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48 Nev. 1, 1 (1924) Thomsen v.

Keil
THOMSEN v. KEIL
No. 2613
June 4, 1924. 226 Pac. 309.
1. BoundariesWhen Corner Regarded as Lost Corner.
A corner should not be regarded as lost until all means of fixing its original location have been
exhausted; a lost corner being a point of a survey the position of which cannot be determined beyond
reasonable doubt, either from original traces or from other reliable evidence relating to the position of the
original monument, and the restoration of which on the earth's surface can be accomplished only by
means of a suitable survey with reference to interdependent existent corners.
2. BoundariesRoad in Ravine Held an Accessory, or Call From Which Original Location of
Quarter Corner Could be Established.
Where a road called for in field notes was in a ravine, it was to be considered as an accessory, or call
from which the original location of the quarter corner could be established, especially where the point at
which a marked stone was found and designated in the filed notes as the location of the quarter corner
was only about 70 feet from the road, and in clear view thereof.
3. EvidenceEffort of Party to Conceal Marked Stone Held Circumstance Against Him.
The effort of plaintiff to conceal a marked stone found near the claimed location of a boundary corner
held a circumstance justifying the court in looking with suspicion upon his case.
4. BoundariesCourse and Distance Generally Yield to Natural and Ascertained Objects.
Generally course and distance yield to natural and ascertained objects, but where they are wanting,
and the course and distance cannot be reconciled, the one is not required to be preferred to the other.
5. Appeal and ErrorPortion of Brief Constituting Unjustified Attack on Adversary's
Witness Stricken.
Where a portion of appellant's brief was an unjustifiable, inexcusable attack upon one of adversary's
witnesses, a motion duly made to strike that portion of the brief on such grounds will be granted.
See (1, 2, 4) 9 C. J. sec. 15, p. 162, n. 85; sec. 16, p. 163, n. 91; sec. 127, p. 213, n. 33; (3) 22 C. J. sec. 53, p.
112, n. 55; (5) 3 C. J. sec. 1595, p. 1433, n. 23.
Appeal from Sixth Judicial District Court, Humboldt County; James A. Callahan, Judge.
Action by T. A. Thomsen against C. F. Keil, who interposed a cross-complaint. From a
judgment for defendant, and from an order denying a motion for new trial, plaintiff
appeals.
48 Nev. 1, 2 (1924) Thomsen v. Keil
defendant, and from an order denying a motion for new trial, plaintiff appeals. Affirmed.
(Sanders, J., dissenting.)
Warren & Dignan, for Appellant:
Every call for natural object on random line of original survey is admittedly incorrect, yet
defendant seeks to support judgment on obliterated road whose position is nowhere disclosed.
His surveyor refused to be governed by rules of Department of Interior and attempted to fix
true corner by single proportionate measurement, though regulations require double
measurements. His survey is anchored to nothing. 1919 Manual, secs. 365, 370; Clark's
Surveying, secs. 343, 379.
Calls for natural objects or marked lines and corners prevail over courses and distances. If
there is mistake in calls and not in courses and distances, rule is reverse. Christenson v.
Simmons, 82 Pac. 805; Goss v. Golinsky, 106 Pac. 604.
Defendant ignored apparent mistake in call, court refused to make finding upon it.
Judgment is clearly against evidence. Lost corner must be reestablished according to rules.
King v. Carmichael, 87 Pac. 1120.
Thos. E. Powell, for Respondent:
Road still exists above and below canyon and could be only in bottom of steep canyon
where line crossed it. Miller v. Cuehlo, 90 Cal. 549, does not hold that road is not legal
evidence, but merely that it is not conclusive. Plaintiff's surveyor attempted, not to reestablish
N.W. or N.E. corner of section 33, but to investigate as to original corners or monuments in
field notes. N 1/4 corner of section 33 was found to be obliterated, not lost. Its relocation was
unnecessary and surveyor never claimed to have relocated it. Original survey is presumed
correct. United States surveyor's corners are conclusive, right or wrong, as to boundary lines.
Clark's Surveying, sections 13, 385, 388, 389, 395; Fredertzie v. Boeker, 92 S. W. 227.
Courses and distances yield to fixed monuments. Blake v. Doherty, 5 L. Ed. 109; Higuera v.
U. S. 1S L. Ed. 469; Clark, sec.
48 Nev. 1, 3 (1924) Thomsen v. Keil
5 L. Ed. 109; Higuera v. U. S. 18 L. Ed. 469; Clark, sec. 415. Obliterated corner may be
established by witness who saw it. Clark, secs. 342, 397, 398, 401, 415.
OPINION
By the Court, Coleman, J.:
This suit is in the nature of an action to quiet title. It is in reality an action to establish a
boundary. Plaintiff sought to have his title quieted to the northwest quarter of the northeast
quarter of section 33, township 36 north, range 35 east, Mount Diablo base and meridian,
Humboldt County, Nevada. The defendant filed an answer disclaiming any title or interest in
said property, but for a cross-complaint sought to have his title quieted to the east half of the
northwest quarter of section 33, township 36 north, range 35 east, Mount Diablo base and
meridian, Humboldt County, Nevada. From a judgment in favor of the defendant, and an
order denying a motion for a new trial, the plaintiff has appealed.
A determination of the issues between the parties depends entirely upon the correct
location of the north quarter-section corner of section 33, since the plaintiff is admitted to be
the owner of the land to the east of the true line between the tracts claimed by the parties, and
the defendant of the tract to the west of this line.
The township in which the section mentioned is located was surveyed many years ago by
the United States Government. In an effort to sustain his contention as to the correct position
of the quarter corner mentioned, the respective parties employed a surveyor to locate the
same. In doing so they undertook to locate the north line of section 33. While both found the
original monument of the southwest corner of the section, they disagreed as to the original
location of the northwest and the northeast corners thereof.
Beginning at the northwest corner of the section, the original field notes, so far as material,
read:
East, on a random line between sections 28 and 33 variation 17 45 east.
48 Nev. 1, 4 (1924) Thomsen v. Keil
variation 17 45 east. Over mountainous ground. 11.00 cross ravine course S. 21.00 cross
ravine course S. 39.00 cross road course S. E. 40.00 set temporary 1/4 sec. cor. 55.00 cross
ravine course S. E. 80.33 intersect N. & S. line 15 lks. N. of the cor. to secs. 27, 28, 33 & 34,
thence I run N. 89 54 W. on a true line bet. secs. 28 & 33 with same var. 40.16 Deposit a
marked stone 12 ins. in the ground for 1/4 sec. cor. dig pits 18x18x12 ins. E. & W. of cor. 5
1/2 ft. dist. and raise a mound of earth 1 1/2 ft. high, 3 1/2 ft. base over it. In E. pit drove a
stake 2 ft. long 2 ins. square, 12 ins. in ground marked 1/4 S. on N. face. 80.33 the cor. to
secs. 28, 29, 32 & 33, land mountainous, soil 3rd rate, sagebrush.
The plaintiff contending that the north quarter corner of section 33 is a lost corner his
surveyor established it at a point which, if correct, would necessitate a reversal of the
judgment. The surveyor of the defendant took the view that the north quarter corner is not a
lost corner, and established it at the point which the trial court adopted as the original north
quarter corner.
1. A lost corner is defined as follows:
A lost corner is a point of a survey whose position cannot be determined, beyond
reasonable doubt, either from original traces or from other reliable evidence relating to the
position of the original monument, and whose restoration on the earth's surface can be
accomplished only by means of a suitable surveying process with reference to interdependent
existent corners. Clark on Surveying and Boundaries, sec. 376, quoting from rules of the
Department of Interior.
In the same section the author says:
A corner should not be regarded as lost until all means of fixing its original location have
been exhausted. It is much more satisfactory to so locate the corner than regard it as lost
and locate by proportionate measurement.
At section 329 the author says:
The surveyor should not treat a corner as lost until he has exhausted all means of fixing
its location aside from the determination thereof, by measurement thereof to other
corners."
48 Nev. 1, 5 (1924) Thomsen v. Keil
he has exhausted all means of fixing its location aside from the determination thereof, by
measurement thereof to other corners.
Counsel for appellant says that the rules of the Department of Interior relative to the
establishment of corners as originally established pursuant to the government survey must
control. This would certainly be true if the quarter corner in question were upon the surveyed
public domain; but, since it is upon land privately owned, and for which patent has been
issued, we are not prepared to admit the contention, but, since the case seems to have been
tried upon the theory urged, we will in disposing of it be guided by the rule invoked.
The trial court no doubt kept in mind the admonitions above quoted against considering a
corner as lost. Indeed, we think it would have violated the rule invoked by appellant had it
concluded that the corner in question is lost. In the light of the rule quoted we must
determine if the trial court could, beyond reasonable doubt, either from original traces or from
other reliable evidence relating to the original position of the corner, determine its position.
The evidence on the part of the plaintiff is to the effect that he measured the distance
between the points which he contends represent the northwest and the northeast corners of the
section and established the north quarter corner at a point equidistant between the two. As we
have pointed out, the surveyor of the defendant disagreed as to the correct location of these
corners as maintained by the surveyor of the plaintiff. Which view the trial court accepted
does not appear. Nor indeed is it material, since it rejected in toto the theory of the plaintiff as
to its being a lost corner. Since, as we have said, the position of the north boundary line of the
section is not seriously disputed, we need not consider in detail the evidence of the surveyor
of the defendant. It will be observed that the original field notes of the survey of this north
boundary line of section 33, as quoted, calls for a road course S. E." at a point 39 chains
distant form the northwest corner of the section, and a 40 chains "set temporary 1J4 sec.
cor."
48 Nev. 1, 6 (1924) Thomsen v. Keil
S. E. at a point 39 chains distant form the northwest corner of the section, and a 40 chains
set temporary 1/4 sec. cor. The undisputed testimony shows that there was a road crossing
this section in the direction mentioned in the field notes; that this road is in a deep ravine at
the point where the ravine crosses the north section line in question; that a road could not
have been constructed on the west side of that ravine because of the topography of the
country, and there is evidence that there never was a road on the east side of it, and that one
could not have been built along its east side except at great cost; that the bottom of the ravine
was a natural roadbed; that the road in this ravine had been used for many years; that a few
years ago there was a cloudburst which washed large quantities of rock and gravel into the
road at the point mentioned, but the point at which the road passed up the ravine where thus
covered over was located by oral evidence. Witnesses also testified that at a point about 70
feet east of this road, on the side of the hill, and in clear view of the road, a rock about 20
inches long was discovered with the figure 4 cut upon it with a line over the figure. The
defendant testified that he had seen this rock at this point over a period of several years. A
remarkable coincidence in this connection is the fact that the surveying crew of the plaintiff
took this rock from the place it had been for several years, carried it to town, and strenuously
resisted all efforts on the part of the defendant to have it produced in court.
Clark on Surveying and Boundaries, at section 373, says:
Where a monument is obliterated, the accessories furnish the highest evidence of the
location of the original monument, and therefore such accessories are of prime importance in
relocating such obliterated monument. The term accessories includes all witness trees, line
trees, mounds, pits, streams, bodies of water, ledges, rocks, or other natural features to which
the distance from the corner or monument are known.
48 Nev. 1, 7 (1924) Thomsen v. Keil
These natural features furnish unmistakable evidence of the location of the monument, the
nearer to the required point, the stronger the evidence.
2. In the instant case the road called for in the field notes was in a ravinethe only place,
according to the evidence, it could beand the place where it is shown to have been. This
certainly must be considered as an accessorya call from which the point of the original
location of the quarter corner could be established. Particularly is this true when it is
remembered that the point at which the marked stone was found and that designated in the
field notes as the location of this quarter corner is only about 70 feet from this road and in
clear view thereof.
3. No doubt, too, the court attached considerable significance to the rock to which we have
alluded. It is true that the rock was not found in a mound or in such a position as to indicate
that it had been placed at the point found, but, in view of all of the testimony, particularly that
as to cloudbursts in that locality, the court was justified in concluding that it had been carried
a short distance from the point at which it was originally placed. The effort on the part of the
plaintiff to conceal this stone is a circumstance justifying the court in looking with suspicion
upon his case.
We think, in view of all of the evidence, the court was justified in establishing the quarter
corner with reference to the call for the road in the field notes where it did.
4. The rule which should control in this situation is that stated in a unanimous opinion by
the Supreme Court of the United States, speaking through Mr. Justice Story, wherein he said:
It may be laid down as an universal rule, that course and distance yield to natural and
ascertained objects. But where these are wanting, and the course and distance cannot be
reconciled, there is no universal rule that obliges us to prefer the one or the other. Cases may
exist, in which the one or the other may be preferred, upon a minute examination of all the
circumstances. Preston's Heirs v. Bowmar, 6 Wheat.
48 Nev. 1, 8 (1924) Thomsen v. Keil
6 Wheat. 581, 5 L. Ed. 336. The road in the instant case was certainly an ascertained object,
an accessory in the sense used in the foregoing opinion.
In United States v. Redondo Dev. Co., 254 Fed. 656, 166 C. C. A. 154, the court, in
disposing of a case involving a question of disputed boundary, said:
The general order of precedence of proofs for determining disputed boundaries gathered
from the multitude of adjudicated cases is: First, natural monuments or objects, like
mountains, lakes, and streams; second, artificial marks, stakes, or other objects, made or
placed by the hand of man, as in this case; third, courses and distances in documents or
writings prescribing or reporting the establishment of the lines; lastly, recitals of quantity. But
the rule is not imperative. It proceeds upon considerations of the comparative certainty or
fallibility of the evidences of the intention of the qualified authority, public or private, by
which the boundary was prescribed. The rule is one of construction, and, like all such rules it
is not conclusive or final, but is adaptable to circumstances.
See, also, Security L. & Ex. Co. v. Burns, 193 U. S. 167, 24 Sup. Ct. 425, 48 L. Ed. 662;
Clark, Surveying and Boundaries, sec. 415.
We can see nothing in the case of Jones v. Andrews, 72 Tex. 5, 9, S. W. 170, or in the case
of Hanson v. Township of Red Rock, 4 S. D. 365, 57 N. W. 11, in conflict with the rule
stated. In fact, they both accept the rule, but in the particular case the court is governed by the
idea expressed in the United States v. Redondo Dev. Co., supra, to the effect that the rule is
one of construction, and, like all such rules, is not conclusive or final, but is adaptable to
circumstances.
5. A motion was made in apt time and argued and submitted at the time this case was
argued on the merits, to strike a certain portion of appellant's opening brief. The matter
alluded to is an attack upon one of the witnesses who testified in behalf of the defendant, and
is uncalled for, without justification, inexcusable, and a gross abuse of the privilege enjoyed
by an attorney.
48 Nev. 1, 9 (1924) Thomsen v. Keil
attorney. It is ordered that the motion be sustained, and that the matter complained of be
stricken from appellant's opening brief.
It is further ordered that the judgment be, and the same is hereby, affirmed.
Ducker, C. J.: I concur.
Sanders, J.: I dissent.
On Motion to Strike and Petition for Rehearing
February 9, 1925. 232 Pac. 1080.
1. Appeal and ErrorFrivolous Reply to Petition for Rehearing Stricken.
Respondent's reply to appellant's petition for rehearing alleging that petition
contained scurrilous matter, and characterizing its contents as balderdash, etc., will be
stricken as frivolous.
See 4 C. J. 2518, p. 639, n. 70.
On motion to strike reply to petition for rehearing and on petition for rehearing. Motion to
strike granted, and rehearing denied.
OPINION
By the Court, Coleman, C. J.:
Counsel for appellant has moved to strike from the files of the court the reply of
respondent to the petition for a rehearing upon the ground that (1) it was not filed within the
time allowed by the rules of the court; and (2) for the reasons that the said reply is sham,
frivolous, and irrelevant, and that the same is scandalous, disrespectful to the above-entitled
court, and is an unwarranted and libelous reflection upon counsel for appellant.
We will not consider the first reason, since we think the motion should be granted on the
ground that the reply is frivolous. The opening paragraph of the rely reads:
It is with much regret that we take up the task of replying to the alleged petition for
rehearing on this appeal.
48 Nev. 1, 10 (1924) Thomsen v. Keil
appeal. Regret that we should even find it necessary to read a scurrilous screed, composed
almost wholly of balderdash and billingsgate, falsehood and fiction, abuse and vile and
contemptuous insinuations, against not only the defendant and his witnesses and counsel, but
also against the trial court, which rendered its judgment in favor of the defendant, and the
members of this court, which affirmed that judgment.
Throughout the reply many such statements may be found.
We will not undertake to pass upon the merits of the statements quoted. Be they true or
false we can see no justification or excuse for the use of such language, either in an oral or a
written argument. Certainly a court, engaged in the consideration and disposition of serious
matters, should not have its time taken up by having to read such charges. Such language can
in no way aid the court in solving the problems presented, and its mind should not be
influenced against a litigant or counsel, or diverted from the real purpose of its undertaking. 3
C. J. 1432, 3; Green v. Elbert, 137 U. S. 615, 11 S. Ct. 188, 34 L. Ed. 792. Incidentally we
may say that, if counsel for respondent is of the opinion that the petition for a rehearing
contains scurilous matter, he should have attacked it by a motion to strike rather than attack
counsel for appellant.
We think the reply to the petition should be stricken.
It is so ordered.
On Petition For Rehearing
By the Court, Coleman, C. J.:
A strenuous petition for a rehearing has been presented. The first matter to which our
attention is directed is language in the former opinion which counsel for appellant consider a
reflection upon them. It was not our intention to single them out for criticism, and we do not
think we said anything which justifies the conclusion reached by counsel. After again
reviewing the record, we see no reason to retract what we said in that opinion.
48 Nev. 1, 11 (1924) Thomsen v. Keil
We quote from the petition for a rehearing:
The second paragraph in the opinion shows, quite clearly, the court missed the main point
in the whole case. This paragraph reads as follows: A determination of the issues between
the parties depends entirely upon the correct location of the north quarter-section corner of
section 33, since the plaintiff is admitted to be the owner of the land to the east of the true
line between the tracts claimed by the parties, and the defendant of the tract to the west of this
line.'
Counsel then says:
It was agreed and stipulated between the parties that the boundary line between their
respective premises was fixed originally by the United States government survey. The issue in
the case, under the pleadings and under the stipulation, cannot now be framed by the court,
unless, of course, the court may have meant the location of this corner as fixed by the United
States government surveyor, and not the location that some surveyor or even a court might
conclude was correct.
How could counsel presume that we meant any other quarter-section corner than the one
located by the government survey? There could be but one quarter-section corner. We think it
a waste of time to undertake a serious consideration of such a point.
After a careful examination of the petition, we are unable to see greater merit in the other
point made than in the one just disposed of.
A rehearing is denied.
Ducker, J.: I concur.
Sanders, J.: I dissent.
____________
48 Nev. 12, 12 (1924) Gill v. Paysee
GILL v. PAYSEE
No. 2610
June 4, 1924. 226 Pac. 302.
1. SchoolsContractor's Surety Bond Construed Most Favorably to Beneficiary.
If terms of a building contractor's surety bond are susceptible of two constructions, that most
favorable to beneficiary should be adopted, if consistent with purpose to be accomplished.
2. SchoolsObligee's Order to Pay Last Installment Due Contractor to Surety Held Practical
Construction of Contract and Bond as Inuring to Benefit of Laborers and Materialmen.
Order by obligee, required by school building contractor's bond to notify surety in case of default and
not to make last payment without its consent, that last payment be paid to surety, on contractor's default
in payment for labor and materials, notwithstanding contractor's assignment, held binding practical
construction of contract and bond as inuring to benefit of laborers and materialmen. (Per Sanders, J.)
3. SchoolsBuilding Contractor's Bond Held Given Pursuant to Statute Requiring Bond
Conditioned on Payment for Labor and Materials.
Building contractor's bond, reciting that it was given under Stats. 1921, c. 35, declaring laws
governing letting of contracts for public buildings applicable, held, given pursuant to Stats. 1913, c. 264,
requiring bond conditioned on payment for labor and materials, though bond was conditioned to save
obligee harmless only. (Per Coleman, J.)
See 32 Cyc. p. 307, n. 94; 35 Cyc. p. 960, n. 73, 84.
Appeal from Second Judicial District Court, Washoe County; George A. Bartlett, Judge.
Action by W. C. Gill against Robert Paysee and the United States Fidelity and Guaranty
Company. From judgment against defendant corporation, it appeals. Affirmed. Rehearing
denied. (Ducker, C. J., dissenting.)
Gustin & Pence, for Appellants:
Bond provides surety will save county harmless from loss by breach of contract, not that it
will pay contractor's debts. Materialmen and laborers cannot sue on bond not made for their
benefit. The few cases holding to contrary are lost in great weight of authority. First M. E.
Church v. Isenberg, 92 Atl. 141; Page on Contracts, sec.
48 Nev. 12, 13 (1924) Gill v. Paysee
on Contracts, sec. 2408; Babcock v. Surety Co., 236 Fed. 340 (distinguishing Peake v. U. S.,
16 App. D. C. 415, and Spear v. U. S., 31 App. D. C. 376, in which bond, though defective,
provided contractors pay for material); 27 Cyc. 308.
Statute will not be read into bond to create liability not disclosed. Schaarbauer v.
Lampasas Co., 214 S. W. 468.
If bond is not conditioned as required by statute it furnishes no protection to materialmen.
Wilcox Co. v. School, 114 N. W. 263.
Cooke, French & Stoddard, for Respondent:
Crux of case is whether bond was in contemplation of 1913 Stats. 407. Appellant claims it
was merely to indemnify county and not for faithful performance.
Stats. 1921, 63, was read into bond which recites board was acting under its provisions.
Statute is in bond precisely as if expressly referred to. E. I. Dupont Co. v. Culgin Co., 92 N.
E. 1023; 15 C. J. 561.
Contract and bond refer to 1921 statute which refers to 1913 statute. This constitutes
adoption. Thaites v. Bicksbee, 167 Pac. 166: 36 Cyc. 1152; 2 Sutherland Cons. (2 ed.) 787.
When statutory terms are referred to they are binding though not set forth. People v. Surety
Co., 105 N. E. 99.
Where bond is executed to secure performance of contract, bond and contract must be
construed together. Walker Co. v. Surety Co., 211 Pac. 998.
Public building contract and bond that contractor furnish or provide material and perform
labor, mean to pay for same and third party furnishing either can sue on such bond. Nye etc.
Co. v. Roeser, 173 N. W. 605.
OPINION
By the Court, Sanders, J.:
This is an appeal from a judgment rendered upon the overruling of appellant's general
demurrer to a complaint filed to recover a balance of $2,900 of an amount due upon a
contract for labor performed upon and materials furnished and used in the construction of
a public building known as the "Lander County High School," at Battle Mountain, Nevada,
in said county.
48 Nev. 12, 14 (1924) Gill v. Paysee
due upon a contract for labor performed upon and materials furnished and used in the
construction of a public building known as the Lander County High School, at Battle
Mountain, Nevada, in said county.
The facts alleged in the complaint are substantially as follows:
The legislature at its session in 1921 enacted a law which authorized, empowered, and
directed the board of county commissioners of Lander County to issue bonds not to exceed in
amount the sum of $75,000 for the purpose of providing funds for the construction of a
county high school building in the town of Battle Mountain in said county, upon a site to be
chosen by the county board of education, and for equipping and furnishing the said building.
Statutes 1921, p. 63. The act provides that the board of education of said county, when
created and organized pursuant to law, or, until so created and organized, the board of county
commissioners, acting as a county board of education pursuant to law, shall determine as to
the character of said building, the material to be used therefor, and the plans therefor, and
when such determination is made said board shall advertise for bids for the construction of
said building and let the construction thereof by contract to the lowest and most responsible
bidder. The laws in force governing the letting of contracts by boards of county
commissioners are made applicable to and govern the action of the board in carrying out the
provisions of the act.
Said board of county commissioners (designated the owner), acting as the board of
education of said county, and in pursuance of said act, on the 5th day of January, 1922, let a
contract to one Robert Paysee (designated the contractor) for the erection and construction of
said building, in which the contractor agreed to provide all materials and perform all the work
for the erection and construction of said building in accordance with the drawings and
specifications on file in the office of the clerk of said county and made a part of the
agreement, and agreed to complete said building not later than August 15, 1922. The
agreement states: "The full price to be paid for such work and materials is sixty-two
thousand and noJ100 {62,000) dollars, payable in accordance with said specifications,
subject to additions and deductions therein provided for."
48 Nev. 12, 15 (1924) Gill v. Paysee
The full price to be paid for such work and materials is sixty-two thousand and no/100
(62,000) dollars, payable in accordance with said specifications, subject to additions and
deductions therein provided for.
The contractor agreed to purchase the entire issue of bonds provided for in said act at par.
To secure the construction of the building, the contractor, contemporaneous with the
letting of said contract, gave a bond to secure its performance, with the United States Fidelity
and Guaranty Company as surety, which bond is conditioned as follows:
Whereas, said principal has entered into a certain written contract with the obligee, dated
January 5, 1922, to provide all the materials and perform the work for the erection and
construction of building known as Lander County High School,' at Battle Mountain, Nevada.
