wholly inadequate and insufficient
for the purposes designated.
30 Nev. 43, 61 (1908) Costello v. Scott
said mines, and the said contract was fully performed and carried out by this defendant; but
the amount of moneys furnished by said Costello was wholly inadequate and insufficient for
the purposes designated. The said defendant was to locate and acquire title to mines, and as
far as he could, and his time permitted, was to do preliminary work thereon, required by the
laws of Nevada to be performed within ninety days after location; and after being so located,
and the title acquired, the said Costello and defendant were to be equal owners therein, and
each was to own an undivided half thereof. The said understanding or contract had no other
terms, and the said conditions, so described, constituted the whole thereof, and there was no
agreement as to how long said contract should last, and no time was fixed when it should
terminate; but it was mutually understood by and between the parties that said contract might
be dissolved at the will of either party, when it appeared to him that the same became
unprofitable, or for other reasons he desired to terminate the same, and the said agreement
between Costello and Scott was dissolved and terminated prior to the time that the said
business association or partnership of Mays, Savage, and Scott was formed.
It is alleged in the pleadings and shown by the proofs that on or about the 23d day of May,
1906, the defendant Scott, who was then at the Town of Fairview, in Churchill County, joined
defendants Mays and Savage in a prospecting expedition. These three parties, two days later,
discovered the mines of Wonder, about twenty miles from Fairview, which proved to be of
great value.
The main contention, upon the merits in this case, is plaintiffs' claim to an equal interest
with Scott in the fruits of his discovery at Wonder, by reason of the alleged partnership. The
case came on for trial in Churchill County before the court, with the aid of a jury. Special
issues were submitted to the jury, which, in the main, were answered in favor of the
contention of defendant Scott. To the question, Was the partnership or grub-stake agreement
confined, or intended to be confined, to the Goldyke District, in Nye County? the jury
answered Yes. Upon the question as to whether there was a partnership agreement, as
contended for by plaintiffs, the answer of the jury was in the negative.
30 Nev. 43, 62 (1908) Costello v. Scott
for by plaintiffs, the answer of the jury was in the negative. Also, in reference to the
contention of plaintiffs that they had, shortly before the Wonder trip, sent him $50, upon
which he was subsisting at the time of the said discovery, the jury answered in the negative.
These may be regarded as the principal special issues submitted to the jury, and are sufficient
to notice for the purposes of this opinion.
After the jury had returned its verdict upon the special issues submitted, respective counsel
entered into a stipulation that any and all further hearings, arguments, and proceedings to be
had before the court in said cause may be had, heard, and taken before the court at Reno, in
Washoe County, Nevada; * * * that an order may be made by the court for a change of venue
in said cause for any and all purposes of said cause. The stipulation also contained another
provision governing any further accounting in said cause. Upon this stipulation the court
entered an order transferring the cause to Washoe County, where the case was finally argued
and submitted. Upon the 3d day of January, 1907, the court rendered its decision, in which it
rejected the conclusions reached by the jury upon the special issues, and found in favor of
plaintiffs' contentions, and entered a decree accordingly. Defendants' counsel filed exceptions
to the findings of the court, and in due time moved for a new trial upon the grounds of errors
of law occurring during the trial, insufficiency of the evidence to justify the decision of the
court, and that the decision, findings, and judgment of the court are not supported by the
evidence, but are contrary thereto. The motion for a new trial was heard by the successor in
office of the judge who tried the case, and the motion denied. The case comes to this court in
a transcript of nearly 1,400 pages, and the questions presented are ably and elaborately
discussed by counsel in 350 pages of brief.
1. The first question, in logical order, is whether the court had power to set aside the
verdict of the jury upon the questions of fact submitted to it, and substitute contrary findings
of its own.
In a purely equity case, it is well settled in this state that a party cannot demand a jury as a
matter of right. The calling of a jury in such a case is a matter of discretion with the judge.
"In such a case, when there are contested questions of fact, the chancellor may, and
oftentimes should, call a jury to assist him in arriving at a just conclusion; but the verdict
is merely advisory, and only to satisfy his conscience.
30 Nev. 43, 63 (1908) Costello v. Scott
the judge. In such a case, when there are contested questions of fact, the chancellor may, and
oftentimes should, call a jury to assist him in arriving at a just conclusion; but the verdict is
merely advisory, and only to satisfy his conscience. If he is not satisfied with it, he can and
should disregard it. If it is satisfactory, he can and should adopt it, and file his findings and
decree accordingly. (Duffy v. Moran, 12 Nev. 97; Lake v. Tolles, 8 Nev. 290; Van Vleet v.
Olin, 4 Nev. 95, 97 Am. Dec. 513.)
It is contended, however, in this case that the answer of defendant Scott raised a legal issue
upon the question of the existence of the partnership, and that the finding of the jury upon this
issue was controlling upon the court. Conceding that the answer did raise certain legal issues,
it may be admitted that, if a jury had been called to try these issues, the court would not have
power to disregard the verdict of the jury upon such issues, and make findings contrary
thereto. But this is not the situation presented in this case. The jury was not called to
determine the legal issues. The case was treated by all parties as an equitable proceeding
throughout, and the right of the court to pass upon the legal, as well as the equitable, issues
does not appear to have been questioned until after the jury brought in its verdict, and, so far
as the record shows, not until after the trial judge had rendered his decision. The minutes of
the court, included in the transcript, show that, after the argument upon and the disposal of
the motion to discharge the receiver, the court set the case down for trial upon a day certain,
by the court with the aid of a jury.
Counsel for both sides were present when this order was made, and they are deemed to
have consented to it. (Haley v. Bank, 21 Nev. 127.) The stipulation, which respective counsel
entered into immediately following the verdict of the jury upon the special issues, shows, we
think, that the trial was regarded as being by the court, with the jury simply in an advisory
capacity. In the opinion rendered by the trial judge the following statement is made: A trial
was had before the court, a jury being called to assist the court in determining the questions of
fact involved. It is manifest from this that the court understood the case to have been
conducted as a purely equitable proceedinga matter that there could hardly have been
any opportunity for him to have been mistaken upon.
30 Nev. 43, 64 (1908) Costello v. Scott
been conducted as a purely equitable proceedinga matter that there could hardly have been
any opportunity for him to have been mistaken upon.
Counsel cites Van Vleet v. Olin, 4 Nev. 97, 97 Am. Dec. 513, and quotes, in support of his
contention, the following: The court below treated the case all through as an ordinary action
at law. When an action is so tried and treated by court and counsel, the law must be correctly
submitted to the jury. The case cited was an equity case, which the court and counsel treated,
so far as the trial was concerned, as an action at law. Applying the reasoning in that case to
the present case, and it can with equal force be said that where an action presents both legal
and equitable issues, but is treated by court and counsel as a purely equitable case, and a jury
is impaneled simply in an advisory capacity, the court has the same right to disregard the
findings of the jury upon the legal issues as it has to disregard those bearing upon the
equitable issues.
Counsel cites many cases in his brief supporting the contention that, where legal issues are
involved in an action, the party raising the legal issue has the right to have such issue tried by
jury. In his reply brief counsel directs our attention to two decisions of the Supreme Court of
California, cited in his opening brief, which he argues are entitled to the greatest respect,
presumably because of the similarity of our code and practice with that of California. The
cases are Newman v. Duane, 89 Cal. 597, 27 Pac. 66, and Donahue v. Muster, 88 Cal. 121,
25 Pac. 1096, 22 Am. St. Rep. 283, and in both these cases a jury was demanded to try the
legal issues, which demand was denied by the court, and exception taken. In this case a jury
was never demanded to try the legal issues, and, therefore, the cases cited are not in point.
Whatever right defendants may have had in this case to a trial by jury of any issues raised by
answer, such right was waived by failure to demand a jury trial thereof, and by consenting
that the case be tried by the court with the aid of a jury, as in a purely equitable case. The
court had the right to disregard the conclusions of the jury upon the facts. Upon appeal the
main questions presented are whether the findings of the court are supported by the evidence.
(Harris v. Lloyd, 11 Mont.
30 Nev. 43, 65 (1908) Costello v. Scott
v. Lloyd, 11 Mont. 390; 28 Pac. 736, 28 Am. St. Rep. 475; Stockman v. Irrigation Co., 64
Cal. 67, 28 Pac. 116; Hayne on New Trial and Appeal, 234.)
2. The principal questions upon the merits involve a determination of the contractual
relations, if any, existing between the plaintiffs and defendant Scott at the time of the
discovery of the Wonder mines. This relationship must be determined, in the main, by
correspondence had between the parties during the month of December, 1905, and following.
On December 8, 1905, defendant Scott wrote to plaintiff Costello as follows: No doubt you
will be somewhat surprised when you open this letter to see it is from me. * * * Well, Tom, if
you feel like staking me here, I think I can get some very valuable ground here. * * * If you
desire to stake me, you will have half interest in all the claims I locate. If you can spare the
money, I think it will be a great investment for both of us. * * * If you desire to stake me, do
not say anything to any one about it, and we will come out all O. K. in the spring. The camp
will be a hummer before many months. If I could have only seen you when you was here, I
know everything would have been all O. K. * * *
To this letter the plaintiffs, on December 14th, replied as follows: Your letter received,
and will say in answer that we have practically exhausted our own means, but we are in
correspondence with several parties from whom we expect some help. If they come through,
we will at once come to your assistance. We could have done business in the summer and fall
easily, but at that time you were tied up with other parties, and I am glad to see you have
gotten some very nice properties for them, and we have no doubt but what you will be able to
find other good properties in the future. Now, when you answer this, let us know what you
need. Then, if things come right with us, we will be able to advise you at once.
On December 24th defendant replied as follows: Everything is looking fine here. They
have made a new strike at the Goldyke that is very good, they say. I have been prospecting the
hills since you was here, and have made some very important finds. I have my eyes on some
claims that I think will be very good property.
30 Nev. 43, 66 (1908) Costello v. Scott
I think will be very good property. Some fellows have the ground located, but I know they
will not do any work, and I will get the property. * * * I have panned some of the rock, and it
pans very good. I have four claims here. They are side claims of the Idahoes, the claims that
we made the strike on. They are very good property, and I am willing to hand you over half if
you can handle them; but in the meantime I would like to do some work on them, so I can
show them up to the best advantage. I think we can make some money here if we form a
partnership. I will get the properties if you can dispose of them, and some very good ones at
that. In regard to what I will need to keep me going, about all I will need at present will be
grub. I have plenty of tools to do all the work that I will do. You know about what it will cost.
I think this will be a chance for both of us to make some money. I think this new find of mine
will be another Goldyke. It has the earmarks of being a fine property. Well, Thomas, let me
hear from you at once, so I will know what to do. I will close. Yours, as ever.
To this letter plaintiffs replied, December 30th, as follows: Your very welcome letter
received several days ago, and we assure you we appreciate your position, but you can rest
assured we are doing all in our power to help you, but will tell you right now money is a darn
scarce article here in Tonopah. But we have written to several different parties, and we have
every reason to believe that at least two of them will come through. * * * Money will be
rather close with us for perhaps the next sixty days, or until such time as we get returns from
our correspondents. Now, here is what we would like to have you do. Of course, you
understand, we are willing to go in partnership with you, and you also understand, old man,
we will have to depend on the outside for money to carry on operations until such time as we
get a company floated. So we would like for you to send us a diagram of the best thing you
have; tell us about the veinstheir width and values and formation; also whether it is a
sinking or tunneling proposition. Now, it is our candid opinion that although it will take a
little while to get things started right, of this you may feel sure, if you go into this partnership
with us, we will all make money.
30 Nev. 43, 67 (1908) Costello v. Scott
partnership with us, we will all make money. So you go ahead, and get ahold of the best
propositions you can, and get them in such a way that Bemis and Turpin will not be able to
complicate matters with us. We will float them, as people are beginning to get a little excited
over the Goldyke country. You keep us posted from time to time, and we will do our share by
keeping you supplied with money to the best of our ability. Please find inclosed $40. Do the
best you can with this amount, as you know we will do better as conditions admit, etc. Your
friends.
On January 5, 1906, defendant replied as follows: Your welcome letter was received this
morning. * * * I have four claims joining the Idahoes, and I have been doing the assessment
work. * * * I will send you the papers in my next letter, and you can put them on record. I
only have my name on the location papers, but you can put your name on when you record
them. As soon as the snow goes away, so I can see the ground, I will begin to russel the hills.
* * * I am satisfied we will make some money here this year. As soon as the snow goes, I will
locate all the leges on these claims, and write you all the particulars. I received your check
and it will come in handy at present. Well Tom, I will do my best out here, and I think we
will not be very long doing some business.
On January 21st the plaintiffs wrote defendant as follows: What is the matter, old man;
we have not heard from you for quite a while. We have several people on string, and would
like to know what you have that we can offer them; so we think it is advisable for you to let
us know at your earliest convenience, as we are extremely anxious to keep in touch with these
clients. Send diagrams, extent of veins, formation, and how far from Goldyke, and direction,
and a general opinion as to their value, and whether they are sinking or tunneling
propositions, water, etc. Mining conditions are looking up quite favorably, and it is quite
certain we will do a considerable business during the coming summer. By the way, we wrote
you on the 30th of December, inclosing a check for $40. Please let us know if you have
received same, as we have not heard from you since that time. * * *
On February 2d defendant replied as follows: I cannot see why you did not get my last
letter.
30 Nev. 43, 68 (1908) Costello v. Scott
see why you did not get my last letter. * * * I will send some location papers, * * * and you
can put them on record. * * * I think we will be able to sell them this summer. * * * I located
them because they were so close in to the Idahoes, and I am sure we will get some money for
them. I will have plenty of good ground before very long. I have been digging for water here,
and I will have plenty of water in a few days.
On the same date, February 2d, plaintiff wrote defendant as follows: We only received
your letter of January 5th yesterday. * * * Please address in future Costello & Newhall, Box
866, Tonopah. * * * We are glad to hear the good reports from that section, and agree with
you that there are good chances for us to make some money out there during the coming
season.
On February 7th plaintiff Newhall wrote defendant as follows: Your favor of February
2d, with location notices received last night, and I filed the notices for record this morning.
Mr. Costello is at Crow Springs, and will not be in until the night of the 13th. We expect to
collect some money between this and the 15th, and will send you some just as soon as we can
receive it.
On February 26th plaintiffs again wrote to defendants as follows: We have been trying
for the past three weeks to get rid of some stock in order to raise some money. * * * By the
way, when you answer, please let us know what kind of showing there is on the four claims
we have had recorded, and what you think they are worth, as it is possible we might get some
one interested. We understand from the papers that there are quite a number of good strikes
being made around Goldyke, and hope the reports are true. You will find inclosed money
order for $25. We promised to help you out by the 15th, but it was impossible to do so.
Answering the foregoing letter on March 14th, defendant after acknowledging its receipt,
and writing at some length describing properties located and the general outlook of the camp,
continued as follows: Burns north of us has some very fine rock an he is going to lease his
ground and I am going to take a leice and I think we will shurely make some money out of the
leice he has rock that you can see all kinds of gold in if Burns ground prooves good this
camp will be all O. K. I will take the leise when he lets them because if any of the leices
prooves good we will be able to sell our leice for some money.
30 Nev. 43, 69 (1908) Costello v. Scott
of gold in if Burns ground prooves good this camp will be all O. K. I will take the leise when
he lets them because if any of the leices prooves good we will be able to sell our leice for
some money. We had an offul snow storm last night. I will write you agin in a few days and
let you know all about the claims I will have and the leice. * * * On March 21st defendant
again wrote relative to some claims which he had relocated, and which were in dispute, and
requesting the opinion of plaintiff Costello as to the legality of the location. Closing, he says:
This camp will surely come to the front and we will be in the swim. This letter was
answered March 27th, giving defendant the advice asked for, and inclosing a money order for
$25. The letter concludes: Try and keep us well informed how matters are progressing.
On April 5th defendant wrote plaintiffs as follows: Your letter received and will say in
reply that I was very glad to heare from you. I am glad also to know that I have the claims. I
would like to see you come out here. I think these claims would be a good stock propersition
one of the best in this district, something that will stand a show to make a mine. We have that
Gold Dyke ledge shure. Know is the time to do something for this camp is coming to the
front shure this summer. I think it would a good idie to stok this property if you are in a
position to do so. We are still having snow here but I think that we will have some nice
weather soon. Evry thing is looking good out this way. I have your check Well Tom I would
like to see you out this way as soon as you can do so. * * *
A few days after writing the letter last above mentioned, the defendant Scott went to
Tonopah to see plaintiffs personally. The evidence is conflicting as to the conversation had
between them. The court accepted as true the version given by plaintiffs, and as the trial court
is the exclusive judge of the credibility of the witnesses, its action in this respect is binding on
this court. The plaintiffs testified to the effect that, at this conversation in Tonopah, the Burns
lease was discussed, and that it was agreed between them that the lease should be taken, but
that it was not contemplated that the parties should work the same to any considerable extent.
30 Nev. 43, 70 (1908) Costello v. Scott
It was to be taken principally for the purpose of getting it in shape, and transferring it to
others at a profit. At this conversation, also, the project of prospecting the south end of the
Fairview Range was discussed. At that time Costello drew a diagram of that section of the
country, and stated to the defendant that he had seen some very rich float that was reported to
have come from that country, and that he would like to have the same prospected, and that it
was agreed between them that the first matter to be taken care of was the obtaining and
putting in shape of the lease, and that thereafter some prospecting should be done in the south
end of the Fairview Range. Upon this trip plaintiffs gave defendant $25 on account of his
expenses.
Scott returned to Goldyke, and on April 18th wrote to plaintiff Costello as follows: I
arrived home. I am not going to take the Leise. Burns would not do as he agreed to and I think
we had better not have anything to do with him. I know he has a great mine but he will not do
the wright thing by a Leice and I will not take one. He promised me before I went to Tonopah
that he would give me 9 months and transfurable but he has changed his mind and onley
wants to give me 6 months and not transfurable and I do not want the Leice on those terms
because that would not give us a chance. I am going out prospecting and will be away about
three weeks out about 15 or 20 miles from here. I saw some rock from this place yesterday
and it was great rock. I will do some work on some of our claims here when I come back if I
do not find anything on this trip. The camp is looking good. We will make some money this
year I am sure. They are making some good striks on the Gold Dyke extension.
Defendant next writes, on April 30th, from a place called Snow Point, to Costello as
follows: I am out prospecting between Atwood & Fairview. This is a verry good country to
prospect in. I am about eighteen miles from Fairview. I have been here two days. Two fellows
here has some very fine rock and I have some claims joining them and I think I will stay here
for some time. I will be in Atwood in about two weeks. This is a fine looking camp and I
think it will be a good one. * * * On May 4th the defendant wrote to plaintiff Costello from
Fairview.
30 Nev. 43, 71 (1908) Costello v. Scott
plaintiff Costello from Fairview. This letter was lost, but its substance was testified to by
Costello as follows: That he [Scott] had arrived in Fairview; that the country looked very
good; he had done a little prospecting while going in; that he had secured a leasea
two-thirds leaseon a piece of property close in to the big strike; that he would need fifty
dollars to carry on the lease; that he would get the two-thirds of the lease, giving me
one-third, or one-half in the lease. On May 10th plaintiffs replied to this letter as follows:
Your very welcome letter reached us yesterday. We will have to beg you to wait until
between now and Tuesday, during which time we will be able to raise the money you asked
for. We are caught short owing to the trouble in California. * * * You can rest assured we will
have money up there, leaving here not later than next Tuesday. Please write us a good
description of that camp and the lease you have taken hold of. This letter will be handed you
by Mr. J. W. Langley or his business partner, Mr. Trimble. It will do no harm to let them see
what we have, and there is a possibility that at a later date they may be of assistance to us.
The foregoing is all the correspondence which is admitted by both parties to have been
written and received before the Wonder discovery. Plaintiffs testified that on May 19th they
wrote to defendant, inclosing $50 in currency, asked for, a copy of which letter was admitted
in evidence. Defendant Scott denied he had ever received the letter or the $50. The court
found that the letter and money had been received by Scott, and that Scott was subsisting
thereon at the time of the Wonder discovery. On May 23d Scott, together with defendants
Mays and Savage, left Fairview on a prospecting expedition, and two days later discovered
and located the Wonder mines, twenty miles north of Fairview. After the discovery of the
Wonder mines there was no further correspondence upon the part of Scott with the plaintiffs.
Plaintiffs wrote three letters to Scott after the Wonder discovery was known, which were
admitted in evidence over defendant's objection, and will hereafter be considered. It is the
contention of the defendant Scott that the correspondence had between himself and plaintiffs
during the month of December, 1905, shows but a grub-stake agreement, applicable only to
the Fairplay District; that plaintiffs failed to keep their part of the contract to supply
defendant with necessaries, and that the agreement was terminated about the time Scott
left Goldyke, in April; that if the agreement was not so terminated, then it was terminated
by the new contract entered into at Fairview in respect to the lease.
30 Nev. 43, 72 (1908) Costello v. Scott
cable only to the Fairplay District; that plaintiffs failed to keep their part of the contract to
supply defendant with necessaries, and that the agreement was terminated about the time
Scott left Goldyke, in April; that if the agreement was not so terminated, then it was
terminated by the new contract entered into at Fairview in respect to the lease.
Grub-stake' contracts have sometimes been called prospecting partnerships, and are said
to partake of the character of qualified partnerships.' Yet, unless the agreement goes beyond
the mere furnishing of supplies in consideration of a participation in the discoveries, the word
partnership' is improperly used and is misleading. It is simply a common venture, wherein
one, called the outfitter,' supplies the grub,' and the other, called the prospector,' performs
the labor, and all discoveries inure to the benefit of the parties in the proportion fixed by the
agreement. The prospector has the right to insist on the outfitter performing his part of the
agreement as a condition precedent to participation in such discoveries. Should he fail to do
so, the prospector may discover and locate for his own advantage, free from any obligation to
the outfitter. * * * Is it essential to a right in property under a grub-stake contract that such
property be acquired by means of the grub-stake furnished, and pursuant to such contract?
* * * The grub-stake' contract, properly speaking, applies to the search for and location of
mines on the public domain. * * * We frequently encounter cases where the object of the
venture is not only to search for and discover mines, but also to work and develop them, and
conduct a general mining business. This is something more than a grub-stake' contract. Such
an agreement constitutes a partnership. (Lindley on Mines, 2d ed. vol. 2, sec. 858, p. 1565, et
seq.)
We think a fair interpretation of the letters which passed between plaintiffs and defendant
Scott warrants the construction placed upon them by the trial court, that they show that the
parties in question engaged in a partnership in proesenti for mining purposes. If the letter of
December 8th contained the only proposition upon the part of the defendant, and the
proposition therein contained had been accepted without modification, it would have
constituted simply a grubstake agreement.
30 Nev. 43, 73 (1908) Costello v. Scott
stake agreement. The answer to this first letter informs defendant that plaintiffs have
practically exhausted their means, but that they are in correspondence with several parties,
and if they come through, they will at once come to his assistance. The letter concludes:
Now, when you answer this, let us know what you need. Then, if things come right with us,
we will be able to advise you at once. To this letter defendant makes a proposition of what
he proposes to do. He informs plaintiffs that he has already been prospecting the hills, and has
made some very important finds. He also knows of some valuable locations that are shortly
to expire, and he will get them. He has four claims already located, which he is willing to
turn over a half interest in if plaintiffs can handle them, but in the meantime he proposes to
do some work upon them, to show them up to a better advantage.
The gist of the proposition made by defendant is embodied in the two sentences contained
in this letter: I think we can make some money here if we form a partnership. I will get the
properties if you can dispose of them, and some very good ones at that. He states in this
letter that about all he will need will be grub, as he has plenty of tools. He requests a reply to
this letter, so he will know what to do. In the letter of December 30th plaintiffs accept the
proposition, which both parties style a partnership, and which constitutes a partnership in
law. Plaintiffs, however, explain in their letter that they have to depend on the outside for
money to carry on operations until such time as we get a company floated. They say to
defendant in this letter: You go ahead, and get hold of the best propositions you can. * * *
We will float them. You can keep us posted from time to time, and we will do our share by
keeping you supplied with money to the best of our ability. The contract is clear from these
two letters. Defendant, who is a practical miner and prospector, is to get hold of good
properties, some of which he already has and others he has in view. These properties the
plaintiffs, who are stockbrokers, and in the business of selling and promoting mining
properties, are to dispose of. The parties are to have an equal interest in all mining property
acquired by defendant and the proceeds of any sales effected by plaintiffs, or an equal
interest in any stock companies organized to handle such properties.
30 Nev. 43, 74 (1908) Costello v. Scott
by plaintiffs, or an equal interest in any stock companies organized to handle such properties.
The subsequent correspondence shows that defendant was satisfied with the proposition that
plaintiffs, to the best of their ability, were to keep him supplied with money. No definite
time was fixed for this partnership to last, but the court properly held that it was the intention
of the parties that it was to continue at least into the summer of 1906, for that was the time
frequently referred to, when they would surely make money out of their venture.
It is very earnestly contended by counsel for appellant that the contract entered into
between Scott and the plaintiffs had reference only to the Fairplay District, in which Goldyke
and Atwood are situated. Although the earlier correspondence between the parties refers only
to this district, there is no specific declaration that their operations are to be confined to that
district. It is common knowledge that where parties enter into grub-stake agreements, or
general partnerships for mining purposes, they care very little about the place where the
mines are found. The main thing which the parties to this partnership wanted was mining
properties of sufficient promise and value to enable them to be handled so that money could
be made out of them. That the parties did not intend to confine their operations exclusively to
the Fairplay District is shown by their conversation in Tonopah, when plaintiff Costello
pointed out the advisability of prospecting the south end of the Fairview Range; by the letter
of defendant of April 18th, when he notified plaintiffs that he was going on a prospecting trip
fifteen or twenty miles from Atwood, and would be gone about three weeks; by the fact that
defendant testified that the grub purchased for this prospecting trip should have been paid for
by plaintiffs; by defendant's letter, written April 30th from Snow Point, in which he says: I
am out prospecting between Atwood and Fairview. * * * I will be in Atwood in about three
weeks; by defendant's letter from Fairview of May 4th, relative to the lease at that place, and
plaintiffs' reply thereto of May 10th.
3. It is contended by counsel that defendant's letter of May 4th, informing plaintiffs that he
could receive a twothirds interest in a lease at Fairview, and plaintiffs' letters of May 10th
and 19th, respectively, in reply thereto, created an entirely new contract between the
parties, and terminated whatever contractual relations previously existed between them.
30 Nev. 43, 75 (1908) Costello v. Scott
thirds interest in a lease at Fairview, and plaintiffs' letters of May 10th and 19th, respectively,
in reply thereto, created an entirely new contract between the parties, and terminated whatever
contractual relations previously existed between them. Plaintiffs' letter of May 10th is very
brief, and there is nothing in it that would indicate a thought upon the part of plaintiffs that
their previous relations were to be terminated by the taking of the lease. The letter is written
as though plaintiffs understood that the lease had already been taken. They say: Please write
us a good description of the camp and the lease you have taken hold of. This is the only
direct reference to the lease in the entire letter. It is not likely that parties would sever old
relations and form new ones without a more extended discussion of the matter. The letter of
May 10th contains but fourteen lines, and treats the lease proposition as though it was an
ordinary business matter between them. In the letter of May 19th plaintiffs say: We finally
made the riffle, an you will find the fifty dollars asked for inclosed herewith. * * * Please
give us a full description of the lease you have taken hold of and your opinion of the camp in
general. And by the way, you had better give us a description of the claims between Goldyke
and Fairview.
Defendant Scott denies that this letter of May 19th was ever sent or received. His counsel
in his brief on appeal says: Assuming that the letter of May 19th was written and sent, what
is the result? Plaintiffs are bound by the last meeting of the minds of the parties. A specific,
defined, and unambiguous agreement was entered into between the three, not intended or
contemplated by the original contract, and it is the only one existing after May 19th, and must
control this case. Offer and acceptance made by letter create a mutual obligation, and form a
valid contract. If this letter was neither written nor received, then the contract in regard to
the lease could never have been effected, for the necessary money was not forthcoming. If the
letter was written, whether received or not, it shows that plaintiffs had no idea of terminating
the relations previously existing between plaintiffs and Scott, for in that letter they ask for a
description of the claims located by defendant between Goldyke and Fairview.
30 Nev. 43, 76 (1908) Costello v. Scott
Fairview. There is certainly no act shown, upon the part of plaintiffs, prior to the Wonder
discovery, indicating any desire upon their part to dissolve the partnership. The evidence
shows that they had been doing their best to carry out their part of the agreement, even though
they had not met with any marked success in the disposal of mining property. They had
contributed money to Scott to the best of their ability, and apparently to Scott's satisfaction,
for he is not shown to have complained to plaintiffs that they were not doing enough, or were
not complying with their part of the agreement.
The evidence in this case shows that, up to the time of the Wonder discovery, the parties
had reposed mutual confidence in each other. Scott knew that money was not easy with the
plaintiffs. They frankly explained to him their financial situation in the very beginning of the
transactions, an Scott was satisfied. Scott knew, as did every one, that the San Francisco
disaster made money tight in this state for some time thereafter, and this situation is referred
to in plaintiffs' letter of May 10th. In all the correspondence between the parties from
December, 1905, to May, 1906, inclusive, there is not a line or word indicating a severance of
the contractual relations which they had entered into. After Scott made the Wonder discovery,
he ceased all communications with plaintiffs. When one party to a partnership for mining
purposes makes a discovery which would be of great value to the partnership, courts will not
look with favor upon any contention upon the part of such discoverer that the partnership
relations had previously been severed, unless such severance is clearly established. In this
case the contention of defendant Scott, based upon the correspondence alone, and
independent of the other corroborative testimony in the case, fails to have any convincing
force.
4. The contention of appellant that the evidence does not support the finding of the court
that plaintiffs' letter of May 19th, together with the $50 alleged to be inclosed therein, was
received, in the view we take of this case, is immaterial. The trial court in its decision
analyzes the evidence upon this question of fact, and we could not, under wellestablished
rules, disturb such finding unless it was clearly against the evidence.
30 Nev. 43, 77 (1908) Costello v. Scott
established rules, disturb such finding unless it was clearly against the evidence. But,
conceding for the purpose of the argument that it was unsupported by the evidence, it would
not be prejudicial to defendant, for plaintiffs' right to recover in this case is based upon the
contract entered into by the parties in December, 1905, and this letter of May 19th, whether
received or not, could not alter the terms of that contract, or affect the rights of the parties
arising thereunder.
5. The court admitted in evidence, over defendant's objection, three letters written by the
plaintiffs to Scott, of dates June 23, July 15, and July 16, 1906. It is claimed the evidence
shows these letters were never received; that they contained self-serving declarations
supporting plaintiffs' contention of the existence of the partnership. The court found as a fact
that these letters were received. Conceding, without deciding, that the court erred in their
admission, the error, if any, was harmless, for the letters only tended to support plaintiffs'
contention of partnership. The question of partnership was a matter of legal construction to be
placed upon prior correspondence. We have already construed this correspondence to
establish a partnership. The letters in question could add nothing to the proof of the existing
contract.
6. Plaintiffs allege in their complaint: That subsequent to the 25th day of April, 1906, as
plaintiffs are informed and believe, and so aver the fact to be, the said defendant, together
with the said L. A. Savage and William Mays, became the owners of the possessory title of
the Wonder town site in the said mining district, County of Churchill, and State of Nevada,
by virtue of a discovery of mineral and the location thereof as quartz claims, the number and
a more particular description of which plaintiffs are unable to give; that as plaintiffs are
informed and believe, and so aver the fact to be, for the purpose of cheating and defrauding
plaintiffs of their share and interest of, in, and to defendant's one-third interest in the said
town-site location and claims, the defendant transferred and released, without a valuable or
any consideration, his said undivided one-third interest therein to said codefendant, N. R.
Fitzpatrick, who then and there took the same, with full knowledge of defendant's said
fraud, and of the plaintiffs' rights and equities in and to the same, and subject thereto."
30 Nev. 43, 78 (1908) Costello v. Scott
there took the same, with full knowledge of defendant's said fraud, and of the plaintiffs' rights
and equities in and to the same, and subject thereto.
Plaintiffs pray for a judgment and decree vacating, annulling, and setting aside the release
or conveyance made by defendant to said codefendant N. R. Fitzpatrick as to the plaintiffs'
undivided one-half of the premises affected thereby.
Defendant Scott's separate answer contains the following allegation and denial:
Defendant admits that the said firm of Mays, Savage & Scott became the owners of
possessory title of the Wonder town site. He avers that the mining claims on which said town
site exists were located by the firm; that no mineral has been discovered thereon up to present
date. The surface of said located claims was segregated from the mineral, and it was agreed
by said firm that the surface should be occupied for town-site purposes. An agreement was
entered into by which certain parties should promote the sale of town lots on said town site,
but the said agreement reserved all of said claims except the surface to the locators. The
defendant Murry Scott transferred to said Fitzpatrick his interest in said surface in
consideration that said Fitzpatrick would, among other things, promote the building of a town
site, and thereby enhance the value of defendant's mining property, and in further
consideration of indebtedness existing on the part of defendant to said Fitzpatrick, for as
much as the said Fitzpatrick had given defendant shoes, food, and other necessaries, by which
he was enabled to sustain life, during a portion of the said time that the said Costello had
agreed to furnish him with food and necessaries, and which he had neglected to do.
Defendant denies that the said transfer was fraudulent or without any consideration, and avers
that at the time the same was made the property had nothing but a prospective and speculative
value, and it was not known that any town would ever exist thereon.
The separate answer of Fitzpatrick, Mays, and Savage contains the following allegations
and denial: Defendants deny that said Murry Scott transferred to defendant Fitzpatrick his
interest in the said surface claims comprising the townsite group without consideration.
30 Nev. 43, 79 (1908) Costello v. Scott
site group without consideration. Deny that said transfer was made for the purpose of
cheating and defrauding the plaintiff. Aver that the said transfer was made for a valuable
consideration. That prior to the formation of said partnership of Mays, Savage, and Scott, the
said Scott was without the necessaries of life, and the said Fitzpatrick furnished and delivered
the same to Scott, and he was under financial obligation to him for so doing, and the
properties of defendants was without any real present value, but its value was speculative, and
was no more than sufficient to compensate the said Fitzpatrick for money advanced by him.
Defendants further aver that a large portion of said town-site group for the proceeds of the
sale of which an accounting is asked for was separately located by defendant N. R.
Fitzpatrick, and he was and is the owner thereof by virtue of acquiring the same in his own
name under the mining laws of the United States.
The court found that the transfer by defendant Scott to his codefendant Fitzpatrick of all
the rights of Scott to the surface of claims of which he was a locator was fraudulent, and such
transfer, in so far as it affected a sixth interest in the town site, was set aside, and plaintiffs
decreed to be the owners thereof, and judgment given against Fitzpatrick for one-half of the
proceeds derived by him from a sale of lots in said town site of Wonder.
Appellants contend the evidence is insufficient to support the finding that the transfer was
fraudulent. Discussing the question of the evidence requisite to establish fraud, this court, in
the case of Gruber v. Baker, 20 Nev. 476, 9 L. R. A. 302, said: A party alleging fraud must
clearly an distinctly prove the fraud as alleged. If the fraud is not proved as alleged, relief
cannot be had, although the party against whom relief is sought may not have been perfectly
clear in his dealings, for fraud will not be carried by way of relief one tittle beyond the
manner in which it is proven. The rules of evidence are the same in equity as at law, and
when certain facts as proved amount to a fraud is a question for the court. But the court is not
justified in finding such facts upon any less or different kind of proof than would be required
to satisfy a jury, for the law in no case will presume fraud.
30 Nev. 43, 80 (1908) Costello v. Scott
fraud. The presumption is always in favor of innocence, and not of guilt. In no doubtful
matters should the court lean to the conclusion that a fraud has been committed, nor should it
be assumed on doubtful evidence. The facts sufficient to establish a fraud should be clear and
convincing. Circumstances of mere suspicion will not warrant the court in coming to the
conclusion that a fraud has been committed. We do not wish to be understood as holding that,
in order to establish fraud, it requires direct or positive proof; for in matters that regard the
conduct of men the certainty of mathematical demonstration cannot be expected or required,
and much of human knowledge on all subjects may be inferred from facts that are established.
Care should be taken, however, not to draw conclusions hastily from premises that will not
warrant it; but if the facts established afford a sufficient and reasonable ground for drawing
the inferences of fraud, the conclusion to which the proof tends must, in the absence of
contradiction, be adopted. The motives with which an act is done may be, and often are,
ascertained and determined by circumstances connected with the transaction. Various facts
and circumstances evince sometimes, with unerring certainty, the hidden purposes of the
mind; therefore, fraud may be shown by circumstances. But when the evidence, whether it be
direct or circumstantial, is so strong as to produce conviction in the mind of the judge of the
truth of the charge, it will be sufficient. This we take to be the extent of the rule that fraud
must be proved. But this does not authorize the finding of fraud on less than a preponderance
of the evidence, taken as a whole, for it is difficult to see how any disputed question of fact
can be found except by the greater weight of evidence. The difference in the weight may be
slight, but, unless it preponderates on the side of the plaintiff, the matter in dispute cannot be
said to be proved; and this rule is adhered to more strictly in actions of this character than in
any other class of civil cases, for it is said that, while the law abhors fraud, it is also unwilling
to impute it on slight and trivial evidence, and thereby cast an unjust reproach upon the
character of parties. What amount or weight of evidence is sufficient proof of a fraud is not a
matter of legal definition. The proof, however, must be satisfactory.
30 Nev. 43, 81 (1908) Costello v. Scott
ever, must be satisfactory. It should be so strong and cogent as to satisfy the mind and
conscience of a common man, an so to convince him that he would venture to act upon that
conviction in matters of the highest concern and importance to his own interest. It need not
possess such a degree of force as to be irresistible, but there must be evidence of tangible
facts, from which a legitimate inference of fraud may be drawn. As an allegation of fraud is
against the presumption of honesty, it requires stronger proof than if no such presumption
existed.
The trial court based its finding that Fitzpatrick had notice of the partnership relations
existing between plaintiffs and the defendant Scott upon the following, as shown by the
opinion of the court: It further appears from the evidence in this case that Fitzpatrick lived
with Scott in Goldyke District, Nye County, Nevada, at the time that Costello & Newhall
were furnishing Scott with money, and at the time they were engaged with him in the mining
business at Goldyke. It further appears from the evidence that Fitzpatrick was living with
Scott at Goldyke from the 16th or 17th of March, 1906, up to the time that the defendant
Scott left Goldyke for the Fairview country. It also appears from his evidence that he learned
of the relations existing between defendant Scott and Costello at the time he first went to
Goldyke, about the 16th or 17th of March; that during the time he was at Goldyke, claims
were located in the name of Scott, Fitzpatrick, and Costello.
The fact that Fitzpatrick was living with Scott at Goldyke, and the fact that a number of
mining claims were located in the names of Costello, Scott, and Fitzpatrick, of which he had
knowledge, would not of themselves be sufficient to establish notice to him of the existence
of partnership relations. It is a common occurrence for prospectors in locating claims to
include the names of other parties, with whom they may have no contractual relations. The
mere fact that Fitzpatrick was living with Scott certainly would not afford him any notice of
his relations with Costello. There is no intimation in the evidence that Fitzpatrick ever saw
any of the correspondence between plaintiffs and Scott, or that he was informed of their
contents or effect prior to the Wonder deal.
30 Nev. 43, 82 (1908) Costello v. Scott
deal. Scott, in one of his early letters to Costello, requested the latter to say nothing about
their agreement. It could hardly be presumed, in the absence of evidence, that Scott told
Fitzpatrick of their relations simply because they were living together.
But the court says: It appears from his (Fitzpatrick's) evidence that he learned of the
relations existing between Scott and Costello at the time he first went to Goldyke. The
record shows that Fitzpatrick was asked the question: When did you first learn that Costello
was interested with Scott? The answer was, When I first went to Goldyke. This question
and answer appear to be all there is in the record upon which the court attributed to
Fitzpatrick knowledge of the relations existing between plaintiffs and Scott; at least it is all
that counsel has directed our attention to in their brief. The witness may have had one idea in
mind and counsel another when the question was asked. Costello was interested with Scott
in the locations at Goldyke. This Fitzpatrick knew, and this he may have had in mind when he
answered the question, as the question and answer are entirely consistent with this view.
Fitzpatrick may have known that Costello was interested with Scott in the locations, but
may never have suspected the existence of partnership relations.
No attempt was made by further questions to ascertain to what extent the witness had
knowledge of the relations existing between plaintiffs and Scott. He denied in his answer the
existence of such partnership. The burden of proof was on plaintiffs to establish notice, or
such a state of facts as would put a person upon inquiry. Both Scott and Fitzpatrick testified
that the consideration for the transfer of the town-site interests was partially money owed by
Scott to Fitzpatrick, supplies, etc., furnished, and partially an agreement upon the part of
Fitzpatrick to do the location work for Scott on the Wonder claims. The court reviews the
evidence upon the question of the alleged indebtedness existing between Scott and
Fitzpatrick, and the matter of supplies alleged to have been furnished, and concludes that no
such indebtedness existed, nor were any such supplies furnished. There is evidence to support
this finding, and it is conclusive upon this court. Both Scott and Fitzpatrick testified that part
of the consideration was that Fitzpatrick was to do the location work upon the claims.
30 Nev. 43, 83 (1908) Costello v. Scott
part of the consideration was that Fitzpatrick was to do the location work upon the claims.
Scott says further that he (Fitzpatrick) was to promote the town site, and that he considered
such promotion would enhance the value of the mining properties.
The testimony shows that after Scott transferred his interest in the town site to Fitzpatrick,
that Mays, Savage, and Fitzpatrick entered into an agreement with Kleeman & Co. for the
latter to promote the town site upon a percentage, the latter company, in further consideration
therefor, to do all the location work, to hold the claims, survey and plat the same. This the
company did. Counsel for respondents contend that this shows that Fitzpatrick did none of
this work. But if he agreed to do the work as part consideration for the transfer, and
subsequently he made such arrangements that the work was done by some one else, neither
Scott nor plaintiffs would be in position to complain, if the transaction was otherwise regular.
Scott and the plaintiffs were relieved of paying their proportion of the expense of this work,
which was estimated to be over $700. The agreement between Scott and Fitzpatrick was
made in the latter part of May, and the contract with Kleeman & Co. entered into on June 1st
following. At this time the value of the town site was more or less problematical.
We are unable to see wherein the evidence in the case discloses any bad motive upon the
part of either Scott or Fitzpatrick in the transfer of the former's interest in the surface rights of
the claims in question for town-site purposes. If Scott was defrauding plaintiffs, he was
working the same injury upon himself. There is nothing in the evidence indicating that Scott
was to derive any advantage from the town site, secret or otherwise, other than being relieved
from the expense of doing his part of the location work upon the claims, surveying, etc. It
may be that Scott at the time did not appreciate the value of the town site, and transferred it
for less than it subsequently proved to be worth. However, it is not reasonable that he would
seek to injure plaintiffs, when to do so he would inflict equal injury upon himself. If there
was anything to indicate he retained any secret interest in the town site, and only plaintiffs
were the sufferers, the situation would be quite different; but there is no such showing.
30 Nev. 43, 84 (1908) Costello v. Scott
tiffs were the sufferers, the situation would be quite different; but there is no such showing.
As a member of the partnership of Costello, Newhall & Scott, he could make arrangements to
do the location work upon the claims he had located, and if he acted in good faith, his
copartners could not be heard to complain.
Scott had but little means at this time, and he knew money was hard for plaintiffs to get
hold of, and if he arranged to secure work to be done, necessary to acquire title to the mining
claims, upon a basis that was as fair to plaintiffs as it was to himself, plaintiffs are hardly in
position to complain, unless it violated the conditions of the partnership. In the agreement
between Scott and Fitzpatrick nothing but the interest in the surface was transferred; all
mining rights were reserved. The partnership for general mining purposes entered into
between plaintiffs and defendant Scott did not contemplate the promotion and sale of town
sites, and this may be taken as some evidence that Scott did not contemplate defrauding his
partners when he made the transfer. While the transfer by Scott to Fitzpatrick of his interest in
the surface rights of the Wonder claims for town-site purposes is not clear in all particulars,
yet, taking into consideration all of the facts and circumstances as disclosed by the record, we
think the showing is insufficient to establish actual fraud in the transaction. The fact that the
transfer was verbal does not, of itself, give plaintiffs a right to have it set aside; it being in
reference to a matter concerning which Scott had power to bind the partnership.
7. It appears from the evidence that on August 2, 1906, the receiver came into possession
of the sum of $1,816, moneys in bank belonging to the partnership of Costello, Newhall &
Scott, and involved in the suit. The final decree of the court, among other things, adjudges
and decrees to plaintiffs judgment against Scott for the sum of $2,180.60, which latter sum is
in fact inclusive of the said sum of $1,816 in bank. The effect of this was to give plaintiffs a
double judgment for one-half of $1,816. It is manifest that this double judgment was an
oversight upon the part of the trial judge. Upon the hearing of the motion for a new trial
plaintiffs' counsel admitted the error in the judgment, and offered to remit the same.
30 Nev. 43, 85 (1908) Costello v. Scott
plaintiffs' counsel admitted the error in the judgment, and offered to remit the same. The court
denied the motion for a new trial on condition that counsel for plaintiffs file a remission of
this excess judgment, and they accordingly filed the same. Appellant contends that the court
had no power to make such order; that its only course in the premises was to grant a new trial.
We think the trial court adopted the appropriate procedure in the premises. It is not reasonable
that parties should be put to the delay and expense of a new trial in order to correct an error in
the amount of the judgment which both parties to the controversy admit is an error. Even if
the trial court had denied the motion for a new trial without exacting this condition, this court
would, upon its attention being called to the error, modify the judgment accordingly, and
affirm the order denying the motion for a new trial. (Comp. Laws, 3434.)
8. The record shows that just prior to the beginning of the trial of this cause the Hidden
Treasure Mining Company, a corporation, petitioned to intervene, setting up in its petition
that it was the owner of certain mining claims in the Wonder Mining District, named the
Hidden Treasure, Hidden Treasure No. 1, Hidden Treasure No. 2, and Skiddo
Fraction; said claims having been located by defendants Scott, Mays, and Savage on or
about May 26, 1906; that on or about the ___ day of July, 1906, said defendants by deed
conveyed said claims to said corporation, which ever since had been the owner thereof; that
the plaintiffs claimed an interest in said claims by reason of the alleged partnership with
defendant Scott. Because of the lateness of the application, the necessity of a continuance,
and the fact that the decree in this case could not be binding on the corporation unless it was a
party, the permission to intervene was denied. Although there has been some argument in the
briefs thereon, the order of the court denying the prayer for intervention is not before us.
Upon the trial the court, over defendant's objection, admitted in evidence the deed in question
to the Hidden Treasure Mining Corporation. This deed is dated the 28th day of July, 1906,
acknowledged on the 5th day of October, and recorded on the 22d day of October following,
and covers the mining claims mentioned in the petition.
30 Nev. 43, 86 (1908) Costello v. Scott
and covers the mining claims mentioned in the petition. The decree gave to plaintiffs an
undivided one-half of an undivided one-third of the claims in question.
The decree also contains the following general provision: It is further ordered and said
plaintiffs are hereby adjudged and decreed to be entitled to take and receive and have
delivered to them an undivided one-half part, share and interest of, in, and to any and all other
or further moneys or other consideration received or to be received by said defendant Scott, or
contracted to be paid to him, or accruing to or in any wise arising out of any interest, property,
right, title, estate, claim, or demand of said defendant Scott in any and all mining claims,
premises, and property acquired by him between December 30, 1905, and August 2, 1906,
and plaintiffs are entitled to and are hereby given judgment against the said defendant Scott
for the same.
It is claimed that this, in effect, is a double judgment in favor of plaintiffs, as it decrees to
them not only one-half of Scott's third interest in the claims deeded to the Hidden Treasure
Mining Corporation, but also gives them one-half of all the stock issued by said corporation
to Scott in consideration of the transfer of the claims. Plaintiffs, of course, are not entitled to
an interest both in the stock and in the claims, and we think the trial court never intended to
award them both such interests. No specific reference is made in the decree to stock in this
corporation or any other. We do not understand from the decree that the court attempted to
adjudicate the rights of the Hidden Treasure Mining Corporation, as contended by counsel for
appellant, and it is manifest it could not do so. Besides, the court in its decision upon the
motion to intervene distinctly stated that if the corporation was not allowed to intervene, no
decree it would make would be binding upon the petitioner. Respondents in this case, with
full knowledge of the transfer to the Hidden Treasure Corporation, have proceeded upon the
theory that that transfer is void in so far as it affects their right to a half of the interest which
Scott had to the locations. They have, in effect, elected to claim an interest in the ground
itself, and not in the proceeds which Scott obtained therefor, and we think the decree should
be so construed.
30 Nev. 43, 87 (1908) Costello v. Scott
strued. The decree being so construed, it cannot operate to give respondents a double
judgment. Whether or not the deed by Scott of his interests in the claims transferred to the
Hidden Treasure Corporation conveyed the title, so as to cut out the equities of plaintiffs, is
not involved in, was not attempted to be determined in, and could not be determined in, this
action in the absence of the corporation as a party. In this view of the case, the admission of
the deed in evidence, even if erroneous, could not be prejudicial to defendants.
The record contains numerous other assignments of error, but the view we have taken
upon the main questions makes it unnecessary, we think, to determine them.
As against all the appellants, excepting N. R. Fitzpatrick, the decree and judgment is
affirmed, subject to the modification in accordance with the remission filed by respondents in
the lower court, and also subject to the construction of the decree placed thereon by this court,
and as to them the order denying the motion for a new trial is affirmed.
In so far as the judgment and decree is against the appellant N. R. Fitzpatrick, it is
reversed, and a new trial is granted upon the issues between respondents and said appellant
Fitzpatrick, excepting as to the issue involving partnership relations between respondent an
defendant Scott.
It is further ordered that the cause be remanded for further proceedings, in accordance with
the judgment and decree of the trial court and of this court. Appellant N. R. Fitzpatrick is
entitled to his costs upon appeal.
On Petition for Rehearing.
By the Court, Norcross, J.:
Counsel for appellants have filed a petition for rehearing in this cause upon several
grounds. The opinion heretofore rendered covers satisfactorily, we think, all points raised in
the petition, with one exception. Counsel in his petition says: The judgment in the case at
bar is not a final settlement of the partnership affairs. Paragraph 16 gives plaintiffs judgment
against defendant Scott for $2,182.60, upon which execution may issue. This is also a
separate judgment for costs of $936. Also a separate judgment for one-half of the mining
property.
30 Nev. 43, 88 (1908) Costello v. Scott
mining property. There is no balance struck. The judgment is for separate items of the
partnership account. In paragraph 18 the plaintiffs are given judgment for one-half of all the
moneys in the custody of the receiver, gross, an plaintiffs are entitled to have the same
delivered to them eo instante. No account has been rendered by the receiver, who has
possession of all the property. We submit that this judgment is indefinite and uncertain; so
much so that this court cannot permit its execution or attempted execution by the lower court.
It is to be executed piecemeal. In part by the delivery of specific real property; in part by
execution upon separate items for money judgments; in part by the delivery of a divided
one-half of money in the receiver's hands as against the claims of the receiver himself and the
creditors of the estate, and those having prior charges against the property itself, to be paid
out of those funds, where there is no balance struck as between the contending litigants.
Confusion must arise upon attempting to satisfy, by execution, the separate items, when the
officer may levy upon the very property directed by the other part of the judgment to be
delivered to plaintiffs. The record does not show that the receiver possesses sufficient to pay
his own claims and expenses, and, if his account were first settled, the court might direct to
be paid to him, out of the funds of the estate, such an amount that there could be no
independent judgment for separate money items. The court might find it necessary to sell all
the real property to pay creditors, or other claimants, and the sale of all the real property, and
division of the proceeds is the usual and ordinary method of settlement in partnership affairs.
Even if there was room for argument as to whether the judgment rendered in this cause
was a final judgment, appellants by treating it as such, and appealing therefrom, are estopped
to deny the finality of the decree. (State v. Commissioners, 22 Nev. 78, Clark v. Dunnam, 46
Cal. 204; Bigelow on Estoppel, p. 601.)
The judgment in this case determined all the material issues raised by the pleadings. It
determined the existence of the partnership, and ordered dissolution thereof. It gave to
plaintiffs an undivided half interest in certain described mining claims determined to have
belonged to the partnership.
30 Nev. 43, 89 (1908) Costello v. Scott
mining claims determined to have belonged to the partnership. It gave judgment against
defendant Scott for one-half of $4,500, less certain specified deductions, the said sum of
$4,500 having been received by Scott upon account of the partnership affairs prior to the
institution of the suit and the appointment of the receiver. It further allowed plaintiffs their
costs, taxed at $936.15.
The decree also contains the following provisions: It is further ordered, and said plaintiffs
are hereby adjudged and decreed to be entitled to take, receive, and have delivered to them an
undivided one-half of any and all moneys or other consideration now in the keeping, custody,
or control of R. L. Douglass, receiver herein, and which moneys or consideration has accrued
or is accruing to the interest heretofore held, owned, or claimed by the defendant Scott in the
mining claims and premises herein mentioned, and plaintiffs are hereby adjudged to be
entitled to a delivery of the same, and are hereby given judgment therefor. It is further
ordered, adjudged, and decreed that the said R. L. Douglass, receiver herein, be, and he is
hereby, directed to forthwith make a full account of all his acts and proceedings herein, and
render the same to the court, and to forthwith transfer, pay, and deliver to the plaintiffs herein,
or their attorneys of record, an undivided one-half of any and all moneys or other
consideration, received and now held by him as such receiver, and accruing to the interest
heretofore standing in the name of and claimed by the said codefendant Fitzpatrick in said
town-site premises, and also to forthwith transfer, pay, and deliver to plaintiffs, or their
attorneys of record, an undivided one-half of any and all moneys or other consideration
received and now held by him as such receiver, and accruing to the interest, part, and share in
said contracts for the sale of certain of the aforesaid mining claims and heretofore standing in
the name of and claimed by the said defendant Scott.
The decree concludes as follows: The court hereby reserves the right to make a
supplemental decree herein on proper showing made for that purpose, as to any other or
further property, if any, belonging to said copartnership, and not adjudicated upon or included
herein. The objections made to that portion of the decree giving the respondents
judgment for one-half of all moneys in the hands of the trustee go largely to the question
of the finality of the decree.
30 Nev. 43, 90 (1908) Costello v. Scott
made to that portion of the decree giving the respondents judgment for one-half of all moneys
in the hands of the trustee go largely to the question of the finality of the decree. These
objections would not be well taken, even if they could now be raised.
In Bates on Partnership, 970, the author says: A decree finding the existence of a
partnership and ordering a dissolution, or finding the fact and time of dissolution, and settling
the proportions of interest of partners, and referring the cause to ascertain the specific
amounts and to take the account, is a final decree for the purposes of appeal. (Clark v.
Dunnam, 46 Cal. 205; Sharon v. Sharon, 79 Cal. 703; Arnold v. Sinclair, 11 Mont. 556, 29
Pac. 340, 28 Am. St. Rep. 489; Black on Judgments, 41. See, also, note to Williams v. Field,
60 Am. Dec. 429.)
The record in this case contains a report of the receiver filed January 28, 1907, in
pursuance of the decree, which decree was filed January 4, 1907. This report shows that the
receiver had in his hands upon the date he filed his report moneys belonging to the
partnership in the sum of $27,316.59. The receiver asked to be allowed a commission in the
sum of $1,200, and for a reasonable allowance for his attorney's fees in the sum of $250. The
report of the receiver does not show that there are any claims of third parties against the
partnership; nor is it claimed that the record so shows. Counsel in this petition for rehearing
asserts that, since the appeal, certain claims have been made by third parties of indebtedness
due them from the partnership. Even if we could consider such claims as having been
adjudicated, nevertheless it appears that the receiver has ample funds in his hands to pay them
all, and have a large balance besides.
While the matter is not strictly before us, we deem it appropriate to say that claims of third
parties, if any, should be adjudicated and settled before the final discharge of the receiver.
Plaintiffs, of course, are liable for the partnership debts equally with the defendant Scott.
Counsel for petitioner says that counsel for plaintiffs claim that under the decree awarding
plaintiffs one-half of all moneys in the hands of the receiver they are entitled to such half
immediately, irrespective of any indebtedness of the partnership.
30 Nev. 43, 91 (1908) Costello v. Scott
ately, irrespective of any indebtedness of the partnership. At the time the decree was entered
there was no showing of any partnership indebtedness, and the court doubtless proceeded
upon the theory that there was none. Objection to the decree is made because it has the effect
of imposing the receiver's fees upon the defendant Scott. There is no specific reference in the
decree covering the fees and expenses of the receiver, nor is there in the decision of the court.
The decision of the court was that plaintiffs are entitled to their costs herein expended. No
other reference is made to costs or expenses of the proceeding. Findings and decree were
ordered to be entered in accordance with the opinion. If it was the intention of the court to
impose all the receiver's costs upon the defendant Scott, we think it should have been so
definitely expressed, and not left to inference from the decree which in this case, as is usual,
was prepared by counsel for the prevailing party. The allowance of the fees of the receiver as
costs in the proceeding is a matter in the legal discretion of the trial court. In this case it is not
clear what disposition the court intended to make of these fees and expenses. It is quite
possible in a case of such magnitude the question of taxing the receiver's fees and expenses
was either overlooked entirely, or that it was the intention of the court that that matter be
disposed of upon the settlement of the receiver's final account.
A literal construction of the decree would undoubtedly impose all the fees and expenses of
the receiver upon the defendant Scott. Where such is not manifestly the intention of the trial
court, we are not disposed so to regard it. The order appointing the receiver recites the
reasons therefor as follows: Upon reading the said verified complaint, and it appearing to the
court therefrom that it is a proper case for the appointment of a receiver, and it further
appearing to the court that it is for the best interest of the said copartnership that a receiver,
with all the usual powers, be appointed to take charge of all and singular the said
copartnership business, properties, and effects, as set forth and described in the said
complaint, and hold and preserve the same pending the further order of the court. It appears
from this order that the court deemed the appointment of the receiver for the "best interest of
the said copartnership."
30 Nev. 43, 92 (1908) Costello v. Scott
best interest of the said copartnership. Plaintiffs and defendant Scott were equally
interested in the partnership affairs, and if the receiver was deemed to be for the best interest
of the partnership, then both parties were equally benefited by the receivership. If the
appointment of the receiver is for the equal benefit of both parties to the action, as in a suit
for the settlement of partnership affairs, the receiver's compensation should be borne by both
parties equally. (High on Receivers, 796.)
In Johnson v. Garrett, 23 Minn. 565, the court said: The court charged in the account
against plaintiff the whole compensation allowed to the receiver. There are no facts stated in
the finding to sustain this. The receiver was appointed for the benefit of both parties, and, we
must presume, upon a showing that justified it; and the court, we must presume, allowed him
only what his services were worth. These services were of equal benefit to both parties. His
appointment relieved each of them from transacting the business he was paid to do. Where
the appointment of a receiver benefits equally all the parties, they should, as a general rule,
share the expense equally. One-half of the sum so charged to plaintiff, to wit, $250, must be
deducted from the judgment.
As the record appears in this court, there is ample money in the hands of the receiver to
pay such fees and expenses as the court may award the receiver, to pay all just claims, if any,
against the partnership, and out of the half remaining and belonging to defendant Scott, to pay
plaintiffs their judgment for costs taxed at $936.15 and the amount of $1,272.60, determined
to be due plaintiffs from defendant Scott on account of their one-half interest in the money
received by Scott on account of the partnership prior to the institution of suit. If there is
money in the hands of the receiver after paying the fees and expenses of the receiver and the
debts of the partnership to make these payments to plaintiffs, they should be so made, instead
of being enforced by execution prior to the settlement of the receiver's accounts.
It is ordered that the decree in this cause be further modified by providing that the fees and
expenses of the receiver be paid one-half by the plaintiffs, and one-half by the defendant
Scott, and that after all the expenses of the receivership, and all partnership
indebtedness, if any, has been paid and discharged, the funds remaining in the hands of
the receiver shall be paid one-half to the plaintiffs, and one-half to the defendant Scott,
subject, however, to the right of plaintiffs to receive from defendant Scott's portion, if the
same is sufficient, the amount of plaintiffs' judgment against defendant Scott for the
sums of $1,272.60 and $936.15 costs.
30 Nev. 43, 93 (1908) Costello v. Scott
ant Scott, and that after all the expenses of the receivership, and all partnership indebtedness,
if any, has been paid and discharged, the funds remaining in the hands of the receiver shall be
paid one-half to the plaintiffs, and one-half to the defendant Scott, subject, however, to the
right of plaintiffs to receive from defendant Scott's portion, if the same is sufficient, the
amount of plaintiffs' judgment against defendant Scott for the sums of $1,272.60 and $936.15
costs.
With these additional modifications, the judgment and order of this court as heretofore
made on the 2d day of January, 1908, will stand as the judgment and order of this court.
A rehearing is denied.
____________
30 Nev. 93, 93 (1908) Abel v. Hitt
[No. 1694.]
In the Matter of the Estate of MARY ABEL Deceased, J. D. ABEL, Contestant and
Respondent, v. W. T. HITT, Proponent and Appellant.
1. WillsTestamentary CapacityEvidence. Evidence held to show that a testatrix was mentally incompetent
to execute a will.
2. SameValidityUndue InfluenceEvidence. Evidence held to show that a testatrix in making her will
acted under undue influence.
3. AppealReviewJudgment on Conflicting Evidence. A judgment rendered on conflicting evidence will not
be disturbed on appeal, where there is substantial evidence to support it.
4. TrialConduct of JurySeparation. The fact that some of the jury in a civil case, during the trial, but before
they were instructed and placed in custody of an officer to consider the verdict, became separated and
were not in the custody of the officer, is not ground for reversal, where it does not appear that any juror
was improperly influenced, nor that any effort was made to prejudice the rights of the complaining party,
nor that any of his rights were prejudiced by the separation.
Appeal from the District Court of the Fourth Judicial District of the State of Nevada, Elko
County; George S. Brown, Judge.
Proceeding by W. T. Hitt to probate the will of Mary Abel. From a judgment in favor of J.
D. Abel, contestant, denying the probate, proponent appeals. Affirmed.
The facts sufficiently appear in the opinion.
Mack & Farrington, E. J. L. Taber, and C. B. Henderson, for Appellant:
I. Whatever the influences were in this case, they did not affect or change Mrs.
30 Nev. 93, 94 (1908) Abel v. Hitt
affect or change Mrs. Abel's purpose. If the influence was not strong enough to overcome her
purpose and destroy her free agency, there is no undue influence within the meaning of the
law. (In re Hess's Will, 31 Am. St. Rep. 670, 674, 675; Rood on Wills, 175, 189; In re
Kaufman, 59 Am. St. Rep. 179.)
II. The fact that Mrs. Abel was using morphine to allay pain, and that it caused stupor or
sleepiness, is no proof that she was affected by it at the time of the making of the will. (In re
Glocker's Will, 2 N. Y. 97; First v. Wheeler, 12 Atl. 613; 28 Ency. Law, 84.)
III. The court erred in stating in the twenty-fourth instruction that the burden of showing
that Mary Abel was of sound and disposing mind at the time of the execution of the will
rested upon the proponent of the will. The instruction places the burden of proof on the
proponent through the trial. The proponent should make out a prima facie case, then the
burden shifts to the contestant. The sanity of the testator is always to be presumed. (Hughes,
Instructions to Juries, 696, and cases cited; Leach v. Burr, 188 U. S. 510; Estes v.
Montgomery, 36 Am. St. Rep. 228, 234; Higgins v. Carlton, 92 Am. Dec. 689; McCullock v.
Campbell, 5 S. W. 592; 11 Greenl. Ev. 689; In re Silverthorn, 32 N. W. 289; Blough v.
Parry, 43 N. E. 563; McCoon v. Allen, 17 Atl. 820; Allen v. Griffin, 35 N. W. 21; Jones v.
Jones, 33 N. E. 479; Wilbur v. Wilbur, 21 N. E. 1076; Craig v. Southard, 43 N. E. 393; In re
Motz's Estate, 69 Pac. 294; Farleigh v. Kelley, 72 Pac. 758; Gessel v. Baugher, 60 Atl. 481;
Glass v. Glass, 103 Ind. 1013; Credelle v. Credelle, 51 S. E. 629; In re Hawley's Will, 89 N.
Y. 805; Woodman v. Ill. T. & S. B., 71 N. E. 1102.) The burden of proof of undue influence is
on the contestant. (Rood on Wills, 189; Gardner on Wills, 179; In re Nelson's Will, 89 N. Y.
868.)
IV. The evidence shows beyond any doubt that the jury were not kept together as the court
ordered, and that they were allowed to separate frequently. A presumption of injury arises
from the fact of an improper separation of the jury during the trial, and it is a ground for a
new trial, unless the presumption is rebutted. (70 Ency. Law. 1219; Ehrhard v. McMee, 25
Pac. 193; Robinson v. Donahoo, 25 S. E. 491.)
30 Nev. 93, 95 (1908) Abel v. Hitt
Ehrhard v. McMee, 25 Pac. 193; Robinson v. Donahoo, 25 S. E. 491.)
V. A verdict in favor of a party whose conduct was calculated to improperly influence the
jury upon a material question should be set aside and a new trial granted, even though no
objection was taken. (Preston v. Mutual Life Ins. Co., 71 Fed. 467; Bullard v. B. & M. R. R.,
10 Am. St. Rep. 367; Stoudenmire v. Harper, 1 South. 857; Zube v. Weber, 34 N. W. 268.)
VI. The court erred in giving the twenty-sixth instruction because it is a one-sided
definition of undue influence. No amount of persuasion is sufficient to constitute undue
influence, provided the act of testatrix is the act of a free agent; it is not sufficient to
constitute undue influence that a person do or forbear an act which he would not have done or
forborne had it not been for the inducing. The free agency must be destroyed, and the act of
testatrix virtually must be the act of another person or persons, before undue influence can be
said to exist. Because of the two reasons just given, the instruction, proponent submits, is
misleading and incomplete, and does not state fairly the elements which constitute undue
influence.
Cheney, Massey & Price, for Respondent:
I. Counsel asked the trial court, and now asks this court, to reverse the order denying the
motion for a new trial upon the grounds of misconduct of Massey, one of the counsel for
contestant. The question of misconduct in this instance is presented by the affidavit of
counsel for the appellant setting up certain statements made by Massey during the argument
to the jury, and objection to the argument of counsel for appellant and an exception thereto on
appellant's behalf. Upon the presentation of this question to the trial court we contended, and
now contend, that this question cannot be presented either to the trial court or this court upon
affidavit; that the procedure prevailing in this jurisdiction and all other jurisdictions under
code practice requires that questions of this kind shall be made by bill of exceptions and
carried into the statement; that this alleged error is not an irregularity in the proceedings of
the court, jury, or adverse party, or any order of the court, or abuse of discretion by which
either party was prevented from having a fair trial, and is not covered by the first, second,
third and fourth subdivisions of Comp.
30 Nev. 93, 96 (1908) Abel v. Hitt
larity in the proceedings of the court, jury, or adverse party, or any order of the court, or abuse
of discretion by which either party was prevented from having a fair trial, and is not covered
by the first, second, third and fourth subdivisions of Comp. Laws, 3290; that it can be raised
by affidavit under section 3291 of the Compiled Laws of this state. Our contention that the
only method of presenting this question to the trial or this court is under the last clause of
Comp. Laws, 3291upon statement on motion for a new trial or upon an exception entered
in the minutes of the court and settled by the court at the trial, and the use of the minutes of
the court on the hearing of the motion for a new trial as provided by section 3292 of the
Compiled Laws; that it could not be presented by any other method.
II. The appellant alleges as one of the grounds for reversal the misconduct of the jury. The
alleged error is based upon the affidavits of three of the counsel for the appellant. The
affidavits show that during the progress of the trial, but not after the jury was instructed and
placed in the custody of an officer to consider the verdict, some of the jury separated and
were without the custody of the officer. No pretense or claim is made by the appellant that the
jury was allowed to separate after the instructions and while they were considering their
verdict. It is not shown by the affidavit affirmatively or inferentially that the separation of the
jury at the times stated prejudiced the rights of the appellant. No act or thing is charged
against the jury, or any member of the jury, or any other party, during such separation, from
which it could be inferentially drawn that the jury had been tampered with, or that an effort
had been made to prejudice the rights of appellant.
III. Appellant complains that the court erred in instructing the jury that the burden of
showing that Mary Abel was of sound and disposing mind and memory at the time she signed
the will rested upon the appellant, and have sought to impress the court by a citation of a
large number of authorities that the court erred in giving this instruction. This matter was
thoroughly discussed upon the trial of this case, and we desire to call the attention of the court
to the statute of the State of Nevada, and to this record, and the large number of authorities
that have held contrary to the contention of appellant.
30 Nev. 93, 97 (1908) Abel v. Hitt
number of authorities that have held contrary to the contention of appellant. The first section
of the act concerning wills, approved December 19, 1862, and which has remained
unchanged from that date to the present time, provides that any person over eighteen years of
age, of sound mind, may by last will dispose of all his real estate and personal estate subject
to the payment of his debts. (Comp. Laws, 3071.)
VI. By the express language used in this section the court must be satisfied upon the proof
taken when the court hears the case, and the court must be satisfied by the verdict of the jury
before the decree can be entered. This question leaves the ultimate question of the admission
of the will to probate to the court. The verdict of the jury is not binding on the court. If, upon
the consideration of the verdict the court is not satisfied, without motion for a new trial or
otherwise, the court can disregard the verdict of the jury. In other words, under the rule of the
statute the verdict of the jury upon an issue of fact in the contest of a will is of the same force
and effect and of no greater force and effect than the verdict of a jury in chancery. The rule
prevailing in equity cases will be found in Comp. Laws, 3278. The right to a jury under the
provisions of our civil practice act in chancery cases is discussed by the supreme court of this
state in the following cases: Lake v. Tolles, 8 Nev. 285; Van Vleet v. Olin, 4 Nev. 95; Duffy v.
Moran, 12 Nev. 97. We especially call the attention to the language of this court in Duffy v.
Moran, wherein it is stated that in chancery proceedings, when there are contested questions
of fact, the chancellor may, and ofttimes should, call a jury, but the verdict is merely advisory
and only to satisfy his conscience. If it is satisfactory, he can and should adopt it and file his
findings and decree accordingly; that until the verdict has been sanctioned by the court it is no
proof of any fact except that it was actually rendered in the case. The verdict, independent of
the adoption of it by the court, can establish nothing in the case. The general rule is tersely
stated that in most of the states the verdict of the jury has the force and effect of a verdict in
an ordinary action, and in some of the states the verdict is merely advisory to the court, and
may be accepted or rejected in whole or in part. (16 Ency.
30 Nev. 93, 98 (1908) Abel v. Hitt
Pl. & Pr. 1042, 1043.) Under the rule of law making the verdict of juries merely advisory in
equity cases, it has been held that claims of error in instructions and alleged misconduct were
errors without prejudice, the reason being that the jury in a case of this character is only an
advisory adjunct to the court, its verdict not binding the trial court or appellate court. (Peck v.
Stanfield, 12 Wash. 101; Collins v. Fidelity Trust Co., 73 Pac. 1121.) In those jurisdictions
where the verdict of a jury is merely advisory in a will contest, as it is in this state, the same
rule prevails. (Hudson v. Hugan, 42 Pac. 701; Bryant v. Pierce, 70 N. W. 297; In re
Jackman's Will, 26 Wis. 104; Chafin Will Case, 32 Wis. 569; Wright v. Jackson, 59 Wis.
584; Loughney v. Loughney, 87 Wis. 101; Pay v. Vanderford, 154 Mass. 498; Newell v.
Homer, 120 Mass. 277; Cummins v. Cummins, 1 Del. 423.)
By the Court, Sweeney, J.:
This is an appeal from a judgment and order denying a motion for a new trial rendered in
the District Court of the Fourth Judicial District of the State of Nevada, in and for the County
of Elko, in a will contest wherein W. T. Hitt, proponent and executor of the estate of Mary
Abel, deceased, was successfully sued by J. D. Abel, contestant and respondent in this action.
It appears from the record that Mary Abel died on or about the 13th day of March, 1904, at
Elko, Nevada, leaving an estate in said county consisting of real and personal property. At the
time of her death she was 67 years of age, and had been married to her husband, now 83 years
of age, since 1873. There were no children born to them. The appellant, W. T. Hitt, four days
after the death of the deceased, filed in the said District Court of Elko County what purported
to be the last will and testament of Mary Abel, and duly petitioned the court to probate the
same. Within due time the husband, respondent in this action, filed a contest against the
probate of said will, in which it was alleged that the purported will was not the last will and
testament of the deceased, because as alleged at the date said will was signed the deceased
was mentally incompetent to make a will; that the execution of said will was procured by
undue influence of E. C. McClellan and his wife, witnesses thereto, and of Margaret
Sheldon, a sister of the deceased.
30 Nev. 93, 99 (1908) Abel v. Hitt
ence of E. C. McClellan and his wife, witnesses thereto, and of Margaret Sheldon, a sister of
the deceased. Upon the issues made by the petition for probate and the objections filed by the
contestant, the cause came on regularly for trial on the 12th day of January, 1905, before the
court, with the aid of a jury. Numerous witnesses were called and sworn, the cause was
argued, the jury instructed, and under instructions given by the court returned a general
verdict in favor of the contestant.
Nine special issues were submitted to the jury, with instructions to return answers to the
same. They were as follows:
(1) Did Mary Abel sign the instrument which has been offered in evidence as her last will
and testament? A. Yes.
(2) Did Mary Abel sign said instrument in the presence of E. C. McClellan an Eleanor A.
McClellan? A. Yes.
(3) Did Mary Abel, at the time she signed said instrument, if she did sign it, say it was her
will? A. Yes.
(4) Did E. C. McClellan and Eleanor A. McClellan sign said instrument in the presence of
Mary Abel, as witnesses thereto? A. Yes.
(5) Was Mary Abel of sound mind and disposing memory at the time the proposed will
was signed? A. No.
(6) Was Mary Abel acting under undue influence at the time the proposed will was made?
A. Yes.
(7) Did Mary Abel, at the time of signing the alleged will, if she did sign it, have sufficient
mental (G. S. B.) capacity to recollect the property she intended to dispose of? A. No.
(8) Did Mary Abel, at the time of signing the alleged will, if she did sign it, have sufficient
mental capacity to recollect the people who were the natural objects of her bounty? A. No.
(9) Was any of the property mentioned in the proposed will the separate property of Mary
Abel at the time of her death? A. Yes.
Upon the rendition of the verdict by the jury, judgment was entered by the court decreeing
that the instrument was not the last will and testament of Mary Abel, deceased, and refusing
to admit the same to probate.
Appellant urges that a new trial should be granted, assigning many alleged errors, a
number of which we deem harmless, even though conceded to be errors, but which
apparently counsel have abandoned, and for these reasons we will not refer to them in
this opinion, confining our attention solely to the main alleged errors urged.
30 Nev. 93, 100 (1908) Abel v. Hitt
assigning many alleged errors, a number of which we deem harmless, even though conceded
to be errors, but which apparently counsel have abandoned, and for these reasons we will not
refer to them in this opinion, confining our attention solely to the main alleged errors urged.
Appellant contends that the testimony was insufficient to support the verdict as to undue
influence, and contends that there is no testimony tending to support the special finding that
Mary Abel was acting under undue influence when she executed the will.
A careful review of the testimony in this case leads us to conclude that the court and jury
had ample evidence, though conflicting in certain respects, upon which to base their verdict.
It appears from the testimony that the deceased was under the constant care and attention of
physicians, and confined to her home for more than six months prior to the execution of the
will; that her condition was so precarious as to require the care of a number of nurses; that the
deceased was an elderly woman 67 years of age, weighing over two hundred pounds, and
during the latter months of her sickness was almost constantly under the influence of opiates
for the purpose of allaying the intense pain to which she was subjected; that the disease with
which she was afflicted had caused her limbs to become so swollen that it became necessary
to split them open with a surgeon's knife. Her husband, the contestant, who was assisting in
her care during her last sickness, and was almost constantly in attendance upon her, and who
had lived with her for nearly forty years, testified that her mind was apparently blank at times,
and that she was unable to recognize him, and during the latter months of her life her mental
condition was failing and very bad all the time; that the expression on her face was very
simple, at times idiotic, and that her mind seemed a blank.
Another witness who rented a small house from the deceased adjoining her house and who
during January, the month the alleged will was executed, saw the deceased two or three times
a day, testified that deceased was insane on the 15th of January, and that on the date the will
was executed she was no better mentally or physically; that at the time the will was executed
and for some time prior thereto she was always in a stupor, and used language which
indicated that she was mentally unbalanced.
