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51 Nev. 1, 1 (1928) Hunt v.

Johnston
HUNT v. JOHNSTON
No. 2779
May 1, 1928. 266 P. 916.
1. Appeal and ErrorJudgment Against Corporation's Manager for Services Rendered
Corporation Was Required To Be Affirmed Regardless of Pleadings, where Undisputed
Proof Showed Defendant Guaranteed Debt.
In action against president and general manager of corporation for services rendered corporation,
judgment for plaintiff rendered on theory that defendant and corporation were identical would not be
reversed, under Rev. Laws, sec. 5066, where undisputed proof showed that defendant had guaranteed
debt in writing, even though pleadings were defective, since in any event plaintiff was entitled to recover
from defendant on his written guaranty.
2. Appeal and ErrorPlaintiff's Pleadings in Suit Against Manager for Services Rendered
Corporation Held Subject to Amendment on Appeal to Conform to Evidence Defendant
Guaranteed Debt.
In action to recover from corporation's manager under contract of employment for services actually
rendered corporation, in which recovery was allowed plaintiff on theory of identity of corporation and
defendant, amendment of pleadings could be allowed on appeal in accordance with undisputed proof to
effect that the defendant had, in writing, guaranteed the debt, under Rev. Laws, sec. 5066,
notwithstanding alleged inconsistency of causes of action.
C.J.CYC. REFERENCES
Appeal and Error4 C.J. sec. 2640, p. 723, n.89; sec. 3196, p. 1170, n. 33.
Pleading31 Cyc. p. 151, n. 33.
Appeal from Second Judicial District Court, Washoe County; G.A. Ballard, Judge.
Action by R.G. Hunt against E.W. Johnston. From a judgment in favor of the plaintiff the
defendant appeals. Affirmed.
James D. Finch, for Appellant:
While the defendant Hunt denied that he was employed by the corporation, yet the
documentary evidence, which was admitted without contradiction or objection, shows
conclusively that he was so employed, and is supported by the oral testimony of both
appellant and respondent.
The amendment to the complaint offered by respondent was too late for the reason that the
respondent had the letter alleged to be a guaranty of payment in his possession for a long
time prior to the trial of this action.
51 Nev. 1, 2 (1928) Hunt v. Johnston
had the letter alleged to be a guaranty of payment in his possession for a long time prior to the
trial of this action. 16 Cyc. 340; Wright v. Frank, 61 Miss. 32 (cited in 16 Cyc. 340, note 5);
Keller v. Blasdel, 2 Nev. 162; 31 Cyc. 393; 31 Cyc. 391; Hays v. Turner, 23 Iowa, 214 (cited
in 31 Cyc. 409); Cole v. Thompson, 134 Iowa, 685, 112 N.W. 178, 31 Cyc. 410; Saltus v.
Genin, 16 N.Y. Sup. Ct. (3 Bosw.) 639, 17 How. Prac. 390.
The proposed amendment to the complaint was not made in compliance with the provision
of sec. 5084, Revised Laws of Nevada, 1912.
The alleged promise of Johnston to pay the alleged debt of Long Valley Land &
Development Company to Hunt is void under the statute of frauds because the consideration
for the alleged promise is not expressed in the writing. (See sec. 1075, Rev. Laws of Nevada,
1912.)
Appellant was necessarily the agent of said corporation in all his dealings with Hunt, and
Hunt could not charge appellant personally. Johnson v. Armstrong, 83 Tex. 325, 29 Am. St.
Rep. 648; 185 N.W. 594, cited in 4 Fletcher Cyc. Corps., sec. 2522.
Barry & Barry, for Respondent:
It is well settled that where there is a conflict in the testimony the appellate court will not
disturb the finding, and that where there is any testimony to support a finding the appellate
court will leave it to the trial court. See Anderson v. Feutsch, 31 Nev. 501; Tonopah L.
Company v. Riley, 30 Nev. 312; Wiggins v. Pradere, 32 Nev. 183; McNee v. McNee, 49 Nev.
90.
It appears from the decision that the trial court never did allow the offered amendment to the
complaint.
OPINION
By the Court, Coleman, J.:
This is an action to recover under a contract of employment for services rendered. From a
judgment in favor of the plaintiff the defendant has appealed.
51 Nev. 1, 3 (1928) Hunt v. Johnston
in favor of the plaintiff the defendant has appealed.
The theory of the defendant is that the plaintiff actually rendered to the Long Valley Land
& Development Company the services for which recovery is sought instead of to him. He was
at all times mentioned in the proceedings the president and general manager of the company
and owned personally some property in the vicinity in which the property owned by the
company was situated.
The trial judge took the view that Johnston was the company. In his opinion the trial judge
said:
This case is unique in that it exhibits the facility with which individual and corporate
entities and business can be confounded when the corporation is little more than a diaphanous
garment covering the figure of its dominant component.
It seems that the defendant put up from private funds every dollar that went into the
company during its operations while the plaintiff was employed, and he admitted that he
owned most of the stock of the company.
It is clear that the company owned a large amount of property and that substantially all of
the work done by the plaintiff was upon the property of the company, and we are frank to say
that if the case had been before us for determination in the first instance we are strongly
inclined to think we would have made findings contrary to those made by the trial judge;
however, there is evidence in support of the findings and judgment.
1. But if we were to reverse the judgment it would be at the cost of the appellant and with
an order directing an amendment in accordance with the undisputed proof to the effect that
the defendant had in writing guaranteed the debt. It would be our duty to do this in pursuance
of Rev. Laws, 5066, which 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.
51 Nev. 1, 4 (1928) Hunt v. Johnston
In view of the written guarantee no substantial injustice was done the defendant by the
rendition of the particular judgment, and it is the spirit of the statute that no judgment shall be
reversed for a mere technical error when substantial justice has been done.
2. There is nothing to appellant's contention that the proposed amendment is inconsistent
and hence could not be properly allowed. The following language of Sanders, J., in Nelson v.
Smith, 42 Nev. 302, 176 P. 261, disposes of the point:
Some courts hold that inconsistent causes of action and defenses cannot be pleaded, but
that ruling is based upon the theory that one or the other must be false, and that the pleader
ought to know which is true and which is false, and that he should be compelled to choose
between them; and it has been squarely held by this court that a party may plead inconsistent
defenses, provided they are not so incompatible as to render one or the other absolutely false.
Clarke v. Lyon County, 7 Nev. 81. We think the rule is sustained by both reason and
authority, and see no reason for repudiating the rule heretofore adopted. See, also, 31 Cyc. pp.
150-152.
It is ordered that the judgment be affirmed. Respondent to recover his costs.
On Petition for Rehearing
May 29, 1928.
Per Curiam:
Rehearing denied.
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51 Nev. 5, 5 (1928) Long Valley Land & Dev. Co. v. Hunt
LONG VALLEY LAND & DEVELOPMENT CO. v. HUNT
No. 2780
May 1, 1928. 266 P. 917.
1. AccountBurden of Proof to Show Correctness of Account Rests on Person Making it, in
Action to Compel Accounting.
In action for an accounting, burden of proof to show correctness of account rests upon person making
the accounting, and not on the plaintiff.
2. Appeal and ErrorErroneous and Prejudicial Conclusion Reached by Misapplication of
Rule of Law or Error in Placing Burden of Proof Requires Reversal.
C.J.CYC. REFERENCES
Accounts and Accounting1 C.J. sec. 129, p. 643, n. 22.
Appeal and Error4 C.J. sec. 2948, p. 964, n. 80.
Appeal from Second Judicial District Court, Washoe County, G.A. Ballard, Judge.
Action by Long Valley Land & Development Company, a corporation, against R.G. Hunt.
From a judgment in favor of the defendant the plaintiff appeals. Reversed.
James D. Finch, for Appellant:
When the defendant has been ordered to account or voluntarily, as in this case, renders it,
the burden is on him to establish its correctness.
The court's findings and judgment are nothing else but a finding and judgment that the
defendant Hunt rendered an account. This action was not simply for the rendering of an
account, but was for judgment for any balance found due. The court has failed to find any
balance due either party. Surely the accounts are not even. See Polhemus v. Carpenter, 42
Cal. 375; Ladd v. Tully, 51 Cal. 277; Morenhout v. Barron, 42 Cal. 591; Devoe v. Devoe, 51
Cal. 543; Allison v. Darton, 24 Mo. 343; Farrar v. Lyon, 19 Mo. 122; Bosquett v. Crane, 51
Cal. 505; Rice v. Inskeep, 34 Cal. 225; Bradbury v. Cronise, 46 Cal. 287; McDonald v. M.V.
Homestead Assn., 51 Cal. 210; Snodgrass v. Carlson (Kans.) 232 P. 241; Chetwood v. Calif.
Nat. Bank, 45 P. 407; Baird v. Upper Canal Irr. Co., 257 P. 1060.
51 Nev. 5, 6 (1928) Long Valley Land & Dev. Co. v. Hunt
Barry & Barry, for Respondent:
The court found that the defendant rendered an account to plaintiff and that nothing was
found to be due to plaintiff.
The only point we can make out of this appeal is insufficiency of the evidence to support the
finding of the court. It is an elementary principle of law that where there is a conflict of
testimony, or any testimony to support the findings, the appellate court will not disturb them.
Anderson v. Feutsch, 31 Nev. 501; Tonopah L. Company v. Riley, 30 Nev. 312; Wiggins v.
Pradere, 32 Nev. 183; McNee v. McNee, 49 Nev. 90.
OPINION
By the Court, Coleman, J.:
This is a companion case to Hunt v. Johnston, No. 2779, this day decided. It is an action
for an accounting. The defendant filed an account.
After the evidence was taken the learned judge filed his written decision and ordered
judgment in favor of the defendant. In his written opinion he said:
The defendant rendered an account which is attempted to be falsified in certain
particulars. The evidence in this respect is too vague and indefinite to sustain the burden of
proof. While suspicion is cast on a few items the court cannot of course elevate these to the
dignity of facts, or if it did do so determine the incorrectness in dollars and cents.
1. From this as well as from the findings it clearly appears that the court took the view that
the burden of proof was upon the plaintiff to show the incorrectness of the account. Such is
not the law. The burden rests upon the person accounting. Marvin v. Brooks, 94 N.Y. 71;
Thatcher v. Hayes, 54 Mich. 184, 19 N.W. 946; Fox v. Hall, 164 Cal. 287, 128 P. 749; 1 C.J.
643.
2. When a court reaches an erroneous and prejudicial conclusion by a misapplication of a
rule of law, or by erroneously placing the burden of proof upon the losing party, particularly
where the evidence is about evenly balanced as in instant case, no course is open but to
reverse the judgment.
51 Nev. 5, 7 (1928) Long Valley Land & Dev. Co. v. Hunt
evenly balanced as in instant case, no course is open but to reverse the judgment.
It is ordered that the judgment and order be reversed, with costs.
On Petition for Rehearing
August 7, 1928.
Per Curiam:
Rehearing denied.
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51 Nev. 7, 7 (1928) Menteberry v. Giacometto
MENTEBERRY v. GIACOMETTO
No. 2773
May 2, 1928. 267 P. 49.
1. StatutesConstruction of Statute by Courts of Another State Before Its Enactment by
Legislature of this State, though Not Conclusive, Is Very Persuasive.
Construction given to a statute of another state by courts of that state before statute was adopted by
legislature of this state, though not conclusive on courts of this state, is very persuasive, especially where
construction is reasonable, fair, and just.
2. TaxationNo Notice of Sale of Realty for Delinquent Taxes Is Necessary, in Absence of
Statute.
In absence of statute, no notice of sale of realty for delinquent taxes is necessary.
3. Constitutional LawTaxationStatute Prescribing when Property Shall Be Sold for
Delinquent Taxes Held Sufficient Notice of Time of Sale Without Publication of
Notice to Satisfy Due Process of Law.
Stats. 1919, chap. 229, sec. 3, expressly providing exactly when property shall be sold for delinquent
taxes, gives sufficient notice without further publication of notice of time of sale, as required therein, to
constitute due process of law.
4. CourtsUnited States Supreme Court's Determination of what Constitutes Due Process of
Law Is Binding on State Courts.
Determination of United States Supreme Court as to what constitutes due process of law is binding on
state courts.
5. TaxationPublishing First Notice of Tax Sale Less Than 25 Days Before Sale Held Not to
Invalidate Sale.
Publishing first notice of tax sale less than the 25 days before date fixed for such sale required by
Stats. 1919, chap. 229, sec. 3, held not to invalidate sale under Stats. 1923, chap. 203, sec. 3, providing
that no tax assessed on property or sale thereof shall be held invalid because of irregularity,
informality, omission, mistake, or want of any matter of form or substance in any
proceeding which legislature might have dispensed with in the first place, and
which does not affect substantial property rights of taxpayer.
51 Nev. 7, 8 (1928) Menteberry v. Giacometto
thereof shall be held invalid because of irregularity, informality, omission, mistake, or want of any matter
of form or substance in any proceeding which legislature might have dispensed with in the first place, and
which does not affect substantial property rights of taxpayer.
C.J.CYC. REFERENCES
Courts15 C.J. sec. 317, p. 930, n. 74; sec. 318, p. 932, n. 84.
Statutes36 Cyc. p. 1154, n. 81.
Taxation37 Cyc. p. 1324, n. 13; p. 1479, n. 88.
Appeal from Sixth Judicial District Court, Humboldt County, L.O. Hawkins, Judge.
Action by John Menteberry against P.L. Giacometto and another. Judgment for plaintiff,
and named defendant appeals. Reversed.
Campbell & Robins and J.T. Dunn, for Appellant:
The omission to publish a proper notice of a tax sale for the full twenty-five days, required
by the act of 1919, page 413, was cured by the act of 1923, page 361. The question is, could
the legislature have fixed a shorter time than a twenty-five days' notice previous to the sale,
and still be within the constitution. Other states, having constitutions similar to ours, have
provided for a notice as short as five days before the sale, and we have been unable to find
any decision which holds that such a short notice is violative of any constitutional provision
or of the due process clause of the fourteenth amendment to the federal constitution.
By the act of 1923 the burden of showing the invalidity of a tax deed was shifted to the
shoulders of the taxpayer, or the person who sought to void the deed. In addition, the same act
went farther and sought by its curative provisions to set at rest tax titles, which might be
based upon the nonobservance by the taxing officials of certain technical proceedings. It
sought to accomplish that purpose of repose in tax titles, by denying to possible objectors the
right to set such deeds aside, unless they could show that their substantial property rights
had been affected.
The statute, of which Croteau is conclusively presumed to have notice, advised him that on
the third Monday of July, 1924, his property would be sold for taxes if he did not pay them.
51 Nev. 7, 9 (1928) Menteberry v. Giacometto
Monday of July, 1924, his property would be sold for taxes if he did not pay them. He failed
to pay the taxes, and at the time designated by law the proper official at the proper place sold
the property as prescribed by law. A whole year went by, the mortgage fell due in December,
1924, and still neither Croteau nor his mortgagee made any effort to redeem the property.
Thos. A. Brandon, for Respondent:
Respondent takes the liberty of adopting all of the discussions and citations of authorities
found in the decision of the trial judge.
It was the clear intention of the legislature of this state that in the event of the overthrow
and destruction of any of the presumptive provisions of the act of 1923, that the tax deed
should thereupon be declared void. It is hardly probable that a court would declare to be
conclusive that which the legislature has declared to be presumptive.
We do not agree with counsel that every one is conclusively presumed to know the law.
But we know of no reason why public officers should not be conclusively presumed to know
the law, from which it would follow that every error made by them would be an intentional
error, would be a fraud and not a mistake. The same principle would also apply to a purchaser
at a tax sale, as the defendant Giacometto was in this case, and it would then follow that he
was in no sense an innocent purchaser, but knew of the defect in his title when he took it. We
do not believe that any one will be deprived of his rights or his property on a mere
presumption of knowledge of the law.
While the publication of the notice of the sale was for the benefit of Croteau and his
mortgagee, it was also for the benefit of the public at large, and the court will conclusively
presume that a defective notice and publication thereof, as was given in the present case,
never fulfilled its legal purpose in these respects.
The legislature has provided the machinery for the assessment and collection of taxes, and
it is the duty of the courts to see that that machinery is not twisted and contorted from its
original purpose in such a manner as to endanger the rights of property owners.
51 Nev. 7, 10 (1928) Menteberry v. Giacometto
of the courts to see that that machinery is not twisted and contorted from its original purpose
in such a manner as to endanger the rights of property owners. We can cite nothing in the act
of 1923 which in any way modifies or repeals the act of 1919, and it is certain that the latter
act is mandatory in all of its provisions. Will an act general in its nature, not specific in its
terms, and containing nothing to show such an intent, be held to repeal or modify an act
which is specific and undoubtedly mandatory in its nature?
We have scanned and studied the act of 1923 very closely, and nowhere do we find that
that act makes the tax deed conclusive evidence of the giving of legal notice of sale for taxes.
California has held, and we believe that any other jurisdiction would hold, that the
language that at a proper time and place the property was sold as prescribed by law, as used
in the act of 1923, unquestionably includes the publication of the notice of sale and all other
steps required by the statute directly concerning the sale for taxes. To our mind there is no
escape from the plain meaning of the words as prescribed by law.
OPINION
By the Court, Coleman, J.:
This is an action to foreclose a real estate mortgage executed by defendant Croteau, to
quiet plaintiff's title as against defendant Giacometto, the holder of a tax deed to the property.
The defendant Croteau filed written consent that judgment might be taken against him.
Defendant Giacometto answered, pleading his tax deed. The plaintiff filed a reply alleging
certain facts which, it is stated, show the tax deed to be void. Judgment was rendered for the
plaintiff. Giacometto has appealed. The parties will be referred to as plaintiff and defendant.
It is not necessary that we make a detailed statement of the facts, since the only questions
involved pertain to the sufficiency of the notice of sale given by the county treasurer.
51 Nev. 7, 11 (1928) Menteberry v. Giacometto
The statute provides that immediately after the second Monday in June of each year the
county treasurer shall advertise for sale all property upon which taxes in amount not to exceed
$300 are delinquent, to be held on the third Monday in July next succeeding. That such notice
of sale shall be advertised in a newspaper, if there be one in the county, at least once a week
from the date thereof until the time of sale; and that such notice shall be published at least 25
days prior to the date of sale
and shall specify and give:
FirstThe name of the owner, if known.
SecondThe amount of taxes due from him, together with the penalty and costs.
ThirdThe description of the property on which such taxes are a lien and which will be
sold for the payment thereof.
FourthAnd that ten (10%) per cent on such taxes and cost of advertising will be
collected in addition to the original tax, or the property sold for all of said sums. * * * Stats.
1919, p. 413, sec. 3.
The taxes on the property in question for 1923 became delinquent in the sum of $52.81,
including penalties, and was subject to be advertised for sale after the second Monday in
June, 1924, to be held on the third Monday in July, 1924, which was the 25th day of that
month. The county treasurer caused to be published a notice of the sale of said property, to be
held on July 25, 1924, which appeared in the newspaper on June 28, July 1, and July 8, 1924.
Upon discovery of the error in the date of sale, which, under the law, had to be on the third
Monday in July, which fell on the 21st instead of the 25th, the notice was corrected to read
that the sale would be made on the 21st. The corrected notice was published July 12, 15 and
19, 1924. On July 21 the county treasurer offered the property for sale, at which time the
defendant became the purchaser, and in due time obtained a deed from the treasurer therefor.
It is the contention of the plaintiff that the sale and subsequent proceedings are void
because the law in reference to the giving of notice was not complied with.
51 Nev. 7, 12 (1928) Menteberry v. Giacometto
It is said by the defendant that it was formerly the law of this state that, when a tax deed
was relied upon, the burden of proving the regularity of every step in the proceedings leading
up to the execution and delivery of the deed was upon the holder thereof (State v. W.U. Tel.
Co., 4 Nev. 347; Ward v. Carson River etc., 13 Nev. 59; State v. Nev. Cent. Ry., 26 Nev. 265,
68 P. 294, 69 P. 1042), but that such is no longer the rule since the enactment of section 41,
Stats. 1923, p. 361, from which we quote:
All such deeds, whether heretofore or hereafter issued, are primary evidence that the
property was assessed as required by law; that the property was equalized as required by law;
that the taxes were levied in accordance with law; that the taxes were not paid; that at a
proper time and place the property was sold as prescribed by law, and by the proper officer;
that the property was not redeemed; that the person who executed the deed was the proper
officer; that where the real estate was sold to pay taxes on personal property, the real estate
belonged to the person liable to pay the tax; and are (except as against actual fraud)
conclusive evidence of the regularity of all other proceedings, from the assessment by the
assessor, inclusive, up to the execution of the deed. Such deed conveys to the purchaser the
absolute title to the property described therein, free of all encumbrances, except when the
land is owned by the United States, or this state, in which case it is prima-facie evidence of
the right of possession, accrued as of the date of the deed to the purchaser. No tax heretofore
or hereafter assessed upon any property, or sale therefor, shall be held invalid by any court of
this state on account of any irregularity in any assessment, or on account of any assessment or
tax roll not having been made or proceeding had within the time required by law, or on
account of any other irregularity, informality, omission, mistake or want of any matter of
form or substance in any proceeding which the legislature might have dispensed with in the
first place if it had seen fit so to do, and that does not affect the substantial property rights
of persons whose property is taxed; and all such proceedings in assessing and levying
taxes, and in the sale and conveyance therefor, shall be presumed by all the courts of this
state to be legal until the contrary is affirmatively shown."
51 Nev. 7, 13 (1928) Menteberry v. Giacometto
affect the substantial property rights of persons whose property is taxed; and all such
proceedings in assessing and levying taxes, and in the sale and conveyance therefor, shall be
presumed by all the courts of this state to be legal until the contrary is affirmatively shown.
It is clear that no notice advertising the sale for the period of 25 days, as provided by the
statute cited, was given. The sale was held on July 21, and the first publication of the notice
of sale on that date was on July 12, hence it appears that the required 25 days of publication
prior to the sale on July 21 could not have been given.
To overcome the glaring irregularity in the giving of the notice, it is said that the failure to
give the 25 days' notice is not one of the irregularities mentioned in section 41, above quoted,
concerning which the deed is prima-facie evidence of irregularity, and hence it is an
instrument which falls within the provision which provides that such a deed is conclusive
evidence of the regularity of all other proceedings, from the assessment by the assessor,
inclusive, up to the execution of the deed.
That portion of section 41 invoked by the defendant in support of this contention is taken
from the California Political Code, and had been construed by the courts of that state on two
occasions, wherein substantially the same question was raised as is here involved. In
Bernhard v. Wall, 184 Cal. 612, 622, 194 P. 1040, 1045, wherein the deed showed on its face
that the notice had not been complied with, in that the first notice of sale was given more than
28 days prior to the sale, contrary to the statute, it was held that the tax deed was void.
In Joslin v. Shaffer et al., 66 Cal. App. 69, 225 P. 307, the district court of appeals quotes
from the case mentioned, in following its holding, as follows:
The publication was not sufficient to authorize the sale and that the deed based thereon
was void. Section 3878, which makes the tax deed conclusive evidence of the regularity of
all other proceedings, from the assessment down to the deed, does not apply to or cure
this defect.
51 Nev. 7, 14 (1928) Menteberry v. Giacometto
assessment down to the deed, does not apply to or cure this defect. Sections 3786 and 3787
must be read and construed together. The phrase all other proceedings, in section 3787,
refers back to section 3786, and, therefore, includes only such proceedings as are not included
in section 3786. The presumption as to the proceeding which fixes the time for the sale is
prescribed by section 3786. It declares that the tax deed is primary, meaning prima facie,
evidence of the fact that the property was sold at a proper time. * * * The tax deeds here in
question were, therefore, only prima facie evidence that the tax sales on which they were
found were made at a proper time. A sale made at a time of which legal notice was not
given cannot be held to have been made at a proper time.'
The section in question provides that the tax deed is made prima-facie evidence that the
property was sold as prescribed by law. The law specifically prescribes the notice of sale
which must be given, and a sale made without such notice is not made as prescribed by
law, as said in Joslin v. Shaffer.
1. Our statute was evidently taken from the California Code, and is substantially the same;
the language of our statute being embodied in one section, though the same matter is enacted
in two separate sections in California. Furthermore, the sections of the California Code were
interpreted before they were adopted by our legislature. While the construction given the
sections by the court of that state is not conclusive, it is very persuasive, and especially so
where the construction is reasonable, fair, and just, as in the case mentioned; hence we accept
such construction.
2, 3. What we have said would dispose of the matter before us but for the fact that our
statue contains a further provision which has never been construed. It is that portion of the
section quoted which provides that no tax assessed upon any property, or sale thereof, shall be
held invalid because of any irregularity in any assessment, or on account of any other
irregularity, informality, omission, mistake, or want of any matter of form or substance in
any proceeding which the legislature might have dispensed with in the first place, and
which does not affect the substantial property rights of the person whose property is
taxed.
51 Nev. 7, 15 (1928) Menteberry v. Giacometto
of form or substance in any proceeding which the legislature might have dispensed with in the
first place, and which does not affect the substantial property rights of the person whose
property is taxed.
The provision of the statute referred to is not only a most reasonable, but a most fair, and
we think, proper one. The sale under the notice which was given is confirmed by the language
of the statute just mentioned, and does not amount to a taking of property without due process
of law. As a matter of fact, no notice whatever was necessary did not a statute require it. But
our statute expressly provides exactly when property shall be sold for delinquent taxes. Such
a provision is sufficient notice without further publication of notice of the time of sale. The
Supreme Court of the United States, in Hagar v. Reclamation Dist. No. 108, 111 U.S. 701, 28
L. Ed. 569, 4 Sup Ct. Rep. 663, in considering substantially the same question, disposed of
the matter in the following language:
The law, in prescribing the time when such complaints will be heard, gives all the notice
required, and the proceedings by which the valuation is determined, though it may be
followed, if the tax be not paid, by a sale of the delinquent's property, is due process of law.
4. This expression of the court of last resort on the question involved is the last word, and
is binding upon us whether we like it or not, and while there are other authorities in support
of the view expressed, nothing can be gained by a long review of them. In line with the view
expressed are Maxwell v. Page, 23 N. Mex. 356, 168 P. 492, 5 A.L.R. 155, and authorities
therein cited.
5. However, notice of the sale was actually published. It was published for a length of time
which would have been sufficient did the provision relative to due process require published
notice, and the statute in the first instance had provided for such a notice. This being true, the
curative provision to which we have referred would have remedied the irregularity, had there
actually been one, in the publication of the notice.
51 Nev. 7, 16 (1928) Menteberry v. Giacometto
For the reasons given, the judgment and order appealed from must be, and are hereby,
reversed.
On Petition for Rehearing
September 10, 1928.
Per Curiam:
Rehearing denied.
____________
51 Nev. 16, 16 (1928) Anderson v. McGill Club
ANDERSON v. McGILL CLUB
No. 2785
May 5, 1928. 266 P. 913.
1. Husband and WifeNovelty of Case Should Not Be Considered in Determining Whether
Plaintiff Had Cause of Action for Inducing Husband to Play Poker.
Novelty of case could not be considered in determining whether plaintiff had a cause of action for
defendant's enticing her husband to habitually play poker, whereby she lost portions of his salary, and
was deprived of his companionship.
2. Husband and WifeWife Could Not Recover Against Defendant Enticing Husband to
Play Poker, Depriving Her of His Companionship and Money, where She Did Not
Allege Intentional Invasion of Marital Rights.
Wife could not recover damages where defendant tempted, permitted, and procured husband to
frequent defendant's alleged gambling room and play poker, depriving her of companionship of her
husband and of money on which she relied for her support, causing her worry, humiliation, and sickness,
where she did not allege that defendant knew that her husband was a married man, or make other
allegation showing direct and intentional invasion by defendant of marital relation existing between
plaintiff and her husband.
C.J.CYC. REFERENCES
Actions1 C.J. sec. 67, p. 972, n. 7.
Husband and Wife30 C.J. sec. 977, p. 1123, n. 56; sec. 1001, p. 1133, n. 79.
Appeal from Ninth Judicial District Court, White Pine County; W.H. Edwards, Judge.
Action by Gladys Anderson and husband against the McGill Club. From a judgment
dismissing the action, plaintiffs appeal. Affirmed.
51 Nev. 16, 17 (1928) Anderson v. McGill Club
C.E. Handwright, for Appellant:
A person is responsible for his wrongful act (in the case at bar the unlawful act) and that
which naturally or necessarily flows therefrom. Sec. 5649 Rev. Laws; Bowen v. Hall, 6
Q.B.D. 333; 20 R.C.L. 392 (par. 14); 86 A.S.R. 509; 20 R.C.L. 492; 20 R.C.L. 494, par. 107;
Hollenbeck v. Ristine, 67 A.S.R. 306, p. 308; Cahill v. Eastman, 10 Am. Rep. 184, p. 188;
Isham v. Dow, 67 A.S.R. 691, p. 692; Edgerton v. Burlington Ry., 90 N.W. 95; Kiley v. City
of Kansas, 33 Am. Rep. 491; Hooker v. Miller, 18 Am. Rep. 18; Tinker v. N.Y.O. & W.R.
Co., 24 N.Y. Supp. 977; Sullivan v. Waterman, 39 Atl. 243; Schultzer v. Excelsior Pow. Co.,
160 S.W. 282; McAndrews v. Collerd, 36 Am. Rep. 508, p. 510; Philpot v. Taylor, 20 Am.
Rep. 241; Vandenburgh v. Truax, 47 Am. Dec. 268; Holleman v. Harward, 56 A.S.R. 672;
Humphrey v. Pope, 54 P. 847; Westlake v. Westlake, 32 Am. Rep. 397; Clow v. Chapman,
46 A.S.R. 468; Hart v. Knapp, 100 A.S.R. 989, p. 993.
The diversity of the cases cited above shows conclusively that the courts are in accord with
the general principle that damages flow from the wrongful act of the defendant, regardless of
the fact that a third party may have contributed to the final catastrophe. That is also the
contention of Joyce on Damages, in vol 3, p. 2198.
As far as the court is concerned at the present time in the case at bar, the unlawful act of
the defendant has been proven, i.e., by the verified complaint of plaintiff, the same not being
denied by defendant, but admitted by his demurrer.
As this case falls within the operation of clear, well-defined and well-established
principles of law, the action should be maintained, even though it may be a case of first
impression.
Chandler & Quayle, for Respondent:
We believe that ever since the decision of this court in Scott v. Courtney, 7 Nev. 418,
Hawley Edition, 5-6-7, p. 1045, it has remained the law of this state that money won or lost
in gambling cannot be recovered in our courts.
51 Nev. 16, 18 (1928) Anderson v. McGill Club
won or lost in gambling cannot be recovered in our courts.
Well may counsel say in his brief that this is a case of first impression. There seems to
have been no prior instance in which it has dawned upon the minds of astute lawyers that
such a right of action exists.
It will be seen that the primary efficient cause of the injuries complained of by the wife in
her complaint is not the maintenance of what is alleged to be a public nuisance, but is the
weakness and susceptibility of her husband, an uncontrolled and independent agent.
Only by legislative enactment creating a new right of action can persons such as plaintiffs
in this action have the cause of action which herein they believe themselves already in
possession of. Bistline v. Ney (Iowa), 13 L.R.A. (N.S.) 1158.
Section 2160 of Rev. Laws of 1912, as amended by the statute of 1917 (Compiled Laws of
1919, p. 2813), provides that the husband shall have the entire management and control of the
community property, with the like absolute power of disposition thereof, except as
thereinafter provided, as of his own separate estate. Which is but affirmatory of the general
law respecting the power of the husband over personal community property in the various
community property states. 5 R.C.L. p. 851, sec. 31, also sec. 32, p. 852.
The citations in the forepart of appellant's brief follow a reference to section 5649 of Rev.
Laws, 1912, a part of chapter 69 of our civil practice act, which has to do with actions for
personal injuries, that is to say injuries to the person, and viewed in this light the remoteness,
if not the utter inapplicability of the section to the circumstances of this case, is at once
apparent.
OPINION
By the Court, Sanders, C.J:
The complaint in this action for damages is entitled Gladys Anderson and her husband,
Chet Anderson, plaintiffs, against McGill Club, a corporation, defendant. Though it is not so
alleged, expressions in the complaint indicate that Chet Anderson joined in bringing the
action for conformity.
51 Nev. 16, 19 (1928) Anderson v. McGill Club
indicate that Chet Anderson joined in bringing the action for conformity. We shall therefore
refer to Mrs. Anderson as plaintiff and to the McGill Club as defendant.
According to the complaint, the Andersons resided with their two minor children at
McGill, Nevada, where the husband was employed as a clerk on a salary, his only income for
the support and maintenance of himself and his dependents. The defendant is a Nevada
corporation, doing business at McGill under the name of McGill Club, and in connection with
its business conducts a gambling room, a public nuisance. The complaint charges that,
between the months of May, 1926, and February, 1927, the defendant did, knowingly,
willfully, maliciously, and unlawfully in a spirit of recklessness and from wanton and
malicious motives, procure, permit, and tempt divers persons, including Chet Anderson, to
frequent said room and habitually engage in playing poker and studhorse poker, from which
games the defendant received a share of the money played; that Chet Anderson was of such
nature the he could not resist the temptation to gamble, and, being thus tempted, did, without
the consent of his wife, spend many hours apart from her in playing poker and in losing
portions of his salary, whereby she was deprived of the companionship of her husband, and of
the money upon which she relied for her support, which caused her many hours of worry,
humiliation, and sickness, and lessened her enjoyment of life, to her great damage in the sum
of $5,000.
The defendant demurred to the complaint, upon the ground that it did not state a cause of
action. The demurrer was sustained, and, plaintiff declining to plead further, a final judgment
was entered dismissing the action, from which the plaintiff appeals.
This court is of the opinion that the general demurrer to the complaint was properly
sustained, but its members are divided as to the reasons why the complaint is defective. My
associates are of the opinion that, with but one exception, the complaint states a cause of
action, but I am unable to concur in this view. It is difficult for me to consider the action
seriously.
51 Nev. 16, 20 (1928) Anderson v. McGill Club
is difficult for me to consider the action seriously. The complaint is a novelty, both in form
and substance. No appeal for redress by a wife for a like grievance has ever found its way into
court, and I am apprehensive that in their just indignation against the nefarious nuisance
maintained by the defendant and in their commendable zeal for the protection of the home
and the innocent members of the family my associates have been led to affirm a proposition
of law which cannot be sustained.
The embarrassment which seems to attend the disposition of the demurrer arises from the
classification of the action. The plaintiff seeks to recover consequential damages for an injury
to her marital rights, occasioned by willful, malicious, unlawful, and wanton motives on the
part of the defendant in maintaining a nuisance to procure, permit, and tempt divers persons,
including plaintiff's husband, to frequent its place of business, and engage habitually in
playing draw poker and studhorse poker. It is made a felony in this state by statute for a
person to conduct, manage, or carry on any gambling game whatever for any share of the
money played, save and except poker, studhorse poker, five hundred, solo and whist, where
the deal alternates, and no percentage taken. It is also made a felony for a any person to play
at any game for money save and except those mentioned. Statutes 1915, p. 462.
Notwithstanding this drastic statute designed for the suppression of gambling as a business,
the evil has not been fully suppressed. The playing of poker and studhorse poker is excepted
from its penalties where the deal alternates and no percentage is taken. The nuisance consists
in the defendant's receipt of a share of the money played. The defendant's act was criminal;
the act of the husband was voluntary and entirely innocent in the eyes of the law. This being
so, it is problematical as to what portion of plaintiff's loss of the society of her husband
should be attributed to the defendant and what portion should be attributed to her husband. To
obviate the difficulty the pleader attributed the plaintiff's loss of the society of her husband
and that of the money squandered by him in playing to the defendant and excused the
husband, upon the assumption that he was of such nature that he could not resist the
temptation set before him, by defendant's nuisance, to gamble, which had the effect of
withdrawing him from plaintiff's society and causing him to lose money necessary for her
support.
51 Nev. 16, 21 (1928) Anderson v. McGill Club
that of the money squandered by him in playing to the defendant and excused the husband,
upon the assumption that he was of such nature that he could not resist the temptation set
before him, by defendant's nuisance, to gamble, which had the effect of withdrawing him
from plaintiff's society and causing him to lose money necessary for her support.
My associates take the view that the complaint is fatally defective, in that it contains no
allegation to the effect that the plaintiff knew Chet Anderson was plaintiff's husband when he
engaged in playing poker in the defendant's place of business. It is proper to state that this
objection to the complaint was not urged in the court below nor in this court by counsel for
the defendant, and under the rule of the statute, before the judgment is affirmed upon this
ground, counsel for plaintiff should be given an opportunity to be heard. Statutes 1923, 163. I
am of opinion that if the injury complained of be actionable, it is immaterial to plaintiff's right
to recover whether or not the defendant knew Chet Anderson was plaintiff's husband on the
occasions he played poker in defendant's place of business. The injury complained of was
caused by the defendant's inherently unlawful act. Treating the action as an ordinary suit for
damages caused by the unlawful act of another, the fact that the defendant had no knowledge
of the marital relations of the Andersons is no defense and, therefore, such knowledge need
not be pleaded. When an unlawful act causes injury to another, the motive, intent or design of
the wrongdoer is, as a general rule, material only in determining the quantum of the damages.
Hussey v. Peebles, 53 Ala. 436. In that case it is said:
When there is an unlawful injury to the rights of another, it is not essential to civil
liability that the mind should concur in the act. It is upon this principle that even a lunatic is
liable civiliter for an injury to the person or property of another. * * * In civil actions the
intent is immaterial, if the act done be injurious to another.
I am further of the opinion that the complaint is not defective for the reason assigned by
my associates, because the maintenance of a gambling room by the defendant is a public
nuisance.
51 Nev. 16, 22 (1928) Anderson v. McGill Club
defective for the reason assigned by my associates, because the maintenance of a gambling
room by the defendant is a public nuisance. In this state a public nuisance is a crime against
the order and economy of the state, and every place where gambling is conducted is a public
nuisance. Section 6561, Rev. Laws.
The defendant in maintaining the nuisance may reasonably have anticipated the injury
which resulted from its conducting a gambling house. I know of no rule of law, civil or
criminal, which exempts from liability or responsibility the keeper of a common gambling
house for an injury incident to the business, because the keeper did not know the marital
status of a particular person who frequented the place and engaged in gambling. Neither
public policy not the statute designed to suppress gambling extends such favor or protection
to this class of business.
It is contended that this is not an ordinary action to recover damages for injury to the
person or property of another, but is an action brought by a wife to recover damages for loss
of consortium, occasioned by her husband playing poker in a place condemned and prohibited
by law as a public nuisance. I attribute this contention to the pleader's misconception of the
proper status of the case. It is not an ordinary action for alienation of affection, nor is it a case
against one who, from malicious motives against a wife, causes her husband to abandon her.
The gravamen of the complaint is, as above stated, that the defendant willfully, unlawfully
and with wanton and malicious motives induced and enticed plaintiff's husband, with others,
to frequent its place of business and engage in the hazard of gambling, playing draw and
studhorse poker, from which the defendant received a share of the money played. Such an
action is not analogous to an ordinary case for loss of consortium. It would be a strained
construction of the complaint to hold that the nuisance complained of was willfully and
maliciously maintained for the sole purpose of injuring the plaintiff.
Assuming for the purposes of the demurrer that the action is one for consequential
damages to the plaintiff, occasioned by her husband being enticed to play poker in the
defendant's gambling room, a public nuisance, may she recover?
51 Nev. 16, 23 (1928) Anderson v. McGill Club
action is one for consequential damages to the plaintiff, occasioned by her husband being
enticed to play poker in the defendant's gambling room, a public nuisance, may she recover?
My conclusion is that she cannot recover. A husband is exposed to the temptations,
enticements and allurements of the world, which easily withdraw him from the society of his
wife, and the wife had reason to expect all these things when she entered the marriage
relation, and her right to his society had all these conditions. Duffies v. Duffies, 45 N.W. 525.
In the eyes of the local law plaintiff's husband, in withdrawing himself from her society to
play poker, did nothing more than he had a right to do, however reprehensible his conduct as
a husband may have been. Public policy condemns his act, but the statute law of Nevada
countenances it. If an action by a wife for loss of the society of her husband, occasioned by
his playing poker and losing community money, were sustained, such actions would be
numberless, and this right of action in the wife would be a most fruitful source of litigation.
The loss of the husband's society need not be permanent for a cause of action. For a longer or
shorter time, if cause by improper inducements or enticements, the right would accrue.
Duffies v. Duffies, supra. Public policy forbids that a multitude of suits should be brought for
an act which essentially concerns the public, although in its remote effects it might bear
peculiarly upon a particular person or class.
It is argued on behalf of the plaintiff that this action is analogous to one brought by a wife
to recover for loss of consortium, caused by the wrongful act of another, in selling
habit-forming drugs to a husband weak in mind and body from the excessive use of such
drugs, with knowledge. This conclusion drawn from the allegations of the complaint seems to
be so far-fetched that no attempt will be made to differentiate this case from those cited in
support of the proposition.
Gambling, its prohibition, and private actions of which it is the subject matter have at all
times been matters for the lawmaking body to consider. In several of the states, enabling
statutes have been enacted conferring upon a wife the right to recover money lost at
gambling by her husband; but, where there is no such statute, it is conceded that she
cannot recover.
51 Nev. 16, 24 (1928) Anderson v. McGill Club
states, enabling statutes have been enacted conferring upon a wife the right to recover money
lost at gambling by her husband; but, where there is no such statute, it is conceded that she
cannot recover. So, in this case, in the absence of a statute authorizing a wife to maintain an
action for loss of consortium, occasioned by her husband playing poker in a common
gambling house, the plaintiff cannot recover. Plaintiff's action was misconceived, and it was
properly dismissed.
Upon the filing of the transcript on appeal from the judgment, counsel for respondent
moved to strike parts or portions of the record, upon the ground that they did not constitute a
part of the judgment roll as defined by section 5273, Rev. Laws. Upon the authority of several
former decisions of this court, the motion is sustained.
The judgment appealed from is affirmed.
Ducker, J., concurring:
I concur in the order of affirmance. The demurrer admits that the game conducted by the
defendant constituted not only a public nuisance by a crime. It also admits that the defendant
was instrumental, through the operation of that game, in depriving the plaintiff of the
consortium of her husband. The question of law for us to decide is, do the facts thus admitted
constitute a cause of action in favor of the plaintiff.
The novelty of the case is not a consideration which can influence us in reaching a
decision. 18 N.C. 516, 105 S.E. 206; Harris v. Trust Co., 128 Tenn. 573-579; Kujeck v.
Goldman, 150 N.Y. 176; Holleman v. Harward, 119 N.C. 150. The real question for
determination is whether the allegations of the complaint show that defendant has by its
conduct violated any legal right of the plaintiff. While the husband could recover at common
law against one who was guilty of depriving him of the consortium of his wife, the wife could
not recover for a like act, but now it is generally conceded that in a proper case the wife may
also recover for her loss of consortium of her husband. Nolin v. Pearson, 191 Mass.
51 Nev. 16, 25 (1928) Anderson v. McGill Club
191 Mass. 283, 4 L.R.A. (N.S.) 643; Hinnant v. Tidewater Power Co., 189 N.C. 122, 126
S.E. 307; Moberg v. Smith (S.D.), 161 N.W. 998; 30 C.J. 1123.
Notwithstanding the foregoing observations, I am of the opinion that the demurrer was
properly sustained. All of the authorities make the right of recovery in a suit brought by a
wife for damages for loss of consortium turn upon the question of whether there was a direct
and intentional invasion by the defendant of the marital relation, existing between the
plaintiff and her husband. Holleman v. Harward, 119 N.C. 150, 25 S.E. 972, 34 L.R.A. 803,
56 Am. St. Rep. 672; Hinnant v. Tidewater Power Co., supra; Flandermeyer v. Cooper, 85
Ohio St. 327, 98 N.E. 102, 40 L.R.A. (N.S.) 360, Ann. Cas. 1913a, 983.
Since there is no allegation in the complaint to the effect that the defendant knew that the
husband of plaintiff was a married man, nor other allegation covering the point, the demurrer
was properly sustained.
Coleman, J., I concur in the opinion of Justice Ducker.
On Petition for Rehearing
June 5, 1928.
Per Curiam:
Rehearing denied.
Reporter's Note: Petition for a writ of certiorari directed to this court in the above case denied by the Supreme
Court of the United States, October 8, 1928.
____________
51 Nev. 26, 26 (1928) American Sodium Co. v. Shelley, Et. Al.
AMERICAN SODIUM CO. v. SHELLEY, Et. Al.
No. 2810
May 23, 1928. 267 P. 497.
1. Appeal and ErrorOrder Extending Time Within which Transcript Might Be Filed Held
Proper, where Supreme Court Had Obtained Jurisdiction by Perfection of Appeal.
Order extending time for filing transcript on appeal, after the notice of appeal had been given in time,
held proper, where supreme court had acquired jurisdiction by perfection of appeal.
2. Appeal and ErrorAppeal to Supreme Court Is Perfected by Notice of Appeal and Giving
of Undertaking.
Appeal to the supreme court is perfected by giving notice of appeal and by giving undertaking.
3. Appeal and ErrorSupreme Court Acquires Jurisdiction when Appeal is Perfected.
While, after filing notice of appeal and giving of undertaking, lower court retains jurisdiction in many
instances, yet as soon as appeal is perfected the supreme court acquires jurisdiction for certain purposes,
such as extending time for filing transcript on appeal.
4. CourtsLegislature Having Conferred power on Supreme Court to Adopt Rules, Rules
Are Binding, Unless in Conflict with Statute.
The legislature having expressly conferred power to adopt rules on the supreme court, by Stats. 1869,
chap. 112, sec. 590, rule of court is binding, unless it conflicts with some statute.
5. Appeal and ErrorMotion to Dismiss Appeal Taken from Judgment and Order Denying
New Trial, on Ground that Bill of Exceptions Had Not Been Settled in Time, Held
Properly Overruled, since Judgment Roll May Constitute Transcript.
Where appeal was taken from judgment and order denying motion for new trial under Rev. Laws, sec.
5329, as amended, motion to dismiss appeal, because time for taking bill of exceptions had expired and
none had been settled, or even prepared, held properly overruled, since appeal having been taken from
judgment, appellant had right to have the court inspect the judgment, to ascertain whether reversible error
appeared by reason of supreme court rule 2, under which judgment roll may constitute transcript.
C.J.CYC. REFERENCES
Appeal and Error3 C.J. sec. 1366, p. 1252, n. 28; p. 1253, n. 30; 4 C.J. sec. 1811, p. 212, n. 43; sec. 2198,
p. 466, n. 60.
Courts15 C.J. sec. 288, p. 909, n. 8.
On petition for rehearing. Petition Denied. (For former opinion, see 50 Nev. 416.) Green &
Lunsford, for Respondents:
51 Nev. 26, 27 (1928) American Sodium Co. v. Shelley, Et. Al.
Green & Lunsford, for Respondents:
The court in its decision makes no reference to the motion to vacate the order, and makes
no reference to the statute of 1923, chapter 97, page 163.
The affidavit filed in support of motion makes it clear that no bill of exceptions or record
on appeal was filed in the court below within twenty days after final judgment, or twenty days
after an order denying a motion for a new trial. It also appeared from the affidavit that the
time had expired and had not been extended by the court below. The affidavit was not
controverted, and the facts stated were admitted at the argument.
We do not understand that this court has ever held that it could acquire appellate
jurisdiction merely by extending the time for filing a record on appeal. If this court can
acquire appellate jurisdiction in such a manner there can be no such thing as finality of a
judgment.
OPINION
Per Curiam:
On January 27, 1928, Geo. S. Green, as counsel for respondent, filed in this court two
papers under one cover which is indorsed: Notice of Motion to Dismiss Appeal and
Affidavit of Geo. S. Green.
The first paper is designated, Motion to Dismiss Appeal. The other paper is designated
Affidavit of Geo. S. Green.
It appears from the affidavit of Mr. Green that the judgment in the case was entered on
August 1, 1927; that appellants' notice of appeal from the judgment and from the order
denying a motion for a new trial was served on December 16, 1927, and that it was filed in
the lower court on December 17, 1927, and that an undertaking on appeal was filed on
December 19, 1927.
On the 16th of January, 1928, an order was made by a Justice of this court extending
appellants' time for filing of a transcript of appeal for a period of thirty days. Within the time
thus extended, on, to wit, February 14, 1928, the motion to dismiss was argued, at which time
the stipulation set out in our former opinion was entered into.
51 Nev. 26, 28 (1928) American Sodium Co. v. Shelley, Et. Al.
the stipulation set out in our former opinion was entered into.
In the motion to dismiss appeal counsel states that he will move and do hereby move, for
an order vacating an order of this court made in the above-entitled cause on January 16, 1928,
and dismissing the appeal in the above-entitled cause on the grounds and for the reasons
following, to wit:
(1) That notice of the purported appeal in said cause was served upon counsel for
respondents on December 16, 1927, and was filed in the district court from which such appeal
is purported to be taken on December 17, 1927; that an undertaking on appeal was filed in
said district court on the 19th day of December, 1927; that such appeal was perfected on the
17th day of December, 1927, and that no transcript of a record on appeal, statement on
appeal, bill of exceptions or other record on appeal was filed in this court within thirty days
after such appeal was perfected, in violation of rules 2 and 3 of the Rules of the Supreme
Court of the State of Nevada.
(2) That there is no transcript on appeal, bill of exceptions, statement on appeal or other
record on appeal either filed, served or settled in said district court within the time limited by
law or at all, as shown by the annexed affidavit.
These are the sole grounds in support of the motion. No brief was filed in support of the
motion, and the oral argument went entirely to the proposition that no bill of exceptions had
been prepared, served and filed. With this statement we think we may safely proceed to
dispose of the petition for rehearing.
We did not allude in our former opinion to the question of the vacating of the order to
dispose of the order of January 16, 1928, extending the time for filing of the transcript on
appeal. We did not do so for the reason that there was nothing in the motion itself or in the
oral argument in support of that proposition.
The order of January 16 recites that it was made for good cause appearing. If the court had
jurisdiction to make the order it was a valid order and would be vacated only when it was
shown that there was an abuse of discretion.
51 Nev. 26, 29 (1928) American Sodium Co. v. Shelley, Et. Al.
make the order it was a valid order and would be vacated only when it was shown that there
was an abuse of discretion.
It was not contended on the original hearing that the order was in excess of jurisdiction,
nor was it contended that it was an abuse of discretion by the court to make it. The entire
argument was based upon the proposition that the time had expired within which a bill of
exceptions might be taken, and that none had been taken, as pointed out in our former
opinion. We thought or former opinion disposed of the real question before us and that it was
unnecessary to go into a consideration of other questions. It seems that we were mistaken. We
will endeavor to elucidate.
1-4. Just here we will consider what seems to be counsel's main contention, which is stated
for the first time in the petition for rehearing, wherein he says:
We do not understand that this court has ever held that it could acquire appellate
jurisdiction merely by extending the time for filing a record on appeal. If this court can
acquire appellate jurisdiction in such a manner there can be no such thing as finality of a
judgment. If the court extended the time in one case, it would, no doubt, feel constrained to
do the same in other cases, and the indulgence of the court would be the only limitation upon
the time for filing a record on appeal in the supreme court.
We will first dispose of the assertation that this court has never held that it could acquire
appellate jurisdiction merely by extending the time for filing a record on appeal.
We are sure this court has never so held and equally sure it never will. We did not so hold
in our former opinion in this case, nor did we so intimate. We pointed out in that opinion that
an appeal to this court is perfected by giving notice of appeal and by the giving of an
undertaking. Such was held to be the rule in one of the very earliest decisions of this court
(Peran v. Monroe, 1 Nev. 484), and so far as we know this statement of the law has never
been questioned. The Chief Justice, in the recent matter of Dunphy v. McNamara, 50 Nev.
113
51 Nev. 26, 30 (1928) American Sodium Co. v. Shelley, Et. Al.
in the recent matter of Dunphy v. McNamara, 50 Nev. 113, 252 P. 943, so held. We think this
is settled law. While such is the law the lower court retains jurisdiction in many instances, for
the purpose of settling a bill of exceptions, and the like (James v. Leport, 19 Nev. 176), but
on the other hand, as soon as the appeal is perfected this court acquires jurisdiction for certain
purposes.
No, the court did not acquire jurisdiction by extending the time for the filing of a
transcript, but it did so extend the time for the filing of a transcript because of the jurisdiction
acquired as a result of the perfecting of the appeal. This is a jurisdiction which it has often
exercised pursuant to the rule referred to in our former opinion. This authority has never been
questioned until now.
But the very right to move to dismiss, which counsel invoked, is given by a rule of this
court, which is of no greater force than the other rules. How can counsel consistently invoke
the rule which he thinks is favorable to him, and in the same breath repudiate some other
rule? But it matters little what counsel may think of it since the legislators expressly
conferred the power to adopt rules upon this court (Stats. 1869, p. 286), which is still in force.
It has been repeatedly held that a rule of the court is binding unless in conflict with some
statute. Haley v. Eureka, 20 Nev. 410.
Without further reference to this phase of the matter we feel confident that an impartial view
of this situation can lead to no other conclusion than that counsel is in error.
The intimation that the court might feel constrained to make a similar order in other cases
can in no way affect the jurisdiction of the court.
5. Though we think we have said enough to show that our former opinion is correct, in
view of the fact that counsel seems to have an erroneous idea as to certain matters, we will
comment further.
Section 5329, Rev. Laws, as amended, provides for the taking of an appeal by a party
when he finds himself in one or more situations.
51 Nev. 26, 31 (1928) American Sodium Co. v. Shelley, Et. Al.
one or more situations. He may appeal from the judgment alone or he may appeal from an
order denying a motion for a new trial. He may appeal from both. He may appeal from still
other orders. In the instant case the appeal was from both the judgment and the order denying
a motion for a new trial. In view of the fact that the original argument was based upon the
proposition that the time for the taking of a bill of exceptions has expired, and that none had
been settled, or even prepared, we call attention to what we said in Segale v. Pagni, 49 Nev.
313, 244 P. 1010, which is in harmony with the long established and generally well-known
practice.
The first three grounds of the motion are based upon the proposition that there is no bill
of exceptions in the record settled and allowed by the court or judge or by stipulation of the
parties. There is a pretended bill of exceptions in the record, certified and sworn to by the
court stenographer, but, if no effort had been made to embody a bill of exceptions in the
record, the motions should be denied so far as the first three grounds are concerned, for the
reason that we cannot at this stage of the proceedings assume that appellants may not contend
that, for errors appearing upon the face of the judgment roll alone, the judgment should be
reversed.
An appeal having been taken from the judgment, appellant has the right to have the court
inspect the judgment roll alone to ascertain if reversible error appears. A judgment roll may
constitute the transcript in a case, as is evident from rule 2. It was on this theory we denied
the motion. The only mistake we made was in assuming that it was unnecessary to go into
details.
We think what we have said should make it clear to counsel that our conclusion in the
former opinion was in harmony with the well-established and amply justified practice, and
that he need not fear any radical action by the court in the matter of extension of time for the
filing of transcripts.
The petition is denied.
____________
51 Nev. 32, 32 (1928) Caldwell v. Wedekind Mines Co., Et. Al.
CALDWELL v. WEDEKIND MINES CO., Et. Al.
No. 2787
May 29, 1928. 267 P. 827.
1. EvidenceBy-Laws of Corporation Are Not Judicially Noticed.
By-laws of a corporation are not judicially noticed, but must be proved as facts.
2. Appeal and ErrorOn Appeal on Judgment Roll Alone, in Absence of Facts, Court Must
Presume that Evidence Supports Findings and Findings the Judgment.
On appeal upon the judgment roll alone, the facts not being before the court, it must presume that the
evidence supports the findings, and that the findings support the judgment.
C.J.CYC. REFERENCES
Appeal and Error4 C.J. sec. 2739, p. 786, n. 35.
Corporations14 C.J. sec. 436, p. 349, n. 53.
Evidence23 C.J. sec. 1980, p. 159, n. 14.
Appeal from Second Judicial District Court, Washoe County; Frank T. Dunn, Judge.
Action by Gladys I. Caldwell, administratrix of the estate of Jonathan B. Dixon, deceased,
against the Wedekind Mines Company and others. From the judgment and from an order
denying her motion for new trial, plaintiff appeals, but, on respondent's motion, the bill of
exceptions was stricken from the record, and the appeal from an order overruling the motion
for a new trial dismissed (50 Nev. 366, 261 P. 652), leaving the case on appeal from
judgment upon the judgment roll alone. Affirmed.
Wayne T. Wilson, for Appellant:
Business transacted at a meeting of stockholders where less than a quorum is present is not
only invalid but is void, and cannot be ratified or rendered valid by the subsequent assent of
the holders of the majority of stock at any time or place other than at a regular meeting of the
stockholders. Fletchers Cyc. of Cor., vol. 3, sec. 1643, p. 2758. Piercy v. New Orleans, 29
Am. Dec. 448.
As alleged in the complaint and admitted in the answer, the Dixon stock was clearly a
majority of all the issued and outstanding stock of the Wedekind Mines Company.
51 Nev. 32, 33 (1928) Caldwell v. Wedekind Mines Co., Et. Al.
answer, the Dixon stock was clearly a majority of all the issued and outstanding stock of the
Wedekind Mines Company. If the Dixon stock was not represented at the stockholders'
meeting held on January 12, 1926, there could have been no quorum present. A quorum at a
stockholders' meeting is a majority of all the issued and outstanding stock. Rev. Laws of Nev.
1912, sec. 1134.
John Sinai, for Respondents:
There being no evidence or testimony before this court it will be assumed that the court's
findings are sustained by sufficient evidence and is conclusive upon appeal. Murray v.
Osborne, 33 Nev. 267.
Where nothing is shown to the contrary this court will presume if the judgment is sustained
by the findings that the findings were justified by the evidence. Nesbitt v. Chisholm, 16 Nev.
376.
There is no law in the State of Nevada which holds that a majority of outstanding stock must
be represented at a stockholders' meeting before business can be transacted. The common-law
rule is sensibly stated in Morrill v. Little Falls Manufacturing Co., 53 Minn. 371, 55 N.W.
547, 21 L.R.A. 174. The statute being silent and the by-laws of the company not being before
this court, the common-law rule prevails.
OPINION
By the Court, Sanders, C.J.:
On January 11, 1927, Gladys I. Caldwell, as administratrix of the estate of J.B. Dixon,
deceased, made application to the court below for an injunction to restrain the holding of the
annual meeting of the stockholders of the defendant corporation, scheduled to be held on
January 11, 1927, and to restrain the defendants or any of the stockholders from voting at said
meeting any of the shares of stock issued from its treasury since the death of plaintiff's
intestate, which occurred on September 30, 1925, and to restrain the defendants from
voting at said meeting the one share of stock standing on the books of the company at the
time of the death of J.B. Dixon in the name of C.E. Clough, and for a judgment or decree
canceling all shares of stock issued from the treasury of the company since the death of
J.B. Dixon, and that plaintiff be adjudged to be the owner of the share of stock standing
on the books of the company in the name C.E. Clough and of the 6 2J3 shares of stock
standing on the books of the company in the name of Nott Leete, and that defendants be
enjoined from holding any stockholders' meeting until plaintiffs' rights in the premises be
adjudged and determined.
51 Nev. 32, 34 (1928) Caldwell v. Wedekind Mines Co., Et. Al.
the death of plaintiff's intestate, which occurred on September 30, 1925, and to restrain the
defendants from voting at said meeting the one share of stock standing on the books of the
company at the time of the death of J.B. Dixon in the name of C.E. Clough, and for a
judgment or decree canceling all shares of stock issued from the treasury of the company
since the death of J.B. Dixon, and that plaintiff be adjudged to be the owner of the share of
stock standing on the books of the company in the name C.E. Clough and of the 6 2/3 shares
of stock standing on the books of the company in the name of Nott Leete, and that defendants
be enjoined from holding any stockholders' meeting until plaintiffs' rights in the premises be
adjudged and determined. Upon consideration of the complaint, a temporary restraining order
issued as prayed. Subsequently the cause came on for hearing, upon issues joined upon the
complaint, answer, amendment to answer and plaintiff's reply. After a full hearing upon the
pleadings and evidence, formal findings of fact and conclusions of law were entered, upon
which it was adjudged, ordered and decreed that the defendant, Amelia Martin, transfer to the
estate of J.B. Dixon, deceased, the one share of stock standing on the books of the company
in her name, transferred to her by C.E. Clough; that the 412 shares of stock issued by the
officers of the company belong to the party or parties in whose name or names said shares
stand on the books of the company; that the defendants, Joseph Martin, Amelia Martin, and
Josephine Birch, directors and officers of the defendant company, continue to carry on the
affairs of the corporation until the election of their successors, and that the restraining order
heretofore issued be canceled and dissolved. Subsequently the plaintiff gave notice of her
intention to move for a new trial, which motion was denied. Thereafter the plaintiff perfected
her appeals from the order denying and overruling her motion for new trial and from the
judgment, as required by law.
The respondents, defendants below, moved to strike from the record on appeal the bill of
exceptions and to dismiss the appeal from the order overruling plaintiff's motion for new
trial, which motion was sustained.
51 Nev. 32, 35 (1928) Caldwell v. Wedekind Mines Co., Et. Al.
from the record on appeal the bill of exceptions and to dismiss the appeal from the order
overruling plaintiff's motion for new trial, which motion was sustained. 50 Nev. 366, 216 P.
652.
The case is now before us upon the appeal from the judgment upon the judgment roll
alone. It is questionable whether we would consider the roll, but since no formal objection is
made to its consideration, we shall review it for the purpose of determining whether it shows
upon its face any reversible error.
The complaint alleges in substance that the annual meeting of the stockholders of the
defendant company was held on January 12, 1926; that at said meeting less than a majority of
the issued and outstanding stock of the corporation was represented and voted contrary to the
by-laws of the corporation and the statutes of the State of Nevada, and that all subsequent acts
of the directors and officers of the corporation so illegally elected are null and void.
1. The contention of appellant is that the complaint shows upon its face that plaintiff's
intestate owned a majority of the issued and outstanding shares of the capital stock of the
defendant company and that no valid meeting of the stockholders could have been held on
January 12, 1926, by the holders of a minority of the issued and outstanding stock of the
company and, therefore, the judgment should be reversed, but in support of this proposition
counsel does not call our attention to any statute providing that no stockholders' meeting of a
corporation shall be held unless a majority of the outstanding stock is represented. It may be
that the by-laws of the corporation provide that a quorum at a meeting of the stockholders
shall consist of a majority of the outstanding stock of the company, represented in person or
by proxy. The by-laws of the corporation are not noticed judicially, but must be proved as
facts. 16 Cyc. 882; 14 Corpus Juris, 349.
2. The facts not being before us, we must presume that the evidence supports the findings
and the findings the judgment, with respect to the election of the directors and officers of
the defendant corporation on January 12, 1926.
51 Nev. 32, 36 (1928) Caldwell v. Wedekind Mines Co., Et. Al.
the judgment, with respect to the election of the directors and officers of the defendant
corporation on January 12, 1926.
Finding no error upon the face of the judgment roll, the judgment is affirmed.
On Petition for Rehearing
July 6, 1928.
Per Curiam:
Rehearing denied.
____________
51 Nev. 36, 36 (1928) Cawley v. Pershing County
CAWLEY v. PERSHING COUNTY
No. 2781
June 18, 1928. 268 P. 44.
1. Appeal and ErrorSupreme Court Is Not Bound by Admission of Counsel as to
Interpretation of Statute.
Supreme court is not bound by admissions or statements of counsel as to interpretation of statute or as
to any phase of law.
C.J.CYC. REFERENCES
Appeal and Error4 C.J. sec. 2365, p. 557, n. 48.
On petition for rehearing. Petition denied. (For former opinion, see 50 Nev. 411.)
Thomas E. Powell, for Appellant:
Apparently the court in its decision inadvertently overlooked the oral stipulation of
respective counsel upon the argument that the only question involved in the case is whether
or not the constable lawfully retained the civil fees; that if he retained said fees unlawfully the
office was abolished, but if he had a right to take the fees the office was not abolished. There
was no other question involved.
Campbell & Robins, for Respondent:
We cannot agree with the assertion of counsel for appellant that this court failed to decide
the only question submitted. The only question presented, which is the application of the act
of 1919, uninfluenced by the act of 1909 relative to the compensation of certain township
officers in Humboldt County, has been decided, and we can advance no reason more
cogent than the opinion itself as a reason why the petition for a rehearing should be
denied.
51 Nev. 36, 37 (1928) Cawley v. Pershing County
act of 1909 relative to the compensation of certain township officers in Humboldt County,
has been decided, and we can advance no reason more cogent than the opinion itself as a
reason why the petition for a rehearing should be denied.
OPINION
Per Curiam:
A petition for a rehearing has been filed in this case.
The sole question in this case is the interpretation of section 1 of the act of 1919, upon
which our former opinion turned. That act authorized boards of county commissioners to fix
the compensation of township officers, which shall be a salary or the fees as now allowed to
such officers by existing enactments or as shall be fixed by subsequent enactments. * * *
The legislature empowered the board of county commissioners to fix the salary, in the
alternative. It could either fix a straight salary or it could in the alternative allow simply fees.
It could not fix a compensation partly as salary and partly of fees. Yet this is what it sought to
do, and we held that the statute did not give the board such power.
It is contended, also, that counsel for respondent during the oral argument made a certain
admission as to the correct interpretation of the statute, which the court ignored in its former
opinion, and which justified a different conclusion. Counsel did make a statement during the
argument, but this court is not bound by admissions or statements of counsel as to the
interpretation of statutes or as to any phase of law. To hold otherwise would result in opinions
by stipulation of counsel, something no self-respecting court can look upon with favor.
The petition is denied.
____________
51 Nev. 38, 38 (1928) American Sodium Co. v. Shelley, Et. Al.
AMERICAN SODIUM COMPANY v. SHELLEY, Et. Al.
No. 2810.
June 18, 1928. 268 P. 45.
1. Appeal and ErrorAppeal on Judgment Roll Alone Could Not Be Dismissed, on Ground
that no Bill of Exceptions Was Filed, Served, Settled, Etc.
Appeal from judgment on judgment roll alone cannot be dismissed, on the ground that no bill of
exceptions was filed, served, settled, allowed, and authenticated, as required by Stats. 1923, chap. 97,
sec. 1.
2. Appeal and ErrorAppeal Could Not Be Dismissed, where Findings and Judgment on File
Were Signed by Trial Judge, though Copies Served on Respondent Were Not Signed.
Appeal could not be dismissed, on ground that respondent's copies of findings of fact and conclusions
of law and judgment predicated thereon were not signed by trial judge, where copies of findings and
judgment on file were signed by trial judge.
3. Appeal and ErrorOn Appeal on Judgment Roll Alone, Papers Not Constituting Part of
Judgment Roll Cannot Be Considered.
On appeal on judgment roll alone, papers included in transcript, which did not constitute part of the
judgment roll, cannot be considered, under Stats. 1915, chap. 142, sec. 11; a judgment roll consists
only of papers designated by statute.
C.J.CYC. REFERENCES
Appeal and Error4 C.J. sec. 1811, p. 212, n. 43; sec. 2228, p. 486, n. 9; sec. 2363, p. 554, n. 37.
Judgments34 C.J. sec. 226, p. 85, n. 65.
Appeal from Eighth Judicial District Court, Lyon County; J. Emmett Walsh, Judge pro
tem.
Action by the American Sodium Company against Jennie Baldwin Shelley and another.
From the judgment, defendants appeal. On motion to dismiss. Motion denied.
Norcross & Cheney, of Reno, and H. Pilkington, of Yerington, for Appellants:
Green & Lunsford, of Reno, for Respondent.
OPINION
By the Court, Sanders, C.J.:
This appeal was formerly before us upon respondent's motion to dismiss for appellant's
failure to file a transcript within thirty days after the appeal was perfected as provided by rule
2 of this court, which motion was denied and appellants given ten days from the receipt of
a copy of the order within which to file a transcript.
51 Nev. 38, 39 (1928) American Sodium Co. v. Shelley, Et. Al.
as provided by rule 2 of this court, which motion was denied and appellants given ten days
from the receipt of a copy of the order within which to file a transcript. 264 P. 980. Being
dissatisfied with the ruling, the respondent filed a petition for rehearing. Pending the
disposition of the petition, a transcript was filed in this court, with the certificate of the clerk
of the court below attached thereto, which shows affirmatively that the transcript consists of
the original papers constituting the judgment roll. The respondent again moved for dismissal
of the appeal and to strike all the papers specified in the motion which do not constitute a part
of the judgment roll proper. The petition for rehearing was denied in a per curiam opinion not
yet reported.
1. The motion to dismiss is based principally upon the ground that no bill of exceptions
was filed, served, settled, allowed and authenticated as required by section 1 of chapter 97 of
the Statutes of 1923, entitled An act to regulate proceedings on motions for new trials and on
appeal in civil cases. The appeal being from the judgment upon the judgment roll alone, we
do not perceive the relevancy of the motion to dismiss for failure of appellants to perfect a
bill of exceptions within the time and in the manner provided by the statute. The judgment
roll is not incorporated in a bill of exceptions and no bill of exceptions is attached to the
judgment roll. The motion to dismiss upon the ground stated is denied.
2. The motion contains the statement that the findings of fact and conclusions of law and
the judgment predicated thereon appear not to have been signed by the trial judge and,
therefore, the appeal should be dismissed. Counsel for respondent, upon the hearing of the
motion, offered in evidence the copy of the transcript served upon them in corroboration of
the statement. The copies of the findings and judgment on file herein, and certified by the
clerk to be true and correct copies of the originals, do show that they were signed by the trial
judge. We do not think the discrepancy between the copies served and those filed constitutes
sufficient ground for the dismissal of the appeal.
51 Nev. 38, 40 (1928) American Sodium Co. v. Shelley, Et. Al.
3. The motion to strike from the transcript the papers specified is well taken. A judgment
roll consists of the papers designated by statute and of no others. A party may appeal upon the
judgment roll alone, in which case only such errors can be considered as appear upon the face
of the judgment roll. Statutes 1915, 164, section 11. There is included in the transcript before
us a number of papers which do not constitute a part of the judgment roll and, therefore,
cannot be considered on this appeal. Instead, however, of making a formal order striking the
papers we shall adhere to the mandate of the statute and not consider them upon the merits of
this appeal.
The motion to dismiss the appeal is denied.
____________
51 Nev. 40, 40 (1928) Puett v. Harvey
PUETT v. HARVEY
No. 2764
June 20, 1928. 268 P. 41.
1. Appeal and ErrorWhere Defendants Did not Apply to Court for Finding on Issue,
Finding Sufficient to Support Judgment Must Be Implied.
Where defendants made no application to court for finding on issue of location or discovery work on
mining claim, finding in this regard sufficient to support judgment must be implied under civil practice
act, sec. 403 (Rev. Laws, sec. 5345), as amended by Stats. 1919, chap. 177.
2. Mines and MineralsLode Location within Preexisting Placer Carried with it Both Lode
and Rights to Surface Within 25 Feet on Either Side.
Lode location, within a valid and preexisting placer, carried with it both lode and rights to surface
within 25 feet on either side thereof, under Rev. St. U.S. sec. 2333 (30 USCA sec. 37).
3. Appeal and ErrorIn Absence of Finding or Evidence Regarding Location and Direction
of Lode, Supreme Court Must Assume it Extended through Center of 50-Foot
Limitation Defined by Court.
In absence of finding to contrary or evidence as to location and direction of mining lode, supreme
court must assume that it extended through center of 50-foot limitation defined by court.
C.J.CYC. REFERENCES
Appeal and Error4 C.J. sec. 2666, p. 737, n. 58; sec. 2728, p. 778, n. 75.
Mines and Minerals40 C.J. sec. 186, p. 789, n. 70.
51 Nev. 40, 41 (1928) Puett v. Harvey
Appeal from Sixth Judicial District Court, Pershing County; L.O. Hawkins, Judge.
Action to quiet title by A.B. Puett against John P. Harvey and others. From the judgment,
defendants appeal. Affirmed.
Powell & Brown, for Appellants:
It is the contention of the appellants that the judgment is not supported by and is contrary
to the findings and against the law in the following particulars:
That no discovery of mineral in place, as required by law to validate a lode claim located
over a valid and preexisting placer claim, was ever made by the plaintiff within the
boundaries of the Old Grand Placer, or within the boundaries of his purported South
Extension No. 1.
That no discovery work of any kind was ever done or performed on the said purported
South Extension No. 1, as limited by the law relating to the location of lodes over placer
claims, and that no annual labor was ever performed on said claim, so as to be of any
assistance in validating, by relation, an otherwise invalid or unperfected claim.
That the purported South Extension No. 1 lode claimed by the plaintiff never did have and
does not now have any valid or lawful existence.
That the locator of a lode claim over a valid and preexisting placer acquires no placer
rights within the area of the preexisting placer.
That the respondent never did, and does not now, own or possess any placer rights within
the boundaries of the Old Grand Placer.
That defendant Dull is the owner and entitled to the possession of the placer rights within
so much of the area of the Old Grand Placer as is included within the boundaries of his
unnamed mining claim located by him on November 1, 1926, and described in the pleadings.
That the boundaries of plaintiff's purported South Extension No. 1, if it ever did have any
valid and lawful existence, is bounded by lines drawn parallel to, and 25 feet distant from,
and on each side of the vein or lode, wherever that may lead, being limited, in all events,
by the end lines of said purported lode claim, and which said vein or lode is presumed in
law to pass through the center of the end lines of said lode claim, as actually staked upon
the ground.
51 Nev. 40, 42 (1928) Puett v. Harvey
lode, wherever that may lead, being limited, in all events, by the end lines of said purported
lode claim, and which said vein or lode is presumed in law to pass through the center of the
end lines of said lode claim, as actually staked upon the ground.
Cooke & Stoddard, for Respondent:
The finding of the trial court is that on November 27, 1915, plaintiff posted his notice of
location of South Extension No. 1 lode mining claim in a monument constructed according to
law, upon a then subsisting placer location, i.e., the Grand Placer, extending 750 feet
northerly and 750 feet southerly with 300 feet on each side of the middle of the vein, and
sunk a discovery shaft 40 feet west of the discovery monument; that no mineral in place was
exposed in such shaft, but that plaintiff did make a discovery of mineral bearing rock in place
prior to November 1, 1926, and for the assessment year ending July 1, 1926, plaintiff caused
to be done more than $100 worth of labor as assessment work on and for said South
Extension No. 1 claim.
The Grand Placer was abandoned by the owner thereof prior to or at the time of respondent
locating his South Extension No. 1 lode claim upon said Grand Placer, and hence
respondent's South Extension No. 1 was and now is a valid lode location to the full width of
600 feet.
Appellants not having specially pleaded forfeiture of South Extension No. 1 for failure of
plaintiff to do assessment work, are in no position to question either fact or sufficiency of
assessment work on respondent's South Extension No. 1. Lindley Mines (3d ed.), sec. 643, p.
1598; Indiana Nevada Co. v. Gold Hills etc. Co., 35 Nev. 158-166; 126 P. 965; Morrison's
Mining Rights (15th ed.), p. 136-137.
Conceding that South Extension No. 1 is limited to 50 feet in width upon the Grand
Placer, that 50 feet including all mineralboth placer and lodepertains and belongs to the
South Extension No. 1 claim. Mt. Rosa M. & M. Co. v. Palmer (Colo.), 56 P. 176; 77 A.S.R.
245; 50 L.R.A. 289.
51 Nev. 40, 43 (1928) Puett v. Harvey
What constitutes a known vein within limits of a placer claim, when that question is
raised collaterally as here, is a deposit of mineral in place in such quantity and quality as to
justify expenditures for the purpose of further development work. Noyes v. Mantle, 127 U.S.
348; 32 L. Ed. 168-170; McConaghy v. Doyle (Colo.), 75 P. 419; Butte etc. Mng. Co. v.
Sloan (Mont.), 40 P. 217; Thomas v. South Butte etc. Co. (C.C.A. 9th Cir.), 211 F. 105;
Noyes v. Clifford (Mont.), 94 P. 842.
Appellant's unnamed lode claim attempted to be made on November 1, 1926, never was or
became a valid mining location. The Independence claim, being established as a valid
location, it could only be terminated by failure of annual labor or improvement thereon,
followed by a relocation for such failure, thus making potential forfeiture an actuality.
Appellant's attempted location of November 1, 1926, is void because no name was given
to the claim. Rev. Laws, sec.2422, as amended by Stats. 1925, p. 30. The validity of a mining
location must be determined by the law in force at the time the location was made. Wilson v.
Freeman (Mont.), 75 P. 84; Buckeye Mng. Co. v. Powers (Ida.), 257 P. 833-834; Sisson v.
Sommers, 24 Nev. 379, 55 P. 829-830, 77 A.S.R. 815; Upton v. Santa Rita Mng. Co. (N.M.),
89 P. 275; Belk v. Meagher, 104 U.S. 284, 26 L. Ed. 735; Purdum v. Laddin (Mont.), 59 P.
153-154; Thompson v. Barton Gulch Mng. Co. (Mont.), 207 P. 108-113; Butte etc. Co. v.
Baker, U.S. 119; Knutson v. Fredlund (Wash.), 106 P. 200-201.
OPINION
By the Court, Ducker, J.:
This is an action to quiet title to certain mining ground situated in Rochester mining
district in Pershing County, Nevada. The complaint alleges that plaintiff located two lode
mining claims known as and named South Extension No. 1 and South Extension No. 6, the
former on the 27th day of November, 1915, and the latter on the 5th day of July, 1924, and
subsequently fully performed all acts necessary to complete valid locations of said claims.
51 Nev. 40, 44 (1928) Puett v. Harvey
fully performed all acts necessary to complete valid locations of said claims.
In their answer defendants deny the validity of the lode mining locations alleged in the
complaint. It is affirmatively alleged in the answer that on or about the 1st day of November,
1926, the defendant George Dull, after ascertaining that there had been no annual assessment
work performed for the year ending July 1, 1926, upon the part of the public domain formerly
embraced within the Independence lode mine, in good faith and with intent to locate the
same, commenced to work and prospect upon that part of the public domain formerly
embraced within the said Independence lode mine, and found valuable mineral in place
thereon; that on or about the said 1st day of November, 1926, the defendant Dull prepared
and posted upon that part of the public domain formerly embraced within the said
Independence lode mine a notice of location thereof as a lode mining claim; that the
defendant Dull, along with the defendants Harvey and Livesly, continued in good faith and
continuously to work and prospect said ground and with reasonable diligence to perfect a
location of the same under the mining laws of the United States and of the State of Nevada, in
the name and for the use and benefit of the defendant Dull, but, before any mining locations
of such ground had been perfected and before the expiration of the time allowed by law
within which to perform the various acts necessary to perfect such location, and while the
defendants were actually and in good faith working upon, prospecting and mining said
ground, the same being then and there a part of the public domain and open for location under
the mining laws of the United States and the State of Nevada, the plaintiff, without notice to
defendants, wrongfully procured from this court, and caused to be served upon said
defendants, an order restraining and preventing them from entering upon, occupying,
exercising the rights of ownership, perfecting said location, and working and developing the
same, and from mining, producing and hauling valuable mineral bearing gravel and
concentrates therefrom, or from in any manner interfering with the plaintiff's use,
possession and control of the lands occupied by them, to their great and irreparable
damage, and unless said plaintiff is enjoined and restrained by the judgment and order of
this court, said damage will continue indefinitely."
51 Nev. 40, 45 (1928) Puett v. Harvey
with the plaintiff's use, possession and control of the lands occupied by them, to their great
and irreparable damage, and unless said plaintiff is enjoined and restrained by the judgment
and order of this court, said damage will continue indefinitely.
It appears from Exhibit B, made a part of the answer, that the mining location claimed is
unnamed; that it adjoins the Bonanza claim on the northeast, and embraces the old Mary
McKinney mine.
The reply denies the validity of the mining claims alleged in the answer. The case was
tried before the court and substantially the following judgment was rendered: It is ordered,
adjudged and decreed that the plaintiff, subject to his future compliance with the mining laws
of the United States and the State of Nevada regarding the performance of annual labor on
and for the benefit of mining claims, is the owner and entitled to the possession of that
portion of the South Extension No. 1 lode mining claim which is outside of any ground
formerly embraced within the surface boundaries of the old Grand Placer placer mining
claim, and, also, to so much of said South Extension No. 1 lode mining claim located over the
surface of said Grand Placer placer claim as is included within the boundaries formed by end
lines of said Grand Placer claim, and parallel lines drawn through said end lines and 25 feet
distant from each side of the discovery monument of plaintiff's South Extension No. 1 lode
mining claim, including both lode and placer rights therein, thereon, or thereto.
That defendant, George Dull, subject to his completing and perfecting his location of his
claim located by him within the surface boundaries of the old Mary McKinney mining claim
on the 1st day of November, 1926, and to his further compliance with the mining laws of the
United States and the State of Nevada, is the owner and is entitled to the possession of the
whole of the surface of the ground within the boundaries of the said unnamed mining
location, so made by him, and of the whole of the mining rights therein, or thereto, save and
except as to the surface of said unnamed claim which is in conflict with said South
Extension No.
51 Nev. 40, 46 (1928) Puett v. Harvey
claim which is in conflict with said South Extension No. 1 lode mining claim, as the said last
named claim is defined and determined herein, and the mining rights within or appurtenant to
said area so in conflict, and save and except as to such extralateral rights in said unnamed
mining claim, if any there be, vested in plaintiff by reason of his ownership of said South
Extension No. 1 lode mining claim, the prior claim in time of location and superior title.
Defendants have appealed from that portion of the judgment favorable to plaintiff. They
insist that it is not supported by the findings. The findings in support of this part of the
judgment are as follows: That, on or about the 27th day of November, 1915, the plaintiff
posted a notice of location of a lode mining claim in a monument constructed according to
law upon a valid and existing placer mining claim known as and called the Grand Placer,
located in Rochester mining district, Pershing County, Nevada, and bounded on the west by
the Bonanza Placer mining claim and on the east by the Mary McKinney mine, in which
notice of location the plaintiff set out the name of the locator, the name of the claim, the
location of the claim, the number of feet claimed along the course of the lode, to wit, 750 feet
in a northerly direction and 750 feet in a southerly direction from the discovery monument,
together with 300 feet on each side of the middle of the vein, and all matters required by law
to be stated therein, and thereafter, and within twenty days monumented said claim in
accordance with law, and within ninety days after posting said notice of location, performed
location or discovery work for said claim at a point 40 feet west of the discovery monument,
consisting of a shaft four feet wide, six feet long and ten feet deep, but not exposing any lode,
ledge, vein or mineral deposit in place, but did make a discovery of mineral bearing rock or
ledge in place within the surface boundaries of the old Grand Placer, which said discovery
was made by plaintiff prior to July 1, 1926. That said locator did not, within the time
provided by law, or at all, file or record either in the office of the district mining recorder of
Rochester mining district or in the office of the county recorder of Humboldt County,
Nevada, in which said county said mining claim was then located, any certificate of
location thereof, but that said locator did on the 9th day of September, 191S, cause to be
recorded in the office of the county recorder of said Humboldt County, a notice of location
of said claim."
51 Nev. 40, 47 (1928) Puett v. Harvey
the office of the district mining recorder of Rochester mining district or in the office of the
county recorder of Humboldt County, Nevada, in which said county said mining claim was
then located, any certificate of location thereof, but that said locator did on the 9th day of
September, 1918, cause to be recorded in the office of the county recorder of said Humboldt
County, a notice of location of said claim.
That for the assessment year ending July 1, 1926, the plaintiff did, and caused to be done,
more than $100 worth of labor, as assessment work for said South Extension No. 1 lode
mining claim, and that at the time of the attempted location of a portion of the ground within
said claim by defendants on November 1, 1926, that portion of said claim which plaintiff
could legally locate on November 27, 1915, was not subject to relocation by defendants or
any one else.
1. It is insisted by defendants that the judgment cannot be sustained because there is no
finding of a lode deposit of mineral in place on the South Extension No. 1 lode mining claim,
and further insisted that if it can be said that the court made a finding of a discovery within
the limits of the claim as defined by the court, it is not of such a discovery as is required by
law where a lode claim is located over a placer claim. The answer to these contentions is
found in section 403 of the civil practice act (Rev. Laws, sec. 5345) as amended by Stats.
1919, p. 319. The statute reads:
In cases tried by the court, without a jury, no judgment shall be reversed for want of a
finding, or for a defective finding of the facts, unless exceptions be made in the court below
to the finding or to the want of a finding after application to the court for additions to or
modification of the findings with notice given to the adverse party as prescribed in section
285 of this act. Upon failure of the court on such application to remedy the alleged error, the
party moving shall be entitled to his exceptions.
It does not appear from the record that defendants made any application to the court for a
finding on the issue of the location or discovery work on the South Extension No.
51 Nev. 40, 48 (1928) Puett v. Harvey
issue of the location or discovery work on the South Extension No. 1, and counsel concedes
that none was made. Consequently a finding in this regard sufficient to support the judgment
must be implied. Dutertre v. Shallenberger, 21 Nev. 507; Edwards v. Jones, 49 Nev. 342, 246
P. 688.
2. Defendants contend also that if the location of South Extension No. 1 was valid, it being
a lode location within a valid and preexisting placer, it does not carry with it both the lode
and placer rights within its boundaries; that plaintiff is entitled only to the lode. We are of the
opinion that the South Extension claim carries both the lode and rights to the surface within
25 feet on either side thereof. As stated by Mr. Lindley in his excellent work on mines: If we
assume that nothing is reserved out of the placer location but the lode itself, we practically
concede that the reservation is of no substantial benefit to any one, as the right to enjoy it
would be practically denied, * * * but the mining laws contemplate no such conditions. The
only method by which a lode may be located is by defining a surface enclosing it.
The surface of a lode location without placer is defined by sec. 2333, Rev. St. of the
United States (30 USCA, sec. 37), to be twenty-five feet of surface on each side of a lode.
This section, as pointed out by Mr. Lindley, is somewhat ambiguous and has been the cause
of conflicting decisions by the land department. But the question involved here has been
directly, and we think correctly, decided by the supreme court of Colorado in Mt. Rosa, M.M.
& L. Co. v. Palmer, 26 Colo. 56, 56 P. 176, 50 L.R.A. 289, 77 Am. St. Rep. 245, contrary to
defendant's contention.
In that case the lower court found that the appellee had valid lode locations within a placer
and awarded him the full amount claimed, to wit, 300 by 1,500 feet in each of the claims. It
was insisted by counsel for the appellant that he was entitled to only the mineral lodes, and
not to any of the surface of the placer ground. The supreme court held that the lower court
erred in adjudging to appellee surface ground in excess of 25 feet on each side of the lodes in
question.
51 Nev. 40, 49 (1928) Puett v. Harvey
each side of the lodes in question. We quote the following from the opinion, which shows the
reasoning of the court:
The question was also involved upon the trial of the case of Campbell v. Iron S.M. Co. in
the United States circuit court for this district, Judge Riner presiding. He entertained the view,
and instructed the jury to the effect that a lode claimant, in case of a recovery, was entitled to
no more than the vein or lode and fifty feet of ground, extending 1,500 feet in length.
We think this instruction correctly defines the amount of surface ground to which a lode
located within the boundaries of a placer is entitled, under the provisions of section 2333. As
was said in Reynolds v. Iron S.M. Co. supra, this section made provision in three distinct
classes of cases: (1) when the applicant for a placer patent is at the time in possession of a
vein or lode included within the boundaries of his placer claim, he shall state that fact; and on
payment of the sum required for a vein claim and twenty-five feet on each side of it, at $5 per
acre, and $2.50 for the remainder of the placer claim, his patent shall cover both; (2) it
enacted that where no such vein or lode is known to exist at the time the patent is applied for,
the patent for a placer claim shall carry all valuable mineral and other deposits which may be
found within the boundaries thereof; (3) but in case where the applicant for the placer is not
in possession of such lode or vein within the boundaries of his claim, but such vein is known
to exist, and it is not referred to or mentioned in the claim or patent, then the application shall
be construed as a conclusive declaration that the claimant of the placer mine has no right to
the possession of the vein or lode claim.'
We think it is manifest that the lode or vein referred to in the first and third provisions is
the same thing; and that whatever a placer claimant would acquire by availing himself of the
privilege accorded him by the first provision of the section, is reserved by virtue of the third
provision; in other words, that the same extent of surface ground that is incident to such lode
or vein, if located and patented by the placer claimant, is reserved from the placer patent
in case of his failure to claim and patent the same.