Now, therefore, the condition of the foregoing obligation is such that if the said principal
shall well and truly indemnify and save harmless the said obligee from any pecuniary loss
resulting from the breach of any of the terms, covenant and conditions of the said contract on
the part of the said principal to be performed, then this obligation shall be void; otherwise to
remain in full force and effect in law: Provided, however, that this bond is issued subject to
the following conditions and provisions:
First. That no liability shall attach to the surety hereunder unless, in the event of any
default on the part of the principal in the performance of any of the terms, covenants or
conditions of the said contract, the obligee shall promptly, and in any event not later than
thirty days after knowledge of such default, deliver to the surety at its office in the city of
Baltimore, written notice thereof with a statement of the principal facts showing such default
and the date thereof; nor unless the said obligee shall deliver written notice to the surety at its
office aforesaid, and the consent of the surety thereto obtained, before making to the principal
the final payment provided for under the contract herein referred to.
48 Nev. 12, 16 (1924) Gill v. Paysee
Second. That in case of such default on the part of the principal, the surety shall have the
right, if it so desire, to assume and complete or procure the completion of said contract; and
in case of such default, the surety shall be subrogated and entitled to all the rights and
properties of the principal arising out of the said contract and otherwise, including all
securities and indemnities theretofore received by the obligee, and all deferred payments,
retained percentages and credits, due to the principal at the time of such default, or to become
due thereafter by the terms and dates of the contract.
Third. That in no event shall the surety be liable for a greater sum than the penalty of this
bond, or subject to any suit, action or other proceeding thereon that is instituted later than the
5th day of January, A. D. 1923.
Fourth. That in no event shall the surety be liable for any damage resulting from, or for
the construction or repair of any work damaged or destroyed by an act of God, or the public
enemies, or mobs, or riots, or civil commotion, or by employees leaving the work being done
under said contract, on account of so-called strikes' or labor difficulties.
Fifth. (a) That the surety shall not be liable for damages for injuries to the person of any
one, under or by authority of any statutory provision for damages or compensation to any
employee, or otherwise; and
(b) Shall not be obligated to furnish any bond or obligation other than the one executed.
After the execution and delivery of said contract and bond, the contractor entered upon the
construction of the building, and on or about the 27th day of May, 1922, entered into a
contract with one W. C. Gill, whereby said Gill agreed to wire said building and install a
clock system therein for the agreed price of $3,400. Gill performed his contract, and $500,
and no more, was paid him for his labor and materials furnished and used in the construction
of the building, leaving a balance of $2,900, which the contractor and the surety on his bond,
upon the demand of Gill, refused to pay.
48 Nev. 12, 17 (1924) Gill v. Paysee
The building was accepted by the owner's architect as a completed building in accordance
with said drawings and specifications on December 4, 1922, and the building was formally
received by the board of county commissioners of Lander County as a completed structure on
January 2, 1923. On said date the owner owed the contractor a balance of $10,150 on his
building contract. Prior to that date the contractor had assigned, or attempted to assign, all or
a greater portion of said sum to the Battle Mountain State Bank. On the day the building was
received the owner caused an order to be made and entered in its minutes directing that said
sum of $10,150 due the contractor be paid over to the United States Fidelity and Guaranty
Company, the surety on his bond. Thereafter the Battle Mountain State Bank commenced an
action against said board of county commissioners and certain officers of Lander County and
prayed for an injunction that they be restrained and enjoined from the payment of said sum of
$10,150 to said surety company, which action is pending.
On the 24th day of February, 1923, W. C. Gill, as subcontractor, commenced this action
against Robert Paysee, the contractor, and the United States Fidelity and Guaranty Company,
to recover judgment of the sum of $2,900, alleged to be due him upon his contract for the
labor, material, and equipment furnished and used in the construction of the building, and for
$500 attorney's fee. In addition to the recital in his complaint of all the facts hereinabove set
out, he alleged that the bond given to secure the performance of the contract between Paysee,
the contractor, and the board of county commissioners, as owner, was exacted, required, and
obtained pursuant to a statute enacted in 1913 entitled:
An act requiring bonds for the protection of subcontractors, laborers and materialmen on
public buildings and structures; providing for the filing of such bonds and the giving and
effect of certified copies thereof; creating a penalty for failure to exact such bonds; relating to
actions thereon, to procedure in such actions, and allowing an attorney's fee to the
prevailing party."
48 Nev. 12, 18 (1924) Gill v. Paysee
actions, and allowing an attorney's fee to the prevailing party. Statutes 1913, 407.
The defendant Paysee did not appear in the action. The defendant company interposed a
general demurrer to the complaint, which was overruled. Said defendant elected to stand upon
its demurrer and allowed judgment to go against it for the sum of $2,900 and $500 attorney's
fee. Thereafter said defendant perfects its appeal from said judgment, and upon appeal assigns
as error that the complaint does not state facts sufficient to constitute a cause of action against
appellant and that the complaint does not support the judgment. The record does not disclose
upon which of the two grounds urged in this court in support of the general demurrer the
order of the district court overruling the demurrer was based, and therefore the question of
whether the complaint supports the judgment is presented here de novo.
It is contended that the plaintiff cannot maintain this action against appellant for two
reasons: First, that it is apparent that the bond sued upon was executed solely to indemnify
and save harmless the obligee from any pecuniary loss resulting from any breach of the
principal's contract to provide all the materials and perform all the work for the erection and
construction of the building known as the Lander County High School; that said bond was not
given for the benefit of laborers and materialmen, and since plaintiff is not a party to the
bond, he has no cause of action against appellant upon the bond as a common-law
undertaking. Second, that the bond sued upon is not the bond required by the statute of 1913,
enacted for the protection of subcontractors, laborers, and materialmen, in that the bond does
not contain the mandatory condition required by the statute, which is as follows:
Which bond shall be conditioned that the contractor shall well and truly pay, or cause to
be paid, all just debts contracted by him for labor performed upon and materials furnished for
the work provided to be done by said contract.
48 Nev. 12, 19 (1924) Gill v. Paysee
In considering the statute of 1913 and the scope of the bond as a statutory undertaking, my
associates entertain divergent views. Their conclusions, however, upon this branch of the
demurrer do not dispose of the case. The basis for the demurrer is that regardless of the
character of the instrument sued on, whether it be classes as a common-law undertaking or a
bond required by the statute, the plaintiff cannot maintain this action against appellant,
because, in strictness, the bond is solely for the benefit of the owner and was given to
indemnify and save harmless the owner from any pecuniary loss resulting from the breach of
the contractor's agreement to provide all the materials and perform all the work necessary for
the construction of the school building according to the drawings and specifications therefor.
It is argued that the building was completed according to contract and was accepted by
Lander County through its board of county commissioners; that the county has sustained no
loss, and it is not alleged that it has suffered any loss or that it will suffer any, and since the
payment of claims of laborers and materialmen were not provided for in the bond, the liability
of appellant cannot by construction be extended so as to include laborers and materialmen, on
the theory that the contractor's agreement to provide all the materials and perform all the work
was equivalent to an agreement to pay therefor. This proposition seems to be supported by the
greater weight of authority, but I am not unmindful of the authorities cited by counsel for
respondent, which are to the effect that contracts of similar character to the one here involved
are for the benefit of laborers and materialmen.
1. I am unable, however, to follow the argument of able counsel for appellant that in the
determination of the legal bounds of appellant's liability upon its surety contract, the rule of
strictissimi juris must be applied. The class of suretyships to which appellant belongs is not
regarded as a favorite of the law. And if the terms of the surety contract are susceptible of
two constructions, that one should be adopted, if consistent with the purpose to be
accomplished, which is most favorable to the beneficiary.
48 Nev. 12, 20 (1924) Gill v. Paysee
with the purpose to be accomplished, which is most favorable to the beneficiary. See Royal
Indemnity Co. v. Northern Granite & Stone Co., 100 Ohio St. 373, 126 N. E. 405, 12 A. L. R.
378, note page 382. The court in that case remarks:
Especially is this so when the contract of suretyship employees ambiguous terms relating
to those furnishing labor and material which enter into the structure.
It is interesting to note that in the opinion the court expressly disapproves the principle
announced in Cleveland Metal Roofing, etc., Co. v. Gaspard, 89 Ohio St. 185, 106 N. E. 9, L.
R. A. 1915a, 768, Ann. Cas. 1916a, 745, and approves the case of W. P. Fuller & Co. v.
Alturas School District, 28 Cal. App. 609, 153 Pac. 743, holding that a contract to provide
labor and materials at the contractor's own risk, cost, and expense is not for the benefit of the
owner alone, but, as well, for the benefit of laborers and materialmen.
2. Appellant contends that there is nothing in the bond here involved which, either by
express provision or by necessary implication, guarantees the payment by the contractor or
laborers and materialmen; that the bond is conditioned that if the contractor shall well and
truly indemnify and save harmless the obligee from any pecuniary loss resulting for his failure
to provide all the materials and perform all the work necessary for the construction of the
building, its obligation shall be void. Therefore, in the opinion of counsel, it cannot
reasonably be claimed that the contractor's engagement to provide the materials and perform
the work casts any liability upon appellant to pay therefor.
Coming to the real question in the case, as said in one of the cases cited by appellant, the
case is not difficult, unless we try to make it different from what it really is. In the opinion of
the writer, the parties themselves have placed such a practical construction upon the bond as
to make it inurer to the benefit of plaintiff. On the day the building was received as a
completed structure according to the drawings and specifications, the obligee and the surety
were confronted with the contractor's default in payment for the labor and materials
which entered into the structure.
48 Nev. 12, 21 (1924) Gill v. Paysee
with the contractor's default in payment for the labor and materials which entered into the
structure. The price fixed by the agreement to be paid for such work and materials was
$62,000, payable according to the drawings and specifications. The obligee was required by
the condition of the bond to notify the surety in the event of any default on the part of the
contractor, and not to make the last payment due the contractor in case of such default
without its consent. In this situation the obligee, instead of recognizing the contractor's
assignment of the amount due him for the work and materials, ordered said sum to be paid
over to appellant, his surety, for no purpose that I can perceive other than to enable the
appellant to indemnify and save harmless the obligee from any pecuniary loss resulting from
the default of the contractor to pay for the labor and materials which entered into the
completed structure. The acts and conduct of the parties on the day for final settlement is a
demonstration that their interpretation of the contract and bond was that the agreement of the
contractor to provide all labor and material was equivalent to an agreement to pay therefor.
Except as stated, the contract was in all other respects performed, and the appellant cannot
consistently contend, under the attendant facts and circumstances, that plaintiff has no direct
right of action on the bond as a third party beneficiary.
To suppose that such was not the understanding of the parties is too unreasonable a
proposition to be for a moment entertained. If it were not contemplated by the parties that the
contract was obligated by his contract to pay for the labor and material which entered into the
structure, there was neither reason nor necessity for the obligee to order that the last payment
due the contractor of $10,150 be paid over to the appellant, his surety. In my judgment, this
was such a contemporaneous construction of the contract and the bond given for its
fulfillment that it should govern in their interpretation.
I conclude that the labor and materials furnished in this case were within the obligation
of the surety company on the bond, and in that view I affirm the judgment, with the
understanding that I intimate no opinion as to who is entitled to the sum of $10,150 due
upon the building contract.
48 Nev. 12, 22 (1924) Gill v. Paysee
this case were within the obligation of the surety company on the bond, and in that view I
affirm the judgment, with the understanding that I intimate no opinion as to who is entitled to
the sum of $10,150 due upon the building contract.
Coleman, J., I concur in the order:
This is an action upon a bond by a contractor conditioned to hold the obligee harmless
under a contract entered into between the obligee in the bond and the contractor for the
erection of a schoolhouse. The building in question was erected pursuant to the provisions of
chapter 35, Stats. 1921, which, in addition to providing for the issuing of bonds for the
purpose of raising the money necessary to pay for the erection of the building, authorizes the
execution of a contract for the construction of the building. This statute also provides that the
laws of the state governing the letting of contracts of public buildings are made applicable.
Chapter 264, Statute of 1913, provides that in the erection of public buildings a bond shall be
exacted of the contractor, conditioned that he shall well and truly pay or cause to be paid all
just debts contracted by him for labor performed and materials furnished in the execution of
the contract. In the instant case a bond was exacted of and executed by the contractor; but,
instead of being conditioned in the language of the statute, it was conditioned to save
harmless the obligee, and provided that the obligors were bound unto the obligee under the
provisions of chapter 35, Stats. 1921.
3. It is the contention of the appellant that the bond in question was not given pursuant to
the provisions of chapter 264, Stats. 1913, since it is not conditioned as therein provided, and
hence no liability attaches.
I cannot agree with this contention. Public buildings in this state are not subject to
mechanics' liens, and, prior to the enactment of 1913, there was no law looking to the
protection of laborers and materialmen. Contractors might collect the full amount of their
contract price and pay none of the obligations incurred in complying with the terms of
their contracts.
48 Nev. 12, 23 (1924) Gill v. Paysee
contract price and pay none of the obligations incurred in complying with the terms of their
contracts. Hence the enactment of the 1913 statute. By the terms of this statute the legislature
sought to safeguard the rights of materialmen and laborers. The act makes it the imperative
duty of public boards and officials letting contracts for the erection of public buildings to
exact bonds for the protection of such persons and makes such officials jointly and severally
liable for failure to do so. In the instant case the officials exacted a bondevidently for the
sole purpose of complying with the requirements of the statute; but the bond executed does
not technically conform to the language of the statute. However, in spirit, it manifests a
purpose and intention to do so. I am satisfied that the statute of 1913 must be read into the
bond in question. I am of this opinion primarily for the reason that the bond itself alludes to
the statute of 1921 which expressly provides that the laws of the state governing the letting of
contracts by boards of county commissioners are made applicable to contracts of this
character. The general rule applicable to the situation in hand is admirably stated in 9 C. J. p.
34, sec. 56, as follows:
The law at the time of the execution of a bond is a part of it; if it gives to the bond a
certain legal effect it is as much a part of the bond as if in terms incorporated therein. When a
bond is given under the authority of a statute in force when it is executed, in the absence of
anything appearing to show a different intention it will be presumed that the intention of the
parties was to execute such a bond as the law required, and such statute constitutes a part of
the bond as if incorporated in it, and the bond must be construed in connection with the
statute, and the construction given to the statute by the courts. Such a bond must be given the
effect which in reason must have been intended by the statute.
The case of Nye-Schneider-Fowler Co. v. Roeser et al., 103 Neb. 614, 173 N. W. 605, is
squarely in point and supports the conclusion which I have reached.
48 Nev. 12, 24 (1924) Gill v. Paysee
In the case of Acme Brick Co. v. Taylor et al. (Tex. Civ. App.) 223 S. W. 248, the court
recognized the rule upon which I rely, but held that the surety could not be held since it
appeared from the bond in the case that it was not the intention to execute a statutory bond,
which clearly distinguished it from the instant case.
The bond should be liberally construed for the purpose of effectuating the intention of the
parties. The rule of strictissimi juris does not prevail in favor of a surety company which
executes a bond for compensation. Lessetter v. Becker (Ariz.) 224 Pac. 810.
The authorities hold that the presumption prevails that such a bond is given pursuant to
statute, and, to my satisfaction at least, this is conclusively shown by the fact that the bond
recites that it is given under the provisions of chapter 35 of Session Laws of Nevada, 1921,
which statute expressly provides that
The laws in force governing the letting of contracts by boards of county commissioners
are hereby made applicable to and the same shall govern the action of the county board of
education in carrying out * * * this act.
I do not see how it could more clearly appear that the bond in question was executed and
given in pursuance of the statute.
Ducker, C. J., dissenting:
This is an action brought by a materialman against a contractor and the surety on the
latter's bond. The action was commenced on February 24, 1923. The contractor was not
served with summons and never appeared in the action. It is alleged in the complaint that the
contractor, Robert Paysee, on January 5, 1922, entered into a written agreement with the
board of county commissioners of Lander County, Nevada, acting as the board of education
under the provisions of chapter 35 of the Statutes of 1921, for the construction of a high
school building at Battle Mountain, in said county. It is also alleged in the complaint that,
before letting the contract to the said contractor and pursuant to an act of the legislature of
Nevada entitled "An act requiring bonds for the protection of subcontractors, laborers and
materialmen on public buildings," etc., approved March 26, 1913, the said board of
education obtained from the contractor a bond, conditioned among other things, to the
effect that the said contractor would, at his own cost and expense, furnish and provide all
material and perform all work in the construction of said building pursuant to said
contract; and that the said contractor as principal, and the United States Fidelity and
Guaranty Company as sole surety, duly executed and delivered said bond to said board of
county commissioners.
48 Nev. 12, 25 (1924) Gill v. Paysee
of the legislature of Nevada entitled An act requiring bonds for the protection of
subcontractors, laborers and materialmen on public buildings, etc., approved March 26,
1913, the said board of education obtained from the contractor a bond, conditioned among
other things, to the effect that the said contractor would, at his own cost and expense, furnish
and provide all material and perform all work in the construction of said building pursuant to
said contract; and that the said contractor as principal, and the United States Fidelity and
Guaranty Company as sole surety, duly executed and delivered said bond to said board of
county commissioners. It is further alleged in the compliant that the contractor entered upon
the construction of the building in accordance with the plans and specifications of the
architect, and that on or about May 27, 1922, plaintiff, respondent here, entered into a
contract with the said principal, according to the terms of which plaintiff was to furnish the
material and do the work of wiring said high school building according to the plans and
specifications, for the contract price of $3,400; that plaintiff completed the work on or about
December 24, 1922; that a balance of $2,900 was due him from said Paysee; and that demand
has been made by plaintiff upon Paysee and his said surety, for the payment of such balance,
which they have neglected and refused to pay, and are therefore in default upon said bond.
Plaintiff further alleges that there remains unpaid to said Paysee by the county on said
contract the sum of $10,150, which is in the possession of the board; that Paysee has
assigned, or attempted to assign, such moneys, or a portion thereof to the Battle Mountain
State Bank, a banking corporation; and that the board of county commissioners has ordered
said money to be paid to said United States Fidelity and Guaranty Company, and that the
Battle Mountain bank has commenced an action enjoining the county and its officers from
paying out said money, and that said suit is still pending. It is further alleged that the building
was constructed in conformity with the plans and specification; that it was completed on
December 4, 1922, and in a condition for acceptance; and that it was accepted by the
board of county commissioners on January 2, 1923.
48 Nev. 12, 26 (1924) Gill v. Paysee
specification; that it was completed on December 4, 1922, and in a condition for acceptance;
and that it was accepted by the board of county commissioners on January 2, 1923.
A general demurrer to the complaint was overruled, and from the judgment rendered the
United States Fidelity and Guaranty Company has taken this appeal.
Appellant contends that the complaint does not state a cause of action. The contract, a
copy of which is annexed to the complaint, recites that
This agreement made the 5th day of January, 1922, by and between Robert Paysee, of
Twin Falls, Idaho, party of the first part (hereinafter designated the contractor), and the board
of county commissioners of Lander County, Nevada, acting as the board of education under
the provisions of chapter 35 of Session Laws of Nevada, 1921, party of the second party
(hereinafter designated the owner).
It provides, among other things, that
The contractor shall and will provide all the materials and perform all the work for the
erection and construction of the high school building.
A copy of the bond is also annexed to the complaint and the provisions of the bond
necessary to be considered are as follows:
Know all men by these presents, that Robert Paysee, of Twin Falls, Idaho (hereinafter
called the principal), and the United States Fidelity and Guaranty Company, a corporation
created and existing under the laws of the State of Maryland, and whose principal office is
located in Baltimore City, Maryland (hereinafter called the surety), are held and firmly bound
unto board of county commissioners of Lander County, Nevada, acting as board of education
under provisions of chapter 35 of Session Laws of Nevada, 1921 (hereinafter called the
obligee), in the full and just sum of thirty-one thousand dollars, lawful money of the United
States, to the payment of which sum, well and truly to be made, the said principal binds
himself, his heirs, executors and administrators, and the said surety binds itself, its successors
and assigns, jointly and severally, firmly by these presents.
48 Nev. 12, 27 (1924) Gill v. Paysee
and assigns, jointly and severally, firmly by these presents.
Signed, sealed and delivered this 5th day of January, A. D. 1922.
Whereas, said principal has entered into a certain written contract with the obligee, dated
January 5, 1922, to provide all the materials and perform the work for the erection and
construction of building known as Lander County High School,' at Battle Mountain, Nevada.
Now, therefore, the condition of the foregoing obligation is such that if the principal shall
well and truly indemnify and save harmless the said obligee from any pecuniary loss resulting
from the breach of any of the terms, covenants and conditions of the said contract on the part
of the said principal to be performed, then this obligation shall be void; otherwise to remain
in full force and effect in law.
Respondent contends that the bond was given under the provisions of chapter 264, Stats.
1913, which statute provides that at the time of making any contract for the erection,
construction, alteration, or repair of any public building or structure, the contract price of
which shall exceed the sum of $500, the party letting the contract shall exact from the
contractor a bond conditioned that the contractor shall well and truly pay, or cause to be paid,
all just debts contracted by him for labor performed upon and materials furnished for the
work provided to be done by said contract (Stats. 1913, p. 407), and that this condition must
therefore be read into the bond. The contention that the bond was given under this act is
based upon the fact that the bond recites that the board was acting under the provisions of
chapter 35 of the Session Laws of Nevada for 1921, which provides that
The laws in force governing the letting of contracts by boards of county commissioners
are hereby made applicable to and the same shall govern the action of the county board of
education in carrying out * * * this act. Stats. 1921, p. 63.
48 Nev. 12, 28 (1924) Gill v. Paysee
The recital in the bond that the board of county commissioners was acting as a board of
education under the provisions of the law last mentioned does not manifest an intention to
comply with the act of 1913. It is merely a reference to the statutory authority by which the
former board assumed to act as a board of education. There is no express promise by the
appellant in the bond to pay the debt of a third party, or any language, viewed in the light of a
most liberal rule, from which such a promise can be inferred. The only condition in the bond
is, as before set out, namely, that the principal shall indemnify and save harmless the obligee
from any pecuniary loss resulting from the breach of any of the terms, covenants, and
conditions of the contract. The bond does not fail merely technically to conform to the
statutes of 1913, it fails completely in this respect. The only condition required by such
statute is not in the bond. Section 5 of the act of 1913 prescribed what shall be the effect if the
bond provided for is not taken. The section reads:
If the party letting such contract shall fail to exact and take the bond herein provided for,
or shall knowingly accept insufficient sureties thereon, such party, and the individual officers
and agents thereof, by whom such contract was authorized, shall be jointly and severally
liable to all who have performed labor upon and to all who have furnished materials for the
work provided to be done by such contract, to an amount not exceeding twenty-five (25) per
cent of the contract price, but wherever the party itself shall pay, upon default of the
contractor, any liability hereby created, it shall have a right of action, jointly and severally,
against the individual officers and agents thereof, by which said contract was authorized, and
against their bondsmen, if any, for any amount or amounts so paid.
From this it is quite clear that it was not the intention of the legislature that the condition
for the benefit of laborers or materialmen, if omitted, should become a part of the bond as if
incorporated in it. The case of Acme Brick Co. v. Taylor et al. (Tex. Civ. App.) 223 S. W.
248, is in point. In that case recovery was sought for supplies furnished the contractor
against the surety company on a bond, which did not contain the condition required by
law, that such contractor "shall promptly make payments to all persons supplying him or
them with labor and materials in the prosecution of the work provided for in such
contract."
48 Nev. 12, 29 (1924) Gill v. Paysee
for supplies furnished the contractor against the surety company on a bond, which did not
contain the condition required by law, that such contractor shall promptly make payments to
all persons supplying him or them with labor and materials in the prosecution of the work
provided for in such contract. The court said:
The bond here involved contains no such stipulation, and therefore is not the bond
required by the statute with reference to public buildings. It may be good as a common-law
bond, but does bind the surety further than therein specifically stated, which is that the
principal shall faithfully perform his contract with the obligees. This it appears he did, for the
building was completed and received by the school trustees, and the full price paid therefor. It
is true that a statutory bond will be construed in the light of the statute, and will impose upon
the bondsman all of the liabilities required by the statute, where it appears that it was the
intention to execute such statutory bond; but no such intention appears from the bond in this
case. The trustees failed to discharge their duty in not taking a bond as required by statute, but
that cannot make the bondsman liable for something that he did not guarantee.
It is insisted that the provision of the contract that the contractor shall and will provide all
the materials, and perform all the work, when liberally construed, shows that it was intended
by the parties to include the proposition that the contractor was to pay for the same, and that
the recital of this provision of the bond was intended to be a condition of it. To grant this
contention would simply result in reading into the bond a supposed intent of the parties,
which its language will not bear. Respondent's contention in this respect seems to be
sustained by the Nebraska cases cited by him, particularly the case of Nye-Schneider-Fowler
Co. v. Roeser, 103 Neb. 614, 173 N. W. 605. I do not regard the reasoning of the case as
sound, and think, as pointed out in the dissenting opinion, that an intent to provide for the
payment of the materialmen was read into the bond contrary to well-recognized canons of
construction.