30 Nev. 93, 101 (1908) Abel v. Hitt
a stupor, and used language which indicated that she was mentally unbalanced. This evidence
is supported by the testimony of Mrs. Keith, Mrs. Haywood, and Mrs. Watkins, and
contradicted to a limited extent by a few reputable witnesses for the appellant. Other
witnesses in behalf of the proponent testified in effect that while she was ailing physically and
mentally, yet she had a clear mind and disposing memory; but from all the testimony on both
sides it appears plain that the mental condition of deceased was very weak at the time she
executed the will, and that the jury and judge who passed judgment in this case were
thoroughly warranted in finding that at the time of the execution of the alleged will Mary
Abel was not of sound mind and of disposing memory.
It appears from the testimony that the purported will was prepared by E. C. McClellan, a
notary public, some three or four days before the date of the execution of the same; that Mr.
McClellan and his wife were the only persons present at the time of the execution of the will,
and that Mrs. McClellan had urged the deceased to make a will; that the McClellans were
intimate friends of Mrs. Sheldon, who is charged in part with the procurement of this will in
her favor; that the McClellans lived about ninety feet from the home of Mrs. Abel, and were
social and intimate friends and called daily on the deceased; that on the day when the will was
executed Mrs. McClellan waited with Mrs. Sheldon until the nurse and Mr. Abel had left the
house, and there was no one present at the home save Mrs. Sheldon, who, during the time the
will was being executed, was out on the porch and had Mr. McClellan bring over the
typewritten will which he had prepared for execution; that there was no one present at the
time of the execution of the will save Mr. McClellan and his wife, who signed as witnesses to
said will; that there was not a word changed in the typewritten will by Mrs. Abel, and the
signature to said will discloses a signature which, if not connected with the will itself, would
be impossible to recognize as the signature of Mary Abel; that the deceased was either so
weak mentally or physically that she did not know how to spell her own name correctly.
Many exhibits were introduced showing the signature of Mary Abel to checks and letters
which were submitted to the jury for comparison with that of the signature attached to the
purported will.
30 Nev. 93, 102 (1908) Abel v. Hitt
jury for comparison with that of the signature attached to the purported will. These checks
and signatures were written at different periods just prior to the execution of the will. It
appears from the evidence that it was her custom to sign in a plain, firm hand, and all her
signatures prior to a couple of months before the execution of the will were in a firm, plain
hand; that her signatures to different exhibits written after January 7, 1904, evidence physical,
if not mental, decay, and that the jury assumed from the signature to the will, which did not
even spell her name properly, omitting one of the letters in the last name, that physically and
mentally she was in such a condition that she did not know what she was doing and did not
possess the requisite ingredients of mind necessary to dispose of her property. The evidence
submitted to the court and jury upon the mental weakness of the deceased was sufficient for
them to have found, notwithstanding the conflicting testimony, that the deceased was
incompetent and of unsound mind at the time of the execution of the will.
On the day the will was executed, Mr. McClellan testified that he was home all day, and
that his wife had informed him that the respondent and the nurse had left the Abel house; that
he knew that Mrs. Abel had been sick for six months before she signed the will, and that he
had prepared the will upon the information of, and solicitation by, his wife, Mrs. McClellan,
who the evidence discloses was the intimate friend of Mrs. Sheldon, the beneficiary under the
will; that he had this typewritten will prepared for several days before it was signed; that he
was intimately acquainted with Mrs. Sheldon, who often visited his home, and nearly always
talked about the proposed will; that Mrs. Sheldon was at the Abel house when he went there,
and on the front porch of said house when he left after the alleged execution of the will; that
he never told Mr. Abel, the contestant, anything about the will; that Mrs. Abel never gave him
any instructions about the contents of the will, and that after it was executed he delivered it to
Mrs. Sheldon; that at the time of the execution of the alleged will Mrs. Abel said nothing
about any of her other relatives.
This condition of affairs existing, and the circumstances under which the will was
prepared, and the execution of the same, were facts which also warranted the court and
jury in finding that Mary Abel at the time the alleged will was executed was acting under
undue influence, and that she did not have sufficient mental capacity to recollect the
property she intended to dispose of, nor to recollect the people who were the natural
objects of her bounty, and was otherwise mentally incompetent to execute a will.
30 Nev. 93, 103 (1908) Abel v. Hitt
under which the will was prepared, and the execution of the same, were facts which also
warranted the court and jury in finding that Mary Abel at the time the alleged will was
executed was acting under undue influence, and that she did not have sufficient mental
capacity to recollect the property she intended to dispose of, nor to recollect the people who
were the natural objects of her bounty, and was otherwise mentally incompetent to execute a
will. There are many respectable authorities holding that in will contest cases, when the
question as to the correctness of the verdict in view of the evidence is raised in the appellate
court, the verdict will not be set aside unless there is clearly a legal insufficiency in the
evidence to sustain the verdict. (Smith v. Henline, 174 Ill. 184, 51 N. E. 227; Harp v. Parr,
168 Ill. 459, 48 N. E. 113; White v. Cole, 47 S. W. 759; Coates v. Semper, 82 Minn. 460; 85
N. W. 217; Crossan v. Crossan, 169 Mo. 631; 70 S. W. 136; In re Watson, 131 N. Y. 587, 30
N. E. 56; In re Voorhis's Will, 125 N. Y. 765, 26 N. E. 935; In re Elmer's Will, 88 Hun. 290,
34 N. Y. Supp. 406; Robinson v. Robinson, 203 Pa. 400, 53 Atl. 253.)
And particularly has this been held to be the rule when the trial court has declined to
interfere. (Petefish v. Becker, 176 Ill. 448, 52 N. E. 71; In re Allison's Estate, 104 Iowa, 130,
73 N. W. 489; Gardner on Wills, p. 332.)
However, in this case the record discloses no such showing for appellant. But this court
has repeatedly held that, where there is substantial evidence to support a judgment or verdict,
even though the evidence to a degree be conflicting, it will not disturb such verdict or
judgment, and in the present case we believe that transcript discloses that such substantial
evidence exists, and hold accordingly.
Appellant further urges as reversible error misconduct of the jury. It appears from the
affidavits of three of counsel for appellant that during the progress of the trial, but not after
the jury were instructed and placed in the custody of an officer to consider the verdict, some
of the jury became separated, and were not in the custody of the officer. It is not claimed by
the appellant that the jury was allowed to separate after the instructions of the court had been
given and while they were considering their verdict, nor is it shown or claimed by said
affidavits that at the times said jurymen were separated or out of the custody of the
officer that any juryman had been tampered with or improperly influenced, or at all, or
that any effort had been made to prejudice the rights of appellant, nor is it claimed or
maintained that because of such separation any of the rights of appellant were
prejudiced, nor because of this separation that they were damaged in any way.
30 Nev. 93, 104 (1908) Abel v. Hitt
or claimed by said affidavits that at the times said jurymen were separated or out of the
custody of the officer that any juryman had been tampered with or improperly influenced, or
at all, or that any effort had been made to prejudice the rights of appellant, nor is it claimed or
maintained that because of such separation any of the rights of appellant were prejudiced, nor
because of this separation that they were damaged in any way. While there are some
authorities, in criminal cases, which hold that this would be proper ground for reversal, we
are unable to find any which would make this reversible error in a civil case, under the
circumstances of the present case, where it is not claimed that because of a mere separation of
the jury any injury or damage was suffered by appellant. When, during the trial of a case in
the lower court, the court enters an order that the jury remain together, they should do so, and
the jurymen should not be allowed to become separated, even before the instructions are
given by the court and the case put into their hands to consider their verdict; but, under the
circumstances of the present case, where no damage is alleged to have arisen from such
separation, nor where it is not shown that the jurors were tampered with or improperly
influenced, or at all, and none of the circumstances indicate any rights were violated or
damage suffered, we do not believe it to be reversible error. (17 Ency. Law, 2d ed. 1227,
1228.)
The authorities cited by appellant are not in point, for the reason that those cases wherein
judgment had been reversed, because of the separation of the jury, applied to cases where the
jury had retired after being instructed by the court to consider the verdict. In another case
cited by appellant a judgment was reversed because of an improper separation during the trial
of a criminal action, wherein, during the progress of the trial, a juryman became separated
from the jury, and without the custody of the sheriff; the court holding that the mere fact of
his separation in such a case, as distinguished from a civil case, was ground for reversal,
unless the presumption is sufficiently rebutted that the juror was not improperly influenced or
tampered with, or that the appellant's rights were prejudiced or suffered harm. (17 Ency.
30 Nev. 93, 105 (1908) Abel v. Hitt
Ency. Law, 2d ed. 1227.) At any rate, in the present case, it being an action wherein a verdict
of a jury is merely advisory, the court was not bound by the verdict. The court in the present
case could either have accepted the findings of the jury, and accepted its verdict, or set them
aside and acted on its own judgment, as it saw fit. In the present case the court saw fit to
accept the verdict and findings of the jury and entered judgment against the proponent.
(Comp. Laws, 2803, 2805, 3038, 3067; 16 Ency. Pl. & Pr. 1042-1043.)
This same observation with reference to the jury being improperly influenced or
prejudiced is equally applicable to the error assigned by appellant's counsel of certain
improper language and argument alleged to have been used by Attorney Massey, one of the
chief counsel for contestant, in his argument before the jury. The court evidently, in passing
its own judgment, did not consider the language complained of sufficiently harmful or
injurious to warrant a judgment otherwise than he rendered. (Lake v. Tolles, 8 Nev. 285;
Duffy v. Moran, 12 Nev. 97; Van Vleet v. Olin, 4 Nev. 95, 97 Am. Dec. 513.)
In other jurisdictions where the verdict of a jury is merely advisory in a will contest, as it is
in the present case under consideration, the rule prevails, as in this state, that the verdicts of
juries are merely advisory, and can be totally disregarded or accepted as a trial court decides.
(Bryant v. Pierce, 95 Wis. 331, 70 N. W. 297; In re Jackson's Will, 26 Wis. 104; Chafin Will
Case, 32 Wis. 569; Wright v. Jackson, 59 Wis. 584, 18 N. W. 486; Loughney v. Loughney, 87
Wis. 101, 58 N. W. 250; Fay v. Vanderford, 154 Mass. 498, 28 N. E. 681; Newell v. Homer,
120 Mass. 277; Hudson v. Hughan, 56 Kan. 152, 42 Pac. 701.)
After a careful review of the transcript on appeal, the bill of exceptions, and authorities
presented, we are of the opinion that the judgment should be affirmed, and it is so ordered.
Talbot, C. J., and Norcross, J., concurring:
We concur in the judgment and in the opinion of Sweeney, J., except in so far as it holds
that the verdict of the jury is simply advisory, and as to that portion of the opinion which may
bear on the provisions of Comp.
30 Nev. 93, 106 (1908) Abel v. Hitt
opinion which may bear on the provisions of Comp. Laws, 2803, 2805, 3038, and 3067, we
express no views, as we do not consider the question necessarily involved.
____________
30 Nev. 106, 106 (1908) Linville v. Scheeline
[No. 1703.]
R. W. LINVILLE, Appellant, v. AGNES SCHEELINE, MORITZ SCHEELINE (Her
Husband), P. L. FLANIGAN, and HERBERT FLEISHACKER, Respondents.
1. AppealProcedureStriking Cost Bills. An order striking a cost bill is an order made after final judgment,
and, if appealed from, should be taken up in a statement on appeal containing only so much of the record
as is necessary to present the facts, no statement on motion for a new trial being necessary.
2. CostsRecoveryRequisites. Under Civil Practice Act, 486, Comp. Laws, 3581, requiring the party in
whose favor judgment is rendered, and who claims his costs, to deliver a cost bill to the clerk within two
days after the verdict or decision, or such further time as the court may grant, if a party fails to file a cost
bill within the time prescribed, he waives his rights to costs.
3. SameDecision of Court. Under Practice Act, 486, Comp. Laws, 3581, requiring a party in whose favor
judgment is rendered, and who claims his costs, to deliver a cost bill to the clerk within two days after the
verdict or decision of the court, the decision is the announcement by it of its judgment, and is distinct
from the findings.
4. AppealRecordSufficiency. Where, on appeal from an order striking plaintiff's cost bill, the record shows
only that motion to strike, because the bill was not filed in time, was made and allowed, and the order
excepted to on the ground that the clerk failed to notify plaintiff of the court's decision as directed, the
record is insufficient to show the clerk did not so notify plaintiff, and to overcome the presumption in
favor of the correctness of the trial court's rulings and the presumption that the clerk performed his duty.
5. TrialDecision in Absence of CounselNotice. Where courts render decisions in the absence of counsel,
they should direct immediate notice to be given to the parties' attorneys.
Appeal from the District Court of the Second Judicial District of the State of Nevada,
Washoe County; B. F. Curler, Judge.
Action by R. W. Linville against Agnes Scheeline, et al. Plaintiff was awarded a decree,
but it was modified by allowing the costs. From an order denying a new trial, striking out
cost bills, and denying an amendment to the findings, plaintiff appeals.
30 Nev. 106, 107 (1908) Linville v. Scheeline
out cost bills, and denying an amendment to the findings, plaintiff appeals. Affirmed.
The facts sufficiently appear in the opinion.
O. H. Mack, and Mack & Farrington, for Appellant:
I. This said suit is in equity, and all the attorneys connected therewith had a right and
ought to have been in open court when the suit was decided, for the reason that title to land
was in dispute; therefore plaintiff ought not to suffer any loss on account of the negligence
and failure of the court to do its duty in obeying its orders and notifying plaintiff's attorneys in
said suit in the statutory time to file his cost bill, as plaintiff's attorneys had no opportunity to
file his cost bill in said suit. In equity the court can award costs in any stage of the
proceedings. (Avery v. Wilson, 20 Fed. 856.)
II. The court erred in allowing defendant's motion to amend the judgment filed on the 4th
day of January, 1906.
(Scott v. Haines, 4 Nev. 426.)
James T. Boyd and A. N. Salisbury, for Respondent:
I. It has been frequently held in this court, commencing with the case of California State
Tel. Co. v. Patterson, 1 Nev. 150, that a decision of a court is the judgment, and that the entry
of the same by the clerk is merely evidence of it. In the case at bar, however, it does not
appear that the clerk failed to enter judgment in accordance with the order of the court, but
that the clerk merely failed to give plaintiff and appellant notice of the decision of the court
which set plaintiff and appellant's time running within which he might file his memorandum
of costs. Whether or not plaintiff and appellant did receive notice from the clerk of the
decision of the court and rendition of judgment, does not appear from the records, and it
certainly cannot be contended by the plaintiff and appellant that the defendants and
respondents lose any rights by reason of any negligence of the clerk, or that it is a question in
which any one is concerned except the clerk himself and the party who alleges that he has
been damaged by reason of any negligence on the clerk's part.
30 Nev. 106, 108 (1908) Linville v. Scheeline
II. The cases of Sparrow and Trench v. Strong, 2 Nev. 362, and Howard v. Richards, 2
Nev. 128, first laid down the rule that a clerical error in the judgment may be amended when
the error is shown by the records, and there is no necessity to resort to other evidence than is
afforded by the record to correct the error. This rule has been so often repeated in this court,
and is so well settled in this jurisdiction, as well as in others, that counsel for defendants and
respondents feel that it would be an imposition on this court to ask the court to give further
consideration to the numerous authorities which are contained in its own reports as well as in
the reports of other states.
By the Court, Sweeney, J.:
This action was for specific performance of a written contract to convey real estate. The
case was tried before the court with the aid of a jury on the 4th day of May, 1905. Special
issues were submitted to the jury, which were answered in favor of the plaintiff. Thereafter
the case was continued for oral argument before the court. On the 28th day of July, 1905, the
case was argued and submitted to the court.
The minutes of the court for the 30th day of October, 1905, show the following order
made in this cause on said day: The court adopts the findings of the jury on the matters of
fact submitted to them and finds for the plaintiff, and decrees that findings of fact and
conclusions of law and decree be entered for the plaintiff as prayed for. Ordered that the clerk
of this court notify Mack & Farrington and O. H. Mack, and Boyd and Salisbury. Whereupon
a recess was taken until the further order of the court.
On the 9th day of November, 1905, counsel for plaintiff filed and served his cost bill. On
the 11th day of November, 1905, counsel for defendants filed a motion to strike out the cost
bill filed November 9th, upon the ground that said cost bill was not filed within the time
allowed by law, which motion coming on to be heard was allowed upon the said ground that
the same was not filed in time. On the 4th day of January, 1906, the court signed findings and
a decree prepared by counsel for plaintiff, the decree, however, being modified before
signing and filing by striking out the costs of the action inserted therein.
30 Nev. 106, 109 (1908) Linville v. Scheeline
prepared by counsel for plaintiff, the decree, however, being modified before signing and
filing by striking out the costs of the action inserted therein. On the said 4th day of January,
following the filing of the decree, counsel for plaintiff filed another cost bill. On the 6th day
of January following counsel for defendants moved to strike out this last cost bill upon the
ground that the same was not filed within the time allowed by law. The motion coming on to
be heard was allowed by the court.
On the 6th day of January, 1906, counsel for plaintiff moved for a new trial upon the
following grounds: Insufficiency of the evidence to justify the findings and the decision of
the court, and that the decision is against law. Errors in law occurring at the trial, excepted to
by the plaintiff. Failure to give plaintiff proper relief, appearing to have been refused under
the influence of passion or prejudice. The motion for a new trial was denied. On the 13th
day of January, 1906, the court made an order denying plaintiff's request for an additional
finding reading as follows: The judge of the above-entitled court, on the 4th day of January,
1906, signed and filed a judgment in said cause and in said court in favor of the plaintiff,
according to the prayer of the complaint therein. (1) The court now finds that the plaintiff is
entitled to a judgment against defendants, and each of them, for all of his costs and
disbursements therefor incurred in this action, according to the prayer of the complaint
therein. This appeal is taken from the order of the trial court denying plaintiff's motion for a
new trial, from the orders striking out plaintiff's cost bills, and from the order denying
plaintiff's request for an amendment to the findings made on the 13th day of January, 1906.
The record in this case presents the novel situation of a statement on and motion for a new
trial upon the part of the plaintiff, where the judgment and decree are in plaintiff's favor and
in accordance with the prayer of his complaint, except that costs were not included for the
reason that the court struck out the cost bill upon the ground that the bill was not filed in time.
The third ground stated in the motion is not a ground for new trial specified in the statute.
30 Nev. 106, 110 (1908) Linville v. Scheeline
The first two grounds of the motion the plaintiff was in no position to make, as he could not
be prejudiced by error in either particular specified. It is evident from the record that the only
alleged error which counsel for appellant is seeking to correct on this appeal is in reference to
the order or orders striking out the cost bill or bills. To correct this error, if such existed,
manifestly did not require a statement on motion for a new trial. An order striking out a cost
bill is an order made after final judgment, and, if appealed from, should be brought to this
court in a statement on appeal containing only so much of the record as is necessary to
present the facts. The record in this case, as presented, is in two volumes, containing all the
testimony and rulings upon the trial, as well as all the original papers and documents filed in
the case for any purpose whatever, most all of which have no place in the record. The
questions presented in this case could and should have been presented in a statement of
one-twentieth the size of the present one, at a great saving in cost to the client appealing, and
of labor upon the part of this court in sorting out from the mass of foreign and irrelevant
matter such portions of the record as present the real questions for consideration. It is a
serious question whether appeals presenting transcripts of this character ought not to be
dismissed without consideration, or else the appellant be required to reform his record before
it would be considered. No motion for diminution of the record was made by counsel for
respondent. Without making this case a precedent for the action of this court in future cases,
where similar cases are presented, we will, in this instance, under the circumstances,
determine the only question presentedwhether or not a cost bill was filed in time.
Section 486 of the civil practice act (Comp. Laws, 3581) reads as follows: The party in
whose favor judgment is rendered, and who claims his costs, shall deliver to the clerk of the
court, within two days after the verdict or decision of the court, or such further time as the
court or judge may grant, a memorandum of the items of his cost and necessary
disbursements in the action or proceeding, which memorandum shall be verified by the oath
of the party, or his attorney, stating that the items are correct, and that the
disbursements and costs therein named have been necessarily incurred in the action or
proceeding.
30 Nev. 106, 111 (1908) Linville v. Scheeline
dum shall be verified by the oath of the party, or his attorney, stating that the items are
correct, and that the disbursements and costs therein named have been necessarily incurred in
the action or proceeding. He shall be entitled to recover the witness fees, although at the time
he may not have actually paid them. In order for a party to recover costs, he must come
within the provisions of the statute, and if he fails to file his cost bill within the time
prescribed, he is deemed to have waived his right to costs. (State v. District Court, 26 Nev.
258.) This court has repeatedly held that the decision of the court is the announcement by the
court of its judgment, and is distinct from the findings. (Elder v. Frevert, 18 Nev. 278;
Robinson v. Benson, 19 Nev. 331; State ex rel. Hoppin v. Cheney, 24 Nev. 222; Robinson v.
Kind, 25 Nev. 261; Sholes v. Stead, 2 Nev. 108; Howard v. Richards, 2 Nev. 128, 90 Am.
Dec. 520; Telegraph Co. v. Patterson, 12 Nev. 150.) Were this question a new one, it might
be open to serious questions, as many authorities, under similar statutes, take a contrary view.
The practice in this state, however, of regarding the oral announcement by the court of its
judgment as the decision, has been so thoroughly recognized by the bench and bar that it
would not now be proper to announce a different rule.
It is now contended that counsel, prior to November 9th, either by order of court or by
stipulation, was allowed any extension of time to file his cost bill. Counsel for appellant
argues, however, that because of the fact that the decision was rendered in the absence of
counsel on either side, and the clerk was directed to notify respective counsel that he was
entitled to two days from the time of receiving such notice in which to file his cost bill, the
clerk never did give such notice, and that he filed his cost bill the day he obtained knowledge
of the decision. If this state of facts was established by the record, we would be called upon to
determine whether such neglect upon the part of the clerk would relieve plaintiff from an
enforcement of the strict provisions of the statute. All that the record shows, however, is that
the motion to strike out the cost bill was made, that the motion was allowed by the court, and
the order of the court excepted to upon the ground that the clerk failed to notify counsel
as directed.
30 Nev. 106, 112 (1908) Linville v. Scheeline
the court excepted to upon the ground that the clerk failed to notify counsel as directed. What
showing, if any, was made upon the hearing of the motions that counsel was not served with
notice of the decision, and had no such notice, does not appear of record. All presumptions
are in favor of the correctness of the rulings of the trial court, and where such rulings are
questioned the record must show wherein they are erroneous. It is also a presumption of law,
in the absence of a showing to the contrary, that officers perform their duties. (Jones on
Evidence, vol. 1, sec. 38.) Neither of these presumptions is shown in the record to have been
overcome, and we cannot take statements contained in counsel's exceptions or assertions
contained in his brief as an equivalent of facts which should be established of record. So far
as the record shows, plaintiff's counsel may have had notice of the decision the day the same
was rendered. At least there is no showing, and we cannot presume to the contrary. If the facts
are as counsel contends in his brief, the situation is unfortunate. The plaintiff was clearly
entitled to his costs, unless he waived them by neglecting to file his bill in time. The costs in
this case are a very material item. For the plaintiff to have to pay them, under the
circumstances of this case, imposes a heavy burden upon him, and takes from him, in a large
measure, the benefits of the court's decision; for the costs represent a considerable portion of
the value of the property involved. Where courts render decisions in the absence of counsel,
they should be particularly careful to direct that notice be promptly given to the attorneys of
the parties. The court made such an order in this case. The clerk should have promptly
notified counsel, and the presumption is that he did so. The statutes of many of the states
allow counsel for the prevailing party a certain time after notice of the decision in which to
file the cost bill. An amendment of our statute in this particular would, we think, be
advantageous to litigants.
The several orders of the trial court appealed from are affirmed.
____________
30 Nev. 113, 113 (1908) Linville v. Clark
[No. 1725]
R. W. LINVILLE, Respondent, v. A. J. CLARK, Appellant.
1. AppealFailure to ProsecuteAffirmance. Where appellant did not appear at the hearing, and no brief was
filed on his behalf until a month thereafter, when, without any stipulation or order authorizing it, one was
filed setting up a question to which no exception was taken in the trial court, and regarding which no
assignment of error had been made, the judgment will be affirmed.
Appeal from the District Court of the Second Judicial District of the State of Nevada,
Washoe County; B. F. Curler, Judge.
Action by R. W. Linville against A. J. Clark. From the judgment, defendant appeals.
Affirmed.
The facts sufficiently appear in the opinion.
James T. Boyd and A. N. Salisbury, for Appellant.
O. H. Mack and Mack & Farrington, for Respondent.
By the Court, Talbot, C. J.:
About two an one-half months before the day set for the hearing a stipulation was filed
allowing the appellant thirty days additional in which to file his opening brief, if his time for
that purpose had not already expired. No one appeared on the part of the appellant at the
hearing, and no brief was filed on his behalf until more than a month after the hearing, when,
without any stipulation or order authorizing it, one was filed setting up a question to which no
exception had been taken in the trial court, and regarding which no assignment of error had
been made.
Under these circumstances, and as often held by this court in Mathewson v. Boyle, 20 Nev.
88, Goodhue v. Shedd, 17 Nev. 141, State v. Myatt, 10 Nev. 166, Gardner v. Gardner, 23
Nev. 214, and other cases, the judgment of the district court is affirmed by reason of the
appellant's failure to prosecute the appeal.
____________
30 Nev. 114, 114 (1908) Nash v. McNamara
[No. 1731.]
A. D. NASH, et al., Respondents, v. DAN McNAMARA, et al., Appellants.
1. CourtsDecisions of Federal Courts as Authority. It is the special prerogative of the Federal Supreme Court
to finally construe federal statutes.
2. Mines and MineralsLocation of ClaimsAbandonment. Under Comp. Laws, 208, and section 209 as
amended by Stats. 1901, p. 97, c. 93, sec. 2, authorizing a discoverer to locate a mining claim and
requiring the sinking of a discovery shaft on a claim before the expiration of ninety days from the
posting of a notice of location, and Rev. Stats. U. S., secs. 2319, 2322, 2324 [U. S. Comp. Stats. 1901,
1424-1426], providing that locators of mining claims complying with the laws shall have the exclusive
right of possession and enjoyment of all the surface included within their lines of location, and of all
veins, etc., and that the location must be distinctly marked on the ground, so that its boundaries can be
readily traced, and that until a patent has been issued not less than a specified amount of work shall be
performed during each year, or the claim shall be open to relocation, etc., a junior location made on
ground covered by a valid existing senior location will not prevail over a relocation on the same
ground, made after a failure to do the work on the senior location, notwithstanding Rev. Stats. U. S.,
sec. 2326 [U. S. Comp. Stats. 1901, 1430], under which a claimant, by failure to assert his rights
acquired, may lose them.
3. Constitutional LawStatutesValidity. Though it is the duty of courts to construe laws, they should be
careful not to encroach on the legislative department, or set aside statutes, federal or state, except where
they are clearly in conflict with the Constitution.
4. Mines and MineralsLocation of Claims. Where mining claims were located on a designated date, by posting
the requisite notice and by the proper marking of their boundaries within ninety days thereafter, the
right to the ground covered by them related back to the time of the posting of the notice and segregated
the land from the public domain, so that a subsequent location was invalid until after there had been a
failure to do the work required by the statutes to be done within ninety days from the posting of the
notice; but where the notices were posted and the claims were not staked within ninety days thereafter,
the locations were not completed, and they were not segregated from the public domain, though such
posting carried the right to define the boundaries within ninety days.
5. Same. Where a senior location of mining claims was not a valid and existing location at the time of a junior
location, the junior locator became entitled to hold the claims for ninety days, and, by instituting his suit
to recover the claims before the expiration of ninety days, he could recover judgment for possession
and damages to the end of that period, and, if he should fail to do the required work within ninety days,
the claims would become subject to relocation by others.
6. WitnessesCross-ExaminationLimit of Right. The rule that the cross-examination of witnesses is limited
to the matters brought out on direct examination does not prevent the
cross-examination party from making the witnesses his own after the adverse
party has closed his case in chief, and does not prevent the court from allowing, in
its discretion, a rigid examination of the witnesses where they are hostile.
30 Nev. 114, 115 (1908) Nash v. McNamara
on direct examination does not prevent the cross-examination party from making the witnesses his own
after the adverse party has closed his case in chief, and does not prevent the court from allowing, in its
discretion, a rigid examination of the witnesses where they are hostile.
Appeal from the District Court of the Third Judicial District of the State of Nevada, Nye
County; Peter Breen, Judge.
Action by A. D. Nash, and others, against Dan McNamara, and others. From a judgment
for plaintiffs, defendants appeal. Reversed, and remanded for a new trial.
The facts sufficiently appear in the opinion.
Wm. Forman, for Appellants:
I. The court erred in permitting the witness O'Brien to testify as to the contents of the
alleged notice of location of Union No. 2. No proper foundation was laid for such testimony,
the witness only stating that he did not have the notice, did not have a copy, looked in the
monument for it, but it had not been there for several months, and that he did not know where
it was; that he remembered parts of its contents. To support a recovery upon or under a lost
instrument, the evidence must be clear and satisfactory that the instrument once existed, and,
though diligent search for it had been made, cannot be found, and as to its contents it must be
proven in all substantial parts. (Bailey v. Byrd, 95 Va. 316; Gillis v. Wilmington, 108 N. C.
441; Mariner v. Saunders, 10 Ill. 113; Ency. Evidence, vol. 8, p. 359.) The mere absence of
an instrument is not sufficient on the question of its loss, but, as already shown, a diligent an
unsuccessful search for it must be made. (Allerkamp v. Galligher, 24 S. W. 372, Hough v.
Barton, 20 Vt. 455; McDonald v. Jackson, 56 Iowa, 643.) And its contents must be proven in
all its substantial parts. (Nicholson v. Tarpy, 89 Cal. 617; Laster v. Blackwell, 128 Ala. 143;
Perkins v. Cushman, 44 Me. 484.)
II. We have herein set forth such brief statements of the facts as are necessary to explain
the points made. The ruling of the court that the defendants could not show that the Union
claims were invalid, because located on prior valid and subsisting locations, was contrary to
the ruling of every court that has passed upon the matter, save in one instance, so far as
we are able to ascertain, and in that one instance the facts and the law as there declared
have no application in governing the law as to the case at bar, as we will show later on.
30 Nev. 114, 116 (1908) Nash v. McNamara
and subsisting locations, was contrary to the ruling of every court that has passed upon the
matter, save in one instance, so far as we are able to ascertain, and in that one instance the
facts and the law as there declared have no application in governing the law as to the case at
bar, as we will show later on. As early as the year 1881 the Supreme Court of the United
States decided this question against the contention made by respondents in the case at bar and
against the ruling of the trial court as made in the present case. The Supreme Court of the
United States then said: Mining locations are not open to relocation until the rights of a
former locator have come to an end. A relocator seeks to avail himself of the mineral in the
public lands which another has discovered. This he cannot do until the discoverer has in law
abandoned his claim and left the property open for another to take up. The right of location
upon the mineral lands of the United States is a privilege granted by Congress, but it can only
be exercised within the limits prescribed by the grant. Locations can only be made where the
law allows it to be done. Any attempt to go beyond that will be of no avail. Hence, a
relocation on lands actually covered by another valid and subsisting location is void; and this
not only against the prior locator, but all the world, because the law allows no such thing to
be done. It allows that the relocation of Belk was invalid at the time it was made and
continued to be so until January 1, 1877.
III. The law thus established by the Supreme Court of the United States is the law which
has always been in force in all tribunals where the question arose, save in one instance. Our
own supreme court, in the case of Rose v. Richmond Mining Co., 17 Nev. 56, 57, affirms the
doctrine announced in Belk v. Meagher, and in addition uses the following language: If, at
the time the St. George location was made, there was a prior, existing, and valid location
upon this portion of the lode, and such location has ever since been legally maintained, then
the subsequent location of the St. George upon this portion of the lode was absolutely null
and void, and respondent did not and could not acquire any rights whatever by virtue of its
location upon, or its possession of, this portion of said lode.
30 Nev. 114, 117 (1908) Nash v. McNamara
sion of, this portion of said lode. A party cannot locate a valid claim or lode already located
and legally possessed by another.
IV. The decision and judgment and decree of the court are not supported by the evidence,
and are contrary to the evidence. It was shown by a fair preponderance of the evidence that at
the time plaintiffs on the 24th and 25th of July, 1905, made their alleged discovery and
location of the Union No. 2, Union No. 3, Union No. 4, and Union No. 5, that the same was
upon appropriated mineral lands of the United States, and not subject to location by the
plaintiffs, and no attempt was made by the plaintiffs to show that, at the time they made their
alleged locations of said claims, the same was on unappropriated public mineral lands of the
United States, and subject to location. It was shown by a fair preponderance of the evidence
that at the time the plaintiffs made their alleged locations, to wit, on July 24 and 25, 1905, of
the Union No. 2, Union No. 3, Union No. 4, and Union No. 5, the ground upon which said
alleged locations were made was already appropriated, and was ground upon which there
were prior, valid, and subsisting locations, to wit, the Portland No. 1 and Portland No. 2. The
evidence shows, without conflict, that the alleged locations of the Union claims, to wit, Union
No. 2, Union No. 3, Union No. 4, and Union No. 5, were not made upon the public lands of
the United States, which were open to location and appropriation on said dates. The decision
and judgment are not supported by the evidence, in this, that the court finds that the premises
embraced within said four claims, to wit, the Union No. 2, Union No. 3, Union No. 4, and
Union No. 5 lode mining claims were, upon their respective dates of location, unappropriated,
unoccupied public mineral domain of the United States, open to exploration, location, and
purchase, whereas, no evidence whatsoever was introduced upon the trial to show this fact,
and evidence offered by defendants on the trial to prove that such was not the fact was
excluded by the court. The judgment and decree and findings of the court are not supported
by the evidence, in this, that the court finds that before the expiration of ninety days from the
posting of the notice of location on each of said respective four claims, to wit, the Union No.
30 Nev. 114, 118 (1908) Nash v. McNamara
respective four claims, to wit, the Union No. 2, Union No. 3, Union No. 4, and Union No. 5,
the locators performed the requisite discovery work upon each of said four claims, whereas,
at the trial certain evidence was offered to show that an attempt had been made by the
plaintiffs to do and perform the requisite discovery work, and the same was introduced at the
instance and on behalf of the plaintiffs, and afterwards all evidence as to any such work was,
at the request of plaintiffs, and over the objection of defendants, withdrawn and not
considered by the court. Said decision, findings of fact, and conclusions of law are not
supported by the evidence, and are contrary to the evidence, in this, that the court found that
before the expiration of ninety days from the posting of the notice of location on each of the
said four claims, to wit, the Union No. 2, Union No. 3, Union No. 4, and Union No. 5, the
locators recorded with the mining district recorder of the Manhattan Mining District and with
the county recorder of Nye County a location certificate for each of the respective claims,
containing the name of the claim, the names of the locators, the date of the location, with
such description thereof with reference to some natural object or permanent monument as
identified the claims; the number of linear feet in length claimed along the course of the lode
each way from the point of discovery, with the width on each side from the center of the lode,
and the general course thereof; the dimensions and location of the discovery work; the
location and description of each corner and the markings thereon, when in truth and in fact
the evidence offered in behalf of the plaintiff in support of such alleged acts was by the
plaintiffs, over the objection of defendants, withdrawn from the consideration of the court.
V. The trial court should have found all the issues in favor of appellants and given
judgment accordingly, and, failing in this, should have granted defendants a new trial, but,
inasmuch as all the evidence is before this court, this court should reverse the judgment in
favor of appellants in accordance with relief demanded in their amended answer to the
complaint of the individual respondents, and in accordance with the relief demanded in their
answer to the complaint of the corporation defendants.
30 Nev. 114, 119 (1908) Nash v. McNamara
plaint of the corporation defendants. The respondent showed no right whatever to the ground
in controversy. The evidence clearly shows that they are strangers to the title; that their
attempted location of the Union claims was fraudulent and void; and that they were
speculative and were not made in good faith, and that they, by their alleged locations, seek to
deprive appellants of their locations, which are valid and made in good faith, as shown by
their every act and deed in promoting the development of the mineral resources of the state.
Campbell, Metson & Brown, George A. Bartlett, and Key Pittman, for Respondents:
I. Proof is necessary to establish foundation for introduction of oral testimony as to
contents of a written instrument. Greenleaf says: It should be recollected that the object of
the proof is merely to establish a reasonable presumption of the loss of the instrument; and
that this is a preliminary inquiry addressed to the discretion of the judge. (1 Greenl. Ev.
558.) Wigmore says: There is not and cannot be any universal or fixed rule to test the
sufficiency of the search for a document alleged to be lost. The inquiry must depend entirely
on the circumstances of the case. (2 Wigmore, Ev. 1194, and citations thereunder.) In
Brewster v. Sewell, 3 B. & Ald. 296, Abbott, C. J., says: All evidence is to be considered
with regard to the matter with respect to which it is produced. Now it appears to be a very
different thing whether the subject of the inquiry be a useless paper which may reasonably be
supposed to be lost, or whether it is an important document which the party might have an
interest in keeping and for the non-production of which no satisfactory reason is assigned.
This being the case, therefore, where the loss or destruction of the paper may almost be
presumed, very slight evidence of its loss or destruction is sufficient. (Cited in 2 Wigmore,
Ev. 1194.)
II. Such a paper was the location notice. It is only required to be placed in a stone
monument on the mining claim. No copy need be made or recorded. The locator is under no
obligation to keep it posted.
30 Nev. 114, 120 (1908) Nash v. McNamara
under no obligation to keep it posted. At the end of ninety days the facts required to be stated
in the notice are perpetuated by recording a certificate of location. In Clark v. Hornbeck, 17
N. J. Eq. 450, 451, the subject is discussed exhaustively, with many citations from the highest
authorities. The court lays down the rule in the following language: All that the law requires
as a ground for the admission of secondary evidence is a reasonable assurance that evidence
of a higher nature is not withheld or suppressed by the party offering it. * * * As a general
rule, it is clear the legal presumption will be that the paper is lost. Even testimony of an
attorney in an action, of a search for his client's lost instrument, is sufficient, if there does not
appear to be any ground for supposing that the instrument was designedly withheld. (Minor v.
Tillotson, 7 Pet. 99.) It is sufficient if the search is made where the paper or instrument was
last known to be, or where it is most likely to be found. (25 Am. & Eng. Ency. Law, 167.)
III. All mineral lands, at least in the State of Nevada, belong to the United States, and are
part of the public domain until title is parted with as provided by acts of Congress for the sale
of mineral lands. This can only be accomplished by the issuance of a receipt by the receiver
of the United States Land Office for the purchase price of a mining claim in a patent
proceeding. All lands that were originally owned by the sovereign are presumed to be owned
by the sovereign until a conveyance is proven. Respondents admit that it was competent for
appellants to prove that the land was not mineral land of the United States at the time
respondents' said locations were made, but insist that, unless said proof is made by appellants,
the presumption continues that it is mineral land of the United States, a discovery having
been proven. (Belk v. Meagher, 104 U. S. 279; Gwillim v. Donnellan, 115 U. S. 45;
Lavagnino v. Uhlig, 198 U. S. 443; Brown v. Gurney, 201 U. S. 184.)
IV. This brings us down to a discussion of alleged error No. 16. Said error is based on the
grounds of the exclusion of the evidence by the court as to the location of said Portland
mining claims, and really raises the only material issue of appeal.
30 Nev. 114, 121 (1908) Nash v. McNamara
of appeal. It is admitted that the facts of the case at bar are identical with the facts as
presented to the Supreme Court of the United States in the celebrated case of Lavagnino v.
Uhlig. Appellants attempted to prove that said Portland mining claims were located on July 1,
1905, and abandoned by said locators between the 25th day of July, 1905, and the 29th day of
September, 1905; that, at the time respondents' said Union mining claims were located, they
were located on ground covered by said Portland mining claims, and at said time said
Portland mining claims had not been abandoned. The Portland mining locations bear the
same relation to the Union mining claims and the Liberty and Justice mining claims, as the
Levi P. and Veta mining claims bore to the Uhlig mining claims and the Yes You Do. The
decision of the case at bar in the trial court depended entirely upon the construction to be
given to Lavagnino v. Uhlig, and now the sustaining or reversal of said decision in this court
depends entirely upon the construction given to Lavagnino v. Uhlig. A correct understanding
of the language that led to the establishment of the law in Lavagnino v. Uhlig requires
consideration of the following subjects:
(1) What land is open to location for mining purposes? Section 2319, Revised Statutes of
the United States, corresponding to section 1 of the act of 1872, reads as follows: All
valuable mineral deposits in lands belonging to the United States, both surveyed and
unsurveyed, are hereby declared to be free and open to exploration and purchase, and the
lands in which they are found to occupation and purchase by citizens of the United States and
those who have declared their intention to become such, under the regulations required by
law, and according to the local customs or rules of miners in the several mining districts so
far as the same are applicable and not inconsistent with the laws of the United States. It will
be observed that there is no such language used as unoccupied or unappropriated public
domain. The only qualification necessary under the statute is that it is mineral land
belonging to the United States. The terms unoccupied and unappropriated are expressions
originated by courts in contests between senior and junior locators of the same ground,
involving the right of possession.
30 Nev. 114, 122 (1908) Nash v. McNamara
junior locators of the same ground, involving the right of possession.
(2) What are mineral lands of the United States? Justice Brewer, in Del Monte M. Co.
v. Last Chance M. Co., 171 U. S. 59, 60, says: In the acquisition of foreign territory since
the establishment of this government the great body of land acquired became the property of
the United States, and is known as the public lands.' By virtue of this ownership of the soil
the title to all mines and minerals beneath the surface was also vested in the government. In
Heydenfeldt v. Daney Gold and Silver M. Co., 10 Nev. 290, it has been held that all mineral
lands in the State of Nevada belong to the United States, and have been expressly reserved
from any grant of land to the state.
(3) When does such land cease to be mineral land of the United States? In Del Monte M.
Co. v. Last Chance M. Co., supra, the court says: By section 2319, quoted above, the
mineral deposits which are declared to be open to exploration and purchase are those found in
lands belonging to the United States, and such lands are the only ones open to occupation and
purchase. While this is true, it is also true that until the legal title has passed, the public lands
are within the jurisdiction of the land department.
(4) What is the location of a mining claim, and what rights are derived therefrom by the
locator? Justice Brewer, in delivering the opinion of the court in Del Monte M. Co. v. Last
Chance M. Co., supra, says: It must be borne in mind that the location is the initial step
taken by the locator to indicate the place and extent of the surface which he desires to acquire.
It is a means of giving notice. That which is located is called in section 2320 and elsewhere a
claim' or a mining claim.' Indeed, the words claim' and location' are used interchangeably.
This location does not come at the end of the proceedings to define that which has been
acquired after all contests have been adjudicated. The locationthe mere making of a
claimworks no injury to one who has acquired prior rights.
(5) How is land affected by location, so far as subsequent locators are concerned? A
location of a mining claim having been determined to be only a claim of possession or an
assertion of a right of possession, no prior location can in any manner bar a subsequent
claim or assertion of right from possession.
30 Nev. 114, 123 (1908) Nash v. McNamara
been determined to be only a claim of possession or an assertion of a right of possession, no
prior location can in any manner bar a subsequent claim or assertion of right from possession.
Of course, the locator who has first claimed possession, or asserted a right of possession, to
the mineral land, until he forfeits or abandons the same is entitled to maintain such possession
as against a subsequent locator, and to maintain suits for such purpose. As a senior locator,
however, acquires only a right of possession by virtue of his location and no interest in the
legal title to the property, his forfeiture or abandonment of such right places him in a position
where he cannot contest the subsequent assertion of the right of possession made by the
subsequent locator. If the senior locator cannot assert his right on account of his forfeiture or
abandonment, then certainly no third party can assert such right. As is said by Justice Brewer
in Del Monte v. Last Chance, supra: Some confusion may arise when locations overlap each
other and include the same ground, for then the right of possession becomes a matter of
dispute. But no location creates a right superior to any previous valid locations, and these
possessory rights have always been recognized and disputes concerning them settled in
courts.
V. Appellants claim that the law established in the case of Lavagnino v. Uhlig is not
applicable by reason of section 213 of the Compiled Laws of Nevada, in relation to filing
amended and additional certificates of location. This act, in the first place, is only directory,
using the word may instead of shall; and again it states that such amended and additional
certificate shall not preclude the claimant or claimants from proving any such titles as he or
they may have held under previous location. This law was evidently passed for the purpose
of allowing a locator to take in subsequently other ground than that which was originally
included in his location. There was no necessity for any amended and additional certificate of
location in the case of Union mining claims (as the location notices took in full twenty acres
for each claim), and, even if the Portland mining claims had in any way interfered, they were
abandoned before the expiration of ninety days from the location of the Union mining claims,
and the locators of the Union mining claims were not required to establish their
boundaries prior to the date of abandonment of said Portland claims.
30 Nev. 114, 124 (1908) Nash v. McNamara
mining claims, and the locators of the Union mining claims were not required to establish
their boundaries prior to the date of abandonment of said Portland claims. The object of the
certificate of location is only to provide prima facie evidence of its contents, and the
provision for amending it is solely for the purpose of allowing the locator to change his
boundaries at any time without going to the formality of making a new location. The act in no
way affected the rights of the locator so far as the initial steps of his location are concerned.
We cannot see that the act in any way affects the law as established in Lavagnino v. Uhlig.
The question, however, is disposed of by reason of the fact that respondents did offer to prove
that, subsequent to the admitted abandonment of the Portland mining claims and prior to the
expiration of the ninety days after the location of the Union mining claims, respondents did
file for record certificates of location in accordance with the directions of said section and
embracing all the land located as said Union mining claim; and that such proof was objected
to by appellants as immaterial and incompetent, and the objection was sustained by the court.
Wm. Forman, for Appellants, in reply:
I. Appellants admit the lands in controversy are mineral lands, and admit that, prior to
July 1, 1905, these lands were mineral lands of the United States, but appellants do say that
when Kopenhaver, Meissner, and Lawson made a discovery of mineral, and located, on said
ledge in which the mineral was discovered, two claims, known as the Portland No. 1 and
Portland No. 2, the land within these two locations was segregated from the public domain,
and that after being so withdrawn no one could go upon these lands and initiate any right to
the land so appropriated until after the land reverted to the public domain by reason of the
abandonment or forfeiture of the Portland claims. Appellants made their locations of the
Liberty and Justice claims after the abandonment of the Portland claims and before there were
any intervening rights. After appellants had made their locations as relocations of the Portland
claims, and after the institution of this action, it seems that respondents recognized that
the case of Lavagnino v. Uhlig, upon which they relied in the lower court and now rely in
support of the validity of the Union claims, did not apply in view of section 213 of the
Compiled Laws of the State of Nevada, for on page 63 of respondents' brief they made the
following assertion: "We cannot see that the act in any way affects the law as established
in Lavagnino v.
30 Nev. 114, 125 (1908) Nash v. McNamara
after the institution of this action, it seems that respondents recognized that the case of
Lavagnino v. Uhlig, upon which they relied in the lower court and now rely in support of the
validity of the Union claims, did not apply in view of section 213 of the Compiled Laws of
the State of Nevada, for on page 63 of respondents' brief they made the following assertion:
We cannot see that the act in any way affects the law as established in Lavagnino v. Uhlig.
The question, however, is disposed of by reason of the fact that respondents did offer to prove
that, subsequent to the admitted abandonment of the Portland mining claims and prior to the
expiration of the ninety days after the location of the Union mining claims, respondents did
file for record certificates of location in accordance with the directions of said section and
embracing all the land located as said Union mining claims; and that such proof was objected
to by appellants as immaterial and incompetent, and the objection was sustained by the
court. Why was such proof objected to by appellants? Because it was inadmissible under the
pleadings, and because said section 213 states: Providing that such relocation does not
interfere with the existing rights of others at the time of such relocation. After the Portland
claims were abandoned the Liberty and Justice claims were located, and this, too, before there
were any existing rights of others. When respondents filed their additional and amended
certificates, and when respondents did their additional work (the testimony in relation to
which was voluntarily withdrawn), was after appellants had acquired title to the ground in
controversy and was after the institution of this suit. The rights, if any, of respondents to the
premises in controversy, having terminated during the pendency of the action for failure of
performance of the discovery location work, the judgment should be reversed with directions
to the lower court to enter judgment for appellants according to the demand of their answer.
II. Counsel for respondents cite with seeming satisfaction Creede, C. C. M. & M. Co. v.
Uinta T. M. & T. Co., 196 U. S. 338, 340, commonly known as the Uinta Tunnel case, as if
the same were controlling this case. That case does not uphold the contentions which
respondents attempt to maintain, for in that case the court said: "The express grant to the
locators made by this section includes only the surface and the veins apexing within the
boundaries of the location."
30 Nev. 114, 126 (1908) Nash v. McNamara
uphold the contentions which respondents attempt to maintain, for in that case the court said:
The express grant to the locators made by this section includes only the surface and the veins
apexing within the boundaries of the location. Precisely what we contended forthat the
locator, by virtue of his location, receives an express grant of the surface and all veins having
a top or apex within the exterior boundaries of his claim. Counsel quotes an excerpt from the
opinion as follows: Until, therefore, by entry and payment to the government the title to the
ground passes to the locator, he is in no position to question any rights of exploration which
are granted by other provisions of the statute.
III. Counsel for respondents says that the provisions of section 213, of the Compiled Laws
of Nevada are only directory. Respondents, however, by their acts, treated it as mandatory, for
they say that respondents did offer to prove that, subsequent to the admitted abandonment of
the Portland mining claims, respondents did file additional certificates of location. But
respondents failed to state that appellants located the Justice and Liberty claims as relocations
of the Portland claim after the admitted abandonment of the Portland claim, and this, too,
before the institution of this action, and before respondents attempted to comply with the
provisions of section 213, supra.
By the Court, Talbot, C. J.:
The respondents, who were plaintiffs in the district court, brought this action to recover
certain claims called the Unions, with designated numbers, situated in the Manhattan
Mining District, and which had been located on the 24th and 25th days of July, 1905. It was
also stated in the complaint that the defendants were breaking down and removing large
quantities of ore from the premises, and the prayer was for the recovery of possession, for an
injunction, and for $10,000 damages. The defendants, who are the appellants here, set up
ownership and possession of the ground in themselves under the Liberty and Justice mining
claims, located September 29, 1905. The contending parties alleged that the respective
locations on which they relied had been made on the unappropriated mineral lands of the
United States.
30 Nev. 114, 127 (1908) Nash v. McNamara
been made on the unappropriated mineral lands of the United States. This allegation in the
complaint was denied by the answer. Upon the trial, after evidence had been introduced
regarding the location of these claims, the defendants offered to prove that on July 1, 1905,
twenty-four days prior to the location of the Unions and ninety-one days before the location
of the Liberty and Justice, three men, Kopenhaver, Meissner, and Lawson, had made valid
locations on the unappropriated mineral lands of the United States of claims called the
Portlands, and numbered, and which covered the ground in dispute, and that these were
valid, existing claims at the time the Unions, upon which respondents rely, were located.
After argument and consideration the learned district judge sustained an objection to this
offer, and, although he did not allow the defendants to prove that at the time the Union claims
were located the ground was covered by prior and existing valid locations, he made a finding
that the Unions were located upon the unappropriated public domain of the United States, and
entered judgment in favor of respondents. Of the forty-two specifications of error, a number
relate directly or indirectly to the rejection of this offer and to the making of this finding, and
the controlling question involved is whether a junior location made upon ground covered by a
valid existing senior location will prevail over one made after a failure to do the required
work on the senior location, when the statute of limitations has not run in favor of either.
Upon the trial, and also upon the hearing in this court, respondents relied upon the case of
Lavagnino v. Uhlig, 198 U. S. 443, 25 Sup. Ct. 716, 49 L. Ed. 1119, contending that the facts
there are similar to those in the present case, and that the law applicable to them has been
settled by the latest expression of the highest tribunal. It is admitted by counsel for appellants
that the language in the decision in that case is in conflict with Belk v. Meagher, 104 U. S.
279, 26 L. Ed. 735, and other decisions of that and other courts favorable to appellants; but it
is claimed that it is overruled by a later decision of that court in Brown v. Gurney, 201 U. S.
184, 26 Sup. Ct. 509, 50 L. Ed. 717. Recognizing that it is the special prerogative of the
Supreme Court of the United States to finally construe federal statutes, and that its
opinions relating to other matters are entitled to special consideration as coming from the
highest and ablest tribunal, it becomes important to examine and analyze the conflicting
decisions of that court bearing on the issue before us, and to determine which are most in
consonance with reason, justice, legal principles, and the statutes relating to the location
of mining claims.
30 Nev. 114, 128 (1908) Nash v. McNamara
to finally construe federal statutes, and that its opinions relating to other matters are entitled
to special consideration as coming from the highest and ablest tribunal, it becomes important
to examine and analyze the conflicting decisions of that court bearing on the issue before us,
and to determine which are most in consonance with reason, justice, legal principles, and the
statutes relating to the location of mining claims.
Congress, in the proper exercise of its control over the public domain, by act of May 10,
1872, c. 152, sec. 2 (section 2319 of the Revised Statutes [U. S. Comp. Stats. 1901, p. 1424]),
provided that all valuable mineral deposits in lands belonging to the United States are free
and open to exploration, occupation and purchase by citizens and those who have declared
their intention to become such, under regulations prescribed by law. Section 2322 [page
1425] provides that the locators of all mining claims, so long as they comply with the laws
of the United States and with state and local regulations not in conflict with the laws of the
United States governing their possessory title, shall have the exclusive right and enjoyment of
all the surface included within their lines of location and of all veins, lodes and ledges
throughout their entire depth, the top or apex of which lies inside of such surface lines
extended downward vertically within planes drawn through parallel end lines. Section 2324
[page 1426] provides that the location must be distinctly marked on the ground so that its
boundaries can be readily traced; * * * that on each claim located after the 10th day of May,
1872, and until a patent has been issued therefor, not less than one hundred dollars worth of
work shall be performed or improvements made during each year; * * * and upon a failure to
comply with these conditions the claim or mine upon which such failure occurred shall be
open to relocation in the same manner as if no location had ever been made; provided that the
original locators, their heirs, assigns, or legal representatives have not resumed work upon the
claim after failure and before such location.
Section 208 of the Compiled Laws of Nevada directs that any person, a citizen of the
United States, or one who has declared his intention to become such, who discovers a vein
or lode, may locate a claim by defining the boundaries thereof in the manner prescribed
and by posting at the point of discovery a notice containing the name of the lode or claim,
the name of the locator or locators, the date of the location, the number of linear feet
claimed in length along the course of the vein, with the width on each side of the center,
and the general course of the vein or lode.
30 Nev. 114, 129 (1908) Nash v. McNamara
declared his intention to become such, who discovers a vein or lode, may locate a claim by
defining the boundaries thereof in the manner prescribed and by posting at the point of
discovery a notice containing the name of the lode or claim, the name of the locator or
locators, the date of the location, the number of linear feet claimed in length along the course
of the vein, with the width on each side of the center, and the general course of the vein or
lode. Section 209, as amended by Stats. 1901, p. 97, c. 93, sec. 2, requires that before the
expiration of ninety days from the posting of notice of location the locator shall sink a
discovery shaft upon the claim of the depth of at least ten feet or its equivalent.
It is the contention of the appellants that the Portland locations, if made on the 1st day of
July, as they offered to prove, withdrew the land from location for ninety days, during which
time the respondents could initiate no rights upon it; that as the ten feet of work required by
the state statute was not done upon these claims within ninety days after they were located,
upon the expiration of that period they became, similarly as upon a failure to do the annual
work required by the federal statute, subject to relocation by the appellants at the time they
made their locations. As the language of the opinion in the Uhlig case stands opposed, not
only to the law as established by Belk v. Meagher and as held by lawyers and miners for a
quarter of a century, but to numerous decisions of the court, state and federal, in the mining
states, and to others of the Supreme Court of the United States, it will be advantageous to
consider the Belk case as the leading one, representative of numerous others, and compare the
two.
The facts in both are similar to the one before the court, in that the contest here is between
a claim alleged to have been located upon ground covered by a prior, valid, existing location,
and a relocation made upon the same ground after the expiration of the time for doing the
required work on the senior claim. In regard to the periods of time between the making of the
locations of the contestants, the Belk case is more like the one before the court than
Lavagnino v. Uhlig. In the Belk case it was conceded by both parties that the original or
senior claims lapsed on the 1st day of January, 1S77, because of failure to perform the
annual work.
30 Nev. 114, 130 (1908) Nash v. McNamara
original or senior claims lapsed on the 1st day of January, 1877, because of failure to perform
the annual work. Belk made the location under which he claimed on the 19th day of
December, 1876, and did all that was necessary to perfect his rights, if the premises were
open to location at that time. His entry on the property was peaceful. On February 21, 1877,
Meagher made his location, doing all that was necessary to perfect his rights, if the premises
were then open to location. Here the difference in the respective dates of location of the
contending claims is about seventy days, as in the Belk case. The two Uhligs, evidently at an
expense of not less than $1,600 for the annual work, had been located and maintained for
nine years previous to the location of the claims upon which Lavagnino relied. The statute of
limitations applicable to such cases in Utah is seven years. In Nevada it is five years for real
estate and two years for mining claims. (Comp. Laws, 3706.) This difference of time,
amounting to nearly nine years, a period longer than the one specified in the statute, and
seventy days, is sufficient to distinguish the Uhlig case from the present one, and also from
the Belk case, which is more nearly in point. State statutes of limitation relating to mining
claims are recognized by section 13 of the act of Congress of July 9, 1870. Properly Uhlig
was given his claims by the Supreme Court of Utah, and that judgment was affirmed by the
Supreme Court of the United States; but, should force be given to all the language used in
that case by the highest tribunal, it conflicts with the Belk case and other cases.
The following extracts from the unanimous opinion of the court, written by the Chief
Justice, in Belk v. Meagher, are appropriate: Mining claims are not open to relocation until
the rights of a former locator have come to an end. A relocator seeks to avail himself of
mineral in the public lands which another has discovered. This he cannot do until the
discoverer has in law abandoned his claim and left the property open for another to take up.
The right of location upon the mineral lands of the United States is a privilege granted by
Congress; but it can only be exercised within the limits prescribed by the grant. A location
can only be made where the law allows it to be done.
30 Nev. 114, 131 (1908) Nash v. McNamara
only be made where the law allows it to be done. Any attempt to go beyond that will be of no
avail. Hence a relocation on lands actually covered at the time by another valid and subsisting
location is void; and this, not only against the prior locator, but all the world, because the law
allows no such thing to be done. It follows that the relocation of Belk was invalid. * * * The
next inquiry is whether the attempted location in December became operative on the 1st of
January, so as to give Belk the exclusive right to the possession and enjoyment of the claim
after that. We think it did not. The right to possession comes only from a valid location. * * *
A location is not made by taking possession alone, but by working on the ground, recording,
and doing whatever else is required for that purpose by the acts of Congress and the local
laws and regulations. As in this case all these things were done when the law did not allow it,
they are as if they had never been done. On the 19th of December the right to the possession
of this property was just as much withdrawn from the public domain as the fee is by a valid
grant from the United States under the authority of law, or the possession by a valid and
subsisting homestead or preemption entry. As the United States could not at the time give
Belk the right to take possession of the property for the purpose of making his location,
because there was an existing outstanding grant of the exclusive right of possession and
enjoyment, it would seem necessarily to follow that any tortious entry he might make must be
unavailing for the purposes of a valid location of a claim under the act of Congress. A
location, to be effectual, must be good at the time it is made. When perfected, it has the effect
of a grant by the United States of the right of present and exclusive possession. * * * Here
Congress has said in unmistakable language that what has been once located under the law
shall not be relocated until the first location has expired.
In the Uhlig case, which was by a divided court, no intention of overruling any conflicting
decision is expressed; but, in referring to certain text-books, it was said: Statements are
found which seemingly indicate that in the opinion of the writers, on the forfeiture of a
senior mining location, quoad a junior and conflicting location, the area of conflict
becomes in an unqualified sense unoccupied mineral lands of the United States without
inuring in any way to the benefit of the junior location.
30 Nev. 114, 132 (1908) Nash v. McNamara
the writers, on the forfeiture of a senior mining location, quoad a junior and conflicting
location, the area of conflict becomes in an unqualified sense unoccupied mineral lands of the
United States without inuring in any way to the benefit of the junior location. But in the
treatises referred to no account is taken of the effect of the express provisions of Rev. Stats.
sec. 2326 [U. S. Comp. Stats. 1901, p. 1430]. Moreover, when the cases to which the
text-writers referred as sustaining the statements made are examined, it will be seen that they
were decided either before the passage of the adverse claim statutes of 1872, or concerned
controversies between the senior and junior locators, or depended upon the provisions of state
statutes. As Belk v. Meagher does not come within any of these classes, it may be inferred
that by inadvertence the writer of the opinion did not have that case in mind and that the court
did not intentionally overrule the principles laid down in that and followed in other cases.
This inference finds further support in the language of that tribunal in Mining Co. v.
Tunnel Co., 196 U. S. 342-3, 25 Sup. Ct. 266, 49 L. Ed. 501, submitted at the same term, in
Brown v. Gurney, 201 U. S. 191, 26 Sup. Ct. 509, 50 L. Ed. 717, determined a year later, and
in Clipper Mining Co. v. Eli Mining Co., 194 U. S. 226, 24 Sup. Ct. 634, 48 L. Ed. 944,
decided one year previously, in which the court said: It will be seen that section 2322, Rev.
Stats. [U. S. Comp. Stats. 1901, p. 1425], gives to the owner of a valid lode location the
exclusive right of possession and enjoyment of all the surface included within the lines of the
location. That exclusive right of possession forbids any trespass. No one without his consent,
or at least his acquiescence, can rightfully enter upon the premises or disturb its surface by
sinking shafts or otherwise. It was the judgment of Congress that, in order to secure the fullest
working of the mines and the complete development of the mineral property, the owner
thereof should have the undisturbed possession of not less than a specified amount of surface.
That exclusive right of possession is as much the property of the locator as the vein or lode by
him discovered and located. In Belk v. Meagher, 104 U. S. 279, 2S3, 26 L. Ed. 735, it was
said by Chief Justice Waite that 'a mining claim perfected under the law is property in the
highest sense of that term'; and in a later case {Gwillim v. Donnellan, 115 U. S. 45, 49, 5
Sup. Ct. 1112, 29 L. Ed. 34S) he adds: 'A valid and subsisting location of mineral lands,
made and kept up in accordance with the provisions of the statutes of the United States,
has the effect of a grant by the United States of the right of present and exclusive
possession of the lands located.
30 Nev. 114, 133 (1908) Nash v. McNamara
Meagher, 104 U. S. 279, 283, 26 L. Ed. 735, it was said by Chief Justice Waite that a mining
claim perfected under the law is property in the highest sense of that term'; and in a later case
(Gwillim v. Donnellan, 115 U. S. 45, 49, 5 Sup. Ct. 1112, 29 L. Ed. 348) he adds: A valid
and subsisting location of mineral lands, made and kept up in accordance with the provisions
of the statutes of the United States, has the effect of a grant by the United States of the right
of present and exclusive possession of the lands located. If, when one enters on land to make
a location, there is another location in full force which entitles its owner to the exclusive
possession of the land, the first location operates as a bar to the second.'
In St. Louis Mining Co. v. Montana Mining Co., 171 U. S. 650, 655, 19 Sup. Ct. 63, 43 L.
Ed. 320, the present Chief Justice declared that, Where there is a valid location of a mining
claim, the area becomes segregated from the public domain and the property of the locator.'
Nor is this exclusive right of possession and enjoyment' limited to the surface, nor even to
the single vein whose discovery antedates and is the basis of the location. It extends (so reads
the section) to all veins, lodes and ledges throughout their entire depth, the top or apex of
which lies inside of such surface lines extended downward vertically.' In other words, the
entire body of ground, together with all veins and lodes whose apexes are within that body of
ground, become subject to an exclusive right of possession and enjoyment by the locator. And
this exclusive right of possession and enjoyment continues during the entire life of the
location, or, in the words of Chief Justice Waite, just quoted, while there is a valid and
subsisting location of mineral lands, made and kept up in accordance with the provisions of
the statutes of the United States.' There is no provision for, no suggestion of, a prior
termination thereof. * * * And, if the surface is open to the entry of whoever seeks to explore
for veins, his possession can be entirely destroyed. In this connection it may be well to notice
the last sentence in section 2322, * * * which is a limitation on such right, and reads: And
nothing in this section shall authorize the locator or possessor of a vein or lode which
extends in its downward course beyond the vertical lines of his claim to enter upon the
surface of a claim owned or possessed by another.' * * * The difficulty with the case
presented by the plaintiff in error is that under the findings of fact we must take it that
the entries of the locators of these several lode claims upon the placer grounds were
trespassers, and as a general rule no one can initiate a right by means of a trespass.
30 Nev. 114, 134 (1908) Nash v. McNamara
authorize the locator or possessor of a vein or lode which extends in its downward course
beyond the vertical lines of his claim to enter upon the surface of a claim owned or possessed
by another.' * * * The difficulty with the case presented by the plaintiff in error is that under
the findings of fact we must take it that the entries of the locators of these several lode claims
upon the placer grounds were trespassers, and as a general rule no one can initiate a right by
means of a trespass. (Atherton v. Fowler, 96 U. S. 513, 24 L. Ed. 732; Trenouth v. San
Francisco, 100 U. S. 251, 25 L. Ed. 626; Haws v. Victoria Copper Mining Company, 160 U.
S. 303, 16 Sup. Ct. 282, 40 L. Ed. 436.) See, also, Cosmos Exploration Company v. Gray
Eagle Company, 112 Fed. 4, 17, 50 C. C. A. 79, 93, 61 L. R. A. 230, in which the court said:
No right can be initiated on government land which is in the actual possession of another by
a forcible, fraudulent, or clandestine entry thereon. (Cowell v. Lammers [C. C.] 21 Fed. 200,
202; Nevada Sierra Oil Co. v. Home Oil Co. [C. C.] 98 Fed. 674, 680; Hosmer v. Wallace, 97
U. S. 575, 579, 24 L. Ed. 1130; Trenouth v. San Francisco, 100 U. S. 251, 25 L. Ed. 626;
Mower v. Fletcher, 116 U. S. 380, 385, 386, 6 Sup. Ct. 409, 29 L. Ed. 593; Haws v. Mining
Company, 160 U. S. 303, 317, 16 Sup. Ct. 282, 40 L. Ed. 436; Nickals v. Winn, 17 Nev. 188,
193; McBrown v. Morris, 59 Cal. 64, 72; Goodwin v. McCabe, 75 Cal. 584, 588, 17 Pac. 705;
Rourke v. McNally, 98 Cal. 291, 33 Pac. 62.)'
Cases supporting this legal principle, including Brown v. Killabrew, 21 Nev. 438, are cited
in the decision of the District Court of Nye County rendered last year in Ford v. Brown.
The opinion in the Uhlig case quotes at length and relies upon section 2326 of the Revised
Statutes, Act Cong. May 10, 1872, c. 152, sec.7, 17 Stats. 93 [U. S. Comp. Stats. 1901, p.
1430]. This section relates to the procedure where an adverse claim is filed upon an
application being made for patent. There is nothing in its language as to whether a second
location, made before, may prevail over a third location, made after, failure to do the required
work, and nothing is stated in regard to the time when claims become subject to relocation,
and it does not in any way designate how or when the rights of parties by location or
relocation may be acquired, and consequently has no bearing upon the question which
was before the court, and lends no support to the conclusion reached.
30 Nev. 114, 135 (1908) Nash v. McNamara
to relocation, and it does not in any way designate how or when the rights of parties by
location or relocation may be acquired, and consequently has no bearing upon the question
which was before the court, and lends no support to the conclusion reached. The part of this
section upon which the opinion seems to be based enacts that it shall be the duty of the
adverse claimant within thirty days after filing his claim to commence proceedings in a court
of competent jurisdiction to determine the question of right of possession and prosecute the
same with reasonable diligence to final judgment and a failure to do so shall be a waiver of
his adverse claim. This simply provides that by failure to assert them a claimant may lose
any rights which he has in the same way that a defendant in any action may lose his by default
and failure to answer, and neither litigant in that case had made any such default or failure. It
relates to how rights already obtained may be defended, determined, preserved, and forfeited,
but not as to how those rights may be acquired by location or otherwise. This was not passed
later than the other sections of the Revised Statutes mentioned, but at the same time as a part
of the same act of May 10, 1872. As there is nothing in its language relating to the time or
method of locating claims, we are unable to perceive how it can in any way amend, modify,
repeal, or affect the language in section 2322, providing that the locators of all mining
locations, so long as they comply with the laws of the United States and with state, territorial
and local regulations not in conflict with the laws of the United States governing their
possessory title * * * shall have the exclusive right of possession and enjoyment of all the
surface included within the lines of their locations and of all veins, lodes and ledges
throughout their entire depth, the top or apex of which lies inside their surface lines extended
downward vertically and within planes running through parallel end lines, or the language in
section 2324 that the location must be distinctly marked on the ground so that its boundaries
can be readily traced; that on each claim located after the 10th of May, 1872, and until a
patent has been issued therefor, not less than one hundred dollars worth of labor shall be
performed or improvements made during each year; * * * and that upon the failure to
comply with these conditions the claim or mine upon which such failure occurred shall be
open to relocation in the same manner as if no location of the same had ever been made."
30 Nev. 114, 136 (1908) Nash v. McNamara
ments made during each year; * * * and that upon the failure to comply with these conditions
the claim or mine upon which such failure occurred shall be open to relocation in the same
manner as if no location of the same had ever been made.
For the purpose of making the time uniform for doing the annual work, and for the
relocation of claims on which such work is not performed, section 2324 was amended eight
years later by the act of January 22, 1880, c. 9, sec. 2, 21 Stats. 61 [U. S. Comp. Stats. 1901,
p. 1426], so as to provide that the period within which the work is required to be done
annually on all unpatented mining claims shall commence on the 1st day of January
succeeding the date of location. In the Uhlig opinion the court said: It cannot be denied that
under section 2326, if before abandonment or forfeiture of the Levi P. claim, the owners of
the Uhlig locations had applied for a patent, and the owners of the Levi P. had not adversed
the application, upon an establishment of a prima facie right in the owners of the Uhlig
claims, an indisputable presumption would have arisen that no conflict claims existed to the
premises described in the location notice. (Gwillim v. Donnellan, 115 U. S. 45, 51, 5 Sup. Ct.
1110, 29 L. Ed. 348.) And the same result would have arisen had the owner of the Levi P.
adversed the application for a patent based upon the Uhlig locations and failed to prosecute
and waived such adverse claim. In both of the supposed instances the necessary consequence
would have been to conclusively determine in favor of the applicant, so far as the rights of
third persons were concerned, that the land was not unoccupied public land of the United
States, but, on the contrary, as to such persons, from the time of the location by the applicant
for the patent, was land embraced within such location and not subject to be acquired by
another person. And this result, flowing from the failure of the owner of a subsisting senior
location to adverse an application for patent by the owner of an opposing location, or his
waiver if an adverse claim is made, must, as the greater includes the lesser, also arise for the
forfeiture of the claim of the senior locator before an application for patent is made by the
conflicting locator, and the consequent impossibility of the senior locator to successfully
adverse after the forfeiture is complete.
30 Nev. 114, 137 (1908) Nash v. McNamara
impossibility of the senior locator to successfully adverse after the forfeiture is complete. Of
course, the effect of the construction which we have thus given to section 2326 of the Revised
Statutes [U. S. Comp. Stats. 1901, p. 1430] is to cause the provisions of that section to qualify
sections 2319 and 2324 [pages 1424, 1430], thereby preventing mineral lands of the United
States, which have been the subject of conflicting locations, from becoming, quoad the
claims of third parties, unoccupied mineral lands by the mere forfeiture of one of such
locations.
By this language it is correctly stated at the beginning that where there are two claimants,
and one applies for patent, the other may lose his rights under section 2326 by failing to
adverse. Under the peculiar and unusual circumstances, the result in the Uhlig case was
correct, and could have been justified on another ground; but we are unable to perceive the
force and correctness of the conclusion, on which the opinion was based, that because a
claimant may waive his rights in proceedings for patent under section 2326, and because a
senior locator may forfeit his, that therefore a mining claim is subject to relocation, or, what
is the same thing, a junior or second location may be initiated on the ground as soon as the
first location has been made, instead of upon the failure of the first locator to perform the
required work as enacted by the statute. By a literal construction what is called a
modification, we think, in effect would be a judicial repeal of a plain enactment, supported
only by reference to another section which has no application. The language used is
equivalent to saying that because a claimant may waive his right under section 2326 by failing
to adverse, and a senior locator may forfeit his, therefore mining locations do not become
subject to relocation upon the failure to do the required work as provided by section 2324, but
that they may be relocated and rights initiated at any prior time.
The sections relating to proceedings upon application for patent are for the purpose of
enabling claimants to obtain a final grant of the legal title from the government for ground
previously acquired and to avoid any necessity of doing the annual work.
30 Nev. 114, 138 (1908) Nash v. McNamara
annual work. So long as one hundred dollars is expended each year upon the claim, as
required by the act of Congress, the owner's right to exclusive possession and to extract and
exhaust the ore is as complete as if he held a patent, for which he may never apply unless he
desires. Not infrequently ore worth millions of dollars is taken from mines which are finally
abandoned as worthless and no application to patent them is ever made. The right to obtain
patent depends upon the making of a location or upon having held possession during the
period of the statute of limitations; but the making of the location and the time for making it
do not depend upon the section regulating the proceedings upon application for patent which
the claimant may never institute.
Surely it will not be contended that Congress has not the power to regulate the disposition
of the unappropriated public mineral lands. The statute having clearly provided that these are
open to location by citizens of the United States and those who have declared their intention
to become such, and that the locators of mining claims, upon complying with the laws, shall
have the exclusive right of possession and enjoyment of the surface included within the lines
of their locations, and that claims shall be subject to relocation upon the failure to do the
required work, these provisions ought not to be nullified or repealed by the courts because
there is another section providing that a claimant may waive his right by a failure to adverse
when application has been made for a patent, or because a senior locator or others who are
not parties to the litigation may forfeit their rights by failing to do the required work. It is the
duty of courts to construe and interpret the laws; but they should be careful not to encroach
upon the legislative department, or set aside statutes, federal or state, except when they are
clearly in conflict with the Constitution. As the Uhlig case was one on adverse proceedings
against an applicant for patent, the decision being based on the statute regulating these,
anything the court said regarding the rights or forfeiture of an applicant in such proceedings
may be considered as dictum in the present case, which is not on such proceedings. To
enforce all the statements in that opinion in cases generally, like the one at bar, would
necessitate the setting aside of the provisions in other sections of the act of May 10,
1S72, to which reference has been made, and which were plainly followed and enforced
by the Belk case and other cases.
30 Nev. 114, 139 (1908) Nash v. McNamara
like the one at bar, would necessitate the setting aside of the provisions in other sections of
the act of May 10, 1872, to which reference has been made, and which were plainly followed
and enforced by the Belk case and other cases. The senior locator in the Uhlig case waived his
interests by failing to appear, and was not in court or trying to assert them, and anything said
regarding the forfeiture of his rights was incidental.
If the plain provisions of the statute are to be overthrown, after having been enforced by
numerous courts and universally accepted for a generation, not only will vested rights be
endangered, but, as said in that case: To hold that, before the former location has expired, an
entry may be made and the several acts done necessary to perfect a relocation will be to
encourage unseemly contests about the possession of the public mineral-bearing lands, which
would almost necessarily be followed by breaches of the peace. Then, instead of claims
becoming subject to relocation upon the 1st day of January and after failure to do the annual
assessment, the ground might be relocated before there was any such failure, and a day, a
month, or a year previously. If the junior locator may acquire rights by entering the ground
before there is any failure to do the required work, and while the statute gives the exclusive
possession to the senior locator, any number of locations may be made and rights initiated at
any time prior to the one at which the statute states that the claim shall be subject to
relocation, and the person who follows the statute and makes the relocation on the 1st day of
January will be too late, and may find that the right to locate after failure to do the work has
been acquired by one of several others in the order of their locations previously made and
before the work was required to be done by the original locator. The one who located six or
eleven months before the time in which the work was required to be done had expired would
have a better right than the one who had located one or five months in advance of such time;
but, if the former failed to do the required work on his part, the right would become initiated
in the latter, which would prevail over anyone who relocated the ground on the 1st day of
January, the time in which it is made relocatable by statute if the annual work is not
done.
30 Nev. 114, 140 (1908) Nash v. McNamara
the ground on the 1st day of January, the time in which it is made relocatable by statute if the
annual work is not done. Fraud would be encouraged, and the door opened for the evasion of
the annual work, the purpose of which is to require the owner to develop the claim at least to
that extent, or render his right subject to forfeiture and the claim to relocation. If others could
initiate relocations on valid and existing claims, the question would arise whether the owner
could relocate before they had lapsed, and if he could not, as an exception to the rule that
others could, he would be tempted to have some one relocate for him in order to avoid doing
the work. For the reasons stated, and as the Uhlig opinion does not mention Belk v. Meagher,
and does not express an intention to overrule the principle therein announced, and affirmed in
other decisions rendered about the same time, we do not think a result so revolutionary was
intended to apply in cases generally, and that the Uhlig decision is applicable only to its own
particular circumstances. It has already been so held, or that at most it is not controlling
further than in actions in connection with proceedings for obtaining patents, by a number of
courts and text-writers, and, so far as we are aware, by all who have determined that question.