51 Nev. 40, 50 (1928) Puett v. Harvey
or vein, if located and patented by the placer claimant, is reserved from the placer patent in
case of his failure to claim and patent the same. If he elects to patent the lode he is required to
take twenty-five feet on each side of the center of the vein and pay therefor at the rate of $5
per acre. This is a privilege accorded to him, which he may avail himself of or not, as he sees
fit. If he elects to waive this privilege, he may do so in one of two ways; either by expressly
excepting the lode from his placer location and application for patent, or remain silent in
regard to it. If silent, then by implication he declares that he makes no claim to such lode; and
by such silence is bound to the same extent, and in the same manner, but no further than he
would have been by an express declaration. By electing to make no claim to a known lode, or
express declaration in regard to it, he must be understood as claiming, for placer purposes, the
greatest possible area within the boundaries of his placer claim, and should be held to have
relinquished only that which he might have taken, which is the lode, with the amount of
surface ground provided. Why should there be any difference between the rights of claimants
of known lodes within the boundaries of a placer? We know of none. The object of excepting
known lodes from placer locations was to prevent titles to such lodes being obtained under
the guise of a placer, at the same time, in order to protect claimants to each character of
mineral locations to the greatest extent, and preserve to each that which was most valuable
for particular purposes in connection with each class of claims. The lode, for convenient
working, could not be limited to less than twenty-five feet on each side of the center of the
vein; and the placer, which would be valueless without such surface rights, is permitted to
take title to the remaining area accordingly. Those who controvert this view base their
contention upon the provisions of section 2320, which it is said governs the length and width
of all lode claims, whether made within the boundaries of a placer claim or not.
An act on a particular subject must be construed as a whole.
51 Nev. 40, 51 (1928) Puett v. Harvey
a whole. Section 2320 refers to the location of lodes not conflicting with any other class of
mineral locations, while by section 2333 special conditions with reference to conflicts
between the two classes of mineral claims are specially provided for; and to that extent
construing the act as a whole is a limitation or qualification of the provisions of section 2320,
which relates, as stated, to the width of lode claims generally and regulates the width of lode
claims when made upon lodes within the boundaries of a placer, whether such lodes are
located by the owner of the placer, or strangers to that title. By this construction, full force
and effect is given to both of these sections, and the purpose of the statute is carried out. The
government receives for its mineral lands the price fixed for lodes and placers respectively,
and the superior right to the surface area of the placer claimant, acquired by his prior location
or patent, is protected. It is the conclusion of a majority of the court that the limitation of the
width of a lode claim in section 2333 is not only applicable to the placer claimant, but applies
as well to others who locate a lode within the boundaries of his previously located placer.
Chief Justice Campbell declines to express an opinion upon this question, because, in his
judgment, the stipulation entered into by counsel eliminates it from the case.
Commenting on this opinion and subsequent ruling of the courts and land department in
accord with it, Mr. Lindley says:
The principle is recognized by the supreme court of Montana (Noyes v. Clifford, 37
Mont. 138). In the case of Clipper M. Co. v. Eli M. & L. Co. (194 U.S.), the Supreme Court
of the United States says somewhat guardedly that the lode claimants would be entitled to at
least 25 feet on each side of the middle of the vein.
The views thus entertained by the supreme court of Colorado have recently received the
approval of the secretary of the interior in a communication addressed to the attorney-general.
* * * The secretary calls the attorney-general's attention to the views in the cases heretofore
commented on, and then gives his unqualified sanction to the doctrine announced by the
court of Colorado, in the following language: 'This decision, coming from the court of last
resort of one of the principal mining states, is entitled to grave weight, and upon careful
consideration of the reasons assigned for the conclusion reached, the department is of the
opinion that the interpretation given the statute in said decision is correct.' This opinion
was referred to and followed by the secretary of the interior in the case of Daphne lode
claim.
51 Nev. 40, 52 (1928) Puett v. Harvey
heretofore commented on, and then gives his unqualified sanction to the doctrine announced
by the court of Colorado, in the following language: This decision, coming from the court of
last resort of one of the principal mining states, is entitled to grave weight, and upon careful
consideration of the reasons assigned for the conclusion reached, the department is of the
opinion that the interpretation given the statute in said decision is correct.' This opinion was
referred to and followed by the secretary of the interior in the case of Daphne lode claim.
With this consensus of opinion of the courts and the land department the rule may be
considered as practically settled. Lindley on Mines (3d ed.), vol. 2, pp. 979-980.
3. It is claimed that the court erred in defining the limits of the South Extension No. 1 over
the Grand Placer as so much thereof as is included within the boundaries formed by the end
lines of the Grand Placer and parallel lines drawn through said end lines and 25 feet distant
from each side of the discovery monument of plaintiff's South Extension No. 1. In the
absence of a finding to the contrary, or evidence as to the location and direction of the lode
we must assume it extended through the center of the 50 foot limitation defined by the court.
The judgment is affirmed.
____________
51 Nev. 53, 53 (1928) Wheeler & Stoddard v. Portland Cattle Loan Co.
WHEELER & STODDARD v. PORTLAND CATTLE LOAN CO.
No. 2759
June 21, 1928. 268 P. 46.
1. Chattel MortgagesGenerally, Proceeds from Sale of Mortgaged Property Must Be
Applied on Mortgage, though Not So Directed.
Generally, in absence of agreement to contrary, money realized from sale of mortgaged property must
be applied on mortgage even without direction to that effect.
2. Chattel MortgagesSilence by Mortgagor Knowing Proceeds of Mortgaged Property
Voluntarily Sold were Applied on First Mortgage and Running Account Held
Ratification, Precluding Claim that Second Mortgage Debt Should Have Been
Preferred.
Where sale of mortgaged property while made at request of mortgagee was voluntary, and mortgagor
was notified of application of money received from sale to payment of balance due on first mortgage and
to running account, and mortgagor did not protest or demand application of money to extinguish second
mortgage, silence with knowledge of fact that payment was applied on running account amounted to
ratification of such application, and mortgagor could not thereafter insist that second mortgage debt
should have been preferred.
3. Bills and NotesChattel MortgagesEvidence Held to Show Acquiescence by Mortgagor
in Application of Proceeds of Mortgaged Property on Running Account, Rather than
Mortgage Indebtedness.
In suit on note and to foreclose second mortgage, evidence that mortgagor was notified of application
of proceeds of mortgaged property to pay first mortgage and on running account, and evidence of
agreement made after notice providing for sale of remaining mortgaged property and full payment of
mortgage, tended to show that mortgagor knew of manner in which proceeds of mortgaged property sold
had been applied and acquiesced therein.
4. Bills and NotesChattel MortgagesKnowledge by Mortgagor that Proceeds of
Mortgaged Property Were Applied on Running Account, Rather than Mortgage, Held
for Jury and Court under Conflicting Evidence.
In suit on note and to foreclose second mortgage, question of notice to and knowledge by mortgagor
that proceeds of part of mortgaged property sold had been applied on running account and not mortgage
held for jury and court under conflicting evidence.
5. Bills and NotesIndorsers on Notes Secured by Mortgage Had No Right to Have Proceeds
of Mortgaged Property Applied to Satisfy Mortgage.
Individual indorsers on notes secured by mortgage having no interest in proceeds of mortgaged
property did not have right to have money derived from sale of part of mortgaged
property applied to satisfaction of mortgage debt rather than to running account
due mortgagee.
51 Nev. 53, 54 (1928) Wheeler & Stoddard v. Portland Cattle Loan Co.
right to have money derived from sale of part of mortgaged property applied to satisfaction of mortgage
debt rather than to running account due mortgagee.
6. PaymentRight of Appropriation of Money to One of Several Debts Due Same Person
Exists Exclusively between Debtor and Creditor.
Right of appropriation of money to one of several debts owing to same person is right existing
exclusively between debtor and creditor.
C.J.CYC. REFERENCES
Bills and Notes8 C.J. Sec. 1389, p. 1068, n. 51.
Chattel Mortgages11 C.J. sec. 347, p. 633, n. 9; sec. 521, p. 714, n. 28; sec. 548, p. 725, n. 45.
Payment30 Cyc. p. 1250, n. 88; p. 1251, n. 94.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Action by Portland Cattle Loan Company against Wheeler & Stoddard, Inc., and others.
Judgment for plaintiff, and defendants appeal. Affirmed.
M.B. Moore, for Appellants:
It was the duty of the Portland Cattle Loan Company, even if there were no indorsers on
the note, in the absence of any agreement to the contrary, to apply the proceeds from the sale
of the mortgaged stock towards the payment of the mortgaged indebtedness, but when there
are indorsers on the note and other interested parties it becomes obligatory upon them so to
do. 27 Ency. Law and Procedure, page 1394, paragraph E, citing in connection therewith Ellis
v. Mason, 10 S.E. 1069 and other cases; 30th Ency. Law & Procedure, page 1237, paragraph
F; numerous citations of authorities in No. 8 at page 1237, 30th Ency.; 30th Ency. page 1248,
paragraph 8; Hicks v. Bingham, vol. 11, Supreme Court Mass. page 302; Strictland v.
Kendall, 3 So. 41; Frazier v. Lanahan, 71 Maryland, 131; 17th Am. St. Rep. 517; Nixon v.
Culvert, 57 N.W. 285; Winston v. Farrow, 40 Ala. 55; Darden v. Gerson, 91 Ala. 323; Brown
v. Larry, 44 So. 843; Lee v. Manley, 70 S.E. 386; Ogden v. Harrison et al., 56 Miss. 743;
Howard et al. v. Schwartz, 55 S.W. 348.
51 Nev. 53, 55 (1928) Wheeler & Stoddard v. Portland Cattle Loan Co.
E.F. Lunsford, for Respondent:
Even assuming under the law and authorities the money from the sale of the mortgaged
property should have been applied to the satisfaction of the mortgage, nevertheless the
respondent having applied it partly to the satisfaction of the open or book account, and having
immediately notified the debtor, Wheeler & Stoddard, Inc., of the manner in which it was
applied, and the appellant not having complained thereof within a reasonable time, the latter
is held to have acquiesced in the method of application, and by its conduct is estopped from
insisting upon a different application after the lapse of a reasonable length of time. The rule
and authorities upon this proposition is found in 21 R.C.L. page 97, under the title
Payment, and the subhead Money Derived from Particular Source or Fund. In addition,
we cite the following cases: Larkin v. Watt (Civ. App.), 32 S.W. 552 (Texas); 30 Cyc. 1239,
citing numerous cases; Sweeney v. Pratt, 70 Conn. 274, 39 Atl. 182; Snyder v. Stone, 78 Ill.
App. 17; Citizens Bank v. Carey et al., 48 S.W. 1013; DeBusk v. Perkins (Ky.), 269 S.W.
716-717; Cain v. Vogt (Iowa), 128 A.S.R. 217; Coney v. Laird (Mo.), 55 S.W. 96; Louis v.
Bauer, 53 N.Y. Sup. 988; Hawkins v. Bouye (Md.), 88 Atl. 196; Zayas v. Lothrop et al., 58 L.
Ed. 172.
The rule is almost universally laid down that guarantors, sureties, indorsers and other third
parties have no interest in the method of the application of funds by either a debtor or
creditor. Wyandotte Coal Co. v. Wyandotte Pav. etc., 97 Kan. 203, 154 P. 1012; Wilson v.
Allen (Ore.), 2 P. 91; H.S. Gile Grocery Co. v. Lachmund (Ore.), 146 P. 519-520;
Wanamaker v. Powers (N.Y.), 79 N.E. 118; Capron v. Strout, 11 Nev. 304; Steiner v. Jeffries
(Ala.), 24 So. 37; Thacker v. Bullock Lumber Co. (Ky.) 131 S.W. 271.
The findings and verdict of a court or jury will not be disturbed by the appellate court
where there is any evidence on which the court or jury could have reasonably formed their
conclusions. McNee v. McNee, 49 Nev. 90; Johnson v. Harris, 48 Nev. 312; Barnett Bank v.
Chiatovich, 4S Nev. 319; Barcellos v. Gompertz, 49 Nev. 326; McGuire v. Ehrlich, 49 Nev.
325; Page v. Walser, 46 Nev. 391; Moore v. De Bernardi, 47 Nev. 33; Strattan v. Raine, 45
Nev. 10; Bralis v. Flanges, 45 Nev. 17S; Little v. Gorman, 114 P. 321; Hills v. Edmund
Peycke {Cal.),
51 Nev. 53, 56 (1928) Wheeler & Stoddard v. Portland Cattle Loan Co.
Bank v. Chiatovich, 48 Nev. 319; Barcellos v. Gompertz, 49 Nev. 326; McGuire v. Ehrlich,
49 Nev. 325; Page v. Walser, 46 Nev. 391; Moore v. De Bernardi, 47 Nev. 33; Strattan v.
Raine, 45 Nev. 10; Bralis v. Flanges, 45 Nev. 178; Little v. Gorman, 114 P. 321; Hills v.
Edmund Peycke (Cal.), 110 P. 1088.
OPINION
By the Court, Ducker, J.:
This action, which resulted in a judgment against appellants, was commenced by
respondent to recover the sum of $15,980.81, with interest thereon, upon a promissory note
executed by the appellant, Wheeler & Stoddard, Inc., and also for a decree foreclosing a
mortgage on live stock given as security for the payment of the note. The appellants, C.S.
Wheeler and Lytton Stoddard, indorsed the note. The mortgage sued on was a second
mortgage. For several years prior to the commencement of the suit the respondent had been
financing the business and operation of Wheeler & Stoddard, Inc. The respondent during this
time advanced all of the moneys with which the former purchased its live stock, sheep and
other personal property, and also all of the moneys which were needed and used to pay the
salaries and all its operating expenses. The respondent took notes and first mortgages on the
property as it was purchased by Wheeler & Stoddard, Inc., and until a late date in 1922 took
notes and second mortgages on the same property for the different amounts advanced for
operating expenses. These notes and mortgages were executed by Wheeler & Stoddard, Inc.,
and indorsed by C.S. Wheeler and Lytton Stoddard. Whenever the Wheeler & Stoddard, Inc.,
sold any portion of its live stock the money would be sent to respondent without directions as
to how the payments should be applied as between the first and second mortgages which
covered the running account. By the spring of 1922 the indebtedness, aside from that
evidenced by the note in question secured by a second mortgage, and an open account
amounting to something like $30,000, had all been paid by Wheeler & Stoddard, Inc.,
except $7,5S4, the balance on a note secured by a first mortgage.
51 Nev. 53, 57 (1928) Wheeler & Stoddard v. Portland Cattle Loan Co.
mortgage, and an open account amounting to something like $30,000, had all been paid by
Wheeler & Stoddard, Inc., except $7,584, the balance on a note secured by a first mortgage.
In the summer of 1922 the respondent prepared a new note covering the amount of the open
or book account and sent it to C.S. Wheeler for the purpose of obtaining his individual
indorsement, together with that of Lytton Stoddard. Wheeler returned the note with a refusal
to sign it. The respondent notified Wheeler & Stoddard, Inc., to sell its live stock and
liquidate its indebtedness, and sent its representative to Reno for that purpose. All of the
sheep belonging to Wheeler & Stoddard, Inc., and which were included in the second
mortgage, were sold and the money sent to respondent. This amounted to the sum of $31,374,
approximately, and was applied by respondent as follows: $7,584 to pay the balance on the
note secured by a first mortgage, and the balance, which was something like $23,717, on the
open book account.
The action was tried before the court with a jury. Special issues were submitted to and
answered by the jury, which were adopted by the court in its findings. Substantially the issues
found by the jury and adopted by the court were as follows: That the note and mortgage sued
upon had not been paid; that there was no understanding between the plaintiff and the
defendant, Wheeler & Stoddard, Inc., and defendant C.S. Wheeler and Lytton Stoddard, or
either of them, that the money received from the sale of the mortgaged stock should be
applied to the payment of the note and mortgage sued upon in reference to any other account
between the parties; that plaintiff notified the defendant, Wheeler & Stoddard, Inc., that the
money received from the sale of the stock was not applied on the note and mortgage, and that
the latter had notice from the plaintiff, or knowledge that the money so received was applied
on the drawing account and other indebtedness between the parties and not upon the note and
mortgage; that the plaintiff on or about the 3d day of November, 1922, informed defendants
Carl Wheeler and Lytton Stoddard that it had applied all except about $7,500 of the
$31,374 received from the sale of the mortgaged sheep to the current or open account of
Wheeler & Stoddard, Inc., and not to the payment of the note and mortgage sued upon in
this case.
51 Nev. 53, 58 (1928) Wheeler & Stoddard v. Portland Cattle Loan Co.
Lytton Stoddard that it had applied all except about $7,500 of the $31,374 received from the
sale of the mortgaged sheep to the current or open account of Wheeler & Stoddard, Inc., and
not to the payment of the note and mortgage sued upon in this case.
This case presents the question whether the appellant were entitled to have the proceeds of
the sale of the mortgaged sheep applied to the satisfaction of the mortgage debt.
1. It is a general rule that in the absence of an agreement to the contrary, money realized
from the sale of mortgaged property must be applied on the mortgage even without direction
to that effect. But there is an exception to this general rule, which is sustained by ample
authority. In 21 R.C.L. 97, the author, referring to the general rule which appellants claim is
controlling in this case, states:
However, a mortgagor, if he sees proper, may consent to adopt or ratify an unauthorized
application of payment made by his mortgagee creditor of the proceeds of mortgaged property
to an unsecured debt. Whether the mortgagor has consented to either is a question of fact to
be determined by the jury, and the burden is upon the mortgagee, in either case, reasonably to
satisfy the jury of such consent or ratification.
This rule was stated in Boyd v. Jones, 96 Ala. 305; 38 A.S.R. 100.
We are of the opinion that the facts of this case bring it within the exception stated. As
said in Cain v. Vogt, 138 Ia. 636:
Rules which bind the mortgagee who sells upon foreclosure, or takes possession of and
sells and converts the security have little application to a case where the payment is made
from money obtained by a voluntary sale of the property.
2. Such is the case here. The sale, while made at the request of the mortgagee, was
voluntary. A representative of the respondent merely assisted in finding a buyer. The jury
found, as we have seen, that appellants Wheeler & Stoddard, Inc., Carl Wheeler and Lytton
Stoddard, were notified by respondent of the application of the money received from the
sale of the mortgaged sheep to the payment of the balance due on the first mortgage and
to the running account, and that they had knowledge of such application.
51 Nev. 53, 59 (1928) Wheeler & Stoddard v. Portland Cattle Loan Co.
Stoddard, were notified by respondent of the application of the money received from the sale
of the mortgaged sheep to the payment of the balance due on the first mortgage and to the
running account, and that they had knowledge of such application. They acquired this
knowledge by notice in writing from the respondent in November, 1922. This suit was
instituted on March 31, 1924. During the intervening time appellants made no protest against
the action of respondents, or demand for an application of the money to the extinguishment of
the mortgage debt. Their silence in this respect during this long period, with knowledge of the
fact that respondent had applied the payment to the first mortgage and on the running
account, amounts to a ratification of such application, and they cannot now be heard to insist
that the second mortgage debt should have been preferred.
3. The point is made by appellants that the evidence does not support the finding of the
jury and the court that they received notice from the respondent of the manner in which the
money received from the sale of the sheep was applied.
After carefully reviewing the evidence we are of the opinion that it is sufficient to sustain
these findings.
Mr. E.E. Williams, the credit manager and assistant secretary of respondent, testified that
the money obtained from the sale of sheep covered by the mortgage was received by his
company on November 3, 1922, and applied to the payment of the first mortgage and on the
running account; that on the same day or the following be sent to Wheeler & Stoddard, Inc.,
the company's official receipt for the money, to which was attached a statement showing the
amount applied in payment of the balance on the first mortgage and the amount applied to the
running account; that they never to his knowledge made any objection to the method by
which the money was applied. There is also further evidence on this point furnished by an
agreement between D.C. Wheeler, Inc., and Wheeler & Stoddard, Inc. This agreement was
signed by appellant C.S.
51 Nev. 53, 60 (1928) Wheeler & Stoddard v. Portland Cattle Loan Co.
Wheeler for D.C. Wheeler, Inc. C.S. Wheeler was president and general manager of Wheeler
& Stoddard, Inc. The agreement was executed on November 13, 1922. It provided for the sale
to D.C. Wheeler, Inc. of the remnant of the live stock, consisting of cattle, remaining covered
by the second mortgage after the sheep subject to it had been sold, and the proceeds of the
sale remitted to respondent. This agreement reads in part:
* * * made this thirteenth day of November, 1922, between D.C. Wheeler, Inc., by its
manager, C.S. Wheeler, and Wheeler & Stoddard, Inc., whose action is hereby approved by
the undersigned Parry Black, representative of the Portland Cattle Loan Company, which
latter-mentioned company hold the live stock herein mentioned under a mortgage.
It also contains the following clause:
The title of the above cattle is to remain in Wheeler & Stoddard, Inc., and the mortgage
held by the Portland Cattle Loan Company is not to be released until the full amount of
money has been turned over to them, i.e., the sum of seven thousand one hundred and ten
dollars ($7,110.00).
4. The property described in the agreement is the same property which was the subject of
this action on the foreclosure proceedings in the court below. It was executed something like
ten days after the money for the sheep was remitted to respondent and a statement of its
application rendered Wheeler & Stoddard, Inc., as testified to by Williams. Consequently, it
tended to show by the clauses recognizing that the live stock was still held under a mortgage
that appellants had knowledge of the manner in which the money for the sheep had been
applied and had acquiesced therein. It is true that C.S. Wheeler testified that Wheeler &
Stoddard, Inc., received the receipt for the moneys, but that no statement showing how the
money was applied was received. However, on this evidence the question of notice and
knowledge was for the jury and court.
5, 6. It is urged in behalf of appellants, C.S. Wheeler and Lytton Stoddard, that they,
being individual indorsers on the note secured by the mortgage, had the right to have the
money derived from the sale of the sheep applied in satisfaction of the mortgage debt.
51 Nev. 53, 61 (1928) Wheeler & Stoddard v. Portland Cattle Loan Co.
and Lytton Stoddard, that they, being individual indorsers on the note secured by the
mortgage, had the right to have the money derived from the sale of the sheep applied in
satisfaction of the mortgage debt. There is no merit in this contention. The law is well
established that the right of appropriation of money to one of several debts owing to the same
person is a right existing exclusively between the debtor and creditor. 30 Cyc. 1251; Gordon
v. Hobart, 2 Story, 243; Wyandotte Coal Co. v. Wyandotte Pav. etc., 97 Kan. 203, 154 P.
1012; H.S. Gile Grocery Co. v. Lachmund (Ore.), 146 P. 519; Wanamaker v. Powers (N.Y.),
79 N.E. 1118; Steiner v. Jeffries (Ala.), 24 So. 37; Thacker v. Bullock Lumber Co. (Ky), 131
So. 271; Pope v. Transparent Ice Co., 91 Va. 79.
The general rule is thus stated in Cyc., supra:
Third persons, such as guarantors, sureties, indorsers, and the like, secondarily liable on
one of the debts, cannot control the application of a payment by either the debtor or the
creditor, and neither the debtor nor the creditor need apply the payment in the manner most
beneficial to such persons.
But this right of appropriation, said Judge Storey, in Gordon v. Hobart, is one strictly
existing between the original parties; and no third person has any authority to insist upon an
appropriation of such money * * * where neither the debtor nor the creditor have made or
required any such appropriation.
In Wyandotte Coal & Mining Co. v. Wyandotte Paving Co., supra, the court said:
The right of appropriation of payments belongs exclusively to the debtor and creditor, and
a third party cannot be heard to complain of a different appropriation from that agreed upon
by the debtor and creditor.
The facts of a given case may bring it within an exception to the general rule, such as
where the money paid is the money of the third party. But in such a case it has been held that
the creditor must know that he is receiving the third person's money or there must be facts
sufficient to put him on notice."
51 Nev. 53, 62 (1928) Wheeler & Stoddard v. Portland Cattle Loan Co.
facts sufficient to put him on notice. Thacker v. Bullock Lumber Co., supra. The money in
this case belonged to the debtor primarily liable, the Wheeler & Stoddard, Inc., C.S. Wheeler
and Lytton Stoddard as individuals had no interest in it, and consequently, under the rule
applicable, had no right to insist upon an appropriation favorable to them.
Counsel for appellants in his brief makes a number of contentions based on alleged errors
at law occurring at the trial. These are not considered for the reason that on a motion formerly
heard and decided by this court in this case the memorandum of errors in this court involving
errors at law occurring at the trial was struck from the record on appeal.
The judgment should be affirmed, and it is so ordered.
____________
51 Nev. 62, 62 (1928) Carroll v. Carroll
CARROLL v. CARROLL
No. 2799
July 2, 1928. 268 P. 771.
1. DivorceSuit for Separate Maintenance Does Not Abate Counterclaim for Same Matters
in Subsequent Divorce Suit.
In suit for divorce, wife's counterclaim was not subject to abatement because same matters had been
pleaded in suit for separate maintenance brought prior to divorce suit.
2. PleadingAbatement Plea Must Go to Entire Cause of Action.
A plea in abatement must go to the entire cause of action.
3. Abatement and RevivalPlea of Prior Action Applies Only where Plaintiff in Both Suits
Is Same Person.
A plea of a prior action pending applies only where the plaintiff in both suits is the same person, and
not where cross-suit is brought by one who is defendant in another suit.
4. PleadingIt Was Incumbent on Plaintiff to Prove Pendency of Prior Suit Pleaded in
Abatement of Counterclaim.
Where plaintiff in divorce suit pleaded suit for separate maintenance in abatement of wife's
counterclaim, it was incumbent on him to prove pendency of such suit.
51 Nev. 62, 63 (1928) Carroll v. Carroll
5. DivorceIt is Presumed on Appeal from Judgment for Defendant, that Plaintiff Did Not
Establish Plea in Abatement.
On appeal from judgment for defendant in divorce suit, in absence of evidence, the presumption is that
plaintiff did not prove pendency of former suit pleaded by him in abatement of counterclaim.
6. DivorceAllegations of Counterclaim for Separate Maintenance as to Necessity that
Husband Contribute Specified Amount Held Conclusions.
Counterclaim in divorce suit for separate maintenance, alleging that defendant had not sufficient income
to support herself in accustomed manner, and that it was necessary that plaintiff contribute specified
amount, alleged only conclusions, and was insufficient.
7. PleadingMotion to Strike Conclusions Was Not Necessary, when Party Demurred for
Want of Sufficient Facts.
Where plaintiff demurred to counterclaim consisting of conclusions for failure to state facts sufficient to
constitute a ground of relief, a motion to strike the allegations was unnecessary.
8. DivorceHusband and WifeDivorce Suits Are Equitable, but Right to Separate
Maintenance Is Determinable from Evidence.
While divorce suits are purely equitable, propriety of allowance for separate maintenance is one of fact,
to be determined from the evidence.
C.J.CYC. REFERENCES
Abatement and Revival1 C.J. sec. 38, p. 45, n. 81; sec. 92, p. 70, n. 87; sec. 100, p. 76, n. 19; sec. 107, p.
82, n. 77.
Divorce19 C.J. sec. 23, p. 22, n. 85; sec. 305, p. 118, n. 55; sec. 475, p. 192, n. 16.
Husband and Wife30 C.J. sec. 897, p. 1088, n. 63.
Pleading31 Cyc. p. 64, n. 31; p. 169, n. 7; p. 617, n. 45; p. 674, n. 34.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Suit by George W. Carroll against Emma F. Carroll. Judgment for defendant, and plaintiff
appeals. Reversed.
Cooke & Stoddard, for Appellant:
Plaintiff's defense of another suit pending, in his answer to defendant's cross-complaint,
same being founded upon the written instruments, i.e., pleadings in former case, not being
denied by defendant, stand admitted and constitute a complete defense to this action.
51 Nev. 62, 64 (1928) Carroll v. Carroll
admitted and constitute a complete defense to this action. Rev. Laws, section 5063; Tonopah
Lumber Co. v. Riley, 30 Nev. 312, 95 P. 1001-1002; Cox v. Schnerr (Cal.), 156 P. 509-511;
Sloan v. Diggins, 49 Cal. 38-40; Rosenthal v. Merced Bank (Cal.), 42 P. 640-641; Knight v.
Whitmore (Cal.), 57 P. 891-892; Moore v. Copp (Cal.), 51 P. 630-631.
A cross-complaint must allege the grounds for divorce or separate maintenance as the case
may be, and the facts constituting the cause of action as fully and completely as a complaint.
3 Bancroft Code Pleadings, p. 2213, sec. 1362; Coulthourst v. Coulthourst, 58 Cal. 239-240;
Hilton v. Dist. Court, 43 Nev. 128, 183 P. 317; Dixon v. Pruett, 42 Nev. 345, 177 P. 11;
Kriechbaum v. Melton, 49 Cal. 55; Haskell v. Haskell, 54 P. 262; Dunham v. McDonald
(Cal.), 168 P. 1063; Bullard v. Bullard (Cal.), 209 P. 361-362; 31 Cyc. 227-228; Rose v.
Treadway, 4 Nev. 455-459; 97 A.D. 546; 1 Bancroft Code Pleadings, 569, sec. 386, n. 9.
Hence this case is squarely within the statute which provides defense of another suit
pending between same parties, for same cause, may be raised by demurrer if the objection
appears upon the face of the answer, or if not so appearing, such defense may be made by the
reply. Rev. Laws, secs. 5054, 5056; see, also, Id. sec. 5040, subdiv. 3, and sec. 5044. See,
also, 1 C.J. 45, sec. 38, 1 C.J. 57, sec. 73; 1 C.J. 61, sec. 80; 1 C.J. 66, sec. 83; 1 C.J. 68, sec.
87; 1 C.J. 70, sec. 92; 1 C.J. 73, sec. 94 and n. 3. Neither does it matter that the parties are
reversed, i.e., defendant here being plaintiff in the former action. 1 C.J. 74, sec. 97.
It affirmatively appearing by defendant's answer that she already possessed in her own
right about $9,000 income per year and owned property worth about $200,000, and no fact
being alleged which might tend to show that same was insufficient for her support, the award
to defendant against plaintiff by the trial court of $200 per month additional for support of
defendant is unsupported by the pleadings, outside of and beyond the issues and contrary to
the admitted facts.
51 Nev. 62, 65 (1928) Carroll v. Carroll
the issues and contrary to the admitted facts. Hilton v. District Court, 43 Nev. 133, 183 P.
317; Black v. Black (Nev.), 221 P. 239-240; Effinger v. Effinger (Nev.), 228 P. 615-616; 2
Nelson on Divorce and Separation; 19 C.J. 215 and n. 67; Rutledge v. Rutledge, 119 S.W.
489; Stiehn v. Stiehn, 72 N.W. 708; Keezer Marriage and Divorce (2d ed.), sec. 701 and n.
99, sec. 740 and n. 5, sec. 754 and n. 40.
Cantwell & Springmeyer, for Respondent:
In a suit in equity, a well-taken plea in abatement results only in the second suit being
stayed, and does not call for the dismissal of the later suit. 1 C.J. 27, sec. 5. If prior to the
hearing on the plea the prior suit be dismissed, the plea will be overruled. 1 C.J. 93, sec. 130;
1 C.J. 94, sec. 132.
By proceeding with the trial of the suit, without first securing a ruling on his plea in
abatement, the appellant waived that plea. 1 C.J. 104, sec. 152, par. 2.
The plea in abatement was not well taken in the first place, and should have been
overruled. Pleas in abatement are not favored in the law. 1 C.J. 28, sec. 7; 1 C.J. 45, sec. 38; 1
C.J. 48, sec. 42.
The general rule obtains that where there are cross-suits the first may not be pleaded in
abatement in the second. 1 C.J. 82, sec. 107. For such a plea to be well taken, the issues must
be the same in the two suits. 1 C.J. 61, sec. 80; 1 C.J. 70, sec. 92; 1 C.J. 72, sec. 93.
There is essential difference between the right of a divorced woman (an ex-wife) to receive
support (permanent alimony) and the right of a deserted wife, not herself at fault, to receive
separate maintenance from her husband. In the former case the relation of husband and wife
no longer exists, and without statutory authority therefor, no such award may be made. 13
R.C.L. 1188. But in the latter case the relation of the husband and wife still continues, and
likewise, the obligation of the husband to support his wife continues, without regard to her
own property holdings or means.
51 Nev. 62, 66 (1928) Carroll v. Carroll
13 R.C.L. 1188; 1 Schoular on Marriage, Divorce, Separation and Domestic Relations, sec.
45; 2 Id. 1570; Veckers v. Veckers (W. Va.), 109 S.E. 234.
OPINION
By the Court, Coleman, J.:
This is a suit for divorce instituted by appellant, the cause of action alleged being that of
cruelty. The defendant denied the allegations of cruelty, and by counterclaim pleaded cruelty
and adultery on the part of the plaintiff. To the counterclaim the plaintiff filed a reply wherein
he denied the affirmative matter of the counterclaim, and also pleaded in abatement that,
previous to the institution of the divorce suit, the defendant had instituted an action for
separate maintenance wherein she alleged the identical matter pleaded by her in the
counterclaim. There are no minor children.
Upon the trial the court entered judgment in favor of the defendant, awarding her separate
maintenance in the sum of $200 monthly. The plaintiff appealed from the judgment only.
On his appeal plaintiff makes but three points: (1) That the trial court erred in disallowing
his plea in abatement; (2) that the counterclaim does not state a cause of action; (3) that the
award to the defendant of separate maintenance was improperly made.
1. We think there is no merit in the first contention. The cause of action pleaded by the
plaintiff as a ground for divorce had not accrued at the time of the institution of the separate
maintenance suit by the defendant, and, when she set up in this suit the matter which she had
pleaded in the separate maintenance suit, she was not the originator of the proceeding, but
was brought in against her will. She did not come into court of her own volition. She was
forced in. The theory upon which the rule relied upon is that no one should be harassed by a
multiplicity of suits. 1 C.J. 45. No such situation is here presented.
2. Furthermore, a plea in abatement must go to the entire cause of action.
51 Nev. 62, 67 (1928) Carroll v. Carroll
entire cause of action. In the separate maintenance suit the plaintiff therein did not seek nor
wish a divorce. In the present action she is opposing plaintiff's action for a divorce, and
incidentally seeking separate maintenance.
The test generally applied in determining whether the plea in abatement is well founded is
whether there is substantial difference in the relief sought. 1 C.J. 70; Whitman Co. v. Baker et
al., 3 Nev. 387.
3. In the instant case there is a substantial difference in the relief sought by the defendant
from that which she sought in her separate maintenance suit, in that she now seeks to defeat
plaintiff's demand for a divorce. The great weight of authority, and the better reasoning, is to
the effect that the plea of a prior action applies only where the plaintiff in both suits is the
same person, and not in cases in which there are cross-suits by one who is the defendant in
another suit. 1 C.J. 82. The reason for this can be readily seen, especially in the circumstances
in which the defendant finds herself in the instant case. She must necessarily plead a portion
of the matter pleaded in her complaint in the separate maintenance suit or suffer an unjust
cause of action, from her standpoint, to go undenied. If the law were as contended by
plaintiff, the policy of the law not to encourage divorces would be overthrown by the law
itself.
Counsel for plaintiff cites authorities which it is claimed sustains his contention, but on
close analysis they are found to be not in point.
4, 5. But, if the views expressed were unsound, it was incumbent on the plaintiff to prove
at the trial the pendency of the former suit. The presumption is that he did not do this, and, as
there is no evidence before us, we must sustain the ruling. Phillips v. Winona etc. R.C. 37
Minn. 485, 35 N.W. 273, 5 Am. St. Rep. 867.
6. We think the contention that the counterclaim does not state a cause of action is well
founded. This contention is based upon the proposition that there is no allegation of fact
showing defendant's necessity for separate maintenance.
51 Nev. 62, 68 (1928) Carroll v. Carroll
separate maintenance. The allegation upon which defendant relies to support her claim of
separate maintenance reads:
That this defendant has not sufficient income to enable her to support herself, and to live
in the manner to which she was accustomed prior to the aforesaid desertion of this defendant
by the plaintiff, and, in order that defendant may continue to live in accordance with her
station in life, and the manner to which she was accustomed, prior to the said desertion of her
by plaintiff, it is necessary that plaintiff contribute to her support and maintenance of the sum
of $500 per month.
It is said by plaintiff that this matter does not state facts, but conclusions, hence it is
insufficient. We agree with this contention. It would be just as reasonable to hold that, to
plead cruelty, all that would be necessary to allege would be that the defendant had treated the
plaintiff cruelly. But we know that such an allegation would not be one of fact. Kelly v.
Kelly, 18 Nev. 55, 51 Am. Rep. 732; Kapp v. District Court, 31 Nev. 444, 103 P. 235. In the
trial of the instant case it was necessary for the defendant to produce evidence of her
necessity, and that evidence could not have consisted of the mere statement that $500 is
necessary to her support. She would have to give testimony as to various things, such as her
age, her health, her station in life, and the like. These facts should have been pleaded.
In the case of Western Union Tel. Co. v. Henley, 23 Ind. App. 14, 54 N.E. 775, it was held
that the naked allegation that it was necessary to send a telegram was a statement of a mere
conclusion, and that the judgment should be reversed.
In 31 Cyc. 64, it is held that a mere allegation that something is necessary or
unnecessary is a statement of a mere conclusion.
See, also, 1 Bancroft Code Pl. sec. 51; Slaughter v. Slaughter, 106 Mo. App. 104, 80 S.W.
3.
7. Plaintiff contends that, since the defendant did not move to strike the allegations he
should not now be heard to complain.
51 Nev. 62, 69 (1928) Carroll v. Carroll
heard to complain. Plaintiff demurred for the reason that the counterclaim did not state facts
sufficient to constitute a ground of relief. A motion to strike was unnecessary.
8. In support of the last contention it is urged that this case is equitable in character, and
that from a consideration of the principles of equity which control, under the pleadings, we
should hold that it would be inequitable to sustain the award of separate maintenance. While
divorce suits in this state are purely equitable in character (Thompson v. Thompson, 49 Nev.
375, 247 P. 545, 47 A.L.R. 569), we think the question of the propriety of the allowance is
one of fact to be determined from the evidence, which is not before us. Greinstein v.
Greinstein, 44 Nev. 174, 191 P. 1082.
The counterclaim failing to state facts sufficient to constitute a cause of action for separate
maintenance, it is ordered that the judgment be reversed.
____________
51 Nev. 69, 69 (1928) In Re Dickerson's Estate
In Re DICKERSON'S ESTATE
No. 2801
July 5, 1928. 268 P. 769.
1. Executors and AdministratorsItems for Fees for Services by Deceased as an
Administrator Held Not Property of Deceased's Estate Authorizing Administration of
Deceased's Estate, where Account Showed Fees Had Been Paid.
In petition for appointment of administrator of estate, items of fees and compensation for services
rendered by deceased as administrator of another estate appearing in final account and petition for
distribution filed by deceased in such estate held not to constitute property of his estate, so as to authorize
administration thereof, where account showed on its face that claims were paid.
2. Executors and AdministratorsThat Deceased Received Compensation as an
Administrator Held Not to Show Retention Thereof Six Years Later to Authorize
Administration of His Estate.
In petition for appointment of administrator, proof that deceased, as administrator of another estate,
had been paid fees and compensation for services rendered as such administrator out of money belonging
to other estate, held no proof that deceased had any part of such compensation at time of
his death over six years subsequent to payment.
51 Nev. 69, 70 (1928) In Re Dickerson's Estate
that deceased had any part of such compensation at time of his death over six years subsequent to payment.
3. Executors and AdministratorsFees Paid Deceased as an Administrator Held Not Part of
Deceased's Estate, Authorizing Administration Thereof, though Not Confirmed By
Court.
Where evidence showed that fees and compensation were paid to deceased as administrator of another
estate over six years before his death, though not allowed by court, action taken after payment of fees could
not alter fact of payment so as to authorize administration of deceased's estate, on ground that such fees
constituted property of his estate, though payment of claims for administration were subject to confirmation
by court.
4. Executors and AdministratorsEstate of Some Value Is Necessary for Appointment of
Administrator Thereof.
Under Rev. Laws, secs. 5857, 5904, and 5911, as amended by Stats. 1923, c. 179, regulating settlement
of estates of deceased persons, property of some kind and value belonging to estate is essential to
appointment of administrator of estate, and where proof showed that no estate, legal or equitable, belonged
to estate sought to be administered, administration was properly denied.
C.J.CYC. REFERENCES
Executors and Administrators23 C.J. sec. 31, p. 1008, n. 33; sec. 323; p. 1131, n. 28.
Appeal from First Judicial District Court, Ormsby County; George A. Ballard, Judge.
Petition by E.G. Chamberlain for appointment of administrator of the estate of Denver S.
Dickerson, deceased, opposed by Mrs. June Dickerson. From an order refusing appointment
of administrator, petitioner appeals. Affirmed.
J.C. Hickey and Chandler & Quayle, for Appellant:
It is questionable whether in cases involving the death of a resident of the state a showing
of any assets remaining at the time of the decease is necessary. In the instant case more was
shown than indeed had to be shown under the authorities, inasmuch as it was proven to the
lower court on the hearing of the application for letters not only that there was a mere claim
or right to enforce some claim, but that there existed, presumably, a perfectly legitimate
claim for reimbursement for outlays and for the statutory fees allowed under the Nevada law
to an administrator, against a fund in his hands as administrator of the Graham estate. In
Re Barlass' Estate {Wis.), 12S N.W. 5S; 11 R.C.L. 6S; 11 R.C.L. sec.
51 Nev. 69, 71 (1928) In Re Dickerson's Estate
under the Nevada law to an administrator, against a fund in his hands as administrator of the
Graham estate. In Re Barlass' Estate (Wis.), 128 N.W. 58; 11 R.C.L. 68; 11 R.C.L. sec. 83, p.
86; McCranie v. Hutchinson (Ga.) 45 L.R.A. (N.S.) 1073, 1075; In Re Daughaday's Estate
(Cal.), 141 P. 929; note in L.R.A. 1915d, p. 856; McCully v. Copper (Cal.), 35 L.R.A. 492,
subdiv. 8; In Re Bailey's Estate, 31 Nev. 377; Woerner's Treatise on the American Law of
Administration, second edition, chapter on What Constitutes Assets, star pages 644, 646,
773.
McCarran & Mashburn, for Respondent:
Every authority cited in appellant's brief sustains our theory that it is absolutely essential
and a prerequisite to an administration that there must be property or assets to entitle an
applicant to letters of administration of the estate of a deceased person. It is too patent to
admit of dispute that if there is no estate (property, assets) of the decedent to administer, there
cannot be any administration.
And under the law of the State of Nevada it is essential that there be property or estate of
decedent before letters of administration may be granted. Sec. 5857, Rev. Laws of Nevada,
1912; Stats. of Nevada, 1923, p. 317, c. 179; In Re Bailey's Estate, 31 Nev. 377; Forrester v.
S.P. Co., 36 Nev. 247; 48 L.R.A. (N.S) 1. Also, under the very similar California statutes: 11
Cal. Jur. 276, sec. 56; Estate of Cover, 204 Cal. 583; Hinkel v. Crowson, 206 P. 59 (bottom
of second column); Estate of Crockett, 4 Cal. Pro. Dec. 328; Estate of Murray, Myr. Prob.
Rep. 208; Estate of Haskell, Myr. Prob. Rep. 204; In Re Davis' Estate, 175 Cal. 525.
The decisions generally throughout the United States support the proposition that there
must be some property or assets of the decedent to be administered as a prerequisite to the
granting of letter of administration. 11 R.C.L. 70, sec. 66; Brubaker et al. v. Janes et al., 23
Kan. 412, 30 P. St. Rep. 292 (middle of page); Ewing v. Mallison, 93 Am. St. Rep. 303;
Fletcher v. Sanders, 32 Am.
51 Nev. 69, 72 (1928) In Re Dickerson's Estate
32 Am. Dec. (Ky.) 96; Woerner on Am. Law of Administration (3d ed.), p. 663, sec. 201,
also, secs. 202 and 235, same work.
We submit, from the showing in the record, there is no estate of decedent Dickerson to be
administered by any court.
OPINION
By the Court, Ducker, J.:
This is an appeal from an order of the First judicial district court of the State of Nevada, in
and for Ormsby County, refusing to appoint an administrator in the above-entitled matter.
Mrs. June Dickerson filed opposition to the petition of the appellant, E.G. Chamberlain, in
which she alleged that she was the surviving wife of the deceased, and that her right was
superior to that of appellant. In her petition she prayed that upon the hearing, if it should be
determined that letters of administration ought to issue, letters should issue to herself. On the
hearing petitioner testified that he was thirty-eight years of age and a resident of Ely, Nevada.
A certified copy of final account and petition for distribution in the matter of the estate of
Charles H. Graham, deceased, from the Ninth judicial district court of the State of Nevada, in
and for White Pine County, was introduced in evidence by the petitioner. This shows that the
original was filed in said last-named court by said Denver S. Dickerson, as administrator of
the Graham Estate, on August 8, 1919. It shows, among other matters, that all debts of the
estate and expenses of administration thus far incurred had been discharged and the estate in a
condition to be closed, estimating the cost of closing the estate at $50; and that the residue of
the property consisted of $4,587.49 in money and an interest of the estate in certain mining
claims. Among the expenses of administration listed in the account appears the payment to
the attorney for the administrator of the sum of $700, $100 thereof on account of the
attorney's fee being paid on August 28, 1914, $100 thereof on March 10, 1917, and $500,
the balance of said fee, on July 25, 1919.
51 Nev. 69, 73 (1928) In Re Dickerson's Estate
10, 1917, and $500, the balance of said fee, on July 25, 1919. There also appears in the
account the following statement of the administrator (Voucher 5): Statutory fees of
administrator upon the total amount of the estate accounted for by him, to wit, $10,295.84,
$345.90. Additional reasonable compensation of the administrator for unusual services
rendered in respect to the estate, $1,000.
The clerk of the Ninth judicial district court, certifying to the copy of the final account and
petition for distribution, further certified as follows: The records of my office show that
there has not yet been a hearing or settlement of the said final account nor a hearing of the
said petition for distribution in the matter of said estate.
Mrs. June Dickerson testified that she was the widow of Denver S. Dickerson, deceased,
and that he died at Carson City on the 28th of November, 1925. The court denied the petition
for letters, on the ground that it had not been shown that Denver S. Dickerson had any estate
to administer.
1-3. The ruling of the lower court was right. There was no showing on the hearing of any
assets belonging to the Dickerson estate. It is contended that the items of $345.90 for the fees
of the administrator, $1,000 as reasonable compensation for unusual services rendered the
estate, appearing in the final account and petition for distribution filed by Dickerson in the
Graham estate, constitute claims by him against the money then held by him as administrator
of the latter estate and property of his estate authorizing an administration thereof. The
account shows on its face that the claims were paid before the account was filed. This appears
both by the presentation with the account of a voucher of payment and by the statement sworn
to by Dickerson that all debts of the estate and expenses of administration thus far incurred
had been discharged and the estate in a condition to be closed. A showing of the fact that
Dickerson as administrator had prior to August 8, 1919, paid himself $1,345.90 for fees and
compensation out of the moneys belonging to the Graham estate is no proof that he had
that or any part thereof at the time of his death over six years later.
51 Nev. 69, 74 (1928) In Re Dickerson's Estate
the moneys belonging to the Graham estate is no proof that he had that or any part thereof at
the time of his death over six years later. It is insisted that the several amounts had not been
allowed by the court, and until so allowed and paid, after the court had acted on them, they
remain claims against the Graham estate and as such property belonging to the Dickerson
estate. It may be conceded that the payment of the claims for administration fees and
compensation was subject to confirmation by the court, but the proof is that they were paid
over six years before Dickerson's death. Whatever action the court might subsequently take
could not alter the fact.
4. Petitioner says that it is questionable whether in cases involving the death of a resident
of the state a showing of any assets remaining at the time of the decease is necessary. We
cannot agree with this position. It is manifest from a reading of our probate act that property
of some kind and value belonging to the estate of the deceased person is essential to the
appointment of an administrator of his estate. Section 48 of an act entitled An act to regulate
the settlement of estates of deceased persons, being section 5904 of the Rev. Laws of 1912, as
amended Stats. 1923, p. 317, provides:
Before letters of administration shall be granted on the estate of any person who is
represented to have died intestate, the fact of his having died intestate shall be proved by the
testimony of the applicant or any other sufficient testimony that may be produced. Proof must
also be made concerning the time, place and manner of death, the place of residence at the
time of death, the location, character and value of his property, and whether the deceased left
a will. Any person may be compelled to attend as a witness for such purpose.
This section alone authorizes a court to refuse letters of administration.
Section 1 of said act provides:
Wills may be proved and letter testamentary or of administration granted in the county of
which deceased was a resident at the time of [his] death, whether death occurred in such
county or elsewhere, and the district court of such county shall have exclusive jurisdiction
of the settlement of such estates, whether such estate is in one or more counties.
51 Nev. 69, 75 (1928) In Re Dickerson's Estate
was a resident at the time of [his] death, whether death occurred in such county or elsewhere,
and the district court of such county shall have exclusive jurisdiction of the settlement of such
estates, whether such estate is in one or more counties. The estate of a nonresident decedent
may be settled by the district court of any county wherein any part of such estate may be. The
district court to which application shall first be made shall have exclusive jurisdiction of the
settlement of such estates.
This section certainly contemplates the existence of an estate as a prerequisite to the
granting of letters.
Section 55 of the same act requires a bond to be given by every person to whom letters
testamentary or of administration have been directed to issue, unless the will shall have
dispensed with the same, and the sum of the penal bond is fixed by the value of the personal
property and rents and profits belonging to the estate.
In In Re Bailey's Estate, 31 Nev. 377, 103 P. 232, Ann. Cas. 1912a, 743, an order issuing
letters on the estate of an intestate was declared void because no bond was required or given.
In fact, the entire statutory scheme of procedure concerning estates of deceased persons
relates to estates to be administered. An administrator appointed without an estate to
administer would be an act entirely at variance with the purpose of the law of administration.
The object of administration, the court said in Estate of F.X. Murray, Myr. Prob. Rep.
208 (Cal.), is to pay debts and distribute the surplus to the heirs. In order to have
administration there must be property to be administered upon.
The real object of the application in the above case was to clothe some one with the legal
status of administrator merely to make him defendant in a suit to quiet title. The application
was denied.
In California under probate provisions similar to ours it is well settled that the ownership
of property by the decedent is essential to the granting of letters of administration of his
estate. 11 Cal. Jur. p. 276, sec. 56; Estate of Cover, 1SS Cal.
51 Nev. 69, 76 (1928) In Re Dickerson's Estate
Estate of Cover, 188 Cal. 133, 204 P. 583; Hinkel v. Crowson, 188 Cal. 378, 206 P. 58-61;
Estate of Crockett, 4 Cal. Pro. Dec. 328; Estate of Haskell, Myr. Prob. Rep. 204; Packard v.
Arellanes, 17 Cal. 525; Estate of Davis, 175 Cal. 198, 165 P. 525. Such also is the weight of
authority generally.
But the citation of authority from other jurisdictions is without any useful purpose.
It is clearly within the expression of our statutes that an estate is essential to a grant of
letters. The proofs adduced at the hearing showed no estate, legal or equitable, belonging to
the estate sought to be administered. Consequently there was nothing for the court to act
upon.
The order of the lower court is affirmed.
____________
51 Nev. 76, 76 (1928) D'Errico v. D'Errico
D'ERRICO v. D'ERRICO
No. 2824
July 17, 1928. 269 P. 26.
1. New TrialStatute Providing for Notice of Motion for New Trial after Written Notice of
Decision Must Be Strictly Complied With, unless Waiver Was Intended.
Statutes 1921, c. 86, providing that notice of motion for new trial might be given after written notice
of decision as respects time for filing same, must be strictly complied with, unless party shows clear
intention to waive it.
2. New TrialService of Unsigned Proposed Findings Held not Equivalent to Written Notice
of Decision as Respects Time for Filing Motion for New Trial.
Service of proposed findings of fact and conclusions of law held not equivalent to written notice of
decision as respects filing of notice of motion for new trial, especially where proposed findings were
unsigned and no notices signed by any one were attached to and served with them.
3. New TrialWaiver of Notice of Decision Will Not Be Presumed unless Clearly Intended.
Waiver of notice of decision will not be presumed unless an intention to waive is clearly intended.
51 Nev. 76, 77 (1928) D'Errico v. D'Errico
4. New TrialLosing Party Could Insist on Statutory Notice of Decision as Respects Time
for Filing New Trial, and Could Not Be Said to Intend Waiving Notice until Moving for
New Trial.
Where prevailing party served proposed findings of fact and conclusions of law on losing party also
presenting proposed findings, and both parties were heard thereon, losing party could stand on statutory
right requiring written notice of decision as respects time for filing notice of motion for new trial, and, until
such notice of intention to move for new trial, it could not be said that losing party intended to waive
written notice of decision.
C.JCYC. REFERENCES
New Trial29 Cyc. p. 939, n. 61; p. 940, n. 62.
Waiver40 Cyc. p. 261, n. 13.
Appeal from Second Judicial Court, Washoe County; Geo. A. Bartlett, Judge.
Action by Joseph D'Errico against Maria T. D'Errico. Judgment for plaintiff, and, from an
order denying defendant's motion for new trial, defendant appeals. On plaintiff's motion to
dismiss the appeal. Motion denied.
Platt & Sandford, for Respondent:
The purpose of the law providing for a written notice of a decision is very forcibly stated
in Kelleher et al. v. Creciat, 26 P. 619, particularly page 620, second column thereof.
In this case there was service of proposed findings in writing and acceptance thereof in
writing, which under our practice could only mean that a decision had been rendered and that
the prevailing party was completing the statutory procedure required in order to secure the
approval of the findings and the signing of a decree. The effect of the service of these
proposed findings was to advise opposing counsel in writing that a decision had been
rendered, and their tacit and written acceptance thereof was in effect a written
acknowledgement of knowledge of this fact. Waddingham v. Tubbs, 30 P. 527-528.
It seems equally clear that defendant by the record has waived written notice of decision.
51 Nev. 76, 78 (1928) D'Errico v. D'Errico
has waived written notice of decision. This rule has been effectually established in Nevada.
Syllabus in Corbett v. Swift, 6 Nev. 194; Hunter v. Truckee Lodge, 14 Nev. 25-28; Forni v.
Yoell, 33 P. 887; Burlock v. Shupe et al., 17 P. 19; Gardner v. Stare, 135 Cal. 118, 67 P. 5,
and cited in Peterson v. Superior Court in and for Butte County et al., 158 P. 547, and
particularly page 548, column 2; Syllabus of Jansson v. National S.W. Co., 168 P. 151;
Walberg v. Underwood, 180 P. 55, particularly columns 1-2, page 57; Barron v. Deleval, 58
Cal. 95-98; Gardner v. Stare et al., 67 P. 5; Smith v. Questa, 207 P. 1036-1038; Hughes v.
Demund, 233 P. 94-95; Nay v. Superior Court of Napa County et al., 237 P. 566; Lewis v.
Fowler, 252 P. 786-788; Prothere v. Superior Court, 238 P. 357-358; Jenkins v. Stevens, 231
P. 112-118; Studebaker Bros. Co. v. Witcher, 195 P. 334-342; California Imp. Co. v.
Varoteau, 47 P. 1018; Thorn et al. v. Finn, 10 P. 414.
Brown & Belford, for Appellant:
When the legislature provided for written notice it did not mean something in writing
from which it might be deduced or inferred that a judgment had at some time been entered.
Waddingham v. Tubbs (Cal.), 30 P. 527. To hold that the service of an unsigned copy of
proposed findings can operate as a signed notice of the decision is to hold that although a
written notice required by law is vitally defective in certain respects, nevertheless if actual
notice is obtained from some other paper defective in the same details, that paper will operate
as a valid and legal notice. The absurdity of this is so apparent as to require no argument.
Since the defendant did not expressly waive the service of notice, the question is whether
or not there was an implied waiver, which must be considered, to begin with, in the light that
the law does not favor implied waivers. Keane v. Murphy, 19 Nev. 89; State v. Murphy, 29
Nev. 247; 40 Cyc. 261; Burlock v. Shupe (Utah), 17 P. 10; Jenkins v. Stephens (Utah), 231 P.
112; Everett v. Jones (Utah), 91 P. 360.
51 Nev. 76, 79 (1928) D'Errico v. D'Errico
Any discussion of this question in the light of the authorities cited by both appellant and
respondent is, however, largely academic in view of the fact that this court settled the law
little more than a year ago in the case of Kondas v. Washoe County Bank, 50 Nev. 181, 254
P. 1080.
OPINION
Per Curiam:
This case is before the court on respondent's motion to dismiss the appeal from the order
denying appellant's motion for a new trial.
The situation out of which this motion grows in this: The trial of the case having been
conducted and submitted to the court for decision, on October 15, 1927, judgment was
entered in favor of the plaintiff as prayed. Four days later plaintiff served upon counsel for
defendant proposed findings of fact and conclusions of law. On October 22, 1927, counsel for
the defendant served on counsel for the plaintiff objections to plaintiff's proposed findings,
and proposed findings of their own. On November 12, 1927, counsel for both parties having
been heard, the court made its formal findings and conclusions of law in favor of the plaintiff.
On November 17, 1927, counsel for the defendant served and filed their exceptions to the
findings of fact and conclusions of law as made by the court. On the 12th of November, 1927,
counsel for defendant filed and served a notice of motion for a new trial.
Counsel for respondent make two propositions in support of their motion, (1) that the
service of the proposed findings by respondent was written notice of the decision; and (2) that
the various acts of counsel for appellant constitute a waiver of such written notice.
1. We cannot agree with either of the contentions made in support of the motion. The
legislature of this state in 1921 (Stats. 1921, c. 86), as the result of the holding of a majority
of this court in Studebaker Co. v. Witcher, 44 Nev. 442-465, 195 P. 334, to the effect that
actual notice of a decision, and not written notice, was all that was necessary to start the time
to run in which a notice of motion for a new trial must be served, enacted that a notice of
a motion for a new trial might be given after written notice of a decision.
51 Nev. 76, 80 (1928) D'Errico v. D'Errico
a notice of motion for a new trial must be served, enacted that a notice of a motion for a new
trial might be given after written notice of a decision.
In considering the effect of the statute of 1921, relative to notice of a decision, we said, in
Kondas v. Washoe County Bank, 50 Nev. 181, 254 P. 1080:
* * * Under the law, plaintiff had ten days from the service of written notice of the
rendition of the judgment in which to file and serve notice of his intention to move for a new
trial. Of course he had actual notice thereof because he was in court when it was rendered, but
when the statute provides for written notice, as in this case, such notice must be given unless
waived. Maurin v. Carnes, 80 Minn. 524, 83 N.W. 415. Surely no court will say that such a
statutory requirement can be deemed waived unless an intention to do so is clearly and
unequivocally manifested. 27 R.C.L. 908; 40 Cyc. 261.
This expression on the part of the court shows a clear intention to require a strict
compliance with the requirement of the statute unless a party shows a clear intention to waive
it.
2. Counsel for respondent cite two cases in support of the contention that the service of
proposed findings is equivalent to written notice. Neither of the cases are in point. In the
instant case, proposed findings and conclusions of law were served, but in Kelleher v.
Creciat, 89 Cal. 38, 26 P. 619, a copy of the findings of the court and judgment as entered
were served, which is a very different thing.
The other case cited, Waddingham v. Tubbs, 95 Cal. 249, 30 P. 527, was one in which the
court held that a certain written notice should be construed as being the notice required by
statute. The case is dissimilar in its facts from the instant case and not in point.
The case which we think is more in accord with the spirit of our statute is that of First Nat.
Bank. of Rapid City v. McCarthy, 13 S.D. 356, 83 N.W. 423. The court in that case, after
reviewing the sections of the statute involved, which is substantially the same as ours, says:
"It is therefore clear from these sections that the notice of the decision which is to set
running the time within which the notice of intention is to be served must be in writing.
51 Nev. 76, 81 (1928) D'Errico v. D'Errico
It is therefore clear from these sections that the notice of the decision which is to set
running the time within which the notice of intention is to be served must be in writing. It is
not sufficient, therefore, to serve upon the adverse party a copy of the findings and judgment,
and secure his admission of service upon the original, but a regular, formal, written notice
must be given of the fact and the time of the making of the decision. * * * This is much the
best rule. It is more certain and definite, prevents controversies which under any other
construction would be likely to arise, and, above all, accords, in our opinion, with the
intention of those enacting the statute.
Numerous authorities are cited in support of the conclusion reached.
Furthermore the proposed findings that were served on counsel for appellant were
unsigned, and, so far as appears, no notices signed by any one were attached to and served
with them. This was no such notice as contemplated. Jansson v. National S.S. Co., 34 Cal.
App. 483, 168 P. 151. Hence from no standpoint can it be said that appellant had written
notice of the decision in the case.
3. Was there a waiver of notice? We think not. Waiver, as we said in Kondas v. Washoe
County Bank, supra, will not be presumed unless an intention to waive is clearly and
unequivocally manifested. Such is the well-recognized rule in Nevada. State ex. rel. Keane v.
Murphy, 19 Nev. 89, 6 P. 840; State ex rel. Equitable Gold Min. Co. v. Murphy, 29 Nev. 247,
88 P. 335. There was no clear intention to waive such written notice until appellant filed and
served its notice of motion for a new trial.
4. It is the usual practice in this state for the prevailing party to prepare and serve on
opposing counsel his proposed findings of fact and conclusions of law. When these are
served, and a showing of such service is made to the court, unless objections and exceptions
are taken to them, the court will naturally assume that there are no objection and will sign
them, usually, as a matter of course; hence losing counsel could be forced in every case to
sit by and make no objections to proposed findings and conclusions or else waive his
right, expressly conferred by statute, to a written notice of the decision, if the contention
of respondent is sound.
51 Nev. 76, 82 (1928) D'Errico v. D'Errico
matter of course; hence losing counsel could be forced in every case to sit by and make no
objections to proposed findings and conclusions or else waive his right, expressly conferred
by statute, to a written notice of the decision, if the contention of respondent is sound. We
think we would be doing great violence to the spirit of the statute to adopt any such view.
Counsel had a right to stand upon the statute requiring written notice, and, until they gave
notice of their intention to move for a new trial, we cannot say that they intended to waive
that statutory right.
For the reasons given, the motion to dismiss is denied.
On Petition for Rehearing
September 13, 1929.
Per Curiam:
Rehearing granted.
____________
51 Nev. 82, 82 (1928) State v. Ramage
STATE v. RAMAGE
No. 2817
August 6, 1928. 269 P. 489.
1. Criminal LawAdmission of Evidence as to which there Was No ObjectAion Held Not
Error.
In prosecution for forgery, admission of certain exhibits as to which there was no objection held not
to constitute error.
2. ForgeryAdmission of Check Passed by Defendant and Admitted To Be Bad Held
Admissible on Question of Intent.
In prosecution for forgery, admission of check which defendant had passed about time other checks
were cashed and which was admitted to be a bad check held admissible on question of intent.
3. Criminal LawErroneous Admission of Checks Found on Defendant's Person without
Evidence as to their Being Forgeries Held Not to Require Reversal Under
Circumstances.
In prosecution for forgery, error in admission of certain checks found in defendant's possession at
time of arrest, without evidence as to their being forgeries, held not to require a reversal under Rev.
Laws, sec. 7469, in view of circumstances establishing defendant's guilt.
4. ForgeryAccused's Unexplained Possession of Forged Paper Raises Conclusive
Presumption that He Forged It.
The possession of forged paper by accused with a claim of title thereto, unexplained, raises a
conclusive presumption that he forged it.
51 Nev. 82, 83 (1928) State v. Ramage
title thereto, unexplained, raises a conclusive presumption that he forged it.
C.J.CYC. REFERENCES
Criminal Law16 C.J. sec. 2218, p. 885, n. 63; 17 C.J. sec. 3751, P. 368, n. 5.
Forgery26 C.J. sec. 119, p. 961, n. 56; sec. 135, p. 969, n. 18.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Thomas Ramage was convicted of forgery, and he appeals. Affirmed.
J.E. McNamara, for Appellant:
The state having alleged forgery, with intent to defraud, the appellant contends that the
trial court should have required the state to prove that the check passed upon the Golden
Hotel was in fact a forgery. Forgery is defined by section 6633, Revised Laws of Nevada,
1912, and it was under this section that the State of Nevada proceeded to prosecute the
defendant. And there was no evidence of any kind introduced to show that the appellant had
forged the check in question (Exhibit A), or that he uttered or passed it knowing it to have
been a forgery, and with intent to defraud.
The appellant contends that the introduction of state Exhibits B, C, D, E, F and G in
evidence was error prejudicial to appellant, in that no proof was offered or tendered that any
of said exhibits were forgeries or that they had been passed or used in anyway with intent to
defraud. The rule that where similar transactions are relied upon to prove intent or motive,
that each similar transaction must be proved as fully as the main transaction which is the
gravamen of the offense, is universal and without dissent. Corpus Juris, Cyc., Ruling Case
Law, Wharton's Criminal Evidence, Underhill on Criminal Evidence, Wigmore and Jones in
their works, all lay down this rule. See, also, People v. Altman, 42 N.E. 180, People v.
Whiteman, 46 P. 99; California Jurisprudence under Forgery; State v. Prins, 84 N.W. 890;
State v. Mills, 73 N.W. 177; State v. Lowry, 24 S.E. 561.
51 Nev. 82, 84 (1928) State v. Ramage
Taking the entire evidence of the state as true, the only crime that could be charged against
appellant is that of uttering a fictitious check, which is a separate and distinct offense from
forgery. Stats. 1927, p. 233.
The general rule is that if the person who accepts the alleged forgery did not rely upon the
maker of the check, but did extend the credit or advance money upon the credit of the person
presenting the check, then there cannot be a forgery with intent to defraud. The testimony
clearly shows that the Golden Hotel cashed the check solely upon credit extended to appellant
and upon his indorsement, and for no other reason.
M.A. Diskin, Wm. J. Forman, L.D. Summerfield and Harlan L. Heward, for Respondent:
The record discloses that Exhibits A, B, E and F were all admitted without any objection
on the part of appellant. Exhibits C, D and G were the only ones to which appellant made
objection. Exhibits C and D were simply checks which appellant had in his possession, and
did not involve other offenses. Exhibit G, alone, was the only other check which appellant
passed to which objection was made. Appellant, through the cross-examination of Mr.
Heward, brought out all of these matters before any of them were introduced by the state over
the objection of appellant. There can be no question that other bad check transactions are
similar to passing a forged check.
It is sufficient to prove these other offenses by the confession of the accused. 16 C.J. 592;
Com. v. Russell, 156 Mass. 196, 30 N.E. 763; State v. Jones, 171 Mo. 401, 71 S.W. 680, 94
A.S.R. 786. In the instant case they were established by appellant's voluntary statements to
Mr. Heward. The cases cited by appellant in this connection are not in point. State's Exhibits
B to G, inclusive, served to unfold and explain the offense with which appellant was charged,
and were admissible for that purpose. 16 C.J. 618.
The fact that the accused gave guaranties to the person to whom he passed the instrument
is not a defense.
51 Nev. 82, 85 (1928) State v. Ramage
defense. 26 C.J. 958; Rex v. James, 7 C. & P. 553, 32 E.C.L. 755. The statute, Revised Laws,
1912, sec. 6663, does not make reliance on the forged instrument any element of the offense.
It is not essential to proving forgery that the paper be accepted as genuine by the party upon
whom the fraud is attempted to be practiced. 26 C.J. 926.
If there are any errors it is submitted that, in view of the record, they are not reversible, and
are within the provisions of sec. 7469, Rev. Laws, 1912.
OPINION
By the Court, Coleman, J.:
The defendant was convicted of forgery and has appealed. He contends that the check
alleged to have been forged was not proven such, and in this connection asserts that the court
erred in admitting in evidence Exhibits B, C, D, E, F, and G.
Section 6663 of the Revised Laws defines forgery, so far as here material, as follows:
Every person who shall falsely make * * * any * * * check * * * or shall utter, * * * pass
* * * as true and genuine, any of the above-named false * * * knowing the same to be false,
* * * with intent * * * to defraud * * * shall be deemed guilty of forgery. * * *
Leo Hogan, the person whose name purported to have been signed to the check in
question, had known the defendant slightly in Salt Lake City some years ago and had met him
on several occasions in Reno shortly before the check was passed. He appeared as a witness
for the state and testified that he did not sign the check and that he had never seen it prior to
its passage, and had never had an account in the bank on which it was drawn. An officer of
the bank testified that the purported maker of the check had never had an account with the
bank.
The defendant went upon the stand and gave testimony in his own behalf, but he did not
testify that he received the check in question from Hogan, or that Hogan signed it or had
authorized him or any one else to sign his name thereto, though it was made payable to
him.
51 Nev. 82, 86 (1928) State v. Ramage
received the check in question from Hogan, or that Hogan signed it or had authorized him or
any one else to sign his name thereto, though it was made payable to him. While in jail he
sent for Mr. Heward, the deputy district attorney, and this officer testified that the defendant
told him that the signature was actually that of Hogan.
Exhibit B, a forged check, which was refused payment by the bank upon which it was
drawn, was admitted in evidence without objection. Exhibit E was a sheet of paper upon
which the witness Hogan wrote his name several times in the presence of the court and jury,
during the trial, and was admitted without objection. Exhibit F, according to the testimony of
witness Heward, was admitted by the defendant to be a bad check. No objection was made to
its admission in evidence. Exhibit G was a check which the defendant passed in Lovelock
about the time the other checks were cashed. The witness Heward testified that the defendant
admitted to him that it was a bad check. Exhibits C and D were checks which were found in
the possession of the defendant at the time of his arrest. There was no proof that the two
last-named checks were forged instruments, or that they could have been or were used
fraudulently in any way. When offered, these exhibits were objected to.
1, 2. As to all of the exhibits except the last two no error was committed. No error could
have been committed as to those concerning which no objection was made, and had there
been an objection as to Exhibit E it would not have been good. 26 C.J. 969. As to Exhibit G,
there being the undisputed testimony of defendant's admission that it was a bad check, it
was admissible on the question of intent.
3. The objection should have been sustained as to Exhibits C and D, as no evidence
whatever was introduced as to their being forgeries, and it was held in People v. Altman, 147
N.Y. 473, 42 N.E. 180, that the admission of checks under such circumstances was reversible
error.
51 Nev. 82, 87 (1928) State v. Ramage
But while the court erred in admitting these exhibits, we cannot say that the judgment
should be reversed for that reason. We do not think the New York case is any aid to us in
determining whether the judgment should be reversed. From a reading of that opinion it
appears that the rule in that jurisdiction is that the appellate court must be able to say when an
error has been committed that no prejudice resulted. This is evident from the following
sentence: It is impossible to say that the defendant was not prejudiced by these papers
admitted against his objection. With us the contrary is the rule.
Section 7469, Revised Laws, provides inter alia that a judgment should not be set aside or
a new trial granted on the ground of improper admission of evidence, unless in the opinion of
this court it shall appear that such error has resulted in a miscarriage of justice, or has actually
prejudiced the defendant in respect to a substantial right. From a consideration of this section
it will be seen that in Nevada it must affirmatively appear that there has been a miscarriage of
justice or that a defendant has been actually prejudiced.
4. Exhibits A, B, and F were bad checks proven beyond dispute to have been used by the
defendant in obtaining money. He does not contend that they were good. His defense, so far
as his evidence is concerned, goes solely to the proposition that he did not intent to defraud
any one. Of course intent is a mental state, and, so far as the State is concerned, must be
shown from the facts and circumstances, but there are certain presumptions which arise from
a given state of facts. It is laid down as a rule of law that the possession of forged paper by the
accused with a claim of title thereto, unexplained, raises a conclusive presumption that he
forged it. 26 C.J. 961.
Pursuant to this rule, the check being payable to the defendant, he must show to the
satisfaction of the jury that there was no intent on his part to defraud. He sought to do this by
a long rambling statement of his own good intentions, that he could have gotten money
without resort to forgery, and the like, had he appealed to his friends in Salt Lake City,
and that the checks were issued while drinking.
51 Nev. 82, 88 (1928) State v. Ramage
money without resort to forgery, and the like, had he appealed to his friends in Salt Lake City,
and that the checks were issued while drinking. He did testify that shortly after his arrest he or
his attorney wrote to two friends in Salt Lake City and that they had no replied because they
were out of the city. So far as it appears from the testimony, they had not at the time of the
trial written offering assistance, nor had he made good the different amounts received on the
three bad checks, as it seems he would have done had his intentions been good and his
testimony been well founded. In the circumstances we do not think the record affirmatively
shows that the defendant was prejudiced by the erroneous ruling of the court.
It is claimed that the hotel which cashed the check did not rely on the purported maker of
the check for protection, but upon the defendant, and hence no crime was committed. The
statute defines the elements of the crime of forgery, and no such exception is embraced
therein. The violation of the terms of the statute made the crime complete.
Perceiving no prejudicial error in the record, it is ordered that the judgment be affirmed.
____________
51 Nev. 89, 89 (1928) Nevada Motor Co. v. Bream
NEVADA MOTOR CO. v. BREAM (NEVADA FINANCE
CORPORATION, Intervener)
No. 2790
August 6, 1928. 269 P. 602.
1. SalesConditional Vendee Is Equitable Owner of Articles Specified in Contract.
Vendee under contract of conditional sale is equitable owner of articles specified in contract.
2. AttachmentInterest of Vendee Under Conditional Sales Contract Is Attachable.
Interest of vendee under conditional sales contract is attachable interest, under Rev. Laws, sec. 5151,
making all property not exempt from execution attachable, and section 5287 subjecting all nonexempt
real and personal property of judgment debtor to execution.
3. SalesOn Attachment of Interest in Automobile of Buyer under Conditional Sales
Contract and Seller's Intervention, Permitting Attaching Creditor to Discharge Balance
of Price Was Not Error, where Buyer Was Not in Default.
Where interest of conditional vendee in automobile was attached, under Rev. Laws, sec. 5151, 5287,
permitting attachment on nonexempt property, and where at the time of the attachment vendee was not in
default under the contract of sale, court did not err in permitting attachment creditor to pay portion of
price remaining due to seller, who intervened, and in ordering car sold to satisfy attaching creditor's
judgment; interest of buyer under conditional sales contract being subject to attachment.
4. SalesConditional Vendor of Automobile Had No Right to Possession Thereof as against
Sheriff, Holding it under Attachment in Action against Buyer Commenced Before Due
Date of First Deferred Payment.
Where attaching creditor began action against buyer of automobile under conditional sales contract
before first deferred payment under contract became due, seller had no right to possession of automobile
as against sheriff, holding car under attachment.
C.J.CYC. REFERENCES
Sales35 Cyc. p. 668, n. 22; p. 678, n. 98.
Appeal from Second Judicial District Court, Washoe County; Geo. A. Bartlett, Judge.
Action by the Nevada Motor Company against J.H. Bream, in which attachment
proceedings were instituted, and in which the Nevada Finance Corporation intervened. From
an adverse judgment, and an order denying a motion for a new trial, intervener appeals.
51 Nev. 89, 90 (1928) Nevada Motor Co. v. Bream
denying a motion for a new trial, intervener appeals. Affirmed. (Coleman, J., dissenting.)
Sardis Summerfield, for Appellant:
The covenants, terms, conditions, obligations and consequents contained in the conditional
sale contract executed by appellant and defendant Bream are authorized by and are within the
permissive scope of the provisions of the Nevada uniform sales act, Stats. of 1915, p. 194, et
seq., and particularly of certain sections thereof.
Not only did defendant Bream at no time have any title to the automobile, but, further, at
no time did he have an attachable interest therein. Studebaker Co. v. Witcher (Nev.), 195 P.
338; Cardinal v. Edwards, 5 Nev. 36; Dillon and West v. Grutt (Nev.), 144 P. 743; Estrich on
Installment Sales, par. 480, p. 902, citing, among other precedents, Cooley v. Gillian, 54
Conn. 80; Sanders v. Wilson, 8 Mackey, 555; Cole v. Berry, 42 N.J.L. 308; Smith v. Foster,
18 Vt. 182. Additional precedents supporting the same text are: Ellis v. Holland (Ga.), 26
S.E. 735; Plymouth Co. v. Fee (Mass.), 64 N.E. 419; Marquette Co. v. Jeffery (Mich.), 13
N.W. 592; National Co. v. Solomon (N.Y.), 85 Hun. 125; Reed v. Starkey (Vt.), 37 Atl. 297.
The lower court's finding that at no time was the defendant J.H. Bream's interest in
default under his contract with intervener, is not merely unsupported by the evidence but is
directly contrary to all of the evidence in the case having any bearing upon the subject of
Bream's failure to comply with the conditions of his contract with appellant. Bream's
admission of his default stands of record.
Thatcher & Woodburn and John Donovan, for Respondents:
The interest of the defendant, the conditional purchaser, is a property interest and may be
reached by an attaching creditor. Moresi v. Swift, 15 Nev. 215; Packard Motor Car Co. v.
Mazer, 77 Pa. Sup. Ct. 348; Rev. Laws, 1912, sec. 5151; C.C.P. Cal., sections 537 to 541;
Savall v. Wauful, 16 N.Y.S. 219, affirmed in 63 Hun. 627; Rose v. Story, 1 Penn.
51 Nev. 89, 91 (1928) Nevada Motor Co. v. Bream
Rev. Laws, 1912, sec. 5151; C.C.P. Cal., sections 537 to 541; Savall v. Wauful, 16 N.Y.S.
219, affirmed in 63 Hun. 627; Rose v. Story, 1 Penn. State, 190, 44 Am. Dec. 121; Estrich on
Conditional Sales, 907; Commentaries on Conditional Sales, Bogert, 35; Ringham v.
Vandegrift (Ala.), 9 So. 280; Ivey v. Coston (Ala.), 32 So. 664; Adler v. Weis etc. Co., 218
N.Y. 295, 112 N.E. 1049.
The intervener in this case by his conduct waived tender of the balance of the purchase
price. It is fundamental that a tender need not be made when, in view of all the circumstances,
it will be unavailing and will be refused. 24 Cal. Jur. 514, and cases cited therein; 38 Cyc.
135, and cases cited therein.
An undisputed and concededly valid tender was made of the balance and full amount due
to the intervener before forfeiture was declared by the intervener. As to tender generally see
Christenson v. Nelson, 63 P. 650, 24 Cal. Jur. 512.
The buyer is not in default if he had offered the amount due even though the seller has
refused to accept the payment, hence the right to possession continues after such tender.
Kindelberger v. Kunow, 106 N.Y.S. 597, 88 N.E. 1122; H.G. Vogel Co. v. Wolff, 141 N.Y.S.
756.
To hold that the interest of the buyer vanished when he permitted the automobile to be
attached is, in effect, sanctioning a forfeiture, and equity does not favor forfeitures. Donoghue
v. Tonopah Oriental Mining Co., 45 Nev. 110 (pages 118-119); Defanti v. Allen Clark Co.,
45 Nev. 120-125; Jones v. G.I. Company, 101 U.S. 622, 25 L. Ed. 1030; Barton v. W.O.
Broyles Store etc. Company (Ala.), 103 So. 854; Golden v. McKim, 37 Nev. 205; 12 Cal. Jur.
623 and 634.
OPINION
By the Court, Sanders, C.J.:
On the 15th day of December, 1926, the Nevada Finance Corporation and one J.H. Bream
entered into a conditional contract of sale whereby Bream agreed to purchase from the
corporation and the corporation agreed to sell, transfer and deliver to Bream, upon the
terms and conditions specified in the contract, a certain Willy-Knight automobile for the
sum of $1,537, payable as follows: $1,050 in cash, upon the signing of the contract, the
receipt of which was acknowledged, and $S2 on the 15th day of January, 1927, and $S1
on the 15th day of each succeeding month until the entire balance of $4S7 should be paid,
with interest at twelve per cent annum after date of maturity.
51 Nev. 89, 92 (1928) Nevada Motor Co. v. Bream
purchase from the corporation and the corporation agreed to sell, transfer and deliver to
Bream, upon the terms and conditions specified in the contract, a certain Willy-Knight
automobile for the sum of $1,537, payable as follows: $1,050 in cash, upon the signing of the
contract, the receipt of which was acknowledged, and $82 on the 15th day of January, 1927,
and $81 on the 15th day of each succeeding month until the entire balance of $487 should be
paid, with interest at twelve per cent annum after date of maturity. The contract, among other
things, provided that if default were made in the payments, the seller could without process of
law retake possession of the automobile and sell it, and credit the buyer with any excess of
the amount due on the purchase price, or that the seller might elect to declare the contract
forfeited and at an end, and in that event take possession of the automobile wherever found,
and treat all payments previously made as compensation for depreciation, damage, and use of
the automobile. Another of the provisions of the contract was that:
The title to the said property shall remain in the first party or its assigns until all of the
said payments are made and all of the conditions herein contained fully complied with.
On the execution of the contract the automobile was transferred and delivered to Bream,
who retained possession and control thereof as owner until the 13th day of January, 1927, on
which date the Nevada Motor Company began an action against him, the buyer, in the court
below to recover a money judgment for the sum of $541.71, and caused said automobile to be
attached and taken into possession by the sheriff of Washoe County to satisfy any judgment
that might be rendered against the defendant Bream in the action. On the 13th of January,
1927, the Nevada Finance Corporation notified Bream orally to release the attachment or it
would have to repossess the automobile under the contract, and notified him again to the
same effect on the 16th of January, 1927. On the 13th and 14th of January, 1927, the
Nevada Finance Corporation had, in writing, also demanded of the sheriff the possession
of the automobile.
51 Nev. 89, 93 (1928) Nevada Motor Co. v. Bream
14th of January, 1927, the Nevada Finance Corporation had, in writing, also demanded of the
sheriff the possession of the automobile. The attachment was not released and the sheriff
refused to deliver possession because of the indemnifying bond given to him by the plaintiff,
Nevada Motor Company. On January 21, 1927, the Nevada Finance Corporation was
permitted to intervene in the action, and it filed its amended complaint in intervention praying
that it be adjudged and decreed that the Nevada Motor Company had no right, title or interest
in the attached automobile; that the automobile was not subject to attachment in the action,
and that the Finance Corporation be adjudged the owner thereof and entitled to its immediate
possession, and that the sheriff be ordered to release said attachment and deliver the
automobile to the plaintiff, Nevada Finance Corporation. J.H. Bream did not answer the
complaint in intervention and his default for failure to answer was duly entered. The Nevada
Motor Company answered, and the issues joined upon the complaint in intervention and
answer thereto were tried to the court without a jury. A trial was first had upon the issues
between the plaintiff and the defendant in which judgment was rendered for the plaintiff and
against the defendant Bream. The issues between the Finance Corporation and the Motor
Company respecting the attached automobile were tried, which resulted in a judgment in
favor of the Motor Company and against the Finance Corporation. Thereupon the corporation
moved for a new trial, which motion was denied. The corporation appeals from the judgment
and from the order denying it a new trial.
The record discloses that both parties prepared proposed findings of fact and conclusions
of law, but upon consideration thereof the trial court made and caused to be entered the
following findings of fact and conclusions of law:
I. That under date of December 15, 1926, the defendant, J.H. Bream, entered into a
contract with the Nevada Finance Corporation for the purchase and sale of a certain
Willys-Knight coupe, 1926 model, serial No.
51 Nev. 89, 94 (1928) Nevada Motor Co. v. Bream
of a certain Willys-Knight coupe, 1926 model, serial No. 16242, the purchase price of which
was the sum of $1,537, said Bream paying thereon $1,050, a true copy of said contract being
attached to intervener's complaint, marked Exhibit A.
II. That on the 13th day of January, 1927, and at all times thereafter the said automobile
had a value of seven hundred ($700) dollars, or upwards, in excess of the claim of the Nevada
Finance Corporation.
III. That at all times on and after the 13th day of January, 1927, the plaintiff was ready
and willing and able to pay the Nevada Finance Corporation the entire balance with interest
due under the said contract, and the plaintiff on the 13th day of January, 1927, duly offered to
pay the same to the Nevada Finance Corporation, which offer the Nevada Finance
Corporation refused.
IV. That at no time was the defendant, J.H. Bream's interest in default under his contract
with the said intervener.
V. That the said intervener, the Nevada Finance Corporation, did not at any time declare a
forfeiture of the rights of the said J.H. Bream given him under said contract.
VI. That on the 13th day of January, 1927, at the commencement of this action, plaintiff
caused the sheriff of Washoe County, Nevada, to attach and seize said Willys-Knight
automobile under a writ of attachment which plaintiff caused to be issued and delivered to
said sheriff, and that said writ of attachment was by this court dissolved on January 18, 1927,
and that upon said last-named day plaintiff again caused the said sheriff to seize, attach, and
hold possession of said Willys-Knight automobile.
VII. That plaintiff, Nevada Motor Company, on the 15th day of June, 1927, deposited in
open court the sum of $520 in gold coin of the United States of America, to cover the
difference between the amount that the said defendant, J.H. Bream, had paid to the Nevada
Finance Corporation, under the terms of the said contract, and the amount due thereunder,
together with interest thereon; that there is due and owing to the Nevada Finance
Corporation the sum of $516.22, which includes the balance due it, with interest.
51 Nev. 89, 95 (1928) Nevada Motor Co. v. Bream
contract, and the amount due thereunder, together with interest thereon; that there is due and
owing to the Nevada Finance Corporation the sum of $516.22, which includes the balance
due it, with interest.
VII. That on the 14th day of January, 1927, and again on the 26th day of January, 1927,
intervener, Nevada Finance Company, demanded repossession of said automobile from the
sheriff of Washoe County, Nevada, who declined to comply with intervener's demands,
giving us a reason for such declinations that he had been indemnified by plaintiff herein.
Conclusions of Law
I. That the interest of the said defendant, J.H. Bream, in said automobile, was and is an
attachable interest.
II. That the attachment of the plaintiff, Nevada Motor Company, lies against the property
heretofore attached, namely, one Willys-Knight coupe, 1926 model, serial No. 16242, and
that said automobile by virtue thereof is subject to attachment.
III. That the clerk of the court be and he hereby is directed to pay to the intervener,
Nevada Finance Corporation, upon its demand, the sum of $516.22, out of the sum deposited
by the plaintiff in court, and to pay the remainder of said fund to the plaintiff.
IV. That the intervener, Nevada Finance Corporation, has no further right, title, or interest
in and to said automobile.
V. That plaintiff have judgment for its costs herein.
In accordance with these findings and conclusions judgment was entered.
1-3. Counsel for the intervener and appellant insists that the court erred in its conclusion of
law No. I, and in rejecting intervener and appellant's proposed counter conclusions. The
conclusion of law No. I reads:
That the interest of the said defendant, J.H. Bream, in said automobile, was and is an
attachable interest.
This is the question of law presented for our determination. All property not exempt from
execution may be attached.
51 Nev. 89, 96 (1928) Nevada Motor Co. v. Bream
attached. Section 5151, Rev. Laws. All property, real and personal, of the judgment debtor,
not exempt by law, and all property and rights of property seized and held under attachment
in the action, shall be liable to execution. Section 5287, Rev. Laws.
The vendee, under a contract of conditional sale, is the equitable owner of the article
specified in the contract. The person in possession of an automobile under a contract of
conditional sale is for all practical purposes the owner thereof. Welch v. Harnett, 127 Misc.
Rep. 221, 215, N.Y.S. 540. At common law a conditional vendee acquired no title until the
condition was performed, and his attaching or execution creditors stood no higher. See
Harkness v. Russell, 118 U.S. 663, 7 S. Ct. 51, 30 L. Ed. 285; Williston on Sales (2d ed.),
sec. 326. This rule is subject to modification and an attaching creditor may be placed in the
shoes of the vendee upon tendering performance of all obligations existing against the
vendee. King v. Cline, 49 Cal. App. 699, 194 P. 290.
As the buyer's right is in its nature analagous to that of a mortgagor, the rights of his
creditors should be defined in the same way as the rights of a mortgagor's creditors; that is,
the creditors should be given the right to discharge the mortgage; namely, pay the portion of
the price remaining due upon the conditional sale and by so doing acquire the right to treat the
full ownership as belonging to the mortgagor or buyer. Williston on Sales, sec. 326.
This is the method allowed by the trial court in this case.
In Coffin v. Northwestern Mutual Fire Ass'n 249 P. (Ida.) 89, 48 A.L.R. 1225, it was held
that:
The buyer acquires more than a contract right, namely, a property right. A creditor of the
conditional vendee may attach the interest of the buyer, pay the portion of the price remaining
due, and by doing so acquire the right to treat the full ownership as belonging to the buyer. Of
course, the buyer must not be in default. The creditor succeeds only to the buyer's rights.