48 Nev. 12, 30 (1924) Gill v. Paysee
The ruling runs counter to the great current of authority. Electric Appliance Co. v. United
States Fidelity and Guaranty Co., 110 Wis. 434, 85 N. W. 648, 53 L. R. A. 609; Parker v.
Jeffery, 26 Or. 186, 37 Pac. 712; Montgomery v. Rief, 15 Utah, 495, 50 Pac. 623; First
Methodist Episcopal Church v. Isenberg, 246 Pa. 221, 92 Atl. 141; Green v. Independent, 121
Iowa, 663, 97 N. W. 72; Greenfield v. Parker, 159 Ind. 571, 65 N.E. 747; Spalding v. Brown,
171 Ill. 487, 49 N. E. 725; Townsend v. Cleveland, 18 Ind. App. 568, 47 N. E. 707; City of
Sterling v. Wolf, 163 Ill. 467, 45 N. E. 218; Dunlap v. Eden, 15 Ind. App. 575, 44 N. E. 560;
Searles v. City, 225 Ill. 167, 80 N. E. 98; Smith v. Bowman, 32 Utah, 33, 88 Pac. 687, 9 L. R.
A. (N. S.) 889; Babcock & Wilcox v. American Surety Co. of New York, 236 Fed. 340, 149
C. C. A. 472.
In Babcock & Wilcox v. American Surety Co., supra, materialmen brought an action in
equity against the contractor and the surety company to recover the value of materials sold to
the contractor and used in the construction of a dormitory at an Indian school. An act of
Congress required any person or persons entering into a formal contract with the United
States for the construction of any public building to execute the usual penal bond, with good
and sufficient sureties, with the additional obligations that such contractor or contractors shall
promptly make payments to all person supplying him or them with labor and materials in the
prosecution of the work provided for in such contract. The contract made required the
contractor to furnish all the materials, but the bond did not contain the obligation required by
the statute. It was held that the liability of the surety could not by construction be extended so
as to include the materialmen, on the theory that the agreement to furnish materials was
equivalent to an agreement to pay therefor. The court said:
When all is said the case is simply this: That Opdahl by is contract agreed to give a bond
obligating himself to pay the claims of materialmen, but he failed to give any such bond. The
surety company signed the bond which was executed, and no other. The bond itself did not
provide for the payment of materialmen, nor did the contract contain any such provision.
48 Nev. 12, 31 (1924) Gill v. Paysee
did not provide for the payment of materialmen, nor did the contract contain any such
provision. The case is not difficult, unless we try to make it different from what it really is.
Mr. Page, in his work on Contracts, says:
A provision in a contract, by which the contractor agrees to furnish material, cannot
impose upon the sureties on his bond the duty of paying for material which he has purchased,
if the bond does not purport to include such liability. Page on the Law of Contracts, vol. 4,
sec. 2408, p. 4270.
The other cases cited by respondent are not in point. In the Kentucky case cited and quoted
from in respondent's supplemental brief, one of the provisions of the contract was that the
contract price would be paid by the church to the contractor providing the property was kept
free from all liens or rights of liens for debts due or claimed to be due from the contractor,
and the bond was conditioned to a faithful compliance with the terms of the contract. After
the contractor quit work upon the building, it was ascertained that there were several hundred
dollars due from the contractor for material which had been used in the construction of the
building, and due laborers for work done in the construction of it. These sums the church was
compelled to discharge. It is quite plain that under this state of facts the church had suffered a
loss against the guaranty of the bond, and that the surety was liable for it.
The foregoing case is obviously different from the instant case, which I regard as one
involving solely the language of the bond. The language does not in my opinion disclose an
intent to secure third parties, nor does the bond purport to have been made under the authority
of a statute enacted for their benefit.
On Petition for Rehearing
August 5, 1924.
Per Curiam:
Rehearing denied.
Ducker, C. J.: I dissent.
____________
48 Nev. 32, 32 (1924) Reinhart Co. v. Oklahoma Gold Mining Co.
REINHART CO. v. OKLAHOMA GOLD MINING CO.
No. 2647
June 25, 1924. 226 Pac. 902.
On Motion to Strike and Dismiss Appeal
1. Exceptions, Bill ofJudge's Certificate that Bill of Exceptions Legally Filed and Served
Held Surplusage.
A judge's certificate that a bill of exceptions was filed and served within time allowed by law and
orders of court adds nothing to certificate's force, and should be omitted, since bill of exceptions must
stand or fall upon facts as they appear from record.
2. Appeal and ErrorWhether a Bill of Exceptions is Properly Settled and Allowed is for
Appellate Court.
Whether a bill of exceptions is properly settled and allowed is for appellate court.
3. Appeal and ErrorCourt May Proceed on Theory That no Order was Made Extending
Time to File Bill of Exceptions Where Record Shows None.
Where there is nothing in record tending to show that an order was made extending time in which to
file a bill of exceptions, appellate court may proceed on theory that none was made, and that bill of
exceptions was not filed within time provided by law, and should therefore be stricken.
4. Exceptions, Bill ofTrial Court May Extend Time for Filing.
Trial court may extend time for filing bills of exceptions in view of Stats. 1915, c. 142, sec. 10, such
act being in pari materia with Stats. 1923, c. 97, sec. 1, fixing 20 days within which bills of exceptions
may be filed and served.
5. Exceptions, Bill ofNotice of Time and Place of Settling and Allowing to Respondent
Held Unnecessary.
Notice of time and place of settling and allowing bills of exceptions to respondent was unnecessary in
view of Stats. 1915, c. 142, sec. 3, where respondent did not serve and file a statement pointing out
wherein such bill of exceptions did not show true facts, or wherein it omitted any material facts.
6. Appeal and ErrorNotice of Appeal Held to Have no Place in Files.
A document designated notice of appeal, which was not attached to and made a part of the record,
nor certified to, and no showing being made that it was ever served as required by law or at all, had no
place in the files on appeal.
7. Appeal and Error-Motion to Strike Judgment Roll Not Considered Where Appellate Court
Required to Consider Merits of Appeal.
On a motion to strike and dismiss an appeal, a motion to strike the judgment roll because it
constituted no part of the record could not be considered by appellate court, since it involved a
consideration of the merits.
48 Nev. 32, 33 (1924) Reinhart Co. v. Oklahoma Gold Mining Co.
8. Appeal and ErrorAppeal Not Dismissed for Failure to Serve Copy of Transcript on
Respondent.
An appeal would not be dismissed where appellant failed to serve a copy of the transcript upon
respondent as required by Supreme Court rule 13, since such irregularity could be remedied without
prejudice.
See 4 C. J. sec. 1618, p. 43, n. 42; sec. 1879, p. 267, n. 96; sec. 1890, p. 280, n. 96; sec. 2170, p. 451, n. 15; sec.
2222, p. 481, n. 77; sec. 2291, p. 516, n. 16; sec. 2426, p. 602, n. 33; sec 2749, p. 793, n. 47.
Appeal from Sixth Judicial District Court, Humboldt County, James A. Callahan, Judge.
Action by the E. Reinhart Company against the Oklahoma Gold Mining Company and
James Glynn, receiver. Judgment for defendants, and plaintiff appeals. On motion to strike
and dismiss appeal. Appeal dismissed.
Petition for rehearing denied.
Warren & Dignan, for Appellant:
Receiver has no right to property taken in execution before his appointment. 34 Cyc.
328-9; Baldwin v. Hosmer, 25 L. R. A. 739. Attachment creditor has right to have debt
satisfied, sheriff retaining property in meantime. Hunt v. Court, 35 Pac. 1087. Judgment lien
is not affected by subsequent appointment of receiver before execution. People v. Finch, 76
Pac. 1120. Validity of attachment cannot be raised for first time in supreme court. Porter v.
Poco, 55 Cal. 165. Point that no valid levy was made is aside from issue. 4 Cyc. 604;
O'Connor v. Blake, 29 Cal. 312.
Petaluma Bank v. Court, 44 Pac. 181, explains and disposes of ancient case of Wisewell v.
Sampson, 14 How. 52, and all respondent's arguments.
James Glynn, for Respondents:
Record does not show sheriff held property under attachment at time he received
execution. Attempted levy was void. Rev. Laws, 5152. Omission of any necessary steps in
making attachment is fatal. Drake's Attachment (5th ed.), secs. 194, 242; 111 Cal. 235.
48 Nev. 32, 34 (1924) Reinhart Co. v. Oklahoma Gold Mining Co.
In State ex rel. Irving Bank v. Court, 47 Nev. 83, this court refused to interfere, deciding
matter should be presented to court which appointed receiver.
Possession of receiver is possession of court; attachment of property in custodia legis is
contempt of court. Hall v. Stillson, 73 Fed. 527; 43 Cyc. 2335.
Wisewall v. Sampson, 14 L. Ed. 322, firmly establishes principle and has been often
approved and confirmed. Heldritter v. Oil Cloth Co., 28 L. Ed. 733.
OPINION
By the Court, Sanders, J.:
The appeal now before us was taken from an order made after judgment. Included in the
record is a bill of exceptions, to which is attached a certificate of the judge who made the
order questioned, to the effect that the bill of exceptions is correct, contains the substance of
all of the material evidence relating to the points involved, and that the same was prepared,
filed, and served within the time allowed by law and the orders of the court. A motion has
been made in this court to strike and to dismiss the appeal.
1, 2. The motion to strike goes to that portion of the certificate of the judge to the effect
that the bill of exceptions was filed and served within the time allowed by law and the orders
of the court. The statute provides what shall be certified to, and it does not require a
certification as to the matter sought to be stricken. It adds nothing to the force of the
certificate, is mere surplusage, and should have been omitted, since the bill of exceptions
must stand or fall upon the facts as they appear from the record, and not upon the certificate
of the judge that the law has been complied with. Whether the bill of exceptions was properly
settled and allowed is purely a question for this court; but, since the matter adds nothing to
the legal effect of the record, we will make no order to strike, but will at the proper time
consider the record as though the matter in question were not in the certificate.
48 Nev. 32, 35 (1924) Reinhart Co. v. Oklahoma Gold Mining Co.
3. It is next contended that the court had no authority to make an order extending the time
in which a bill of exceptions might be filed. Since there is nothing in the record tending to
show that an order was made extending the time, we might proceed upon the theory that none
was made, and hence that the bill of exceptions was not filed within the time provided by law,
and should, therefore be stricken. This might be well enough but for the fact that, if such
orders were made and the bill of exceptions was settled and allowed in time, then we should
not dismiss, but permit a diminution of the record for the bringing in of those orders; hence
we are driven to the necessity of disposing of the contention that the court had no authority to
make an order, or orders, allowing further time for a bill of exceptions.
4. Counsel for respondents contends that the act entitled An act to regulate proceedings
on motions for new trials and on appeal in civil cases (Stats. 1923, p. 163, c. 97), fixes 20
days within which bills of exceptions may be filed and served, and that no authority is
anywhere given the court to extend the time. True it is that no authority is given the court in
the statute mentioned to extend the time for filing and serving a bill of exceptions, but section
10 of chapter 142, Stats. 1915, p. 164, which covers at length the method of preparing a bill
of exceptions, and which is in pari materia, expressly confers authority upon the court to
extend such time; hence we think there is nothing in the point made.
5. It is also contended that counsel for respondent had no notice of the time and place
when the court would hear the application of appellant for the settling and allowing of the bill
of exceptions, and hence the order so doing is void. We do not agree with this view. Section 3
of the act of 1915 provides that the adverse party may object to a tendered bill of
exceptionswithin five (5) days after the service of the same, by serving upon the opposite
party and filing in said court a statement specifically pointing out wherein said bill does not
state the true facts, or wherein the same omits any material fact necessary to explain or
make clear any ruling, decision, or action of the court.
48 Nev. 32, 36 (1924) Reinhart Co. v. Oklahoma Gold Mining Co.
does not state the true facts, or wherein the same omits any material fact necessary to explain
or make clear any ruling, decision, or action of the court. Such objections shall be heard and
determined by the court within five (5) days thereafter. * * * If the objections of the adverse
party are disallowed, then such bill as originally filed shall be immediately settled and
allowed as by this act required.
The respondent did not serve and file a statement pointing out wherein said bill of
exceptions does not state the true facts, or wherein it omits any material facts. By failing to
file and serve such a statement, he forfeited his right to be heard, and notice of the time and
place of settling and allowing the same was not necessary.
6. A motion is also made to strike from the files the document entitled Notice of Appeal
for the reason that it is not properly certified to. This document is not attached to and made a
part of the record, nor is it certified to, nor is there any showing that it was ever served as
required by law, or at all. As it stands it has no place in the files.
7. A motion is also made to strike the judgment roll on the ground that it constitutes no
part of the record on appeal from the order in question. We cannot fairly determine the point
urged without considering the merits of the appeal; hence this motion should be denied.
8. Respondents also moves the court to dismiss the appeal for the reason that no copy of
the transcript was served upon the respondent as provided in rule 13 of this court. The court
has, as far as possible, abstained from dismissing appeals for irregularities in the preparation,
filing, and serving of transcripts when such irregularities could be remedied without
prejudice, which we think can be done in this case.
Other grounds for dismissal of the appeal are urged upon our consideration, but, as they go
to the merits of the matter involved in the appeal, we decline to consider them at this time.
48 Nev. 32, 37 (1924) Reinhart Co. v. Oklahoma Gold Mining Co.
It is ordered that the appellant be given 10 days within which to supplement the transcript
wherein deficient, as herein pointed out, and to serve a copy thereof upon the respondent. For
a failure to comply with this order the appeal will be dismissed.
On Petition For Rehearing
December 18, 1924.
Per Curiam:
Rehearing denied.
From Order Recalling Execution
March 12, 1925. 233 Pac. 842.
1. CourtsOnly Court in Which Receivership Matter Pending Has Jurisdiction Over Assets.
Only the court in which receivership matter is pending has jurisdiction over the
corporation's assets; so that execution on judgment against corporation levied before
appointment of the receiver may not be recalled by the other court that rendered the
judgment.
See 15 C. J. sec. 586, p. 1140, n. 1.
Action by the E. Reinhart Company against the Oklahoma Gold Mining Company. From
order recalling, on petition of James Glynn, receiver of defendant, execution on judgment for
plaintiff, plaintiff appeals. Reversed, with directions.
James Glynn, for Movants and Respondents:
Party who has appeared in action should be given notice of every application when he has
any interest to appear and oppose it. Baylies Trial Prac. (2d ed.) 63; Pratt v. Rice, 7 Nev. 123;
Gamble v. Court, 27 Nev. 244. Order made without notice is void. 46 Cal. 32. Notice must
appear in record on appeal. Herrlich v. McDonald, 22 Pac. 299.
Extending time to tender bill of exceptions is jurisdictional act; ex parte order therefor is
void. Taylor v. Derry, 35 Pac. 60.
Copy of judgment roll is not to be annexed to copy of statement on appeal, unless appeal
is taken from judgment.
48 Nev. 32, 38 (1924) Reinhart Co. v. Oklahoma Gold Mining Co.
of statement on appeal, unless appeal is taken from judgment. 24 Nev. 461; 45 Nev. 265.
Opposing party is entitled to be heard on signing bill of exceptions. Rev. Laws, 5343.
Notwithstanding Rev. Laws, 5358, where appellant fails to comply with provisions of statute,
appeal must be dismissed. Ward v. Silver Peak, 39 Nev. 80; Western E. Co. v. Nevada A.
Co., 33 Nev. 206.
Bill of exceptions must be settled, allowed, filed and served within twenty days (1923 Stats.
163.), sections 1, 2 and 13 of 1915 Stats. 164, being expressly repealed, nullify section 10 of
1919 Stats. 55.
Order affecting substantial right is vacated on showing want of notice. Wheeler v.
Emmeluth, 121 N. Y. 241; Ward v. Tucker, 35 Pac. 126.
Section 17, article 4 of constitution limits legislation. Acts contrary thereto may be
declared void. Dayton Mng. Co. v. Seawell, 11 Nev. 394.
Positive direction implies prohibition of anything contrary thereto. Potters Dwarris, Statutes
and Constitutions, 64-5.
Section 2 of 1923 Stats. 163, is unconstitutional as attempt to invade power of judicial
function of government, ignoring established rules of court, and violating substantial rights of
litigants.
Failure to file and serve notice is defect which respondent can insist is substantial right
vested in him. Court cannot cure defect by granting leave to file notice after time has expired
therefor.
Warren & Dignan, for Appellant.
Respondents' authorities must be entirely ignored for reason that this court has already
determined question of necessity of notice of time of settlement of bill of exceptions against
respondents. But if authorities are considered in point, then supplemental transcript which
sets forth orders and proof of service makes them aside from any question before this court.
We cite no authorities, as it so plainly appears no point at all has been made.
48 Nev. 32, 39 (1924) Reinhart Co. v. Oklahoma Gold Mining Co.
OPINION
By the Court, Coleman, C. J.:
This is an appeal from an order made after judgment. The facts are these: The plaintiff
obtained a judgment against the Oklahoma Gold Mining Company, a corporation, in the Sixth
judicial district court in and for Humboldt County, Nevada, upon which an execution was
issued and placed in the hands of the sheriff of that county, under which he levied upon
certain property of the defendant company. James Glynn was appointed receiver of the
defendant company by the Second judicial district court in and for Washoe County, Nevada,
and thereafter he filed in the suit of E. Reinhart Company, a Corporation, v. Oklahoma Gold
Mining Company, a Corporation, wherein the judgment mentioned had been rendered, his
petition averring his appointment and qualification as receiver of said defendant company and
that the property is in the possession and under the control of said Glynn, as receiver, the
issuance and levy of the execution as herein stated, and praying that he said sheriff be cited to
show cause why a restraining order should not be issued restraining said sheriff from
proceeding further under said execution, and from selling or offering for sale the property of
defendant company under said execution. There is no allegation of the time of appointment
and qualification of the receiver. So far as appears, it was after the levy by the sheriff. The
sole ground relied upon for the order recalling the execution is the appointment and
qualification of the receiver. Upon the hearing of said petition of James Glynn as receiver, it
was ordered that the execution theretofore issued as aforesaid be recalled, set aside, and
vacated, and that the sheriff return the same into court, and that said sheriff make no sale
under said execution.
No cases are called to our attention by counsel for either party presenting a state of facts
similar to those in this case, for the reason, probably, that none exists.
48 Nev. 32, 40 (1924) Reinhart Co. v. Oklahoma Gold Mining Co.
Counsel for respondents cites several authorities on propositions of law concerning which
there can be no dispute, but they do not bear upon the proposition to be determined. The case
most strongly relied upon by respondents is that of State ex rel. Irving National Bank v.
Second Judicial District Court, 47 Nev. 86, 217 Pac. 962. That case is not in point. That
proceeding was one in which the order sought to be set aside was made in the matter of the
receivership. Such is not the case here. We held substantially in that matter that the court in
the matter of the receivership had complete control over the proceedings in the law
actionthat it superseded the law court in controlling the proceedings under the execution.
We further held in that matter that the court, having charge of the receivership, if a proper
showing was made, might permit the sheriff to proceed with the execution sale. In other
words, we practically held in the proceeding that the court in which the judgment was
rendered had lost control over the proceeding had under the execution. But while we so held,
we do not think there is anything in that decision giving any court authority to determine the
rights as between the receiver and the sheriff, other than the court in which the receivership
matter is pending. To take any other view would handicap, if not entirely tie, the hands of the
court in that matter. The receiver, having the right to all of the assets of the defendant
company subject to certain limitations, should have applied to the court wherein that matter
was pending for such relief as he deemed himself entitled to, wherein the judgment creditor
may at any time make a showing justifying an order of sale under the execution. If some other
ground had been relied upon for the order complained of other than the mere fact that a
receiver had been appointed for the Oklahoma Company, we might be reluctant to override
the discretion of the lower court; but since no there court has jurisdiction over the assets of a
corporation for which a receiver has been appointed, or authority to control the receiver, other
than the court in which the receivership matter is pending, we can see no theory upon
which the order recalling the execution was proper.
48 Nev. 32, 41 (1924) Reinhart Co. v. Oklahoma Gold Mining Co.
the receivership matter is pending, we can see no theory upon which the order recalling the
execution was proper.
It is ordered that the order appealed from be reversed, and that the lower court take
whatever steps are necessary to reinvest the sheriff with the authority of which he was
invested by the order appealed from.
____________
48 Nev. 41, 41 (1924) Nenzel v. Rochester Silver Corporation
NENZEL v. ROCHESTER SILVER CORPORATION
No. 2624
July 1, 1924. 226 Pac. 1102.
1. Appeal and ErrorTenant Pleading a Lease Cannot on Appeal Deny Relationship of
Landlord and Tenant.
In an action under Rev. Laws, sec. 5588, as amended by Stats. 1917, c. 27, sec. 1, against a tenant
holding over for possession of premises and water right, where defendant pleaded a lease, it could not
insist on appeal that the relationship could not exist, because water rights are incorporeal hereditaments
in which tenancy could not exist.
2. Waters and WatercoursesPurchasers Held to Take Subject to Prior Lease by Vendor.
Where a water right was leased in writing for five years with option of extension, and the lessor and
lessee orally agreed as to the rental, subsequent purchasers of the water right took subject to lease and
oral agreement.
3. Vendor and PurchaserGrantee of Revision Subject to Lease Bound to Notice Rights of
Tenant in Possession.
A grantee of a reversion subject to lease made by the grantor must take notice of all rights of tenant in
possession.
4. Waters and WatercoursesPurchaser Taking Subject to Lease Could Not Increase Rent,
Except by Agreement.
Where purchasers took subject to all the rights of a lessee in possession under a prior lease, they
could not increase rent for unexpired portion of the term, except by an agreement supported by a
consideration good in law.
5. Waters and WatercoursesContinued Use of Water Right by Tenant Not Assent to
Increase of Rent by Purchaser Subsequent to Lease.
Where a lessee of a water right in possession at the time of its sale by the lessor did not pay an
increased rental demanded by the purchaser, its remaining in possession did not make it liable, since it
had a right to hold the property till the end of its term, and was liable only for the rent agreed upon with
the lessor.
48 Nev. 41, 42 (1924) Nenzel v. Rochester Silver Corporation
6. Landlord and TenantFailure to Notify Landlord Held Not to Prevent Extension of
Lease; Renewal; Option of Extension; Option of Renewal.
Where a lease provided that the lessee at its election should have a right to an extension for a period of
five years at the termination of the lease, no formal notice of election to extend was necessary; there being
a distinction between the extension of a lease and a renewal, and between an option of extension and
an option of renewal.
7. Landlord and TenantNo Notice Necessary to Exercise Option to Extend Lease.
Where a lessee has an option to have the term extended, no notice of an election to have the term
continued is necessary, unless lease requires it.
See (1) 4 C. J. sec. 2608, p. 701, n. 47; (2, 4, 5,) 40 Cyc. p. 759, n. 49 (new); p. 760, n. 58 (new); (3) 39 Cyc. p.
1756, n. 47; (6, 7) 35 C. J. sec. 175, p. 1036, n. 30.
Appeal from Sixth Judicial District Court, Pershing County; James A. Callahan, Judge.
Action by Joseph F. Nenzel and others against the Rochester Silver Corporation and
another. From judgment for plaintiffs, the named defendant appeals. Reversed and
remanded. (Ducker, C. J., dissenting.)
C. H. McIntosh and John F. Kunz for Appellant:
Estoppel doctrine between landlord and tenant does not preclude grantee showing his
derivative title, nor prevent lessee from attacking validity of transfer from original landlord.
24 Cyc. 945, note 19.
In determining right to use of water, rule of estoppel does not prevail as to right of lessee
to deny title of landlord. Rule applies to corporeal, not incorporeal hereditaments. General
good of community is to be considered. No absolute title is acquired, merely right to use
thereof. 22 R. C. L. 48; 1 Wiel on Water Rights, 585; Swift v. Goodrich, 11 Pac. 561; 1
Washburn Real Property, 310.
Leases or loans of water rights cannot create relation of landlord and tenant. A water right
may be sold outright for use on different land but cannot be leased for temporary use. A lease
of water right does not bring on law of estoppel that applies between landlord and tenant.
48 Nev. 41, 43 (1924) Nenzel v. Rochester Silver Corporation
and tenant. 1 Wiel, 585; 1 Washburn, 310. All waters within state belong to public. 3 Rev.
Laws, 3243. Absolute title to water cannot be acquired. A usufructuary right alone attaches.
Possession by tenant is prima facie evidence of title. Lessee is not estopped to deny lessor's
title where land leased was public domain. Wilder v. McCob, 30 S. W. 822.
Evidence fails to show issuance of permit. Therefore water belonged to state with
defendant in possession. Where statutes prohibit occupation or use of public lands, tenant is
not estopped to deny landlord's title. Arkansas Hot Springs Case, 96 U. S. 698.
Ejectment will not lie for incorporeal hereditament. Redemiger v. Cunningham, 215 Pac.
87.
Contracts for use of water cannot technically raise relation of landlord and tenant. Remedy
for grievance of alleged grantor is by suit in equity. Redemiger v. Cunningham, 122 Pac. 567.