In Montagne v. Labay, 2 Alaska, 575, the Uhlig case was examined, and it was held that it
applies only in adverse proceedings, and only within its own limited sphere of exceptional
facts, and Belk v. Meagher was followed, and held not to be overruled. In Hoban v. Boyer, 37
Colo. 185, 85 Pac. 837, decided more than a year after the Uhlig case, the Supreme Court of
Colorado continued to adhere to the rule in Belk v. Meagher. In Lockhart v. Farrell (Utah) 86
Pac. 1081, the Supreme Court of Utah, the one by which Levagnino v. Uhlig had been
determined, said regarding the decision by the Supreme Court of the United States in that
case: Giving the Lavagnino case the construction contended for by the respondent is, in
effect, to make it overrule Belk v. Meagher and Gwillim v. Donnellan, and to render it in
conflict with the decisions of both federal and state courts on the question. We do not believe
any such result was intended by that decision.
30 Nev. 114, 141 (1908) Nash v. McNamara
was intended by that decision. Likewise, to give it the meaning contended for renders it in
conflict with the more recent decision of Brown v. Gurney. In a note in 68 L. R. A. 842-845,
the Belk, Uhlig, and other cases are considered, and at page 837 appears the statement that it
is difficult to reconcile the decisions holding that one who relocates the claim after the
original locator is in default in his assessment work will prevail over one who attempted to
relocate the claim before the time for the performance of the assessment work had expired
with the principle of the decision of the Supreme Court of the United States in the recent case
of Lavagnino v. Uhlig, although it is not probable that the doctrine of these cases will be
disturbed in consequence of that decision.
Numerous decisions in the state and federal courts in the mining states and territories from
the Mexican border to the Canadian line, apparently without exception, support Belk v.
Meagher and Clipper Mining Co. v. Eli Mining Company, supra, and Gwillim v. Donnellan,
115 U. S. 49, 5 Sup. Ct. 1112, 29 L. Ed. 348, in which it was said: If, when one enters on
land to make a location, there is another location in full force, which entitles its owner to the
exclusive possession of the land, the first location operates as a bar to the second. Quoting
with approval from the opinion in the Belk case, Justice Hawley, speaking for this court, in
Rose v. Richmond, 17 Nev. 57, said: A relocation on lands actually covered at the time by
another valid and subsisting location is void; and this, not only against the prior locator, but
all the world, because the law allows no such thing to be done. In one end of the balance we
have only the Uhlig case, based on a section of the Revised Statutes which has no bearing on
the question involved; and against this we have the numerous decisions, cited and uncited,
supporting Belk v. Meagher, including our own in Rose v. Richmond Mining Co., and the
statutes which are clearly and directly applicable, and which would have to be overruled in
order to maintain the judgment.
After the court had sustained an objection to the offer of appellants to prove that the
notices of location were posted on the Portlands, and that they were valid, existing claims,
covering the ground at the time the Unions were located, they asked the court to admit
the evidence subject to objection and to a motion to strike it out, so that its admissibility
could be considered more carefully later; but the court refused to receive it, and
consequently there is nothing in the record to show what acts were performed toward
locating the Portlands.
30 Nev. 114, 142 (1908) Nash v. McNamara
covering the ground at the time the Unions were located, they asked the court to admit the
evidence subject to objection and to a motion to strike it out, so that its admissibility could be
considered more carefully later; but the court refused to receive it, and consequently there is
nothing in the record to show what acts were performed toward locating the Portlands. If they
were located by posting the requisite notices on July 1, 1905, and by the proper marking of
their boundaries within ninety days thereafter, the right to the ground covered by them would
relate back to the time of the posting of the notices, and would in effect have been a
segregation of the land from the public domain, so that the Unions could not have been
validly located or initiated upon it on the 24th and 25th days of July, nor until after there was
a failure to do the work required by the state statute to be done within ninety days from the
posting of the notices. But if the Portland notices were so posted, and the claims were not
staked or monumented within ninety days thereafter, then we think the locations were not
completed under the act of Congress and the state statute, and, the land not having been
marked within that period, so that its boundaries could be traced, it was not segregated from
the public domain, although such posting carried the right to define the boundaries within
ninety days. The period for this purpose has since been shortened by an act of the legislature
to twenty days. (Stats. 1907, p. 419, c. 194.)
Erhart v. Boaro, 113 U. S. 530, 5 Sup. Ct. 561, 28 L. Ed. 1113, cited by appellants, is
distinguishable; for it was said in the statement of facts there that the evidence tended to
show that, within ninety days from the discovery of the lode by Carroll, one French, on behalf
of the plaintiff and Carroll, secretly caused the boundaries of the claim to be marked. It was
correctly held there that the forcible eviction of the discoverer and locator from the vein or
lode before the sinking of the shaft required by the Colorado statute and the prevention of his
reentry by threats of violence excuse him, as against the party keeping him out of possession,
so long as he is kept out of it, from sinking the shaft required. There is no doubt that, if the
locator discovered a vein and filed proper notices on the Portlands on the unappropriated
public domain, he was entitled to go on the ground and mark the boundaries, and in doing
so float the locations and do the required work; but, if he never did anything but post the
notices, it would seem that no piece of ground was ever defined for segregation from the
public domain, so as to notify or warn off others, or prevent the initiation of locations
which would be good against a later one.
30 Nev. 114, 143 (1908) Nash v. McNamara
notices on the Portlands on the unappropriated public domain, he was entitled to go on the
ground and mark the boundaries, and in doing so float the locations and do the required work;
but, if he never did anything but post the notices, it would seem that no piece of ground was
ever defined for segregation from the public domain, so as to notify or warn off others, or
prevent the initiation of locations which would be good against a later one.
We find no errors in the record, except those resulting in different ways from the
conclusion of the district court to adhere to the opinion in Lavagnino v. Uhlig. Upon the trial
objection was sustained to evidence regarding the sinking of a shaft ten feet deep, or its
equivalent, on the Unions, and the filing of certificates of location was objected to and
withdrawn, because the work was not done and the certificates were not filed before this
action was begun; and it is contended that proof of this work and the filing of those
certificates were essential to plaintiffs' recovery. There was no supplemental complaint or
pleading alleging that the work was done or completed or that the certificates were filed after
the commencement of the suit to warrant its admission. We have recently held in the case of
Ford v. Campbell, 29 Nev. 578, that the filing of a certificate of location is not essential to
the validity of the claim, but relates to matters of proof. If the Portlands were not valid and
existing locations at the time the Unions were located, and the Unions were located on the
unappropriated public domain by posting notices and marking their boundaries in accordance
with law, respondents would have become entitled to hold them for the ninety days allowed
for doing the work, and by instituting this suit prior to that time could recover a judgment for
possession and damages to the end of that period. If, under these circumstances, respondents
failed to do the required work within ninety days, the claims would become subject to
relocation by the appellants or others.
The court sustained objections to a series of questions by which it may be surmised that
defendants sought to prove, upon the cross-examination of plaintiffs' witnesses, that the
Portland notices were posted on the ground at the time the Unions were located.
30 Nev. 114, 144 (1908) Nash v. McNamara
Unions were located. The court properly limited the cross-examination to the matters brought
out in the direct examination. This did not prevent defendants from making the witnesses
their own after plaintiffs had closed their case in chief, nor the court from then allowing, in its
discretion, a rigid examination if they were hostile.
The judgment is set aside, and the cause is remanded for a new trial, upon which
defendants will be allowed to introduce evidence to show that at the time the Unions were
located the ground was covered by the Portlands as valid and existing locations made by
posting the requisite notices and by the defining of their boundaries within ninety days
thereafter, and that by failure to do the work required by the state statutes the Portlands had
lapsed at the time the Liberty and Justice claims were located.
Norcross, J., concurring:
I concur in the opinion of the Chief Justice, and express the following additional views,
based upon my conception of the statutes and the decisions of the highest courts:
The right of respondents to offer proof that the Portland claims were valid and subsisting
locations at the time the Union locations were made does not depend, as contended, upon any
relations of privity between the locators of the Portland claims and themselves. They have the
right to offer such proof, in order to establish the fact, if they can, that they have complied
with the federal and state law as relocators of a prior existing claim, which had become, under
the law, subject to relocation. Both the state and federal statutes have provided for the
relocation of claims which have become subject to such relocation by reason of the failure to
do the location work or annual assessment work provided for by law. A distinction is thus
recognized, both by the federal and state laws, between a location and a relocation. If persons
are claiming rights to the public domain as relocators, necessarily their rights depend upon the
fact that a prior existing claim had become subject to forfeiture, and that by entering upon the
ground and relocating it they had effected such forfeiture of the rights of the prior locators
and established rights in themselves.
30 Nev. 114, 145 (1908) Nash v. McNamara
locators and established rights in themselves. They can only establish their right as relocators
by proving the prior location, that it had become subject to forfeiture, and that they had made
such forfeiture effectual by complying with acts necessary to make a valid relocation. Where
the right to make a location is initiated by the making of a discovery and the posting of a
proper notice, but no further act is done to perfect the location, and thus segregate the same
from the public domain, the ground is not subject strictly to relocation, for no prior valid
location had been perfected. In such a case the land does not cease to be a part of the public
domain, never having been segregated therefrom, and thus it remains open to location. It
frequently happens that a person upon making a discovery posts a location notice, and in
common parlance this is called a location; but legally it is not a location, and may never
become such. The first discoverer, who posts a valid notice, initiates a right which he is
protected in and which he can follow up by doing the other acts necessary to perfect a valid
location; but until he has done those other acts he has not acquired the right of exclusive
possession given him by the statute upon a perfected location, which will have the effect of
cutting off any inchoate right in another initiated in the meantime.
Sweeney, J., being interested in the result of the litigation, did not participate in the
foregoing decision.
____________
30 Nev. 146, 146 (1908) Kirman v. Johnson
[No. 1685.]
RICHARD KIRMAN, Respondent, v. J. M. JOHNSON,
Bankrupt, and H. HARRIS, Trustee, Appellants.
1. AppealAffirmanceOn MotionDefective Record. Supreme Court Rule 8 (see pages 11, 12, ante)
provides that objection to the transcript or statement on appeal, or any technical objection to the record
must be made before argument. Comp. Laws, 3862, 3863, provide that, if an appellant elect to have the
original papers certified as the record on appeal, they shall be attached together and the pages
numbered, and shall be certified by the clerk or by the respective parties or their attorneys to be such
originals and to constitute in whole or in part the record on appeal. Section 3431 provides that a copy of
the statement shall be annexed to a copy of the judgment roll, if the appeal be from the judgment, or to
a copy of the order, if from an order. Section 327 of the civil practice act (Comp. Laws, 3422)
authorizes the supreme court to review judgments, etc., from which appeals may be taken as
prescribed by law, and not otherwise. On appeal on the original papers they were neither numbered
nor indexed, and the certificate of the clerk was not attached to anything, and though the notice of
appeal stated that it was from the judgment and order denying a new trial, the papers failed to show any
order with reference to such motion or any copy thereof, nor did the certificate of the clerk mention
such order. The statement appeared to have been filed as a statement for a new trial, and the record
contained no stipulation that it might be considered as a statement on appeal. Held, that the order, if
made, denying a motion for new trial was not before the court; that, in the absence of timely objection
under the rule, the judgment roll would be considered. No objection appearing upon the face thereof,
judgment affirmed.
On Petition for Rehearing.
1. Appeal and ErrorRecordContents. In the absence of a written order denying a motion for a new trial, a
copy of the minute entry thereof is required to be embodied in the statement on appeal to give the
supreme court jurisdiction.
2. Same. A paper sent up by the lower court, indorsed On Motion to Settle Statement, and which appears to be
an order amending the statement on motion for new trial, by modifying the language in the findings and
decree copied into the statement, indicates, at most, that the court at some previous time had made an
order modifying the decree, and was by such order correcting the proposed statement on motion for
new trial accordingly, and is not an order modifying the finding and decree, so as to entitle the supreme
court to consider the effect which said modification, if made, would have upon the decree.
3. SameRehearingQuestions Considered. Questions raised for the first time on petition for rehearing will
not be considered.
Appeal from the District Court of the First Judicial District of the State of Nevada,
Ormsby County; M. A. Murphy, Judge.
30 Nev. 146, 147 (1908) Kirman v. Johnson
Action by Richard Kirman against J. M. Johnson, a bankrupt, and another as his trustee in
bankruptcy. From a judgment in favor of plaintiff, defendants appeal. Affirmed. Petition for
rehearing. Denied.
The facts sufficiently appear in the opinion.
[Note by the Compiler: Counsel for respective parties filed very elaborate briefs herein
relative to the validity and legality of mortgages, but, as this court did not decide this case
upon the validity or invalidity of the mortgage herein involved but upon the motion to dismiss
the appeal, the compiler does not deem it necessary to refer to the briefs of counsel on the
mortgage question.]
J. Poujade, for Appellants.
Mack & Farrington, for Respondent:
I. There is no record in said case before the supreme court, none having been certified to
this court by the clerk of the lower court.
II. The papers, documents, and exhibits that were used on the motion for a new trial in the
lower court have not been certified to by the judge of the lower court, nor by the clerk thereof
as having been used upon said motion for a new trial; nor have the same, nor any of them,
been certified to this court by the clerk of the district court.
III. There is no notice of appeal, nor undertaking on appeal, in this case, and neither have
been certified to this court, if either exists.
IV. There is no record of any kind or character before the court, or certified to this court,
upon which this court can base any action or opinion or judgment.
V. There is no stipulation of the attorneys, or agreement of the attorneys, sending up or
submitting said appeal to the supreme court.
J. Poujade, for Appellants, on petition for rehearing:
I. The statutory provisions as to page-numbering, attaching together, and indexing is
directory merely, and not mandatory, being intended for the convenience of the court, and the
court may waive the requirement, and it would be proper to do so should the court see fit in
this case wherein the testimony, the only matter essential to be indexed for convenience, is
indexed, and its lines and pages numbered, and those line and page-numberings are used
in appellant's citations.
30 Nev. 146, 148 (1908) Kirman v. Johnson
testimony, the only matter essential to be indexed for convenience, is indexed, and its lines
and pages numbered, and those line and page-numberings are used in appellant's citations.
When the untimely objection was made by the respondent, counsel asked that appellant be
allowed opportunity to make a showing later, if the objection were to receive any
consideration by the court. As no timely objection was made by the respondent, appellant had
no notice, and, therefore, no opportunity, and should therefore be given an opportunity, if it
be not too late, to remedy the defect; or, if it be too late, such a defect should not be
considered. The court may well, in the interest of justice, construe the statutory direction so
that the papers accompanying may be deemed the attached. Ample precedent exists
therefor. (Smith v. Engle, 14 Nat. Bank Reg. 481; Savage v. Birckhead, 20 Pick. 167;
Cobossee Nat. Bank v. Rich, 81 Me. 164, 171-714.)
II. The statement on motion for new trial, with the pleadings included in the judgment
roll, and with the judgment and the amendment thereof, and the notice of appeal and
undertaking on appeal, are sufficient to comply with all reasonable requirements of practice,
and the requirements of law and justice. The rule of practice that a statement on motion for
new trial is not a statement on appeal gives way to the statute (Comp. Laws, 3292, as
amended), which expressly provides that the statement on motion for new trial, etc., shall
constitute, without further statement, the papers to be used on appeal from the order granting
or refusing a new trial.
III. While petitioner is not herein generally citing authorities, believing it only necessary
to show reasons for a rehearing, it may save labor to refer to Black on Judg. sec. 118; 23 Cyc.
671, subhead Certainty of Determination, and authorities under note 29; 23 Cyc. 672,
subhead Finality of Determination; 23 Cyc. 698, subhead Validating Void Judgments.
IV. The judgment is a judgment by default. It gives relief not asked for, and is therefore
void against the plaintiff in default; therefore against all. The judgment, purporting to
foreclose a mortgage, does provide that if there be a deficiency as between the amount
realized from sales and the amount of the mortgage debt, a judgment shall remain
against the defendant, Johnson, but it does not provide for payment of the surplus arising
from the sale to the said defendant.
30 Nev. 146, 149 (1908) Kirman v. Johnson
porting to foreclose a mortgage, does provide that if there be a deficiency as between the
amount realized from sales and the amount of the mortgage debt, a judgment shall remain
against the defendant, Johnson, but it does not provide for payment of the surplus arising
from the sale to the said defendant. It is therefore void.
V. Will this court affirm a judgment that money in an unnamed amount be paid by an
officer of a United States District Court, said judgment having no other basis, except a
complaint praying for no judgment whatever against said officer for money, and praying only
for a money judgment against the party whose trustee he is, in a suit brought under
permission to sue for foreclosure of a mortgage? Jurisdiction to accomplish this cannot exist
in any court, state or federal.
By the Court, Norcross, J.:
This was an action brought by respondent in the First Judicial District Court, in and for
Ormsby County, to foreclose a chattel mortgage upon a stock of merchandise in Carson City.
A judgment was entered in favor of respondent. The notice of appeal, appearing among the
papers sent up from the court below, states that the appeal is taken from the judgment, and
decree rendered in favor of the plaintiff, and against said defendant H. Harris, trustee, and
also from the order entered in said district court in said action on the 10th day of June, 1905,
denying said defendant H. Harris's (trustee's) motion for a new trial.
The record on appeal in this cause was filed in this court on the 7th day of September,
1905. By consent of counsel the case came on for oral argument before this court on the 23d
day of April, 1907, and thereafter time was taken to file briefs in addition to those previously
filed. At the time of the oral argument counsel for respondent made and filed a motion to
dismiss the appeal, and to strike out all the papers filed therein upon the following grounds:
First, that there is no record whatever in said case before the supreme court, none having
been certified to this court by the clerk of the lower court; second, that the papers, documents,
and exhibits that were used on the motion for a new trial in the lower court have not been
certified to by the judge of the lower court, nor by the clerk thereof, as having been used
upon said motion for a new trial, nor have the same or any of them been certified to this
court by the clerk of the district court; third, that there is no notice of appeal or
undertaking on appeal in this case, and the same have not been certified to this court if
any exists; fourth, there is no record of any kind or character before the court or certified
to this court upon which this court can base any action or opinion or judgment; fifth,
there is no stipulation of the attorneys or agreement of the attorneys sending up or
submitting said appeal to the supreme court."
30 Nev. 146, 150 (1908) Kirman v. Johnson
that were used on the motion for a new trial in the lower court have not been certified to by
the judge of the lower court, nor by the clerk thereof, as having been used upon said motion
for a new trial, nor have the same or any of them been certified to this court by the clerk of
the district court; third, that there is no notice of appeal or undertaking on appeal in this case,
and the same have not been certified to this court if any exists; fourth, there is no record of
any kind or character before the court or certified to this court upon which this court can base
any action or opinion or judgment; fifth, there is no stipulation of the attorneys or agreement
of the attorneys sending up or submitting said appeal to the supreme court. The motion to
dismiss and to strike out was heard, subject to the objection of counsel for appellant that the
motion was not made in accordance with the rules of this court.
Rule 8 of this court provides: Exceptions or objections to the transcript, statement, the
undertaking on appeal, notice of appeal, or to its service or proof of service, or any technical
exception or objection to the record affecting the right of the appellant to be heard on the
points of error assigned, which might be cured on suggestion of diminution of the record,
must be taken at the first term after the transcript is filed, and must be noted in the written or
the printed points of the respondent, and filed at least one day before the argument, or they
will not be regarded. (30 Nev. 11, 12.)
Had the motion been made in accordance with the provisions of the rule, we would have
been compelled to grant it, unless application had been made to correct the transcript as
provided for in Rule 7, for the transcript upon appeal in this case shows little pretense of
complying with either the statutes or rules of this court governing the same. As the motion
was not made in accordance with the provisions of the rule quoted, the respondent is deemed
to have waived objections to the transcript that are not jurisdictional. The record in this case
is in a more objectionable condition than that in the case of Linville v. Scheeline (recently
decided by this court), 30 Nev. 106. Referring to the transcript in the latter case, we took
occasion to say: It is a serious question whether appeals presenting transcripts of this
character ought not to be dismissed without consideration, or else the appellant be
required to reform his record before it would be considered."
30 Nev. 146, 151 (1908) Kirman v. Johnson
whether appeals presenting transcripts of this character ought not to be dismissed without
consideration, or else the appellant be required to reform his record before it would be
considered. The record in this case is made up of the original papers from the court below.
An act regulating appeals to the supreme court, approved March 13, 1895 (Comp. Laws,
3862-3863), leaves it in the discretion of the appellant to have the original papers sent up.
Section 1 of the act provides, among other things, that, in case he shall elect to have the
original papers certified they shall be attached together and the pages numbered and indexed
the same as transcripts on appeal, and shall be certified by the clerk of the district court or by
the respective parties or their attorneys to be such originals, and to constitute in whole or in
part the record on appeal, and the clerk shall then transmit them to the clerk of the supreme
court; provided, that where it would not be convenient to attach maps or exhibits to the other
papers they may be sent separately, properly identified and certified. In this case the papers
are neither attached together, numbered, nor indexed. It would seem that the clerk had
bundled up all the papers filed in the lower court and sent them to the clerk of this court.
Many of the papers have no proper place in this record upon appeal, even if the record was
otherwise unobjectionable. The only certificate of clerk in the so-called record is upon a
separate sheet of paper, and was never attached to anything. It is manifest that this is not a
proper certificate. (Holmes v. Iowa Mining Co., 23 Nev. 23.) It may be contended that it was
the fault of the clerk in sending up a record of this kind; but, even if that be so in the strict
sense of the law, nevertheless it would be better for counsel to see that clerks send up proper
transcripts. While we are referring to the provisions of this act we deem it expedient to say
that the conditions which occasioned the passage of this act, authorizing the bringing up of
original papers, have ceased to exist, and that an early repeal of the act will be advantageous,
not only to this court, but to counsel and litigants.
The method of procedure in taking appeals is regulated by statute. Section 327 of the civil
practice act (Comp.
30 Nev. 146, 152 (1908) Kirman v. Johnson
Laws, 3422) in direct terms confers authority upon this court to review judgments and orders
from which appeals can be taken in the manner prescribed by the act, and not otherwise.'
(Marx v. Lewis, 24 Nev. 306.) Section 336 of the civil practice act (Comp. Laws, 3431)
provides: A copy of the statement shall be annexed to a copy of the judgment roll, if the
appeal be from the judgment; if the appeal be from an order, to a copy of such order. An
examination of the papers appearing to have been sent up in this case fails to disclose any
order in reference to the motion for a new trial or a copy thereof, nor does the certificate of
the clerk mention any such order. So far as the record shows there may never have been such
an order made. In the case of Kalmes v. Gerrish, 7 Nev. 31-35, this court, by Garber, J., said:
The appeal purports to be from the judgment, and from an order overruling the motion for a
new trial. The record fails to show that the motion has yet been disposed of, or acted upon, by
the district court. The appeal from the order is therefore premature, and is dismissed.
While counsel by failing to interpose a proper objection to the record may waive all
technical objections thereto, they cannot waive the essentials of a record necessary to give
this court jurisdiction, such as the entire absence of an order overruling a motion for a new
trial, if such order were ever made. (Corbett v. Job, 5 Nev. 201; Irwin v. Sampson, 10 Nev.
282; Greeley v. Holland, 14 Nev. 320; Marx v. Lewis, 24 Nev. 306; Hart v. Spencer, 29 Nev.
286.) As was said by this court in Sherman v. Shaw, 9 Nev. 152, it is as unsatisfactory to the
court as it is to counsel and litigants to have cases disposed of upon mere questions of
practice. But it must be remembered that the rules of practice are as obligatory upon us as
upon the parties to a suit; and, if attorneys desire to have their cases examined upon the
merits, they must comply with the plain provisions of the statute and the rules of practice, as
established by the court. In this case counsel have at great labor prepared and filed
exhaustive briefs upon the merits, and it is especially regrettable that the record is not in such
shape to empower this court to determine the questions so ably presented.
30 Nev. 146, 153 (1908) Kirman v. Johnson
The record does not contain a stipulation of counsel that the statement on motion for a new
trial may be considered also as a statement on appeal. The statement appears to have been
filed exclusively as a statement on motion for a new trial. This court has repeatedly held that
such a statement, in the absence of stipulation of counsel, cannot be considered as a statement
on appeal. (Williams v. Rice, 13 Nev. 234; Nesbitt v. Chisholm, 16 Nev. 39; Robinson v.
Benson, 19 Nev. 331.)
While the judgment roll in this case contains papers not authorized to be included therein, it
does contain all the essentials. Although it is not certified to otherwise than as hereinbefore
stated, in the absence of proper objection, it may be conceded as being before us for
consideration. Where there is nothing before the court but the judgment roll, we can only
consider any alleged errors which may appear upon the face thereof. In the present case we
find no error so appearing, and it becomes our duty to affirm the judgment, and it is so
ordered.
On Petition for Rehearing.
By the Court, Norcross, J.:
Counsel for appellant in his petition for rehearing in this cause takes the position that, as
the court below did not put its order denying the motion for a new trial in writing, therefore
there was none to copy. So far as the record is concerned, it would have to be entirely an
assumption that the court did not make a written order in the premises. But, even if we were
justified in making such an assumption, nevertheless, if an order was made denying the
motion, necessarily there would be a minute entry thereof, and, in the absence of a written
order, a copy of the minute entry is necessary to be embodied in the statement upon appeal, to
clothe this court with jurisdiction. An appeal from an order or judgment, without a copy
thereof in the record, is manifestly futile.
Petitioner asks this court to consider a paper sent up by the lower court, indorsed On
Motion to Settle Statement, and which appears to be an order amending the statement on
motion for new trial by modifying the language used in the findings and decree copied into
the statement.
30 Nev. 146, 154 (1908) Kirman v. Johnson
findings and decree copied into the statement. This document is marked as having been used
upon the hearing of the motion for a new trial. Counsel contends that this document is an
order amending the findings and decree, and by inadvertence was admitted from the judgment
roll. But in this counsel is in error. The most that can be said for this document, even if it was
properly before us for consideration, which it is not, is that it indicates that the court at some
previous time had made an order modifying the decree, and was by this order correcting the
proposed statement on motion for a new trial accordingly. We cannot, therefore, consider the
effect which such a modification, if made, would have upon the judgment.
Some other points are made in the petition, not heretofore presented in the briefs or oral
argument. This court has in a number of cases held that questions raised for the first time
upon the petition for rehearing will not be considered.
The petition is denied.
____________
30 Nev. 155, 155 (1908) Strosnider v. Turner
[No. 1743.]
I. A. STROSNIDER, Appellant, v. C. C. TURNER, Respondent.
1. ElectionsBallotsIndication of Choice by VoterDistinguishing Marks. Under Stats. 1901, p. 112, c. 100,
providing that a voter shall prepare his ballot by stamping a cross in the square, and in no other place,
after the name of the person for whom he intends to vote for each office, ballots containing three
crosses opposite the name of a candidate, two within and one without the square, or two crosses in the
square, or two crosses outside the square, or on which none of the crosses are stamped, but which are
marked with a lead pencil or by using a corner of a stamp as a pencil, or containing two rectangular
marks in squares opposite the names of two candidates, or containing crosses stamped between the
name of the candidate and the party designation, or containing an indescribable mark opposite the name
of a candidate and a double cross opposite the name of another candidate, must be rejected.
2. Same. A ballot having the appearance of an attempt to make a second impression of the stamp to make it
clearer, or to rectify some defect, is valid, though the second stamping does not exactly cover the first.
3. Same. A ballot was first marked with a cross with a corner of the stamp. The voter, on discovering his error,
made a proper stamp beside the illegal one. Held, that the ballot was illegal.
4. SamePreparation of Ballot by Voter. A voter, on discovering his mistake in marking his ballot, should,
instead of trying to rectify it himself, return the ballot to the election officers, and obtain a new one.
5. Same. A voter, while preparing his ballot, used a stamp containing very little ink on it, and he did not
thereafter apply the stamp to the ink pad before completing the marking of the ballot. The first few
crosses stamped were fairly distinct, and all the remaining marks were made by the stamp properly
applied. Held, that the ballot was valid, though a number of the marks on it had little, if any,
resemblance to a cross.
6. Same. A small portion of the cross marked on a ballot projected over the line dividing the squares opposite
the names of two candidates. The main portion of the cross was opposite the name of one of the
candidates. Held, that the voter intended to cast his vote for the latter.
7. Same. A ballot is unobjectionable, though some of the crosses stamped on it are imperfect.
Appeal from the District Court of the First Judicial District of the State of Nevada, Lyon
County; F. P. Langan, Judge.
Election contest by I. A. Strosnider against C. C. Turner. From a judgment for defendant,
plaintiff appeals. Reversed and remanded for a new trial.
30 Nev. 155, 156 (1908) Strosnider v. Turner
The facts sufficiently appear in the opinion.
C. E. Mack, for Appellant:
I. The ballot marked Plaintiff's Exhibit No. 3 should have been counted for Strosnider, for
the reason that the ballot shows no distinguishing mark, and is marked with a stamp in the
square opposite the name of I. A. Strosnider. There is no reason why this ballot should not
have been counted for Strosnider. The cross is plainly marked in the proper place upon the
ballot, and the marking was made with the official stamp dragged instead of being marked in
an upright position. The statute requires a cross to be used in marking the ballot, and the voter
having done so, this ballot should have been counted for Strosnider.
II. Plaintiff's Exhibit No. 7 should not have been counted for Turner, for the reason that
there is a double cross opposite the name of H. Pilkington, and also opposite the name of H.
C. Cutting, and, as we understand the law, where there is a double cross opposite any name it
should not be counted.
III. A ballot disfigured by double or unauthorized markings should not be rejected if it
appears that an attempt was made to retrace or otherwise perfect the cross first made. (Dennis
v. Caughlin, 22 Nev. 447; Whittam v. Zohorrick, 59 N. W. 57.)
IV. Exhibit No. 10 should have been counted for Strosnider, for the reason that the voter
complied with the statute in every particular, excepting in the manner of using the stamp,
dragging it, instead of pressing it down square. The ballot shows upon its face clearly that the
voter stamped the ballot too hard; it shows an honest intention of the voter, and the ballot is a
legal one; it shows that he did not know how to use the stamp and did not know how to make
a cross. The statute provides that an X may be used instead of a cross, and the voter
endeavored to make an X the best he knew how, and it was an honest intention of the voter
to vote for Strosnider. The marking of the ballot was uniform and shows no distinguishing
marks that the voter had been improperly influenced.
30 Nev. 155, 157 (1908) Strosnider v. Turner
V. Exhibit No. 11 contains three marks opposite the name of Springmeyer, but it does not
seem to us that the voter intended this as a distinguishing mark. The mark against the name of
Strosnider is clear and well placed, and for that reason we offered the ballot in evidence and
asked the lower court to count it.
Alfred Chartz, for Respondent:
I. Plaintiff's Exhibit No. 3, like several others, was not stamped. It is written, and whether
written by dragging the stamp, or written by dragging a Chinese writing pen, is immaterial. It
is not as good as a pencil ballot, decided by this court as fatal. Plaintiff's Exhibit No. 4 was
plainly made with a pencil, and not stamped. Plaintiff's Exhibit No. 5 certainly contains no
double cross opposite the name of George A. Bartlett, but is only a little blurred, caused by
seeming nervousness.
II. Exactly the same remarks apply to Plaintiff's Exhibit No. 5. There was no lifting of the
stamp to make a double cross opposite the names of Pilkington and Cutting. Plaintiff's
Exhibit No. 8 was properly rejected, because there is a plain lifting of the stamp and a plain
double cross opposite the name of Carter, and it is not a slipping or a blurring. Plaintiff's
Exhibit No. 9 was properly rejected. There are three separate and distinct crosses, not one of
which is connected with the other, though the blurred parts touch each other. The crosses
themselves are separate and distinct, and absolutely required the lifting of the stamp. There is
no sign of a drag or blur, and no sign of nervousness in execution.
III. This court has thoroughly explained what constitute distinguishing marks, and is well
advised. This court has nothing to do with the object of the voter in placing three crosses
opposite the name of a candidate, or placing two crosses. It has decided that a double cross is
fatal against the validity of the ballot and should not be counted for any candidate, and when
it finds a ballot thus diseased, like a leper or a rotten apple, it will be thrown out. Plaintiff's
Exhibit No. 10 was properly rejected. It is not stamped. It is written, and whether written
with a Chinese pen or with the end of the stamp, is immaterial.
30 Nev. 155, 158 (1908) Strosnider v. Turner
is written, and whether written with a Chinese pen or with the end of the stamp, is immaterial.
If it is counted, dishonest men will soon grab at the opportunity to sin and make null and
nugatory the objects and purposes of the Australian ballot law, so-called. Plaintiff's Exhibit
No. 11 contains three separate and distinct crosses within blurred squares, the squares
touching each other, but the crosses being separate and distinct. Counsel for respondent
herein will also asks permission of the court to use such portion of his original briefs in the
case wherein Turner was appellant as may be applicable to this appeal.
IV. The complaint does not state any fact sufficient to constitute any cause of action
against respondent. Comp. Laws, 1621, provides for only two causes of contest to the right of
any person to hold an office to which he has been declared duly elected: (1) For malconduct
on the part of the board of inspectors, or any member thereof. (2) When the person whose
right to the office is contested was not, at the time of the election, eligible to such office. We
have nothing to do with the second clause and cause. The complaint charges: That said
Board of County Commissioners of Lyon County is failing to count the votes of Churchill
Precinct or canvass the returns received from the said board of officers of Churchill Precinct
were guilty of malconduct, etc. This does not charge malconduct on the part of the board of
inspectors. It charges malconduct on the part of the Board of County Commissioners, and that
is not a ground of contest named in the statute, and the statute enumerating the sole grounds
of contest has eliminated all other grounds, under the well-known maxim: Expressio unius est
exclusio alterius. A complaint must contain the necessary averments to meet the
requirements of the statute. (20 Ency. Pl. & Pr. 598.) Whenever a statute describes certain
specific acts to be done, as prerequisites to the acquiring of jurisdiction, or the enforcement of
a legal remedy, such acts must be substantially performed in the manner prescribed. (Steel v.
Steel, 1 Nev. 27.)
V. The second cause of action attempted to be stated is: That plaintiff is informed and
believes, and charges the fact to be, that in other precincts votes were thrown out and not
counted that were cast for plaintiff and contestant by the various boards of election of
Lyon County that should have been given to plaintiff," etc., but he has no means of
ascertaining the number.
30 Nev. 155, 159 (1908) Strosnider v. Turner
fact to be, that in other precincts votes were thrown out and not counted that were cast for
plaintiff and contestant by the various boards of election of Lyon County that should have
been given to plaintiff, etc., but he has no means of ascertaining the number. Comp. Laws,
1622, provides: When any election, held for an office exercised in and for a county, is
contested on account of any malconduct on the part of the board of inspectors of any precinct,
or any member thereof, the election shall not be annulled and set aside upon any proof
thereon, unless the rejection of the vote of such precinct shall change the result as to such
office in the remaining vote of the county. We thus find that the boards of election are
charged, and not the boards of inspectors, as provided by statute. We further find that
contestant has no means of ascertaining the number, whilst the statute provides that it must be
charged that the number is sufficient to change the result. The foregoing are the only causes
of action attempted to be stated. No cause of action lies for the first, and the second states no
cause of action, and the lower court therefore erred in overruling Turner's demurrer on the
ground set forth.
Mack & Shoup, for Appellant, in reply:
I. Under the ruling of the supreme court in this case (29 Nev. 351) that the rulings upon
these ballots are not assigned as error, and hence such rulings are not before the court for
consideration, there is nothing whatever before the court for consideration, except the
question raised by the appellant's assignment of error. Respondent has nothing whatever to
stand upon in this court other than the ballots excepted to, and assigned as error by appellant.
This is fully shown by the record on appeal.
By the Court, Norcross, J.:
This is the second appeal of this cause. (29 Nev. 347.) Action was brought by appellant to
contest the election of respondent to the office of short-term Commissioner of Lyon County.
Upon the first trial the lower court found that the plaintiff, Strosnider, had received 276, and
defendant, Turner, 275, lawful ballots.
30 Nev. 155, 160 (1908) Strosnider v. Turner
Turner, 275, lawful ballots. Upon the first appeal we held that the court had rejected certain
ballots cast for respondent, which were lawful, and should have been counted. Upon the
second trial of this cause the lower court found that the plaintiff had received 277, and the
defendant 278, lawful ballots. This appeal again presents for consideration the rulings of the
court upon the admission and rejection of certain ballots.
Plaintiff's Exhibit No. 11 was properly rejected, there appearing upon the face of the ballot
three crosses stamped opposite the name of George Springmeyer, candidate for
attorney-general, two within, an one without, the square.
Plaintiff's Exhibits Nos. 3 and 10 were properly rejected, none of the crosses appearing
thereon being stamped. Apparently they were made by using one corner of the stamp as a
pencil would be used. Section 20 of the act of the legislature, known as the Australian Ballot
Law, as amended March 21, 1901, provides, among other things, that: On receiving his
ballot the voter shall immediately retire alone to one of the places, booths or compartments.
He shall prepare his ballot by stamping a cross or X in the square, and in no other place, after
the name of the person for whom he intends to vote for each office. In case of a constitutional
amendment or other question submitted to the voters, the cross or X shall be placed after the
answer which he desires to give. Such stamping shall be done only with a stamp in black ink,
which stamp, ink and ink pad shall be furnished in sufficient number by the county clerk for
each election precinct in the county. (Stats. 1901, p. 112, c. 100.)
Plaintiff's Exhibit No. 9 was properly rejected. The ballot contains two rectangular marks
or blotches in squares opposite the names of two candidates. Marks of this kind were fully
considered upon the former appeal.
Plaintiff's Exhibit No. 8 was properly rejected. The ballot contains two distinct crosses
deliberately stamped in the square opposite the name of J. A. Carter, candidate for justice of
the peace. Ballots so marked have repeatedly been held illegal by this court.
30 Nev. 155, 161 (1908) Strosnider v. Turner
Error is assigned in the court's refusal to reject ballot marked Plaintiff's Exhibit No. 7.
Objection was made upon the ground that in the squares opposite the names of two
candidates there appear double crosses. We think these marks can hardly be considered
double crosses in the sense that they would be regarded as distinguishing marks. They have
the appearance of an attempt to make a second impression of the stamp in order to make it
clear, or to rectify some defect. The second stamping did not exactly cover the first. The
resulting mark is in character similar to that held to be valid in the case of State v. Sadler, 25
Nev. 131, 179, and therein referred to as the so-called double crosses, where it is apparent
that the voter had attempted to retrace the lines composing the cross.
Ballot marked Plaintiff's Exhibit No. 6 was objected to on the ground that in the square
opposite the name of George A. Bartlett, candidate for member of Congress, there appears a
double cross. We think the court erred in overruling this objection. The voter evidently first
marked a cross with one corner of the stamp as Plaintiff's Exhibit Nos. 3 and 10, supra, were
marked. Upon discovering his error he made a proper stamp beside the illegal one. The voter,
when he discovered his mistake, instead of trying himself to rectify it, should have returned
his ballot to the election officers and obtained a new one, as the law prescribes. To hold a
ballot of this kind to be legal would open the way for the secrecy of the ballot to be evaded,
the prevention of which is one of the main purposes of the law. Error is assigned in not
rejecting ballot marked Plaintiff's Exhibit No. 5. This ballot is similar to Exhibit No. 7, and
the court, we think, did not err in counting it.
Ballot marked Exhibit No. 4 was not stamped as required by law, but was marked with a
lead pencil throughout, and was properly rejected.
Ballot marked Exhibit No. 2 was erroneously counted over plaintiff's objection. All of
the crosses were stamped between the name of the candidate and the party designation,
instead of in the square after the name of the person for whom he intended to vote, as
required by the statute. Ballots so marked were held to be legal in State v. Sadler, supra.
30 Nev. 155, 162 (1908) Strosnider v. Turner
marked were held to be legal in State v. Sadler, supra. That case, however, was decided
before the amendment of 1901, supra, which changed the law in respect to the place
prescribed for marking the ballot. The law now requires the cross to be stamped in the
square, and in no other place, after the name of the person for whom he intends to vote for
each office. The printed ballots provide a square within which it is the intention of the law
the stamp should be placed.
Ballot marked Exhibit No. 1 is objected to upon the ground that a distinguishing mark
appears after the name of O. A. Brooks, candidate for member of assembly. The mark in
question is a blurred cross. The cross is plainly visible, and the defect apparently was
occasioned by too much ink upon the stamp, or from some other accidental cause.
Appellant assigns error in the counting of three ballots, the legality of which we
determined upon the former appeal. Such assignments require no further consideration.
The record in this case contains certain ballots, admitted and counted for appellant over
respondent's objections. As we held upon the former appeal, following the case of Dennis v.
Caughlin, 22 Nev. 453, these ballots are not strictly before us. However, as their validity has
been argued, we deem it advantageous to express our views upon them in order that the case
may reach a final determination at the earliest possible date.
Ballot marked Plaintiff's Exhibit No. 12 was objected to upon the ground that there
appear indescribable and distinguishing marks from which the ballot could be identified
opposite nearly all the names. It is apparent that the person who prepared this ballot used a
stamp containing very little ink upon it to begin with, and did not thereafter apply it to the ink
pad before completing the marking of the ballot. While one may readily conclude, from the
fact that the first few crosses stamped were fairly distinct, that all the remaining marks were
made by the stamp properly applied, it must be admitted that a number of the resultant marks
have little, if any, resemblance to a cross, and taken alone would not be recognized as such.
However, this ballot should have been rejected for the reason that two crosses appear to have
been deliberately stamped opposite the name of Robert Raftice, candidate for state
controller.
30 Nev. 155, 163 (1908) Strosnider v. Turner
appear to have been deliberately stamped opposite the name of Robert Raftice, candidate for
state controller. It would seem quite probable from this ballot that the voter, having first
stamped a cross in the square opposite the name of J. C. Knust, socialist party candidate for
state controller, placed two opposite that of Raftice, possibly to impress the fact that Raftice
was the one for whom he intended to vote.
Ballot marked Defendant's Exhibit No. 2 was admitted and counted for appellant over
respondent's objection, as follows: That opposite the name of Orvis Ring there is an
indescribable mark, and opposite the name of D. W. Melarkey there is a double cross. We
think the objection is well taken, and the ballot should have been excluded.
Ballot marked Defendant's Exhibit No. 1 was admitted, and counted for appellant over
the following objection of respondent: That, taking the ballot as a whole, it is impossible to
determine for whom the voter intended to vote for county commissioner. So far as the
objection made is concerned, we think it is not well taken. A small portion of the cross
projects over the line dividing the squares opposite the names of appellant and respondent.
The main portion of the cross, however, is opposite the name of appellant, and we think,
taking the ballot as a whole, it was the voter's intention to cast his vote for appellant.
Ballot marked Defendant's Exhibit No. 3 was objected to upon the grounds: That there
appears a distinguishing mark after the name of D. P. Randall, etc. Without determining
whether the ballot is subject to other objections noted, it is sufficient to say that it contains a
cross deliberately stamped outside the square provided for such purpose, and in the blank
space immediately below the words Silver Party, thus rendering the ballot invalid.
Ballot marked Defendant's Exhibit No. 4 is unobjectionable. The most that can be said
against this ballot is that some of the crosses stamped are imperfect. The ballot is clearly
admissible under the rule laid down in the case of State v. Sadler, supra.
If all of the ballots contained in the record were properly before us, we should affirm the
judgment. However, as our action must find its basis upon some error assigned, and as we
have determined that the court admitted and counted for respondent, over appellant's
objection, three ballots which we think should have been excluded, we are obliged to
reverse the judgment and remand the cause for a new trial, which is ordered.
30 Nev. 155, 164 (1908) Strosnider v. Turner
action must find its basis upon some error assigned, and as we have determined that the court
admitted and counted for respondent, over appellant's objection, three ballots which we think
should have been excluded, we are obliged to reverse the judgment and remand the cause for
a new trial, which is ordered.
____________
30 Nev. 164, 164 (1908) In Re Breen
[No. 1739.]
In the Matter of PETER BREEN, for Disbarment.
1. ContemptPublications Relating to CourtsCriticisms of Opinions. One may criticize an opinion of a court,
take issue with it on its conclusions of law, or question its conception of the facts, so long as his
criticisms are made in good faith, and in ordinarily respectful language, and when not designed to
wilfully or maliciously misrepresent the position of the court, or tend to bring it into disrepute, or lessen
the respect due the authority to which a court is entitled.
2. Attorney and ClientObligation of Attorneys. It is the duty of an attorney to observe the rules of courteous
demeanor in open court, and to abstain out of court from all insulting language and offensive conduct
towards the judges personally for their judicial acts, and for a breach of this duty an attorney may be
suspended or disbarred.
3. SamePower of Courts. Under Comp. Laws, 2625, authorizing the removal of an attorney by the supreme
court for misconduct in office, etc., as well as independent of the statute, the supreme court has control
over attorneys, and may suspend or disbar them for good cause shown, and, where an attorney of the
supreme court unwarrantedly and without legal cause maligns a court of the state, the supreme court on
proper showing may disbar him.
4. Same. The language of an attorney while acting in his capacity as district judge, but not made in any judicial
proceeding pending before him, that a statement in an opinion of the supreme court that the evidence in
a homicide case showed that accused at the time he killed decedent intended to kill another was like
other assertions made in an abnormally strange document (referring to the opinion), and was neither
fair to the prosecuting attorney nor to the district court, and whether or not it was made for the purpose
of bolstering up a decision which is neither founded on law nor supported by fact, and was a palpable
reversal of a case which for forty years had been the accepted law in the state, it was highly
reprehensible for its author or authors to have made it;
* * * reprehensible if the court knew what it was doing, pitiful if it did not, was not within the province
of legitimate criticism, but was an unwarranted attack on the court, warranting the disbarment of the
attorney, though he claimed that he was did not intend any disrespect to the court, and though he
claimed that he was not aware that the prosecuting attorney in his argument in the supreme court had
stated that the evidence in the case showed that accused at the time of the killing of decedent intended
to kill another.
30 Nev. 164, 165 (1908) In Re Breen
Proceedings for the disbarment of Peter Breen, an attorney. Judgment of suspension, until
further order of the court, and disbarment, subject to conditions, awarded.
The facts sufficiently appear in the opinion.
R. C. Stoddard, Attorney-General, for Affiant:
I. In this matter a change of venue in a criminal case had been ordered by the supreme
court, and the same was to be tried de novo in an adjoining county. The remittitur having
been returned and filed, and the defendant removed to the county where the cause had been
tried, the court proceeded to make and enter an order changing the place of trial in accordance
with the judgment of the appellate court. Immediately after said order had been made and
entered, and the defendant, who was still in custody, had been removed from the court room,
the district attorney addressed the court and commented upon the action of the supreme court
in reversing the trial court in said cause, and the judge of said trial court replied thereto, and
caused the remarks of both to be duly recorded in the minutes of the court. The nature of the
remarks of both court and district attorney, and the action of the court in having the same
recorded, are alleged to constitute a contempt of the supreme court, which caused the
proceedings to be instituted. Independent of the authority granted by statute, every court of
general jurisdiction, in the absence of a limitation placed upon it by the creating power, has
the inherent right to punish as a contempt any act, which tends to defame and degrade the
court in the eyes of the public, or to embarrass, to obstruct, to belittle, to interrupt, to impede,
or to prevent the administration of justice. (In re Chartz, 29 Nev. 110; In re Chadwick, 109
Mich. 588; Fishback v. State, 131 Ind. 304; Neel v. State, 9 Ark. 266; State v. Morrill, 16
Ark. 384; People v. Wilson, 64 Ill. 195; People v. Green, 9 Colo. 506.) See, also,
Constructive Contempt, 9 Cyc. 6, and authorities cited under foot-note 3.
II. At the common law attachments were frequently issued against inferior judges and
magistrates for contempts in acting unjustly, oppressively, or irregularly in their office, or in
disobeying the writs issued from superior courts to them" {Neel v. State, 9 Ark.
30 Nev. 164, 166 (1908) In Re Breen
their office, or in disobeying the writs issued from superior courts to them (Neel v. State, 9
Ark. 266), or on account of any of that class of contempts, which is summed up by
Blackstone as demonstrating a gross want of that regard which, when once courts of justice
are deprived of, their authority (so necessary for the good order of the kingdom) is entirely
lost among the people. Such as speaking or writing contemptuously of the court or judges
acting in their official capacity. (4 Cooley on Blackstone, 285, 286.) The statute (Comp.
Laws, 3555) is simply declaratory of the common law, as the legislature cannot interfere with
the jurisdiction of this court, or any of the district courts, on this subject. (State v. Morrill, 16
Ark. 384; Little v. State, 90 Ind. 338; Fishback v. State, 131 Ind. 304.) So far as this court is
concerned, the matter is still pending, and may be said to be pending as long as the right of
appeal exists. In a leading case the court said: The pendency of an action does not terminate
with the return of the verdict of the jury or the rendition of the judgment, but may be said to
be pending while it remains in fieri, for, after judgment, the parties are still in court for
certain purposes. (Fishback v. State, 131 Ind. 304; In re Chadwick, 109 Mich. 602.)
III. 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 from his admission
to practice: ThirdFor misconduct in office, or for good cause shown. (Comp. Laws, 2625.)
Contempt, as a sufficient ground for disbarment, is sustained by the following authorities:
People v. Green, 9 Colo. 506; In re Wooley, 11 Ky. 95; Ex parte Robinson, 19 Wall. 505;
Beene v. State, 22 Ark. 149; Constructive Contempt, 9 Cyc. 6, note 9.
Campbell, Metson & Brown, Campbell, Metson, Drew, Oatman & McKenzie, W. B.
Pittman, Charles Lewers, and Bartlett & Thatcher, for Respondent:
I. When the language complained of was published it was with reference to a decision in a
case no longer pending. Therefore no contempt could have been committed. Comp. Laws,
3555, is practically the same as the common law in existence at the time of the Declaration
of Independence.
30 Nev. 164, 167 (1908) In Re Breen
law in existence at the time of the Declaration of Independence. The common law of
England, as laid down by Blackstone, in this respect had been modified to a large degree
when our Constitution was adopted, and the rule laid down by the text-writers, and borne out
by the adjudged cases, would seem to be that the power now to punish for contemptuous
publication exists only where the same is made in an attempt to influence the decision of the
court by intimidation in causes pending before it.
II. The section of the Nevada code upon the subject bears out this fact of the limitation of
the power of the court in providing what acts shall constitute a contempt of court, as follows:
FirstDisorderly, contemptuous or insolent behavior towards the judge, whilst holding
court or engaged in his judicial duties at chambers, or towards referees or arbitrators while
sitting upon a reference or an arbitration or other judicial proceeding. SecondA breach of
the peace, boisterous conduct or violent disturbance in the presence of the court or in its
immediate vicinity tending to interrupt the due course of a trial or other judicial procedure.
ThirdDisobedience or resistance to any lawful writ, order, rule, or process issued by the
court or judge at chambers. FourthDisobedience of a subpena duly served or refusing to be
sworn or answer as a witness. FifthRescuing any person or property in the custody of an
officer by virtue of an order or process of such court or judge at chambers.
SixthDisobedience to the order or direction of the court made pending the trial of an action,
in speaking to or in the presence of a juror concerning an action in which such juror has been
impaneled to determine, or in any manner approaching or interfering with such juror with the
intent to influence his verdict. Under this statute it is apparent that any contempt complained
of must be made in a manner pending before the court wherein the contempt is alleged to
have been committed. It does not appear upon the face of the affidavit of the attorney-general
herein that there was any matter pending before the supreme court at the time the remarks
claimed to have been published by the respondent were so published, but the contrary appears
affirmatively from the record. The appeal of Dwyer had been determined by this honorable
court; the time in which to make an application for a rehearing had expired; the remittitur
had gone down and the case had been transferred from the District Court of Lander
County, presided over by the respondent, to another county for trial.
30 Nev. 164, 168 (1908) In Re Breen
by this honorable court; the time in which to make an application for a rehearing had expired;
the remittitur had gone down and the case had been transferred from the District Court of
Lander County, presided over by the respondent, to another county for trial. This respondent
was in exactly the same position as any other citizen of the state who exercises the right of
free speech, and should be treated accordingly, irrespective of the fact that he occupies a
judicial position. The statute of Nevada in this respect is but a replica of the statutes of many
of the other states of the Union, and the adjudications of the courts of last resort of nearly all
the other states establish the fact that to subject an author of a publication to a punishment for
contempt, the publication must have been made in relation to a pending action.
III. Says Brewer, J., while sitting as a member of the court of last resort of Kansas, in the
case of In re Pryor, 18 Kan. 72: For no judge, and no court, high or low, is beyond the reach
of public and individual criticism. After a case is disposed of, a court or judge has no power
to compel the public or any individual thereof, attorney or otherwise, to consider his rulings
correct, his conduct proper, or even his integrity free from stain, or to punish for contempt
any mere criticism or animadversion thereon, no matter how severe or unjust.
IV. We might continue ad infinitum citing cases, but think, from the decisions called to
the attention of the court, it is manifest that the rule is, as laid down by the Supreme Court of
the United States, that when a case is finished, courts are subject to the same criticism as
other people. And the very object of the limitation of the statute to causes pending before the
court is that, during the pendency of specific judicial proceedings, courts must be permitted to
administer justice without intimidation or molestation either within or without their
immediate presence. After a case has been fully determined, no such necessity exists, and any
publication made with reference to the past decision of a court cannot tend in any way to
embarrass the court or to influence its conduct or impede or interrupt it in the exercise of its
judicial functions.
30 Nev. 164, 169 (1908) In Re Breen
of its judicial functions. Therefore, no reason could then exist for the exercise of that law of
necessity which requires that the court shall have power in self-defense to punish summarily
for contempts perpetrated in its immediate presence. And where the contempt, as here, is
purely constructive, if at all, and not arising with reference to a pending cause, a double
reason exists to deny the jurisdiction of the court to punish the respondent for contempt. The
law of necessity could not be invoked by any process of reasoning as a bias for the
preservation of its dignity, the alleged contemptuous publication having been made without
the presence of the court and with reference to a case that had been determined.
V. The respondent knew what had transpired in his own court; knew the theory upon
which Mr. Maestretti had prosecuted the case in his court; knew that Mr. Maestretti had been
present and taken part in the argument before this honorable court, and, relying upon the
statement made, and believing that this court had purposely gone outside the record to reflect
upon the district attorney because of the manner in which he had tried the case, and with the
intent to insult this respondent and to criticise his rulings in this case while it was before him,
thereupon made the remarks attributed to him. These remarks were the result of a
misapprehension of the true condition of affairs, and were, when made, actuated by a belief
on the part of respondent that the supreme court of the state had, as before stated, gone
outside of its way for the purpose of thus criticising him for following what he believed to be
the law by which he was bound, namely, the Millain case, covering an almost identical state
of facts. It afterwards appeared that the information thus given by Mr. Maestretti in open
court to this respondent was incorrect; that this young man in the stress of his private troubles
and public duties had forgotten his consultations with the attorney-general and the argument
made before the supreme court upon the theory of mistake, and that such theory was within
the record as presented to that court by its prosecuting officers.
VI. Eliminating from consideration the legal defenses to his action which have been
offered on behalf of respondent, and confining itself simply to the acts shown in this
proceeding, we feel that this honorable court will favorably consider all of the
circumstances surrounding this matter.
30 Nev. 164, 170 (1908) In Re Breen
his action which have been offered on behalf of respondent, and confining itself simply to the
acts shown in this proceeding, we feel that this honorable court will favorably consider all of
the circumstances surrounding this matter. Respondent has fully and fairly stated the
provocation and misunderstanding which led to the using of the alleged contemptuous
language; he has disclaimed any intent to reflect upon the judicial dignity of this court
thereby; he has expressed his willingness to make reparation by expunging the offending
words from the records of his court, and that he would have done so before were it not that he
felt bound to refrain from so doing until this proceeding had been determined upon the order
of this court to show cause. We appreciate the great power of this court to impose punishment
in a case where it felt that it had jurisdiction to do so. While sitting in the usual capacity of
accuser, judge and jury, it might hold within its hands the power to punish and humiliate the
respondent, who for many years has been an honored member of the bench and bar of
Nevada, and who has throughout his professional and judicial career always upheld the
dignity of this court, as well as of that branch of the judiciary of which he is a member.
Recognizing the sense of offended dignity which animates this court, but also recognizing the
facts concerning the alleged offense, which we think respondent has fully and fairly explained
to this honorable court in such wise as to show no offense was intended, but offered his
apology therefor, we ask of this court to suggest the expunging of the offending words from
the records of the trial court, and to dismiss the citations, both of which are based upon the
same principles of law.
Per Curiam:
In the case of The State of Nevada v. Patrick Dwyer, 29 Nev. 421, on appeal to this court
from a conviction of murder in the first degree and sentence of death, the judgment and order
denying a motion for a new trial were reversed on the 12th day of August, 1907. The reversal
was upon the sole ground that the trial court erred in not granting defendant's motion for a
change of venue.
30 Nev. 164, 171 (1908) In Re Breen
The opinion was a lengthy one, written for the court by Norcross, J., the full bench
concurring. During the course of the opinion the following statement was made: The theory
of the state, if we understand it, was that the defendant killed Williams by mistake, thinking
the latter was one O'Brien, a man with whom defendant had had trouble during the day over a
prostitute.
It will appear from an examination of the opinion in the case that this statement quoted
was only an incidental observation of what this court understood was the fact, and was not the
statement of anything in any way deemed essential to the determination of the question upon
which the case was decided. The statement quoted, however, was in strict accordance with
the position taken in the brief of the attorney-general and in the oral argument of A. J.
Maestretti, District Attorney of Lander County, upon the hearing of the appeal, it being
contended in this court that certain testimony, objected to by defendant's counsel, was
admissible upon this theory. The testimony itself, introduced by District Attorney Maestretti
in the state's case in chief, showing the quarrel between Dwyer and O'Brien on the same day
and just before the killing of Williams, and that Dwyer and O'Brien threatened to kill each
other on sight, was such as to suggest the theory of mistake, even if such theory had not been
argued to this court, and apparently was admissible on the state's case in chief only on this
hypothesis as tending to show the motive and purpose of the shooting. The record in the
Dwyer case, however, does not show that counsel in the district court declared it to be the
theory of the state that Dwyer killed Williams through mistake, and the answer of District
Attorney Maestretti sets up that that was not his theory at the trial, that he offered evidence as
to the trouble with O'Brien to show the state of mind of defendant at the time, although as a
matter of fact he admits that the only inference to be drawn from the record is that Dwyer
killed Williams by mistake, which is in accordance with his own belief.
In the oral argument in this court on the appeal in the case of State v. Dwyer, following the
point made by the attorney-general in his brief, District Attorney Maestretti made the
following statement: "There is one point I did not intend to touch upon, but I have been
requested to do so, and in examining the records the court will find, and I suppose that is
the reason the objection is taken, that the feeling or intent to take life was not as to
Williams, but as to O'Brien, and that the killing of Williams, it will be discovered by this
court, must have been an accident, that Dwyer meant to get O'Brien and not Williams,
and upon that point we have collected a few authorities which we wish to call to the
attention of this court.
30 Nev. 164, 172 (1908) In Re Breen
attorney-general in his brief, District Attorney Maestretti made the following statement:
There is one point I did not intend to touch upon, but I have been requested to do so, and in
examining the records the court will find, and I suppose that is the reason the objection is
taken, that the feeling or intent to take life was not as to Williams, but as to O'Brien, and that
the killing of Williams, it will be discovered by this court, must have been an accident, that
Dwyer meant to get O'Brien and not Williams, and upon that point we have collected a few
authorities which we wish to call to the attention of this court. (Jackson v. State, 106 Ala. 12,
17 South. 333; McGehee v. State, 62 Miss. 772, 52 Am. Rep. 209; People v. Torres, 38 Cal.
141; 21 Am. Ency. Law, 104, 105.)
After the time had elapsed for the filing of a petition for a rehearing, and no such petition
being filed, remittitur was issued. On the 13th day of September, 1907, the defendant was
brought before the trial court, and the order of this court directing a change of venue, for the
purpose of a new trial, carried out.
After the order for a change of venue had been made, the said A. J. Maestretti, Esq.,
District Attorney of Lander County, made the following statement in open court: If it pleases
the court at this time, I wish to rise to the question of privilege in relation to a statement made
in the disposition of this case, wherein it was reversed in the supreme court, and that is this:
In its decision the supreme court has stated in substance that the theory of the prosecution in
this case was that Dwyer killed Williams through mistake, while looking for a man named
O'Brien, with whom the defendant had had trouble during the day over a prostitute. I wish to
state at this time that that is absolutely not the fact; further, that there is nothing in the records
from the first page to the last which suggests or would warrant the supreme court in making
such a statement in its decision, and where anything is shown on that record upon which the
supreme court renders such a decision is beyond my understanding.
Upon the conclusion of the foregoing statement of A. J. Maestretti, Esq., the District
Judge, respondent herein, made the following statement and order: "I heartily commend
you, Mr.
30 Nev. 164, 173 (1908) In Re Breen
the following statement and order: I heartily commend you, Mr. District Attorney, for the
steps you have taken to set yourself right with the public in a matter so closely connected with
your onerous official duties. The statement in the decision of the supreme court which you
contradicted I also know to be absolutely without foundation. You were alone in the case for
the state, and you did not conduct its prosecution upon the theory of mistake, nor is there
anything in the records to so indicate. The supreme court, being the tribunal under our
judicial system to which has been given, so to say, the last word, that tribunal, it seems to me,
should be exceptionally careful to make no statement having a tendency to unjustly reflect
upon or misstate the position of any officer, witness, or person connected with the trial of a
cause. So far as it appears to me by the stenographic record of the case on file, the statement
in the opinion as written by Judge Norcross, to which objection has been made, like some
other assertions in the same abnormally strange document, in my opinion, is neither fair to
you as prosecuting officer, nor to this court, and whether or not it was made for the purpose
of bolstering up a decision, which, to my mind, is neither founded on law nor supported by
fact, and is a palpable reversal of the Millain case, which for forty years has been the accepted
law in this state pertaining to a change of venue in a criminal case, it was highly reprehensible
for its author, or authors, to have made it. I say reprehensibleas a modification I shall say
reprehensible if the court knew what it was doing, pitiful if it did not. Mr. Clerk, you will
enter in your minutes the statement of the district attorney side by side with the remarks of the
court.
The statements of respondent and of A. J. Maestretti so entered in the minutes of the Third
Judicial District Court, in and for the County of Lander, were published in the press of Lander
County and widely copied throughout the state. The attention of this court having been
directed to the published account of the proceedings had in the said district court, an order
was made directing the attorney-general to investigate the matter, and, if he found the same to
be as published in the press reports, to present the facts to this court in the form of an
affidavit.
30 Nev. 164, 174 (1908) In Re Breen
to be as published in the press reports, to present the facts to this court in the form of an
affidavit. Pursuant to such order the attorney-general filed an affidavit setting forth all of the
facts, and upon which affidavit this court ordered citations issued, and directed to respondent
herein and to the said A. J. Maestretti to appear and show cause, if any they have, why they
should not be adjudged guilty of contempt of this court and punished accordingly, and,
further, that they show cause, if any they have, why they should not be adjudged guilty of
conduct unbecoming members of the bar of the state and be disbarred.
Respondent appeared in response to the citation, and filed an answer to the affidavit of the
attorney-general. The answer admits that respondent made the statement and order heretofore
quoted. As justification therefor, he avers that he was not aware that the attorney-general and
said District Attorney Maestretti had taken the position in this court that Dwyer killed
Williams by mistake, thinking the latter was one O'Brien, until he was served with a copy of
the affidavit of the attorney-general; that, when the district attorney made the statement in the
district court copied into the minutes, respondent understood and believed that no such theory
had ever been mooted by the prosecution, as none such was ever urged or adopted in said
district court; that at said time respondent understood that this court in rendering its opinion
and decision, and in using the language therein relative to the theory of the state, referred
solely to the proceedings in the district court during the trial of said Patrick Dwyer, and not to
the proceedings in the supreme court; that, when said case was on trial in the said district
court, respondent believed the case of State v. Millain, 3 Nev. 409, to be the leading authority
in this state upon the question of change of venue in a criminal case, and an authority upon
the qualification of jurors; that respondent considered his court bound by the Millain case,
and believed that this court had overruled said Millain case without so stating; that
respondent, believing that this court in its opinion was stating matters and things that
happened at the trial in said district court and criticizing wrongfully and unjustly the district
attorney in his conduct of said trial and the ruling of respondent therein, and being
without any information whatsoever of even the word 'mistake' having been uttered in
connection with the homicide in the argument before the said supreme court, as it had
not been before the district court, respondent made the statements and caused them to
be entered in the minutes of the District Court of Lander County; that had respondent
known of the question of mistake having been mentioned when the remarks of
respondent objected to were being made, he would have modified or omitted altogether
the last paragraph of said remarks, and now stands ready to obey the order of the court in
that respect, not that mistake was ever relied on at the trial in the district court, for such
is not the fact, but because the reference to mistake by the attorney-general before the
supreme court might have misled said court in its ruling; that when defendant read in the
opinion of the Supreme Court of the State of Nevada the following language, to wit: 'The
theory of the state, if we understand it, was that the defendant killed Williams by
mistake'he, the said defendant, felt not only aggrieved, but that an unjust reflection had
been cast upon his court, for the reason that under such a theory it would have been the
duty of said district court to have given an instruction to the jury upon the law as to what
degree of crime, if any, a homicide committed by mistake belonged to, and, as no such
instruction was given or asked for, the said defendant, for the time being at least,
believed certain of his rulings were not fully considered by said supreme court.
30 Nev. 164, 175 (1908) In Re Breen
the district attorney in his conduct of said trial and the ruling of respondent therein, and being
without any information whatsoever of even the word mistake' having been uttered in
connection with the homicide in the argument before the said supreme court, as it had not
been before the district court, respondent made the statements and caused them to be entered
in the minutes of the District Court of Lander County; that had respondent known of the
question of mistake having been mentioned when the remarks of respondent objected to were
being made, he would have modified or omitted altogether the last paragraph of said remarks,
and now stands ready to obey the order of the court in that respect, not that mistake was ever
relied on at the trial in the district court, for such is not the fact, but because the reference to
mistake by the attorney-general before the supreme court might have misled said court in its
ruling; that when defendant read in the opinion of the Supreme Court of the State of Nevada
the following language, to wit: The theory of the state, if we understand it, was that the
defendant killed Williams by mistake'he, the said defendant, felt not only aggrieved, but
that an unjust reflection had been cast upon his court, for the reason that under such a theory
it would have been the duty of said district court to have given an instruction to the jury upon
the law as to what degree of crime, if any, a homicide committed by mistake belonged to,
and, as no such instruction was given or asked for, the said defendant, for the time being at
least, believed certain of his rulings were not fully considered by said supreme court.
Defendant with all possible deference claims the right at all times to differ in opinion with the
supreme court, state or national, or any of the judges thereof, or their opinions on matters of
law, if in his judgment they are fairly the subject of comment, but he does not believe and
never has in criticizing unfairly any court, judge, or opinion, and will not do so, and
defendant denies emphatically that in any action or word of his it was his intention to impugn
the integrity, honor, or dignity of the Supreme Court of the State of Nevada or any of its
honorable members, and defendant is surprised and disappointed that the affidavit of the
attorney-general should contain aught tending to question the respect of defendant for
said supreme court and the members thereof.
30 Nev. 164, 176 (1908) In Re Breen
appointed that the affidavit of the attorney-general should contain aught tending to question
the respect of defendant for said supreme court and the members thereof. Defendant deeply
regrets the happening of the incident which has given rise to these proceedings, and regrets
that his language used as aforesaid should have received the construction given it in the said
affidavit of the honorable attorney-general, for such was not the intention of defendant at the
time, and never has been.
The question is presented for determination whether or not the language and order of
respondent in question, in view of respondent's answer, is contemptuous or constitutes a
breach of the duty which respondent as a member of the bar of this court is bound to observe,
and, if it does, whether the offense is sufficiently grave to warrant the disbarment or other
action upon the part of this court. In fact, the question is presented whether or not the
language and order could, in any event, be deemed contemptuous or warrant any action upon
the part of this court, upon the theory that they are but criticisms of an opinion of a court
which it is the province of any one to indulge in, irrespective of whether such criticisms are
just or unjust, or whether or not they are couched in respectful language. The right to criticize
an opinion of a court, to take issue with it upon its conclusions as to a legal proposition, or
question its conception of the facts, so long as such criticisms are made in good faith, and are
in ordinarily decent and respectful language, and are not designed to wilfully or maliciously
misrepresent the position of the court or tend to bring it into disrepute, or lessen the respect
due the authority to which a court of last resort is entitled, cannot be questioned. To attempt
to declare any fixed rule marking the boundaries where free speech in reference to court
proceedings shall end would be as dangerous as it would be difficult. The right of free speech
is one of the greatest guaranties to liberty in a free country like this, even though that right is
frequently and in many instances outrageously abused. Of scarcely less, if not of equal,
importance, is the maintenance of respect for the judicial tribunals, which are the arbiters of
questions involving the lives, liberties, and property of the people.
30 Nev. 164, 177 (1908) In Re Breen
ing the lives, liberties, and property of the people. The duty and power is imposed upon the
courts to protect their good name against illfounded and unwarranted attack, the effect of
which would be to bring the court unjustly into public contempt and ridicule, and thus impair
the respect due to its authority. While it is the duty of all to protect the courts against
unwarranted attack, that duty and obligation rests especially upon the members of the bar and
other officers of the court. It would be foolish, as well as useless, for any one to contend that
the very highest courts do not make mistakes. Courts themselves prove this by overruling
previous decisions. The rules of this court, as in the case of all appellate courts, provide that
after a decision is rendered the losing party has the right of petition for rehearing in order to
call the court's attention to what is deemed a misconception of the case or an erroneous view
of the law. This court has frequently granted rehearings, and there are several instances where
the previous decision was either modified or a contrary view of the law taken in the final
decision. It is appropriate here to say that, if the district attorney in the Dwyer case believed
that this court had misconceived the facts of the case or misapplied the law in any material
particular, the way was open to him, and it was his duty to have sought to have the same
corrected upon petition for rehearing. If the trial judge observed that a mistake had been made
either in fact or law, or thought that the opinion was so framed as to put his court in a false
light, a suggestion from him to counsel would doubtless cause the matter to be properly
presented to the court and the same investigated, and, if error was found to have been made, it
would be corrected. Neither the district judge nor the district attorney saw fit to pursue such a
course. This would be, at least, a more ethical procedure than to wait until opportunity to
correct an error had passed, and then abuse the court for such alleged error. Even if this court
had fallen into error in the statement which it incidentally made regarding what it understood
to be the state's theory of the case, we cannot see any occasion for such strictures as those
contained in respondent's statement, especially as no ruling was based thereon.
30 Nev. 164, 178 (1908) In Re Breen
no ruling was based thereon. Even if counsel for the state had not specifically argued in this
court the theory of mistake, the expression might have been made, as we have before stated,
very naturally in view of the testimony in reference to the quarrel between Dwyer and
O'Brien, and Dwyer searching for O'Brien just previous to the shooting; the record being
silent as to any positive statement negativing the theory of mistake, and no contention ever
having been made either in this or the Dwyer proceeding that this evidence was admissible
upon any other theory.
What respondent said with regard to the Dwyer case being a reversal of the Millain case, if
it could be segregated from the balance of the statement, could hardly be considered
objectionable from any view, although we would have to disagree with the learned judge as to
the effect of the opinion in the Dwyer case. The Millain case was tried in Storey County at a
time when the population of that county was many times greater than that of Lander County
at the time of the Dwyer trial, and the courts have distinguished between communities with a
meager and a large population. In the Millain case, after the motion for change of venue was
made, the court proceeded and apparently without difficulty obtained twelve competent jurors
from the number who were in attendance. It seems that but a small fraction of the number in
Storey County at that time were called or examined. In the Dwyer case nearly all the jurors
obtainable in Lander County had been summoned on different venires and examined before
twelve were obtained, and several of these retained to try the case showed on voir dire that
they had opinions bordering on disqualification. Of the numerous witnesses examined on
behalf of the state and the defendant on the motion for change of venue, only one stated that
he believed that Dwyer could have a fair trial in that county. Threats had been made to take
him from the sheriff and execute summary vengeance. Dwyer, a migrating gambler and
stranger in Austin, had soon after his arrival there killed an innocent, popular, and worthy
young man who had long resided in that place and was well known to all the residents, and
naturally, owing to this deplorable incident, a strong feeling existed there against the
defendant, although it alone may not have been sufficient to warrant a change of the
place of trial.
30 Nev. 164, 179 (1908) In Re Breen
existed there against the defendant, although it alone may not have been sufficient to warrant
a change of the place of trial. In other respects the two cases are distinguishable on the facts.
We quoted for the Millain case, and had no thought of reversing it. But, however, we do not
question the right of respondent to differ with us in the view he takes of the two cases. We do
not question the right of respondent to take the view he did of the Millain case. When he
came to the conclusion that the Millain case was controlling, and under the interpretation
which he placed upon it required that he deny the motion for a change of venue, it became his
duty to decide according to his conclusion. Upon appeal the case came under the prerogative
of this court, and it was our province and duty to decide the appeal as we became convinced it
should be decided. There is no word of criticism in the Dwyer opinion or unjust reflection
upon either the conduct of the district attorney or the trial judge, unless a respectful
disagreement with the trial court upon a matter of law can be called a criticism, and we do not
think it properly can be so called.
Respondent, considering that this court had erroneously stated as a fact something which,
in his opinion, was unwarranted from the record, and which he characterized as stated
possibly for the purpose of bolstering up a decision which, to his mind, is neither founded
on law nor supported by fact, proceeds to declare the opinion as a whole to be an
abnormally strange document, that it was unfair both to the district attorney and the trial
court, and a reversal of a former decision which had been the accepted law of this state for
forty years. All of this is further characterized as reprehensible if the court knew what it was
doing, pitiful if it did not. It cannot reasonably be claimed in this case that the remarks of
respondent are mere criticisms of an opinion of this court, which were inadvertently made
because of misinformation as to what transpired in the presentation of the case upon appeal. It
appears from the statement quoted that the assumed error upon the part of this court in
reference to the theory of mistake was only made the excuse for the offensive language used
in commenting upon the opinion as a whole.
30 Nev. 164, 180 (1908) In Re Breen
the opinion as a whole. That respondent was in error in regard to all of his references to the
opinion of this court would not have been deemed an occasion for citation, if such comments
had not been expressed in language reflecting upon the honor, integrity, and dignity of this
court. But respondent did not see fit to couch his criticisms in respectful language. Upon the
contrary, the whole tenor of the statement and order of respondent is not only highly
disrespectful, but contains covert intimations of grave misconduct upon the part of this court.
To suggest that a court uses a false statement of a fact to bolster up an opinion
characterized as an abnormally strange document is an intimation that the court is guilty of
such conduct as would justly warrant the impeachment of every member. This intimation,
however, is modified by its author, so that the conduct of the members of this court is
declared to be reprehensible only in the event the court knew what it was doing,
otherwise the position of the court would be only pitiful. These observations and
intimations are made by an attorney and officer of this court while acting in his capacity as a
district judge, though they are not made in any judicial proceeding pending before him. That
they were made with the view of receiving public attention is evidenced by the fact that they
are ordered spread upon the minutes of his court to remain a perpetual impeachment of this
court. There can be but one effect of such language published to the world by one holding the
high and responsible position which the respondent holds. That effect is to destroy, in a
measure at least, public confidence in the integrity of the highest tribunal in the state, and thus
impair the respect due its authority. To publish such statements as those of respondent's in a
community where the feeling had recently been high, and in places bordering upon mob
violence, might result in the gravest wrong. If any considerable portion of a community is led
to believe that, either because of gross ignorance of the law or because of a worse reason, it
cannot rely upon the courts to administer justice to a person charged with crime, that portion
of the community, upon some occasion, is very likely to come to the conclusion that it is
better not to take any chances on the courts failing to do their duty.
30 Nev. 164, 181 (1908) In Re Breen
sion that it is better not to take any chances on the courts failing to do their duty. Then may
come mob violence with all its detestable features. To say that respondent meant no
disrespect for this court is contrary to the plain meaning of the language use, and the order
directing that it be spread upon the minutes of the district court.
Is the making of the false and defamatory statement by respondent a violation of his duty
as an attorney and officer of this court? It is the duty of an attorney not merely to observe the
rules of courteous demeanor in open court, but also to abstain out of court from all insulting
language and offensive conduct towards the judges personally for their judicial acts. For a
breach of this duty an attorney may be suspended or disbarred. (4 Cyc. 908, and authorities
cited.) Both by statute (Comp. Laws, 2625) and inherent power, the supreme court is given
control over attorneys who receive a license to practice through its authority to suspend or
disbar them for good cause shown, and this is in no way a violation of their constitutional
privilege. If any attorney of this court unwarrantedly and without just and legal cause maligns
a court in this state, this court, upon proper showing, may disbar him. Any tribunal that
cannot tolerate free discussion and criticism of its decisions is justly entitled to contempt, but,
on the other hand, little respect is due to a court that will hesitate to check or discipline any of
its attorneys or officers who are so devoid of professional ethics and ordinary courtesy as to
misrepresent and vilify it in open court without any cause or semblance of reason.