51 Nev. 89, 97 (1928) Nevada Motor Co. v. Bream
We recapitulate the authorities cites in support of the foregoing statements:
1 Williston on Sales (2d ed.), p. 754, sec. 326; Leaf v. Reynolds, 34 Idaho, 643, 203 P.
458; Pease v. Teller Corporation, Limited, 22 Idaho, 807, 128 P. 981; Jones on Chattel
Mortgages, sec. 11, et seq.; Dame v. C.H. Hanson & Co., 212 Mass. 124, 98 N.E. 589, 40
L.R.A. (N.S.) 873, Ann. Cas. 1913c, 329; Hollenberg Music Co. v. Barron, 100 Ark. 403, 140
S.W. 582, 36 L.R.A. (N.S.) 594, Ann. Cas. 1913c, 659; Chicago Equipment Co. v.
Merchants' Bank, 136 U.S. 268, 283, 10 S. Ct. 999, 34 L. Ed. 349; Harley & Willis v.
Stanley, 25 Okl. 89, 105 P. 188, 138 Am. St. Rep. 900; Hervey v. Dimond, 67 N.H. 342, 39
A. 331, 68 Am. St. Rep. 673; Arthur McArthur Co. v. Beals, 243 Mass. 449, 137 N.E. 697.
In Chicago Railway Equipment Co. v. Merchants' National Bank, supra, the court said:
But as pointed out in Arkansas Valley L. & C. Co. v. Mann, 130 U.S. 69 (32 L. Ed. 854,
857, 858), the agreement in Harkness v. Russell was upon the express condition that neither
the title, ownership nor possession of the engine and sawmill which was the subject of the
transaction should pass from the vendor until the note given by the vendee for the stipulated
price was paid. Turning to the notes here in suit, we find every element of a sale and
transmission of ownership, despite the provision that the title to the cars should remain in the
payee, until all the notes of the series were fully paid. * * * The agreement that the title
should remain in the payee until the notes were paidit being expressly stated that they were
given for the price of the cars sold by the payee to the maker, and were secured equally and
ratably on the propertyis a short form of chattel mortgage.
This case is followed in a number of cases. In Atkinson v. Japink, 186 Mich. 338, 152
N.W. 1080, it is held that, where an automobile is sold for cash the two notes, reserving title
to car until notes were paid, title is retained as security only.
In Williston on Sales, section 330, it is said: "As the purpose of the seller's right,
whether a legal title or whether a right to resume the title on breach of condition, is
merely to give him security for payment of the price, the transaction is in its essence a
mortgage, though futile distinctions are often made."
51 Nev. 89, 98 (1928) Nevada Motor Co. v. Bream
As the purpose of the seller's right, whether a legal title or whether a right to resume the
title on breach of condition, is merely to give him security for payment of the price, the
transaction is in its essence a mortgage, though futile distinctions are often made.
That this is true has been frequently recognized. See note 80, Williston on Sales, section
330.
We find no error in the action of the trial court in permitting the Nevada Motor Company
to pay the portion of the price remaining due upon the conditional sale of the automobile and
in ordering it sold to satisfy the judgment of the company, the creditor of the buyer.
4. It is contended that the evidence does not support the finding of the trial court that at no
time was the defendant Bream's interest in the automobile in default under the contract of
sale. We find no error in this finding. The Motor Company began its action against Bream
two days before the date upon which the first deferred payment specified in the contract
became due, and the Nevada Finance Corporation had no right of possession of the
automobile as against the sheriff of Washoe County. Newhall v. Kingsbury, 131 Mass. 445.
The judgment is affirmed.
Ducker, J.: I concur.
Coleman, J.: dissenting:
In England, and in every state in the United States except Pennsylvania, where the point
has been decided, it has been consistently held that a vendee under a conditional sale contract
has no interest in the property sold that could be levied upon under execution or attachment.
Some of the authorities so holding are: Barrett v. Pritchard, 2 Pick. (Mass.) 512, 13 Am. Dec.
449; Strong v. Taylor, 2 Hill (N.Y.), 326; Keck et al. v. Natl. Cash Register Co., 12 Ind. App.
119, 39 N.E. 899; Sanders v. Wilson, 8 Mackey (19 D.C.), 555; Owen v. Hastings, 18 Kans.
446; Cole v. Berry, 42 N.J.L. 308, 36 Am. Rep. 511; Herring v. Hoppock, 15 N.Y. 409;
Hasbrouck v. Lannsbary, 26 N.Y. 598; Hanway v. Wallace, 18 Ind. 377; Woodruff v.
McDonald Fur. Co., 96 Ga. 86, 23 S.E.
51 Nev. 89, 99 (1928) Nevada Motor Co. v. Bream
195; Bradshaw v. Thomas, 7 Yerg. (Tenn.) 497; Smith v. Foster, 18 Vt. 182; Natl. Cash
Register Co. v. Coleman, 85 Hun. 125, 32 N.Y.S. 593; Morris v. Allen, 17 Cal. App. 684,
121 Pac. 690; Drake on Attachment, sec. 246; McIver v. Williamson etc. Co., 19 Okl. 454, 92
P. 170, 13 L.R.A. (N.S.) 696; Marston v. Baldwin, 17 Mass. 606; Blanchard v. Child, 7 Gray
(Mass.), 155; Porter v. Pettengill, 12 N.H. 299; Marquette Mfg. Co. v. Jeffrey, 49 Mich. 283,
13 N.W. 592; Hughes v. Kelly, 40 Conn. 148; 35 Cyc. 678, note 98; Installment Sales
(Estrich), sec. 480.
Nor am I in accord with the view that the conditional sale contract was in effect a chattel
mortgage. Johnson v. Kaeser et al., 196 Cal. 686, 239 P. 324; Fed. Com. Bank v. Int. Clay M.
Co. 230 Mich. 33, 203 N.W. 166, 43 A.L.R. 1245, and notes.
Chief Justice Holt in Thorpe v. Thorpe, 1 Salk, 171, laid down a very wholesome rule
when he said every man's bargain ought to be performed as he intended it, which, so far as I
am advised, has always been the principle which has been followed by this court.
On Petition for Rehearing
October 1, 1928.
Rehearing denied.
Coleman, J.: I dissent.
____________
51 Nev. 100, 100 (1928) Bream v. Nevada Motor Co.
BREAM v. NEVADA MOTOR COMPANY
No. 2789
August 7, 1928. 269 P. 606.
1. Principal and AgentIn Action by State Agent against Local Distributing Agent on Notes
and on Account Stated, Receipt in Evidence of Book Account Was Not Error.
In action on notes given by local agent for automobiles to state agent to secure assistance in financing
sales, receipt in evidence of book account was not error, where plaintiff also asserted cause of action on
account stated.
2. Principal and AgentJudgment for Plaintiff Held Supported by Evidence in Action by
State Agent against Local Distributing Agent on Notes and Account Stated.
In action by state agent against local distributing agent on notes given for plaintiff's assistance in
financing sales and on account stated, evidence held sufficient to support judgment for plaintiff's
recovery.
3. PleadingAmendments to Pleadings During Trial to Conform to Proof Should Be
Liberally Allowed.
Court should be liberal in permitting amendments to pleadings to conform to proof during trial.
4. CostsMileage of Witnesses from Another State, Traveling within State Distance in
Excess of Thirty Miles, Was Not Taxable as Costs.
Where witnesses resided in Utah and traveled within the State of Nevada a distance in excess of 30
miles, no allowance could be taxed as costs for mileage.
C.J.CYC. REFERENCES
Accounts and Accounting1 C.J. sec. 249, p. 678, n. 71.
Agency2 C.J. sec. 721, p. 949, n. 32; sec. 726, p. 952, n. 63.
Cost15 C.J. sec. 298, p. 133, n. 78.
Pleading31 Cyc. p. 450, n. 72.
Appeal from Second Judicial District Court, Washoe County; George A. Bartlett, Judge.
Suit by J.H. Bream against the Nevada Motor Company, in which defendant pleaded a
counterclaim. Judgment for plaintiff, and from the judgment and an order denying defendant's
motion for a new trial and to retax costs, defendant appeals. Affirmed in part, and
remanded, with instructions to modify ruling on motion to retax costs.
Harry Swanson, for Appellant:
The notes being given for a stated purpose, and no liability being proven or attempted to
be proven as set forth in the Deposits clauses in the agreements, we maintain that the said
notes, and each of them, are in fact null, void and of no effect, and should have been so
declared by the lower court.
51 Nev. 100, 101 (1928) Bream v. Nevada Motor Co.
maintain that the said notes, and each of them, are in fact null, void and of no effect, and
should have been so declared by the lower court.
The plaintiff laid a foundation for the purpose of, and made efforts to go into the items of
the account stated, which was improper. 1 C.J. 729, par. 402; 1 C.J. 726, par. 397.
Though the plaintiff alleged the account stated to have taken place on the 13th day of
January, 1927, the testimony of Howard Brown, president of the Nevada Motor Company, is
that the only time there could have been any account stated would of necessity been in
February of 1926, if at all, which was not sufficient. 1 C.J. 723, par. 381; 1 C.J. 728.
Defendant's assent to the settlement must be averred. 1 C.J. 723, par. 382. The time when
the account was stated must be alleged. 1 C.J. 724, par. 386; Loventhal v. Morris, 103 Ala.
332, 15 So. 672.
The judgment must of course conform to the pleadings in an action on an account stated. 1
C.J. 730, sec. 406; Davis v. Boswell, 77 Mo. A. 294.
In an action strictly upon an account stated, the plaintiff must recover upon the account
stated or not at all, and he cannot recover upon the original items of account nor upon
quantum meruit. Duerr v. Sloan, 181 P. 407; Foster v. Dwire, 199 N.W. 1017.
A complaint on an account stated cannot be amended at the trial so as to change the action
to one upon an account. Bailey v. Wilson, 55 P. 973.
It is submitted that the witnesses A.A. Anderson and Howard Brown were not entitled to
mileage beyond a distance of 30 miles from the county in which the trial occurred. Rev. Laws
1912, sec. 5431; Naylor v. Adams, 114 P. 997; Zelavin v. Tonopah Belmont Dev. Co., 39
Nev. 1.
Thatcher & Woodburn and John Donovan, for Respondent:
It is a well-settled principle of law that where there is a substantial conflict in the
testimony the judgment will be affirmed. Stratton v. Raine, 45 Nev. 24; Dixon v. Miller, 43
Nev. 2S0-2SS
51 Nev. 100, 102 (1928) Bream v. Nevada Motor Co.
Miller, 43 Nev. 280-288; Thompson v. Tonopah Lumber Company, 37 Nev. 183, and cases
cited at page 188; Gardner v. Gardner, 23 Nev. 214; Page v. Walser, 46 Nev. 390-409; Moore
v. DeBernardi, 47 Nev. 33-40; Bawden v. Kuklinski, 48 Nev. 181-188; McNee v. McNee, 49
Nev. 90-93; Dunphy v. Dunphy, 119 P. 512.
Pleadings may be amended at the trial to conform to the proof. Rev. Laws 1912, sec. 5081;
Finnegan v. Ulmer, 31 Nev. 523-527; Miller v. Thompson, 40 Nev. 35-41; Ramezzano v.
Avansino, 44 Nev. 72-80; Gartlan v. C.A. Hooper & Company (Cal.), 170 P. 1115; Koeberle
v. Friganza (Cal.), 226 P. 35-38.
It is sufficient to allege that an account was stated between the parties, that a certain sum
was thereby found due from one to the other, and that no part of such sum has been paid.
Chittenden Company v. Leader Furniture Co., 201 P. 843; United States Health etc. Co. v.
Batt, 17 N.E. 195-197.
Where defendant denies the statement of an account, the plaintiff may show the particular
transactions between the parties as a basis for the statement of the account. Steinmetz v.
Grennon (Ore.), 212 P. 532-536; Miller v. Carnes (Minn.), 103 N.Y. 877; 1 C.J. 728.
The allegation of the time when the account was stated need not be proved strictly as laid.
Loventhal v. Morris (Ala.), 15 So. 672.
The statement of the account need not be in writing. Quinn v. White, 26 Nev. 42, 62 P.
995; 1 C.J. 682, sec. 256; 1 Cal. Jur. 197; Bennett v. Porter (Cal.), 183 P. 156; Converse v.
Scott (Cal.), 70 P. 13.
Courts of appeal will not disturb the findings or decree of the trial court for any errors in
the admission of testimony that did not work substantial injury to the party claiming to have
been aggrieved. E.W. McClellan Company v. East San Mateo Land Company, 137 P.
1145-1147.
OPINION
By the Court, Coleman, J.:
Respondent, as plaintiff, brought suit to recover a money judgment. The amended
complaint upon which the trial was had contains four causes of action.
51 Nev. 100, 103 (1928) Bream v. Nevada Motor Co.
the trial was had contains four causes of action. The first three causes of action were upon
promissory notes and the fourth was upon an account stated.
An answer was filed admitting the execution of the notes sued upon, but alleged that the
notes sued upon in the first and second causes of action were deposited as security to secure
certain contingent indebtedness that never accrued. The answer alleged full payment of the
note described in the third cause of action, and denies that there had been an accounting as
alleged in the fourth cause of action. The defendant also pleaded a counterclaim.
Judgment was rendered in favor of the plaintiff, from which an appeal has been taken. The
defendant also appealed from the order denying his motion for a new trial, and from an order
denying his motion to retax costs.
The plaintiff is the state agent for the Packard and Hupmobile cars. The defendant was
desirous to become the agent of the plaintiff within certain territory in the state, and entered
into what appears to be the usual agreement in such cases. The plaintiff was to help the
defendant finance his sales and to that end, as a protection, demanded a cash deposit.
Defendant being unable to make the cash deposit gave the notes sued upon and deposited
certain stock. It was upon these notes and an alleged account stated that the suit was brought.
It is contended that the trial court erred in receiving evidence of a book account, in view of
the cause of action upon an account stated. It is also asserted that the evidence shows no
indebtedness due the plaintiff.
1. Taking up the first contention, we do not think, in view of the nature of the dealings
between the parties, that the court committed error in going into the book account between
the parties. The question of the payment of the notes involved credits given the defendant, as
commission on sales, charges for parts sent him, in pursuance of the agreement, advances
made, and the like.
2. We think there is nothing in the contention that the evidence does not support the
judgment. We have read the entire evidence with care, and the record shows that the trial
judge was cautious and considerate, and we cannot say that a correct conclusion was not
reached.
51 Nev. 100, 104 (1928) Bream v. Nevada Motor Co.
that the trial judge was cautious and considerate, and we cannot say that a correct conclusion
was not reached. Three witnesses testified as to certain vital matters in support of the
plaintiff's case, and certain letters and telegrams tend to confirm portions of plaintiff's case.
The defendant kept no account of his transactions, and though he testified that in October,
1924, the accounts between the parties were fully settled, there is a letter in the record, written
by him after that date, in which he admits his inability to pay. We do not deem it necessary to
review the evidence at length.
3. During the trial the court permitted an amendment to conform to the proof. This was
perfectly proper and courts should be liberal in allowing such amendments. Miller v.
Thompson, 40 Nev. 35; 160 P. 775; Ramezzano v. Avansino, 44 Nev. 72, 189 P. 681.
The plea of an account stated was properly averred. 1 C.J. 678.
4. It has been stipulated that we may dispose on this appeal of the ruling of the trial court
on the question of costs. We think the motion to retax costs should have been granted as to
the two items of $44.52 mileage of two witnesses from the Utah-Nevada state line to Reno.
We held in Zelavin v. Tonopah Belmont Dev. Co., 39 Nev. 1, 149 P. 188, that a party
could not recover mileage for witnesses coming from another county in which he resides, if
over thirty miles distant, and since the witnesses in question resided in Utah and traveled
within this state a distance greatly in excess of thirty miles, no allowance can be made. We
said in the case mentioned:
* * * Since it was not shown on the hearing of the motion to retax costs that they were
not served at the state line, we will not disturb these items.
That case was tried in Reno, Washoe County, less than thirty miles distant from the
California state line, which is a very different state of facts from those in the instant case.
It is ordered that the case be remanded to the trial court with instructions to modify its
ruling on the motion to retax costs as herein indicated, and that the judgment be affirmed
in all other respects.
51 Nev. 100, 105 (1928) Bream v. Nevada Motor Co.
to retax costs as herein indicated, and that the judgment be affirmed in all other respects.
Appellant to recover his costs incident to the appeal as to costs only.
____________
51 Nev. 105, 105 (1928) Ex Parte Guisti
Ex Parte GUISTI
No. 2827
August 8, 1928. 269 P. 600.
1. InfantsTo Give Court Jurisdiction to Commit Child as Delinquent, Petition Held
Required to Allege in Conjunctive Matters Enumerated.
To give the court jurisdiction to make an order committing a child as a delinquent, the matters
required by Rev. Laws, sec. 731, to be alleged in the petition, that the named child is a delinquent, that it
is for the best interest of it and the state that it be taken from its parents and placed under guardianship of
some person to be appointed by the court, and that its parents are unfit guardians, or consent that it be
taken from them, must be alleged in the conjunctive.
2. InfantsPetition, though Insufficient to Give Jurisdiction to Order Minor Committed as
Delinquent, Held to Authorize that Child Report.
Petition charging a minor with being a delinquent, though not alleging all the facts as required by
Rev. Laws, sec. 731, to give the court jurisdiction to order commitment of the child as delinquent, held to
authorize the court to proceed and, on proper showing, to make findings and orders requiring the minor
to report as provided in section 736.
3. InfantsProceeding under Juvenile Court Act against Child as Delinquent Is Not
Criminal, Relative to Procedure, so Statute Only Need Be Complied With.
Proceeding under juvenile court act (Rev. Laws, 1912, secs. 728-756), against one charged only with
being a delinquent child is not criminal nor one according to the courts of common law, so the
constitutional and statutory provisions relative to criminal procedure are not applicable, but the court
need only comply with the requirement of the act under which the petition is filed.
4. InfantsJury, if Desired in Delinquent Child Proceeding, Must Be Demanded under
Juvenile Court Act.
Even if there be an issue to be tried, under juvenile court act (Rev. Laws, 1912, secs. 728-756),
providing that any person interested may demand a jury, due process would not be denied by the
court proceeding to hear and dispose of the matter, in a delinquent child
proceeding, without a jury, unless one was demanded.
51 Nev. 105, 106 (1928) Ex Parte Guisti
denied by the court proceeding to hear and dispose of the matter, in a delinquent child proceeding, without
a jury, unless one was demanded.
C.J.CYC. REFERENCES
Infants31 C.J. sec. 231, p. 1105, n. 8, 19; sec. 234, p. 1107, n. 69; sec. 237, p. 1109, n. 7.
Juries35 C.J. sec. 110, p. 201, n. 99; sec. 123, p. 210, n. 4.
Original proceeding. Application of N. Guisti for a writ of habeas corpus, for discharge of
a minor from custody. Discharge ordered.
C.E. Robins, for Petitioner:
Section 728 of Rev. Laws defines a dependent and delinquent child. Section 731 provides
for the filing of a petition in writing which shall set forth four allegations. Section 736
provides: If the court find a child delinquent, the court may allow it to remain in its own
home, make reports, etc.; but before committing to any other place, the statute provides that
the court shall find all of the three facts therein stated. Hence the trial court was without
jurisdiction to make the commitment. Ex Parte Webb, 24 Nev. 239, 242; Paul v. Armstrong,
1 Nev. 82; 14 Cal. Jur., title Infants, sec. 32, and In Re Lewis, 86 P. 996; Ex Parte Mundell,
86 P. 833; 14 Cal. Jur. sec. 34; In Re Guiterriz (Cal.), 188 P. 1004; People v. Guiterriz, 190 P.
200; Ex Parte Burner, 139 P. 90.
In California the juvenile court law, Stats. 1915, 1225, provides that a ward may be taken
from the custody of his parents if any one of the four named facts appear. But in In Re Devore
(Cal.), 221 P. 706, it is contended that more than one of the four facts, if not all, should be
found before a commitment could issue; but the court held that a finding that his welfare
demanded that he be removed from the custody of his natural guardians was enough, and
that evidence was not necessary as to the circumstances covered by the other branches of the
section. To the same effect is Ex Parte Daedler (Cal.), 228 P. 471. In other words, the facts
are set out in the California statute in the disjunctive, while the law of Nevada sets out
three facts which must be found, and the statute lists those facts in the conjunctive.
51 Nev. 105, 107 (1928) Ex Parte Guisti
facts are set out in the California statute in the disjunctive, while the law of Nevada sets out
three facts which must be found, and the statute lists those facts in the conjunctive.
See, also, Henley v. Superior Court (Cal.), 121 P. 921; 45 A.L.R. 1530; Mill v. Brown
(Utah), 88 P. 609; Ex Parte Satterthwaite (Mont.), 160 P. 346.
M.A. Diskin, Attorney-General; Wm. J. Forman, Deputy Attorney-General; and J.A.
Jurgenson, District Attorney, for Respondent:
In view of this statutory provisions and in view of the cases cited by petitioner, it is the
contention of the state in this proceeding, not that the lower court did not err in rendering the
judgment which it did, but that habeas corpus in this court is an improper remedy, for the
following reasons:
1. This court should not take jurisdiction by way of habeas corpus for the matter is still
pending undetermined in the district court of Pershing County, as the return shows that a
notice of intention to move for a new trial has been filed therein. In this connection the case
of In Re Doyle, 55 P. 1080, is a parallel case to the case at bar. See, also, State ex rel.
Bressman v. Theisen, 142 S.W. 1088; In Re Farrell, 45 P. 428; Ex Parte Barnett, 167 S.W.
845; People v. District Court, 46 P. 844; State v. Gunter, 66 So. 844; 12 R.C.L. 1218.
Proceedings to declare a child delinquent being in no sense criminal proceedings, but civil
(State v. Superior Court, 245 P. 409; 7 R.C.L. 981), the district court of Pershing County still
has before it the matter of the motion for a new trial.
2. Proceedings by way of habeas corpus to determine the proper guardian of an infant do
not involve any question of personal freedom. New York Foundling Hospital v. Gatti, 51
Law. Ed. 254.
3. The lower court had jurisdiction of the parties to the action and the subject matter of the
action, and, therefore, its judgment is not void but merely erroneous. It is provided by section
736, Rev. Laws of Nevada, 1912, that if the court finds a child delinquent, the court may
allow it to remain in its own home or be placed upon probation; make reports to the
judge, etc.
51 Nev. 105, 108 (1928) Ex Parte Guisti
that if the court finds a child delinquent, the court may allow it to remain in its own home or
be placed upon probation; make reports to the judge, etc.
OPINION
By the Court, Coleman, J.:
This is an original proceeding in habeas corpus to have Guilio Guisti, a minor under the
age of eighteen years, released form the custody of Frederick Davis, as superintendent of the
Nevada School of Industry.
On the 10th of April, 1928, a petition was filed in the juvenile department of the Sixth
judicial district court, in and for Pershing County, charging Guilio Guisti with being a
delinquent child. This petition was verified on information and belief as authorized by statute.
Thereupon a summons was issued directing the defendants to appear at two o'clock p.m. of
the day mentioned. The parents acknowledged in writing upon the summons service of the
petition, waived service of the summons, and agreed to be present in person at the hour
mentioned. At the time set all of the defendants appeared in court in person, without counsel.
Upon being informed of the nature of the charge, Guilio Guisti admitted having been caught
in possession of a bottle of wine. A hearing was had to the court, in which considerable
evidence was given, at the conclusion of which the court found all of the allegations of the
petition to be true, and ordered that the said Guilio Guisti be committed to the Nevada School
of Industry.
After the said minor had been committed, a petition for a writ of habeas corpus was
presented to this court and a show cause order made. The petition herein alleges the
proceedings in the district court, as stated; that an application for a writ of habeas corpus had
been presented to the Fourth judicial district court of the State of Nevada, in and for Elko
County, the district and county in which the said minor is confined, and that the same had
been denied; it alleges that the court was without jurisdiction to make the order of
commitment under which custody of the said minor is maintained, in that the necessary
facts required by section 731 of Rev. Laws are not averred; that no notice of the pendency
of said petition was properly given to the parents of the said minor; that the defendants
were denied "due process of law," in that they were in effect denied a jury trial, denied
the right to answer said petition, and never had an opportunity to seek and obtain the
advise of counsel; that no evidence was given showing or tending to show that the
parents of said minor were unfit or improper guardians of said minor, or unable to care
for, protect, train, educate, correct, control or discipline said child, or that said parents or
either of them consented that said child be taken from their custody.
51 Nev. 105, 109 (1928) Ex Parte Guisti
under which custody of the said minor is maintained, in that the necessary facts required by
section 731 of Rev. Laws are not averred; that no notice of the pendency of said petition was
properly given to the parents of the said minor; that the defendants were denied due process
of law, in that they were in effect denied a jury trial, denied the right to answer said petition,
and never had an opportunity to seek and obtain the advise of counsel; that no evidence was
given showing or tending to show that the parents of said minor were unfit or improper
guardians of said minor, or unable to care for, protect, train, educate, correct, control or
discipline said child, or that said parents or either of them consented that said child be taken
from their custody.
1, 2. We will consider first the contention that the petition filed in the district court did not
aver sufficient facts to give that court jurisdiction to make the order of commitment
complained of. Section 731, Rev. Laws, which is the section authorizing the filing of such a
petition, so far as is here material, reads:
Any reputable person, being a resident of the county, may file with the clerk of the court
having jurisdiction of the matter, a petition in writing setting forth that a certain child, naming
it, within his county, is either dependent, neglected or delinquent as defined in section 1
hereof; and that it is for the interest of the child and this state that the child be taken from its
parent, parents, custodian or guardian and placed under the guardianship of some suitable
person to be appointed by the court; and that the parent, parents, custodian or guardian of
such child are unfit or improper guardians, or are unable or unwilling to care for, protect,
train, educate, correct, control or discipline such child, or that the parent, parents, guardian or
custodian consent that such child shall be taken from them.
It is said that a petition, to confer jurisdiction, must contain the following allegations: (1)
The name of the child; (2) that it is either dependent, neglected or delinquent; (3) that it is for
the interest of the child and this state that the child be taken from its parents and placed under
the guardianship of some person to be appointed by the court; {4) that the parents of
such child are unfit or improper guardians, or are unable or unwilling to care for, protect,
train, educate, correct, control or discipline such child, or consent that said child be taken
from them, and that the matters stated under the four heads must be alleged in the
conjunctive.
51 Nev. 105, 110 (1928) Ex Parte Guisti
under the guardianship of some person to be appointed by the court; (4) that the parents of
such child are unfit or improper guardians, or are unable or unwilling to care for, protect,
train, educate, correct, control or discipline such child, or consent that said child be taken
from them, and that the matters stated under the four heads must be alleged in the
conjunctive.
The portion of section 731, Rev. Laws, quoted, is not in the disjunctive, but is in the
conjunctive as to the matters required to be alleged in the petition when it is sought to take a
child from the custody of its parents, or other person legally entitled to its custody, and the
petition in question not containing allegations in the conjunctive of all of said matters did not
confer jurisdiction to make the order in question, though it did confer jurisdiction authorizing
the court to proceed, and, upon proper showing, to make findings and orders requiring the
minor to report as provided in section 736.
That the point made is well taken is not debatable. In fact, the Attorney-General concedes
the correctness of the contention. Such was the holding in Ex Parte Satterthwaite, 52 Mont.
550, 160 P. 346, and in Mill v. Brown, 31 Utah, 473, 88 P. 609. There is no dissent on this
point among the authorities.
However, it must be kept in mind that under designation 4 any one of several matters may
be alleged, but it must be alleged together with the other matters required.
It is clear that the minor must be discharged from custody, but it does not necessarily
follow that he was not properly found to be a delinquent child and that an order may not be
made requiring him to report as above intimated. In fact, we think there is no merit in the
other contentions made.
3. The procedure against one who is charged merely with being a delinquent child, under
statutes such as ours, is almost universally held to be purely statutory in nature, and is not
criminal nor quasicriminal, nor a proceeding according to the course of the common law.
51 Nev. 105, 111 (1928) Ex Parte Guisti
The juvenile court law is based upon the inherent right of the State to assume the care,
custody and control of a child when conditions make it necessary for the welfare of the child
and the state that it be done. In England, long before statutes such as ours were thought of,
Lord Redesdale said in Wellesley v. Wellesley, 2 Blight (N.S.) 124, that the right of a
chancellor to exercise powers such as are conferred by our statute had not been questioned for
150 years.
The Supreme Court of Michigan, having under consideration a similar statute, in the case
of Robison v. Wayne Circuit Judges, 151 Mich. 315, 115 N.W. 682, said:
* * * In a large number of cases considered by the courts of last resort in various states
similar legislation has been under consideration. The beneficient character of legislation
making provision for the care of unfortunate, delinquent or neglected children has been
generally recognized. But a single case has fallen under our notice in which the court has
looked with jealousy upon legislation of this character, and that is the case of People ex rel.
O'Connell v. Turner, 55 Ill. 280, a case which, in its essential features, has been discredited
by a later decision of the supreme court of Illinois in Petition of Ferrier, 103 Ill. 367, and
which is now chiefly notable as an example of the vigor with which that which is not the law
may be stated. But in the following cases, Ex Parte Crouse, 4 Whart. (Pa.) 11;
Commonwealth v. Fisher, 213 Pa. 48; State v. Brown, 50 Minn. 353 (16 L.R.A. 691);
Milwaukee Industrial School v. Milwaukee County Sup'rs., 40 Wis. 328; Mill v. Brown, 88
P. (Utah) 609, the distinction is noted between cases of this character in which the
investigation is into the status or needs of the child, and a case where his offenses are being
considered for the purpose of administering punishment. See, also, Hunt v. Wayne Circuit
Judges, 142 Mich. 93.
As we said in State v. Brown: A person committed to the care and custody of a person in
charge of an institution of the character of the Minnesota State Reform School is not
"punished" nor is he "imprisoned" in the ordinary meaning of those words.'
51 Nev. 105, 112 (1928) Ex Parte Guisti
institution of the character of the Minnesota State Reform School is not punished nor is he
imprisoned in the ordinary meaning of those words.'
So in the Petition of Ferrier, it was said: This is not a proceeding according to the course
of the common law, in which the right of a trial by jury is guaranteed, but the proceeding is a
statutory one, and the statute, too, enacted since the adoption of the constitution. There was
not, at the time of such adoption, the enjoyment of a jury trial in such a case.'
Quoting Cooley on Constitutional Limitations (7th ed.), where, at p. 459 it is said: In
those cases which formerly were not triable by jury, if the legislature provide for such a trial
now, they may doubtless create for the purpose a statutory tribunal, composed of any number
of persons, and no question of constitutional power or right could arise.'
Such legislation as that under consideration is but a transfer of the jurisdiction which
formerly reposed in the court of chancery, in the exercise of the right of the king as parens
patriae to the guardianship of children, to the juvenile courts which perform the duty of
seeing that the child is properly cared for.
We are satisfied that, so far as the law authorizes the determination of the status of the
child, and authorizes the commitment of the child to the custody of a probation officer or to
the custody of the keeper of one of the industrial schools for the purpose of education and
reformation, the proceeding may be said not to be a criminal proceeding.
We might quote from a multitude of authorities to the same effect, but since the rule stated
is now generally accepted, we content ourselves with citing 31 C.J. p. 1105, and note to
Lindsay v. Lindsay, Ann. Cas. 1914a, p. 1227.
From what has been said it follows that the constitutional and statutory provisions relative
to criminal procedure are not applicable, but that the court need only comply with the
requirements of the provisions of the act under which the petition was filed. 31 C.J. p. 1105.
51 Nev. 105, 113 (1928) Ex Parte Guisti
4. Section 731 provides for the issuance of summons, and the following section states
what it shall contain. Summons was issued in compliance with the above, and the parents
indorsed upon the summons an acknowledgement of a receipt of a copy of the petition and
waived the service of summons and agreed to be present in court at the time ordered. They
thereafter appeared and produced the minor in court. Upon their appearance the court called
upon the matter by title, stating that it had been instituted by the filing of petition, and that
summons had issued thereon, and that in answer to the summons all of the defendants were in
court. It then stated the nature of the charge, ordered the minor to stand up, and addressing the
minor said: What have you to say with regard to the charge? In response the minor said:
Your honor. I was caught in possession of one of the bottles of wine. He was then asked
numerous questions, to which he gave answers. While it is held that, when the proceedings
are not criminal in nature, an arraignment is not necessary (31 C.J. 1109), the proceeding in
the instant case was substantially an arraignment and the entry of a plea of guilty. This being
done, there was no occasion for the calling of a jury, as there was no issue to try, but merely
the making of findings by the court, and the determination of the question of the proper order
to be made.
But we are clearly of the opinion that under no circumstances would due process have
been denied had the court, without any statement from the minor or his parents, proceed to
hear and dispose of the matter without a jury, unless one was demanded. It was not the duty
of the court to call a jury of its own motion. May of the earlier juvenile court acts make no
provision for a jury, and they have been held valid. Our act, which was adopted after many
others had been upheld, provides that any person interested may demand a jury. This places
a positive duty on the interested person to make the demand if a jury is desired. They cannot
sit by and gamble on the outcome, and after an adverse finding assert their neglect as a
ground for relief.
51 Nev. 105, 114 (1928) Ex Parte Guisti
relief. If the statute provided that a jury should be called unless waived, it would then have
been safer for the court to have called a jury, unless an actual waiver was made, though the
great weight of authority holds that going to trial without making a demand for a jury
constitutes a waiver. See 35 C.J. 201 and 211.
What we have said disposes of the jurisdictional matters urged during the argument.
It is ordered that Guilio Guisti be discharged from custody, but, in view of the findings of
the court, we think it has jurisdiction to require that he report as provided by section 736.
____________
51 Nev. 114, 114 (1928) Hoyt v. Paysee
HOYT v. PAYSEE (LANDER COUNTY, Garnishee)
No. 2777
August 10, 1928. 269 P. 607.
1. GarnishmentGarnishment Is Purely Statutory, and County Is Not Liable as Garnishee, in
Absence of Clear Expression of Legislative Intent.
Garnishment is purely statutory proceeding, and county will not be subjected to inconvenience and
liability of garnishment, unless legislative intent so to subject it is clearly expressed.
2. GarnishmentCounty Held Not Subject to Garnishment under Statute Making Municipal
Corporations Liable as Garnishees.
County held not subject to process of garnishment under Rev. Laws, sec. 5154, which makes all
persons, including municipal corporations, liable as garnishees; county not being municipal corporation
within meaning of statute, notwithstanding construction of Const. art. 8, sec. 10.
3. Statutes-Legislature, on Enacting Law, Is Presumed to Have Been Familiar with
Applicable Court Decisions.
Legislature must be presumed to have been cognizant of applicable court decisions at time of
enactment law.
C.J.CYC. REFERENCES
Counties15 C.J. sec. 2, p. 392, n. 33.
Garnishment28 C.J. sec, 2, p. 17, n. 35; sec. 70, p. 58, n. 14.
Statutes36 Cyc. p. 1135, n. 12.
51 Nev. 114, 115 (1928) Hoyt v. Paysee
Action by John D. Hoyd against Robert Paysee, defendant, and Lander County, garnishee.
From a judgment dismissing the action against the garnishee, plaintiff appeals. Affirmed.
Norcross & Cheney and John D. Hoyt, for Appellant:
There can be no doubt that it was not only within the power of the county commissioners
to make answer to the writ of garnishment, but that it was their statutory duty, imposed by
law, so to do. When in the performance of such statutory duty said commissioners made what
turned out afterward to be a misstatement of fact, such act was not an act in excess of their
power, but a mistake in the exercise of a power possessed by them. 21 C.J. 1195.
In such circumstances, by a vast weight of authority, it has been settled that in the
performance of such duties a municipal corporation is subject to the principle of estoppel just
as a private person or a private corporation. 21 C.J. 1189; Seward v. Fisken, 122 Wash. 225,
210 P. 378; Curnen v. N.Y., 79 N.Y. 511; Hubbel v. City of South Hutchinson, 68 P. 52; City
of Oakland v. Oakland Water Front Co., 124 P. 251; City of Seattle v. Stirrat, 104 P. 834;
Washington Water Power Company v. City of Spokane, 154 P. 329; City of Colorado Springs
v. Colorado City, 94 P. 316; City of Portland v. Inman Poulsen Lbr. Co., 133 P. 829; Seely v.
Board of Education, 146 N.E. 187; State v. Pohle, 202 N.W. 148; Webster v. Toulon High
School District, 145 N.E. 118; Grimes County v. Slayton, 262 S.W. 209; Murphy v. Duffy,
124 Atl. 103; Quarles v. City of Appleton, 299 Fed. 508, 515.
If Lander County and its commissioners may now be heard to say that they were mistaken
and that they did not make truthful answer in the garnishment proceeding, then it will result
that this plaintiff, without fault, will have been substantially injured, and there will have been
a miscarriage of justice.
It is well settled that the extent and limit of process of garnishment depends entirely upon
the statute, and that the question as to whom may be made garnishee is therefore purely a
matter of statutory construction.
51 Nev. 114, 116 (1928) Hoyt v. Paysee
that the question as to whom may be made garnishee is therefore purely a matter of statutory
construction. 28 C.J. 55. Therefore, we think there can be little doubt in view of the wording
of the Nevada statutes that it was the intention to include the State of Nevada and its
agencies, including counties, cities, townships and school districts. We refer the court first to
section 5151, Rev. Laws, which seems to indicate a legislative intent that all property of a
defendant in the state, not exempt from execution, might be reached by attachment. This
would certainly include property which might be temporarily in the custody of a city or
county or of the state. Section 5154, upon whose construction this question directly revolves,
provides that all persons, including municipal and other corporations may be made
garnishees, from which all inclusive language there seems to be a clear legislative intent that
the process of garnishment shall extend to either public or private entities capable of owing a
debt or having in its possession a credit of the defendant. Turning to section 5169 we find that
the writ of garnishment may be issued for the purpose of reaching the credits, effects, debts,
choses in action, and other personal property of the defendant in the possession or under the
control of any third person. Again, in section 5172 the act provides: The names of as many
individuals, corporations, or other persons as are sought to be charged as garnishees may be
inserted in the same or different writs of garnishment. Since the term individuals includes
at least all natural persons, and the term corporations includes at least all private
corporations, the only legal entities to which the words other persons can refer are public
agencies, including the State of Nevada, with its counties, cities, towns and school districts.
Haddock v. McDonald (Kans.), 159 P. 402. It may be suggested, for the sake of clearness,
that the municipalities here referred to include counties, townships, cities and towns.
Thompson on Corporation (3d ed.), sec. 750. In the case of County of Lincoln v. Luning, 133
U.S. 529, 33 L. Ed. 766, the supreme court carefully analyzed article VIII of the
constitution of Nevada, particularly section 10, and held: "The liability of counties as
municipal corporations to suit is declared by the constitution itself."
51 Nev. 114, 117 (1928) Hoyt v. Paysee
court carefully analyzed article VIII of the constitution of Nevada, particularly section 10, and
held: The liability of counties as municipal corporations to suit is declared by the
constitution itself. In section 1361, Rev. Laws, as amended in 1915, there is a clear
recognition by the legislature of the right of an individual to attach funds of a third person on
deposit with the state treasurer. See, also, Mitchell v. Miller (Minn.), 103 N.W. 716;
Waterbury v. Deer Lodge County (Mont.), 26 P. 1002.
Howard E. Browne, District Attorney of Lander County, for Respondent:
Section 5174, Rev. Laws, 1912, provides that the garnishee shall answer the
interrogatories in writing upon oath or affirmation. Hence it is not sufficient that the
document or paper be signed, but it is a necessary prerequisite that it likewise be sworn to
before a person duly authorized to administer oaths according to law. Tacoma Grocery
Company v. Draham, 36 P. 31; 2 C.J. 338, footnote 83, par. h; Carlisle v. Gunn, 68 Miss.
243, 8 So. 743; State of Nevada v. Board of County Commissioners, Washoe County, 5 Nev.
317; Morgan v. Board of County Commissioners of Eureka County, 9 Nev. 360. Further, the
interrogatories are indefinite, they are not explicitly answered, and their meaning is
ambiguous and confusing.
Where there is an admission in a pleading that the merits of the cause of action therein
have been fully determined in another action, that pleading certainly does not allege sufficient
facts to constitute a defense. Gulling v. Washoe County Bank, 29 Nev. 257; Sherman v.
Dilley, 3 Nev. 21; McLeod v. Lee, 17 Nev. 103; Vickers v. Vickers, 45 Nev. 274; Edwards v.
Jones (Nev.), 246 P. 688; Ahlers v. Thomas, 24 Nev. 407; Bermond v. Metropolis Land Co.,
40 Nev. 89; 34 C.J. 442, et seq. (res judicata).
A county is exempt from being made a garnishee for reasons of public policy. 28 C.J. 58,
par. 70, Counties. A county is not a corporation within the meaning of the terms of our
statute, sec.
51 Nev. 114, 118 (1928) Hoyt v. Paysee
terms of our statute, sec. 5172, Rev. Laws, 1912. It is a subdivision of the state, and unless
the wording of the statute is specific in providing that the garnishee process apply to the state,
counties or municipal corporations, such governmental agencies under the general principles
of law are exempt from the garnishee process. Duval County v. Charleston Lumber and Mfg.
Co., 60 L.R.A. 549 (Fla.); State v. Tyler, 45 P. 31 (Wash.); Flood v. Libby, 80 P. 533 (Wash.)
Appellant's argument that Lander County is now estopped from denying the truth of the
answers to the interrogatories, as so construed by appellant, is ably answered in the decision
of the trial court, wherein is cited State v. Boerlin, 30 Nev. 473. See, also, Gilbert v. Pier
(Wis.), 78 N.W. 566; Philadelphia Mort. & Tr. Co. v. City of Omaha (Neb.), 88 N.W. 523;
People v. Brown, 67 Ill. 435.
In sec. 5013, Rev. Laws, 1912, the legislature has seen fit to provide for suits by or against
counties as it did in Statutes 1864, p. 45, but it is submitted that they obtained such authority
not under the provisions of article VIII of the constitution of Nevada, but rather under the
provision of section 6 of the territorial enabling act (sec. 197 Rev. Laws), and that the
exercise of these powers are reconciled with sections 20, 21, 22 and 25 of article IV of the
constitution. Merely because county, city, town or other municipal corporation are
mentioned in section 10 does not mean that a county is a municipal corporation. Stermer v.
La Plata County, 5 Colo. App. 380-91. Our own supreme court does not classify a county as a
municipal corporation, and in fact it emphatically states that a county is not a municipal
corporation. Schweiss v. District Court, 23 Nev. 226, 230.
OPINION
By the Court, Ducker, J.:
This appeal is from a judgment in favor of Lander County, garnishee, and against the
appellant. The action was commenced by the appellant as assignee of a materialman who
had furnished materials to Robert Paysee, defendant, for use in the construction of a high
school building in said county of Lander, in the value of $4,1S4.52.
51 Nev. 114, 119 (1928) Hoyt v. Paysee
a materialman who had furnished materials to Robert Paysee, defendant, for use in the
construction of a high school building in said county of Lander, in the value of $4,184.52.
Appellant caused to be issued and served upon the respondent, the county of Lander, a writ of
garnishment with written interrogatories attached which the garnishee was requested to
answer.
The interrogatories were as follows:
What moneys, if any, are owing to Robert Paysee as contractor, or otherwise, for the
construction of the Lander County high school building at Battle Mountain, Nevada, and if
so, in what amount?
Is Lander County, or the county commissioners of Lander County, acting as a board of
education under the provisions of chapter 35 of the session laws of the State of Nevada for
1921, indebted to Robert Paysee as contractor, or otherwise, for the construction of the
Lander County high school building at Battle Mountain, Nevada, and if so, in what amount?
To each of the interrogatories the answer was $10,150. The interrogatories and answers
were signed as follows: A. Altenburg, Geo. M. Southward, H.C. Meyer, Commissioners.
The answers were not made on oath or affirmation as required by section 5174, Rev. Laws.
Thereafter judgment by default was entered against Paysee for the amount of $4,184.52,
the amount of appellant's demand, and for costs, and later, upon said judgment and answers to
the interrogatories, judgment was entered in the action that:
Said defendant, Robert Paysee, do have and recover judgment for the use of the plaintiff
herein, against the said county of Lander, garnishee, in the sum of $4,184.52, with interest
thereon at the rate of 7 per cent per annum from said date until paid, together with plaintiff's
costs and disbursements, which were duly taxed and allowed in the sum of $29.75.
Thereafter respondent caused the judgment against it to be set aside and was permitted to
file an answer to the garnishment proceedings. Later respondent filed at different times what
were entitled: Amendment to Answer to Garnishment Proceedings by Garnishee,"
"Amended Answer in Garnishment," and "Supplemental Answer by County of Lander."
51 Nev. 114, 120 (1928) Hoyt v. Paysee
Answer to Garnishment Proceedings by Garnishee, Amended Answer in Garnishment,
and Supplemental Answer by County of Lander. The substance of the pleadings of
respondent prior to the supplemental answer may be stated to be that the county
commissioners made a mistake in stating in their answers to the interrogatories that the sum
of $10,150 was due from the county to Paysee, for the reason that on October 14, 1922, and
prior to the garnishment proceedings, said Paysee assigned all moneys due to him to the
Battle Mountain Bank as security for the payment of certain loans made by the bank to him
on which assignment a judgment was obtained, etc.
The supplemental answer alleges, among other matters not necessary to be stated, that an
action was instituted by Lander County and certain of its officers against Robert Paysee,
United States Fidelity and Guaranty Company, a corporation, Battle Mountain State Bank, a
corporation, Johns-Manville, Incorporated, of California, a corporation, Peerless Pacific
Company, a corporation, and John D. Hoyt, for the purposes of determining which of said
defendants were entitled to share in that certain fund retained by Lander County at the date of
the completion and acceptance of the Battle Mountain high school building, known as the
Battle Mountain high school fund, in which there was a balance of $10,150. In that suit a
judgment and decree was entered on January 2, 1926, in which it was adjudged and decreed
that the defendant bank was entitled to $8,922.32, which amount was duly paid to said bank
on January 5, 1926; that there was due and payable to John D. Hoyt the sum of $1,227.68,
which amount was duly paid on or about January 20, 1926. It was found in said action that
said bank was entitled to the amount awarded by reason of its being the assignee of the
defendant Robert Paysee of so much of the Battle Mountain high school fund, which
assignment had been made and served upon the county of Lander prior to the garnishment
proceedings; and that said John D. Hoyt was entitled to the balance of said fund as the
assignee of certain materialmen. It is also alleged in the supplemental answer that said
judgment remains in full force and effect and has not been appealed from, and that the
questions presented in the present action are identical to the questions presented in the
Lander County action.
51 Nev. 114, 121 (1928) Hoyt v. Paysee
is also alleged in the supplemental answer that said judgment remains in full force and effect
and has not been appealed from, and that the questions presented in the present action are
identical to the questions presented in the Lander County action.
In his reply to the supplemental answer, appellant admits the judgment in the Lander
County case and admits that the claim of the Battle Mountain State Bank adjudicated therein
was superior and prior to the claim and interest of the plaintiff in said fund, but denies that
the validity and extent of plaintiff's claim was determined therein, and that the questions
presented in said action were identical to the questions presented herein.
The reply also admits that the judgment in the Lander County case remains in full force
and effect, and that the same has not been appealed from nor reversed.
Further, in avoidance of the matters pleaded by respondent in the answers, appellant in his
reply alleges facts from which it is concluded and alleged that Lander County is estopped to
deny that it was indebted to Robert Paysee for the balance unsatisfied in the judgment against
him at the time of the service of said writ of garnishment upon it.
Respondent demurred to the reply upon the ground that it did not state facts sufficient to
constitute a defense. The demurrer was sustained by the court, and, upon appellant refusing to
plead further and electing to stand upon his reply, judgment was rendered that the action
against Lander County, garnishee, be dismissed. The appeal is taken from this judgment.
It will be unnecessary to state the facts alleged in the reply upon which appellant bases his
claim of estoppel or to determine that question, for we are of the opinion that Lander County
is not subject to the process of garnishment.
Appellant claims that the legislature has extended this process to counties. The section
relied on is section 5154, Rev. Laws of Nevada. It reads:
All persons, including municipal and other corporations, 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."
51 Nev. 114, 122 (1928) Hoyt v. Paysee
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.
It is urged that the term municipal and other corporations includes counties. We are
aware that the Supreme Court of the United States in Lincoln County v. Luning, vol. 133 U.S.
p. 529, 33 L. Ed. 766, has held that the constitution of Nevada, article 8, section 10, expressly
recognizes the county as a municipal corporation. But since that decision our supreme court
has clearly declared the distinction between a county and a municipal corporation. Schweiss
v. District Court, 23 Nev. 226, 45 P. 289, 34 L.R.A. 602. The court said:
Clearly, a county is not a municipal corporation. If it were, there would have been no
occasion for this act, changing Storey County into a municipality. It is, at the most, only a
quasi corporation, and possesses only such powers and is subjected to only such liabilities as
are especially provided for by law. Mr. Beach, in his work on Public Corporations, states the
distinction between them as follows: Municipal corporations embrace incorporated cities,
villages and towns, which are full-fledged corporations, with all the powers, duties and
liabilities incident to such a status; while public quasi corporations possess only a portion of
the powers, duties and liabilities of corporations. As instances of the latter class may be
mentioned counties, hundreds, townships, overseers of the poor, town supervisors, school
districts and road districts.'
The distinction is also drawn by Mr. Dillon in section 23 of his work on Municipal
Corporations. While some decisions have construed the term municipal corporations to
include counties, the great weight of authority is in accord with the view expressed by this
court in Schweiss v. District Court, supra. Askew v. Hale County, 54 Ala.
51 Nev. 114, 123 (1928) Hoyt v. Paysee
County, 54 Ala. 639, 25 Am. Rep. 730; Hamilton County v. Mighels, 7 Ohio St. 109;
Granger v. Pulaski County, 26 Ark. 37; Woods v. Colfax County, 10 Neb. 552, 7 N.W. 269;
Lawrence County v. Railroad Co., 81 Ky. 225; Pulaski County v. Reeve, 42 Ark. 55; Board
of Park Commissioners v. Common Council of Detroit, 28 Mich. 237, 15 Am. Rep. 202;
Finch v. Board etc., 30 Ohio State St. 37, 27 Am. Rep. 414; Manuel v. Commissioners, 98
N.C. 9, 3 S.E. 829; Cathcart v. Comstock, 56 Wis. 590, 14 N.W. 833; Stermer v. La Plata
County, 5 Colo. App. 379, 38 P. 839; Hanson v. City of Cresco, 132 Iowa, 533, 109 N.W.
1109, Andrews, American Law, 505, 506; Thompson, Corporations, sec. 20; Tiedeman,
Municipal Corporations, sec. 3; 15 C.J. p. 392; 7 R.C.L. p. 924.
The case of Schweiss v. District Court is cited in Hanson v. Cresco, 132 Iowa 533, 109
N.W. 1109, in support of the distinction so generally recognized that such local subdivisions
of the state as counties are quasi corporations as distinguished from municipal corporations
proper.
Before the opinion in Schweiss v. District Court, the clause, including municipal and
other corporations, was not contained in the statute. When the laws were revised in 1912,
section 130 of the civil practice act, as it then stood, was reenacted verbatim with the added
clause, including municipal and other corporations.
1-3. The questions presented therefore is, was it intended by the term, municipal and
other corporations, to subject counties to the process of garnishment? We are not prepared to
say that such was the intention of the legislature. There can be no dissent from the fact that
garnishment in the United States is purely a statutory proceeding. Drake on Attachment, sec.
451; Ency. Pl. & Prac. vol. 9, p. 108; 2 R.C.L. p. 776; Clarke v. Osage County, 62 Okl. 7, 161
P. 791, L.R.A. 1917b, 1269; State ex rel. Summerfield v. Tyler, 14 Wash. 495, 45 P. 31; 37
L.R.A. 207.
In a number of states the use of the process of garnishment has not been granted against
counties, and their exemption in this respect is put upon the ground of public policy.
51 Nev. 114, 124 (1928) Hoyt v. Paysee
public policy. As said in Duval County v. Charleston Lumber Co., 45 Fla. 256, 33 So. 531, 60
L.R.A. 549, 3 Ann. Cas. 174:
Public corporations such as counties are created for the care and promotion of public
interests, and should not from motives of public policy be subjected to the liability of
becoming involved in the disputes of private persons, or be made the instrumentalities for
collecting private debts.
The following are a few of the many authorities to the same effect: Boone County v. Keck,
31 Ark. 387; Stermer v. La Plata County, 5 Colo. App. 379, 38 P. 839; Morgan v. Rust, 100
Ga. 346, 28 S.E. 419; Wallace v. Lawyer et al., 54 Ind. 501, 23 Am. Rep. 661; Clarke v.
Osage County, 62 Okl. 7, 161 P. 791, L.R.A. 1917b, 1269; 28 C.J. p. 58; 12 R.C.L. 842.
By reason of the recognized impolicy of subjecting a county to the inconveniences and
liability of garnishment, the rule has been established that the legislative intent to do so must
be clearly expressed. The rule is thus expressed in 12 R.C.L. p. 842:
In the absence of express statutory provision clearly evincing the intention to grant the
use of the process of garnishment against counties, public policy forbids that they should be
subjected to the process.
Throughout the United States the remedy by garnishment is purely statutory. The
proceeding cannot therefore be extended to cases not clearly provided for in the statute. 9
Ency. Pl. & Prac. 809.
Applying this rule, and in view of the distinction stated in Schweiss v. District Court, of
which the legislature must be presumed to have been cognizant, we hold that a county is not
subject to the process of garnishment.
The judgment of the lower court is affirmed.
____________
51 Nev. 125, 125 (1928) Ward v. Daniels
WARD v. DANIELS
No. 2812
September 5, 1928. 269 P. 913.
1. Executors and AdministratorsStatute Authorizing Proceeding for Discovery of
Decedent's Personalty Held Not To Empower Court to Determine Title.
Rev. Laws, secs. 5953, 5954, authorizing proceeding for discovery of personal property belonging to
decedent and claimed to be concealed or withheld by another, and authorizing district court to order
delivery of such property to executor or administrator, confers no power on the court to determine the
question of title to personalty between decedent's estate and one in possession claiming ownership
thereof.
2. Executors and AdministratorsRespondent's Testimony that She Held Decedent's
Personalty as Gift Held Properly in Record for Consideration, where No Ruling Was
Obtained on Objection Thereto.
In proceeding by administrator under Rev. Laws, secs. 5953, 5954, to compel delivery to him of
personalty belonging to decedent claimed to be withheld by respondent, respondent's testimony that she
held such property as gift from decedent was properly in record for consideration of trial court, where
administrator's attorney, though objecting thereto on the ground that it was incompetent, as involving
transaction with a deceased person, did not obtain a ruling on his objections.
3. TrialTrial Court Held Not Bound to Strike Testimony, where Objection Was Made
Solely to Answers, and No Motion to Strike Testimony Was Made.
Trial court held not bound to strike out testimony where objection was made to the answers, and not
to the questions which elicited them, and no motion was made to strike the testimony.
C.J.CYC. REFERENCES
Executors and Administrators23 C.J. sec. 409, p. 1184, n. 30; p. 1185, n. 35.
Trial38 Cyc. p. 1347, n. 65; p. 1392, n. 15; p. 1401, n. 16.
Appeal from Seventh Judicial Court, Mineral County; J. Emmett Walsh, Judge.
Proceeding by C.C. Ward, administrator of the estate of Sven August Peterson, against
Mrs. M.L. Daniels. From an order denying his motion for an order directing respondent to
deliver to him certain moneys in her possession, alleged to belong to the estate, the
administrator appeals. Affirmed.
51 Nev. 125, 126 (1928) Ward v. Daniels
C.C. Ward, Appellant and Attorney, pro se:
The court erred in permitting Mrs. M.L. Daniels, respondent herein, to testify, over
administrator's objection, concerning an alleged transaction between herself and the deceased,
out of which testimony concerning the alleged transaction the said witness was endeavoring
to establish a benefit to herself. Rev. Laws, sec. 5419; Burgess v. Kelon, 24 Nev. 242, at 250,
cited in Su Lee v. Peck, 49 Nev. 124, at 130; Maitia v. Allied L. & L. Co., 49 Nev. 451, at
467; Kroh v. Heins, 48 Nebr. 691.
The court erred in overruling the administrator's motion for an order of court directing
Mrs. M.L. Daniels, respondent herein, to deliver to administrator the money admitted by the
said Mrs. Daniels to have been received and retained by her, and which had, prior to his
death, belonged to and been in the possession of the deceased. There being no proof of any
relinquishment by deceased of his ownership thereof, it must be conclusively presumed that it
still belongs to said deceased. Jones, Commentaries on Evidence, sec. 58a, and authorities
cited. And upon the occasion of the death of deceased, the right of immediate possession of
said money is in the administrator of the estate. Rev. Laws, sec. 5950; Morris v. Vyse
(Mich.), 253 N.W. 639. Therefore it was the duty of the court to order and compel delivery
thereof by respondent to the administrator of the estate of the deceased. Stats. of Nevada,
1925, c. 191, p. 335. The provisions of the statute are clear and positive, and should have
been applied by the court. Odd Fellows Bank v. Quilton, 11 Nev. 109, at 118; Ex Parte
Rickey, 31 Nev. 82; Ex Parte Moran, 83 Kans. 615, 112 P. 94; Humbarger v. Humbarger, 72
Kans. 412; Meixell v. Kirkpatrick, 33 Kans. 282, 6 P. 241.
Surely the circumstances wherein respondent admits that the money was Peterson's prior to
his death, followed by the unsupported statement of respondent that she now claims it as a
gift, does not show that the money is respondent's or that she has any bona fide claim thereto.
If such a conclusion is to be entertained by the courts, then the statute, section 5954 Rev.
Laws, is a nullity.
51 Nev. 125, 127 (1928) Ward v. Daniels
Green & Lunsford, for Respondents:
A very superficial examination of the authorities disclosed that the probate court, under
such a statute as ours, has no power to judicate or determine the ownership or right of
possession of property in the hands of a third person who makes a bona fide claim of
ownership or right of possession thereof. Ex Parte Casey, 71 Cal. 269, 12 P. 118, Kerr's
Annotated Code of California, sec. 1459, part three, p. 2947; Koerber v. Superior Court et al.,
206 P. 496, at 497, par. 2; Baker v. Hanson (Mont.), 231 P. 902, at 904, par. 7.
Respondent cannot be compelled to turn over and deliver her property, or property to
which she has a bona fide claim, without due process of law. She is entitled to have her claim
heard in an ordinary civil proceeding in which she would have the opportunity to answer to
the formal allegations of the complaint and call witnesses and introduce documentary
evidence in the defense of her claim. She was afforded no such opportunity on the citation in
this case. She was entitled to demand a jury trial of the issues involved, and an order made in
compliance with the motion made in the trial court by the appellant would have deprived her
of her right to due process of law and trial by jury, guaranteed by the federal and state
constitutions.
OPINION
By the Court, Ducker, J.:
This is an appeal from an order of the above-entitled court denying appellant's motion for
an order directing respondent to deliver to the administrator of said estate certain moneys in
possession of respondent alleged to belong to said estate. The administrator filed in said court
a complaint for conversion and nondelivery of property of said estate, wherein it was alleged
that Mrs. M.L. Daniels of Hawthorne, Mineral County, Nevada, had money and other
property belonging to said estate which she had withheld and concealed and converted to her
own use, and had refused after demand by the administrator to deliver the property to him.
Citation was issued thereon directing respondent to appear before said court and show
cause why she should not answer, under oath, concerning said property.
51 Nev. 125, 128 (1928) Ward v. Daniels
issued thereon directing respondent to appear before said court and show cause why she
should not answer, under oath, concerning said property.
On the 15th day of October, 1927, respondent appeared with her counsel in response to the
citation, and was examined upon her oath concerning the matters set out in the complaint. Her
testimony is substantially as follows: At all times during the year 1927 she was matron in
charge of the Mineral County hospital, at Hawthorne, Nevada. On the 7th day of June, 1927,
Sven August Peterson was brought to said hospital for medical and hospital attention. On the
arrival of Peterson at the hospital she took possession of his personal effects, among which
were twenty-eight dollars in cash, a deposit book of the Inyo County Bank, at Bishop,
California, showing a balance on deposit in that bank in the name of Peterson in the sum of
$4,000, and four cashier's checks, issued by the cashier of the Lone Pine Branch of said Inyo
County Bank, for the sum of $100 each, or a total of $400. On the 8th day of June Peterson
drew a check for $4,000 upon said bank in favor of respondent and gave it to her as a present.
Thereupon the administrator objected to the answer of the witness, on the ground that it was
incompetent for the reason that it attempted to state facts concerning a transaction between
the witness and a person since dead, out of which transaction the witness was then attempting
to establish a benefit to herself. The objection was sustained and the answer stricken out.
The respondent further testified that, at some time between the 7th and the 11th days of
June, 1927, the said Peterson indorsed the four cashier's checks and gave them to respondent,
stating that he desired her to keep said checks for the purpose of paying his funeral expenses,
and if there was any left over, that respondent was to keep the surplus as a gift. An objection
was also made to this answer. It was sustained and the answer stricken out. The respondent
testified further substantially as follows:
On the 10th day of June, 1927, Peterson assigned to respondent a passbook for said
savings account in said bank, which assignment was acknowledged before S.T. Kelso,
county clerk of the county of Mineral, State of Nevada.
51 Nev. 125, 129 (1928) Ward v. Daniels
respondent a passbook for said savings account in said bank, which assignment was
acknowledged before S.T. Kelso, county clerk of the county of Mineral, State of Nevada. The
check for $4,000, passbook and assignment were presented to said bank on June 11, 1927,
and the amount of $4,000 was transferred to the account of respondent, together with an
additional sum of $80 as interest on said deposit. Peterson died in the said Mineral County
hospital on the 11th day of June, 1927.
After his death respondents cashed the four cashier's checks and out of the proceeds paid
the sum of $328.28 on account of the funeral expenses, and on June 15, 1927, delivered to
said county treasurer all of the personal property of deceased which she had received
belonging to said Peterson, except the checks, the money in bank, and $28 which Peterson
had upon his person when he arrived at the hospital. On or about the 15th of June respondent
caused the sum of $4,080, which prior to the death of Peterson had been on deposit in his
name in said bank, to be withdrawn therefrom and to be transferred to her own account in
another bank.
In response to examination by her counsel respondent again stated that, prior to the time of
Peterson's death and during the time he was in said hospital, he gave to her his check and
passbook on the Inyo County Bank as a gift to herself, and indorsed and gave to her four
cashier's checks on the Lone Pine Branch of the Inyo County Bank, for $100 each, with the
request that she was to use the proceeds thereof to pay his funeral expenses and accept as a
gift to herself all that might be left over after paying said expenses; and that she did accept the
above-mentioned gifts and claimed the money as realized from said checks as her own,
except so much as was paid out by her on account of funeral expenses as aforesaid. To these
answers, so far as they related to facts concerning a transaction between the witness and the
deceased, administrator entered his objections, but there was no further ruling upon the point
raised.
The proceedings were taken under and in pursuance of sections 5953 and 5954 of the
Revised Laws of Nevada.
51 Nev. 125, 130 (1928) Ward v. Daniels
of sections 5953 and 5954 of the Revised Laws of Nevada. The former section reads in part:
If any executor or administrator, heir, devisee, legatee, creditor, or other person interested
in the estate of any deceased person shall complain, on oath, to the district judge that any
person has, or is suspected to have concealed, converted to his or her own use, conveyed
away or otherwise disposed of any moneys, goods, chattels, or effects of the deceased, or that
he has in his possession or knowledge any deeds, conveyances, bonds, contracts or other
writings, which contain evidence of, or tend to disclose the right, title or interest of the
deceased in or to any real or personal estate, or any claim or demand, or any last will of the
deceased, the said judge may cause such person to be cited to appear before the district court
to answer upon oath upon the matter of such complaint. * * *
The latter section, as amended by Stats. 1925, p. 335, provides in part:
If upon such examination it shall appear that such person has concealed, converted to his
or her own use * * * any moneys, goods or chattels of the deceased, * * * the district court
may make an order requiring such person to deliver any such property or effects to the
executor or administrator. * * *
It is insisted by appellant that the showing made on the hearing was sufficient to require
the district court to make an order requiring respondent to deliver the moneys in question to
appellant by virtue of the provision last quoted. The position taken is that title to the moneys
in question was shown on the hearing to have been in Peterson shortly before his death, and
that no competent evidence was adduced at the hearing showing a transfer of title to
respondent.
1. It must be conceded that title to disputed property cannot be adjudicated under these
provisions. Similar probate provisions are found in the statutes of other state. While in some
of these states the object is the discovery, and in others to compel the production and delivery
of property, it is well established in these jurisdictions that such provisions confer no power
upon the court to determine a question of title between an estate and a person in
possession of personal property claiming ownership thereof.
51 Nev. 125, 131 (1928) Ward v. Daniels
court to determine a question of title between an estate and a person in possession of personal
property claiming ownership thereof. Koerber v. Superior Court, 57 Cal. App. 31, 206 P. 496;
Barto v. Harrison et al., 138 Iowa 413, 116 N.W. 317; In Re Manser's Estate, 60 Ore. 240,
118 P. 1024; Humbarger, v. Humbarger, 72 Kan. 412, 83 P. 1095; State ex rel. Cohen v.
District Court, 53 Mont. 210, 162 P. 1053; Hoehn v. Struttmann, 71 Mo. App. 399;
Richardson v. Daggett (D.C.), 24 App. 440; 23 C.J. pp. 1184, 1185, par. 409; Schouler Ex'rs
and Adm'rs. sec. 270; 2 Woerner's American Law of Administration (2d ed.), sec. 325. In the
section last quoted Judge Woerner, in his discussion of such summary provisions and
decisions bearing thereon, states his conclusion as follows:
Hence it is not the proper remedy to enforce the payment of a debt or liability for the
conversion of property of the estate, or to try contested rights and title to property between the
executors and others.
In Koerber v. Superior Court et al., supra, the court said:
The main question presented by this proceeding, is whether or not the court, sitting in
probate, in the exercise of its jurisdiction, pursuant to sections 1459, 1460, and 1461 of Code
of Civil Procedure, may try and determine questions of title to personal property. The trial
court expressed grave doubts about it, and, in view of the decisions of the supreme court of
this state, there can be no question that such power does not exist, and that any attempt to
exercise such authority is in excess of the probate jurisdiction. Ex Parte Casey, 71 Cal. 269;
12 P. 118; Ex Parte Hollis, 59 Cal. 406; Levy v. Superior Court, 105 Cal. 600, 38 P. 965, 29
L.R.A. 811; Estate of Klumpke, 167 Cal. 415, 139 P. 1062. It has also been held in other
jurisdictions, in construing statutes similar to ours, that the power of the probate court ends
with the discovery of the property and the enforcement of the remedial provisions of the
statute, and does not extend beyond that, so as to allow the court to adjudicate the title to the
disputed property. In Re Robert's Estate, 48 Mont. 40, 135 P. 909; Barto v. Harrison et al.,
13S Iowa 413, 116 N.W. 317; In Re Manser's Estate, 60 Or.
51 Nev. 125, 132 (1928) Ward v. Daniels
138 Iowa 413, 116 N.W. 317; In Re Manser's Estate, 60 Or. 240, 118 P. 1024; Humbarger v.
Humbarger, 72 Kan. 412, 83 P. 1095, 115 Am. St. Rep. 204.
In Humbarger v. Humbarger, supra, the court said:
The purpose of the proceeding is to make discovery and compel production of the
property of an estate suspected of having been concealed, embezzled, or conveyed away, but
it cannot be employed to enforce the payment of a debt or liability for the conversion of
property of an estate, or to try controverted questions of the right to property as between the
representative of the estate and others.
Speaking of a similar statute, the court in Richardson v. Daggett said:
The general purpose of section 122 was to furnish a prompt remedy in the probate court
for the discovery of the assets of estates in administration therein that may have been
concealed, and their reduction to possession when so discovered. But we are unable to find a
further intention to confer upon the probate court the jurisdiction to determine the question of
the actual ownership of such property when the title thereto is claimed by the representatives
of the estate on one hand and the party in actual possession on the other. The practical effect
of a contrary construction would be to remit to the probate court, sitting as a court of equity,
the final determination of the title to all personal property claimed by the representatives of
the estate as against adverse holders thereof; for the extension of the jurisdiction would be
accomplished by the allegation that they had been concealed. There would seem to be no
doubt that the allegation in this case was made in good faith, and had foundation in the
surrounding circumstances set forth; but its legitimate object was attained by the discovery
sought and elicited. Had there been no adverse title claimed by the respondent an order of
delivery would have followed as a matter of course. But, when the respondent gave a
description of the articles in controversy, and at the same time claimed the title adversely, the
provisions of section 122 were fully satisfied. All that remained for the probate court to do
was to terminate the proceeding and leave the parties to their remedies in courts of
general jurisdiction, either at law or in equity as the conditions might determine."
51 Nev. 125, 133 (1928) Ward v. Daniels
that remained for the probate court to do was to terminate the proceeding and leave the parties
to their remedies in courts of general jurisdiction, either at law or in equity as the conditions
might determine.
We will not further review decisions interpreting statutes similar to ours. They are uniform
in holding that the power to determine title is not conferred, and we reach the same
conclusion in regard to the provisions of our probate law.
2. It is claimed by appellant that respondent's testimony asserting ownership to the moneys
in question adduced by the questioning of her counsel should have been stricken out by order
of the court, as it was during her examination by counsel for appellant, and that, with such
testimony out of the record or disregarded, there is no evidence of title adverse to the estate.
We think that the evidence was properly in the record for the consideration of the trial court.
It was counsel's business to insist upon a ruling on his objection, which was not done.
3. Again, the trial court was not bound to strike the testimony upon the objection made,
even if objectionable upon the ground stated, for the reason that the objection was made to
the answers and not to the questions which elicited them. No motion was made to strike the
testimony. There is nothing to indicate that the questions were of such a nature as not to
apprise opposing counsel of the answers sought to be elicited, nor is there anything to indicate
that counsel was otherwise deprived of an opportunity to properly place his objections. State
v. Clarke, 48 Nev. 134, 228 P. 582.
The testimony of the respondent as to the circumstances under which she claims to have
become the owner of the money was, therefore, properly in the record for the consideration of
the trial court. It constitutes substantial evidence tending to show title and right of possession
in respondent. Consequently the trial court was bound to deny the motion. It is only where it
clearly appears that title is in the estate, and that the possession is wrongfully withheld, that
the probate court can, under section 5954, decree that the possession be delivered to the
executor or administrator.
51 Nev. 125, 134 (1928) Ward v. Daniels
section 5954, decree that the possession be delivered to the executor or administrator.
The order of the probate court should be affirmed.
It is so ordered.
____________
51 Nev. 134, 134 (1928) Kondas v. Washoe County Bank
KONDAS v. WASHOE COUNTY BANK
No. 2735
November 8, 1928. 271 P. 465.
1. Banks and BankingBank Preventing Payment of Foreign Draft, after Issuing it for Larger
Amount than Proper, Must Bear Resulting Loss Incident to Declining Exchange.
Where bank issuing foreign draft for drachmas pursuant to request of depositor issued draft in amount
larger than that for which it should have been issued, and thereafter prevented its payment on
presentation, the resulting loss incident to declining drachmas must be borne by the bank, rather than the
depositor who was in no way at fault.
2. ActionAction for Money Had and Received Held to Lie for Recovery by Depositor of
Amount Paid to Bank for Drafts.
Action for money had and received held to lie for recovery by depositor of amount paid to bank for
issuance of foreign drafts on which he was unable to secure payment by reason of bank's negligence in
improperly issuing drafts.
C.J.CYC. REFERENCES
Money Received41 C.J. sec. 11, p. 35, n. 37.
See, also, 50 Nev. 181.
Appeal from Second Judicial District Court, Washoe County; George A. Bartlett, Judge.
Suit by John Kondas against the Washoe County Bank. From the judgment, plaintiff
appeals. Reversed, with directions.
Clyde D. Souter, for Appellant:
All cases dealing with a transfer of a credit by letter or by cable or by wireless involves an
executory contract, while a transaction in which a foreign bill of exchange has been issued
upon the payment of American money involves an executed contract.
One who secures a draft obtains a written order by the drawer upon the drawee, which by
commercial usage, and even by statutory enactment in some jurisdictions, has come to be
recognized as the symbol and equivalent of money, and which enables the one who has
obtained it, without further action by the drawer, to secure from the drawee the moneys
which it represents.
51 Nev. 134, 135 (1928) Kondas v. Washoe County Bank
has come to be recognized as the symbol and equivalent of money, and which enables the one
who has obtained it, without further action by the drawer, to secure from the drawee the
moneys which it represents. In consideration of the money paid by him he has actually
obtained an instrument for the payment of money, and which is regarded as its equivalent,
and it is perfectly natural to speak of such a transaction as resulting in the executed purchase
of a draft. A person who makes a contract for a credit in foreign exchange accomplishes no
such result. He has secured nothing which will pass for money or which will enable him,
except through the action of the banker, to obtain the exchange which he desires. Richard et
al. v. American Union Bank, 205 N.Y. Supp. 622.
It is plaintiff's theory, therefore, that in the case at bar the contract for the purchase of the
two bills of exchange in question was not an executory contract, but, on the other hand, was
an executed contract, which was finished and completed when Mr. Muller, the agent of the
defendant bank, handed over to plaintiff, Kondas, the two bills of exchange in question. It is
also the theory of the plaintiff's case that because of this it must naturally and inevitably
follow that the case is to be determined according to the rules and principles of law applicable
to executed contracts, and that the rules and principles of law applicable to executory
contracts can have here no application.
When the defendant failed to perform, the plaintiff was entitled to his money back. Safian
v. Irving National Bank, 202 App. Div. 459, 196 N.Y. Supp. 141, 143. The theory of damages
is compensation to the party who has been wronged, and not profit to the wrongdoer. Dermer
v. Adams Express Company, 202 App. Div. (N.Y.) 828; Stern v. Adams Express Company,
202 App. Div. 830; Temer v. Zimmerman, 202 App. Div. 832; Atlantic Communication
Company v. Zimmerman, 182 App. Div. 862, 170 N.Y. Supp. 275, 280; Beecher v.
Cosmopolitan Trust Co. et al., 131 N.E. 338.
51 Nev. 134, 136 (1928) Kondas v. Washoe County Bank
Price & Hawkins, for Respondent:
The action is one for money had and received; it is not for damages, accruing either for
breach or upon rescision of contract; neither is it one concerning any bills of exchange, or the
purchase of credit, or duty to transmit moneybut it is only to recover the sum of $2,100
alleged to have been received by defendant for the use of the plaintiff, and which in equity
and good conscience the defendant should pay over to the plaintiff. Firpo v. Pacific Mutual
Life Ins. Co. (Cal. App.), 251 P. 657, 658. Is it not manifest, under the admitted facts in this
case, that the defendant bank did not at the time of the trial, or at any time, have money
which in equity and good conscience it ought to pay to the plaintiff?
Is not the situation in the instant case correctly portrayed by the court in Strohmeyer &
Arpe Co. v. Guaranty Trust Co. of New York, 157 N.Y. Supp. 955, 958? Also, Richard et al.
v. American Union Bank, 205 N.Y. Supp. 622; Carmen v. Higgins (Mass.), 140 N.E. 246;
American Express Co. v. Cosmopolitan Trust Co. (Mass.), 132 N.E. 26; Richard et al. v.
American Union Bank, 204 N.Y. Supp. 719, 722.
OPINION
By the Court, Coleman, J.:
The plaintiff brought suit to recover $2,100 and interest. The court entered judgment for
the defendant. On motion a new trial was granted as to a $600 item and denied as to a $1,500
item. The respective parties took separate appeals. The appeal of the plaintiff is now under
consideration, and we will refer to the parties as plaintiff and defendant.
The plaintiff, who is a Greek and unable to read and write English, on September 6, 1919,
went into the defendant bank, with which he had theretofore had business, and told a clerk
that he wanted to buy drafts on the National Bank of Greece, Athens, Greece, for $2,100,
payable on said Athens bank in drachmas.
51 Nev. 134, 137 (1928) Kondas v. Washoe County Bank
After figuring for a time, the clerk determined the amount in drachmas which the $2,100
would purchase, the charges and commissions, and, after being informed as to this, the
plaintiff instructed the bank clerk to issue him two, drafts one for drachmas costing $600 and
the other for drachmas costing $1,500. The clerk prepared and had properly signed two drafts,
in duplicate, one No. 3503 and the other No. 3504, which were delivered to the plaintiff, and
thereupon charged plaintiff's account with the $2,100.
The original of draft No. 3503 was originially prepared was written in for 3250 lires, the
word Lires appearing both in the body of the draft and after the figures3250. But before
delivery pen and ink was run through the word Lires and the word Drachmas written
thereafter. In the duplicate of this draft, as appears from the photostatic copy in the record,
pen and ink was run through the word Lires after the figures 3250, and the word
Drachmas written above it, but in the body following the words Thirty-two Hundred Fifty
appears L with indications that the word Lires was once written there and all thereof
erased except a portion of the stem of the letter L. The word Drachmas nowhere appears
in the body of the duplicate. The other draft, No. 3504, in both original and duplicate, is
regular on its face, but instead of being issued in the sum of 8,125 drachmas, which is the
sum for which it should have been issued, was issued for 81,255 drachmaspractically ten
times what it should have been issued for.
It was the purpose of the plaintiff to take a trip to Greece when he purchased the drafts,
and three days later he went to the bank and drew out, in cash, the balance of his deposit, and
left for Salt Lake City, where he expected to meet a countryman and make the journey to
Greece with him. Upon meeting his friend they called upon the Greek consul, who told them
of the war existing between Greece and Turkey, and advised them not to undertake the trip.
They obtained work and returned in January with a view of making inquiries of the consul,
and learned the conditions were unchanged.
51 Nev. 134, 138 (1928) Kondas v. Washoe County Bank
the consul, and learned the conditions were unchanged. He then decided to send the drafts to
the bank in Athens for deposit to his credit, at interest. On the 21st of January, 1920, he wrote
to that bank enclosing the drafts with instructions. The bank, due to disturbed conditons, did
not receive the letter until late in February. The defendant learned of its mistake in the
amount of the second draft a few days after issuance and cabled the bank in Athens to pay it
in the amount of 8,125 drachmas, only.
Upon receipt of plaintiff's letter containing the drafts the Athens bank refused flatly to pay
the altered draft and wrote to the plaintiff stating that it had received the cablegram directing
it to pay the other draft in the sum of 8,125 drachmas instead of the amount stated therein,
and asked if they should pay it in that amount.
On June 23, 1920, the plaintiff wrote to the Athens Bank, saying:
* * * and I beg you warmly to send back to me my draft (the one for 81,255 drachmas)
because there is a great difference between me and the bank here, and the which difference I
cannot settle without the above draft.
This letter was written in Greek, and the above quotation is from the translation in
evidence. After the two drafts were reurned to the plaintiff he demanded his money back from
the defendant. It refused to pay back the money but offered to issue new drafts. The plaintiff
refused to accept new drafts and brought this suit. Though the complaint as drawn contained
seven counts, the case was tried upon the count to recover $2,100, for money had and
received. This appeal involves only the draft issued for 81,255 drachmas.
Our attention has been directed to several New York cases, which, it is claimed, throw
some light upon the main question in the case. We do not deem it necessary to review these
cases, as the facts in none are identical to those in the instant case.
1. In the instant case the parties entered into a verbal contract to the effect that the
defendant would issue to the plaintiff a draft upon the National Bank of Greece, at Athens,
payable in the sum of S,125 drachmas, on presentation.
51 Nev. 134, 139 (1928) Kondas v. Washoe County Bank
the plaintiff a draft upon the National Bank of Greece, at Athens, payable in the sum of 8,125
drachmas, on presentation. The plaintiff paid his money for the draft and in return received a
draft upon which he could receive nothing when it was presented for payment. It is true that
the bank was instructed by cable to pay in the sum of 8,125 drachmas, but it did not do it on
presentation, nor could it have been expected to do so in the circumstances. The inability of
plaintiff to collect his 8,125 drachmas was due soley to the fault of the defendant. In this
situation who should suffer? Should it be the ignorant Greek who paid his hard-earned cash
and is no way at fault, or the one through whose negligence the loss, incident to declining
drachmas, was caused? The situation seems too clear to call for even a doubt. In the case of
Safian v. Irving Natl. Bank, 190 N.Y.S. 532, the court in passing upon a contract to transfer
money by cable, said:
It is clear that the defendant's engagement' was not met by it. On ordinary principles
governing the law of contract it seems clear that the plaintiff thereupon has the right to
recover back the consideration paid by him.
On appeal, the court, speaking through Page, J., said:
In my opinion this case is simply a breach of the express contract on the part of the
defendant by failure to perform, and the plaintiff was entitled to recover back the money that
he had paid to the defendant. 196 N.Y.S. 142.
Though the facts in the case mentioned are dissimilar from those in this case, the principle
stated applies.
The defendant contends that the plaintiff could have authorized the Greek bank, in
response to its inquiry, to pay the draft for 8,125 drachmas. There are two or more answers to
this, but one suffices: He was entitled to a draft payable on presentation. He did not get it.
2. But it is claimed that the action for money had and received will not lie. In this we
disagree with counsel. In Smart v. Valencia et al., 50 Nev. 359, 261 P. 665, we quoted
approvingly the following: "An action for money had and received can be maintained
whenever one man has received or obtained the possession of the money of another,
which he ought in equity and good conscience to pay over.
51 Nev. 134, 140 (1928) Kondas v. Washoe County Bank
An action for money had and received can be maintained whenever one man has received
or obtained the possession of the money of another, which he ought in equity and good
conscience to pay over. This proposition is elementary. There need be no privity between the
parties, or any promise to pay, other than that which results or is implied from one man's
having another's money, which he has no right conscientiously to retain. In such case the
equitable principle upon which the action is founded implies the contract and the promise.
When the fact is proved that he has the money, if he cannot show a legal or equitable ground
for retaining it the law creates the privity and the promise. 2 Chitty, Cont. 899 (11th Am.
Ed.); Mason v. Waite, 17 Mass. 560; Hall v. Marston (17 Mass. 575) Id. 574; Knapp v.
Hobbs, 50 N.H. 476; Eagle Bank v. Smith, 5 Conn. 71 (13 Am.Dec.37). It is not necessary
that the defendant should have accepted the money under an agreement to hold it for the
benefit of the plaintiff, or that the party from whom he received it intended it for the plaintiff's
benefit. Neither is it necessary that the money received by the defendant should have been an
exact and specific sum, belonging exclusively to plaintiff, and entirely separate and distinct
from any other moneys. We have found no case which lays down any such narrow rule.
Allanson v. Atkinson, 1 M. & S. 583; Heartt v. Chipman, 2 Aiken [Vt.], 162.
We think the facts of this case bring it within the rule quoted.
For the reason given the judgment and order are reversed, and it is ordered that the trial
court enter judgement in favor of the plaintiff for $1,500, with legal interest from September
6, 1919. Plaintiff to recover costs in both courts.
On Petition for Rehearing
January 4, 1929.
Per Curiam:
Rehearing denied.
____________
51 Nev. 141, 141 (1928) Kondas v. Washoe County Bank
KONDAS v. WASHOE COUNTY BANK
No. 2738
November 8, 1928. 271 P. 466.
Appeal from Second Judicial District Court, Washoe County; George A. Bartlett, Judge.
Price & Hawkins, for Appellant.
Clyde D. Souter, for Respondent.
(It was stipulated by and between respective counsel that the same briefs be considered, as
far as applicable, in this and the companion case of the same title, No. 2735.)
OPINION
By the Court, Coleman, J.:
This is a companion case to that of the same title, No. 2735, 271 P. 465, in which an
opinion has been this day delivered. This appeal is by the defendant and is from the order
granting a new trial as to the $600 item. We will not restate the facts stated in case No. 2735,
as they may be gathered from the opinion rendered in that appeal. It will be necessary,
however, to briefly supplement the statement of the facts in that opinion.
This appeal involves the draft No. 3503, in which certain alterations were made. The trial
court in granting the motion for a new trial as to the item in question said:
* * * This latter draft had been altered by the issuing bank, the word Lires having been
first written and scratched and the word Drachmas then written, which, under the testimony
of banking experts, gave the instrument but a discretionary value at best, under banking
practice; the drawee bank, the National Bank of Greece, at Athens, refusing to pay in this
instance, and having returned the said draft to Kondas, the payee, and in its letter discharging
itself of responsibility.
51 Nev. 141, 142 (1928) Kondas v. Washoe County Bank
Plaintiff, payee, paid $600 for this 3,250 drachma draft, and was entitled to an instrument
free from such error as would leave payment thereof to the discretion of the drawee bank on
presentment.
A review of the evidence convinces us that the court was clearly right in its conclusion as
to the evidence. This being true, there was nothing for the court to do but to grant the new
trial. The law as declared in the companion case controls, and upon authority of that
decision
It is ordered that the matter be remanded to the trial court, with instructions to enter
judgment for $600, with interest at the legal rate from September 6, 1919, with costs.
On Petition For Rehearing
January 4, 1929.
Per Curiam:
Rehearing denied.
____________
51 Nev. 142, 142 (1928) Markwell v. Gray Et Al.
MARKWELL v. GRAY Et Al.
No. 2795
November 8, 1928. 271 P. 337.
1. Appeal and ErrorTranscript of Testimony Having Been Stricken from Record, and No
Bill of Exceptions Settled, There Is No. Reviewable Evidence.
It appearing the transcript of testimony in proceedings was stricken from record on former hearing,
and no bill of exceptions was ever settled, held that there is no evidence to review.
C.J.CYC. REFERENCES
Appeal and Error40 C.J. sec. 1752, p. 133, n. 45
Appeal from Eighth Judicial District Court, Churchill County; Clark J. Guild, Judge.

On rehearing. Rehearing denied and former judgment affirmed. (For former opinion,
see 50 Nev. 427, 265 P. 705.)
G. Gunzendorfer, for Appellant:
It is to the proofs that the court must look in every event to determine the sufficiency of the
findings and judgment.
51 Nev. 142, 143 (1928) Markwell v. Gray Et Al.
judgment. Barnes v. Saborn, 10 Nev. 217, 248. On an appeal from the judgment only, the
court may examine the record to determine whether there is any evidence to support the
findings. Sheldon v. Powell, 31 Mont. 249, 78 P. 491, 107 Am. St. Rep. 429. The transcript
of the proceedings, certified by the court reporter, was filed herein in lieu of a bill of
exceptions, pursuant to the terms of section 1 of the act of March 8, 1923, Statutes 1923, p.
164. The court reporter's transcript of the proceedings, as provided by this act, may be filed in
place of a bill of exceptions. An appeal may be taken from a judgment (section 5329 Rev.
Laws) without moving for a new trial (section 5328 Rev. Laws). The limitation of time
prescribed for the serving and filing of a bill of exceptions does not appear to be required for
the court reporter's transcript. Nothing appears in this or any other section that limits
consideration of evidence only to any appeal from an order denying a motion for new trial.
That the court under the circumstances may examine the evidence to determine whether it
sustains the findings and judgment is not only logical and right, but has been so determined
by this court in Sweet v. Sweet, 49 Nev. 254, 258.
A. L. Haight and Price & Hawkins, for Respondents:
The above-entitled case is before this court on an appeal from the judgmentupon the
judgment roll alone. This court in this case, in 50 Nev. 427, 265 P. 705, held that the
transcript as a bill of exceptions, not having been served and filed within the time required by
the statute, cannot be considered by this court * * * and should be stricken. It is, therefore,
manifest that there is no bill of exceptions, even considering the transcript of proceedings as
and in lieu of the bill of exceptions, in the case at bar; and appellant is not authorized or
justified in arguing or expecting the court to consider, upon the record now before the court,
the evidence or any matter except that which appears upon the face of the judgment roll; and
Appellant does not even claim that there is error upon the face of the judgment roll;
therefore, upon and in accordance with all the decisions of this court, the judgment
should be affirmed.
51 Nev. 142, 144 (1928) Markwell v. Gray Et Al.
upon the face of the judgment roll; therefore, upon and in accordance with all the decisions of
this court, the judgment should be affirmed. Water Co. of Tonopah v. Tonopah Belmont
Development Co., 50 Nev. 24, 249 P. 565, 566; State v. Boyle, 49 Nev. 386, 248, P. 48;
Bowers v. Charleston Hill Nat. Mines, Inc., 50 Nev. 104, 256 P. 1058, 1059; Giannotti v.
DeBock, 47 Nev. 332, 221 P. 520.