M. B. Moore and Wm. McKnight, for Respondents:
A water right is real property. Kinney on Irrigation (2d ed.), 1328; Wiel on Water Rights
(3d ed.), 298.
A conveyance of real property can be made only by deed. Rev. Laws, 1017.
Tenant is estopped to deny title of landlord before surrender. 34 Cyc. 934; 16 R. C. L.
649-50-51.
Modification of contract must be assented to by both parties. It is new contract and must
be supported by consideration. 6 R. C. L. 914, 916.
Statute of Frauds prevents enforcement of oral lease. Rev. Laws, 1069, 1071, 1075. Where
there is part performance, terms must be clearly established. Evans v. Lee, 12 Nev. 399; 25 R.
C. L. 567.
Tenant who does not pay rent or surrender after due notice is guilty of unlawful detainer.
Rev. Laws, 5588, as amended 1917 Stats. 31. Notice may be signed by attorney. Felton v.
Millard, 21 Pac. 533; 22 Pac. 750. Technical nicety is not required in notice. Houghton v.
Potter, 23 N. J. Law, 338; Samuels v. Greenspan, 58 Pac. 482; Miller v. Hall, 60 Pac. 196.
48 Nev. 41, 44 (1924) Nenzel v. Rochester Silver Corporation
Having litigated other matters involved without objection to notice, defendant cannot now
object that proper notice was not served. Rabe v. Fyler, 48 Am. Dec. 765; Wolfer v. Hurst, 8
Ann. Cas. 730.
Defendant waived right to notice to quit or demand of possession by denying title. 25 L. R.
A. (N.S.) 104; 24 Cyc. 1403.
OPINION
By the Court, Sanders, J.:
This is an action against a tenant holding over, for possession of the premises, under
section 646 of the Civil Practice Act (section 5588, Rev. Laws), as amended by chapter 27 of
the statutes of 1917, page 31, which provides:
A tenant of real property, for a term less than life, is guilty of an unlawful detainer: * * *
When he continues in possession, in person or by subtenant, after default in the payment
of any rent and after a notice in writing requiring in the alternative the payment of the rent or
the surrender of the detained premises, shall have remained uncomplied with for the period of
three days after service thereof. Such notice may be served at any time after the rent becomes
due.
While the complaint is made to run against two defendants, it is obvious from the record
that the Rochester Silver Corporation is the real party defendant in interest, and the defendant
C. H. Patterson, who did not appear in the action, was joined on the assumption that he was in
possession when the suit was begun.
By agreement of parties the case was tried to the court, judgment rendered for restitution,
and against the Rochester Silver Corporation for the sum of $4,006.01, as rent at $200 per
month from the first day of August, 1921, to the date of judgment, to wit, May 21, 1923. The
Rochester Silver Corporation appeals from the judgment and from an order denying its
motion for new trial.
The plaintiffs sue as trustees for the Mineral Production and Refining Companies, which,
on the 3d day of January, 1921, acquired title through mesne conveyances to a water
right, together with that certain mining claim called the Cotton Tail lode mining claim, a
pumping plant and pipe line constructed to divert the water from its natural source of
supplya springinto a tank used for the distribution of the water.
48 Nev. 41, 45 (1924) Nenzel v. Rochester Silver Corporation
January, 1921, acquired title through mesne conveyances to a water right, together with that
certain mining claim called the Cotton Tail lode mining claim, a pumping plant and pipe line
constructed to divert the water from its natural source of supplya springinto a tank used
for the distribution of the water. The Rochester Silver Corporation claims the right to the use
of the water and water system under a prior lease, duly assigned to the Rochester Mines
Company and a subsequent oral agreement with the then owner and lessor, Joseph F. Nenzel,
for the use of the water at a fixed rental of $30 per month, it to pay for the maintenance and
operation of the water plant as provided in the assigned lease.
1. The Rochester Silver Corporation insists for the first time on appeal from the judgment
that the court below was without jurisdiction to render the judgment it did, in that leases or
similar transactions in water rights cannot create the relation of landlord and tenant, since
water rights are incorporeal hereditaments in which tenancy cannot exist. Weil on Water
Rights (3d ed.) sec. 548. Technically this is so, but, having admitted in its answer that the
relationship existed, the defendant corporation is in no position to now insist that as a matter
of law the relationship did not exist because of the character of the property. The very issue
tendered by the corporation was that it claimed the right to the use of the water and water
plant under and by virtue of a lease for a specified term of years with the privilege of an
extension for another term, if it should so elect. An act should not be alleged by a party in his
pleading and denied by him on appeal. Garson v. Steamboat Canal Co., 43 Nev. 298, 185
Pac. 801, 1119.
The case as presented on appeal involves the determination of two questions of law: One,
whether the defendant corporation, which entered under a senior lease, duly assigned to it, is
entitled to hold the property as against plaintiffs, the owners in fee under a junior conveyance.
The other, whether plaintiffs are entitled to recover a rental of $200 per month as
compensation for the use of the property from August 1, 1921, to the date of the judgment
herein.
48 Nev. 41, 46 (1924) Nenzel v. Rochester Silver Corporation
for the use of the property from August 1, 1921, to the date of the judgment herein.
In view of the full and completed findings of fact and the conclusions of law it is
unnecessary to summarize the pleadings.
The court found the facts to be, in substance, as follows:
In February, 1917, Joseph F. Nenzel, one of plaintiffs' predecessors in interest, proposed,
in the form of a letter addressed to the Nenzel Crown Point Mining Company, to secure for
the company a contract for a period of five years for supplying the company's purposed
milling plant with water required by said plant, or such amount of water as the source would
produce, in consideration of the payment of monthly sum which would cover the cost of
operation, together with the interest on the invested capital. On the 8th day of May, 1917,
Joseph F. Nenzel obtained a permit, No. 4259, from the state engineer of Nevada to
appropriate the water in question. Thereafter, on, to wit, the 15th day of May, 1917, said
Nenzel, as party of the first party, and said company, as party of the second part, agreed in
writing as follows:
For the term of five (5) years from and after the date hereof the party of the first part
agrees to furnish the water from that certain spring situated on the east side of Nenzel Hill,
about 1,000 feet in a northerly direction from the mill site of said second party, known as the
American Canyon Spring, Rochester mining district, Humboldt County, State of Nevada, or
so much thereof as may be required for the milling plant of said second party.
Party of the first part is to have the election, if he so desires, of constructing a pumping
plant at said spring and a pipe line therefrom to said mill, in which event party of the second
part shall pay to the party of the first part monthly, on the 15th day of each and every month
during the term hereof, or any extension of said term, an amount equal to the cost of
operating said pumping plant and interest at eight (8) per cent per annum upon the amount
of the cost of the construction of said pumping plant and said pipe line.
48 Nev. 41, 47 (1924) Nenzel v. Rochester Silver Corporation
annum upon the amount of the cost of the construction of said pumping plant and said pipe
line.
In the event said party of the first part shall not construct such pumping plant and pipe
line, the said party of the second party may construct the same, in which event the said first
party agrees to furnish the water from said spring, or so much thereof as may be required,
without any compensation therefor.
Upon the termination of the term hereof said party of the second party shall have the right
to an extension for a further term of five (5) years, if it shall so elect.
The purposed milling plant was never built, but the Nenzel Crown Point Mining Company
used the water in operating its mine for a period of approximately two years, when the
company assigned its interest in the contract to the Rochester Mines Company, the
defendant's immediate predecessor. Afterwards, by oral agreement between Nenzel and the
Rochester Mines Company, a rental of $30 per month was fixed by the parties as a reasonable
rent for the use of the water. Under the agreement said rentals were paid to Nenzel and to
plaintiffs to and including the month of July, 1921, and said rentals were received as payment
in full. In July, 1921, plaintiffs rendered the Rochester Silver Corporation a bill or statement,
in substance showing that plaintiffs claimed a rental of $200 per month for the use of the
water instead of $30 per month. It was found that during the summer of 1921 the Rochester
Silver Corporation, in an attachment proceeding against the Mineral Production and Refining
Companys, paid to plaintiff in said attachment suit of the benefit of the Mineral Production
and Refining Companies the sum of $120.65, which sum was allowed by the court as a credit
on the rental at $200 per month.
The court found that the lease from Joseph F. Nenzel to the Nenzel Crown Point Mining
Company expired on the 15th day of May, 1922, unless the same was renewed. Prior to the
date of the expiration of the lease the Rochester Silver Corporation, by one of its proper
officers, wrote said Nenzel a letter informing and notifying him that the corporation, as
successor of the Nenzel Crown Point Mining Company, elected to continue the lease for
another five years.
48 Nev. 41, 48 (1924) Nenzel v. Rochester Silver Corporation
him that the corporation, as successor of the Nenzel Crown Point Mining Company, elected
to continue the lease for another five years. The letter was inclosed in an envelope properly
directed to said Nenzel, and, as was the custom of the office, placed in a basket to be mailed
by one of its clerks. The court found that the letter was never received by the addressee, and
there was no evidence to show that the letter was actually posted. During all of the times
herein mentioned the defendant corporation remained in the possession of the water works,
maintained and operated the same at its own expense, and used the water in and about its
mine and for domestic purposes. On the 18th day of July, 1922, nearly a year after the
rendition of the bill or statement showing that plaintiffs claimed rent at $200 per month
instead of $30 per month for the use of the water, plaintiffs made demand in writing upon the
defendant corporation to pay said rent of $200 per month or to surrender the premises within
three days after service of said demand. The defendant refused to do either.
The conclusions of law drawn from these findings of fact are substantially as follows: That
plaintiffs are entitled to restitution of the premises upon two grounds: First, the original
contract of lease from Nenzel to the Nenzel Crown Point Mining Company is too indefinite
and uncertain to be enforced except as a tenancy at law; and second, there is no evidence of a
renewal of the lease.
Upon the issue of the amount of rent the court concluded that, since the water in question
belonged to plaintiffs, it was their right to increase the rental even to an exorbitant amount,
and, plaintiffs having increased the rent to $200 per month, the court was powerless to reduce
the amount to a reasonable sum, and the defendant had but one option, which was to either
pay the increased rent or terminate the tenancy, and, therefore, plaintiffs were entitled to
recover rent at $200 per month for the use of the water from August 1, 1921, and to recover
judgment for the restitution of the water right and the Cotton Tail lode mining claim, but not
for the pumping plant, pipe line, tank, and other equipment on the ground, because
plaintiffs had failed to establish that said articles were fixtures.
48 Nev. 41, 49 (1924) Nenzel v. Rochester Silver Corporation
the pumping plant, pipe line, tank, and other equipment on the ground, because plaintiffs had
failed to establish that said articles were fixtures. In accordance with these findings and
conclusions judgment was rendered for the restitution of the water right and said mining
claim and against the defendant corporation for the sum of $4,006.01, as rent at $200 per
month.
Referring to the parties as they stood in the court below, the defendant, Rochester Silver
Corporation, assails the findings of fact, conclusions of law, and the judgment upon several
grounds. The question of first importance involves the validity of the judgment for the sum or
$4,006.01, as rent at $200 per month from August 1, 1921. We are unable to discern any
principle of law on which the judgment can be sustained. It appears from the complaint that
plaintiffs proceeded upon the theory that when they acquired title to the premises by deed
bearing date on the 3d day of January, 1921, the defendant corporation was in possession
under a verbal agreement which expired at that time, and, upon plaintiffs giving notice to the
defendant that the rent would thereafter be $200 per month, and upon defendant's refusal to
pay the rent or to quit the premises upon demand made nearly a year after the alleged
notification of the increase in the rent, it immediately became subject to removal by the
summary method of an action in unlawful detainer.
2, 3. The question of whether defendant was in possession when plaintiffs acquired title in
January, 1921, under a verbal agreement which expired at that time was a controverted fact in
the case found by the trial court against plaintiffs. It seems that counsel for plaintiffs,
appreciating the result of this adverse finding, now insist that the oral agreement between
Nenzel and the Rochester Mines Company, whereby it was agreed that said company should
have the use of the water at a rental of $30 per month, payable monthly, referred to water
from a spring different from that mentioned in the original contract of lease between Nenzel
and the Nenzel Crown Point Mining Company. The court found against this contention, and
decided that said lease agreement created a tenancy at law for a specified term of five
years from the date thereof with the privilege of renewal, if the lessee should so elect.
48 Nev. 41, 50 (1924) Nenzel v. Rochester Silver Corporation
against this contention, and decided that said lease agreement created a tenancy at law for a
specified term of five years from the date thereof with the privilege of renewal, if the lessee
should so elect. In this situation plaintiffs as purchasers of the water right and water plant
took subject to the terms and conditions of the prior lease, duly assigned to the defendant, and
the oral agreement of Nenzel to furnish the water at a rental charge of $30 per month. It is
well settled that a grantee of the reversion which is subject to a lease made by the grantor is
bound to take notice of all the rights of a tenant in possession. Underhill on Landlord and
Tenant, p. 496. Certainly plaintiffs by virtue of their junior conveyance did not have any
larger rights against the defendant than Nenzel, their grantor and the defendant's lessor. To so
hold would be to disregard a well-known and elementary principle of law. The trial court
seems to have recognized this, but took the view that, since the water in question belonged to
plaintiffs, it was their right to increase the rent to $200 per month, which the defendant had to
pay or terminate the tenancy.
4, 5. This, I apprehend, was a misapplication of the law under which rent may be increased
by the parties in the middle of a term. The plaintiffs, who took subject to all the rights of the
defendant in possession under its prior lease, could not increase the rent for the unexpired
portion of a term except by an agreement supported by a consideration good in law. Taylor v.
Winters, 6 Phila. (Pa.) 126. We are not in accord with the suggestion that defendant's
continued use of the water must be construed into an assent to the increase of the rent. There
was no privity of contract, express or implied, between the parties to pay the increased rent.
On the contrary, the defendant did not pay the same before or after the demand made upon it
to pay the rent or to quit the premises, and plaintiffs ultimately charged the defendant with
being guilty of an unlawful detainer under the statute for nonpayment of rent. Conceding, for
the sake of the argument, that plaintiffs notified the defendant when they acquired title that
the rent would thereafter be $200 per month, the defendant not having assented to the
increase, its remaining in possession did not make it liable therefor, because it had the
legal right to continue to hold the property until the expiration of its term and could be
liable only for the rent it had agreed to pay.
48 Nev. 41, 51 (1924) Nenzel v. Rochester Silver Corporation
thereafter be $200 per month, the defendant not having assented to the increase, its remaining
in possession did not make it liable therefor, because it had the legal right to continue to hold
the property until the expiration of its term and could be liable only for the rent it had agreed
to pay. Bancroft v. Seashore Camp Ground School, 120 Miss. 446, 82 South. 314. The case at
bar is not one where notice has been given to a tenant whose term is expiring that in the event
of his holding over the rent will be for an increased amount, and the tenant continues to hold
over without objection to the increase.
In any view, the judgment for rent cannot be upheld upon the theory adopted by the trial
court, which was that since the water in question belonged to plaintiffs it was their right to
increase the rent, thus leaving the defendant with but the one option, to either pay the rent or
terminate the tenancy.
6, 7. We are further of opinion that the court erred in deciding that plaintiffs were entitled
to recover possession of the premises on the ground that there was no renewal of the contract
of lease from Nenzel to the Nenzel Crown Point Mining Company. One of the officers of the
defendant corporation seems to have deemed it necessary or expedient to give notice to
Joseph F. Nenzel, the lessor, of the corporation's election to continue the term of the lease for
another period of five years. We are in accord with the court's ruling that there was no
evidence from which any legal presumption could be drawn that the letter notifying Joseph F.
Nenzel of the corporation's election to continue the term was received by him in due course of
mail, but it does not follow that the failure of the defendant to give formal notice of its
election to extend the term entitled plaintiffs to recover.
There is a distinction between the extension of a lease and a renewal of a lease and
between an option of extension and an option of renewal of a lease. 16 R. C. L. p. 885;
Underhill, sec. 803; Crenshaw-Gary Lumber Co. v. Norton, L. R. A. 1916e, 1227, annotated.
48 Nev. 41, 52 (1924) Nenzel v. Rochester Silver Corporation
The clause in the lease reads:
Upon the termination of the term hereof said party of the second part shall have the right
to an extension for a further period of five (5) years, if it shall so elect.
It is obvious that this covenant means no more than to prolong or continue the lease at the
option of the lessee. The weight of authority is that, when there is an option to lessee to have
the same term extended, no notice of an election to have the term continue is necessary,
unless it is required by a clause in the lease. Jones on Landlord and Tenant, sec. 340; Taylor
on Landlord and Tenant, sec. 332; Underhill on Landlord and Tenant, sec. 803, p. 1362.
Underhill, sec. 809, p. 1377, says:
Where a lease conferring an option to renew upon the lessee omits to provide that he shall
notify the lessor of his election to renew, a notice from him to his lessor of his intention to
renew is not required. In such a case the lessee's merely remaining in possession after the
term has expired is an exercise of the option to renew and binds both him and the lessor for a
new term.
To test the matter by the question of evidence it is obvious that no legal right of plaintiffs
is infringed by holding that no formal notice of election was necessary. While we do not go
so far as to hold that plaintiffs had actual knowledge of the defendant's intention to continue
the term, yet plaintiffs' demand upon defendant to pay the rent or to quit the premises affords
demonstration that no notice of election was considered necessary by plaintiffs in order for
the defendant to extend the term for another five years.
The court rested its judgment upon a mistake of law, both with respect to the matter of the
increased rent and the defendant's right to an extension of the term of the lease. The judgment
is therefore reversed, and the cause is remanded for a new trial.
Coleman, J.: I concur in the order.
Ducker, C. J.: I dissent.
48 Nev. 41, 53 (1924) Nenzel v. Rochester Silver Corporation
On Petition for Rehearing
February 9, 1925.
Per Curiam:
Rehearing denied.
Ducker, J.: I dissent.
____________
48 Nev. 53, 53 (1924) Pacific States Sec. Co. v. District Court
Ex Rel. PACIFIC STATES SECURITY CO. v.
DISTRICT COURT
No. 2639
July 1, 1924. 226 Pac. 1106.
1. CorporationsStatute Held Not to Prevent Foreign Corporation from Maintaining Action
Where Not Doing Business Within State.
Rev. Laws 1912, sec. 1348-1350, prescribing conditions on the right of foreign corporations to do
business within the state, does not prevent a foreign corporation from maintaining an action in the state
courts where there is no showing that it had entered the state for purpose of doing business in sense in
which the words doing business is meant, and transaction of single piece of business is not enough.
2. CorporationsService of Summons on Foreign Corporation Held Insufficient to Confer
Jurisdiction.
A service of summons outside the state on a foreign corporation not then doing business in the state
was insufficient to confer jurisdiction, in view of Rev. Laws, 1912, sec. 5025, Stats. 1921, p. 107, in an
action in personam; sections 5026 and 5027 applying only to actions in rem and being inapplicable.
3. CourtsCourt Held Not to Acquire Jurisdiction by Erroneous Ruling Upon Motion to
Dismiss Made on Special Appearance.
Where court had not acquired jurisdiction over a foreign corporation by service of process on
appearance, it could acquire none by making an erroneous ruling denying motion to dismiss made on
special appearance.
4. CertiorariStatute Held Not to Provide Defendant Remedy by Appeal; Parties.
Rev. Laws, 1912, sec. 5327, making an appeal available only to an aggrieved party, did not provide a
remedy for defendant over whom court had not acquired jurisdiction by service of process or
appearance, upon court's denial of his motion to quash service of summons, since
"parties" are those who are named as such in the record and who are properly
served or who enter their appearance; and hence certiorari lay.
48 Nev. 53, 54 (1924) Pacific States Sec. Co. v. District Court
process or appearance, upon court's denial of his motion to quash service of summons, since parties are
those who are named as such in the record and who are properly served or who enter their appearance; and
hence certiorari lay.
See (1,2) 14a C. J. sec. 3979, p. 1273, n. 5; sec. 4063, p. 1354, n. 20; sec. 4131, p. 1406, n. 85; (3) 15 C. J. sec.
92, p. 797, n. 51; (4) 11 C. J. sec. 23, p. 97, n. 50.
Original proceeding in certiorari by the State of Nevada, on the relation of the Pacific
States Securities Company, a corporation, against the Second Judicial District Court of the
State of Nevada for the county of Washoe, and Thomas F. Moran, District Judge. On motion
to quash. Motion denied.
Platt & Sanford and John S. Sinai, for Petitioners:
Being directed solely to jurisdiction, certiorari is proper. There is no appeal. In denying
motion to quash court ordered defendant into court on defective service and improperly
assumed jurisdiction.
Only possible service on foreign corporation is upon managing or business agent, cashier
or secretary within state. Rev. Laws, 5023, subd. 2. Sections 5024 and 5025 are additional
mode and manner of serving process. 1921 Stats. 106, amends and takes place of section
5025; section 5023 provides only other method. Such statutes are mandatory and exclusive. 6
Thompson on Corporations, par. 7503.
Jurisdiction will not be acquired unless statutory mode is followed. National Cereal Co. v.
Earnest, 87 S. W. 734.
Whether corporation complied with statutory provision is not properly before this court;
that is matter of fact upon which it has right to be heard without summary action.
Single transaction does not constitute doing business.
Sole question is whether lower court exceeded jurisdication in denying motion to quash
summons and issuance of process thereon and whether court had right to issue certiorari.
48 Nev. 53, 55 (1924) Pacific States Sec. Co. v. District Court
H. W. Huskey, for Respondents:
Petitioners, a foreign corporation, failed to file copy of articles with county recorder where
principal place of business was located. It comes here without power to appear. Rev. Laws,
1348-49-50. It is also in default to state for fees.
Writ should not have been issued and cannot stand, since order denying motion to quash
was clearly within jurisdiction. If decision was erroneous petitioner had adequate remedy by
appeal, for which certiorari cannot be substituted.
Service on president was valid, having been made under Rev. Laws, 5026 and 5027. The
fact that sec. 5025 provides additional method does not exclude general method. Sections
5023 and 5024 provide method upon only such foreign corporations as have resident agents,
or are doing business here and have managing or business agent here. Where there is no agent
service is made under sec. 5025.
Affidavit need not allege due diligence because foreign residence of corporation is stated
in affidavit and complaint.
In Victor M. M. Co. v. Justice Court, 18 Nev. 21, service was attempted under sec. 5026.
In Wildes v. Lou Dillon M. Co., 41 Nev. 364, it was attempted under secs. 5026-7. These
decisions hold service invalid because sections were not complied with. No point was made
that service could have been made under sec. 5025.
Action is not in personam. Automobile is in Nevada. Judgment would be lien upon
property within jurisdiction.
OPINION
By the Court, Coleman, J.:
This is an original proceeding in certiorari.
The respondent has moved to quash upon three grounds, the first of which reads:
That petitioner, Pacific States Securities Company, is a foreign corporation. That said
petitioner has not complied with the provisions of the act of March 20, 1907, being
sections 134S, 1349, and 1350, Revised Laws of 1912, in that it has failed to file a
certified copy of its articles of incorporation in the office of the county clerk of the county
where its principal place of business in Nevada was located; in that it has not paid any
fees to the secretary of state of the State of Nevada.
48 Nev. 53, 56 (1924) Pacific States Sec. Co. v. District Court
complied with the provisions of the act of March 20, 1907, being sections 1348, 1349, and
1350, Revised Laws of 1912, in that it has failed to file a certified copy of its articles of
incorporation in the office of the county clerk of the county where its principal place of
business in Nevada was located; in that it has not paid any fees to the secretary of state of the
State of Nevada. That for said reasons petitioner has commenced this proceeding without any
authority and illegally, as appears from section 1350, Revised Laws of Nevada, 1912, under
which provision petitioner is not allowed to commence or maintain any action or proceeding
in any court of this state until it shall have fully complied with the provisions of said section
1350.
The second and third grounds relied upon go to the merits of the application for the writ.
1. In support of the first ground, respondents rely upon the provisions of any act entitled
An act to require foreign corporations to qualify before carrying on business in this state,
regulating and prescribing the manner thereof, other matters pertaining thereto, and repealing
all other acts in conflict herewith, approved March 20, 1907, p. 190; Revised Laws of 1912,
secs. 1348, 1349, and 1350. Section 1 of the act in question reads:
Every corporation organized under the laws of another state, territory, the District of
Columbia, a dependency of the United States or foreign country, which shall hereafter enter
this state for the purpose of doing business therein, must, before commencing or doing any
business in this state, file in the office of the secretary of state of the State of Nevada a
certified copy of said articles of incorporation, or of its charter, or of the statute or statutes, or
legislative, or executive, or governmental acts, or other instrument or authority by which it
was created, and a certified copy thereof, duly certified by the secretary of state of this state,
in the office of the county clerk of the county where its principal place of business in this
state is located.
Section 3 of the act provides that no corporation which fails to comply with the
provisions of this act shall be allowed to commence, maintain, or defend any action or
proceeding in any court of this state until it shall have fully complied with the terms of the
act.