In regard to respondent's claim that he did not intend any disrespect, and that he was not
aware that the prosecution in the Dwyer case had advanced anything in this court regarding
the theory of killing by mistake, it may be said that with words, as with acts, it is presumed
that the offender intended their plain meaning and natural and probable consequences. If the
term reprehensible and pitiful as used by respondent are not clearly disrespectful and
scurrilous, it is hard to conceive of any that would be, and it is but reasonable to conclude that
they were employed and spread upon the minutes by respondent in an effort to belittle and
discredit this court in its opinion for the purpose of trying to sustain his own before the
bar of public opinion in a community where a strong feeling existed in regard to the
Dwyer case.
30 Nev. 164, 182 (1908) In Re Breen
belittle and discredit this court in its opinion for the purpose of trying to sustain his own
before the bar of public opinion in a community where a strong feeling existed in regard to
the Dwyer case. In Re Chartz, 29 Nev. 110, a decision filed March 1, 1906, an attorney of this
court had his brief stricken out, was reprimanded and warned and charged with costs of the
proceedings for stating in the brief that in his opinion the decisions favoring the power of the
state to limit the hours of labor, on the ground of the police power of the state, were wrong
and written by men who had never performed manual labor, or by politicians and for politics,
and that they did not know what they wrote about. In that case we said: By using the
objectionable language stated respondent became guilty of contempt which no construction of
the words can excuse or purge. His disclaimer of any intention of disrespect of the court may
palliate, but cannot justify, a charge which under any explanation cannot be construed
otherwise than as reflecting on the intelligence and motives of the court. A number of
decisions regarding misconduct by attorneys are reviewed in that case. We quoted with
approval language holding that, where words are offensive and insulting per se, the offender
may be punished, and that the disavowal of any intention of disrespect may tend to excuse,
but cannot justify, them. We there quoted with approval from Sears v. Starbird, 75 Cal. 91,
16 Pac. 531, 7 Am. St. Rep. 123, where an attorney was censured and his brief was stricken
out by the Supreme Court of California because it contained reflections upon the judge of the
superior court. This was equivalent to saying that we will protect the district courts of this
state from the abuse of attorneys who are officers of this court, and we feel justified in
extending the same protection to this tribunal. In line with other decisions cited there we
quoted from the opinion of the chief justice, speaking for the court, in State v. Morrill, 16
Ark. 384: If it were the general habit of the community to denounce, degrade, and disregard
the decisions and judgments of the courts, no man of self-respect and just pride of reputation
would remain upon the bench, and such only would become the ministers of the law as were
insensible to defamation and contempt.
30 Nev. 164, 183 (1908) In Re Breen
defamation and contempt. But happily, for the good order of society, men, and especially the
people of this country, are generally disposed to respect and abide the decisions of the
tribunals ordained by government as the common arbiters of their rights. But where isolated
individuals, in violation of the better instincts of human nature, and disregardful of law and
order, wantonly attempt to obstruct the course of public justice by disregarding and exciting
disrespect for the decisions of its tribunals, every good citizen will point them out as proper
subjects of legal animadversion. A court must naturally look first to an enlightened and
conservative bar, governed by a high sense of professional ethics, and deeply sensible, as they
always are, of its necessity to aid in the maintenance of public respect for its opinions.
Nor is the fact that defendant did not know that the district attorney and attorney-general
had argued regarding the theory of mistake in this court any justification. As an attorney and
incumbent of the high office of district judge, he knew, or certainly ought to have known, that
it was not proper for him to charge this court or any tribunal or individual with any offense,
however high or low, or with any shortcoming simply because he did not know. He was
aware of ample that had transpired before him when the evidence was introduced by the
prosecution in this case in chief of the quarrel between Dwyer and O'Brien and that Dwyer
had threatened and was seeking O'Brien on the evening he killed Williams, a stranger to him,
to justify the statement made as an inference in the opinion of this court to which he took
exception, even if the district attorney and the attorney-general had not presented anything in
their argument regarding the theory of mistake. It is the duty of all attorneys to be honest and
honorable, to conduct themselves as gentlemen, and to show due respect and courtesy, to
enlighten and assist the courts, but never to attempt to mislead or misrepresent regarding law
or facts. When they fail in any of these respects, it is essential to the proper maintenance of
the respect and dignity due to the court, and to the proper administration of justice, that they
be brought to a realization of their duties by a reprimand, suspension, or disbarment, and
some times by fine and imprisonment.
30 Nev. 164, 184 (1908) In Re Breen
disbarment, and some times by fine and imprisonment. Although respondent, as well as all
others, was at liberty to differ from and to criticize any opinion of this court, there is a broad
distinction between difference of opinion or legitimate criticism, and mere misrepresentation
or vilification sought to be justified on such misrepresentation. If respondent were unable to
see any material difference between the circumstances existing in the Dwyer and Millain
cases, it was his privilege to criticize the decision, and to say that in his judgment it was
wrong, and a reversal of the Millain case; but, when he went further, and made a false
statement regarding what had been presented to his court and followed his misrepresentation
by vilifying and contemptuous words, as an attorney he passed beyond the freedom of
discussion and criticism. Also, he must have been aware that he was not acting in
impeachment charges, nor in any proceedings authorized by law, and that there was no
warrant or authority for him as district judge to befoul the records of his court with the
misrepresentation and disrespectful remarks, and consequently it seems that he had no
purpose but a malicious one in so entering them, even if they could be considered permissible
criticism. If mere abuse of this tribunal by its attorneys were to be encouraged or tolerated,
there would seem to be no necessity or excuse for the entry of these scurrilous remarks in the
record. The fact that defendant stands so high in esteem and as an able attorney and judge
tends to aggravate rather than excuse his conduct. The greater his standing and ability the
more careful he should be in word and act, and the better example he should set for attorneys
practicing before his own and other courts. It may be said that after the order had been entered
for a change of venue the case was removed to and pending in the District Court of Elko
County, and liable to come here again on appeal. If it had been in some other court from the
beginning, and never in respondent's, that would not have been justification for him to resort
to such abuse and have it recorded. The position of a court in a case like the present is always
a delicate one. No person regrets more than we that there was ever occasion for the present
proceeding. Unpleasant, however, as it may be, we would not be doing our duty to the court
over which we have the honor and responsibility of presiding did we pass unnoticed the
conduct of respondent.
30 Nev. 164, 185 (1908) In Re Breen
be doing our duty to the court over which we have the honor and responsibility of presiding
did we pass unnoticed the conduct of respondent. While attorneys have the widest latitude to
differ with and to criticize the opinions of this or other courts, yet, when they resort to
misrepresentation and unwarranted assaults upon the courts whose officers they are, they
violate their duty and obligation. They should remember that as one of the conditions of their
admission to practice they have taken an oath to support the government and Constitution of
this state, under which the district and supreme courts were created, and to observe or
perform the duties of an attorney, nor ought they forget that they are members of a profession
which they should ever try to keep unsullied. The language and order of respondent,
considered as a whole, is not within the province of legitimate criticism, but is of that
character which is an unwarranted reflection upon the honor, integrity, and dignity of this
court, the effect of which is to impair the respect due its authority, and constitutes a grave
breach of professional propriety.
Because of the language and entry complained of, it is ordered that the respondent, Peter
Breen, be suspended and prohibited from practicing or appearing as an attorney or counselor
at law in any of the courts of this state until the further order of this court, and, unless within
twenty days from the filing of this opinion he causes the language and order which he had so
entered in the minutes of the district court to be expunged from the records of that court, and
thereupon presents to this court an affidavit or other satisfactory evidence that said language
and order have been so expunged, a further order will be entered by this court on the first day
of its next term directing that his name be struck from the roll of attorneys, and disbarring
him from thereafter appearing or practicing in any of the courts of this state.
[Reporter's Note: Respondent caused the objectionable matter to be expunged from the
records of his court, within the time specified in the above order, and a certified copy of the
said order was filed with the supreme court. Hence, the order of disbarment never took
effect.]
____________
30 Nev. 186, 186 (1908) In Re Breen
[1738.]
In the Matter of Contempt of PETER BREEN, Judge of Third Judicial District.
1. Criminal LawFormer JeopardyDisbarment of AttorneyContemptPunishment. Where the supreme
court disbarred an attorney for misconduct in criticising the court, a proceeding to punish him for
contempt for the same language will be dismissed, since to punish him for contempt will amount to the
imposition of double punishment.
Proceedings to punish Peter Breen for contempt of court. Dismissed.
The facts sufficiently appear in the opinion.
Per Curiam:
The facts upon which this proceeding was based are fully stated in the proceeding for
disbarment this day determined (30 Nev. 164.) It is the opinion of the court that the purpose
for which citation was issued in the contempt proceeding has been fully accomplished in the
proceedings for disbarment. If the respondent were adjudged guilty of contempt for the
language complained of, the punishment imposed would be in the nature of a double
punishment, which the court has no disposition to impose, and in consideration of the
judgment rendered, in the disbarment proceeding this day, this proceeding is dismissed.
____________
30 Nev. 187, 187 (1908) In Re Maestretti
[No. 1741.]
In the Matter of A. J. MAESTRETTI, for Disbarment
District and Prosecuting AttorneysMisconductUnwarranted Criticism of Supreme CourtSuspension. A
prosecuting attorney in his argument before the supreme court in a homicide case stated that the evidence
showed that accused at the time he killed decedent meant to kill another. The court stated in its opinion
that the evidence showed that such was the fact. Subsequently the prosecuting attorney stated in the
district court that there was nothing in the record warranting the supreme court in saying that accused
when he killed decedent intended to kill another. He admitted that his statement was not true, and that the
opinion of the supreme court correctly stated the facts, and attempted to justify his statement before the
district court because of adverse criticism based on his conduct in the case. Held, that the prosecuting
attorney was guilty of misconduct warranting his temporary suspension.
Proceedings for the disbarment of A. J. Maestretti, an attorney. Judgment of suspension
awarded.
The facts sufficiently appear in the opinion.
R. C. Stoddard, Attorney-General, for Affiant.
Campbell, Metson & Brown, Campbell, Metson, Drew, Oatman & McKenzie, W. B.
Pittman, Charles Lewers, and Bartlett & Thatcher, for Respondent.
Per Curiam:
The facts upon which this proceeding was based are very fully set forth in the opinion
rendered in the proceedings against Peter Breen for the disbarment (30 Nev. 164), to which
opinion reference is made for a more complete understanding of this case. In response to the
citation, respondent filed an answer, in which he admitted making the statement attributed to
him at the time and in the manner charged in the citation. For convenience of consideration
the statement of respondent in question is here repeated: If it please the court, at this time I
wish to rise to the question of privilege in relation to a statement made in the disposition of
this case, wherein it was reversed in the supreme court, and that is this: In its decision the
supreme court has stated in substance that the theory of the prosecution in this case was that
Dwyer killed Williams through mistake, while looking for a man named O'Brien with whom
the defendant had had trouble during the day over a prostitute.
30 Nev. 187, 188 (1908) In Re Maestretti
for a man named O'Brien with whom the defendant had had trouble during the day over a
prostitute. I wish to state at this time that that is absolutely not the fact; further, that there is
nothing in the records from the first page to the last which suggests, or would warrant, the
supreme court in making such a statement in its decision, and where anything is shown on
that record upon which the supreme court renders such a decision is beyond my
understanding. The answer of respondent avers, however, that he did not know at the time he
made the statement that Judge Breen was going to order it spread upon the minutes, and had
nothing to do with the making of such order. He further avers that he had no intention of
being contemptuous in his said remarks. From the answer of respondent we quote the
following extracts: When this decision was rendered, * * * the essential points were copied
in the Austin Reveille and printed there, leaving out all of those affidavits that were cited and
the testimony on the question of venue, and some parties had suggested to me: Was that your
theory? Was that what you tried to prove in the case, that Dwyer killed Williams through
mistake while hunting for O'Brien?' And, of course, it is very hard to explain to an ordinary
citizen some legal matters, and that being my intent to prove that Dwyer had the intent to
commit a felony, to show his state of mind, is why I made that statement in the district court
in Austin. I do not deny that I made it. I believe those are the words I used. It was not made,
notwithstanding the language might be contemptuous in itselfit certainly was not made
with any spirit of contempt whatever. * * * During the conduct of the trial of the case, I did
not want to prove mistake. They, the defense, relied solely on the defense of temporary
insanity, and this was the thing that presented itself to my mind: The statute, I believe, in
substance, says that, where the killing is proven, the burden of justification or excuse lies on
the defendant. I felt that if I proved that Dwyer killed Williams and simply proved that, and
let it stand, that I might have had a conviction of some kind or other, but with that bare proof,
the bare fact, without proving that he intended to commit murder, would not have given me
a verdict of murder in the first degree.
30 Nev. 187, 189 (1908) In Re Maestretti
he intended to commit murder, would not have given me a verdict of murder in the first
degree. I believe that Dwyer killed Williams by mistake. I know that he had nothing against
Williams. I think the record shows that he did not know Williams, and had not seen him
before. The only inference you can draw from the record is that he killed him [Williams] by
mistake. * * * I had no consultation at all with General Stoddard until I came to Carson City
two or three days prior to the argument, and I remember that we discussed the fact that the
theory of mistake had not been raised by the defense, and that it would be well to submit that
to the court in the event that they considered that phase of it, that is the substance of it. We
discussed the proposition whether or not mistake could be murder in the first degree, and the
cases we looked up support the contention that a conviction under such circumstances could
be murder in the first degree. I believe there was ample justification from the record for the
court to have made the statement that it did in its opinion, because any lay person, and I
presume any lawyer or judge, after reading the thing over thoroughly, would come to the
conclusion that Dwyer killed Williams while looking for O'Brien. At the same time I never
prosecuted directly on that theory. That question never was raised as an issue in the case. * *
* At the time I made the remarks in the lower court I had read the opinion attached to the
remittitur. I understood then, and do now, that the case was reversed solely upon the point of
the change of venue, and that the theory of the prosecution had nothing to do with the
determination of the case on appealthat it was just an incidental matter.
Upon the oral argument in this court of the case of the State v. Patrick Dwyer, 29 Nev.
421, respondent made the following statement: There is one point I did not intend to touch
upon, but I have been requested to do so and in examining the record the court will find, and I
suppose that is the reason the objection is taken, that the feeling or intent to take life was not
as to Williams, but as to O'Brien, and that the killing of Williams, it will be discovered by
this court, must have been an accident, that Dwyer meant to get O'Brien, and not Williams,
and upon that point we have collected a few authorities which we wish to call to the
attention of this court; Jackson v. State, 106 Ala.
30 Nev. 187, 190 (1908) In Re Maestretti
O'Brien, and not Williams, and upon that point we have collected a few authorities which we
wish to call to the attention of this court; Jackson v. State, 106 Ala. 12, 17 South. 33;
McGehee v. State, 62 Miss. 772, 52 Am. Rep. 209; People v. Torres, 38 Cal. 141; 21 Am.
Ency. Law, 104, 105.
It appears from the answer of respondent, from the argument made by him in this court
upon the appeal in the Dwyer case, the brief of the attorney-general, as well as from the
record in the latter case itself, that the statement made by respondent in the district court at
Austin was wholly unjustifiable and contrary to the facts. It was this statement apparently
which prompted the trial judge to make the offensive remarks and order considered in the
proceedings against Peter Breen. It may be conceded that respondent at the time he made the
remarks in question did not anticipate that they would have the effect which they did. We
cannot, however, overlook the fact that respondent made, to say the least, a deliberate
misleading statement in open court concerning an opinion of this court, which conduct upon
his part, under all the circumstances, was a breach of professional propriety. Respondent's
remarks did not, however, contain any offensive or insulting language. Upon issuance of
citation, and before it reached Austin for service, respondent promptly appeared and filed an
answer frankly acknowledging his error, and has manifested a commendable disposition to
correct the same so far as in his power lies.
Judges, juries, prosecuting attorneys and lawyers generally, in the performance of their
sworn duty, are frequently obliged to place themselves in opposition to public opinion, and
when such occasions arise ought to be fearless in upholding the right as they see it. The cool,
deliberate, and dispassionate proceedings of courts are better calculated to reach a just
judgment than is public opinion, which, whether based upon press reports or not, is
necessarily largely controlled by hearsay evidence, which is often partially, and sometimes
wholly, unreliable. Considering the stress under which the respondent made the statement in
the district court which was contrary to the argument he made, and the position he had taken
in this court regarding the theory of mistake, his prompt appearance and disavowal of any
intention of being contemptuous, his frank confession of error, and his manifest
willingness to correct the same as far as in his power lies, we are not disposed to inflict
any severe punishment; but by way of reprimand and as a warning it is the order of the
court that he stand suspended from practice in all the courts of this state for the period of
thirty days from the date of the filing of this opinion, this suspension not to apply to his
official duties as district attorney.
30 Nev. 187, 191 (1908) In Re Maestretti
prompt appearance and disavowal of any intention of being contemptuous, his frank
confession of error, and his manifest willingness to correct the same as far as in his power
lies, we are not disposed to inflict any severe punishment; but by way of reprimand and as a
warning it is the order of the court that he stand suspended from practice in all the courts of
this state for the period of thirty days from the date of the filing of this opinion, this
suspension not to apply to his official duties as district attorney.
____________
30 Nev. 191, 191 (1908) In Re Maestretti
[No. 1740.]
In the Matter of A. J. MAESTRETTI, for Contempt.
Proceedings to punish A. J. Maestretti for contempt of court. Dismissed.
Per Curiam:
The facts upon which this proceeding is based are stated in the opinions in the proceedings
against Peter Breen (30 Nev. 164), and respondent herein for disbarment filed this day (30
Nev. 187). In view of the latter opinion, this contempt proceeding against respondent is
dismissed.
____________
30 Nev. 192, 192 (1908) State v. Jumbo Extension Mining Co.
[No. 1742.]
THE STATE OF NEVADA, ex rel. JOHN B. GLEESON, Relator, v. JUMBO EXTENSION
MINING COMPANY, a Corporation, T. G. LOCKHART,
EDWARD S. VAN DYCK, MRS. T. G. LOCKHART, C. B. HIGGINSON,
and J. L. TOWLEY, Respondents.
1. MandamusApplicationPractice. On filing an application for mandamus, the general practice of the
supreme court is to issue an order to respondents to show cause why the relief asked should not be
granted.
2. SameProper Method of Raising Issues. While there is little difference whether the issues on a mandamus
proceeding are raised by motion to quash the citation or by demurrer, it is the better practice to raise any
objection by demurrer or answer.
3. SameSeparate DemurrersPropriety. Where an affidavit for mandamus was entitled against a corporation
and individuals, who were its directors, separate demurrers filed by the individual defendants and
respondents are proper.
4. SameGroundsAbsence of Other Legal Remedy. Mandamus to compel the issuance and delivery of the
stock of a corporation will not lie unless the stock sought to be recovered has some pecuniary or special
value peculiar in itself, differing from that of other like shares, or unless the shares are detained and the
control of some corporation is at issue, and by securing the shares in question the party applying for a
writ would obtain control; and in such cases it must affirmatively appear from the petition that the relator
has a clear legal right to their possession, and that he has no plain, speedy, and adequate complete remedy
at law.
Mandamus by the State, on the relation of John B. Gleeson, against the Jumbo Extension
Mining Company, and others. Petition dismissed.
The facts sufficiently appear in the opinion.
Lewers & Huskey and McNutt & Hannon, for Relator:
I. It is conceded in limine that the writ of mandate may not properly issue where there is
an adequate remedy through the ordinary proceedings of law. Indeed, the writ was contrived
to afford relief where such ordinary proceedings were not adequate to do so. It is further
conceded that, while, as observed by Cook, there is an irreconcilable conflict on the question,
the weight of authority seems to be that courts will not issue the writ of mandate to compel a
corporation to transfer upon its books, at the action of the purchaser, shares purchased
from a former owner.
30 Nev. 192, 193 (1908) State v. Jumbo Extension Mining Co.
transfer upon its books, at the action of the purchaser, shares purchased from a former owner.
But it should be observed that in many of such cases, and this is true of several of the cases
cited by respondents' counsel, other facts supervened which rendered the use of the mandate
improper. We cite as an instance of this sort The State of Nevada ex rel. Elliott v. Guerrero, et
al., 12 Nev. 105. In that case this court says: Mandamus ought not to be issued to compel the
trustees to issue certain certificates of stock to relator where it appears from the petition that
the stock is also claimed by other persons not parties to the proceeding before the court.
Respondents had answered setting forth that others, third persons, were the owners of the
stock and that the relator was not. It is true that the court placed its decision upon the ground
also that the relator had an adequate remedy at law; that, having failed to show any peculiar
value in the stock, the transfer of which he sought, the remedy by action against the
corporation for damages was adequate.
II. Before passing from the category of cases which relate to the transfer of stock from the
seller to the purchaser by the corporation upon its books, we desire to submit some
observations in respect of the reasons upon which these decisions appear to proceed. These
reasons, as stated both by judges and text-writers, are principally two: First, that an adequate
remedy at law exists in an action against the corporation for damages as for conversion:
second, that, as long as other shares of the corporation's stock of the same dignity or character
are extant and may be purchased in the open market, there is no occasion to award the
remedy. The latter of these reasons has not seemed at all satisfactory to us, unless, indeed, the
party seeking the remedy by mandamus is shown to have purchased the stock by an executory
contract; that is, that he has but contracted to purchase, but has not paid for them. For, if he
has paid for them it might well be that he would have nothing left with which to purchase on
the market other shares, although they might be of equal value and dignity, at any price. To be
sure, if he had not paid for them, he might buy other shares of like quality.
30 Nev. 192, 194 (1908) State v. Jumbo Extension Mining Co.
quality. But what assurance would he have that the corporation will transfer these?
III. Counsel for the respondents fail to show how the relator in the present action could
obtain adequate relief. What is the adequate, specific, and legal remedy to which he would
have this court relegate the relator? If the facts stated in the petition are true, and the demurrer
admits their truth, will an action against the respondent corporations afford such relief? If it
be true that the mining claims and mines owned by these corporations are of great, but as yet
unknown, value, and if fluctuations are constantly occurring in the market quotations of their
shares of stock, and if, as is fairly well known to be the fact, these shares may grow into many
times their present value, dependent upon the management of the corporation, the diligence or
want of it, with which the work of its development is prosecuted, will this court, by the denial
of this writ, say to him that his adventure shall terminate now; that he shall not be admitted
into the membership of the corporation, and take part in the future management and
prosecution of its development, and share, as was contemplated in the very nature of his
contract, in the augmenting profits of the enterprise, but he shall stop short now, and content
himself with bringing an action against the corporation for the conversion of his stock some
months ago when the officers of said corporations refused to issue to him the proper
certificates which would clothe him with the proper powers of a shareholder, and enable him
to participate in the management of the propertyhis property?
Key Pittman, and Watson & Van Dyck, for Respondents:
I. As to the briefs on said demurrers and motions: Attorneys for relator, in a half-hearted
way, attempt to urge a reason, different from the reason which we contended for, in State ex
rel. Elliott v. Guerrero, 12 Nev. 105, and Durham v. Monumental S. M. Co., 9 Or. 43, by
quoting that part of the opinion which deals with the doubtful ownership of the stock,
delivery of which was sought. There is no doubt, but that two things must appear before
mandamus will issue, namely: (1) It must appear from the petition or from the trial that the
plaintiff and relator has an undisputed right to the property involved.
30 Nev. 192, 195 (1908) State v. Jumbo Extension Mining Co.
trial that the plaintiff and relator has an undisputed right to the property involved. (2) That he
has no other plain, speedy, and adequate remedy at law. In both of the cases last referred to
the court doubted whether or not the plaintiff and relator had shown a clear right to the
property involved, and therefore commented upon such question, but an examination of each
decision shows that the court, while mentioning the other points, rendered its decision in each
case entirely on the question that the plaintiff and relator therein had a plain, speedy, and
adequate remedy at law. The language of the opinions in both cases has been quoted fully in
defendants' opening brief, and will not, therefore, be quoted again. Attorneys for plaintiff and
relator attack Kimball v. Union Water Company by stating that the Supreme Court of
California, many years before said case was decided, had in another case held a contrary
view. In the event of conflict between decisions of the same court, we are of the belief that
the latter decision controls. We are surprised at the interpretation which attorneys for plaintiff
and relator have given the case of Slemmons v. Thompson, 31 Or. 514. It is true that in that
case a writ of mandamus was granted, but, in granting such writ, the court quoted with
approval Durham v. Monumental S. M. Co., 9 Or. 43, and carefully and clearly distinguished
the facts in the two cases. Counsel for defendants in their opening brief went so fully into this
distinction that it seems unnecessary to explain it again. In said case, however, the court
stated that plaintiff and relator did not have an adequate remedy at law, for the sole reason
that it appeared from the petition that the defendant had sold and disposed of all its property
for the sum of ten dollars and that said defendant had neither money nor property and was
therefore insolvent; and that for such reason any judgment obtained by plaintiff and relator
would be unavailing. The learned attorneys have simply quoted a general proposition of law
laid down in that case, and, through lack of careful consideration of said case, have failed to
set out its distinguishing features.
II. The rule, as laid down in the cases cited by counsel for defendant, was affirmed by the
Supreme Court of the State of Nevada, at the September term, 1907, in State ex rel.
30 Nev. 192, 196 (1908) State v. Jumbo Extension Mining Co.
State of Nevada, at the September term, 1907, in State ex rel. Botsford v. F. P. Langan,
District Judge, 29 Nev. 459. Judge Sweeney, in delivering the opinion of the court, says: As
the motion to dismiss the appeal raises the same point, to wit, as to whether or not an appeal
which is granted at this time in the case of Van Riper et al. v. Botsford et al., infra, lies from
an order setting aside or vacating a default entered by the clerk, as is desired and attempted to
be accomplished through the means of the extraordinary writ of mandamus, applied for by the
relator, it is plain that the relator has a plain, speedy, and adequate remedy at law, which is
now effective in his favor, and for this reason the application for a writ of mandamus is
hereby ordered dismissed.
By the Court, Sweeney, J.:
This is an application for a writ of mandamus by the relator, John B. Gleeson, against the
Jumbo Extension Mining Company, et al., for the purpose of having issued and delivered to
him 7,500 shares of Jumbo Extension Mining Company stock and 5,625 shares of Vernal
Mining Company stock of Goldfield.
Relator alleges in his petition for the writ that: On or about May 10, 1904, the defendant
corporation, the Jumbo Extension Mining Company, was organized under the laws of the
Territory of Arizona, by the name of Jumbo & Vernal Extension Mining Co,' with a capital
stock of 1,250,000 shares, of the par value of $1 per share, and having its principal places of
business in the City of Phoenix, Arizona, and at Tonopah, in the State of Nevada, and at
Goldfield, in the State of Nevada. Whereupon, on or about said 10th day of May, 1904, it
transferred to R. A. Martin, C. B. Higginson, and J. T. Jones each 200,000 shares of its said
capital stock, in consideration for certain mining claims transferred by them severally to said
corporation. The other and remaining 500,000 shares of such stock were deposited in the
company's treasury to be sold thereafter for development purposes. Afterwards, on or about
the 21st day of June, 1904, said corporation sold to this plaintiff and relator 7,500 shares of
its said capital stock out of the treasury of the said company for the sum of $300 then and
there paid to said corporation by this plaintiff and relator.
30 Nev. 192, 197 (1908) State v. Jumbo Extension Mining Co.
shares of its said capital stock out of the treasury of the said company for the sum of $300
then and there paid to said corporation by this plaintiff and relator. At the time of the
purchase of said stock by the plaintiff and relator the said defendant corporation, its officers
and agents claimed and represented, and the fact was, as plaintiff and relator was informed
and believed, that the said company had not as yet procured its blank certificates of stock,
and, because thereof, could not and did not issue a certificate in the usual form for said 7,500
shares so bought by him. But the said corporation through its proper officers did issue to the
plaintiff and relator the following instrument, to wit: Goldfield, Nevada, June 21, 1904. This
is to certify that, in consideration of J. B. Gleeson having this day paid into the treasury of the
Jumbo and Vernal Extension Mining Company the sum of three hundred dollars ($300), he,
the said Gleeson, is entitled to have issued to him seven thousand and five hundred (7,500)
shares of the capital stock of said company held in reserve as treasury stock. Jumbo & Vernal
Extension Mining Company, by H. B. Lind, Its Secretary.' That later, as plaintiff and relator is
informed and believes and therefore alleges, the said corporation procured such certificates of
stock. Whereupon and continuously thence forward hitherto this plaintiff and relator became
entitled to have the said 7,500 shares of stock issued to him, and this plaintiff and relator has
from time to time demanded of the said Jumbo Extension Mining Company, and of its proper
officers, that a certificate of such stock should be issued to him, but to issue the same the said
corporation and its officers have declined and refused. On information and belief, plaintiff
and relator alleges that there are in the treasury of the said company shares of its stock
sufficient to enable the said company to perform its contract with the plaintiff and relator.
It is further alleged by reason of a consolidation of certain mining claims with the Jumbo
& Vernal Extension Mining Company, and by reason of the alleged ownership of 7,500
shares of the Jumbo Extension & Vernal Mining Company as above set forth, the relator
became entitled to 5,625 shares of the stock of the Vernal Mining Company of Goldfield
issued to him.
30 Nev. 192, 198 (1908) State v. Jumbo Extension Mining Co.
issued to him. Relator further alleges that none of the stock which it is alleged he purchased
for said $300 has ever been delivered to him, and that the corporation and officers of said
corporation, above-named defendants, refuse to issue and deliver the same to him. Upon the
filing of this petition, this court granted an order to show cause to the above-named
defendants commanding them to appear on a day certain, and show cause, if any they have,
why this court should not on this said petition, and at such time issue a peremptory writ of
mandate commanding the defendants to issue to said relator 7,500 shares of the capital stock
of the Jumbo Extension Mining Company and 5,625 shares of the capital stock of the Vernal
Mining Company of Goldfield as claimed by relator in his petition. In due time defendants
appeared and interposed a motion to quash the citation and also a demurrer, both of which set
forth identically the same grounds.
If the motion to quash the citation were granted or denied, its effect would be the same as
that sought to be obtained if the demurrer were sustained or overruled. This motion to quash
the citation for a writ of mandamus and the demurrer interposed upon the same grounds is
confessed to have been done by counsel for defendants because of a doubt in his mind as to
which procedure was the proper one. In view of the fact that the court on the filing of relator's
petition issued an order to respondents to show cause why the relief sought in the petition for
writ of mandamus should not be granted, which is the practice now generally followed by this
court in mandamus proceedings, defendants were given an opportunity on said date
commanded in the citation to raise any objections they desired and chose to interpose their
objections both by demurrer and motion to quash the citation. While there is little difference
in the way these issues are raised, we think the better practice in the future to be pursued in
similar cases is to raise any objections to the petition by demurrer or answer.
Defendants set forth in their demurrer and motion to quash the citation for writ of
mandamus their reasons why said peremptory writ should not issue, as follows:
(1) That said affidavit or petition of said relator upon which the alternative writ herein
issued and wherein the relator seeks a peremptory writ of mandamus from this court
does not state facts sufficient to entitle said relator to the relief in said petition prayed
for, or to the peremptory writ of mandamus referred to in the alternative mandamus or
citation herein issued.
30 Nev. 192, 199 (1908) State v. Jumbo Extension Mining Co.
which the alternative writ herein issued and wherein the relator seeks a peremptory writ of
mandamus from this court does not state facts sufficient to entitle said relator to the relief in
said petition prayed for, or to the peremptory writ of mandamus referred to in the alternative
mandamus or citation herein issued.
(2) That it does appear from said affidavit or petition that said relator has no plain,
speedy, and adequate remedy at law.
(3) That it does not appear from said affidavit or petition of said relator that he has a
plain, speedy, and adequate remedy at law by an action against said defendant corporation for
the value of the stock claimed by said relator. It further appears from said affidavit or petition
that said relator has a plain, speedy, and adequate remedy in equity by an action against said
defendant corporation for a specific performance of his said alleged contract.
(4) It affirmatively appears from said affidavit or petition of said relator that said
defendant corporation is solvent, and is able to respond in damages for any judgment said
relator may obtain against said corporation for the value of said stock so alleged to be
wrongfully withheld from said relator by said defendant corporation and its officers.
(5) It affirmatively appears from said affidavit or petition that said defendant corporation
has ample of said stock in its possession to satisfy any judgment said relator might obtain in a
court of equity for the specific performance of said alleged contract and order to deliver said
stock.
(6) That the remedy sought under the statement of facts in said affidavit or petition of
said relator does not require the compelling of the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station or to compel the
admission of a party to the use and enjoyment of a right or office to which he is entitled.
(7) It does not appear from said affidavit or petition that the issuance of said stock was
ever authorized by the board of directors of said defendant corporation, or that the execution
of said agreement set out in plaintiff and relator's petition, dated June 21, 1904, and signed by
H. B. Lind as secretary of the defendant corporation, Jumbo & Vernal Extension Mining
Company, was ever authorized by said defendant corporation, or ever ratified thereafter
by the same; and it does not appear that the president or secretary or directors of said
defendant corporation have any authority to issue to said relator any stock of said
defendant corporation, or any other corporation upon the surrender of said instrument set
up in said petition, dated June 21, 1904.
30 Nev. 192, 200 (1908) State v. Jumbo Extension Mining Co.
secretary of the defendant corporation, Jumbo & Vernal Extension Mining Company, was
ever authorized by said defendant corporation, or ever ratified thereafter by the same; and it
does not appear that the president or secretary or directors of said defendant corporation have
any authority to issue to said relator any stock of said defendant corporation, or any other
corporation upon the surrender of said instrument set up in said petition, dated June 21, 1904.
(8) It does not appear from said affidavit or petition that said Albert S. Watson, trustee,
has ever executed his said trust or delivered said stock of said Vernal Mining Company of
Goldfield into the possession of said Jumbo Extension Mining Company.
(9) That the court has no jurisdiction over the subject-matter of said petition, or to issue
the writ therein prayed for, for the reason that it does not appear from said petition that said
plaintiff and relator has no plain, speedy, or adequate remedy at law.
Before considering the objections raised as to the issuance of the peremptory writ by the
demurrer of the respondents, we believe it advisable to first pass upon a question raised in
relator's brief wherein he raised the following objection to our considering the demurrer or
motion to quash as interposed by the respondents.
In his opening brief relator asserts: We respectfully submit that no question is or can be
properly raised by the separate and independent demurrers and motions filed by T. G.
Lockhart; by Edward S. Van Dyck; by Mrs. T. G. Lockhart, C. B. Higginson, J. L. Towley,
and the Jumbo Extension Company; and by the Vernal Mining Company. These seem to have
been filed by the above persons in their individual capacities, on the theory that the action is
against the respondents as individuals, and not as a board of directors. There is no showing
that any one of these numerous motions and demurrers are the motions or demurrers of the
board of directors as such. In fact, it clearly appears that they are not, but are the pleadings of
the individuals named. Therefore, it necessarily follows that there is no appearance of the
board of directors of either company. This court cannot consider the personal and individual
appearance of the above individuals."
30 Nev. 192, 201 (1908) State v. Jumbo Extension Mining Co.
cannot consider the personal and individual appearance of the above individuals.
We do not consider there is any merit in the objection raised by relator to preclude this
court from considering the points raised in respondent's demurrer. The demurrer and motion
complained of are entitled in every respect in the same way as relator's petition for a writ of
mandamus, and have the same entitlement as the order of this court issued to said defendants
commanding them to appear. It is evident that, if the objections raised by relator have any
merit or force, their petition should be dismissed. We believe for the purposes of the petition
and the order as issued that all parties are now before the court, and that the objections raised
by respondents have been properly submitted. This court has repeatedly and recently held
(State ex rel. Botsford v. District Judge, 29 Nev. 459) in line with principles so clearly and
tersely expressed by High on Extraordinary Legal Remedies, here quoted and supported by
innumerable authorities and text-writers when mandamus ought and will issue, and that it will
not issue where the petitioner has a plain, speedy, and adequate remedy at law.
The writ of mandamus being justly regarded as one of the highest writs known to our
system of jurisprudence, it issues only where there is a clear and specific legal right to be
enforced, or a duty which ought to be and can be performed, and where there is no other
specific and adequate legal remedy. Since the object of a mandamus is not to supersede legal
remedies, but rather to supply the want of them, two prerequisites must exist to warrant a
court in granting this extraordinary remedy: First, it must be shown that the relator has a
clear, legal right to the performance of a particular act or duty at the hands of the respondent;
and, second, it must appear that the law affords no other adequate or specific remedy to
secure the enforcement of the right and the performance of the duty which it is sought to
coerce. The test to be applied, therefore, in determining upon the right to relief by mandamus,
is to inquire whether the party aggrieved has a clear, legal right, and whether he has any other
adequate remedy, since the writ belongs only to those who have legal rights to enforce, who
find themselves without an appropriate legal remedy." "From the origin, nature, and
purpose of the writ, * * * it has been shown to be an extraordinary remedy, applicable
only in cases where the usual and accustomed modes of procedure and forms of remedy
are powerless to afford relief.
30 Nev. 192, 202 (1908) State v. Jumbo Extension Mining Co.
who have legal rights to enforce, who find themselves without an appropriate legal remedy.
From the origin, nature, and purpose of the writ, * * * it has been shown to be an
extraordinary remedy, applicable only in cases where the usual and accustomed modes of
procedure and forms of remedy are powerless to afford relief. It follows, therefore, from the
principles already established, as well as from the very nature and purpose of the remedy
itself, that the writ never lies when the party aggrieved has another adequate remedy at law,
by action or otherwise, through which he may attain the same result which he seeks by
mandamus. This principle is of the highest importance in all cases where it is necessary to
determine upon the propriety of interference by mandamus, and the rule will be found to be
firmly established as one of the fundamental principles underlying the entire jurisdiction, that
the existence of another specific, legal remedy, fully adequate to afford redress to the party
aggrieved, presents a complete bar to relief by the extraordinary aid of a mandamus. The rule
has been recognized from the earliest times, and it has been applied throughout the entire
growth and development of the law of mandamus. Indeed, it results from the very nature and
origin of the writ, which was introduced to supplement the existing jurisdiction of the courts,
and to afford relief in extraordinary cases where the law presented no adequate remedy. The
existence or non-existence of an adequate and specific remedy at law in the ordinary forms of
legal procedure is therefore one of the first questions to be determined in all applications for
the writ of mandamus, and whenever it is found that such remedy exists, and that it is open to
the party aggrieved, the courts uniformly refuse to interfere by the exercise of their
extraordinary jurisdiction. (High on Extraordinary Legal Remedies, 3d ed. 9, 10, 15.)
In the light of these fundamental principles we believe, for the purpose of disposing of this
case, all questions presented and objections raised can be properly resolved into the following
query, and answered, to wit: Does the petition as presented state facts sufficient to warrant
this court in issuing a peremptory writ of mandamus to compel the issuance and delivery of
stock in a corporation?
30 Nev. 192, 203 (1908) State v. Jumbo Extension Mining Co.
the issuance and delivery of stock in a corporation? An examination of the petition of relator
reveals that it is nowhere alleged therein, nor is it claimed or maintained, that these 7,500
shares of Jumbo Extension stock an 5,625 shares of Vernal Mining Company stock have any
peculiar or especial or greater value in themselves over any like number of shares of stock in
either of said companies; nor is it anywhere alleged that any stock in either of said
corporations, so long as it is of the same number of shares, would not satisfy petitioner's
demand; nor is it alleged or maintained that the defendants are insolvent, nor that they are
incapable of delivering the number of shares of stock claimed; nor is it alleged that they are
unable to respond in damages for a judgment for the stock should a judgment be awarded
against defendants in a proper action for the recovery of said stock or damages for the
conversion of same.
The petition further fails to disclose that the board of directors of said corporation
authorized the secretary of said corporation to sell said stock, or to enter into any agreement
with said relator to sell said stock for the amount alleged to have been paid.
The supreme court of this state has held in Ex rel. Curtis v. McCullough, 3 Nev. 202, that,
before a writ of mandamus will issue, the right of relator must appear plain and beyond
dispute.
High on Extraordinary Legal Remedies, 3d ed., sec. 313, p. 286, says: In conformity with
the general principle that mandamus will not lie when other adequate and specific remedy
may be had at law, the courts refuse to lend their interference by this extraordinary writ for
the purpose of compelling the transfer to a purchaser of shares of capital stock upon the books
of an incorporated company, or to compel a company to issue certificates of stock. In all such
cases full and complete satisfaction, equivalent to specific relief, may be had by an ordinary
action at law to recover the value of the stock, and the existence of such other remedy is a
complete bar to the exercise of the jurisdiction by mandamus when it does not appear that the
particular stock in question possesses any especial value over other stock of the corporation.
30 Nev. 192, 204 (1908) State v. Jumbo Extension Mining Co.
corporation. And upon similar grounds, the writ will be denied when sought to compel the
officers of a corporation to issue shares of its capital stock to subscribers who are entitled
thereto.
Bliss on the Law of Pleading, sec. 444, p. 685, says: Mandamus is never the remedy to
enforce the performance of duties growing out of contractual rights. The same author, at
section 446, page 685, says: The remedy by mandamus will never be granted where the
usual and ordinary modes of proceeding afford adequate redress to the party.
Cook on Corporations, vol. 2, p. 864, sec. 390, says: The authorities are in irreconcilable
conflict on the question whether mandamus lies to compel a corporation to allow a registry on
its books of a transfer of stock. The weight of authority holds very clearly that mandamus will
not lie. This rule is based largely on the historical origin of the writ of mandamus, and on the
theory that the stock of a private corporation has no peculiar value, and may be readily
obtained in open market or fully compensated for in damages. And at section 392: An
action at law for damages is an old and well-established remedy of a stockholder who has
applied to the corporation for a registry of a transfer and has been refused.
The Supreme Court of Oregon in the case of Durham v. Monumental Silver Mining
Company, 9 Or. 41, held that, where the plaintiff claimed to be the owner of certain shares in
a mining corporation by purchase at a sheriff's sale which the secretary refused to transfer on
the stock book, mandamus was not the proper remedy, as plaintiff had an adequate remedy at
law by an action against the corporation for the value of the stock claimed; and by reason of
this remedy, they had a plain, speedy, and adequate remedy in the ordinary course of law, and
denied the application for a writ of mandamus. The same court in Slemons v. Thompson, 23
Or. 215, 31 Pac. 514, quoted with approval and distinguished the principle laid down in
Durham v. Monumental Silver Mining Company.
The Supreme Court of California in the case of Kimball et al. v. Union Water Company et
al., 44 Cal.
30 Nev. 192, 205 (1908) State v. Jumbo Extension Mining Co.
al. v. Union Water Company et al., 44 Cal. 175, 13 Am. Rep. 157, held that: It has been so
frequently decided that a party entitled to stock in a private corporation has an action in
damages against the corporation for the refusal of its officers to transfer the stock to him on
the company's books that it must be considered as a settled principle of law, and that
mandamus will not lie to compel the transfer. (King v. Bank of England, 2 Doug. 526;
Shipley v. Mechanics' Bank, 10 Johns. [N. Y.] 484; Wilkinson v. Providence Bank, 3 R. I. 22;
Ex parte Fireman's Ins. Co., 6 Hill [N. Y.] 243; American Asylum v. Phoenix Bank, 4 Conn.
172, 10 Am. Dec. 112; Sargent v. Franklin Ins. Co., 8 Pick. [Mass.] 90, 19 Am. Dec. 306.)
The Supreme Court of Missouri in the case of City of St. Louis v. Bessel, 46 Mo. 157, in
an application for a writ of mandamus for the transfer of stock on its books, said: It is very
clear that relator misconceives his remedy, and that he may obtain adequate and ample
redress without resorting to a proceeding by mandamus. If he has a good title to the stock, he
can recover the market value in an ordinary action. It is the uniform and current rule of the
courts that, when a corporation improperly refuses to transfer stock on its books, the party
injured has an ample remedy by action, an therefore a mandamus to compel such transfer will
not lie.
The Supreme Court of Nevada in the case of State of Nevada ex rel. A. B. Elliott, Relator,
v. Biaggio Guerrero et al., Respondents, 12 Nev. 107, in an action similar to this, held: We
are of the opinion that mandamus is not the proper remedy, for the reason that relator has a
plain, speedy, and adequate remedy at law by an action against the corporation for the value
of the stock claimed.
From an examination of the authorities as to when mandamus will lie to compel the
issuance and delivery of stock of a corporation, I am of the opinion that it will never lie
unless the stock sought to be recovered has some pecuniary or special value peculiar in itself
and of a different value from any like number of shares sought to be recovered, or unless,
where shares of stock are detained and the control of some corporation is at issue, and by the
securing of the same the party applying for a writ of mandate would obtain control, and in
all such exceptional cases it must affirmatively appear from the petition that the relator
has a clear, legal right to the possession of the same, and that he has no plain, speedy,
and adequate remedy at law.
30 Nev. 192, 206 (1908) State v. Jumbo Extension Mining Co.
same the party applying for a writ of mandate would obtain control, and in all such
exceptional cases it must affirmatively appear from the petition that the relator has a clear,
legal right to the possession of the same, and that he has no plain, speedy, and adequate
remedy at law.
The present case does not disclose any such state of circumstances existing as to warrant
this court in granting relator's petition for a peremptory writ of mandate; and said petition is
dismissed.
____________
30 Nev. 206, 206 (1908) State v. Pray
[No. 1732.]
THE STATE OF NEVADA, Respondent, v. C. A. PRAY
and W. J. LANGDON, Appellants.
1. FinesPaymentPayment Under ProtestEffectStatutory Provisions. Criminal practice act, sec. 453
(Comp. Laws, 4418), provides that, if the judgment is a fine and imprisonment, defendant shall be
committed to the custody of the proper officer, and by him detained until the judgment is complied
with. Section 479 of the act (Comp. Laws, 4444) provides that no appeal from a judgment of conviction
other than for a fine only shall stay execution, but the defendant shall remain in custody to abide the
judgment on appeal, unless admitted to bail. Section 666 of the act (Comp. Laws, 4631) requires the
clerk to pay the balance of fines remaining in his hands to the county treasurer. Section 667 of the act
(Comp. Laws, 4632) requires the clerk to pay over fines received within thirty days, and makes failure
to do so a misdemeanor. Comp. Laws, 1208, 4645, require the payment of such funds to the state
treasurer, and under the law they become part of the state school fund, and under Comp. Laws, 1987,
can be paid out only on the warrant of the state controller pursuant to law. Accused was convicted and
fined, with the proviso that in the default of payment he should be imprisoned at the rate of one day for
each two dollars thereof. An appeal was taken, and a stipulation between counsel for accused and the
district attorney showed that the accused paid the fine under protest, that it was held by the clerk
pending the outcome of the appeal, and that the district attorney was willing to permit accused to have
his full rights on appeal, and the money returned if the appeal resulted in his favor. Held, that neither
the clerk nor any one else had any power to make any disposition of the fine other than that provided by
statute, and the arrangement made was void, and, since accused was at liberty without bail, the
judgment for the fine could only be treated as paid.
2. Criminal LawAppealDismissalGroundsPayment of Fines. Where an order appealed from is of such
a nature that its execution has left nothing upon which a judgment of reversal can operate, the appeal
will be dismissed unless such right was especially reserved; hence, where one convicted of a crime has
paid his fine under protest, attempting to reserve his rights on appeal, but such
reservation is void, an appeal from the judgment will be dismissed, since the
money could not be returned to him, and no effectual relief could be granted.
30 Nev. 206, 207 (1908) State v. Pray
attempting to reserve his rights on appeal, but such reservation is void, an appeal from the judgment
will be dismissed, since the money could not be returned to him, and no effectual relief could be
granted.
3. SameVenueReceiving Stolen Goods. The rule of the common law requiring that an indictment be found
in the county where the crime was committed prevails in Nevada, and, while the crime of larceny is an
exception to the rule, in the absence of statute the venue of the crime of receiving stolen goods is in the
county where they are received, and not in the county where they are stolen, nor the one to which they
are subsequently taken.
4. Receiving Stolen GoodsElements of OffenseStatutory Provisions. Under crimes and punishments act,
sec. 65 (Comp. Laws, 4719), providing that every person who, for his own gain or to prevent the owner
from again possessing his property, shall buy or receive stolen goods, knowing the same so to have
been obtained, shall upon conviction be imprisoned, etc., there are three material and essential elements
of the offense, to wit: The person charged must receive or buy the property; he must know that the
property was stolen, and there must be a purpose or intent to prevent the owner from again possessing
the property, or to accomplish the receiver's own gain.
5. SameTime of Wrongful ActIntent. The wrongful intent, being a necessary ingredient of the crime, must
exist at the time of the buying or receiving of the stolen goods.
6. Criminal LawVenueStatutory ProvisionsOffense Partially Committed in Different Counties. Criminal
practice act, sec. 85 (Comp. Laws, 4055), provides that when a public offense is committed in part in
one county and in part in another, or the acts of effects thereof constituting or requisite to the
consummation of the offense occur in two or more counties, the jurisdiction shall be in either county.
Stolen goods were purchased, paid for, and received by accused in E. County, and were thereafter
shipped by him to C. County. Held, that C. County had no jurisdiction of the offense, since the offense
of receiving stolen goods is consummated when the goods are received with the unlawful intent
specified in the statute, and the subsequent transportation of the goods into another county to reap the
fruits of the crime is not an act essential to the consummation of the crime, and, if the effect of the
transportation of the goods to C. County constituted the intent to deprive the owner of the property, the
act of receiving was not accompanied by the wrongful intent necessary to constitute the crime.
7. Receiving Stolen GoodsPlace of OffenseVariance. Where the evidence, in a prosecution in C. County for
receiving stolen property, merely shows that the stolen property was purchased by accused in E.
County, the indictment is not sustained by the proof, and the judgment should be reversed on appeal.
Appeal from the District Court of the Second Judicial District of the State of Nevada,
Churchill County; W. H. A. Pike, Judge.
C. A. Pray and W. J. Langdon were convicted of receiving stolen goods, and appealed
from the judgment and an order denying motion for a new trial.
30 Nev. 206, 208 (1908) State v. Pray
stolen goods, and appealed from the judgment and an order denying motion for a new trial.
Pray's appeal dismissed. On appeal of Langdon reversed and remanded.
The facts sufficiently appear in the opinion.
Lewers & Huskey, for Appellants:
I. At common law all criminal prosecutions are local, and an indictment can be found and
prosecution had only in the county in which the crime has been committed. (12 Cyc. 229; 22
Ency. Pl. & Pr. 821; 1 Bishop on Crim. Procedure, 65; Campbell v. People, 109 Ill. 565, 50
Am. Rep. 621.) The common law of England, in so far as it has not been changed by the
Constitution and laws of the United States and of the State of Nevada, is the law of this state.
(Comp. Laws, 3095.) The only apparent exception to the common-law rule of venue is in the
case of larceny where it is held that the thief may be prosecuted, not only where the goods
were first feloniously taken, but in any county through or into which the property has been
carried. Strictly speaking, it is not a real exception, since the common law holds that a new
larceny is committed in each jurisdiction into which the goods were carried by the thief.
(Campbell v. People, 109 Ill. 565, 50 Am. Rep. 623; State v. Brown, 8 Nev. 208.) At
common law the above rule was confined strictly to larceny, but in Nevada the rule has been
enlarged by statute so as to give a like jurisdiction where goods have been taken by burglary,
robbery, and embezzlement, but with these offenses, as with larceny, the rule only applies
where the original offender is found with the goods in his possession.
II. The offense of receiving stolen goods is committed where the goods are received, and
not elsewhere. Carrying afterwards is not a new receiving. (Campbell v. People, 109 Ill. 565;
Licette v. State, 75 Ga. 253; Thurman v. State, 40 S. W. 765.)
III. To recapitulate, we submit that the common law respecting jurisdiction or venue in the
crime of larceny has not been changed in Nevada, but that the statute is simply declaratory
thereof (State v. Brown, 8 Nev. 208); that the common-law rule in larceny has simply been
broadened by Comp.
30 Nev. 206, 209 (1908) State v. Pray
Comp. Laws, 4060, so as to include punishment of burglary, robbery, or embezzlement, as
well as larceny, in the county where the perpetrator of such crime is found with the goods;
that there is no statute in Nevada placing venue in two or more counties for the crime of
buying or receiving stolen goods, and that the crime now under consideration was committed,
if at all, in Goldfield, Esmeralda County, Nevada, more than two hundred miles from where
in said indictment it was alleged to have been committed, and not only outside the County of
Churchill, but far beyond the borders of the Second Judicial District.
IV. Concealment, while it may tend to show guilty knowledge, is not an essential element
of the crime of receiving stolen goods. (Thurman v. State, 40 S. W. 765; Holtz v. State, 30
Ohio St. 486.) The case of Thurman v. State has already been stated and quoted at length. In
Holtz v. State we find the following statement: Concealment would, if proven, tend to show
guilty knowledge. It might be therefore proved, not to support the allegation, that he did
conceal, but to establish scienter. The offense would be completely proved when it appeared
from the testimony that he knowingly bought stolen goods. The words for his own gain
and to prevent the owner from again possessing his property, found in our statute, go only
to the intent at the time of the actual buying or receiving the stolen goods. They do not relate
to any act of carrying or concealing after the crime has been committed, nor do they have the
effect of making such carrying or concealing an element constituting or requisite to the
consummation of the offense. (People v. Ribolsi, 89 Cal. 492; People v. Avila, 43 Cal. 199.)
V. Section 496 of the California penal code reads as follows: Every person who, for his
own gain or to prevent the owner from again possessing his property, buys or receives any
personal property, knowing the same to have been stolen, is punishable by imprisonment in
the state prison not exceeding five years, etc. Under this section, so similar to our Nevada
statute, and very probably the section from which our section 4719 was directly quoted, we
find the case of People v. Ribolsi, where defendant was convicted of feloniously receiving
and buying stolen goods for his own gain and profit and to prevent the owner thereof
from again possessing them.
30 Nev. 206, 210 (1908) State v. Pray
feloniously receiving and buying stolen goods for his own gain and profit and to prevent the
owner thereof from again possessing them. In rendering this opinion the Supreme Court of
California uses the following language: In cases like this the crime is made out if the
accused received or bought the stolen goods, knowing them to be such, either for his own
gain or to prevent the owner from again possessing his property; the guilty intent consisting
either in receiving or buying them for his own gain or to prevent the owner from again
possessing his property. In People v. Avila the indictment charged the receiving of stolen
goods as having been for his own gain, leaving out the words or to prevent the owner from
again possessing his property. The court in this case said: It is unnecessary to allege that the
defendant received stolen property both for his own gain and to prevent the owner from again
possessing his property. The allegation of either intent is, under the statute, sufficient.
Cheney, Massey & Price, for Respondent:
I. The question raised in appellants' brief must be determined by the construction of the
foregoing section of the criminal law of this state as applied to Comp. Laws, 4055,
prescribing the criminal practice. The latter section declares when a public offense is
committed in part in one county and in part in another, or the acts or effects thereof
constituting or requisite to the consummation of the offense occur in two or more counties the
jurisdiction shall be in either county. (Comp. Laws, 4055.) The general rule at common law
is that all offenses, except larceny, are punishable in the county where the offense is
committed, and unless section 4055 changes the rule as applied to section 4079, defining the
crime of receiving stolen property, we concede that appellants' contention is correct. What,
then, are the essential elements of the offense of receiving stolen goods as defined by our
statutes? In answering this question we must look to the language defining the crime. Our
contention is that there are three material and essential elements constituting this offense, the
absence of any one of which elements will defeat a charge of this character under the law:
{a) A person charged must receive or buy the stolen property; {b) he must know that the
property was stolen; {c) the purpose or intent to prevent the owner from again
possessing the property, or for the receiver's own gain, must also exist.
30 Nev. 206, 211 (1908) State v. Pray
which elements will defeat a charge of this character under the law: (a) A person charged
must receive or buy the stolen property; (b) he must know that the property was stolen; (c) the
purpose or intent to prevent the owner from again possessing the property, or for the
receiver's own gain, must also exist. In other words, our contention is that a person who
receives or buys stolen goods, knowing them to be stolen, upon proof of such facts is not
guilty of the offense defined in the statute. There must be additional proof of the intent or
purpose, and, unless such additional intent or purpose is shown, the offense has not been
completed and the proof would be insufficient to support a conviction of the offense charged.
While there are but few authorities respecting the construction of this act, yet, in some
respects directly, and in others by analogy, our contention is maintained. An indictment that
charged a person with having received stolen goods, knowing the same to have been so
obtained, without further averring the intent to prevent the owner from possessing his
property, or the intent for the receiver's own gain, would under the authorities cited in
appellants' brief be fatally defective. (People v. Avila, 43 Cal. 196; People v. Ribolsi, 89 Cal.
492.)
II. It is elementary that every material averment in an indictment must be proven beyond a
reasonable doubt, and failure of proof upon any material averment must result in an acquittal;
therefore, the proof of the offense, under our statutes, must be beyond a reasonable doubt
upon all three of the necessary averments of the indictment. It is incumbent upon the state to
prove beyond a reasonable doubt that the appellants received the property; that when they
received it they knew the same to have been stolen, and that it was their purpose or intent to
deprive the Goldfield-Mohawk Mining Company of its property.
III. The effects of the proof of the carrying of the property into Churchill County were
requisite to the consummation of the offense committed by the defendants as to the element
of depriving the owner of again possessing the same; the act of the defendants in carrying the
property into Churchill County, and the effect of those acts constituted the element of the
intention to deprive the Goldfield-Mohawk Company of its property, and such being the
case by the section referred to, the jurisdiction of the offense was either in Churchill
County or in Esmeralda County.
30 Nev. 206, 212 (1908) State v. Pray
element of the intention to deprive the Goldfield-Mohawk Company of its property, and such
being the case by the section referred to, the jurisdiction of the offense was either in Churchill
County or in Esmeralda County. As we have before stated, the mere purchase of stolen
property, knowing the same to be stolen, is not a completed offense, and a charge to that
effect would not be a sufficient charge in an indictment. The additional purpose of preventing
the owner of again possessing his property must be alleged and proven, and, when the proof
of that purpose and intent is shown by the acts of the parties in carrying the stolen property
into Churchill County to sell and dispose of, it is proof of that element of the offense, and
proof of those acts is proof of acts in the consummation of the offense charged. It seems to us
that the language could not import otherwise; that if it does not mean this it has no meaning.
(109 Ill. 572.) Of the case of Campbell v. People, cited in the brief, supra, it is sufficient to
say that it sheds no light on the case at bar whatever. Under the Constitution of Illinois the
local jurisdiction of all offenses was limited to the county where the offense was committed.
The statute follows the constitutional provision and there was no such statute as our section
4055, and there was no limitation upon the jurisdiction except the common-law limitation as
to larceny, where each asportation of the property was declared to be a new and separate
larceny. Outside of the offense of grand larceny every offense had to be prosecuted in the
county where the venue was laid. (Licette v. State, 75 Ga. 253.)
IV. The Supreme Court of Tennessee in the case of Rice v. State, 3 Heisk. 226, held that
the essence of the offense under their statute of receiving stolen property, knowing it to be
stolen, is that the receipt of the property is accompanied by fraudulent intent to deprive the
true owner thereof. In Hurrell v. State, 5 Humph. 69, it was held that an indictment charging
a person with receiving stolen property must aver that it was with the intent to deprive the
true owner thereof. And if such is the law in Tennessee, then the mere receiving stolen
property, knowing it to have been stolen, is not an offense and does not become an offense
until the intent to deprive the owner thereof has been established by facts, the effect
thereof constituting the consummation of the offense.
30 Nev. 206, 213 (1908) State v. Pray
until the intent to deprive the owner thereof has been established by facts, the effect thereof
constituting the consummation of the offense. In other words, I may receive or purchase
stolen property, knowing the same to have been stolen, and without any intent to deprive the
owner of the possession of the property or without any purpose for my own gain, but if, after
its receipt, with this knowledge, and while it is still in my possession, I remove the property
to Churchill County for the purpose of depriving the owner of it, or for the purpose of my
own gain, then I have violated this substantive crime, and proof of the removal to Churchill
County is proof of an act the effect of which constitutes the consummation of the offense, and
the jurisdiction is either in Churchill County or Esmeralda County. It is well in this
connection to note the definition of consummation. The Century Dictionary defines the word
consummation as accomplishment, completion, end, the fulfillment or conclusion
of anything. Now, an act in the fulfillment of the intent to deprive the owner of his property,
or an act in completion of the intent to deprive the owner of his property, is an act in the
consummation of the offense of receiving stolen property as defined by our statute, and if
such act is committed in the county other than where all the acts in the commission of the
offense were committed, then the jurisdiction is in either of the counties.
V. The Superior Courts of Kansas and Tennessee both have recognized the elementary
principle that the mere intent to commit a crime is not a crime, but that an intent coupled with
a criminal act is a crime. Therefore, if any overt act, or the effect of any overt act, was
committed by the defendants Pray and Langdon in proof of their intent to deprive the owner
of its property or for their own gain in Churchill County, then the offense was committed
partly in one county and partly in another, and under the section of our statute the jurisdiction
was in either county. The payment of the fine by Pray was a waiver of any right of appeal, and
his appeal should be dismissed. It is settled that the appellate court will not determine merely
a speculative question, that it will not consider an appeal from a sentence which has been
acquiesced in, or where the accused has voluntarily paid the fine imposed upon him, and
that such acquiescence and payment is a waiver of his right of appeal.
30 Nev. 206, 214 (1908) State v. Pray
been acquiesced in, or where the accused has voluntarily paid the fine imposed upon him, and
that such acquiescence and payment is a waiver of his right of appeal. And that such waiver
will be implied from any act on the part of the defendant inconsistent with his intention to
take an appeal. (State v. Call, 14 Me. 421; Batesburg v. Mitchell, 37 S. E. 36; State v.
Westfall, 37 Iowa, 575; State v. Burthe, 1 South. 652; Payne v. State, 12 Tex. App. 160;
Madsen v. Kenner, 4 Pac. 992.) Pray having paid the fine, his appeal should be dismissed.
Both the defendants, having requested the court that if it would impose the penalty by fine,
and not by incarceration in the penitentiary, they would pay off and discharge the fine, by
their acts waived their right of appeal. And it is to determine a mere speculative proposition
that this appeal is prosecuted.
Lewers & Huskey, for Appellants, in reply:
I. In all crimes, with the exception of a few statutory offenses where no intent whatever is
necessary, the act and the intent must accompany each otherthat is, they must be
simultaneous. (1 Bishop's New Crim. Law, 204-208; 12 Cyc. 147; State v. Gardner, 5 Nev.
377.) Crime may be committed under either of the following states of mind: (1) With no
intent at all, as where a crime results from a negligent act, or in a few public torts, etc. (2)
With a general or simple intent to do the act. (3) With a specific intentthat is, with a simple
intent to do the act, either intensified by a feeling of malice, hatred, etc., or accompanied by
another and particular intent to accomplish something by means of the act. The former may
be illustrated by such crimes as murder, arson and treason; and the latter (where the double
intent is required), by burglary, larceny, assault with intent to kill, malicious destruction of
property and receiving stolen goods. (12 Cyc. 147-152.) The words for his own gain and
to prevent the owner from again possessing his property, required by our statute in defining
the crime of receiving stolen goods, go only to the state of mind or intent necessary at the
time the goods are receivedthat is, they expressly set out the particular or specific intent
which must accompany and be simultaneous with the simple intent to buy or receive the
goods.
30 Nev. 206, 215 (1908) State v. Pray
must accompany and be simultaneous with the simple intent to buy or receive the goods. It is
elementary that the necessary intent and the act must coincide in point of time. (People v.
Ribolsi, 89 Cal. 492; People v. Avila, 43 Cal. 196; People v. Tilley, 135 Cal. 61.)
II. In the case at bar, if Mr. Pray had purchased and received the ore, knowing it to be
stolen, but for any legitimate purposefor example, the purpose of returning it to its rightful
owner, or with any other intent not criminaland had afterwards formed the purpose or
intent to take the property for his own gain, the offense of receiving stolen goods would not
have been committed. That is, no subsequent mental state or intent is sufficient. The specific
intent required by the statute must accompany and be simultaneous with the act.
III. Comp. Laws, 4055, does not, as is claimed by the respondent, abrogate the
common-law rule concerning locus of crime, but its purpose is to, and it does, prevent the
application of the very early rule in criminal law concerning juries. In early times juries were
viewers of the fact, and it was necessary that they be from the county where the entire act was
committed, otherwise no trial was possible. Thus in murder cases where the blow was struck
or the injury inflicted in one county, and death occurred in another, it was necessary, and was
the custom, to take the body to the county where the blow was originally struck in order to
secure trial.
IV. The motion to dismiss this appeal should be denied, for the reason that a criminal
appeal, regularly taken and within the time allowed by law, cannot be attacked by matter
outside the record; and for the further reason that inquiry on a motion to dismiss an appeal is
limited to ascertaining, first, whether an appeal lies in a given case, and, second, whether it
has been regularly taken and perfected. (2 Ency. Pl. & Pr. 347; Hines v. Cochran, 35 Neb.
828; Dinet v. People, 73 Ill. 183.) The question whether an appeal lies and is regularly taken
must be decided upon the record, and can be determined by the facts appearing only from the
record, without the aid of extrinsic circumstances. (2 Ency. Pl. & Pr.
30 Nev. 206, 216 (1908) State v. Pray
Pr. 347; O'Brien v. Smith, 37 N. Y. St. Rep. 43.) And where opposing affidavits raise
conflicting questions of fact, the motion to dismiss will be denied. (2 Ency. Pl. & Pr. 347;
Hill v. Hermans, 59 N. Y. 396; Lewis v. Tilton, 62 Iowa, 100; New Orleans Nat. Bk. Asso. v.
New O. Mut. Ins. A., 100 U. S. 43.) The claim of the state that Pray and Langdon waived all
error at the trial, and thus abandoned their rights to an appeal by making the statements set
forth in the affidavits on file herein, is met and answered by the rule of law that jurisdiction
on the subject-matterthat is, the right to try the casecan never be waived. (12 Cyc. 228,
and note 43 on p. 229; People v. Granice, 50 Cal. 447; People v. Du Rell, 1 Idaho, 44; Foley
v. People, 1 Ill. 57; State v. Rollet, 6 Iowa, 535; Rice v. State, 3 Kan. 141; Shaw v. People, 3
Hun. 272; Mills v. Com., 13 Pa. St. 627.)
V. Judgment was not satisfied by appellant Pray. The stipulations, certificate of clerk, and
affidavits on file herein, as well as the last page of appellant's brief, show plainly that the
money was simply deposited with the clerk of the Second Judicial District Court, in and for
the County of Churchill, by appellant Pray, in order that he might have his liberty to secure
counsel and to perfect his appeal. The said deposit was given and accepted more in the nature
of bail money than as a fine. The above documents show that there was an agreement at the
time that the money should be held by the said clerk pending this appeal and returned in case
judgment should be reversed. It may be true that receiving the money under such
circumstances and agreement was irregular, and even that Mr. Pray should not have been
given his liberty, but that surely cannot be held to be the wrongful act or the fault of appellant
Pray.
By the Court, Norcross, J.:
Appellants were convicted in the Second Judicial District Court, in and for Churchill
County, of the crime of receiving stolen goods, and were each fined $1,000, with the proviso
that in default of payment they be imprisoned at the rate of one day for each two dollars of
said fine. From the judgment, and from an order denying their motion for a new trial, an
appeal is taken.
30 Nev. 206, 217 (1908) State v. Pray
The state has moved to dismiss the appeal of C. A. Pray upon the ground that he paid the
fine imposed upon him, and having fully satisfied the judgment against him his right of
appeal is lost. This motion is resisted by counsel for appellant Pray upon the ground that by
payment of the fine imposed the defendant does not lose his right of appeal, and further that,
when defendant Pray paid his fine, it was under such circumstances that he reserved such
right. We will concede, for the purposes of this opinion, that the facts relative to the payment
of this fine are substantially as set forth in a stipulation entered into between counsel for
appellant and the District Attorney of Churchill County and filed in the lower court four
months after the appeal was taken.
Said stipulation reads as follows: that the record on appeal shall and may show that
whereas, the judgment of said court against each of said defendants was in the alternative,
and provided for a fine of $1,000, and, in case said fine was not paid, for imprisonment in the
state prison at Carson City, Nevada, and that, whereas, both of the defendants were confined
in the Churchill County jail, at Fallon, Nevada, and neither of them could get out to arrange
for counsel on their appeal and for bail, C. A. Pray, one of the above-named defendants, paid
his fine of $1,000 in gold coin to the clerk of said court, under protest, and only with the
understanding and belief that the same might be held by the said clerk pending his appeal in
said case, and that the payment of said fine, under such circumstances and understanding,
would in no way cut off, or deprive him of, his full right of appeal to the supreme court, and
of his right to have said sum of money, so paid to the clerk of said court, refunded or paid
back to him in case the supreme court should decide that the Second Judicial District Court of
the State of Nevada, in and for Churchill County, had no jurisdiction to try said case, or for
any other reason should dismiss the said defendants or order a new trial of said cause. That
said records may also show the following facts, to wit: That the said defendant, C. A. Pray,
not only paid his said fine, under protest, as above set forth, but that the said sum so paid is
still held by the clerk of the court pending the outcome and final decision of his said appeal,
and that the State of Nevada, so represented by said district attorney, is entirely willing for
said defendant to have his full rights of appeal in said cause, and for the said money to be
returned to him in case the appeal should be decided in his favor."
30 Nev. 206, 218 (1908) State v. Pray
so represented by said district attorney, is entirely willing for said defendant to have his full
rights of appeal in said cause, and for the said money to be returned to him in case the appeal
should be decided in his favor.
It is not contended that the arrangements entered into between the clerk and defendant
Pray were in pursuance of any order of the court or were authorized by law. Counsel for
appellant admit that they were irregular. What was attempted to be accomplished, however,
was not a mere irregularity; it was an attempt to contravene the plain provisions of the statute,
and any such an agreement is void and cannot be countenanced. (State v. Murphy, 23 Nev.
403.) If appellant Pray desired to be released from imprisonment pending his appeal, the only
course open to him was to apply to the court to be released on bail, as did his codefendant
Langdon. Pray never did so apply, and is now enjoying liberty under the law for the sole
reason that he has paid the fine imposed upon him. The mere willingness of the district
attorney to allow defendant Pray his rights of appeal and the amount of his fine restored to
him in case of reversal cannot confer such rights. Section 453 of the criminal practice act
(Comp. Laws, 4418) provides: If the judgment be imprisonment, or a fine and imprisonment
until it be satisfied, the defendant shall forthwith be committed to the custody of the proper
officer, and by him detained until the judgment be complied with. Section 479 of the same
act (Comp. Laws, 4444) provides: No appeal from a judgment of conviction, unless it be one
imposing a fine only, shall stay the execution of the judgment, but the defendant, if in
custody, shall remain in custody to abide the judgment upon the appeal, unless admitted to
bail, as prescribed in section five hundred and two.
The clerk of the district court has no power to make disposition of a fine other than as the
statute provides. The court had jurisdiction of the persons of the defendants and of the crime
charged in the indictment, and the fine was regularly imposed. Neither the court nor counsel
could adopt a course to liberate the defendant other than the statute prescribed. It is hardly to
be concluded that the action taken by the clerk in this case was without knowledge that he
was acting in violation of the law.
30 Nev. 206, 219 (1908) State v. Pray
that he was acting in violation of the law. The defendant, also, must have known that he was
released in contravention of the statute. Although defendant and his counsel have been aware
that defendant was not entitled to liberty except upon the payment of his fine or upon giving
bail, no attempt has ever been made to account for his liberty, except that he is in the position
of having paid his fine and discharged the judgment against him. Under the provisions of
sections 666 and 667 of the criminal practice act (Comp. Laws, 4361, 4362) it was the
imperative duty of the clerk within thirty days after the receipt of the amount of the fine to
pay the same over to the county treasurer. A heavy penalty is imposed for failure so to do.
The full amount of all fines imposed and collected must be transmitted by the county
treasurer to the state treasurer (Comp. Laws, 1208, 4645), when the same becomes a part of
the state school fund, and may only be paid out upon the warrant of the state controller
pursuant to law (Comp. Laws, 1987). When a fine is paid in pursuance of a judgment, the
statute determines what disposition shall be made of it, and neither the trial court nor this
court has power to alter such disposition, and certainly ministerial officials could not. The
judgment against appellant Pray must be treated as satisfied.
There is a conflict among authorities as to whether a voluntary satisfaction of a judgment
waives the right of appeal. Counsel for the state have cited a number of decisions holding that
it does. It is contended by appellant, however, that the weight of authority is the other way,
and this view is taken in 2 Cyc. p.p. 647-648, where numerous authorities are cited in the
notes. We think it unnecessary to determine between these conflicting positions, for under the
view we take this case falls within that class of cases referred to in Cyc. supra: Where an
order appealed from is of such a nature that its execution has left nothing upon which a
judgment of reversal can operate, the appeal will be dismissed, unless such right was
specially reserved. Conceding that in this case an attempt was made to reserve such right, we
have already shown that such attempted reservation was by acts clearly void.
30 Nev. 206, 220 (1908) State v. Pray
The Supreme Court of the United States in the case of Mills v. Green, 159 U. S. 651, 16
Sup. Ct. 132, 40 L. Ed. 293, said: 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. It necessarily follows that
when, pending an appeal from the judgment of a lower court and without any fault of the
defendant, an event occurs which renders it impossible for this court, if it should decide the
case in favor of the plaintiff, to grant him any effectual relief whatever, the court will not
proceed to a formal judgment, but will dismiss the appeal. And such a fact, when not
appearing on the record, may be proved by extrinsic evidence. (Book Co. v. Kansas, 193 U.
S. 49, 24 Sup. Ct. 394, 48 L. Ed. 613; School District v. San Diego County, 97 Cal. 438, 32
Pac. 517; Negley v. Short [City Ct. of N. Y.] 7 N. Y. Supp. 674.)
Upon a reversal of this case, neither this court nor the trail court has power to direct that
the fine paid by defendant Pray be restored to him. Had the clerk of the trial court performed
his plain duty under the statute, the amount paid for the fine would long since have reached
the state treasury. For this or the trial court to give defendant Pray relief from the fine and
order it restored to him would be to give countenance to the illegal acts of the clerk and
himself for which there is no warrant. The appeal of defendant Pray will be dismissed.
The appeal of the defendant Langdon is properly before us. But one question is presented.
Appellants contend that, conceding that an offense was committed, the proofs show
conclusively that it was committed at Goldfield in Esmeralda County; that, this being the fact,
the district court in Churchill County had no jurisdiction to try defendant for the offense
proven. There can be no question but the indictment charges the commission of an offense
within the jurisdiction of the court which tried the cause. The indictment charges that
defendants on the eighteenth day of January, nineteen hundred and seven, * * * at the
township of Hot Springs, in the County of Churchill, * * * for their own gain, then and
there did feloniously buy and receive four sacks of ore, of the value of three thousand
dollars, from a certain person to the jurors unknown, of the goods and chattels of the
Goldfield-Mohawk Mining Company, a corporation, well knowing that the person
unknown to the grand jury had lately before feloniously stolen, taken and carried away
the said four sacks of ore."
30 Nev. 206, 221 (1908) State v. Pray
township of Hot Springs, in the County of Churchill, * * * for their own gain, then and there
did feloniously buy and receive four sacks of ore, of the value of three thousand dollars, from
a certain person to the jurors unknown, of the goods and chattels of the Goldfield-Mohawk
Mining Company, a corporation, well knowing that the person unknown to the grand jury had
lately before feloniously stolen, taken and carried away the said four sacks of ore. It is
conceded that the proofs in this case show that the ore in question was purchased, paid for,
and received by the defendants at Goldfield in the County of Esmeralda. The proofs also
show that after it was so purchased and received it was shipped by defendants from Goldfield
to Hazen, within said Hot Springs Township, in Churchill County. It is not disputed by
counsel for the state that the rule of the common law prevails in this state, and that such rule
requires that an indictment be found in the county in which the crime has been committed.
(Comp. Laws, 3095; 12 Cyc. 229; 22 Ency. Pl. & Pr. 821; 1 Bishop, New Crim. Procedure,
47-49.) The crime of larceny was an exception to this rule, and by statutory enactment the
rule has been modified with reference to certain other specified crimes. For example, our
statute provides that when property feloniously taken in one county by burglary, robbery,
larceny, or embezzlement, has been brought into another, the jurisdiction of the offense shall
be in either county. (Comp. Laws, 4060.) In the absence of a statute, the venue of the crime
of receiving stolen goods is in the county in which they are received, and not in the county in
which they are stolen, nor in a county into which they are subsequently taken. In some
jurisdictions this rule is changed by statute. (12 Cyc. 234.) Appellant was indicted under
section 65 of our crimes and punishments act, which reads as follows: Every person who, for
his gain, or to prevent the owner from again possessing his property, shall buy or receive
stolen goods, or anything the stealing of which is declared to be larceny, or property obtained
by robbery, burglary, or embezzlement, knowing the same so to have been obtained, shall,
upon conviction, be imprisoned in the state prison for a term not exceeding five years, or by
a fine not exceeding one thousand dollars, or by both such fine and imprisonment; and
every such person may be tried, convicted, and punished, as well before as after the trial
of the principal.