OPINION
Per Curiam:
In this case we formerly ordered that the appeal from the order denying plaintiff's motion
for a new trial be dismissed, and that defendant's motion to strike be granted. 50 Nev. 427,
265 P. 705.
In the argument on this phase of the case it is not contended on the part of the plaintiff that
it appears from the judgment roll alone that the judgment should be reversed. Counsel argued
at length, however, that, upon authority of Sweet v. Sweet, 49 Nev. 254, 243 P. 817, we can
consider the evidence in the case.
We can find no merit in the contention made. The Transcript of the Testimony and
Proceedings was stricken from the record on the former hearing, and, as no bill of
exceptions was ever settled, there is no evidence before us to consider.
For the reason given, the judgment is affirmed.
____________
51 Nev. 145, 145 (1928) Klepper v. Klepper
KLEPPER v. KLEPPER
No. 2804
November 8, 1928. 271 P. 336.
1. Appeal and ErrorNo Appeal Lies from Order Denying Motion to Quash Summons and
Service Thereof.
Under Rev. Laws, sec. 5329, as amended by Stats. 1913, chap. 91, defendant could not appeal from
order denying motion to quash summons and service thereof on jurisdictional grounds.
2. DivorceDefendant Could Appeal from Default Judgment In Divorce Suit, where Court
Had Denied Motion to Quash Summons and Service.
Under Rev. Laws, sec 5329, as amended by Stats. 1913, chap. 91, defendant could appeal from
default judgment in divorce suit, where court had denied motion to quash summons and service thereof.
3. Appeal And ErrorSupreme Court May Consider Correctness of Ruling on Motion to
Quash Summons and Service on Appeal from Judgment.
On appeal from judgment, supreme court, under Rev. Laws, sec. 4833, may consider correctness of
ruling of lower court on motion to quash summons and service thereof.
C.J.CYC. REFERENCES
Appeal and Error3 C.J. sec. 305, p. 479, n. 84; 4 C. J. sec. 2582, p. 680, n. 53.
Divorce19 C.J. sec. 464, p. 188, n. 57.
Appeal from Second Judicial District Court, Washoe County; George A. Bartlett, Judge.
Suit for divorce by Bessie Lovell Klepper against Frank Klepper. From a decree for
plaintiff, defendant appeals. On motion to dismiss the appeal. Motion denied.
Painter & Withers, for Respondent:
The appellant had a right to appeal from the order denying his motion to quash summons,
had he elected so to do. This point has been settled by the Supreme Court of Nevada in the
cases of State v. Moore, 46 Nev. 65, 207 P. 75, and Tiedemann v. Tiedemann, 35 Nev. 259.
However, appellant's notice of appeal from judgment states that the appellant is appealing
from a a judgment and the whole thereof, and appellant does not appeal from the order
denying his motion.
51 Nev. 145, 146 (1928) Klepper v. Klepper
Every direction of the court or judge made or entered in writing and not included in a
judgment, is denominated an order. An application for an order is a motion. Rev. Laws,
sec. 5362.
A judgment is a final determination of the rights of the parties in the action or proceeding.
Rev. Laws, sec. 5238.
The case of Nesbitt v. Chisholm, 16 Nev. 41, holds that the notice of appeal limits the
scope of appeal, hence the only question involved is whether or not appellant has a right to
appeal from the judgment entered by the court upon the trial of the case.
The general weight of authority does not support appellant's appeal from a default
judgment. 3 C.J. 604; 2 Enc. of Pleading and Practice; 6 Enc. of Pleading and Practice, 223;
Paul v. Armstrong, 1 Nev. 96; Martin v. District Court, 13 Nev. 90; Wiggins v. Henderson,
12 Nev. 510; State v. Breem, 41 Nev. 519. This general rule has been qualified only to the
extent of holding that an appeal will lie from a default judgment erroneously taken in Kidd v.
The Four-Twenty Mining Co., 3 Nev. 381.
The Supreme Court of Nevada has repeatedly expressed itself in accordance with the general
ruling adopted elsewhere, that the upper court will not set aside the decision of the lower
court upon a question where there are substantial facts to support the judgment. State v. C. &
C. Railroad, 29 Nev. 504; Burch v. Southern Pacific Company, 32 Nev. 75. In the case at bar
the lower court twice held the affidavit for publication of summons sufficient. The case of
Little v. Currie, 5 Nev. 90, is absolutely in point on this question.
W.M. Kearney and Sidney W. Robinson, for Appellants:
An examination of the authorities upon the subject will readily disclose the law to be
contrary to respondent's contention that no appeal will lie from a default judgment, at least in
states whose statutory provisions on appeal resemble or are identical to that in force in our
own jurisdiction, wherein no attempt is made to distinguish a default judgment from any
other final judgment.
51 Nev. 145, 147 (1928) Klepper v. Klepper
our own jurisdiction, wherein no attempt is made to distinguish a default judgment from any
other final judgment. (Rev. Laws, 1912, section 5329). One of the best statements of the rule,
and the leading case, is that of Hallock v. Jaudin, 34 Cal. 167, at 172. In particular is the
statement in Rhode Island Mortgage and Trust Co. v. City of Spokane, 53 P. 1104, in point,
as is Oregon R. and Nav. Co. v. McCormick (Wn.), 89 P. 187.
OPINION
By the Court, Coleman, J.:
Plaintiff instituted her suit for a divorce. An affidavit of nonresidence of the defendant
having been made, a copy of the summons was served upon him personally in a sister state.
Before the time within which to plead had expired the defendant appeared specially and
moved to quash the summons and the service thereof, on jurisdictional grounds. The motion
to quash having been heard and denied, and no request having been made by the defendant
for time within which to plead, the court ordered that defendant's default be entered. The
court then immediately proceeded to take the testimony in behalf of the plaintiff, at the
conclusion of which judgment and decree were entered in her favor. In due time the
defendant took an appeal to this court. The matter is now before us on plaintiff's motion to
dimiss the appeal.
1. In support of the motion to dismiss two points are made. It is first contended that since
the appeal is from the judgment and not from the order denying the motion to quash, the
appeal must be dismissed for the reason that the order was an appealable order, and, no
appeal having been taken therefrom, error in denying the motion, if any, cannot be
considered.
In support of the contention that the order might have been appeal from, our attention is
directed to Tiedemann v. Tiedemann, 35 Nev. 259, 129 P. 313, and to State v. Moore, 46
Nev. 65, 207 P. 75, 22 A. L. R. 1101.
51 Nev. 145, 148 (1928) Klepper v. Klepper
Section 5329, Rev. Laws, as amended (Stats. 1913, p. 113), provides when an appeal may
be taken, and no appeal can be taken except when authorized by statute. Nowhere does our
statute provide that an appeal may be taken from an order denying a motion to quash a
summons, or the service thereof; hence it is clear that the defendant had no right of appeal
from the order in question.
The two cases are not in point. Those were cases in which the motion to quash was
sustained, and hence the order was appealable since it put a finality to the proceeding, as
pointed out in the respective opinions. No such result followed the order complained of in
this case.
2. We come now to the contention that the motion must be granted since there is no appeal
from a default judgment.
In support of the contention made, reliance is had upon the case of Paul et al. v.
Armstrong, 1 Nev. 82, Kidd v. Four-Twenty Mining Co., 3 Nev. 381, and Martin v. District
Court, 13 Nev. 90.
We do not think the opinion in either of the cases mentioned is authority for the contention
made. In the first case the opinion states:
In this cause there was no answer, no issue, either of law or factof course there could
be no trial in the probate court. The statute says that, upon an appeal, the case shall be tried de
novo in the appellate court. That is, as I understand it, in the same manner, with the same
effect, and upon the issues tried in the lower court.
It is thus seen that that opinion can be no authority in the instant case, where an issue of
law is made by the motion to quash, which was heard and determined.
But if the facts in that case were such as to make it controlling, its force and effect is
greatly weakened by the opinion in the second case mentioned, wherein, after pointing out the
reason why the first-named case is of little weight, the court, in considering the weight to be
given to certain New York cases relied upon, observed that in those cases no question of the
regularity of the default was raised.
51 Nev. 145, 149 (1928) Klepper v. Klepper
of the default was raised. The court then goes on to say:
This is a very different case from that. Here the default was irregularly taken, and
judgment is entered without proper authority. In such case it has repeatedly been held in
California that an appeal is the proper remedy. * * *
The court held the appeal proper and reversed the default judgment.
Nor is the case of Martin v. District Court in point. As appears from the opinion in that
case, there was no issue of law or fact to be tried.
3. This court may consider the correctness of a ruling of the lower court on the motion to
quash, on appeal from the judgment. Potter v. L.A. & S.L.R. Co., 42 Nev. 370, 177 P. 933;
Rev. Laws, sec. 4833.
For the reasons given, the motion is denied.
____________
51 Nev. 150, 150 (1928) Marks v. Roberti
MARKS v. ROBERTI
No. 2821
November 10, 1928. 271 P. 467.
1. Appeal and ErrorIt Is Policy of Courts to Ignore Technical Errors in Pleading, where No
Injury Results.
It is the policy of courts, so far as possible, where no injury results, to ignore technical errors in
pleading; purpose of pleading being to apprise opposite party of nature of case against him.
2. PleadingThat Complaint Stated Cause of Action on Quantum Meruit and Quantum
Valebat, while Evidence Showed Property Was Left under Lease, Held Not to Justify
Nonsuit.
That complaint stated cause of action on quantum meruit and on quantum valebat for reasonable value
of hay and grain furnished which defendant promised to pay, while proof showed that hay and grain were
left on ranch under lease reciting that they should be left thereon, and showed value of hay when
defendant took possession of ranch but not its value at expiration of lease, held not such a variance as
justified nonsuit, since defendant could not have been misled to his detriment.
C.J.CYC. REFERENCES
Appeal and Error4 C.J. sec 2901, p. 927, n. 42
Contracts13 C.J. sec. 10, p. 224, n. 65; p. 245, n. 73
Pleading31 Cyc. p. 703, n. 38; p. 713, n. 47
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Action by Frank Marks against F. Roberti. Judgment for defendant, and plaintiff appeals.
Reversed.
J.M. Frame and F. Raffetto, for Appellant:
Plaintiff had the right to elect his remedy. An examination of the contract contained in the
lease shows that the contract is upon its face unenforceable for uncertainty and indefiniteness,
and therefore the plaintiff did elect the only remedy available to him to recover for the value
of the hay and wheat furnished to the defendant. He could not sue for specific performance of
such a contract, neither could he sue for breach thereof and for damages. R.C.L. sec. 348
(Contracts), vol. 6; Price v. Weisner (Kan.), 111 P. 439; 6 R.C.L., p. 59-62; Seibert v. Smith,
49 Nev. 120; Clarke on Contracts, p. 777, sec. 318; Harwood v. Carter, 47 Nev. 334
51 Nev. 150, 151 (1928) Marks v. Roberti
Carter, 47 Nev. 334; Lapham v. Osborne, 20 Nev. 168; Burgees v. Helm, 24 Nev. 242;
Livingston v. Wagner, 23 Nev. 57; 15 Cyc. p. 253, and cases cited; 6 R.C.L. Election of
Remedies.
Chapter 17 of the civil practice act, sec 5080, provides that where the adverse party is not
mislead by a variance between the allegations in a pleading and the proof offered at the trial,
the variance is to be deemed immaterial, and, where it appears that the defendant has been
mislead, the court may order an amendment on such terms as may be just. Having failed to
attack the complaint on the seventh statutory ground of demurrer in order that the complaint
might have been made more definite and certain before interposing his answer, the defendant
cannot claim that he was mislead. Burgess v. Helm, 24 Nev. 242; Harwood v. Carter, 47 Nev.
334.
Frank B. Scott, for Respondent:
The plaintiff adopted the wrong remedy. We say that plaintiff should have sued on his
contract, and that the damages would be the reasonable value of the goods on the ranch in
1927, and not in 1924. In 36 C.J. 103, that under an agreement to leave certain produce on the
premises, it is held that the landlord's remedy is not by action of trover, but by action for
breach of agreement. The rule is also laid down in 4 Encyclopedia of Pleading and Practice,
at page 925.
Section 5083, Rev. Laws, expressly states: That where the allegation to which the proof is
directed * * * is unproved in its scope and meaning, it is not a case of variance but failure of
proof. In the case at bar the plaintiff falsely claims in his complaint that he had sold us hay
in 1924 for which we agreed to pay him $25 a ton, then he comes into court and proves an
entirely different contract.
Not one of the cases cited by counsel for appellant is in point. Most of them refer to an
executory contract, where there was something yet to be done by the plaintiff which he was
prevented from doing by the defendant, or where the defendant had violated the contract so
as to absolve the plaintiff from performing the rest of his.
51 Nev. 150, 152 (1928) Marks v. Roberti
so as to absolve the plaintiff from performing the rest of his. But it is well-settled law that
where there is an express contract you must sue on the express contract.
An amendment which changes the cause of action is not allowable. Sutherland C.P.&P.,
sec. 788a (1917); Alt Peter v. Postal, 2 Nev. 15.
Plaintiff must recover upon the cause of action set out in the complaint, and not upon some
other which may be developed by the proofs. Mondran v. Goux, 51 Cal. 151; Lindley v. Fay,
119 Cal 239, 51 P. 333.
A party cannot be presumed to be apprised of any facts by the pleading of his adversary
except those stated therein. Ester v. Simpson, 13 Nev. 472.
The pleading and the proof must correspond. 4 Cyc. 356; Lafferty v. Day, 3 Ark. 258;
Wilkenson v. Mosdy, 18 Ala. 288; Menifee v. Higgens, 57 Ill. 50; Foerster v. Foerster, 38
N.E. 426; Colburn v. Pomeroy, 44 N. H. 19; Little Klamath v. Ream, 39 P. 998; Davidson v.
Ford, 23 W. Va. 617.
OPINION
By the Court, Coleman, J.:
This action was brought to recover judgment in the sum of $712. Omitting the formal
portions, the complaint alleges:
That on ___ day of February, 1924, the plaintiff furnished to the defendant twenty-six ton
of hay of the reasonable value of $25 a ton and of the total value of $650 and nineteen (19)
sacks of wheat, weighting about one (1) ton, of the reasonable value of $62 at the total value
of the hay and grain so furnished by the plaintiff to defendant as aforesaid the sum of seven
hundred and twelve dollars (712) which defendant promises and agreed to pay to plaintiff, the
sum being the reasonable value of the hay and grain aforesaid.
The complaint also alleges that the defendant had failed and refused to pay for said hay
and grain, or any part thereof, and that defendant is indebted to the plaintiff in the sum of
$712, which sum plaintiff had often demanded of the defendant.
51 Nev. 150, 153 (1928) Marks v. Roberti
The answer was, in substance, a general denial.
Upon the trial of the case the plaintiff was called as a witness in his own behalf, and after
some preliminary questions his attorney said:
Just go on and tell the court what occurred with reference to this hay, if anything.
The witness stated:
I leased it and I left the hay on the place. It was there ever since I leased it in 1916.
There was an objection on the ground that there was no allegation as to a lease in the
complaintno suit on a leaseand hence the evidence was outside of the issues. After a
statement had been made by counsel for plaintiff, and some argument, the court admitted in
evidence, over objection and subject to a motion to strike, the lease.
The lease contains the following condition:
And it is further understood and agreed that the party of the first part shall and will leave
upon the premises above described for the use and benefit of the party of the second part,
twenty (20) sacks of wheat (18 seed and 2 chicken) and thirty (30) tons of hay.
And it is further agreed that the party of the second part, at the expiration of this lease,
will leave upon the premises leased herein twenty (20) sacks of wheat (18 seed and 2
chicken) and thirty (30) tons of hay, for the use and benefit of the party of the first part
herein.
The plaintiff gave evidence of the value of the hay and grain as of the time defendant took
possession of the ranch in March, 1924, but none as to its value at the expiration of the lease
three years later when the place was turned back to the plaintiff. When the plaintiff rested his
case, counsel for the defendant moved for a nonsuit, on the ground that plaintiff had failed to
prove his case as alleged, which motion was sustained, and judgment was entered for the
defendant. Plaintiff has appealed.
1. We think the judgment should be reversed. It is the policy of the courts, so far as
possible, where no injury results to ignore technicalities in pleading. Such has long been the
policy of this court, as was manifested in Burgess v. Helm, 24 Nev. 242
51 Nev. 150, 154 (1928) Marks v. Roberti
has long been the policy of this court, as was manifested in Burgess v. Helm, 24 Nev. 242, 51
P. 1025, which has been consistantly adhered to.
2. In the instant case plaintiff sued both on quantum meruit and on quantum valebat.
Plaintiff might have alleged a breach of contract and sued for damages, but the measure of his
damages would be the value of the hay and grain which defendant should have returned at the
time he surrendered the ranch to the plaintiff under the terms of the lease. The measure of his
recovery on the quantum valebat was the same. The purpose of all pleading is to apprise the
opposite party of the nature of the case against him. In view of the situation we do not think
there was such a variance as justified the nonsuit, since the defendant could not have been
misled to his detriment. Though there was no proof of what the value of the hay and grain
was when the ranch was returned to the plaintiff, it as least had a nominal value.
As said in 13 C.J. 244, 245, dealing with the subject of implied contracts:
They rest solely on a legal fiction, and are not contract obligations at all in the true sense,
for there is no agreement; but they are clothed with the semblance of contract for the purpose
of the remedy, and the obligation arises not from consent, as in the case of true contracts, but
from the law or natural equity. * * * Among the instances of quasi or constructive contracts
may be mentioned cases in which one person has received money which another person ought
to have received, * * *; cases in which a person fails to deliver specific property and becomes
liable for the money value thereof. * * *
The instant case falls squarely within the last-mentioned class.
For reasons given, the judgment is reversed.
On Petition for Rehearing
January 17, 1929.
Per Curuam:
Rehearing denied.
____________
51 Nev. 155, 155 (1928) Scheinwald v. Bartlett, Judge
SCHEINWALD v. BARTLETT, Judge
No. 2834
November 13, 1928. 271 P. 468.
1. PleadingFiling Answer after Statutory Time Is Largely Within Court's Discretion,
Especially Before Default Is Entered.
The matter of allowing the filing of an answer after the time fixed by statute is largely within the
discretion of the judge of the lower court, especially before default has been entered.
2. PleadingCourt May Deal with Verified Answer on File Before Entry of Default,
Whether or Not Unverified Answer, Filed After Statutory Time, Raised Any Issue.
Where defendant's default has not been entered, and there is a verified answer on file, court has
discretion to deal with it as justice requires, whether or not unverified answer, permitted to be filed after
statutory time, raised any issue on day set for hearing.
C.J.CYC. REFERENCES
Pleading31 Cyc. p. 597, n. 9.
Original proceeding in mandamus by Rueben Scheinwald against George A. Bartlett, as
Judge of the Second Judicial District Court in and for the County of Washoe, Department No.
2. Writ denied.
Clyde D. Souter and John S. Field, for Petitioner:
Section 5060 of the civil practice act, vol. 2, Rev. Laws of Nevada, 1912, provides:
Every pleading shall be subscribed by the party or his attorney, and when the complaint is
verified by affidavit the answer and reply shall be verified also, except as provided in the next
section. The next section does not touch upon the situation in the instant case.
From sec. 5084 of the civil practice act, in vol. 2, Rev. Laws of Nevada, 1912, it is at once
apparent that the legislature has made provision whereby the court may, upon order, enlarge
the time for filing an answer where the time has not yet expired. It is equally apparent that
where the time has expired the legislative provision definitely fixes the method according to
which the defendant may secure permission to file an answer after the time limited by law has
expired.
51 Nev. 155, 156 (1928) Scheinwald v. Bartlett, Judge
The defendant in the instant case not only absolutely failed to follow the statutory
requirement, but from all that appeared at the time would have been entirely unable to present
any affidavit showing any good cause for the court to grant permission to file the answer out
of time.
It is also clear, from the first statutory citation hereinabove, that the answer, being
unverified, contrary to the mandatory requirement of the statute, is therefore no answer at all.
In view of the above circumstances, it is submitted that the plaintiff is entitled to have the
default of the defendant forthwith entered and to have an immediate trial and disposition of
his cause of action. He has no plain, speedy and adequate remedy at law. In addition, the
failure of the respondent to enter the default of the defendant on plaintiff's motion and
proceed with the trial of the case is a refusal on the part of the respondent to perform an act
which the law especially enjoins as a duty upon the respondent, resulting from his office as
district judge. California Pine Box and Lumber Co. v. Mogan, Judge, 108 P. (Cal. App. 1919)
882; Newell v. Superior Court of Los Angeles County, 149 P. 998; State v. Taylor, 138 N.W.
(S.D.) 372; Dey v. McAlister, 169 P. (Ariz. 1918) 458; Colthurst v. Fitzgerald, 207 P. 471
(Cal. D.C.A. 1922); Crocker v. Conrey, 140 Cal. 213, 73 P. 1006; De Forrest v. Coffey, 154
Cal. 444, 98 P. 27; Sakurai v. Superior Court, 65 Cal. App. 280, 223 P. 575; People v.
Graham (Colo. 1891), 26 P. 936. The rule in Nevada is perhaps best stated in the case of The
State of Nevada, ex rel. N.C. Keane, Relator, v. M.A. Murphy, District Judge, etc.,
Respondent, 19 Nev. 89.
E. W. Cheney, for Respondent:
At the time the case was called for trial an answer had been filed and no formal default had
been entered therein.
Plaintiff did have a plain, speedy and adequate remedy in the ordinary course of law, in
that said plaintiff could have moved to have the verified answer stricken, and no regular
motion to strike the said answer of the defendant from the files had been made by
plaintiff.
51 Nev. 155, 157 (1928) Scheinwald v. Bartlett, Judge
have moved to have the verified answer stricken, and no regular motion to strike the said
answer of the defendant from the files had been made by plaintiff.
OPINION
By the Court, Ducker, J.:
This is an original proceeding in mandamus. Petitioner is plaintiff in a divorce action in
the above-entitled court, and seeks the writ to compel the court to enter the default of
defendant and proceed with the trial of the case. The salient facts are as follows: The time for
defendant to answer or otherwise plead to petitioner's verified complaint for divorce had been
extended by stipulation to and including June 4, 1928. On June 5, 1928, defendant was in
default, and the case set for hearing at 9 a.m. of that day. At that time petitioner moved the
court to enter the default of the defendant and proceed with the trial of the case. Defendant's
attorney was present and resisted the motion. He also asked permission to file an unverified
answer. The court denied petitioner's motion, and permitted defendant to file an unverified
answer. Since the filing of the same, a verified answer has been filed by defendant, and a
motion made for allowances.
1. The matter of allowing the filing of an answer after the time fixed by statute is largely
within the discretion of the judge of the lower court. This is especially so before default has
been entered. Conley v. Chedic, 7 Nev. 336; Bowers v. Dickerson, 18 Cal. 420.
In the former case the court said:
If the defendant was in default, it was a matter much in the discretion of the judge below
to allow the filing of an answer after the time prescribed by statute, especially as no default
had been entered, and there was no showing that the failure to plead had occasioned any delay
or injury to the opposite party.
2. It is contended that the unverified answer raised.
51 Nev. 155, 158 (1928) Scheinwald v. Bartlett, Judge
no issue, and the court was therefore without authority to permit it to be filed. Be that as it
may, it could have no bearing on the matter. The court may have erred in this respect, but the
case, nevertheless, falls within the rule stated. The default of respondent has not been entered.
There is a verified answer on file. The court, in our opinion, has discretion to deal with it as
the justice of the case may require.
The writ should therefore be denied.
It is so ordered.
____________
51 Nev. 158, 158 (1928) Nevada First National Bank v. Lamb
NEVADA FIRST NATIONAL BANK OF
TONOPAH v. LAMB
No. 2816
November 15, 1928. 271 P. 693.
1. Appeal and ErrorRecord on Appeal, Containing Copy of Complaint, Summons, and
Other Proceedings, Without Bill of Exceptions, Is Not Proper Record.
Rev. Laws, sec. 5356, relative to appeal from final judgment having been repealed, record on appeal,
containing copy of complaint, summons affidavit for publication, order of publication, and other
proceedings, including notice of motion to set side judgment and order denying the same, without a bill
of exceptions, is not a proper record which can be considered on appeal from order denying motion to set
aside judgment.
C.J.CYC. REFERENCES
Appeal and Error4 C.J. sec. 1786, p. 180, n. 34
Appeal from Fifth Judicial District Court, Nye County; Frank T. Dunn, Judge.
Suit by the Nevada First National Bank of Tonopah against W.C. Lamb. From an order
denying a motion to set aside a judgment theretofore rendered, defendant appeals. On motion
to strike the so-called record on appeal. Motion sustained.
Cooke, Stoddard & Hatton, for Movants:
The document offered by appellant as a Record on Appeal admittedly has never been
settled or allowed by the judge or court or by stipulation of the parties or their counsel, as
provided by Stats, 1923, p.
51 Nev. 158, 159 (1928) Nevada First National Bank v. Lamb
by the judge or court or by stipulation of the parties or their counsel, as provided by Stats,
1923, p. 164-165, sec. 1; see, also, Stats, 1919, p. 440. Therefore we submit our motion to
strike is well-founded and should be allowed; in support of which we cite: Shirk v. Palmer,
48 Nev. 451, 236 P. 678; Caldwell v. Wedekind Mines Co., 50 Nev. 366, 261 P. 652;
Capurro v. Christensen, 46 Nev. 249.
James T. Boyd and John F. Kunz, for Appellant:
Under section 12 of the Statutes of 1915, p. 166, if the matter complained of was embodied in
affidavits and counter-affidavits, the affidavits and counter-affidavits shall be annexed to the
order in place of the bill of exceptions mentioned in the preceding section. In the present case
the order was made upon the judgment rolls and not upon affidavits, and in the opinion of the
writer of this brief the judgment rolls should be annexed to the order. Section 5356, Rev.
Laws of Nev. See, also, Thompson v. Lake, 19 Nev. 103.
OPINION
Per Curiam:
This case is now before the court on respondent's motion to strike the so-called record on
appeal. The motion is based upon the ground that there is no bill of exceptions in the
so-called record embracing the matters presented to the court below, and its ruling; hence
there is nothing that this court can consider.
The facts, so far as material, are these: In 1919 the plaintiff brought suit against the
defendant upon two certain promissory notes to recover the sum of $2,993.63, interest,
attorney's fees, and costs, in the district court of Nye County. An order of service by
publication of summons was made upon affidavit duly filed. Thereafter personal service was
had upon the defendant in New York City, and certain money on deposit was attached. The
defendant having failed to appear within the time designated, judgment was rendered
against him in the amount attached, wherein the court ordered:
51 Nev. 158, 160 (1928) Nevada First National Bank v. Lamb
the time designated, judgment was rendered against him in the amount attached, wherein the
court ordered:
And it is further ordered and adjudged that this judgment be entered without prejudice,
and expressly saving and reserving any and all rights of plaintiff to further proceed against
said defendant for the enforcement of payment of any balance claimed to be due by plaintiff
from said defendant.
Thereafter, and on November 21, 1921, a stipulation between the parties, signed by the
defendant personally, was filed in the case, wherein it was agreed that certain money had been
attached in said action and stipulating that the money so attached be applied to the payment of
certain claims against the money so attached by various persons. It was further stipulated that
plaintiff should defer further proceedings in the action for the period of three months.
On August 3, 1922, the court, after reciting the stipulation above mentioned as an
appearance by the defendant and other matters, entered judgment in favor of the plaintiff and
against the defendant for the balance alleged to be due the plaintiff.
On December 6, 1927, the defendant appeared by counsel, after due notice to the plaintiff,
and moved to set aside said last-named judgment, on the ground that the court was without
jurisdiction to make it. Thereafter, and on December 19, 1927, the court entered an order
denying the motion. It is from this order that the appeal is taken.
The so-called Record on Appeal contains a copy of the complaint, summons, affidavit
for publication of summons, order of publication, and other proceedings, including the notice
of motion to set aside the judgment of August 3, 1922, and the order denying the same,
stipulated to by counsel as being true and correct copies of the said papers on file now in the
office of the clerk of the court in which the proceedings were had. It is further agreed that
the stipulation is without prejudice to any objection plaintiff may make as to the sufficiency
of said record to entitle this court to consider it, and is made in lieu of having the clerk of
the court certify that the documents therein contained are true and correct copies of the
originals on file in his office.
51 Nev. 158, 161 (1928) Nevada First National Bank v. Lamb
it, and is made in lieu of having the clerk of the court certify that the documents therein
contained are true and correct copies of the originals on file in his office.
It is respondent's contention that the only way the order complained of, and which it is
sought to reverse, can be brought to the attention of this court, is by way of a bill of
exceptions, since it is not part of a judgment roll or of the record in the proceedings, and,
since there is no bill of exceptions, the appeal must be dismissed. On the other hand,
appellant contends that, pursuant to section 5356, Rev. Laws, he can have the order
complained of considered upon the so-called record before us. The section mentioned reads:
On an appeal from a final judgment, the appellant shall furnish the court with a transcript
of the notice of appeal, and the statement, if there be one, certified by the respective attorneys
of the parties to the appeal, or by the clerk of the court. On an appeal from an order, the
appellant shall furnish the court with a copy of the notice of appeal, the order appealed from,
and a copy of the papers used on the hearing in the court below, and a statement if there be
one, such copies to be certified in like manner to be correct. If any written opinion be placed
on file in rendering judgment or making the order in the court below, a copy shall be
furnished, certified in like manner. If the appellant fails to furnish the requisite papers, the
appeal may be dismissed.
It is clear that no effort was made to obtain a bill of exceptions in this case. Counsel for
appellant freely so concedes. In this situation we need only determine if the provision which
we have quoted from, section 5356, Revised Laws, is in force. If it is, there is before us a
proper record, and, if it is not, there is no record which we can consider, and hence the motion
to strike must be sustained.
In Water Co. v. Belmont Dev. Co., 49 Nev. 172, 241 P. 1079, we held that the section
mentioned was repealed, and again in Bowers v. Charleston Hill Nat. Mines Co., 50 Nev. 99,
251 P. 721, we again held that documents such as here relied upon could not be considered
as a part of a record.
51 Nev. 158, 162 (1928) Nevada First National Bank v. Lamb
such as here relied upon could not be considered as a part of a record.
In the circumstances, nothing is left to be done but to sustain the motion.
It is so ordered.
____________
51 Nev. 162, 162 (1928) Nevada First National Bank v. Lamb
NEVADA FIRST NATIONAL BANK OF
TONOPAH v. LAMB
No. 2825
November 15, 1928. 271 P. 691.
1. JudgmentThere Can Generally Be but One Final Judgment.
Generally there can be but one final judgment in a case.
2. JudgmentJudgment Reserving Right in Plaintiff to Proceed for Enforcement of Payment
of Balance Held Not Final Judgment.
Judgment for amount attached, and expressly reserving any and all rights of plaintiff to further
proceed against defendant for the enforcement of payment of any balance, held merely interlocutory and
not a final judgment within Rev. Laws, sec. 5236 (Stats. 1913, chap. 87), and section 5238, sufficient
to preclude a further judgment.
3. AttachmentAttachment Proceeding is a Mere Ancillary Remedy.
Attachment proceeding is a mere ancillary remedy, having no bearing whatever on the merits of a
suit.
4. AppearanceStipulation for Application of Moneys Attached and Deferring Proceedings
Held Appearance, Giving Court Jurisdiction to Enter Subsequent Judgment.
Appearance of nonresident defendant by stipulation, agreeing to application of certain claims against
moneys attached and to defer further proceedings for a period of three months, held sufficient to give
court jurisdiction to enter subsequent judgment for balance alleged to be due.
C.J.CYC. REFERENCES
AttachmentC.J. sec. 4, p. 31, n. 14.
Judgments33 C.J. sec. 18, p. 1061, n. 30; sec. 123, p. 1193, n. 37.
Original proceeding in certiorari by W. C. Lamb against the Nevada First National Bank of
Tonopah. Proceedings dismissed.
James T. Boyd, for Appellant:
It is the contention of the petitioner herein that there cannot be two final judgments in one
action; that when the first judgment was rendered and the attached property sold or its
value recovered and applied on the first judgment, the entire judgment was satisfied and
the action itself was dead.
51 Nev. 162, 163 (1928) Nevada First National Bank v. Lamb
the first judgment was rendered and the attached property sold or its value recovered and
applied on the first judgment, the entire judgment was satisfied and the action itself was dead.
Under subdivision 1 of section 5236, Rev. Laws, upon the application of the plaintiff the
clerk was required to enter the default of Lamb, and to immediately enter judgment for the
amount specified in the complaint. The court had nothing whatever to do with either the
default or the entry of the judgment, the law having imposed that duty upon the clerk of the
court, and the law contemplating that when such judgment is entered by the clerk it shall be
the final judgment.
It is evidently under subdivision 3 of the same section 5236, Rev. Laws, that the court
proceeded in rendering the judgment of October, 1919, and the sole authority and the sole
power the court had under that provision was to render a judgment for the amount that the
plaintiff was entitled to recover. The court having done so, and the judgment so rendered
never having been appealed from, reversed or modified, it is the final judgment in the action.
A judgment is the final determination of the rights of the parties in the action or
proceeding. Section 5238, Rev. Laws. There cannot be two final judgments in this state.
Lowe v. Crown Point Mfg. Co., 2, Nev. 75; 22 Cyc. 772; Black on Judgments, vol. 1, secs. 21
and 107; Perkins v. Sierra S.M. Co., 10 Nev. 405.
Ever since the celebrated case of Pennoyer v. Neff, 95 U.S. p. 565, it has been almost
universally held that no judgment in personam can be rendered in an action where the service
of the complaint and summons was either by publication or by personal service upon the
defendant outside of the state; that to give the court jurisdiction to render a judgment at all, it
would be necessary for the defendant to have property within the state and to have that
property brought under the control of the court by an attachment proceeding or some
equivalent act. Such proceeding then becomes an action in rem and is a proceeding against
the property attached.
51 Nev. 162, 164 (1928) Nevada First National Bank v. Lamb
an action in rem and is a proceeding against the property attached. No judgment in personam
can be rendered against the defendant, nor can any rights be given the plaintiff in such action
against the defendant personally. See, also, Keenan v. Keenan, 40 Nev. 355; 33 C. J. 1089;
First Nat. Bank v. Rantman, 77 P. 1043; Black on Judgments, secs. 229, 230, 231.
The attempt to claim that Lamb appeared in the action, or gave such an appearance as to give
the court jurisdiction to render the judgment of August, 1922, cannot be sustained. Lamb
could not appear in that action at that time because there was no action pending in which he
could have appeared. The action died with the return of the sheriff showing the execution
issued under the judgment of October, 1919, had been fully paid. State v. Justice Court, 44
Nev. 140.
Cooke & Stoddard, for Respondent:
Conceding, for argument only, that rendition of the in rem judgment of October 17, 1919,
for only a part of the bank's demand was in effect a splitting of a cause of action, and
conceding similarly that the reservation of right of the bank to further proceed to collect the
unpaid balance was of itself ineffective, still the objection of splitting demand is not
jurisdictional, but merely affords a defendant the right to object, which objection he can
waive, and such waiver will be implied from a failure to make any objection on this ground
in the trial court. 1 C.J. 1109, sec. 280, and cases cited. See, also, 34 C.J. 829 and n. 39;
National Union etc. Co. v. Denver etc. Co. (Utah), 137 P. 653, 656, 657; Grain v. Aldrich, 38
Cal. 514, 99 A.D. 423.
Admittedly there remained unpaid $1,764.34 on the claim set up in the complaint, after the
$1,369.77 was paid and credited. Said complaint as to that unpaid balance, as the respondent
views it, is the full equivalent of a new complaint filed for the same amount. Also, the
collection and crediting of the $1,369.77 by the in rem proceedings may be fairly accepted as
neither more nor less than a voluntary payment and credit, leaving action to proceed for
unpaid balance.
51 Nev. 162, 165 (1928) Nevada First National Bank v. Lamb
action to proceed for unpaid balance. The in rem judgment of October 16, 1919, did not
purport to be and was not a final judgment. Rev. Laws Nevada, sec. 5238; Perkins v. Sierra
Co., 10 Nev. 411. It could not have been appealed from as a final judgment. It expressly
reserved unto plaintiff the right to further proceed for recovery of some $1,734.34 unpaid
balance of claim originally sued for, hence could not be a final judgment. 10 Nev. 411. It was
a mere interlocutory judgment. 33 C.J. 106. Being only in rem, it did not and could not
exhaust the power of the court to later proceed in personam in the same action. 2 Black,
Judgment, p. 1025, sec. 674. The complaint being regularly on file, an alias summons could
be issued thereon (Rev. Laws of Nevada, sec. 5017, as amended Stats. 1921, p. 88) any time
within a year, or defendant Lamb could, with or without any summons, enter his appearance
(Rev. Laws of Nevada, sec. 5034) just as he did do by the stipulation made and filed by him
prior to the August 3, 1922, judgment now under attack, and by which stipulation the
respondent contends he waived any objection to the court proceeding, and submitted himself
to the jurisdiction of the court for the purpose of proceeding with respect to such unpaid
balance, and that by such stipulation Lamb expressly recognized and admitted that the action
was then pending and undetermined with respect to said unpaid balance. Such voluntary
appearance undoubtedly waived issue and service of summons. Rev. Laws of Nevada. sec.
5034.
Lamb had a plain, speedy and adequate remedy by appeal, also by motion. Admittedly,
respondent court had the jurisdiction and power to hear and determine the bank's motion to be
substituted for Lamb as party plaintiff in the Lamb v. Kirchen case. Rev. Laws of Nevada,
sec. 5684; Chapman v. Justice Court, 29 Nev. 154-158, 86 P. 552-554; Nevada Central etc.
Co. v. Dist. Court, 21 Nev. 409, 32 P. 673; 11 C. J. 117, and cases cited; Rev. Laws of
Nevada, sec. 5325.
Lamb had a plain, speedy and adequate remedy by motion to vacate the judgment of
August 3, 1922, within six months after rendition thereof.
51 Nev. 162, 166 (1928) Nevada First National Bank v. Lamb
six months after rendition thereof. Rule 45 of the Rules of Practice of the District Court. The
revised Laws of Nevada, sec. 5684, providing that the writ may issue where there is no
appeal, nor any plain, speedy or adequate remedy, does not mean that a party who has the
right of appeal, or who has a plain, speedy and adequate remedy by motion, can deliberately
allow the time for invoking those remedies to elapse and then come to this court by certiorari
and say that he has no plain, speedy or adequate remedy by motion or by appeal.
OPINION
Per Curiam:
This is an original proceeding in certiorari. We do not deem it necessary to detail other
facts than those necessary to determine the jurisdictional question raised.
The facts, so far as material, are these: In 1919, the plaintiff brought suit against the
defendant upon two certain promissory notes to recover the sum of $2,993.63, interest,
attorney's fees, and costs, in the district court of Nye County. An order of service by
publication of summons was made upon affidavit duly filed. Thereafter personal service was
had upon the defendant in New York City, and certain money on deposit was attached. The
defendant having failed to appear within the time designated, judgment was rendered against
him in the amount attached, wherein the court ordered:
And it is further ordered and adjudged that this judgment be entered without prejudice,
and expressly saving and reserving any and all rights of plaintiff to further proceed against
said defendant for the enforcement of payment of any balance claimed to be due by plaintiff
from said defendant.
Thereafter, and on November 21, 1921, a stipulation between the parties signed by the
defendant personally, was filed in the case, wherein it was agreed that certain money had been
attached in said action, and stipulating that the money so attached be applied to the payment
of certain claims against the money so attached by various persons.
51 Nev. 162, 167 (1928) Nevada First National Bank v. Lamb
certain claims against the money so attached by various persons. It was further stipulated that
plaintiff should defer further proceedings in the action for the period of three months.
On August 3, 1922, the court, after reciting the stipulation above mentioned as an
appearance by the defendant, and other matters, entered judgment in favor of the plaintiff and
against the defendant for the balance alleged to be due the plaintiff.
On December 6, 1927, the defendant appeared by counsel, after due notice to the plaintiff,
and moved to set aside said last-named judgment, on the ground that the court was without
jurisdiction to make it. Thereafter, and on December 19, 1927, the court entered an order
denying the motion.
It is the contention of counsel for petitioner that the first judgment rendered in the case
was a final judgment, and, being such, the court had no jurisdiction to render a further
judgment.
In support of the contention made, our attention is called to section 5236, Rev. Laws,
(Stats. 1913, p. 110), and section 5238, Rev. Laws, pertaining to final judgment.
1. It is a well-known general rule that there can be but one final judgment in a case; hence
it is necessary that we determine if the judgment of 1919 was a final judgment. We do not
think it was. As we have pointed out, the action was instituted to recover judgment in the sum
of $2,993.63, costs, etc. The issue tendered by the complaint was whether or not the
defendant was indebted to the plaintiff as alleged in the complaint and the plaintiff was
entitled to have that allegation determined if he could acquire jurisdiction over the defendant
by personal service upon him within the state or by his appearance in the case.
It is clear that the main purpose of the action was to recover a personal judgment for the
full amount demanded in the prayer of the complaint and in the summons.
This court, in Perkins v. Sierra Nev. S.M. Co., 10 Nev. 411, very clearly set forth what
constitutes a final judgment, wherein it says:
"A judgment or decree is final that disposes of the issues presented in the case,
determines the cost, and leaves nothing for the future consideration of the court.
51 Nev. 162, 168 (1928) Nevada First National Bank v. Lamb
Nev. 411, very clearly set forth what constitutes a final judgment, wherein it says:
A judgment or decree is final that disposes of the issues presented in the case, determines
the cost, and leaves nothing for the future consideration of the court. When no further action
of the court is required in order to determine the rights of the parties in the action, it is final;
when the cause is retained for further action it is interlocutoryciting cases.
2. The instant case comes squarely within that statement. The so-called judgment did not
purport to dispose of the issue tendered by the complaint as to the full amount alleged to be
due, and in the so-called judgment the court retained the cause for further consideration;
hence the judgment rendered is merely interlocutory.
3. The attachment proceeding was a mere ancillary remedy. Levy v. Elliott, 14 Nev. 435.
In Atkins v. Swope, 38 Ark. 528-536, it is said:
An attachment has no bearing whatever upon the merits of a suit. It is only ancillary to
secure the fruits of any judgment to be obtained.
Attachment proceedings are incidental and provisional and form no part of the
pleadings. Jordan v. Frank, 1 N.D. 206, 46 N.W. 171.
In Allender v. Fritts, 24 Cal. 447, it is said:
The attachment is merely a proceeding ancillary to the action, by which a party is enabled
to acquire a lien for the security of his demand. * * *
In Miller v. Dixon, 2 Kan. App. 445, 42 P. 1014, it is held:
The attachment proceeding being ancillary to main action, any order made with reference
to the attached property does not affect the progress of the case upon merits.
See, also, 6 C.J. 31.
Pursuant to statute, alias summons may be issued toties quoties, until due service shall be
made. Had the defendant come into the state after the attachment proceedings had been had,
if the original summons were still in the hands of the officer, he might have made service
thereof, and, if it were not, alias summons might have been issued and served, and
jurisdiction would have been thereby acquired over the defendant such as would give the
court jurisdiction to enter a personal judgment against him.
51 Nev. 162, 169 (1928) Nevada First National Bank v. Lamb
still in the hands of the officer, he might have made service thereof, and, if it were not, alias
summons might have been issued and served, and jurisdiction would have been thereby
acquired over the defendant such as would give the court jurisdiction to enter a personal
judgment against him. This being done, the only question for the court to determine is
whether the stipulation signed by the defendant was such as to constitute an appearance in the
case by the defendant.
The stipulation in question, after reciting the attachment of certain money and that said
action is still pending and undetermined, provides how the money so attached shall be
applied, and concludes with the following sentence:
In consideration of which the plaintiff herein agrees to defer further proceedings in this
action against the said defendant, W.C. Lamb, for the period of three months from date.
4. There can be but one conclusion as to the intention of the defendant in the case. He
stipulates the present pendency of the action, the disposition of the money, and in
consideration of this he is given three months' stay in the action. So far as appears, he was at
the time within the jurisdiction of the court. If the court did not have nor could not acquire
jurisdiction over him, no advantage could accrue in obtaining the three months' stay. It was a
provision evidently sought by him and granted as a favor.
In the circumstances of the case, we think it clear that his appearance by stipulation served
to give the court jurisdiction to enter the judgment thereafter entered; hence it must follow
that these proceedings must be dismissed, and it is so ordered.
On Petition for Rehearing
April 2, 1929.
Per Curiam:
Rehearing denied.
____________
51 Nev. 170, 170 (1928) Wainwright v. Bartlett, Judge
WAINWRIGHT v. BARTLETT, Judge
No. 2809
November 17, 1928. 271 P. 689.
1. WillsWill Contestant Is Not Entitled to Jury Trial Regarding Validity, where Right Is
Not Conferred by Statute.
Party to will contest is not entitled to have issues raised by validity of will tried by jury, where right is
not conferred by statute.
2. WillsStatute Regarding Trial of Issues in Will Contest as in Common-Law Action Must
Be Harmonized, if Possible, with Other Provisions Bearing on Matter.
Rev. Laws, sec. 6109, providing for trial of issues of fact in will contest as in common-law actions
must be harmonized, if possible, with other provisions of act bearing on the matter.
3. StatutesGeneral Provision Relating to Trial of Issues in Will Contest as in Common-Law
Actions Must Be Controlled by Specific Provisions of Act Touchng Same Matter.
Rev. Laws, sec. 6109, providing for trial of issues of fact in will contest as in common-law actions,
being general in nature, must be controlled by specific provisions; probate act, secs. 29, 45, 51, 63, 141,
142, 219, 231, 232, 243 (Rev. Laws, secs. 5885, 5901, 5907, 5919, 5998, 5999, 6076, 6088, 6089,
6100), providing for trial of issue of fact by court in certain instances.
4. WillsStatute Providing for Trial of Issue of Fact in Will Contest as They Are Tried in
Other Cases in District Court Does Not Give Jury Trial as Matter of Right.
Rev. Laws, sec. 5874, dealing with will contests and providing that any and all issues of fact shall be
tried as issues of fact are tried in other cases in district court, does not entitle contestant to jury trial as
matter of right, since all issues of fact are not so triable.
5. WillsWill Contestant Held Not Entitled to Jury Trial as Matter of Right Under Statutes.
Under Rev. Laws, sec. 5876, providing that if court shall be satisfied upon proof taken when heard by
court, or by verdict of jury in case jury trial is had, that will was duly executed, etc., court shall admit will
to probate, and sections 5874, 6109, 6138, relating to will cases, will contestant held not entitled as
matter of right to trial by jury, since sections 5874, 6109, and 6138 must be considered in connection
with section 5876 under which advisory jury is meant.
C.J.CYC. REFERENCES
Juries35 C.J. sec. 18, p. 151, n. 45; sec. 69, p. 181, n. 13.
Statutes36 Cyc. p. 1129, n. 59; p. 1151, n. 57.
Wills40 Cyc. p. 1320, n. 57.
51 Nev. 170, 171 (1928) Wainwright v. Bartlett, Judge
Original proceeding in mandamus by Jacob W. Wainwright against Hon. George A.
Bartlett, as Judge of the Second Judicial District Court of the State of Nevada in and for the
County of Washoe, Department No. 2 thereof, to compel respondent to reset a will contest
before a second jury. Petition dismissed.
E. W. Cheney, Talmage L. Smith, and Sardis Summerfield, for Petitioner:
The position of your petitioner in this case is that this is not a proceeding in equity, and
that your petitioner has a right at law to have the issues in this case settled and determined by
a jury. Lucich v. Medin, 3 Nev. 93, 93 Am. Dec. 376. Since the jury failed to agree, the law
makes it mandatory on the lower court to reset the case upon application made by your
petitioner for him to do so.
All issues of fact in matters of an estate shall be disposed of in the same manner as is by
law provided upon the trial of issues of fact in a common-law action. * * * Sec. 6109, Civil
Practice Act.
On a judgment upon an issue of law, if the taking of an account be necessary to enable
the court to complete the judgment, a reference may be ordered. Chancery cases may be tried
by the court with or without the finding of a jury upon issues formed by the court. Sec. 5229,
Civil Practice Act.
Considering these two sections together, is it possible by any stretch of the imagination to
believe that the legislature of this state intended that probate matters were to be considered as
matters coming within the peculiar jurisdiction of a court in chancery and not within the
jurisdiction of a common-law court?
The attention of the court is called to sec. 5874, where it is provided that in a will contest
any and all issues of fact shall be tried as issues of fact are tried in other cases in the district
court.
A constitutional provision guaranteeing a right to a trial by jury guarantees the right to trial
as it existed at common law.
51 Nev. 170, 172 (1928) Wainwright v. Bartlett, Judge
at common law. Ferrell v. City of Ontario, 178 P. 740; State v. McClear, 11 Nev. 39, 44, 52.
The legal remedy for setting aside a will for undue influence in procuring it being
complete under the code, the chancery has no jurisdiction of a proceeding for that purpose.
Gray v. Parkes, 94 Ark. 39, 125 S.W. 1023.
Your petitioner contends that taking sections 327, 4846, 4945, 5199, 5229, 5420, 5874, 5876
and 6109 of the Revised Laws of Nevada, this court will be justified in finding that the
distinction of probate courts from both courts of chancery and common-law courts has been
recognized and maintained by the Nevada courts, as expressed and set forth in the case of
Lucich v. Medin, 3 Nev. 93.
Thatcher & Woodburn, and John D. Hoyt, for Respondent:
A jury trial in a will contest is not a matter of constitutional right in the absence of a
statutory provision to that effect. Bancroft's Probate Practice, vol. 1, sec. 198, and cases cited.
In accordance with this rule it has been uniformly held that, where a jury disagrees, the judge
may make findings and enter judgment without resubmitting the case to a new jury. Shaw v.
Shaw, 28 S.D. 221, Ann. Cas. 1914b, 554, 133 N.W. 292; In Re Price's Estate, 194 N.Y.S.
842.
Do the statutes of Nevada make a trial by jury a matter of right in a will contest? It seems
hardly probable that the legislature intended by the words common-law action, in sec. 6109
of Rev. Laws, to mean an action at law as distinguished from a suit in equity, because
common-law actions have been abolished under our procedure, and the statute, sec. 4943,
Rev. Laws, provides that there shall be in this state but one form of civil action for the
enforcement or protection of private rights, and the redress or prevention of private wrongs,
which action is to be maintained in conformity with the provisions of the civil practice act.
Moreover, the words common law, as commonly used, refer to the entire system of
jurisprudence which the several states acquired from Great Britain, and this includes actions
at law, suits in equity, and matters cognizable before the ecclesiastical courts.
51 Nev. 170, 173 (1928) Wainwright v. Bartlett, Judge
acquired from Great Britain, and this includes actions at law, suits in equity, and matters
cognizable before the ecclesiastical courts. An action maintained under the civil practice act
does not mean a jury trial as a matter of right, excepting only strict actions at law. Sec. 4945,
Rev. Laws.
But if we take sec. 6109, Rev. Laws, to mean that a jury trial is a matter of right whenever
any issue arises in an estate matter, then this general provision, under a well-established rule
of statutory construction, must yield where the legislature has made a special provision as to
the procedure to be followed in the trial of some particular issue which may arise in such a
proceeding. Sec. 29 of the act to regulate the settlement of the estates of deceased persons,
being sec. 5885 of the Rev. Laws, provides for making up an issue as to the granting of letters
testamentary, and then provides that such objections shall be heard and determined by the
court. Again, sec. 45 of the same act, being sec. 5901, Rev. Laws, provides that on the
hearing of a contest as to letters of administration the court will proceed to hear the
allegations and proof of the parties and to order the issuance of letters of administration, as
the case may require. In the same way, a special procedure is prescribed as to the trial of
numerous other issues which may arise in the course of the settlement of an estate, and the
court's attention is invited to sections 51, 61-63, 133, 141-142, 188, 219, 231, 232, 243 and
275, in each of which cases the court is required to hear and determine the issue. We think
it is plain from a reading of sec. 20 of the act, being sec. 5876, Rev. Laws, that the word
court refers to the trial judge as distinguished from the jury. Sec. 20 is the only section of
the entire act in which the word jury occurs. Moreover, there is no doubt but that the
district judge is intended in section 63 (sec. 5919, Rev. Laws). In that portion of the act which
applies to will contests, even more than in the other cases, a special procedure has been
prescribed by the statute, which must control over a general provision toward the end of the
act. Secs.
51 Nev. 170, 174 (1928) Wainwright v. Bartlett, Judge
5874, 5876, Rev. Laws. In this connection, attention is called to the following New York
cases: In Re Eno's Will, 157 N.Y.S. 553 (affirmed in 158 N.Y.S. 234); In Re Plate's Will, 156
N.Y.S. 999; In Re Vetter's Will, 157 N.Y.S. 450.
Judge Sweeney, writing the opinion of the court in the case of Abel v. Hitt, 30 Nev. 93,
105, said: 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. Citing cases. While Chief Justice Talbot and Justice Norcross did not concur
in the opinion in so far as it held that the verdict of the jury was advisory, on the ground that
the question was not, in their opinion, necessarily involved, nevertheless Judge Sweeney's
opinion must be accorded very great weight, and a consideration of this subject must be
approached with the thought that, in the only expression of this court on the subject, one
learned justice believed a jury in a will contest to be merely advisory.
OPINION
Per Curiam:
This is an original proceeding in mandamus, brought to compel the Second judicial district
court of the State of Nevada to reset a will contest for a second trial before a second jury.
After filing the contest, the petitioner, contestant in the court below, requested a jury trial,
which was granted, and the cause thereafter regularly tried and submitted. Two forms of
general verdict were given to the jury, when it retired, together with three forms of special
verdict. The special verdicts requested were as follows: (1) Was J.B. Wainwright of sound
mind and disposing memory at the time the proposed will of May 5, 1926, was signed? (2)
Did J.B. Wainwright, at the time of signing said proposed will, have sufficient mental
capacity to recollect those who were the natural objects of his bounty?
51 Nev. 170, 175 (1928) Wainwright v. Bartlett, Judge
have sufficient mental capacity to recollect those who were the natural objects of his bounty?
(3) Was J.B. Wainwright acting under undue influence at the time the said proposed will of
date May 5, 1926, was made? The jury returned in favor of respondent on the first and second
questions and reported disagreement on the third. No general verdict was found. Thereafter,
on motion of counsel for proponent of the will, the court made findings of fact and
conclusions of law declaring Joseph B. Wainwright, deceased, to have been of sound and
disposing mind at the time of the execution of the will, that he was then and at all times free
from undue influence, and admitted the same to probate.
The return shows, and when the matter first came on for hearing in this court counsel for
respondent contended, that counsel for petitioner made no motion for a resetting of the case
before another jury until after the court had admitted the will for probate. It was then argued
that by reason thereof petitioner had waived the right to a second jury trial. On a subsequent
hearing for which the case was continued for the production of evidence as to this fact, the
point was waived by counsel for respondent.
1. Petitioner contends that on his motion the court had no alternative than to set the case
down for trial before another jury. While there are some cases to the contrary, it is well
established by the great weight of better-reasoned authority that a party to a will contest is not
entitled to have issues raised concerning its validity tried by a jury unless the right is
conferred by statute. The rule is stated in Bancroft's Probate Practice, vol. 1, sec. 198, as
follows:
A contest of a will and proceedings to revoke its probate are special proceedings.' In the
absence of a statute providing for trial by jury, probate proceedings have always been heard
by the court without the intervention of a jury. Only in those probate proceedings where the
statute expressly confers a right to a trial by jury does the right exist. Proceedings to contest a
will are, moreover, in their nature equitable, and trial by jury of issues of fact therein is
not a matter of right.
51 Nev. 170, 176 (1928) Wainwright v. Bartlett, Judge
will are, moreover, in their nature equitable, and trial by jury of issues of fact therein is not a
matter of right. The constitutional right to trial by jury safeguards only the right to trial
according to the common law as it existed at the time the particular constitution was adopted.
There is accordingly no constitutional right to jury trial in a will contest and only such right as
statute may provide.
The following leading cases may be selected from the many affirming this generally
recognized doctrine: In Re Dolbeer's Estate, 153 Cal. 652, 96 P. 266, 15 Ann. Cas. 207; Shaw
v. Shaw, 28 S. D. 221, 133 N.W. 292, Ann. Cas. 1914b, 554, Stratton v. Rice, 66 Colo. 407,
181 P. 529; Matter of Clyne, 72 Misc. Rep. 593, 131 N.Y.S. 1090; Stevens v. Myers, 62 Or.
372, 121 P. 434, 126 P. 29; Parker v. Hamilton, 49 Okl. 693, 154 P. 65; Moody v. Found, 208
Ill. 78, 69 N.E. 831. See, also, 35 C. J. sec. 18, p. 151, and cases cited.
As said in Moody v. Found, supra:
The jurisdiction to admit wills to probate has never been exercised by the common-law
courts as a part of their common-law jurisdiction, but prior to the establishment of probate
courts the eccesiastical courts of England and the analogous courts of this country exercised
that jurisdiction, and that jurisdiction, as now exercised by the county court of this state, is
purely statutory, so that the constitutional provision that the right of trial by jury as
heretofore enjoyed, shall remain inviolate,' did not confer upon the appellant the right to
demand a jury upon the trial of said appeal in the circuit court, as it has been uniformly held
that such constitutional provision was designed only to secure the right of trial by jury as it
had theretofore been enjoyed in those tribunals which exercised common-law jurisdiction,
and was not intended to confer such right in any class of cases where it had not formerly
existed. Nor was it intended to introduce the jury system into those special summary
jurisdictions which were unknown to common law.
51 Nev. 170, 177 (1928) Wainwright v. Bartlett, Judge
Counsel for petitioner insist that the right to a jury trial is conferred in our probate act, and
cite the following provisions in support of their contention:
Section 5874 (Rev. Laws):
If any person appears to contest the probate of a will, such person shall file a statement in
writing, setting out the grounds of contest, and file the same with the clerk, which shall
constitute a joinder of such issues of fact as may be alleged in opposition to the will, such as
respects the competency of the deceased to make a last will and testament, or respecting the
execution by the deceased of such last will and testament, under restraint, or undue influence,
or fraudulent representations, or for any other cause affecting the validity of such will. And
any and all issues of fact shall be tried as issues of facts are tried in other cases in the district
court.
Section 6109 provides:
All issues of fact in matters of an estate shall be disposed of in the same manner as is by
law provided upon the trial of issues of fact in a common-law action. All questions of costs
may be determined by the court, and execution may issue therefor in accordance with the
order of the court.
Section 6138 provides:
When not otherwise specially provided in this act all the provisions of law regulating
proceedings in civil cases shall apply in matters of estate, when appropriate, or the same may
be applied as auxiliary to the provisions of this act.
2, 3. Stress is placed upon the provision in section 6109 for the trial of issues of fact as in a
common-law action, and it is argued that this term must be taken to be meant in the sense of
an action at common law in which a jury has always been allowed as a matter of right.
This provision must be harmonized, if possible, with other provisions of the act bearing
upon the matter. If it cannot be harmonized, the provision, being general in nature, must,
under a well-established canon of construction, be controlled by specific provisions of the
probate act touching the same subject matter.
51 Nev. 170, 178 (1928) Wainwright v. Bartlett, Judge
construction, be controlled by specific provisions of the probate act touching the same subject
matter. In other words, the construction which petitioner seeks to give it must be considered
as designed where not otherwise specially provided. As pointed out by respondent, there are a
number of instances in the probate act where special provision is clearly made for the trial of
an issue of fact by the court, such as appear in sections 29, 45, 51, 63, 141, 142, 219, 231,
232, and 243. These control general provisions. We also think that the proposed construction
of section 6109 must yield before the special provisions of the act providing for will contests.
4. Section 5874, above quoted, which deals with will contests, provides in part as we have
seen:
Any and all issues of fact shall be tried as issues of facts are tried in other cases in the
district court.
This does not necessarily mean a jury trial as a matter of right, for all issues of fact are not
so triable.
This section and all others relied on by petitioner must be considered in connection with
section 5876. To our minds this section makes it clear that the legislature intended no
departure from the time-honored practice of making the court the final arbiter in will contests.
It reads:
If the court shall be satisfied upon the proof taken when heard by the court, or by the
verdict of a jury, in case a jury trial is had, that the will was duly executed by a person at the
time of sound and disposing mind, and not under restraint, undue influence or fraudulent
representation, the court, by decree in writing, shall admit the will to probate, whereupon the
will and the decree admitting it to probate shall be recorded together by the clerk in a book to
be provided for that purpose.
5. This special provision is the only place in the probate act where a jury is mentioned. Or
by the verdict of a jury, in case a jury trial is had, is certainly not a luminous expression of
an intention to grant a jury trial as a matter of right. In case a jury trial is demanded" would
have been more appropriate to express such an intention.
51 Nev. 170, 179 (1928) Wainwright v. Bartlett, Judge
demanded would have been more appropriate to express such an intention. And the failure
of the legislature to use this or other apt language denoting its purpose to effect a change so
radical, considered in connection with the requirement that the court must in any event be
satisfied that the will is entitled to be admitted to probate before it shall decree it to be so
admitted, makes it quite certain that an advisory jury is meant. If it was intended to
revolutionize the practice of centuries in regard to the trial of will contests, it is reasonable to
suppose that the legislature would have used definite language to express such purpose. See
Abel v. Hitt, 30 Nev. 93, 93 P. 227, in which Justice Sweeney, after considering all of the
statutes set out above, reached the same conclusion.
The petition is dismissed.
____________
51 Nev. 179, 179 (1928) Lovelock Mercantile Co. v. Lovelock Irrigation Dist.
LOVELOCK MERCANTILE CO. Et. Al. v. LOVE-
LOCK IRRIGATION DISTRICT Et Al.
No. 2831
December 5, 1928. 272 P.1.
1. Appeal and ErrorSupersedeas Will Not Issue to Restrain Irrigation District Directors
from Annexing Certain Land Pending Appeal from Order Refusing to Enjoin Such
Action.
Supersedeas would not issue to prevent directors of irrigation district from including certain land
within boundaries of district pending appeal from order refusing injunction restraining such action, since
supersedeas will issue only when necessary to complete exercise of appellate jurisidiction of supreme
court under Const. art. 6, sec. 4, Rev. Laws, sec. 4834, and petitioner must clearly show that
irremediable injury can be reasonably apprehended in case of reversal.
C.J.CYC. REFERENCES
Appeal And Error30 C.J. sec. 1405, p. 1282, n. 18
Application for a writ of supersedeas by the Lovelock Mercantile Company and others
against the Lovelock Irrigation District and others. Writ denied.
51 Nev. 179, 180 (1928) Lovelock Mercantile Co. v. Lovelock Irrigation Dist.
Powell & Brown and Price & Hawkins, for Petitioners:
As the matter stands in the district court, the injunction sought having been refused,
defendants below may act upon the petition for the inclusion within the boundaries of the
irrigation district, lands of plaintiffs which are included within the city limits of the city of
Lovelock, but which are not now and never have been included within the boundaries of said
Lovelock irrigation district. It is therefore manifest that the refusal to grant the stay in the
present instance would defeat the appeal from the Order Refusing to Grant an Injunction,
and would make the injunction proceedings pending in the trial court, and also the appellate
proceedings now pending in this court from said Order Refusing to Grant an Injunction,
moot. So the refusal to grant a stay as sought in the petition would injuriously affect
appellants and militate against the full and complete exercise by this court of its appellate
jurisdiction, while It is likewise apparent that granting such a stay will not in any way be
injurious to respondents, provided they are adequately protected by a bond. Under these
circumstances, this court has the power to act, and the showing is sufficient to authorize a
stay. Kiefer v. City of Idaho Falls (Ida.), 265 P. 701-703.
An appeal having been perfected from the Order Refusing to Grant an Injunction, the
application by appellants as petitioners for an order enjoining and restraining respondents,
defendants below, from making any order, pending the hearing upon such appeal, whereby
the lands of petitioners would be included within the boundaries of the Lovelock irrigation
district, is justified and authorized by the Nevada constitution and the Nevada statutes and the
authorities generally considering such matters and such a situation. Sec. 4, art. IV, Nev.
Const.; sec. 4834, Rev. Laws, vol. 2; sec. 5329, vol. 3, Rev. Laws; Halsted v. First Savings
Bank (Cal.), 160 P. 1075; Hill v. Finnegan, 54 Cal. 493; Chicago R. I. & P. Co. v. Woods
(Iowa), 195 N. W. 957; West Side Irrigating Co. v. Chase etc. (Wash), 192 P. 892; Segarini v.
Bargagliotti (Cal.), 226 P. 2; Farmers State Bank of Riverton v. Haun {Wyo.),
51 Nev. 179, 181 (928) Lovelock Mercantile Co. v. Lovelock Irrigation Dist.
State Bank of Riverton v. Haun (Wyo.), 213 P. 361; Omaha & Council Bluffs Street Railway
Co. v. Interstate Commerce Commission, 222 U.S. 582, 56 L. Ed. 324.
H. J. Murrish and Cooke & Stoddard, for Respondents:
The trial court was without jurisdiction to entertain the application for an injunction
pendente lite, and this court is likewise without jurisdiction. Section 38 of the Nevada
irrigation district act (1919 Stats. 102) provides, in substance, that a petition, and all
objections thereto, for annexation of lands to an irrigation district shall be heard by the board
of directors of the district. This rule is stated in sec. 1868, Pomeroy's Eq. Jur. vol. 4 (4th ed.);
Glide v. Superior Court (Cal.), 81 P. 225; Hoole v. Kinkead, 16 Nev. 217-222; Board of
Directors of Modesto Irrigation District v. Tregea (Cal.), 26 P. 237-242; Forsythe et al. v.
City of Hammond, 37 N.E., 537; Graham et al. v. City of Grand Rapids (Mich.), 146 N.W.
248; Ann. Cas. 1915d, 380; McChord v. Louisville & N.R.R. Co., 46 L. Ed., 295; High on
Injunctions (4th ed.), secs. 1311-1326; 32 C.J. 242, sec. 384, n. 70; 32 C.J. 250, sec. 391, n.
70-81; 32 C.J. 252, sec. 396 and notes; 32 C.J. 262, sec. 412, n. 45-46; Alfers v. City and
County of San Francisco, 32 F. 503; Rice v. Snider et al., 134 F. 953; Pomeroy's Eq. Juris.,
vol. 1, secs. 17, 50, 1751 (4th ed.); State ex rel. Raylor v. Lord (Ore.), 31 L. R. A. 476-480.
The petitioners and plaintiffs have a plain, speedy and adequate remedy at law. In support
of which we cite the following sections of the Nevada irrigation district act providing for
annexation of lands: Sec. 36, as amended, 1928 Stats. 7; secs. 37 and 38 (1919 Stats. 102);
sec. 39 (1923 Stats. 295); secs 40 and 41 (1923 Stats. 296); secs. 42 and 43 (1919 Stats. 103);
sec. 43 1/2 (1923 Stats. 296); sec. 18 (1919 Stats. 95); sec. 19 (1919 Stats 96); sec. 20 (1921
Stats. 128).
Assuming, for the purposes of argument, that the board of directors would act unlawfully
upon the petition for annexation (the presumption of law is directly contrary), by exceeding
its jurisdiction, and the petitioner had no plain, speedy and adequate remedy at law, then
certiorari would be the proper procedure, because the proceedings before the board upon
either annexation or exclusion are semijudicial in character.
51 Nev. 179, 182 (1928) Lovelock Mercantile Co. v. Lovelock Irrigation Dist.
petitioner had no plain, speedy and adequate remedy at law, then certiorari would be the
proper procedure, because the proceedings before the board upon either annexation or
exclusion are semijudicial in character. Degiovanni v. Public Service Commission (Nev.),
197 P. 582; Mojave River Irr. Dist. v. Supr. Court (Cal.), 256 P. 469-473; Imperial Water Co.
No. 1 v. Board of Supervisors of Imperial County (Cal.), 120 P. 780; Hoole v. Kinkead, 16
Nev. 217-222. And on the other hand, if the board arbitrarily refused to grant the petition for
exclusion, then the aggrieved party may within thirty days petition the district court to set
aside such order, as specifically provided in section 44 of the act, supra.
This court has passed upon the constitutionality of the Nevada irrigation district act in the
following cases, to wit: In Re Walker River Irr. Dist. (Nev.), 195 P. 327; McLean v.
Truckee-Carson Irrigation Dist. (Nev.), 245 P. 285.
The right of an irrigation district to include city lands or town lands within its boundaries
has been long established and upheld by the great weight of authority. Nampa & Mer. Irr.
Dist. v. Brose (Ida.), 83 P. 499; Board of Directors of Modesto Irr. Dist. v. Tregea (Cal.), 26
P. 237-242; Fallbrook Irr. Dist. v. Bradley (U.S.), 41 L. Ed. 369-390; J. & W. C. Shull v.
Merced Irr. Dist. (Cal.), 365 P. 965; vol. 26 Calif. Jurisprudence, sec. 584, p. 369; O.S.L. Ry.
Co. v. Pioreen Irr. Dist. (Ore.), 102 P. 904.
Both the petition and the amended complaint fail to state or allege that plaintiffs and
petitioners presented objections to the board of directors in the form and manner and within
the time required by the notice published, as provided in section 37 of the act. The
allegations, therefore, are insufficient to authorize either a temporary injunction in the court
below or to authorize the issuance of the writ sought here. Harbough v. Enlarged Baxter
Creek Irr. Dist. (Cal.), 207 P. 1018.
The writ of supersedeas is an auxiliary process designed to supersede the enforcement of
the judgment of the court below, brought up by writ of error for review."
51 Nev. 179, 183 (1928) Lovelock Mercantile Co. v. Lovelock Irrigation Dist.
of the court below, brought up by writ of error for review. Dulin v. Pacific Wood & Coal
Co. (Cal.), 33 P. 123-124; Cal Jur. vol 23, sec. 3 p. 983; Wood v. Board of Fire
Commissioners of Los Angeles (Cal.), 195 P. 739-740.
A writ of supersedeas cannot operate as an injunction against any of the parties to an
action restraining them from any act in assertion of their rights, other than to prevent them
from using the process of the court below to enforce the judgment. It follows, therefore, that
the writ cannot be issued to prevent parties from enforcing their rights under a judgment
independently of the court and without the aid of its process. 23 Cal Jur. p. 986; Southern
Pacific Co. v. Smith et al. (Cal.), 151 P. 426; Wollenschlager v. Riegel (Cal.), 200 P. 726;
Rose v. Mesmer (Cal.), 63 P. 1010; Tyler v. Superior Court of Sonoma County, 13 P. 856;
Napa Valley Elec. Co. v. Calistoga Elec. Co. (Cal.), 163 P. 497; State ex rel. Martin v.
Poindexter, 86 P. 176; State ex rel. Holsom v. Kakey (Wash.), 93 P. 128; Cooper v. Hindley
(Wash.), 126 P. 916.
OPINION
By the Court, Ducker, J.:
This is an application by the appellants for a writ of supersedeas to restrain the respondents
from including within the boundaries of the Lovelock irrigation district any lands, blocks, or
lots of appellants included within the city limits of the city of Lovelock.
Appellants commenced an action against respondents in the Second judicial district court
and obtained a restraining order and order to show cause why an injunction pendente lite
should not issue. The action was by stipulation transferred to the Sixth judicial district court.
After the case was transferred appellants filed an amended complaint in which it is alleged,
inter alia, that it is sought by petition to annex certain lots and blocks of the city of Lovelock
to the Lovelock irrigation district; that upon said lots and blocks are erected buildings for
business and residential purposes, and in many instances such buildings cover the entire
block or lot of ground upon which the same are erected; that said lots or blocks of land
are in no sense farming or agricultural lands, or susceptible of irrigation by the system of
works contemplated by the Lovelock irrigation district, and would not be benefited
thereby or by any improvements it might make; that said lots and blocks now are and at
all times have been outside the boundaries of said Lovelock irrigation district; that said
defendants intend to and will at a meeting to be held by them on Monday, March 19,
192S, make and enter an order denying, overruling, and rejecting any and all objections
thereto and annex said lots unless restrained therefrom; that no benefits have been
apportioned to any of the said lands embraced within the city limits, and the city has its
own sufficient, efficient, and independent water supply for all the lands embraced within
the city limits, and that same have no need for any additional water supply; that said lots
and blocks will not be benefited by inclusion in the district, but on the contrary, will be
greatly and substantially injured thereby, in that each lot will become obligated and
bound for taxation for the payment of a contemplated bond issue in the sum of
$1,2S7,000, with interest at 6 per cent per annum, and remain liable for the payment of
such tax notwithstanding delinquencies in other lands within the district; that the petition
for annexation does not conform to the required provisions of the Nevada irrigation
district act, as amended {3 Rev. Laws 1919, p.
51 Nev. 179, 184 (1928) Lovelock Mercantile Co. v. Lovelock Irrigation Dist.
irrigation district; that upon said lots and blocks are erected buildings for business and
residential purposes, and in many instances such buildings cover the entire block or lot of
ground upon which the same are erected; that said lots or blocks of land are in no sense
farming or agricultural lands, or susceptible of irrigation by the system of works contemplated
by the Lovelock irrigation district, and would not be benefited thereby or by any
improvements it might make; that said lots and blocks now are and at all times have been
outside the boundaries of said Lovelock irrigation district; that said defendants intend to and
will at a meeting to be held by them on Monday, March 19, 1928, make and enter an order
denying, overruling, and rejecting any and all objections thereto and annex said lots unless
restrained therefrom; that no benefits have been apportioned to any of the said lands
embraced within the city limits, and the city has its own sufficient, efficient, and independent
water supply for all the lands embraced within the city limits, and that same have no need for
any additional water supply; that said lots and blocks will not be benefited by inclusion in the
district, but on the contrary, will be greatly and substantially injured thereby, in that each lot
will become obligated and bound for taxation for the payment of a contemplated bond issue
in the sum of $1,287,000, with interest at 6 per cent per annum, and remain liable for the
payment of such tax notwithstanding delinquencies in other lands within the district; that the
petition for annexation does not conform to the required provisions of the Nevada irrigation
district act, as amended (3 Rev. Laws 1919, p. 3269, as amended by Laws 1923, c. 171), and
by reason thereof is inoperative, null, and void; that said petition as signed by the parties does
not describe the lands, nor does it describe the several parcels owned by the persons signing
said petition; that a large number of persons who did in fact sign said petition did so by
reason of fraud, duress, and misrepresentation; that several persons who were induced to sign
are now objecting to such, and object to any of the lands within the city limits of Lovelock
being included within the boundaries of said Lovelock irrigation district; that sections 36,
37, 3S, 39, 40, 41, 42, 43, and 43 1J2 of the Nevada irrigation act, as amended, are
unconstitutional; that petitioners here are the owners and in possession of large portions
of the lots, blocks, and land embracing much of the most substantially improved portions
or sections of the city of Lovelock sought to be included within the boundaries of the said
Lovelock irrigation district; that $1,2S7,000 in bonds have been voted by said Lovelock
irrigation district, and, unless restrained, defendants will include said lands of plaintiffs
within the boundaries of the Lovelock irrigation district and sell said bonds covering all of
plaintiffs' lands, thereby casting a cloud upon plaintiffs' title to all of their said lands and
causing a multiplicity of suits to clear title, and irreparable injury to plaintiffs.
51 Nev. 179, 185 (1928) Lovelock Mercantile Co. v. Lovelock Irrigation Dist.
limits of Lovelock being included within the boundaries of said Lovelock irrigation district;
that sections 36, 37, 38, 39, 40, 41, 42, 43, and 43 1/2 of the Nevada irrigation act, as
amended, are unconstitutional; that petitioners here are the owners and in possession of large
portions of the lots, blocks, and land embracing much of the most substantially improved
portions or sections of the city of Lovelock sought to be included within the boundaries of the
said Lovelock irrigation district; that $1,287,000 in bonds have been voted by said Lovelock
irrigation district, and, unless restrained, defendants will include said lands of plaintiffs
within the boundaries of the Lovelock irrigation district and sell said bonds covering all of
plaintiffs' lands, thereby casting a cloud upon plaintiffs' title to all of their said lands and
causing a multiplicity of suits to clear title, and irreparable injury to plaintiffs.
A hearing was had on said order to show cause, at the conclusion of which the court
dismissed the restraining order and denied the application for the injunction.
Appellants perfected their appeal from the order refusing the injunction prior to their
application for the writ of supersedeas. It is alleged in the petition for the writ that, since the
order refusing to grant an injunction was made, respondents, on May 8, 1928, at Lovelock,
Nevada, held a hearing upon the petition for annexation and objections thereto, and will, if
not restrained from so doing, enter an order including within the boundaries of said Lovelock
irrigation district, lands, blocks, and lots, with valuable improvements thereon, being the
property of appellants, as in said amended complaint alleged, all in violation of the rights of
plaintiffs and contrary to the provisions of the said Nevada irrigation district act; that by such
inclusion petitioner's lots, blocks, and tracts of land, together with the valuable improvements
thereof, will become subject to a lien of $1,287,000 principal bond issue, with interest
thereon, and other indetedness; that said action will create a lien and cloud upon the title to
said lands, even though said lands should be later excluded from the district; that if
improvements have been commenced or authorized, or if there are bonds or other
contracts or certificates of indebtedness outstanding while said lands are so included in
the boundaries of said Lovelock irrigation district, then no lands upon which benefits have
been apportioned shall be excluded, as is provided by said Nevada irrigation act; that
there is in existence a real controversy as to the injunction feature of the action, and if
the action of the board of directors as alleged is not stayed, petitioners will be injuriously
affected if this court should on appeal reverse the order of the lower court denying the
injunction.
51 Nev. 179, 186 (1928) Lovelock Mercantile Co. v. Lovelock Irrigation Dist.
district; that if improvements have been commenced or authorized, or if there are bonds or
other contracts or certificates of indebtedness outstanding while said lands are so included in
the boundaries of said Lovelock irrigation district, then no lands upon which benefits have
been apportioned shall be excluded, as is provided by said Nevada irrigation act; that there is
in existence a real controversy as to the injunction feature of the action, and if the action of
the board of directors as alleged is not stayed, petitioners will be injuriously affected if this
court should on appeal reverse the order of the lower court denying the injunction.
A hearing was had in this court upon demurrer to the petition for the writ. At the
conclusion thereof counsel stipulated that when this court reached its decision it might enter
an order dismissing the petition or granting the writ, as the case might be, and file its written
opinion later. An order dismissing the petition has heretofore been made by this court.
We are of the opinion that a supersedeas order staying the action of the directors as prayed
for is unnecessary. Process of this character will issue only when necessary to the complete
exercise of the appellate jurisdiction of the supreme court. Section 4, art. 6, Nev. Const.;
section 4834, Rev. Laws, vol. 2.
Concerning the writ of supersedeas it is stated in 3 C.J. sec. 1411:
As a rule a supersedeas or stay should be granted, if the court has the power to grant it,
whenever it appears that without it the objects of the appeal or writ of error may be defeated,
or that it is reasonable necessary to protect appellant or plaintiff in error from irreparable or
serious injury in the case of a reversal, and it does not appear that appellee or defendant in
error will sustain irreparable or disproportionate injury in case of affirmance. * * * On the
other hand as a rule, a supersedeas, or stay will not be granted * * * unless it appears to be
necessary to prevent irreparable injury or a miscarriage of justice.
The rule stated above is fairly deducible from the cases.
51 Nev. 179, 187 (1928) Lovelock Mercantile Co. v. Lovelock Irrigation Dist.
cases. A mere claim of serious or irremediable injury in case of a reversal will not prompt this
court to suspend the operation of an order or judgment of a lower court pending an appeal.
Petitioner must clearly show that such an injury can be reasonably apprehended.
It was claimed by appellants that if the petition for the inclusion of their lands was granted,
irreparable injury would result from liens attaching thereto for assessments thereafter levied
for the purpose of raising money to be applied to any of the purposes of the act. It was
insisted that such liens would not be removed notwithstanding said lands were subsequently
excluded from the district, and a cloud would thereby be cast upon the title to the lands; that
they were therefore entitled to a supersedeas to maintain the status quo until the question of
their right to an injunction could be determined on appeal. We do not perceive how any injury
can result from the refusal of this court to make an order staying the action of the directors.
The appellants questioned the power of the directors to proceed with the hearing of the
petition for the inclusion of their lands within the boundaries of the Lovelock irrigation
district upon two grounds: (1) That the sections of the irrigation statute under which the
directors were undertaking to proceed were unconstitutional; and (2) assuming that said
sections were valid, the petition for the inclusion of appellants' lands in the irrigation district
was insufficient and by reason thereof inoperative, null, and void. If either of these
contentions is determined in appellants' favor on appeal the board of directors will have been
without jurisdiction to make appellants' property subject to the provisions of the act.
Consequently no valid liens against their property could result from the action of the board.
It cannot therefore be fairly assumed that it is reasonably necessary to grant a stay to
protect appellants from serious injury in case of a reversal.
For these reasons the writ was denied.
____________
51 Nev. 188, 188 (1928) Carroll v. Carroll
CARROLL v. CARROLL
No. 2799
December 5, 1928. 272 P. 3.
1. Appeal and ErrorParty Cannot Change Position in Supreme Court.
A party cannot change his position or theory of case in supreme court on appeal.
2. Appeal and ErrorRehearing Will Not Be Granted to Consider Point Not made on
Original Hearing.
Supreme court will not grant rehearing in order to consider point not made when case was presented
on original hearing.
C.J.CYC. REFERENCES
Appeal and Error4 C.J. sec. 2489, p. 628, n. 68; sec. 2609, p. 701, n. 49.
On motion for rehearing. Rehearing denied. (For former opinion, see page 62 of this
Report.)
Cantwell & Springmeyer, for Petitioners:
Under the common law, the husband owed an absolute duty to support his wife, without
regard to her property or income. 1 Schouler on Marriage etc. 1570; 13 R.C.L. 1188; Vickers
v. Vickers (W. Va.), 109 S.E. 234, 122 S.E. 279; Norman v. Norman (W. Va.), 197 S.E. 407;
Kittle v. Kittle (W. Va.), 102 S.E. 799. Without statutory aid, a wife, without suing for
divorce, could bring her suit in equity to compel her husband to provide her separate
maintenance. 13 R.C.L. 1188, and cases cited; 30 C.J. 1079, and cases cited. The essential
allegations of her bill in equity do not include necessity. 30 C.J. 1086, and cases cited. The
Nevada statute providing for suit for separate maintenance is properly held to be remedial,
and to be liberally construed. Hilton v. District Court, 43 Nev. 128, 183 P. 317.
Where a cause is tried in the court below on the theory that the pleadings raise a certain
issue, the objection that the pleadings do not raise that issue cannot be made for the first time
in the appellate court. 3 C.J. 727; Furlong v. White (Cal.), 196 P. 903; 31 Cyc. p. 723.
Cooke & Stoddard, for Appellant:
If the common law is to govern the subject, then appellant is entitled to the personal
property and income now held and enjoyed by respondent wife, and is also entitled to the
rents and profits of the wife's realty.
51 Nev. 188, 189 (1928) Carroll v. Carroll
now held and enjoyed by respondent wife, and is also entitled to the rents and profits of the
wife's realty. 13 R.C.L. 1046, sec. 67, item 1053, sec. 76.
A party asking for a rehearing will not be permitted to set up new grounds in support of his
petition different from those urged by him at the original hearing. 4 C. J. 629, sec. 2495 and
n. 88; Beck v. Thompson, 22 Nev. 419, 41 P. 1; Gamble v. Hanchett, 35 Nev. 315, 133 P.
936-937; Kirman v. Johnson, 30 Nev. 146, 96 P. 1057; Rhodes Mining Co. v. Belleville etc.
Mining Co., 32 Nev. 230, 118 P. 813. Instead of seeking for the first time to make the point in
this court, and that too on petition for rehearing, respondent should have availed herself of the
benefit of rule 8, subsection 3, rules of the district court.
The statute, Rev. Laws, sec. 5055, provides that a demurrer shall distinctly specify the
grounds upon which any of the objections are taken, otherwise it may be stricken. But it is
further provided (Rev. Laws, sec. 5045) that objection for insufficiency of facts is never
waived. Nielsen v. Rebard, 43 Nev. 274, 183 P. 984.
It may be taken from the opinion in this case that it is settled law that respondent's plea as
to necessity was a mere conclusion. We say the rule is that pleading conclusions of law do not
aid pleadings; that a pleading is tested by the facts set forth, and if the facts are insufficient,
no plea of legal conclusions will supply the deficiency. 1 Bancroft Code Pl. 90, sec. 43 and n.
3; Callahan v. Broderick, Auditor (Cal.), 56 P. 782-783; Ohm v. San Francisco (Cal.), 28 P.
580-583; 1 Bancroft C.P. 91, 92 and 93, sec. 43; Branham v. Meyer, 24 Cal. 585-602;
Metropolis etc. Bank v. Mounier (Cal.), 147 P. 265.
A pleading which states a conclusion of law, instead of setting out the facts, cannot be
attacked for the first time on appeal upon that ground; and this is true even though the
appellant has interposed a general demurrer which does not point out that specific defect in
the pleading. Russ Lumber Co. v. Garretson (Cal.), 25 P. 747; Scott v. Howell (Colo.), 132 P.
1144; 3 C.J. 781-784; 3 C.J. 746; 3 C.J. 728-729.
51 Nev. 188, 190 (1928) Carroll v. Carroll
An appellate court will not reverse a judgment for an error or defect which might have
been cured by amendment, but will either consider that amendment as having been made or
will permit such amendment. 4 C.J. 3191. The rule obtains even where a general demurrer
has been interposed, if that did not point out the specific defect. The defect here found by the
appellate court to exist is certainly an amendable defect; had appellant's demurrer been
sustained, respondent would have had a right to amend if that could be done; the findings
show that the facts did in fact exist. Gallagher v. Dunlap, 2 Nev. 326; Cal. St. Co. v.
Patterson, 1 Nev. 151; Rule VIII of the District Court of Nevada; Heflinger v. Heflinger
(Ga.), 132 S.E. 85.
An error which does not affect the substantial rights of the appellant will not be sufficient
to warrant reversal of a judgment. 4 C.J. 908; Lorden v. Stapp (Ariz.), 192 P. 246; Furlong v.
White (Cal.), 196 P. 903; State v. Lorenz et al. (in equity) (Wash.), 60 P. 645; Mitchell v.
Bromberger, 2 Nev. 345; Murphy v. S.P. Co., 31 Nev. 120, 101 P. 322. We find statutory
recognition of the principle involved by secs. 5320 and 5358, Rev. Laws. Further, we find the
principle established by statute in criminal appeals, has been by the decisions of this court
applied to civil appeals. See the Nevada decisions cited above, and, also, S.N.M. Co. v.
Holmes M. Co., 27 Nev. 108, 73 P. 759. And it is an inherent power of an appellate court to
decide that an error was harmless and to refuse to disturb a judgment because of it. 4 C.J.
908.
OPINION
By the Court, Coleman, J.:
Several grounds are urged as reasons why a rehearing should be granted in this case.
It is insisted first that, in view of the fact that it was the duty of the husband, at common
law, to support his wife, it was not necessary that the defendant plead the facts showing the
necessity of contribution by the plaintiff.
51 Nev. 188, 191 (1928) Carroll v. Carroll
1. This contention is now made for the first time. In fact, the defendant seems to have
proceeded in the trial court upon the theory that it was necessary to plead such necessity. On
no other theory can we account for the allegation wherein it was attempted to plead it. We
have held that a party cannot change his position in this court. Wheeler v. Hurley, 49 Nev. 70,
236 P. 559.
2. Pursuant to a long line of authorities, this court will not grant a rehearing in order to
consider a point not made when the case was presented on the original hearing. A few of the
cases so holding are: Beck v. Thompson, 22 Nev. 419, 41 P. 1; Gamble v. Hanchett, 35 Nev.
319, 133 P. 936; Kirman v. Johnson, 30 Nev. 146, 93 P. 500, 96 P. 1057; Rhodes M. Co. v.
Belleville Co., 32 Nev. 230, 240, 106 P. 561, 118 P. 813; Nelson v. Smith, 42 Nev. 302, 176
P. 261, 178 P. 625; Pedroli v. Scott, 47 Nev. 313-321, 221 P. 241, 224 P. 807, 31 A.L.R. 841.
However, without deciding the point, we think that under the law the contention is not
well founded. Some of the authorities in point are: 13 R.C.L. p 1201, par. 234; note IX to
Hubbard v. Hubbard, 6 A.L.R. at page 70; 30 C.J. p. 1090, sec. 901; Hunt v. Hayes, 64 Vt.
89, 23 A. 920, 15 L.R.A. 661, 33 Am. St. Rep. 917; Prescott v. Webster, 175 Mass. 316, 56
N.E. 577.