48 Nev. 53, 57 (1924) Pacific States Sec. Co. v. District Court
which fails to comply with the provisions of this act shall be allowed to commence, maintain,
or defend any action or proceeding in any court of this state until it shall have fully complied
with the terms of the act.
In support of the motion to quash, we have before us a certificate of the secretary of state
to the effect that the petitioner has not filed its articles of incorporation in this department.
No other or further showing is made in support of the motion to quash pursuant to the first
ground.
The first ground of the motion is without merit. Section 1 of the act relied upon is aimed at
foreign corporations entering this state for the purpose of doing business therein. There is no
pretense of a showing that the petitioner entered this state for the purpose of doing business
therein in the sense in which the words doing business is meant. The fact that it may have
transacted a single piece of business in the state is not doing business in the sense
contemplated by the statute, and there is no showing that it ever did more business in this
state than the one transaction. In 12 R.C.L. p. 69, is is said:
Isolated or Single ActIt seems to be the consensus of opinion that a corporation, to
come within the purview of most statutes prescribing conditions on the right of foreign
corporations to do business within the state, must transact therein some substantial part of its
ordinary business, which must be continuous in the sense that it is distinguished from merely
casual or occasional transactions, and if it must be of such a character as will give rise to
some form of legal obligations. Hence it may be laid down as a general rule that the action of
a foreign corporation in entering into one contract or transacting an isolated business act in
the state does not ordinarily constitute the carrying on or doing business' therein.
And in 14a C. J. 1273, it is said:
In most jurisdictions it has been held that single or isolated transactions do not constitute
doing business within the meaning of such statutes, although they are a part of the very
business for which the corporation is organized to transact, if the action of the
corporation in engaging therein indicates no purpose of continuity of conduct in that
respect."
48 Nev. 53, 58 (1924) Pacific States Sec. Co. v. District Court
a part of the very business for which the corporation is organized to transact, if the action of
the corporation in engaging therein indicates no purpose of continuity of conduct in that
respect.
See, also, Cooper Mfg. Co. v. Ferguson, 113 U. S. 727, 5 Sup. Ct. 739, 29 L. Ed. 1137; 6
Thompson, Corporations, sec. 7936; 13 Am. & Eng. Ency. Law (2d ed.), p. 869; Ladd Metals
Co. v. American M. Co. (C. C.) 152 Fed. 1008; Penn. Collieries Co. v. McKeever, 183 N. Y.
98, 75 N. E. 935, 2 L. R. A. (N. S.) 127.
The second ground of the motion to quash reads as follows:
That said writ should not have been issued for the reason that the decision as set out in
the minute order of the district court, to wit, the decision and order denying the motion to
quash service of summons was clearly within the jurisdiction of said district court; that even
if said decision were erroneous, petitioner has left to him an adequate and complete remedy
by ordinary proceedings at law, to wit, by an appeal.
The action, the proceedings of which are sought to be reviewed, is brought to recover
damages in the sum of $1,200 and for the cancellation of a contract. Service of summons
upon the defendant was made in San Francisco, Calif., based upon an order of the court.
The defendant appeared specially in the action and moved to quash the service of the
summons upon the ground that the method of making service is illegal and contrary to the
method of making service of summons upon foreign corporations, and that the affidavit upon
which the order of publication was made was insufficient to give the court jurisdiction to
make the order.
2. It is clear that the motion to quash the service of the summons was improperly denied by
the trial court. While there is an allegation in the complaint to the effect that the defendant
was a corporation organized under the laws of California and at all times mentioned in the
complaint to and including September 5, 1923, was doing business in Nevada, there is no
pretense of a showing anywhere that the defendant was doing business in Nevada on
October 4, 1923, the day upon which the action was instituted, and, this being an action
in personam and not in rem, no valid judgment could be rendered against the defendant
upon the cause of action pleaded in the complaint, pursuant to the service made.
48 Nev. 53, 59 (1924) Pacific States Sec. Co. v. District Court
business in Nevada on October 4, 1923, the day upon which the action was instituted, and,
this being an action in personam and not in rem, no valid judgment could be rendered against
the defendant upon the cause of action pleaded in the complaint, pursuant to the service
made. This was settled by the case of Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565. In St.
Clair v. Cox, 106 U. S. 350, 1 Sup. Ct. 354, 27 L. Ed. 222, speaking of the Pennoyer Case it
was said:
The doctrine of that case applies, in all its force, to personal judgments of state courts
against foreign corporations. The courts rendering them must have acquired jurisdiction over
the party by personal service or voluntary appearance, whether the party be a corporation or a
natural person.
See, also, Ladd Metals Co. v. American M. Co., supra; Remington v. Central Pacific Ry.
Co., 198 U. S. 95, 25 Sup. Ct. 577, 49 L. Ed. 959; Multnomah L. & B. Co. v. Weston B. Co,
54 Or. 22, 99 Pac. 1046, 102 Pac. 1.
Counsel for respondent, in support of the motion to quash, contend that authority for the
entering of the order of publication may be found in sections 5026 and 5027, Rev. Laws,
1912. These sections may be proceeded under in actions in rem, but not in actions in
personam.
3. The contention that the order of the district court denying the motion to quash the
service of summons upon the defendant was an error (if it be an error), in the exercise of
jurisdiction, and that the defendant was left to its remedy by appeal: It is true that the ruling of
the court, though erroneous, was a mere error; but it is equally true that the court, not having
acquired jurisdiction over the defendant by service of process of appearance, could acquire
none by making an erroneous ruling upon a motion to dismiss, made on special appearance. It
was held in Floyd v. District Court, 36 Nev. 349, 135 Pac. 922, 4 A.L.R. 646, that a court
could not divest itself of jurisdiction by an erroneous ruling made in the exercise of
jurisdiction. By parity of reasoning, a court could not invest itself with jurisdiction by an
erroneous ruling in the exercise of jurisdiction.
48 Nev. 53, 60 (1924) Pacific States Sec. Co. v. District Court
The only way sought to be prescribed by our statute for service of summons upon a foreign
corporation doing business in this state, which has neglected to designate an agent upon
whom summons may be served, is by service upon the secretary of state. Section 5025, Rev.
Laws, as amended, Stats. 1921, p. 107. No effort was made to comply with section 5025, as
amended, but it was sought to comply with statutes pertaining to actions in rem.
4. We do not think the petitioner has a remedy by appeal. An appeal is made available only
to an aggrieved party. Section 5327, Rev. Laws. The petition was not a party to the suit in
the district court in the sense meant by the statute. Parties are those who are named as such in
the record, and who are properly served with process, or enter their appearance. 20 R. C. L. p.
662; Womach v. City of St. Joseph, 201 Mo. 467, 100 S. W. 443, 10 L. R. A. (N.S.) 140.
Motion to quash is denied.
____________
48 Nev. 60, 60 (1924) Sorge v. Sierra Auto Supply Co.
SORGE v. SIERRA AUTO SUPPLY CO.
No. 2583
July 1, 1924. 227 Pac. 320.
ON COSTS
1. CostsRecovery of Costs on Appeal, Where Judgment Modified, Held Warranted.
Under Rev. Laws, sec. 5381, authorizing recovery of costs, on appeal where judgment is modified by
party obtaining any relief, where judgment appealed from was modified as related to attorney's fees,
costs were recoverable.
2. CostsVerified Bill, Stating Costs Are Correct and Necessarily Incurred, Sufficient.
Under Supreme Court rule vi, requiring one seeking to recover costs to file bill stating actual costs,
a bill stating that costs listed are correct and necessarily incurred is sufficient.
See 15 C. J. sec. 618, p. 251, n. 53; sec. 655, p. 263, n. 29.
See, also, 47 Nev. 217, 222.
48 Nev. 60, 61 (1924) Sorge v. Sierra Auto Supply Co.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Suit by Nick Sorge against the Sierra Auto Supply Company and others. On motion to
retax costs on appeal by Fred Stadtmuller as trustee in bankruptcy of defendant. Motion
denied.
W. M. Kearney, for Movant and Respondent:
Opinion on merits contained no order as to costs. There was no order for new trial, nor
modification of facts nor amount of attorney's fees. Appellant obtained no relief. Respondent
clearly prevailed on main issue.
Rule vi on costs allows expense of transcript, affidavits, briefs, or other papers in record;
all other costs to be taxed by clerk according to fee bill. Richards v. Vermilyea, 42 Nev. 294.
Verified cost bill must be filed and served. No greater than actual costs shall be taxed.
Zelavin v. Mining Co., 41 Nev. 1.
Rule vi provides for verification stating actual costs. Stats. 1919, 175, requires costs be
actually instead of necessarily incurred.
Failure to claim costs in manner required by statute is waiver. Hotchiss v. Smith, 41 Pac.
304.
Having failed to obtain new trial, no allowance can be made for transcript. Ramelli v.
Sorge, 40 Nev. 281, citing Rev. Laws, 5333.
Appellant will be deemed unsuccessful if mere change in portion of judgment is made, and
must pay costs. I. C. R. R. Co. v. Wells, 59 S. W. 1041.
Where appeal was from whole decree and only minor modification made, neither party
was given costs. N. E. R. R. Co. v. Carnegie Steel Co., 75 Fed. 54.
Correction of trivial error is not sufficient to entitle appellant to costs. Thrasher v. Moran,
81 Pac. 32.
Price & Hawkins, for Appellants:
Rev. Laws 5381 provides in event no order is made relative to costs in two instances
mentioned, party obtaining any relief shall have his costs.
48 Nev. 60, 62 (1924) Sorge v. Sierra Auto Supply Co.
obtaining any relief shall have his costs. Appellant obtained relief.
Rev. Laws 5333, construed in Ramelli v. Sorge, 40 Nev. 281, cited by counsel, was
repealed in 1915, hence that case is not authority in case at bar.
It is not unusual for court not to make order awarding costs. Page v. Walser is authority for
award in case at bar.
Unless 1919 Stats. 175, has changed law, verification to cost bill is sufficient. Manifestly
statute has no reference to costs involved in this action.
According to respondent the order remanding case and directing court to modify judgment
amounts to nothing.
OPINION
By the Court, Coleman, J.:
Subsequently to the filing of the opinion on the merits in the above-entitled matter the
appellant filed his cost bill consisting of several items, duly sworn to; the affidavit reciting
that the items in the cost bill are correct, and that said disbursements have been necessarily
incurred in said action.
Counsel for respondents made a motion to retax costs upon the following grounds: (a) The
appellants did not prevail in their motion for a new trial and upon an appeal from the
judgment, and that the respondent was sustained in all material matters involved. (b) Upon
the ground that the said memorandum of costs and disbursements does not comply with the
statutes and rules in such cases made and provided, and that the same is therefore null and
void. (c) Upon the ground that a new trial has not been authorized or granted wherein any
change may be made regarding the question at issue on appeal; namely, an attorney's fee. (d)
That the supreme court sustained the respondent in holding that the respondent was entitled to
an attorney fee on foreclosure.
48 Nev. 60, 63 (1924) Sorge v. Sierra Auto Supply Co.
The clerk overruled the motion, and an appeal has been taken as authorized by rule vi.
Section 5381, Revised Laws, reads:
In the following cases the costs of an appeal to the supreme court shall be in the
discretion of the court:
1. Where a new trial is ordered.
2. When a judgment is modified. In the event no order is made by the court relative to the
costs in the two instances mentioned in this section, the party obtaining any relief shall have
his costs.
Rule vi enumerates the items of costs which may be recovered, and provides that the party
desiring to recover his cost shall file and serve his verified cost bill stating the actual cost
incurred, and no greater amount than such actual cost shall be taxed as costs.
In disposing of this case upon the merits it was ordered that the case be remanded, and that
the trial court modify its judgment in accordance with the views expressed in the opinion.
1. Counsel for movant cites many authorities upon which reliance is had to sustain the
contention that there was no such modification of the judgment as entitled appellant to
recover costs. Our statute provides that a party obtaining any relief shall be entitled to
recover costs. The statute is very broad, and leaves no room for the exercise of discretion at
this time, even if we were disposed to exercise any. Under the uniform decisions of this court
no course is open but to rule against the contention made. Richards v. Vermilyea, 42 Nev.
294, 175 Pac. 188, 180 Pac. 121.
2. Counsel also contends that the items of costs for typing record on appeal, brief, etc.,
should be disallowed, since it does not appear that they were actual costs. The affidavit in
support of the cost bill does not use the word actual, but, as shown, it states that the items
in the cost bill are correct, and that they were necessarily incurred. It appears to us that it
is not necessary that the word actual be used in the verification of a cost bill to convey the
idea that the costs were in fact incurred, and this is all that was ever contemplated as
being necessary to be shown to entitle a party to his costs.
48 Nev. 60, 64 (1924) Sorge v. Sierra Auto Supply Co.
were in fact incurred, and this is all that was ever contemplated as being necessary to be
shown to entitle a party to his costs. When an affidavit shows that the items of costs are
correct and necessarily incurred, it complies with the requirement of the rule.
The rulings of the clerk are correct, and are hereby affirmed.
____________
48 Nev. 64, 64 (1924) Ex Rel. Bridges v. Jepsen
Ex Rel. BRIDGES v. JEPSEN
No. 2668
July 24, 1924. 227 Pac. 588.
1. CountiesClerk Appointed to Fill Vacancy Holds Office Until the Next General
Election for County Officers.
Rev. Laws, sec. 2813, providing for appointment by county commissioners to fill vacancies in the
county clerk's office until the next general election, means the next general election for county officers
who, under Stats. 1920-21, c. 56, hold for four years, not the biennial general election, held every two
years, if occurring before four-year term expires.
2. OfficersAppointments to Fill Vacancies Usually Effective Only Until Election.
The policy of the government and theory of the law is that election to office should be by the people
when it can conveniently be done, and appointment to fill vacancies be effective only until the people
may elect.
3. OfficersConstitutional or Legal Enactment Held Necessary to Authorize Election to Fill
Vacancy.
An election to fill a vacancy in an elective office can only beheld by virtue of constitutional
provisions or legal enactment, either expressed, or by direct implication authorizing that particular
election; there being no inherent right in the people to hold an election to fill such vacancy.
See 15 C. J. sec. 155, p. 493, n. 35; 20 C. J. sec. 76, p. 95, n. 4; 29 Cyc. p. 1403, n. 69 (new).
Original proceeding in mandamus by the State, on the relation of W. H. Bridges, against
H. R. Jepsen, as County Clerk of Douglas County. Writ refused.
Grover v. Krick, for Relator:
When appointed to fill vacancy county officer shall hold until next general election, which
is every two years.
48 Nev. 64, 65 (1924) Ex Rel. Bridges v. Jepsen
years. Legislature has power to confer upon electors right to elect officer to fill unexpired
term without using most direct language, if such intention appears. Framers of constitution
had same understanding. Rev. Law, 1518, 1572, 1607, 1669, 2812, 2813; Sawyer v. Haydon,
1 Nev. 81; State v. Wells, 8 Nev. 109; State v. Lentz, 146 Pac. 932; Ex rel. Daggett v.
Collins, 2 Nev. 353; Constitution of Nevada, art. 4, sec. 8.
M. A. Diskin, Attorney-General, for Respondent:
Stats. 1921, 96, amends Rev. Laws, 2781, whereby term of county officers, except district
judge, was fixed at four years, beginning with election of 1922.
Rev. Laws, 2813, provides that such vacancies shall be filled until next general election.
Question here is what construction to place on words quoted.
Stats. 1917, 358, provides for general elections every two years, and Rev. Laws, 2781,
provides for general elections every four years for certain officers therein respectively named.
Latter law fixes time for election of county officers.
If we assume words next general election, as used in Rev. Laws, 2813, to mean, in
present instance, general election in 1924, we find no authority for holding election of county
clerk in 1924.
Under government by written law elections can be held only as therein provided. An
election without legal authority would be void. Sawyer v. Haydon, 1 Nev.79.
An election is general only as to those officers authorized to be chosen at that time, and
would be special as to others. It is not necessarily time or manner of holding election to fill
vacancy that makes it special, but fact that it is held at time other than fixed to elect officer
for regular or defined term. State v. Howell, 110 Pac. 386.
Where vacancy is filled until next general election Rev. Laws, 2813, means next general
election for that particular office, not next general election in point of time. Ex rel. Daggett v.
Collins, 2 Nev. 351; People v. Col.
48 Nev. 64, 66 (1924) Ex Rel. Bridges v. Jepsen
Col. 132 Cal. 334; People v. Hardy, 8 Utah, 68; State v. Howell, supra.
OPINION
By the Court, Sanders, J.:
This is an original proceeding in mandamus to compel the county clerk of Douglas County
to include in the notice required by law to be published of the offices for which candidates are
to be nominated at the coming September primary election the office of the county clerk and
treasurer of Douglas County. The decisive facts admitted by the demurrer to the petition for
the writ are substantially as follows:
At the general election held in November, 1922, H. C. Jepsen was elected county clerk and
treasurer of Douglas County, to serve for the period of four years from the first Monday in
January subsequent to his election. Said H. C. Jepsen qualified and entered upon the duties of
the office, and on January 3, 1923, died. On January 5, 1923, the board of county
commissioners of that county appointed H. R. Jepsen county clerk and treasurer, who
qualified, and by virtue of his appointment is now the duly qualified clerk and treasurer of
Douglas County.
Under the general election law of 1917 (Stats. 1917, p. 358) a general election shall be
held in the several precincts in this state on the Tuesday next after the first Monday of
November, 1918, and every two years thereafter, at which there shall be chosen all such
officers as are by law required to be elected in such years.
In February, 1923, the legislature approved an act to amend section 4 of an act entitled,
An Act regulating the nomination of candidate for public office in the State of Nevada (3
Rev. Laws of Nevada, p. 2713), whereby the secretary of state shall, at least 60 days before
holding the September primary election in 1918, and biennially thereafter, prepare and
transmit to each county clerk a notice in writing designating the offices for which candidates
are to be nominated at such primary election.
48 Nev. 64, 67 (1924) Ex Rel. Bridges v. Jepsen
primary election. And within ten days after the receipt of such notice such county clerk shall
publish so much thereof as may be applicable to his county, once in a newspaper published
therein. Stats. 1923, p. 49.
On July 2, 1924, the secretary of state caused to be prepared and transmitted such notice to
such clerk, and thereafter H. R. Jepsen, upon receipt thereof, caused to be published in a
newspaper published in Douglas County notice of the offices for which candidates are to be
nominated at the ensuing primary election, but did not include therein the office of county
clerk and treasurer of that county.
Thereafter W. H. Bridges, herein called the realtor, a voter and resident of Douglas
County, made demand upon H. R. Jepsen as county clerk to include in said notice received by
him from the secretary of state the office of county clerk and treasurer of Douglas County,
which demand was refused, and hereafter, on, to wit, July 14, 1924, said Bridges filed his
verified petition in this court, in which he recited, in substance, the above facts, and prayed
that H. R. Jepsen, as county clerk, by writ of mandate, be compelled to include in the
published notice of offices for which candidates are to be nominated at the ensuing primary
election the office of county clerk and treasurer of Douglas County, and as grounds from the
issuance of the writ alleged that the failure of said H. R. Jepsen as county clerk to comply
with his demand or request deprived him and others who desired to become candidates for
that office from becoming such candidates. On consideration of the petition an alternative
writ was issued commanding said Jepsen to show cause why the writ should not be granted.
In response to the show cause order H. R. Jepsen appeared in person and by his attorney, the
attorney-general of Nevada, and interposed a demurrer to the petition upon several grounds:
First, that the same did not state facts sufficient to constitute a cause of action; second, that it
appears affirmatively from the petition that a vacancy occurred in the office of county clerk
and treasurer of Douglas County after the general election in November, 1922, and that the
respondent, H. R. Jepsen, was appointed by the board of county commissioners of that
county to fill such vacancy under the law, and such appointment will not expire until the
regular election to be held in November, 1926.
48 Nev. 64, 68 (1924) Ex Rel. Bridges v. Jepsen
the general election in November, 1922, and that the respondent, H. R. Jepsen, was appointed
by the board of county commissioners of that county to fill such vacancy under the law, and
such appointment will not expire until the regular election to be held in November, 1926.
1. We are not satisfied that Mr. Bridges has shown himself entitled to maintain this
proceeding, but, since the point is not discussed, we come to the consideration and
determination of the real question involved, which is, where a vacancy has occurred or exists
in a county office, and the vacancy is filled by appointment of the board of county
commissioners of a person to fill the vacancy until the next general election, whether, in the
present state of the law, it was or is the duty of the clerk of the county in which the vacancy
occurred to include in the notice of offices for which candidates are to be nominated a the
ensuing primary election the office in which such vacancy occurred.
It must be conceded that under the general election law of 1917 a general election shall be
held on the Tuesday after the first Monday of November, 1918, and every two years
thereafter, at which election there shall be chosen all such officers as are by law entitled in
such years to be elected, and it must further be conceded that the amendment of 1923 relative
to the nomination of candidates only requires the secretary of state to give notice to county
clerks of the offices for which candidates are to be nominated at the ensuring primary
election, and on receipt of such notice such county clerk is required only to publish so much
of such notice as may be applicable to his county. It must further be conceded that county
officers are not by law to be elected at the general election in November, 1924, because the
tenure of such offices is fixed by law at four years. Stats. 1920-21, p. 96.
The legislature at its session in 1920-21 amended section 17 of an act approved in 1866,
being section 2781, Revised Laws of Nevada, to read as follows:
County clerks, sheriffs, county assessors, county treasurers, district attorneys, county
surveyors, county recorders, and public administrators, shall be chosen by the electors of
their respective counties at the general election in the year nineteen hundred and
twenty-two, and at the general election every four years thereafter and shall enter upon
the duties of their respective offices on the first Monday of January subsequent to their
election."
48 Nev. 64, 69 (1924) Ex Rel. Bridges v. Jepsen
recorders, and public administrators, shall be chosen by the electors of their respective
counties at the general election in the year nineteen hundred and twenty-two, and at the
general election every four years thereafter and shall enter upon the duties of their respective
offices on the first Monday of January subsequent to their election.
Since there is nothing found in the statute of 1917 relative to elections, or in the law with
reference to the nomination of candidates for public office, which makes it incumbent upon
the secretary of state to give notice, or county clerks to include in the published notice county
offices in which a vacancy has occurred or exists, as one of the offices for which candidates
are to be nominated at the ensuing primary election, we do not perceive upon what theory or
principle this court has jurisdiction to compel the respondent clerk of Douglas County to
include in the notice required of him to be published of the offices for which candidates are to
be nominated at the ensuing primary election the office of county clerk and treasurer.
It is contended on behalf of the relator that the court finds ground to compel the
respondent to include such office in said notice by virtue of the provisions contained in
section 49 of the act of 1866 (section 2813, Rev. Laws), which reads as follows:
When any vacancy shall exist or occur in the office of county clerk, or any other county
or township office, except the office of district judge, the board of county commissioners
shall appoint some suitable person to fill such vacancy until the next general election.
2. We appreciate that it is the policy of our government and that it is the theory of the law
that election to office be by the people, when it can conveniently be done, and that
appointments to fill vacancies made to meet the requirements of public business, shall be
effective only until the people may elect. State v. Lentz, 50, Mont. 322, 146 Pac. 936. It
seems that it is upon this principle that counsel for the relator insists that, since the legislature
has seen fit to provide that vacancies in county offices shall be supplied by the boards of
county commissioners by the appointment of some suitable person to fill the vacancy
until the next general election only, and since the law fixes the time for holding the next
general election, this court, in keeping with the letter of the law, should compel the
respondent clerk to include in the published notice of offices for which candidates are to
be nominated any county office in which a vacancy has occurred or exists.
48 Nev. 64, 70 (1924) Ex Rel. Bridges v. Jepsen
county commissioners by the appointment of some suitable person to fill the vacancy until the
next general election only, and since the law fixes the time for holding the next general
election, this court, in keeping with the letter of the law, should compel the respondent clerk
to include in the published notice of offices for which candidates are to be nominated any
county office in which a vacancy has occurred or exists. In this we are unable to agree.
3. There is no inherent right in the people to hold an election to fill a vacancy in any
elective office. An election can be held only by virtue of some constitutional provision or
legal enactment, either expressed or by direct implication, authorizing that particular election.
Sawyer v. Haydon, 1 Nev. 75. This brings us to the consideration of the single point stressed
in the proceeding, namely, what meaning must be ascribed to the phrase until the next
general election as used in the statute of 1866 (section 2813, Rev. Laws), relative to filling
vacancies which occur or exist in the county offices designated in the act. The
attorney-general makes it clear to us that, upon reason and out of respect to what deems to be
the weight of authority, the phrase next general election must be interpreted to mean and
has reference to the next general election held at the time fixed by law for the election of
county offices, in this instance the general election in November, 1926.
This court, in the early case of Sawyer v. Haydon, supra, held that there was no inherent
right in the people to fill a vacancy in an office for an unexpired term merely because the
office was an elective one, where there was no expressed provision for such election by the
people to fill the vacancy.
In the case of State v. Collins, 2 Nev. 351, a contest for school superintendent, this court
interpreted the phrase until the next general election as used in the statute there under
consideration to mean until the next general election at which a superintendent of schools can
be elected. No sufficient reason is suggested for giving the phrase next general election as
used in the statute now in question a different interpretation, especially when it must be
conceded that since 1922 county officers are elected for four years.