30 Nev. 206, 222 (1908) State v. Pray
five years, or by a fine not exceeding one thousand dollars, or by both such fine and
imprisonment; and every such person may be tried, convicted, and punished, as well before as
after the trial of the principal. No person convicted of the offense specified in this section
shall be condemned to imprisonment in the state prison, unless the value of the thing bought
or received shall amount to fifty dollars, but the same shall be punished as provided in cases
of petit larceny. (Comp. Laws, 4719.)
The only contention made by counsel for the state supporting the conviction of appellant in
Churchill County is based upon the provisions of section 85 of the criminal practice act,
which reads as follows: When a public offense is committed in part in one county and in part
in another, or the acts or effects thereof constituting or requisite to the consummation of the
offense occur in two or more counties, the jurisdiction shall be in either county. (Comp.
Laws, 4055.) Counsel in their brief say: Unless section 4055, supra, changes the rule as
applied to section 4719, defining the crime of receiving stolen property, we concede that
appellant's contention is correct. What, then, are the essential elements of the offense of
receiving stolen goods as defined by our statute? In answering this question, we must look to
the language defining the crime. Our contention is that there are three material and essential
elements constituting this offense, the absence of any one of which elements will defeat a
charge of this character under the law: (a) A person charged must receive or buy the property;
(b) he must know that the property was stolen; (c) the purpose of intent to prevent the owner
from again possessing the property, or for the receiver's own gain, must also exist. Counsel
correctly sets forth the essential elements of the crime in question, and it is conceded that the
first two occurred at Goldfield, in Esmeralda County. If the third element, the intent, also
existed at the time of the receiving, then all elements of the crime were present and the
offense was complete in Esmeralda County.
The wrongful intent being a necessary ingredient of the crime charged, such intent must
exist at the time of the buying or receiving of the stolen goods. "To constitute a crime the
act must, except in the case of certain statutory crimes, be accompanied by a criminal
intent, or by such negligence or indifference to duty or consequences as is regarded by
the law as equivalent to a criminal intent, the maxim being, actus non facit reum, nisi
mens sit reaa crime is not committed if the mind of the person doing the act be
innocent."
30 Nev. 206, 223 (1908) State v. Pray
buying or receiving of the stolen goods. To constitute a crime the act must, except in the
case of certain statutory crimes, be accompanied by a criminal intent, or by such negligence
or indifference to duty or consequences as is regarded by the law as equivalent to a criminal
intent, the maxim being, actus non facit reum, nisi mens sit reaa crime is not committed if
the mind of the person doing the act be innocent. (12 Cyc. 147; 1 Bishop's New Crim. Law,
204-208; State v. Zichfeld, 23 Nev. 304-315, 62 Am. St. Rep. 800.) This rule of itself is, we
think, decisive of this case. Counsel, however, argue that the act of the defendants in
carrying the property into Churchill County, and the effect of those acts, constituted the
element of the intention to deprive the Goldfield-Mohawk Company of its property, and, such
being the case, by the section referred to the jurisdiction of the offense was either in Churchill
County or in Esmeralda County. This argument is fallacious, for if there was no wrongful
intent until the property was carried into Churchill County, then the act of receiving was not
accompanied with the wrongful intent necessary to constitute the crime. If the unlawful intent
existed, as it must have existed to constitute the offense, at the time the property was received
at Goldfield, then the crime was complete in Esmeralda County. The very authority which
counsel for the state cite announces the principle of law we have heretofore referred to, and is
an authority, we think, against their position. We quote from the case the following: There
must be a concurrence, in point of time, of the act and intent, to constitute an offense. If the
evil intent existed in the defendant's mind, in Grant County, to receive the animal charged to
have been stolen, there was no act coupled with such intent, and hence there was no
completed crime committed in Grant County by the defendant. (State v. Rider, 46 Kan. 332,
26 Pac. 745.)
There can be no question that the offense of receiving stolen goods is consummated when
the goods are received with the unlawful intent specified in the statute. The subsequent
transporting of the received stolen goods into another county in order to reap the fruits of the
crime is not an act consummating or necessary to consummate the crime.
30 Nev. 206, 224 (1908) State v. Pray
not an act consummating or necessary to consummate the crime. Such act is simply an
evidentiary fact proving or tending to prove the existence of the unlawful intent at the time of
the receiving. When the ore was received with the unlawful intent, the crime was complete
and the venue fixed. The removing of the ore to Hazen for the purpose of selling it and
receiving the money expected to be paid for it may properly be said to be an act in the
consummation of the purpose for which the crime was committed, but it is not an act in the
consummation of the crime itself, for every element of the crime existed before the removal
of the ore into Churchill County. In the position which the state has taken in this case, they
have treated the manifestation of the unlawful intent as the intent itself.
Counsel say that, if section 4055 of the Compiled Laws has no application to the offense
charged in the case at bar, then it has no meaning whatever. This conclusion does not follow.
Many illustrations of cases where this section of the statute would be applicable may be found
in 12 Cyc., at pages 239 and 240. The proofs of crime shown by the record in this case relate
to an offense committed in Esmeralda County, and there is no proof that the offense charged
in the indictment was committed. Under the law as it now exists in this state, we are obliged
to reverse the judgment and the order appealed from by the defendant Langdon.
For the reasons given, it is ordered that the appeal of C. A. Pray be dismissed; that the
judgment of conviction against W. J. Langdon and the order denying his motion for a new
trial be reversed, and the cause is remanded for a new trial or such other proceedings as may
be in consonance with this opinion.
____________
30 Nev. 225, 225 (1908) State v. District Court
[No. 1746.]
THE STATE OF NEVADA, ex rel. WARREN W. WILLIAMS, Relator, v. THE SECOND
JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR
CHURCHILL COUNTY, and JOHN S. ORR and W. H. A. PIKE, Judges of Said
District Court, Respondents.
1. Constitutional LawDelegation of Legislative Power to Judiciary. Const., art. 3, sec. 1, divides the
government of the state into the legislative, executive, and judicial departments, and provides that no
powers belonging to one of these departments shall be exercised by either of the others, except in the
cases expressly directed or permitted. Article 8, section 1, provides that the legislature shall pass no
special act relating to corporate powers, except for municipal purposes. Article 8, section 8, directs that
the legislature shall provide for the organization of cities and towns by general laws. The act of March
27, 1907 (Stats. 1907, p. 241, c. 125), relates to the incorporation of cities, section 2 providing for a
petition for such incorporation by the majority of the qualified voters, and section 3 (page 242)
conferring on the district court authority to determine whether a majority of the qualified electors and
taxpayers have made their application sufficiently describing the territory to be embraced in the city or
corporate town with a map thereof surveyed, and containing the streets and alleys and the proposed name,
and whether it is accompanied with satisfactory proof of the number of inhabitants. Held, that such act is
not unconstitutional as delegating legislative powers to the judicial department.
Application for writ of prohibition by State of Nevada, on the relation of Warren W.
Williams, against the Second Judicial District Court of the State of Nevada, in and for
Churchill County, and John S. Orr, and W. H. A. Pike, Judges of said Court. Writ denied.
The facts sufficiently appear in the opinion.
E. L. Williams, for Relator.
William S. Wall, for Respondents.
By the Court, Talbot, C. J.:
This is an application for a writ of prohibition to restrain respondents from entering a
decree declaring the Town of Fallon duly incorporated, designating its classification, or
appointing commissioners for calling an election of officers for the town under An act
providing for the incorporation of cities, their classification, the establishment and
alteration of their boundaries, the government and disincorporation thereof, and
repealing all acts and parts of acts in conflict therewith," approved March 27, 1907.
30 Nev. 225, 226 (1908) State v. District Court
of cities, their classification, the establishment and alteration of their boundaries, the
government and disincorporation thereof, and repealing all acts and parts of acts in conflict
therewith, approved March 27, 1907. (Stats. 1907, p. 241, c. 125.)
It is admitted that compliance has been made with section 2 of the act, which provides:
Whenever a majority of the qualified electors who are taxpayers within the limits of the city
or town proposed to be incorporated, as shown by the last official registration lists and
assessment roll, not embraced within the limits of any city or incorporated town shall desire
to be organized into a city or incorporated town, they may apply in writing to the district court
of the proper county, which application shall describe the territory to be embraced in such city
or incorporated town, and shall have annexed thereto an accurate map or plat thereof, duly
surveyed and containing the streets and alleys, and state the name proposed for such city or
incorporated town, and shall be accompanied with satisfactory proof of the number of
inhabitants within the territory embraced in said limits, for purposes of classification under
the provisions of this act.
It is sought to prevent respondents from proceeding under section 3 of the act, the fore part
of which directs: When such application shall be made as aforesaid the court, being satisfied
of its legal sufficiency, shall thereupon enter a decree declaring said city or town duly
incorporated under the provisions of this act and shall designate its classification and shall
forthwith appoint five commissioners, who shall at once call an election of all the qualified
electors residing within the territory embraced within said limits, and shall give notice, for
thirty days, of the time and place of holding the first election of officers for said city or town,
by publication in a newspaper, or, if none be published within the limits of such city or town,
by posting in five public places within the limits of the same. At such election the qualified
electors of such city or town residing within the limits of such city or town shall choose
officers therefor, to hold until the first annual election of officers according to its grade, as
hereafter in this act prescribed.
30 Nev. 225, 227 (1908) State v. District Court
The facts are admitted, but it is claimed that the act is in contravention of the Constitution,
in that it attempts to confer legislative power upon the district court, and that relator would be
subjected to increased taxation on his lands within the boundaries of the proposed town, a
part of which are platted and a part of which are not. Article 3 of the Constitution provides:
Section 1. The powers of the government of the State of Nevada shall be divided into three
separate departmentsthe legislative, the executive, and the judicial; and no persons charged
with the exercise of powers properly belonging to one of these departments shall exercise any
functions appertaining to either of the others, except in the cases herein expressly directed or
permitted. Article 8, section 1: The legislature shall pass no special act in any manner
relating to corporate powers, except for municipal purposes; but corporations may be formed
under general laws; and all such laws may, from time to time, be altered or repealed. Section
8 of the same article directs that the legislature shall provide for the organization of cities
and towns by general laws.
Is the part of the act quoted in conflict with the Constitution? Does it attempt to confer
legislative powers upon the district court? The conflict in the numerous decisions bearing on
these questions in various states is for the most part more apparent than real, owing to the fact
that the constitutional and statutory provisions are usually different. We are not aware that
legislation similar to our act has been held invalid under any constitution as favorable to its
support as ours. It will be observed that under section 1 of article 8 the legislature is
authorized to pass special acts relating to municipalities, and it has accordingly by specific
bills created a number of cities and towns in this state. To save the time and detail work
required by separate acts for every town that might desire incorporation the legislature at its
last regular session passed the general law which is here challenged. It contains more than
one hundred sections, and provides at length for the government and disincorporation of
cities, as well as for their establishment and alteration. Instead of being prohibited by the
Constitution, it would seem to be specially authorized by the language of section S of
article S, directing that "the legislature shall provide for the organization of cities and
towns by general laws."
30 Nev. 225, 228 (1908) State v. District Court
tution, it would seem to be specially authorized by the language of section 8 of article 8,
directing that the legislature shall provide for the organization of cities and towns by general
laws. A general law being so authorized and having been enacted, it is essential that some
one be designated to ascertain and declare the facts which would bring any community under
its provisions as an incorporation, and that necessary provision be made for its execution. The
legislature has seen fit to authorize a majority of the qualified electors and taxpayers as shown
by the last official registration list and assessment roll to determine whether the town or city
shall be incorporated, and, if they make proper application in writing to the district court of
the county, the court, being satisfied of its legal sufficiency, shall enter a decree declaring the
city or town duly incorporated and designate its classification. If there is compliance with the
required conditions, the court has no discretion in regard to refusing or granting the petition
or allowing or denying the right of incorporation. It is not authorized to pass any law
regarding the incorporating, management, or government of the town, nor as a matter of
expediency to determine whether incorporation ought to be allowed or refused. The court is
empowered to ascertain whether the acts necessary to constitute incorporation under the law
have been complied with, and, if they have, to declare as a result that the city or town is duly
incorporated. Although it is often necessary for the legislature and for executive officers to
ascertain facts, the authority conferred on the district court to determine whether a majority of
the qualified electors and taxpayers have made application sufficiently describing the territory
to be embraced in the city or incorporated town and with a map or plat thereof duly surveyed
and containing streets and alleys and the proposed name, and whether it is accompanied with
satisfactory proof of the number of inhabitants, is a power more judicial than legislative in its
nature, and more in line with the usual duties of courts. We are unable to see that the vesting
of this power in the district court is unconstitutional or improper. Some of the decisions
holding that the power to incorporate towns or cities cannot be delegated by the legislature
related to acts which attempted to confer discretion upon the court or designated officers
in the allowance or rejection of the application for incorporation.
30 Nev. 225, 229 (1908) State v. District Court
the legislature related to acts which attempted to confer discretion upon the court or
designated officers in the allowance or rejection of the application for incorporation. Still
other opinions have failed to distinguish between the delegation of legislative power and the
mere determination or declaration of facts which would bring the town under the provisions
of the law directly enacted by the legislature. The weight of authority, and especially the later
decisions, hold that powers such as are here conferred on the district court are judicial rather
than legislative, and are properly delegated.
In a Tennessee case relied upon by relator (State v. Armstrong, 3 Sneed, 634), decided in
1856, An act to authorize the formation of companies, an regulate private and local affairs
and to retrench the expenses of legislation (Acts 1855-56, p. 514, c. 254), which conferred
upon the circuit courts the power to grant charters and corporations upon the conditions
therein prescribed, except for banking purposes, was held unconstitutional as attempting to
delegate legislative power which could not be conferred. It was said in the opinion that the act
was designed, as manifested from the purposes avowed in the bill, as well as from the express
terms of the first section, as an unqualified transfer of the exercise of the power to grant
corporate privileges from the legislature to the courts, and probably was intended to exhaust
the power of the legislature in respect at least to all such corporations as were within the
purview of the act. That case is readily distinguishable from the one now before us and from
the later one in that state (Mayor v. Shelton, 1 Head, 24), in which it was held not to apply to
an act similar in principle to ours, and in which it was said: This statute establishes a general
and complete system of municipal government for towns, cities, and villages, and provides
* * * the mode by which the inhabitants of any particular town may adopt and organize under
it. They shall apply by petition to the county court, setting forth their desire to avail
themselves of its privileges, with a description by metes and bounds of the limits of their
town, which shall be spread upon the minutes of the court and registered in the register's
office. The objection taken is that the power to grant charters of incorporation is vested
alone in the legislature, and cannot be delegated to the courts, or any other authority.
30 Nev. 225, 230 (1908) State v. District Court
tion taken is that the power to grant charters of incorporation is vested alone in the legislature,
and cannot be delegated to the courts, or any other authority. * * * But then the question
arises: Has it been delegated by this act? We think very clearly not. The doubt upon this
subject has, as it seems, grown out of a misconception of the case of State v. Armstrong. * * *
That case was correctly decided beyond all question. It was upon Acts 1855-56, p. 514, c.
254, by which the full and broad power to create corporations was given to the circuit courts,
and was therefore held to be in violation of the Constitution. Not so in this act. It gives the
county court no power on the subject but to record the petition for the benefit of a perfect and
complete charter, and designate the boundaries to which it is to apply; that is, to prescribe the
corporate limits of the town. It cannot add to or diminish the powers, privileges, and
immunities granted, nor make the least change of any kind in the charter. The legislative will
is fully declared in the act, and nothing is left to the court but to locate and apply it to any
community who may petition for it, and bring themselves within its provisions.
In a number of cases, including People v. Fleming, 10 Colo. 553, 16 Pac. 298 (1887), City
of Wahoo v. Dickinson, 23 Neb. 430, 36 N. W. 813 (1888), and Young v. Salt Lake City, 24
Utah, 321, 67 Pac. 1068 (1902), the courts have considered and declined to follow People ex
rel. Shumway v. Bennett, 29 Mich. 451, 18 Am. Rep. 107 (1874), relied upon by relator.
In Young v. Salt Lake City the Supreme Court of Utah cited a number of conflicting cases
regarding the question involved, and sustained the statute of that state conferring power upon
the district court. It was said that it is a judicial act to determine what the facts in a given case
are, and whether such facts, when found, entitle the parties to the relief sought, and it was
held, as has been done at different times by this court, that, when a reasonable doubt exists as
to the constitutionality of a law, it will be upheld.
In Re Town of Union Mines, 39 W. Va. 179, 19 S. E. 398 (1894), and in Elder v.
Incorporators of Central City, 40 W. Va. 222, 21 S. E. 738 (1895), it was held that a section
of the code in relation to incorporation of cities, towns, and villages, in so far as it
conferred on the circuit court functions in their nature judicial and administrative,
although in furtherance of the power of the legislative department of the state
government, was constitutional and valid.
30 Nev. 225, 231 (1908) State v. District Court
of the code in relation to incorporation of cities, towns, and villages, in so far as it conferred
on the circuit court functions in their nature judicial and administrative, although in
furtherance of the power of the legislative department of the state government, was
constitutional and valid.
In City of Burlington, v. Leebrick, 43 Iowa, 258 (1860), the court said: The legislature has
passed a general statute declaring that territory to which certain conditions belong may be
annexed to an incorporated city. The right to annex it depends upon the existence of the
conditions. The legislature might have referred the question of the existence of these
conditions to the board of supervisors, or might have created a special tribunal for its
determination; but the question, by whomsoever determined, involves the examination and
weighing of testimony, and partakes of the nature of a judicial act. It is not the sole province
of courts to determine what the existing law is in relation to some existing thing already
done or happened.' It is as much a judicial act to determine what are the facts of a particular
case, and whether they bring the case within the operation of a recognized principle of the
existing law.
In Morton v. Woodford, 99 Ky. 367, 35 S. W. 1112 (1896), the court stated: Article 8, c.
89, Ky. St., confers upon circuit courts the power, under certain conditions, to establish
towns, and provides that no appeal shall lie from the judgment. We think the power so
conferred on the circuit courts is constitutional. * * * The Constitution prohibits local
legislation. Hence some department of government must of necessity be invested with power
and authority to establish towns, and it seems to us that the circuit courts are proper tribunals
to be invested with such power. The act in question is not, in our judgment, at all in conflict
with section 28 of the Constitution. The power conferred is not legislative.
In Kayser v. Trustees, 16 Mo. 91, approved in State v. Weatherby, 45 Mo. 22, the court
stated: The duties imposed on the county court in relation to this subject are judicial in their
nature. They have no discretion. They have no authority to vest any power in the corporation.
Their office is, upon the performance of certain acts by the inhabitants, to declare them
incorporated, if satisfied of the verity of the facts set forth, and then the law declares the
powers of which the corporation shall be possessed.
30 Nev. 225, 232 (1908) State v. District Court
upon the performance of certain acts by the inhabitants, to declare them incorporated, if
satisfied of the verity of the facts set forth, and then the law declares the powers of which the
corporation shall be possessed. Such a mode of incorporation is becoming common.
In Forsythe v. City of Hammond, 68 Fed. 774, it was held that the legislature could confer
upon the courts the power to determine whether the conditions exist prescribed by law for the
creation, enlargement, or contraction of a municipal body, and that a court cannot declare
void an act of the legislature which violates no provisions of the State or Federal Constitution
on the ground that it is wrong, unjust or oppressive.
In People v. Fleming, supra, the court said: It is now well settled that laws delegating
such power, in such a manner as is done under the statute under consideration, are not
unconstitutional. (People v. Reynolds, 5 Gilm. [Ill.] 1; Clarke v. City of Rochester, 28 N. Y.
605-634; Bank v. Brown, 26 N. Y. 467-475; Currier v. Railway Co., 6 Blatchf. [U. S.] 487,
Fed. Cas. No. 3,493; People v. Salomon, 51 Ill. 37; Alcorn v. Hamer, 38 Miss. 652; Bull v.
Read, 13 Grat. [Va.] 78-88; Blanchard v. Bissell, 11 Ohio St. 96-100; Locke's Appeal, 72 Pa.
491, 13 Am. Rep. 716; People v. Nally, 49 Cal. 484; Dalby v. Wolf, 14 Iowa, 228.) The law
upon this question is clearly and forcibly stated in Blanding v. Burr, 13 Cal. 343-358, as
follows: Laws may be absolute, dependent upon no contingency, or they may be subject to
such conditions as the legislature, in its wisdom, may impose. They may take effect only upon
the happening of events which are future and uncertain, and, among others, the voluntary act
of the parties upon whom they are designed to operate. They are not the less perfect and
complete when passed by the legislature, though future and contingent events may determine
whether or not they shall ever take effect. * * * So the legislature may confer a power without
desiring to enforce its exercise, and leave the question whether it shall be assumed to be
determined by the electors of a particular district. The legislature may determine absolutely
what shall be done, or it may authorize the same thing to be done upon the consent of third
parties.
30 Nev. 225, 233 (1908) State v. District Court
upon the consent of third parties. It may command or it may only permit; and in the latter
case, as in the former, its acts have the efficacy of law.' * * * In relation to the power of courts
of quarter sessions in Pennsylvania, acting through commissioners, to erect new townships,
and divide old ones, it is said: No one has ever doubted the constitutional right of the
legislature to authorize the exercise of both these jurisdictions by the courts, because it has
never been imagined that it bore any resemblance to the power of enacting laws. Indeed, it is
so entirely dissimilar that an elaborate attempt to show the contrast would be a mere waste of
words. But, if the legislature can authorize courts to decide questions of this character, they
can authorize the people primarily to do so.' (Com. v. Quarter Sessions, 8 Pa. 391-395, 416.)
Again, in Blanchard v. Bissell, 11 Ohio St. 100: But counsel for defendant in error claim
that if the statute is to be so construed, it is unconstitutional, and that no one can be made a
member of a corporation without his consent. This may be true of corporations of a private
and purely voluntary character, which are unconnected with the civil government of the
country; but the principle is not applicable to municipal corporations, which are an important
agency of civil government in the preservation of order, the enforcement of laws, and the
promotion of the common interests of the whole community within their limits. * * * The
constitutionality of this fourteenth section was affirmed by this court in the case of Powers v.
Commissioners of Wood County, 8 Ohio St. 285, and we are entirely satisfied with that
decision. It has the sanction of many kindred decisions in other states. (Cheaney v. Hooser, 9
B. Monroe [Ky.] 330; Gorham v. Springfield, 21 Me. 59.)
The act is a general one, and may be made to apply to all unincorporated cities and towns
in the state. It prescribes the conditions under which they may be incorporated, and authorizes
the court to determine whether there has been a compliance with the requirements. In the
present case it is conceded that a majority of the electors who were taxpayers made the proper
application. The court is merely acting in order to give the law effect after having
determined judicially the requisites as fixed by the legislature.
30 Nev. 225, 234 (1908) State v. District Court
order to give the law effect after having determined judicially the requisites as fixed by the
legislature. Upon compliance with and ascertainment and certification of the conditions by
the court the incorporation results from provisions of the law as passed by the legislature. To
a great extent statutes, including those relating to crimes and other matters, do not become
effective until after the happening and ascertainment of facts transpiring after their passage, to
which they were intended to apply. In view of section 8 of article 8 of our Constitution and
the nature of the power conferred on the district courts by the act, and the reasons apparent
for sustaining it, as well as the weight of authority, and the later and better considered
decisions upholding similar statutes in states where they are not so well supported by
constitutional provisions, we feel satisfied that sections 2 and 3 do not confer legislative
power upon the district courts, and that they are not unconstitutional or invalid.
Among the other cases sustaining these conclusions and in harmony with the trend of the
decision are: Evans v. City of Council Bluffs, 65 Iowa, 238, 21 N. W. 584; Ford v. Town of
North Des Moines, 80 Iowa, 626, 45 N. W. 1031; McKean v. City of Mt. Vernon, 51 Iowa,
306, 1 N. W. 617; City of Emporia v. Smith, 42 Kan. 433, 22 Pac. 616; Huling v. City of
Topeka, 44 Kan. 577, 24 Pac. 1110; Hurla v. City of Kansas City, 46 Kan. 738, 27 Pac. 143;
Lammert v. Lidwell, 62 Mo. 128, 21 Am. Rep. 411; Grusenmeyer v. City of Logansport, 76
Ind. 549; Field v. Clark, 143 U. S. 693, 12 Sup. Ct. 495, 36 L. Ed. 294; State ex rel. Gale v.
Ueland, 30 Minn. 29, 14 N. W. 58; Ferguson v. City of Snohomish, 8 Wash. 668, 36 Pac.
969, 24 L. R. A. 795; Henrico County v. City of Richmond, 106 Va. 282, 55 S. E. 683.
The writ is denied.
____________
30 Nev. 237, 237 (1908)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
APRIL TERM, 1908.
____________
30 Nev. 237, 237 (1908) Pyramid Land & Stock Co. v. Pierce
[No. 1715.]
PYRAMID LAND AND STOCK COMPANY, a Corporation, Respondent, v.
GEORGE PIERCE and I. N. BAKELESS, Appellants.
1. TrespassFeeding AnimalsActions for DamagesExcessive Damages. In an action for damages resulting
from defendants' sheep grazing over about three hundred an sixty acres of plaintiff's land in February,
1906, where it appeared that plaintiff's cattle were on the land in March, and his sheep lambed and fed
there in April, and that the feed was as good as usual ninety days after the trespass, a verdict for six
hundred dollars was excessive.
2. SameStatutory Provisions. Section 1 of the act of February 18, 1893 (Stats. 1893, p. 30, c. 31), provides
that it shall be unlawful for any person to herd or graze live stock on the land of another without his
consent. Section 2 provides that such live stock shall be liable for all damage done while being so herded
or grazed, together with costs and reasonable fees, and gives the owner of the land a lien on the stock to
secure any judgment recovered for the damage done. Section 4 repeals an act to prevent trespass upon
real estate by live stock and other matters relating thereto approved March 15, 1889 (Stats. 1889, p. 129,
c. 120). Stats. 1903, p. 47, c. 28, prohibits herding sheep on the land of another or within one mile of a
bona fide home or ranch house. Section 2 makes the owner of the sheep or his agent liable for any
resulting damages. It contains no repealing clause, and makes no provision for attorney's fees or lien.
Held, that Stats. 1903, p. 47, c. 28, did not repeal the act of February 18, 1893 (Stats. 1893, p. 30, c. 31),
by implication.
3. Same. The clause of the act of February 18, 1893 (Stats. 1893, p. 30, c. 31), providing for an attorney's fee in
favor of the party recovering damages against one unlawfully herding or grazing stock on his land is a
proper police regulation and is constitutional.
30 Nev. 237, 238 (1908) Pyramid Land & Stock Co. v. Pierce
Appeal from the District Court of the Second Judicial District of the State of Nevada,
Washoe County.
Action by the Pyramid Land and Stock Company, a corporation, against George Pierce,
and others. From a judgment for plaintiff, defendants appeal. Modified and affirmed.
The facts sufficiently appear in the opinion.
James T. Boyd and A. N. Salisbury, for Appellants:
I. The act of 1893 is general, the act of 1903 is special, and relates to sheep only. The
latter act does not allow attorney's fees, but gives penal damage for repeated trespass and
further forbids sheep from being herded or grazed within one mile of a home or ranch house.
In so far as the act of 1893 relates to sheep, it has been superseded by the act of 1903. That
act, and that alone, is the only one under which the plaintiff can recover. (26 Am. & Eng.
Ency. Law, 2d ed. 730, 731, 734, and authorities there cited.) The attorney's fees allowed by
the court, therefore, were beyond its power and illegal and void. The testimony in this case as
to damages is conflicting, but there is no conflict as to the amount of damages, and we think
it clearly appears that the damages granted are excessive and unjust.
II. Under the rule laid down in the case of Chandler v. Ditch Co., 28 Nev. 167, that
judgment is clearly erroneous. The court in that case, in speaking of the proper measure of
damages, says: From an examination of many authorities we are convinced that a just and
reasonable rule for the measure of damages for the loss of growing crops in cases like the one
before this court, where it appears that the crops have been entirely destroyed, or nearly so,
and where there appears to be a reasonable certainty that they would have matured but for the
wrongful act of the defendant, would be to allow the plaintiffs the probable yield when
matured and ready for market, and deducting therefrom the estimated expense of producing,
harvesting, and marketing them, and also deducting the value of any portion of the crops that
may have been saved. Under the rule just cited it was error for the court to permit witness
Flanigan to testify that the land would support three or four hundred cattle, and the court
erred in admitting all that class of testimony over the defendant's objection.
30 Nev. 237, 239 (1908) Pyramid Land & Stock Co. v. Pierce
erred in admitting all that class of testimony over the defendant's objection. The testimony
complained of might have become admissible if plaintiff had shown what the land usually
produced and what it did produce in the year 1906, and the difference would have been a fair
measure of damages.
Cheney, Massey & Price, for Respondents:
I. As to the amount of damage sustained we refer the court respectfully to the testimony of
J. D. Flanigan, P. L. Flanigan, and J. A. McDonald. Their testimony will support just what the
court found as damages. The respondent asked in the complaint for a thousand dollars
damages for this trespass. The court found, under the testimony, that the grazing and herding
of the sheep during the period indicated damaged the plaintiff the amount of the judgment.
The main contention made by counsel in the trial court, and we assume the main contention
made in this court, is to the effect that the court had no power or authority, under the law, to
award attorney's fees in this action. This contention is based upon the theory that that certain
act entitled An act in relation to herding, grazing and driving sheep (Stats. 1903, 47, 48)
repealed the act of 1893 (Comp. Laws, 780-783) by implication. This matter was threshed out
by counsel twice in the district courtthe first time in the argument on the merits, and the
second time in the argument upon the motion for a new trial. We concede that if the act of
1903 repeals the act of 1893, then perhaps counsel's contention is tenable. It is a general
principle of the law announced by this and all courts in the Union that repeals by implication
are not favored and are only held in cases of irreconcilable repugnancy between the later and
the former acts, and where that repugnancy is such that the two acts cannot stand together.
(Estate of Walley, 11 Nev. 260; State v. Donnelly, 20 Nev. 214.) It is a general rule of
construction that whether a new act repeals an existing statute is a question of legislative
intention, and it must appear that the legislature intended to abrogate the earlier statute or no
repeal will result. (U. S. v. Claflin, 97 U. S. 546; Water Works Company v. Burkhart, 41 Ind.
364; Pacific Railroad Company v. Cass County, 53 Mo. 17.)
30 Nev. 237, 240 (1908) Pyramid Land & Stock Co. v. Pierce
II. It is a further general rule of law that, in order that one statute shall repeal another by
implication, it is necessary that the purposes and objects of the two statutes shall be the same;
they must both relate to the same subject and have the same object or purpose. And where the
object to be accomplished by an act is stated and it differs in purpose from a prior act no
repeal will be entertained. (U. S. v. Claflin, supra; Egan v. City of Rochester, 68 Hun. 331;
Baca v. The Board of Commissioners, 62 Pac. 979; State v. Morrow, 26 Mo. 131.) So that the
reenactment of certain provisions of an act in a subsequent act, providing a wholly different
scheme, will not by implication work a repeal of the provisions in the first act. (Powers v.
Shepard, 48 N. Y. 540.) The acts must be so clearly repugnant that they cannot stand
together, and to such an extent as to imply a negative, and the repugnancy so plain as to be
irreconcilable. (Marlot v. Lawrence, 1 Blatchf. 608; Bruce v. Schuyler, 46 Am. Dec. 447;
Fourequeran v. Donnally, 7 W. Va. 14; Albert v. Twohig, 53 N. W. 582; McLoughlin v.
Hoover, 1 Or. 31; Walker v. State, 32 Am. Rep. 595.)
III. The act of 1903 gives a new remedy by the authorization of seizure of the sheep as
trespassers, and is without negative words as to the remedy provided for in the act of 1903,
authorizing attachment and lien upon the sheep. The statute giving a new remedy does not
take away a remedy previously existing. (Racho v. Carter, 24 S. W. 1035; State v. Martin, 68
Va. 93; Fisher v. Baldrich, 19 S. W. 227.) Under the rule just stated an additional remedy is
given, in the case of trespassing sheep, to that given under the act of 1903, and in the absence
of a repealing clause the remedies must be considered as cumulative and as not repealing.
Why should the legislature give a right of attachment with attorney's fees in an act for
trespassing horses or cattle under the act of 1893, and refuse the attorney's fee and the right of
attachment for trespassing sheep under the act of 1903? Why did the legislature, in the act of
1903, omit any repealing clause, general or special in its nature, when an examination of
nearly all legislation passed shows that the general clause is almost invariably inserted? IV.
30 Nev. 237, 241 (1908) Pyramid Land & Stock Co. v. Pierce
IV. Under the rule announced, supported by abundant authority, how can it be said that
the act of 1903 is contrary to the act of 1893? And though it covers some, or even all, of the
cases provided for by the former, it gives simply a cumulative remedy. The two acts, by fair
and reasonable construction, may be enforced and made to operate in harmony. Both acts are
presumed to have been passed with deliberation. Both are remedial. The later act gives simply
an additional remedy and additional damages for second trespass. The first act gives a remedy
with the further remedy of attorney's fee and writ of attachment, or a lien upon the particular
sheep or stock committing the trespass. There is nothing inconsistent, nothing irreconcilable,
and nothing to indicate that the legislature intended to restrict or limit the remedy in cases of
trespassing sheep. On the contrary it appears that the legislature intended to extend the
remedy. Remedial statutes should be construed liberally. Statutes, affirmative of a right and
prescribing other than usual remedies for enforcement, not negativing preexisting remedies,
are in their nature merely cumulative and not exclusive. (Chandler v. Hanna, 73 Ala. 390;
Dickenson v. Van Wormer, 39 Mich. 141.)
By the Court, Talbot, C. J.:
In the complaint it is alleged that plaintiff is the owner of certain subdivisions of land
aggregating four hundred and forty acres and consisting in part of what is commonly known
as the Cottonwood Ranch in Washoe County, and also the owner of eighty acres at another
place; that on or about the 24th day of February, 1906, and thereafter to the time of the
making of the complaint, which was verified on March 7, 1906, the defendants wrongfully
and unlawfully caused to be herded and grazed about five thousand head of sheep upon this
land without the consent of the plaintiff, by reason whereof the grasses, herbage, and browse
growing thereon were eaten up and destroyed and tramped out so as to render the land
valueless for grazing purposes during the year 1906 and to the plaintiff's damage in the sum
of $1,000. These and other allegations of the complaint were denied. After the trial, which
commenced on the 2Sth day of May, 1906, judgment was rendered in favor of the plaintiff
for $600 damages and for an attorney's fee and costs, and declaring these amounts to be
a lien upon the live stock or sheep described in the complaint.
30 Nev. 237, 242 (1908) Pyramid Land & Stock Co. v. Pierce
the trial, which commenced on the 28th day of May, 1906, judgment was rendered in favor of
the plaintiff for $600 damages and for an attorney's fee and costs, and declaring these
amounts to be a lien upon the live stock or sheep described in the complaint.
From the judgment and an order denying a motion for new trial the defendants have
appealed. On their behalf it is claimed that the damages are excessive; that the court
improperly made the amount of the judgment a lien upon the sheep when the complaint did
not allege or ask for anything by way of lien; that an attorney's fee was improperly allowed;
that the act of 1893 (Stats. 1893, p. 30, c. 31), providing for such a fee in cases where the
plaintiff recovers damages for live stock herded or grazed upon his lands and for a lien on the
live stock in such actions, has been superseded and repealed by the act of 1903 (Stats. 1903,
p. 47, c. 28), regarding the herding of sheep, which does not provide for any such fee or lien,
and that the provision directing the recovery of a fee in the former act is unconstitutional and
void.
The contention of the appellant that the damages are excessive seems to be well taken. For
the plaintiff there was testimony to the effect that one acre of the land would have supported
one cow or steer for the month of March if the feed had not been destroyed by the sheep, and
that the price of pasturing cattle on inclosed lands was one dollar and fifty cents a head per
month. If this be granted, still the evidence does not warrant so large an amount of damages
as was allowed. It is clear from uncontradicted testimony that a large portion of the four
hundred and forty acres designated as constituting in part the Cottonwood Ranch was fenced,
and that the sheep did not go upon any of the land within the inclosure nor to the south of it,
but only upon outside lands below, or northerly or northwesterly from the fields. The number
of acres of this outside and lower land upon which the sheep trespassed is not definitely
shown, nor is it required or expected to be, but the inference from the evidence is that they
crossed and grazed upon the greater part of eight forties. They were also upon one forty of the
separate eighty acres.
30 Nev. 237, 243 (1908) Pyramid Land & Stock Co. v. Pierce
The testimony indicates that the two bands of sheep of about two thousand each belonging
to the defendants crossed the lands below the ranch belonging to the plaintiff about the 23d of
February, camped there over night, one band passing on three or four miles the next day, and
that the other band camped for about a week from a quarter to a half mile north of the fence,
and then moved on and camped for another week about a mile and a half south of the house,
although this is not shown to have been upon the lands of the plaintiff, but apparently they
grazed upon the plaintiffs lands and the public domain adjacent during that period; that the
grass was starting, and that it was storming during that time; that the feed consisting of bunch
and buffalo grass, weeds, and sagebrush would not be destroyed so it would not appear again
by being fed over by the sheep, and that it would grow again if there were storms and
moisture. A witness stated that the band which remained was delayed by the storm. It was
also shown by witnesses who had been placed upon the stand by the plaintiff that the
plaintiff's cattle had grazed upon these lands in March, and that the plaintiff's sheep had
lambed and fed there in April, and by one of the plaintiff's leading witnesses it was stated that
the storms continued late that spring, that the feed had not dried up, and was as good as usual
at the time of the trialninety days after the trespass. Under these circumstances and
especially considering the fact that the defendants' sheep were upon the lands so early in the
year, even for grass, the allegation in the complaint that the feed was destroyed for that year,
or even for the whole month of March as contended, is not supported by the evidence.
Plaintiff introduced testimony on the trial claiming it had sustained special damages by reason
of being without hay for its cattle and having extra need for any feed on these lands, but there
is no allegation in the complaint to support any such special damage.
Section 1 of the act of February 18, 1893 (Stats. 1893, p. 30, c. 31; Comp. Laws, secs. 780
to 783, inclusive), which is claimed by appellants to have been superseded and repealed and
to be unconstitutional in certain respects, provides that it shall be unlawful for any person to
herd or graze live stock upon the lands of another without the consent of the owner.
30 Nev. 237, 244 (1908) Pyramid Land & Stock Co. v. Pierce
graze live stock upon the lands of another without the consent of the owner.
Section 2 provides: The live stock which is herded or grazed upon the lands of another,
contrary to the provisions of the first section of this act, shall be liable for all damages done
by said live stock while being unlawfully herded or grazed on the lands of another, as
aforesaid, together with costs of suit and reasonable counsel fees, to be fixed by the court
trying an action therefor, and said live stock may be seized and held by writ of attachment
issued in the same manner provided by the general laws of the State of Nevada, as security for
the payment of any judgment which may be recovered by the owner or owners of said lands
for damages incurred by reason of a violation of any of the provisions of this act, and the
claim and lien of a judgment or attachment in such an action shall be superior to any claim or
demand which arose subsequent to the commencement of said action.
Section 4 provides: An act entitled An act to prevent trespass upon real estate by live
stock, and other matters relating thereto,' approved March 15, 1889, is hereby repealed.
Section 1 of the later act (Stats. 1903, p. 47, c. 28) provides: It is not lawful for any
person owning or having charge of sheep, to herd the same, or permit them to be herded, on
the land or possessory claims of other persons, or to herd the same or permit them to graze
within one mile of the bona fide home or bona fide ranch house; provided, that nothing in this
act shall be so construed as to prevent sheep being driven along any public highway, or as
near thereto, as may be necessary therefor; provided, further, that the word highway as used
herein shall be so construed as to permit the driving of sheep herded close together, steadily,
quickly, and continuously by the most direct passable route from one range to another, but in
no case shall this last provision be construed so as to conflict with the former provisions of
this section; provided, that nothing in this act shall prevent the owner from herding or grazing
on his own land.
Section 2 makes the owner or agent of the owner of the sheep violating its provisions
liable to the parties injured for damages. The act of 1903 contains no repealing clause and no
reference to the former act, and makes no provision for an attorney's fee or lien.
30 Nev. 237, 245 (1908) Pyramid Land & Stock Co. v. Pierce
for an attorney's fee or lien. Under these circumstances it cannot be held to repeal the former.
Repeals by implication are not favored, and there is nothing to suggest that any repeal was
intended. The act of 1903 covers new and additional matter by making it unlawful to herd or
permit sheep to graze within one mile of a bona fide home or ranch house regardless of the
ownership of the land, while the former act makes it unlawful to herd or graze live stock upon
the lands of other persons, and provides for damages, attorney's fees, and a lien against parties
infringing its provisions whether within one mile of a home or a ranch house, or more distant.
The complaint and the evidence bring this action within the act of 1883 aimed against
herding live stock upon the lands of another, and it does not appear that the plaintiff sought
by its allegation or proof to bring the case within the statute of 1903. We conclude that the act
of 1893, including its provisions in relation to damages, attorney's fees and liens, has not been
repealed. If the plaintiff could not proceed under that act it and other owners could not
recover damages caused by the herding of sheep on lands more than one mile from a home or
ranch house as they would be limited to this distance by the act of 1903. The act of 1893
being in force, and the complaint asking for general relief and defendant being in court, the
amount of the judgment was properly found to be a lien on the sheep.
Objection was made in the trial court and embodied in the specifications of error that there
is no authority in law to award attorney's fees in this case. It was claimed there that the
provision for such a fee had been repealed, and opposing counsel have filed briefs in this
court regarding the constitutionality of the statute providing for such a fee. We are not aware
of any decision regarding the validity of a similar statute. Concerning the constitutionality of
acts in different states providing for attorneys' fees, the greatest diversity of opinion prevails
among the courts, a number of which have divided or reversed themselves regarding this
question. As bearing by analogy and elucidating the fundamental principles which ought to
govern the validity of our enactment, it is instructive to consider some of these cases.
In Wortman v. Kleinschmidt, 12 Mont. 316, 30 Pac. 280, it was held that a statute
allowing an attorney's fee in actions to foreclose mechanics' liens was not
unconstitutional.
30 Nev. 237, 246 (1908) Pyramid Land & Stock Co. v. Pierce
was held that a statute allowing an attorney's fee in actions to foreclose mechanics' liens was
not unconstitutional. There was an extended dissenting opinion.
In Helena Co. v. Wells, 16 Mont. 65, 40 Pac. 78, it was said that, without expressing any
view as to how the court would consider the question were it a new one, they were of the
opinion that it should be regarded as stare decisis.
In Title Guarantee Co. v. Wrenn, 35 Or. 70, 56 Pac. 271, 76 Am. St. Rep. 454, it was said:
It will be observed that the attorney's fees provided for in the act are not fixed and
determined nor imposed strictly as a penalty, but rather in the nature of costs, for which the
amount is to be determined by the court, and is therefore in our opinion not obnoxious to the
Constitution. See Griffith v. Maxwell, 19 Wash. 614, 54 Pac. 35; Wortman v. Kleinschmidt,
12 Mont. 316, 330, 30 Pac. 280; Jewell v. McKay, 82 Cal. 144, 152, 23 Pac. 139; Helena
Supply Co. v. Wells, 16 Mont. 65, 69, 40 Pac. 78.
In Griffith v. Maxwell, 20 Wash. 412, 55 Pac. 571, the court said: It is stated in the
argument that the learned trial court based its decision upon the case of Jolliffe v. Brown, 14
Wash. 156, 44 Pac. 149, 53 Am. St. Rep. 868, in which it was held that the provision for an
attorney's fee in an act of the legislature there considered could not be sustained, as it was
contrary to the spirit of the Constitution of the state. But that case was distinguished from
cases like the one now under consideration in Ivall v. Willis, 17 Wash. 645, 50 Pac. 467,
which was a lien case, and in which the provision for an attorney's fee was held valid by this
court. In the opinion in that case the court said: While it is true there is some conflict of
authority upon the validity of such a statute, we think the later authorities have one trend; and
that is to maintain such a provision in statutes similar to our lien laws.' Such provisions have
been upheld by the courts of California with great unanimity, and the same rule obtains in
Montana. (Hicks v. Murray, 43 Cal. 521; Quale v. Moon, 48 Cal. 478; Rapp v. Spring Valley
Gold Co., 74 Cal. 532, 16 Pac. 325; McIntyre v. Trautner, 78 Cal. 449, 21 Pac. 15; Wortman
v. Kleinschmidt, 12 Mont. 316, 30 Pac. 280.) But in the latest California decision on the
subject which has come to our notice {Builders' Supply Co. v.
30 Nev. 237, 247 (1908) Pyramid Land & Stock Co. v. Pierce
But in the latest California decision on the subject which has come to our notice (Builders'
Supply Co. v. O'Connor, 88 Pac. 982), the supreme court of the state, after reviewing a
number of cases, held that a provision allowing an attorney's fee to the successful claimant in
an action to foreclose a mechanic's lien was unconstitutional. A similar view was taken in
Davidson v. Jennings, 27 Colo. 187, 60 Pac. 354, 48 L. R. A. 340, 83 Am. St. Rep. 49;
Brubaker v. Bennett, 19 Utah, 408, 57 Pac. 170.
In Openshaw v. Halpin, 24 Utah, 430, 68 Pac. 138, 91 Am. St. Rep. 796, a statute
providing that a mortgagee failing to cancel a mortgage should be liable for an attorney's fee
was held to be void, and in Railroad Co. v. Moss, 60 Miss. 641, an act providing that
whenever an appeal was taken from the judgment of any court in an action for damages
brought by a citizen of the state against a corporation a reasonable attorney's fee should be
assessed by the court was held to be so discriminating in its nature as to appear manifestly
unconstitutional.
In Chair Co. v. Runnels, 77 Mich. 104, 43 N. W. 1006, an act directing judgment for an
attorney's fee on the foreclosure of liens on logs was declared invalid; but in Ivall v. Willis, 17
Wash. 645, 50 Pac. 468, a similar act was held not to be unconstitutional in any sense, but
permissible upon the same theory that costs are allowed.
In Durkee v. City of Janesville, 28 Wis. 464, 9 Am. Rep. 500, the provisions in the charter
that no costs should be recovered against the city in an action to set aside a tax assessment or
to prevent the collection of taxes was held to be void. In Williams v. Sapieha (Tex. Civ. App.)
59 S. W. 947, a Texas statute requiring the appointment of an attorney for a nonresident cited
by publication who does not appear and the payment of a reasonable compensation to be
taxed as costs is declared to be valid.
In Hocking Valley Coal Co. v. Rosser, 53 Ohio St. 12, 41 N. E. 263, 29 L. R. A. 387, the
court held invalid an act providing that if the plaintiff in any action for wages recover the sum
claimed by him in the bill of particulars an attorney's fee should be included as costs. But in
Vogel v. Pekoc, 157 Ill.
30 Nev. 237, 248 (1908) Pyramid Land & Stock Co. v. Pierce
157 Ill. 339, 42 N. E. 386, 30 L. R. A. 491, a statute was upheld which directed that whenever
a mechanic, artisan, miner, laborer, servant, or employee should recover for wages and had
made demand in writing it should be the duty of the court to allow the plaintiff a reasonable
attorney's fee.
In the opinion of the Supreme Court of the United States in Railway Co. v. Ellis,
hereinafter cited, it is stated that statutes have been sustained giving special protection to the
claims of laborers and mechanics.
In R. R. Co. v. Dey, 82 Iowa, 312, 48 N. W. 98, 12 L. R. A. 436, 31 Am. St. Rep. 477, a
statute authorizing attorneys' fees upon recovery against a railroad company for violating an
act regulating rates was held not to infringe the constitutional provision as to equality.
In Missouri Pacific Ry. Co. v. Merrill, 40 Kan. 409, 19 Pac. 793, an attorney's fee was
allowed in a suit for damages by fire caused by the railroad.
Although there was formerly some conflict and one or two cases taking an emphatic,
opposite view (Williamson v. Liverpool Co. [C. C.] 105 Fed. 31; Phenix Ins. Co. v. Schwartz,
115 Ga. 113, 41 S. E. 240, 57 L. R. A. 752, 490 Am. St. Rep. 98), it seems to be now well
settled that statutes providing for attorney's fees upon recovery upon life and fire insurance
policies are valid and enforceable. (British American Co. v. Bradford, 60 Kan. 82, 55 Pac.
335; Union Central Life Ins. Co. v. Chowning, 86 Tex. 654, 26 S. W. 982, 24 L. R. A. 504;
Merchants' Life Assn. Co. v. Yoakum, 98 Fed. 251, 39 C. C. A. 56; Iowa Life Ins. Co. v.
Lewis, 187 U. S. 355, 23 Sup. Ct. 126, 47 L. Ed. 204; Mutual Life Co. v. Mettler, 185 U. S.
308, 22 Sup. Ct. 662, 46 L. Ed. 922; Farmers' & Merchants' Ins. Co. v. Dobney, 189 U. S.
302, 23 Sup. Ct. 565, 47 L. Ed. 821.) These were based upon the theory that the policy
holders or beneficiaries are entitled to special protection under the police power.
Enactments authorizing the recovery of attorneys' fees in suits for damages for stock killed
by railroads have been held valid in some states and unconstitutional in others. (Railway Co.
v. Duggan, 109 Ill. 537, 50 Am. Rep. 619; Jolliffe v. Brown, 14 Wash. 155, 44 Pac. 149, 53
Am. St. Rep. 868; Lafferty v. Railway Co.,
30 Nev. 237, 249 (1908) Pyramid Land & Stock Co. v. Pierce
ferty v. Railway Co., 71 Mich. 35, 38 N. W. 660; R. R. Co. v. Morris, 65 Ala. 193.)
In Dow v. Beidelman, 49 Ark. 455, 5 S.W. 718, the court said: And such laws have been
held to fall within the police power of the state. Here the damages are given by way of
punishment to the company for its negligence in failing to build the fence. (Thorpe v. R. & B.
R. Co., 27 Vt. 140, 62 Am. Dec. 625; Mo. Pac. Ry. Co. v. Humes, 115 U. S. 512, 6 Sup. Ct.
110, 29 L. Ed. 463; Johnson v. Chicago & R. Co., 29 Minn. 425, 13 N. W. 673.) An
attorney's fee may be included as a part of the penalty imposed for noncompliance with the
duty imposed without rendering the statute obnoxious to the objection of being partial and
unequal legislation. (P. D. & E. Ry. Co. v. Duggan, 109 Ill. 537, 50 Am. Rep. 619; K. P. Ry.
Co. v. Yanz, 16 Kan. 583: Missouri Pac. Ry. Co. v. Abney, 30 Kan. 41, 1 Pac. 385.)
In Railroad v. Crider, 91 Tenn. 504, 19 S. W. 618, it was stated: We have been cited to
two cases which are supposed to support the contention of the learned counsel that the
imposition of the reasonable fee of an attorney is invalid, as partial legislation. (Railroad v.
Williams, 49 Ark. 492, 5 S. W. 883; Wilder v. Railroad, 70 Mich. 382, 38 N.W. 289.) * * *
The view we have taken, that such added liability was but the imposition of additional
damages and was a valid exercise of the police power, was never considered. Acts similar to
our own in respect to this feature have been sustained by reasoning more satisfactory to us.
(Railroad v. Duggan, 109 Ill. 537, 50 Am. Rep. 619; Railroad v. Mower, 16 Kan. 573;
Railroad v. Shirley, 20 Kan. 660; Railroad v. Abney, 30 Kan. 41, 1 Pac. 385.)
In order to conform to the decision of the Supreme Court of the United States in Railway
v. Ellis, 165 U. S. 150, 17 Sup. Ct. 255, 41 L. Ed. 666, the Supreme Court of Missouri in
Paddock v. Mo. Pac. Ry. Co., 155 Mo. 537, 56 S. W. 453, reversed its former holding in
Perkins v. R. R., 103 Mo. 52, 15 S. W. 320, 11 L. R. A. 426, wherein they had followed the
rule in Illinois instead of the opposite one in Michigan.
A Texas statute which had been sustained by the courts of that state, and which provided
that any person having a valid claim, not exceeding fifty dollars, for personal services
rendered or labor done or for damages or for overcharges on freight, or claims for stock
killed or injured by the train of any railway company, and that if such claim were not paid
within thirty days after presentation the claimant should be entitled to recover the
amount of the claim and all costs of suit, and a reasonable attorney's fee not to exceed
ten dollars, was held by the Supreme Court of the United States in Gulf, C.
30 Nev. 237, 250 (1908) Pyramid Land & Stock Co. v. Pierce
a valid claim, not exceeding fifty dollars, for personal services rendered or labor done or for
damages or for overcharges on freight, or claims for stock killed or injured by the train of any
railway company, and that if such claim were not paid within thirty days after presentation the
claimant should be entitled to recover the amount of the claim and all costs of suit, and a
reasonable attorney's fee not to exceed ten dollars, was held by the Supreme Court of the
United States in Gulf, C. & S. F. Ry. v. Ellis, 165 U. S. 150, 17 Sup. Ct. 255, 41 L. Ed. 666,
to deny the equal protection of the laws guaranteed by the fourteenth amendment. The Chief
Justice and two of the justices dissented. Stripping the case of technical distinctions and
looking to the facts and result Ellis, the owner of the colt killed by the railroad company, was
not allowed an attorney's fee of ten dollars upon his recovery of damages for the killing of the
colt by the railroad, on the theory that the allowance of such a fee would deny to the company
the equal protection of the laws. But in R. R. v. Matthews, 174 U. S. 96, 19 Sup. Ct. 609, 43
L. Ed. 909, it was held that under the Kansas statute a party obtaining judgment for damage
by fire caused by a railroad company could recover an attorney's fee, the same justice writing
the decision in both cases, and four of the nine justices joining in an elaborate dissenting
opinion. The conclusion of the court was based on the theory that the legislation was within
the police power of the state, and partly that under the conditions prevailing there fires set by
the negligence of the railroad companies to the grass on the prairies might spread for long
distances and do great damage. In the decision it was said: Many cases have been before this
court involving the power of state legislatures to impose special duties or liabilities upon
individuals and corporations, or classes of them, and while the principles of separation
between those cases which have been adjudged to be within the power of the legislature and
those beyond its power are not difficult of comprehension or statement, yet their application
often becomes very troublesome, especially when a case is near to the dividing line. * * * The
equal protection of the law which is guaranteed by the fourteenth amendment does not forbid
classification.
30 Nev. 237, 251 (1908) Pyramid Land & Stock Co. v. Pierce
does not forbid classification. That has been asserted in the strongest language. (Barbier v.
Connolly, 113 U. S. 27, 5 Sup. Ct. 357, 28 L. Ed. 923.) In that case, after in general terms
declaring that the fourteenth amendment designed to secure the equal protection of the laws,
the court added (pages 31 and 32 of 113 U. S., pages 359, 360 of 5 Sup. Ct. [28 L. Ed. 923]):
But neither the amendmentbroad and comprehensive as it isnor any other amendment,
was designed to interfere with the power of the state, sometimes termed its police power, to
prescribe regulations, to promote the health, peace, morals, education, and good order of the
people, and to legislate so as to increase the industries of the state, develop its resources, and
add to its wealth and prosperity. From the very necessities of society, legislation of a special
character, having these objects in view, must often be had in certain districts, such as for
draining marshes and irrigating arid plains. Special burdens are often necessary for general
benefits. Regulations for these purposes may press with more or less weight upon one than
upon another, but they are designed, not to impose unequal or unnecessary restrictions upon
any one, but to promote, with as little inconvenience as possible, the general good. Though, in
many respects, necessarily special in their character, they do not furnish just ground of
complaint if they operate alike upon all persons and property under the same circumstances
and conditions. Class legislation, discriminating against some and favoring others, is
prohibited, but legislation, which in carrying out a public purpose, is limited in its
application, if within the sphere of its operation it affects alike all persons similarly situated,
is not within the amendment.' This declaration has, in various language, been often repeated,
and the power of classification upheld whenever such classification proceeds upon any
difference which has a reasonable relation to the object sought to be accomplished. * * * It is
also a maxim of constitutional law that a legislature is presumed to have acted within
constitutional limits, upon full knowledge of the facts, and with the purpose of promoting the
interests of the people as a whole, and courts will not lightly hold that an act duly passed by
the legislature was one in the enactment of which it has transcended its power.
30 Nev. 237, 252 (1908) Pyramid Land & Stock Co. v. Pierce
was one in the enactment of which it has transcended its power. On the other hand, it is also
true that the equal protection guaranteed by the Constitution forbids the legislature to select a
person, natural or artificial, and impose upon him or it burdens and liabilities which are not
cast upon others similarly situated. * * * It is the essence of a classification that upon the
class are cast duties and burdens different from those resting upon the general public.
It is also well settled in this state that the legislature may make laws which apply only to
certain classes if there is a reasonable basis for the classification. Citations of many cases
indicating diversity of opinion regarding the validity of enactments providing for attorney's
fees may be found in the cases we have cited, and in Louisville Safety Vault & Trust Co. v.
Louisville & N. R. Co., 14 L. R. A. 586, 9 Fed. Stat. Ann. 554, and Farmers' & Merchants'
Ins. Co. v. Dobney, 189 U. S. 301, 23 Sup. Ct. 565, 47 L. Ed. 821.
It has very generally been held and may be conceded that the legislature may make laws
regarding matters within the police power and provide penalties for their enforcement, and
that instead of providing for a fine to be paid to the state may enact that extra damages or an
attorney's fee in the nature of a penalty may be recovered by the injured party. (Mo. Pac. Ry.
Co. v. Humes, 115 U. S. 512, 6 Sup. Ct. 110, 29 L. Ed. 463.) In Wallace v. Mayor and City of
Reno, 27 Nev. 71, 103 Am. St. Rep. 747, and in Ex parte Boyce, 27 Nev. 299, we held that
the people, and through them the legislature, had supreme power in all matters of
government, where not restricted by constitutional limitations; and, adopting the language of
the Supreme Court of the United States, we said: Whatever differences of opinion may exist
as to the extent and boundaries of the police power, and however difficult it may be to render
a satisfactory definition of it, there seems to be no doubt that it does extend to the protection
of the lives, health, and property of the citizens, and to the preservation of good order and the
public morals. Notwithstanding any conflict in the decisions we have cited relating more
directly to attorney's fees, it is apparent that our statute providing for the recovery of such fees
by the owner of land upon which sheep are herded may be properly considered as not
unconstitutional if the herding and grazing of sheep and live stock on the ranges are of
great importance and essential to the welfare of the state.
30 Nev. 237, 253 (1908) Pyramid Land & Stock Co. v. Pierce
owner of land upon which sheep are herded may be properly considered as not
unconstitutional if the herding and grazing of sheep and live stock on the ranges are of great
importance and essential to the welfare of the state.
Upon the coming of the white man our hills and valleys were covered with large quantities
of feed suitable for sustaining and fattening domestic animals. To this day by far the greater
part of the area of the state is valuable only for the grazing of live stock. There are large
quantities of weeds and browse which cattle do not eat, but which sheep prefer. While the
industries of the state were in their infancy large bands of cattle were driven here from Texas
and other places and turned on the ranges, where they thrived upon the public domain, and
during earlier years had sufficient forage in the open to sustain them summer and winter, and
they increased and consumed the feed which became less plentiful. Homesteaders and settlers
grew more numerous, and gradually came to occupy the more desirable portions of the land
where water could be obtained for irrigation. Later than cattle sheep were brought into the
state in large numbers and increased, until the raising of wool and the production of mutton
has assumed large dimensions. It is the custom to herd sheep in bands of 2,000 or more, some
men having one or a few bands and others many bands; some not being residents or citizens
and owning little or no real estate and others having ranches and large amounts of land, but
all dependent upon the ranges. As the number of settlers increased both the cattle and sheep
became more numerous, the grasses were eaten down or tramped out, and the feed became
more scarce and conflicts arose. Horses and cattle were and still are allowed to roam at will
upon the public domain, and the owners of unfenced land cannot recover for the grasses they
eat or destroy. We have no law requiring that they be kept within inclosures. The growers of
live stock have the benefit of the forage which makes fat and in turn brings wealth. Naturally
the owners of both cattle and sheep desire to have their animals thrive upon the best feed. The
man with a small farm, work horses, and a few cows is partly dependent upon the range
adjacent to his ranch. One or more bands of sheep closely herded, eating the grass to the
ground, and tramping with their sharp feet could soon destroy or greatly injure the feed
near the ranches and convenient for horses and cattle.
30 Nev. 237, 254 (1908) Pyramid Land & Stock Co. v. Pierce
or more bands of sheep closely herded, eating the grass to the ground, and tramping with their
sharp feet could soon destroy or greatly injure the feed near the ranches and convenient for
horses and cattle. Sometimes the sheep were herded almost to the door and fields of the
rancher, and when the feed had been eaten there it was easy for them to move on to other
parts of the ranges and secure new forage which the rancher could not so well do with his
cattle and horses. Many of the sheep are grazed hundreds of miles between their summer and
winter ranges. Quarrels and assaults arose resulting in the killing of some of the stockmen,
and necessitating expensive criminal investigations and trials. Not only did the homesteader
and settler and the owner of sheep and others in whatever branch of stock growing engaged,
who had open lands, need protection, but the increase of cattle, homes, and taxable property
was being retarded. Under these circumstances it would seem that the raising of cattle and
sheep and the production of beef and mutton for the table and of wool for clothing are of such
great importance not only to those directly engaged in these profitable and extensive
industries, but to the public in general, and that their protection and encouragement are so
desirable and so essential to the welfare of the state as to justify their regulation by the
legislature.
The terms of the first statute, passed in 1889, against trespass by sheep and which was
repealed by the one of 1893 under which this action was brought, as well as the one of 1903,
indicate that they were enacted as police regulations. The former act made it unlawful for any
person to herd or knowingly graze any live stock upon the lands of another without the
consent of the owner, but required the boundaries of the land to be so marked that its extent
or limits could be readily seen and easily traced, and that all taxes thereon had been paid, and
declared that any person violating its provisions should be guilty of a misdemeanor, and on
conviction be fined not to exceed five hundred dollars, and also provided that live stock
herded or knowingly grazed on the lands of another contrary to the provisions of the act
should be liable for double damages, together with the costs of suit and reasonable counsel
fees, and that the judgment should be a superior lien on the live stock.
30 Nev. 237, 255 (1908) Pyramid Land & Stock Co. v. Pierce
the costs of suit and reasonable counsel fees, and that the judgment should be a superior lien
on the live stock.
The Supreme Court of the United States, affirming the decisions of the Idaho courts, held
valid an act of that state making it unlawful for any person owning or having charge of sheep
to herd the same on the land or possessory claims of other persons, or to permit them to graze
within two miles of a dwelling house of the owner of such claim, and providing for the
recovery of damages. It was said that the police power of the state is not confined to the
suppression of what is offensive, disorderly, or unsanitary, but embraces regulations designed
to promote the public convenience or the general prosperity. The court arrived at the
conclusion that the owner of the sheep was not deprived of his property without due process
of law, and that no arbitrary or unreasonable discrimination against the sheep industry was
made by that statute. (Bacon v. Walker, 204 U. S. 311, 27 Sup. Ct. 289, 51 L. Ed. 499.)
In C., B. & Q. Ry. Co. v. Illinois, 200 U. S. 561, 26 Sup. Ct. 347, 50 L. Ed. 596, the
Supreme Court of the United States quoted with approval the statement of the Supreme Court
of Illinois that where lands are valuable for cultivation, and the country depends so much
upon agriculture, the public welfare demands that the land shall be drained, and that, in the
absence of any constitutional provision in relation to such laws, they have been sustained
upon high authority as the exercise of the police power. We do not wish to be understood as
determining the validity of statutes providing for attorneys' fees in any kind of cases except
the one before us, nor as adopting any of the decisions cited further than they establish that
such fees as penalties may be imposed when the statute is within the police power, and the
opinions of the Idaho courts and of the Supreme Court of the United States holding that the
Idaho statute making damages recoverable for herding sheep on the public domain within two
miles of a dwelling house is within that power.
If the principles promulgated in these cases are sound, as we believe and as generally
conceded, it follows that the provision in our statute for an attorney's fee in favor of the party
recovering damages is a proper police regulation tending to prevent trespass, tortious
acts, and breaches of the peace, to encourage settlement and home building, to protect
important industries, to increase population and taxable property, to decrease crime and
the expense of criminal trials, and consequently to promote the welfare of the state, and
therefore that the statute was properly enacted by the legislature and is not in conflict
with the fourteenth amendment nor with section 21 of article 4, or any other provision of
the State Constitution.
30 Nev. 237, 256 (1908) Pyramid Land & Stock Co. v. Pierce
party recovering damages is a proper police regulation tending to prevent trespass, tortious
acts, and breaches of the peace, to encourage settlement and home building, to protect
important industries, to increase population and taxable property, to decrease crime and the
expense of criminal trials, and consequently to promote the welfare of the state, and therefore
that the statute was properly enacted by the legislature and is not in conflict with the
fourteenth amendment nor with section 21 of article 4, or any other provision of the State
Constitution. If the question were uncertain, doubts regarding the validity of the act would be
resolved in its favor as often held by this and other courts.
If within fifteen days from the publication of this decision the respondent files its consent
in this court that the judgment be modified so as to reduce the amount of damages to be
recovered from $600 to $400, the district court will be directed to modify the judgment
accordingly, and, as so modified, it will stand affirmed.
If such consent is not so filed, the case will be remanded for a new trial.
___________
30 Nev. 257, 257 (1908) Phenix v. Bijelich
[No. 1745.]
GEORGE L. PHENIX, Et Al., Respondents, v. NIKOLA
K. BIJELICH, Appellant.
1. AppealPresentation of Grounds of Review. The sufficiency of the verification of the answer cannot be
raised for the first time on appeal.
2. PleadingVerificationWaiver of DefectsMotion for Judgment on Pleadings. Where plaintiff moves for
judgment on the pleadings upon other specific grounds, he waives the objection that the answer was not
sufficiently verified.
3. Vendor and PurchaserVendor's TitleRight of Purchaser to Dispute. The rule that while a purchaser
remains in possession of land conveyed under a contract, and claims the right of possession under the
contract, he cannot dispute the vendor's title or refuse to comply with the contract, is not applicable
where the purchaser, while he admits that he entered into a contract for possession, does not claim
possession under the contract, but claims that the contract was fraudulent, and that the vendor never had
any title to the property to convey.
4. PleadingsMotionsJudgment on Pleadings. Where a party moves for judgment on the pleadings, he not
only, for the purposes of his motion, admits the truth of all the allegations of his adversary, but he must
also be deemed to have admitted the untruth of all his own allegations, which have been denied by his
adversary.
5. Vendor and PurchaserRescission of Contract for Defect in TitleDuty of Vendee. Where a purchaser in
possession seeks to rescind a contract for the sale of land, because of defect in the title, he is bound to
restore to the vendor what he received under the contract, and place the vendor in his original situation,
but where he received nothing from the vendor under the contract, but asserts fraud upon the vendor's
part in falsely representing the title and claims title in himself, there is no such duty.
Appeal from the District Court of the First Judicial District of the State of Nevada,
Esmeralda County; F. P. Langan, Judge.
Action by George L. Phenix, et al., v. Nikola K. Bijelich. From a judgment for plaintiffs,
upon the pleadings, defendant appeals. Reversed and remanded for a new trial.
The facts sufficiently appear in the opinion.
Elmer Rogers and Henry M. Farnam, for Appellant:
I. The district court improperly ordered judgment against the defendant in favor of the
plaintiff for plaintiff's costs in said action.
II. It is elementary that fraud vitiates a contract. It is no longer necessary as at common
law to cause a contract to be canceled on the ground of fraud before a defense can be
interposed in an action brought upon the contract.
30 Nev. 257, 258 (1908) Phenix v. Bijelich
be canceled on the ground of fraud before a defense can be interposed in an action brought
upon the contract. (Gage v. Lewis, 68 Ill. 604: White v. Watkins, 23 Ill. 480; Fitzgerald v.
Smith, 1 Ind. 310; Leonard v. Bates, 1 Ind. 172; Burlington Lumber Co. v. Evans Lumber
Co., 100 Iowa, 469; Chambers v. Games, 2 Iowa, 320; Case v. Boughton, 11 Wend. 106;
Greathouse v. Dunlap, 3 McL. 303.)
III. The answer sufficiently alleges fraud practiced upon the defendant in that the charge
imputes to them knowledge of the falsity, and the plaintiffs were bound to know of their own
knowledge whether or not they had title to the lot in question, for this is followed by the
averment that in truth and in fact the plaintiffs never had and did not have at the time of the
commencement of the action any title whatsoever to the September lode mining claim. It is
apparent without further averment that the defendant relied upon the statement and was
deceived thereby from the fact that he entered into the contract with plaintiffs, purchased the
lot, and paid thereon a portion of the consideration specified in the contract.
IV. The motion for judgment on the pleadings was improper. When an answer is put into
defective form only, the plaintiff should demur and not move for judgment on the pleadings.
(Gallagher v. Dunlap, 2 Nev. 326; Childs v. Griswold, 15 Iowa, 438; Rice v. Bush, 16 Colo.
484.) A motion for judgment on the pleadings can be allowed only where the answer wholly
fails to deny any material allegations of the complaint. (Fitzgerald v. Neustadt, 91 Cal. 600;
Gardner v. Donnelly, 86 Cal. 367; McDonald v. Pincus, 13 Mont. 83: Wallace v. Baisley, 22
Or. 572.) Where any of the material allegations of the complaint are denied by the answer, it
is error to render judgment on the pleadings. (Willis v. Holmes, 28 Or. 265; Johnson v.
Manning, 2 Iowa, 1073; Botty v. Vandament, 67 Cal. 332; Widmer v. Martin, 87 Cal. 88;
Hastings v. Bank of Longmont, 4 Cal. 419.) A motion for judgment on the pleadings is not in
harmony with the spirit of code procedure, and is not favored. (Currie v. So. Pac. Ry. Co., 23
Or. 400.) Nor is vagueness in an answer to be visited by judgment on the pleadings. (Kelly v.
Barnett, 16 How. Prac. 135.)
30 Nev. 257, 259 (1908) Phenix v. Bijelich
V. The misrepresentation as to the title of the property averred in the answer constitutes a
sufficient defense. Where a vendor in a sale of real or personal property makes false
representations as to material facts, such as ownership relating to the property, having at the
time knowledge that the statements are false, or what the law regards as equivalent to such
knowledge, such as the concealment of ownership, and intending that the purchaser shall rely
upon them as an inducement to the purchase, he becomes liable in an action of deceit in case
the purchaser consummates the purchase and suffers loss thereby. (Grady v. Jeffares, 25 Fla.
743; Craig v. Hamilton, 118 Ind. 565; Riley v. Bell, 120 Iowa, 618; Kimball v. Sanguin, 53
N. W. 116; Ballou v. Lucas, 59 Iowa, 22; Atwood v. Chapman, 68 Me. 38; Burns v. Dockray,
156 Mass. 135; Fisher v. Mellen, 103 Mass. 503; Wasey v. Mahoney, 55 Mich. 194; Thomas
v. Murphy, 87 Minn. 358; Reynolds v. Franklin, 39 Minn. 24; Brown v. Lyon, 81 Miss. 438;
Brownlee v. Hewitt, 1 Mo. App. 360.)
VI. For plaintiffs to claim that defendant is estopped to raise a question on the validity of
the contract, but more especially after the ownership and title of plaintiffs, is to allow the
plaintiffs to stultify themselves, take advantage of their own wrong, fraud, and falsity to retain
the moneys paid under the contract as liquidated damages for the fraud practiced upon the
defendant, and to gain possession of property which the answer asserts as a triable issue that
plaintiffs never owned. The general rule may be that a party is estopped and is precluded from
taking a position in connection with a contract inconsistent with and to the prejudice of the
other contracting party; but no cases will be found where this broad principle can be applied
to misrepresentation, falsity and fraud in regard to the subject-matter, such as ownership, as is
asserted in this answer. The fact that there is a recital in the contract that the plaintiffs were
the owners of the property does not weigh against fraudulent representation of ownership,
because the recital is vitiated by the fraud practiced. The issues tendered by the answer were
triable and the motion for judgment on the pleadings was erroneously granted.
30 Nev. 257, 260 (1908) Phenix v. Bijelich
Thompson, Morehouse & Thompson, for Respondent:
I. It will be observed that this is an action, upon a contract of lease, in the nature of a
contract to buy and sell a certain lot of land, between plaintiffs and defendant. There is no
question but the contract was made and that the defendant entered into the possession of the
land and premises under the contract. It matters not whether the contract be one of lease or
one between vendor or vendee, the rule is the same that while the defendant remains in
possession of the land, and claims the right of possession under the contract, he cannot
dispute the title or refuse to comply with the terms of his contract. The only question at issue
upon this appeal is the legality of the judgment, based solely upon the pleadings. It will be
observed by the answer that the defendant admits the contract; that he has not complied
therewith, and that he refuses to do so, and that he is in possession of the lands. This
admission admits all the facts of the complaint and entitles plaintiffs to judgment, because
none of the other matters set out in the answer can be set up by way of defense until the
defendant surrenders possession. Besides, the complaint is duly verified and the answer is
unverified, and, therefore, under the law, raises no issue. The inspection of the complaint and
answer is enough to show that the motion for judgment on the pleadings was properly made,
and that the court did right in sustaining the motion, and the judgment was properly entered.
But, as the appeal itself would indicate that the defendant has some reliance upon what is
called a bill of exceptions, without an objection or exception of any kind, but containing
points which might be urged upon an appeal from the judgment, we shall brief the cause as an
appeal from the judgment. The answer is not verified, and raises no issue, for, as is said by
Comp. Laws, 3146, when the complaint is verified by affidavit, the answer shall be
verified. And by Comp. Laws, 3150, we find that in all cases of the verification of a
pleading, the affidavit of the party shall state that the same is true of his own knowledge,
except as to the matters which are therein stated on his information or belief, and as to those
matters that he believes it to be true. We find no verification of any kind to the answer, and
the complaint is a verified complaint.
30 Nev. 257, 261 (1908) Phenix v. Bijelich
find no verification of any kind to the answer, and the complaint is a verified complaint.
Perras v. Denver R. Co., 5 Colo. 21, and Humphreys v. McCall, 9 Cal. 59, hold that an
unverified answer to a verified complaint tenders no issue, and judgment upon the pleadings
may be entered as by default, for want of an answer, under statutes the same as ours, and
because, as provided in Comp. Laws, 3160, there being no specific denial, the facts of the
complaint stand admitted as true, and must be so held upon the trial of the action. And such
answers may be stricken from the files. (Ronnow v. Delmue, 23 Nev. 29; Crompton v. Crow,
2 Utah, 245.) And may be taken advantage of by motion for judgment for want of answer.
(Molony v. Dows, 15 How. Prac. 261; 2 Hilt. 247; Hull v. Ball, 14 How. Prac. 305; Drum v.
Whiting, 9 Cal. 422; Nichols v. Jones, 14 Colo. 65.) And such an answer is treated as a
nullity. (Smith v. Mullican, 2 Minn. 319; Cherry v. Foley, 16 N. Y. Supp. 853; Phifer v. Trav.
Ins. Co., 123 N. C. 410; Tyler v. E. G. Bernard Co., 57 S. W. 179; Williams v. Williams, 13
Ark. 421; McFarland v. State Bank, 4 Ark. 410; Wilson v. Preston, 15 Iowa, 246; Stockton v.
Dahl, 66 Cal. 377; Craig v. Pope, 48 Ga. 351.) But, even if verified, a judgment for the
plaintiff is properly rendered upon the pleadings, where the answer admits or leaves undenied
the material allegations of the complaint. (Hancock v. Harrick, 29 Pac. 13; Hicks v. Lovell,
64 Cal. 14; Botts v. Mandemant, 67 Cal. 332; Prost v. More, 40 Cal. 347; San Francisco v.
Stande, 92 Cal. 560; Felch v. Bandry, 40 Cal. 439.) Where the answer fails to deny any
material allegations of the complaint in such a form as to put the same in issue, the plaintiff is
entitled to judgment upon the pleadings. (Doll v. Good, 38 Cal. 287.) But it will be seen that
the defendant particularly admits in his answer, as follows: Defendant also admits that he is
in possession of the property described in plaintiffs' complaint, and he makes no offer to
restore the possession to plaintiffs, nor any tender to pay the purchase price agreed upon. The
rule is: If, after a contract is made for the sale of real property, it is ascertained that the title
of the vendor is not perfect, the vendee must either rescind the contract and restore the
possession or accept the title as it is and pay the purchase price.