Such seems to be the rule even in England. In Liddow v. Wilmot, 2 Starkie, 86, Revised
Reports, 684, Lord Ellenborough said:
* * * The first question for consideration is whether the defendant turned his wife out of
doors, or by the indecency of his conduct precluded her from living with him, for then he was
bound by law to afford her means of support adequate to her situation, but if either from her
husband, or from other sources, she was possessed of such means, the law gives no remedy
against the husband. He is liable only in case of the insufficiency of her funds.
Other points are urged in the petition, but, not having been suggested heretofore, cannot be
considered.
____________
51 Nev. 192, 192 (1928) State v. Beemer
STATE Ex Rel. PITTSON v. BEEMER, County Clerk
No. 2847
December 13, 1928. 272 P. 656.
1. StatutesLegislative Intent Being Clear, and Unambiguously Shown by Statute, Court
Could Not Search for Its Meaning Elsewhere.
Legislature's intent being clear, and unambiguously shown by the language used in primary election
law, sec. 22, as amended by Stats. 1926-27, c. 184, relating to declaring of nominees as candidates for
public offices, court could not search for its meaning beyond the statute itself.
2. ElectionsNominee, as One of Two Candidates of Same Political Party for Same Office,
Held Entitled To Have Name Placed on Election Ballot; No Other Political Party
Participating.
Nominee for election to office of county commissioner, who was one of two nominees of same
political party, held entitled, under primary election law, sec. 22, as amended by Stats. 1926-27, c. 184,
to have his name placed on general election ballot, where no other party participated in the nomination of
candidates.
3. StatutesStatute Proviso Need Not Be Read with Sentence of which it Is Part; it
Appearing that it Was Intended for Another Matter.
Proviso in primary election law, sec. 22, as amended by Stats. 1926-27, c. 184, relating to the
declaration of nominees as candidates for election to offices, need not be read with sentence of which it is
part; it appearing that such proviso was intended for another matter.
C.J.CYC. REFERENCES
Statutes36 Cyc. p. 1107, n. 31; p. 1163, n. 62.
Application by the State, on the relation of L.P. Pittson, for a writ of mandamus to direct
E. H. Beemer, as the County Clerk of Washoe County, to print relator's name as nominee for
certain office on the general election ballot. Writ ordered.
Edward F. Lunsford, Arthur F. Lasher, and Green & Lunsford, for Relator:
Where the language of a statute is plain and unambiguous and its meaning clear and
unmistakable, there is no room for construction, and the courts are not permitted to search for
its meaning beyond the statute itself. State v. Jepson, 46 Nev. 196. "The intention of the
legislature is to be collected from the words they employ.
51 Nev. 192, 193 (1928) State v. Beemer
The intention of the legislature is to be collected from the words they employ. Where
there is no ambiguity in the words, there is no room for construction. U.S. v. Wiltberger, 5
Wheat. 76, 5 L. Ed. 37.
As we read the language of the proviso in section 22 of the primary election laws of
Nevada, as amended in 1927 Statutes, p. 325, it simply means that, as stated, where there is
only one party that has candidates for an office and where there is no independent candidate
for that office, then the candidates, regardless of the number, who receive the highest number
of votes at the primary, not to exceed, however, the two highest in the case of an office to
which only one can be elected, shall be the nominees for that office.
Respondent's construction would render the act unconstitutional. Article XV, section 14,
Nevada constitution, provides: A plurality of votes given at an election by the people shall
constitute a choice, where not otherwise provided by this constitution. If but one name goes
on the general election ballot there is no opportunity for the general electorate at the general
election, regardless of party, to choose between alternatives or to determine by choice. It
therefore would not be an election in the sense that that word is used in the constitution of
this state, and it would result in the election of the candidate by a plurality of votes at the
primary, and not at an election by the people. This point is clearly illustrated by the
supreme court of this state in the case of Riter v. Douglas, 32 Nev. 400. See, also, Dooley v.
Jackson, 78 S.W. 331; Woodruff v. State (N.J.), 52 Atl. 294; Hodge v. Bryan (Ky.App.), 148
S.W. 21.
Also, to construe the proviso in question as contended for by the respondent would be to
so read the section, when applied to the instant case, as making the nomination of Mr.
Peckham at the primary equivalent or tantamount to his election for the said office. Such a
result would violate section 1, article II of our constitution, for the reason that it would mean
that many persons possessing the qualifications and entitled to the right of suffrage as set
forth in the language of the constitution would not be "entitled to vote" for the office of
short-term county commissioner of Washoe County, permitting only those persons to vote
who had taken the partisan oath set forth in the registration act of this state, as the same
is found in the Statutes of 1920-1921, p.
51 Nev. 192, 194 (1928) State v. Beemer
of suffrage as set forth in the language of the constitution would not be entitled to vote for
the office of short-term county commissioner of Washoe County, permitting only those
persons to vote who had taken the partisan oath set forth in the registration act of this state, as
the same is found in the Statutes of 1920-1921, p. 371. It would also be in violation of section
1 of article XI of the constitution and section 17, article IV thereof, for the reason that the title
to the primary law does not express, or in any way embrace, the subject of an election, as that
word is used in the constitution.
It is hardly necessary for us to cite any authorities to the effect that courts will avoid placing
the construction upon a statute which would render the same unconstitutional (Virginia &
Truckee R. R. Co. v. Henry, 8 Nev. 174; 12 C.J. 787); or which would result in a manifest
injustice (State v. Kruttschnitt, 4 Nev. 178).
L. D. Summerfield, District Attorney, and Harlan L. Heward, Assistant District Attorney,
for Respondent:
It is respondent's position that this entire matter is governed and controlled by the first
sentence in the enactment: The party candidate who receives the highest vote at the primary
shall be declared to be the nominee of his party for the November election. This is a clear
and complete declaration. Its meaning is plain and unqualified. It leaves nothing for
construction. The law in this state is well settled that where the language of a statute is plain,
its intention must be deduced from such language, and the courts have no authority to go
beyond it, or behind it, or to look to the proceedings of the legislature to ascertain it. Brown v.
Davis, 1 Nev. 409; Maynard v. Johnson, 2 Nev. 25; Fitch v. Elko Co., 8 Nev. 271; V. & T.
Ry. Co. v. Lyon Co., 6 Nev. 68; State v. Blasdel, 4 Nev. 241; State v. Washoe Co., 6 Nev.
104; Odd Fellows Bank v. Quillen, 11 Nev. 109; Kirman v. Powning, 25 Nev. 378, 60 P. 834,
61 P. 1090; Ex Parte Pittman, 31 Nev. 43, 99 P. 700; Ex Parte Rickey, 31 Nev. 82, 100 P.
134; Eddy v. Board of Embalmers, 40 Nev. 329
51 Nev. 192, 195 (1928) State v. Beemer
v. Board of Embalmers, 40 Nev. 329, 163 P. 245; Heywood v. Nye Co., 36 Nev. 568, 137
P. 515; Clover Valley Co. v. Lamb, 43 Nev. 375; State v. Jepson, 46 Nev. 193; Ex Parte
Todd, 46 Nev. 214.
The clause relied upon by petitioner has only a limited application according to its own terms.
It deals only with the case of an office to which two or more candidates are to be elected.
This court has repeatedly held that it has nothing to do with the wisdom or expediency of an
act which is clear in its terminology. State v. Parkinson, 5 Nev. 15; State v. McClear, 11 Nev.
39; Worthington v. District Court, 37 Nev. 214, 142 P. 230; State v. Dickerson, 33 Nev. 540,
113 P. 105; Vineyard L. & S. Co. v. District Court, 42 Nev. 1, 171 P. 166; State v. Park, 42
Nev. 386, 178 P. 389; City of Reno v. Stoddard, 40 Nev. 537, 167 P. 317.
As a general rule, a proviso is deemed to apply only to the immediately preceding clause
or provision. 2 Lewis' Sutherland Statutory Construction, sec. 352; 25 R. C. L. 985-986; 36
Cyc. 1162, 1163. The first sentence in this section being so clear as to meaning, there is no
reason or ground to depart from the general rule. We cite, as of interest in this connection, the
case of Honig v. Riley (N.Y.), 155 N.E. 65. In the case at bar, we say that if the legislature
intended a contest of this kind to be decided at the general election, it should have said so.
The possible desirability of such a course of procedure does not relieve this court from the
duty to enforce the law as it is written. Respondent contends that the case at bar is
controlled by the decision of this court, in accord with the authorities heretofore cited, in
Thompson v. Hancock, 49 Nev. 336.
It is elementary that the law does not require the doing of a useless or futile thing, nor will the
legislature be deemed to intend such a result. Had the legislature intended that in a case where
there were only two party candidates at a primary, and no independent candidates, that the
selection should be made at the general election, it is only fair to presume that it would have
provided that the names of those two candidates be omitted from the primary ballot and
appear only on the general election ballot, just as it provided in the latter part of the
section in case of candidates for a nonpartisan office.
51 Nev. 192, 196 (1928) State v. Beemer
have provided that the names of those two candidates be omitted from the primary ballot and
appear only on the general election ballot, just as it provided in the latter part of the section in
case of candidates for a nonpartisan office.
OPINION
By the Court, Carville, District Judge:
The matter involved in this proceeding comes before the court upon a petition for writ of
mandamus by L. P. (Paddy) Pittson, as relator, to direct E. H. Beemer, county clerk of
Washoe County, Nevada, as respondent, to cause to be printed upon the general election
ballot, to be used at the general election on November 6, 1928, the name of relator as a
candidate for the office of short-term county commissioner of said Washoe County.
Relator bases his petition upon the facts: That he possesses the necessary qualifications,
statutory and constitutional; that he filed his nomination papers with respondent as required
by law; that his name appeared upon the primary ballot at the primary election held in Reno,
Washoe County, Nevada, as a candidate for nomination by the Republican party for said
office of short-term county commissioner; that the name of James G. Peckham, seeking the
nomination for the same office, at the hands of the same party, was also upon the ballot; that
the Republican party was the only party that had candidates for said office, and there was no
independent candidate for the office; that at said primary election James G. Peckham received
2,041 votes and relator received 741 votes, and that these were all the votes cast for said
office at said primary election; that relator has done everything required of him by law in
order to qualify for the office in the event of his election at the general election in November;
that respondent, as such county clerk, has refused to issue a certificate of nomination, and
states that he does not intended to have relator's name printed on the official ballot for said
general election as one of the candidates at said election for the office sought.
51 Nev. 192, 197 (1928) State v. Beemer
intended to have relator's name printed on the official ballot for said general election as one of
the candidates at said election for the office sought.
Respondent filed a demurrer to the petition, in which he admits the facts as set forth in
said petition, but maintains that the same fails to state facts sufficient to constitute a cause of
action, or to warrant the issuance of the writ prayed for.
Relator bases his right to the relief sought in his petition upon section 22 of the primary
election law of the State of Nevada, as amended in the 1927 Session Laws of said state, pages
325 and 326, which reads as follows:
Section 22. The party candidate who receives the highest vote at the primary shall be
declared to be the nominee of his party for the November election. In the case of an office to
which two or more candidates are to be elected at the November election, those party
candidates equal in number to positions to be filled who receive the highest number of votes
at the primary shall be declared the nominees of their party; provided, that if only one party
shall have candidates for an office or offices for which there is no independent candidate,
then the candidates of such party who received the highest number of votes at such primary
(not to exceed in number twice the number to be elected to such office or offices at the
general election) shall be declared the nominees for said office or offices.
In the case of a nonpartisan office to which only one person can be elected at the
November election, the two candidates receiving the highest number of votes shall be
declared to be the nonpartisan nominees; provided, however, that where but two candidates
have filed for a nonpartisan office, to which only one person can be elected, the names of
such candidates will be omitted from all the primary election ballots, and such candidates
shall be declared to be the nonpartisan nominees for such office.
In the case of a nonpartisan office to which two or more persons may be elected at the
November election, those candidates equal in number to twice the number of positions to
be filled who receive the highest number of votes shall be declared to be the nonpartisan
nominees for such office."
51 Nev. 192, 198 (1928) State v. Beemer
those candidates equal in number to twice the number of positions to be filled who receive
the highest number of votes shall be declared to be the nonpartisan nominees for such office.
The question to be decided deals exclusively with the construction of the statute involved,
and the intent of the legislature to be derived therefrom.
1. Respondent contends that the entire matter in controversy is governed and controlled by
the first sentence in the enactment, which reads: The party candidate who receives the
highest vote at the primary shall be declared to be the nominee of his party for the November
election.
With this contention the court cannot agree. The first sentence of the enactment, as viewed
by the court, governs a situation where two or more political parties each has a nominee at the
primary election for an office to be voted upon at the general election. Particularly is this true
in view of the next sentence of the enactment, which provides that: In the case of an office to
which two or more candidates are to be elected at the November election, those party
candidates equal in number to positions to be filled who receive the highest number of votes
at the primary [election] shall be declared the nominees of their party.
The first sentence of the section under consideration is not a limitation upon the provisions
of the second sentence in any sense of the word. Contained in and a part of the second
sentence is the following provisio: Provided, that if only one party shall have candidates for
an office or offices for which there is no independent candidate, then the candidates of such
party who received the highest number of votes at such primary (not to exceed in number
twice the number to be elected to such office or offices at the general election) shall be
declared the nominees for said office or offices. This proviso contained in the act governs a
situation which is not covered by either the first sentence or that portion of the second
sentence immediately preceding the proviso itself.
51 Nev. 192, 199 (1928) State v. Beemer
1. Where the language of a statute is plain, the intention of the legislature must be deduced
from such language, and the court has no authority to look beyond it, or behind it, or to the
proceedings of the legislative body to ascertain its meaning. Ex Parte Todd, 46 Nev. 214, 210
P. 131; Clover Valley Co. v. Lamb, 43 Nev. 375, 187 P. 723; Heywood v. Nye County, 36
Nev. 568, 137 P. 515; Ex Parte Rickey, 31 Nev. 82, 100 P. 134, 135 Am. St. Rep. 651; Ex
Parte Pittman, 31 Nev. 43, 99 P. 700, 22 L.R.A. (N.S.) 266, 20 Ann. Cas. 1319.
Clearly to the court's mind, the legislature intended, as expressed in the act itself, that if
there are nominees in each party for an office or offices to which one candidate is to be
elected at a general election, or nominees in each party in which two or more candidates are
to be elected at a general election, those party candidates in which one candidate is to be
elected, or those party candidates equal in number to the positions to be filled who receive the
highest number of votes at the primary election, shall be the party nominees.
Then follows the proviso to the effect that, if only one party shall have candidates for an
office, and there shall be no independent candidate for that office, then the candidates
receiving the highest number of votes at the primary (not to exceed in number twice the
number to be elected to such office or offices at the general election) shall be declared to be
the nominees for said office or offices. The act does not state that the candidates shall be the
nominees of their party, but shall be declared the nominees for said office or offices, which
clearly indicates to the court's mind that, when a situation arises as set forth in the proviso, the
offices to be filled are considered rather than the parties.
If we would disregard the first sentence of the act, we are still confronted with the other
situation set forth in the second sentence, providing a mode of procedure for placing
candidates' names upon the ballot, when there are two or more candidates to be elected for an
office or offices at the general election.
2. The legislative intent is clear and unambiguous, as collected from the words employed
in the statute in question, and when this occurs the court is not permitted to serch for its
meaning beyond the statute itself, and the statute in question leaves no room for
construction, other than the conclusion at which the court has arrived.
51 Nev. 192, 200 (1928) State v. Beemer
as collected from the words employed in the statute in question, and when this occurs the
court is not permitted to serch for its meaning beyond the statute itself, and the statute in
question leaves no room for construction, other than the conclusion at which the court has
arrived. There could be no substantial reason why the legislature should intend to limit is
proviso to the nominees for an office or offices, where more than one candidate is to be
elected, in preference to the office or offices where one candidate is to be elected.
3. 2. It is further contended by respondent that the proviso should be limited to the
sentence in the act of which it is a part. The inquiry is: Does the proviso limit the sentence to
which it is attached, or has it a wider application?
The rule in this regard is laid down in Sutherland, Statutory Construction, 296, as follows:
The natural and appropriate office of the priviso being to restrain or qualify some preceding
matter, it should be confined to what precedes it, unless it clearly appears to be have been
intended for some other matter. It is to be construed in connection with the section of which it
forms a part, and is substantially an exception. If it is a proviso to a particular section, it does
not apply to others unless plainly intended. It should be construed with reference to the
immediately preceding parts of the clause to which it is attached.
In the case of In Re McKay's Estate, 43 Nev. 114, 184 P. 305, this court had occasion to
discuss this proposition of law, and the situation as disclosed from the construction of the
statute in question in that case brought the proviso within the exception in the rule above
stated.
In this case we are of the opinion that the clear legislative intent, as gained from the
statute, confirms the theory that the proviso is an exception to, rather than in accordance with,
the general rule, for it appears that the proviso was intended to cover a situation as might arise
under the first sentence of the act in question, as well as a situation that might arise under the
second sentence, to which it is attached and of which it is a part.
51 Nev. 192, 201 (1928) State v. Beemer
sentence, to which it is attached and of which it is a part.
In considering this question, we are not concerned with the last portion of the statute in
question, applying to nonpartisan offices and candidates for such offices, which has no
application to the question involved here.
We therefore conclude that the demurrer should be overruled, and a peremptory writ of
mandamus issue as prayed for in the petition.
It is so ordered.
NoteSanders, C.J., being unable to participate in this decision, the Governor designated
Hon. E.P. Carville, District Judge, to sit in his stead.
____________
51 Nev. 201, 201 (1929) Nevada Northern Ry. Co. v. District Court
NEVADA NORTHERN RAILWAY CO. v. NINTH
JUDICIAL DISTRICT COURT
No. 2826
January 3, 1929. 273 P. 177.
1. CostsWhere, on Appeal of Defendant Filing Counterclaim from Justice Court, Jury
Found No Cause of Action in Favor of Either Party, Defendant Was Prevailing Party
within Costs Statute.
Where plaintiff recovered judgment in justice court and on defendant's appeal to the district court
case was tried de novo, defendant having filed counterclaim, jury returned verdict finding no cause of
action in favor of either party, defendant was prevailing party, within mean of Rev. Laws, sec. 5814, as
amended by Stats. 1925, c. 186, relating to costs on appeal to district courts from justice courts.
2. CostsExistence of Counterclaim Was Immaterial in Determining Whether Defendant
Was Prevailing Party Within Costs Statute.
Existence of counterclaim was of no consequence in determining question whether defendant was
prevailing party within meaning of Rev. Laws, sec. 5814, as amended by Stats. 1925, c. 186, relating to
costs on appeal to district courts from justice courts, since costs are allowed a defendant on theory that he
was sued without cause.
C.J.CYC. REFERENCES
Costs15 C.J. sec. 597, p. 240, n. 97.
51 Nev. 201, 202 (1929) Nevada Northern Ry. Co. v. District Court
Original proceeding in certiorari by the Nevada Northern Railway Company against the
Ninth Judicial District Court of the State of Nevada, in and for the County of White Pine, to
annul a judgment. Writ dismissed.
Chandler & Quayle, for Petitioner:
That the right to costs is purely statutory is too well established to require extensive
citation of authorities. It was expressly so held by this court in State v. Baker and Josephs, 35
Nev. 301, approving McKenzie v. Coslett, 28 Nev. 220, and in Dixon v. District Court, 44
Nev. 98, 101, citing 20 Cyc. 24, 5 Enc. Pl. & Pr. 110, and 7 R. C. L. 792.
The only question, then, is whether the district court had jurisdiction to award that portion
of the cost bill of defendant which was allowed in that court, or any costs whatever of
defendant on his appeal to that court, in view of the verdict rendered. The controlling statute
is chap. 186, Stats. 1925, amending sec. 5814, Rev. Laws.
We contended below, and now contend here, that there was no prevailing party in the case,
within the meaning of the statute. We might well now contend, however, in view of a recent
New York decision which has come to our attention since the trial, that plaintiff was the
prevailing party. In that decision it is said: Verdict against plaintiff on complaint and against
defendant on counterclaim demanding larger sum than complaint made plaintiff prevailing
party, entitled to costs. Arrow Piece Dyeing and Finishing Co. v. Theodore J. Gallagher Co.
(N.Y. Mun. Ct. 1927), 224 N.Y.S. 361, 130 Misc. Rep. 610.
In a case more favorable as to defendant by verdict than that below, it was held, in the year
1881, that in an action in contract where the defendant answered by a general denial, and also
filed a set-off against the plaintiff, and a general judgment was given for defendant, neither
party was entitled to costs. Hartford v. Cooperative Mut. Homestead Co., 130 Mass. 447,
448, citing Caverly v. Bushee, 1 Allen 292, and Lapham v. Norris, 10 Cush.
51 Nev. 201, 203 (1929) Nevada Northern Ry. Co. v. District Court
Norris, 10 Cush. 312. In this connection, we also cite: Lemke v. Poulin et al. (N.J.), 107 A.
856; Lykins v. Hamrick (Ky.), 137 S. W. 852.
Billings & Collins, for Respondent:
The great weight of authority, as well as the better reasoned cases, sustain the ruling of the
court below. Dows v. Glaspel (N.D.), 60 N. W. 60; Lykens v. Hamrick (Ky.), 137 S.W. 852;
Ballard Transfer and Storage Co. v. St. Paul City Ry. Co. (Minn. 1915), 152 N.W. 868;
Benson v. Braun (Cal), 66 P. 1; Davis v. Hurgren (Cal.), 57 P. 684; Davis v. Jackson (Tenn.),
39 S. W. 1067; Fisher Flouring Mills Co. v. McClinton (Wash. 1925), 234 P. 20.
Chap. 186, Stats. 1925, does use the words the prevailing party, but is says nothing
about a judgment in his favor. However, the language of this special statute is not any
different from the general language of the statutes of the State of Nevada with reference to
costs. We call attention to secs. 434, 435, 437 and 438 of the practice act, being sections
5376, 5377, 5379 and 5380, Rev. Laws. All of the last-mentioned sections are practically the
same as sections 1022, 1024 and 1025 of the Code of Civil Procedure of the State of
California and are no doubt based thereon. The fundamental principle in all of these statutes
respecting the allowance of costs is that they shall go to the prevailing party, and we submit
that under the decisions of the supreme court of this state the question of who is the
prevailing party is a question to be determined by the court deciding the case, is within the
jurisdiction of that court, and cannot be attacked on certiorari.
OPINION
By the Court, Ducker, J.:
This is an original proceeding in certiorari. The record certified up discloses that petitioner
brought an action in the justice court of Ely Township No. 1, of White Pine County, claiming
damages of the defendant, one C.
51 Nev. 201, 204 (1929) Nevada Northern Ry. Co. v. District Court
White Pine County, claiming damages of the defendant, one C. Franks, in the sum of $9.20,
and also alleging that the sum of $100 is a reasonable sum to be allowed as attorney's fees in
the action. Defendant answered and set up a counterclaim for damages in the sum of $299.99.
He alleged that $150 was a reasonable sum to be allowed him as attorney's fees. Petitioner
obtained judgment for damages in the sum of $1, and its costs were taxed at $129.15. Of this
amount of the costs $100 was the sum allowed by the court as an attorney fee. The defendant
appealed to the district court, and the case was tried de novo before a jury. The jury returned a
verdict finding no cause of action in favor of either party. The defendant filed a cost bill in the
sum of $341. A motion to retax was made, and the court allowed defendant costs in the sum
of $205. The writ is sought to annul this judgment.
1. It is insisted that there was no prevailing party within the meaning of the statute
involved, and that the court was therefore without jurisdiction to allow defendant any costs
whatever. Section 5814 of the Revised Laws of Nevada, as amended by Statutes of 1925, p.
331, c. 186, provides:
The prevailing party in any civil action at law in the justice courts of this state shall
received, in addition to the costs of court as now allowed by law, a reasonable attorney fee,
said fee to be fixed by the justice of the peace, and taxed as costs against the losing party, and
on appeal the district court is hereby authorized to allow said costs, if judgment is given for
the same party; if the appealing party shall prevail on such appeal, the district court is hereby
authorized to allow him, as costs, the amount allowed by the justice of the peace as a
reasonable attorney fee to the prevailing party in such justice court, and his other costs in the
district court as in cases originating in such court.
This statute governs in the matter of the allowance of costs on appeal in the district court.
In our judgment defendant was clearly the prevailing party. Petitioner's contention that there
was no prevailing party is based upon the fact of defendant's counterclaim and the finding
of the jury of no cause of action in favor of either party.
51 Nev. 201, 205 (1929) Nevada Northern Ry. Co. v. District Court
upon the fact of defendant's counterclaim and the finding of the jury of no cause of action in
favor of either party. It is argued that it would have been necessary for defendant to have
established his counterclaim or some part thereof over any amount that may have been
established by petitioner on his claim, to be a prevailing party. This is substantially the
reasoning in the case of Hartford v. Cooperative Mut. Homestead Co., 130 Mass. 447, cited
by petitioner, and which sustains his position. The ruling of the Massachusetts court was
accepted in Lemke v. Poulin et al. (N.J. Sup.), 107 A. 856; but we are unable to follow it.
2. We regard the existence of a counterclaim of no consequence in determining the
question. It is the end attained, namely, a successful defense, that is important. Costs are
allowed a defendant on the theory that he was sued without cause. 15 C.J. 19. The verdict of
the jury in this case established that defendant was wrongfully sued. In his defense he resorted
to a counterclaim. He did not recover on trial, it is true, but a recovery on his counterclaim
would merely have increased the extent to which he prevailed in the action. Ballard Transfer
and Storage Co. v. St. Paul City Railway Co., 129 Minn. 494, 152 N.W. 868, and Lykins v.
Hamrick, 144 Ky. 80, 137 S.W. 852, are in accord with the views we have expressed. See,
also, Dows & Co. v. Glaspel, 4 N.D. 251, 60 N.W. 60; Eastman v. Holderness, 44 N. H. 18;
Benson v. Braun, 134 Cal. 41, 66 P. 1.
As the trial court was authorized to allow costs to the defendant, the writ should be
dismissed.
It is so ordered.
____________
51 Nev. 206, 206 (1929) State v. District Court
STATE OF NEVADA Ex Rel, NEVADA DOUGLASS GOLD MINES, Incorporated v. THE
DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT, In and for Mineral
County, Et. Al.
No. 2856
January 18, 1929. 273 P. 659.
1. CertiorariThat Application for Writ of Certiorari Was Designated Petition and Entitled
the State, on Relation of Petitioner Named, Where State Had No Interest in Matter, Did
Not Justify Dismissal.
That application under Rev. Laws, secs. 5684 and 5685, for writ of certiorari, was designated a
petition and entitled State of Nevada, on the Relation of petitioner named, where state had no interest
in the matter, did not justify dismissal of proceeding.
2. CertiorariApplication for Writ of Certiorari to Inquire Into Jurisdiction Alleging
Judgment Was Rendered Against Corporation Without Service on Proper Officer,
Stated Facts Sufficient to Justify Issuance of Writ.
Application for writ of certiorari to inquire into jurisdiction, alleging that on filing of complaint in
action for labor performed summons and complaint were delivered to director of defendant, a domestic
corporation, instead of to one of persons named in Stats. 1913, c. 76, and that court entered judgment in
favor of plaintiff, and that thereafter execution issued thereon, and that sheriff was proceeding to sell
defendant's property, and that defendant had never appeared, held to state facts sufficient to justify
issuance of writ.
3. JudgmentWhere Summons and Complaint Were Delivered to Director of Corporation
Instead of to Person Named in Statute, and Corporation Did Not Appear, Judgment
Was Void Ab Initio.
Where summons and complaint were delivered to director of defendant, a domestic corporation,
instead of to person named in Stats. 1913, c. 76, and defendant corporation did not appear, judgment for
plaintiff was void ab initio.
4. AppearanceAppearance by Defendant Corporation's Officer After Rendition of Void
Judgment Could Not Validate It.
Appearance by officer of defendant corporation after judgment which was void because improper
service was rendered could not relate back to date of rendition of so-called judgment so as to validate it.
5. CertiorariWhere Judgment Was Rendered Without Service on Defendant, it Was
Unnecessary, in Application for Certiorari, to Show Defendant Had No Right of
Appeal.
In application for writ of certiorari to inquire into jurisdiction of court to render judgment, where
defendant was not served with summons and did not appear, it was unnecessary to show that defendant
had no right of appeal, since one against whom judgment has been rendered without his day in court is
not required to appeal from void judgment thereby giving court jurisdiction over his
person.
51 Nev. 206, 207 (1929) State v. District Court
not required to appeal from void judgment thereby giving court jurisdiction over his person.
6. CertiorariWrit of Certiorari Should Issue Where Judgment Was Absolutely Void and
Certiorari Proceeding Was Instituted a Few Days After Sale Under Void Judgment.
Defendant held entitled to have writ of certiorari issued as prayed, where judgment was absolutely void
because defendant was not served with summons and certiorari proceeding was instituted within a few days
after sheriff's sale under void judgment.
7. CertiorariApplication for Writ of Certiorari Need Not Be Signed by Attorney.
Application for writ of certiorari under Rev. Laws, secs. 5684 and 5685, need not be signed by an
attorney.
8. CertiorariWhere Judgment Was Void for Want of Jurisdiction, Defendant Was Entitled
to Have Proceedings Thereunder, Including Pretended Sale, Set Aside on Certiorari.
Where judgment was void for want of jurisdiction, defendant was entitled to have proceedings had
pursuant thereto, including pretended sale by sheriff, set aside and held for naught in certiorari proceeding.
C.J.CYC. RERERENCES
Appearances4 C.J. sec. 65, p. 1365, n. 78.
Certiorari11 C.J. sec. 33, p. 105, n. 49; sec. 42, p. 108, n. 91; sec. 146, p. 151, n. 38; sec. 147, p. 151, n.
42; sec. 155, p. 153, n. 65; sec. 317, p. 187, n. 17.
Judgments33 C.J. sec. 52, p. 1093, n. 77.
Original proceeding in certiorari by the State of Nevada, on the relation of the Nevada
Douglass Gold Mines, Incorporated, against the District Court of the Seventh Judicial District
of the State of Nevada, in and for the County of Mineral, and J. Emmett Walsh, Judge of said
court, to inquire into the jurisdiction of the respondent court to render the judgement
complained of. Judgment in accordance with opinion.
Cyrus A. Hovey and Green & Lunsford, for Petitioner:
Petitioner is a domestic corporation organized under the laws of the State of Nevada. In
the action in which the judgment was rendered here sought to be reviewed, service was made
upon A. W. Curtis, a director of the corporation. The only question involved is the validity of
such service, and whether the court acquired jurisdiction of the person of the defendant or the
subject matter of the action by service upon the director. There was no attachment or
sequestration of the property, and no other service was attempted to be made save that
upon the director.
51 Nev. 206, 208 (1929) State v. District Court
was no attachment or sequestration of the property, and no other service was attempted to be
made save that upon the director. The defendant did not appear.
The only provisions relating to service of process upon corporations which we are able to
find are: Section 5023, subdivision 1, Rev. Laws; section 81 of the general corporation law of
1925 (Stats. 1925, 318), under which this corporation was organized; and section 87 of the
general corporation law of 1903, as amended by the Statutes of 1913, at page 65. Service
upon a director, who was also a stockholder, does not comply with any of the mandatory
provisions of the statute. Fletcher on Corporations, vol. 4, sec. 2992, p. 4420; sec. 3001, p.
4440; 32 Cyc. 549.
It is only when the judgment has been voluntarily paid that it will not be reviewed by
certiorari. If the judgment has been paid under what may be regarded as legal compulsion
the judgment will be reviewed. Calif. Juris. 1065, sec. 34; Nall v. Superior Court, 4 Cal. App.
207.
There is no case here to move the exercise of this court's discretion to remit this matter to a
court of equity, as in the case of Nevada Lincoln Mining Co. v. District Court (Nev.), 187 P.
1006. This is simply a case where judgment was obtained without jurisdiction, the property
sold on execution and without any complicated interests or features requiring the intervention
of equity. In such a case this court is already vested by law with plenary power under the
constitution and statutes of this state and under prior decisions of this court to inquire into the
jurisdiction of the court below, set its judgment aside, and place all parties in statu quo. It is
provided in 2 Rev. Laws of Nevada, 5691, sec. 749, that: When a full return has been made
the court shall proceed to hear the parties, * * * and may thereupon give judgment, either
affirming or annulling or modifying the proceedings below.
Accordingly, it is generally held that in reversing the judgment of the court below the court
may, in case other rights have intervened by purchase under execution, or otherwise, order
restitution to the execution purchaser of the money paid on the sale.
51 Nev. 206, 209 (1929) State v. District Court
otherwise, order restitution to the execution purchaser of the money paid on the sale. 1 C.J.
213, sec. 384; Paul v. Armstrong, 1 Nev. 82, 104; Leonard v. Peacock, 8 Nev. 157; Kennedy
v. Hamer, 19 Cal. 374, 386; People v. Chapin (N.Y.), 42 Hun. 24.
There is nothing that a court of equity could do in the matter that cannot be done by this
court here and now, thereby avoiding unnecessary expense, further delay and repetitious
litigation. The best definition of an adequate remedy we have found is contained in 11 C.J.
112, secs. 55-56.
C.C. Ward, District Attorney, and M.A. Diskin, Attorney-General, for Respondents:
The acknowledgment of service of summons by the defendant in the action sought to be
reviewed, which appears in the record herein, cures any defect in the service of summons
which may have existed prior thereto. Cheney v. Harding, 21 Neb. 65, 31 N. W. 255; Allured
v. Vollier, 107 Mich. 476, 65 N.W. 285; McClellan v. Gaston, 18 Wash. 472, 51 P. 1062;
Woolsey v. Abbett, 65 N.J.L. 253, 48 Atl. 949.
The judgment herein sought to be reviewed having gone to execution and satisfaction, a
review thereof by this court would be a useless ceremony. State of Nevada v. Washoe
County, 14 Nev. 66, 69; Visalia City Water Co. v. Superior Court for Tulare County, 120 Cal.
219, 52 P. 485; Burr v. Sacramento County Supervisors, 96 Cal. 210, 31 P. 38.
The order for the writ and the writ are based upon affidavit and petition of a corporation
not petitioner herein, hence the writ is without foundation. Overseers v. Bishop, 2 How. Pr.
(N.Y.) 195; Holmes v. Cole, 51 Ore. 483, 94 P. 964.
The writ was improperly issued for the reason that it was issued upon an order signed by
two of the justices, acting as such, in chambers, and not by the court. Constitution of Nevada,
art. VI sec. 4; Rev. Laws, 5684; Smith v. City of Oakland, 40 Cal. 481, adopted as the text of
California Jurisprudence, vol. 4, p. 1083.
51 Nev. 206, 210 (1929) State v. District Court
There is no party petitioner herein. The petition and affidavit herein is entitled The State
of Nevada, petitioner, on the relation, etc. Upon presentation of this matter to this court, we
raised the point that the State of Nevada was not a proper party petitioner to this action, on
the grounds that the state has no interest in the matters involved, and cited authorities so
holding. Counsel for petitioner conceded the point, so we submit that the State of Nevada, as
petitioner herein, is eliminated. There was and is no other person named as petitioner. We
submit that a petition without a petitioner, on the relation of any person, is no petition.
Therefore, there is no petition or application before the court.
The affidavit in support of the application for writ does not state facts sufficient to justify
the issuance of the writ, in that there is no allegation that applicant has any beneficial interest
in the matter sought to be reviewed. Ref. Laws, 5685; Hildebrand v. Superior Court, 173 Cal.
86, 159 P. 147; Morse v. Williams, 92 Mich. 250, 52 N. W. 629; Garrison v. County Court,
54 Ore. 269, 101 P. 900; Collins v. Keokuk, 108 Iowa 28, 78 N.W. 799; State ex rel. Allen v.
Napton, Judge, 24 Mont. 450, 62 P. 686.
There is no allegation in the said application that the applicant has no other plain, speedy
and adequate remedy. The record here shows that execution has been duly issued and
returned satisfied. If there be any parties who consider themselves injured by that action, we
submit that their proper remedy is by a suit to set aside the sale. Rev. Laws, 5080;
Stanton-Thompson Co. v. Crane, 24 Nev. 171, at p. 181; State ex rel. Kerr v. District Court,
32 Nev. 189; Bank of Topeka v. Huntson, 35 Kans. 577, 11 P. 369.
OPINION
By the Court, Coleman, J.:
This is an original proceeding in certiorari to inquire into the jurisdiction of the respondent
court to render the judgment complained of.
51 Nev. 206, 211 (1929) State v. District Court
The application for the writ alleges that on June 19, 1928, William Royle, as labor
commissioner of Nevada, instituted an action in the Seventh judicial district court of Nevada
in and for Mineral County against Nevada Douglass Gold Mines, Inc., a Nevada corporation,
to recover judgment upon several claims assigned to him for labor alleged to have been
performed; that upon filing of the complaint in said action, summons was issued and placed
in the hands of the sheriff for service, and that he made purported service thereof by
delivering a copy thereof, together with a copy of the complaint, to A. W. Curtis, a director of
said defendant company, on June 25, 1928; that on October 1, 1928, the respondent court
entered judgment in said action in favor of the plaintiff and against the defendant; and that
thereafter execution issued thereon and that the sheriff was proceeding to sell the property of
the defendant. The application states that said company had never appeared in said action by
demurrer or otherwise; it is verified by one Stephenson, who states on oath that he is the
agent of said company and verified the same on its behalf.
The respondent demurred and also moved to quash. We will consider them together.
It is contended that the application for the writ does not state facts sufficient to warrant its
issuance; that it is not entitled in the name of any one interested in the proceeding; that it is
not signed by an attorney who is a member of the bar of this state; and that it does not show
that applicant has no plain, speedy, and adequate remedy by appeal.
1. The application for the writ is designated a petition and is entitled State of Nevada, on
the Relation of Nevada Douglass Gold Mines, Incorporated, Petitioner, v. The District Court,
etc., Respondent. The title is not a very appropriate one, since the State of Nevada has no
interest in the matter; but we think that will not justify a dismissal of the proceeding. Section
5684, Rev. Laws, provides the writ of certiorari may be granted on application, and section
5685 provides that the application" shall be made on affidavit.
51 Nev. 206, 212 (1929) State v. District Court
application shall be made on affidavit. The application in this matter, though entitled as
above stated, is in the form of an affidavit, and is in substantial compliance with the
requirements of the statute. We can perceive no merit in the objection made, since the
affidavit states that the affiant is an agent of the company beneficially interested, and against
which the alleged judgment was rendered.
2-4. We think the application states facts sufficient to justify the issuance of the writ. The
applicant is a Nevada corporation. Statutes of 1913, p. 65, names the persons upon whom a
summons must be served. None of the persons named in the statute was served in the action
sought to be reviewed. It is true that service was made upon a person not designated in the
statute, but there is no contention by counsel that service was made on any one designated by
statute. In this situation the judgment is void ab initio. But it is said in this connection that
after the judgment was rendered the company appeared in the action. There is in the record
what purports to be an appearance on November 3, 1928, by one who designates himself as
vice-president and general manager. There is no showing that the individual named was such
officer, nor that he had authority to make such appearance, but, whatever his authority, it is
self-evident that such an appearance could not relate back to date of the rendition of the
so-called judgment so as to vitalize that which never had life.
5. There is nothing in the contention that there is no showing in the application that the
applicant has no right of appeal. It appears that the applicant was not served with summons.
We think this showing enough. We have never understood that one against whom a judgment
has been rendered without his day in court is driven to the necessity of appealing from a void
judgment, thereby giving the court jurisdiction over his person. A defendant must be brought
into court by due process, and until he is so brought in no judgment can be rendered against
him necessitating a voluntary appearance to rid himself of what is a judgment in form
only.
51 Nev. 206, 213 (1929) State v. District Court
judgment can be rendered against him necessitating a voluntary appearance to rid himself of
what is a judgment in form only.
It was held in Jones v. Justice Court, 97 Cal. 523, 32 P. 575, in a suit before a justice of the
peace where the defendant had been served with summons and thereafter appeared, that the
judgment rendered therein without notice to the defendant of the date of the trial of the case,
as required by the state, was excess of jurisdiction and void and should be set aside in
certiorari. It was so held, also, in Elder v. Justice Court, 136 Cal. 364, 68 P. 1022.
6. It is said that, pursuant to authority of the opinion of this court in the matter of Nevada
Lincoln M. Co. v. District Court, 43 Nev. 396, 187 P. 1006, we should refuse to order that the
writ issue as prayed. The facts in that case are very dissimilar to those in this case. In the first
place, it appears on the face of the judgment roll in the matter here under consideration that
the judgment is absolutely void. Such was not the fact in the case cited. Furthermore, in that
case over two years had elapsed after the sale before relief was sought, during which time
large sums of money had been spent by the purchaser and a valuable mine developed. There
the company stood by while others gambled on the prospects. Not so in the instant case. This
proceeding was instituted within a few days after the sale under the void judgment.
7. There is no merit in the contention that the application is not signed by a member of the
bar of this state. The statute does not require that such an application be signed by an
attorney.
8. The judgment complained of being void for want of jurisdiction, it is ordered that the
same be and is hereby set aside and held for naught, together with all of the proceedings had
pursuant thereto, including the pretended sale, and that applicant have judgment for its costs
herein.
____________
51 Nev. 214, 214 (1929) State v. District Court
STATE OF NEVADA Ex Rel. NEVADA DOUGLASS GOLD MINES, Incorporated, v.
THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT, In and For
Mineral County, Et. Al.
No. 2855
January 18, 1929. 273 P. 661.
Cyrus A. Hovey, of Los Angeles, Calif., and Green & Lunsford, of Reno, for Petitioner.
C.C. Ward, of Mina, and M.A. Diskin, Attorney-General, for Respondents.
OPINION
By the Court, Coleman, J.:
The facts in this matter are substantially the same as in the proceeding No. 2856, 273 P.
659, of the same title, this day decided, except that there has been no sale under the judgment
rendered. Upon authority of the opinion in the matter mentioned, it is ordered that the
so-called judgment complained of in this proceeding be and the same is hereby declared null
and void and held for naught. Applicant to have judgment for its costs herein expended.
____________
51 Nev. 215, 215 (1929) In Re Lovelock Irrigation District
In Re LOVELOCK IRRIGATION DISTRICT
Appeal of WESTFALL
No. 2861
January 21, 1929. 273 P. 983.
1. Constitutional LawStatutesWaters and Water CoursesIrrigation District Act Held
Not Invalid, as Special Act, nor Violative of United States Constitution, Fourteen
Amendment.
Irrigation district act (Stats. Nev. 1919, c. 64, as amended) held not invalid as a special act, within
Const. Nev. art. IV, secs. 20, 21, nor violative of Const. U.S. Amend. 14.
2. Waters and Water CoursesIrrigation District Act Held Not Invalid, as Authorizing Taxes
without Limitation and in Excess of Benefits.
Irrigation district act (1919, c. 64), held not valid, as authorizing levying of taxes without limitation
and in excess of benefits conferred, since section 17 thereof provides that assessments and levies shall be
distributed over land within district in proportion to benefits.
3. Waters and Water CoursesIrrigation District Act Held Not Invalid, as Illegally
Authorizing Assessment of One Owner's Property to Cover Delinquent Assessments on
other Property.
Irrigation district act (Stats. 1919, c. 64) held not invalid, as illegally authorizing assessing of
property of one landowner to cover a deficiency, which may be incurred by reason of nonpayment of
assessments due on other property because of provision of section 27, as amended by Stats. 1925, c. 127,
sec. 4, authorizing assessment of lands on same pro rata basis as benefits may have been apportioned to
secure funds necessary to replace any deficit for repayment of district obligation caused by tax
delinquencies.
4. CourtsState Supreme Court's Decision on Statutes of Its Own State Is Conclusive.
State supreme court, in passing on statutes of its own state on other than federal questions, is the final
authority.
5. Constitutional LawWhat State Can do Directly, Respecting Public Improvements and
Taxation Therefor, it May Delegate to Local Organization.
What the state can do directly in the matter of public improvements and levying of taxes therefor, it
may delegate to a local organization.
6. Constitutional LawIf Statute Providing for Public Improvement and Assessment of
Benefits Is Legal, only that Done in Violation of Its Terms Is Void.
If statute providing for public improvement and for assessment of cost thereof against property
benefited is legal, everything done in compliance with its terms is legal, and only that which is done in
violation of its terms is void.
51 Nev. 215, 216 (1929) In Re Lovelock Irrigation District
7. Waters and Water CoursesIrrigation District Act Held Not Unconstitutional, Because it
Gives Priority to Assessments Therefor Over Prior Mortgages and Other Liens.
Irrigation district act (Stats. 1919, c. 64, as amended) held not unconstitutional, because it gives priority
to assessments which may be levied by district to pay its obligations over prior mortgages and other
contractual liens, in view of general rule that it is within legislature's constitutional power to make tax lien
superior to any other security, incumbrance, or lien arising either before or after assessment of tax.
8. Waters and Water CoursesThat Contract for Sale of Irrigation District Bonds Provided
that They Might Be Made Payable in New York Held Not to Invalidate Contract.
That contract for sale of bonds of irrigation district created under irrigation district act (Stats. 1919, c. 64)
provided that bonds may be made payable in New York, as authorized by section 16, held not to render
contract invalid or unconstitutional.
C.J.CYC. REFERENCES
Constitutional Law12 C.J. sec. 356, p. 857, n. 93.
Courts15 C.J. sec. 315, p. 925, n. 46.
Statutes36 Cyc. p. 1009, n. 47.
Waters40 Cyc. p. 817, n. 85; p. 822, n. 32.
Appeal from Sixth Judicial District Court, Pershing County; Wm. E. Orr, Special Judge.
Proceeding by the Lovelock Irrigation District for the confirmation of all of its acts and
proceedings respecting the issuance of bonds, contract for the sale of bonds, construction of
improvement, and assessment of benefits. From a judgment for petitioner, V. A. Westfall
appeals. Affirmed.
John A. Jurgenson, for Appellant:
The Nevada irrigation district act is unconstitutional and void and in violation of secs. 20 and
21 of art. 4 of the Nevada constitution. The act is special in that it relates to particular
assessments and taxes only. Its provisions affect individuals and not a class, and imposes
special burdens. Collection and assessment of taxes, and the regulation of election for county
and township officers must be governed by general laws. State of Nevada v. Consolidated
Virginia Mining Company, 16 Nev. 432; State of Nevada v. California Mining Company, 15
Nev. 234. The Nevada irrigation district act is in conflict with the Fourteenth Amendment
to the Constitution of the United States by authorizing the levy of taxes without limitation
and in excess of benefits conferred.
51 Nev. 215, 217 (1929) In Re Lovelock Irrigation District
The Nevada irrigation district act is in conflict with the Fourteenth Amendment to the
Constitution of the United States by authorizing the levy of taxes without limitation and in
excess of benefits conferred. Each tract of land must be assessed in proportion to the actual
enhancement of its value by reason of the improvements, and it is universally conceded that a
statute which does not direct the use of this method is invalid. In addition, no statute can
legally assess the property of one landowner to cover deficiency incurred by reason of the
nonpayment of taxes on other property. Interstate Trust Company v. Montezuma Valley
Irrigation District, 181 P. 123; Nelson v. Board of Commissioners of Davis County, 218 P.
952; Sullivan v. Blakesly, 246 P. 919; In Re Walker River Irrigation District (Nev.), 195 P.
327.
The Nevada irrigation district act is also unconstitutional and void and in conflict with the
Fourteenth Amendment to the Constitution of the United States in that it purports to make the
lien upon the land in the district prior to other mortgages which already exist upon such
property. Such is a deprivation of the contract and property rights of the prior lien holders. 37
Cyc. 1145.
The judgment and decree of the lower court holding that the contract for the construction
of the proposed Oreana dam and control works between the irrigation district and
Jasper-Stacey Company is erroneous and against the law, for the reason that it constitutes an
attempt on the part of the district to sell its bonds in a manner not authorized by law. The
Nevada irrigation district act provides that the bonds must be sold at public sale, after notice
duly given, and to the highest responsible bidder. Roberts v. Taft, 116 Fed. 228;
Guckenberger v. Dexter, 17 Ohio Cir. Ct. 115; State v. Columbia, 12 South Carolina, 370.
The judgment and decree of the lower court declaring the contract for the sale of a portion
of the authorized issue of bonds legal and valid is erroneous and against the law for the
reason that the contract provides that the bonds may be made payable in the State of New
York.
51 Nev. 215, 218 (1929) In Re Lovelock Irrigation District
the bonds may be made payable in the State of New York. The legislature is not competent to
authorize any office to perform any part of the duties without the state. Obviously payment of
the principal and interest on the bonds in the State of New York requires the performance of a
duty by one of the district officials outside of the State of Nevada. City of Los Angeles v.
Teed, 112 Cal. 319, 44 P. 580.
Cooke & Stoddard and H. J. Murrish, for Respondent:
The constitutionality of the irrigation district acts adopted by all of the arid and semiarid
western states have been so repeatedly attacked that courts of last resort now frequently
dispose of the question by saying: We hold the act constitutional. In Re Auxiliary Eastern
Canal Irrigation District (Ariz.), 207 P. 615-616; McLean v. Truckee-Carson Irrigation
District (Nev.), 245 P. 287, column 2. The constitutional objections raised by the appellant
here were passed upon and held constitutional by this court in the McLean v. Truckee-Carson
Irrigation District case, supra, and also in the case of In Re Walker River Irrigation District,
44 Nev. 321, 195 P. 327. The leading case on the constitutionality of irrigation district acts is
the case of Fallbrook Irrigation District v. Bradley, 41 L. Ed. 369, decided by the United
States Supreme Court in 1896. This decision has been consistently followed in principle, not
only by the United States Supreme Court, but by the state courts as well. We cite a few to
indicate the unanimous attitude taken by courts generally upon this question: Lundberg v.
Green River Irrigation District (Utah), 119 P. 1041; Board of Directors v. Collin (Neb), 64
N.W. 1086; People v. Cardiff Irrigation District (Cal.), 197 P. 388; Nampa and Meridian
Irrigation District v. Brose (Idaho), 83 P. 499.
In all the courts in which the question has been raised, with the exception of Colorado, it
has been held that a bond issue is a general obligation against all of the lands of the irrigation
district, and that additional taxes may be levied to meet a deficit caused by tax
delinquencies unless, as in the case of Utah, the legislature has fixed a limit of an
additional fifteen per cent of the amount of the tax necessary to pay the bonds to meet
delinquencies.
51 Nev. 215, 219 (1929) In Re Lovelock Irrigation District
may be levied to meet a deficit caused by tax delinquencies unless, as in the case of Utah, the
legislature has fixed a limit of an additional fifteen per cent of the amount of the tax
necessary to pay the bonds to meet delinquencies. State v. Columbia Irrigation District
(Wash.), 208 P. 27; Cosman v. Chestnut Valley Irrigation District (Mont.), 40 A. L. R. 1344;
Noble v. Yancy (Ore.), 42 A. L. R. 1178; Rialto Irrigation District v. Stowell (Cal.), 246 Fed.
294-305; Norris v. Montezuma Valley Irrigation District (Colo.), 248 Fed. 369-373;
American Falls Reservoir District v. Thrall (Ida.), 228 P. 236-243, column 2.
The provision of sec. 41 of the state tax law (1923 Stats. 362) that a tax deed shall convey
absolute title to the delinquent tax purchaser free of all encumbrances is a direct
expression of the legislature that state and county taxes and irrigation district assessments
constitute a prior lien against mortgages or other then existing liens. Carstens & Earles v. City
of Seattle (Wash.), 146 P. 381, 385, 386. That the legislature has the constitutional right to so
provide is admitted in the rule quoted by appellant (37 Cyc. 1145), and is so well established
that we will not burden the court with additional citations upon the question.
The construction contract with Jasper-Stacey Company, dated December 23, 1927,
provides for the payment of the work in bonds, as provided by the act. The board of directors,
by resolution on May 2, 1927, declared its intention to sell all of its authorized issue of bonds,
amounting to $1, 287,000. The bonds were advertised for sale, but no bids were received. The
board also advertised for bids for construction of the dam, but no satisfactory bids were
received. The bonds remaining unsold, the contract with Jasper-Stacey Company was entered
into for the construction of the dam and control works, payable in bonds. The approval of the
contract by the state irrigation district bond commission was given on July 6, 1928. Therefore
the board of directors followed each step and provision in the manner required by the act,
and particularly sec.
51 Nev. 215, 220 (1929) In Re Lovelock Irrigation District
act, and particularly sec. 21 thereof, for the entering into of the contract for the construction
of the proposed dam and control works, such construction to be paid for in bonds in lieu of
cash.
Inasmuch as our state constitution does not inhibit the payment of irrigation district bonds
outside of the state, and the legislature has expressly authorized the payment of bonds at any
point designated in the bonds (sec. 16, Nevada irrigation district act), the right of the district
to so contract cannot, we think, be seriously questioned. The identical point raised by
appellant here was decided by the supreme court of New Mexico in the case of Davy v. Day
et al., 247 P. 842, column 2, p. 843.
OPINION
By the Court, Coleman, J.:
The Lovelock irrigation district was organized March 1, 1926, pursuant to the Nevada
irrigation district act (Stats. 1919, p. 84, as amended). At a special election held on December
18, 1926, bonds in the sum of $1,287,000 were authorized by a vote of 59 in favor to 1
against. On July 12, 1928, the irrigation district filed in the district court its petition, praying
for the confirmation of its proceedings authorizing the issuance of bonds in the sum
mentioned, for confirmation of its contract for a sale of a portion of its bonds, for
confirmation of its contract for a construction of a dam and control works, for a confirmation
of its acts and proceedings in denying certain petitions for exclusion of land from said district,
for confirmation of the benefits as apportioned by said irrigation district, and for confirmation
of all of its acts and proceedings had and taken in connection with the foregoing matters.
1. It is first contended that the irrigation act is special in its nature and violates sections 20
and 21 of article 4 of our state constitution. This question was decided adversely to the
contention here made, in In Re Walker River Irrigation District, 44 Nev. 321
51 Nev. 215, 221 (1929) In Re Lovelock Irrigation District
Walker River Irrigation District, 44 Nev. 321, 195 P. 327, and on authority of that decision
we hold that the contention is without merit. In Re Sutter-Butte By-Pass Assessment No. 6,
191 Cal. 650, 218 P. 27. Upon authority of the Walker River Case we hold that the contention
that the act is in violation of the Fourteenth Amendment to the Constitution of the United
States is groundless. In the case cited, and in McLean v. Truckee-Carson Irrigation District,
49 Nev. 278, 245 P. 285, various authorities were cited, sustaining the constitutionality of
similar statutes, in addition to which we call attention to Lundberg v. Green River Irr. Dist.
(Utah), 119 P. 1039; In Re Auxiliary Eastern Canal Irr. Dist., 24 Ariz. 163, 207 P. 614; Board
of Directors v. Collin, 46 Neb. 411, 64 N. W. 1086; People v. Cardiff Irr. Dist., 51 Cal. App.
307, 197 P. 388.
Counsel for appellant urges the unconstitutionality of the act in question, upon grounds not
heretofore considered. He says: The Nevada irrigation district act is in conflict with the
Fourteen Amendment to the Constitution of the United States, by authorizing the levy of
taxes without limitation and in excess of benefits conferred. Each tract of land must be
assessed in proportion to the actual enhancement of its value by reason of the improvements,
and it is universally conceded that a statute which does not direct the use of this method is
invalid. In addition, no statute can legally assess the property of one landowner to cover
deficiency incurred by reason of the nonpayment of taxes on other propertyciting
Interstate Trust Co. v. Montezuma Valley Irrigation District, 66 Colo. 219, 181 P. 123;
Nelson v. Board of Commissioners of Davis County, 62 Utah, 218, 218 P. 952; Sullivan v.
Blakesly, 35 Wyo. 73, 246 P. 919; In Re Walker River Irrigation District, 44 Nev. 321, 195 P.
327. In view of the fact that this is all the counsel says in this connection, we would be
justified in assuming that he has but little faith in the position taken; however, we must
dispose of his contentions.
51 Nev. 215, 222 (1929) In Re Lovelock Irrigation District
2. As we understand from the language quoted, counsel raised two points, namely: (1)
That the statute authorizes the levying of taxes without limitation and in excess of benefits
conferred; and (2) that the statute illegally authorizes the assessing of the property of one
landowner to cover a deficiency which may be incurred by reason of the nonpayment of taxes
due on other property. The provision of the act (Stats. 1919, p. 84, c. 64) authorizing the
levying of assessments provides as follows:
Sec. 17. Whenever the electors shall have authorized an issue of bonds, as hereinbefore
provided, the board of directors shall examine each tract or legal subdivision of land in the
district, and shall determine the benefits which will accrue to each of such tracts or
subdivisions from the construction or purchase of the works proposed for the district; and the
costs of such works shall be apportioned or distributed over such tracts or subdivisions of
land in proportion to such benefits. * * * Whenever thereafter an assessment is made, either
in lieu of bonds, or an annual assessment for raising the interest on bonds, or any portion of
the principal, or the expenses of maintaining the property of the district, or any special
assessment voted by the electors, it shall be spread upon the lands in the same proportion as
the assessments of benefits, and the whole amount of the assessments of benefits shall equal
the amount of bonds or other obligations authorized at the election last above mentioned. * *
*
Since it is not pointed out by counsel wherein the irrigation law authorizes the levying of
taxes without limitation and in excess of benefits conferred, it can hardly be expected that we
will find it necessary to devote much time to answering this contention. We may observe,
however, that section 17 of the act provides that assessments and levies shall be distributed
over the land within a district in proportion to benefits to be received. This fixes the basis of
taxation and limits it to benefits. Every court in the land which has been called upon to decide
the question upholds such a legislative act.
51 Nev. 215, 223 (1929) In Re Lovelock Irrigation District
a legislative act. The lower court found that the assessments levied would not exceed the
benefits which would be received. There is no merit in the point made.
3. We come now to the other contention, embraced in the quotation from appellants' brief
that the statute illegally authorizes the assessing of the property of one landowner to cover
a deficiency which may be incurred by reason of the nonpayment of assessments due on other
property. The section of the law applicable to this situation is section 27, as amended by
Stats. 1925, p. 207, c. 127, sec. 4, which reads:
* * * Said board may levy a tax upon the lands in the district either upon the same pro
rata basis as benefits may have been apportioned, or otherwise, as the case may be, in order to
secure such funds as may be deemed necessary to replace any deficit that may occur in a fund
created for the repayment of a district obligation by reason of tax delinquencies. * * *
4. Every other court in the Union which has had this question before it under a similar
statute has taken a contrary view to that taken by the Colorado court, and even the circuit
court of appeals in Norris v. Montezuma Valley Irr. Dist., 248 F. 369, 160 C. C. A. 379, in
construing the Colorado statute, took a view contrary to that taken by the Colorado court. Of
course, the supreme court of Colorado, in passing upon the statutes of its state, on other than
federal questions, is the final authority.
5, 6. The Lovelock irrigation district, pursuant to the irrigation district act, was created for
a public purpose, and it was an exercise of legislative discretion which authorized its creation,
and this act must be held constitutional and valid, unless it is in conflict with some
constitutional provision, state or federal. The levying of taxes for public
improvementsstate, municipal, and otherwisehas been encouraged and held legal for so
long a time that the public mind is now thoroughly wedded to the idea. Even as far back as
the time of Henry VIII, Parliament adopted a broad, comprehensive act authorizing the
drainage of swamp land and kindred progressive and constructive public work {St.
51 Nev. 215, 224 (1929) In Re Lovelock Irrigation District
progressive and constructive public work (St. 23 Henry VIII, c. 5, par. 1 [1531]), and some of
the states have authorized such public works at their own expense and under their direction,
and all such acts, unless clearly in conflict with constitutional inhibition, have been upheld.
What the state can do directly in such matters it may delegate to a local organization. If the
act is constitutional, then all that is done in compliance with its terms is legal, and only that
which is done in violation of its terms is void. As we have pointed out, our attention is not
directed to any section of either the state or federal Constitution of which it is violative.
We do not think it incumbent upon us or proper that we should go into a critical analysis
of the Colorado case to show that it is wrong in principle. There is ample authority to rest our
conclusion upon to the effect that the proceedings had in this matter are legal. We think the
opinion in State ex rel. Clancy et al. v. Columbia Irr. Dist., 121 Wash. 79, 208 P. 27,
conclusively answers the contention made on this appeal. But that court does not stand alone
in its view. The supreme court of Montana, in Cosman v. Chestnut Valley Irr. Dist., 74 Mont.
111, 238 P. 879, 40 A.L.R. 1344, took the same position. See, also, Noble v. Yancey, 116 Or.
356, 241 P. 335, 42 A.L.R. 1178; Rialto Irr. Dist. v. Stowell (C.C.A.), 246 F. 294.
7. The next point urged is that the act is unconstitutional, in that it gives priority to
assessments which may be levied by the district to pay its obligations over prior mortgages
and other contractual liens. There is no merit in this contention. The well-recognized rule is
stated in 27 Ency. Law (2d ed.), p. 741: It is within the constitutional power of the
legislature to make the tax a lien superior to any of the other security, incumbrance, or lien
arising either before or after the assessment of the tax. A long list of cases is cited in support
of the text. See, also, 37 Cyc. 1143.
It is next contended that the judgment and decree of the lower court, holding that the
contract between the irrigation district and Jasper-Stacy Company is illegal, for the reason
that it constitutes an attempt to sell the bonds of the district in a manner not authorized
by law.
51 Nev. 215, 225 (1929) In Re Lovelock Irrigation District
for the reason that it constitutes an attempt to sell the bonds of the district in a manner not
authorized by law. We think there is no foundation for this contention. Section 21 of the
irrigation district act provides the manner in which the sale may be made. The findings of the
court show that the bonds were sold in compliance with the terms of the act, and the evidence
supports the findings.
8. It is next contended that the judgment and decree appealed from is erroneous, for the
reason that the contract provides that the bonds may be made payable in New Work. There is
nothing to this contention. Section 16 of the irrigation district act provides that the principal
and interest on the bonds shall be payable at the place designated therein. This is not in
conflict with any constitutional provision, and the contract, being in accord with the terms of
the statute, is valid.
For the reasons given, it is ordered that the judgment and decree be affirmed.
____________
51 Nev. 226, 226 (1929) Phillips v. Homestake Mines Co.
PHILLIPS v. HOMESTAKE CONSOLIDATED
PLACER MINES CO.
No. 2575
January 22, 1929. 273 P. 657.
1. FraudIf Either Party to Transaction Conceals Material Fact within His Knowledge which
it Is His Duty to Disclose, He Is Guilty of Fraud.
If either party to a transaction conceals some fact which is material which is within his own
knowledge, and which it is his duty to disclose, he is guilty of actual fraud.
2. Mines and MineralsTenancy in CommonTwo or More Persons Owning Undivided
Interest in Mining Ground Are Tenants in Common, but, Unless Working it
Together, Are Not Partners.
Two or more persons owning undivided interests in mining ground are tenants in common, but,
unless working it together, are not partners, since a mine partnership does not arise from a mere
cotenancy.
3. Mines and MineralsIf Purchaser of Interest in Mining Ground Fails to Avail Himself of
Ordinary Means of Information, Law Gives Him No Redress.
Purchaser of interest in mining ground must exercise common prudence, and, if he fails to avail
himself of ordinary means of information, law will give him no redress.
4. Tenancy in CommonOn sale of Plaintiff's Interest in Mining Lease to Cotenant,
Nondisclosure of True Physical Condition of Property Was Not Fraud.
On sale by plaintiff of its interest in mining lease to owner of the remaining interest, plaintiff's
nondisclosure of true physical condition of property, in that gold had been extracted from leased
premises, was not a fraud on defendant purchaser, since parties, being tenants in common not engaged in
working property, did not stand in relation of mutual trust and confidence towards each other.
C.J.CYC. REFERENCES
Fraud26 C.J. Sec. 13, p. 1071, n. 12.
Mines and Minerals40 C.J. sec. 549, p. 964, n. 4; sec. 796, p. 1144, n. 81.
Tenancy in Common38 Cyc. p. 72, n. 91.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Action by R.L. Phillips against the Homestake Consolidated Placer Mines Company. From
a judgment entered upon an order sustaining plaintiff's demurrer to the defendant's amended
answer, defendant appeals. Affirmed.
51 Nev. 226, 227 (1929) Phillips v. Homestake Mines Co.
Hoyt, Norcross, Thatcher & Woodburn, for Appellant:
The rule is established by weight of authority that want or failure of consideration, totally
or partially, is a defense either in toto or pro tanto, as the case may be, to an action on a note
given for the purchase price of property, where the action is between the original parties, or
by a subsequent holder charged with knowledge or notice of equities of the buyer. American
National Bank v. Watkins, 119 Fed. 545; Williams v. Neeley, 69 L.R.A. 232; Wheat v.
Dotson, 12 Ark. 699; City Deposit Bank v. Green, 115 N. W. (Iowa) 893; Thompson v.
Wheeler, 29 Kans. 476; Staab v. Ortiz, 1 P. 857; Sawyer v. James, 43 Barb. 622; Hagan v.
Bigler, 49 P. 1011 (Okla.); Davis v. Wait, 8 P. 356 (Ore.).
Failure of consideration may be used as a defense to mitigate the amount of the recovery in
an action on a note given for property for which some benefit admittedly has been received.
Hansford v. Mills, 9 Port. (Ala.) 509; Beall v. Pearre, 12 Md. 550; Harrington v. Stratton, 22
Pick. 510.
Wherever a defendant can maintain a cross action for damages on account of a defect in
personal property purchased by him * * * he may in defense to an action upon his note, made
in consequence of such purchase or contract, claim a deduction corresponding with the injury
he has sustained. Peden v. Moore, 21 Am. Dec. 649. See, also, Wadsworth v. Smith, 23 Me.
562; Hathorn v. Wheelwright, 59 Alt. 517, 2 Ann. Cas. 428; Brewer v. Harris, 41 Am. Dec.
587; Byrd v. Campbell etc. Co., 20 S. E. 253.
The same rule applies, also, even though the amount is unliquidated. Pike v. Taylor, 49
N.H. 124; Butler v. Northumberland, 59 N.H. 33; Foulks v. Rhodes, 12 Nev. 225.
In Massachusetts it is well settled that where there is a partial want of consideration, as in
case of a note given on two distinct considerations, one of them invalid, it is no objection to
the reduction of the damages that the amount to be deducted is unliquidated.
51 Nev. 226, 228 (1929) Phillips v. Homestake Mines Co.
Paris v. Stone, 25 Am. Dec. 378; Harrington v. Stratton, 22 Pick. 510; Schaffner v. Kober, 28
N.E. 871.
We submit that the defense is well pleaded. Benton v. Benton, 27 L.R.A. (N.S.) 300, 97 P.
378; Zebold v. Hurst, 166 P. 99.
Brown & Belford, and Campbell & Robins, for Respondent:
Where there is a defense of either want or failure of consideration, the facts showing such
want or failure of consideration should be affirmatively pleaded. 8 C.J. 916.
There is not here even a general averment which, in some states, might be held sufficient
for a defense of this character, although the weight of authority is that a general averment of
want or failure of consideration is insufficient because merely a conclusion of law. The facts
must be stated. Gushee v. Leavitt, 5 Cal. 160; Wells v. Col. Nat. Life Assur. Co. (Colo.), 113
P. 524; County v. Hobbs (Ia.), 33 N. W. 368; and the cases cited in 8 C. J. 917, n. 13.
So we have, in the case at bar, a pleading which states what the consideration of the note
was, namely, the transfer to the defendant of a one-third interest in the lease, no allegation
showing that the defendant bargained for anything else but that, no warranty or guarantee of
the value of the leased premises, and no allegation showing that the defendant did not get all
that it bargained for.
Where fraud is relied upon, either for a cause of action or a defense, the facts stating the
essential elements of fraud must be specifically alleged. 27 C.J. 30.
The essential elements of fraud which will constitute a defense to a cause of action upon a
contract, or which will constitute an affirmative cause of action, are:
(1) A material misrepresentation of a past or existing fact, or something equivalent thereto.
This misrepresentation may be by positive misstatement or by an act implying the existence
or nonexistence of a fact. 26 C.J. 1065, 1067, 1069. Mere silence is not a misrepresentation,
unless there is a duty to speak.
51 Nev. 226, 229 (1929) Phillips v. Homestake Mines Co.
misrepresentation, unless there is a duty to speak. 26 C.J. 1069, 1071.
(2) The representation made must be false.
(3) It must be material; that is, must be related to the material of the transaction involved.
False representation or a wrongful concealment must be the efficient, inducing, approximate
cause, or the determining ground of action. 26 C.J. 1102.
(4) The misrepresentation must be made either with a knowledge of its falsity or in
culpable ignorance of its truth.
(5) There must be an intent to deceive or defraud. 26 C.J. 1115.
(6) The party to whom the misrepresentation is made must believe it to be true. If he knew
that the contrary was true he was neither deceived nor defrauded. 26 C.J. 1137.
None of these elements of fraud are alleged in the affirmative defense and counterclaim.
So far as any misrepresentation being made upon the part of plaintiff is concerned, all we
have is an allegation of silence. The parties were tenants in common, and defendant had full
right and, presumably, full opportunity to investigate for himself. No reason is shown why
defendant could not have discovered the facts had they been deemed material. Under such
circumstances silence or concealment is not fraud. 26 C.J. 1142.
Ordinarily, when one cotenant purchases from another they deal like ordinary vendor and
vendeeat arm's length. The rule of caveat emptor applies. Matthews v. Bliss, 22 Pick. 48.
And as to the general rule that tenants in common, in dealing with their separate interests,
hold no relation of confidence with their cotenants. See Blissell v. Foss, 114 U.S. 252; Harris
v. Lloyd (Mont.), 28 P. 736; Goldberg v. Getz (Cal. Dist. Court App.), 163 P. 221.
To entitle a cotenant to an accounting there must be a showing in the pleading that one
cotenant has received something, some benefit out of the common property in which the other
cotenant is entitled to share. There is no allegation here from which such a situation can be
even inferred, much less any positive allegation which the rules of pleading require.
51 Nev. 226, 230 (1929) Phillips v. Homestake Mines Co.
no allegation here from which such a situation can be even inferred, much less any positive
allegation which the rules of pleading require. Moreover, before a cotenant is entitled to sue
his fellow tenant for an accounting there must be a reasonable demand made therefor. 38 Cyc.
77; Ela v. Ela, 70 N. H. 163; Wetzstein v. Boston & M. Consol. Co. (Mont.), 72 P. 685;
Ayotte v. Nadeau (Mont.), 81 P. 145. In the case at bar there is no allegation of a demand for
an accounting, hence, for this reason alone, if for no other, no statement of a cause of action
for an accounting.
The alleged counterclaim is not pleadable as a counterclaim in this action. Unless the
counterclaim can be said to be based on fraud in procuring the execution and delivery of the
notes, the cause of action does not arise out of the transaction set forth in the complaint as the
foundation of plaintiff's claim. It appears from the affirmative matter alleged that the
transaction involved was the purchase by defendants of plaintiff's interest in the lease, and the
giving of the notes for said purchase. Nor is the alleged counterclaim a cause of action arising
on contract and existing at the commencement of the action.
OPINION
By the Court, Sanders, J.:
This appeal was taken from a judgment entered upon an order sustaining the plaintiff's
demurrer to the defendant's amended answer. Therefore a question of pleading only is
involved.
The action was begun in 1921 on four promissory notes, each dated on July 24, 1920, and
each for the sum of $500, payable to the plaintiff and signed by the defendant. The complaint
avers four separate causes of action in short form of a complaint on each note. The amended
answer admits the execution and delivery of the notes, and alleges as follows:
As a further defense to the first, second, third and fourth causes of action set forth in
said plaintiff's complaint, and to each of them, and by way of counterclaim, the defendant
alleges that ever since on or about the Sth day of September, 1913, the defendant and its
predecessors in interest, have been and now are the owners in possession and entitled to
the possession of the Homestake placer mining claim, situate in the Battle Mountain
mining district, county of Lander, State of Nevada; that on or about the first day of
October, 1913, the predecessors in interest of the defendant leased and demised to the
plaintiff and one L. R. Ray and one A. H. Crampton a lease on the southerly two hundred
{200) feet of said Homestake placer mining claim; that thereupon said plaintiff and said
Ray and said Crampton entered in and upon said leased and demised premises and
worked, mined and extracted therefrom placer gravel containing placer gold; that
thereafter and on or about the ___ day of ___, 1915, the defendant and certain of its
predecessors in interest became owners of the two-thirds interest in said lease; that on or
about the 24th day of July, 1920, the defendant gave the promissory notes, set forth and
contained in the plaintiff's complaint, for the purpose of acquiring and in payment of a
one-third interest in said lease held by said plaintiff; that during the period of said lease
and prior to the purchase of the one-third interest of the plaintiff, and after the defendant
and its immediate predecessors in interest had become the owner of the two-thirds
interest in said lease, large amounts of placer gold were extracted from said leased
premises in excess of the sum of thirty thousand {30,000) dollars; that said gold was
extracted from said premises without the knowledge or consent of the defendant; that no
accounting was ever made to the defendant for their two-thirds interest therein by the
plaintiff; that plaintiff well knew and was advised of the fact that said gold had been
extracted from said leased premises and was so advised at the time of the execution of
the promissory notes aforesaid, and that being so advised said plaintiff failed and
neglected to
51 Nev. 226, 231 (1929) Phillips v. Homestake Mines Co.
fourth causes of action set forth in said plaintiff's complaint, and to each of them, and by way
of counterclaim, the defendant alleges that ever since on or about the 8th day of September,
1913, the defendant and its predecessors in interest, have been and now are the owners in
possession and entitled to the possession of the Homestake placer mining claim, situate in the
Battle Mountain mining district, county of Lander, State of Nevada; that on or about the first
day of October, 1913, the predecessors in interest of the defendant leased and demised to the
plaintiff and one L. R. Ray and one A. H. Crampton a lease on the southerly two hundred
(200) feet of said Homestake placer mining claim; that thereupon said plaintiff and said Ray
and said Crampton entered in and upon said leased and demised premises and worked, mined
and extracted therefrom placer gravel containing placer gold; that thereafter and on or about
the ___ day of ___, 1915, the defendant and certain of its predecessors in interest became
owners of the two-thirds interest in said lease; that on or about the 24th day of July, 1920, the
defendant gave the promissory notes, set forth and contained in the plaintiff's complaint, for
the purpose of acquiring and in payment of a one-third interest in said lease held by said
plaintiff; that during the period of said lease and prior to the purchase of the one-third interest
of the plaintiff, and after the defendant and its immediate predecessors in interest had become
the owner of the two-thirds interest in said lease, large amounts of placer gold were extracted
from said leased premises in excess of the sum of thirty thousand (30,000) dollars; that said
gold was extracted from said premises without the knowledge or consent of the defendant;
that no accounting was ever made to the defendant for their two-thirds interest therein by the
plaintiff; that plaintiff well knew and was advised of the fact that said gold had been extracted
from said leased premises and was so advised at the time of the execution of the promissory
notes aforesaid, and that being so advised said plaintiff failed and neglected to inform the
defendant thereof and said plaintiff willfully and knowingly concealed from the defendant
the knowledge of the fact that said large amounts of placer gold in excess of the sum of
thirty thousand {30,000) dollars had been so extracted from said demised premises; that
at the time of the execution of the promissory notes mentioned in said complaint, all pay
ore and gravel of commercial value had been extracted from said leased premises all of
which was well known to the plaintiff and which said plaintiff failed and neglected to
apprise the defendant and which said facts said plaintiff concealed from the defendant.
51 Nev. 226, 232 (1929) Phillips v. Homestake Mines Co.
said plaintiff failed and neglected to inform the defendant thereof and said plaintiff willfully
and knowingly concealed from the defendant the knowledge of the fact that said large
amounts of placer gold in excess of the sum of thirty thousand (30,000) dollars had been so
extracted from said demised premises; that at the time of the execution of the promissory
notes mentioned in said complaint, all pay ore and gravel of commercial value had been
extracted from said leased premises all of which was well known to the plaintiff and which
said plaintiff failed and neglected to apprise the defendant and which said facts said plaintiff
concealed from the defendant.
Wherefore, the defendant demands an accounting be had between the plaintiff and the
defendant and that the plaintiff be required to pay the defendant and account to the defendant
for the value of all placer gold so extracted from said premises; that plaintiff take nothing by
said complaint, that said notes be canceled and held for nought; that defendant have judgment
for its costs herein incurred.
To this pleading the plaintiff demurred upon the grounds (1) that it did not state facts
sufficient to constitute a defense; (2) that the counterclaim did not state facts sufficient to
constitute a cause of action; and (3) because the cause of action stated was not pleadable as a
counterclaim to the action. The demurrer was sustained upon the grounds, first, that the
pleading did not state facts sufficient to constitute a defense; second, that the counterclaim
did not state facts sufficient to constitute a cause of action.
Aside from serious objections which might otherwise be urged against the pleading in
question, we shall treat it as a counterclaim, for the reason that the pleader designates it as a
defense by way of counterclaim. The cause of action attempted to be stated in favor of the
defendant and against the plaintiff is for the cancellation of the notes set out in the plaintiff's
complaint, on the ground of nondisclosure. The gravamen of the defendant's cause of action is
the concealment by the plaintiff of the fact, within his own knowledge, that all ore and
gravel of commercial value had been extracted from the leased premises at the time of
the defendant's purchase from the plaintiff of his interest in the lease.
51 Nev. 226, 233 (1929) Phillips v. Homestake Mines Co.
plaintiff of the fact, within his own knowledge, that all ore and gravel of commercial value
had been extracted from the leased premises at the time of the defendant's purchase from the
plaintiff of his interest in the lease. The question presented for decision is whether, under the
circumstances, the plaintiff's nondisclosure of the true physical condition of the property
amounted to a fraud upon the defendant.
1. The general doctrine, with respect to concealment as a form of actual fraud, and as
distinguished from those analogous violations of fiduciary duty which do not constitute actual
fraud, but may be included within the term constructive fraud, is stated by Pomeroy as
follows: If either party to a transaction conceals some fact which is material, which is within
his own knowledge, and which it is his duty to disclose, he is guilty of actual fraud. 2
Pomeroy's Equity Jurisprudence (4th ed.), sec. 901.
In the extended discussion of the subject, the author states that it has never been
contended, in our system of jurisprudence, that a vendor in a contract of sale is bound to
disclose all facts which, if known by the buyer, would prevent or tend to prevent him from
making the purchase.
The same subject is discussed in Story's Equity, Jurisprudence (14th ed.), secs. 292, 294,
300, and 303, and elsewhere in the same chapter. The general rule of equity, as laid down in
both of the texts referred to, is that a failure to disclose amounts to an undue concealment,
and, therefore, to a fraud, where there is a nondisclosure of those facts and circumstances
which one party is under some legal or equitable obligation to communicate to the other.
Pomeroy, in section 904, states that in ordinary contracts of sale, where no previous
fiduciary relation exists, and where no confidence, expressed or implied, growing out of or
connected with the very transaction itself, is reposed on the vendor, and the parties are
dealing with each other at arm's length, and the purchaser is presumed to have as many
reasonable opportunities for ascertaining all the facts as any other person in his place would
have had, then the general doctrine already stated applies; no duty to disclose material
facts known to himself rests upon the vendor; his failure to disclose is not a fraudulent
concealment."
51 Nev. 226, 234 (1929) Phillips v. Homestake Mines Co.
person in his place would have had, then the general doctrine already stated applies; no duty
to disclose material facts known to himself rests upon the vendor; his failure to disclose is not
a fraudulent concealment. Applying this doctrine to the pleading in question, we are of
opinion that the plaintiff was under no legal or equitable obligation to communicate the fact
that the leased premises had been worked (mined out) during the cotenancy and at the time of
the execution of the notes given in payment of plaintiff's interest in the common property.
2. Counsel for the defendant intimate in argument that the plaintiff and the defendant were
partners in the lease, and, under the well-recognized exception to the general rule, it became
and was the duty of the plaintiff to make a full disclosure of all important information as to
value. We do not understand that the relation of plaintiff and the defendant was that of
partners. They were tenants in common, but not partners. Two or more persons owning
undivided interests in mining ground are tenants in common, but, unless working it together,
are not partners. Morrison's Mining Rights (14th ed.), 415. A mining partnership does not
arise from mere cotenancy. 3 Lindley on Mines (3d ed.), 797. The parties being tenants in
common, not engaged in working the common property, they did not stand in such a relation
of mutual trust and confidence towards each other, in respect of the sale of plaintiff's interest,
that each was bound, in his dealings with the other, to communicate all the information of
facts within his knowledge, which affected the price or value.
3, 4. The rule of law, as to concealment of defects in the property sold, is laid down by Sir
Edward Sugden (1 Sugden's Vendors and Purchasers [1st Amr. Ed. 1]): Even if the
purchaser was, at the time of the contract, ignorant of the defects, and the vendor was
acquainted with them, and did not disclose them to the purchaser, yet, if they were patent, and
could have been discovered by a vigilant man, no relief will be granted against the vendor.
51 Nev. 226, 235 (1929) Phillips v. Homestake Mines Co.
The rule stated is peculiarly applicable to a purchaser of mining ground or an interest
therein, which is always of a doubtful or speculative character. The defendant had the same
sources of information open to him as the plaintiff in respect to the physical condition of the
property, it cannot, therefore, complain. A purchaser of such property must exercise common
prudence, and, if he fails to avail himself of the ordinary means of information, the law gives
him no redress. Andrus v. St. Louis Smelting & Refining Co., 130 U.S. 643, 9 S. Ct. 645, 32
L. Ed. 1054. No fiduciary relation existed between the parties, and no special confidence was
reposed in the plaintiff by the defendant. They were independent of each other in the matter
of purchase and sale of plaintiff's interest, and dealt with each other as with strangers as to
their respective interests in the common property. Bissell v. Foss, 114 U.S. 252, 5 S. Ct. 851,
29 L. Ed. 126. Consequently no duty to disclose rested upon plaintiff, and his failure to do so
was not a fraud upon the defendant. The demurrer to the answer was properly sustained.
Therefore, the judgment is affirmed.
____________
51 Nev. 236, 236 (1929) O'Neill v. Vasiliou
O'NEILL v. VASILIOU
No. 2814
February 5, 1929. 274 P. 1.
1. Exceptions, Bill ofExtension of Time for Serving and Filing Bill of Exceptions Without
Notice to Adverse Party's Counsel Held Invalid.
Order extending time in which to serve and file bill of exceptions without notice of motion therefor in
writing to counsel for adverse party, as required by district court rules, rule 36, Rev. Laws, sec. 4942, is
invalid.
C.J.CYC. REFERENCES
Appeal and Error4 C.J. sec. 1901, p. 289, n. 81.
Appeal from Ninth Judicial District Court, White Pine County; H. W. Edwards, Judge.
Action by Thomas H. O'Neill, doing business as the Ely Garage, against Nick Vasiliou.
Judgment for plaintiff, and from orders striking his bill of exceptions, overruling motion for
new trial, and denying relief from neglect and inadvertence in failing to serve plaintiff's
attorney with copies of orders extending time in which to file bill of exceptions, defendant
appeals. Plaintiff's motion to strike bill of exceptions sustained, order denying new trial
dismissed, and judgment affirmed.
W.E. Billings, for Appellant:
The court should have granted the defendant's motion for relief under section 5084 of the
Revised Laws of Nevada, 1912. Sherman v. Southern Pacific Co., 31 Nev. 285; Stonesifer v.
Kilburn, 94 Cal. 42, 29 P. 332; Scott v. Glenn, 97 Cal. 513, 32 P. 573; Cole v. Wilcox, 99
Cal. 549, 34 P. 114; Banta v. Siller, 121 Cal. 414, 53 P. 935; Bailey v. Krutzmann, 141 Cal.
520, 75 P. 104; Pollitz v. Wickersham, 150 Cal. 238, 88 P. 911; Morgan v. Oregon S. L. R.
R. Co., 27 Utah, 92, 74 P. 523; Hoehman v. New York Dry Goods Co., 8 Idaho, 66, 67 P.
796. We deem the Nevada case of Sherman v. Southern Pacific Company, supra, to be
conclusive upon this point.
No more emphasis can be placed upon the provisions of rules of court than can be placed
upon express statutory regulations. "Rules of court are but a means to facilitate justice
and should not be permitted to obstruct it." Baxter v. Boston etc. Oil Co. {Cal.), 253 P.
51 Nev. 236, 237 (1929) O'Neill v. Vasiliou
statutory regulations. Rules of court are but a means to facilitate justice and should not be
permitted to obstruct it. Baxter v. Boston etc. Oil Co. (Cal.), 253 P. 185, 186.
C. A. Eddy, for Respondent:
Court rules after adoption have same force and effect as statutes. Haley v. Eureka Bank, 20
Nev. 410, 22 P. 1098.
To give the court jurisdiction to extend time in which to file and serve papers when the
motion is made on ex parte application, notice of such order must be immediately given to the
opposing attorney as required by rule 36 of the district court. Portland Cattle Loan Co. v.
Wheeler & Stoddard, 50 Nev. 205, 255 P. 999. Even had the court authority to make the first
extension, certainly, as appellant had not given respondent notice of the first extension, the
district judge could not grant another ex parte extension without notice of the first extension
having been given to respondent. See, also, Beco v. Tonopah Ext. M. Co., 37 Nev. 199, 141
P. 453.
The case of Sherman v. Southern Pacific Co., 31 Nev. 285, cited by appellant in support of
his contention, was decided in April, 1909, and at a time before rule 36 had been adopted as it
now reads. When rule 36 was so adopted and became a rule of procedure on April 1, 1912, all
statutes and decisions previously passed or decided and contrary thereto died and became
obsolete and of no force or effect; so section 5084 does not apply to the case now before this
court. The Portland Cattle Loan case above cited was not decided until May 4, 1927. Also, I
know of no court rule in California to be mentioned in the Stonesifer v. Kilborn case, and
have not been able to find any similar rule in the California practice.
As the district court was without authority to make the orders extending time, or either of
them, it had jurisdiction to set aside and vacate an order which was void ab initio.
Even if said rule did not exist, appellant would not be in a position to complain of the
court overruling his motion to be relieved from his neglect unless the district court had
abused its discretion, and a long and undisputed line of authorities so hold.
51 Nev. 236, 238 (1929) O'Neill v. Vasiliou
be in a position to complain of the court overruling his motion to be relieved from his neglect
unless the district court had abused its discretion, and a long and undisputed line of
authorities so hold.
OPINION
By the Court, Sanders, J.:
The transcript of the record herein is entitled as follows:
Defendant's bill of exceptions to be used on appeal from the order of the above-entitled
court striking his bill of exceptions to be used on his appeal from the judgment and from the
order of said court overruling his motion for a new trial and also from the order of said court
denying defendant's relief from his excusable neglect and inadvertence in failing to serve the
attorney for the said plaintiff with copies of the orders of the said court extending defendant's
time to file his said bill of exceptions.
Upon the service and filing of the bill of exceptions in this court, counsel for the plaintiff
filed a motion to strike the entire bill of exceptions, accompanied by the affidavit of plaintiff's
attorney in support of the motion. In view of the confused condition of the record, no
intelligent disposition can be made of the motion without giving a statment of material facts.
We shall refer to the parties as plaintiff and defendant. Judgment was entered in favor
of the plaintiff and against the defendant upon the verdict of a jury on July 25, 1927, for the
sum of $696.13, with interest. On September 3, 1927, the defendant's motion for new trial
was denied. On September 22, 1927, upon the ex parte application of counsel for the
defendant, the court made an order extending time for the preparation, service, and filing of
the defendant's proposed bill of exceptions. On October 3, 1927, upon the ex parte
application of defendant's counsel, an order was entered granting the defendant to and
including the 12th day of October, 1927, in which to serve and file his bill of exceptions.
51 Nev. 236, 239 (1929) O'Neill v. Vasiliou
of October, 1927, in which to serve and file his bill of exceptions. On October 13, 1927, the
bill of exceptions was filed in the case. On said 13th day of October, 1927, the plaintiff filed
and served upon counsel for the defendant notice of its motion to strike from the files the
defendant's bill of exceptions and orders theretofore made extending time beyond that fixed
by statute in which to serve and file a bill of exceptions. Said motion to strike came on for
hearing on October 27, 1927, based upon the records and files in cause and the affidavits of
the attorney for the plaintiff. The motion to strike was based upon the ground that the
defendant failed to give written notice of the several orders extending time, as required by the
provisions contained in rule 36 of district court rules, section 4942, Rev. Laws. In opposition
to the motion, counsel for the defendant filed a counter affidavit, and asked permission of the
court to be relieved from his failure to comply with rule 36 of the district court in giving
written notice of the orders extending time under section 5084 of the Revised Laws of
Nevada, 1912. The court thereupon granted defendant until the 1st day of November, 1927, in
which to make his showing under said section. On the 29th day of October, 1927, the
defendant served upon plaintiff's attorney a copy of notice of motion to be relieved from his
excusable neglect in not giving the written notice required by said rule 36, which notice of
motion was supported by the affidavit of counsel for the defendant. The two motions seem to
have been argued together. The court took the motions under advisement until the 4th day of
November, 1927, on which date the court made an order refusing to grant the defendant's
motion for relief under section 5084 of the Revised Laws, and thereupon made an order
striking from the files the defendant's bill of exceptions to be used by the defendant upon his
perfected appeal from the judgment and from an order of the court denying and overruling his
motion for a new trial, to which rulings the defendant duly excepted.