48 Nev. 64, 71 (1924) Ex Rel. Bridges v. Jepsen
in the statute now in question a different interpretation, especially when it must be conceded
that since 1922 county officers are elected for four years.
When the legislature used the phrase until the next general election they knew that
county officers were elected for the term of two years, and the lawmakers also knew that the
time for electing those officers was fixed by law at the regular biennial elections, and that any
person appointed to fill a vacancy would only hold until the next general election. The next
general election to be held for county officers could, of course, be only such an election as
could be regularly and legally held for those offices; it could not be an election held for some
other office. Now that county officers hold for a term of four years, a vacancy occurring in
such offices is to be filled by appointment by the board of county commissioners until the
next general election prescribed by law for the election of county officers. It may be that the
legislature, having changed the term of county officers from two to four years, should have
provided that an election to fill a vacancy be held at any biennial election; but they did not do
so, hence it is reasonable to infer that, the legislature having extended the tenure of such
offices, they meant by the phrase until the next general election the election prescribed by
law for the election of such officers. This interpretation of the phrase next general election
is supported by the authorities following: McIntyre v. Iliff, 64 Kan. 747, 68 Pac. 633; In Re
Supreme Court Vacancy, 4 S. D. 532, 57 N. W. 495; State ex rel. McGee v. Gardner, 3 S. D.
553, 54 N. W. 606; People v. Wilson, 72 N. C. 155; People v. Col, 132 Cal. 334, 64 Pac. 477;
Wendorff v. Dill, 83 Kan. 782, 112 Pac. 588, 50 L. R. A. (N. S.) 359, and note.
Our conclusion is that no valid election could be held at the regular election in November,
1924, for the election of county clerk and treasurer of Douglas County; hence the writ of
mandamus prayed for in this action must be refused, and the proceeding ordered dismissed.
____________
48 Nev. 72, 72 (1924) Troyer's Estate
TROYER'S ESTATE
No. 2629
August 5, 1924. 227 Pac. 1008.
1. Executors and AdministratorsMoney Paid by Carrier to Settle Claim for Unlawful Death
of Employee is Not Part of Employee's Estate.
Assuming that compromise and settlement of a claim against a carrier for unlawful death of an
employee was governed by Rev. Laws, sec. 5650, making the carrier liable to deceased's personal
representative for the benefit of his widow and children, the money paid administrator did not become
part of deceased's estate, but was for the use and benefit of deceased's children, there being no widow.
See 17 C. J. sec. 58. p. 1210, n. 98.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
In the matter of the estate of Warren C. Troyer, deceased. Application by Mildred K.
Hampton, as guardian for minor heirs, to have money, received from settlement of claim for
unlawful death of deceased, turned over to her. From an order adjudging the fund to be part of
the estate, and an order refusing leave to remove it to her place of residence, the guardian
appeals. Reversed.
Huskey & Kuklinski, for Appellant:
Lord Campbell's Act and similar statutes gave damages for pecuniary loss suffered by
dependents. In only a few states damages become assets of estate. 13 Cyc. 367; note 12 A. S.
R. 375; Perham v. Portland etc. Co., 53 Pac. 14. Such benefits are for benefit of kindred. Rev.
Laws, 4997, 5647. Ricconi's Estate, 197 Pac. 97. They are not subject to deceased debt's. Rev.
Laws, 5648. Common carriers, mine and mill operators are liable to kindred. Rev. Laws,
5650.
Administrator has no beneficial interest in recovery, but is mere statutory trustee. 17 C. J.
1210.
Rev. Laws, 5650, is modeled after Federal Employers Liability Act, and Rev. Laws, 4997,
is modeled after C. C. P. of California, 377. Adopted statutes are given construction placed
on them by courts of parent state.
48 Nev. 72, 73 (1924) Troyer's Estate
Ormsby Co. v. Kearney, 37 Nev. 371. To recover under these acts it is necessary some
kindred exist. If there are no heirs, no one is damaged. Webster v. Mng. Co., 70 Pac. 276.
Under such acts, funeral expenses are debts of estate. Kansas City etc. Co. v. Leslie, 238
U. S. 599; R. R. Co. v. Hughes, 240 Fed. 943.
Wm. McKnight, for Respondent:
Appeal should be dismissed because not taken by any person interested because no bill of
exceptions was filed in time, and because purported bill does not contain testimony
admittedly given. Rev. Laws, 6112.
Amount involved is part of estate. California decisions do not apply because its code omits
entirely our sections 5647-8.
Court cannot go beyond intent of statute. Fitch v. Elko Co., 8 Nev. 271.
If proceeds of suit are not part of estate, how can they be distributed as required by Rev.
Laws, 5648, even though excepted from debts of estate? Such recovery is part of estate. S. P.
Co. v. Wilson, 85 Pac. 401.
Right to maintain action does not depend on fact that deceased left relatives. Perham v.
Electric Co., 72 A. S. R. 743.
In any event, it is immaterial whether such money is part of estate because it is liable for
commissions and fees and funeral expenses. Debt as used in Rev. Laws 5647-8, does not
include them. Hollman v. Bennett, 44 Miss. 322; Stuttmeister v. Superior Court, 14 Pac. 35.
Rev. Laws, 6126, creates exclusively remedy for recovery of fees of attorney in estate
matters. Torreyson v. Bowman, 26 Nev. 372.
Court, not administrator, fixes fee, regardless of expert opinion or claim made. Dorland's
Estate, 63 Cal. 282.
Court is without discretion to order removal of fund. Rev. Laws, 6200.
48 Nev. 72, 74 (1924) Troyer's Estate
OPINION
By the Court, Sanders, J.:
On January 10, 1923, Warren C. Troyer, while employed as a belt repairer in the railroad
shops of the Southern Pacific Company at Sparks, Washoe County, Nevada, was instantly
killed. The deceased died possessed of an estate in that county of the value of $202.80, and
left surviving him as his heirs at law two children, a son, William, aged 14 years, and a
daughter, Mildred, aged 12 years. George S. Hall, public administrator of Washoe County,
qualified as administrator of the estate of the deceased. In the course of his administration, H.
W. Huskey was appointed attorney for the absent heirs. Upon the petition of said Huskey the
administrator was authorize by court order to compromise, settle, release, and discharge a
claim or cause of action existing against the Southern Pacific Company for the wrongful
death of the deceased for the sum of $3,750. In pursuance of said order the Southern Pacific
Company issued its check payable to George S. Hall, as administrator of the estate of Warren
C. Troyer, deceased, for the sum of $3,750, which check was received by the administrator in
full settlement, discharge, and satisfaction and release of said claim or cause of action for the
death of his decedent.
It is conceded that subsequent to the death of the deceased and about the time of the
compromise and settlement of said claim, letters of guardianship were issued by the probate
court of Ford County, Kans., to Mildred K. Hampton, mother of said children and divorced
wife of the deceased. Huskey and Kuklinski, as attorneys for said guardian, petitioned the
court in the matter of the administration of the estate, praying that said sum of $3,750, so
recovered, be ordered paid over to them as attorneys for Mildred K. Hampton, guardian of the
children of the deceased, and for leave to remove said fund from the jurisdiction of the court
to her place of residence in the vicinity of Dodge City, Kans., for the use and benefit of her
said wards.
48 Nev. 72, 75 (1924) Troyer's Estate
Kans., for the use and benefit of her said wards. The administrator successfully resisted the
application and motion for removal upon the ground that the sum or fund so recovered was
and is a part of the estate of Warren C. Troyer, deceased, and subject to administration under
the statute relating to causes of action for death caused by the wrongful act, negligence or
default of another.
The attorney for the parties in interest could not agree as to which of our death statutes
applied to the particular facts of the case; the probate court, however, was of opinion that the
attendant facts and circumstances surrounding the death of Warren C. Troyer brought the
matter of the compromise and settlement of the claim against the Southern Pacific Company
for his death within the provisions of chapter 69, sec. 5650, Rev. Laws, which reads as
follows:
That every common carrier engaged in trade or commerce in the State of Nevada, and
every mine and mill owner and operator actually engaged in mining, or in milling or
reduction of ores, in the State of Nevada, shall be liable to any of its employees, or, in case of
the death of such employee, to his personal representative for the benefit of his widow and
children, if any, and if none, then for his next of kin, for all damages which may result from
the negligence of the officers, agents, or employees of said common carrier or mine or mill
operator, or by reason of any defect or insufficiency due to their negligence in its cars,
engines, appliances, machinery, track, roadbed, ways or works, or to their negligent handling
or storing of explosives.
The court decided that under the terms and provisions of the section quoted the liability of
the carrier in case of death was to the personal representatives of the employee killed, and not
to the guardian of his children, and therefore the fund recovered for the death of Warren C.
Troyer was and is a part of his estate. Thereupon the court ordered the balance due on account
of the funeral expenses of the deceased be approved, and also approved a claim against the
estate incurred by a brother of the deceased in connection with the burial of the deceased,
and continued the matter of the settlement and approval of the administrator's final
account and the distribution of the estate until the further order of the court.
48 Nev. 72, 76 (1924) Troyer's Estate
by a brother of the deceased in connection with the burial of the deceased, and continued the
matter of the settlement and approval of the administrator's final account and the distribution
of the estate until the further order of the court.
The attorneys for Mildred K. Hampton, as guardian, have appealed from the order
adjudging and declaring the fund of $3,750 to be a part of the estate of Warren C. Troyer,
deceased, and also from an order denying and overruling said guardian's petition for leave to
remove said fund to her place of residence in the State of Kansas for the use and benefit of
her wards.
Assuming that it was correctly held by the lower court that the facts and circumstances
surrounding the death of Warren C. Troyer while employed as a laborer in the shops of the
Southern Pacific Company brought the matter of the compromise and settlement of the cause
of action against the Southern Pacific Company for his death within the statute, we are unable
to agree with the conclusion reached that the sum recovered and paid the administrator in full
settlement of said claim became an asset of the estate of the person killed. To so hold would
be to disregard the express terms of the statute, and to ignore a long line of authorities
construing similar statues, that the liability imposed in such cases is to compensate the
beneficiaries designated therein for the injury done them and not the person killed. The
statute seems too plain for elaboration.
Conceding that the compromise of the claim against the Southern Pacific Company was
the result of the activities of the attorney for the absent minor heirs and their guardian, the
children of the deceased are not to be deprived of the compensation for the injury done them
by the negligent killing of their father because of the efforts put forth to bring about a
settlement of the claim for their use and benefit. The liability upon the carrier was manifestly
imposed for the exclusive benefit of said children of the employee, there being no widow, and
not for the benefit of the estate of the person killed. It is true, under the authorities, that in
case of death an action cannot be maintained against the carrier by a guardian, because
in such cases the carrier is made liable only to the personal representative of the person
killed.
48 Nev. 72, 77 (1924) Troyer's Estate
case of death an action cannot be maintained against the carrier by a guardian, because in
such cases the carrier is made liable only to the personal representative of the person killed.
This seems to have been recognized by all the parties in interest, since its appears that the
compromise was authorized and approved by the court, and the administrator was ordered to
receipt for and release and discharge the claim. This could have been done only for the use
and benefit of the children of the deceased, and not the estate. Hence the order and judgment
and decree adjudging and decreeing the sum so recovered to be a part of the estate of Warren
C. Troyer, deceased, must be reversed.
We are urged to decide whether the sum so recovered and now in the possession of the
administrator is properly chargeable with the funeral expenses, costs of administration and
attorney's fees as provided by law in other cases. Neither chapter 69 of the Rev. Laws of
1912, nor any other death statute of which we are advised, makes provision for such costs and
expenses. Since we have reached the conclusion that the recovery in this instance is not an
asset of the estate of the deceased, in the present state of the record, we are not in position to
determine, in advance of a ruling thereon by the probate judge, what his ruling should be. We
shall leave the question open for determination and decision upon further proceedings in the
cause.
The orders appealed from are reversed.
____________
48 Nev. 78, 78 (1924) Ames v. Western Pacific
AMES v. WESTERN PACIFIC
No. 2649
August 5, 1924. 227 Pac. 1009.
1. Master and ServantCare Required of Employer.
It is employer's duty to see that ordinary care is exercised to the end that place of work and tools and
appliances may be safe.
2. RailroadsFinding of Railroad's Negligence in Failing to Provide Safe Place Sustained.
In action under federal employers' liability act, as amended by act Cong. April 5, 1910 (U. S. Comp.
St. secs. 8657-8665), for death of employee injured when jacked up tender placed over pit fell on him,
evidence held to sustain finding of negligence in failing to provide safe place to work.
3. NegligenceComparative Negligence Doctrine Under Federal Employers' Liability Act
Stated.
Under federal employers' liability act, as amended by act Cong. April 5, 1910 (U. S. Comp. St. secs.
8657-8665), damages recoverable bear same relation to full amount as negligence attributable to railroad
bears to entire negligence attributable to both railroad and employee.
4. Appeal and ErrorJury Presumed to Have Obeyed Instruction to Diminish Damages in
Proportion to Contributory Negligence.
In action under federal employers' liability act, as amended by act of Cong. April 5, 1910 (U. S.
Comp. St. secs. 8657-8665), for death, where jury found deceased's negligence contributed to accident by
one-half, and they were instructed to diminish damages accordingly, and verdict of $9,125 does not
appear excessive, appellate court must assume that jury obeyed instruction, in absence of showing to
contrary.
5. Master and ServantOnly Ordinary Risks of Employment Assumed.
Dangers, in respect of which there can be no recovery for injuries by virtue of doctrine of assumption
of risk, include but do not extend beyond ordinary risks of employment, or such as are incident thereto.
6. Master and ServantRisk of Employer's Failure to Perform Duty Assumed by Employee
Continuing Work With Knowledge.
Employee does not assume risk of failure of employer to perform his primary duty, unless employee
has actual or constructive knowledge of dereliction and of peril, and continues in employment without
protest.
7. Master and ServantAssumption of Risk Held Question of Fact.
Whether deceased assumed risk of defendant railroad's negligence in failing to provide safe place to
work held a question of fact and dependent on whether he knew of unsafe foundation of roundhouse pit
wall.
48 Nev. 78, 79 (1924) Ames v. Western Pacific
8. Master and ServantBurden of Showing Employee Knew of Unsafe Place on Defendant.
In action under federal employers' liability act, as amended by act Cong. April 5, 1910 (U. S. Comp. St.
secs. 8657-8665), for death of employee, burden of providing that deceased had actual or constructive
knowledge of unsafe conditions surrounding place of work was on defendant pleading assumption of risk.
9. Master and ServantEmployee Not Obliged to Inspect for Latent Defects.
Where deceased employee had no knowledge of latent defects in foundation wall of pit which constituted
his place of work in repairing engines, he was not obliged to inspect wall for latent defects.
10. Master and ServantTestimony of Prior Accidents Held Inadmissible to Show
Employee's Knowledge of Unsafe Place of Work.
Where employee's death was caused when jack supporting engine tender fell by reason of defective
foundation of pit wall, testimony that on prior occasions tenders raised by deceased fell from jacks, but
from some cause other than defect in foundation, held properly excluded as irrelevant because not tending
to warn deceased of defect.
See (1) 26 Cyc. p. 1098, n. 27; p. 1102, n. 34; p. 1177, n. 44, 46; p. 1204, n. 20; p. 1216, n. 65; p. 1225, n. 13,
14, 15; p. 1231, n. 36; p. 1414, n. 66; p. 1419, n. 84; p. 1438, n. 49; p. 1447, n. 93; p. 1478, n. 77. (4) 4 C.
J. sec. 2717, p. 771, n. 78.
Appeal from Fourth Judicial District Court, Elko County; J. M. McNamara, Judge.
Action by Mary L. Ames, as administratrix of the estate of Chester W. Ames, deceased,
against the Western Pacific Railroad Company, a corporation. From an order denying a new
trial, defendant appeals. Affirmed.
Morley Griswold and Charles Henderson of Counsel, for Appellant:
Evidence of other accidents is admissible to show knowledge and must result in some sort
of warning. 1 Wigmore, sec. 301; E. T. Tel. Co. v. Jeffries, 154 S. W. 1112; 22 C. J. 753,
note 90.
Verdict is excessive because jury failed to consider contributory negligence of decedent.
When manner of happening of accident is speculative, verdict should be for defendant.
48 Nev. 78, 80 (1924) Ames v. Western Pacific
verdict should be for defendant. Gregory's Admr. v. Director General, 242 S. W. 373; Day
v. Cloke, 47 Nev. 75.
Testimony inherently improbable or contrary to natural course of conduct, no matter how
vigorously asserted, will not create such conflict as to permit submission to jury where all
reasonable probabilities are established by other side. Zibbel v. S. P. Co., 116 Pac. 513; 1 A.
Rob. 248; O'Brien v. R. R. Co., 78 N. W. 1084; Blankman v. Vallejo, 15 Cal. 646.
Federal employers' liability act provides no recovery if decedent assumed risk. Section 4;
Ford v. McAdoo, Dir. Genl., 131 N. E. 874.
Experienced workman should know danger of insufficient blocking. Ry. Co. v. Stacy, 189
S. W. 25; 15 Am. Dig. 2d, Master & Servant.
Decedent assumed risk in choosing dangerous rather than safe place in which to work. P.
R. R. Co. v. Nelson, 259 Fed. 156.
Distinction between assumed risk and contributory negligence fades when pursued to point
where danger becomes obvious. 1 Roberts Liability of Carries, 1006; S. P. Co. v. De La Cruz,
109 S. W. 929.
Johnson & Mathews, for Respondent:
It was defendant's duty to provide reasonably safe place for workmen. Roberts, 918.
Plaintiff has right to assume that duty is performed. Cutler v. P. S. P. M. Co., 34 Nev. 56; 18
R. C. L. 595.
If offered testimony does not show knowledge of particular danger that overtook decedent,
but merely knowledge of some danger, it does not show assumption of risk and is immaterial.
1 Wigmore, sec. 301; Mayer v. Detroit, etc., 105 N. W. 888.
Evidence of accident to another employee in another elevator is not admissible. Wise v.
Ackerman, 25 Atl. 424. Nor of accident two years prior not in consequence of same defect.
Woelfel Leather Co. v. Thomas, 68 Ill. App. 394. Conditions and circumstances must be
substantially similar in each instance to show negligence.
48 Nev. 78, 81 (1924) Ames v. Western Pacific
Hochschultz v. Zinc Co., 33 Nev. 198; Flodin v. Lumber Co., 37 Nev. 294.
Where evidence is conflicting, verdict will not be disturbed if there is substantial evidence to
support it. Gardner v. Gardner, 23 Nev. 215; Page v. Walser, 46 Nev. 390.
Employee is never held to have assumed risk unless he has knowledge, actual or imputed, and
appreciates danger. Ry. Co. v. Horton, 233 U. S. 492; 18 R. C. L. 677.
Danger that overtook Ames arose from latent defect which it was not his duty to discover.
18 R. C. L. 595; Ry. Co. v. Atley, 241 U. S. 311.
There was no evidence of negligence in Ford v. McAdoo. Assumed risk was established
and new trial ordered in S. P. Co. v. De La Cruz.
OPINION
By the Court, Ducker, J.:
Respondent is the widow of Chester W. Ames, deceased, and brought this action to
recover damages for his death, resulting from personal injuries alleged to have been caused
by the negligence of the appellant. In the answer the negligence charged was denied and the
defense of contributory negligence and assumption of risks pleaded. The action was tried
before a jury, and verdict and judgment rendered against appellant. From an order denying its
motion for a new trial, this appeal is taken.
There are two causes of action set up in the complaint. At the conclusion of respondent's
case appellant moved for a nonsuit and a directed verdict. The motion for a nonsuit was
granted as to the second cause of action, and was denied as to the first cause of action, as was
the motion for a directed verdict.
It is alleged in the complaint that appellant is a railroad corporation operating a line of
railway as a common carrier engaged principally in interstate commerce; that it maintained at
Elko, Nevada, a terminal and a roundhouse with a dirt floor with divers stalls and pits
therein, and a repair shop located adjacent to its main line and connected therewith by
suitable tracks: that said roundhouse and repair shop were used for making repairs on its
engines, tenders, and cars used by it in commerce between states; that on the 6th day of
November, 1922, the said Chester W.
48 Nev. 78, 82 (1924) Ames v. Western Pacific
and a roundhouse with a dirt floor with divers stalls and pits therein, and a repair shop located
adjacent to its main line and connected therewith by suitable tracks: that said roundhouse and
repair shop were used for making repairs on its engines, tenders, and cars used by it in
commerce between states; that on the 6th day of November, 1922, the said Chester W. Ames
was, and for more than a year prior thereto had been, an employee of appellant, rendering
service to it, at said Elko terminal, for wages and reward paid to him by it, and his duties
under said employment consisted principally in repairing locomotive tenders and trucks and
parts thereof, used behind locomotive engines for the carrying of fuel and water used in such
locomotive engines; that said duties included the removal and replacing of wheels on the
trucks of said tenders, and to do that it was necessary to raise the body of said tender off the
trucks on which wheels were to be changed. Other allegations of the complaint and answer
will be referred to as it becomes necessary in the course of this opinion.
It was while engaged in the duty last mentioned that Ames met his death. On the morning
of the 6th of November, 1922, one of the appellant's locomotive engines and a tender had
been placed over what is called pit No. 2 in the roundhouse, and Ames had been directed to
change the front wheels on the rear truck under the tender. With the assistance of a helper he
jacked up both sides of the rear end of the tender, removed the truck, rolled it back on the
track which extended over the pit to the turntable, made the change of wheels on the truck,
and rolled it back on the track to within 18 inches or 2 feet of the drawbar or coupling which
projected from the tender, preparatory to replacing the truck beneath the tender. When he was
placing a nut on a bolt of one of the wheels of the truck the tender fell, and the drawbar or
coupling pinned the lower part of his body against the top of the wall of the pit, causing
injuries from which he died a short time after his removal. It was about an hour and a half
from the time the tender was raised on the jacks until it fell.
48 Nev. 78, 83 (1924) Ames v. Western Pacific
from the time the tender was raised on the jacks until it fell.
Respondent contends that the accident was due to the negligence of the appellant in failing
to provide a safe place for Ames to work. In this respect it is alleged in the complaint as
follows:
That said foundation, floor, and ground on one side of said pit, to wit, the southerly side,
where it was then and there necessary for said Chester W. Ames to place one of the said jacks
for the performance of said work, and where he did in fact place one of said jacks to raise said
tender body, as aforesaid, was then and there in fact unsound, weak, soft, unsafe, and
dangerous and said planks forming a part of said floor and foundation were then and there
decayed and rotten, and the ground then and there forming a part of said foundation was then
and there soft and insecure; that said foundation, floor, and ground being in said condition
rendered said place where the said Chester W. Ames was required to perform said work, as
aforesaid, unsafe and dangerous; that said unsafe and dangerous condition of said foundation,
floor, and ground might easily and readily have been discovered by an inspection thereof; that
said foundation, floor, and ground where the said Chester W. Ames was required to do said
work was unsafe and dangerous was then and there well known to the defendant, or in the
exercise of ordinary care might have been known to it.
These allegations were denied in the answer, and the issue thus raised constituted one of
the main issues of the case.
1, 2. The complaint shows that action was brought under the federal employers' liability
act of April 22, 1908, c. 149, 35 Stats. 65, as amended by act Cong. April 5, 1910, c. 143, 36
Stats. 291 (U. S. Comp. St. secs. 8657-8665), and the rule as to the duty of an employer in
such cases is well settled. It is the duty of an employer to see that ordinary care and prudence
are exercised to the end that the place in which the work to be performed, and the tools and
appliances of the work may be safe for the workmen.
48 Nev. 78, 84 (1924) Ames v. Western Pacific
the work may be safe for the workmen. Seaboard Air Line v. Horton, 233 U. S. 492, 34 Sup.
Ct. 635, 58 L. Ed. 1062, L. R. A. 1915c, 1, Ann. Cas. 1915b, 475; Hough v. Railway Co., 100
U. S. 213-217, 25 L. Ed. 612; Washington & Georgetown Railroad Co. v. McDade, 135 U. S.
554-570, 10 Sup. Ct. 1044, 34 L. Ed. 235. The circumstances of the accident were fully
detailed in evidence before the jury, and an attempt to restate all of them here would extend
this opinion unnecessarily. That the pit where the accident occurred with the surface over its
walls was the place provided by appellant for Ames to perform his work of removing and
replacing trucks under locomotives, tenders, and cars, is conceded; that on account of the
great weight of such locomotives, tenders, and cars to avoid the danger of their falling when
jacked up, it was necessary to have a strong and solid foundation along the sides of such pits
on which to place the jacks to raise them, is not denied; that Ames, in the course of his
employment had often performed the same character of work at this place was proved; that
the tender was placed there by employees of the appellant other than Ames is not denied; and
that at the time he placed the jacks to raise the body of the tender, the foundation, floor, and
ground on the sides of the pit where the jacks were placed appeared to be firm, sound, and
strong and safe for the work, is not denied. The evidence concerning the construction of the
pit does not differ materially from the description given in the complaint, which is
substantially as follows:
* * * About 65 feet long, and about 3 feet deep, and about 4 feet wide; and the side walls
of the pit were constructed of cement, concrete, or other firm and solid substance about 26
inches in thickness. Short railroad ties about 26 inches long and about 6 inches in diameter
were on top of said side walls about 18 inches apart and at right angles to the pit. The rails
forming the track rested on these ties, near the pit ends of the ties, on either side of the pit,
near the edge thereof and extended the whole length of the pit and beyond.