30 Nev. 257, 262 (1908) Phenix v. Bijelich
session or accept the title as it is and pay the purchase price. He cannot, while declining to
pay such price on account of the defect in the title, hold possession of the property until the
title shall be perfected. (Worley v. Nethorcott, 91 Cal. 512; Gates v. McLean, 70 Cal. 43;
Rhorer v. Bila, 83 Cal. 54; Union Stave Co. v. Smith, 67 Am. St. Rep. 140; Lynch v. Baxter,
4 Tex. 431; Haile v. Smith, 60 Pac. 1032.)
II. This last case says: The defendant refused to make the last payment because plaintiffs'
title was not good. Defendant made valuable improvements on the land. Held, that plaintiff
could recover in ejectment, and whatever cause of action defendant had to recover, the
purchase money and value of the improvements was no defense. This quotation is from the
syllabi. To the same effect is Bruschi v. Quail M. & M. Co., 81 Pac. 404. The Supreme Court
of Oregon says (Livesly v. Mackle, 80 Pac. 901): Where the vendee under an executory
contract for the purchase price of real estate takes possession, and the title of the vendor fails,
or he is unable to make conveyance as stipulated, the remedy of the purchaser is either to
rescind or offer to restore the possession, in which case he may recover the purchase money
and interest, or retain the possession under the contract and pay the purchase price, accepting
such title as the vendor may be able to give. He cannot retain both the land and the purchase
money until a perfect title shall be offered him. It will be seen, therefore, that the defendant
cannot retain the possession of the land and deny plaintiffs' title, because while he retains the
fruits and benefits of the contract he is estopped from denying want of title in the plaintiffs,
and such plea on his part creates no defense and raises no issue. And the same rule applies to
fraud and misrepresentations. (Kinney v. Osborne, 14 Cal. 112; Blen v. M. R. & A. W. & M.
Co., 20 Cal. 602.) To the same effect is Snider v. Foote, 27 Fed. 581.
III. The fact that vendee, who has been put in possession under an executory contract of
sale, makes valuable improvements on the property does not entitle him to refuse to perform
his agreement and yet retain possession. (Hamman v. McNickle, 23 Pac. 271; Moore v.
Giesecke, 13 S. W. 290).
30 Nev. 257, 263 (1908) Phenix v. Bijelich
From all these authorities it will be seen that before the defendant can set up as a defense
defect of title or fraud of any kind he must rescind his contract and restore the possession of
the land or offer to do so, for he cannot acquiesce in his contract and at the same time seek to
avoid it. While he claims the benefit of his contractto wit, the possession, use and claim of
ownership of the landhe admits title and the bona fides of the plaintiff. If he wishes to
avoid the contract he may do so, and then, by restoring the possession to the plaintiff, he can
sue in damages for fraud and defect of title. If he rescinds, he must rescind in toto. If he
affirms any part of the contract, he affirms in all things. Therefore the authorities cited by
defendant are not in point, and the position taken by him is untenable, because the precedent
factto wit, the surrender of the possession of the landis wanting, the very fact necessary
to lay the foundation of any defense whatever. The answer therefore contains no averment of
any fact constituting any defense or any issue, and the judgment was properly rendered.
H. M. Farnam, for Appellant, in reply:
I. Where there is a defective verification of an answer the defendant should be allowed to
correct the error, if he so desires. (Heintzelman v. L'Amoroux, 3 Nev. 377; Bergerow v.
Parker, 87 Pac. 248.) Counsel for appellant does not concede that the absence of a
verification in an answer where the complaint is verified, as provided for in Comp. Laws,
3146, entitles respondents to a judgment on the pleadings. Section 3146 provides: Every
pleading shall be subscribed by the party or his attorney, and when the complaint is verified
also, except as provided in the next section. Section 3147 says: The verification of the
answer required in the last section may be omitted when an admission of the truth of a
complaint might subject a party to prosecution for felony. The statutes of Nevada nowhere
authorize a judgment on the pleadings for failure to verify an answer under such
circumstances. Motions for judgment on the pleadings are disfavored. (Bowles v. Dobble, 9
Pac. 918; Telegraph Co. v. Patterson, 1 Nev. 124-129; Road Co. v. Bedford, 3 Nev.
30 Nev. 257, 264 (1908) Phenix v. Bijelich
339-401.) The proper procedure for the respondents would have been to return the answer
because the same had not been verified. Or a motion might have been made by the respondent
to strike the answer from the files. Undoubtedly the latter is the proper practice. (Lehane v.
Keyes, 2 Nev. 261.) But since the statutes of Nevada do not impose any penalty for failure to
verify an answer when the complaint is verified, appellant submits that the court below could
not impose a penalty in the nature of an extinction of appellant's rights under a motion for a
judgment on the pleadings.
II. The notice of motion for judgment on the pleadings did not refer to the absence of the
verification of the answer. The question of the absence of verification is raised for the first
time in this case in the appellate court. In such case the appellate court will not look into the
question of verification. (Power v. Gum, 9 Pac. 575.)
III. A motion for judgment on the pleadings is in the nature of a demurrer to the answer
when made by the plaintiff in the case. Under such circumstances the respondents
unquestionably waived their objections to the answer. (Taylor v. Palmer, 31 Cal. 240;
Bergerow v. Parker, 87 Pac. 248.)
IV. Cases where plaintiff proceeded to trial without an answer cannot raise the point that
there was no issue. (Anderson v. Sloan, 1 Colo. 485; Taylor v. McGloughlin, 2 Colo. 12;
Northern Co. v. Wangard, 100 N. W. 1066; Gregory v. Bowlsby, 102 N. W. 517.)
V. We renew the statement made in the original brief that there were triable issues
presented, and respectfully request that the order of the lower court be reversed.
By the Court, Norcross, J.:
This is an appeal from a judgment upon the pleadings entered in pursuance of a motion for
that purpose.
The complaint contains the following allegations: That on, to wit, the 31st day of January,
1905, the plaintiffs were the owners of that certain lode mining claim in Goldfield Mining
District, County of Esmeralda, State of Nevada, known and called the September,' and on
said day said plaintiffs and said defendant made and entered into a written agreement, a true
copy of which is hereunto attached, marked 'Exhibit A,' and made a part of this complaint;
that thereafter said defendant in pursuance of said agreement paid said plaintiffs the sum
of $75 and entered into the possession and occupancy of said lot of land in said
agreement described, and ever since has been and now is in the occupation and
possession thereof; that said defendant has made no further payments, and although
more than ten days has expired since the remaining payment as provided in said
agreement became due, and was to be made, and although demand has been made
therefor, said defendant has failed, refused, and neglected to pay the same, and therefore
plaintiffs aver that said defendant has forfeited his said contract and agreement as in said
agreement specified, and plaintiffs are entitled to the possession and sole ownership of
said lot of land and improvements thereon."
30 Nev. 257, 265 (1908) Phenix v. Bijelich
agreement, a true copy of which is hereunto attached, marked Exhibit A,' and made a part of
this complaint; that thereafter said defendant in pursuance of said agreement paid said
plaintiffs the sum of $75 and entered into the possession and occupancy of said lot of land in
said agreement described, and ever since has been and now is in the occupation and
possession thereof; that said defendant has made no further payments, and although more
than ten days has expired since the remaining payment as provided in said agreement became
due, and was to be made, and although demand has been made therefor, said defendant has
failed, refused, and neglected to pay the same, and therefore plaintiffs aver that said defendant
has forfeited his said contract and agreement as in said agreement specified, and plaintiffs are
entitled to the possession and sole ownership of said lot of land and improvements thereon.
The material portions of the agreement referred to in and made a part of the complaint read
as follows: This agreement, made and entered into at Goldfield, Esmeralda County, Nevada,
this 31st day of January, A. D. 1905, by and between G. L. Phenix, Dr. White Wolf, P. C.
Kortz, W. S. Williams, and Addie Williams, of Goldfield, Nevada, parties of the first part,
and Nikola K. Bijelich of Goldfield, Nevada, party of the second part. Witnesseth, whereas
the said party of the first part is the owner of that certain mining claim known and designated
as the September,' situated in the Goldfield Mining District, Esmeralda County, Nevada, and
whereas the said party of the second part is desirous of securing a portion of the surface
ground of said claim. Now, therefore, in consideration of the sum of one dollar ($1) lawful
money of the United States, paid to the first parties, by the second party, the receipt whereof
is hereby acknowledged, and in consideration of the covenants and agreements hereinafter
contained, the parties hereunto have promised, covenanted and agreed and do hereby promise,
covenant and agree as follows: (1) The second party shall have, and he is hereby given a
leasehold interest in and to the surface ground embraced within that certain lot, or parcel of
land, designated upon the town-site survey of said mining claim as lot No.
30 Nev. 257, 266 (1908) Phenix v. Bijelich
as lot No. 5, in block No. 4, said leasehold interest to continue until the first parties acquire a
government patent to said September mining location. (2) The second party agrees to pay to
the owners of said mining claim the sum of $225, gold coin of the United States at the time
and in the manner following: ($75) seventy-five dollars cash down, upon the signing of this
agreement, and the balance in several deferred payments as follows: On or before July 30th,
1905, $150, together with the further sum of one dollar ($1) per annum, payable in advance as
rental, said deferred payments shall bear interest at the rate of one per cent per month until
paid. It is expressly understood and agreed by the parties hereto that if the second party shall
fail, neglect or refuse to make said payments or any of them, as above specified, and said
payments or any of them shall be in default or arrears, for a period of ten days following the
date when such payment is due and payable, then and in that event, the first parties, or any of
them, may enter into and take possession of said premises together with the improvements
without further notice or demand and without process of law, and the second party will
surrender to the first parties all of the second party's right, title and interest in and to said
premises or arising under and by virtue of this contract as liquidated damages for said breach
of contract. * * * (3) Upon issuance of a government patent for said September mining claim,
the first parties will make and execute and deliver to the second party a good and sufficient
deed to said lot No. 5, provided the second party shall make written demand therefor upon the
first parties together with the tender of one dollar within six months after the date of
recording said patent in the office of the recorder of said county. * * * (6) Time is of the
essence of this agreement.
Defendant's answer contains the following admissions, denials and allegation:
(1) Defendant admits that he entered into an agreement as set forth in plaintiff's
complaint, also, that he paid the plaintiffs the sum of seventy-five dollars. Defendant also
admits that he has refused to make further payments under said agreement. Defendant also
admits that he is in possession of the property described in plaintiffs' complaint.
30 Nev. 257, 267 (1908) Phenix v. Bijelich
session of the property described in plaintiffs' complaint. (2) Defendant, further answering,
denies that the plaintiffs are the owners, and entitled to the possession of a certain lode
mining claim, called the September,' situated in Goldfield Mining District, Esmeralda
County, Nevada. (3) The defendant, further answering, charges that the plaintiffs falsely and
fraudulently represented to the defendant that they were the owners of said property, when in
truth and in fact said plaintiffs never did have, and have not now, any title whatsoever to said
lode mining claim. (4) Defendant, further answering, alleges that he has expended a large sum
of money, to wit, fifteen hundred dollars in improving said property, and is entitled to said
improvements together with the possession of said property.
Wherefore defendant prays that said contract be canceled and annulled, and all moneys
paid the plaintiffs under said contract be adjudged the property of this defendant, and that this
defendant have the right of possession of said property, and his improvements thereon, and
his costs of suit, and such other and further relief as the court may deem equitable and just.
Nicola K. Bijelich,
Nikola K. Bijelich, by
Elmer Rogers,
Attorney for Deft.
Subscribed and sworn to before me this 15th day of May, 1907.
E. Hardy, Clerk of District Court,
By J. B. Rourke, Deputy.
Respondents' motion for judgment on the pleadings was based upon the following grounds
and none other: That the denials and statements set forth in defendant's answer raises no
issue to be tried and constitutes no defense to plaintiffs' cause of action as set forth in
plaintiffs' complaint.
Respondents raise the question upon this appeal that as the complaint was verified, and the
answer not verified, that alone would be sufficient cause to affirm the judgment. While there
is a pretense of a verification of the answer, made after the filing of the answer but before
entry of judgement, it must be readily conceded that such verification is not in accordance
with the provisions of the statute and upon proper objection would be held insufficient, in
which case an opportunity should be granted to amend.
30 Nev. 257, 268 (1908) Phenix v. Bijelich
ment, it must be readily conceded that such verification is not in accordance with the
provisions of the statute and upon proper objection would be held insufficient, in which case
an opportunity should be granted to amend. However, no question as to the sufficiency of the
verification of the answer was raised in the lower court, and it cannot, therefore, be raised for
the first time in this court. Counsel, we think, by moving for judgment upon the pleadings
upon other specific grounds, waived objection to the verification.
It is contended by counsel for respondents that appellant is governed by the rule providing
that while the vendee remains in possession of the land conveyed under the contract and
claims the right of possession under the contract, he cannot dispute the vendor's title or refuse
to comply with the terms of the contract, and that an application of this rule to the facts
admitted by the pleadings in this case affords a complete justification for the judgment
awarding plaintiffs possession of the property, together with the improvements, and payments
made as liquidated damages as prayed for in the complaint. That the rule contended for is the
general rule may be conceded. The pleadings, however, in this case, we think, take it outside
the rule's application. While the answer of the defendant admits that he entered into the
contract in question with the plaintiffs, he alleges that such contract was fraudulent in its
inception in that plaintiffs falsely and fraudulently represented that they were the owners of
the said September mining claim, when in truth and in fact said plaintiffs never did have,
and have not now, any title whatsoever to said lode mining claim. The answer also
specifically denies the plaintiffs' allegation of ownership of the claim, and alleges that
defendant is entitled to possession of the property involved in the action.
It cannot, we think, be said, as counsel for respondents contends, that appellant claims the
right of possession under the contract. There is nothing in the pleadings wherein appellant
makes any such specific claim affirmatively or admits such fact by failure to deny an
allegation to that effect of the plaintiffs. Other allegations in the answer are inconsistent with
such position.
30 Nev. 257, 269 (1908) Phenix v. Bijelich
are inconsistent with such position. In all of the cases to which our attention has been called
and others which we have examined where the general rule has been enforced, the grantor has
been conceded to have some title to the premises in controversy. The appellant in this case,
however, does not even concede a defective title in plaintiffs and respondents, but on the
contrary he alleges that plaintiffs never did have, and have not now, any title whatsoever to
said lode mining claims. He charges, in effect, that the contract sought to be enforced was
induced by the false and fraudulent representations of the respondents and that he received
nothing by reason thereof. When a party moves for judgment on the pleadings, he not only
for the purposes of his motion admits the truth of all the allegations of his adversary, but must
also be deemed to have admitted the untruth of all his own allegations which have been
denied by his adversary. (Walling v. Bowen, 9 Idaho, 184, 72 Pac. 960; Idaho Placer Min.
Co. v. Green [Idaho] 94 Pac. 161, 164; 11 Ency. Pl. & Pr. 1046.)
When the motion for judgment upon the pleadings was made, applying the rule last
quoted, it was conceded that defendant never acquired any rights to the land under the
contract, for the reason that the plaintiffs had none to convey, and that plaintiffs were not in
position to carry out their part of the agreement in any extent whatever. In a case, somewhat
similar in principle to this, the Supreme Court of Michigan in an opinion written for the court
by Cooley, J., said: Equity could not allow the rights of a purchaser under such a contract to
be forfeited by the vendor, when the latter had no title to convey, and was not in position to
perform his own undertaking. (Converse v. Blumrich, 14 Mich. 109, 90 Am. Dec. 230; Getty
v. Peters, 82 Mich. 661, 46 N. W. 1036, 10 L. R. A. 465; Warren v. Crew, 22 Iowa, 315;
Peck v. Brighton Co., 69 Ill. 200.)
Where a vendee in possession seeks to rescind a contract for the sale of land because of
defect in the title, he is in duty bound to restore to the vendor what he received under the
contract and place the vendor in his original situation, but where he received nothing from the
vendor under the contract, asserts fraud upon the part of the vendor in falsely
representing the title, and claims title in himself, the reason for the rule fails.
30 Nev. 257, 270 (1908) Phenix v. Bijelich
contract, asserts fraud upon the part of the vendor in falsely representing the title, and claims
title in himself, the reason for the rule fails. (Whitlock v. Denlinger, 59 Ill. 96.)
We think the answer of the defendant, especially in the absence of a demurrer thereto, sets
up a good defense to plaintiff's cause of action. This view of the case makes it unnecessary to
determine other questions presented.
The judgment is reversed, and the cause remanded for trial.
____________
30 Nev. 270, 270 (1908) Branson v. Indus. Workers of the World
[No. 1736.]
L. C. BRANSON, Appellant, v. THE INDUSTRIAL
WORKERS OF THE WORLD, Et Al., Respondents.
1. Dismissal and NonsuitGroundsMotionCombined MotionsGrant or Refusal. Where no specific
provision is made in the statutes for a combined motion to strike the complaint, to vacate the summons,
annul all the proceedings in the cause and dismiss the action, such motion cannot be granted unless the
moving party is clearly entitled to the relief asked for, and the pleading cannot be amended so as to cure
the defects complained of.
2. AssociationsActions AgainstParties. In equity, an action may be instituted by or against a voluntary
unincorporated organization where the members comprising the same are numerous by simply joining
as defendants a few natural persons, members of the organization, sufficient to represent and protect the
interests of the entire membership, and the few may be made plaintiffs or defendants for all.
3. ActionLegal or Equitable NatureAbolition of DistinctionCode Provisions. Under the Code of Nevada,
there is but one form of civil action, and legal and equitable distinctions so far as practice is concerned
are largely, if not entirely, done away with.
4. AssociationsMultiplicity of PartiesEquity Rule in Civil Action. Since it was the intention of the
legislature by section 14, civil practice act (Comp. Laws, 3109), providing for the joinder of parties as
plaintiffs or defendants, where the parties are numerous and it is impracticable to bring them all before
the court, and to permit one or more to sue or defend for the benefit of all, to make the equity rule as to
the joinder of parties available in an action at law, in an action against voluntary associations, it is
proper to sue the associations as such and join a few natural persons, members of the association, to
represent all the members.
5. MotionsRelief GrantedRemedy at Demurrer. Under Comp. Laws, 3135, authorizing a demurrer to a
complaint for a defect or misjoinder of parties defendant, and under section 71 of the practice act
(Comp. Laws, 3166), authorizing the court to disregard errors not affecting the substantial rights of the
parties, it is error in an action against a voluntary unincorporated association in which are
joined a few natural persons, members of the association, to represent all the
members, to grant a portion of a combined motion to strike the complaint, to
vacate the summons, annul all the proceedings in the cause and dismiss the
action, by dismissing only as to the association as such, since the court, not being
able to grant the relief asked, should have denied the motion in toto and left the
parties to their remedy by demurrer.
30 Nev. 270, 271 (1908) Branson v. Indus. Workers of the World
untary unincorporated association in which are joined a few natural persons, members of the
association, to represent all the members, to grant a portion of a combined motion to strike the
complaint, to vacate the summons, annul all the proceedings in the cause and dismiss the action, by
dismissing only as to the association as such, since the court, not being able to grant the relief asked,
should have denied the motion in toto and left the parties to their remedy by demurrer.
6. AssociationsMembersAttachmentAffidavitsParties. Where, in an action against a voluntary
unincorporated association, a few natural persons, members of the association, are made parties to
represent all the members, an affidavit for an attachment in the action, good against the natural persons
made parties, is good against all the members of the association.
7. ConspiracyCriminal ResponsibilityEnticing Servants. Neither at common law nor under statutes
modifying the common-law doctrine is it lawful for workmen to combine to injure another's business by
causing his employees to leave his services by intimidation, threats, molestation, or coercion, and such
a combination constitutes an indictable conspiracy.
8. Words and PhrasesBoycott. The term boycott ordinarily means a confederation, generally secret, of
many persons whose intent is to injure another by preventing any and all persons from doing business
with him through fear of incurring the displeasure, persecution, and vengeance of the conspirators.
9. AttachmentAffidavitsCriminal ActsBoycottAssociations. Where, in an action against voluntary
unincorporated associations and their members for damages for injuries to plaintiff's business by
boycott, etc., an affidavit for attachment alleges in the words of Comp. Laws, 3218, that defendants
criminally incurred the damages for which suit has been commenced, and in addition, makes the
complaint part of the affidavit, which complaint alleges in substance that the defendants combined
together to injure plaintiff's business by threats, boycott, and the like, and the use of violence, setting
out specific acts which were alleged to be unlawful, and that the reason for their action was the refusal
of plaintiff to accede to the demands of defendants, that plaintiff compel his employees, who were
union men and to whom he paid union wages, to join a rival labor organization, the affidavit states a
good cause of action for an attachment on the ground of criminally incurring the damages sued for,
since the allegations of the complaint show that there was not a peaceable coperation of the employees
to better their condition by securing an advance in wages or in fixing the hours of labor as expressly
authorized by Comp. Laws, 4751, and the acts in themselves show a criminal conspiracy.
10. Same. Held, also, that it was not necessary that all the specific acts alleged to have been committed in
pursuance of the conspiracy be in themselves of a criminal nature, or that it be determined whether each
and every specific act is unlawful.
11. AppealReviewQuestions ConsideredAcademic Questions. Where, in an action against a voluntary
unincorporated association and its members for damages to plaintiff's business by a conspiracy to
boycott, an appeal is taken by plaintiff from an order dismissing the action against
the association as such, the fact that property was wrongfully taken by the sheriff
under a writ of attachment sued out in the action cannot be reviewed on the
record presented.
30 Nev. 270, 272 (1908) Branson v. Indus. Workers of the World
cott, an appeal is taken by plaintiff from an order dismissing the action against the association as such,
the fact that property was wrongfully taken by the sheriff under a writ of attachment sued out in the
action cannot be reviewed on the record presented.
Appeal from the District Court of the Third Judicial District, of the State of Nevada, Nye
County; Peter Breen, Judge.
Action by L. C. Branson against the Industrial Workers of the World, and others, for
damages caused by a conspiracy to boycott and injure plaintiff's business. From an order
dismissing the complaint as against part of the defendants, plaintiff appeals. Reversed and
remanded.
The facts sufficiently appear in the opinion.
L. A. Gibbons and Wm. Forman, for Appellant:
I. The court erred in dismissing the action. If the complaint failed to state a cause of action
against said defendants, their only legal method of reaching the defect was by a demurrer on
the ground that the complaint did not state facts sufficient to constitute a cause of action as to
them. It is only where a sole plaintiff or a sole defendant is incapable of suing or being sued
that dismissal of the action is proper. A voluntary unincorporated society is liable for its torts
to the extent of its property, and can be sued for such torts. It may be sued in its own name,
and brought within the jurisdiction of the court by service of process upon its officers; or
several of its members may be sued for all of its members. This last remedy is as old as equity
itself. In the present case both methods were pursued.
II. Section 3218 of the Compiled Laws provides that an attachment may issue where the
defendant has criminally incurred the obligation for which suit is brought. One criminally
incurs an obligation when the obligation is created by a crime committed by him. The matters
and things alleged in the complaint to have been committed by the defendants were crimes at
common law. Comp. Laws, 4788, provides that those acts which were crimes at common law
are crimes in this state. Therefore the obligation for which this suit is brought herein was
criminally incurred.
30 Nev. 270, 273 (1908) Branson v. Indus. Workers of the World
P. M. Bowler, for Respondents:
I. The law is that an unincorporated, voluntary association having no existence apart from
and separate from those who compose it, suit cannot be maintained against such association
by its common name, nor can its common funds be held for the acts of its members. The
action must proceed against the individual members in their individual capacities wherein
each are jointly and severally liable and their property amenable. (Mexican Mill v. Yellow
Jacket M. Co., 4 Nev. 40.)
II. Having a precedent for the procedure taken in this matter by this honorable court, guided
and controlled by the reasoning in the Mexican Mill case, supra, we have acted, and so has
the lower court. We maintain we were authoritatively justified in raising the point by motion
to dismiss, and not by demurring, for the demurrer would not lie. The plaintiff starts out by
making the Industrial Workers of the World, Tonopah Miners' Union No. 121, Tonopah
Branch, Goldfield Miners' Union, Goldfield Branch, Mining Department, Industrial Workers
of the World, Newsboys' Union No. 45, Industrial Workers of the World, defendants, then he
proceeds, naming Herbert T. Shaw as president of the Tonopah Branch I. W. W., etc., as well
as to name other parties as officers of the other unions, but it is clear that the unions named
are made defendants by their common name just the same as if they had a legal entity. This
the law does not permit. (Richardson v. Smith, 21 Fla. 336; Scheutzen Bund v. Agitations
Verein, 44 Mich. 313, Danbury Cornet Band v. Bean, 54 N. H. 524; Mayer v. Journeyman
Stonecutters' Association, 47 N. J. Eq. 519; Nightingale v. Barney, 4 Iowa, Greene, 106.)
III. The attachment should be discharged on account of the insufficiency of the affidavit
on attachment, in that it is not shown thereby that defendants, or either of them, criminally
incurred the obligation for which judgment is sought. The office of an affidavit is generally to
set forth facts, evidential, probative facts, as contradistinguished from ultimate facts or
conclusions of law, and when the ground of attachment is a single and complete fact,
substantive in its nature, and not dependent on associate facts or circumstances to
establish its existence, it will be sufficient to state that ground in the words of the statute,
but when the ground consists of an act done in a manner or for a purpose which makes
the act obnoxious to good morals, and that act, thus united to the purpose, is described in
the statute only by words of legal import implying conclusions of law from stated facts,
then the bare recital of the words of the statute will not suffice.
30 Nev. 270, 274 (1908) Branson v. Indus. Workers of the World
and not dependent on associate facts or circumstances to establish its existence, it will be
sufficient to state that ground in the words of the statute, but when the ground consists of an
act done in a manner or for a purpose which makes the act obnoxious to good morals, and
that act, thus united to the purpose, is described in the statute only by words of legal import
implying conclusions of law from stated facts, then the bare recital of the words of the statute
will not suffice. Of this type is the ninth statutory ground of attachment. To say that an
obligation is criminally incurred is a statement of a conclusion of law. The statute in effect
says that when acts are done in a manner and for a purpose which in law amounts to a crime,
or, in other words, if in the perpetration of a crime an obligation is incurred, an attachment
may issue upon affidavit showing the criminality. The criminal incurring of an obligation is
not a single fact, substantive in its nature, but is dependent on associate facts and
circumstances to establish its existence. (First National Bank v. Swan, 23 Pac. 744; Volmer v.
Spencer, 51 Pac. 609.) The proceeding by attachment which obtains in Nevada is a summary
and extraordinary remedy in derogation of the common law, and owes its existence entirely to
statutory enactment. While heroic, drastic and remedial it is nevertheless privileged, and one
desiring the benefit to be derived therefrom must be held to at least a substantial compliance
with statutory requirements. It is the universal rule that a plaintiff in order to have the benefit
of this statutory provisional remedy must do everything required by the statute. (Vol. 4, Cyc.
p. 396 and notes, p. 400; Rudolph v. Saunders, 43 Pac. 619.)
IV. The complaint does not state facts sufficient to constitute a cause of action legal or
equitable, and does not entitle plaintiff to any relief whatever. Does the affidavit show that
defendants criminally incurred the obligation for which suite is commenced? This involves
the sufficiency of the complaint which forms part of the affidavit for attachment. It is a
common practice with some lawyers in drawing complaints for damages and injunctive relief
to indulge extravagantly in the indiscriminate and reckless use of adjectives, with the
intention, presumably, by force of their ominous and portentous meaning, to overwhelm
the mind and cloud the judgment of the court.
30 Nev. 270, 275 (1908) Branson v. Indus. Workers of the World
and portentous meaning, to overwhelm the mind and cloud the judgment of the court. The
plaintiff's complaint, in this respect, is no exception, for in it we find unlawfully,
wantonly, willfully, wrongfully, maliciously, wickedly, coercion, force,
intimidation, threat, threatened, combined, conspired, conspiracy, and the like,
without acts or events being described, and unaccompanied with any specific statement of
facts or circumstances, which can or would enable the court to determine whether an alleged
thing was done so as to fit into the adjectives set forth. Such words have in themselves no
inherent character or unlawfulness. They are high sounding, but contain no element of fact to
make defendants or any of them stand charged with any crime or wrong-doing. (Davitt v.
American Bakers' Union, 124 Cal. 100.)
V. Paragraph II charges the officers and members of the I. W. W. and its branches with
being bound and tied together in all matters affecting their common interests, including the
ordering, production, and furtherance of strikes and boycotts. Yet there is no showing or
specific statement of facts that there ever was a resolution of any of the unions respecting a
boycott or strike, but if such should appear, notwithstanding the absence of such averment,
that is no more than the exercise of a lawful right. No coercion was inflicted or imposed upon
the members. From everything that is shown it was a matter of mutual understanding and
agreement, which was and is a subject of lawful concern to them alone. It cannot be
successfully maintained under the statute of this state defining the crime of conspiracy that it
is unlawful or illegal for persons employed in any profession, trade, or handicraft to orderly
an peacefully assemble, or the coperation of such persons for the purpose of securing an
advance in the rate of wages or compensation for the maintenance of the same. To exact or
demand that plaintiff employ none but members of the I. W. W. or unionize his office by
having his men become members of such organization is a step in the line of maintenance of
the union scale of wages, for such is the measure of their obligation to each other by special
agreement and common consent. No coercion upon them is thereby shown.
30 Nev. 270, 276 (1908) Branson v. Indus. Workers of the World
thereby shown. By virtue of the provisions of the statute of this state, supra, that statute shall
not be construed in any court of this state to restrict or prohibit peaceable strikes and
boycotts; upon the contrary the intent and very purpose of that statute as it has existed since
1887 is to authorize peaceable assemblage and coperation for such strikes and boycotts,
which prior to such amendatory statute was unlawful and illegal, however orderly and
peaceably conducted. This statute prior to such amendment was simply declaratory of the
English common law, and this amendatory statute, being in derogation of the common law,
nullifies and renders obsolete the common law and all decisions of courts predicated upon
common-law principles.
VI. The complaint, when divested of its prolific use of adjectives, conclusions of law,
subterfuge and legal verbiage, amounts to no more than that the Tonopah and Goldfield
Miners' Unions and the Newsboys' Union of Goldfield affiliated with the I. W. W. agreed to
compel the plaintiff and appellant to submit to their request that he unionize his printing
office, by the employment of none other than those affiliated with the I. W. W. upon pain of
being boycotted in business; that he refused their demand; a strike was ordered, men and boys
quit his establishment and his employment; that the boycott was waged, a circular was printed
and circulated, declaring that plaintiff was unfair, by the Newsboys' Union, affiliated with the
I. W. W.; that in consequence he lost subscribers to his papers, advertisers and job printing;
that the friends of organized labor and the labor organizations withdrew their patronage for
him, resulting in financial loss estimated at twenty-five thousand dollars, for which he brings
this action and attaches the funds and hospital of the Tonopah Union. This is all there is of
the complaint. That the Newsboys' Union or the I. W. W. had the unmistakable right to
request of him, as they did, cannot be doubted; he had the privilege to do as he pleased in the
matter; he saw fit to become obstinate and refused the requisition made upon him; a
peaceable boycott ensued, resulting in his financial loss. Employees have absolute rights
which, in their industrial relations, are available and which they should enjoy, namely: To
organize into unions, societies, associations, or by whatever name, for their mutual
benefit; to combine with a view of securing employment for themselves to the exclusion
of others not in concert with them.
30 Nev. 270, 277 (1908) Branson v. Indus. Workers of the World
into unions, societies, associations, or by whatever name, for their mutual benefit; to combine
with a view of securing employment for themselves to the exclusion of others not in concert
with them. The fight for supremacy among labor unions to control the labor market is not
unlike the struggle between political parties for governmental control. The right of workmen
to combine to obtain employment, with a view of getting as much as they can for their labor,
is absolute, just as the capitalists combine to obtain the highest possible return for their
money. This right for a long time was denied; it was slow of recognition, but with the
progress of civilization it has come to be law and is here to stay.
VII. A benevolent or social club, association, or miners' union is not a partnership in any
sense of that term. The miners' union is, as the complaint alleges, an unincorporated
association for the mutual benefit of its members, among which are sick benefits, allowance
for burial of the dead, and care of the afflicted of its membership, a sort of social and
benevolent arrangement not for gain or pecuniary profit. The union or association funds are
not liable for the individual torts of its members. The members of such an institution are
liable, if liable at all, for the acts of their associates on the ground of principal and agent, and
not of partnership, and it requires no vivid imagination to recognize that for individual torts
the entire association or membership and its funds cannot be held for the individual torts of
its members. (Bates on Part. 75; Lindley on Part 50; Story on Part. 144; Flemming v. Hictor,
2 Mees. and W. 172; Ash v. Gine, 97 Pa. St. 493; Ermautraut v. Robinson, 54 N. W. 188.)
L. A. Gibbons, for Appellant, in reply:
I. It is alleged in the complaint that the voluntary associations are composed of persons
voluntarily combined and associated together for their own common benefit, and governed
by officers and agents selected by the members of said respective associations. It is next
alleged that certain individual defendants were at all times the presidents and secretaries of
the associations. Here are distinct allegations that the associations are governed by officers
selected by the members themselves, and these officers are made parties defendant.
30 Nev. 270, 278 (1908) Branson v. Indus. Workers of the World
bers themselves, and these officers are made parties defendant. In other words, not alone are
the associations made parties defendant, but the governing officers of those associations.
Counsel says: If such officers could be sued at all, it would be under some designation, for
instance, like this: Herbert T. Shaw, representing an association of individuals styling
themselves as Tonopah Branch of the Industrial Workers of the World.' Has not the pleader
alleged this in effect and, moreover, as a fact instead of in a recitative form? It is alleged that
the associations are governed by certain officers, those officers are named and they are sued
as such officers, for it will be noted that the individuals named as officers are sued not alone
as individuals, but as officers. It may be admitted that there is no law here that permits a
voluntary association to be sued in its common name, but, when admitted, of what import?
The present is not such a case. This is a suit in equity. The voluntary associations were
composed of large numbers of persons; members of each association were made parties
defendant. This complies with the old equity rule, older than the jurisprudence of the United
States itself. (See 15 Ency. Pl. & Pr. p. 608, and cases cited.) That is particularly the rule in
actions against voluntary associations. (22 Ency. Pl. & Pr. p. 247.)
II. That a voluntary association is liable for the acts of its members while pursuing the
objects of the association where those acts cause injury to others is too well settled to admit
of discussion. (Employing Printers Club v. Dr. Blosser Co., 69 L. R. A. 90; Ertz v. Produce
Exchange, 81 N. W. 737; Simmons v. Southern Rifle Club, 52 La. Ann. 114; April v. Bird, 32
N. Y. App. 2261.)
III. Upon filing an affidavit in the statutory language its issuance can be compelled. The
clerk is not concerned with the question as to whether the plaintiff will prove his case, nor
does he at all pass upon that question when he issues the writ. Yet, if counsel's contention be
correct and the facts must be stated and not the legal conclusion in the language of the statute,
is he not then compelled to pass upon a legal question, viz: Is the legal conclusion deducible
from the facts stated?
30 Nev. 270, 279 (1908) Branson v. Indus. Workers of the World
facts stated? In other words, counsel's contention would make the clerk a judicial officer,
while under the statute he is only a ministerial officer. But as a copy of the complaint is made
a part of the affidavit, the affidavit states sufficient facts if the complaint does.
IV. Counsel seems to be surprised that intent should be a factor in the case, yet is not
intent the very gist of all crimes? Does it not constantly change innocent acts into graver
crimes? I have a right to place refuse upon my own grounds, yet it is unlawful for me to do so
when I know it will poison a neighbor's well and place the refuse there for that very purpose.
Counsel says respondent has the right to criticise. They assuredly have that right, but granting
them that right does not take away from the criticised all right. I have a right to criticise an
actor or a play, my friends have the same right, yet if the actor be an enemy of ours have we
the right to go to the theater and for the purpose of injuring that actor, by hissing and noise,
prevent him from continuing his performance? Assuredly not. (Gregory v. Brunswick, 6 M. &
G. 205.)
V. The acts complained of were crimes at common law. (State v. Glidden, 55 Conn. 46;
People v. Kostka, 4 N. Y. Crim. 429; Crump v. Commonwealth, 84 Va. 927; State v. Stewart,
59 Vt. 273.) And being crimes at common law they are such in the State of Nevada. (Comp.
Laws, 4788.)
Per Curiam:
This is an action brought by the plaintiff and appellant against various voluntary
unincorporated labor organizationssuch organizations being designated in the complaint by
their respective namesagainst the president and secretary, respectively, of each of said
organizations, both in their official and individual capacity; also against a number of other
persons, members of said organizations. At the time of the filing of the complaint a writ of
attachment was obtained upon an affidavit, reciting that the ground of attachment was that
defendants criminally incurred the obligations for which the suit has been commenced. In
the affidavit for attachment a copy of the complaint was set out in full, and made a part
thereof.
30 Nev. 270, 280 (1908) Branson v. Indus. Workers of the World
ment a copy of the complaint was set out in full, and made a part thereof.
The complaint, briefly epitomized, alleged that plaintiff was the owner and publisher of
two certain newspapers published in the State of Nevada, to wit, the Tonopah Daily Sun,
published at Tonopah in Nye County, and the Goldfield Daily Sun, published at Goldfield in
Esmeralda County; that plaintiff had invested more than $27,500 in said two newspapers, and
the plants connected therewith, and that he was dependent upon the public for the support and
patronage of the same; that plaintiff in the publishing of said newspapers employed only
union men and paid them union wages; that the defendants demanded of plaintiff that he
require his employees to become members of the defendant organization, the Industrial
Workers of the World, and upon plaintiff's refusal so to do, the defendants, and each of them,
entered into a conspiracy to damage, injure, and ruin plaintiff's business and interest in said
two newspapers, by means of boycotts, threats, intimidation and violence; that in pursuance
of said conspiracy, defendants are charged in the complaint with specific acts of violence,
threats and intimidation, as follows:
(1) That on the 3d day of August, 1906, defendants caused and procured a strike of the
newsboys or those who delivered and sold the Goldfield Daily Sun in Goldfield, Esmeralda
County, Nevada, and that said newsboys thereupon struck and refused to sell or deliver said
the Goldfield Daily Sun; that thereupon plaintiff employed one H. C. Farmer, and Everett
Read to deliver his said papers, and thereupon said defendants caused said parties to be
physically assaulted and called scabs' and other opprobrious names, and by violence and
intimidation prevented said parties from delivering said paper, and by said means, and others
hereinafter set forth, plaintiff has been and is prevented from delivering his said papers in
Goldfield.
(2) The defendants issued and caused to be distributed a circular throughout Goldfield,
and sent the same to the customers and subscribers of plaintiff, in which circular plaintiff, the
Goldfield Daily Sun, was declared unfair. * * *
30 Nev. 270, 281 (1908) Branson v. Indus. Workers of the World
And the public was asked and commanded not to buy said paper or in any way patronize the
same.
(3) That defendants visited all advertisers who advertised in the Goldfield Daily Sun, and
falsely stated to all said advertisers that said paper was unfair, and that defendants had
boycotted the same, and demanded of said advertisers that they cease to advertise in said the
Goldfield Daily Sun, and threatened said advertisers that if they continued to advertise in said
the Goldfield Daily Sun any advertiser so doing would be boycotted by defendants.
(4) That said defendants demanded of the public in general that they not subscribe for,
advertise in, or in any way patronize the Goldfield Daily Sun, and threatened any one who did
so with boycott by defendants.
(5) That defendants visited all the news stands in Goldfield where the Goldfield Daily
Sun was sold or dealt in, and threatened each and all of said news stands with a boycott at the
hands of defendants, and that defendants would post any news stand selling the said the
Goldfield Daily Sun as unfair' and a scab,' unless said news stand ceased absolutely to sell
or handle said paper. That one of said news stands was owned by one of plaintiff's employees,
and that defendants by the use of said threats and intimidations forced and compelled said
employee not alone to cease selling or handling the said the Goldfield Daily Sun, but also quit
the employ of plaintiff; and that said employee of plaintiff was forced to accede to the
demands of defendants through fear that defendants would ruin his business unless he did
comply with their demands.
(6) That defendants maintained a blackboard or billboard on the public streets of
Goldfield in front of the Miners' Union Hall, on which blackboard or billboard they caused to
be posted the names of all those who advertised in the Goldfield Daily Sun, and in connection
with the names of said advertisers so posted stated that the Goldfield Daily Sun had been
declared unfair,' and asked the public not to patronize those persons or firms or corporations
whose names appeared upon said blackboard or billboard for the reason that they advertised
in the Goldfield Daily Sun; that by reason of said acts of defendants all advertisers save
five, whose names were posted on said blackboard, were forced to and did withdraw their
advertisements from the Goldfield Daily Sun.
30 Nev. 270, 282 (1908) Branson v. Indus. Workers of the World
acts of defendants all advertisers save five, whose names were posted on said blackboard,
were forced to and did withdraw their advertisements from the Goldfield Daily Sun.
(7) That defendants established an espionage upon the office of the Goldfield Daily Sun
and watched all persons who entered into the office of the said paper, and that by reason of
the threats of a boycott and intimidation forced and compelled many persons to cease to
patronize the job printing department of the Goldfield Daily Sun, and in many cases forced
and compelled customers to cancel orders for work given to said paper, even after the work
had been completed by plaintiff.
(8) That defendants combined and conspired with the employees of the
Tonopah-Goldfield Railroad Company who handle freight and with the transfer companies
operating in Goldfield, whereby said railway employees and said transfer companies agreed
not to in any way handle, deliver, or forward any of the freight sent by or to plaintiff or the
Goldfield Daily Sun, and that by reason of said combination and conspiracy said railway
employees have refused to handle or unload freight sent to or by the Goldfield Daily Sun, and
the transfer companies have refused to handle in any way freight sent to or by the Goldfield
Daily Sun, and that as a direct result of said combination and conspiracy plaintiff is unable to
receive or ship any freight unless his own employees receive the same at the cars or deliver
the same to the cars for shipment.
(9) That defendant organizations have enforced their said boycott against plaintiff and his
paper the Goldfield Daily Sun and the Tonopah Daily Sun, and has compelled its members to
enforce said boycott by placing a fine of $15 upon any member who bought a copy of either
paper.
(10) That the defendant organizations have directed and ordered all their members to
withdraw their subscriptions from the Tonopah Daily Sun under a penalty of a fine by or a
dismissal from said organizations.
(11) That defendants have persuaded and endeavored to compel those who sell and
deliver the Tonopah Daily Sun to strike and refuse to sell said paper or to deliver the same to
its subscribers, and in pursuance of said conspiracy and combination have offered to pay
said newsboys, and those who deliver and sell said the Tonopah Daily Sun, $1.50 per day
if they would strike and refuse to sell or deliver said newspaper.
30 Nev. 270, 283 (1908) Branson v. Indus. Workers of the World
to its subscribers, and in pursuance of said conspiracy and combination have offered to pay
said newsboys, and those who deliver and sell said the Tonopah Daily Sun, $1.50 per day if
they would strike and refuse to sell or deliver said newspaper.
(12) That said defendants have caused by threats and intimidation the newsboys, and
those who sell and deliver the Tonopah Daily Sun in Manhattan, Nye County, Nevada, to
strike and refuse to sell or deliver said the Tonopah Daily Sun, and thereby greatly decrease
the circulation of said paper, and prevented plaintiff from obtaining new subscribers.
(13) That defendants or their agents have visited the newsdealers in Tonopah, Nye
County, handling or selling the Tonopah Daily Sun, and demanded of them that they cease
selling or handling the Tonopah Daily Sun, and threatened them that if they did not do so that
they, the defendants, would boycott the newsdealers continuing to handle said the Tonopah
Daily Sun.
(14) That defendant Shaw entered the office of the plaintiff in Tonopah, and attempted by
threats and intimidation to compel plaintiff to submit to the demands of the defendants, and
persisted in his said threats and intimidations until it became necessary to eject him from
plaintiff's said office.
(15) That defendants have demanded that advertisers in the Tonopah Daily Sun withdraw
their advertisements from said paper, and have threatened that unless they did so defendants
would boycott them, and that as a result of said threats and intimidation, advertisers in said
paper have withdrawn their advertisements therefrom and have ceased to advertise in said
paper.
(16) That defendants have publicly, falsely stated and caused said statement to be
circulated among the public that the Tonopah Daily Sun was unfair, and that the same was
published solely in the interests of the mine owners, and demanded of all persons that for
these reasons they do not subscribe for or patronize said paper.
(17) That plaintiff is informed and believes, and therefore alleges the facts to be, that
defendant organization I. W. W.
30 Nev. 270, 284 (1908) Branson v. Indus. Workers of the World
and its officers plotted and planned to blow up and destroy the plant of said the Tonopah
Daily Sun, and was prevented from so doing only by the vigilance of the plaintiff in guarding
his said property.
(18) That defendants for the purpose of intimidating plaintiff and preventing him from
publishing his said newspaper, and for the purpose of injuring and destroying his business
and his property rights in said newspapers, and for the purpose of depreciating in value
thereof and forcing plaintiff to comply with their demands have repeatedly publicly stated and
threatened as follows: That the boycott (against plaintiff) would not be raised until the
plaintiff had sold both his newspapers, and that if plaintiff did not do so his two plants would
not be worth fifteen cents. That plaintiff would have to sell his Goldfield paper, prove the sale
to be bona fide, compel the employees of the Tonopah Daily Sun to join the Industrial
Workers of the World, and publish in the Tonopah Daily Sun an apology to the Industrial
Workers of the World. That the purchaser of the said the Goldfield Daily Sun would have to
carry the so-called I. W. W. card' or publish a column devoted to the Industrial Workers of
the World. That plaintiff could sell his business and plant in Goldfield only to the I. W. W.
That they (defendants) would not let up plaintiff until they had driven him from the State of
Nevada.
(19) The defendants caused plaintiff's employees to be assaulted while they were
delivering mail to the United States postoffice or taking mail therefrom.
The complaint further alleges that as a result of the alleged conspiracy of defendants, and
the acts and things done in pursuance thereof, plaintiff was damaged in the sum of $25,000,
and judgment for that amount, together with costs, is prayed for against defendants.
Certain of the defendants appeared specially, and filed a notice and motion, the body of
which is as follows:
The defendants, Industrial Workers of the World, Tonopah Miners' Union No. 121,
Mining Department Industrial Workers of the World, Goldfield Miners' Union No. 220,
Mining Department Industrial Workers of the World, Goldfield Branch Industrial Workers
of the World, Newsboys' Union No.
30 Nev. 270, 285 (1908) Branson v. Indus. Workers of the World
field Branch Industrial Workers of the World, Newsboys' Union No. 45, I. W. W., Herbert T.
Shaw, as president of the Tonopah Branch of the Industrial Workers of the World, G. A.
Roberts, as secretary of the Tonopah Branch of the Industrial Workers of the World, J. M.
Brown and Joe Smith, respectively as president and secretary of the Tonopah Miners' Union
No. 121, Mining Department Industrial Workers of the World, F. Clough and J. B. Barry,
respectively as president and secretary of the Goldfield Miners' Union No. 220, Industrial
Workers of the World, L. O'Handley, and A. Morris, respectively as president and secretary
of the Newsboys' Union No. 45, I. W. W., above named appearing herein only for the purpose
of this motion, ask: That the complaint on file herein be stricken from the files, the summons
vacated, quashed and set aside, and all and singular proceedings, so far had and taken in said
court and cause be annulled and declared void; that plaintiff take nothing thereby, and that
said action be dismissed, and upon the following grounds: That the said complaint does not
conform to the provisions of section 39 of the civil practice act of this state (Comp. Laws,
3134), in that the same does not specify that said defendants, so as aforesaid, specially
appearing, are thereby sued as persons natural or artificial; upon the contrary, said action is
brought, and the same is pending and prosecuted against said defendants, and each of them,
as a voluntary unincorporated association, composed of persons voluntarily combined and
associated together for their common benefit.' That said complaint complains and alleges that
said action is against said defendants not as natural or artificial persons, but as an
unincorporated voluntary association or society, which is not a legal entity, and has no
existence apart from and separate from those persons comprising said unincorporated
voluntary association. That said action is brought and pending against said defendants in the
name and names of unincorporated voluntary associations, separate and apart from the person
and persons who compose them.
At the same time, the same defendants appearing specially, and subject to the foregoing
motion, reserving all the rights therein claimed, move: That the writ of attachment issued
out of said court in said cause be vacated, quashed, set aside, dissolved, discharged, and
declared void, and all and singular funds, property and money thereby seized upon and
held be released and discharged therefrom upon the following grounds: That said writ of
attachment was improperly issued, in this: That the affidavit upon attachment, filed in
said cause, does not conform to the provisions of an act of the Legislature of the State of
Nevada, entitled 'An act to amend an act entitled "An act to regulate proceedings in civil
cases in the courts of justice in this state," and to repeal all other acts in relation thereto,'
approved March S, 1S69; approved February 14, 1SS7, Stats.
30 Nev. 270, 286 (1908) Branson v. Indus. Workers of the World
out of said court in said cause be vacated, quashed, set aside, dissolved, discharged, and
declared void, and all and singular funds, property and money thereby seized upon and held
be released and discharged therefrom upon the following grounds: That said writ of
attachment was improperly issued, in this: That the affidavit upon attachment, filed in said
cause, does not conform to the provisions of an act of the Legislature of the State of Nevada,
entitled An act to amend an act entitled An act to regulate proceedings in civil cases in the
courts of justice in this state, and to repeal all other acts in relation thereto,' approved March
8, 1869; approved February 14, 1887, Stats. 1887, p. 55, c. 48; for in that said attachment was
attempted to be issued on account of defendants having criminally incurred the obligation for
which suit has been commenced, whereas said affidavit sets forth no fact or facts describing
any criminal act or acts on the part of the defendants, or any or either of them, and contains
no statement of fact or facts describing any act or acts of defendants showing the commission
of any criminal act whereby said defendants, or either of them, were criminally liable, or
which would subject the defendants, or any or either of them, to civil damages. That said
affidavit does not contain any fact or facts showing that any acts or acts of defendants, or that
any or either of them criminally incurred any obligation for which plaintiff has commenced
suit, or for which plaintiff is at all entitled to recover any compensation whatsoever. That said
affidavit fails to show that the nature of the plaintiff's claim is just, or that he is entitled to
recover in this action. That said affidavit is wholly insufficient and does not state any fact or
facts sufficient to conform to the provisions of the statute aforesaid, in that it fails to show
that any debts whatever, or that the amount for which this suit is commenced, has been
criminally or otherwise incurred by said defendants, or any or either of them. That said
affidavit for attachment was and is wholly insufficient to give this court jurisdiction to issue
the writ of attachment, for it fails to show that any liability of defendants, or any or either of
them, was incurred criminally, fraudulently, or otherwise. That said affidavit does not state
facts sufficient to show the nature of the plaintiff's claim, and particularly that said claim
is a just one, and that the same was criminally contracted whereby an obligation on the
part of the said defendants was incurred for which this suit was commenced."
30 Nev. 270, 287 (1908) Branson v. Indus. Workers of the World
sufficient to show the nature of the plaintiff's claim, and particularly that said claim is a just
one, and that the same was criminally contracted whereby an obligation on the part of the said
defendants was incurred for which this suit was commenced.
These motions coming on regularly to be heard before the trial court, the following order
was made: It is ordered that as against each and all of the voluntary unincorporated
associations named and set forth in the complaint as defendants, the motion of defendants to
dismiss said action and dissolve said attachment is hereby granted. From this order plaintiff
appeals.
1. It will be observed that in the first motion quoted above it was asked, first, that the
complaint on file herein be stricken from the files; second, the summons vacated, quashed,
and set aside; third, that all and singular the proceeding, so far had * * * be annulled and
declared void; fourth, that said action be dismissed. There is no specific provision in the
statutes for motions of this character, and they should not be granted unless the moving party
is clearly entitled to the relief asked for, and the pleadings are not capable of being amended
so as to cure the defect complained of. It is manifest that the court could not appropriately
grant any of the things demanded in the motion when there were any proper parties defendant.
If the court had denied the motion, respondents could not have successfully assigned error,
even though it be conceded that it was not proper to make voluntary unincorporated
associations of persons, parties to actions merely by the name of the association. If no natural
persons had been made defendants in this action, then the case would have been in the same
situation as that of Mexican Mill v. Yellow Jacket S. M. Co., 4 Nev. 40, 97 Am. Dec. 510,
relied on by respondents, in which this court said: The very first step towards the
commencement of a civil action or proceeding is the filing of a complaint, in which it is
indispensable that there be shown a plaintiff and a defendant, and without which it is an
absolute nullity, and renders void all subsequent proceedings had under it. In this instance, no
person natural or artificial is named as a plaintiff, and if an amendment were allowed to
supply the omission the effect of such an amendment would necessarily be to make a
plaintiff where there were none such at the inception of the action."
30 Nev. 270, 288 (1908) Branson v. Indus. Workers of the World
named as a plaintiff, and if an amendment were allowed to supply the omission the effect of
such an amendment would necessarily be to make a plaintiff where there were none such at
the inception of the action. In this case, however, the plaintiff is a natural person, and
numerous natural persons are included as defendants. While the trial court could not grant the
motion in its entirety, as prayed for, it did grant it in part, by dismissing the action in so far as
the voluntary unincorporated associations named and set forth in the complaint were
concerned. It seems to be conceded that the effect of this order would be practically to strike
from the complaint all defendants, excepting the few designated by name, while the many
hundreds who compose the organizations would in no sense be parties to the action. For the
purposes of this opinion, we will treat it as having such effect.
While a voluntary unincorporated association cannot by its name alone sue or be sued,
nevertheless such an organization has its rights and responsibilities, which rights it may
enforce by appropriate procedure; and, by the same procedure, it necessarily follows, it may
be held accountable for its responsibilities. These organizations usually comprise a large
membership, and are governed in accordance with prescribed rules and regulations by officers
elected for the purpose. They frequently not only possess a large amount of property, but
exercise vast powers in the communities in which they exist. It is conceded that they may sue
or be sued by joining all their members, but this, if requisite, would impose great
inconvenience upon the organizations themselves, as well as hardship upon those seeking
redress against such organizations, for it would be impossible, in many instances, for
non-members to obtain the names of more than a small fraction of the membership, without
great effort, delay, and probable expense. It is manifest, we think, from the complaint, that the
plaintiff proceeded upon the theory that the persons constituting the defendant organizations,
being numerous, he could proceed against a few personally, who would represent the whole
body of the defendant organizations. Counsel for appellant now contends that the defendant
organizations are properly made defendants upon this theory. It has long been recognized in
proceedings in equity that an action may be instituted by or against a voluntary
unincorporated organization, where the members comprising the same were numerous,
by simply joining as defendants a few natural persons, members of the organization,
sufficient to represent and protect the interests of the entire membership, and that the
few may be made plaintiffs or defendants for all.
30 Nev. 270, 289 (1908) Branson v. Indus. Workers of the World
recognized in proceedings in equity that an action may be instituted by or against a voluntary
unincorporated organization, where the members comprising the same were numerous, by
simply joining as defendants a few natural persons, members of the organization, sufficient to
represent and protect the interests of the entire membership, and that the few may be made
plaintiffs or defendants for all. (Story's Eq. Pl. 97; 15 Ency. Pl. & Pr. p. 608; 22 Ency. Pl. &
Pr. p. 247; U. S. v. Coal Dealers' Association, 85 Fed. 252.)
The case of United States v. Coal Dealers' Association was a bill by the United States
against the Coal Dealers' Association of California and the members of the association, and
against Charles R. Allen, Central Coal Company, R. D. Chandler, George Fritch, J. C. Wilson
& Co., Oregon Improvement Company, Oregon Coal & Navigation Company, W. G.
Stafford, trading as W. G. Stafford & Co., R. Dunsmuir's Sons, John Rosenfeld, Louis
Rosenfeld, and Henry Rosenfeld, partners, trading as John Rosenfeld Sons.
Discussing this question, Morrow, Circuit Judge, said: It is contended that, as the Coal
Dealers' Association is an unincorporated company, it cannot be brought into court by making
it a party defendant by that name. In equity, the action must be against the individuals
comprising such an association; but there is this exception: Where the parties are numerous,
some of them may be brought in as representing the whole association. The title of this case is
against The Coal Dealers' Association of California, and All the Members of said
Association,' and also against seventeen individuals, who are designated as Members and
Offices of Said Association.' The return of the marshall shows that all these individuals have
been served; that the president of the association has been served as an individual, and as
president of the association; and he has appeared in the capacity of president in the affidavit
filed by him, as has also the secretary of the association. This, I think, is sufficient, under the
rule requiring sufficient parties, to represent all the adverse interests in the suit.
Were this a proceeding in equity, there would be no question about the right of plaintiff to
make certain of the members of the defendant organizations defendants for all their
associates who had a common interest.
30 Nev. 270, 290 (1908) Branson v. Indus. Workers of the World
bers of the defendant organizations defendants for all their associates who had a common
interest. This, however, is an action at law for damages, and the equity rule does not prevail
unless made so by statute. Section 14 of the civil practice act of this state (Comp. Laws,
3109) provides: Of the parties to the action, those who are united in interest shall be joined
as plaintiffs or defendants; but if the consent of any one, who should have been joined as
plaintiff, cannot be obtained, he may be made a defendant, the reason thereof being stated in
the complaint; and when the question is one of a common or general interest, of many
persons, or when the parties are numerous, and it is impracticable to bring them all before the
court, one or more may sue or defend for the benefit of all. Tenants in common, joint tenants,
or copartners, or any number less than all, may jointly or severally bring or defend or continue
the prosecution or defense of any action for the enforcement of the rights of such person or
persons.
We think it was the intention of the legislature, by this provision of the statute, to make the
equity rule applicable to all proceedings in the courts of this state, whether the same be of a
legal or equitable nature. Under our code provision, there is but one form of civil action, and
legal and equitable distinctions, so far as practice is concerned, are largely, if not entirely,
done away with. To hold that the defendant organizations cannot be sued without including
all members, which are so numerous, scattered and difficult to ascertain might cause such
hardship and delay as would amount to a denial of justice. It is hard to conceive of any case to
which the statute would be more applicable in its provisions that where the parties are
numerous one or more may sue or defend for all.
This question came before the Supreme Court of Ohio in the case of Platt v. Colvin, 50
Ohio St. 703, 36 N. E. 735, and we quote with approval from the opinion in that case, as
follows: It was the general rule in chancery, before the adoption of the civil code, that suits
must be prosecuted by the real parties in interest, and that all who were united in interest must
be joined. There were, however, certain wellestablished exceptions to the rule, which, like
the rule itself, were adopted for the convenient administration of justice.
30 Nev. 270, 291 (1908) Branson v. Indus. Workers of the World
established exceptions to the rule, which, like the rule itself, were adopted for the convenient
administration of justice. Among these exceptions, it is stated in Story's Equity Pleading, sec.
97, were (1) where the question is one of a common or general interest, and one or more sue,
or defend, for the benefit of the whole; (2) where the parties form a voluntary association for
public or private purposes, and those who sue, or defend, may fairly be presumed to represent
the rights and interests of the whole; (3) where the parties are very numerous, and although
they have, or may have, separate, distinct interests; yet it is impracticable to bring them all
before the court.' In speaking of the second class of exceptions above mentioned, it is said
that In cases of this sort the persons interested are commonly numerous, and any attempt to
unite them all in the suit would be, even if practicable, exceedingly inconvenient, and would
subject the proceedings to danger of perpetual abatements, and other impediments, arising
from intermediate deaths, or other accidents, or changes of interest. Under such
circumstances, as there is a privity of interest, the court will allow a bill to be brought by
some of the parties in behalf of themselves and all the others, taking care that there shall be a
due representation of all substantial interests before the court.' So that the principle upon
which that class of exceptions rested is not different in substance from that of the last class
mentioned, namely, that the parties are numerous, and it is impracticable, in the convenient
and speedy administration of justice, to have them all before the court; and the courts in many
adjudged cases appear to have so regarded it. * * * (Taylor v. Salmon, 4 M. & C. 134, 18
Eng. Ch. R.; Walworth v. Holt, 4 M. & C. 18 Eng. Ch. R. 619; Small v. Atwood, 1 Younge's
R. 407; Chancey v. May, Prec. in Ch. Finch's Chan. Cas. 592.) There are many English and
American cases of like character. Those already adverted to sufficiently show the nature of
the exceptions which obtained in chancery to the general rule in regard to parties, the
principle upon which they were based, and the manner of their practical applications. The
rule, an its exceptions, in their breadth and substance, were adopted into our code (sections
4993, 5007, and 5008, Revised Statutes) and by its provisions made applicable to the civil
action which it substituted for what was theretofore known as the suit in equity, and the
action at law.
30 Nev. 270, 292 (1908) Branson v. Indus. Workers of the World
utes) and by its provisions made applicable to the civil action which it substituted for what
was theretofore known as the suit in equity, and the action at law. It is argued by counsel for
the defendant in error that the provisions of section 5008, permitting one or more to sue or
defend for the benefit of all, when the question is one of a general or common interest of
many persons, or when the parties are very numerous and it is impracticable to bring them all
before the court, apply only to actions of an equitable nature, because, before the code, that
manner of proceeding was allowed only in suits in equity. If that were a sufficient reason for
restricting the provisions of that section to such actions, the same reason would make it
necessary to so restrict the general requirement of the code that the plaintiffs must be the real
parties in interest, and all must join who are united in interest; for that, as we have seen, was
the general rule in equity, and not applicable to many actions at law; and so, with respect to
the rule adopted by the code, requiring the petition to state the facts constituting the cause of
action, and others of its provisions. Indeed, the mode of procedure in the civil action is, in
most respects, taken from, or assimilated to, that which prevailed in suits in chancery. One
object of the code in abolishing the distinction between actions at law and suits in equity, and
prescribing the same method of procedure for the prosecution of both, evidently was to
simplify judicial proceedings, and facilitate the administration of justice; and to accomplish
that end, its provisions, and proceedings under them, should receive that liberal construction
which it is expressly required shall be given them. To restrain the application of section 5008
to actions of a purely equitable nature would, we think, be at variance with its language, and
the general spirit and purpose of the code.
We are not called upon in considering the motion and order in this proceeding to
determine whether the manner in which plaintiff has made the organizations in question
defendants is subject to objection. If there is a defect or misjoinder of parties defendant, that
question should have been raised by demurrer (Comp. Laws, 3135), and plaintiff given an
opportunity to amend.
30 Nev. 270, 293 (1908) Branson v. Indus. Workers of the World
tunity to amend. Wherever a pleading is defective, which defect may be cured by amendment,
and such defect may be taken advantage of by demurrer, that course should be adopted. In
discussing a similar question, this court, in Treadway v. Wilder, 8 Nev. 97, after saying that
upon demurrer the pleading would have been bad, but the defect could have been remedied
by amendment, said: No such opportunity was given, and a technical judgment may have cut
off a substantial right; such is not the spirit of the code, nor, when properly interpreted, its
practice. Section 71 of our practice act provides: 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; and no judgment shall be reversed or affected by reason of
such error or defect. (Comp. Laws, 3166.) We think, as the court did not and could not grant
the relief demanded in the motion, it should have denied it in toto, leaving respondents to
whatever remedy they may have been entitled by demurrer.
2. It appears from the order of the lower court that the attachment was only dissolved as
against the voluntary unincorporated associations designated by name in the complaint, but as
to the natural persons therein named it was not dissolved. From this it would appear that the
trial court did not consider the writ as against the natural persons defendant to have been
improvidently issued, and in this view the trial court was clearly correct. What we have said
in reference to the voluntary associations as parties defendant applies with equal force to the
order dismissing the attachment as to them. If the attachment is good as against any
defendants, it is good as to all.
It is contended by counsel for respondents that the affidavit fails to sufficiently charge that
the alleged obligation of defendants to pay damages to plaintiff was criminally incurred. The
affidavit charges such liability in the language of the statute (Comp. Laws, 3218), and, in
addition, makes the complaint with its allegations a part of the affidavit. It is unnecessary for
us to determine whether a bare allegation in the language of the statute would be sufficient,
where, as in this case, the facts upon which the damage is alleged to have been
occasioned are fully set forth.
30 Nev. 270, 294 (1908) Branson v. Indus. Workers of the World
case, the facts upon which the damage is alleged to have been occasioned are fully set forth. If
these alleged facts in themselves state a case that would be criminal, then the affidavit is
unquestionably sufficient. There can be no question that a criminal conspiracy is alleged in
the affidavit under all the authorities. The law, upon one portion of the case as it appears from
the affidavit, is concisely stated in 8 Cyc. 639, as follows: Neither at common law nor under
statutes modifying the common-law doctrine is it lawful for workmen to combine to injure
another's business by causing his employees to leave his service by intimidation, threats,
molestation, or coercion. Such a combination constitutes an indictable conspiracy.
Again, the same authority, in continuation of the same general topic, says: This term
(boycott) ordinarily means a confederation, generally secret, of many persons whose intent is
to injure another, by preventing any and all persons from doing business with him through
fear of incurring the displeasure, persecution, and vengeance of the conspirators. The
character of agreement included in the term defined is highly unlawful and is an indictable
conspiracy.
Such a conspiracy is made punishable both by fine and imprisonment under section 4751
of the Compiled Laws of Nevada.
See, also, Comp. Laws, 4788; Loewe v. Lawlor, 208 U. S. 274, 28 Sup. Ct. 301; 2
Wharton, Crim. Law, 2322; 2 Bishop, Crim. Law, 172; Desty, Crim. Law, 11; 3 Chit. Crim.
Law, 1138; 2 Russell on Crimes, 674; McLain, Crim. Law, 955, 963; Clark's Crim. Law, 121;
Crump v. Commonwealth, 84 Va. 927, 6 S. E. 620, 10 Am. St. Rep. 895; State v. Donaldson,
32 N. J. Law, 151, 90 Am. Dec. 649; Smith v. People, 25 Ill. 17, 76 Am. Dec. 783, and note;
State v. Stewart, 59 Vt. 273, 9 Atl. 555, 59 Am. Rep. 710, and note, 720; People v. Kostka, 4
N. Y. Cr. Rep. 429; Emack v. Kane, 34 Fed. 47; Hopkins v. Oxley Stave Co., 83 Fed. 912, 28
C. C. A. 99; State v. Glidden, 55 Conn. 46, 8 Atl. 890, 3 Am. St. Rep. 23; Rex v. Eccles, 1
Leach, 274; Steamship Co. v. McGregor, 15 Q. B. Div. 476; Regina v. Druitt, 10 Cox, C. C.
592.
Many other cases, both English and American, state and federal, might be cited, but the
foregoing are sufficient upon a question upon which there is little, if any, conflict of
authority. Many decisions of a kindred nature, not criminal in their procedure, but in
which the unlawfulness of certain conspiracies, considered with special references to civil
liability, may be found reviewed in the recent opinion of Farrington, J., in the case of the
Goldfield Consolidated Mines Co. v.
30 Nev. 270, 295 (1908) Branson v. Indus. Workers of the World
federal, might be cited, but the foregoing are sufficient upon a question upon which there is
little, if any, conflict of authority. Many decisions of a kindred nature, not criminal in their
procedure, but in which the unlawfulness of certain conspiracies, considered with special
references to civil liability, may be found reviewed in the recent opinion of Farrington, J., in
the case of the Goldfield Consolidated Mines Co. v. Goldfield Miners' Union No. 220, et al.
(C. C.) 159 Fed. 500.
In this case Judge Farrington, in referring to the rights guaranteed to every citizen under
section 1 of the fourteenth amendment to the Constitution of the United States (which is as
follows: Nor shall any state deprive any person of life, liberty or property without due
process of law, nor deny any person within its jurisdiction the equal protection of the laws)
and article I, section 8, of the Constitution of Nevada (which contains a similar provision as
follows: No person shall be * * * deprived of life, liberty, or property without due process of
law), very appropriately and correctly said and quoted: The terms life, liberty, and
property,' as used in the Federal Constitution, embrace every right which the law protects.
They include not only the right to hold and enjoy, but also the means of holding, enjoying,
acquiring, and disposing of property. The right to labor is property. It is one of the most
valuable and fundamental of rights. The right to work is the right to earn one's subsistence, to
live and to support wife and family. The right of master and servant to enter into contracts, to
agree upon the terms and conditions under which the one will employ and the other will
labor, is property. The master has the right to fix the terms and conditions upon which he is
willing to give employment; the servant has the right to fix the terms and conditions upon
which he is willing to labor, and any statute which curtails and limits that right deprives the
party affected of his property, and, in the same measure, of his liberty. Both parties are free to
enter into, or refuse to enter into, the contract. Before the law, there is the same freedom to
employ as to work, to buy as to sell, to choose one's employee as to choose one's employer.
The liberty of contracting, relating to labor, includes both parties; the one has as much right
to purchase as the other to sell labor.' {Allgeyer v. Louisiana, 165 U. S. 57S, 17 Sup. Ct.
427, 41 L. Ed. S32; Lochner v. New York, 19S U. S. 45, 56, 25 Sup. Ct. 539, 49 L. Ed. 937.)
'One citizen cannot be compelled to give employment to another, nor can any one be
compelled to be employed against his will.' {Gillespie v.
30 Nev. 270, 296 (1908) Branson v. Indus. Workers of the World
the one has as much right to purchase as the other to sell labor.' (Allgeyer v. Louisiana, 165
U. S. 578, 17 Sup. Ct. 427, 41 L. Ed. 832; Lochner v. New York, 198 U. S. 45, 56, 25 Sup. Ct.
539, 49 L. Ed. 937.) One citizen cannot be compelled to give employment to another, nor
can any one be compelled to be employed against his will.' (Gillespie v. The People, 188 Ill.
176, 58 N. E. 1007, 52 L. R. A. 283, 80 Am. St. Rep. 176.) The right of an employer to refuse
to employ any particular individual, or any class of individuals, is neither greater nor less than
the right of a man to refuse to work for any particular individual, or class of individuals. The
reason for the refusal can in no wise control, enlarge, or diminish the legal right of refusal, the
right to employ, or the right to refuse to be employed. It is a part of every man's civil right
that he be left at liberty to refuse business relations with any person whomsoever, whether the
refusal rests upon reason, or is the result of whim, caprice, prejudice, or malice. With his
reasons neither the public nor third persons have any legal concern. It is also his right to have
business relations with anyone with whom he can make contracts. (2 Cooley on Torts, 587.)'
In Ex Parte Boyce, 27 Nev. 229, 75 Pac. 1, 65 L. R. A. 47, we said: Labor properly
directed creates wealth, and all hones toil is noble and commendable. The right to acquire and
hold property guaranteed by our Constitution is one of the most essential for the existence
and happiness of man, and for our purposes here we may consider it to be the cornerstone in
the temple of our liberties, and that it implies and includes the right to labor. It may also be
granted that labor, the poor man's patrimony, the creator of wealth, and upon which all must
depend for sustenance, is the highest species of property, and the right to toil is as sacred and
secure as the millions of the wealthy; but individual rights, however great, are subject to
certain limitations necessary for the good of others and the community, and inherent in every
well-regulated government. * * * Broadly speaking, the right to acquire an hold property,
which presupposes the one to labor at all ordinary pursuits, is subordinate to this greater
obligation not to injure others, individually or collectively, and to contribute an aid in the
support of the government in all its legitimate objects."
30 Nev. 270, 297 (1908) Branson v. Indus. Workers of the World
or collectively, and to contribute an aid in the support of the government in all its legitimate
objects.
It necessarily follows that any attempt by conspiracy to interfere with these fundamental
and essential rights or by threats, intimidation, and violence, to prevent the employer from
hiring or the employee from laboring, is unlawful under our system of government by which
all men are free and equal. No organization or combination of men or individuals can
lawfully prevent the exercise of these constitutional rights by all others. If it were legal for the
defendant organizations or the officers and members by force, threats or intimidation to
prevent the employees of plaintiff from continuing in their employment, it would be equally
so for the unions to which plaintiff's employees belong and for owners' and operators'
associations or for other organizations or the officers and members thereof by force, threats,
or violence to prevent the members of the defendant organizations from working, even to the
extent of starvation. As the law bears equally upon all, it is self-evident that if any labor union
or organization could by threats, force, and intimidation lawfully prevent the members of any
other union or organization from laboring for employers, or could by force, threats, and
intimidation prevent employers from hiring members of other unions or organizations, that
every other union or organization would have the same and equal right, resulting eventually
in control by the organization exercising the most force and violence, and in the overthrow
and subversion of law and order.
In the case of Hopkins v. Oxley Stave Co., supra, cited and quoted from by counsel for
respondents in his brief, the court says: While the courts have invariably upheld the right of
individuals to form labor organizations for the protection of the interests of the laboring
classes, and have denied the power to enjoin the members of such associations from
withdrawing peaceably from any service, either singly or in a body, even where such
withdrawal involves a breach of contract (Arthur v. Oakes, 11 C. C. A. 209, 63 Fed. 310, 25
L. R. A. 414), yet they have very generally condemned those combinations usually termed
boycotts,' which are formed for the purpose of interfering, otherwise than by lawful
competition, with the business affairs of others, and depriving them, by means of threats
and intimidation, of the right to conduct the business in which they happen to be engaged
according to the dictates of their own judgments.
30 Nev. 270, 298 (1908) Branson v. Indus. Workers of the World
for the purpose of interfering, otherwise than by lawful competition, with the business affairs
of others, and depriving them, by means of threats and intimidation, of the right to conduct
the business in which they happen to be engaged according to the dictates of their own
judgments. The right of an individual to carry on his business as he sees fit, and to use such
implements or processes of manufacture as he desires to use, provided he follows a lawful
avocation and conducts it in a lawful manner, is entitled to as much consideration as his other
personal rights; and the law should afford protection against the efforts of powerful
combinations to rob him of that right and coerce his will by intimidating his customers and
destroying his patronage. A conspiracy to compel a manufacturer to abandon the use of a
valuable invention bears no resemblance to a combination among laborers to withdraw from a
given employment as a means of obtaining better pay. Persons engaged in any service have
the power, with which a court of equity will not interfere by injunction, to abandon that
service, either singly or in a body, if the wages paid or the conditions of employment are not
satisfactory; but they have no right to dictate to an employer what kind of implements he shall
use, or whom he shall employ. Many courts of the highest character and ability have held that
a combination such as the one in question is admitted to have been is an unlawful conspiracy,
at common law, and that an action will lie to recover the damages which one has sustained as
the direct result of such a conspiracy.
Referring to the section of the crimes and punishments act of Nevada relative to
conspiracy, counsel for respondents in his brief says: The conspiracy statute, which was but
declaratory of the common law, was amended in 1887, Compiled Laws, 4751, and provides:
That no part of this act shall be construed in any court of this state to restrict or prohibit the
orderly and peaceably assembling or coperation of persons employed in any profession,
trade or handicraft for the purpose of securing an advance in the rate of wages, or
compensation, or for the maintenance of the same.' * * * Whether the means by which labor
combinations seek to effect its object and purposes is criminal or not depends upon the
lawfulness of the mode or action taken in and by which injury is inflicted or
threatenedthat is, whether it is an actionable wrong or is merely such as the law
denominates damnum absque injuria."
30 Nev. 270, 299 (1908) Branson v. Indus. Workers of the World
its object and purposes is criminal or not depends upon the lawfulness of the mode or action
taken in and by which injury is inflicted or threatenedthat is, whether it is an actionable
wrong or is merely such as the law denominates damnum absque injuria.
According to the complaint and affidavit in this case, the defendants are not within the
provisions of the amendment of the statute in any sense whatever. No question of an advance
in the rate of wages paid employees, or the maintenance of the same, is here involved. Upon
the contrary, the complaint alleges that plaintiff was employing union men and paying
union wages. So far as the complaint now before the court is concerned, it appears that both
the plaintiff and his employees were entirely satisfied with existing conditions. The damage
alleged in this case to have been sustained was not caused by the employees of plaintiff
seeking by peaceable means to maintain or better their condition, but by outsiders, who are
alleged to have demanded of plaintiff that he compel his employees to become members of
what would appear to be a rival labor organization, and, upon his refusal, entered into the
conspiracy charged, to compel him to accede to their demands, or they would ruin his
business. Nor is it charged even that defendants were seeking to accomplish their declared
purpose by orderly and peaceably assembling or coperation; but, upon the contrary, by
means of intimidation, threats of violence and actual violence. Counsel for respondents has
not cited us an authority, nor do we think one can be found, holding that what defendants are
charged in the complaint with having conspired to accomplish by resorting to intimidation
and acts of violence, did not state facts which constitute crime.
It is not necessary that all of the acts allege to have been committed in pursuance of the
conspiracy charged be, in themselves, of a criminal nature; and it is unnecessary to determine
whether each and every specific act alleged is unlawful. Some of the acts charged are known
by all men to be unlawful, and when they are performed as a part of the means to carry out the
purpose which the complaint alleges the defendants combined to accomplish, a conspiracy,
criminal in its nature, is sufficiently charged, at least for the purposes of an affidavit for
attachment.