On November 1, 1927, the defendant gave notice of appeal from the judgment and from
the order overruling the defendant's motion for a new trial.
51 Nev. 236, 240 (1929) O'Neill v. Vasiliou
appeal from the judgment and from the order overruling the defendant's motion for a new
trial. On January 3, 1928, the defendant gave notice of appeal from the order striking
defendant's bill of exceptions and also from the order denying and overruling the defendant's
motion for relief from his excusable neglect and inadvertence in failing to serve the attorney
for the plaintiff with copies of the orders of the court extending defendant's time to file his
bill of exceptions.
It is our understanding that there is but one question presented for determination, and that
is, Did the court below err in striking from the record in the case the defendant's proposed bill
of exceptions? The answer to the question involves the construction or interpretation of rule
36 of district court rules, as applied to orders extending time beyond that allowed by statute in
which to serve and file a bill of exceptions. Rule 36 reads as follows:
No order, made on ex parte application and in the absence of the opposing party,
provided he has appeared, granting or extending the time to file any paper or do any act, shall
be valid for any purpose, in case of objection, unless written notice thereof is promptly given
to such opposing party. Such notice shall be given as other notices are given, or may be given
by registered mail sent to the last known address of the attorney for such party, or, if he has
no attorney, to such party himself. If the address of such attorney or party be not known then
the notice may be addressed to such attorney or party in care of the clerk. (As amended,
October 25, 1911.)
It will be observed that the power and authority of the trial court to enlarge the time
prescribed by statute in which to serve and file a bill of exceptions was not questioned either
in this court or in the court below. Counsel for the plaintiff, however, takes the position that
under rule 36 the orders granting or extending time to file defendant's proposed bill of
exceptions were not valid for any purpose without written notice thereof to the opposing
party as required by district court rule 36, section 4942, Rev. Laws.
In Beco v. Tonopah Extension Mining Co.,
51 Nev. 236, 241 (1929) O'Neill v. Vasiliou
to the opposing party as required by district court rule 36, section 4942, Rev. Laws.
In Beco v. Tonopah Extension Mining Co., 37 Nev. 199, 141 P. 453, followed in Portland
Cattle Loan Co. v. Wheeler & Stoddard, 50 Nev. 205, 255 P. 999, it was held that an ex parte
order, extending the time within which the mover for a new trial shall serve on the adverse
party a memorandum of exceptions and errors, though properly granted, is without effect until
notice thereof has been given the adverse party, as required by district court rule 36. Upon
these authorities we conclude that the orders extending the defendant's time in which to serve
and file his bill of exceptions were invalid, and therefore the plaintiff's motion to strike the
defendant's bill of exceptions must be sustained.
If we assume that district courts may, upon good cause shown, relieve a party from default
in not giving written notice of an order extending time, as required by district court rule 36,
we are of the opinion that, upon the showing made in this case, the court did not abuse its
discretion in refusing to relieve the defendant from his default.
With the bill of exceptions out of the case, the defendant's appeal from the order denying
and overruling his motion for a new trial is dismissed, and the judgment appealed from is
affirmed.
____________
51 Nev. 242, 242 (1929) Hill Et Ux. v. Du Pratt
HILL Et Ux. v. DU PRATT
No. 2805
February 5, 1929. 274 P. 2.
1. Husband and WifeMoney Borrowed Belonging to Community or Property Purchased
Could Not Be Held Transmuted into Wife's Separate Property without Convincing
Proof.
Where money borrowed from defendant belonged to community, it could not be held that such money
or property purchased with it was transmuted into separate property of wife without convincing proof.
2. Husband and WifeEvidence Not Showing Husband's Gift of Purchase Money to Wife
and Mere Assertion that House and Deed Were Hers Was Insufficient to Show Gift
Making House Wife's Separate Property.
In suit to foreclose mortage deed executed by married woman claiming land as gift from husband,
evidence not showing gift of purchase money used in purchasing property, and that husband made gift
merely by saying house was wife's and passing deed to her, held insufficient to show gift so as to make
property separate property of wife.
3. Husband and WifeEvidence that Money Borrowed by Husband Was Deposited in Wife's
Name to Purchase House Did Not Show Gift of Purchase Money to Wife.
In action to foreclose mortgage deed executed by wife claiming land as gift from husband, evidence
that husband deposited such money with telegraph company in name of wife for transmission in purchase
of property did not of itself show intent to make gift of purchase money, as against presumption that
money became part of community, especially where other evidence disproved intent to make gift of such
money and showed no intention of making gift of realty at time.
4. Frauds, Statute ofEvidence of Husband's Gift of Realty to Wife Showed Attempted
Illegal Transfer by Parol.
Evidence that husband intended to give realty to wife, and after receiving deed to property stated he
passed deed to wife and said house was hers, disclosed attempt to transfer real property to wife by parol,
in violation of Rev. Laws, sec. 1069.
5. Husband and WifeTitle to Property Vested in Community Could Not Be Divested by
Husband's Passing Deed to Wife with Intent to Make Gift of Realty.
Where husband passed deed to property to wife at time when property had already passed into
community by delivery of deed to depository named by vendor in offer of sale and accepted by husband,
intention of husband to make gift of realty to wife when passing deed to wife could not divest community
of title.
C.J.CYC. REFERENCES
Frauds, Statute of27 C.J. sec. 479, p. 385, n. 25.
Husband and Wife30 C.J. sec. 301, p. 704, n. 74; p. 705, n. 80; 31 C.J. sec. 1147, p. 57, n. 5; sec. 1191, p.
101, n. 18.
51 Nev. 242, 243 (1929) Hill Et Ux. v. Du Pratt
Appeal from Fifth Judicial District Court, Nye County; L.O. Hawkins, Judge.
Action by James H. Hill and wife against John Du Pratt and others. Judgment for
plaintiffs, and defendant named appeals. Reversed, and cause remanded, with instructions
to enter judgment for defendant named.
Wm. Forman, Wm. Forman, Jr., and Ryland G. Taylor, for Appellant:
Under the laws of this state it has been settled by statute and decision law that the husband
has the entire disposition of community property. The presumption is that all property
acquired after marriage by either husband or wife belongs to the community, and the burden
is upon the party maintaining a different contention to show otherwise. See Jones v. Edwards,
49 Nev. 299; Laws v. Ross, 44 Nev. 405; Barrett v. Franke, 46 Nev. 171; Milsch v.
Hillhouse, 48 Nev. 167; Malmstrom v. People's Ditch Company, 23 Nev. 260. In Jones v.
Edwards, supra, this court held that a loan obtained after marriage by the husband is a loan to
the community. The property was, therefore, acquired with community funds. In Laws v.
Ross, supra, this court has held that property or money once a part of the community will be
presumed to remain such until shown by clear, certain and convincing proof to have been
transmuted into separate property. We contend on behalf of appellant that the evidence
furnished by plaintiff was neither clear, certain nor convincing upon this point. A similar case
arose in the State of Washington in the case of Abbott v. Weatherly. Another case bearing
upon this point is In Re Deschamps' Estate, 137 P. 1009. The supreme court of Washington,
in the case of In Re Parker's Estate, 196 P. 632, has held that a husband cannot make a gift of
real property to his wife by means of a deed made direct by the third party to the wife where
the property is purchased with community funds, and even where the deed is delivered
directly by the third party to the wife.
51 Nev. 242, 244 (1929) Hill Et Ux. v. Du Pratt
From the holdings made by this court in the cases of Barrett v. Franke and Milsch v.
Hillhouse, above cited, it is apparent it had in mind the very rule laid down by the
Washington court in the case of In Re Parker's Estate. Especially should the doctrine
announced in these cases be applied in a case where real property is involved, because the
statutes of this state prohibit its transfer by parol. Further, from the testimony it nowhere
appears that Monahan had any intention of making a gift of the property to his wife at the
time he had the deed made out in her name. It is the contention of appellant here that the title
to the property, having once vested in the community (and there can be no doubt but that it
had), then no gift could be made by J. E. Monahan to his wife without a written conveyance.
Rev. Laws of Nevada, 1912, sec. 1069; Carpenter v. Brackett, 107 P. 359; Union Savings and
Trust Company v. Manney, 172 P. 251.
Statute of frauds may be proven under general denial. Dixon v. Pruett, 42 Nev. 345. It
appears, therefore, that, under the pleadings, fraud as a defense to the so-alleged gift of the
husband to the wife can be raised by the defendant. The plaintiffs, however, by the evidence
introduced in their behalf, bring out the facts by which such fraud is shown, and by so doing
have failed to make a case entitling them to the relief prayed for or any other relief. Under the
civil law rule, from which springs the law of community property of Nevada, dealings
between husband and wife were not contemplated. But gradually, by statute and by the
decisions of courts, there has been recognized certain dealings between husband and wife.
However, the courts in some states have placed a limitation upon that privilege. That
limitation is that, in the case of a gift or a voluntary conveyance made by one spouse to the
other, the grantor must be free from debt at the time of such conveyance. Lanigan v. Miles,
172 P. 894; Union Trust Company v. Manney, 172 P. 251; Fisher v. Marsh, 125 P. 951. It
would further appear, then, that the purported gift from Monahan to Mrs. Monahan was
ineffective also for the reason that the evidence showed that Monahan was insolvent at
the time of the purported gifttherefore such gift was absolutely void.
51 Nev. 242, 245 (1929) Hill Et Ux. v. Du Pratt
ineffective also for the reason that the evidence showed that Monahan was insolvent at the
time of the purported gifttherefore such gift was absolutely void. There are authorities
holding, in effect, that a voluntary conveyance, as per se, was conclusively fraudulent as to
existing creditors, irrespective of intention or financial condition. Notes, 119 Am. St. Rep.
556, 27 C.J. 247; 27 C.J. 645; Davis v. Young, 85 S.W. 90. The great majority of courts,
however, take a less extreme view and hold that it is but prima facie presumably fraudulent as
against existing creditors, and that the burden is on those who seek to maintain it as a valid
transfer to prove that the grantor has other property or means sufficient to pay his debts and
discharge his obligations. Note, 119 Am. St. Rep. 556; 12 R.C.L., sec. 108, p. 593; note, 56
L.R.A. 825, and cases cited therein. The above is also the common law rule. Minneapolis
Stockyards Co. v. Halonen, 57 N. W. 1135. Almost all the authorities hold, with very few
exceptions, that one who receives security for an antecedent debt is not in the position of a
bona fide purchaser for value, but stands in the same position as his grantor. Wood v.
Robison, 22 N.Y. 564; Foster v. Winstanley, 102 P. 574; Perkins v. McCullough, 49 P. 861;
Miller v. Verney, 22 S. W. 64; Victoria Paper Mills v. New York & Penn. Co., 58 N.Y.S.
1070. There is not a scintilla of evidence that Monahan ever told the Hills, or that the Hills
prior to the beginning of this action ever thought, that the property was other than community
property. In such case, the Hills purchased with knowledge of all of the facts, and therefore
stood in no better position than their grantor. See the cases of New England Loan & Trust Co.
v. Avery, 41 S. W. 673; Milholland v. Tiffany, 2 Atl. 831; Thompson v. Fuwr, 57 Miss. 478.
We believe the lower court erred in holding that the statute governing the conveyance of
homesteads did not apply to separate property. National Bank of Ely v. Meyers, 39 Nev. 235.
The statute provides that no deed of conveyance, or mortgage, of a homestead as now
defined by law * * * shall be valid for any purpose whatever * * * unless both the
husband and wife execute and acknowledge the same."
51 Nev. 242, 246 (1929) Hill Et Ux. v. Du Pratt
now defined by law * * * shall be valid for any purpose whatever * * * unless both the
husband and wife execute and acknowledge the same.
Unsworn statements of a third party are, as a general rule, never admissible against the
defendant where he was not personally present at the time the conversation took place. It is
true that statements or admissions of one's grantor may be admissible where a question of title
is involved. However, this rule is qualified to the extent that only such declarations and
admissions are admissible as were made while the grantor owned the property involved.
Jones' Commentaries on Evidence, vol. 2, p. 1673. Practically all the conversations which the
court admitted in the lower court were had previous to any acquisition by the Monahans of
the title to the property involved. The admission into evidence of these statements and
declarations of the Monahans was, therefore, error.
Cooke, Stoddard & Hatton, for Respondents:
The elements necessary to the making of a gift by delivery to a third person (in this case
the Western Union Telegraph Company) for the benefit of the donee, are set forth in 28 C.J.
p. 639, sec. 30. Among the authorities cited in support of the text are the following: Boyle v.
Dinsdale, 45 Utah, 112, 143 P. 136, Ann. Cas. 1917e 363; Goelz v. Peoples Sav. Bank, 31
Ind. A. 67, 67 N.E. 232; Barnhouse v. Dewey, 83 Kan. 12, 109 P. 1081, 29 L.R.A. (N.S.)
166; and additional cases cited in note 42, 28 C.J. 639. The Western Union Company became
the agent or trustee for the use of Mrs. Monahan, the donee. 28 C.J. 640, sec. 32. The delivery
of a letter with a check to the United States post office has been held to be delivery to the
donee's agent within the rule. 28 C.J. 641, n. 54a. In the case of Gardner v. Merritt, 32 Md.
78, 3 Am. Rep. 115, it was held that the declaration of an intention to give, followed by
delivery of the subject matter of the intended gift to a bailee, for the benefit of the donee,
constitutes a perfect gift. See, also, Minor v. Rodgers, 40 Conn.
51 Nev. 242, 247 (1929) Hill Et Ux. v. Du Pratt
512, 16 Am. Rep. 69; Martin v. McCullough (Ind.), 34 N.E. 819. With regard to the
acceptance on the part of Mrs. Monahan of the gift of the money, the authorities hold that the
acceptance of a beneficial gift will as a general rule be presumed. 28 C.J. 672, sec. 75; 28 C.J.
673, n. 74. If this court, however, should take the view that such gift of money was not
affected, then we contend that the said money was sufficiently marked and set apart to give it
a separate character and to fully answer to the requirements of proof to bring into play and
application the doctrine on the subject which is set forth in chapter 56 of the work of Mr.
McKay on Community Property (2d ed.) sec. 962, et seq.
In answer to appellant's contention to the effect that a voluntary conveyance or gift is a
fraud upon a grantor's creditors, and as such is not merely voidable but is absolutely void and
of no effect whatever, we quote 12 R. C. L., Fraudlent Conveyances, sec. 111. It is also a fact
that a debtor may prefer one of his creditors. An honest preference being valid, where there is
an actual debt to be secured, the preference is not fraudulent on the ground that it may tend to
hinder, delay or defraud other creditors. 27 C.J., secs. 363, 385, and cases cited; 12 R.C.L.,
Fraudulent Conveyances, sec. 91. A conveyance by a fraudulent grantee to a creditor of his
grantor conveys good title, and the same rule applies to a mortgage given by the fraudulent
grantee to secure a debt of the fraudulent grantor. 27 C.J., Fraudulent Conveyances, sec. 525,
and the cases cited in note 20.
We contend that both legislative policy and judicial decision in this state support the
proposition that a married woman may dispose of or mortgage her separate property, even
though it may at the time be occupied and used as a home. Sec. 2160, Rev. Laws; National
Bank of Ely v. Meyers, 39 Nev. 235; Cartan v. David, 18 Nev. 312-329.
As to whether or not the court erred in admitting certain evidence during the trial, it was
necessary and proper to show that the money was advanced by the Hills to the Monahans at
the request of Mr.
51 Nev. 242, 248 (1929) Hill Et Ux. v. Du Pratt
Hills to the Monahans at the request of Mr. Monahan. 13 C.J., Contracts, sec. 169. To
distinguish the transaction from an outright sale, it was necessary to show the circumstances
which gave the transaction the character of a loan.
OPINION
By the Court, Ducker, C.J.:
In this action the respondents, the plaintiffs in the court below, prayed for a money
judgment in the sum of $1,700 against the defendants, Monahans, that the deed and bill of
sale mentioned in the complaint be decreed to be mortgages upon the real and personal
property therein described, and for a foreclosure thereof and a deficiency judgment. The
appellant, Du Pratt, was a party defendant, it being alleged in the second amended complaint,
among other matters in the same connection, that he has some interest in the property
involved, accrued since the lien of the said deed and bill of sale made to plaintiffs. Most of
the evidence was introduced by respondents, and the facts are, in the main, undisputed.
It appears from the evidence that the house and lot involved, which are situated in the city
of Tonopah, were formerly owned by one Irving MacDonald, a resident of Porterville, Calif.,
and for a number of years prior to the transactions hereinafter mentioned had been rented and
occupied by the defendant J. E. Monahan and his wife, L. M. Monahan. On or about the date
thereof MacDonald sent to Monahan the following letter:
Porterville, Cal., May 4, 1925.
Mr. J.E. Monahan, Tonopah, Nevada.
Dear Mr. Monahan: I have decided to sell the place you are occupying for the sum of one
thousand dollars net to me. Cash. This offer subject immediate acceptance. Should you care
to take advantage of it you may wire me at my expense. The money to be sent to the First
National Bank here, where deed will be delivered.
51 Nev. 242, 249 (1929) Hill Et Ux. v. Du Pratt
I am making the same offer to S. R. Moore & Co. with their commission to be added to the
net price.
Yours very truly,
Irving MacDonald.
On or about May 14, 1925, Monahan received a telegram from MacDonald reading as
follows:
Porterville, California.
151 P May 14, 1925.
Mr. J. E. Monahan, Tonopah, Nev.
Bank here reports no money received yet. Is deal off. Irving MacDonald, 2.31 P
In response to the foregoing telegram, Monahan on the 15th of May, 1925, wired
MacDonald as follows:
5/15/25.
Irving MacDonald, Rt. 1, Box 58, Porterville Cal.
Mailing check thousand dollars. Have deed made name L.M. Monahan. I assume this
included rear house lot one. L. M. Monahan.
Monahan signed his wife's name to the telegram. The bank at MacDonald's request
returned the check to Monahan, and he was notified by them by letter of date May 20, 1925,
that MacDonald required a draft sent to the bank in his wife's name before the deed would be
delivered. On the 15th day of May, 1925, J.E. Monahan borrowed $1,750 from respondents,
promising to give them a deed for the house and lot, and bill of sale for the furniture as
security for the loan. He told the respondents he would use the money to buy the property
from MacDonald. The Monahans executed and delivered to respondents a promissory note
for the amount borrowed.
Monahan's account was overdrawn with the First National Bank of Tonopah, and the
money borrowed from the respondents was used to pay overdrafts. On May 28th Monahan
borrowed $2,500 from appellant, and the next day sent $1,000 of this money by telegraph to
the First National Bank of Porterville, Calif., to be paid to Mrs. MacDonald for the property.
On the 1st day of June, Irving MacDonald and his wife executed a deed for the property in
favor of Mrs.
51 Nev. 242, 250 (1929) Hill Et Ux. v. Du Pratt
of June, Irving MacDonald and his wife executed a deed for the property in favor of Mrs.
Monahan. The deed was sent to the First National Bank of Tonopah, and by the bank passed
to Monahan. He had it recorded on the 11th day of June. A deed of the real propery was
executed by Mrs. Monahan to respondents and delivered to them by Monahan on the 27th day
of June. It was recorded on the same day. At the same time a bill of sale of the personal
property signed by the Monahans was delivered to the respondents. This deed and bill of sale
were intended as mortgages to secure the $1,750 borrowed by Monahan from respondents.
On the 18th day of July, 1925, Mrs. Monahan executed a deed of the real property and
conveyance of the personal property to appellant in consideration of the cancellation of the
debt of $2,500 from them to him.
The court, upon the trial of the cause, held, among other things, that the deed and bill of
sale given to the respondents were intended to operate as mortgages to secure the money
loaned by them; that the latter was void as a chattle mortgage because it did not comply with
statutory requirements, and that appellant was entitled to the personal property sought to be
mortgaged; that the real property involved was a gift from Monahan to Mrs. Monahan, and
consequently her separate property; and that the intended mortgage was a valid mortgage.
Foreclosure of the mortgage deed was decreed.
Several questions are raised by appellant. The principal one is that the evidence is
insufficient to establish a gift of the real property from Monahan to his wife.
1. Respondents recite respectable authority to the effect that a husband may make a valid
gift of real property to his wife by procuring a third person to make a conveyance direct to
her, and contends that the facts of this case show a valid gift of this character. The
respondents argue that the acts and expressions of Monahan show a gift of the purchase
money to Mrs. Monahan, or are sufficient to impress the consideration, namely, the money,
with a separate character. It is conceded that the money borrowed from the appellant
belonged to the community.
51 Nev. 242, 251 (1929) Hill Et Ux. v. Du Pratt
conceded that the money borrowed from the appellant belonged to the community.
Consequently it cannot be held that such money or property purchased with it was transmuted
into separate property without convincing proof. Lake v. Bender, 18 Nev. 361, 4 P. 711, 7 P.
74; Laws v. Ross, 44 Nev. 405, 194 P. 465; Jones v. Edwards, 49 Nev. 299, 245 P. 292.
2. We think the evidence of a gift, either of the purchase money or of its conversion into a
consideration of a separate character as claimed by respondents is too slight to satisfy the
foregoing rule.
Monahan nowhere asserts in his testimony that he made his wife a gift of the purchase
money, and his testimony on the whole negatives any purpose to do so. On this phase of the
case he testified as follows:
A. As I gave the house to Mrs. Monahan that is why she signed the deed.
Q. You mean, signed the mortgage. A. Yes, the mortgage.
Q. When did you give your interest in the property to her? A. When I borrowed the
money from Du Pratt.
Q. That was May 28, 1925? A. Yes.
Q. How did you give it to her? A. Just to say the house was hers. I passed the deed to her
and said it was hers.
Q. What deed? A. The MacDonald deed.
Q. Did the deed come to you? A. It came to the Nevada First National Bank and passed to
me by Mr. Raycraft.
Q. You intended to pass all your right in the property to her? A. Yes, I made her a present
of the home.
He stated, as appears above, that he gave his interest in the property to her at the time he
borrowed the money from appellant. He did not mean by this statement, however, that he
gave the purchase money to her, for when asked how he gave his interest to her, he said: Just
to say the house was hers. I passed the deed to her and said it was hers.
3. Stress is placed on the fact that the day after he borrowed the money from appellant he
deposited the purchase money with the telegraph company in her name for transmission
to the First National Bank of Porterville.
51 Nev. 242, 252 (1929) Hill Et Ux. v. Du Pratt
the purchase money with the telegraph company in her name for transmission to the First
National Bank of Porterville. This, at the most, is only slight evidence of an intent to make a
gift of the purchase money, and falls far short of that convincing proof required by the rule of
community presumption. On the other hand, it is entirely outweighed by the following
testimony given by Monahan: I will say this, if it will clear up matters for you, while the
$1,750 was borrowed from Mrs. Hill and placed in the bank, no part of this money was ever
paid for the house. My object in borrowing the $2,500 from Du Pratt was to pay Mrs. Hill the
$1,750 and allow the house and all to remain in the hands of Du Pratt. This testimony,
besides tending strongly to disprove any intent to make his wife a gift of the purchase money,
indicates that he had not at that time formed any purpose of giving the real property to his
wife, for he said he intended to allow the house and all to remain in the hands of Du Pratt.
The evidence fails also to show a valid gift of the real estate.
4, 5. The utmost effect we can give to the evidence on this point is that Monahan formed
the purpose of giving the real property to his wife, but did not do so until the MacDonald
deed came into his hands from the bank in Tonopah. It was then he said he passed the deed to
her and said the house was hers. The evidence discloses only an intent and attempt by
Monahan to give the house and lot to her in that way at that time. The effect of this, however,
was merely to attempt a transfer of real property by parol. Such transfers are forbidden by our
statute. Section 1069, Rev. Laws of Nevada. When Monahan passed her the deed, the title to
the property had already passed to the community. The title vested in the community when
the deed was delivered to the First National Bank of Porterville, the depository named by
MacDonald in his offer of sale, and accepted by Monahan. By reason of the provision cited,
the intention manifested by Monahan, when he passed the deed to Mrs.
51 Nev. 242, 253 (1929) Hill Et Ux. v. Du Pratt
Monahan, when he passed the deed to Mrs. Monahan, to give her the real estate, could not
operate to divest the community of the title. Carpenter v. Brackett, 57 Wash. 460, 107 P. 359.
See, also, Union Savings & Trust Co. v. Manney, 101 Wash. 274, 172 P. 251.
The mortgage deed executed by Mrs. Monahan was consequently void.
It is ordered that the judgment be and the same is hereby reversed, and the cause is
remanded, with instructions to the lower court to enter judgment in favor of appellant in
accordance with this opinion. The appellant to recover his costs.
____________
51 Nev. 253, 253 (1929) Metcalfe v. District Court
METCALFE v. SECOND JUDICIAL DISTRICT
COURT
No. 2854
February 5, 1929. 274 P. 5.
1. CourtsJurisdiction of State Court of Competent Jurisdiction Will Not Be Interfered with
by Any Other Court of Same State.
When one state court of competent jurisdiction assumes jurisdiction of subject matter, no other court
of same state will interfere in case the first court affords adequate opportunity for adjudication of rights.
2. CourtsAfter Denial of Suit Money and Alimony Pendente Lite Because of Agreement
Waiving Right Thereto, Another Judge of Same District Had Jurisdiction of Action to
Cancel Agreement.
Where trial judge in divorce action denied wife's application for suit money and alimony pendente
lite, on ground that agreement settling property rights and waiving right to alimony pendente lite and suit
money was binding until abrogated by court of competent jurisdiction, a judge of same district had
jurisdiction thereafter of an action for the cancellation of the agreement on the ground that it was induced
by fraud and duress, since the purpose of Rev. Laws, sec. 5843, of providing allowance for wife to carry
on or defend divorce suite, would be defeated in case wife was compelled to present issue in regard to
agreement by means of cross-complaint in divorce action.
51 Nev. 253, 254 (1929) Metcalfe v. District Court
3. ProhibitionWrit of Prohibition Issues Only in Exercise of Sound Judicial Discretion and
for Furtherance of Justice.
Writ of prohibition issues only in the exercise of the sound judicial discretion of the court and for the
furtherance of justice.
4. ProhibitionWrit of Prohibition Only Arrests Proceedings in Excess of Jurisdiction.
Writ of prohibition only arrests proceedings in excess of the jurisdiction of the tribunal pretending to
exercise it.
C.J.CYC. REFERENCES
Courts15 C.J. sec. 583, p. 1135, n. 59.
Prohibition32 Cyc. p. 600, n. 5; p. 604, n. 32.
Original proceeding in prohibition by Robert F. Metcalf against the District Court of the
Second Judicial District in and for the County of Washoe, Thomas F. Moran, Judge.
Proceeding dismissed.
Roberts, Scanlan & Ingram, for Petitioner:
We have searched diligently but fail to find any authority wherein one department of the
same court has interfered with the litigation in another department. In applying the rule of
reason to such a contingency, it must occur to our minds that such result would lead to
confusion in court actions which would be disastrous to the courts and litigants alike. There
are a number of authorities, however, to the effect that courts of concurrent jurisdiction will
not interfere with actions pending in courts of similar jurisdiction. 7 R.C.L. 1067; 32 C.J.
112; 32 C.J. 114; Lee et al. v. Sup. Ct., 214 P. 972; Wright et al. v. Sup. Ct., 73 P. 145; State
ex rel. Vesley v. Carr, 244 P. 436, 438; Sewell v. Christison, 245 P. 632. Under our practice
and pleading the wife could set up her cause of action for separate maintenance in a
cross-complaint; and as the property settlement agreement was brought in issue by the
husband's complaint, the validity of said agreement could have been and was made an issue in
the action first commenced.
The court should have dissolved the temporary restraining order, and exceeded its
jurisdiction in making said restraining order permanent. Section 5137, Rev. Laws of Nevada,
provides in what cases an injunction may be granted, and we do not believe that the
instant case is within the provisions of that section of our practice act.
51 Nev. 253, 255 (1929) Metcalfe v. District Court
Rev. Laws of Nevada, provides in what cases an injunction may be granted, and we do not
believe that the instant case is within the provisions of that section of our practice act. We
realize that the course have inherent power to grant injunctive relief, such as, for instance, in
preventing a multiplicity of suits, but such principle should not be invoked in a second suit
started by the wife, for the reason that the second suit was creating a multiplicity of suits
instead of preventing the same. 32 C.J. 404, sec. 685; 14 Cal. Jur. 192; 14 R.C.L. 405-406.
The record of the first proceeding was brought to the attention of the district judge issuing
the restraining order, and we believe it would have been the proper remedy to have
transferred the second action to the department first acquiring jurisdiction, in order that the
issues involved might be determined in one proceeding. We believe that that procedure would
have been in conformity with the practice of the district court of Washoe County, and
particularly rule 41 of district court rules. A mandatory rule of court not unreasonable or in
conflict with the statue has the same force and effect as a statute. State ex rel. Williams v.
Second Judicial District Court, 233 P. 843.
We believe that the same reason as above stated, applying to rule 41 would also apply to
rule 43.
We believe that an appeal would be inadequate for the reason that the petitioner would be
prevented from carrying on his divorce action in department No. 2 until the wife had
terminated her action in department No. 1, and therefore petitioner might not have any good
grounds for an appeal other than the refusal of the trial judge to dissolve the restraining order,
and even assuming that the supreme court might hold that the trial court erred in refusing to
dissolve the injunction, petitioner would not then have any redress for the reason that the
judgment rendered in department No. 1 would be a bar to the prosecution of the action in
department No. 2. From our understanding of the statute, an appeal from an order refusing
to dissolve an injunction does not stay the proceedings {sec.
51 Nev. 253, 256 (1929) Metcalfe v. District Court
statute, an appeal from an order refusing to dissolve an injunction does not stay the
proceedings (sec. 5352, Rev. Laws). Walser v. Moran, 42 Nev. 111, 128; Gordon v. Dist. Ct.,
36 Nev. 1, 15; 21 Cal. Jur. 582; Glide v. Sup. Ct., 147 Cal. 21, 27; Rec. Dist. v. Sup. Ct., 171
Cal. 672, 683; Gloyd v. Su. Ct., 185 P. 995, 997; Hammons v. Su. Ct., 219 P. 1037, 1039,
citing Con. Adjustment Co. v. Sup. Ct., 207 P. 552; Dungan v. Sup. Ct., 84 P. 767; State ex
rel. Thibodean v. Dist. Ct. (Mont.), 224 P. 866; Chaplin v. Su. Ct., 253 P. 954, 959; Northcutt
v. Su. Ct., 226 P. 25. We believe from the foregoing authorities that the petitioner in the
instant case does not have a plain, speedy and adequate remedy at law, and that he is entitled
to have the writ of prohibition made permanent, or such other relief as he may be entitled to.
Edw. F. Lunsford and Short & Ames, for Respondent:
Respondent contends that the Second judicial district court was acting within its
jurisdiction in restraining a litigant from prosecuting an action at law or equity in another
department of the same court. 22 Cyc. 813; 14 R. C. L. 408; Acme Harvester Co. v. Beekman
Lumber Co., 222 U.S. 300, 32 S. Ct. 96, 56 L. Ed. 208; Larue v. Friedman, 49 Cal 278; Stone
v. King-Hodgson Co., 140 Ga. 487, 79 S. E. 122; Chapman v. American Surety Co., 261 Ill.
594, 104 N.E. 247; Moors v. Ladenburg, 178 Mass. 272, 59 N. E. 676; Geddis v. Wayne Cir.
Judge, 151 Mich. 122, 114 N. W. 874; Kansas City R. Co. v. McCardle, 222 S. W. 464; State
v. First Judicial Dist. Ct., 24 Mont. 539, 63 P. 395; Erie R. Co. v. Ramsey, 45 N. Y. 637;
Farewell v. Great Western Tel Co., 161 Ill. 522, 44 N. E. 891.
We do not agree with the contention of counsel for petitioner that the three causes of
action involved in the proceedings in the Second judicial district court in any manner involve
the same subject matter, although they are between the same parties. Suit No. 27301 is a suit
for divorce only, and in which there is a bare allegation that there had been a property
settlement out of court.
51 Nev. 253, 257 (1929) Metcalfe v. District Court
out of court. Suit No. 27861 involved first a suit for cancellation of a contract and for an
accounting, and second a suit for separate maintenance without divorce. Hilton v. Hilton, 43
Nev. 128-140.
If the relief sought by petitioner is to prohibit the Second judicial district court from
hearing suit No. 27861 on its merits, we assert that there is no precedent for a superior court
to prohibit an inferior court from proceeding with the trial of a case in which it has
unquestionable jurisdiction of both the parties and of the subject matter. If he seeks relief
from the injunction heretofore granted, he is not entitled thereto, first, because the injunction
has already been granted and there is nothing more remaining to be done by the respondents
and nothing is threatened (32 Cyc. 603b; High's Ext. Legal Rem. 552, and note citing U.S. v.
Hoffman, 4 Wall 158); and the order of this court does not prohibit Thomas F. Moran, judge
of said district court, from doing any act except that he desist and refrain from taking any
further proceedings in case No. 27861 until the further order of this court. If it is sought to
have Judge Moran recall or dissolve the injunction, then the petitioner's remedy would be
mandamus, and if mandamus would lie, the writ of prohibition must fail. If it is maintained
that Judge Moran erred in granting the injunction, a matter clearly within his jurisdiction, then
the remedy would be by certiorari; and finally by section 5329 of the Revised Laws of
Nevada an order refusing to grant or dissolve an injunction is made appealable, and if
appealable, then neither certiorari, mandamus nor prohibition will lie.
Petitioner's contention that the order of the district court denying the motion to dissolve
said restraining order and the order making said restraining order permanent was inequitable
or in excess of the jurisdiction of said district court for the reason that it is alleged that it
creates a multiplicity of suits is not well taken, because, as stated, they are not of the same
subject matter; but if it be true that there is a multiplicity of suits, then he had his remedy in
section 5778 of the Revised Laws of Nevada.
51 Nev. 253, 258 (1929) Metcalfe v. District Court
Revised Laws of Nevada. The record does not show that petitioner sought to avail himself of
this remedy. That the petitioner cannot avail himself of the extraordinary writ of prohibition
where the right of appeal or other adequate remedy at law exists, is universally sustained by
the courts. See Works on Courts and their Jurisdiction, pp. 632, 633. The appeal in the instant
case would have involved the single question of whether the judge erred in refusing to
dissolve the injunction, or in making the injunction permanent.
The injunction involves no injury to petitioner, as it only requires him to submit to a court
of equity the contract by which he sought to bar her from obtaining suit money with which to
defend her marriage status and her property interests, and thereby deprive her of her day in
court; while to dissolve the injunction, assuming that a writ of prohibition will lie to dissolve
the injunction, would cause the wife irreparable damage. 32 Cyc. 301; People v. McCue, 74
N.Y. Supp. 151; State v. District Court, 38 Nev. 323-326; Low v. Crown Point Mining Co.,
1-2 Nev. 599; Walcott v. Thomas H. Wells, Acting Judge of District Court, 21 Nev. 45;
Knight v. District Court, 32 Nev. 346; Silver Peak Gold Mining Co. v. Second Judicial
District Court, 33 Nev. 97; Arascada v. District Court, 44 Nev. 37; Irving National Bank v.
District Court, 47 Nev. 92.
The United States Supreme Court has repeatedly refused to grant a writ of prohibition where
the remedy by appeal is available, and we direct this court's attention to the case entitled Ex
Parte Warmouth, 21 L.Ed. 543.
A case directly in point on the general principle that the writ of prohibition will not lie to
review the jurisdiction of the trial court in issuing an injunction is the case of State ex rel. v.
Jones (Wash.), 27 P. 452.
Our section 387 of the civil practice act as amended at page 113, Stats. 1913, provides that
an appeal may be taken: 1. * * * 2. From an order granting or refusing a new trial, or granting
or refusing to grant or dissolving or refusing to dissolve an injunction, * * * within sixty
{60) days after the order is made and entered in the minutes of the court.
51 Nev. 253, 259 (1929) Metcalfe v. District Court
or dissolving or refusing to dissolve an injunction, * * * within sixty (60) days after the order
is made and entered in the minutes of the court.
OPINION
By the Court, Coleman, J.:
This is an original proceeding in prohibition. The affidavit states that:
On August 1, 1928, Robert F. Metcalfe commenced an action for divorce in the Second
judicial district court in and for Washoe County, Nevada, against his wife, Gertrude C.
Metcalfe; that thereafter the defendant in that suit made application to the court for an order
allowing suit money and alimony pendente lite; that on September 18, 1928, a hearing was
had on said application; that upon said hearing it was made to appear that the parties to said
suit had on February 25, 1927, entered into a written agreement wherein they settled and
divided their property interests and the said wife waived and relinquished any and all property
rights in and to any property held by the plaintiff, and in case of the institution of a suit for a
divorce waived any all right to alimony pendente lite and suit money; that Hon. George A.
Bartlett, one of the judges of said court, after full hearing denied said application for suit
money and alimony.
The affidavit herein further states that after the making of said order and on October 10,
1928, Gertrude C. Metcalfe, the defendant in said divorce suit, filed an action in the Second
judicial district court in and for Washoe County, Nevada, for the cancellation of said
agreement upon the ground that it was induced by fraud and duress, and that on the 11th day
of October, 1928, Hon. Thomas F. Moran, one of the judges of said court, issued a restraining
order restraining the said Robert F. Metcalfe and his attorneys from further prosecuting said
divorce suit, during the pendency of said proceeding for the cancellation of said agreement,
and until the further order of the court.
51 Nev. 253, 260 (1929) Metcalfe v. District Court
said proceeding for the cancellation of said agreement, and until the further order of the court.
The affidavit further states that on the 16th of October, 1928, Robert F. Metcalfe file in
said suit last mentioned an application for an order to dissolve said restraining order, and that
thereafter and on the 19th of October, 1928, after a hearing in the matter, the said Hon.
Thomas F. Moran, district judge as aforesaid, denied said application; that the said Moran in
so ordering acted in excess of his jurisdiction and authority; that applicant is without a plain,
speedy, and adequate remedy, and hence asks the issuance of a writ of prohibition.
The respondent appeared by both demurrer and answer. From the uncontradicted answer of
the respondent it appears that when the question of the allowance of suit money and alimony
was passed upon in the divorce suit by Judge Bartlett he stated that, until the agreement of
Mrs. Metcalfe, waiving suit money and alimony, had been annulled by some court of
competent jurisdiction, he would have to give it full force and effect, and that such agreement
was not before him for adjudication.
1. In support of the application, the well-established general rule that when one state court
of competent jurisdiction assumes jurisdiction of a subject matter no other court of the same
state will interfere, is invoked.
To maintain the contention, reliance is had upon the text stated in section 105, R.C.L. at p.
1067, reading as follows:
It is a familiar principle that when a court of competent jurisdiction acquires jurisdiction
of the subject matter of a case its authority continues subject only to the appellate authority
until the matter is finally and completely disposed of; and no court of coordinate authority is
at liberty to interfere with its action.
With this general rule there can be no complaint. It is essential to the avoidance of
confusion and chaos in litigation, but the section from which petitioner quotes to sustain
his position contains a qualification which he does not quote, and which is very material
in this connection.
51 Nev. 253, 261 (1929) Metcalfe v. District Court
in litigation, but the section from which petitioner quotes to sustain his position contains a
qualification which he does not quote, and which is very material in this connection. It reads:
* * * An essential condition of the application of the rule as to priority of jurisdiction is
that the first suit shall afford the plaintiff in the second an adequate and complete opportunity
for the adjudication of his rights, for the rule that the court first acquiring jurisdiction retains
it to the end must yield to the higher principle which accords to every citizen the right to have
a hearing before a court of competent authority. * * *
This qualification to the rule relied upon by the petitioner, taken from the very section of
the work upon which he relies, in our opinion compels a decision in favor of the respondent.
2. Judge Bartlett took the position that the agreement between the parties was binding
upon him until abrogated by a court of competent jurisdiction. By his very ruling he
recognized that a suit to abrogate the agreement would be proper. We take it that petitioner
concedes the correctness of Judge Bartlett's position, but contends that the proper procedure,
indeed the only procedure available to him is in the divorce action, wherein it is claimed she
can by cross-complaint obtain all of the relief she can possibly obtain in the suit she instituted
to have the agreement settling property rights and waiving alimony and suit money canceled.
If the respondent herein has a plain, speedy, and adequate remedy in the divorce suit, she
should be compelled to adjudicate all questions therein. Let us see if she has.
It is provided by statute (Rev. Laws, sec. 5843) that in any suit for divorce the court may,
in its discretion, upon application, at any time after the filing of the complaint, require the
husband to pay such sums as may be necessary to enable the wife to carry on or defend such
suit and for her and the children's support during the pendency of such suit.
51 Nev. 253, 262 (1929) Metcalfe v. District Court
In view of the statute and the interest which the public has in divorce proceedings and the
support and maintenance of a wife and children, it is very questionable if a wife can contract
away such right in such a manner as to enable the husband to escape the obligation of paying
suit money in a divorce suit, but since we are not called upon to decide that question we will
proceed at once to a consideration of the one before us. The question, then, is, Has the
respondent an adequate and complete remedy in the divorce suit?
Under the statutes such as the one above referred to whereby the court is authorized to
make an allowance to the wife to enable her to carry on or defend such suit, it is generally
held that such allowance can only be made as to the future and not as to expenses already
incurred. Loveren v. Loveren, 100 Cal. 493, 35 P. 87.
Whatever else may be said, it is certainly the spirit of the law to afford an impecunious
wife the funds wherewith to carry on her defense and not to leave her in a position which
might result in great injustice being done her, as would often be the case if the policy of the
law were to make an allowance only after the trial and determination of a divorce suit. Such is
the rule in Nevada, for, as said in Lake v. Lake, 16 Nev. 363: The object of the law is to
afford a wife without means the funds necessary to prosecute or defend suits of this nature. *
* * She is entitled to proper allowance so long as the cause is pending and until it is finally
determined.
The respondent herein appeared in the divorce action and made a showing to the effect that
she was without funds necessary to enable her to carry on and defend her suit. By her
application she brought herself squarely within the terms of the statute and the law as
enunciated by this court. If the contention of the petitioner that the respondent can only ask
for the nullification of the agreement mentioned in the divorce suit, then the policy of the law
is set at naught, and though it is doubtful if this can be done even by an agreement between
the parties, yet if it can be done, and the respondent herein, in seeking to have it abrogated,
must proceed by way of cross-complaint, rather than by an independent action, the
petitioner is given every advantage, and the policy of the law is, in effect, nullified.
51 Nev. 253, 263 (1929) Metcalfe v. District Court
respondent herein, in seeking to have it abrogated, must proceed by way of cross-complaint,
rather than by an independent action, the petitioner is given every advantage, and the policy
of the law is, in effect, nullified. It is clear that if the position of the petitioner is sound, the
merits of the divorce suit will be tried before a court order can be made in the case, and after
the trial is completed there will be no defense or suit to carry on, hence there could be no
allowance of attorneys' fees to the respondent. A mere statement of the situation shows how
illogical, unjust, and unwise it would be to sustain this application.
3. The writ of prohibition issues only in the exercise of the sound judicial discretion of the
court and for the furtherance of justice. Hatch v. District Court, 50 Nev. 282, 257 P. 831. In
the circumstances of the case we think the justice is with the respondent, hence the writ
should be denied.
4. Furthermore, the writ sought only arrests proceedings in excess of the jurisdiction of the
tribunal pretending to exercise it. Clearly the district court has jurisdiction in the matter
complained of.
These proceedings should be dismissed at cost of petitioner.
It is so ordered.
____________
51 Nev. 264, 264 (1929) Boyd v. Second Judicial District Court
BOYD v. SECOND JUDICIAL DISTRICT COURT
No. 2832
February 5, 1929. 274 P. 7.
1. Attorney and ClientCourt, to Prevent Injustice, Has Inherent Power to Enjoin Attorney
from Appearing in Particular Case.
A court in proper case has power, not dependent on statute, but inherent in it, exercise of which is
designed to prevent injustice, to enjoin an attorney from appearing in a particular case.
2. Attorney and ClientEvidence Warranted Court in Excluding Attorney from Appearing
against Former Client in Case Arising Out of One in which He Was Its Attorney.
Evidence held sufficient to warrant the court in excluding an attorney from appearing against his
former client and in behalf of a former officer of it, in a suit by it against such officer arising out of the
suit of another against his former client, in which he appeared for it; the former suit, in which the plaintiff
prevailed, having been based on a claim that defendant therein fraudulently converted to its own use
certain shares of its stock belonging to the plaintiff therein, and the second suit being based on claim that
it was due to false representations by defendant officer to plaintiff's board of directors that the board
cancelled said shares of stock, by reason of which plaintiff in the former action prevailed, and the
attorney in the conduct of the former action having received much information of a confidential character
concerning the affairs of its former client from its officers.
3. Attorney and ClientAscertaining Certain Matters in Detail Held Unnecessary for Court
to Exclude Attorney from Appearing against Former Client.
For the court to exclude an attorney from appearing against his former client in a suit arising out of a
prior one in which he was its attorney, it is unnecessary for the court to ascertain in detail the extent to
which the former client's affairs might have a bearing on the matters involved in the the second suit, or of
the attorney's knowledge in that regard.
4. Attorney and ClientExcluding Attorney from Appearing against Former Client in Suit
Arising from that in which He was Its Attorney Held in Court's Sound Discretion.
The courts must necessarily be left to exercise a sound discretion in excluding attorney from
appearing against former client in suit arising out of one in which he was its attorney.
C.J.CYC. REFERENCES
Attorney and Client6 C.J. sec. 105, p. 619, n. 45.
Original mandamus proceeding by James T. Boyd against the Second Judicial District
Court in and for Washoe County, Department No. 1, Hon. E. P. Carville, presiding.
Dismissed.
51 Nev. 264, 265 (1929) Boyd v. Second Judicial District Court
James T. Boyd, for Petitioner:
A perusal of the two complaints and the answers will convince this court that your
petitioner has been unjustly deprived of a right that he has by virture of his admission to
practice as an attorney at law in the courts of this state, and to appear and defend Mr.Lamb in
the action brought against him by Gilbert Mammoth Last Hope Mines Company. That is an
office that he is entitled to exercise by virtue of his license to practice law, and he has been
deprived of his right in this respect. See State v. Crosby, 24 Nev. 115.
The court will assume that an attorney will observe all the obligations of honorable members
of the bar. Lalance v. Grosjean etc., 93 Fed. 197.
An attorney cannot take an adverse position to client in same case; cannot assume a
position hostile to his client and one inimical to the very interest he was engaged to protect.
In Re Boone, 83 Fed. 952, et seq.
The mere fact that a communication is made to a lawyer, a doctor, or a priest does not of
itself make such communication privileged. To have that effect, it must have been made in
confidence of the relation, and under such circumstances as to imply that it should forever
remain a secret in the breast of the confidential advisor. Hill v. State, 85 N. W. 836; Elliott
v. Elliott, 92 N. W. 1008.
The true test of whether your petitioner would be disqualified or not would be an answer
to the question as to whether, if called as a witness in this proceeding, he would be permitted
to testify regarding the statements made to him by the officers of the corporation and by Mr.
Lamb in reference to the Curler suit when all of the parties, including Mr. Lamb, were
present, and when the files and records of the company were delivered to him by Mr. Lamb.
The action against Mr. Lamb and the Curler action are not the same, the Curler action being
for the conversion of stock, and the action against Lamb being for fraudulent representations
by which the plaintiff in that action suffered loss.
51 Nev. 264, 266 (1929) Boyd v. Second Judicial District Court
Cooke & Stoddard, for Respondent:
The respondent court had inherent power to enjoin the attorney from changing sides in the
same suit or respective same subject matter. Weidekind v. Tuolomne etc. Co. (Cal.), 19 P.
173-174; 5 A.S.R. 445; Brown v. Miller (Cir. App. D. C. ), 286 F. 994; State v. Lewis (Ia.),
65 N. W. 295; Messenger v. Murphy (Wash.), 74 P. 480; Mussleman v. Barker (Nebr.), 42 N.
W. 759; Flynn v. Neosha (Mo.), 21 S. W. 903; Gaulden v. State, 11 Ga. 47; Nichels v.
Griffin, 1 Wash. Ter. 374; Bowman v. Bowman (Ind.), 55 N. E. 422; Wilson v. State, 16 Ind.
392; State v. Halstead (Ia.), 35 N. W. 457; Com. v. Gibbs (Mass.), 4 Gray, 146; 2 R.C.L. 975,
sec. 53 and n. 17 and cases cited; 2 R.C.L., 939, sec. 4 and cases cited.
It is submitted that forbidding an attorney from changing sides in the same case or on the
same subject matter, to the manifest detriment of his former client is not a suspension or
removal of such attorney from his office as an attorney at law (6 C.J. 614, sec. 96), but is
merely the exercise of the inherent power which must be possessed by the district court over
its own officers. State v. County Commissioners, 19 Nev. 332, 10 P. 902-910; Diggs v. State,
49 Ala. 311-317; 40 C. J. 1208-1209; 6 C.J. 568, sec. 10.
But if the power to prevent an officer of the court, i.e., an attorney, from perverting justice
by representing conflicting interests before the district court is not, as respondent contends,
inherent in the court irrespective of statutory authority, then it is respectfully submitted by
respondent that the statute fully confers such power. It reads: Every court shall have power
* * * to control, in furtherance of justice, the conduct of its ministerial officers. Rev. Laws,
sec. 4864.
OPINION
By the Court, Ducker, C. J.:
This is an original proceeding in mandamus. Petitioner is an attorney at law, and seeks the
writ to compel respondent to admit him to appear as an attorney for the defendant in that
certain action pending in the Second judicial district court of the State of Nevada in and
for the county of Washoe, entitled Gilbert Mammoth Last Hope Mines Company, a
Corporation, Plaintiff, v. W. C. Lamb, Defendant.
51 Nev. 264, 267 (1929) Boyd v. Second Judicial District Court
compel respondent to admit him to appear as an attorney for the defendant in that certain
action pending in the Second judicial district court of the State of Nevada in and for the
county of Washoe, entitled Gilbert Mammoth Last Hope Mines Company, a Corporation,
Plaintiff, v. W. C. Lamb, Defendant.
A brief statement of the other allegations of the petition follows:
In December, 1925, petitioner was employed as an attorney by said Gilbert Mammoth Last
Hope Mines Company to defend it in an action brought against it in the Fifth judicial district
court of Nye County by one B. F. Curler, wherein the latter charged the said company with
having fraudulently converted to its own use 35,000 shares of stock of said company, alleged
to be his property, to his injury and damage in the sum of $35,000.
Petitioner held various interviews and conferences with the said W. C. Lamb and the
officers and directors of the said company, and from the information secured from them
prepared and filed its answer. He also appeared at the trial of said cause as attorney for the
company and examined and cross-examined witnesses and argued said cause to the court.
Curler prevailed in said action, and on the 30th day of November, 1926, was awarded a
judgment in the sum of $28,210. In the month of December, 1926, petitioner ceased to be the
attorney for the company in said action, and ceased to advise the company in any manner
whatsoever.
At all times from the date of the incorporation of said company said W. C. Lamb was a
stockholder and the principal promoter in the sale of the stock of said company. On or about
the 1st of March, 1926, he was elected a director and vice president and general manager of
the corporation, and at all times from the date of its incorporation had access to its records
and files.
On the 16th day of January, 1927, the company commenced the said action against said W.
C. Lamb in the Second judicial district court, and Lamb employed the petitioner to aid in
preparation of an answer, and otherwise to aid and assist in the defense during the trial
of said cause.
51 Nev. 264, 268 (1929) Boyd v. Second Judicial District Court
in the Second judicial district court, and Lamb employed the petitioner to aid in preparation
of an answer, and otherwise to aid and assist in the defense during the trial of said cause. The
company objected to petitioner acting as an attorney for Lamb, and, on motion duly noticed
and heard, the trial court rendered a decision enjoining petitioner from appearing as an
attorney for Lamb in the action brought against him, and from in any manner proceeding in
said action as his attorney.
1. The doctrine that a court has power in a proper case to enjoin an attorney from
appearing for a party is well established. People v. Gerold, 265 Ill. 448, 107 N. E. 165, Ann.
Cas. 1916a, 636; State v. Halstead, 73 Iowa, 376, 35 N. W. 457; Brown v. Miller, 52 App. D.
C. 330, 286 F. 994, and cases cited; Weeks on Attorneys at Law, secs. 120-271; 2 R. C. L.
sec. 53, p. 975.
This authority is not dependent upon any positive provisions of law. It is a power inherent
in a court, and its exercise is designed to prevent injustice in a particular case.
It is a well-settled general rule, says Mr. Thornton in his work on Attorneys at Law,
that an attorney cannot represent conflicting interests, or undertake the discharge of
inconsistent duties. When he has once been retained and received the confidence of a client,
he cannot accept a retainer from, or enter the services of, those whose interests are adverse to
his client in the same controversy, or in matters so closely allied thereto as to be, in effect, a
part thereof. 1 Thornton on Attorneys at Law, sec. 174.
This formulation of the general rule is fairly deducible from the authorities. 6 C.J. p. 619,
and cases cited in note 45. The reason for the rule is well stated in Strong v. International
Building Loan & Investment Union et al., 183 Ill. 97, 55 N. E. 675, 47 L. R. A. 792:
The rule is a rigid one, and designed not alone to prevent the dishonest practitioner from
fraudulent conduct, but as well to preclude the honest practitioner from putting himself in a
position where he may be required to choose between conflicting duties, or be led to an
attempt to reconcile conflicting interests rather than to enforce to their full extent the
rights of the interests which he should alone represent."
51 Nev. 264, 269 (1929) Boyd v. Second Judicial District Court
from putting himself in a position where he may be required to choose between conflicting
duties, or be led to an attempt to reconcile conflicting interests rather than to enforce to their
full extent the rights of the interests which he should alone represent.
2. While we believe that the petitioner in this case is entirely sincere in his belief and claim
of his right to represent Lamb in the company's suit against him, we cannot say that the
evidence was not sufficient to warrant the court in excluding him. The petitioner does not
appear against his former client in the same controversy, it is true, but the present suit rises
out of the Curler case. It is based on the claim that it was due to certain false representations
made by Lamb to the board of directors of the company that the board canceled 35,000 shares
of the stock of the company theretofore issued and delivered to said Curler as compensation
for his services as attorney for the company, and by reason of which Curler prevailed in the
action. Such a close connection is shown between the cases that we are not prepared to say
that a situation may not arise in which petitioner would be disqualified to represent Lamb
against the company. He acted as attorney for the company in the Curler case, and during his
employment had received much information concerning its affairs from Lamb and other
officers of the company. This appears from the affidavit made by the two directors used on
the motion to exclude petitioner. The court below, on commenting on the extent of
petitioner's information, said:
In the Curler case the defendant (Lamb) and the members of the board of directors of
plaintiff evidently worked in harmony in the defense of that action, and before it was tried
defendant became vice president and general manager of plaintiff company. In the defense of
that action the officers of the company must necessarily have discussed matters involved in
the litigation very thoroughly; in fact, Mr. Lamb appeared to be the moving spirit.' All
records, books and files of the company were available to counsel, and were gone into
thoroughly, and naturally their method of doing business and all business transactions
were known to Mr.
51 Nev. 264, 270 (1929) Boyd v. Second Judicial District Court
company were available to counsel, and were gone into thoroughly, and naturally their
method of doing business and all business transactions were known to Mr. Boyd, especially
with reference to the matters of which this case is the outgrowth.
Certainly the information was of a confidential nature, and petitioner could neither
disclose nor use his knowledge of it in opposition to the interests of the company without its
consent. There is no merit in the contention that the information gained by petitioner does not
come within the class of privileged communications because acquired from Lamb or the
officers of the company in his presence. The company only could release petitioner from his
obligation of secrecy.
3, 4. It was unnecessary for the court to ascertain in detail the extent to which the
company's affairs might have a bearing upon the matters involved in the present case, or of
petitioner's knowledge in that regard. Brown v. Miller, supra. The courts must necessarily be
left to exercise a sound discretion in cases of this character, and we find no abuse of
discretion in this case.
The alternative writ and proceedings should therefore be dismissed.
____________
51 Nev. 271, 271 (1929) Smith v. Smith
SMITH v. SMITH
No. 2829
February 5, 1929. 274 P. 9.
1. DivorceWife Cannot Obtain Divorce for Nonsupport After She Told Husband To Go
and that They Could Not Live Together.
Wife cannot obtain divorce for nonsupport for husband's failure to support her after she told him to go
and that they could not live together any more, since person cannot obtain divorce on grounds occasioned
by his own misconduct.
C.J.CYC. REFERENCES
Divorce19 C.J. sec. 144, p. 72, n. 24.
Appeal from Second Judicial District Court, Washoe County; George A. Bartlett, Judge.
Suit by Blanche B. Smith against Charles H. Smith. Judgment for plaintiff, and defendant
appeals. Reversed, with directions.
Talmage L. Smith, for Appellant:
Section 2177 of Rev. Laws of Nevada reads as follows: A husband abandoned by his wife
is not liable for her support until she offers to return, unless she was justified by his
misconduct in abandoning him. The attention of this court is called to the fact that the
appellant in this case left their home at the request of the respondent, and that the decision of
the Indiana court was that he was not guilty of extreme cruelty towards her and therefore
there was no grounds upon which she was justified in inviting him to leave, and at the same
time hold him liable for her support. See the following authorities: Barnett v. Barnett, 61 N.E.
737; Crinson v. Heritage, 15 A. R. 258; 53 N. Y. S. 346; 119 A. S. R. 634; 19 C. J. 72;
Volkmar v. Volkmar, 81 P. 413, 414; Fowler v. Fowler, 127 S. W. 1014; 19 C. J. 72; 33 S. E.
865 et 866; 61 N. E. 737; Washburn v. Washburn, 9 Cal. 475; Berry v. Berry, 145 Cal. 784,
19 P. 521; 30 Hun. 461; 15 A. R. 258; 119 P. 403 et 404; Mayr v. Mayr, 118 P. 546 et 549;
353 N.Y. S. 346; 141 N. Y. S.
51 Nev. 271, 272 (1929) Smith v. Smith
N. Y. S. 61; 166 N. Y. S. 898; 209 N.Y. S. 117; 143 P. 607 et 608; Johnson v. Johnson, 119
P. 403; Richfield v. Richfield, 100 Misc. 561; 166 N.Y.S. 898, and cases cited there;
Douglass v. Maehr, 30 Hun. 461; Fuller v. Fuller, 33 S. E. 865 et 466; Freiman v. Freiman,
68 S. W. 389; Hansen v. Hansen, 150 P. 70; Powers v. Powers, 53 N.Y. S. 346; Baker v.
Baker, 168 Cal. 346, 143 P. 607; Rycraft v. Rycraft, 42 Cal. 444; Reischfield v. Reischfield,
166 N. Y. S. 898; Sturm v. Sturm, 141 N. Y. S. 61.
The above cases show that in order for a wife to maintain a charge against the husband for
failure to provide the common necessaries of life it is necessary that the wife establish and
show that the husband either deserted her and failed to provide for her or that she caused him
to leave because of extreme cruelty towards her.
A. J. Maestretti, for Respondent:
There was sufficient evidence in this case to satisfy the trial court in rendering its decree,
and under the decisions of this court the decree should not be disturbed. Gault v. Grose, 39
Nev. 274; De Remer v. Anderson, 41 Nev. 288; McCone V. Eccles, 42 Nev. 451; Clark
Company v. Francovich, 42 Nev. 321; Sweet v. Sweet, 49 Nev. 254.
The record in this case shows that it was appellant's persistent violation of respondent's
admonition relative to her business affairs that caused respondent's failure to longer live with
appellant. That was certainly sufficient justification under the statute, sec. 2177, cited by
counsel, inasmuch as it caused her trouble and financial loss. And the record in this case
showing without question that appellant failed for more than one year prior to the
commencement of this action to provide respondent and her daughter with the common
necessaries of life, and further disclosing that respondent's income from all sources was
inadequate to support herself and minor daughter, we submit that the court below is
supported by the evidence and the law in all respects in the findings and decree in this
case.
51 Nev. 271, 273 (1929) Smith v. Smith
below is supported by the evidence and the law in all respects in the findings and decree in
this case.
OPINION
By the Court, Sanders, J.:
This is a suit for a divorce on the ground of nonsupport. The parties were intermarried in
Indiana in 1898 and lived together happily, so far as appears, until March of 1926. In the year
1911 the plaintiff inherited money and property, and thereafter she purchased a farm, paying
therefor $14,900, which she still owns. She owns also a furnished home in the town of
Brookeville, Ind., which is worth $8,000 unfurnished. The defendant is a cigar maker by
trade, and, so far as appears, supported his family solely by his earnings until the wife
received an inheritance. After that the family lived upon the rentals of the farm and what the
defendant earned. The defendant followed his trade in Brookeville, but about six years before
this suit was filed the cigar making business in Brookeville entered upon a decline, and the
man who had given employment to sixteen or more men, the defendant among them, was at
the time of this suit employing only one and then but part time. About December, 1923, the
defendant was taken sick and was unable to do anything for several months. After that he was
employed as a state highway policeman for some time and was then let out on account of
shortage of funds. While working in the cigar factory, defendant put in part time, for a while,
as state oil inspector. Following his sickness the defendant was unable to obtain steady
employment, which was due, however, to no lack of effort on his part.
In the early part of March, 1926, the plaintiff told her husband that they could not live
together longer and that he must go. In this connection counsel for the plaintiff asked her this
question: Was the cause of your refusal to live with the defendant and to cause him to live
apart from you, as you have just stated, with reference to the trouble he brought about with
the lawsuits?"
51 Nev. 271, 274 (1929) Smith v. Smith
reference to the trouble he brought about with the lawsuits? To which she replied: Yes, sir.
The defendant in his affirmative defense pleaded a judgment in his favor against the
plaintiff in the circuit court of Franklin County, Ind., upon a cause of action for divorce
instituted in that court by the plaintiff in April, 1926, on the ground of nonsupport which was
admitted by the plaintiff's reply, but as that was apparently not urged in the lower court we
will ignore it.
This suit was instituted on September 16, 1927, after the suit had been instituted and tried
in Indiana, and months after the plaintiff had told the defendant to go; that they could not live
together longer. The cause of action for nonsupport is based upon defendant's failure to
support the plaintiff subsequent to the time he was told to go by the plaintiff.
While we do not deem it material, it may not be out of place to observe that several men
and women of Brookeville, of apparently a representative type, testified as to the defendant's
character and habits, and every one of them spoke of him in the highest terms. In fact,
nowhere does the plaintiff question his integrity, respectability, or industry. If we can fairly
estimate the man from the tone of his testimony, he is an excellent citizen and the victim of
misfortune. His 15 year old daughter, who had been living with her mother, testified that her
father was good to her and had always given her all the money she wanted.
Whatever else might be said about this case, it is clear that the plaintiff cannot recover.
She cannot complain of the defendant's failure to support her after she had notified him to go
and that they could not live together longer. The defendant had no option in the matter.
It is a well-settled rule of law that a person cannot obtain a divorce on grounds occasioned
by his own misconduct. Reed v. Reed, 4 Nev. 395.
It is ordered that the judgment be reversed, and the lower court is ordered to enter a judgment
and decree in favor of the defendant, at plaintiff's costs.
____________
51 Nev. 275, 275 (1929) Hough Et Ux. v. Reserve Gold Mining Co.
HOUGH Et Ux. v. RESERVE GOLD
MINING COMPANY
No. 2808
February 5, 1929. 274 P. 192.
1. Dismissal and NonsuitTelegram Instructing Clerk of Court to Discontinue Case
Entitled Plaintiff to Dismissal Before Trial.
Telegram from plaintiff's counsel, instructing the clerk of the court to enter discontinuance of the
case sent before trial, entitled plaintiff to dismissal under Rev. Laws, sec. 5237, providing for dismissal
by plaintiff himself at any time before trial; the word discontinue being synonymous with the word
dismiss.
2. Dismissal and NonsuitAccrued Costs Need Not Be Paid Before Order of Dismissal by
Plaintiff Is Entered.
Under Rev. Laws, sec. 5237, providing for dismissal by plaintiff at any time before trial upon
payment of costs, the accrued costs need not be paid before the order of dismissal is entered.
C.J.CYC. REFERENCES
Dismissal and Nonsuit18 C. J. sec. 25, p. 1157, n. 10; sec. 57, p. 1169, n. 92.
Appeal from Third Judicial District Court, Eureka County; W. R. Reynolds, Judge.
Action by M.J. Hough and wife against the Reserve Gold Mining Company. From an
order vacating judgment of dismissal, defendant appeals. Affirmed.
Norcross & Cheney, for Appellant:
It will be noted that the telegram made no suggestion in respect to the provisions of the
statute for the payment of costs. This being a necessary prerequisite to a dismissal upon the
plaintiff's own motion, the clerk could take no action in the premises. In this case also it
appears that a provisional remedy had been allowed by issuance of an attachment, which in
the case of dismissal the clerk was required to deliver the undertaking to the defendant.
When we come to consider the motion to vacate upon the ground of surprise, under the
provisions of Rev. Laws, sec. 5084, we find that the application for relief fails also to comply
with the provisions of the statute in that it is not based upon affidavit showing good cause
therefor."
51 Nev. 275, 276 (1929) Hough Et Ux. v. Reserve Gold Mining Co.
cause therefor. The application for relief was based upon a mere notice setting forth certain
grounds and not accompanied by any affidavit whatsoever. Respondent in this case, however,
would be in little better position had the notice of motion been accompanied by the required
affidavit. The statements contained in the notice, even if sworn to, could not by any
possibility state a case of surprise. It is not anywhere contended that counsel for the plaintiffs
were unacquainted with the provisions of the statute. They could not, therefore, have
expected that either the clerk or Mr. Eather could have taken any action when the telegrams
made no suggestion for compliance with certain prerequisite requirements of the statute
before a voluntary dismissal on the part of the plaintiffs could be had. Even if we assume that
the clerk and Mr. Eather would know that counsel for plaintiffs meant dismissal under the
statute when they used the expression discontinuance in the telegram, they, of course, could
not act, because no provision was made for the payment of defendant's costs or the surrender
of the undertaking on attachment. What they may well have assumed in view of the reading
of the telegram is that counsel desired a further continuance, which the attorneys for the
defendant would not agree to. Otherwise there was no reason for the use of the expression
Mrs. Hough is sick.
Clyde D. Souter, for Respondents:
Respondents properly discontinued the action and dismissed same by the telegram sent to
the clerk of the court. There was no necessity to mention costs; the statute was full protection
in that regard to the appellant. The liability of the respondents for the costs was fixed by
statute, was a duty and obligation which could not be avoided, and which, therefore, the clerk,
respondents and appellant had a right to assume, and should have assumed, would be paid.
If it should be found that a proper discontinuance of the action, or judgment of dismissal,
was not required by the telegram to the clerk, then the respondents were entitled to be
relieved of the judgment of dismissal entered by the court on motion of appellant in
pursuance of the provisions of Revised Laws, sec.
51 Nev. 275, 277 (1929) Hough Et Ux. v. Reserve Gold Mining Co.
entitled to be relieved of the judgment of dismissal entered by the court on motion of
appellant in pursuance of the provisions of Revised Laws, sec. 5084. It is respectfully
submitted that the respondents had taken every reasonable step that might be required of them
to secure a dismissal of the action, and that the judgment of dismissal entered by the court on
motion of appellant was a surprise to the respondents and that they were without fault in the
premises.
It is submitted that no modification should be entered to make any allowance for whatever
the costs might be, in view of the fact that such costs were needlessly incurred, and incurred
in the face of explicit information two days before the date of trial that the trial could not
possibly proceed.
In conclusion it is submitted that in matters such as are raised by the appeal in this case,
this court will depend largely upon the discretion exercised by the trial court. The trial court
was in full possession of the facts, had the entire situation intimately before it, and in the
exercise of a wise judicial discretion set aside the judgment of dismissal. In addition to this, it
is a fundamental rule of law that courts do not favor denying to a litigant his day in court, and
that only in those cases where the court is bound by law to do so will matters of mere
technique be permitted to interfere with the due course of justice.
OPINION
By the Court, Coleman, J.:
This is an appeal from an order vacating a judgment of dismissal.
The case was set for trial on June 7, 1927, at Eureka, Nevada, about 200 miles distant from
Reno, where the attorneys for both parties resided.
On the 5th day of June, counsel for the plaintiff applied to counsel for the defendant at
Reno for a stipulation continuing the setting of the case for trial, which was refused.
51 Nev. 275, 278 (1929) Hough Et Ux. v. Reserve Gold Mining Co.
was refused. On the morning of the 6th counsel for defendant started for Eureka to try the
case on the 7th. On the same morning counsel for the plaintiff telegraphed the clerk of the
court at Eureka as follows:
Please enter discontinuance of the case of M. J. Hough versus Reserve Gold Mining
Company. Mrs. Hough is sick and attorneys for defendant will not grant a continuance.
Simultaneously he sent a telegram to an attorney in Eureka requesting him to see to it that
the dismissal of the case was entered. Both telegrams were delivered on the morning of the
6th about 11:45.
The clerk failed to make the order of dismissal, and, on the following morning when court
convened, counsel for the plaintiff failing to appear, counsel for the defendant moved for
judgment of dismissal of the suit, the dissolving of the attachment, and for costs, which was
granted.
1. On the 16th of the same month, the plaintiff served and filed its notice of motion to
vacate the judgment so entered, upon two grounds: (1) Because the dismissal should have
been made by the clerk on plaintiff's request on June 6, hence the court was without
jurisdiction to make the order of June 7. We need not state the second ground given. The
motion should have been sustained on the first ground.
It is provided by section 5237, Rev. Laws, that an action may be dismissed, or a judgment
of nonsuit entered in the following cases: 1. By the plaintiff himself at any time before trial,
upon the payment of costs, if a counterclaim has not been made. * * *
No counterclaim was filed in this case. The word discontinue is synonymous with
dismiss (Farmers' Oil & Mfg. Co. v. Melton & Stuart, 159 Ala. 469, 49 So. 225), and the
telegram was an authorization to dismiss, and it was the plain duty of the clerk upon its
receipt to enter up the order of dismissal on plaintiff's motion, and at his costs.
2. There is nothing to the contention that the accrued costs must have been paid before the
order of dismissal could have been properly entered.
51 Nev. 275, 279 (1929) Hough Et Ux. v. Reserve Gold Mining Co.
of dismissal could have been properly entered. As said in Hancock Ditch Co. v. Bradford, 13
Cal. 637: * * * We do not undertand that the plaintiff is bound to tender the costs before
being entitled to be nonsuited; for the costs cannot be at the moment known or computed. But
this proviso was only meant to declare that the effect of the nonsuit is to subject him to costs.
At common law, the right of the plaintiff was to take a nonsuit at any time before the jury
retired, and we do not construe the statute as altering the rule. (3 Ch. Genl. Pr. 910.)
The order appealed from was based on the second ground of the motion, but, being right,
should be, and is, affirmed.
____________
51 Nev. 279, 279 (1929) Giannopulos v. Chachas
GIANNOPULOS v. CHACHAS
No. 2751
February 5, 1929. 274 P. 193.
1. Money LentJudgment for Plaintiff, Based on Conclusion that Defendant Admitted
Owing Money Sued for, Held Erroneous; No Scintilla of Evidence Showing
Admission.
Judgment for plaintiff, in action to recover sum of money alleged to have been loaned to defendant,
held erroneous, where based on conclusion that defendant admitted owning the money sued for, and there
was not a scintilla of evidence on part of defendant wherein he admitted owing plaintiff any money;
entire theory of defense as shown by evidence being that money he received was that of partnership of
which he was partner and not of the plaintiff.
C.J.CYC. REFERENCES
Money Lent41 C. J. sec. 21, p. 8, n. 68.
See, also, 50 Nev. 269, 257 P. 618.
Appeal from Ninth Judicial District Court, White Pine County; C. J. McFadden, Judge.
Action by Jim Giannopulos against Angelo Chachas. Judgment for plaintiff, and defendant
appeals. Reversed.
Chandler & Quayle, for Appellant:
There is insufficient evidence to justify the decision of the court, and the decision is
against the law. Summing up the testimony on behalf of plaintiff, what have we?
51 Nev. 279, 280 (1929) Giannopulos v. Chachas
we? Aside from the payments of certain sums, canceled checks for which were introduced in
evidence and the receipt or authorization of which were admitted by defendant, we have the
witness Kippos, admittedly ignorant of the principles of bookkeeping, apparently posing as an
authority on copartnership accounting, and arbitrarily tagging this sum as into or out of
personal funds of one of the partners, although not carried in the name of that partner but in
the name of the witness and mixed with his own private funds, if any; while another sum is
just as arbitrarily tagged as a deposit to or withdrawal from copartnership funds. Where, we
ask, was there any copartnership fund? Kippos testified that he could draw on the funds in his
own name, which belonged to Jim Giannopulos, and from the funds of the Steptoe Meat
Company, which presumably belonged to the copartnership.
It appears to have been the theory of the witness Kippos that inasmuch as plaintiff had
advanced the original money for the partnership affairs, all money, including the amount
originally advanced and all accruals and substitutions of the partnership funds belonged to
plaintiff individually. We cannot perceive how the lower court could have arrived at the
conclusion it did except upon the theory that it fell into the same error of fact and
copartnership law as that incurred by the witness Kippos. After money is put up by one of the
copartners for the copartnership interest and use, it no longer belongs to that individual
copartner nor to any one of the others, but all are interested in common therein. 20 R. C. L.,
sec. 84, p. 873, also sec. 81, p. 870; 30 Cyc., subhead 10, p. 444; 20 R. C. L., sec. 82, p. 871;
30 Cyc., subheads D-1, p. 424. And so far from the original partner contributor of capital
having a personal claim against any of the partners subsequently withdrawing a portion of the
funds, the only remedy available is by an accounting between the partners, either with or
without resort to a court of equity therefor. 20 R. C. L., sec. 254, pp. 1012-13; Id. sec. 256, p.
1014.
51 Nev. 279, 281 (1929) Giannopulos v. Chachas
To the proposition that one copartner cannot embezzle or steal money belonging to the
copartnership, no reference to specific cases need be made, as we take it. That doctrine is
fundamental to the law of partnership. 20 R. C. L. 870. If not the property of plaintiff, then
certainly the money underlying these items was the property of the copartnership, and hence
the right of plaintiff to sue on the account fails.
V. H. Vargas, for Respondent:
The preponderance of the evidence shows that the appellant did receive the amount sued
for, and that that amount was the personal money of the respondent and was loaned to him at
his request and for his personal use and benefit, and had nothing to do with the copartnership
funds; this evidence sustains the decision of the trial court.
This honorable court has consistently held by a long line of decisions that the judgment in
a civil case where there is substantial evidence to support it, will not be disturbed where there
is a substantial conflict in the evidence, upon the ground that the verdict is against the weight
of evidence. Bryant v. Carson R. L. Co., 3 Nev. 313, 93 Am. Dec. 403; Carlyon v. Lannan, 4
Nev. 650; Ophir Min. Co. v. Carpenter, 4 Nev. 534; 97 Am. Dec. 550; State v. Yellow Jacket
S. M. Co., 5 Nev. 415; Clark v. Nev. Min. Co., 6 Nev. 203; Lewis v. Wilcox, 6 Nev. 215;
McCoy v. Bateman, 8 Nev. 126; Blackee v. Cooney, 8 Nev. 41; Menzies v. Kennedy, 9 Nev.
152; State v. C. P. R. Co., 10 Nev. 47; Barnes v. Sabron, 10 Nev. 219; Leport v. Sweeney, 11
Nev. 387; Buckley v. Buckley, 12 Nev. 423; Boskowitz v. Davis, 12 Nev. 446; Solen v. U. S.
T. R. Co., 13 Nev. 106; Smith v. Mayberry, 13 Nev. 427; Duquette v. Ouilmette, 13 Nev.
499; Gammans v. Roussell, 14 Nev. 171; Taft v. Kyle, 15 Nev. 416; Allen v. Reilly, 15 Nev.
453; Tognini v. Kyle, 15 Nev. 464; Hixon v. Pixley, 15 Nev. 475; Sacalaris v. E. & P. R. Co.,
18 Nev. 155; 1 P. 835; Simpson v. Williams, 18 Nev. 432, 4 P. 1213; Langworthy v.
Coleman, 18 Nev. 440, 5 P.
51 Nev. 279, 282 (1929) Giannopulos v. Chachas
65; Winter v. Fulstone, 20 Nev. 260, 21 P. 201, 687.
The appellate court will not weigh and will not determine which of the parties adduced a
preponderance of the evidence, and where the record discloses a material conflict thereof, it
will not disturb the verdict of the jury or judgment of the court. McGurn v. McInnis, 24 Nev.
370, 55 P. 304, 56 P. 94.
OPINION
By the Court, Sanders, J.:
This action was brought to recover $835.40 alleged to have been loaned to the defendant
by the plaintiff. The answer of the defendant denies the alleged loan.
In 1919 a partnership consisting of the plaintiff, Gust Kippos, Jim Giannopulos, and
Emanuel Giannopolus were engaged in the meat business at McGill, Nevada. During that
year the partnership consisting of the above was dissolved, and a new partnership was
organized, consisting of the plaintiff, Gust Kippos, the defendant, and Gust Chachas, to carry
on the meat business at McGill. Later the new firm took a lease on the Campbell ranch, and
engaged in the livestock business, buying and selling, in connection with the operation of the
ranch and the meat business.
Gust Kippos was the bookkeeper for the partnership until the latter part of its existence. He
testified that upon the dissolution of the first partnership above mentioned there was about
$1,800 in his hands, presumably belonging to the plaintiff, though he did not so directly
testify. He did testify, however, that the plaintiff told him to keep that moneyyou hold that
money. I am going to leave. You hold that money so you have some money there * * * for
expensesfor personal money for the new partnership.
The witness testified at great length. He testified that the plaintiff told him to loan to and
pay out for the defendant money from said fund, and, pursuant to such instructions, he did
loan to him, and pay out at the defendant's request, sums aggregating the amount sued
for.
51 Nev. 279, 283 (1929) Giannopulos v. Chachas
at the defendant's request, sums aggregating the amount sued for.
The plaintiff corroborated the testimony of the witness Kippos.
The theory of the defendant is that, while he received the money, he drew it from the funds
of the company, and not from the plaintiff in the case. He testified that often he took money
from the company cash register and put in a tag therefor, and that on some occasions Kippos
would hand him money from the cash register and put in a slip therefor. In this connection
Kippos testified that the money so obtained was repaid from, and charged up to, the $1,800
fund.
Gust Chachas, the brother of the defendant, and one of the partners, testified that it was the
custom of each of the members of the firm to get money from the company cash register and
put in a tag.
There is also undisputed testimony to the effect that the defendant owned the building in
which the meat shop was kept, for which he was to receive a rental of $50 per month.
The witness Kippos had destroyed or lost two books of the accounts of the firmat least
he was unable to produce them, and the defendant introduced in evidence a statement of bank
accounts which it is claimed by defendant tends to establish his defense.
It was the theory of the defendant that he borrowed no money from the plaintiff, and,
though he received the amount sued for, that it was all partnership money, and that upon an
accounting it would be found that the partnership was indebted to him.
The trial court decided the case from the bench immediately upon the conclusion of the
oral argument. In rendering his decision, the court said:
I have my mind made up in this case. I think it is a separate transaction, because Mr.
Chachas admitsadmits that he owed the money. I think this is a separate and distinct
transaction and Kippos himself testified to the same thing, and I don't see where the
partnership is concerned at all. So judgment will be for the plaintiff in this action in the sum
of eight hundred and thirty-five dollars and forty cents, and costs of this suit."
51 Nev. 279, 284 (1929) Giannopulos v. Chachas
for the plaintiff in this action in the sum of eight hundred and thirty-five dollars and forty
cents, and costs of this suit.
In the second sentence the court stated that it reached its conclusion because the
defendant admitted owing the money. There is not a scintilla of evidence on the part of the
defendant wherein he admits owing the plaintiff a cent, and the entire theory of his defense,
as shown by his evidence, is that the money he received was the money of the partnership,
and not the money of the plaintiff.
In view of the clear misunderstanding of the evidence of the defendant, it seems that the
judgment and order must be reversed. The third sentence of the pronouncement of the court,
though couched in different language, is to the same effect as the previous one.
The complaint in this action was filed December 6, 1922, about three years after the
partnership was formed, and the rentals from the partnership to the defendant during that time
amounted to over $1,500.
If the statements from the bank had been considered, together with the other evidence, it
may be that it would have been found that the defendant had a large sum of money coming to
him from the company. However, in view of the fact that the court misinterpreted the
evidence of the defendant, we need not consider the effect to be given to this evidence.
It is ordered that the judgment be reversed.
____________
51 Nev. 285, 285 (1929) Latterner v. Latterner
LATTERNER v. LATTERNER
No. 2836
February 5, 1929. 274 P. 194.
1. DivorceResidence Required under Divorce Statute Is of Character Denoting Present
Intention to Make County of Suit Plaintiff's Home for Indefinite Period.
Residence required by divorce statute, Rev. Laws, sec. 5838, as amended by Stats. 1927, c. 96, is
residence of character denoting present intention on part of one claiming it to make county in which suit
is instituted such person's home, at least for an indefinite period.
2. DivorceIn Absence of Language in Amendment to Divorce Statute Indicating Contrary
Intention, it Must Be Presumed Word Resided Was Used with Meaning Ascribed to
it by Court.
In absence of any language in amendment of 1927 (Stats. 1927, c. 96) to divorce statute (Rev. Laws,
sec. 5838) indicating a contrary intention, it must be presumed that word resided was used by
legislature with meaning ascribed to it by court.
3. StatutesWhere Legislature Uses Words which Have Received Judicial Interpretation,
they Are Presumed To Be Used in that Sense.
Where legislature uses words which have received judicial interpretation, they are presumed to be
used in that sense, unless the contrary intent can be gathered from the statute.
4. StatutesWhere Language of Statute Is Susceptible of Sensible Interpretation, it Cannot
Be Controlled by Extraneous Considerations.
Where language of statute is susceptible of sensible interpretation, it is not to be controlled by any
extraneous considerations.
5. DivorceSupreme Court Cannot Pass on Good Faith of Plaintiff in Divorce Suit
Regarding Matter of Residence in First Instance.
Supreme court cannot pass on question of good faith of plaintiff in divorce action as regards matter of
residence in first instance.
6. Appeal and ErrorWhere Court Applies Wrong Principle of Law to Prejudice of Party,
Judgment Must Be Reversed.
Where court applies wrong principle of law to prejudice of party, judgment must be reversed on
appeal.
7. DivorceCourt, Having Failed to Find Plaintiff To Be Bona Fide Resident, Was Without
Jurisdiction to Grant Decree of Divorce.
Court, having failed to find plaintiff to be bona fide resident, as required by Rev. Laws, sec. 5838, as
amended by Stats. 1927, c. 96, was without jurisdiction to grant him a decree of divorce.
C.J.CYC. REFERENCES
Appeal and Error4 C.J. sec. 2878, p. 908, n. 63.
Divorce19 C.J. sec. 41, p. 29, n. 73; sec. 42-43, p. 30, n. 82; sec. 382, p. 150, n. 58; sec. 472, p. 191, n.
99.
Statutes36 Cyc. p. 1136, n. 31; p. 1154, n. 77.
51 Nev. 285, 286 (1929) Latterner v. Latterner
Appeal from First Judicial District Court, Douglas County; G. A. Ballard, Judge.
Divorce action by Frederick H. Latterner against Adelia F. Latterner. From a decree for
plaintiff, defendant appeals. Reversed.
Grover L. Krick, for Appellant:
In order to give the First judicial district court of Nevada, in and for Douglas County,
jurisdiction of the action, respondent's residence in Douglas County must be bona fide and
not transient. His own testimony and actions show that respondent did not consider Douglas
County his domicile or bona fide residence, and appellant maintains that his residence in
Douglas County was not bona fide and that his domicile and residence was not in Douglas
County, Nevada. To bring this action within the jurisdiction of the district court of Douglas
County, respondent's residence in the county of Douglas must be must be substantial and
permanent. Fleming v. Fleming, 36 Nev. 140; Presson v. Presson, 38 Nev. 207; Dedrick v.
Dedrick, 257 P. 837; Pope v. Pope, 243 P. 962; Anthony v. Tarpley, 187 P. 779; Walker v.
Walker, 45 Nev. 108; Aspinwall v. Aspinwall, 40 Nev. 64; Barber v. Barber, 47 Nev. 377, 39
A. L. R. 706, and note 711 et seq.; Beach v. Beach, 46 P. 514; 9 R. C. L. 403, sec. 200, p.
542; Holmes v. Holmes, 8 A. L. R. 1540.
The trial court in its decision on the motion for a new trial in this case did not find that
respondent's residence was in good faith, but only that he had been actually present in
Douglas County for three months immediately before the action was begun.
A jurisdictional question is never waived. Sec. 5045, Rev. Laws of Nevada, 1912. It is a
well-settled principle of law that the question of jurisdiction can be raised at any time during
the trial, and if not at that time it can be raised for the first time on appeal, when the want of
jurisdiction appears affirmatively from the record. Aram v. Edwards (Idaho), 74 P. 961;
Oppenheimer v. Regan (Mont.), 79 P. 695; Empire Ranch & Cattle Co. v.
51 Nev. 285, 287 (1929) Latterner v. Latterner
Ranch & Cattle Co. v. Millet, 135 P. 127; First Nat. Bank of Pateau v. School Dist. No. 4 of
Hughes Co. (Okla.), 160 P. 68; Stephens v. Weyl-Zuckerman & Co. (Cal.), 167 P. 171;
Maguire v. Cunningham (Cal.), 222 P. 838; Dant & Russell v. Pierce (Ore.), 255 P. 603;
Gamble v. Silver Peak, 35 Nev. 319, 133 P. 936.
Jurisdiction of subject matter of character incapable of being waived must be considered
when raised for first time on appeal. Bosher v. Bellas (Ariz.), 264 P. 468; Twin Falls Realty
Co. v. Brune (Ida.), 264 P. 382; Boarman v. Home State Bank of Tecumseh (Okla.), 239 P.
579; Labbitt v. Bunston (Mont.), 260 P. 727.
Wayne T. Wilson, for Respondent:
This state has prescribed by statutory enactment, the prerequisites by which the courts may
or shall acquire jurisdiction of divorce cases. Stats. 1926-27, p. 126. If jurisdiction is acquired
in the manner prescribed by statute it cannot be questioned within the state. 15 C. J., p. 797,
sec. 92; Campbell v. Wilson, 6 Texas, 379. Jurisdiction depends on the statute. Thompson
v. Thompson, 49 Nev. 383.
The bona fides of plaintiff's residence in Douglas County, Nevada, is a question of fact to be
determined by the jury, or court, and there being substantial evidence to support the verdict or
decree, this court is bound thereby. Thompson v. Thompson, supra, p. 384.
If the respondent came to the State of Nevada and the county of Douglas with the intention of
abandoning his home in California, and with a bona fide intention of remaining in Douglas
County, Nevada, for an indefinite length of time, and did remain, physically, in Douglas
County three full calendar months, he acquired a residence and domicile sufficient to give the
court jurisdiction of the divorce case which was filed in that county by him. Presson v.
Presson, 38 Nev. 203.
The decisions do not hold that this residence must be for any particular length of time,
unless required by legislative enactment. Tiedemann v. Tiedemann, 36 Nev. 503. The trial
court having found by implication that the plaintiff below, respondent here, was a bona
fide resident of Douglas County, Nevada, this court is bound by that finding.
51 Nev. 285, 288 (1929) Latterner v. Latterner
The trial court having found by implication that the plaintiff below, respondent here, was a
bona fide resident of Douglas County, Nevada, this court is bound by that finding. Thompson
v. Thompson, 49 Nev. 384; Confer v. District Court, 49 Nev. 31. The finding of the court in
favor of plaintiff imports that the plaintiff's residence was in good faith, and if supported by
substantial evidence cannot be disturbed on appeal. Walker v. Walker, 45 Nev. 109; Miller v.
Miller, 37 Nev. 257; Gildersleeve v. Gildersleeve (Conn.), Ann. Cas. 1916b, 920.