48 Nev. 78, 85 (1924) Ames v. Western Pacific
Next to the rails and on the outer side thereof, along the pit and over the ties as they extended
out from the pit, was a covering or floor of planks about 20 inches wide, consisting of planks
2 inches or more in thickness, extending lengthwise along either side of the pit, with shoring
on top of said ties upon which said planks rested, that brought the top of the plank covering or
floor about level with the top of the rails. On the outer side of the pit walls was dirt and earth
that formed the general floor of the roundhouse. The dirt floor near and around the pit was on
a level with the top of the rails, and to some extent obscured the covering or floor of planks.
The bottom of the pit and the surface of its inside walls were cement.
The evidence shows that the walls and bottom of the pit were of concrete, and that the ties
were set down in the concrete, so that the top of the concrete wall was level with the top of
the ties; that there were 2 or 3 inches of hard dirt or cinders on top of the planks running
parallel with the rail.
It appears that the tender was attached to a locomotive facing west in the roundhouse, and
that the tender fell to the left or south. Respondent's evidence shows that the tender was
jacked up in the customary way by the use of a jack on each side near the rear end, with the
jacks set as near the tender as could be and permit the truck to be rolled from under it. It
shows that the place where the jacks were set appeared to be solid and safe, and that after the
accident there was a hole where the jack on the left-hand side had been placed; that it was an
irregular shaped hole about 14 or 18 inches wide and extending down 6 or 8 inches to the
concrete; that there was a crack in the outside plank which ran up to the hole. From this hole
a piece of board about 11 inches long and 4 inches wide was taken and introduced in
evidence. It appears among the exhibits in the case and is badly decomposed.
We have stated very generally the character of respondent's evidence, which we think is
sufficient to support the finding of the jury as to appellant's negligence.
48 Nev. 78, 86 (1924) Ames v. Western Pacific
support the finding of the jury as to appellant's negligence.
If the plank was not in the rotten condition as shown, it would have been easy enough for
appellant to have produced it before the jury. It is unnecessary to detail appellant's evidence.
Generally it was directed towards proving that, even though the jack had sunk down to a
depth of four inches, the tender would not have fallen, and that Ames did not exercise
ordinary care in using proper blocking beneath and on top of the jack. Giving this evidence its
utmost effect, it could raise nothing more than a conflict of evidence, as to the proximate
cause of the accident.
3, 4. It is contended that the verdict was excessive, first, because the jury failed to consider
Ames' contributory negligence, and, second, because there was no evidence of negligence of
the appellant. The second contention has already been disposed of. In respect to his
contributory negligence, it is urged that he was so negligent in the manner in which he jacked
up the tender by using insufficient blocking, and in choosing an unsafe place to work instead
of a safe place. The facts show, and counsel for respondent concede, that Ames was negligent
in working on the nut or bolt on the wheel of the truck so near the tender. It appears that he
could have stopped the truck much further from the tender and could have been out of danger
when it fell. But it appears that the jury did take into consideration his contributory
negligence. This they had the right to do under the instructions of the court in a case of this
kind. The rule of comparative negligence in actions under the employers' liability act is thus
stated in 18 R. C. L. sec. 284, pp. 828, 829:
While the federal employers' liability act provides, as has been noted, that contributory
negligence shall not bar a recovery by employee of interstate railroads, it permits the railroad
company to prove contributory negligence in diminution of damages, unless the company has
been guilty of a breach of statutory duty, in which case, according to the express terms of the
act, it cannot rely upon contributory negligence for any purpose.
48 Nev. 78, 87 (1924) Ames v. Western Pacific
it cannot rely upon contributory negligence for any purpose. It thus appears that the federal
act establishes the old doctrine of comparative negligence. Contributory negligence is still a
factor in every case, but it has the effect only to diminish the amount of recovery. Under the
statute it is not a question of majority of negligence, but rather one of proportion; and the
damages are to be diminished in proportion to the amount of negligence attributed to the
negligent employee, as compared with the combined negligence of him and the employer. Or,
as has been said by the supreme court, the damages recoverable bear the same relation to the
full amount as the negligence attributable to the carrier bears to the entire negligence
attributable to both.'
The jury returned a verdict for the respondent in the sum of $9,125, whereupon the court
submitted a request for special findings, in which were the following questions: Question No.
1: Was the deceased, Chester W. Ames, guilty of contributory negligence at the time of the
accident? Question No. 2: If you should find that Chester W. Ames was guilty of negligence
at the time of the accident, state in what proportion such negligence contributed to the
proximate cause of the injury; that is, by one-fourth, by one-half, or any other fraction? To the
first question the jury returned the answer, Yes, and to the second question the answer was,
One-half.
Appellant contends that these facts show that the jury arrived at their general verdict
without taking into consideration Ames' contributory negligence, and that the amount of the
verdict should have been reduced one-half by the trial court; that the verdict is excessive to
this extent. We cannot agree with this contention. Before the case was submitted to the jury
the court, at appellant's request, had fully instructed the court on this point, in the following
instruction:
The federal employers' liability act under which this action was brought and which is
controlling here, prescribes that where an employee has himself been guilty of contributory
negligence, 'the damages shall by the jury be diminished in proportion to the amount of
negligence attributable to such employee,' and I say to you as a matter of law, you must
determine what the proportion is.
48 Nev. 78, 88 (1924) Ames v. Western Pacific
of contributory negligence, the damages shall by the jury be diminished in proportion to the
amount of negligence attributable to such employee,' and I say to you as a matter of law, you
must determine what the proportion is. If Ames' negligence, if you find that he was negligent,
contributed to or caused the accident resulting in his death, to the extent say, of one-half of
the entire negligence, then the plaintiff's damages would be reduced by one-half; if to the
extent of two-thirds, then her damages should be reduced by two-thirds; and as I have already
said, if Ames' negligence, if you find he was negligent, was alone the cause of the accident,
then of course, that would wipe out the damages and your verdict would be in favor of the
defendant.
Nothing appearing to the contrary, and as the amount of the verdict in view of the evidence
does not appear excessive, we must assume that the jury in arriving at its general verdict
obeyed this instruction.
5-9. Appellant contends that respondent cannot recover, for the reason that Ames assumed
the risk of his employment. It may be stated as a general rule that
The dangers in respect of which there can be no recovery for injuries by virtue of the
doctrine of assumption of risk include, but according to the generally accepted statement, do
not extend beyond the ordinary risks of the employment or such as are incident thereto. 18
R. C. L. 676, and cases cited in note 12.
And the ordinary risks incident to the service, says the same authority, are those perils
of which the employees have notice or which are patent and obvious to them. Id. pp.
676-677, and cases cited in note 13.
But there are other risks which an employee does not assume unless he has knowledge of
them or the circumstances are such as to charge him with such knowledge. Such risks may
arise from the negligence of the employer. The distinction is clearly drawn and the rule well
settled in Seaboard Air Line v. Horton, supra, p. 504 (34 Sup. Ct. 640). The court said:
Some employments are necessarily fraught with danger to the workmandanger that
must be and is confronted in the line of his duty.
48 Nev. 78, 89 (1924) Ames v. Western Pacific
danger to the workmandanger that must be and is confronted in the line of his duty. Such
dangers as are normally and necessarily incident to the occupation are presumably taken into
the account in fixing the rate of wages. And a workman of mature years is taken to assume
risks of this sort, whether he is actually aware of them or not. But risks of another sort, not
naturally incident to the occupation, may arise out of the failure of the employer to exercise
due care with respect to providing a safe place of work and suitable and safe appliances for
the work. These the employee is not treated as assuming until he becomes aware of the defect
or disrepair and of the risk arising from it, unless defect and risk alike are so obvious that an
ordinarily prudent person under the circumstances would have observed and appreciated
them. These distinctions have been recognized and applied in numerous decisions of this
court.
The same principle is recognized and applied in state courts. In 18 R. C. L. sec. 168, pp.
677, 678, it is thus stated:
It is generally asserted without qualification that the employee does not assume the risk of
the employer's negligence, but just what conception is embodied by this expression is not
directly explained. It is reasonably certain, however, that what is meant is that the employee is
not barred of recovery for injuries due to perils of which he has no knowledge and
appreciation. It must constantly be borne in mind that liability is to be determined with a view
to the comparative knowledge of the parties. Primarily the employer is bound to provide for
the safety of his employees, and the employees have a right to rely upon the performance of
this duty. They are not barred of recovery for injuriesor, in the terminology of the present
topic, they do not assume the risk'occasional by the failure of the employer to perform his
primary duty, unless they have actual or constructive knowledge of the dereliction and of the
perils arising therefrom, and continue in the employment without protest or complaint.
48 Nev. 78, 90 (1924) Ames v. Western Pacific
Within these principles the question of whether Ames assumed the risk of appellant's
negligence in not providing a safe place to work was one of fact and dependant upon whether
Ames knew of the unsafe condition of the foundation, or, as a prudent man, ought to have
known thereof. The burden of providing such actual or constructive knowledge was upon the
appellant.
There is no evidence in the record tending towards such proof. There is, however,
evidence in the record tending to prove the contrary. Ames' helper testified, The floor looks
good where we set the jacks. Appellant's evidence was adduced under the theory that there
was no negligence on its part, and that the accident was caused by Ames' negligence. In fact,
as previously stated, appellant admitted by its failure to deny in its answer the allegation of
the complaint that the place where the tender was jacked up appeared to be firm, sound,
strong, and safe for work. In the absence of any evidence tending to charge Ames with
knowledge of the defective condition of the foundation, no duty was imposed upon him to
inspect the place for latent defects. He had the right under such circumstances to assume that
appellant had furnished a safe place for him to work.
But appellant further insists that Ames assumed the risk when he rolled the truck so close
to the tender and proceeded to work on the nut and bolt, when the work could have been done
further back and out of danger. The fallacy of this argument lies in the assumption that Ames
assumed the risk of his own negligence in failing to properly jack upon the tender, whereas
the jury found that the falling of the tender was due to the negligence of the appellant in not
maintaining a safe foundation. If the jury had not so found, it could have assessed no damages
against appellant, for there was no other charge of negligence in the complaint. Under the
facts of this case there was no other risk he could assume, and, as has been pointed out, it was
not an obvious danger, and there was no evidence tending to charge him with any knowledge
of it.
10. It is contended that the court erred in excluding testimony offered by Edward
McDermitt to the effect that on two prior occasions at the roundhouse tenders which had
been raised by Ames fell from the jacks.
48 Nev. 78, 91 (1924) Ames v. Western Pacific
testimony offered by Edward McDermitt to the effect that on two prior occasions at the
roundhouse tenders which had been raised by Ames fell from the jacks. The testimony
excluded, condensed in narrative form, is as follows:
Mr. Ames changed No. 2 wheels on truck 6 so he disconnected the tank and pulled it
back and removed the entire truck, disconnected the tank from the engine, and the hostler
pulled the tank back from the front end of the pit just inside of the door, and we set our jacks
there just inside the door of the roundhouse, set the jacks and started jacking it up, and after
we had the tank high enough to look underneath to see if it was high enough, and as I was
looking underneath the tank and jack fell over, the truck was still under the tender, so the
tender didn't fall to the ground in that instance, but the tender did fall off the jacks. I was
working with Mr. Ames at the time, and he had charge of the work.
The other occasion was in pit 2. On June 5th we had to change the No. 1 wheels, and
disconnected the tank from the engine and pulled it back to almost the same place, but the
jack was outside of the door of the roundhouse, and jacked the tank up and took the box
plates off and went out to set the truck and get the wheels, and I don't know if we brought the
wheels in with us or not, but when we got back into the roundhouse the tank was over against
the door or post that holds the building up, and the double doors. The truck had not been
taken entirely from under the tank, nor had the wheels been taken off, just the box plates. The
tank was jacked up clear of the truck, 10 or 11 feet back of the pit. I can see no difference in
the condition of the floor at the back at the place where these tanks were jacked up and fell,
from the floor immediately surrounding the pit. We used the same method in jacking up tanks
in both places, block the ground first and put our jacks on the blocks and then raise the
tender, and the same process was followed in both places to get the trucks out.
48 Nev. 78, 92 (1924) Ames v. Western Pacific
This testimony was adduced on direct examination, and on cross-examination the
following was elicited:
Q. And as I understand you, the tank was raised and the jacks fell over, and it came down
on the truck? A. Yes, sir.
Q. When you commenced the work, that tank was not hitched to anything, was it? A. No,
sir.
Q. And it could roll on its wheels? A. It could.
Q. And that is what it did? A. Yes, sir.
There was no error in the exclusion of this testimony. It was immaterial and irrelevant,
because the incident disclosed by it had no tendency to impart knowledge to Ames that the
foundation on which the tender in question was raised was unsafe. As said by this court in
Hochshultz v. Potosi Zinc Co., 33 Nev. 198, 110 Pac. 713:
Accidents from some other cause are not of any importance in this case.
These prior accidents were probably sufficient to impress Ames with notice that a tender
raised by jacks and undetached from a locomotive might roll on its wheels and fall from the
jacks, but certainly would have no tendency to warn him of the defect in the foundation,
which the jury found was due to the negligence of the appellant.
Judgment affirmed.
____________
48 Nev. 93, 93 (1924) McDermott v. County Commissioners
McDERMOTT v. COUNTY COMMISSIONERS
No. 2653
August 5, 1924. 227 Pac. 1014.
1. StatutesLegislature Prohibited From Passing Local and Special Laws Relative to County
and Township Business, though General Law Inapplicable.
While the legislature may pass local and special laws in some circumstances, it may not do so in any
of the cases enumerated in Const. art. 4, sec. 20, relative to regulation of county and township
business, though a general law would be inapplicable within section 21.
2. StatutesAct Authorizing County to Pay Claim Held Void as Special Act Regulating
County Business.
Stats. 1923, c. 28, authorizing and directing the county commissioners of Elko County to allow a
claim in favor of plaintiff for injury and authorizing payment thereof, held invalid as a special law
regulating county business, in violation of Const. art. 4, sec. 20, and not authorized by section 21.
See 36 Cyc. p. 1001, n. 24; p. 1002, n. 28.
Appeal from Fourth Judicial District Court, Elko County; J. M. McNamara, Judge.
Action by A. J. McDermott against R. W. Anderson and others, County Commissioners of
the County of Elko, and against the County of Elko. Judgment for plaintiff, and defendants
appeal. Reversed.
W. T. Mathews, District Attorney, for Appellants:
Legislature shall not pass local or special laws regulating county or township business.
Constitution, sec. 20, art. IV. Where applicable, all laws shall be uniform and general. Sec.
21, art. IV.
Act for relief of McDermott is special law which attempts to regulate county business and
restricts regulation of such business to one person, and even directs commissioners to ignore
general law governing their powers. Williams v. Bidleman, 7 Nev. 68; State v. Cal. Mng. Co.,
15 Nev. 234.
Money secured from taxation must be used only for public purpose. Gibson v. Mason, 5 Nev.
283. It cannot be diverted to private use. Williams v. Bidleman, supra.
Legislature cannot direct county to pay mere gratuity, even admitting moral obligation.
Donnelly on Public Contracts, 71; Conlin v. San Francisco, 33 Pac.
48 Nev. 93, 94 (1924) McDermott v. County Commissioners
Contracts, 71; Conlin v. San Francisco, 33 Pac. 753; 46 Pac. 279. 18 R. C. L. 724.
E. P. Carville, for Respondent:
The two constitutional provisions must be read together. General laws cannot always be
framed to meet all exigencies. Without right of discrimination, relief to which people are
entitled might be unnecessarily delayed. Evans v. Job, 8 Nev. 322; Quilici v. Strosnider, 34
Nev. 9.
County's moral obligation is clear. Legislature may convert moral obligation into legal
demand. Williams v. Bidleman, 7 Nev. 68; 12 C. J. 829.
It will not encourage citizens to do public duty, to wit, serve as jurors, if when discharging
such duty they are injured through no fault of theirs they can claim no redress. Lyons v.
Board, etc., 90 Atl. 1111.
Section 20, art. IV, of constitution was borrowed from Indiana constitution. In that state it
was held that legislature is exclusive judge of whether general law is applicable, or whether
local or special laws are required upon subject not enumerated. Bell v. Marsh, 36 N. E. 358.
This court has passed upon questions of laws regulating county business, even in face of
general law therefor. Presumption is in favor of their legality. State v. Lytton, 31 Nev. 67;
Evans v. Job, supra; Hess v. Page, 7 Nev. 23; State v. District Court, 30 Nev. 225; Quilici v.
Strosnider, supra.
OPINION
By the Court, Coleman, J.:
This is an action to recover a judgment against the defendant in the sum of $2,632.80.
Judgment was rendered in favor of the plaintiff, as prayed, from which an appeal has been
taken.
The plaintiff alleges that he was duly impaneled as a juror in the trial of a criminal case in
Elko County, Nevada, on the 9th day of March, 1921, and that while he was engaged in the
trial, and while confined in the jury room on the second story of the courthouse in said
county, he became ill to such an extent that his mind became a blank and he was unable
to proceed with the trial; that this fact was communicated to the court with a request that
he be released as a juror, but that his request was denied; that while the plaintiff was
sick, as aforesaid, he fell from one of the windows, sustaining a fractured skull, a fracture
of his right arm and of his hip, and minor injuries; that as a result he was confined in the
hospital several weeks and has been unable to perform any work since such injures were
sustained.
48 Nev. 93, 95 (1924) McDermott v. County Commissioners
he was engaged in the trial, and while confined in the jury room on the second story of the
courthouse in said county, he became ill to such an extent that his mind became a blank and
he was unable to proceed with the trial; that this fact was communicated to the court with a
request that he be released as a juror, but that his request was denied; that while the plaintiff
was sick, as aforesaid, he fell from one of the windows, sustaining a fractured skull, a fracture
of his right arm and of his hip, and minor injuries; that as a result he was confined in the
hospital several weeks and has been unable to perform any work since such injures were
sustained.
It is further averred that in the year 1921 the plaintiff filed claims against said defendant
with the board of county commissioners of Elko County, Nevada, which were rejected and
disallowed by said board. It is further alleged that the legislature of the State of Nevada
passed an act for the relief of the said plaintiff, authorizing and directing the board of county
commissioners of Elko county to allow a claim in favor of the plaintiff for the amount sued
for and authorizing the drawing of a warrant therefor and its payment by the county treasurer
of said county. Stats. 1923, p. 34. It is further averred in the complaint that on April 30, 1923,
the plaintiff presented his bill, duly sworn to, in the sum of $2,632.80, to the defendants, and
that they rejected the same and failed and refused to allow it.
To the complaint a demurrer was filed raising certain questions of law which, being
overruled by the court and defendants electing to stand upon their demurrer, judgment was
rendered in favor of the plaintiff; hence this appeal.
1, 2. Appellants contend that the act in question is a special act and hence is in
contravention of sections 20 and 21, art. 4, of our constitution. Section 20 reads:
The legislature shall not pass local or special laws in any of the following enumerated
casesThat is to say: * * * Regulating county and township business. * * * Section 21
reads:
48 Nev. 93, 96 (1924) McDermott v. County Commissioners
Section 21 reads:
In all cases enumerated in the preceding section, and in all other cases where a general
law can be made applicable, all laws shall be general and of uniform operation throughout the
state.
As we read the brief of counsel for respondent it is conceded that the act in question is a
special act, but it is said that the legislature may pass a special act when a general act cannot
be made applicable to existing conditions, and that this is such a case.
It is contended that the two sections of the constitution mentioned must be read together,
and construed to read as follows:
The legislature shall not pass local or special laws regulating county and township
business when a general law can be made applicable; all laws shall be general and of uniform
operation throughout the state.
It is argued that, since a general law could not be made applicable to the situation
presented, the legislature did not trench upon the constitutional inhibition in passing a special
law.
We think all of the authorities are contrary to the contention that the two sections must be
construed as insisted upon. The same contention was made in the case of State ex rel. West v.
Des Moines, 96 Iowa, 521, 65 N. W. 818, 31 L. R. A. 186, 59 Am. St. Rep. 381, and flatly
rejected by the court. However, we need not look elsewhere than to our own decisions for a
repudiation of the contention suggested, for in Evans v. Job, 8 Nev. 322, the court repeatedly
used language repugnant to such view. On page 333 of the volume mentioned the court used
this language:
Sections 20 and 21 were doubtless incorporated into our state constitution to remedy an
evil into which it was supposed the territorial legislature had fallen in the practice of passing
local and special laws for the benefit of individuals instead of enacting laws of a general
nature for the benefit of the public welfare. These sections were intended to prohibit the
legislature from passing any local or special law in any of the cases enumerated in section
20, and to limit the passing of other local or special laws in all other cases where a
general law would be applicable, that is to say, where a general law would be adapted to
the wants of the people, suitable to the just purposes of legislation or effect the object
sought to be accomplished."
48 Nev. 93, 97 (1924) McDermott v. County Commissioners
enumerated in section 20, and to limit the passing of other local or special laws in all other
cases where a general law would be applicable, that is to say, where a general law would be
adapted to the wants of the people, suitable to the just purposes of legislation or effect the
object sought to be accomplished.
Continuing, the court said:
That it was the intention of the framers of the constitution to allow the legislature to pass
some local and special laws is apparent from the general language used, in all other cases
where a general law can be made applicable,' admitting as they here do that general laws
would not be applicable in some cases. If they had intended to prohibit the passage of any
local or special law they would have left out the enumerated cases and only said, the
legislature shall not pass any local or special laws.' So far, we think the intention clear. But
when we come to the consideration of the vital question, whether or not in any given case
where a local or special law has been passed (not enumerated in section 20), a general law is
or can be made applicable, we are liable, unless we closely observe and strictly follow the
ancient landmarks of interpretation, to be cast out upon a sea of uncertainty, without sail or
rudder and with no safe guide to bring us on shore.
We italicize the significant words to bring out the thought that while the legislature might
pass local and special laws in some circumstances, it could not be done in any of the cases
enumerated in section 20 of the constitution.
It is not contended that the act in question does not undertake to regulate county business.
If it were, such a contention is squarely and conclusively answered by this court in the case of
Williams v. Bidleman, 7 Nev. 68. Counsel for respondent endeavors to distinguish the case
mentioned from the instant one by pointing out that it was one in which the legislature sought
to provide for the payment of a claim asserted by a county official of a sum of money in
addition to his regular salary though he assumed the office with a knowledge of the duties to
be performed and the amount of the salary fixed by law, which had been assigned to
Williams, whereas, in the instant case, a moral obligation rests upon the county to make
adequate provision for the injuries sustained.
48 Nev. 93, 98 (1924) McDermott v. County Commissioners
be performed and the amount of the salary fixed by law, which had been assigned to
Williams, whereas, in the instant case, a moral obligation rests upon the county to make
adequate provision for the injuries sustained. We agree as to the interpretation of the
Williams case and concede, for the purpose of this case, that a moral obligation rests upon
Elko County as contended. In both instances the suit was brought under a special statute
affecting county business, and both were for the benefit of an individual, and in no way
tending to promote the public interest or public welfare. The point made is, in fact, answered
in the case mentioned, for in that case it was assumed that a moral obligation existed and that
the legislature had the power to convert a moral obligation into a legal demand. We do not
think we could do better than quote at length from the Williams case, wherein it is said:
The manifest purpose and direct consequence of this statute is to transfer to Leffingwell a
portion of the county funds of Lander County. It is further evident that the money, when so
paid to him, is to be his own private property; to be held and enjoyed by him absolutely, and
for his own private ends and purposes. The act is purely retrospective in its operation; not
enacted to provide a salary for services to be thereafter performed, or to make compensation
for benefits thereafter to accrue; but to appropriate money, either as a gratuity or donation, or
in discharge of some obligation already resting upon the county or upon the state. Now the
legislature had no power to appropriate to a creditor or to a donee of the state, money raised
by a tax levied upon and collected from the taxpayers of Lander County alone. No such tax
could be legally levied or collected, except for purposes both public and of special and
peculiar interest to the inhabitants of that particular county. The fund thus raised for and
dedicated to public and county uses could not be afterwards directed to public or state
purposes. The taxing power cannot be enlarged by such indirection. The validity of the statute
must then rest upon the assumption that it applies the funds of Lander County in liquidation
of a just or equitable claim against that county.
48 Nev. 93, 99 (1924) McDermott v. County Commissioners
applies the funds of Lander County in liquidation of a just or equitable claim against that
county. Upon any other hypothesis it diverts such funds to a private purpose, or imposes upon
one county the whole of a state burden.