30 Nev. 270, 300 (1908) Branson v. Indus. Workers of the World
the defendants combined to accomplish, a conspiracy, criminal in its nature, is sufficiently
charged, at least for the purposes of an affidavit for attachment.
Counsel for respondents in his brief says that the return of the sheriff shows that certain
property was wrongfully attached under the writ. No question of that kind is presented in the
record, and could not be upon the orders appealed from. If the sheriff has taken under his
charge property not subject to attachment, the statute affords an appropriate and only remedy.
The briefs in this case have covered a much wider scope than the questions involved upon
the record, and a considerable discussion has been indulged in, based upon the law
controlling under a state of facts different from those alleged in plaintiff's complaint. We are
governed in the law of this case by what is alleged to exist, not by some other state of facts
which a trial may subsequently develop. It would, therefore, be of no value as a precedent,
and of little other value, to enter upon a purely academic discussion of questions now before
the court.
In considering the order of the district court, similarly as questions upon demurrer, the
charges and allegations of the complaint are assumed to be true for the purposes of the
appeal, to the end that plaintiff may have an opportunity to present proof, but whether the
defendants did in fact commit the unlawful acts charged by the complaint or not, remains to
be determined upon the trial, and by a jury, if any of the parties desire one, after defendants
have been given an opportunity to make denial or answer setting up any defense they may
have, and all parties have presented their evidence and been heard.
For the reasons given, the orders appealed from are reversed, and the cause is remanded
for further proceedings.
___________
30 Nev. 301, 301 (1908) State v. Preston
[No. 1733.]
STATE OF NEVADA, Respondent, v. M. R. PRESTON
and JOSEPH SMITH, Appellants.
1. Criminal LawAppealNoticeSufficiency. Under Crim. Prac. Act, sec. 474 (Comp. Laws, 4439),
requiring a criminal appeal to be taken by a written notice that appellant appeals, a notice that it is his
intention to appeal is defective.
2. SameNecessity For Sufficient Notice. Under Crim. Prac, Act, secs. 474, 475 (Comp. Laws, 4439, 4440),
requiring a criminal appeal to be taken by service of a written notice on the clerk of the trial court, that
appellant appeals, with similar notice to the district attorney, when defendant appeals, filing and service
of a proper notice, are essential to confer jurisdiction on the supreme court.
3. SameSufficiency Of Notice. A notice that two persons convicted of murder and manslaughter respectively
intend to appeal from the judgment of the district court herein is fatally defective as insufficiently
identifying the judgment or judgments from which appeal was intended to be taken, and for failing to
show that each appealed from the judgment against him.
4. Same. Substantial compliance with statutes regulating criminal appeals is essential to the supreme court's
jurisdiction of an appeal.
On Petition for Rehearing.
1. Criminal LawAppealReview Of Facts. Under the Constitution, providing that the supreme court shall
have appellate jurisdiction on questions of law alone in criminal cases, that the right of trial by jury
shall remain inviolate, etc., the supreme court will not determine questions of fact on which a verdict is
based.
2. SameReview On Appeal. The statutory appeal from a judgment of conviction and from an order denying a
new trail clothes the supreme court with power to review every question affecting the rights of accused,
provided substantial compliance is had with the statutes.
3. SameAppealWrit Of Error. An appeal is a statutory right, and is the continuation of the original
suit; while a writ of error is an independent action, in the nature of a new and original suit.
4. SameRight To Prosecute Writ Of Error. Whether one convicted of crime is entitled to have the judgment
reviewed on writ of error cannot be determined on a petition for a rehearing after the dismissal of his
appeal, but only on appropriate proceedings for the writ, when all parties interested can be heard.
Appeal from the District Court of the First Judicial District of the State of Nevada,
Esmeralda County; Frank P. Langan, Judge.
M. R. Preston and Joseph Smith were convicted, respectively, of murder in the second
degree and manslaughter, and they appeal.
30 Nev. 301, 302 (1908) State v. Preston
they appeal. The State moves to dismiss the appeal. Appeal dismissed. Petition for rehearing.
Denied.
The facts sufficiently appear in the opinion.
O. N. Hilton, Frank J. Hangs, and P. M. Bowler, Jr., for Appellants.
R. C. Stoddard, Attorney-General, for Respondent.
Per Curiam:
Appellants were jointly tried in the First Judicial District Court of Nevada in and for
Esmeralda County upon an indictment charging them with the crime of murder for the killing
of John Silva, a restaurant keeper of Goldfield, on the 10th day of March, 1907. Verdicts of
murder in the second degree against M. R. Preston and of voluntary manslaughter against
Joseph Smith were returned by the jury, and they were sentenced, respectively, to twenty-five
and ten years' imprisonment in the Nevada State Penitentiary by the district judge of said
court. A motion for a new trial interposed by defendants was overruled by said district judge,
and appellants now invoke the aid of this court to reverse the mandate of the lower court.
The respondent moves to dismiss the proceedings instituted by appellants upon the ground
generally that this court has no jurisdiction to determine the questions in controversy because
the proceedings of appellant on appeal have not been perfected in accordance with law or at
all and are fatally defective, upon the following grounds more specifically, to wit: (1) That
there was no service on the clerk or the district attorney of the alleged notice of appeal. (2)
That the alleged notice of appeal is insufficient to confer jurisdiction upon the supreme court
herein. (3) That no record on appeal in the form and as required by law has ever been filed in
the supreme court. (4) That the said alleged volume or transcript of evidence should be
stricken from the files of the supreme court, for the reason that the same is no part of the
record on appeal required or provided by law. The following sections of the criminal practice
act of Nevada treating of the manner of perfecting appeals in criminal cases to the
supreme court of this state provide as follows:
30 Nev. 301, 303 (1908) State v. Preston
of the manner of perfecting appeals in criminal cases to the supreme court of this state
provide as follows:
Sec. 473. An appeal must be taken within three months after the judgment is rendered.
(Section 4438, Comp. Laws.)
Sec. 474. An appeal must be taken by the service of a notice in writing on the clerk of the
court in which the action was tried, stating that the appellant appeals from the judgment.
(Section 4439, Comp. Laws.)
Sec. 475. If the appeal be taken by the defendant, a similar notice must be served on the
district attorney. (Section 4440, Comp. Laws.)
The following is a copy of the only instrument filed in the present case, which defendants
maintain is the notice of appeal on which they base their appellate proceedings, after entitling
court and cause: To E. Hardy, Clerk of the District Court, and A. H. Swallow, District
Attorney. You, and each of you, are hereby notified that it is the intention of the defendants in
the above-entitled cause of action to appeal from the judgment of the district court herein to
the Supreme Court of the State of Nevada, and that we tender, together with this notice, to
you, E. Hardy, clerk of the district court, the original copy of the bill of exceptions herein, and
to you, A. H. Swallow, district attorney, a true copy of the bill of exceptions herein, and we
hereby notify you both that we will ask the judge of the district court on Monday, June 10,
1907, at the incoming of court on said day, to allow and settle said bill of exceptions. P. M.
Bowler and Frank J. Hangs, Attorneys for Defendants.
It will be observed from reading the said instrument that the defendants notify the clerk
and district attorney that it is the intention of the defendants in the above-entitled cause of
action to appeal. They do not state that they appeal from the judgments rendered against
them. Neither do they state that they do appeal. Their notice, literally construed, is a mere
notification to the clerk and district attorney that they intend to appeal, which is a totally
different matter from appealing as required by the statute in order to start the appellate
machinery in motion. Their intention to appeal may or may not be abandoned. The intent to
do and the doing of an act are distinct and separate matters.
30 Nev. 301, 304 (1908) State v. Preston
intent to do and the doing of an act are distinct and separate matters. The supreme court of
this state has heretofore held that a notice similar to the above is faulty. (Simpson v. Ogg, 18
Nev. 29.)
In the latter case this court, in speaking of the notice, said: It is stated in the notice that the
defendants will' appeal, when it ought to state that they do' appeal. It is, however,
unnecessary to determine whether the notice is, for this reason, so irregular as to constitute a
fatal defect, for in other respects it is clearly insufficient. It would appear that it was the
intention of the attorneys for defendants, through said alleged notice of appeal, to give notice
to the clerk and district attorney of a certain date and place at which they would ask the judge
of the district court to allow and settle their bill of exceptions, and thereafter a proper notice
of appeal would be expected to be filed by said attorneys in behalf of the defendants. No
further notice of appeal, however, was ever filed or served on the clerk or district attorney.
The above-quoted instrument was served on the district attorney two days before it was filed
and served on the county clerk, and no other notice was ever served on the district attorney.
This court has held in a number of appeals in civil cases that the notice of appeal must be
filed before served upon opposing counsel, or the appeal will be fatally defective. (Lyon
County v. Washoe County, 8 Nev. 177; Johnson v. Badger Co., 12 Nev. 261; Reese Co. v.
Rye Patch Co., 15 Nev. 341; Spafford v. White River v. Co., 24 Nev. 184.) The language of
the statute regulating appeals in criminal cases is somewhat different from that in civil cases;
and, while it would unquestionably be the better practice in criminal appeals to file the notice
before serving, it is unnecessary now to determine whether a failure so to do would be fatally
defective. As the filing and service of a proper notice of appeal on the county clerk and
district attorney as required by law are essential to perfect an appeal, it follows that a failure
to so file and serve such a notice fails to clothe this court with jurisdiction. (Territory v.
Hanna, 5 Mont. 246, 5 Pac. 250; Courtright v. Berkins, 2 Mont. 404; Redhead v. Baker, 80
Iowa, 162, 45 N. W. 733; State v. Clossner, S4 Iowa, 402, 51 N. W. 16; Anderson v.
Halthusen, 30 Utah, 31, S3 Pac. 560; People v. Colon, 119 Cal.
30 Nev. 301, 305 (1908) State v. Preston
162, 45 N. W. 733; State v. Clossner, 84 Iowa, 402, 51 N. W. 16; Anderson v. Halthusen, 30
Utah, 31, 83 Pac. 560; People v. Colon, 119 Cal. 668, 51 Pac. 1082; People v. Phillips, 45
Cal. 44; People v. Bell, 70 Cal. 33, 11 Pac. 327; People v. Clark, 49 Cal. 455; Morris v.
Brewster, 60 Wis. 229, 19 N. W. 50; State v. Gibbs, 10 Mont. 210, 25 Pac. 289, 10 L. R. A.
749; 2 Ency. Pl. & Pr. 210.)
A further observation of the alleged notice of appeal reveals that it is fatally defective for
uncertainty, in view of the fact that it does not sufficiently describe or identify the judgment
or judgments from which it is intended to appeal, and that it fails to state the date of the
rendition or entry of the judgment or otherwise sufficiently or at all describe the said
judgments or either of them. The alleged notice of appeal states: That it is the intention of
the defendants in the above-entitled cause of action to appeal from the judgment of the
district court herein to the Supreme Court of the State of Nevada. The record in the present
case discloses that there were two separate verdicts and judgments rendered, one against the
defendant Smith for voluntary manslaughter, for which he was ordered confined in the
penitentiary for the period of ten years, and another verdict of the jury and judgment of the
court thereon against the defendant Preston for murder in the second degree, for which he was
sentenced to twenty-five years' imprisonment. Can it be said in this case from which
judgment the alleged appeal was intended to have been taken? Could it be said by this court
or any one else that the judgment to be appealed from was the judgment rendered against
Smith or against Preston, or definitely could it be stated that the appeal was to have been
taken from both judgments when the alleged notice of appeal states but one judgment? We
think not. Preston had not an appealable interest in the judgment against Smith, nor Smith in
that against Preston. It was essential that the notice state that each appealed from the
judgment against himself. The judgment or order appealed from should be sufficiently
described in the notice of appeal, so as to leave no doubt as to its identity. If it fails to do so, it
is fatally defective. (2 Cyc. 866; Christian v. Evans, 5 Or. 253; Oliver v. Harvey, 5 Or. 361;
Luse v. Luse, 9 Or. 149; State v. Gibbs, 10 Mont.
30 Nev. 301, 306 (1908) State v. Preston
v. Harvey, 5 Or. 361; Luse v. Luse, 9 Or. 149; State v. Gibbs, 10 Mont. 210, 25 Pac. 289, 10
L. R. A. 749; Schnabel v. Thomas, 92 Mo. App. 180; State v. Hammon, 92 Mo. App. 231;
Thomas v. Missouri, 89 Mo. App. 12; Fairall on Crim. Proced. p. 462; People v. Center, 61
Cal. 194; 2 Ency. Pl. & Pr. 217; Olinger v. Liddle, 55 Wis. 621, 13 N. W. 703; Meley v.
Boulon, 104 Cal. 262, 37 Pac. 931.)
There are many other irregularities and defects in the proceedings of defendants attempting
to perfect this appeal, but in view of the fatality of the notice of appeal, which is essential to
confer jurisdiction on this court, it is unnecessary to comment on them. The opinions are
numerous in holding that, unless a court has jurisdiction to consider questions in controversy
it cannot do so. (Marx v. Lewis, 24 Nev. 306.) In the present proceedings the motion to
dismiss herein is interposed and vigorously urged by respondent. The supreme court of this
state, to be clothed with jurisdiction to adjudicate whatever questions are properly raised by
an appeal from an inferior court, must be connected with the proceedings had in the lower
court substantially in the manner required by the statutes regulating appeals; otherwise this
court acquires no jurisdiction. If any of these essential links required by mandatory statutes
and necessary to give this court jurisdiction are lacking, the attempted appeal confers no
jurisdiction on this court, and the proceedings must be dismissed. This court in the case of
Burbank v. Rivers, 20 Nev. 83, said: The method of taking appeals and the questions to be
considered thereunder by the appellate court are matters of purely statutory regulation.
(Kirman v. Johnson, 30 Nev. 146; Burbank v. Rivers, 20 Nev. 81; Gaudette v. Glissan, 11
Nev. 184; 2 Cyc. 868, and authorities there cited; 2 Ency. Pl. & Pr. 213.) No legal notice of
appeal in this case having been filed and served in this proceeding, this court is without
jurisdiction to consider the questions attempted to be raised.
As was said in the case of Marx v. Lewis, 24 Nev. 306, quoting with approval the language
of this court in Sherman v. Shaw, 9 Nev. 152: It is as unsatisfactory to the court, as it is to
counsel, to have cases disposed of upon mere questions of practice, but it must be
remembered that the rules of practice are as obligatory upon us as upon the parties to a
suit, and, if attorneys desire to have their cases examined upon the merits, they must
comply with the plain provisions of the statute and the rules of practice established by the
court."
30 Nev. 301, 307 (1908) State v. Preston
tions of practice, but it must be remembered that the rules of practice are as obligatory upon
us as upon the parties to a suit, and, if attorneys desire to have their cases examined upon the
merits, they must comply with the plain provisions of the statute and the rules of practice
established by the court. So, in the present case, it is with reluctance, especially in view of
the vast amount of labor expended in the preparation of the briefs and arguments presented
upon the merits of this case, that we dismiss proceedings brought to this court otherwise than
on the merits, but in the present case, being without jurisdiction, we have no alternative.
The proceedings are dismissed.
On Petition for Rehearing.
Per Curiam:
Counsel for appellants have filed a petition for a rehearing, and pray that the same may be
granted to the end that the judgment to dismiss be so modified as to authorize the docketing
of the within case as upon error. The correctness of the ruling of this court that the appeal
was not properly perfected, so as to confer jurisdiction to consider and determine the case
upon its merits by the statutory method of appeal is not questioned. Indeed, counsel in their
petition now seriously question the appropriateness of an appeal in this case at all. They say:
To our mind, if the attorney-general had contended that the defendants had no right to a
review in this case upon its merits by appeal, for the reason that the Constitution of the State
of Nevada limited the appellate jurisdiction of the supreme court in criminal cases amounting
to a felony to only questions of law, his contention would have been sound, and the appeal
should have been dismissed, as there is no statutory provision for a review of final judgments
in cases of felony on their merits in the supreme court of the state, and the only remedy which
a defendant could avail himself of would be the common-law writ of error.
This is a position entirely new, and is not a little startling, in view of the practice that has
prevailed in this state from its organization to the present time. Our Constitution provides
that the supreme court shall have "appellate jurisdiction on questions of law alone in
criminal cases," that the "right of trial by jury shall be secured to all and remain inviolate
forever," and that "judges shall not charge juries in respect to matters of fact"; and this
court has uniformly held that it will not determine regarding conflicting evidence and
questions of fact on which a verdict is based.
30 Nev. 301, 308 (1908) State v. Preston
vides that the supreme court shall have appellate jurisdiction on questions of law alone in
criminal cases, that the right of trial by jury shall be secured to all and remain inviolate
forever, and that judges shall not charge juries in respect to matters of fact; and this court
has uniformly held that it will not determine regarding conflicting evidence and questions of
fact on which a verdict is based. The statutory appeal from a judgment and from an order
denying a motion for a new trial has, so far as we are aware, been considered ample to clothe
this court with power to review every question affecting a defendant's rights, providing
substantial compliance be had with the plain provisions of the statutes. What more, if
anything, could be accomplished by the common-law writ of error is not manifestly apparent.
There is neither a constitutional nor statutory provision specifically authorizing writs of
error in this state, although the rules of this court contemplate that the writ may issue in
appropriate cases. See Rules 18-22, inclusive (pages 14, 15 of this volume). The appellate
courts of many states, where common-law practice largely prevails, review proceedings in the
lower courts mainly by writs of error. In other jurisdictions, by constitutional or statutory
provision, or both, it has been held, as in Colorado, that the appeal is merely cumulative to
the common-law process of writ of error. The statute which gives the former does not take
away the latter. The party may in the first instance, as will be confessed, adopt either, at his
pleasure. (Freas v. Englebrecht, 3 Colo. 381; 7 Ency. Pl. & Pr. 852, and note 2.) In other
jurisdictions it has been held that a writ of error does not lie where a party is entitled to an
appeal, and that, too, although the statute giving the right of appeal does not expressly
provide that such remedy shall be exclusive. In such case the right to a writ of error is
considered abolished by implication. The reasons on which the rule is founded are that the
remedy by appeal is more simple, more prompt, less expensive, and less circuitous. (Ency.
Pl. & Pr., supra.) To this rule certain exceptions are noted in the text, like those referred to in
certain criminal cases cited from the Supreme Court of Massachusetts.
30 Nev. 301, 309 (1908) State v. Preston
In the case of Cooke et al., Petitioners, 15 Pick. (Mass.) 234, 239, cited in counsel's
petition, the court, after considering whether a writ of certiorari would lie in the case, said:
We think, therefore, a writ of error is the proper remedy in all these cases, unless the right
has been taken away in the cases tried in the municipal court, from the judgments of which
the petitioners were entitled to appeal, which the attorney-general contends takes away the
remedy by writ of error by reasonable implication, and in civil actions it has been so decided;
the remedy by appeal being considered the easier and more beneficial remedy. But in criminal
cases, so far from the remedy by appeal being an easier and more beneficial remedy for the
convict, it not unfrequently happens that he is wholly unable to avail himself of that remedy,
by reason of his inability to procure sureties to recognize with him for the appeal and abiding
the order of the court thereon. To decide in such cases that the convict's right to sue out a writ
of error to reverse an erroneous judgment has been taken away by a reasonable implication
would be a hard decision, and cannot be warranted by any of the reasons given for the
decisions of the court in civil suits.
Whether such an exception could be made under our practice is manifestly open to serious
question, for in this state, while appellants in civil cases are required to furnish an
undertaking on appeal, no undertaking whatever is required in criminal cases. The question,
however, whether the defendants are entitled to have the judgments against them reviewed
upon a writ of errora question that is new to this courtcannot be determined upon this
petition. Counsel for appellants correctly state the situation when they say: There is a
marked distinction between appeals and writs of error as remedies after final judgment. An
appeal is a statutory right, and is the continuation of the original suit; while writs of error are
new suits, and are the common-law writs of right.
It is a well-established principle of appellate procedure that a writ of error is an
independent action in the nature and with the general characteristics of a new and original
suit. (7 Ency. Pl. & Pr. p. 823, and note 4.)
30 Nev. 301, 310 (1908) State v. Preston
In Lessee of Taylor v. Boyd, 3 Ohio, 354, 17 Am. Dec. 603, the court said: In the obvious
nature and character of the proceeding, a writ of error is a new and original suit. Original
process issues in it, and must be served to bring the adverse party into court. The relative
character of the parties is changed, new pleadings are made up and a final judgment upon it,
though it may operate upon the original cause, is nevertheless a termination of the new suit,
or process in error. * * * We adhere to the doctrine that the writ of error is a new suit, and can
only affect parties or strangers from the service of the citation. The foregoing from the Ohio
court was quoted with approval in Widber v. Superior Court, 94 Cal. 430, 29 Pac. 870.
The right of the defendants to a writ or writs of error to review the judgments against them
can only be determined upon appropriate proceedings for such writ, when all parties
interested can be heard upon questions which such proceedings would involve. If, as
contended by counsel for defendants, an appeal is merely cumulative to the remedy by writ of
error, and such remedy exists independent of the remedy by appeal, there is nothing in the
opinion on motion to dismiss the appeal which could be construed as concluding the
defendants from availing themselves of the remedy by writ of error, if such remedy exists, as
no such question was presented or determined.
The petition for a rehearing is denied.
___________
30 Nev. 311, 311 (1908) State v. Bronzo
[No. 1730.]
STATE OF NEVADA, Respondent, v. MARTIN BRONZO, Appellant.
1. Criminal LawAppealProceedings Not in RecordGrounds of Motion. In a prosecution for murder,
where the record on appeal only stated that the motions made by defendant as to the regularity of the
grand jury were denied by the court, there being nothing to show upon what the court acted in denying
the motions, and all presumptions being in favor of the proceedings below, it will be assumed that
defendant's objections were not supported by evidence.
Appeal from the District Court of the Third Judicial District of the State of Nevada,
Eureka County; Peter Breen, Judge.
Martin Bronzo was convicted of murder in the second degree, and he appeals. Affirmed.
The facts sufficiently appear in the opinion.
Henry K. Mitchell, for Appellant.
R. C. Stoddard, Attorney-General, for Respondent.
By the Court, Sweeney, J.:
The defendant was indicted for the crime of murder, committed in the County of Eureka,
and upon trial was found guilty of murder in the second degree, and sentenced by the Judge of
the District Court of the Third Judicial District of Nevada, in and for Eureka County, to
imprisonment in the State Penitentiary for thirty-five years. A motion in arrest of judgment
and for a new trial were denied by the district court, and from such order the defendant
appeals.
The only question presented upon this appeal is whether or not the grand jury which
indicted defendant was legally impaneled. Counsel for the defendant challenged the panel of
the grand jury upon several grounds. All that the record in this case shows is that the motions
made by the defendant in reference to the regularity of the grand jury which indicted the
defendant were denied by the court. There is nothing in the record showing upon what the
court acted, and, as all presumptions are in favor of the regularity of the proceedings of the
trial court, we are bound to conclude that the grounds of objection made by defendant's
counsel were not supported by the evidence and were devoid of merit.
30 Nev. 311, 312 (1908) State v. Bronzo
grounds of objection made by defendant's counsel were not supported by the evidence and
were devoid of merit. (State v. Wilson, 5 Nev. 43; State v. Wallin, 6 Nev. 280; State v. Rigg,
10 Nev. 288; State v. Ah Hung, 11 Nev. 428.)
The judgment and order of the trial court are affirmed.
____________
30 Nev. 312, 312 (1908) Tonopah Lumber Co. v. Riley
[No. 1744.]
TONOPAH LUMBER COMPANY, A Corporation, Respondent, v. M. M. RILEY
and E. MARKS, Copartners under the Firm Name of the Casino
Athletic Club, Appellants.
1. PleadingDenial of Genuineness of Written InstrumentAnswer Containing Copy of InstrumentAffidavit.
Under civil practice act, sec. 54 (Comp. Laws, 3149), providing that when a defense to an action is
founded upon a written instrument, and a copy thereof is contained in the answer, the genuineness and
due execution of such instrument shall be deemed admitted, unless plaintiff files an affidavit denying the
same, where a contract set up in defendant's answer did not appear upon its face to have ever been signed
or executed by either of the parties, and did not purport to be a completed instrument, plaintiff was not
required to file an affidavit denying its execution and genuineness.
2. WitnessesImpeachmentInconsistent StatementsFoundation of Impeaching Evidence. In an action for
the price of lumber, questions asked the president of plaintiff corporation relative to a former action of
replevin to recover the lumber, to impeach his testimony because of certain declarations in the replevin
pleadings, were properly excluded, where such pleadings were not then exhibited to the witness, and
subsequently the papers in the replevin suit were introduced by defendants in evidence, from which it
appeared that they were verified by another, and that the witness was at the time out of the state.
3. SameExplanation of Impeaching Evidence. In an action for the price of lumber, where the complaint and
proceedings in a replevin suit were offered as impeaching evidence, a witness is properly allowed to
explain his reasons for verifying the complaint in the replevin suit, by stating that it was made because of
a conversation he had with plaintiff's president relative to the contract, and that the verification was made
and the suit brought on the advice of counsel, as it was proper to relate the circumstances under which the
alleged impeaching document was executed.
30 Nev. 312, 313 (1908) Tonopah Lumber Co. v. Riley
4. Same. In an action for the price of lumber furnished defendants, evidence of a contract between a witness and
defendants, offered for the purpose of contradicting the witness, was properly excluded, where the
witness's attention was not called to the contract, while testifying, and it did not appear that his testimony
was inconsistent with the recitals in the agreement; the contract being otherwise inadmissible as
containing self-serving declarations.
5. EvidenceDocumentary EvidenceAuthenticationExecution. In an action for the price of lumber sold
defendants, they offered in evidence a document, a copy of which was attached to their answer and
alleged to be the contract entered into between the parties, the document being unsigned, and containing a
provision that a written guaranty was to be attached thereto and made a part of the contract. Witnesses for
defendant were permitted to testify that such a contract was made by the parties, and the court offered to
allow the contract to be admitted for the purpose of illustrating the testimony and showing the
negotiations; but defendants insisted that it should be admitted as evidence of the contract which was
made, and not for any other purpose. Held, that the court's offer to admit the alleged contract to explain
the testimony was as liberal as defendants were entitled to.
6. Appeal and ErrorExceptionsSufficiency. To entitle a party to have instructions reviewed, the particular
error in each instruction must be pointed out in the exception, and exceptions taken to instructions on the
ground that they were improper, and did not state the law, and were not applicable to the case, and were
irrelevant, were too general for consideration on appeal, but an objection to a specified instruction that
the jury were instructed on a matter of fact was properly taken.
7. SameReviewVerdict on Conflicting Evidence. Where there is a substantial conflict in the evidence, the
supreme court will not disturb the verdict of the jury.
Appeal from the District Court of the Fifth Judicial District of the State of Nevada, Nye
County; J. P. O'Brien, Judge.
Action by the Tonopah Lumber Company, a corporation, against M. M. Riley and another,
copartners under the name of the Casino Athletic Club. From a judgment for plaintiff and an
order denying a motion for a new trial, defendants appeal. Affirmed.
The facts sufficiently appear in the opinion.
Jas. F. Dennis and F. K. Murphy, for Appellants:
I. The carpenters' union was in no way a party to said contract, and the conversation had
between the carpenters' union, and which the witness, Revert, testified to, was incompetent
for the reason that it was hearsay, and irrelevant because it did not pertain to the erection of
the prize-fight arena.
30 Nev. 312, 314 (1908) Tonopah Lumber Co. v. Riley
because it did not pertain to the erection of the prize-fight arena.
II. The court erred in stating that Murphy was not the agent of plaintiff, instructed the jury
upon an issuable fact, which later on in the course of the trial the court emphasizes by then
and there declaring in the presence of the jury that the evidence shows that Murphy was the
agent of the defendants, thereby expressing a definite opinion as to the weight of the
testimony upon a fact in issue, for it was shown by many of the witnesses on the part of the
defendants, to wit, Marks, Riley, Noonan, Smith, and others, that Murphy was the agent of
the plaintiff until after the breach of the contract which occurred some time about the 15th
day of December, 1906. Thus the court, in making the remark complained of, violated the
constitutional provision hereinbefore referred to, and not only expressed to the jury an
opinion upon the weight of the evidence already given but a verbal instruction. It is evident
that the opinion of the court could be as effectively conveyed to the jury by expressing it in
their hearing, while ruling upon an objection to evidence, as by embodying it in what purports
to be a declaration of the law for their instruction. (State v. Harkins, 7 Nev. 377; State v. Ah
Tong, 7 Nev. 148; State v. Duffy, 6 Nev. 138; State v. Tickel, 13 Nev. 502; State v. McGinnis,
5 Nev. 237.)
III. The defendants offered to contradict the witness, Murphy, while upon cross-examination,
with the written contract, which the court refused to allow, even after the witness had testified
that it was his signature attached to the contract.
IV. The instruction of the court with reference to the contract dated November 28, 1906,
was a direct instruction to the jury as to the weight of the evidence. The court took the
particular pains to assert that the contract had not been proven, although various witnesses,
inclusive of Revert, had testified that it was entered into and acted upon to and including the
15th day of December, 1906, and thus again did the court override the constitutional
provisions hereinbefore referred to, and take away from the jury the right to pass upon an
issuable fact, which was the essence of the controversy they were called upon to determine.
30 Nev. 312, 315 (1908) Tonopah Lumber Co. v. Riley
troversy they were called upon to determine. By its action the court, in effect, instructed the
jury to bring in a verdict for the plaintiff.
P. E. Keeler, for Respondent:
I. The alleged contract did not purport to be executed or to be a completed instrument, and
for that reason no denial of execution or genuineness as a written contract was necessary or
proper. (Peoria M. & F. Ins. Co. v. Walser, 22 Ind. 73; Kelley v. Paul, 3 Gratt. 191;
Washington v. Hobart, 17 Kan. 275; Sheperd v. Frys, 3 Gratt. 442.) Under a statute indentical
with ours, the Supreme Court of Idaho used the following language: Genuineness of an
instrument goes to the question of its having been the act of the party just as represented, or in
other words, that the signature is not spurious. Due execution' goes to the manner and form
of its execution according to the laws and customs of a country by a person competent to
execute it. (Cox v. N. W. Stage Co., 1 Idaho, 376.) An instrument is genuine which is in fact
what it purports to be; and it is only executed when the parties thereto have signed, sealed and
delivered it in the mode prescribed by law. (Sloan v. Diggins, 49 Cal. 38; Re Garcelon, 104
Cal. 570; Carpenter v. Shinners, 108 Cal. 359; Rosenthal v. Merced Bank, 110 Cal. 198.) All
the allegations contained in the counterclaim aside from the document itself are deemed
controverted. (Comp. Laws, 3160; Cahill v. Hirschman, 6 Nev. 57.)
II. There can be no force in the contentions of defendants that said agreement was executed
by delivering the same to the Nye and Ormsby County Bank, as there was absolutely no
proof whatever of any such understanding or agreement, nor was the bank shown in any way
to have been a representative or agent of either of the parties for any such purpose. Neither is
there any evidence in the record that the parties intended such unsigned memorandum to take
effect as a contract without signing.
III. The court did not err in excluding the alleged contract between J. B. Murphy and the
defendants, executed on the 18th day of December, 1906, and after this action was
commenced.
30 Nev. 312, 316 (1908) Tonopah Lumber Co. v. Riley
commenced. It must be admitted by the defendants in this case that, at that time, Murphy was
not the agent of the Tonopah Lumber Company, and that his acts and declarations could not
be binding upon the plaintiff. An inspection of this document will show that numerous
whereases and preliminary recitals were made in this document which were entirely
unnecessary in an ordinary contract employing a superintendent; and it is entirely clear that
these declarations of fact were incorporated in this agreement solely for the purpose of being
used as evidence in this litigation which had already been commenced. As bearing upon the
truth of these recitals, the court should also remember that some six days before the signing
of this contract the plaintiff in this case had instituted an attachment proceeding against the
witness, J. B. Murphy, for a large amount. As I understand counsel, this evidence was offered
as impeaching evidence containing statements of fact contrary to those testified to by Murphy
upon the trial, but this document was never exhibited to Murphy while upon the stand; nor
was he interrogated as to the alleged contradictory statements. Under these circumstances, the
evidence is inadmissible. (Rice v. Cunningham, 29 Cal. 492; 1 Greenl. Ev. 462.)
IV. In offering the signed writing, defendants' counsel did not claim that it was a contract,
but offered it for the purpose of proving a contract, and again, we offer it as evidence of
the contract. Relying on a written contract, as they did in their pleading, the defendants were
not entitled to offer the paper as a parol agreement, which was what they did, merely offering
it as evidence of an agreement.
V. In order to entitle defendants to have reviewed the instructions of the court they must
have pointed out in their exceptions the particular portion of the instructions which they claim
to be erroneous. (McGurn v. McInnis, 24 Nev. 370; Lobdell v. Hall, 3 Nev. 520; Sharon v.
Minnock, 6 Nev. 382.) The exceptions were too general to justify this court in reviewing any
portion of the entire charge, and upon that ground plaintiff interposes the preliminary
objections to such consideration. (46 Cent. Dig. col. 1787, Trial, sec. 689.)
VI. In the case of State v. Watkins, 11 Nev. 37, the court uses the following language:
"In order to save the court and counsel from thus acting at cross purposes, it is well for
the court to explain its ruling, care being taken in so doing not to intrench upon the
province of the jury.
30 Nev. 312, 317 (1908) Tonopah Lumber Co. v. Riley
uses the following language: In order to save the court and counsel from thus acting at cross
purposes, it is well for the court to explain its ruling, care being taken in so doing not to
intrench upon the province of the jury. It is not intrenching upon the province of the jury to
say that evidence has been given tending to establish a fact which it clearly does not tend to
establish.
Per Curiam:
This is an action brought by the plaintiff against the defendants to recover for lumber and
building material sold and delivered to defendants by plaintiff for the sum of $14,980.09, the
payment of which it is alleged was to be guaranteed by the Nye and Ormsby County Bank,
and that the lumber and building material was to be paid for as follows: One-half of all the
lumber delivered to defendants before December 15, 1906, was to be paid in cash on that
date, and the balance for the lumber used in the completion of the building known as the
fight arena was to be paid on January 2, 1907and it is alleged that the defendants failed
and refused to comply with the terms of the contract on December 15, 1906. For the failure
by defendants to comply with the provisions of said contract, plaintiff elected to rescind the
contract and sue for the reasonable value of the lumber delivered thereunder. In their answer
defendants deny all the allegations of the amended complaint, and by way of further answer,
counterclaim, and cross-complaint defendants allege that the parties hereto entered into a
written contract to build a fight arena, a copy of which alleged written contract they attach to
their answer, and under which they claim affirmative relief. The cause was tried with a jury,
and a verdict rendered in favor of plaintiff for the full amount sued for, and judgment entered
thereon accordingly. From the judgment and an order denying a motion for new trial,
defendants appeal.
1. The first error assigned is in the overruling of defendants' objection to the introduction
of oral testimony to support the cause of action set forth in plaintiff's complaint for the reason
that plaintiff had filed no affidavit denying the due execution and genuineness of the
alleged written contract set up in defendants' answer and counterclaim.
30 Nev. 312, 318 (1908) Tonopah Lumber Co. v. Riley
due execution and genuineness of the alleged written contract set up in defendants' answer
and counterclaim. Section 54 of the civil practice act (Comp. Laws, 3149) provides: When
the defense to an action is founded upon a written instrument, and a copy thereof is contained
in the answer, or a copy is annexed thereto, the genuineness and due execution of such
instrument shall be deemed admitted, unless the plaintiff file with the clerk, five days after
the service of the answer, an affidavit denying the same. The alleged contract set up in
defendants' answer did not appear upon its face to have ever been signed or executed by
either of the parties to the action, and did not purport to be a completed instrument. An
instrument is genuine which is in fact what it purports to be; and it is only executed when the
parties thereto have signed, sealed, and delivered it in the mode presented by law. (Sloan v.
Diggins, 49 Cal. 38; In re Garcelon's Estate, 104 Cal. 570, 38 Pac. 414, 32 L. R. A. 595, 43
L. R. A. 134; Rosenthal v. Merced Bank, 110 Cal. 198, 42 Pac. 640.) The Supreme Court of
Idaho, considering the effect of a similar statute, say: The due execution of an instrument
goes to the manner and form of its execution according to the laws and customs of the county
by a person competent to execute it. The genuineness of an instrument evidently goes to the
question of its having been the act of the party just as represented, or, in other words, that the
signature is not spurious, and that nothing has been added to it, or taken away from it, which
would lay the party changing the instrument or signing the name of the person liable for
forgery. (Cox v. N. W. Stage Co., 1 Idaho, 376, 380.) The court did not err in overruling
defendants' objection.
2. Error is assigned in the sustaining of an objection to a question asked the witness
Revert, president of the plaintiff corporation, relative to a former action having been
commenced in replevin to recover certain lumber delivered to the building. It was contended
that the evidence was of an impeaching nature, presumably because of some written
declarations contained in the replevin pleadings. The pleadings and records were not at the
time exhibited to the witness.
30 Nev. 312, 319 (1908) Tonopah Lumber Co. v. Riley
ings and records were not at the time exhibited to the witness. Subsequently the papers in the
replevin suit were introduced by the defendants in evidence, from which it appeared they
were verified by one A. J. Crocker, and that the witness Revert was at the time absent from
the state. The ruling of the court was not error.
3. Error is assigned in the refusal of the court to strike out a portion of the answer of the
witness A. J. Crocker wherein he was explaining the reason he verified the complaint in the
replevin suit. The witness stated that it was made because of a conversation he had had with
Revert, the president of the company, relative to the proposed original contract, which
conversation he detailed, and that it was upon advice of counsel. Defendants' counsel
objected to this portion of the answer upon the ground that it was a hearsay declaration
tending to excuse the plaintiff for a seeming inconsistent act with reference to the
subject-matter of the action. We think the court did not err in its ruling. The complaint and
proceedings in the replevin action were offered in the nature of impeaching evidence. Under
such circumstances the witness may be permitted to relate the circumstances under which the
alleged impeaching document was executed. Wigmore on Evidence, 1044, says: In
accordance with the logical principle of relevancy, the impeached witness may always
endeavor to explain away the effect of the supposed inconsistency by relating whatever
circumstances would naturally remove it. The contradictory statement indicates on its face
that the witness has been of two minds on the subject, and therefore that there has been some
defect of intelligence, honesty, or impartiality on his part; and it is conceivable that the
inconsistency of the statements themselves may turn out to be superficial only, or that the
error may have been based, not on dishonesty or poor memory, but upon a temporary
misunderstanding. To this end it is both logical and just that the explanatory circumstances, if
any, should be received. See, also, Ferris v. Hard, 135 N. Y. 354, 32 N. E. 129; State v.
Howard, 43 Or. 166, 72 Pac. 880; State v. Reed, 62 Me. 146; Stoudt v. Shepherd, 73 Mich.
30 Nev. 312, 320 (1908) Tonopah Lumber Co. v. Riley
588, 41 N. W. 696; Dole v. Wooldredge, 142 Mass. 161, 7 N. E. 832; Hoggan v. Cahoon, 31
Utah, 172, 87 Pac. 164, 2 Elliott on Ev. (2d ed.) 931; 1 Greenleaf (16th ed.) 462.
4. Error is assigned in the refusal of the court to admit in evidence a certain contract
entered into between the witness J. B. Murphy and the defendants on the 18th of December,
1906, offered upon the examination of defendant Riley. As the plaintiff corporation was not a
party to this contract, its recitals could in no way be binding upon it. It was contended,
however, that it was admissible for the purpose of contradicting the witness J. B. Murphy.
The attention of the witness Murphy while on the stand was not called to this contract, nor
was he asked with regard to any statements therein that were of a contradictory nature to his
testimony. Besides it does not appear that the testimony of the witness Murphy was
inconsistent with the recitals in the agreement. The contract offered in evidence contained
numerous recitals that were self-serving declarations so far as defendants were concerned.
Unless it clearly appeared that it was admissible for the purpose of impeaching or
contradicting a witness, it would have been highly improper to have admitted it. No showing
having been made to authorize its admission for purposes of impeachment, the court did not
err in excluding it.
5. Error is assigned in the refusal of the court to admit in evidence the unsigned
document, a copy of which was attached to defendants' answer, and alleged to be the contract
entered into between the parties, for the violation of which defendants claimed damages. The
document was not only unsigned, but a provision was contained therein that the written
guaranty of the Nye and Ormsby County Bank that defendants should comply with the terms
of the contract was to be attached and made a part thereof. This was a very essential part of
the contract, if it was a contract, according to its terms, and was lacking. Counsel for
defendants claimed, however, that the parties had satisfactorily settled the question of
guaranty in another way, and that this portion of the contract was in effect changed by oral
agreement. Witnesses upon the part of the defendant had been permitted to testify that such
contract was entered into between the parties.
30 Nev. 312, 321 (1908) Tonopah Lumber Co. v. Riley
parties. The court offered to allow the document to be admitted in evidence for the purpose
of illustrating the testimony and showing the negotiations. Counsel for defendants were
unwilling that it go in under the limitations suggested by the court, and insisted on the offer
that it be admitted as evidence of the contract which was entered into, not for any other
purpose. As the document was unsigned and incomplete according to its terms, in the other
respect mentioned, and the evidence was conflicting upon the question of whether it was in
fact the intention of the parties to enter into a contract containing the terms and conditions of
this unexecuted instrument, we think the offer of the court was as liberal as defendants were
entitled to, and we find no error in the court's ruling.
6. Counsel for appellant assigns error in the giving of certain instructions to the jury. The
only exception taken to the instructions given is in the following language: Mr. Murphy: If
your honor please, I would like to enter an exception to the giving of the instructions on the
ground that the instructions given by the court of its own motion are improper, and do not
state the law, and are not applicable to this case; and, in reference to the instructions offered
and given on the part of the plaintiff, we take an exception to the giving of those instructions
on the ground they do not contain the law, and are improper and irrelevant, and particularly
with reference to the first instruction on the ground that it instructs the jury on a matter of
fact. With the possible exception of the first instruction mentioned, the exception is too
general to be availing. In order to entitle a party to an action to have the instructions
reviewed, the particular error in each instruction complained of must be pointed out in the
exception. This is required in order that the court's attention may be specifically called to the
alleged error, and that it may, if deemed erroneous, be corrected in time. (McGurn v. McInnis,
24 Nev. 370; Lobdell v. Hall, 3 Nev. 520; Sharon v. Minnock, 6 Nev. 382; Bard v. Elston, 31
Kan. 274, 1 Pac. 565; Eldred v. County, 33 Wis. 133; Burnstein v. Downs, 112 Cal. 197, 44
Pac. 557; Holman v. Boston, etc., Co., 8 Colo. App. 282, 45 Pac. 519.) The only instruction
that might be deemed sufficiently excepted to is, we think, not objectionable as
instructing the jury upon a matter of fact.
30 Nev. 312, 322 (1908) Tonopah Lumber Co. v. Riley
that might be deemed sufficiently excepted to is, we think, not objectionable as instructing
the jury upon a matter of fact.
7. The assignment of error that the verdict of the jury is contrary to the evidence is, we
think, not well taken. The most that can be said is that the evidence is conflicting. This court
has repeatedly held that, where there is a substantial conflict in the evidence, it will not
disturb the verdict of the jury or decision of the court.
The record contains a number of other minor assignments of error, in which we find no
merit and deem unnecessary to consider at length.
No error appearing in the record, the judgment and order of the trial is confirmed, and it is
so ordered.
____________
30 Nev. 325, 325 (1908)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
JULY TERM, 1908.
____________
30 Nev. 325, 325 (1908) State v. Buckaroo Jack
[No. 1747.]
STATE OF NEVADA, Respondent, v. BUCKAROO JACK, Appellant.
1. IndiansCriminal LawJurisdiction. Under act of February 20, 1885 (Comp. Laws, 4655), extending all
criminal laws to and over all Indians, excepting offenses committed upon a reservation by one Indian
against another, and under the act of Congress, March 3, 1885, c. 341 (23 Stats. U. S. 385, sec. 9),
making Indians committing, against another Indian, murder or other designated crimes, on any
reservation in a state, subject to the laws governing other persons committing such offenses within the
exclusive jurisdiction of the United States, it is not necessary for the indictment against one Indian for
an offense against another, to charge, or that the state prove, that the offense was committed off a
reservation, since it is not necessary that a state prosecution negative the federal jurisdiction, nor for the
state to prove more than that the offense was committed within the county.
2. SameEvidenceSufficiency. That a homicide occurred at a house about a quarter of a mile from an Indian
day school is insufficient to show that it occurred on a reservation.
3. SameBurden of Proof. The burden is on an Indian accused by the state of an offense against another Indian
to show that the offense was committed on a reservation, so as to give the federal courts exclusive
jurisdiction, under the act of Nevada of 1885 (Comp. Laws, 4655), and the act of Congress of March 3,
1885, c. 341 (23 Stats. U. S. 385, sec. 9), excepting in cases where judicial notice will be taken of the
existence of a lawfully established and defined Indian reservation.
30 Nev. 325, 326 (1908) State v. Buckaroo Jack
Appeal from the District Court of the Second Judicial District of the State of Nevada,
Humboldt County; W. H. A. Pike, Judge.
The defendant was convicted of murder in the first degree, and he appeals. Affirmed.
The facts sufficiently appear in the opinion.
M. S. Bonnifield and S. J. Bonnifield, for Appellant:
I. It appears by the evidence introduced in this case on the part of the plaintiff that the
defendant is an Indian of the Piute tribe and that the alleged deceased, Lotta, alleged to have
been murdered by the defendant, was an Indian woman of the same tribe, and it is not shown
by said evidence, or any evidence, or otherwise, nor does it appear by any allegation of the
indictment that the alleged offense was not committed upon an Indian reservation. Prior to the
enactment of section 4655, Compiled Laws of the State of Nevada, the courts of this state had
no jurisdiction over offenses such as shown here, whether committed on or off an Indian
reservation. (State v. McKenney, 18 Nev. 182; United States v. Kagama, 118 U. S. 375.) Said
section 4655 confers on the state courts special and limited jurisdiction with respect to this
class of cases. The facts conferring jurisdiction must affirmatively appear by allegation and
proof in the record. From the facts disclosed herein, as aforesaid, it conclusively appears that
this court has no jurisdiction to further proceed in this case.
II. If the criminal character of an act depends upon the locality in which it is committed
the allegation of place becomes material and does not then merely determine the venue, but
furnishes an essential feature in the description of the offense and must be accurately laid, and
matter of local description must be proved. The sufficiency of the description of such place
depends upon the relation of the place to the particular offense with which it is connected. (10
Ency. Pl. & Pr.. 529-30, and notes.) The criminal character of the act of the defendant, he
being an Indian, and the act being committed against the person of another Indian, depends
upon the act having been committed outside of an Indian reservation.
30 Nev. 325, 327 (1908) State v. Buckaroo Jack
upon the act having been committed outside of an Indian reservation. If not so committed it is
no offense against the laws of this state, although committed within the boundary lines of
Humboldt County. Prior to the act of Congress, March 3, 1885 (23 Stats. U. S. 385, sec. 9),
Indians preserving their tribal relations were permitted by the government to regulate and
govern their own internal relations and the federal courts had no jurisdiction over offenses
committed by one Indian against the person or property of another, when committed on an
Indian reservation. (United States v. Waley, 15 Fed. 145.) By the above act the federal courts
were vested with jurisdiction over offenses committed by one Indian against another Indian
on an Indian reservation. It is held in United States v. Ward, 42 Fed. 300, that in such case the
indictment must allege that the defendant is an Indian; also it is held that such averment is
material and must be proved as laid. In the case at bar, both parties to the tragedy being
Indians, it was essential for the plaintiff to show, if not by both allegation and proof, at least
by proof, that the alleged offense was committed off an Indian reservation. If not so
committed, it was not committed within the territorial jurisdiction of the court.
III. The theory of the defendant is that it devolved upon the plaintiff to prove all facts
essential to give the court jurisdiction; that in the absence of evidence tending to prove such
facts, the case should have been dismissed on the defendant's motion above named, and that
the court erred in denying said motion; that the alleged offense was committed off an Indian
reservation must be shown by the plaintiff, in order to give the court jurisdiction. The
defendant, at the proper time, made his motion in arrest of judgment, on the grounds therein
stated. The court erred in denying the motion.
IV. The fact that the alleged offense was committed by an Indian, the defendant, against
Lotta, an Indian woman, is established by the testimony of the plaintiff's witness, and the fact
that the alleged offense was committed at Ox Sam's house is likewise so established, and the
fact that said house is near the Indian school on the reservation, is testified to by the
plaintiff's witness, W. H. Minor, and is not controverted by anything in the record. "Before
a conviction can be had in any case, three propositions must be affirmatively made out by
the prosecution: {1) That the offense charged in the indictment has been committed; {2)
that it was committed within the territorial jurisdiction of the court and grand jury where
the indictment was found; {3) that the party on trial was the offender.
30 Nev. 325, 328 (1908) State v. Buckaroo Jack
the plaintiff's witness, W. H. Minor, and is not controverted by anything in the record.
Before a conviction can be had in any case, three propositions must be affirmatively made
out by the prosecution: (1) That the offense charged in the indictment has been committed;
(2) that it was committed within the territorial jurisdiction of the court and grand jury where
the indictment was found; (3) that the party on trial was the offender. A failure to introduce
satisfactory evidence on either of these points before the case is finally submitted to the jury,
is fatal to the prosecution. (People v. Gleason, 1 Nev. 176.) The court and grand jury had no
jurisdiction in the case at bar, unless the offense was committed off an Indian reservation,
although within Humboldt County. The absence of evidence on this point is fatal to the
prosecution.
R. C. Stoddard, Attorney-General, for Respondent:
I. The district courts of this state are courts of general jurisdiction. This jurisdiction is
secured by the Constitution, and established and defined by statute. Section 2528 of the
Compiled Laws provides: The district courts shall have jurisdiction to inquire, by the
intervention of the grand jury, of all public offenses committed or triable in their respective
districts, to try and determine all indictments found therein, etc. This is a general act and it
clearly confers general jurisdiction upon the district courts of this state. In addition to this
last-mentioned section, section 4655, supra, if it does anything, enlarges the general
jurisdiction of the district courts in the class of cases to which it appertains. Should it be
maintained that this latter section confers a jurisdiction that did not already exist, it being a
general act relating to all crimes, it necessarily confers a general jurisdiction and nothing less.
II. While it is true that this section makes a saving or exception, that saving or exception
is one of procedure, and does not constitute, nor attempt to constitute, an element of the
definition of the crime of murder, or of any other crimes. It refers to all existing crimes, that
is, crimes already elsewhere defined, and does not enlarge or restrict their respective
definitions.
30 Nev. 325, 329 (1908) State v. Buckaroo Jack
where defined, and does not enlarge or restrict their respective definitions.
III. When a court has general jurisdiction, as it had here, any facts which would change
the forum for the trial, if they exist, need not be alleged or proved by the state; but if the state
proceeds to trial, as if they did not exist, it is incumbent on the defendant, should he avail
himself of them, to fully prove these facts, and thereby divest the court of jurisdiction to try
the case. If he fail to take this course, he cannot be heard to complain, for he has waived a
privilege, or, at most, an inchoate right, and nothing more, and the judgment of the court is
binding and valid, under the same principle and theory that plea of once in jeopardy, motions
for change of venue, statutes of limitations, or other pleas in bar are waived, if not pleaded
and proved by the defendant, and judgments given and made in their absence are binding and
valid as aforesaid. The indictment herein, alleging all necessary averments, laid a crime
before a court of criminal jurisdiction. Pursuant to the powers therein vested, the court
proceeded to and did try the defendant. If the defendant defaulted at the trial in pleading and
proving his good and substantial defense to the jurisdiction, it being incumbent upon him to
do as aforesaid, he is estopped from asserting that defense before this tribunal. The state fully
established its case as alleged in the indictment, and its duty there ceased. The burden then
shifted to the defendant, who failed to take it up, as the record shows.
IV. We come now to this phase of defendant's objection to the jurisdiction: Counsel argue
that it was essential for plaintiff to show, if not by allegation and proof, at least by proof, that
the offense was committed off an Indian reservation. We are at a loss to understand how this
proposition is seriously advanced. The books are replete with authorities to the effect that in
certain cases a plaintiff must allege certain matters, but he need not prove them. Nowhere
have we found that he must prove what he is not required to allege, or, in other words, that
the proof must be broader than the issue. As evidence must be competent and confined to the
point in issue, and as it is sufficient only if the substance alleged be proved, it is apparent
that if proof were required of facts not required to be alleged, or of issues not raised, the
most fundamental principles of pleading and practice would be violated, and trials,
instead of being conducted orderly and according to the allegations and issues raised,
would proceed without a fixity of judicial control and terminate in an inextricable maze.
30 Nev. 325, 330 (1908) State v. Buckaroo Jack
point in issue, and as it is sufficient only if the substance alleged be proved, it is apparent that
if proof were required of facts not required to be alleged, or of issues not raised, the most
fundamental principles of pleading and practice would be violated, and trials, instead of being
conducted orderly and according to the allegations and issues raised, would proceed without a
fixity of judicial control and terminate in an inextricable maze. We have been moved to such
extended argument out of deference to the seriousness with which counsel have presented
these objections to the consideration of the court. As stated hereinabove, mere citation of
authority is sufficient, and we believe that this tribunal will so hold. (State v. Ah Chew, 16
Nev. 53; People v. Collins, 105 Cal. 504; State v. Spotted Hawk, 22 Mont. 33; Territory v.
Burns, 6 Mont. 72; State v. Tully, 3 Am. & Eng. Ann. C. 824; Pablo v. People, 37 L. R. A.
636; State v. Williams, 13 Wash. 335; Hunt v. State, 4 Kan. 60; United States v. Yellow Sun,
1 Dill. 271; Ward v. Race Horse, 163 U. S. 504; Re Wolf, 27 Fed. 606; U. S. v. Cook, 17
Wall. 168; Territory v. Scott, 2 Dak. 212; People v. Nugent, 4 Cal. 34; Foster v. People, 1
Colo. 294; Comm. v. Hart, 11 Cush. 137; Comm. v. Jennings, 129 Mass. 49; Comm. v.
Byrnes, 126 Mass. 249; Comm. v. McClanahan, 2 Metc. Ky. 8; Fleming v. People, 27 N. Y.
329; Lee Doon v. Tesh, 68 Cal. 43; Bode v. Trimmer, 82 Cal. 513.) To summarize: We have
to submit that the argument and authorities hereinabove set forth make it plain that the district
court had jurisdiction of the case. It is needless to comment further on the alleged
insufficiency of the indictment, and, for a greater reason, it is needless to comment on the
alleged failure of the state to present evidence that the murder was not committed on a
reservation, especially since these authorities guided by reason have laid down the rule that
the alleged insufficiency of the indictment, and the alleged failure of the state to present the
proof excepted to, are pure matters of defense, and are waived if not taken advantage of by
the litigant relying upon them.
V. The assignment of error states that there is evidence tending to show that the offense
was committed on an Indian reservation. The evidence neither shows nor tends to show any
such thing.
30 Nev. 325, 331 (1908) State v. Buckaroo Jack
any such thing. The evidence does not tend to show, but it conclusively establishes the fact
the Buckaroo Jack murdered Lotta, in Humboldt County, Nevada, at a hut or cabin belonging
to Ox Sam, stated to be near, not on, the lands known as Fort McDermitt. The evidence
nowhere bounds, describes or identifies these lands. Such evidence, then, only proves that the
crime was committed within the general jurisdiction of the court.
M. S. Bonnifield and S. J. Bonnifield, for Appellant, in reply:
I. Prior to the enactment of the act of February, 1885 (Comp. Laws. 4655), the state courts
had no jurisdiction over offenses committed by one Indian against the person or property of
another Indian, whether such offense was committed on or off an Indian reservation. By that
act the legislature declared the criminal laws of the state applicable to such offenses within
certain defined boundaries within the state other than where committed as above stated, in
which case their jurisdiction was defined and limited to a certain specified area. Within this
area, as to such offenses they had jurisdiction; without it, none whatever. Now, we insist that,
as to this class of cases, the jurisdiction of the district courts is special and limited, and that
where it is shown, as here, that the offense was one committed by one Indian against the
person of another Indian the state must also show the commission in the territory over which
the court has jurisdiction. It is a matter of proof and not of presumption.
II. It is insisted by the attorney-general that it was only necessary for the state to prove that
the offense, though committed by an Indian upon an Indian, was committed within Humboldt
County, and that the burden was then cast upon the defendant to prove that the act was not
committed in the court's jurisdiction; in other words, he must accuse himself, furnish proof
that he committed the offense and at a certain place outside the jurisdiction of the court, and
this latter proof, as was announced by the learned judge who presided at the trial near its
beginning, must be documentary proof.
30 Nev. 325, 332 (1908) State v. Buckaroo Jack
mentary proof. Then the defendant must admit his guilt of the offense charged, and furnish
documentary proof of the place where he committed it. There is no law or rule of law
requiring such an absurdity as this. The contention of the attorney-general, that section 2528
confers jurisdiction on the state courts in cases such as the case at bar, is not tenable. When
that section was enacted the state courts had no jurisdiction of any offense committed by one
Indian against another as above stated, and no act of the legislature could have conferred any
such jurisdiction, and the legislature has never attempted to confer jurisdiction upon the state
courts over offenses committed by one Indian against another Indian unless the offense be
committed without an Indian reservation. We submit that it is not in the history of
jurisprudence of civilization where facts have been suppressed by the indictment in order to
smuggle jurisdiction on courts, as it seemingly has been done in this case.
By the Court, Norcross, J.:
Appellant was indicted in the Second Judicial District Court in and for Humboldt County
for the crime of murder, the indictment alleging that on the 10th day of April, 1907, he
murdered a human being, commonly known by the name of Lotta, whose real name was to
the grand jury unknown. Appellant interposed a plea of not guilty, was tried for the offense,
and on the 17th day of October, 1907, the jury returned a verdict of guilty of murder in the
first degree, and fixed the penalty at death. Judgment in accordance with the verdict was
thereupon duly entered.
Motions were made to dismiss the proceeding, and in arrest of judgment, upon the ground
that the court had no jurisdiction of the case, because the proof showed that both the
defendant and the person killed were Indians, and that the indictment did not allege, nor the
proof show, that the offense was not committed on an Indian reservation. The question of
jurisdiction is the only one presented upon the record. Prior to 1885, the courts of this state
were without jurisdiction to punish for an offense committed by one Indian against another
Indian, whether the offense was committed on or off an Indian reservation.
30 Nev. 325, 333 (1908) State v. Buckaroo Jack
off an Indian reservation. (State v. McKenney, 18 Nev. 182.)
The legislature of 1885 passed an act entitled An act extending the criminal laws of this state
to and over Indians therein. The act contains but one section, and reads as follows: All the
laws of this state concerning crimes and punishments, or applicable thereto, and all the laws
of this state concerning procedure or applicable thereto, are hereby extended to and over all
Indians in this state, whether such Indians be on or off an Indian reservation, and all of said
laws are hereby declared to be applicable to all crimes committed by Indians within this state,
whether committed on or off an Indian reservation, save and except an offense committed
upon an Indian reservation by one Indian against the person or property of another Indian.
(Comp. Laws, 4655.) By the act of Congress, March 3, 1885 (23 Stats. 385, c. 341, sec. 9), it
is provided that all Indians committing, against the person of another Indian, murder and
certain other designated crimes, within the boundaries of any state of the United States, and
within the limits of any Indian reservation, shall be subject to the same laws, tried in the same
courts and in the same manner, and subject to the same penalties, as are all other persons
committing any of the above crimes within the exclusive jurisdiction of the United States.
The provisions of this federal statute were sustained as constitutional in the case of U. S. v.
Kagama, et al., 118 U. S. 375, 6 Sup. Ct. 1109, 30 L. Ed. 228.
It is claimed by counsel for appellant that under the provisions of the statute of this state,
where the offense is committed by one Indian against another Indian, it is essential that the
indictment charge, and the proof upon the part of the state show, that the offense was
committed off an Indian reservation. In this contention we are unable to agree with appellant's
counsel. The jurisdiction of the state courts over Indians within it borders is made general,
subject only to the exception where the offense is committed by one Indian against another
upon an Indian reservation. The jurisdiction of the federal courts to try certain and specified
offenses, including murder, committed by Indians is not general, but is limited only to cases
where the offense was committed upon an Indian reservation, which special and limited
jurisdiction is within the exception of the state statute.
30 Nev. 325, 334 (1908) State v. Buckaroo Jack
an Indian reservation, which special and limited jurisdiction is within the exception of the
state statute. Where the state jurisdiction is general, and that of the federal government is
special and limited, it is not necessary, in a prosecution in the state court, to negative the
jurisdiction of the United States, nor is it incumbent upon the state to prove further than that
the offense was committed within the county. The reverse would doubtless be the case in the
federal courts. (U. S. v. Ward, 42 Fed. 320.)
The principle here involved is analogous to that considered in the case of State v. Ah
Chew, 16 Nev. 50, 40 Am. Rep. 488, wherein this court, by Hawley, J., said: Appellant's
counsel argue that this indictment does not state an offense, because it does not show that the
defendant is not within the exceptions specified in the statute. They claim the rule to be that,
if there is an exception in the enacting clause, the prosecution must negative the exception,
and state in the indictment that the defendant is not within it. The principle decided in State v.
Robey, 8 Nev. 321, is adverse to this rule. There are cases cited in Wharton's Crim. Law, secs.
378, 379, where the language employed would seem, at first blush, to sustain the position
contended for by appellant. But from a careful examination of all the authorities upon this
subject, we are of the opinion that it is only necessary, in an indictment for a statutory
offense, to negative an exception to the statute, when that exception is such as to render the
negative of it an essential part of the definition or description of the offense charged. * * *
The question is one not only of pleading, but of evidence; and, where the exception need not
be negatived, it need not be proven by the prosecution.
A number of courts have had occasion to consider the identical question here presented. In
the case of People v. Collins, 105 Cal. 504, 39 Pac. 16, the court said: The jurisdiction of the
state being general, and that of the United States exceptional, it is not necessary to negative,
in an indictment or information in the state courts, the jurisdiction of the federal courts. It is
like an exception in an act creating or defining a public offense, in which case it is held that if
the exception is not necessary to the description of the offense, it need not be alleged or
negatived, but it is a matter of defense simply."
30 Nev. 325, 335 (1908) State v. Buckaroo Jack
if the exception is not necessary to the description of the offense, it need not be alleged or
negatived, but it is a matter of defense simply.
In the case of State v. Tully, 31 Mont. 365, 78 Pac. 760, 3 A. & E. Ann. Cas. 824, the
Collins case, supra, was cited and followed, also the case of State v. Spotted Hawk, 22 Mont.
43, 55 Pac. 1028, wherein that court said: Counsel for defendant insist that the information
does not state facts sufficient to show that the court had jurisdiction. After stating the facts
sufficient to charge the defendant with murder, it contains the following allegations: That all
of the defendants are Cheyenne Indians, and that said Hoover was a white man, and was, at
the time and place of the murder, within the County of Custer, and not within the limits of
any Indian reservation.' Defendant claims that this is a necessary allegation; but, inasmuch as
there is within Custer County the Fort Keogh Military Reservation, the information should
also show that the crime was not committed there. The information is in conformity with the
statute. The district court has general jurisdiction of all felonies committed within the limits
of the county where it sits. The allegation quoted supra is surplusage. If the defendant should
be charged with crime committed out of the court's jurisdiction, this is a matter to be taken
advantage of at the trial.
In State v. Williams, 13 Wash. 335, 43 Pac. 15, a case directly in point, that court said: It
is further insisted that the demurrer should have been sustained, because it appears from the
information that the accused is an Indian, and also that the person alleged to have been killed
was an Indian; that the Swinomish Indian Reservation lies within the limits of the County of
Skagit, and that the court will take judicial notice of the existence and boundaries of said
reservation. We do not think the objection is well taken. Prima facie, all persons within the
state are subject to its criminal laws, and within the jurisdiction of its courts. If an exception
exists, it must be shown. (State v. Ta-cha-na-tah, 64 N. C. 614.)' * * * Our investigations of
the authorities lead us to conclude * * * that an information, filed in the superior court of a
county containing within its limits the part or a whole of an Indian reservation, against a
person who is described in the information as an Indian, need not, in order to confer
jurisdiction, aver either that such person does not sustain tribal relations, or that such
offense was not committed within the limits of such reservation."
30 Nev. 325, 336 (1908) State v. Buckaroo Jack
part or a whole of an Indian reservation, against a person who is described in the information
as an Indian, need not, in order to confer jurisdiction, aver either that such person does not
sustain tribal relations, or that such offense was not committed within the limits of such
reservation. See, also, Pablo v. People, 23 Colo. 134, 46 Pac. 636, 37 L. R. A. 636; State v.
Ta-cha-na-tah, 64 N. C. 614; 22 Cyc. 148.
Counsel for appellant contends that there is evidence in the record which tends to show
that the alleged offense was committed on an Indian reservation at Camp McDermitt, and
there is no evidence to the contrary. The evidence upon the question of the location of the
place where the homicide was committed is to the following effect: That it occurred at Ox
Sam's house, about a quarter of a mile from the Indian day school at McDermitt, in Humboldt
County. there is nothing in the testimony showing that the Indian school is on an Indian
reservation, much less any showing that Ox Sam's house was within the lines of such
reservation. The burden of showing these facts, if they existed, was upon the defendant,
unless it was a case such that the court would take judicial notice of the existence of a
lawfully established and defined Indian reservation.
No error appearing in the record, the judgment is affirmed, and the district court is directed
to fix a time and make all necessary orders for having its sentence carried into effect by the
warden of the state prison.
____________
30 Nev. 337, 337 (1908) Forsyth v. Chambers
[No. 1756.]
ALEXANDER FORSYTH, Petitioner, v. J. K. CHAMBERS, Justice of the Peace of
Manhattan Township, County of Nye, State of Nevada, Respondent.
1. Justices of the PeaceProcessPublicationEntry of Judgment. Under Civ. Prac. Act, sec. 517 (Stats.
1869, p. 274, c. 112), as amended by Stats. 1907, p. 28, c. 16, providing that the time specified in the
summons for the appearance of the defendant must be ten days, if served out of the township or city, but
within the county in which the action is brought, and twenty days if served elsewhere, and when a person
on whom the service is to be made resides out of the state or has departed from the state, or cannot after
due diligence be found within the state, or conceals himself to avoid the service of summons, the justice
may grant an order that the service be made by publication, and that service by publication shall be deemed
complete at the expiration of four weeks from the first publication, it is improper to take judgment on the
completion of the publication in cases where personal service cannot be had, but the defendant is entitled to
twenty days in which to make his appearance as in the case of personal service against one served
elsewhere than within the county in which the action is brought.
2. SameIndorsement of Attorney's Name on SummonsPublication of Summons. Civ. Prac. Act, sec. 517
(Stats. 1869, p. 274, c. 112), as amended by Stats, 1907, p. 28, c. 16, providing that, if the plaintiff appears
by attorney, the names of his attorneys must be indorsed upon the summons, does not require that the
names of the attorneys shall be included in the notice of publication made under section 517.
3. SameExecutionVoid Judgment. Where a judgment rendered by a justice of the peace is void for want of
proper service on the defendant, an execution issued on the judgment and proceedings had thereunder are
also void.
Original Proceeding. Certiorari by Alexander Forsyth to review a judgment of J. K.
Chambers, Justice of the Peace of Manhattan Township, Nye County, State of Nevada.
Judgment set aside.
The facts sufficiently appear in the opinion.
J. B. Dixon, for Petitioner:
I. The judgment entered against the petitioner was a default judgment, from which there
was no appeal, and therefore certiorari is the only plain, speedy and adequate remedy. (Paul
v. Armstrong, 1 Nev. 96; Little v. Currie, 5 Nev. 90; Roy v. Whitford, 9 Nev. 370; Martin v.
District Court, 13 Nev. 85, 90; Wiggins v. Henderson, 22 Nev. 103, 108; Pratt v. Stone, 25
Nev. 365, 373.)
30 Nev. 337, 338 (1908) Forsyth v. Chambers
II. The summons was not issued in accordance with the provisions of Statutes of 1907, p.
28. The name of the attorney for the plaintiff does not appear on the summons. There is no
authority for the notice in the summons, or if served by the publication then at the expiration
of four weeks from the first publication agreeably to Statutes of 1907, page 27. This notice is
not in accordance with the statutes, and is misleading. The justice of the peace could not and
did not acquire any jurisdiction of the person of the defendant, by reason of the publication of
such a summons.
III. Even if the summons were regular in form, and the order to serve by publication
properly and regularly made, the service was not completed until the expiration of four weeks
from the first publication. (Stats. 1907, 29.) The defendant was entitled to twenty days in
which to appear and answer, after the completion of service of the summons on him. (Stats.
1907, 28.) The respondent had no jurisdiction or power to enter judgment against the
defendant until after the expiration of twenty days from the completion of service. (Stats.
1907, 28, 29.) Statutory provisions for acquiring jurisdiction by any other than personal
service must be strictly pursued. (Paul v. Armstrong, 1 Nev. 82; Little v. Currie, 5 Nev. 92;
Jordan v. Giblin, 12 Cal. 100; Bayley v. Freeman, 30 Cal. 610; Forbes v. Hyde, 31 Cal. 342.)
By the Court, Norcross, J.:
This is an original proceeding in certiorari to review the proceedings of the justice's court
of Manhattan Township, County of Nye, State of Nevada, made and entered on the 16th day
of January, 1908, in the case of Thomas A. Patterson, Jr., plaintiff, against Alexander Forsyth,
defendant. Action was brought by said plaintiff on the 12th day of December, 1907, to
recover judgment against said defendant petitioner herein in the sum of $72.50. Summons
was issued; and on the 18th day of December, 1908, the defendant not being found in the
county, upon affidavit of plaintiff, an order was made for service of summons by publication
thereof for the period of four weeks in the Manhattan Mail, a newspaper published in said
Manhattan Township. The first publication was made on the said 1Sth day of December,
1907, and the last publication on the 15th day of January following.
30 Nev. 337, 339 (1908) Forsyth v. Chambers
tion was made on the said 18th day of December, 1907, and the last publication on the 15th
day of January following. On the 16th day of January, 1908, the default of the defendant for
failing to answer the complaint was entered by the justice, testimony taken, and judgment
rendered in favor of plaintiff for the amount sued for, together with costs amounting to the
sum of $28. On the day last mentioned execution was issued, and on the 27th day of January
following the execution was returned as satisfied. Petitioner herein contends that all of the
proceedings of said justice's court on and after the 16th day of January, 1908, were without
jurisdiction, and are void.
Section 517 of the civil practice act (Stats. 1869, p. 274, c. 112), as amended (Stats. 1907,
p. 28, c. 16), provides as follows: Sec. 517. The time specified in the summons for the
appearance of the defendant must be as follows: FirstIf an order for arrest is endorsed upon
the summons, then forthwith. SecondIn all other cases the summons must contain a
direction that defendant must appear and answer the complaint within five days, if the
summons be served in the township or city in which the action is brought; ten days if served
out of the township or city, but within the county in which the action is brought; and twenty
days if served elsewhere. ThirdWhen the person on whom the service is to be made resides
out of the state, or has departed from the state, or cannot, after due diligence, be found within
the state, or conceals himself to avoid the service of summons, * * * and the fact shall appear
by affidavit to the satisfaction of the justice thereof, and it shall in like manner appear that a
cause of action exists against the defendant in respect to whom the service is to be made, or
that he is a necessary or proper party to the action, such justice may grant an order that the
service be made by the publication of the summons. Fourth* * * The service of summons
shall be deemed complete in case of publication at the expiration of four weeks from the first
publication. * * *
In the present case the service of summons was not complete until the expiration of the
15th day of January, 1908. The petitioner was therefore in the same position on the 15th day
of January, 190S, as he would have been had personal service been made upon him
within the state, but outside the county wherein the action was brought.
30 Nev. 337, 340 (1908) Forsyth v. Chambers
day of January, 1908, as he would have been had personal service been made upon him
within the state, but outside the county wherein the action was brought. The statute gave him
twenty days thereafter in which to appear and answer. Until the expiration of twenty days
from said 15th day of January, 1908, the court could not have jurisdiction to enter judgment
against him. (Grewell v. Henderson, 5 Cal. 465; Conley v. Morris, 6 Colo. 212; Bowen v.
Harper, 6 Idaho, 654, 59 Pac. 179; Trust Co. v. Bulmer, 49 N. Y. 84; Market Nat. Bank of
New York v. Pac. Nat. Bank of New York, 89 N. Y. 397.)
It is also contended that the publication of the summons was void because it did not
include the name of plaintiff's attorney as endorsed upon the original. Section 516 of the civil
practice act as amended (Stats. 1907, p. 28, c. 16) provides that, if the plaintiff appears by
attorneys, the names of the attorneys must be endorsed upon the summons. This question
came before the Supreme Court of California in the recent case of People v. Wrin, 143 Cal.
11, 76 Pac. 646. The court in that case said: It is objected that the name of the attorney for
plaintiff did not appear upon the summons as published. It does not appear, however, from
the record that the name of the said attorney was indorsed upon the summons, a copy of
which, without the attorney's name, was published. All that was required by section 407 of
the code of civil procedure before it was amended in 1897, with reference to the attorney's
name was that it should be indorsed upon the summons. The attorney's name did not thereby
become a part of the summons, and it was not necessary as such to publish it.
As the statute of this state only requires the name of the attorney to be indorsed upon the
summons, and is not thereby made a part of the summons, it is not necessary that it be
published, and the summons as published is not void for failing to show the name of the
attorney. The summons, as published, contains a statement not embodied in the summons as
issued, and it is claimed that this is a fatal irregularity, especially as the interpolated matter is
a misstatement of the law governing the time within which the defendant is required to
answer.
30 Nev. 337, 341 (1908) Forsyth v. Chambers
required to answer. That it is an irregularity there can be no question. The summons as
published should not contain in the body thereof matter not in the summons as issued.
However, as counsel for petitioner has not cited us to any authorities holding that this
irregularity would be fatal to the acquiring of jurisdiction over the defendant, and as it is not
necessary to the determination of the present case, we do not pass upon this point. The
respondent having rendered judgment in the present case before the time had expired, in
which the defendant was allowed by law to appear and answer, such judgment was rendered
and entered without jurisdiction, and is therefore void.
The judgment being void, the subsequent proceedings based thereon are also void.
It is therefore ordered that the said judgment and proceedings based thereon be, and the
same are, annulled, and that petitioner have judgment for his costs in this proceeding.
____________
30 Nev. 341, 341 (1908) Forsyth v. Chambers
[No. 1757.]
ALEXANDER FORSYTH, Petitioner, v. J. K. CHAMBERS, Justice of the Peace of
Manhattan Township, County of Nye, State Of Nevada, Respondent.
[See syllabus in Case No. 1756, same title as above-entitled case, and same briefs filed by
counsel, reported in this volume, page 337.]
Original proceeding. Certiorari by Alexander Forsyth to review a judgment rendered by J.
K. Chambers, Justice of the Peace of Manhattan Township, Nye County, Nevada. Judgment
set aside.
The facts sufficiently appear in the opinion.
J. B. Dixon, for Petitioner.
By the Court, Norcross, J.:
This is an original proceeding in certiorari presenting the same questions as in the case of
Alexander Forsyth, Petitioner v. J. K. Chambers, Justice of the Peace, etc., Respondent (No.
1756), 30 Nev. 337. For the reasons stated in the case last mentioned, it is ordered that the
judgment made and entered in the case of F. L. Giffen, Plaintiff, v. A. Forsyth, Defendant, on
the 16th day of January, 190S, in the justice's court of Manhattan Township, County of
Nye, State of Nevada, and all subsequent proceedings based on said judgment, be, and
the same are, hereby annulled, and that petitioner have judgment for his costs in this
proceeding.
30 Nev. 341, 342 (1908) Forsyth v. Chambers
Defendant, on the 16th day of January, 1908, in the justice's court of Manhattan Township,
County of Nye, State of Nevada, and all subsequent proceedings based on said judgment, be,
and the same are, hereby annulled, and that petitioner have judgment for his costs in this
proceeding.
____________
30 Nev. 342, 342 (1908) Persing v. Reno Stock Brokerage Co.
[No. 1751.]
U. G. PERSING, Appellant, v. RENO STOCK
BROKERAGE COMPANY, Respondent.
1. Constitutional LawDue Process of Law. Due process of law, within Const. art. I, sec. 8, declaring that
no person shall be deprived of life, liberty or property without due process of law, not only requires that
a party shall be properly brought into court, but that he shall have the opportunity in court to establish
any facts which, according to the usages of the common law or the provisions of the Constitution, will
be a protection to himself or property.
2. AttachmentClaims by Third PersonsLiability of Third PersonsStatutes. Under Comp. Laws, 3225,
providing that all persons having in their possession any credits belonging to defendant at the time of
service of the writ of attachment shall be, unless delivering the same to the sheriff, liable to the plaintiff
for the amount of such credits or debts until the attachment is discharged, etc., a third person in
possession of property attached as property of a defendant is liable to plaintiff for any property or
credits of defendant which he may hold after his own rights, if any, are satisfied.