Jurisdiction of a divorce action is determined by plaintiff's residence at the time of filing
the petition, and it is immaterial where he afterwards establishes his residence. Duxstad v.
Duxstad, 100 P. 112; Whise v. Whise, 36 Nev. 23; Confer v. District Court, 49 Nev. 33; 19
C. J., p. 28, sec. 39. A change of residence by plaintiff after the commencement of the suit
and before its trial does not deprive the court of jurisdiction. 19 C.J. 28, sec. 39.
The defendant voluntarily appeared in this case and presented, or had the opportunity to
present, her claim to the court, and is therefore estopped to deny the jurisdiction of the court
over the subject matter of the suit. 4 C.J. 1350, sec. 40, and cases cited under notes 24 and 25;
Curtis v. McCullough, 3 Nev. 210. Where the court has jurisdiction of the subject matter, a
general or voluntary appearance by the defendant confers jurisdiction of the person, and
estopped the defendant to object to the jurisdiction of the court. 4 C.J. 1350, sec. 41; Golden
v. Fifth Judicial Dist., 31 Nev. 250-259; Frankel & Co. v. Creditors, 20 Nev. 49.
OPINION
By the Court, Ducker, C. J.:
This is an action for divorce. Respondent, who was plaintiff in the court below, obtained a
decree of divorce. In his amended complaint appears the following allegation: "That plaintiff
resides in and for more than three months immediately preceding the commencement of
this action has resided continuously in the county of Douglas, State of Nevada, since the
19th day of July, 1927."
51 Nev. 285, 289 (1929) Latterner v. Latterner
That plaintiff resides in and for more than three months immediately preceding the
commencement of this action has resided continuously in the county of Douglas, State of
Nevada, since the 19th day of July, 1927.
This allegation was denied in the answer. Appellant contends that the evidence did not
establish the bona fides of respondent's residence in Douglas County for the period of three
months prior to the commencement of the action. This is the only question she presents.
We are of the opinion that the trial court misapplied the law to the facts bearing upon this
issue. This appears from the following statement of the trial court found in the bill of
exceptions:
The court did not find that plaintiff's residence was in good faith, but only that he had
been actually and corporeally present in Douglas County for three months immediately before
the action was begun. Is more required? If it is, the plaintiff should not have his decree.
The plaintiff, however, was given a decree, and as the bona fides of his residence was a
material issue, which the court did not pass upon, the resulting prejudice to appellant from
this omission is apparent.
Section 5838 of the Revised Laws was amended by the legislature of 1927 (Stats. 1927, c.
96), and the part involved reads:
Divorce from the bonds of matrimony may be obtained, by complainant, under oath, to
the district court of the county in which the cause therefor shall have accrued, or in which the
defendant shall reside or be found, or in which the plaintiff shall reside, if the latter be either
the county in which the parties last cohabitated, or in which the plaintiff shall have resided
three months before suit be brought. * * *
1-3. The foregoing provision, prior to the amendment at that session of the legislature,
provided that a suit for divorce could be brought in the county in which plaintiff had resided
for six months before the commencement of the action. The only change wrought by the
amendment in the phraseology of the part of the section quoted was in making the time
of residence three months, where it had formerly been six.
51 Nev. 285, 290 (1929) Latterner v. Latterner
by the amendment in the phraseology of the part of the section quoted was in making the time
of residence three months, where it had formerly been six. Prior to the amendment the six
months' residence clause had been definitely construed by this court. The residence required
was determined to be of a character denoting a present intention on the part of the one
claiming it to make the county in which the suit was instituted the person's home, at least for
an indefinite period. It was held, also, that the residence meant by said section 5838, and by
the Session Acts of 1911, c. 158, was one characterized by the physical presence of the
person, as well as by his or her intent to make the place a home. Fleming v. Fleming, 36 Nev.
135, 134 P. 445; Presson v. Presson, 38 Nev. 203, 147 P. 1081; Walker v. Walker, 45 Nev.
105, 198 P. 433.
The legislature must be presumed to have been cognizant of these constructions. In the
absence of any language in the amendment indicating a contrary intention, it must also be
presumed that the word resided was used by the legislature with the meaning ascribed to it
by the court. If the legislature uses words which have received a judicial interpretation, they
are presumed to be used in that sense, unless the contrary intent can be gathered from the
statute. 2 Lewis' Sutherland, Statutory Construction (2d ed.), 758, 759.
4. There is nothing in the language of the amendment denoting an intention to make mere
physical corporeal presence in the county the sole element of the residence required of a
plaintiff in a divorce action. The same language formerly used in the provision amended was
employed, except in designating the number of months required. What motive the legislature
may have had in shortening the time of residence has no bearing on the meaning of the words
used. Where the language of a statute is susceptible of a sensible interpretation, it is not to be
controlled by any extraneous considerations.
5, 7. The trial court should have considered the evidence bearing upon the good faith of
respondent's residence.
51 Nev. 285, 291 (1929) Latterner v. Latterner
residence. The supreme court cannot pass upon the question in the first instance. When a
court applies a wrong principle of law to the prejudice of a party, the judgment must be
reversed. Long Valley Land & Development Co. v. Hunt, 51 Nev. 5, 266 P. 917.
Furthermore, the court, having failed to find plaintiff to be a bona fide resident, was without
jurisdiction to grant him a decree of divorce.
The judgment is reversed.
On Petition for Rehearing
May 16, 1929.
Per Curiam:
Rehearing denied.
____________
51 Nev. 291, 291 (1929) Reno Electrical Works v. Ward
RENO ELECTRICAL WORKS, INC. v. WARD Et Al.
No. 2778
February 5, 1929. 274 P. 196
1. FixturesWhether Article Brought Upon Freehold Becomes Part Thereof Depends
Largely on Intention, Use to which To Be Applied, and Fitness Therefor.
The intention of person bringing article on freehold, the use to which it is to be applied, and its fitness
for that purpose, governs to a large extent whether such article, actually fastened to freehold or not,
becomes a part thereof.
2. Mechanics' LiensThat Fans Attached to Walls Were Necessity for Tenant in Restaurant
Business Held Insufficient to Subject Building to Lien for Price.
The mere fact that electric fans were a necessity for tenant to carry on restaurant business in building,
to walls of which they were attached, held not sufficient to subject the lessor's property to the lien of firm
selling the fans to the tenant, under Rev. Laws, sec. 2213.
3. Mechanics' LiensElectric Fans, Fastened to Walls of Restaurant with Screws and Nails,
Removable Without Injury, Held Not Part of Realty so as to Subject Realty to Lien.
Electric fans, installed by tenant in building he was occupying for restaurant purposes by fastening
them to walls with screws and nails, fans being removable therefrom without noticeable injury to
the building, and in fact so removed, held not to be fixtures and part of the realty so
as to make realty subject to lien for the sale price of the fans, as provided by Rev.
Laws, sec.
51 Nev. 291, 292 (1929) Reno Electrical Works v. Ward
noticeable injury to the building, and in fact so removed, held not to be fixtures and part of the realty so as
to make realty subject to lien for the sale price of the fans, as provided by Rev. Laws, sec. 2213.
C.J.CYC. REFERENCES
Fixtures26 C.J. sec. 2, p. 654, n. 31; sec. 21, p. 666, n. 27.
Mechanics' Liens40 C.J. sec. 45, p. 71, n. 22, 24.
Appeal from Second Judicial District Court, Washoe County; J. N. McNamara, Judge.
Action by the Reno Electrical Works, Inc., against T. O. Ward and another. From a
judgment for plaintiff, and an order denying a new trial, defendants appeal. Reversed.
Cooke & Stoddard, for Appellant:
Plaintiff's whole case is based on its claim for furnishing and installing certain electrical
fans. These fans were not furnished or installed specially for occupancy of premises as a
restaurant. The building was an old one, occupied at different times for different purposes,
and the fans were stock fans usable anywhere where fans were needed; they were not made
specially for this building. Plaintiff's president admits that none of the fans were attached to
the building. Restaurants are not the only line of business where cooling fans, etc., may be
desirable or even useful, and the same is true of the suction fans to draw the impure air out of
the room. Hence, no point can be made that these fans were furnished to fit a room for a
special and particular purpose. Furthermore it is an admitted fact that the fans are of a
standard pattern and are equally workable and useful in any other room or building occupied
for purposes other than a restaurant. Some of the fans are not even screwed to the building or
attached in any way except by a cord, which cord is carried along the wall of the building.
They are identical in this respect with a telephone receiver. Counsel correctly contended in
trial court that one of the controlling questions is: Were the fans furnished and received with
the intention of same forming an integral part of the building?
51 Nev. 291, 293 (1929) Reno Electrical Works v. Ward
part of the building? Because the Kyne Investment Company is not before the court, no
finding, of course, can be made as to what its intentions were with reference to the
installation of the fans. If, then, it is a question of intention between the parties actually
before the court, i. e., plaintiff and the defendant Ward, then plaintiff's case on intention
must fall, because the evidence is conclusive that the defendant Ward strenuously objected to
plaintiff putting in the fans and notified plaintiff that neither he (Ward) or the property would
be responsible therefor, and the evidence further shows that plaintiff went on during the
absence of Ward from Reno and put in the fans. The mode of annexation is more or less
immaterial, as it is the intent of the parties that controls. 23 C.J. 660, sec. 9 and n. 79. Neither
is the consideration of extent of injury to freehold accepted as a reliable test. Such injury in
any event must be of such character as would leave the premises in a maimed or unfinished
condition. 23 C.J. 700, sec. 86 and n. 75; see, also, Id. 663, sec. 14.
We say that in cases of alleged annexations where the relation of landlord and tenant
existed, the presumption is strongly against annexation, and in favor of the right of tenant to
remove the articles as trade fixtures. Brown v. Reno Electric L. & P. Co. (C. C. Nev.), 55 F.
229-233; 26 C. J. 695, sec. 81 and n. 81, and cases cited; Treadway v. Sharon, 7 Nev. 37-44;
Spalding v. Columbia Theater Co. (Mo.), 175 S. W. 269; 11 R. C. L. 1069, sec. 13; Id. 1075,
sec. 19; Id. 1077, sec. 20 and n. 10; Fratt v. Whittier, 58 Cal. 126-130; 12 Cal. Jur. 569, sec. 8
and n. 17.
Electric fixtures when installed by tenant are domestic fixtures and not a part of realty. 26
C.J. 725 and n. 76; Brown v. Reno Electric L. & P. Co. (C.C. Nev.), 55 F. 229-234; Raymond
v. Strickland (Ga.), 52 S. E. 619, 3 L. R. A. (N.S.) 69-71; General Electric Co. v. Transit Co.
(N.J.Eq.), 42 A. 101; Excelsior Brewing Co. v. Smith, 110 N.Y.S. 8; In Re West (D.C.Pa.),
253 F. 963; Ballard v. Alaska Theatre Co. (Wash.), 161 P. 478-480; Leibe v. Nicoloi (Ore.),
48 P. 172-173; Lindsay Bros. v. Carter Rubber Co. {Pa.), S4 A.
51 Nev. 291, 294 (1929) Reno Electrical Works v. Ward
Lindsay Bros. v. Carter Rubber Co. (Pa.), 84 A. 783; 42 L. R. A. (N.S.) 546; Vaughen v.
Holdeman, 33 Pa. St. 523; N. Y. Co. v. Allison (C.C.A.,N.Y.), 107 F. 179; Lyons v. Jarnberg
(Minn.), 150 N. W. 1083; 39 A. L. R. 1044; Canning v. Owen (R.I.), 48 A. 1033, 84 A. S. R.
858; 11 R. C. L. 1078 and n. 12, and cases cited.
LeRoy F. Pike, for Respondent:
For the court to hold that the electrical wiring and fixtures in the Kyne Cafe are not such as
to be lienable, would deprive all electricians and electrical contractors and works of the
benefit of the Nevada lien law, and, further, for the court to so hold it would be necessary for
the court to hold adversely to the great weight of the authorities on this subject. They were
installed for the purpose of equipping that portion of the building for a certain purpose, to wit,
a restaurant, or cafe. Such electrical fixtures are considered a necessity in almost all
restaurants and cafes. The fixtures alone cannot be considered as a separate entity. They are a
part of the whole system of wiring, installed for a particular purpose, in a building to be used
for a particular purpose, to wit, a restaurant. The object for which the fixtures are to be used
is a controlling feature. Words & Phrases, vol. 3, 2838; Buchanan v. Cole, 57 Mo. App. 11;
Gass v. Rebling (Cal.), 19 P. 277; Donohue v. Cromartie, 21 Cal. 80; Mitchell v. Reeves
(Colo.), 60 P. 577. Wires and insulators are considered lienable fixtures. 27 Cyc. 37, 38; 26
C.J. 668, sec. 23, p. 24. Electrical fixtures are a part of the realty, and lien may be had for the
same. Riverside Fixture Co. v. Quigley, 35 Nev. 18, 126 P. 543; Gaston v. Avansino, 39 Nev.
128; Canning v. Owin, 48 Atl. 1033; Fratt v. Whittier, 58 Cal. 126; Merritt v. Judy, 14 Cal.
59; Stone v. Suckle (Ark.), 224 S. W. 735. Machinery, easily removable, a fixture for lien
purposes. McRea v. Central Nat'l. Bank, 66 N. Y. 489; Arnold v. Goldfield Chance Min. Co.,
32 Nev. 447, 109 P. 718; Badger Lumber Co. v. Morion Water Supply Co. (Kan.), 29 P.
51 Nev. 291, 295 (1929) Reno Electrical Works v. Ward
29 P. 476; McGeary v. Osborne, 9 Cal. 119; Fehr Construction Co. v. Potts System Building
(Ill.), 124 N.E. 315; Scanevin & Potter v. Construction Mineral Water Co. (R.I.), 55 Atl. 754.
In the foregoing cases, the machinery, electrical wiring and fixtures for which a lien was
sought were all easily removable from the freehold, yet they were held to be material subject
to the lien law. In the instant case the fans objected to are only a part of the entire design.
Without the fans the special wires and sockets were useless for the purpose for which they
were installed. Crane Co. v. Epworth Hotel Co. (Mo.), 98 S. W. 795.
In determining whether machinery placed in a plant by a lessee became a fixture, the
question is whether the machinery was attached to the building with an intention that it
should become a part of the plant as a whole, in which case it become a part of the leasehold
interest, if essential to the successful operation of the plant. 17 Cal. Jur. 19, p. 35; Stevenson
v. Woodward, 3 Cal. App. 754, 86 P. 990; Schaper v. Bibb, 17 Atl. 935.
The fact that certain materials used in the construction of a building and within its
architectural scheme were detachable and portable, such as an electric light sign, telephone
equipment for communication within the building, gas furnaces and gas connections, and
portions of mill work within the building would not impair the right to a lien. 17 Cal. Jur. 19,
p. 36; Evans v. Judson (Cal.), 52 P. 585.
We do not have to consider the relation of landlord and tenant at all, and it is not involved
in the instant case. Under the Nevada statute and Nevada decisions, Ward is held to be the
purchaser of the fixtures and they are held to have been installed at his instance (Gould v.
Wise, 18 Nev. 253, 3 P. 30; Rosina v. Trowbridge, 20 Nev. 105), as he did not post a notice
of nonliability. Therefore we can consider only the question of vendor and vendee, or owner
and materialman or lien claimant. Further, the rule as applied between landlord and tenant is
much more liberal in its application in behalf of the tenant than in behalf of the owner when
applied in cases between owner and lien claimant.
51 Nev. 291, 296 (1929) Reno Electrical Works v. Ward
when applied in cases between owner and lien claimant. Compare: 26 C.J. 688, sec. 58, and
26 C.J. 695, sec. 81.
OPINION
Per Curiam:
This is an appeal from a judgment and also from an order denying and overruling a motion
for new trial. The parties will herein be designated as in the trial court.
The facts, in brief, are these: Prior to the commencement of the action, the defendant T. O.
Ward, as owner in fee, leased to the defendant Kyne Investment Company of Nevada, a
corporation, that certain building erected many years ago on lots 4 and 5, in block Q of the
city of Reno, situate on Center Street. The lease contract is not made a part of the record. On
taking possession of the building in April, 1923, the lessee opened and conducted a restaurant
therein, known as Kyne's Cafe, until the latter part of August or the first of September of
that year, when it failed, went out of business, and its property was taken over by its creditors
and the lease abandoned and forfeited.
During the tenancy, and in the month of July, 1923, the plaintiff, Reno Electrical Works,
Inc., a corporation, at the special instance and request of the lessee, furnished and installed in
said restaurant fifteen electrical fans of different sizes, but nothing distinctive or peculiar
about their construction. Two of the fans were placed in an inclosure above the ranges in the
restaurant, one in the front, and the other in the rear of the building, which fans are designated
as exhaust fans, and used for the purpose of expelling smoke and odors arising from
cooking. The other fans are designated oscillating fans, set at different places in the
restaurant, and used for purposes of ventilation. The insulating material for the exhaust fans
was secured to the walls of the building by screws and nails and the oscillating fans by nails.
The aggregate charge made for the fans, insulating material, and labor was $1,005.70, which
the lessee agreed to pay, and did pay on said amount the sum of $357.50 which left a
balance due for the fans, material and labor so furnished the sum of $64S.20.
51 Nev. 291, 297 (1929) Reno Electrical Works v. Ward
sum of $357.50 which left a balance due for the fans, material and labor so furnished the sum
of $648.20. Having failed to receive payment of said sum, the plaintiff on September 13,
1923, filed its claim of lien against lots 4 and 5 and the building thereon owned by defendant
lessor, T. O. Ward.
This action was commenced to recover judgment of $648.20 and for the foreclosure of the
plaintiff's claim of lien. The case was tried to the court without the assistance of a jury, which
resulted in a decision in favor of the plaintiff and against the defendant T. O. Ward. Upon the
rendition of its decision, the court made and caused to be entered, over the objections of the
defendant, its findings of fact and conclusions of law, and, upon its findings and conclusions,
rendered the judgment from which the defendant appeals.
The defendant incorporated in its answer to the plaintiff's amended complaint several pleas
in bar in the nature of pleas in abatement. In view of the conclusions we have reached, it is
not deemed necessary to state and discuss the pleas.
The primary and basic question presented for decision is whether the plaintiff acquired a
valid lien as against the lessor and owner of the lots and building thereon, for the whole or
any part of its claim of $648.20.
Section 1 of an act approved March 2, 1875 (section 2213, Rev. Laws of Nevada),
provides that Every person performing labor upon, or furnishing material of the value of five
($5) dollars or more, to be used in the construction, alteration or repair of any building or
other superstructure, railroad, tramway, toll road, canal, water ditch, flume, aqueduct or
reservoir, building, bridge, fence, or any other structure, has a lien upon the same for the work
or labor done or material furnished by each, respectively, whether done or furnished at the
instance of the owner of the building or other improvement, or his agent. * * *
The plaintiff alleged in its complaint that the material and labor supplied was actually used
in the alteration, repair, and construction of the defendant's building.
51 Nev. 291, 298 (1929) Reno Electrical Works v. Ward
The finding of fact made by the court does not support the allegation. The court's finding
reads as follows: That the electrical fixtures, wiring and fans installed in the said premises
by the said plaintiff became fixtures to the building and realty and were subject to lien.
1, 2. It will be observed that the statute quoted does not specifically, or otherwise, mention
fixtures, but it does use the expression or other improvement. It is held, in many cases cited
from other jurisdictions, that a mechanics' lien may be acquired for labor performed or
material furnished in connection with the furnishing and installation of fixtures; that is,
articles which were at one time personal property, but which are so attached to the realty as to
become a part thereof. 40 C.J. 70. It is not now considered as absolutely necessary that an
article be actually fastened to the freehold in order to make it a part thereof. The all-important
questions are the intention of the person who brings it upon the land, the use to which it is to
be applied, and its fitness for that purpose. Dawson v. Scruggs-Vandervoort-Barney Realty
Co., 268 P. (Colo.) 584. The mere fact that the fans were a necessity for the tenant to carry on
its business is not sufficient to subject the defendant lessor's property to the lien. The material
and labor furnished related solely to the defendant's business. There is nothing in the evidence
to show that it was the intention of the lessee or the lessor that the fans and insulating
material were intended to be or become a part of the realty. It is true the insulating material
was secured to the walls of the building by screws and nails, but not so secured as that the
fans and materials could not be removed without injury to the insulation, and also the
building. The proof shows that they were actually removed from the walls and the building
subsequently rented to a Chinese physician.
3. The material furnished had no relation to the permanent improvement of the property of
the lessor or the enhancement of its value. But if we assume that they were improvements,
they were merely trade fixtures, which did not constitute an integral part of the realty.
51 Nev. 291, 299 (1929) Reno Electrical Works v. Ward
fixtures, which did not constitute an integral part of the realty. Consequently plaintiff's claim
of lien was not established. Mechanic's lien statutes do not allow a lien for trade fixtures or
chattels, fixtures, improvements, or additions which a tenant will be permitted to remove at
the expiration of his term. 40 C.J. 71. Entertaining this view, we are of opinion that the trial
court erred in finding and in concluding from its findings that as a matter of law the material
and labor furnished by plaintiff constituted a part of the defendant realty and subject to lien.
The judgment is reversed.
____________
51 Nev. 299, 299 (1929) Sagardia v. Bank
SAGARDIA v. STOCKGROWERS' & RANCHERS'
BANK
No. 2811
March 1, 1929. 274 P. 811.
1. EvidenceBook Materially Altered Cannot Go to Jury Unless Party Offering it Explains
Alterations, Unless Alterations are Immaterial.
A book materially erased or altered cannot go to the jury unless the party who offers it explains the
erasures or alterations, except, however, where the erasures are immaterial.
2. Appeal and ErrorSupreme Court Must Infer that Trial Court Sitting as Jury, Admitting in
Evidence Bank Book which Contained Erasure, Determined its Competency; Findings
Not Explaining Erasure.
Where depositor sued bank for alleged balance of savings account, and bank book, not in same
condition it was when issued by bank to plaintiff, in that there appeared an erasure on line immediately
following last entry, was admitted in evidence over bank's objection, and the findings of trial court were
silent as to the explanation given of the erasure, supreme court must infer that trial court determined that
book was not only competent evidence, but that court sitting as jury passed on credit to be given the book
in its erased condition.
3. Appeal and ErrorWeight of Evidence Held for Court Sitting as Jury.
Trial court sitting as jury was proper judge of weight to be given bank book containing erasure which
was admitted in evidence in suit against bank for deposit.
C.J.CYC. REFERENCES
Appeal and Error4 C.J. sec. 2700, p. 758, n. 61; sec. 2830, p. 844, n. 66.
Evidence22 C.J. sec. 1203, p. 967, n. 73.
51 Nev. 299, 300 (1929) Sagardia v. Bank
Appeal from Second Judicial District Court, Washoe County; George A. Bartlett, Judge.
Action by John Sagardia against the Stockgrowers' & Ranchers' Bank of Reno and another.
From judgment for plaintiff and order denying a new trial, the named defendant appeals.
Affirmed.
James T. Boyd, for Appellant:
That the book of the depositor in this case was evidence against the bank as to its
indebtedness to the depositor is well-settled law, but the book must appear to be regular on its
face and the entries in the book must be made by the bank or its officials. If the book is
altered in any manner and particularly by erasures, the book is of no value as evidence unless
the erasures or the alterations are explained. Morse on Banks and Banking, vol. 1, sec. 295,
and notes; McLennan v. Bank of California, 89 Cal. 575; Pauly v. Pauly, 107 Cal. 24; Blinn
Lumber Co. v. McArthur, 150 Cal. 614; Culner v. Marks, 7 L. R. A. 489 and note page 495;
Faxon v. Hollis, 13 Mass. 427; Jones on Evidence, sec. 569; Rev. Laws of Nevada, sec. 5418;
State of Nevada v. Manhattan S. M. Co., 4 Nev. 326.
If the decision of the court in this matter is the law of the land in these classes of cases, then
there is no evidentiary value to be placed upon a bank's books. When we find, as in this case,
the depositor's book altered and erasures on it, the bank's books which are kept in the ordinary
course of business showing the payment, and a judgment can be given upon an altered and
erased depositor's books, it leaves the bank completely at the mercy of any person who would
present an altered bank book and explain the alterations by saying, I don't know anything
about it. The conflict between the two books should certainly have been in favor of the
books kept in the regular course of business, rather than the book upon whose very face
suspicious circumstances appear to such an extent that it would require the clearest testimony
to explain.
51 Nev. 299, 301 (1929) Sagardia v. Bank
Ayres & Gardiner, for Respondent:
Since the bank books, plus the evidence of the bank officers in extension thereof, were
freely admitted, we fail to see what bearing authorities to the effect that the books were
admissible can have upon this case. What we contend is that the payment alleged by
appellant's answer was an affirmative defense which it had the burden of proving, and which
its books alone were not sufficient to prove. We contend further that books of a bank which
do not show how or to whom payment was made, and particularly do not show that payment
was made to the depositor or his authorized agent, are not competent evidence of money paid
to any particular person. We contend that the books of appellant fail absolutely to show that
the sum in question was ever paid to plaintiff or his authorized agent, or to any other
particular person. If they show payment at all, which we doubt, they merely show that fact
only, and fail to show what is required of a bank to be shown when it sets up payment. The
case of Goddard v. Citizens National Bank (Kan.), 224 P. 59, is exactly in point with the
instant case. The complaint, answer, denials and evidence are similar to this case. We might
rest our case upon that case alone. But we cite the following other authorities, mostly for the
purpose of showing that the above-cited case is not only in line with the authorities to which
it refers, but is in line with all of the authorities. 21 R. C. L. 119 (Payment, sec. 131), and
note 11; in 17, 2d Decennial Digest (1907 to 1916), under the heading of Payment, subtitle
Burden of Proof, Key No. 65 (6), are numerous comparatively late cases digested as
follows: Payment is an affirmative defense, and the burden of proving it is upon him who
alleges it. See, also, Scott v. Austin, 152 P. 1178, 47 Utah, 248; Baldwin v. Porter, 104 N. E.
492, 217 Mass. 15; Barrett-Hicks Company v. Glas, 111 P. 760, 14 Cal. App. 289; Essex etc.
v. Danforth, 88 A. 561, 111 Me. 212; 39 Century Digest, Payment, secs 19, 197, 199. There
are so many cases cited that we have selected only one from each heading.
51 Nev. 299, 302 (1929) Sagardia v. Bank
we have selected only one from each heading. Payment must be established by
preponderance of evidence. 21 R. C. L. 120, sec. 132, and cases cited in n. 15; see notes 42 A.
S. R. 317; 55 A. S. R. 960; Shulman v. Brantly, 50 Ala. 81; Perot v. Cooper, 28 P. 391, 31 A.
S. R. 258; Ford v. Lawrence, 51 S. W. 1023. While there do not seem to be any Nevada cases
absolutely in point, we believe that the following cases indicate the same ruling in this State.
Isola v. Sorani, 47 Nev. 365 (see especially p. 368); Devencenzi v. Cassinelli, 28 Nev. 232,
273, 81 P. 441, 449; Roberts etc. v. McKim, 34 Nev. 191.
The same rule applies to banks. 7 C. J. 876, sec. 943, Evidence, and n. 89; Rimkus v.
Tananecivz, 207 Ill. App. 96; Noah v. Bank, 122 N. E. 235; Goddard v. Bank (Kan.), 224 P.
59.
Bank must show not only that payment was made, but that it was made either to the
depositor or some one authorized by him, the burden being on the bank to prove each of these
elements. 7 C. J. 672, and cases cited in notes 63 and 64; 7 C. J. 675, sec. 393, and cases cited
in note 11; 7 C. J. 756, sec. 568, note 44; 7 C. J. 868, sec. 916, and cases cited in note 6.
These facts must be proved by evidence in addition to a mere credit entry upon the books
of the bank. Boyd v. Wilson, Federal Case No. 1751, 2 Cranch C. C. 525; Clark v. Wells, 71
Mass. 69; Schwartz v. Allen, 7 N. Y. S. 5.
The pass book was admissible in evidence, and even if it had not been no harm was done
to appellant. The only facts that the pass book could prove were the rules of the bank and the
deposits made by respondent. The pass book contained a complete set of rules, which, under
the law, constitute the contract between appellant and respondent. 6 C. J. 864, note 53, etc.; 1
Ann. Cas. 98; 14 Ann. Cas. 479.
OPINION
By the Court, Sanders, J.:
The plaintiff, John Sagardia, sued the Stockgrowers' & Ranchers' Bank of Reno, herein
called Stockgrowers' Bank, and made the Scheeline Banking & Trust Company a party.
51 Nev. 299, 303 (1929) Sagardia v. Bank
Bank, and made the Scheeline Banking & Trust Company a party. The action was brought on
March 8, 1927, for an alleged balance of savings account with the Stockgrowers' Bank,
amounting to $4,428.51. The Scheeline Banking & Trust Company was made a party
defendant, presumably upon the allegation contained in plaintiff's complaint to the effect that
on December 31, 1923, the said bank purchased all the assets of the Stockgrowers' Bank and
assumed all the liabilities of the seller to its depositors. The case comes before us upon appeal
from the judgment in favor of the plaintiff and against the Stockgrowers' Bank for the sum of
$5,398.23, and from an order denying and overruling its motion for new trial. The Scheeline
Banking & Trust Company being out of the case on appeal, the parties herein will be
designated as in the trial court.
The complaint alleges, and the answer of the defendant admits, the allegation contained in
the complaint that at various and divers times between about the 21st day of December, 1917,
and June 6, 1919, plaintiff deposited with said defendant, Stockgrowers' & Ranchers' Bank of
Reno, various and divers sums of money, which said last-named defendant received from
plaintiff, and, in accordance with its rules and regulations, agreed to keep for plaintiff, subject
to his right to withdraw the same, and to pay him interest on all such sums at the rate of 4 per
cent per annum compounded semiannually upon the first days of January and July of each
year.
The complaint alleges generally, and the answer of the defendant admits, that at the time
said deposits were made, they were made in accordance with the rules, conditions, and
regulations published and printed in a depositor's pass book issued to each depositor and
made a part of the contract between the plaintiff and the defendant.
The complaint alleges, and the answer of the defendant admits, rule 13 of said rules and
regulations inserted in the complaint in respect to interest.
The complaint alleges, and the answer of the defendant admits, that rule 5 of said rules
reads, in part, as follows: "When an account is closed the bank book shall be returned to
the bank."
51 Nev. 299, 304 (1929) Sagardia v. Bank
follows: When an account is closed the bank book shall be returned to the bank.
The answer of the defendant alleges: That on the 23d day of August, 1922, one John
Sagardia had on deposit in the savings department of the defendant, Stockgrowers' and
Ranchers' Bank of Reno, the sum of $4,428.51. That on the said 23d day of August, 1922, the
said sum of $4,428.51 was paid to the depositor and the said account was closed upon the
books of the defendant.
The plaintiff filed a reply to the defendant's answer and denied the averment of payment
and reiterated his prayer for judgment.
Upon the issues thus framed, the action was tried to the court without a jury. Findings of
fact and conclusions of law were entered in accordance with the court's decision. All the
allegations of the complaint were found to be true and that the sums deposited by plaintiff
with defendant, together with interest thereon, aggregated the sum of $4,428.51 on June 30,
1922, and that said deposits with interest to July 1, 1927, amounted to $5,398.23. In
accordance with its findings of fact and conclusions of law, judgment was rendered against
the defendant for the amount stated.
Counsel for the plaintiff takes the position on appeal that, upon the issues as framed by the
pleadings, the controversy between the parties is as to whether the defendant on the 23d day
of August, 1922, or upon any other date, paid to plaintiff said balance of savings account,
amounting to $4,428.51, or any part thereof. Counsel for the defendant takes the position that
the immediate question presented by the appeal is whether, upon the record before us, the
plaintiff is entitled to recover.
Error is assigned to the trial court admitting in evidence plaintiff's pass book over the
defendant's objections. The greater part of the brief of counsel for the defendant is confined to
the discussion of the alleged error. The ground of objection to the admission of the pass book
was that it was not in the same condition it was in when issued by the defendant to the
plaintiff, in that there appears an erasure on the line immediately following the last entry
made in the book on June 30, 1922, showing said balance of $4,42S.51.
51 Nev. 299, 305 (1929) Sagardia v. Bank
was in when issued by the defendant to the plaintiff, in that there appears an erasure on the
line immediately following the last entry made in the book on June 30, 1922, showing said
balance of $4,428.51. The book is made a part of the record and was brought here for our
own examination and inspection to determine whether the erasure destroyed the book as
evidence. Counsel argues with considerable force that the admission of such a book as
evidence would open a door to frauds and perjuries and place books, evidently fair, on the
same footing with those fabricated for a particular purpose, and that to allow such a book to
be admitted in evidence would subject this sort of evidence to the danger of great abuse, and
tempt dishonest men to commit fraud by altering books, so as to adapt them to circumstances.
It is further argued that if the book in question, in its erased condition, be considered as proof
of its contents, it would leave banks completely at the mercy of any person who would
present an altered pass book and explain the alteration by saying, I didn't know anything
about it. We appreciate the argument, but under the particular facts and circumstances of this
case, the argument is not persuasive.
1-3. A book materially erased and altered cannot go to the jury unless the party offering it
explains the erasures or alterations. Otherwise, however, of immaterial alterations. Abbots'
Proof of Facts (3d ed.) 84. It is our understanding that the erasure had to be explained to the
reasonable satisfaction of the judge before the book could be admitted in evidence. The
Modern Law of Evidence, Chamberlayne, vol. 4, sec. 3103. The record discloses that when
the book in question was offered, it was exhibited to the court below and was considered
admissible in evidence if the erasure appearing thereon was explained. The findings of fact of
the trial court are silent as to the explanation given of the erasure, and we must infer that the
court determined that the book was not only competent to be admitted in evidence and, sitting
as a jury, it passed on the credit to be given the book in its erased condition. The court was
the proper judge of its weight, as all other evidence laid before it.
51 Nev. 299, 306 (1929) Sagardia v. Bank
was the proper judge of its weight, as all other evidence laid before it. We find no error in the
court's ruling.
It is contended on the part of the defendant that the evidence is insufficient to support or
maintain the judgment.
The facts are simple and undisputed. The evidence is clear and points to but the single
conclusion that the balance of plaintiff's account on deposit with the defendant bank was not
paid as alleged in its answer, or at all, and that the plaintiff was entitled to recover as
adjudged by the trial court.
The judgment and the order appealed from are affirmed.
____________
51 Nev. 306, 306 (1929) Nickovich v. Mollart, Et Al.
NICKOVICH v. MOLLART, Et Al.
No. 2815
March 1, 1929. 274 P. 809.
1. AliensNaturalization Proceedings Before Courts Having Necessary Jurisdiction Are
Judicial in Character.
Naturalization proceedings before courts having the necessary jurisdiction are judicial in their nature,
and not administrative in character; the court in passing upon the application exercising its judicial
judgment.
2. Libel and SlanderWitness Testifying by Direction of Court in Legal Proceeding Is Not
Liable for Answers to Questions Relevant and Pertinent to Subject of Inquiry, though
They Are False or Malicious.
Where witness testifies in the regular course of legal proceeding, and under the direction of court, he
is not liable for answers made by him to questions by court, provided answers of witness are relevant and
pertinent to subject of inquiry, whether or not they are false or malicious.
3. Libel and SlanderStatements of Witness in Naturalization Proceeding that Alien Was
Living in Adultery with Plaintiff Held Privileged.
Where nothing is shown in complaint except that an alleged slanderous statement that alien was living
in adultery with plaintiff was made by the defendant as a witness in judicial proceeding, the same must be
regarded as absolutely privileged, in view of act Cong. June 29, 1906, sec. 4 (8 USCA, sec. 382), making
good moral character qualification for naturalization.
51 Nev. 306, 307 (1929) Nickovich v. Mollart, Et Al.306
4. Appeal and ErrorSupreme Court Must Presume that Answers by Witnesses Alleged To
Be Slanderous in Naturalization Proceeding were Relevant and Pertinent to Subject of
Inquiry.
In the absence of any averment in complaint showing that an alleged slanderous statement was made by
defendants as witness in naturalization proceeding, supreme court must presume that answers were relevant
and pertinent to subject of inquiry.
5. AliensApplicant for Citizenship Must Allege in Petition Fulfillment of Conditions upon
which Right to Become Citizen Depends and Establish Allegations by Competent
Evidence.
An applicant for citizenship must allege in his petition fulfillment of all conditions upon existence of
which his right to become citizen is made to depend, and must establish allegations by competent evidence
to satisfaction of the court.
6. AliensAlien Committing Adultery Is Not Entitled to Admission to Citizenship.
Admission of person guilty of adultery, and therefore immoral, to citizenship is contrary to provisions of
act Cong. June 29, 1906, sec. 4 (8 USCA, sec. 382), and therefore illegal.
C.J.CYC. REFERENCES
Aliens2 C.J. sec. 138, p. 1115, n. 2; sec. 145, p. 1120, n. 50; sec. 146, p. 1121, n. 55; sec. 148, p. 1122, n.
81.
Appeal and Error4 C.J. sec. 2700, p. 757, n. 44.
Libel and Slander36 C.J. sec. 237, p. 1258, n. 25.
Appeal from Eighth Judicial District Court, Lyon County; Clark J. Guild, Judge.
Action by Anna Nickovich against E. W. Mollart and another. Judgment dismissing
action, and plaintiff appeals. Affirmed.
H. Pilkington, for Appellant:
The trial court took the attitude that the testimony of a witness in a naturalization
proceeding was a privileged communication and as such, having such status, the witnesses
could not be attacked for the truth or falsity of their statements in any proceeding for slander.
We respectfully submit that this conception was a heresy in the mind of the honorable court,
and that the court thereby arrived at an erroneous conclusion. Slander is the defaming of a
person in his or her reputation by speaking words that affect his or her life, office,
profession or trade, or means of getting a livelihood, or which tend to his or her special
damage, and words imputing want of chastity or the commission of adultery are
slanderous and actionable.
51 Nev. 306, 308 (1929) Nickovich v. Mollart, Et Al.
by speaking words that affect his or her life, office, profession or trade, or means of getting a
livelihood, or which tend to his or her special damage, and words imputing want of chastity
or the commission of adultery are slanderous and actionable. Newell on Slander (4th ed.) 28.
A privileged communication is a communication which under ordinary circumstances
would be defamatory, but given in the course of a proceeding which exonerates the slander,
however defamatory, so that slander will not lie, though the statement be false, unless actual
malice be proved in addition. We respectfully contend that actual malice by the defendants
and respondents was alleged in each and every attempt appellant made to have her complaint
prevail before the court. That the complaint shows a cause which should have been heard by a
jury and the malice proved by the plaintiff, under the full instructions of the court as to the
privileged character, and not to be estimated on the pleadings.
The communication must needs be shown to have been responsive and not volunteered by
the witness, maliciously and willfully, and interjected by him for ill purpose, and any
testimony so given loses its status as a privileged communication, and the witness becomes
liable in action for slander. Newell on Slander, sec. 375; Shadden v. McElwee, 86 Tenn. 146.
We think privileged communications and the legal position of a witness is a defense.
Newell on Slander, sec. 570.
Privileged communications are not extended to ex parte proceedings. Newell on Slander,
454.
The attention of the court is called to the fact that this was a proceeding on behalf of Tom
Markovich for naturalization, and this plaintiff was not a party thereto; that this appears from
the pleading; that the defendants sought an opportunity of making a communication in the
presence of the very persons most likely to act upon it to the prejudice of the plaintiff; that no
confidential relation is shown between the witnesses and the examiner in naturalization, and
if such there were, it should be pleaded and not assumed from any pleading of the plaintiff.
51 Nev. 306, 309 (1929) Nickovich v. Mollart, Et Al.
it should be pleaded and not assumed from any pleading of the plaintiff.
Our Nevada code has provided that in an action for slander it shall be sufficient to state
generally that the same was spoken or published concerning the plaintiff, and that the
defendants shall show mitigating circumstances in his proofs. Rev. Laws of Nevada, sections
5073-4.
Platt & Sanford, for Respondents:
Respondents submit that appellant has misapprehended the attitude of the trial court. No
such broad and unqualified rule as stated by counsel was stated or applied by the trial court.
The rule the trial court did state and apply was set forth in the opinion. It was, first, that the
occasion was privileged, because it was an occasion of testimony by a witness in a judicial
proceeding, to wit, a naturalization proceeding. The communication was prima-facie
privileged. Second, the communication was privileged because it was testimony given on a
privileged occasion, which was pertinent to the issue and given bona fide. Being thus
privileged the words were not actionable even if false and animated by express malice or ill
will.
Had the exact words of the testimony been set up in the complaint the court could have
more accurately determined the question of pertinency and relevancy and good faith. They
might have furnished some facts to fortify the conclusion of malice. But even in their
absence we submit a proper decision was arrived at.
As a general rule libelous or slanderous matter published in due course of a judicial
proceeding is absolutely privileged, and will not support an action for defamation although
made maliciously and with knowledge of its falsity. 25 Cyc. 376; Hollis v. Meux, 69 Cal.
625, 11 P. 248; 58 Am. Dec. 757. See, also, 30 C.J. 1237, sec. 203; 36 C.J. 1218, sec. 167;
Gosewisch v. Doran, 161 Cal 511, 119 P. 656; Ann Cas. 1913d, 442; 36 C.J. 1239, sec. 204;
36 C.J. 1250, sec. 223.
As to limitation of this rule, to matter relevant and pertinent to the proceeding, see 25
Cyc.
51 Nev. 306, 310 (1929) Nickovich v. Mollart, Et Al.
pertinent to the proceeding, see 25 Cyc. 378, n. 59; notes to Cooper v. Phipps (Ore.), 22 L. R.
A. 836, 33 P. 985; Newell on Slander and Libel, sec. 370 (4th ed.); 36 C.J. 1251, sec. 225;
Miller v. Gust, 71 Wash. 139, 127 P. 845; Abbott v. National Bank of Commerce, 56 P. 376,
175 U. S. 409 (cited by trial court); Myers v. Hodges, 53 Fla. 197, 44 S. 357; Keeley v. Great
Northern R. Co., 145 N. W. 664; 36 C.J. 1251, sec. 226; Simon v. London Guar. Co., 16 A.
L. R. 743 and notes, 104 Nebr. 524, 177 N. W. 824; Kemper v. Fort, 219 P. 85, 13 L. R. A.
(N.S.) 820, 67 Atl. 991.
But if a defamatory charge against a third person is inseparable connected with a
privileged communication concerning another, it will be protected by the privilege. 18 A. &
E. Encl. L. (2d ed.), 1025; 36 C.J. 1242, sec. 207; Johnson v. Brown, 13 W. Va. 71, at pp.
136, 137, 138; Etchison v. Pergerson, 88 Ga. 620, 15 S.E. 680; 17 R. C. L. 336, sec. 83, p.
339, sec. 87; Jones v. Brownlee, 61 S. W. 795, 53 L. R. A. 445; Crockett v. McLanahan, 109
Tenn. 517, 72 S.W. 950, 61 L.R.A. 914.
There seems no dispute that this was a judicial proceeding. However, there is authority for
the statement that naturalization proceedings are judicial proceedings. 23 Cyc. 1615, n. 28;
Green v. Salas, 31 Fed. 106, 107; 23 Cyc. 1622, n. 79; In Re Tinn, 84 P. 152; U.S. v. Norsch,
42 Fed. 417.
Privilege need not be set up by answer when the complaint shows privilege not abused. It
may be raised by demurrer. Gosewisch v. Doran, 119 P. 656, 658; Miller v. Gust, 127 P. 845,
syllabus 3 and opinion; Johnson v. Brown, 13 W. Va. 71, syllabus 5; Crockett v. McLanahan,
72 S. W. 950, at 952; Hartung v. Shaw, 130 Mich. 177, 89 N. W. 701.
What a demurrer admits, see Goldstein v. Healy, 201 P. 462, at 463; Edwards v. City of
Reno, 45 Nev. 135, 198 P. 1090; In Re Parrott's Estate, 45 Nev. 318, 203 P. 258.
As to setting out specific words alleged to be slanderous, see Rapp v. Parker, 193 S. W.
535, syllabus 1; 9 Ann. Cas. 495.
51 Nev. 306, 311 (1929) Nickovich v. Mollart, Et Al.
As to alleged slander on a third party, see Etchison v. Pergerson, 15 S. E. 680; Cooley v.
Galyon, 109 Tenn. 1.
Counsel relies almost entirely for authority on Newell on Slander and Libel (4th ed.) That
book has been only recently available to us, and we are almost totally unable to identify the
references and to understand their bearing on this case. The pleadings in this case contain no
allegation of facts to the effect that the testimony was not responsive or that it was
volunteered or interjected or to show it was malicious. The court will not presume that which
plaintiff was unable to aver in her complaint. Practically all the matter in Newell's (4th ed.)
relevant to this case is in sections 340 to 389, pp. 377 to 415. The cases cited under sec. 370
are directly pertinent.
For a case on all fours with instant case, see Liles v. Gaster, 42 Ohio State, 631, followed
in 19 C. C. (N.S.) (Ohio), where demurrer were sustained. See, also, Vogel v. Gruaz, 110
U.S. 211, 28 L. Ed. 158. For full notes on testimony of a witness privileged, see 12 A. L. R.
1247.
Appellant states a misleading summary of sec. 5073, Rev. Laws. This section is identical
with sec. 460 California Code of Civil Procedure, the decisions construing which are noted in
16 Cal. Juris. 83.
OPINION
By the Court, Sanders, J.:
This is an appeal from a judgment of dismissal of the plaintiff's action, entered upon an
order sustaining the defendant's demurrer to the second amended complaint filed in the cause.
The complaint reads as follows;
That during the month of October 1925 there was heard in this District Court of the State
of Nevada for the Eighth Judicial District in and for Lyon County, the application of one Tom
Markovitch for citizenship in the United States of America. That this plaintiff was not a party
to the said application but that the former husband of the plaintiff was a partner of the said
Tom Markovich and the husband of the plaintiff is now deceased and since the decease of
her said husband has been a partner and co-owner with the said Tom Markovich in a
ranch business in Smith Valley, Lyon County, State of Nevada.
51 Nev. 306, 312 (1929) Nickovich v. Mollart, Et Al.
Tom Markovich and the husband of the plaintiff is now deceased and since the decease of her
said husband has been a partner and co-owner with the said Tom Markovich in a ranch
business in Smith Valley, Lyon County, State of Nevada.
That during the month of October 1925 in the course of the said proceeding and at other
times during the said month of October in Lyon County, Nevada, and at Yerington, Nevada,
the defendants E. W. Mollart and Eleanor Mollart falsely and maliciously and with the intent
to injure the plaintiff and to do her harm, spoke in the hearing of the court, the judge thereof
and the officers of the said court, the attending clerk, the Sheriff of Lyon County, the
witnesses and the spectators, attending the court, and the U. S. Examiner in Naturalization,
and sundry other persons: false and slanderous words concerning the plaintiff, that the
plaintiff was guilty of adultery with the said Tom Markovich and that the said Tom
Markovich was the father of the children of the plaintiff, born to her while living in lawful
wedlock and still married to her husband, Nick Nickovich, now deceased; that the plaintiff
had been sold by her said former husband, now deceased, to Tom Markovich for immoral
purposes; that the plaintiff was a willing white slave, that the children of the plaintiff and of
her said former husband, were the children of Tom Markovich and not of her said husband,
and that plaintiff was guilty of adultery and lewd cohabitation with the said Tom Markovich.
That all of said statements of the defendants were untrue and false and the defendants
knew that the said statements made by them were untrue and false and that the said
statements were malicious and intentionally and knowingly malicious. That the said
statements were made to harm and discredit the plaintiff and were the fruit of the sheer malice
of the defendants.
The defendant demurred to the pleading upon several grounds: (1) That there is a defect or
misjoinder of parties; (2) that several causes of action have been improperly united; {3) that
the complaint is ambiguous, unintelligible, and uncertain; {4) that the complaint does not
state facts sufficient to constitute a cause of action, in that it affirmatively appears
therefrom that the purported statements attributed to the defendants were made during
a judicial hearing in the court below in the matter of the application of Tom Markovich to
be admitted as a citizen of the United States, and that all the statements made in the
course of that judicial proceeding were and are privileged.
51 Nev. 306, 313 (1929) Nickovich v. Mollart, Et Al.
improperly united; (3) that the complaint is ambiguous, unintelligible, and uncertain; (4) that
the complaint does not state facts sufficient to constitute a cause of action, in that it
affirmatively appears therefrom that the purported statements attributed to the defendants
were made during a judicial hearing in the court below in the matter of the application of
Tom Markovich to be admitted as a citizen of the United States, and that all the statements
made in the course of that judicial proceeding were and are privileged.
1. The basic question for determination is whether the defamatory statements set forth in
the pleading are privileged. Counsel for appellant seems to contend that a naturalization
proceeding is ex parte, and that the rule of privilege does not extend to an ex parte
proceeding. It is now settled that naturalization proceedings before courts having the
necessary jurisdiction are judicial, not administrative, in character, and that in passing upon
the application the court exercises judicial judgment. In Re Stasinopulos (D. C.) 21 F. (2d)
71; Tutun v. United States, 270 U.S. 568, 46 S. Ct. 425, 70 L. Ed. 738.
2. It must be conceded that, where a witness testifies in the regular course of legal
proceedings and under the directions of the court, he is not liable for the answers he may
make to questions put to him by the court or counsel, provided the answers of the witness are
relevant and pertinent to the subject of inquiry, whether or not they re false or malicious. See
36 C.J. 1250-1257, and cases cited in notes.
3, 4. The pleading in this instance is liable to criticism, in that it states inferences and
conclusions rather than direct allegations. It is held that, where nothing is shown in the
complaint except that an alleged slanderous statement was made by the defendant as a
witness in a judicial proceeding, the same must be regarded as absolutely privileged.
Hutchinson v. Lewis, 75 Ind. 55. So in the absence of any averment in the complaint to the
contrary, we must presume that the answers were relevant and pertinent to the subject of
inquiry. Liles v. Gaster, 42 Ohio St. 631.
51 Nev. 306, 314 (1929) Nickovich v. Mollart, Et Al.
It is clearly inferable from the allegations of the complaint under review that the subject of
inquiry was the qualifications of Tom Markovich to become a citizen of the United States,
and it is also inferable from the allegations of the complaint that his application was opposed
by the government upon the ground that the appellant had not behaved as a man of good
moral character as to entitle him to citizenship.
5. An applicant for citizenship must allege in his petition the fulfillment of all conditions
upon the existence of which his alleged right is made to depend, and must establish these
allegations by competent evidence to the satisfaction of the court. Tutun v. United States,
supra.
It is inferable from the allegations of the complaint that the application of Tom Markovich
was opposed upon the ground that he did not possess all of the qualifications made requisite
by the naturalization act of Congress of June 29, 1906 (34 U.S. Stats. at Large, 596, c. 3592,
sec. 4; 8 U.S.C.A, sec. 382.
The naturalization act provides that, to authorize the naturalization of an alien it must be
shown that he has resided continuously within the United States, five years at least, and
within the state or territory where such court is at the time held one year at least, before his
application, and that during that time, he has behaved as a man of good moral character,
attached to the principles of the Constitution of the United States, and well disposed to the
good order and happiness of the same.
6. Under the accepted standard in this country, a person committing adultery is an immoral
person, and admission of such a person to citizenship is contrary to the provisions of the
statute and illegal. United States v. Unger (D.C.) 26 F. (2d) 114.
The fact that defendants, as witnesses in the matter of the application of Tom Markovich
for citizenship, charged the plaintiff with being the person with whom the applicant
committed adultery, does not deprive them of their protection under the rule of absolute
privilege.
51 Nev. 306, 315 (1929) Nickovich v. Mollart, Et Al.
of their protection under the rule of absolute privilege.
For the reasons stated, we conclude that the demurrer to the complaint was properly
sustained, and the judgment of dismissal of the action is affirmed.
On Petition for Rehearing
April 10, 1929.
Per Curiam:
Rehearing denied.
____________
51 Nev. 315, 315 (1929) Hobart Estate Co. v. Jones, Et Al.
HOBART ESTATE CO. v. JONES, Et Al.
No. 2820
March 1, 1929. 274 P. 921
1. Appeal and ErrorAppellate Court, in Absence of Evidence, Must Indulge Every
Presumption in Favor of Lower Court Holding.
Where there is no evidence before supreme court on appeal every presumption must be indulged that
there was a showing in lower court warranting its holding on particular question.
2. Mechanics' LiensJudgment Foreclosing Mechanic's Lien Held Not Erroneous because
Allowing Interest on Amount Due for Supplies Furnished.
Judgment in suit to foreclose mechanic's lien held not erroneous because awarding interest on amount
due for supplies furnished in accordance with Stats. 1917, p. 351 (3 Rev. Laws, p. 2855, sec. 4), pursuant
to allegation of complaint as to time when amount sued for became due, since Rev. Laws, sec. 2228, does
not limit amount of recovery therein to principal, but simply requires claimant to enter acknowledgment
of satisfaction when amount due is settled.
3. Constitutional LawStatutes Are Presumed Constitutional.
Every statute is presumed to be constitutional.
4. Mechanics' LiensLaws Authorizing Attorney's Fees to Prevailing Party, in Suit to
Foreclose Mechanic's Lien, Held Valid.
Rev. Laws, sec. 2224, allowing as part of costs, in suit to foreclose mechanic's lien, reasonable
attorney's fees to prevailing party, held valid.
C.J.CYC. REFERENCES
Appeal and Error4 C.J. sec. 2727, p. 777, n. 69.
Constitutional Law12 C.J. sec. 221, p. 791, n. 19.
Mechanic's Liens40 C.J. sec. 6, p. 46, n. 6; sec. 325, p. 263, n. 3.
51 Nev. 315, 316 (1929) Hobart Estate Co. v. Jones, Et Al.
Appeal from Sixth Judicial District Court, Pershing County; L. O. Hawkins, Judge.
Action by the Hobart Estate Company against Millie R. Jones, Elizabeth A. Rodgers, and
others. From a judgment foreclosing a mechanic's lien, and an order denying a motion for a
new trial, defendants named appeal. Affirmed.
Booth R. Goodman, for Appellants;
In this case no contractural relations existed between the appellants and respondents, and
respondent's claim, even against Walter W. Akers, was an unliquidated claim for the
reasonable value of materials alleged to have been used on appellants' buildings under lease
to Akers. Appellants could not have paid the amounts of the liens as they did not set forth the
materials or any itemized list thereof, and contained charges against Akers determined by the
court to be nonlienable, to wit, coal, which was used for domestic purposes. In view of the
fact that both liens are shown to contain nonlienable items in addition to being absolutely
unliquidated claims, no interest should be allowed against any party before judgment, and
certainly not against the owners of the land.
This claim of lien is clearly distinguished from the kind of lien which is enforced against
an owner upon a contract to pay to a contractor a definite and specified sum. In the
last-mentioned case, here is authority holding that interest may be allowed since the demand
is liquidated, but all authorities are to the fact that interest cannot be allowed where the
demand is unliquidated.
If the court will refer to the findings, it will be noted that in each case the trial court was
determining the reasonable value of the materials furnished; likewise, in the claims of lien,
the reasonable value of the materials furnished is the basis of the demand, and nowhere is
there any contention that a contract to pay a definite sum ever existed. We take this occasion
to call the attention of the court to the following authorities: Burnett v. Glass, 97 P. 423;
Macomber v. Bigelow, 5S P.
51 Nev. 315, 317 (1929) Hobart Estate Co. v. Jones, Et Al.
attention of the court to the following authorities: Burnett v. Glass, 97 P. 423; Macomber v.
Bigelow, 58 P. 312. In addition, we call attention to sec. 2228 of the Rev. Laws of Nevada,
providing that if any interested party pays the amount of the claims the lien shall be
discharged or a penalty exacted. Nothing is said about interest, and interest is not
comtemplated where the owner discharges the liens. How, therefore, could the lien claimant
recover interest?
In this case the court allowed an attorney fee of five hundred dollars and ordered the
foreclosure against the property of the appellants. We do not find the authority upon which
this attorney's fee is allowed, and while we may have overlooked at this time the section of
the law, we still submit that no valid law can exist which permits the recovery of such an
attorney's fee against any party to the suit, and certainly not as against the mere owners of the
property. The claims must find sound basis in our statutes for their existence. An attorney's
fee allowed to a lien claimant cannot be based on any law which is in itself unconstitutional.
Under the state and federal constitutions, every party litigant must come into court with equal
rights, and no law which permits a lien claimant to recover an attorney's fee, if successful, can
be permitted to stand as against the fundamental provisions of the constitution. Directly and
absolutely in point on this question is the case of Builders Supply Company v. O'Connor, 150
Cal. 265, 88 P. 982, 119 A.S.R. 193.
W. M. Kearney, for Respondents:
As to appellants' contention that no interest should be granted to respondent on its claims
prior to the date of the decree, it will be noted that all cases cited in appellants' brief in
support of the doctrine go back to and make reference to the case of Cox v. McLaughlin, 18
P. 100. And yet a careful analysis of that case shows that it does not support the rule as
contended by appellants, particularly when applying the facts of the case at bar.
51 Nev. 315, 318 (1929) Hobart Estate Co. v. Jones, Et Al.
at bar. In fact, the doctrine is in such a modified form that appellants' contention fails when
the proposition in its full significance is stated. It is clear from the holding in the case of Cox
v. McLaughlin, supra, that the respondent was rightly allowed and granted interest on the lien
claims, for it is clear that under the facts of the case at hand the value of the materials was
fixed and liquidated as to amount, in that they were susceptible of ascertainment either by
computation or by reference to market values or other known standards. There was nothing
so peculiar and unique in the character of the materials furnished as to preclude their
susceptibility to ascertainment by computation or by a reference to market values or other
known standards.
In addition, the case of Burnett v. Glass, 97 P. 427, cited at length by appellants, provides
in a paragraph not quoted by appellants that where the amount is so fixed by agreement that it
may be made certain by calculation, interest may be allowed prior to judgment.
The reason underlying the idea that no interest is allowable on unliquidated claims is that
there is no time of default from which to date the running of interest.
Again, the facts of the case at bar, if they could be considered by the court on an appeal on
the judgment roll alone, in the light of this basic theory, show beyond the shadow of a doubt
that they present a case separate and distinct from those in which interest has been denied.
Here, in addition to an amount capable of ascertainment by calculation, we have a definite
date from which to start the running of interest, i.e., the date provided in the agreement as that
when payment should be due, and that date was thirty days after delivery. The pleadings show
this fact.
In further support of this contention we cite 20 N.Y. 463. Likewise, the following cases
hold that if by contract the default may be fixed at a definite and certain time, then interest
may be granted, because the amount and not the right to recover is uncertain. 2 N. Y. 135; 4
Wend. 313; 2 Barb. 643; 36 N. Y. 255. The clearest case in point and one holding
unequivocally for the proposition contended for by respondent is that of Pacific Mutual
Life Insurance Co. v.
51 Nev. 315, 319 (1929) Hobart Estate Co. v. Jones, Et Al.
case in point and one holding unequivocally for the proposition contended for by respondent
is that of Pacific Mutual Life Insurance Co. v. Fisher, 39 P. 758, 760. See, also, 1 Ore. 183;
44 Md. 472; 116 Mass. 196; Van Rensselaer v. Jewett, 2 N. Y. 135, 139.
We call the notice of the court to vol. III of the Revised Laws of the State of Nevada, sec.
2499, at page 2855. It will be seen from an examination of the provisions there set forth under
the heading money and interest that provision is made in the statutes of this state for the
allowance of interest in cases such as the present one.
As to the allowance of attorney's fees, sec. 2224, Rev. Laws of Nevada, while covering
similar matters to sec. 1195 of the Code of Civil Procedure of California, is, however, unlike
sec. 1195 C. C. P. which was formerly held to be unconstitutional, in that sec. 2224, Rev.
Laws of Nevada, gives equal rights to both parties, in that an attorney's fee is allowed to the
prevailing party and not alone to the lien claimant as under the old California code section.
In conclusion, without the record of facts before it, this court could not determine whether
or not the lower court had evidence before it to award interest on the lien claim, and not
having the record must assume that the judgment is supported by the facts.
OPINION
By the Court, Coleman, J.:
This is an action to recover a personal judgment against certain of the defendants and to
foreclose a mechanic's lien. From a judgment foreclosing a mechanic's lien, and an order
denying a motion for a new trial, Millie Jones and Elizabeth A. Rodgers have appealed on the
judgment roll alone. Only two points are urged, namely, that the court erred in allowing
interest on the claim prior to judgment and in allowing an attorney's fee to the plaintiff.
51 Nev. 315, 320 (1929) Hobart Estate Co. v. Jones, Et Al.
The appellants were, in the year 1923, the owners of certain real estate in Pershing County
Nevada, which they leased to the defendant Walter W. Akers, who thereafter assigned his
lease to the Reservation Land & Cattle Company. The plaintiff sold and delivered to said
Akers, to be used in repairing and enlarging a certain building on said premises, building
supplies, and thereafter in due time filed its mechanic's lien statement. This suit was brought
to foreclose that lien. Certain other lien claimants were joined as defendants with Akers and
the appellants.
1. The first contention we will consider is that the court erred in giving judgment for
interest on the amount due for supplies furnished. In support of this contention we are
referred to the case of Burnett v. Glas, 154 Cal. 249, 97 P. 423, wherein it is held that the
claimant was not entitled to interest for the reason that the amount due was unliquidated. We
have no doubt but that the holding in that case was correct; but, in view of the fact that there
is no evidence before us, every presumption must be indulged that there was a showing in the
lower court that the claim in question was not an unliquidated claim as of the date from
which the court ordered that it draw interest.
2. Our statute provides that, when there is no express contract in writing fixing a different
rate of interest, interest shall be allowed at the rate of 7 per cent per annum upon all money
from the time it becomes due in certain cases, of which this is one. Stats. 1917, p. 351; 3 Rev.
Laws p. 2855, sec. 4. The complaint alleges the time when the amount sued for became due.
In the circumstances we must assume that the amount claimed fell due at the time fixed by
the court. There is no merit in the contention that section 2228, Rev. Laws, limits the amount
of the recovery to the principal. It does not undertake to fix the method of arriving at the
amount due on a mechanic's lien statement, but simply to require the claimant to enter an
acknowledgment of satisfaction when the amount due, whatever it may be, is paid.
51 Nev. 315, 321 (1929) Hobart Estate Co. v. Jones, Et Al.
it may be, is paid. We do not think the court erred in allowing an attorney's fee.
Counsel for appellant says in his brief: * * * We do not find the authority upon which this
attorney's fee is allowed and while we may have overlooked at this time the section of the
law, we still submit that no valid law can exist which permits the recovery of such an
attorney's fee against any party to the suit and certainly not as against the mere owners of the
property. The claims must find sound basis in our statutes for their existence. An attorney's
fee allowed to a lien claimant cannot be based on any law which is, in itself,
unconstitutional.
Section 2224, Rev. Laws, provides: * * * The court may also allow, as part of the costs,
the moneys paid for filing and recording the lien, and shall also allow to the prevailing party
reasonable attorney's fees.
Counsel disclaims knowledge of this provision of our statute and places his argument upon
the reasoning in Builders' Supply Depot v. O'Connor, 150 Cal. 265, 88 P. 982, 17 L. R. A.
(N.S.) 909, 119 Am. St. Rep. 193, 11 Ann. Cas. 712, which held that a statute which
authorized the allowing of an attorney's fee to the lien claimant, in case he prevailed, but
which made no provision for an attorney's fee to the adverse party in case he prevailed, is
void. The case is not in point, since our statute authorizes an allowance of an attorney's fee to
the prevailing party, whether plaintiff or defendant.
3, 4. Every statute is presumed to be constitutional, and as the California case is not in
point, and as no other reason is pointed out as a ground for holding it unconstitutional, we are
compelled to say that the law quoted is valid. Without expressing an opinion we may say that
there are authorities which seem to raise a serious doubt as to the correctness of the opinion
of the California court. Among them are: Missouri, K. & T. Ry. Co. of Texas v. Cade, 233
U.S. 642, 34 S. Ct. 678, 58 L. Ed. 1135; Vosburg v. A. T. & S. F. Ry. Co., 89 Kan. 114, 130
P. 667; Cascaden v. Wimbish {C.C.A.), 161 F.
51 Nev. 315, 322 (1929) Hobart Estate Co. v. Jones, Et Al.
(C.C.A.), 161 F. 241; A. T. & S. F. Ry. Co. v. Matthews, 174 U.S. 96, 19 S. Ct. 609, 43 L.
Ed. 909; Mills v. Olsen, 43 Mont. 129, 115 P. 33.
Perceiving no error on the record, the judgment and order are affirmed.
On Petition for Rehearing
May 15, 1929.
Per Curiam:
Rehearing denied.
____________
51 Nev. 322, 322 (1929) State v. Muldoon
STATE v. MULDOON
No. 2837
March 5, 1929. 274 P. 922.
1. PoisonsInstruction Conforming to Statute in Prosecution for Possessing Narcotic Drug
for Purpose of Sale as to Prima-Facie Proof of Possession Held Not Erroneous.
Instruction in prosecution for having possession for purpose of sale narcotic drug in quantity
exceeding one ounce, that proof of possession of narcotic drug inclosed or wrapped in package or
container or otherwise arranged in form suitable or adapted for sale shall be prima-facie proof of
possession for purpose of sale, held not erroneous, where it conformed to language of narcotic act 1923
(Stats. 1923, c. 33), sec. 5, as amended by Stats. 1925, c. 146.
2. PoisonsIn Prosecution for Possessing Narcotic Drug for Sale Whether Drug Was
Arranged in Form Suitable for Sale Held for Jury.
In prosecution for having possession of narcotic drugs for purpose of sale, it was for jury to determine
whether under all facts and circumstances drug was arranged in such form as to be suitable or adapted for
purpose of sale, within meaning of narcotic act 1923 (Stats. 1923, c. 33, sec. 5, as amended by Stats,
1925, c. 146).
3. Criminal LawInstruction that Law Presumes Man to Intend Reasonable Consequences of
Act Intentionally Done Held Not Erroneous, as Eliminating Question of Intent from
Jury.
Instruction that law presumes man to intend reasonable and natural consequences of act intentionally
done, and that such presumption of law will always prevail, unless from consideration of evidence
bearing thereon jury entertains reasonable doubt, held not prejudicial, as eliminating from jury question
of intent provable as any other fact in case.
C.J.CYC. REFERENCES
Criminal Law18 C.J. sec. 2490, p. 1047, n. 65.
Poisons31 Cyc. p. 899, n. 28.
51 Nev. 322, 323 (1929) State v. Muldoon
Appeal from Eighth Judicial District Court, Lyon County; Clark J. Guild, Judge.
William Muldoon was convicted of possessing a narcotic drug for the purpose of sale, and
he appeals. Affirmed.
Frame & Raffetto, for Appellant:
It was error for the trial court to give instruction No. 5, which laid down the rule of
prima-facie evidence. While this instruction in the abstract correctly declared the law, it was
inapplicable in this case for the reason that there was no proof offered at the trial proving or
tending to prove that the yen shee was contained in a container or wrapped in such a manner
as to be adaptable for the purpose of sale. Whether the same was so prepared is an evidentiary
fact, capable of proof, and of which the jury could not take judicial notice or resort to
common knowledge. This instruction was harmful to the defendant because the jury may
have assumed that because of the giving of this instruction the drug in question was wrapped
or prepared in such a manner as to indicate that the same was kept for the purpose of sale,
when there was nothing in the evidence to establish such fact or justify such an inference. An
instruction may be harmful and erroneous when same is inapplicable to the case made out
before the jury, even though the same may state correctly in the abstract a principle of law.
Instruction No. 12 was clearly erroneous and highly prejudicial to the defendant. It
declared that the law presumed that from acts assumed to have been proven that as a matter of
law the defendant was presumed to intend the natural and probable consequences of the act. It
casts the burden upon the defendant to overcome this legal presumption asserted to exist as a
matter of law, and deprives the defendant of the legal presumption of innocence, which, on
the contrary of the rule asserted, presumed the defendant to be innocent of the specific
criminal intent essential to constitute the offense charged, and cast upon the prosecution the
burden of proving as a matter of fact that the defendant did possess such criminal intent,
with which legal presumption had nothing to do.
51 Nev. 322, 324 (1929) State v. Muldoon
burden of proving as a matter of fact that the defendant did possess such criminal intent, with
which legal presumption had nothing to do. The question is not one of law but one of fact to
be proven by the state. The only legal presumption, independent of evidence, that can obtain
is the presumption of innocence. State v. Cerfoglio, 46 Nev. 350; State v. Pappas, 39 Nev. 40;
State v. MacKinnon, 41 Nev. 182. We insist the instruction was ambiguous and misleading,
and did not, even in the abstract, state correctly any rule of law applicable to the case under
consideration, and on the contrary took from the jury the right to determine for themselves as
a matter of fact the weight and sufficiency of the evidence before them, in so far as the same
affected the question of intent, and was naturally calculated to lead the jury to believe that the
intent arose from a legal presumption which the law presumed from acts of the defendant,
which it might be inferred from the instruction had been proven at the trial, and that the
inference to be drawn therefrom was a matter of law which presumed that the defendant
intended even the probable consequences of the act.
As we have pointed out, there is no tangible proof of the existence of any fact bringing the
case within the prima-facie rule laid down by the statute. Hence the verdict should not have
been for more than the unlawful possession of the yen shee in question.
John R. Ross, District Attorney; M. A. Diskin, Attorney-General, and Wm. Forman, Jr.,
Deputy Attorney-General, for the State:
The position taken by appellant in his opening brief was that the state would necessarily
have to show the drug to be prepared in bindles or similar packages in order for it to be
adapted or suitable for sale. The state's contention is that such a requirement is not
contemplated by the statute. The defendant was convicted of being a wholesaler, in selling
narcotic drugs wholesale. Almost any kind of package or container can be a suitable one in
which the defendant might sell the drug.
51 Nev. 322, 325 (1929) State v. Muldoon
sell the drug. The jury, having had before it in evidence the narcotic drug and the container,
could decide for itself whether or not such container was adaptable for the purpose of sale.
Especially should this be the case where one is charged and the proof shows him to be a
wholesaler of such drugs. Minter v. City of Jackson (Miss.), 57 So. 549; Price v. City of
Gulfport, 52 So. 486; Gillespie v. State, 51 So. 811. Instruction No. 5 given by the court
simply quoted the statute which applied to the prosecution in this case. There could be no
error in the court giving that instruction.
In contending that the court erred in giving instruction No. 12, appellant cites the cases of
State v. MacKinnon, 41 Nev. 189, and State v. Pappas, 39 Nev. 40, to the point that such an
instruction is erroneous. An examination of these cases will show that the instruction given in
those cases was substantially different from the instruction given here. The instruction here
was substantially to the effect that the jury should acquit the defendant if they had a
reasonable doubt of his intent, but they could take into consideration the fact that a man
intends the reasonable and natural consequences of an act intentionally done. Such has always
been the law of this state. See State v. McGinnis, 6 Nev. 109, holding that criminal intent can
only be proven as a deduction from a declaration or act, and when the acts are established, the
natural and logical deduction is that defendant intended to do what he did do, and if he offers
no excuse or palliation of the act done, such deduction would become conclusive.
The court had further instructed the jury in instruction No. 7 to the effect that a man cannot
be criminally held responsible for the possession of that which he is not shown to actually and
consciously possess. When taking into consideration instruction No. 12 and the remaining
instructions, there can be no doubt that defendant was not prejudiced by these instructions,
but, on the other hand, this instruction clearly stated the law applicable to the case. In other
words, if defendant consciously became the possessor of these drugs, he is to be held
responsible for his act in possessing them when such act was purely voluntary on his part.
51 Nev. 322, 326 (1929) State v. Muldoon
he is to be held responsible for his act in possessing them when such act was purely voluntary
on his part.
OPINION
By the Court, Sanders, J.:
The appellant, William Muldoon, designated herein as defendant, was convicted of the
crime of having in his possession, for the purpose of sale, a narcotic drug, to wit, yen shee, in
a quantity exceeding one ounce. Upon his conviction the defendant was sentenced to
confinement in the state prison for a period of not less than 10 years nor more than 15 years.
The defendant appeals to this court from the judgment and sentence, and also from an order
denying the defendant's motion for a new trial. The defendant seeks reversal of the judgement
and order appealed from upon the grounds of the insufficiency of the evidence to support the
judgment and sentence; that the judgment is against law; and that the trial court misdirected
the jury upon one of the ingredients of the offense charged, namely, intent.
The information upon which the defendant was convicted is grounded upon section 5 of
the narcotic act of 1923, as amended by the act of 1925 (Stats. 1923, p. 39, c. 33; Stats. 1925,
p. 231, c. 146). Section 5 of the act as amended reads:
A peddler of any of the narcotic drugs enumerated in section one of this act is hereby
defined as a person selling, furnishing, or giving away or having in his possession for the
purpose of sale, furnishing, or gift of any of said narcotic drugs in quantities not exceeding
one ounce.
A wholesaler of any of the narcotic drugs enumerated in section one of this act is hereby
defined as a person selling, furnishing, or giving away, or having in his possession for the
purpose of sale, furnishing, or gift of any of said narcotic drugs in quantitites exceeding one
ounce. Any person violating the provisions of this section shall be guilty of a felony, and
shall be punished as follows: Any person who shall be convicted of being a peddler as
herein defined shall be punished by imprisonment in the state prison for a period of not
less than five years, and any person who shall be convicted of being a wholesaler as
herein defined shall be punished by imprisonment in the state prison for period of not less
than ten years.
51 Nev. 322, 327 (1929) State v. Muldoon
this section shall be guilty of a felony, and shall be punished as follows: Any person who
shall be convicted of being a peddler as herein defined shall be punished by imprisonment in
the state prison for a period of not less than five years, and any person who shall be convicted
of being a wholesaler as herein defined shall be punished by imprisonment in the state prison
for period of not less than ten years. Proof of the possession of any narcotic drug inclosed or
wrapped in a package or container or otherwise arranged in such form as to be suitable or
adapted for the purposes of sale shall be prima-facie proof of possession for the purpose of
sale.
The facts, in brief, are substantially as follows: William Muldoon, an Indian, conducted a
grocery store in the incorporated town of Yerington, adjacent to an Indian camp therein. On
November 5, 1927, his place of business was visited by two federal narcotic inspectors,
armed with a warrant to search defendant's premises. When the defendant was informed by
the inspectors of the warrant, he stated to them that it would be unnecessary to make a search,
as he had the stuff and would have his wife give it to them. His wife left the presence of the
parties and returned with a can containing more than four ounces of yen shee. No search
apparently was made by the inspectors to find other narcotics. One of the inspectors who
testified upon the trial stated that the defendant offered them $1,900 to forget the incident and
keep mum. The defendant was placed under arrest and taken before a United States
commissioner in Yerington, where one of the inspectors. A. W. Roberts, the witness referred
to, swore to a complaint against the defendant, presumably under the federal narcotic act. The
record discloses that the government yielded its jurisdiction over the defendant, and he was
delivered into the custody of the local state officers, and he was prosecuted, as above stated,
for the violation of the narcotic act of 1923, as amended by the act of 1925.
1, 2. At the close of the testimony the jury was burdened with 1S instructions as to the
law and procedure.
51 Nev. 322, 328 (1929) State v. Muldoon
burdened with 18 instructions as to the law and procedure. Counsel for the defendant
contends that particularly two of the instructions, namely, instruction No. 5 and instruction
No. 12, constitute reversible error.
Instruction No. 5 reads as follows: You are instructed that proof of the possession of any
narcotic drug inclosed or wrapped in a package or container, or otherwise arranged in such
form as to be suitable or adapted for the purpose of sale, shall be prima-facie proof of
possession for the purpose of sale.
It will be observed that this instruction conforms to the language of the statute with respect
to the rule of prima-facie evidence, and its application was left entirely with the jury.
Conceding that the narcotic drug found in the possession of the defendant was not inclosed or
wrapped in a package, or container, such as might be considered as being particularly adapted
for the purpose of the sale of its contents, either by wholesale or peddling, nevertheless, it
was for the jury to determine whether, under all of the facts and circumstances, the drug was
arranged in such form as to be suitable or adapted for the purpose of sale. It frequently
happens that a statute designates a certain kind of evidence as proof of certain facts. For
example, our attention is directed to statutes which prescribe that having spirituous liquor on
a counter in a public house shall be prima-facie proof of selling. This designation, however,
does not, unless the statute expressly so provides, exclude other proof of such facts. 1
Wharton's Criminal Evidence (10th ed.) sec. 157. The can, containing more than four ounces
of yen shee, found in the possession of the defendant, was admitted in evidence as being
prima-facie proof, in connection with other facts, that the defendant possessed the drug for
the purpose of sale. Conceding that the can was not a container such as that used by those
lawfully engaged in the business of sale of such drugs, it, nevertheless, was a question for the
jury to determine whether or not the particular receptacle was suitable or adapted for the
purpose of the sale of its contents. Under the rule of prima-facie proof as laid down by the
statute, the state was not limited or restricted to any particular kind or character of
container, provided it was one suitable or adapted for the purpose of sale of the drug,
either by peddling or in bulk.
51 Nev. 322, 329 (1929) State v. Muldoon
proof as laid down by the statute, the state was not limited or restricted to any particular kind
or character of container, provided it was one suitable or adapted for the purpose of sale of
the drug, either by peddling or in bulk.
3. Instruction No. 12 complained of reads as follows: The jury is instructed that upon the
question of intent the law presumes a man to intend the reasonable and natural consequences
of any act intentionally done; and this presumption of law will always prevail, unless, from a
consideration of all the evidence bearing upon the point, the jury entertain a reasonable doubt
whether such intention did exist.
Counsel for the defendant contends that the giving of this instruction was prejudicial, in
that it eliminated from the jury the question of intent, provable as any other fact in the case. In
support of this contention, counsel relies upon the authority of the cases of State v. Pappas, 39
Nev. 40, 152 P. 571, and State v. MacKinnon, 41 Nev. 182, 168 P. 330. We do not consider
the cases in point. In those cases the trial court in effect instructed the jury that the law
presumes the existence of a specific intent. The instruction here does not do that. It simply
advises that the law presumes a man to intend the natural consequences of an act intentionally
done, and leaves to the jury the determination of what the intention was.
It is argued on behalf of the defendant that the evidence is insufficient to support the
verdict. After a consideration of the entire evidence, we are not in accord with this contention.
The judgment is affirmed.
Coleman, J.: I concur.
Ducker, C. J., concurring:
I concur in the order of affirmance and in so much of the opinion of Justice Sanders as
deals with instruction No. 5.
I also concur in the conclusion that the giving of instruction No. 12 was not error. The law
certainly presumes a man to intend the reasonable and natural consequences of any act
intentionally done.
51 Nev. 322, 330 (1929) State v. Muldoon
presumes a man to intend the reasonable and natural consequences of any act intentionally
done. State v. Newton, 4 Nev. 410. The presumption is, of course, one that may be rebutted.
This is clearly stated in the instruction.
On Petition for Rehearing
August 12, 1929.
Per Curiam:
Rehearing denied.
____________
51 Nev. 330, 330 (1929) State v. District Court
STATE OF NEVADA Ex Rel. NEVADA DOUGLASS GOLD MINES, Incorporated, v.
THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT, In and For
Mineral County, Et Al.
No. 2856
March 8, 1929. 275 P. 1.
1. CorporationsLater Statute Controlled Earlier Statute Relating to Service of Summons on
Corporation, where Conflicting.
Stats. 1913, c. 76, relating to service of summons on corporation, controlled previous statute, Rev.
Laws, sec. 5023, pertaining to same matter, where they are conflicting.
C.J.CYC. REFERENCES
Corporations14a C.J. sec. 2898, p. 800, n. 86.
On petition for rehearing. Petition denied. (Sanders, J., dissenting)
C. C. Ward, District Attorney, and M. A. Diskin, Attorney-General, for Respondents:
The weight of authoritative precedents is to the effect that: Where a judgment has been
rendered by the court without jurisdiction of the person, a general appearance after such
judgement waives all objection to the jurisdiction of the court over the person. Thus a general
appearance by defendant after final judgment waives any and all defects and irregularities in
the service of process and return, just as fully as it does where such appearance is entered
before final judgment. Crane v. Penny, 2 Fed. 187; Lee v. Houston, 20 Ala.
51 Nev. 330, 331 (1929) State v. District Court
20 Ala. 301; Touchstone v. Harris, 22 Ark. 365; Thompson v. Alford, 135 Cal. 52; Balfe v.
Rumsey etc. Co., 55 Colo. 97; Ryan v. Driscoll, 83 Ill. 415; Miles v. Goodwin, 35 Ill. 53;
Briggs v. Sneghan, 45 Ind. 14; Moffitt v. Chicago Chronicle Co., 107 Iowa, 407; Aherne v.
Wa Keeney Land etc. Co., 82 Kan. 435; Barnett v. Holyoke Ins. Co., 78 Kan 630; Moses v.
Hoffmaster, 64 Kan. 142; Baker v. Agricultural Land Co., 62 Kan. 79; Kaw L. Assoc. v.
Lemke, 40 Kan. 142; Johnson L. & T. Co. v. Burr, 7 Kan. A. 703; Louisville etc. R. Co. v.
Jordan, 112 Ky. 473; Tootle-Weakley Millinery Co. v. Billingsley, 74 Nebr. 531; Fisk v.
Thorp, 60 Nebr. 713; Dredla v. Baache, 60 Nebr. 655; Tisdale v. Rider, 119 App. Div. 594;
Crystal v. Ohmer, 139 N. Y. S. 841; Willett v. Blake, 39 Okl. 261; Farmers Nat. Bank v.
Pryor Creek Bank, 24 Okl. 140; Fildew v. Milner, 57 Ore. 16; Waymire v. Shipley, 52 Ore.
464; Jeannette v. Roehme, 195 P. 230; Taylor v. Sledge, 110 Tenn. 263; Morotock Ins. Co. v.
Pankey, 91 Va. 259; Columbia etc. R. Co. v. Moss, 53 Wash. 512; French v. Ajax Oil etc.
Co., 44 Wash. 697; Kilpatrick v. Horton, 15 Wyo. 501; Barra v. Peo, 18 Colo. A. 16; Ryan v.
Driscoll, 83 Ill. 415; McCarthy v. McCarthy, 66 Ind. 128; Pry v. Hannibal etc. R. Co., 73 Mo.
123; McCormick Harvesting Mach. Co. v. Schneider, 36 Nebr. 206; Boulder Sanatorium v.
Vanston, 14 N. M. 436; Yorke v. Yorke, 3 N. D. 343; Clarkson v. Washington, 38 Okl. 4;
Welch v. Ladd, 29 Okl. 93; Lookabaugh v. Epperson, 28 Okl. 472; Rogers v. McCord-Collins
Mercantile Co., 19 Okl. 115; Anderson v. McClellan, 54 Ore. 206; Henry v. Henry, 15 S. D.
80; Pfister v. Smith, 95 Wis. 51; Gilbert-Arnold Land Co. v. O'Hare, 93 Wis. 194; Insurance
Co. of North America v. Swineford, 28 Wis. 257.
As to the immediate parties to the action, a general appearance validates a judgment that
was theretofore absolutely void for want of jurisdiction. Barnett v. Holoyoke Mut. F. Ins.
Co., 78 Kan. 630, and other authorities, supra. See, also, Deegan v. Deegan, 22 Nev. 185;
Bowers on Process and Service, secs. 9-10, pp. 14-15, and authorities cited.
51 Nev. 330, 332 (1929) State v. District Court
The authority of any agent to bind the corporation by acceptance or receipt of legal
process is seldom conferred by express authority of the principal; it is implied by law from
the ostensible relationship between the parties. * * * Bass v. Am Products etc. Co., 124 S.C.
346; 30 A.L.R. 168.
Cyrus A. Hovey and Green & Lunsford, for Petitioner:
Here there was no general appearance. There was only the naked statementnot under
oaththat service had been made and was admitted. There was no statement that the
corporation appeared in the action. But if there had been such a statement it would have been
nugatory, for: A corporation cannot appear in an action in person; but must appear by
attorney. C.J. 14a, p. 812, sec. 2921, and cases cited.
Appearance by the president of a corporation is not appearing by the corporation.
Whitehall v. Concordia, 127 La. 1022, 54 So. 337
It is good law, as everybody knows, that a general appearance validates a judgment, as to
the immediate parties thereto, even though the judgment were theretofore void. But in none of
the cases cited by counsel was the general appearance made otherwise than by an attorney at
law.
OPINION
By the Court, Coleman, J.:
The respondent has filed a very elaborate petition for a rehearing, and, as remarkable as it
may seem, the only point urged is one barely suggested on the original hearing, which is that
the so-called appearance in behalf of the defendant in the lawsuit validated the judgment and
sale theretofore made.
As we said in the original opinion, there was no showing that the person who filed such
appearance was an officer of the company, nor is there anything to indicate that the signature
is genuine. The record in this matter shows that this proceeding was instituted as the result of
an authorization by the board of directors held on October 6, 192S.
51 Nev. 330, 333 (1929) State v. District Court
of an authorization by the board of directors held on October 6, 1928. The so-called
appearance was after this proceeding was instituted. Certainly in view of this situation, no
serious consideration can be given the so-called appearance.
Our esteemed associate does not disapprove of the foregoing views, but is of the opinion
that a rehearing should be granted on a ground not suggested by counsel for the respondents,
namely, that section 5023, Rev. Laws, controls, rather than Stats. 1913, c. 76, as to the
persons upon whom service of summons must be made when a corporation is a defendant.
There are several objections to this view, we think. If the suggestion is sound in law, there is
no reason for granting a rehearing. Such action would not result in a different conclusion as to
the validity of the judgment, but merely to prolong the agony at additional expense to the
litigants. It would not result in a different conclusion, for the reason that the summons in the
suit was not served upon a person mentioned in section 5023, Rev. Laws.
But we think the 1913 statute controls. It was adopted subsequent to the adoption of
section 5023, Rev. Laws, and pertaining to the same matter must control, where in conflict.
State v. Esser, 35 Nev. 429, 129 P. 559. The mere fact that section 81, c. 177, Stats, 1925,
provides that service of process shall be made in the manner provided by law for the service
of civil process does not affect the situation, since the manner provided by law for the service
of civil process upon a corporation is the manner provided by the 1913 act.
For the reasons given, the petition is denied.
Ducker, C. J.: I concur.
Sanders, J., dissenting:
On further consideration of the record in this proceeding on certiorari, I am of opinion that
the petition for rehearing should be granted. The opinion sought to be reviewed (51 Nev. 206,
273 P. 659) states:
The applicant is a Nevada corporation. Statutes of 1913, p. 65 names the persons upon
whom a summons must be served.
51 Nev. 330, 334 (1929) State v. District Court
must be served. None of the persons named in the statute was served in the action sought to
be reviewed. It is true that service was made upon a person not designated in the statute, but
there is no contention by counsel that service was made on any one designated by statute. In
this situation the judgment is void ab initio.
I do not consider the act of 1913 to be the law applicable to the service of summons upon a
corporation formed under the laws of this state, such as the Nevada Douglass Gold Mines,
Incorporated, the petitioner. Stats. 1925, p. 287, c. 177, is entitled: An act providing a
general corporation law. Section 1 of the act provides:
The provisions of this act shall apply to corporations hereafter organized in this state,
except such corporations as are expressly excluded by the provisions of this act. * * *
The Nevada Douglass Gold Mines, Incorporated, was incorporated after the approval of
the act of 1925. Section 81 of the act provides as follows:
In any action commenced against any corporation, in any court of this state, service of
process shall be made in the manner provided by law for the service of civil process.
Section 81 of the civil practice act (section 5023, Rev. Laws) provides:
The summons must be served by delivering a copy thereof attached to a certified copy of
the complaint as follows:
1. If the suit is against a corporation formed under the laws of this state; to the president
or other head of the corporation, secretary, cashier, or managing agent thereof.
In view of these enactments, the statute of 1913, in my opinion, is not now applicable to
service of summons on a corporation formed under the laws of this state. It is true this point is
not urged in the petition herein as a ground for a rehearing, but, in view of its importance, I
think our opinion should be reviewed.
____________
51 Nev. 335, 335 (1929) Garred v. Garred
GARRED v. GARRED
No. 2852
March 13, 1929. 275 P. 2.
1. Appeal and ErrorMotion to Dismiss Appeal Must be Sustained, in Absence from Record
of Bill of Exceptions.
In absence from record on appeal of bill of exceptions, settled and allowed within time required by
Stats. 1923, c. 97, or at all, respondent's motion to dismiss appeal must be sustained.
C.J.CYC. REFERENCES
Appeal and Error4 C.J. sec. 1811, p. 212, n. 43.