3. ExecutionSupplementary ProceedingsExamination of Third PersonsStatutes. Plaintiff, having attached
property of the defendant in the hands of a pledgee thereof and having obtained a judgment against
defendant, cannot apply the attached property to the satisfaction of his judgment by proceeding to have
the interest of the pledgee determined under Comp. Laws, 3226, allowing any one in possession of
property of defendant to be examined as a witness in relation thereto; but under Comp. Laws, 2705,
declaring that possession of mortgaged chattels shall not be taken from the mortgagee without full
payment, he must move by direct proceeding against the pledgee, under that part of the civil practice
act entitled Proceedings Supplementary to the Execution, to prevent disposition of the property by the
pledgee pending an action to determine the rights in the property.
4. Same. A plaintiff, obtaining a judgment against a defendant after attaching property in the hands of a third
person, may, to convert to the satisfaction of the judgement property in the hands of the third person,
proceed under Comp. Laws, 3226, providing that any person having possession of property belonging
to defendant may be required to appear before the court and be examined respecting same, etc., where
the title to the property is undisputed, and the facts clearly show that it belongs to defendant and that the
third person claims no interest therein.
30 Nev. 342, 343 (1908) Persing v. Reno Stock Brokerage Co.
5. CourtsJurisdictionVacating Order Void Ab Initio. The court has authority of its own motion to vacate an
order void ab initio, because not within the jurisdiction of the court.
Appeal from the District Court of the Second Judicial District of the State of Nevada,
Washoe County; John S. Orr, Judge.
Action by U. G. Persing against the Reno Stock Brokerage Company, in which, after
judgment, James T. Boyd was ordered to appear to testify as to property in his possession
belonging to defendant. From an order vacating an order adjudging that certain property in
the possession of James T. Boyd be delivered to the sheriff, plaintiff appeals. Affirmed.
The facts sufficiently appear in the opinion.
Mack & Shoup, for Appellant:
I. The so-called lien upon said automobile, asserted by James T. Boyd, was invalid
because the attempted transfer of the automobile to him by the president and acting cashier of
the Reno Stock Brokerage Company, as security for the payment of certain creditors' claims
against the company, was without authority and void. It was not shown or claimed that either
Mr. Froelich as president of the Reno Stock Brokerage Company, or Mr. O'Brien as acting
cashier, had authority from the board of directors of the company to make such transfer. The
testimony shows that it was simply an effort on the part of the two officers named, acting
under the coercion of Messrs. Boyd and Salisbury, to prefer certain creditors whom Messrs.
Boyd and Salisbury represented as attorneys. The transaction was not even dignified by so
much as a scrap of paper in writing as an evidence of the bona fides of the transfer, or of the
terms thereof, and we are forced to rely upon the oral testimony of Mr. Boyd and Mr.
Salisbury as to the facts, and even their testimony is vague and uncertain as to the details of
their clients' claims and the amounts due them; so that if the trial court had held that their lien
upon the automobile was valid, it could not have set forth with any precision of certainty the
amounts of the debts secured thereby, under section 3226 of the Compiled Laws of Nevada. It
is, however, well settled that the president of a corporation has no authority to sell, or
mortgage, or assign corporate property for the benefit of its creditors, or to secure the
payment of a corporate debt {10 Cyc.
30 Nev. 342, 344 (1908) Persing v. Reno Stock Brokerage Co.
corporation has no authority to sell, or mortgage, or assign corporate property for the benefit
of its creditors, or to secure the payment of a corporate debt (10 Cyc. 906-910). The
appointment of a president of a corporation to the office of general manager does not
authorize him to enter into a transaction by which the corporation prefers one of its creditors,
being in failing circumstances.
II. As the evidence showed and the court found that the automobile was the property of
the Reno Stock Brokerage Company, and as the court further found, as it was obliged to do
upon the showing made by Mr. Boyd himself, that Mr. Boyd had no valid lien on the
property, the only thing left for the court to do was to order the automobile delivered to the
sheriff without reference to any liens claimed by Mr. Boyd, as the liens contemplated by the
statute are, of course, valid liens, capable of enforcement against the attachment or judgment
debtor.
III. The order of the trial court requiring James T. Boyd to deliver said automobile to the
sheriff was authorized by section 3226 of the Compiled Laws of Nevada. As we have already
endeavored to show, the findings of the trial court upon the hearing of Mr. Boyd's motion to
set aside the order requiring him to deliver the automobile to the sheriff were conclusive, and
if we are correct in this, it seems to us that the only question the trial court could pass upon,
on the hearing of Mr. Boyd's motion, if it had jurisdiction to pass upon the motion at all, was
whether or not, upon such findings and the admitted facts, it had the jurisdiction to enter the
order complained of. This was the view, as we understand it, taken by the trial court itself,
and its order setting aside the former order was based upon the theory that, in making such
order, the court exceeded its authority under the law. In other words, if the ruling of the trial
court, setting aside its former order, was correct, any person may refuse to deliver up to the
sheriff personal property belonging to the attached debtor in such person's possession,
although such person may have no lien or claim thereto, and thus force the judgment creditor
to another suit to recover possession of the personal property, even though there may be
nothing to litigate in the second suit.
30 Nev. 342, 345 (1908) Persing v. Reno Stock Brokerage Co.
gate in the second suit. This would nullify the provisions of section 3226 of the Compiled
Laws, and render them of no avail to any attachment creditor in any suit. The courts,
however, have not so held. Thus, in Bivins v. Harris, 8 Nev. 153, this provision of our statute
was enforced against the attachment debtor himself, who was compelled to surrender to the
sheriff personal property consisting of shares of stock, which he had upon his person. It has
been held that the court, even in the absence of statutory authority, has the inherent power,
when necessary for the protection of plaintiff's rights, to compel the garnishee to pay into the
court during the pendency of the proceedings the property or credits in his hands. (Smith v.
Gower, 3 Metc. Ky. 177; Johann v. Rufner, 32 Wis. 195; Orton v. Noonan, 27 Wis. 572.)
IV. That the trial court had jurisdiction to determine whether the transfer, or assignment
under which Mr. Boyd claimed the automobile, was valid is, it seems to us, plain under much
weight of authority. (Waples on Attachment, 209, et seq.; Drake on Attachments, 458, 598;
Peoples Bank v. Smith Bros., 65 Am. St. Rep. 620.)
James T. Boyd and A. N. Salisbury, for Respondent:
I. We think it is unnecessary to notice, in reply, the appellant's contention that the court
had no power to set aside the void order made, but that Boyd's remedy was either by motion
for a new trial or by appeal to this honorable court. If the order, as the court subsequently
found, was beyond its power to make, it was certainly the court's duty to set aside such void
order, as no right could follow from the order made by the court beyond its power, and in the
case of McDowell v. Bell, 86 Cal. 615, the supreme court of that state issued its mandatory
order, prohibiting the court from proceeding further in a matter on all-fours with this. In the
case at bar the application to set aside the void order was taken in lieu of an appeal to this
court to issue its writ of prohibition. Even at the present time Boyd, against whom the whole
proceeding is directed, is not yet a party to the record, but it appears by the record itself that
the sole respondent in this action is the Reno Stock Brokerage Company, and Boyd is simply
appearing here as the party in interest without being named in the record in any respect.
30 Nev. 342, 346 (1908) Persing v. Reno Stock Brokerage Co.
pany, and Boyd is simply appearing here as the party in interest without being named in the
record in any respect.
By the Court, Sweeney, J.:
On June 29, 1907, U. G. Persing, plaintiff and appellant, brought an action against the
Reno Stock Brokerage Company, a corporation, defendant, to recover certain stock belonging
to plaintiff, and which had been placed in the hands of the Reno Stock Brokerage Company
for the purposes of sale on commission, or for the value of said stock, in case the certificates
thereof could not be recovered. Plaintiff alleged in his complaint that defendant had
hypothecated certain stock and converted the same to its own use without plaintiff's
knowledge or consent; said stock being of the alleged market value of $7,525. Upon filing the
complaint a writ of attachment was issued, and thereafter levied. The sheriff's return shows
that he attached all personal property in the possession or under the control of one James T.
Boyd, belonging to the Reno Stock Brokerage Company, defendant, on the 20th day of June,
1907. On July 6, 1907, the Reno Stock Brokerage Company filed a demurrer to the
complaint, which was overruled by the court, and the defendant failed within the time
allowed to plead to file its answer, whereupon on the 3d day of August, 1907, default was
entered against defendant, and on August 8th the trial court, after hearing the evidence of the
plaintiff, entered judgment for plaintiff against the defendant for 1,500 shares of the Rocky
Hill Gold Mining Company's stock and a money judgment for $5,495.
On August 30, 1907, Guy V. Shoup, Esq., one of the attorneys for plaintiff, filed his
affidavit with the clerk of the court, in effect setting forth: That James T. Boyd had in his
possession and under his control an automobile belonging to the Reno Stock Brokerage
Company, and prayed that Boyd be required to appear before the district court and be
examined with respect to all property then in his possession or under his control belonging to
the Reno Stock Brokerage Company, and particularly with respect to the said automobile.
The court, upon reading the affidavit filed, made an order requiring said Boyd to appear
before the court on September 7, 1907, to testify in accordance with the request in the
affidavit of said Shoup. A. N. Salisbury, Esq., was also cited.
30 Nev. 342, 347 (1908) Persing v. Reno Stock Brokerage Co.
tember 7, 1907, to testify in accordance with the request in the affidavit of said Shoup. A. N.
Salisbury, Esq., was also cited. Upon September 11th the matter came on regularly for
hearing before the court, Mr. Boyd appearing personally in response to the citation, and Mr.
Boyd and Mr. Salisbury were sworn and testified at the instance of the plaintiff. The
testimony of these gentlemen was to the effect that prior to the bringing of the suit of Persing
v. Reno Stock Brokerage Company the automobile in question was delivered to Boyd as a
pledge and security for certain claims which said Boyd and several of his clients had against
the Reno Stock Brokerage Company. The evidence also disclosed that there was some
question whether or not the automobile belonged to A. J. Froelich, who was president and
general manager of the Reno Stock Brokerage Company, or was the property of said
company. The evidence disclosed, however, that Boyd had a claim against Froelich
personally, and also against the Reno Stock Brokerage Company, and that said automobile,
prior to the institution of said suit, was delivered into the possession of Boyd as a pledge and
security for the payment of the claims against Froelich and said company, at the request of
Froelich, who was the president and general manager of said company, through Mr. O'Brien,
the secretary and cashier of the Reno Stock Brokerage Company, in order to stay attachment
proceedings against said Froelich and said company, which were threatened to be instituted
by said Boyd and Salisbury, if the claims held by them were not secured. Plaintiff attempted
to get possession of said automobile from Boyd, but Boyd refused to deliver the same until
his claims against the machines were satisfied.
Upon the conclusion of the evidence given by Messrs. Boyd and Salisbury in this
proceeding, the court made the following order: This being the date set for hearing of the
return on the order heretofore entered by this court, requiring James T. Boyd, Esq., to appear
before this court, and then and there be examined on oath respecting all property in his
possession and under his control belonging to the defendant, Reno Stock Brokerage
Company, and particularly with reference to a certain automobile referred to in the affidavit
of Guy V.
30 Nev. 342, 348 (1908) Persing v. Reno Stock Brokerage Co.
Shoup, Esq., on file herein, and the said James T. Boyd, Esq., appearing in person, the
plaintiff also appearing by his attorneys, Messrs. Mack & Shoup, an James T. Boyd, Esq., and
A. N. Salisbury, Esq., having been duly sworn and examined on oath respecting the said
automobile, an it appearing to the satisfaction of the court that said James T. Boyd was in
possession of said automobile on the 28th day of June, 1907, that said automobile was then in
the County of Washoe, State of Nevada, that on said June 28, 1907, while the said James T.
Boyd, was in the possession and control of the same, a writ of attachment was duly issued out
of the above-entitled action, directed to the sheriff of said County of Washoe commanding
him to attach and safely keep all property in said county belonging to the said defendant,
Reno Stock Brokerage Company, a corporation, within said county, not exempt from
execution, and that a copy of said writ of attachment was duly served upon James T. Boyd on
June 28, 1907, and on the same day the said sheriff also, pursuant to instructions from
plaintiff's attorneys, served upon said James T. Boyd a notice that all personal property
belonging to the said defendant, Reno Stock Brokerage Company, in the possession of James
T. Boyd, or under his control was attached pursuant to said writ, and requested him to give
him memoranda stating the character and description of any personal property belonging to
said defendant in the possession of James T. Boyd, as shown by the return of the sheriff on
file in this court, and it also appearing from said return that no memoranda or statement was
made to said sheriff by said James T. Boyd, and it further appearing by a preponderance of
testimony that said automobile was, at the time of the service of said writ of attachment and
notice as aforesaid upon said James T. Boyd, the property of said Reno Stock Brokerage
Company, and that said James T. Boyd has no valid liens or claims thereon, and that said
automobile is still in his possession, and under his control, and the court being fully advised
in the premises, it is ordered and adjudged that said automobile be delivered to the sheriff of
Washoe County by the said James T. Boyd, to be retained by said sheriff to answer any
judgment recovered by plaintiff in the aboveentitled action against the Reno Stock
Brokerage Company, and that said automobile be delivered by said James T.
30 Nev. 342, 349 (1908) Persing v. Reno Stock Brokerage Co.
entitled action against the Reno Stock Brokerage Company, and that said automobile be
delivered by said James T. Boyd to said sheriff within ten days from the date of this order.
Dated this 4th day of October, 1907.
Subsequent to this order James T. Boyd made a motion to vacate this order, and the court,
after consideration, very properly granted said motion being of the opinion that in the order
heretofore made in this case, the court exceeded its authority under the law. From this order,
vacating and setting aside the former order, plaintiff appeals, urging that the court had ample
authority to make the original order, and that, the court having acted, it had no authority on
motion of said Boyd to vacate its order made in the first instance.
We do not agree with the appellant in either of his contentions. The trial court clearly
exceeded its jurisdiction in making the original order, subsequently vacated and set aside. In
the case at bar, at the time Boyd appeared in court to testify regarding any property he may
have had in his possession belonging to the Reno Stock Brokerage Company, and asserted his
rights in the property in question, judgment had already been entered against said company in
favor of Persing, in an action in which said Boyd was not a party, and, as will be observed,
has not been to the present moment, except as a witness for the aforesaid purpose. To hold
that the lower court in a side proceeding of this character could adjudicate the title to disputed
ownership of property, or deprive a person of his property, or destroy any right by way of lien
a person may have in property in his possession, or that any lien he may have in the property
is invalid or given by persons without authority, upon the mere affidavit of a party,
unsupported by any testimony or pleading, would do violence to all legal and constitutional
rights affecting property guaranteed to every citizen by every Constitution in the land. Section
8 of the first article of the Constitution of Nevada declares that no person [shall be] deprived
of life, liberty or property without due process of law.
This court, in the case of Wright v. Cradlebaugh, 3 Nev. 341, in defining due process of
law, said: Due process of law,' not only requires that a party shall be properly brought into
court, but that he shall have the opportunity when in court to establish any fact which,
according to the usages of the common law or the provisions of the Constitution, would
be a protection to himself or property."
30 Nev. 342, 350 (1908) Persing v. Reno Stock Brokerage Co.
brought into court, but that he shall have the opportunity when in court to establish any fact
which, according to the usages of the common law or the provisions of the Constitution,
would be a protection to himself or property. Counsel for appellant, having attached the
property in the possession of Boyd alleged to have belonged to the Reno Stock Brokerage
Company, protected his client in so far as he legally could do, after Boyd's rights, such as they
might be when legally determined, had been satisfied. When the property alleged to have
belonged to the Reno Stock Brokerage Company in the possession of Boyd was attached,
Boyd was thereby rendered liable to plaintiff for any property or credits of said company
which he may have held, after his own rights, if any, were satisfied. All persons having in
their possession, or under their control, any credits or other personal property belonging to the
defendant, or owing any debts to the defendant at the time of service upon them of a copy of
the writ and notice as provided in the last two sections, shall be, unless such property is
delivered up or transferred, or such debts be paid to the sheriff, liable to the plaintiff for the
amount of such credits, property or debts, until the attachment be discharged or any judgment
recovered by him be satisfied. (Comp. Laws, 3225.)
But appellant contends, because the property was attached by the plaintiff and he
afterwards secured a judgment against the said company, that under section 3226 of the
Compiled Laws all he had to do to acquire possession was to cite Boyd into court, and upon
counsel's affidavit that he believed said property belonged to said company, notwithstanding
Boyd's claim of prior rights in the property accruing before the attachment, that the court
could adjudicate in this side proceeding who owned the property and take the same from the
possession of Boyd, and could, without an original direct proceeding in which Boyd was
made a party, adjudicate Boyd's rights to the property. In this counsel for appellant are in
error. After appellant had secured judgment against the defendant, and discovered prior rights
in the property attached, if he believed his client's rights prior and superior to Boyd's and
desired to convert the property attached to the satisfaction of his judgment, he should have
proceeded, under the part of the civil practice act entitled "Proceedings Supplementary to
the Execution," in a direct proceeding against the party maintaining an adverse right in
dispute.
30 Nev. 342, 351 (1908) Persing v. Reno Stock Brokerage Co.
satisfaction of his judgment, he should have proceeded, under the part of the civil practice act
entitled Proceedings Supplementary to the Execution, in a direct proceeding against the
party maintaining an adverse right in dispute.
Among other regulations for determining adverse rights of a nature here involved, section
3341 of our Compiled Laws, which is identical with section 720 of the Code of Civil
Procedure of California, provides: If it appears that a person or corporation alleged to have
property of the judgment debtor, or indebted to him, claims an interest in the property adverse
to him, or denies the debt, the court or judge may authorize, by an order made to that effect,
the judgment creditor to institute an action against such person or corporation for the recovery
of such interest or debt, and the court or judge may, by order, forbid a transfer or other
disposition of such interest or debt until an action can be commenced and prosecuted to
judgment. Such order may be modified or vacated by the judge granting the same, or the court
in which the action is brought, at any time, upon such terms as may be just. When, in the
course of the special proceeding in the lower court, the testimony of the party in possession
disclosed adverse claims to the property, and the question of ownership arose to be
determined, the trial court's jurisdiction in the proceeding ceased in so far as adjudicating the
title to the same, and under section 3341, supra, the court should have authorized and
directed the judgment creditor to institute suit to determine the matter in a proper action,
where the title as an issue and Boyd's rights in the property would be directly involved.
(McDowell v. Bell, 86 Cal. 615, 25 Pac. 128; Kerr's Cyc. Code Civ. Proc. Cal. p. 1210, sec.
720, and cases cited.)
The title to the property must have been undisputed and clearly shown to have belonged to
the Reno Stock Brokerage Company, and that Boyd claimed no interest therein before the
court in the proceeding referred to could have taken the property from him. (21 Ency. Pl. &
Pr. 2d ed. 158, and cases cited; 2 Wade on Attachments, 414, 415.) Section 2705 of our
Compiled Laws, treating of the possession of mortgaged personal property, among other
things states: But the possession of mortgaged personal property shall not be taken from
the mortgagor or mortgagee unless full payment of the mortgagee's demand be first
made, which, if done by the attaching or executing creditor of the mortgagor, shall entitle
him to hold such personal property and the possession thereof, under his levy for
repayment to him of the amount so paid, in addition to his own individual demand.
30 Nev. 342, 352 (1908) Persing v. Reno Stock Brokerage Co.
the possession of mortgaged personal property shall not be taken from the mortgagor or
mortgagee unless full payment of the mortgagee's demand be first made, which, if done by
the attaching or executing creditor of the mortgagor, shall entitle him to hold such personal
property and the possession thereof, under his levy for repayment to him of the amount so
paid, in addition to his own individual demand. * * * When the mortgagee is in possession
of property, the remedy of the creditor is by direct action against the fraudulent assignee
where good faith of the assignment is in issue. (Harman v. Olvera, 51 Cal. 502.)
The lower court, in the first instance, being without jurisdiction to make the order, had
authority to set aside and vacate this order which was void ab initio. This the court could do
of its own motion, with or without an application to have the order vacated. (11 Cyc. 701.)
The order appealed for is affirmed.
____________
30 Nev. 353, 353 (1908) State v. Gibson
[No. 1755.]
THE STATE OF NEVADA, Respondent, v. GEORGE
GIBSON, Appellant.
1. StatutesSubjects and Titles of ActsConstitutional Provisions. Under Const. art. IV, sec. 17, providing that
each law shall embrace but one subject, and matter properly connected therewith, which shall be
expressed in the title, the title of act of March 4, 1907 (Stats. 1907, p. 59, c. 32), entitled An act to
provide for the appointment of stenographers on the hearing of preliminary examinations, before
committing magistrates, and to regulate the compensation therefor, is not sufficiently broad to include
a provision for the subsequent use of the testimony on the trial.
2. SameAmendment. The act of March 4, 1907 (Stats. 1907, p. 59, c. 32), entitled An act to provide for the
appointment of stenographers on the hearing of preliminary examinations before committing
magistrates and to regulate the compensation therefor, and providing in section 2 that the report of the
stenographer shall be admissible in evidence on the trial of the case, as prescribed by Crim. Prac. Act,
sec. 151 (Comp. Laws 4121), providing that, by consent of the parties, the testimony may be reduced to
writing, and used by either party when the witness is sick, out of the state, dead, or when his personal
attendance cannot be had in court, is repugnant to Const. art. IV, sec. 17, providing that no law shall be
revised or amended by reference to its title only, but in such case the act as revised, or the section as
amended, shall be renacted and published at length.
Appeal from the District Court of the First Judicial District of the State of Nevada,
Esmeralda County; M. A. Murphy, Judge.
George Gibson was convicted of murder, and from orders denying his motions in arrest of
judgment, and for a new trial, he appeals. Reversed and remanded for new trial.
The facts sufficiently appear in the opinion.
Thompson, Morehouse & Thompson, for Appellant.
R. C. Stoddard, Attorney-General, for Respondent.
By the Court, Sweeney, J.:
Defendant was indicted for the crime of murder, for killing Richard Maunsell, in
Goldfield, Nevada, on the 18th day of August, 1907, was tried in the district court at said
place, and the jury in said case returned a verdict of involuntary manslaughter, whereupon the
court sentenced defendant to three years' imprisonment in the Nevada State Penitentiary.
30 Nev. 353, 354 (1908) State v. Gibson
From the orders denying defendant's motions in arrest of judgment, and for a new trial,
defendant appeals.
It appears from the transcript that, at the time Maunsell was killed, he was in company
with Sam Powell and Theodore Tobish, and that these two parties were the prosecution's
main witnesses at the preliminary hearing of the defendant in the justice's court, and upon
whose testimony chiefly the defendant was bound over to the grand jury, which later indicted
him. Upon the trial of the cause in the district court the witness Powell was not present; the
state being unable to produce him. At the preliminary hearing the testimony of Powell was
taken down in shorthand, pursuant to an act of the legislature entitled An act to provide for
the appointment of stenographers upon the hearing of preliminary examinations before
committing magistrates in this state, and to regulate the compensation therefor, approved
March 4, 1907 (Stats. 1907, p. 59, c. 32). This testimony was thereafter transcribed and duly
sworn to by said stenographer. The attorney for the state offered in evidence his testimony
taken at the preliminary hearing, and asked permission of the court to read into the record and
to the jury the testimony of Powell so taken. Over the objection of counsel for defendant the
court acceded to the request of the prosecution, and admitted said testimony in evidence. The
defendant assigns as error the admission of this testimony of Powell taken at the preliminary
hearing, upon the ground chiefly that the act of the legislature, under which said testimony
was taken at the preliminary hearing, is unconstitutional and void. There are other errors
assigned, but it will be unnecessary for us to consider them.
The act of the legislature complained of, which attempts to render admissible on the trial
of an action testimony taken by an appointed stenographer at the preliminary hearing, reads as
follows:
An act to provide for the appointment of stenographers upon the hearing of preliminary
examination before committing magistrates in this state, and to regulate the
compensation therefor.
Section 1. In all preliminary examinations or criminal proceedings before any
committing magistrate in this state, where the defendant or defendants are charged with
the crime of felony, such magistrate, if he deems it necessary for the best interests of
justice, is hereby authorized to employ a stenographer to take down all the testimony and
proceedings on said hearing and examination, and within such time as the court may
designate have the same transcribed into longhand or typewritten transcript.
30 Nev. 353, 355 (1908) State v. Gibson
proceedings before any committing magistrate in this state, where the defendant or defendants
are charged with the crime of felony, such magistrate, if he deems it necessary for the best
interests of justice, is hereby authorized to employ a stenographer to take down all the
testimony and proceedings on said hearing and examination, and within such time as the
court may designate have the same transcribed into longhand or typewritten transcript. The
stenographer employed as aforesaid shall be sworn by the magistrate before whom such
proceedings are held to take down in shorthand verbatim, truthfully and correctly, such
proceedings and testimony, and to make a true and correct transcript of the same into
longhand or typewritten transcript; and said stenographer shall make affidavit before some
official qualified to administer an oath that the evidence and proceedings so transcribed are
true and correct as given and had, and attach the same to the transcript.
Sec. 2. When such report is made, the same, when transcribed and sworn to as aforesaid,
shall be deemed a correct statement of the evidence and proceedings given and had therein,
and shall be admissible in evidence on the trial of the case, as prescribed in section 151 of the
criminal practice act of the State of Nevada.
Sec. 3. The compensation for said stenographer for taking down the said testimony and
transcribing the same, shall be fixed by the court hearing the same, and on the order of the
court be paid out of the treasury of the county in which the same is heard.
Sec. 4. All acts or parts of acts in conflict herewith are hereby repealed.
Sec. 5. This act shall take effect immediately.
Section 151 of the criminal practice act of Nevada, attempted to be amended by the above
act, reads (Comp. Laws, 4121):
The witnesses shall be examined in the presence of the defendant, and may be
cross-examined in his behalf. If either party so desire, the examination shall be by
interrogatories, direct and cross; provided, by consent of parties, the testimony may be
reduced to writing in narrative form. The testimony so taken may be used by either party on
the trial of the cause, and in all proceedings therein, where the witness is sick, out of the
state, dead, or when his personal attendance cannot be had in court.
30 Nev. 353, 356 (1908) State v. Gibson
trial of the cause, and in all proceedings therein, where the witness is sick, out of the state,
dead, or when his personal attendance cannot be had in court. When the testimony of each
witness is all taken, the same shall be read over to the witness; or, if he refuses to sign it, the
fact of such refusal, and any reasons assigned therefor, must be stated, and the same shall be
tested by the magistrate. And such testimony so reduced to writing, and authenticated
according to the provisions of this section, shall be filed by the examining magistrate with the
clerk of the district court of his county, and in case such prisoner be subsequently examined
upon a writ of habeas corpus such testimony shall be considered as given before such judge
or court.
Let us examine this act of the legislature in the light of the constitutional restrictions of the
Constitution imposed upon the legislature in enacting laws.
Section 17 of article IV of the Constitution of Nevada provides:
Each law enacted by the legislature shall embrace but one subject, and matter properly
connected therewith, which subject shall be briefly expressed in the title; and no law shall be
revised or amended by reference to its title only, but, in such case, the act as revised, or the
section as amended, shall be renacted and published at length.
Viewed in the light of this constitutional provision, two queries present themselves, which
we will consider it their order. Does the act complained of embrace but one subject, and
matter properly connected therewith, briefly expressed in the title? Is section 151 of our
criminal practice act (Comp. Laws, 4121) attempted to be amended, revised, and published at
length as provided by the constitution? By no interpretation of the language of this act is it
possible to give an affirmative answer to either of these queries; but, on the contrary, section
2 of the act is in plain violation of these mandatory provisions of the Constitution, and is
therefore unconstitutional and void. An examination of the title to the act in question reveals
that it has reference only to the appointment of a stenographer, and fixing the compensation
therefor. Nowhere in the title of the act is there any reference to the testimony being
thereafter used as evidence, or at all.
30 Nev. 353, 357 (1908) State v. Gibson
ence to the testimony being thereafter used as evidence, or at all. Section 2 of said act,
therefore, clearly violates section 17 of article IV of the Constitution of our state, because the
subject-matter is not embraced in the title of the act, nor can it be said that the subject-matter
of section 2 is germane to the subject-matter defined in the title of the act. Section 2 of the act
in question is also repugnant to section 17 of article IV of the Constitution, because it
attempts to amend section 151 of the criminal practice act, by simply referring thereto,
without setting out, renacting, and publishing said section, as expressly provided must be
done, by the Constitution, whenever a law in force is to be revised or amended.
The Supreme Court of Colorado, in discussing with what clearness the title of an act must
define the subject-matter contained therein, said: The matter covered by legislation is to be
clearly' not dubiously' or obscurely' indicated by the title. Its relation to the subject must not
rest upon a merely possible or doubtful inference. The connection must be so obvious as that
ingenious reasoning, aided by superior rhetoric, will not be necessary to reveal it. Such
connection should be within the comprehension of the ordinary intellect, as well as the
trained legal mind. (Brooks v. People, 14 Colo. 413, 24 Pac. 553.) If the title of an act must
be as clearly expressed as indicated by the Supreme Court of Colorado, and we believe it
should, it would be difficult, under any stretch of the imagination, to conceive, by the reading
of the title of the act in question, that it was intended to establish a rule of evidence thereby
and make the testimony, when taken by a stenographer, admissible in evidence. It would be
difficult to find a more palpable violation of this constitutional provision, regarding the
requisite entitlement of an act, than in the act under consideration. The act of 1907 does not
properly amend section 151 of our criminal practice act as prescribed by our Constitution.
In Copeland v. Pirie, 26 Wash. 481, 67 Pac. 227, 90 Am. St. Rep. 769, the Supreme Court
of Washington, in speaking of the vice inhibited by our Constitution in regard to amending
laws in force, very concisely states the proper rule to be applied in determining the validity of
a statute in this respect: "But where, as in this case, the new act is not complete, but refers
to a prior statute, which is changed, but not repealed, by the new act, so that the full
declaration of the legislative will on the subject can only be ascertained by reading both
statutes, only obscurity and tendency to confusion will be found, which constitutes the
vice prohibited by this section of the Constitution."
30 Nev. 353, 358 (1908) State v. Gibson
But where, as in this case, the new act is not complete, but refers to a prior statute, which is
changed, but not repealed, by the new act, so that the full declaration of the legislative will on
the subject can only be ascertained by reading both statutes, only obscurity and tendency to
confusion will be found, which constitutes the vice prohibited by this section of the
Constitution. You cannot get to the declaration of the legislative will unless you read both
section 151 of the criminal practice act and section 2 of the statute of 1907, because the act of
1907 nowhere says: If the witness be out of the state or dead or sick or his personal
attendance cannot be had in court. The foundation, therefore, upon which to make the
testimony admissible at all, is not section 2, which must be read with section 151, supra. The
two acts must therefore be read together. Therefore section 2, supra, is unconstitutional,
because it is not a complete act in itself, nor is it amendatory of section 151, supra, because
not passed as an amendatory act, nor set out at length, nor renacted. The title nowhere speaks
of amending section 151, supra, nor does it anywhere speak of testimony, nor the use of the
testimony when taken, nor its effect or purpose at a trial. The use of the words upon the
hearings of preliminary examinations certainly cannot convey any idea of amending section
151, supra, or that the stenographer's notes or transcripts shall be testimony, or how, or when,
or under what circumstances the same can be used at the trial.
In the light of the principles there can be no reasonable doubt, we think, that so much of
the act, and the act amendatory thereof, as is relied on in the present case, is repugnant to the
Constitution, and therefore void. * * * We do not see how argument can make plainer the
invalidity of the act in the particular mentioned. It gave not the remotest intimation of the
provisions of the act relied on here, which are foreign to the subject expressed in the title; and
to sustain the act in its entirety would be, in effect, by judicial construction, to eliminate from
the Constitution one of its most important provisions, or at all events, to seriously impair its
usefulness. This the courts have no power to do.
30 Nev. 353, 359 (1908) State v. Gibson
(Fidelity Co. v. S. V. R. R. Co., 86 Va. 1, 9 S. E. 759, 19 Am. St. Rep. 858.)
And Judge Cooley says: It is no answer to say that the title might have been made more
comprehensive, if, in fact, the legislature had not seen fit to make it so. (Cooley, Const. Lim.
7th ed. p. 212.)
The same doctrine as to restrictive title to acts under our Constitution is fully indorsed by
our supreme court in State v. Hallock, 19 Nev. 384.
In Henderson v. London Ins. Co., 135 Ind. 23, 34 N. E. 565, 20 L. R. A. 827, 41 Am. St. Rep.
410, the Supreme Court of Indiana, under the same constitutional provision as our own, says:
If the subject is composed of two or more essential elements, the expression of one of such
elements in the title would not suffice. The absence of one of such elements in the title would
be misleading, and might be as pernicious as the evils sought to be obstructed by the
Constitution. If the purpose of the act of 1907 is to make the stenographer's transcript
testimony, there is an entire absence of any such element in the title. No one expects, in
reading the title of this act, that section 2 will make the stenographer's transcript testimony.
The only purpose one would expect in reading the title would be the appointment of a
stenographer and fixing his compensation.
In State v. Nomland, 3 N. D. 427, 57 N. W. 85, 44 Am. St. Rep. 572, the Supreme Court
of North Dakota says, quoting from Sutherland on Statutory Construction: It is not enough
that the act embraces but a single subject or object, and that all its parts are germane. The title
must express that subject, and comprehensively enough to include all the provisions in the
body of the act. It is manifest that the title to the act of 1907 does not express or include the
subject-matter embraced in section 2.
Our supreme court, in the case of State ex rel. Wilson v. Stone, 24 Nev. 308, has said:
That a compliance with this provision of the Constitution is essential to the validity of every
law enacted by the legislature has been so often decided by this court that it is not worth
while to cite cases."
30 Nev. 353, 360 (1908) State v. Gibson
cases. Viewed in the light of the foregoing authorities, and from a mere reading of section 17
of article IV of the Constitution of Nevada, it is manifest that the title to this act under
consideration is not broad enough to include section 2; and, as the act is not complete in
itself, it cannot amend section 151 of our criminal practice act. The transcript of the testimony
of Powell was not, therefore, admissible in evidence, because of the unconstitutionality of
section 2 of said act, which section is void and of no effect; and, not being admissible under
any other phase of the law, the admission of such testimony was of such prejudice to the
defendant that it amounts to reversible error.
The judgment and order of the lower court denying defendant a new trial are reversed, and
said cause remanded for a new trial.
____________
30 Nev. 360, 360 (1908) Marino v. Williams
[No. 1748.]
FRANK MARINO, Respondent, v. LEE WILLIAMS and
HENRY WEBER, Appellants.
1. Landlord and TenantSublettingRight to Sublet. Where a lease was given with a privilege of renewal for a
like term at a rental to be determined by appraisers, the lessees having power to sublet or sell their
interest in the term, any agreement or sublease the lessees might make would not bind the lessor beyond
the first term, unless the original lease was renewed under the term thereof.
2. SameRenewalExercise of Option to RenewWaiver by Lessor of Notice. Where a lease was given for a
term, with a privilege of renewal at a rental to be determined by appraisers, the lessor, by joining in the
appointment of appraisers two days after the expiration of the lease, thereby waived the right to notice
by the lessees of their exercise of the privilege of renewal, or to object that the request for the
appointment of appraisers had not been made in time.
3. SameRight of Lessee to Renew. Where a lease was given for a term, with the privilege of renewal, at a
rental to be determined by appraisers, the lessees having power to sublet, the lessor could neither
require nor refuse a renewal by the lessee; the latter being entitled either to demand a renewal or
surrender the premises.
4. SameSurrender by LesseeLessor's Obligation to Sublessee. Where a lease was given for a term, with a
privilege of renewal, the lessees having power to sublet, and the lease containing no provisions for
forfeiture for failure to pay rent, if the lessor voluntarily accepted a surrender of the lease before the
expiration of the term, he thereby obligated himself in the place of the lessee to subtenants for the
remainder of the term, and if there had been a renewal of the lease a similar obligation would attach
during the renewed term.
30 Nev. 360, 361 (1908) Marino v. Williams
5. SameRenewal by LesseeObligation to Renew. Where a lease was given for a term with the privilege of
renewal, at a rental to be determined by appraisers, the lessee is not bound to exercise the privilege of
renewal until the rental value had been fixed by the appraisers, and then, if he deemed it too high, could
surrender the lease, and, in the absence of a request for renewal by the lessee, either before or after the
appointment of appraisers, merely joining in their appointment, did not amount to a renewal or a
demand therefor by the lessee.
6. Same. If a lease were to run for two years at a specified rental, and for an additional two years at a rental to be
fixed by appraisers, at the end of the first two years, the parties would be bound by the action of the
appraisers in fixing the rental; but, if the original lease simply gave the lessee the privilege of renewing
at the end of the first term, he would not be bound to renew if not satisfied after the appraisement.
7. SameAssignees or SubtenantsAssignees of Part of Tract. Where a lease was given for a term, with the
privilege of renewal, the lessees having the power to sublet, if the original lease did not provide for
renewal on a part of the land, it is immaterial whether a sublease be construed as a sublease or an
assignment of a part of the premises, as the subtenant for such part cannot demand a renewal in either
case.
8. Same. Where a lease was given for a term, with the privilege of a renewal, the lessee having the power to
sublet, if the subtenant had an assignment of the whole of the premises, he could demand a renewal on
the whole of the premises in the same manner as the lessee.
9. SameAgreement by Lessor. Where a lease was given for a term, with the privilege of renewal, the lessee
having power to sublet, if the lessor join in a sublease of a part of the premises with privilege to the
subtenant of renewing, the privilege of renewal on a part of the premises could be enforced by the
subtenant against the lessor and his successor in interest.
10. InjunctionPreliminary InjunctionDiscretion of CourtGrounds. In an action to compel defendant to
renew a sublease, plaintiff claiming to be entitled to a renewal under the lease, if the trial court
entertained serious doubts regarding plaintiff's final right to have a restraining order, a temporary
injunction was properly granted to run until further order of the court, and its dissolution was properly
refused until such order.
Appeal from the District Court of the First Judicial District of the State of Nevada,
Esmeralda County; F. P. Langan, Judge.
Action by Frank Marino against Lee Williams, et al. From an order refusing to dissolve a
preliminary injunction issued on the complaint, defendants appeal. Injunction set aside and
dissolved. Petition for rehearing. Denied.
The facts sufficiently appear in the opinion.
30 Nev. 360, 362 (1908) Marino v. Williams
Detch, Carney & Stevens, for Appellants:
I. We concede that if the instrument from Walker and Baldwin to Wollner & Co. was in
fact and in law an assignment of the entire contract so that Wollner & Co. had become
substituted in the place of Walker and Baldwin, plaintiff as the assignee of Wollner & Co.
could maintain this action, and we would not be here contending otherwise. Our contention
is, however: FirstThat the instrument from Walker and Baldwin to Wollner & Co. is a
sublease, so called and understood by the parties, and cannot under the authorities be
construed as an assignment. In order to constitute an assignment the whole term and whole
estate must be granted. (McNeil v. Kendall, 128 Mass. 245.) Whereas a lessee leases a part
of the premises to another, for the remainder of his term, with easements in the other part, this
is an underlease and not an assignment. In the case at bar, Walker and Baldwin sublet to
Wollner & Co. a specific portion of the entire premises and an easement in another portion,
thus bringing it within the rule laid down in McNeil v. Kendall. There is no contention that
either Wollner & Co. or the plaintiff ever paid any rent to the lessor, Williams, or that he in
any way ever recognized them as assignees. Again, we say that the instrument cannot be
construed as an assignment for the reason that it contains different covenants for those in the
original lease, particularly the covenant relative to renewal. The original lease provides for
the renewal of the lease of the entire premises, while the sublease provides for a renewal of
the lease on a subdivision. This constitutes a new and independent contract on the part of the
lessees, Walker and Baldwin, that they will renew the lease on a subdivision of the premises.
The original lease authorizes the lessees to sublet the premises, or to sell and convey their
interest therein. They could do either. They elected to sublet a portion of the premises with a
reservation of an easement in a portion of the premises sublet. Wollner & Co. elected to take
a sublease instead of purchasing the interests of the lessees in the term, as expressly stated in
the instrument itself as shown by the last three lines of the granting clause, to wit: This lease
being a sublease of a portion of the ground described in lease of date November 19,
1904."
30 Nev. 360, 363 (1908) Marino v. Williams
being a sublease of a portion of the ground described in lease of date November 19, 1904. It
would seem that there is nothing in this contract for the court to construe. The parties
themselves have agreed as to the character of the instrument, and the court will not give it a
different construction in favor of either of the contracting parties. Wollner & Co. signed the
instrument, which they expressly declare to be a sublease. Neither Wollner & Co. nor their
assignees can be heard to say that it is not a sublease, no matter what the court might construe
the instrument to be in favor of one who was not privy to the contract.
II. The amended complaint fails to show that the lessor agreed to renew the lease on a
subdivision of the entire premises. The original lessor never contracted for such a renewal,
and the lessees could not enforce a renewal of that kind.
III. In appointing appraisers after the expiration of the original term Williams simply
demonstrated his willingness to grant a new lease, in compliance with the privilege granted in
the old lease, or that he was willing to execute a new lease upon such rental as might be fixed
by appraisers entirely independent of the old lease. In either case an acceptance by Walker
was necessary, and a new lease executed. (Jones on Landlord and Tenant, 338.)
IV. To grant the relief demanded by the plaintiff in this action the court must first make a
contract for the parties and one which would be unfair and unconscionable. (Long v. Daniels,
63 Am. Dec. 477; Story's Eq. Jur. 742-746; Johnson v. Hubbell, 66 Am. Dec. 773; Willard v.
Tayloe, 75 U. S. 501; Schroeder v. Gemeinder, 10 Nev. 356.)
Thompson, Morehouse & Thompson, for Respondent:
I. It will be seen by the pleadings in the cause that the original lease terminated on
November 19, 1906; that it contained an agreement to renew for another term, by the
appointment of appraisers, fixing the rental value, for the succeeding renewed term. It will
also be seen by the pleadings that such original lease was renewed, because by full consent of
lessor and lessee they appointed appraisers and fixed the rent, and that afterwards the
lessees surrendered.
30 Nev. 360, 364 (1908) Marino v. Williams
fixed the rent, and that afterwards the lessees surrendered. Counsel in their brief say: Walker
declined to accept such renewal upon the terms so fixed by the appraisers and delivered
possession of the premises held by him to the defendant, Williams. This statement is outside
the record and is immaterial because it matters not in this cause what Walker did after the
lease was renewed as per the terms and agreements thereof, for the terms of the lease are
with a privilege of a renewal for another two years, from and after the expiration of the first
two years, at a rental per month to be determined by a board of three arbitrators or appraisers,
one to be selected by each party, and the third to be chosen by those two. This is the
averment of the amended complaint, and not denied in the answers. This was done, as
appears by the complaint and admitted by the answers. Therefore the original lease was
renewed and stood as a valid lease for two years more. True, it would ordinarily be the duty
of the tenant to elect the renewal within the term, or before the lease had expired, as avowed
in the amended complaint, but if he did not do so, and both lessor and lessee acted under the
lease, and consent to appoint appraisers under the lease, and carry out its provisions, neither
can afterwards be heard to deny that the notice of election was not in time, especially when
the rights of other parties are involved in such election. Also, by the act of appointing, etc.,
the lessor waived any notice, and is bound by his acts. (Long v. Starford, 103 N. Y. 274;
Hansauer v. Dahlman, 18 N. Y. App. Div. 475.) Besides, the facts admitted in the answer
constitute a complete renewal.
II. We are suing to divide up a lease and get a part of the land demised, but we are suing
to get our lease upon the whole of the land let to us, and upon the contract of renewal. Now, it
is said in 18 Am. & Eng. Ency. Law, pp. 366-7, When, before surrender, third persons have
acquired an interest in the demised premises, a surrender by the lessee cannot affect their
rights; as to them the surrender operates only as a grant subject to their rights, and the interest
surrendered is considered as to continuing to exist so far as is necessary to preserve their
rights," and the rights of the sublessee are not affected.
30 Nev. 360, 365 (1908) Marino v. Williams
necessary to preserve their rights, and the rights of the sublessee are not affected.
III. Denials of equities do not always entitle the court to dissolve an injunction, but in this
case there are no denials of equities. The injunction is issued as auxiliary to the suit for
specific performance. The injunction is to hold the property in statu quo pending the trial. Its
main purpose is to prevent Weber, the purchaser, after the making of a lease, with interfering
with the property. Then the only denial approaching a denial, which denies an equity, within
the rule of denials, which would authorize the court in dissolving the injunction, upon the
coming in of the verified answer, is the denial, upon information and belief, that, to use the
language of Weber's answer, Defendant further upon information and belief, denies, that on
or before the 19th day of November, 1906, the plaintiff, Frank Marino, gave due notice to the
said Lee Williams and J. F. Walker, and that he elected to take the renewal. And while in
Williams's answer, he denies that Marino gave notice of his election to renew his (Marino's)
lease, he only denies that notice of his (Marino's) election to renew the lease was given to him
(Williams). He does not deny that notice was given to Walker, the only person to whom
Marino had to give any notice, if he had to give notice at all. And in the answer Walker says:
Admits that on or about the 19th day of November, 1906, the plaintiff endeavored to
persuade this defendant to appoint appraisers who should fix the rent due the defendant, Lee
Williams, as well as the subtenants, but denies that he refused to do so. Certainly this is no
denial. Now, then, Weber's denial on information and belief is no denial. (7 Ency. Ev. p. 325;
Lake Shore & M. S. R. Co. v. Felton, 103 Fed. 227; Porter v. Jennings, 26 Pac. 965; Poor v.
Carleton, 19 Fed. C. No. 11,272.)
IV. Dissolution or continuance of a preliminary injunction is a matter within the discretion
of the trial court, and unless it appears that its discretion has been abused the action of the
court will not be disturbed on appeal. (Granis v. Lorden, 103 Cal. 472; Santa Cruz Assn. v.
Grant, 104 Cal. 306; Fowler v. Heinrath, 2 Pac. 248; Marks v. Weinstock, 121 Cal. 55;
Einstein v. Bank of Cal., 137 Cal. 47.)
30 Nev. 360, 366 (1908) Marino v. Williams
Detch, Carney & Stevens, for Appellants, in reply:
I. We rest our case upon two propositions: FirstWe contend, as in our original brief,
that the instrument from Walker and Baldwin to J. Wollner & Co. is a sublease and not an
assignment for reasons and upon authorities cited heretofore. SecondIf the court holds
against us on the first proposition, we then claim that plaintiff, as assignee, cannot compel the
lessor to renew the lease on a subdivision of the entire premises demised in the original lease,
for reasons and upon the authorities also assigned in our original brief. As the respondent still
insists that his right to maintain this suit is based upon a renewal of the lease from Williams
to Walker, which, it is alleged, was surrendered for the purpose of destroying the privity of
estate between Marino, the plaintiff, and Williams, by virtue of the alleged assignment from
Walker and Baldwin to J. Wollner & Co., and from the latter to Marino, we need to notice
only some of the points which are advanced by the respondent in support of such contention,
and to strengthen the position in our original brief by the citation of further authorities. In the
first place, the conclusion pleaded by respondent in the amended complaint to the effect that
the lease was surrendered by Walker, and such surrender accepted by Williams for the
purpose of destroying the privity of estate between Marino and Williams is illogical, for the
reason that if such had been their desire, or purpose, they had simply to let the old lease
expire without taking any action whatever. Williams then had a right to take possession
without reference to any rights of Marino. It does not appear that Walker ever gave notice of
an election to renew the lease, and this should have been done at or before the expiration of
the old lease. (Shamp v. White, 106 Cal. 220; Renoud v. Doskam, 34 Conn. 512; Delashman
v. Berry, 20 Mich. 292.)
II. The answer of the defendant, Williams, positively denies al the equities of the
complaint. The answer of Weber denies some matter upon information and belief, but Weber
was not connected with the transaction in any way and could not be expected to deny
positively any facts alleged to have occurred between the parties prior to the time he became
interested as the grantee of Williams, but he certainly should have the benefit of the
positive denials of his grantor.
30 Nev. 360, 367 (1908) Marino v. Williams
time he became interested as the grantee of Williams, but he certainly should have the benefit
of the positive denials of his grantor.
III. It is true that many authorities hold, and we think properly, that the dissolution or
modification of a preliminary injunction upon the filing of an answer is a matter within the
discretion of the court, but it must be a sound legal discretion, not an arbitrary one. The
allegations of the complaint were insufficient to justify the issuance of the injunction in the
first instance, and the amended complaint furnished no better grounds. It is true the latter
contains an allegation that plaintiff has no plain, or speedy or adequate remedy at law, but
that is simply a conclusion of the pleader. The facts pleaded do not justify such a conclusion.
The facts pleaded do not show that irreparable injury would result from the threatened acts of
defendants, and do not plead insolvency on the part of the defendants.
By the Court, Talbot, C. J.:
This is an appeal from an order made after the filing of the amended complaint and answer
refusing to dissolve a preliminary injunction which had been issued upon the complaint at the
time of the commencement of the action. As facts sufficient to control the questions involved
are admitted by the pleadings, they may be determined without reference to the defenses set
up in the answers, wherein it is alleged that plaintiff declined to renew his sublease, and
refused to join in appointing appraisers to fix the rental therefor, which allegations are
deemed denied, but which, if established on a trial, would prevent plaintiff from obtaining the
relief he seeks in this action.
It is shown by uncontroverted allegations that Lee Williams, one of the defendants, leased
to J. A. Walker and C. A. Baldwin a lot or parcel of land in Goldfield, by an instrument in
writing, which provided: This lease is for a term, commencing on the 19th day of November,
1904, and expiring on the 19th day of November, 1906, with a privilege of a renewal for
another two years from and after the expiration of the first two years, at a rental price per
month to be determined by a board of three arbitrators or appraisers, one to be selected
by the party of the first part, and one by the party of the second part, and a third to be
chosen by these two.
30 Nev. 360, 368 (1908) Marino v. Williams
be determined by a board of three arbitrators or appraisers, one to be selected by the party of
the first part, and one by the party of the second part, and a third to be chosen by these two.
* * * This agreement shall bind the heirs, executors and administrators of the parties hereto,
with full power to sublet the same, and to sell and convey the interest in said term, owned by
the party of the second part.
On May 4, 1905, Walker and Baldwin sold and assigned, or sublet, the full term in their
lease to a part of the demised land to J. Wollner & Co., who on the 12th day of October,
1905, assigned to plaintiff their interest or sublease, which contained a provision for a
renewal for an additional two years from the 19th day of November, 1906, similar to the one
in the original lease. Prior to that date Baldwin had sold and assigned his interest to Walker.
It is also alleged in the amended complaint: That said Lee Williams and said Walker
refused to appoint appraisers or to comply with the covenants and conditions of said lease to
and with plaintiff; but, without the knowledge or consent of plaintiff, they, the said Lee
Williams and J. F. Walker, on or about the 21st day of November, 1906, appointed at their
own instance appraisers, who appraised and fixed the monthly rental of the whole of said
lands and premises, as leased to said Baldwin and Walker, in the sum of $400 per month, and
failed and neglected to appraise and fix the monthly rental of the lands and premises occupied
and possessed by the plaintiff herein. * * * That after said appraisement so made by said
Williams and Walker, * * * the said Walker surrendered his said lease to said Williams,
intending, as plaintiff is informed and believes, to seek thereby to destroy the privity of estate
between plaintiff and said Williams, and the said Williams took and accepted the surrender
thereof, as plaintiff is informed and believes, with the intent and purpose to destroy the
privity of estate between plaintiff and said Williams. But plaintiff avers: That by reason of the
appraisement so made by the said Williams and said Walker, said Williams elected to
continue said lease, and is estopped to deny the privity of estate growing out of the
assignment of the part of the lease by said Walker and Baldwin to said J.
30 Nev. 360, 369 (1908) Marino v. Williams
Wollner & Co., to this plaintiff, and that this plaintiff was and ever since the 4th day of May,
1905, up to the sale of said land and premises, to Henry Weber, as hereinafter stated, the
lawful tenant of said Lee Williams and J. F. Walker, and possessed and entitled to the
possession of the lands and premises described in Exhibit A.' That some time in the month of
December, 1906, the said Lee Williams sold and transferred the lands and premises leased to
said Walker and Baldwin to defendant Henry Weber, he, the said Henry Weber, then and
there having full knowledge of the terms and conditions of plaintiff's lease, and his right to a
renewal thereof as herein stated, and took and accepted said lands and premises subject to
said plaintiff's lease and the right to the renewal thereof, and plaintiff avers that he has now,
and ever since the purchase of said lands and premises by said Henry Weber had, a good and
valid lease on so much of said land and premises purchased by said Henry Weber from said
Lee Williams as is described in Exhibit A.' That the term of said lease begins November 19,
1906, and ends November 19, 1908. And that said Williams and Weber should appoint
appraisers to and with said plaintiff, and fix the monthly rental of said lease, and accept from
plaintiff the payment thereof.
The plaintiff demanded a renewal of his sublease and tendered $175, which he alleged to
be the reasonable monthly value of the part of the premises occupied by him, and also made
two tenders during two months of $400 each. Under the circumstances related, was the
defendant Williams, or his grantee, Weber, under any obligation to renew the sublease on the
part of the premises held by plaintiff?
Although the holders of the original lease were authorized to sublet, any agreement they
made would not hold the owners of the property beyond the first term of two years, and
subleases would not be binding against the owners after the 19th day of November, 1906,
unless the original lease was renewed. If Williams and Weber and the property are to be held,
it must be by reason of some agreement, act or omission on their part sufficient to create a
liability against them, and not upon any covenant made by Walker and Baldwin standing
alone.
30 Nev. 360, 370 (1908) Marino v. Williams
Baldwin standing alone. No doubt, by joining in the appointment of appraisers two days after
the expiration of the lease, Williams waived the right to any notice for that purpose, or to
object that the request for the appointment of appraisers had not been made in time.
The sublease contains a clear provision for a renewal, but it was not signed nor assured by
Williams or Weber against whom relief is sought, and it becomes necessary to consider
whether there was a renewal of the original lease, and whether Williams made any agreement
or performed any act, which would be binding upon him or the property after the expiration
of the original lease which he had executed. Therein he had given the holder the option or
privilege of renewal at a rental to be fixed by appraisers. Upon such expiration he could
neither command nor refuse a renewal. He was subject to the will and pleasure of C. W.
Walker. If the latter demanded a renewal of the lease, he would be bound to grant it; but if,
instead of requesting a renewal, Walker offered to surrender the original lease and possession,
Williams had no alternative but to accept the surrender, unless he abandoned the property, for
Walker, at least so far as his obligations ran to Williams, was free to not exercise the privilege
of renewal, and to decline to bind himself to pay rent, or to assume the responsibilities of a
tenant for a renewed term. Upon the surrender of the lease and possession by Walker,
Williams, being in no position to compel a renewal and the payment of rent for a further term
of two years on the whole of the property to which he would have been entitled, if Walker
under his privilege had taken a renewal, was under no obligation to renew a sublease on part
of the property, something which he had never agreed to do.
In accordance with the contention of respondent, it may be conceded, for the purposes of
this case, that under the circumstances existing here, and under a lease containing no
provision for forfeiture upon failure to pay rent or for other cause, the voluntary acceptance of
a surrender of the lease, and of possession by the landlord, may obligate him in the place of
the lessee to subtenants for the remainder of the term, and that, if there is a renewal of the
lease, a similar obligation attaches during the renewed term.
30 Nev. 360, 371 (1908) Marino v. Williams
obligation attaches during the renewed term. So far as is shown here, there was no execution
of, nor demand for, a renewal, and the term and the leasehold interest in the property as far as
granted by the owner had expired. It is urged that the appointment of appraisers by Williams
and Walker to fix the rental value amounted to a renewal; but on reflection we believe that
Walker was not obliged to exercise his privilege of a renewal at a rental value to be fixed by
appraisers, until that value had been ascertained, and then, if he deemed it too high, he could
surrender the lease and premises, instead of taking a renewal which was subject to his option.
Formally, a renewal lease could not have been drawn upon the mere appointment of the
arbitrators, nor until after the amount to be inserted for rent had been fixed by them. As it
does not appear that there was any request for a renewal after the amount had been
determined, nor before, in the absence of such request we conclude that the mere joining in
the appointment of appraisers did not amount to a renewal nor to a demand for one, and,
consequently, that, after the expiration of the original lease, there was no privity of contract
between the owner of the premises and the holder of the sublease. If the lease had provided
that it was to run for two years at a specified sum, and for an additional two at a rental to be
fixed by appraisers, at the end of the first period the parties would have been bound by the
action of the appraisers; but the words quoted gave the privilege or option to the holder of the
lease, which did not make it incumbent upon him to take the renewal, if he was not satisfied
with the new rate. By surrendering possession, instead of demanding a renewal after
appraisement, the provision for a renewal terminated and became ineffective. The original
lessor or owner of the property was no longer protected by the original lease, and as no
renewal was executed or demanded, and he could enforce none, which would enable him to
collect the rent from the holders of the original lease for the full term, there was no obligation
requiring him to renew the sublease on only a part of the premises covered by the lease he had
given. As indicated by the cases cited for appellants, courts have distinguished and often held
that a demand for a renewal is necessary, when the lease gives the privilege of a renewal,
when none would be required, if it merely provided for an extension of the lease at the
holder's option.
30 Nev. 360, 372 (1908) Marino v. Williams
renewal is necessary, when the lease gives the privilege of a renewal, when none would be
required, if it merely provided for an extension of the lease at the holder's option.
Much of the briefs pertain to the question whether the sublease, so called in that
instrument itself, being on a part of the premises, and giving an easement on a part of the
remainder for the full term, is a sublease or an assignment, and it is claimed that, as an
assignment, it gives the right of renewal; but we deem this question immaterial, for, whatever
the language or construction, the holder of the sublease can have no greater rights against the
lessor as owner of the premises then were given by the original lease, which did not provide
for a renewal on a part of the land. It may be conceded that, if plaintiff had an assignment of
the whole of the original lease, he could have demanded a renewal on the whole premises,
and that, if Williams had been a party to the sublease, its provisions for a renewal on a part of
the premises could be enforced against him and his successors in interest; but, under the facts
stated, we are unable to see how they can be required to fulfill this covenant in the sublease,
when it is different from any in the original lease.
As apparently the allegations and admissions in the pleadings are conclusive, and in view
of the near approach of the expiration of the time claimed for a renewal, the delays of
litigation, and the conditions, we have considered the question presented as probably
controlling on the merits, which is in consonance with the briefs and argument. Nevertheless,
it may be said that, under the circumstances, the temporary injunction to run until the further
order of the court was not improperly granted, and that its dissolution was not erroneously
refused, if the judge entertained serious doubts regarding the final right of the plaintiff to have
a restraining order. Courts have often held that an injunction ought not to be granted unless
the applicant shows clearly that he is entitled to one, but other tribunals take the view that it
depends largely upon a sound discretion and the circumstances, such as the relative
inconvenience and injury that may result to the parties, and that where there is grave doubt in
relation to the law or the facts a temporary injunction may be granted to prevent great
hardship or irreparable damage, until there is a hearing and determination.
30 Nev. 360, 373 (1908) Marino v. Williams
to prevent great hardship or irreparable damage, until there is a hearing and determination.
(Harriman v. Northern Securities Co., 132 Fed. C. C. 464, and cases there cited.)
Now, as it no longer appears, after careful consideration, that the plaintiff is entitled to it,
the district court is directed to set aside and dissolve the preliminary injunction.
On Petition for Rehearing.
Per Curiam:
Petition for rehearing denied.
____________
30 Nev. 373, 373 (1908) Short v. Read
[No. 1750.]
W. C. SHORT, Respondent, v. T. A. READ, Appellant.
1. Public LandsRights Acquired by Occupancy. Entry on public lands as a homesteader and application to the
government for a survey preliminary to making a proper application to purchase the land and obtain a
patent therefor do not show a better right to the land by connecting such homesteader with the
government title than that of one in possession where such entry was by trespass.
Appeal from the District Court of the Second Judicial District of the State of Nevada,
Washoe County; John S. Orr, Judge.
Ejectment by W. C. Short against T. A. Read. From a judgment for plaintiff and an order
denying a new trial, defendant appeals. Affirmed.
The facts appear sufficiently in the opinion.
Abe Darlington, for Appellant:
I. Appellant made a peaceable entry upon the land and his rights attach from the time that
he settled thereon. By section 3 of the act of May 4, 1880 (21 Stats. 141), the right of a party
entering land under a homestead law was made to relate back to a time of settlement.
(Maddox v. Burnham, 156 U. S. 546.) The claim of a defendant (who has purchased rights
of a prior professor) to a right of premption stands in no better plight than if there had been
no prior occupant of the lands. His own settlement can alone be considered. He had no claim
to the lands when the plaintiff settled upon them and he acquired none by his purchase of
parties who had previously occupied them."
30 Nev. 373, 374 (1908) Short v. Read
parties who had previously occupied them. (Quinby v. Conlan, 104 U. S. 420.) Had
respondent ever had possession, his position would be no better. Mere possession of public
lands without title does not enable party to sue one who enters upon same, more particularly
when party entering derives his title from proper officers of government. (Burgess v. Gray,
16 How. 65, approved and applied in Oaksmith v. Johnson, 92 U. S. 347, denying recovery in
ejectment to plaintiff who relied upon forty years' possession of public lands.) One who holds
possession of public lands without endeavoring to secure title under one of the public land
laws is on the land in violation of law and without any legal right, and, in such case,
occupation is mere trespass, and the party will not be protected therein against one who has
made a valid adverse claim, and such illegal possession cannot defeat the entry thereof by a
qualified person who has complied with law in every respect except the intrusion upon the
possession of another. (Osborne v. Haven, 1 Copp, 540; Molyneux v. Young, 1 Copp, 560;
Nickals v. Burbank, 1 Copp, 566; Powers v. Forbes, 1 Copp, 563; Marks v. Bray, 1 Copp,
469; Coon v. Freel's Heirs, 16 L. D. 202; Wheeler v. Rodgers, 28 L. D. 250; Haven v. Haws,
63 Cal. 514; Whittaker v. Pendola, 78 Cal. 296; Kitts v. Austin, 83 Cal. 167; Act of February
25, 1885, 23 Stats. 321.) An enclosure of public land made in violation of the statute is no bar
to the acquisition of a settlement right by another. An intending settler has the right to cut a
fence to gain access. Intent of act of February 25, 1885, is to forbid the enclosing of any
portion of the public domain, unless made in pursuance of a bona fide intention to claim the
land enclosed under the land laws. (Jones v. Kirvy, 13 L. D. 702.) In the above case, the party
enclosing had purchased a script entry of part of the land.
II. In this case, as we have already suggested, the respondent never, at any time, had
possession of any portion of the island, and we may add that none of his so-called
predecessors ever had the possession contemplated by the law, ever resided upon the land or
paid any taxes thereon, or made the improvements required by the possessory act to authorize
them to bring suit for possession, and the trial judge expressly finds that they did not
comply with the requirements of the possessory act.
30 Nev. 373, 375 (1908) Short v. Read
authorize them to bring suit for possession, and the trial judge expressly finds that they did
not comply with the requirements of the possessory act. So far as we are advised, it has never
been held by an appellate court that an action, the foundation of which is prior possession,
could be maintained by one who has never had possession. In the case of Sunol v. Hepburn, 1
Cal. 254, this question is elaborately discussed and therein the court says, at page 260: To
enable the plaintiffs to maintain the action they must establish two facts: FirstThat they
were in actual possession at the time of the intrusion complained of; and, second, that they
were entitled to be reinstated in the possession from which they claim to have been illegally
evicted. It results from this, that, if they were not in possession at the time of the defendant's
entry, they have never been in a position which would enable them to maintain this suit. * * *
The conveyance to Sansevaine and Naglee cannot carry back their possession, either severally
or jointly, with Sunol, beyond the period when they derived their title under it, and an entry
on the land prior to the fifteenth day of December could not have been an intrusion on the
possession of Sansevaine and Naglee. (Siglar v. Van Riper, 10 Wend. 414; Buxton v. Carter,
11 Mo. 481.)
Cheney, Massey & Price, for Respondent:
I. It appears from the undisputed testimony that the plaintiff and his grantors and
predecessors in interest had been in the actual possession of the property and had cultivated
the same for many years prior to the commencement of this suit. It further appears that the
defendant knew that this island was in the possession of plaintiff and his grantors when he
entered thereon. It further appears that no entry could be made upon the island except by
trespass upon the lands of Banta, the immediate grantor of the plaintiff, and that the defendant
in entering upon the island trespassed upon other lands as well as upon the lands in
controversy. It further appears from the testimony that it was not necessary to enclose the
island by fences for the reason that the river to the north and east and west was ample
protection, and the enclosed lands of Mr.
30 Nev. 373, 376 (1908) Short v. Read
and the enclosed lands of Mr. Banta lying to the south of the river protected the land and the
crops in that direction. It further appears that entry could not be made upon the land except
through the Banta land, and that the appellant and defendant in this action surreptitiously,
after night, with full knowledge of the claims and possession of the plaintiff and his grantors,
by trespass entered thereon. It further appears from the testimony that the defendant and
appellant had not made an entry of this island, or in any manner connected himself with the
title of the government; in fact, there was no method known to the law by which appellant
could connect himself with the government title to this land; and it appears that he knew what
the record disclosed as to the right of the respondent under the Hatch desert land entry when
he went upon the lands in controversy.
II. The judgment and order appealed from were right. When the plaintiff had shown
priority of possession and ouster by the defendant he was entitled to recover unless the
defendant showed a superior or better right to possession himself. (McFarland v. Culbert, 2
Nev. 280.) The defendant not having connected himself with the title of the government, and
being a mere trespasser, the prior possession of the grantors of the respondent was sufficient
to authorize the judgment and decree. The actual possession of the land, its irrigation and
cultivation and subjecting it to the dominion of the plaintiff and his grantors, was sufficient to
protect the plaintiff in his rights against the defendant, a naked trespasser, who had not
connected himself in any manner with the government title. (Courtney v. Turner, 12 Nev.
345.) Neither was it necessary to fence the land in order to reduce the same to the actual
possession of the plaintiff as the other means indicated in the statement were effectual for the
protection of the growing crops. (Courtney v. Turner, 12 Nev. 345; Staininger v. Andrews, 4
Nev. 59.) The supreme court of this state in the last case cited has defined actual possession.
In that case the court says: Actual possession of land is the purpose to enjoy, united with or
manifested by such visible acts, improvements or inclosures as will give to the locator the
absolute and exclusive enjoyment of it. The fact that the grantors of the plaintiff in this
action many years ago entered upon this land, reclaimed it, irrigated it and cultivated it,
and were irrigating and cultivating it at the time the entry was made, and that its
location, with reference to the river and other lands belonging to Banta, was such as not
to require fencing for protection was sufficient to show actual possession and occupancy,
within the meaning of that term, in Banta at that time of the unlawful entry.
30 Nev. 373, 377 (1908) Short v. Read
fact that the grantors of the plaintiff in this action many years ago entered upon this land,
reclaimed it, irrigated it and cultivated it, and were irrigating and cultivating it at the time the
entry was made, and that its location, with reference to the river and other lands belonging to
Banta, was such as not to require fencing for protection was sufficient to show actual
possession and occupancy, within the meaning of that term, in Banta at that time of the
unlawful entry. The supreme court of this state has also decided that a tenant in common
cannot acquire a right of homestead to government land of which he is in possession for
himself and his cotenant. (Reinhart v. Bradshaw, 19 Nev. 254.) The rights of an entryman,
under the desert land act of 1877, are assignable. (Phillips v. Carter, 67 Pac. 1031.) Short's
deed from Banta gave him all the possessory rights of his grantor. (Brown v. Killabrew, 21
Nev. 439.) The defendant is a mere intruder who acquires no rights by his wrongful entry
upon lands in plaintiff's possession. (Nickals v. Winn, 17 Nev. 188.)
III. In this case it was sought to justify the trespass upon the ground that Congress had passed
an act making it unlawful to fence the public lands. This court in this last case declared that
the act of Congress did not permit a private person to dispossess the occupant of an unlawful
closure. In fact, only the government of the United States can complain if the title is still
absolutely in the government of the possession of the plaintiff, and certainly the defendant is
in no position to take the law into his own hands and seek by unlawful means to connect
himself at some future day with the title of the government. This court in a later case declared
that one who has purchased and received a conveyance of the improvements and possessory
right upon unsurveyed public lands is entitled to recover in ejectment against one who entered
by his permission and afterwards refused to surrender the possession, and that where such one
entered with the consent of the owner of the enclosure and possessory right he could not
refuse to surrender claim and right of possession on the ground that the title was in the United
States, and that it was immaterial that by making an application for the land as a homestead
he intended to connect himself with the government title.
30 Nev. 373, 378 (1908) Short v. Read
government title. (Brown v. Killabrew, 21 Nev. 438.) The case at bar is much stronger than
the case last cited. Here the entry was not peaceable or with consent, but was a trespass, while
in the last-cited case the entry was peaceable and the wrong was in the refusal to surrender it.
We quote from the last decision: And the mere fact that the defendant alleged that at some
future time he intended to connect himself with the government title by making application
for the land as a homestead did not give him any right as against the plaintiff who was
rightfully in possession of the land at the date of the alleged ouster, for when no better title
than possession is shown, he who is prior in time is prior in right.
IV. In the case at bar the land was still unsurveyed land of the United States in the
possession of the plaintiff under a desert land entry which had not been perfected, and also
upon the proof in his possession or right of possession upon a simple possessory title which
was good as against every person in the world except the government. The plaintiff in this
case was connected with the government's title by the desert land entry, but if a defect existed
in that entry his cultivation and possession of the property was such that under the former
decisions in this state a mere trespasser could not initiate any title by such trespass, and the
ouster entitled to plaintiff, under the decisions cited, to maintain ejectment and, upon the
proof of the facts of possession, irrigation and cultivation, to a judgment for possession as
against the defendant, who is not an entryman and who could not be an entryman of the same
lands.
By the Court, Norcross, J.:
This is an action in ejectment to recover possession of what is known as Scott Island, in
the Truckee River, near the City of Reno. Trial was had before the court without a jury, and
judgment rendered in favor of plaintiff. Defendant appeals from the judgment and an order
denying his motion for a new trial.
The material facts of the case established at the trial are as follows: The shore land on both
sides of the river adjacent to the island in controversy was surveyed by the government about
the year 1S63, but up to the time of this trial the island had never been so surveyed.
30 Nev. 373, 379 (1908) Short v. Read
ernment about the year 1863, but up to the time of this trial the island had never been so
surveyed. In July, 1877, one A. J. Hatch filed in the United States Land Office at Carson City
his declaration of intention to reclaim the island under the desert land act, and thereupon
received the register's and receiver's duplicate receipt and certificate showing that the first
payment on account of the purchase price of the land had been made. On January 13, 1881, an
application for survey of the island was made, and on the following day all proofs and the
application for survey were sent to the General Land Office at Washington. In 1887, Hatch
conveyed the island together with other land on the south bank of the river adjacent thereto to
one O. Madden. In 1890, Madden conveyed the same property to one A. Banta. On February
23, 1906, Banta conveyed the island in controversy to the plaintiff, respondent herein. It
appears that as early as 1871 Hatch claimed 140 acres of unsurveyed land, including the
island, and filed a possessory claim therefor in the recorder's office in Washoe County,
Nevada. In 1876 or 1877 he constructed a flume across the south channel of the river to the
island. In 1895 another flume was constructed to the island to irrigate it, by Gelmstead,
Banta's lessee. The sagebrush was cleared off, onions and potatoes planted, and the next year
it was seeded to alfalfa. The island had been irrigated and cultivated, and crops of alfalfa
raised upon it by Banta's lessees from 1895 to 1905, and from thirty to forty tons of hay were
harvested annually therefrom, and after the hay was cut it was used as a pasture. Across the
western or upper portion of the island a fence had been constructed, separating a small
portion of the island claimed by one Haydon from the main part of the island lying to the east,
which was claimed by Banta, and there was a fence along the south side sufficient to keep
stock upon the island. On or about the 12th of October, 1905, between 6 and 6:30 p.m., the
appellant Read entered upon the island with a load of lumber, food, and cooking utensils, and
located himself thereon. At the time of his entry there was upon the island, known to him, a
flume for carrying water, ditches, and fences, and he found there a field of alfalfa, and knew
that Banta was growing the alfalfa and was claiming the land.
30 Nev. 373, 380 (1908) Short v. Read
that Banta was growing the alfalfa and was claiming the land. He admitted that he entered
upon the island for the purpose of jumping it. To reach the island appellant was obliged to
go through Banta's inclosed field lying south of the river and adjacent thereto. There is no
evidence that the island at the time the defendant entered upon it was claimed by anyone,
except Hatch and his grantees, Madden and Banta, and there is no contradiction of the
evidence that the island was successively claimed by Hatch, Madden, and Banta, and that it
was cultivated continuously each year from 1895 down to the time of defendant's entry
thereon.
It appears from undisputed testimony that the plaintiff and his grantors and predecessors in
interest had been in the actual possession of the property, and had cultivated the same, for
many years prior to the commencement of this suit. It further appears that the defendant knew
that this island was in the possession of the plaintiff's grantors when he entered thereon. It
further appears that no entry could be made upon the island without consent, except by
trespass upon the lands of Banta, the immediate grantor of the plaintiff, and that the defendant
in entering upon the island trespassed upon other lands as well as upon the lands in
controversy. It further appears from the testimony that it was not necessary to inclose the
island by fences, for the reason that the river to the north and east and west was ample
protection, and the inclosed lands of Mr. Banta lying to the south of the river protected the
land and the crops in that direction. After the defendant entered upon the island, he erected a
dwelling house, and established his family therein, and claims the right to hold the island
under the homestead law. No entry has as yet been made by him in the land office, by reason
of the fact that it is unsurveyed land; but appellant has applied to have a survey made by the
government.
Appellant contends that the court erred in admitting in evidence the quitclaim deed from
A. Banta to respondent, of date February 23, 1906. This contention is based upon the
assumption that appellant's entry upon the island was peaceable, and at the time this deed was
made Banta neither had the possession nor the right of possession, and therefore the deed
could convey nothing and could not prove or tend to prove any of the issues in the case.
30 Nev. 373, 381 (1908) Short v. Read
had the possession nor the right of possession, and therefore the deed could convey nothing
and could not prove or tend to prove any of the issues in the case. A determination of this
question involves the merits of this case. If Banta at the time he gave this deed had either the
possession or the right of possession, the quitclaim deed was sufficient to convey such title as
he possessed. That Banta had possession of the island at the time appellant made his entry
thereon is not open to question and is not questioned. Such possession was good against
every person, unless some one else showed a better right by connecting himself with the
government title. The appellant claims he has done this by entering upon the land as a
homesteader and applying to the government for a survey preliminary to making a proper
application to purchase the land and obtain a patent therefor.
The fatal defect in appellant's position is that his entry upon the land was by trespass. This
court, in line with many authorities, both federal and state, has held that a right to government
land cannot be initiated in this manner. (Nickals v. Winn, 17 Nev. 188; Brown v. Killabrew,
21 Nev. 437; Gonder v. Miller, 21 Nev. 180.) See, also, the recent decision of this court in the
case of Nash v. McNamara, 30 Nev. 114, in which numerous authorities upon this point are
cited.
The judgment and order appealed from are affirmed.
____________
30 Nev. 382, 382 (1908) Hettel v. District Court
[No. 1763.]
ALBERT L. HETTEL, Petitioner, v. THE FIRST JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, IN AND FOR ESMERALDA COUNTY, and the HON. FRANK P.
LANGAN, District Judge, and Judge of Said District Court, Respondent.
1. CorporationsDissolutionReview. One who is a stockholder in and a director of a corporation and who is
the administrator of an estate owning nearly a third of the stock thereof is in his individual and official
capacities interested in and affected by a proceeding under the general corporation law, March 16, 1903,
sec. 94 (Stats. 1903, p. 155), instituted by another stockholder and resulting in ex parte orders dissolving
the corporation and appointing a receiver to wind it up, and he may on certiorari review the same.
2. SameDissolutionJurisdiction of Court. The court cannot, on the application of a stockholder of a
corporation and without notice or hearing, enter orders dissolving the corporation and appointing a
receiver to wind it up, though a statute attempts to confer such authority.
3. StatutesConstruction. A statute must be construed, if possible, so as to give it force and effect.
4. CorporationsDissolutionStatutesConstruction. The general corporation law, March 16, 1903, sec. 94
(Stats. 1903, p. 155), authorizing the court, on the application of the holders of one-tenth of the stock of a
corporation, to dissolve the corporation, and appoint a receiver, where the directors are guilty of
mismanagement, or where the corporate assets are in danger of waste through litigation, etc. and in all
cases * * * directors who have not been guilty of negligence * * * shall have the right to be preferred in
making such appointment, only authorizes the court to dissolve a corporation and appoint a receiver on a
proper showing after all parties in interest have had an opportunity to be heard, and the court can