Appeal from Third Judicial District Court, Eureka County; W. R. Reynolds, Judge.
Action for divorce by U. A. Garred against Elizabeth H. Garred. From an adverse
judgment and from an order denying a new trial, plaintiff appeals. On defendant's motion to
dismiss the appeal. Motion granted, and judgment sustained.
R. R. Gill, of Ely, for Appellant.
Edgar Eather, of Eureka, and Thatcher & Woodburn, of Reno, for Respondent.
OPINION
By the Court, Sanders, J.:
This is a motion to dismiss an appeal taken from a judgment and from an order denying a
new trial in the divorce action of U. A. Garred, Plaintiff, v. Elizabeth H. Garred, Defendant.
After consideration of the entire record, the motion to dismiss the appeal from the order
must be sustained for the following reason: The record on appeal contains no bill of
exceptions settled and allowed by the judge or court or by stipulation of the parties within the
time required by the statute, or at all. Stats. 1923, p. 163, c. 97. See Barbash v. Pitt, 48 Nev.
108, 227 P. 1018, 233 P. 844, 236 P. 1101; Shirk v. Palmer, 48 Nev. 451, 232 P. 1083, 236 P.
678, 239 P. 1000; Water Co. of Tonopah v. Tonopah Belmont Development Co.,
51 Nev. 335, 336 (1929) Garred v. Garred
Tonopah v. Tonopah Belmont Development Co., 49 Nev. 172, 241 P. 1079; Markwell v.
Gray, 50 Nev. 427, 265 P. 705.
Finding no error upon the face of the judgment roll, the judgment appealed from is
sustained.
____________
51 Nev. 336, 336 (1929) Ex Rel. Adams-McGill Co. v. McKernan
STATE Ex Rel. ADAMS-McGILL CO. v. McKERNAN
No. 2858
March 13, 1929. 275 P. 369.
1. TaxationMandamus Lies to Compel County Auditor to Reduce Assessed Valuation of
Land as Tax Commission Ordered after Refusal of Board of Equalization.
Petition for mandamus to compel county auditor to reduce assessed valuation of petitioner's land held
not demurrable as not showing that statutes had been complied with by petitioner, it appearing that state
board of equalization refused application for lowering valuation by making no recommendation, after
which petitioner applied to state tax commission under Stats. 1917, c. 177, sec. 6, which lowered
valuation, section 10 prohibiting action for redress until commission denies it.
C.J.CYC. REFERENCES
Mandamus38 C.J. sec. 415, p. 773, n. 3.
Mandamus by the State of Nevada, upon the relation of the Adams-McGill Company,
against John O. McKernan, to compel respondent as Auditor of White Pine County to make
reductions in taxes as ordered by the Nevada Tax Commission. Respondent interposed a
demurrer to the sufficiency of the petition for the writ, and protested against the alternative
writ of mandamus issued being made permanent. Writ issued.
Chandler & Quayle, of Ely, and M. A. Diskin, Attorney-General, for Petitioner.
Guy E. Baker, of Ely, for Respondent.
OPINION
By the Court, Sanders, J.:
The Adams-McGill Company, a taxpayer, made application to the state board of
equalization, at its regular meeting in August, 192S, to lower the assessed valuation of its
land within the county of White Pine, theretofore established by the assessor and board of
equalization of said county for the purpose of taxation, for the year 192S.
51 Nev. 336, 337 (1929) Ex Rel. Adams-McGill Co. v. McKernan
meeting in August, 1928, to lower the assessed valuation of its land within the county of
White Pine, theretofore established by the assessor and board of equalization of said county
for the purpose of taxation, for the year 1928. Its said application was referred to the land
committee of said state board of equalization for consideration and report. After a hearing the
committee reported as follows: This committee feels that we have insufficient information to
enable us to act on the further application for reduction of valuations on the other properties
of the Adams-McGill Company. We make no recommendation.
The state board of equalization approved and adopted the report of the land committee,
and, without further action on the application, concluded its business and adjourned.
Thereafter the Adams-McGill Company renewed its application to the Nevada tax
commission, at its regular meeting in October, 1928, to lower the assessed valuation of its
land, as aforesaid. After a hearing the Nevada tax commission made an order reducing the
assessed valuation of the land of the company in White Pine County, situate within a federal
forest reserve therein, to the amount of $1.25 per acre, and reduced the value of its land
situate without said federal forest reserve 25 per cent, and lowered the assessment on certain
land under lease to the company 25 per cent.
Thereafter the secretary of the Nevada tax commission, as required by law, certified to
John O. McKernan as auditor of White Pine County the changes or reductions as ordered by
the commission, with direction to make the changes in the assessment roll prior to the
delivery of his complete tax roll to the tax receiver of White Pine County. Upon receipt of the
order, the auditor declined and refused to comply with its directions and presumably
delivered his completed tax roll for the year 1928 to the ex officio tax receiver of White Pine
County. Upon said refusal, the Adams-McGill Company filed its petition in this court for a
writ of mandamus, commanding said John O. McKernan, as auditor of White Pine County, to
make the reductions as ordered by the Nevada tax commission.
51 Nev. 336, 338 (1929) Ex Rel. Adams-McGill Co. v. McKernan
County, to make the reductions as ordered by the Nevada tax commission. Upon
consideration of the petition, an alternative writ of mandamus issued, and on the day fixed for
return the respondent appeared by his attorney, who interposed a demurrer to the sufficiency
of the petition for the writ and protested against it being made permanent, principally for the
reason that it did not affirmatively appear from the petition that the petitioner had complied
with the several steps required by statute to have the state board of equalization and the
Nevada tax commission review the assessed valuation by the county assessor and the county
board of equalization of White Pine County of petitioner's lands therein for the purpose of
taxation for the year 1928.
We are not in accord with this contention, and are of opinion that the petitioner pursued
the only remedy provided by law, to have the valuation of its land, as established by the local
authorities, lowered or reduced.
Section 6 of the act creating the Nevada tax commission (Stats. 1917, p. 328) provides,
among other things, that if the state board of equalization shall fail to perform the duties
enumerated in the section, the Nevada tax commission may make such equalization as will be
necessary, and any person whose assessment valuation has been raised by said state board of
equalization may complain to the Nevada tax commission on or before the third Monday in
October in said year, and said commission may correct and remedy any inequality or error so
complained of.
1, 2. We are of opinion that the report of the land committee, approved by the state board
of equalization, which report states, We make no recommendation, was tantamount to the
refusal of that board to grant the petitioner the relief demanded in its application, and by
virtue of the provisions contained in section 6 it had the right to complain to the Nevada tax
commission to remedy any inequality in the assessed valuation of its land. It is perfectly clear
to us that, in view of the plain provisions contained in section 6, the petitioner pursued the
only remedy it had under the statute to have the tax commission make findings upon its
complaint.
51 Nev. 336, 339 (1929) Ex Rel. Adams-McGill Co. v. McKernan
commission make findings upon its complaint. Section 10 of the act provides that no redress
from the finding of either the tax commission or the state board of equalization may be
obtained in a court of law, and no action can be instituted upon the act of an assessor or the
county board of equalization, or the state board of equalization, until the said tax commission
has denied the complainant redress. We have no hesitancy in affirming our former order
directing the writ to issue.
____________
51 Nev. 339, 339 (1929) Ex Rel. Ormsby v. District Court
STATE Ex Rel. ORMSBY v. DISTRICT COURT OF SECOND JUDICIAL DISTRICT, in
and for Washoe County, Et Al.
No. 2845
April 1, 1929. 276 P. 14.
1. DivorceHusband Suing Nonresident Wife for Divorce May Be Required to Pay her
Railroad Fare to and from Place of Trial.
Under Rev. Laws, sec. 5843, husband suing nonresident wife for divorce may be required to pay her
railroad fare to and from place of trial to enable her to defend suit.
2. DivorceProceedings in Husband's Divorce Suit May Be Stayed or Suspended until He
can Furnish Wife Means to Defend Suit.
Proceedings in husband's divorce suit may be stayed or suspended until he becomes of sufficient
ability to furnish wife means to defend the suit.
C.J.CYC. REFERENCES
Divorce19 C.J. sec. 558, p. 238, n. 1; sec 744, p. 321, n. 44.
Proceeding by the State, on the relation of Emmet E. Ormsby, for a writ of mandamus to
the District Court of the Second Judicial District in and for the county of Washoe and
Thomas F. Moran, Judge thereof. Demurrer to petition sustained, and proceeding
dismissed.
Wayne T. Wilson and Felice Cohn, for Respondent:
The respondent's position is that the petitioner fails to state a cause of action and fails to
show that the court abused his discretion in making the allowance for railroad fare.
51 Nev. 339, 340 (1929) Ex Rel. Ormsby v. District Court
abused his discretion in making the allowance for railroad fare. Section 5443 of the Rev.
Laws of Nevada, 1912, provides: That the court may, in its discretion, require the husband to
pay such sums as may be necessary to enable the defendant to defend such suit. The words
as may be necessary are the determining words in the statute as it relates to this case.
This court has decided in the case of Wallman v. Wallman, 48 Nev. 235, that: The
poverty of a husband is no defense to the application for allowances, where the action for
divorce is brought by him, and cites many cases supporting that authority of the laws. The
same language is used in 19 C.J. at page 216, with numerous cases cited thereunder.
The plaintiff's utter impecuniosity might be a defense if it appeared from the petition
that the defendant has sufficient means to pay her own expenses without disturbing the corpus
of her estate. The petition, however, fails to make any such allegation. The law is that
temporary alimony and allowances will not be denied because the wife possesses a separate
estate, when the income therefrom is not sufficient for her support, and she need not resort to
the corpus of her estate before calling upon that of the husband. 19 C.J. 215.
In the Colorado case of Cairns v. Cairns, 68 P. 233, that court said: When a husband
desires the luxury of a divorce from his wife, he should be compelled to pay the expenses of
his wife pending the litigation, and, in cases where the wife is a nonresident of the state, if she
desires to come to the State of Colorado to make a defense, she should be given an
opportunity to do so, and the courts should require the plaintiff to deposit in court a sum
sufficient to pay the expenses of the wife from her home to the State of Colorado.
G. Gunzendorfer, for Petitioner:
Whatever the custom may have been or now is, if orders for railroad fare are not based
upon a positive law, that is an express grant of the right, the court are without authority
and their orders are void and vain.
51 Nev. 339, 341 (1929) Ex Rel. Ormsby v. District Court
law, that is an express grant of the right, the court are without authority and their orders are
void and vain. 15 C.J. 730. Divorce actions in Nevada, as in the United States generally, are
wholly statutory. Worthington v. District Court, 37 Nev. 230. There is no inherent, inherited
or customary power in our courts to grant divorces, nor to exercise any ancillary or auxiliary
powers pertaining to them, such as the allowance of alimony, trial and appeal costs, and the
like. Worthington v. District Court, 37 Nev. 231; Phillips v. Phillips, 42 Nev 460; Effinger v.
Effinger, 48 Nev. 209. Whatever rights in these respects the courts of Nevada have are based
solely upon and limited by the statutes of the state. Worthington v. District Court, supra. The
court cannot read into the statute something beyond the manifest intention of the legislature
gathered from its language. Tiedemann v. Tiedemann, 36 Nev. 502; Ex Parte Pittman, 31
Nev. 43. The Nevada statute, sec. 5443, Rev. Laws, does not, in terms or otherwise, authorize
an allowance of railroad fare to a nonresident defendant in a divorce action. If our statute does
not in terms require the corporeal attendance of a party defendant, our courts have no right to
import into our said law nor interpolate therein or engraft thereon such a provision and upon
it base an order for the transportation of a defendant from a distant point. Tiedemann v.
Tiedemann, supra.
Petitioner further contends that the trial court had no legal right to stay the action until the
railroad fare was paid or provided. The statute under consideration provides that the court
may enforce all orders made in this behalf as provided by section 24 of this act. Section 24
(sec. 5840, Rev. Laws, vol. 2, p. 1702) reads that all such orders may be enforced and made
effectual by attachment, commitment and requiring security for obedience thereto or by other
means, according to the usages of courts, and to the circumstances of the case. This court
has ruled that the enforcement of interlocutory orders for payment of money in divorce
actions by execution does not appear to be according to the usages of courts.
51 Nev. 339, 342 (1929) Ex Rel. Ormsby v. District Court
courts. Kapp v. District Court, 32 Nev. 264. It must be noted that the section intends and calls
for affirmative action on the part of the courts to enforce their orders, while staying
proceedings involves the idea of negation.
OPINION
By the Court, Sanders, J.:
Upon the verified petition of Emmet E. Ormsby, a writ of mandamus issued out of this
court commanding the respondent court and the judge thereof to proceed to hear and
determine the divorce action of Emmet E. Ormsby, plaintiff, against Mary Hill Ormsby,
defendant, pending therein, or that in default thereof the respondents show cause why they
had not done so on the date specified in the writ.
The respondents, in due time, interposed a general demurrer to the petition for the writ, the
validity or invalidity of which depends upon the following facts: The petitioner sued his wife
for a divorce on the grounds of cruelty and desertion. The marital domicile of the parties was
in the State of New York, where process was served upon the defendant wife. She appeared
in the action, and, by motion, asked that the plaintiff be required to pay counsel fees and that
he be required to pay her railroad fare to enable her to defend the action. After a hearing of
the motion, an order was made requiring the plaintiff to pay into court $150 counsel fees and
to pay to the defendant $250 railroad fare. The plaintiff was subsequently cited to show cause
why he had not complied with said order. Upon the hearing of the order to show cause, his
excuse for not complying with the order was that he was financially unable to do so, being a
day laborer, working as a janitor, and that the defendant wife was regularly employed as a
saleslady and was able to pay her own expenses.
The court renewed its order, and further ordered that the proceeding be stayed until the
plaintiff had complied with the order to pay said counsel fees and to pay the defendant her
railroad fare of $250 to and from the place of trial.
51 Nev. 339, 343 (1929) Ex Rel. Ormsby v. District Court
defendant her railroad fare of $250 to and from the place of trial.
The petitioner makes no complaint of the order requiring him to pay the counsel fee of
$150, but insist that the court exceed its jurisdiction and abused its discretion in requiring him
to pay the defendant's railroad fare, or any sum whatever for that purpose.
1. Under our statute (section 5843), which permits the court or judge in a divorce suit, in
its discretion, to require the husband to pay such sums as may be necessary to enable the wife
to carry on or defend the suit, we are of opinion that the wife, being a nonresident of the state,
and desiring to come to Nevada in response to the summons served upon her in New York to
defend the suit, her railroad fare to and from the place of trial was a proper item to require the
husband to pay to enable the wife to defend the suit. Smiley v. Smiley, 136 Wash. 241, 239 P.
551; Cairnes v. Cairnes, 29 Colo. 260, 68 P. 233, 93 Am. St. Rep. 55.
2. The practice of staying or suspending the proceeding in a divorce suit until the husband
becomes of sufficient ability to furnish his wife means to defend the suit was approved and
applied in Wallman v. Wallman, 48 Nev. 239, 229 P. 1, 35 A. L. R. 1096.
The demurrer to the petition for the writ is sustained, and this proceeding is dismissed.
On Petition for Rehearing
May 14, 1929.
Per Curiam:
Rehearing denied
____________
51 Nev. 344, 344 (1929) American Sodium Co. v. Shelley
AMERICAN SODIUM CO. v. SHELLEY, Et Ux.
No. 2810
April 5, 1929. 276 P. 11.
1. Appeal and ErrorEvidence Not Brought Into Record by Bill of Exceptions Cannot Be
Considered on Appeal from Denial of New Trial.
The evidence not having been brought into the record by bill of exceptions in conformity to the
provisions of the act regulating proceedings on motions for new trials and appeals in civil cases (Stats.
1923, c. 97) cannot be considered on appeal from denial of new trial, though the action is in equity and
the evidence is in the transcript.
2. Mines and MineralsCondition of Sodium Prospecting Permit against Assignment
Without Written Consent of Secretary of Interior Held Authorized and Not Inconsistent
with Law.
The condition in permit under act Cong. Feb. 25, 1920 (30 USCA, sec. 181 et seq.), to prospect for
sodium, that it shall not be assigned without the express consent in writing of the secretary of the interior,
is within the authority given him by 30 USCA, sec. 189, to prescribe all necessary and proper rules and
regulations and do all things necessary to carry out and accomplish the purposes of the act (one to
promote the mining of certain minerals on the public domain), and particularly by 30 USCA, sec. 261, to
grant, under such rules and regulations as he may prescribe, permit to any qualified applicant to prospect
for sodium; and such condition is not inconsistent with or repugnant to law.
3. Mines and MineralsRegulation by Secretary of Interior that Permit for Prospecting for
Sodium Be Unassignable Without His Consent Has Force of Law.
Regulation by secretary of interior that permit to prospect for sodium on public lands be unassignable
without his consent, being authorized by statute and not inconsistent with or repugnant to law, has the
force and effect of a statute.
4. PleadingDefinite Facts Showing Existing Fiduciary Relation Must Be Alleged to
Support Claim that Mining Lease on Public Lands Was Procured by Lessee in
Violation of His Fiduciary Relation.
In order to support the view that in equity and good conscience one granted a lease to mine public
lands procured it in violation of his fiduciary relations with others, definite facts (and not mere inferences
and conclusions) sufficient to show an existing fiduciary relation between them and him must be alleged.
5. TrustsPermit to Prospect for Sodium on Public Lands Cannot Be Subject of Trust.
A permit to prospect for sodium on public lands, a mere privilege personal in character and which at
most as a reward for discovery of sodium in commercial quantities by the permittee
entitles him to a lease of half the land embraced in his permit, cannot be the subject
of trust.
51 Nev. 344, 345 (1929) American Sodium Co. v. Shelley
for discovery of sodium in commercial quantities by the permittee entitles him to a lease of half the land
embraced in his permit, cannot be the subject of trust.
6. TrustsEven if Lease to Mine on Public Lands Issued to Permittee Could Be Impressed
with Trust, it Would Be Necessary to Show Discovery of Sodium by Permittee or His
Assignee on Land Within Permit and Lease.
Under no principle could the beneficiaries under an attempted assignment in trust of a permit to prospect
for sodium on public land have a lease to mine on public lands subsequently granted the permittee
impressed with a trust in their favor on that part of the leased land embraced in the permit, without showing
that sodium was discovered by the permittee or his assignee on the land covered by the permit.
C.J.CYC. REFERENCES
Appeal and Error4 C.J. sec. 1752, p. 133, n. 45.
Mines and Minerals40 C.J. sec. 404, p. 889, n. 88.
Appeal from Eighth Judicial District Court, Lyon County; J. Emmett Walsh, Judge pro
tem.
Suit by the American Sodium Company against W. F. J. Shelley and others. Judgment for
plaintiff, and certain defendants appeal. Affirmed.
H. Pilkington, Hoyt, Norcross, Cheney & Hoyt, for Appellant:
The permit granted by the secretary of the interior to Warnken was assignable
notwithstanding the regulations prescribed by the secretary of the interior that such was not
assignable except with the consent of the secretary. Had Congress intended that a prospecting
permit authorized under sec. 23 of the act To promote the mining of coal, * * * and sodium
on the public domain, it would have so provided.
It is manifest that the secretary of the interior or any other cabinet officer has no power of
legislation. The power to make rules and regulations are at all times restricted to incidental
matters within the power granted by the statute. A prospecting permit is a right in real
property. Unless there is some statutory limitation it, like all other rights in real property, may
be sold or assigned in whole or part. If there are any limitations upon that right they must be
found in the granting power, which, in this case, is the United States, expressing its
limitations by statute.
51 Nev. 344, 346 (1929) American Sodium Co. v. Shelley
the granting power, which, in this case, is the United States, expressing its limitations by
statute. The courts have frequently had occasion to pass upon rules and regulations adopted
under similar provisions of acts of Congress, and it is universally held that such power to
prescribe rules and regulations does not include the power to legislate or assume the
prerogative of Congress. Morrill v. Jones, 106 U. S. 466; U. S. v. United Verde Copper Co.,
196 U. S. 207; Waite v. Macy, 246 U. S. 606; Hoover v. Selling, 110 Fed. 43; Int. Ry. Co. v.
Davidson, 257 U. S. 506; Williamson v. U. S., 207 U. S. 425; Patterson v. U. S., 181 Fed.
970; Bruell v. Wilson, 123 Fed. 957; Balfour v. Sullivan, 19 Fed. 579; Seigfreid v. Phelps, 40
Fed. 660; U. S. v. Goodsell, 84 Fed. 155; U. S. v. Valley Land & I. Co., 258 Fed. 102.
Shelley being an owner with Norrid in the permit, he could not obtain a lease thereon and
thereby cut out the interests of his associates in the permit. This is a rule that has been
repeatedly applied in the mining states. The fact that we are dealing with a lease and not a
patent to a mining claim does not affect the legal principle involved. The principle is well
stated in the syllabus to the case of Brundy v. Mayfield, 38 P. 1067. To the same effect, see
Miller v. Walser, 42 Nev. 497; Butte Co. v. Schwab, 34 P. 24; Yarwood v. Johnson, 70 P.
123; Lindley on Mines (3d ed.), vol. 3, p. 1782; 39 Cyc. 169.
The court erred in sustaining the demurrer to paragraphs VIII and IX of defendant Jennie
Baldwin Shelley's second amended cross-complaint. In making its ruling the court evidently
overlooked entirely the allegations in the second amended cross-complaint to the effect that
the corporation took the assignment and transfer of lease with knowledge of Shelley's rights;
also, overlooked the allegations to the effect that the corporation was organized by Warnken
and Guild for the very purpose of taking over the lease, and that, as shown by the assignment
of the lease to the corporation, that Warnken was president and Guild secretary thereof. It is
manifest from the pleadings that Warnken and Guild at the time of the transfer of the lease
to the respondent corporation were, in effect, the corporation.While under the authorities
hereinbefore cited, a protest upon the part of Shelley may have been unnecessary, and if
he had failed so to do his rights would not have been affected, nevertheless he did have a
right to protest and did so protest, and according to the allegations of the second
amended cross-complaint, such protest was withdrawn by means of duress imposed upon
Shelley by the action of the very parties who organized the respondent corporation, and
upon its organization became its principal officers and directors.
51 Nev. 344, 347 (1929) American Sodium Co. v. Shelley
at the time of the transfer of the lease to the respondent corporation were, in effect, the
corporation.While under the authorities hereinbefore cited, a protest upon the part of Shelley
may have been unnecessary, and if he had failed so to do his rights would not have been
affected, nevertheless he did have a right to protest and did so protest, and according to the
allegations of the second amended cross-complaint, such protest was withdrawn by means of
duress imposed upon Shelley by the action of the very parties who organized the respondent
corporation, and upon its organization became its principal officers and directors. The
sustaining of the demurrer to this portion of appellants' pleading denies appellant Mrs.
Shelley the substantial right of ever being able to show upon the trial an important element in
the case.
While the evidence adduced at the trial may not be considered on an appeal from the
judgment based on the judgment roll alone, nevertheless there are certain of the findings
which appellants contend are erroneous, based on the status of the pleadings and the facts
admitted therein. The rule that presumptions are in favor of the judgment does not extend to
findings on issues eliminated by demurrer and upon which appellants would have no reason
to expect evidence would be taken. There is no presumption in favor of a judgment contrary
to the findings nor of findings without or contrary to the issues made by the pleadings.
Further, the statute does not say that the evidence may not be considered on an appeal from
the judgment; it simple says that the sufficiency of the evidence will not be reviewed on
appeal unless a motion for a new trial is made.
Green & Lunsford, for Respondent:
In an appeal from the judgment every presumption and intendment is in favor of the
judgment. In early and well-considered cases we think this court has defined beyond doubt
the scope of inquiry and review by the supreme court when the appeal is from the judgment
alone.
51 Nev. 344, 348 (1929) American Sodium Co. v. Shelley
judgment alone. In Burbank v. Rivers, 20 Nev. 81, 16 P. 430, this court held that the rule that
the supreme court would not review the evidence upon an appeal from the judgment alone for
the purpose of determining its sufficiency to sustain the findings of the lower court, no
motion for a new trial having been made, lies equally to suits in equity as well as all other
actions. No consideration of insufficiency of evidence can be given on an appeal where there
was no motion for a new trial. This has been so frequently decided by this court that it is
now unnecessary to discuss it. Conley v. Chedic, 7 Nev. 336; James v. Goodenough, 7 Nev.
324; Whitman v. Shiverick, 3 Nev. 288; Cooper v. Pacific Mutual Ins. Co., 7 Nev. 116;
Sherman v. Shaw, 9 Nev. 148; Stats. 1919, p. 313. So that if the court had jurisdiction of the
parties and the subject matter, and the findings are within the issues and support the
judgment, neither is open to attack on an appeal from the judgment alone.
We have never been able to understand that the declaration of trust was sufficiently
definite in the description of its terms or subject matter as to create any legal status between
the alleged signatory parties. We cannot find that there was any meeting of minds upon any
lawful or existing property condition or relation between the parties.
It may be conceded that a governmental department cannot legislate under the guise of a
regulation, but where by a law the department is vested with a discretion and the regulation is
not obnoxious to the law under which it is promulgated, the courts have no right to interfere.
Numerous instances of departmental regulations are offered by the regulations relating to the
issuance of patents for mining claims, homestead entries, desert land entries, rights of way
over public domain, and many other such regulations essential to the enforcement and
administration of various laws. These, as will be conceded, have uniformly been sustained by
the courts. The courts have taken judicial notice of them and they have in fact become a
part of the laws of the land, having the force of legislative enactments.
51 Nev. 344, 349 (1929) American Sodium Co. v. Shelley
and they have in fact become a part of the laws of the land, having the force of legislative
enactments. Lindley on Mines, sec. 662, pp. 1231, 1234. The federal land leasing act of
February 25, 1920, vests much discretion in the secretary of interior, and there is nothing in
the act itself inconsistent with or repugnant to the provisions inserted in sodium prospecting
permits making such permits nonassignable.
To hold that the permit is assignable while a lease upon the land is not assignable, and that
an assignment of the permit gives to the assignee an interest in the lease would defeat the
purposes of the act and create an irreconcilable conflict by construction. As was said of a
homestead entry in Adams v. Church, 193 U.S. 510, 48 L. Ed. 769: The whole policy of the
government in this respect would be thwarted if the homesteader were permitted to alienate
prior to expiration of five years. And the cases in respect to the prohibition against alienation
before patent of homestead entries are more analogous to the case at bar than those cited by
appellants, which may be ever so sound to the conditions under which they were applied. See,
also, Anderson v. Carking, 135 U.S. 483, 37 L. Ed. 272; Douglas v. Sanders, 228 U.S. 609,
59 L. Ed. 985; U. S. v. Jones, 242 Fed. 609; Miller v. Thompson, 40 Nev. 35, 160 P. 775.
The prospecting permit could not exceed the term of two years (sec. 23, act of Feb. 25,
1920), and the permit issued in this case had expired before the demurrers were ruled on and
were as dead as Lazarus so far as any rights under it were concerned.
A statute prohibiting the making of contract, except in a certain manner, ipso facto makes
them void if made in any other way. 13 C.J. p. 420, sec. 351, Contracts. The so-called
trust agreement if considered as an effective contract is also void because it is contrary to
public policy. It is a contract having for its direct object and result the violation of the
regulations of one of the departments of the United States Government respecting the public
lands. It also has for its purpose and result the breach of a contract with the government of
the United States made through its duly authorized agent, the department of the interior.
51 Nev. 344, 350 (1929) American Sodium Co. v. Shelley
result the breach of a contract with the government of the United States made through its duly
authorized agent, the department of the interior. 12 C.J. p. 427, bottom of column 2.
OPINION
By the Court, Sanders, J.:
After the commencement of this suit and during its trial the name of the plaintiff, Nevada
Sodium Company, was changed to that of American Sodium Company, and, upon court
order, the case proceeded to judgment in the name of American Sodium Company, a
corporation, as plaintiff, against W. F. J. Shelley and Jennie Baldwin Shelley, husband and
wife, et al., defendants. Their codefendants, Arthur Warnken and W. H. Yarco, are not parties
on appeal from the judgment upon the judgment roll alone. For convenience we shall
designate the parties as plaintiff and defendants.
1. Counsel for defendants insist that, a motion for new trial having been made and the
action being one in equity, we should consider the transcript of the evidence on appeal from
the order denying the defendants' motion for new trial and determine whether the evidence
supports the findings and the findings the judgment. It is now settled that error cannot be
predicated upon the insufficiency of evidence unless the evidence is brought into the record
by a bill of exceptions in conformity to the provisions contained in the act regulating
proceedings on motions for new trials and on appeal in civil cases. Stats. 1923, p. 163, c. 97.
The evidence not having been brought into the record in this case in conformity to the statute,
it cannot be considered. Markwell v. Gray, 50 Nev. 427, 265 P. 705.
For present purposes the pleadings consist of the complaint, the separate answers of
defendants, and the second amended cross-complaint of the defendant Jennie Baldwin
Shelley, and the replies. The answers contain practically the same allegations, with this
differencethe answer of the defendant husband shows that he assigned whatever interest
he has or had in the subject of the controversy to his wife as her separate property, and
he defends solely in his capacity as husband.
51 Nev. 344, 351 (1929) American Sodium Co. v. Shelley
assigned whatever interest he has or had in the subject of the controversy to his wife as her
separate property, and he defends solely in his capacity as husband. The wife defends in her
capacity as assignee and in her own right. The plaintiff interposed a demurrer to the
cross-complaint, which was sustained. The case was tried upon issues joined upon the
complaint, answers, and replies which resulted in a judgment in favor of the plaintiff and
against the defendants in accordance with the trial court's findings of fact and conclusions of
law after a full hearing upon the pleadings and evidence.
The facts leading up to this suit as disclosed by the pleadings, stated in our way, are
substantially as follows: Under and by virtue of an act of Congress, approved February 25,
1920, entitled An Act to promote the mining of coal, phosphate, oil, oil shale, gas, and
sodium on the public domain (41 Stat. at L. 437; U. S. C. title 30, sec. 181 and following [30
USCA, sec. 181 et seq.]), the secretary of the interior granted to each, W. F. J. Shelley and
Arthur Warnken, a sodium prospecting permit to prospect the land described therein for
sodium. The permits are not before us, but it is inferable from the pleadings that each permit
was in the form of permits adopted by the secretary of the interior under rules and regulations
of the department of the interior as authorized by said act of Congress (Cir. 699; 47 Land
Dec. 531).
On January 15, 1924, Arthur Warnken and W. F. J. Shelley each assigned and transferred
his permit to Arthur Warnken, W. F. J. Shelley, and one W. H. Yarco as trustees named in an
instrument in writing, called a declaration of trust, to be carried out in accordance with the
articles of trust made a part of the agreement under the name and style of Wabuska
Development & Prospecting Association. The assignment and transfer of said permits were
made without the consent in writing, or at all, of the secretary of the interior.
Said declaration of trust was caused to be recorded by W. F. J. Shelley in the records of the
county of Lyon, where the land described in said permits is situate.
51 Nev. 344, 352 (1929) American Sodium Co. v. Shelley
The complaint filed herein, on March 1, 1926, proceeds upon the theory that the
recordation of said declaration of trust, with said assignments, created a cloud upon the land
described in an indenture of lease entered into, by and between the government of the United
States, as lessor, and said Arthur Warnken and one Clark J. Guild, as lessees, bearing date on
June 29, 1925, whereby the government granted and leased to said lessees the exclusive right
and privilege to mine, remove, and dispose of all the sodium and other minerals in, upon, or
under the tract of land described therein, containing 1,440 acres, situate in Lyon County,
Nevada. On August 4, 1925, said lease was assigned and transferred to the Nevada Sodium
Company, a corporation, organized under local law, with Arthur Warnken, as president, and
Clark J. Guild, as secretary. The assignment of the lease was approved by the secretary of the
interior in writing on September 12, 1925. It is conceded that the lease was granted under and
by virtue of the leasing act of Congress, approved February 25, 1920, supra. The corporation
entered into possession of the leased premises and expended large sums of money in excess
of $18,000 in mining, removing, and disposal of sodium in the forms named in said act, and
continued and now continue to mine, remove, and dispose of sodium in accordance with the
terms, conditions, and covenants of said lease.
The separate answers of the defendants admit the execution, delivery, and assignment of
the lease, and in this connection assert that the lease passed to the lessees their respective
interest therein, subject to the equitable rights of the defendants. This allegation is predicated
upon other allegations of the complaint and answers which show that the lease covered a
portion of the lands described in the sodium permit granted Arthur Warnken hereinabove
referred to. The answers further admit that the Warnken permit was assigned as a trust estate
to the trustees named in said declaration of trust in violation of the condition expressed in the
permit, namely, not to assign or transfer the permit granted hereby without the express
consent in writing of the secretary of the interior."
51 Nev. 344, 353 (1929) American Sodium Co. v. Shelley
secretary of the interior. In this connection each of the defendants aver and assert that the
secretary of the interior possessed and possesses no power or authority to require such a
condition to be included in the form of sodium permit, and in doing so the secretary of the
interior exceeded his authority. This allegation is made the ground for demurrer to the
cross-complaint of the defendant Jennie Baldwin Shelley. We may as well dispose at this
point of the alleged error in sustaining the demurrer to the cross-complaint.
2, 3. In view of the leasing act of Congress, which admittedly authorizes the secretary of
the interior to prescribe all necessary and proper rules and regulations and to do any and all
things necessary to carry out and accomplish the purposes of the act (U. S. C. title 30, sec.
189 [30 USCA, sec. 189]), and particularly, the authority contained in section 261 (U. S. C.
title 30 [30 USCA, sec. 261]), the secretary of the interior, wisely, we think, incorporated in
sodium permits the condition above quoted. It is just as essential to the proper carrying out
and accomplishment of the purposes of the leasing act of Congress for the secretary of the
interior to know the qualifications of the assignee of a permit as it if for him to know the
qualifications of the permittee; otherwise, a qualified permittee could with impunity assign or
transfer his permit to an unqualified assignee, and thus abrogate the act itself.
We are not in accord with the contention of counsel for the defendants that such regulation
and condition is inconsistent with and repugnant to law. Whatever may be the character of the
right secured by a sodium permit, it is not an indefeasible right which comes from a grant of
title ownership, but depends upon the qualifications of the permittee and at all times upon
certain acts to be continuously performed for a period not exceeding two years. Section 261.
The condition not to assign or transfer the permit granted Arthur Warnken without the
express consent in writing of the secretary of the interior, being in our opinion necessary and
proper to carry out and accomplish the purposes of the leasing act of Congress, it is not
inconsistent with or repugnant to law.
51 Nev. 344, 354 (1929) American Sodium Co. v. Shelley
of Congress, it is not inconsistent with or repugnant to law. This being true, the regulation
should have the force and effect of a statute. Hodgson v. Midwest Oil Co. (D. C.) 297 F. 273.
This conclusion, however, is not decisive of all the legal questions involved in the appeal
from the judgment.
4-6. The cross-complaint of the defendant Jennie Baldwin Shelley proceeds upon the
theory that their codefendant, Arthur Warnken, in violation of his fiduciary duty and with the
purpose and intention of excluding his codefendants from the benefits to be derived from his
sodium permit so assigned and transferred by him to the trustees named in his declaration of
trust, procured a lease from the government to mine, remove, and dispose of all the sodium
in, upon, and under a portion of the land covered by the Warnken permit, and that said
Warnken and said Guild hold the legal title to the leasehold interest granted subject to and in
trust for the defendants as to their undivided one-third interest in said leasehold. The
defendant, by her cross-action, seeks, in short, to have a trust impressed upon so much of the
leasehold of plaintiff as is covered by the sodium prospecting permit granted Arthur
Warnken.
In order to support the view in equity and good conscience that Warnken procured the
lease in violation of his fiduciary duty, it would be necessary to allege definite facts (not mere
inferences and conclusions) sufficient to show an existing fiduciary relation between the
defendants and Arthur Warnken. There is nothing in the cross-complaint to show this unless
such relation necessarily arose because of the assignment for a consideration by Warnken of
his sodium permit, as a trust estate. We are of opinion that a mere sodium prospecting permit,
as authorized by the leasing act of Congress, is a mere privilege, personal in character, and
cannot be trusteed. A permit is granted only to those who possess the qualifications
prescribed by the act, and is, for a period of not exceeding two years, at all times dependent
upon the execution of the permit in accordance with its terms. The permit is exclusive, it is
true, but in no event can it ripen into title ownership.
51 Nev. 344, 355 (1929) American Sodium Co. v. Shelley
event can it ripen into title ownership. The most that is granted by the government as a reward
for the discovery of commercial sodium in commercial quantities is that the permittee is
entitled to a lease of one-half the land embraced in his permit, in compact form. Cir. 699; 47
Land Dec. 529. There is nothing in the cross-complaint to show that sodium was discovered
by the permittee or his assignee upon the land embraced in the permit. In this situation we do
not perceive upon what principle of law or equity the defendants can have the lease in
question impressed with a trust in their favor upon that portion of the land embraced in the
Warnken permit.
One cannot impose a trust on a leasehold that neither he nor his grantor at any time were,
or now are, entitled to receive, or any part thereof. Hodgson v. Federal Oil & Development
Co., 274 U.S. 15, 47 S. Ct. 502, 71 L. Ed. 901, 54 A. L. R. 869, affirming (C.C. A.) 5 F. (2d)
442. Further in this connection we may observe that a court of equity is without jurisdiction
to grant relief to one claiming a preference right as against one in possession under a lease
from the government, the title still being in the government. Wilson v. Elk Coal Co. (C. C.
A.) 7 F. (2d) 112, and cases cited. In no admissible view of the leasing act of Congress is the
cross-complainant shown to be entitled to the lease in controversy or any interests therein.
Her cross-action seems to be based entirely upon the pleader's misconception of the
applicable lawthe leasing act of Congress designed to promote the mining of and the
conservation of the valuable deposits on the public domain named in the act, coal, phosphate,
oil, oil shale, gas, and sodium. The conservation of these deposits is a matter of grave public
moment and concern, and their disposition cannot be too carefully safeguarded for the
protection of the government.
Finding no error upon the face of the judgment roll, the judgment is affirmed.
____________
51 Nev. 356, 356 (1929) Blankenship v. Blankenship
BLANKENSHIP v. BLANKENSHIP
No. 2838
April 5, 1929. 276 P. 9.
1. DivorceHusband Having Been Found To Be Guilty of Extreme Cruelty Held Not
Entitled to Divorce from Wife for Her Extreme Cruelty.
Extreme cruelty in part of husband suing for divorce, also charging extreme cruelty, alleged in answer
and proved on trial, operates as a bar to granting husband a divorce under the doctrine of recrimination.
2. DivorceNeither Spouse Is Entitled to Divorce where Each Has Been Guilty of
Misconduct.
Where each of the spouses has been guilty of misconduct which is a cause for divorce, neither is
entitled to such remedy.
3. DivorceDoctrine of Comparative Rectitude, Wherein Relief by Divorce Is Granted to
Party Least in Fault, Does Not Obtain in Nevada.
Doctrine of comparative rectitude, wherein relief by divorce is granted by some courts to the party
least in fault when both have shown grounds for divorce, does not obtain in Nevada, in view of Rev.
Laws, sec. 5841, divesting the guilty party in divorce of all property and pecuniary rights and interests,
and all rights touching the children, their custody and guardianship.
C.J.CYC. REFERENCES
Divorce19 C.J. sec. 219, p. 93, n. 78; p. 94, n. 81; sec. 221, p. 95, n. 92.
Appeal from Second Judicial District Court, Washoe County; Geo. A. Bartlett, Judge.
Action by R. E. L. Blankenship for divorce against Byrd C. Blankenship. From decree and
denial of motion for new trial, defendant appeals. Reversed and remanded, with directions.
Brown & Belford, for Appellant:
If the defendant was guilty, as by the findings and judgment of the trial court she was
found to be, of extreme cruelty toward the plaintiff, the new matter set up in paragraph I of
her further and affirmative answer was, if proven, a complete and absolute defense. This
defense was that plaintiff had himself been guilty of extreme cruelty toward the defendant,
a defense of recrimination.
51 Nev. 356, 357 (1929) Blankenship v. Blankenship
of extreme cruelty toward the defendant, a defense of recrimination. It is the law in this state
and the universal rule in this country that what is called recrimination is, if proven, a
complete bar to a suit for divorce. Keezer on Marriage and Divorce, p. 301; Schouler on
Marriage and Divorce, sec. 1721; Bishop on Marriage and Divorce, sec. 365; 9 R. C. L. 387;
Pease v. Pease, 47 Nev. 124; Conant v. Conant, 10 Cal. 243; Church v. Church (R. I.), 19 Atl.
244; Tillison v. Tillison (Vt.), 22 Atl. 531; Radzinski v. Radzinski (Mich.), 207 N. W. 821;
DeViney v. DeViney (Mich.), 211 N. W. 633.
The fact that the offenses of plaintiff charged by the defendant occurred prior to the acts of
extreme cruelty alleged by plaintiff and found by the court to have been committed by
defendant, does not affect the rule that where both parties are at fault neither is entitled to a
divorce. When there are marital offenses on the part of each of the spouses, such offenses do
not usually occur at the same time, and to hold that an offense cannot be pleaded as
recrimination unless it occurs simultaneously with or subsequent to the other offense is to
establish a rule that finds support neither in reason nor authority. The authorities show that
the relative time of the offenses is immaterial. Conant v. Conant, 10 Cal. 243; Bishop on
Marriage and Divorce, vol. 2, p. 174; Keezer on Marriage and Divorce, p. 304; Smith v.
Smith (Ky.), 203 S. W. 884; Pease v. Pease (Wis.), 39 N. W. 133; Rapp v. Rapp (N.J.), 58
Atl. 167; Young v. Young (N.J.), 119 Atl. 92, Pierce v. Pierce (Vt.), 40 Atl. 728; Redington
v. Redington (Colo.), 29 P. 811; Arnaboldi v. Arnaboldi, 138 Atl. 116. In all of these cases
the matters charged as recriminatory defenses occurred prior to the commission of the acts
alleged as grounds for divorce.
The findings and judgments of the California court, pleaded by defendant, admitted in the
case and found by the trial court, conclusively proved and established the recriminatory
defense set out in the answer. A judgment in a prior suit between the same parties although
upon a different cause of action may be used as evidence of any fact actually in issue and
determined by said judgment, and as such evidence is conclusive.
51 Nev. 356, 358 (1929) Blankenship v. Blankenship
although upon a different cause of action may be used as evidence of any fact actually in issue
and determined by said judgment, and as such evidence is conclusive. Cromwell v. County of
Sac., 94 U. S. 351, 24 L. Ed. 195; Southern Pacific Co. v. United States, 168 U. S. 1, 42 L.
Ed. 355; Hartford Life Insurance Co. v. Ibs, 237 U. S. 662, 59 L. Ed. 1165; Sherman v. Dilly,
3 Nev. 21; McLeod v. Lee, 17 Nev. 103; Vickers v. Vickers, 45 Nev 274; Edwards v. Jones,
49 Nev. 342; 34 C. J. 1066, sec. 1507; Swank v. Railway Co. (Minn.), 63 N. W. 1088, at
1089; Lytle v. Railway Co. (Minn.), 77 N. W. 975; Bonanza Con. Min. Co. v. Golden Head
Mine Co. (Utah), 80 P. 736, at 738; Bank v. Davis, 184 P. 275, at 278; Re Clark's Estate
(Calif.), 212 P. 622, at 625, par. 6.
Cooke & Stoddard, for Respondent:
The defense of recrimination to be available must establish the parties as being equally at
fault. 19 C.J. 93, sec. 219; R. C. L., vol. 9, p. 387, sec. 180. Appellant's contention, then, that
the matters alleged by appellant wife constituted a good recriminatory defense, and such
allegations being supported by a decree became a conclusive recriminatory defense, cannot,
we think, be sustained, for the reason that whether such defense was good or conclusive
rested in the sound discretion of the trial court, which may, under all of the authorities as we
find them, consider the comparative rectitude of the parties and whether or not one spouse is
guilty of excessive retaliation. Each case being so found and determined upon its own
particular facts. To hold otherwise would result in the complete elimination of the rule
established by this court in the case of Reed v. Reed, 3-4 Nev. 836. Clearly, then, a
complaining spouse may come into court having violated the contract of marriage and
without clean hands, if such spouse shows that the acts of cruelty complained of constituted
excessive retaliation or cruelty out of proportion to the plaintiff's cruelty. This question of fact
being addressed to the sound discretion of the trial court for determination.
51 Nev. 356, 359 (1929) Blankenship v. Blankenship
A recriminatory defense is good only when there is a mutuality of fault, and when there is
a disproportion of guilt between the spouses a decree may be granted. Amy v. Berard, 12 La.
Ann. 882; Thomas v. Tailleu, 13 La. Ann. 127; Inskeep v. Inskeep, 5 Ia. 205; Beck v. Beck,
63 Tex. 35; Prather v. Prather, 68 N. W. 806; Staples v. Staples (Tex.), 136 S. W. 120;
McAllister v. McAllister (Wash.), 69 P. 119; Weiss v. Weiss, 140 N. W. 587.
OPINION
By the Court, Ducker, C. J.:
This is an action for divorce. As the parties have been involved in former litigation with
each other it will be more convenient to refer to them as husband and wife.
The husband's amended complaint charges extreme cruelty. Part of the facts charged as
such are alleged to have occurred subsequent to May 9, 1927. In her answer the wife denies
the acts of cruelty charged, and as an affirmative defense alleges extreme cruelty committed
by the husband prior to May 9, 1927. In support of this defense she pleads two judgments
rendered by the superior court of California in and for the county of San Diego. The first of
these judgments was rendered by the California court on July 22, 1925, in an action brought
by the wife against the husband for separate maintenance on the ground of extreme cruelty
and adultery. In this action the husband was found guilty of extreme cruelty and the wife was
granted separate maintenance. The second judgment was rendered May 9, 1927, in an action
for divorce brought by the husband. In this later action the wife filed a crossbill for a divorce.
The California court found both parties guilty of extreme cruelty and rendered judgment in
which relief was denied to either party. The reply admitted all of the allegations in the answer
concerning the judgments of the California courts.
51 Nev. 356, 360 (1929) Blankenship v. Blankenship
In the instant trial the court found that the California judgments had been rendered as
alleged in the answer, but that the wife had been guilty of acts committed since May 9, 1927,
amounting to extreme cruelty, and granted the husband a decree of divorce. From this decree,
and the order denying her motion for a new trial, the wife has appealed.
1, 2. The only question to be determined is whether the extreme cruelty on the part of the
husband alleged in the answer and proved on the trial operates as a bar to his being granted a
decree. It must be conceded that the judgments of the California court pleaded and proved
furnish conclusive proof of the fact that the husband had been guilty of extreme cruelty
towards his wife prior to May 9, 1927, as alleged in her answer. The rule of recrimination is,
in our opinion, applicable to the case and operates as a bar to a decree of divorce. The fact
that the acts on account of which the court granted a divorce to the husband were found to
have been committed by the wife since the adjudication by the California court does not make
the rule inapplicable. Where each of the spouses has been guilty of misconduct which is cause
for divorce, neither is entitled to this remedy. This rule is established by the decided weight of
American authority. Conant v. Conant, 10 Cal. 249, 70 Am. Dec. 717; Cushman v. Cushman,
194 Mass. 38, 79 N. E. 809; Green v Green, 125 Md. 141, 93 A. 400, L. R. A. 1915e, 972,
Ann Cas. 1817a, 175; Church v. Church, 16 R. L. 667, 19 A. 244, 7 L R. A. 385; Day v. Day,
71 Kan. 385, 80 P. 974, 6 Ann. Cas. 169; Kirn v. Kirn, 138 Va. 132, 120 S. E. 850; Morrison
v. Morrison, 62 Mo. App. 299; Redington v. Redington, 2 Colo. App. 8, 29 P. 811; Smith v.
Smith, 181 Ky. 55, 203 S. W. 884; Tillison v. Tillison, 63 Vt. 411, 22 A. 531; 2 Bishop on
Marriage, Divorce, and Separation, secs. 337 to 409, inclusive. Tiffany on Domestic
Relations (3d ed.), sec. 109, p. 281. The rule rests upon the equitable principle that one who
invokes the aid of a court must come into it with clean hands.
3. Relief by divorce has been granted by some courts to the party least in fault when both
have shown grounds for divorce.
51 Nev. 356, 361 (1929) Blankenship v. Blankenship
to the party least in fault when both have shown grounds for divorce. This is called the
doctrine of comparative rectitude. Counsel for respondent urge that this should be accepted as
the true rule. By reason thereof he insists that the court had discretion to compare the faults of
the parties and grant respondent a divorce notwithstanding the established cruelty of both. We
cannot subscribe to this doctrine. As has been pertinently said, it is not a principle of the
divorce law that if both are guilty the party who has sinned the least is entitled to a divorce.
Divorce is a remedy provided for an innocent party. A divorce for a guilty party is not
contemplated by our statutes respecting this subject, which under certain conditions divest the
guilty party of all property and pecuniary rights and interests, and all rights touching the
children, their custody and guardianship. Section 5841, Rev. Laws. If the doctrine of
comparative rectitude is admitted it would render this provision of law ineffective.
In Conant v. Conant, supra, the court states the reasons why any conduct made a ground
for divorce in a suit for dissolution will be adequate in bar. The court said: In this state, the
statute has specified certain acts or conduct which shall constitute grounds of divorce, and so
far as the matrimonial contract is concerned, the courts cannot distinguish between them,
whatever difference there may be in a moral point of view. The several offenses must,
therefore, be held equally pleadable in bar to the suit for divorcethe one to the other, within
the principle of the doctrine of recrimination. Aside from this consideration, it would seem to
be correct in principle, that where the matter pleaded is such as would entitle the defendant to
a decree, had it been presented in a bill brought by himself, the relief should be denied.
Certain consequences are attached to the decree, independent of the dissolution of the
marriage contract, and they are generally more favorable to the party obtaining the relief than
to the contestant; but a decree cannot be granted in favor of one, and afterwards in favor of
the other, as the first would dissolve the marriage, and then no marriage would subsist,
upon which the second decree could act; and a decree granting a divorce in favor of each,
would be an anomalous proceeding."
51 Nev. 356, 362 (1929) Blankenship v. Blankenship
favor of one, and afterwards in favor of the other, as the first would dissolve the marriage,
and then no marriage would subsist, upon which the second decree could act; and a decree
granting a divorce in favor of each, would be an anomalous proceeding.
The same view is expressed in Bishop on Marriage, Divorce, and Separation. In volume 2,
secs. 395, 396, it is said: In a dissolution suit for whatever cause, any conduct for which the
law provides the same consequence will be adequate in bar, * * * Why ? * * * If the law is
not so, we have this perplexing state of things, that cross-suits may be brought, resulting in
both parties being entitled to prevail; then, if dissolution decrees are rendered in favor of
both, each is the guilty and each the innocent party under statutory and unwritten laws which
leave to the innocent and to the guilty, after the divorce, different rights, duties, and pecuniary
interests. The law, in most of our states, has no provision for the decree in favor of one of the
parties to give way to that in favor of the other. There is a deadlock. And when this occurs,
the movements of the court in the cause cannot do otherwise than stop. The cause cannot
proceed to a decree. And this result shows, as distinctly as though the legislature had used the
exact words, that the bar must be good; since, if it is not, the statutory and common-law
provisions concerning collateral things can have no effect.
The reasoning of the foregoing authorities clearly shows the soundness of the doctrine of
recrimination adopted by most of the American courts in divorce cases. It is necessarily
opposed to any rule which would permit a court to compare marital offenses and say which of
the two parties who had committed cause for divorce was the lesser offender and therefore
entitled to a decree.
The doctrine of comparative rectitude repudiates the principle that divorce is a remedy
provided for an innocent party. In this respect it runs counter to a prohibition which would
seem to be necessarily implied from our statutes concerning divorce.
51 Nev. 356, 363 (1929) Blankenship v. Blankenship
The judgment is reversed and the cause is remanded, with directions to the lower court to
enter judgment for the appellant dismissing the action.
On Petition for Rehearing
September 13, 1929.
Per Curiam:
Rehearing denied.
____________
51 Nev. 363, 363 (1929) D'Errico v. D'Errico
D'ERRICO v. D'ERRICO
No. 2824
April 5, 1929. 276 P. 530
1. DivorceFinding Supporting Res Judicata Plea Based on Foreign Judgment, Interposed to
Original Complaint, Precluded Decree for Misconduct after Filing Original Complaint.
Where court found in action for divorce that defendant's plea of res judicata, based on foreign
judgment, interposed to original complaint, was established by evidence, decree based on misconduct or
cruelties committed after filing of original complaint cannot be sustained, since new cause of action
arising after institution of original suit cannot be prosecuted by supplemental bill, and misconduct of
defendant alleged in supplemental complaint was but continuation of general attitude toward plaintiff.
C.J.CYC. REFERENCES
Divorce19 C.J. sec. 311, p. 119, n. 77.
Appeal from Second Judicial District Court, Washoe County; Geo. A. Bartlett, Judge.
Action by Joseph D'Errico against Maria T. D'Errico. From a judgment for plaintiff, and an
order denying a new trial, defendant appeals. Reversed and remanded, with directions.
Brown & Belford and Walter M. Kennedy, for Appellant:
A judgment in a prior suit between the same parties although upon a different cause of
action, may be introduced as evidence of any fact actually in issue and determined by said
judgment and as such evidence is conclusive.
51 Nev. 363, 364 (1929) D'Errico v. D'Errico
determined by said judgment and as such evidence is conclusive. Probably the leading case in
this country on the doctrine of res judicata is that of Cromwell v. County of Sac., 94 U. S.
351, 24 L. Ed. 195. In that case Mr. Justice Field lays down two main principles of that
doctrine: (1) Where the second suit is between the same parties and upon the same cause of
action, the judgment of the first suit is a complete bar to the action. (2) Where the second suit
is between the same parties but upon a different cause of action, the judgment of a court of
concurrent jurisdiction directly upon the point is as a plea, a bar, or as evidence conclusive
between the same parties upon the same matter directly in question in another court. (Quoting
the Duchess of Kingston's case.) See, also, Southern Pacific Co. v. United States, 168 U. S. 1,
42 L. Ed. 355; Hartford Life Insurance Co. v. Ibs, 237 U. S. 662, 59 L. Ed. 1165; Sherman v.
Dilley, 3 Nev. 21; McLeod v. Lee, 17 Nev. 103; Vickers v. Vickers, 45 Nev. 274; Edwards v.
Jones, 49 Nev. 342; Higuera v. Corea (Cal.), 145 P. 529.
Since it was conclusively established by the Ohio judgment that plaintiff had deserted and
abandoned defendant on April 27, 1925, and since it appears from plaintiff's complaint and
from all the evidence that the desertion had continued and that the parties never cohabited
after said date, and consequently that at the time of the commencement of this action said
desertion had continued for a period of more than one year, and since under the law an
established recriminatory defense is a bar to a divorce action, and since plaintiff neither
alleged nor proved facts constituting a cause of action, and since such facts were not found by
the court, it was the duty of the lower court to enter judgment for defendant.
Platt & Sanford, for Respondent:
The findings and decree of the court were primarily predicated upon the issues joined by
the supplemental complaint filed by the plaintiff and respondent. This supplemental
complaint was filed and based upon a cause of action having arisen since the filing of the
original complaint in the action.
51 Nev. 363, 365 (1929) D'Errico v. D'Errico
of action having arisen since the filing of the original complaint in the action. To this
supplemental complaint no demurrer was filed by defendant and no motion was addressed to
it. An answer was filed, followed by a reply, and issue was joined on the merits. In such a
situation the complain should receive the construction more favorable to the plaintiff.
Neilsen v. Rebard, 43 Nev. 274, 183 P. 984; Morris v. Morris (Nev.), 258 P. 232.
That a supplemental complaint is actually authorized by the Nevada statute and by
authority is undisputed. Section 5076, subdivision 134, Rev. Laws of Nevada, 1912. That this
statute is applicable to divorce actions must likewise be conceded. Scoland v. Scoland, 29 P.
930; Pease v. Pease, 217 P. 239, 47 Nev. 124.
The trial court in its findings did not find that the plaintiff-respondent was guilty of willful
desertion, and if appellant-defendant relies upon the decree of a foreign court establishing this
desertion, it may not be legally pleaded or considered by way of res adjudicata. This has been
fully and finally determined by this court in the case of Pease v. Pease, ibid.
OPINION
By the Court, Sanders, J.:
This is an appeal from a judgment and from an order denying the defendant wife's motion
for a new trial in a divorce action tried to the court without a jury. Referring to the parties as
plaintiff and defendant, the facts in brief are as follows:
On June 15, 1925, the plaintiff filed a petition for divorce in the court of common pleas,
Cuyahoga County, State of Ohio, alleging therein various acts of misconduct, neglect of duty,
and cruelties of the defendant, of such nature as to force plaintiff to withdraw from the
marital relation and to live separate and apart from the defendant since the 27th day of April,
1925. Upon issues joined on the petition, answer, and reply, the petition of the plaintiff
was dismissed and the defendant granted a decree against the plaintiff for separate
maintenance, under the Ohio statute, which judgment or decree is now in force.
51 Nev. 363, 366 (1929) D'Errico v. D'Errico
issues joined on the petition, answer, and reply, the petition of the plaintiff was dismissed and
the defendant granted a decree against the plaintiff for separate maintenance, under the Ohio
statute, which judgment or decree is now in force. Unquestionably the judgment determined
that the plaintiff was the wrongdoer, and in effect that the plaintiff deserted the defendant on
April 27, 1925, willfully and wrongfully and without just cause or excuse.
Thereafter the plaintiff took up his residence in Reno, Washoe County, Nevada, and on
January 25, 1927, commenced this action for divorce upon various acts of misconduct,
neglect of duty, and cruelties, of such nature and character which, he alleges in his complaint,
constituted constructive desertion of plaintiff by the defendant, occurring on April 27, 1925.
The petition in the Ohio suit shows that the plaintiff's complaint herein is predicated upon
identically or substantially the same cause of action as that stated in his petition in the Ohio
suit. The defendant, in her answer to the complaint herein, pleaded the desertion of plaintiff
on April 27, 1925, as a recriminatory defense to the action, and set up the judgment roll in the
Ohio suit as a bar and estoppel of plaintiff's right to recover in this action. The plaintiff, for
reply to the answer, in effect admitted the pleadings in the Ohio suit, exhibited with and made
a part of the defendant's answer, but so framed his reply as to put the defendant upon proof of
all the allegations contained in her answer.
After issues were joined upon the pleadings, the plaintiff left Nevada and went back to the
place of the marital domicile of the parties in Cleveland, Ohio. While there employed
temporarily, with the intention of returning to Reno and to continue his residence therein, the
defendant literally followed plaintiff upon the streets of Cleveland, chased him in and out of
office buildings, annoyed him at the home of his brother, at which he was stopping, and
carried her nagging and annoyance to such an extent as to make it necessary for him to appeal
to the authorities of Cleveland for protection.
51 Nev. 363, 367 (1929) D'Errico v. D'Errico
authorities of Cleveland for protection. Subsequently the plaintiff returned to Reno and filed a
supplemental complaint in this action, specifying in detail the manner, time, place, and
character of such nagging and annoyance committed by the defendant after the filing of his
complaint, and alleged that they were of such character as to constitute extreme cruel
treatment, causing him serious mental anguish, pain, and suffering, and making further
cohabitation with the defendant positively unbearable and unendurable. The defendant
answered the supplemental complaint, and for answer denied its allegations, and by way of
recrimination pleaded the willful and wrongful desertion of the defendant by plaintiff,
without just cause or excuse on April 27, 1925, and prayed dismissal of the plaintiff's action.
Plaintiff for reply denied the allegations contained in the answer to the supplemental
complaint, and reiterated his prayer for judgment contained in his original complaint.
The court permitted the case to be tried as though there had never been a former trial
between the parties. In its findings of fact the court followed closely the averments contained
in the plaintiff's supplemental complaint, and found them to be true. The court also made a
finding, which reads as follows: That the affirmative defense of res adjudicata, estoppel, and
bar addressed to the cause of action alleged in plaintiff's complaint are sustained by the
evidence. Upon its findings of fact and conclusions of law, judgment was rendered in favor
of the plaintiff and against the defendant for a divorce.
The trial court having decided and found from the evidence that the cause of action alleged
in the plaintiff's original complaint was, in effect, barred by the former judgment in the Ohio
suit, we do not perceive upon what principle it could have granted the plaintiff a divorce upon
the various acts of misconduct and alleged cruelties committed by the defendant after the
filing of the original complaint, as alleged in the supplemental complaint.
51 Nev. 363, 368 (1929) D'Errico v. D'Errico
A supplemental complaint, as its name indicates, being merely an addition, or supplement, to
the original bill, and the two constituting but one record, the new matter alleged in the
supplemental bill did not and could not change the cause of action upon which the proceeding
for divorce was founded, admittedly barred by the judgment in the Ohio suit. From the very
allegations contained in the supplemental complaint, it is obvious that the subsequent acts
complained of therein were pleaded and proved for the purpose of characterization of the
previous relations between the parties and the earlier acts of cruelty decided and found by the
court to have been adjudicated in the Ohio suit. As Mr. Bishop says: Plainly the facts alleged
and existing at the time of suit brought must be the ground of the proceeding, yet it is easy to
see why they may not receive color as well from what has happened since as from what took
place before. 2 Bishop on Divorce, sec. 657.
All of the issues involved in the action, including those joined by the original and
supplemental complaints, were tried together as if there had never been a former judgment,
and the court, having found that the plaintiff could not recover upon his original complaint
because of the former judgment in the Ohio suit, plainly erred in granting to plaintiff a
divorce upon the plaintiff's supplemental complaint, which must be given the same force and
effect as though the acts therein complained of had been alleged in the original complaint.
The defeat of the original and only cause of action by the defendant's plea of res adjudicata
carried with it the supplemental complaint, which merely gave color to the acts of cruelty
alleged in and existing at the time of suit.
It is manifest that the supplemental complaint did not propose a new cause of action. On
the contrary, the various acts of misconduct on the part of the defendant were but the
continuation of the general attitude of the defendant toward plaintiff for practically 15 years
of the period of time the parties lived together. In this situation the defendant's plea of res
adjudicata, found to be established by the evidence, was as effectual a bar to the
plaintiff's right to recover upon his supplemental complaint as it was to his original
complaint.
51 Nev. 363, 369 (1929) D'Errico v. D'Errico
situation the defendant's plea of res adjudicata, found to be established by the evidence, was
as effectual a bar to the plaintiff's right to recover upon his supplemental complaint as it was
to his original complaint.
Counsel for the plaintiff, upon the authority of Pease v. Pease, 47 Nev. 124, 217 P. 239,
insists that the judgment of the Ohio court could not operate as a bar or estoppel to plaintiff's
right to recover upon his supplemental complaint, because the acts complained of therein
could not have been heard and determined in the Ohio suit. We do not consider the case of
Pease v. Pease in point. Furthermore, if by this contention we are to infer that the trial court
considered the defendant's acts of cruelty, committed after the filing of the original complaint,
to be a new and substantial cause of action, the court was not authorized to grant a divorce
upon such new cause of action. It is well settled that to permit a new cause of action, arising
after the institution of the original suit, to be prosecuted by a supplemental bill, would be to
violate the obvious principle that in every case the cause of action must exist at the time the
suit is brought. Schwab. v. Schwab, 96 Md. 592, 54 A. 653, 94 Am. St. Rep. 598. The case
expressly holds that an entirely new case cannot be introduced by a supplemental bill, citing
numerous cases to which reference is here made.
In view of the finding that the defendant's plea of res adjudicata, interposed to the original
complaint, was established by the evidence, a decree based upon misconduct or cruelties
committed after the commencement of the action cannot be sustained. The conclusion renders
it unnecessary for us to consider other questions urged for the reversal of the judgment and
order appealed from.
The judgment is reversed, and the cause is remanded, with directions to the lower court to
dismiss the action.
Ducker, C. J., and Coleman, J., concurring:
We concur in the order of reversal for the reasons given by Justice Sanders. As it appears
that both parties have been guilty of matrimonial offenses constituting grounds for
divorce, we also concur in the order on the authority of the case of Blankenship v.
Blankenship, 51 Nev. 356
51 Nev. 363, 370 (1929) D'Errico v. D'Errico
parties have been guilty of matrimonial offenses constituting grounds for divorce, we also
concur in the order on the authority of the case of Blankenship v. Blankenship, 51 Nev. 356,
276 P. 9, just decided by this court.
On Petition for Rehearing
September 13, 1929.
Per Curiam:
Rehearing granted.
____________
51 Nev. 370, 370 (1929) Lippert v. Lippert
LIPPERT v. LIPPERT
No. 2863
May 6, 1929. 277 P. 1.
1. Appeal and ErrorAppellate Court Acquired No Jurisdiction where No Undertaking,
Deposit in Lieu Thereof, Nor Written Notice of Waiver Was Made Within Five Days.
Where no undertaking, nor deposit in lieu of undertaking, nor written notice of waiver of undertaking
was made within five days after service of notice of appeal as required by Rev. Laws, sec. 5330, to make
appeal effectual, supreme court failed to acquire jurisdiction of appeal, and it must be dismissed, as
against contention that appellee waived requirement as to undertaking by delay in moving to dismiss.
C.J.CYC. REFERENCES
Appeal and Error3 C.J. sec. 1253, p. 1180, n. 80.
Appeal from Second Judicial District Court, Washoe County; Geo. A. Bartlett, Judge.
Action by Olga Wish Lippert, also known as Olga Wish Lipschutz, against Samuel S.
Lippert, also known as Samuel S. Lipschutz. From the judgment and from an order refusing
to stay such judgment, defendant appeals. On plaintiff's motion to dismiss appeals. Appeals
dismissed.
OPINION
By the Court, Coleman, J.:
This case is before the court on plaintiff's motion to dismiss the appeals. The defendant
gave notice of appeal from the final judgment and also from an order refusing to stay such
judgment.
51 Nev. 370, 371 (1929) Lippert v. Lippert
appeal from the final judgment and also from an order refusing to stay such judgment.
The defendant filed and served notice of appeal from the final judgment on June 28, 1928.
The defendant at no time filed an undertaking nor made a deposit in cash in lieu of an
undertaking, nor was an undertaking waived in writing by the plaintiff. On February 20, 1929,
the defendant filed an undertaking on appeal.
The notice of appeal from the order refusing a stay of judgment was filed and served July
10, 1928. No undertaking was filed until February 20, 1929. No deposit in lieu of undertaking
was ever made, nor was there a written notice of waiver of undertaking.
Section 5330, Rev. Laws, provides that an appeal is ineffectual for any purpose unless
within five days after the service of a notice of appeal an undertaking be filed, a deposit of
money be made with the clerk, or the undertaking be waived by the adverse party in writing.
The motion to dismiss the two appeals is based upon the fact that no undertaking was filed
within the time prescribed by law; that no deposit was made in lieu of an undertaking, and
there was no waiver in writing of an undertaking.
Counsel for defendant takes the position that plaintiff waived the statutory requirement as
to undertaking by not sooner moving to dismiss. There is nothing to this contention.
In this situation we have no option in the matter. This court has failed to acquire
jurisdiction of the appeal; hence it must be dismissed. Jasper v. Jewkes, 50 Nev. 153, 254 P.
698.
It is so ordered.
____________
51 Nev. 372, 372 (1929) Bruce v. Young Men's Christian Ass'n.
BRUCE v. YOUNG MEN'S CHRISTIAN ASS'N.
No. 2807
May 23, 1929. 277 P. 798.
1. CharitiesRejection of Evidence Tending to Show Young Men's Christian Association
Was Charitable Institution in Support of Affirmative Defense Held Error.
In action against Young Men's Christian Association to recover damages on account of death
resulting from injuries while using gymnasium of defendant, rejection of evidence tending to show that
defendant was a charitable organization to support affirmative defense in line with legislative
determination as shown by Rev. Laws, sec. 3842, exempting property used for purposes of such
associations from tax, held to constitute error.
2. CharitiesThat Young Men's Christian Association Was Charitable Institution Does Not
of Itself Prevent Recovery for Death of One Using Gymnasium.
Fact that Young Men's Christian Association was a charitable institution is insufficient in itself to
prevent recovery against it for death as a result of injuries received while using gymnasium.
3. CharitiesRecovery Could Not Be Had against Young Men's Christian Association for
Death of Member as Result of Injuries Received when Using Gymnasium.
Where person dying as result of injuries received while using gymnasium of Young Men's Christian
Association was a member paying only nominal dues, and hence accepting benefit of a charitable
institution, recovery could not be had against association in that beneficiary of charitable trust may not
hold corporation liable for neglect of its servants.
4. NegligenceRisk of Known Danger Is Generally Only One Assumed.
Generally in damage suits one only assumes the risk of a known danger.
C.J.CYC. REFERENCES
Charities11 C.J. sec. 106, p. 374, n. 94; p. 375, n. 98.
Negligence45 C.J. sec. 600, p. 1043, n. 67.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Action by Daniel H. Bruce, as administrator of the estate of Leslie M. Bruce, deceased,
against the Young Men's Christian Association. From a judgment for plaintiff, and an order
denying a motion for a new trial, defendant appeals. Reversed.
51 Nev. 372, 373 (1929) Bruce v. Young Men's Christian Ass'n.
Brown & Belford and E. F. Lunsford, for Appellant:
The facts alleged as an affirmative defense and new matter in defendant's answer show that
the defendant is a charitable corporation and therefore not liable to respond in damages for
the cause of action alleged by plaintiff. The facts alleged having been admitted by the reply,
our contention is that they constituted complete defenses to the cause of action alleged in the
complaint. We contend that the property of charitable associations is trust property, and
cannot be taken or destroyed or diverted by the uses designated by actions such as this. That
the defendant is a charitable association and entitled to all protection accorded such
associations, is apparent. Nev. Const., art 8, sec. 2. being sec. 339 Rev. Laws, re taxation;
Rev. Laws, sec. 3842; 5 R.C. L. 291-292, also, sec. 9. H.; 11 C. J. 303-304; 5 R. C. L. 374;
Abston v. Waldon Academy (Tenn.), 102 S. W. 351-352; Downes v. Harper Hospital
(Mich.), 60 N. W. 42; Feoffees of Heriot's Hospital v. Ross, 12 Clark & Finnelly, 507;
Gamble v. Vanderbilt University (Tenn.), 200 S. W. 510; Little, et al. v. City of Newburyport
(Mass.), 96 N.E. 1032; Susman v. Young Men's Christian Association of Seattle (Wash.), 172
P. 554; Magnuson v. Swedish Hospital (Wash.), 169 P. 828; Wharton, et ux. v. Warner, et al.
(Wash.), 135 P. 235; Commonwealth v. Young Men's Christian Association (Ky.), 76 S. W.
522; Horton v. Colorado Springs Masonic Building Society (Colo.), 173 P. 61; Parks v.
Northwestern University (Ill.), 75 N. E. 991; Currier v. Trustees of Dartmouth College (N.
H.), 105 Fed. 886; Fordyce v. Woman's Christian National Library Association (Ark.), 96 S.
W. 155, 7 L. R. A. (N. S.), 485; Farrigan v. Pevear, et al. (Mass.), 78 N. E. 855, 7 L. R. A. (N.
S.), 481; Thomas v. German General Benevolent Society (Cal.), 141 P. 1186; Burdell, et ux.
v. St. Luke's Hospital (Cal.), 173 P. 1008; Paterlini, et ux. v. Memorial Hospital Association
etc., et al. (C. C. A. 3d Ct.), 247 Fed. 639; Weston's Adm'x v. Hospital of St. Vincent of Paul
{Va.), 107 S. E. 7S5; Roosen v. Peter Bent Brigham Hospital {Mass.), 126 N. E. 392;
Loeffler v. Trustees of Sheppard & Enoch Pratt Hospital {Md.),
51 Nev. 372, 374 (1929) Bruce v. Young Men's Christian Ass'n.
St. Vincent of Paul (Va.), 107 S. E. 785; Roosen v. Peter Bent Brigham Hospital (Mass.), 126
N. E. 392; Loeffler v. Trustees of Sheppard & Enoch Pratt Hospital (Md.), 100 Atl. 301;
Nicholas v. Evangelican Deaconess Home and Hospital (Mo.), 219 S. W. 643.
The courts in the various jurisdictions of this country unite in holding charitable
institutions not liable to the recipient of the charity, although the basis of the exemption is
placed in the cases on different grounds. There are some cases which hold that a charitable
institution is liable to an employee or to a stranger but not liable to a beneficiary of the
charity. The reason for this rule is stated in Powers v. Mass. Homeopathic Hosp., 109 Fed
294, at p. 303; Bruce v. Central Methodist Episcopal Church (Mich.), 110 N. W. 951;
Hamburger v. Cornell University, 166 N. Y. Supp. 46.
A. Grant Miller, for Respondent:
Assuming that the defendant in the case at bar is a charitable institution, for the sake of
this argument, respondent squarely denies appellant's proposition and contends that the
defendant corporation is liable even if it were true that it were a charitable organization
within the meaning of the law. There have been numerous decisions in the United States as
well as England upon this point, and anciently charitable institutions were held free from
liability, but the modern decisions are to the contrary. There are four lines of precedence:
First, the line of authorities where liability was denied in cases where the injury was to
persons who were recipients of charity. Under this head there is a great deal of conflict
between the reported cases. The majority of the cases hold that the charitable corporation is
not liable for the torts of its servants where the injured person was accepting the benefits of
the charity at the time, unless the corporation did not use due care in selecting its servants.
One of the reasons given for these decisions is that a person who accepts the benefits of a
charity enters into a relationship which exempts the benefactor; another reason, and the
one most generally assigned, is that to permit such an institution to be held liable in such
cases would authorize the diversion of the funds of the trust from the purpose for which it
was created.
51 Nev. 372, 375 (1929) Bruce v. Young Men's Christian Ass'n.
the benefactor; another reason, and the one most generally assigned, is that to permit such an
institution to be held liable in such cases would authorize the diversion of the funds of the
trust from the purpose for which it was created. Under this classification follow the reported
cases: Powers v. Massachusetts Hospital, 65 L. R. A. 372; Hearns v. Waterbury Hospital, 31
L. R. A. 224; Park v. N. W. University, 2 L. R. A. (N. S.) 556; Parry v. House of Refuge, 52
Am. Rep. 495; McDonald v. Massachusetts Hospital, 21 Am. Rep. 529; Downes v. Harper
Hospital, 25 L. R. A. 602; Bruce v. C. M. E. Church, 10 L. R. A. (N. S.) 74; Abston v.
Academy, 11 L. R. A. (N. S.) 973; Thornton v. Franklin Square House, 22 L.R.A. (N.S.) 486;
Duncan v. Sanitarium, 41 L.R.A. (N.S.) 973; Jenson v. Infirmary, 33 L. R. A. 141; Gable v.
Sisters of St. Francis, 136 A. S. R. 879; Taylor v. Hospital, 39 L. R. A. (N.S.) 427; Fordyce v.
Library Association, 7 L.R.A. (N.S.) 485; Fire Insurance Patrol v. Boyd, 6 A. S. R. 745.
Nearly all of the cases cited by appellant are based upon facts showing that a trust fund
was created, by will, bequest or gift, created in express trust for charity, and the allegation of
appellant's answer in this case fails to show any trust, which takes this case out of every one
of the cases cited upon the question of impairment of a trust fund. This includes the case of
Feoffees of Heriot's Hospital v. Ross, and most of those cited above. We must further
segregate the hospital cases where the plaintiffs were charity patients and can be properly
styled beneficiaries of an expressed trust. However, it is to be noted in connection with these
cases that a trust fund is not altogether exempt from liability for torts (see Powers v.
Massachusetts Hospital, 65 L. R. A. 372). In fact, it is difficult to see why a charitable
corporation should be held liable for neglect in selecting its servants and not be liable for the
negligence of servants carefully selected. It is certain that the liability for one class would
impair its trust fund (if it had one) just as surely as liability for the other class, and there
does not seem to be any logic in such reasoning.
51 Nev. 372, 376 (1929) Bruce v. Young Men's Christian Ass'n.
had one) just as surely as liability for the other class, and there does not seem to be any logic
in such reasoning. Hordorn v. Salvation Army, 32 L. R. A. (N. S.) 62; Basabo v. Salvation
Army, 42 L. R. A. (N. S.) 1144.
The defendant corporation is not a charitable institution. By examination of sec. 2, art. 8 of
the Nevada constitution it will be seen that the Young Men's Christian Association is not
therein declared to be a charitable organization, nor does the section deal soley with
charitable organizations, but includes a class of other corporations, to wit, municipal,
charitable, religious and educational, and states that they may be exempt by law from
taxation. The act of 1911 cited by appellant, being sec. 3842 Rev. Laws, exempting the
Young Men's Christian Association from taxation does not designate it as a charitable
institution, but merely recognizes it as being one of the classes referred to in the constitution,
and so far as the act of 1911 is concerned the Young Men's Christian Association may be
either a charitable or a religious or an educational institution. Therefore the appellant is
obligated in the case at bar to prove as a fact in this case that the Young Men's Christian
Association of Reno is a charitable organization, and even if it were so proved, yet it might be
held liable in damages, because it nowhere appears that plaintiff's decedent was a beneficiary
of any charity. The proof shows he paid a price first to the defendant for its use, and second
for the use by him of the gymnasium.
In connection with the citation in appellant's brief in 5 R. C. L., we ask the court to read
paragraph IV of the same volume, at page 294.
The second line of cases are those in which liability is denied in all cases. Under this head
follows the original House of Lords case, The Feoffees of Heriot's Hospital v. Ross. But these
cases were based upon the contention that the administrators of a trust fund are not
responsible for the torts of their agents, and that a trust fund cannot be diverted from the
purposes to which it was dedicated by the donor. However, that doctrine was modified in
Mercy Docks Trustee v. Gibbs, 11 House of Lords 6S6.
51 Nev. 372, 377 (1929) Bruce v. Young Men's Christian Ass'n.
11 House of Lords 686. Respondent's contention in reference to this line of cases is that no
express trust was ever created nor was any fund ever dedicated in the case at bar, neither was
the building itself.
The third line of cases recognizes liability as to strangers and servants. The declaration that
trust funds cannot be used to compensate wrongs committed by an agent of the trustee is not a
correct statement of the law. Bruce v. C. M. E. Church, 10 L. R. A. (N. S.) 74; Powers v.
Massachusetts Hospital, 65 L. R. A. 372. It is usually held that a charitable institution is liable
for the negligence of its servants where injury is inflicted upon a stranger. Bruce v. C. M. E.
Church, supra; Gallon v. House of Good Shepherd, 24 L. R. A. (N. S.) 286, 122 N. W. 631;
Kellog v. Church, 38 L. R. A. (N. S.) 481; Basabo v. Salvation Army, 42 L. R. A. (N. S.)
1144. If such charitable corporations are liable to strangers and their servants where there is
an express trust created, certainly the defendant is liable in the case at bar where no such
express trust exists.
The fourth line of cases recognizes liability in all cases. Hewitt v. Women's Hospital, 7 L.
R. A. (N. S.) 496; Tucker v. Mobile Infirmary Association, L. R. A. vol. 1915d, p. 1167;
State (Trustee of Y. M. C. A., Prosecutor) v. City of Patterson; David Horden v. Salvation
Army, supra; Basabo v. Salvation Army, supra; Kellog v. Church Charity Foundation, 124 N.
Y. S. 566; Chapin v. Young Men's Christian Association, 42 N. E. 1130. The rule of
respondent superior is not dependent upon whether the master makes profit by the discharge
of the duties, according to the case of Gilbert v. Trinity House, 17 O. B. D. 795. Then the
question is: Did the defendant in the present case owe a duty to Bruce at the time when he
was using the apparatus and when the injury occurred? We believe it did, and that duty was to
furnish reasonable safe apparatus for the purpose for which it was to be used. If the
corporation failed in this, it failed in its duty to Leslie M. Bruce. This being so, the first
affirmative defense, setting up what may be termed a charitable defense, is not a defense
to the cause of action alleged in the complaint.We have no statute in this state exempting
charitable institutions from their torts.
51 Nev. 372, 378 (1929) Bruce v. Young Men's Christian Ass'n.
defense, setting up what may be termed a charitable defense, is not a defense to the cause of
action alleged in the complaint.We have no statute in this state exempting charitable
institutions from their torts.
OPINION
By the Court, Coleman, J.:
The plaintiff sued to recover damages on account of the death of Leslie M. Bruce, which
was the result of injuries received while using the gymnasium of the defendant, of which he
was a member. While climbing and swinging on a rope attached to a screw bolt which was
fastened to the ceiling or a joist, the bolt pulled out, causing the deceased to drop to the floor,
falling on his head.
The defendant pleaded several defenses, among others that it is a charitable institution, and
hence not liable in damages. From a judgement in favor of the plaintiff and an order denying
a motion for a new trial, an appeal has been taken.
The first alleged error to be considered is the ruling of the trial court in sustaining the
objection to certain evidence tending to show that the defendant is a charitable organization.
Article 8, sec. 2, of our constitution, provides that property of all corporations shall be
subject to taxation, except that corporations formed for municipal, charitable, religious, or
educational purposes may be exempted by law. Our legislature in 1911 enacted a statute
exempting all property of Young Men's Christian Associations used for the purposes of such
associations. Stats. 1911, p. 127; R. L. sec. 3842.
1. The evidence which was rejected was offered to support an affirmative defense pleaded
in the answer to the following effect: That the principal objects for which the defendant was
formed, as stated in its articles of incorporation, are to develop the Christian character of its
members and to improve the spiritual, mental, social, and physical conditions of young men;
that defendant has no capital stock; that no person has or can derive private pecuniary
profit therefrom, and that it has never paid and does not pay any salary or compensation
to any of its directors or officers, or to any persons except employees; that the building
belonging to defendant and used by it in promotion its chief aim was erected on land
donated to the defendant in order that said building might be erected thereon; and that
said building was erected and equipped with funds secured from gifts, donations, and
contributions made by individuals impelled by charitable, benevolent, and philanthropic
motives; that, in furtherance of its primary purposes, the defendant has carried on in said
building religious courses of instruction along educational lines, and has had addresses
and lectures on educational, moral, social, and other subjects; that it maintained a
gymnasium and conducted gymnasium classes therein and maintained a swimming pool
and other facilities for sports and physical exercise, and has conducted and permitted
others to conduct social activities therein; that defendant, in order to promote its primary
purposes, frequently permitted members of the general public, who were not members
thereof, to use its said building, including its gymnasium, swimming pool, and general
facilities, free of charge, or at a nominal charge, and that all of the members of defendant
were and are entitled to use all of its facilities, and that they pay membership dues which
in amount are wholly insufficient to cover the cost of maintenance and of carrying on its
activities, which said members are entitled to enjoy.
51 Nev. 372, 379 (1929) Bruce v. Young Men's Christian Ass'n.
social, and physical conditions of young men; that defendant has no capital stock; that no
person has or can derive private pecuniary profit therefrom, and that it has never paid and
does not pay any salary or compensation to any of its directors or officers, or to any persons
except employees; that the building belonging to defendant and used by it in promotion its
chief aim was erected on land donated to the defendant in order that said building might be
erected thereon; and that said building was erected and equipped with funds secured from
gifts, donations, and contributions made by individuals impelled by charitable, benevolent,
and philanthropic motives; that, in furtherance of its primary purposes, the defendant has
carried on in said building religious courses of instruction along educational lines, and has
had addresses and lectures on educational, moral, social, and other subjects; that it maintained
a gymnasium and conducted gymnasium classes therein and maintained a swimming pool and
other facilities for sports and physical exercise, and has conducted and permitted others to
conduct social activities therein; that defendant, in order to promote its primary purposes,
frequently permitted members of the general public, who were not members thereof, to use its
said building, including its gymnasium, swimming pool, and general facilities, free of charge,
or at a nominal charge, and that all of the members of defendant were and are entitled to use
all of its facilities, and that they pay membership dues which in amount are wholly
insufficient to cover the cost of maintenance and of carrying on its activities, which said
members are entitled to enjoy.
We think the court committed prejudicial error in rejecting the evidence offered. While we
do not think it necessary to pass upon the question as to whether the legislature in passing the
act in question conclusively determined the defendant to be a charitable institution, it is
certainly indicative of that idea. The defendant is not a municipal corporation, nor is it
religious or educational, and, since it had authority to exempt only one other class of
institutions, and those charitable, a strong inference may be drawn that such was the
class in which the legislature in adopting the act in question placed the defendant.
51 Nev. 372, 380 (1929) Bruce v. Young Men's Christian Ass'n.
one other class of institutions, and those charitable, a strong inference may be drawn that such
was the class in which the legislature in adopting the act in question placed the defendant. But
aside from the classification which the legislature made, if any, we are clearly of the opinion
that the defendant is a charitable organization in case the tendered proof is established. In the
case of Little, et al. v. Newburyport, 210 Mass. 414, 96 N. E. 1032, Ann. Cas. 1912d, 425,
was presented the identical question here confronting us. The court said: It will be seen that
this is not an alms-giving organization. But that is not decisive of the question raised. Charity
in the legal sense is not confined to mere almsgiving or the relief of poverty and distress, but
has a wider signification, which embraces the improvement and promotion of the happiness
of man.' Braley, J., in New England Sanitarium v. Stoneham, 205 Mass. 335, 342, 91 N. E.
385, 387. The association carries on a work which is intended and adapted for the
improvement and elevation of young men, not only to bring them under good influences, but
to promote their moral, mental and physical welfare. It incurs expense for this purpose, for
meeting which it relies mainly upon charitable contributions. In its essence, though not giving
charity in the narrow sense of that word, it is a benevolent or charitable institution within the
meaning of those words in the statuteciting cases.
Mr. Justice Gray, in Jackson v. Phillips, 14 Allen (Mass.) 539, defined a charity as
follows: A charity, in a legal sense, may be more fully defined as a gift, to be applied
consistently with existing laws, for the benefit of an indefinite number of persons, either by
bringing their minds or hearts under the influence of education or religion, by relieving their
bodies from disease, suffering, or constraint, by assisting them to establish themselves in life,
or by erecting or maintaining public buildings or works, or otherwise lessening the burdens of
government. It is immaterial whether the purpose is called charitable in the gift itself, if it is
so described as to show that it is charitable in its nature."
51 Nev. 372, 381 (1929) Bruce v. Young Men's Christian Ass'n.
itself, if it is so described as to show that it is charitable in its nature.
This definition was approved in Hoeffer v. Clogan, 171 Ill. 462, 49 N. E. 527, 40 L. R. A.
730, 63 Am. St. Rep. 241. We heartily approve of this definition. In what better way, we may
observe, than that adopted by the Young Men's Christian Association, and similar
organizations, may the young be assisted in establishing themselves for life, and as good
citizens who will contribute to the promotion of good government? It is to the interest of
society and government to promote the highest type of citizenry, and an organization which
contributes to this end lessens the burden of government. If this were a doubtful question,
every presumption should be resolved in favor of the conclusion reached. We entertain no
doubt concerning the point involved, from a consideration of sound reasoning, and the weight
of authority is in line with this view. Carter v. Whitcomb, 74 N. H. 482, 69 A. 779, 17 L. R.
A. (N. S.) 733; Philadelphia v. Women's Christian Ass'n., 125 Pa. 572, 17 A. 475; Young
Men's Christian Ass'n. v. Douglas County, 60 Neb. 642, 83 N. W. 924, 52 L. R. A. 123;
Young Women's Christian Ass'n. v. Spencer, 29 Ohio Cir. Ct. R. 249; Goodell v. Union
Ass'n. etc., 29 N. J. Eq. 32. It is not necessary that an institution give alms to constitute it
charitable in character. 5 R. C. L., p. 374, par. 119; Dingwell v. Seymour (Cal. App.) 267 P.
327.
2. Does the fact that the defendant is a charitable institution, of itself, warrant a judgment
in its favor?
There are many decisions in this country holding in accord with the contention of
appellant. These decisions hark back to the case of Feoffees of Heriot's Hospital v. Ross, 12
Clark & F. 507, 8 Eng. Reprint, 1508, as an authority establishing the doctrine.
That case grew out of the refusal of the trustees of a hospital, endowed for the benefit of
poor fatherless boys, to receive a boy qualified for admission. Three opinions were written in
that case. Lord Cottenham observed: "The question then comes to this,whether by the
law of Scotland a person who claims damages from those who are managers of a trust
fund, in respect of their management of that fund, can make it liable in payment.
51 Nev. 372, 382 (1929) Bruce v. Young Men's Christian Ass'n.
observed: The question then comes to this,whether by the law of Scotland a person who
claims damages from those who are managers of a trust fund, in respect of their management
of that fund, can make it liable in payment. It is obvious that it would be a direct vi