The decision mentioned is, in our opinion, decisive of the instant case, and we could not
affirm the judgment appealed from without reversing that opinion, which we shall not do,
either from the standpoint of law or reason. See, also, Conlin v. Board of Supervisors, 114
Cal. 404, 46 Pac. 279, 33 L. R. A. 752. In this connection we may observe that authorities
holding that an act authorizing the payment of a claim against a state are not in point.
It has been pointed out repeatedly that to permit local legislation of this nature invites
many abuses and jeopardizes the public welfare. Though a member of the legislature may be
elected from one county alone, he is a legislator for the entire state; it is his duty to safeguard
the interest of the general public. However, it generally happens that, when a bill is
introduced which is local in character, its fate is dependent entirely upon the attitude of the
legislator from the locality affected. Such a practice leads to improper combinations among
the members, and often to crude and even vicious legislation, that would not be permitted
were it to affect the whole state. Singleton v. Eureka County, 22 Nev. 98, 35 Pac. 833; State
v. Boyd, 19 Nev. 44, 5 Pac. 735.
Counsel for both parties proceeded in the trial court, as well as in this court, upon the
assumption that the legislature, by the act in question, made it mandatory upon the board of
county commissioners to allow the claim of the respondent. Section 1 of the act provides that
the board of county commissioners be, and they are, hereby authorized to allow a claim of
Andrew J. McDermott in the sum of $2,632.80. This is the extent of the authority conferred
upon the board of county commissioners. While the question is not raised, we have grave
doubts if it was the intention of the legislature to do more than to confer authority upon said
board to allow the claim mentioned, if, in their discretion, they saw fit to do so.
48 Nev. 93, 100 (1924) McDermott v. County Commissioners
allow the claim mentioned, if, in their discretion, they saw fit to do so. If this be true, when
they disallowed the claim they had exercised the discretion imposed upon them, and their
action ended the matter. If, on the other hand, the legislature intended to make it mandatory
upon the board of county commissioners to allow the claim, the query arises if it was not an
attempt on the part of the legislature to impose upon a legal subdivision of the state, by a
special act, a liability to pay a disputed claim without the right of being heard in a court of
competent jurisdiction, and a deprivation of property by a judicial determination, on the part
of the legislature, without due process of law.
The judgment is reversed.
____________
48 Nev. 100, 100 (1924) Howard's Estate
HOWARD'S ESTATE
No. 2652
August 5, 1924. 227 Pac. 1016.
1. GarnishmentClaim due From an Estate Cannot be Garnisheed in Hands of Administrator.
A claim due from an estate cannot be garnisheed in the hands of an administrator
2. GarnishmentAssignee of Claim Due From an Estate Garnisheed by Creditor of Assignor
Under No Duty to Have Writ of Attachment Discharged.
Assignee of a claim due from an estate garnished by a creditor of assignor was under no duty to take
steps to have writ of attachment discharged, or to preserve his rights in any matter in attachment
proceedings, since administrator was charged with a knowledge of the law, and presumed to have known
that money in his hands due assignee was not subject to attachment.
3. Executors and AdministratorsStatute Providing That Settlement of Administrator's
Account Shall be Conclusive Construed.
Rev. Laws, sec. 6048, providing that settlement of an administrator's account shall be conclusive
against all persons in any way interested in the estate, refers to a judgment or order which is not attacked
by a motion for a new trial or by appeal, but not to one who has appeared and objected to approval of the
account.
See (1, 2) 28 C. J. sec. 93, p. 77, n. 56; sec. 357, p. 259, n. 2; sec.
48 Nev. 100, 101 (1924) Howard's Estate
sec. 585, p. 370, n. 39; 22 C. J. sec. 85, p. 148, n. 67; (3) 24 C. J. sec. 2483, p. 1028, n.
1.
Appeal from the Fourth Judicial District Court, Elko County; J. M. McNamara, Judge.
In the matter of the estate of Charles M. Howard, deceased; Gracian Eyroz, administrator.
On objections of Randolph Streeter and another to final administration account. From an
order denying his motion for a new trial, and from an order approving the final report and
discharging administrator, the named objector appeals. Reversed and remanded. Petition
for rehearing denied.
(Sanders, J., dissenting.)
Johnson & Mathews, for Objectors:
Proposition that executor is not, under these circumstances, answerable to process of
garnishment is abundantly supported by authorities. Norton v. Clark, 18 Nev. 247; Rev.
Laws, 6055, sec.198; 12 R. C. L. 814; 47 L.R. A. 348; Note 30, L. R. A. (N. S.) 720.
Appeal will lie from decision allowing final administration account. Rev. Laws, 6112. Also,
from order refusing to revoke letter of administration. Bailey's Estate, 31 Nev. 378. The
thousand dollar limitation relates only to decisions respecting matters not specifically
enumerated. State v. District Court, 40 Nev. 169.
The point, not having been raised on original hearing, will not be considered on petition for
rehearing. Nelson v. Smith, 42 Nev. 302; Forney's Estate, 43 Nev. 227.
H. U. Castle, for Respondent:
Rev. Laws, 5165, as amended, 1921 Stats. 5, provides defendant may before trial, on
notice, move to discharge attachment on ground writ was improperly issued or that property
is exempt. Under this section objector could have had writ discharged if check was not
subject to execution, but failing in this, it was plainly his intention to have check applied
against judgment against him secured by grocery company and then, if possible, collect
through assignment same amount second time.
48 Nev. 100, 102 (1924) Howard's Estate
collect through assignment same amount second time. Equity will not grant relief to party
who has had opportunity to be heard at law without showing he was prevented by wrongful
act and was not himself negligent. Royce v. Hampton, 16 Nev. 25. Laches is question for
sound discretion of chancellor. 21 C. J. 217.
Administrator need not obtain order to pay general creditors, even though it may be better
practice. Fernandez' Estate, 51 Pac. 851.
Ruling in Norton v. Clark, does not relieve appellant, because he was fully advised and
permitted check to be used in payment of debt owed by objector and now seeks to recover
same amount again. Both were negligent and guilty of laches.
Facts show objector and his counsel were willing to let sheriff satisfy judgment with check
and then, if possible, collect amount second time from administrator out of his private funds.
If purported assignment was in good faith, why was Buster objector and appellant? Justice is
purpose of government.
OPINION
By the Court, Coleman, J.:
In the above-entitled estate claims were approved by the administrator and allowed by the
court in a large sum. Among the claims so approved and allowed was one in favor of Guy
Buster in the sum of $80. On August 28, 1923, Buster, being indebted to one Streeter,
executed a written assignment of his claim so allowed, and delivered it to said Streeter, and
on the same day Streeter served upon the administrator of said estate notice in writing of said
assignment. On the same day a suit was instituted by the International Grocery Company in
the justice's court against Guy Buster, wherein a writ of attachment was issued and delivered
to the sheriff. The sheriff, on the same day pursuant to said writ of attachment, served upon
the administrator a copy of said writ and notified him that any money in his hand payable to
Buster was attached and garnished.
48 Nev. 100, 103 (1924) Howard's Estate
Prior to such garnishment the administrator had made out a check payable to Guy Buster in
the sum of $80 in payment of the claim so allowed, which, when said writ was served upon
him, he delivered to the sheriff, taking his receipt therefor. Thereafter, and on September 2,
1923, his administrator filed his final report, and prayed that the same be approved and
allowed, and that he be discharged as such administrator. Among the claims represented by
said report to have been paid was the one allowed in favor of Buster.
Subsequently to the filing of the report by the administrator, Streeter filed exceptions and
objections thereto upon the ground that he, as the assignee, and not Buster, had been paid, and
that the administrator was not subject to garnishment, and that the payment to the sheriff,
pursuant to the attachment, did not discharge him from liability. After hearing the objections,
the court approved and allowed the report, ordered the payment of the expenses of
administration, and a distribution of the estate, and that, upon complying with such order, the
administrator and his bondsmen stand discharged from further liability.
Appellant, Streeter, made a motion for a new trial, which was denied. He has appealed
from the order denying his motion and from the order approving the final report and
discharging the administrator.
1. In support of his contention that the orders appealed from should be reversed, our
attention is directed to the case of Norton v. Clark, 18 Nev. 247, 2 Pac. 529. In that case it
was squarely held that there could be no garnishment of a claim due from an estate, the court
quoting approvingly from Shewell v. Keen, 2 Whart. 339, 30 Am. Dec. 266, as follows:
Another circumstance of weight is that an executor or administrator is, to a certain extent,
an officer of the law, clothed with a trust to be performed under prescribed regulations. It
would tend to distract and embarrass these officers, if, in addition to the ordinary duties
which the law imposes, of themselves often multiplied, arduous and responsible, they were
drawn into conflicts created by the interposition of creditors of legatees, and compelled to
withhold payment of legacies, without suit; to suspend indefinitely the settlement of
estates; to attend perhaps, to numerous rival attachments; to answer interrogatories on
oath, and to be put to trouble and expense for the benefit of third persons [in] no way
connected with the estate, nor within the duties of their trust.
48 Nev. 100, 104 (1924) Howard's Estate
conflicts created by the interposition of creditors of legatees, and compelled to withhold
payment of legacies, without suit; to suspend indefinitely the settlement of estates; to attend
perhaps, to numerous rival attachments; to answer interrogatories on oath, and to be put to
trouble and expense for the benefit of third persons [in] no way connected with the estate, nor
within the duties of their trust. It has been decided that money in the hands of a prothonotary
or sheriff cannot be intercepted by a creditor of the party entitled to it; but it must be paid
over to himself only. 1 Dall. 354. The case of an executor or administrator is analogous to
that of a sheriff or prothonotary. He has the fund in his hands as an officer or trustee
authorized by law; and if a new party were allowed to levy on it by attachment, there would
be no end of disputes and lawsuits; and no business could be certain of ever being brought to
a close within a reasonable time. It is of great importance to the interests of heirs, creditors
and legatees that the affairs of a decedent's estate be kept as simple and distinct as possible;
that its concerns be speedily closed, and the estate adjusted. It is moreover settled that an
executor cannot be sued as defendant, in an attachment by a creditor of the testator, and the
goods of the testator attached to recover the debt. 2 Dall. 73. The reason is that the estate of a
testator ought to come into the hands of the executor, that he may administer it according to
law; and pay the debts if the assets suffice; and they ought not to be stopped, and the executor
subjected to new responsibilities, by proceedings in attachment. These reasons apply with
equal force to the attempt to make an executor garnishee, for the purpose of paying out of the
assets in his hands, the debt due to a creditor of a legatee. These funds must travel only in the
path pointed out by the laws relating to decedents' estates in their various branches; and
cannot be diverted out of that path, without interfering with salutory regulations, and
violating some of the most important provisions of the acts of assembly.
48 Nev. 100, 105 (1924) Howard's Estate
Many other authorities are cited in support of the rule thus enunciated.
2. The hearing upon the objections to the final report was disposed of by one judge and the
motion for a new trial by another. The judge who passed upon the objections and approved
the final report seemed to have recognized and accepted the ruling in Norton v. Clark as
being applicable, but, in view of the fact that Streeter took no steps to have the writ of
attachment discharged or to preserve his rights in any manner in the attachment proceeding,
that he could not be heard to complain in the matter of the estate.
We think this is an erroneous view to take of the situation. The administration was charged
with a knowledge of the law. He knew, or is conclusively presumed to have known, that the
money in his hands due to Buster, or to Streeter, the assignee, was not subject to attachment.
Knowing this, it was his duty to refuse to deliver the check to the sheriff pursuant to the
attachment. Neither Buster nor Streeter was under any duty to appear in the attachment
proceedings. No lien was acquired in that proceeding. The administrator gave a bond for the
faithful discharge of the duties imposed upon him as such. One of those duties was to pay the
claim to Buster, or to one holding a valid assignment. He could not escape liability by making
payment to some person not entitled to receive it legally. In the case of First National Bank v.
Arthur, etc., 12 Colo. App. 90, 54 Pac. 1107, the facts are dissimilar from those in this one,
yet the principle stated is in point.
3. The learned judge who disposed of the motion for a new trial seemed to have
appreciated the force of this view, but, in his written opinion which is in the record, he states
that the doctrine in Norton v. Clark could not be considered on a motion for a new trial, since
section 6048, Rev. Laws, provides that the settlement of the account of an administrator shall
be conclusive against all persons in any way interested in the estate.
We do not construe this provision of the statute as did the learned judge.
48 Nev. 100, 106 (1924) Howard's Estate
the learned judge. It is evident that the statute refers to a judgment or order which is not
attacked by motion for new trial, or by appeal, but not to one who has appeared and objected
to the approval of the account, as did the appellant. To take any other view would result in
practically denying the right of appeal to this court.
For the reasons given, the judgment and orders appealed from are reversed, and the case is
remanded to the district court for further proceedings in accordance with the views expressed.
Appellant to recover his costs.
Ducker, C. J.: I concur.
Sanders, J., dissenting:
Conceding that an administrator can receive no credit for disbursements which he made
improperly, such as the payment of an allowed and approved claim against the estate at the
instance of an attaching creditor of the claimant, nevertheless, where it appears that the owner
of the claim seeks to falsify the account of the administrator for that reason alone, the burden
is upon him to satisfy the court of his right to the fund. Having failed in this, I see no reason
for reversing the order upon the single ground that the administrator exceeded his authority.
On Petition for Rehearing
February 10, 1925. 232 Pac. 783.
1. Appeal and ErrorMotion for Rehearing, Based on Ground Not Urged on Original
Hearing, Will be Denied.
Motion for rehearing, based on ground not urged on original hearing, will be denied.
2. Appeal and ErrorAppeal Lies From Order Approving Final Report of Administrator,
Through Amount Involved Less Than $1,000.
Under Rev. Laws, sec. 6112, appeal will lie from order approving final report of
administrator, though amount involved is less than $1,000.
See 4 C. J. sec. 155, p. 385, n. 59; sec. 2495, p. 629, n. 88.
On petition for rehearing. Petition denied. (Sanders, J., dissenting in part.)
48 Nev. 100, 107 (1924) Howard's Estate
OPINION
By the Court, Coleman, C. J.:
A petition for a rehearing has been filed in this case upon the ground that this court had no
jurisdiction to hear and determine the matter. In support of this contention petitioner relies
upon section 6112, Revised Laws, 1912, which reads:
Any person interested in, affected by, and aggrieved at the decision and decree of the
district court appointing an executor or administrator, revoking letters, allowing a final
account or disallowing it, decreeing a distribution or partition, order or decree, confirming or
setting aside a report of commissioners, admitting or refusing a will for probate, and any other
decision wherein the amount in controversy equals or exceeds, exclusive of costs, one
thousand dollars, may appeal to supreme court of the state, to be governed in all aspects as an
appeal from a final decision and judgment in action at law.
It is said in the petition
that the amount in controversy does not equal or exceed, exclusive of costs, $1,000, but that
the amount in controversy, exclusive of costs, is the sum of $80 and no more, as appears from
the record in said cause on file with the clerk of the above-entitled court.
1, 2. It has been the universal practice to deny a petition for a rehearing when based upon a
ground not urged upon the original hearing. In Re Forney's Estate, 43 Nev. 227, 184 P. 206,
186 P. 678, 24 A. L. R. 553; In Re Pedroli's Estate, 47 Nev. 321, 224 P. 807, 31 A. L. R. 841.
Aside from this, the petition must be denied, since there is no merit therein. The statute relied
upon expressly authorizes an appeal by any person aggrieved by the allowance of a final
account of an administrator. The original opinion in this case shows that an appeal was taken
from an order approving the final report.
The petition is hereby denied.
Ducker, J.: I concur.
48 Nev. 100, 108 (1924) Howard's Estate
Sanders, J., concurring:
I concur in the opinion relative to the rule of practice in respect to points raised for the first
time on petitions for rehearing, but adhere to my former dissenting opinion herein.
____________
48 Nev. 108, 108 (1924) Barbash v. Pitt
BARBASH v. PITT
No. 2650
August 5, 1924. 227 Pac. 1018.
On Motion to Dismiss and Strike
1. Appeal and ErrorStatute Permits Use of Reporter's Transcript Instead of Bill of
Exceptions.
Under Stats. 1923, c. 97, sec. 1, an appellant may have a bill of exceptions settled and allowed by
judge or court, or by agreement of the parties, or use the reporter's transcript properly certified instead,
and under supreme court rule 2 transcript of record on appeal may be filed any time within 30 days after
appeal has been perfected and the bills of exceptions settled by the court.
2. Appeal and ErrorMotion to Dismiss and Strike, Filed Two Months After Transcript, is
Too Late.
Motion to dismiss and to strike certain parts of the record more than two months after the transcript
was filed, were too late, under Stats. 1923, c. 97, sec. 2, and objections included in the motion were
waived by the delay in making the motion.
3. Appeal and ErrorRespondent Held to Have Waived Irregularities in the Appeal.
Where respondent's attorneys stipulated with appellant's attorneys for 20 days' additional time to file a
reply brief, and obtained from a supreme court justice 20 days additional to prepare, file, and serve it,
without reserving the right move against the appeal, such action, and failure to promptly move for
dismissal of the appeal, constituted waiver of objection to all errors, irregularities, or omissions in the
appeal, not amounting to jurisdictional defeats.
4. Exceptions, Bill ofStatute Permits Enlarging Time for Filing and Serving Bill of
Exceptions.
Section 10 of an act relating to bills of exceptions, as amended by Stats. 1919, c.40, is in pari materia
with Stats. 1923, c. 97, and by virtue thereof the time allowed after decision on motion for new trial for
filing and serving a bill of exceptions may be enlarged upon good cause shown by the court, any
justice of the supreme court, judge, referee, or judicial official, or by stipulation of
the parties."
48 Nev. 108, 109 (1924) Barbash v. Pitt
court, any justice of the supreme court, judge, referee, or judicial official, or by stipulation of the parties.
5. Exceptions, Bill ofFiling and Service of Reporter's Transcript and Stipulation for
Further Time Held to Confer Jurisdiction to Allow Bill of Exceptions.
Under Stats. 1919, c. 40, filing and service of reporter's transcript, and stipulation by counsel, before
expiration of time to file and serve a bill of exceptions, giving appellants further time to file such bill,
sufficed to give the lower court jurisdiction to file and allow the bill of exceptions.
See (1-4) 4 C. J. sec. 1808, p. 209, n. 21; sec. 1891, p. 282, n. 9 (new); sec. 1899, p. 288, n. 66; sec. 2195, p.
463, n. 33; sec. 2262, p. 503, n. 59 (new); sec. 2267, p. 507, n. 99; sec. 2398, p. 586, n. 71; sec. 2412, p.
596, n. 73; (5) 36 Cyc. p. 1147, n. 30.
Appeal from Sixth Judicial District Court, Pershing County; Geo. A. Barlett, Judge.
Action by Benjamin Barbash against W. C. Pitt and others, copartners doing business as
Pitt-Taylor syndicate. Judgment for plaintiff, and defendants appeal from the judgment and
order denying motion for new trial. On motion to dismiss appeal and to strike. Motion
denied.
Booth B. Goodman, for Appellants:
Defects and omissions in transcript or return may be either expressly or impliedly waived.
3 Cyc. 147.
Right to move to dismiss is waived if extension of time for filing brief is asked for and
received. Miller v. Walser, 42 Nev. 497.
Certificate need not be framed in exact language of statute. It is sufficient if it affirms that all
proceedings are included. 3 Cyc. 109.
Motion to dismiss sixty days after filing transcript is too late. Miller v. Walser, supra.
Mack & Green, for Respondent:
Record, and particularly bill of exceptions from order denying motion for new trial, was
not filed within thirty days after appeal was perfected. Supreme court rule 2; 2 Rev. Laws, p.
1421.
Reporter's transcript may be filed in lieu of bill of exceptions.
48 Nev. 108, 110 (1924) Barbash v. Pitt
exceptions. Stats. 1923, 64. When transcript was filed it became bill of exceptions and should
have been transmitted to this court within thirty days. Bill of exceptions was not filed here
until four months after it appears to have been filed and five months after it was certified.
No errors or exceptions are specified in memorandum of errors under 7th subdivision of
Rev. Laws, 5320, nor within twenty days after order denying motion for new trial as required
by 1923 Stats. 163, sec.1.
Certificate does not conform to statutes in that it does not certify that point or points
involved are in record. Capurro v. Christensen, 209 Pac. 1045; Cochran v. Dodge, 204 Pac.
879; Rickey v. Douglass M. & M. Co. 204 Pac. 504; 205 Pac. 328.
Purported bill of exceptions does not contain pleadings, proceedings, bill of exceptions in
chronological order and indexed as required by supreme court rule 4, subdivisions 1, 4 and 5.
Various exhibits are missing. We waive lack of folio numbering.
OPINION
By the Court, Ducker, C. J.:
This is a motion to dismiss an appeal taken from the judgment and order denying the
motion for a new trial, and to strike certain parts of the record. The grounds of the motion to
dismiss are stated in the notice of motion substantially as follows:
That the record on appeal was not filed in this court within 30 days after the appeal had
been perfected and the bill of exceptions settled; that no memorandum of exceptions or errors
was filed in the lower court on motion for a new trial as required by law; that the bill of
exceptions from the order denying the motion for a new trial was not filed and served within
20 days after the entry of said order.
The motion to strike is directed to the several bills of exceptions appearing in the record,
and is based upon the claim that the same have not been filed, served, settled, and certified as
required by statute, and within the time required thereby, and that the same do not contain
the pleadings, proceedings, and are not chronologically arranged, prefaced with an
alphabetical index specifying the folio numbers in any manner whatever, as required by
rule 4 of the supreme court rules.
48 Nev. 108, 111 (1924) Barbash v. Pitt
the time required thereby, and that the same do not contain the pleadings, proceedings, and
are not chronologically arranged, prefaced with an alphabetical index specifying the folio
numbers in any manner whatever, as required by rule 4 of the supreme court rules. The record
before us contains a duly certified copy of the judgment roll, and annexed thereto is a
transcript of the proceedings, evidence, and testimony, duly certified to by the court reporter
pro tem. The transcript was filed in the lower court on October 16, 1923, and bears this
indorsement:
Oct. 16, 1923. The following bill of exceptions is hereby offered for settlement by the
defendants. Booth B. Goodman, Attorney for Defendants.
It contains what purports to be a bill of exceptions on motion for a new trial, a bill of
exceptions on motion for a continuance, and a bill of exception is on motion for a
modification of, and new findings of fact and conclusions of law, each certified to by the trial
judge as having been allowed and settled on January 19, 1924. The appeal was perfected on
September 14, 1923, and the foregoing transcript and copy of the judgment roll, constituting
the transcript of record on appeal, was filed in this court on February 18, 1924.
1. Respondent contends that the transcript of the proceedings, evidence, and testimony
certified to by the reporter constitutes a bill of exceptions by virtue of section 1 of An act to
regulate proceedings on motions for new trials and appeal in civil cases. (Stats. 1923, p.
163); that consequently the transcript of record on appeal should have been filed in this court
not later than 30 days after the appeal had been perfected and the bill of exceptions settled, as
provided for in rule 2 of the supreme court rules. This rule reads:
The transcript of the record on appeal shall be filed within thirty (30) days after the
appeal has been perfected and the statement settled, if there be one. 2 Rev. Laws, p. 1421.
The statute of 1923, supra, in section 1, provides:
At any time after the filing of the complaint and not later than twenty (20) days after final
judgment, or if a motion be made for a new trial, then within twenty {20) days after the
decision upon such motion, any party to an action or special proceeding may serve and
file a bill of exceptions to such judgment or any ruling, decision, order, or action of the
court, which bill of exceptions shall be settled and allowed by the judge or court, or by
stipulation of the parties, by attaching thereto or inserting therein a certificate or
stipulation to the effect that such bill of exceptions is correct, contains the substance of
the proceedings relating to the point or points involved and has been settled and allowed,
and when such bill of exceptions has been so settled and allowed it shall become a part of
the record in such action or special proceeding.
48 Nev. 108, 112 (1924) Barbash v. Pitt
motion be made for a new trial, then within twenty (20) days after the decision upon such
motion, any party to an action or special proceeding may serve and file a bill of exceptions to
such judgment or any ruling, decision, order, or action of the court, which bill of exceptions
shall be settled and allowed by the judge or court, or by stipulation of the parties, by attaching
thereto or inserting therein a certificate or stipulation to the effect that such bill of exceptions
is correct, contains the substance of the proceedings relating to the point or points involved
and has been settled and allowed, and when such bill of exceptions has been so settled and
allowed it shall become a part of the record in such action or special proceeding. A transcript
of the proceedings certificate by the court reporter to be a full, true, and correct transcript
thereof may be filed in lieu of such bill of exceptions and when so filed shall be and
constitute the bill of exceptions without further stipulation or settlement by the court:
Provided, however, that on motion duly noticed, the court may at any time correct any error in
such transcript by appropriate amendment thereto.
We are of the opinion that it is plainly evident from the language of the section that it was
intended to give an appellant the right to have a bill of exceptions settled and allowed by the
judge or court, or by the agreement of the parties, or use the reporter's transcript property
certified instead. The indorsement of the attorney for appellants on the transcript shows that
he intended to avail himself of one of the former methods, and the reporter's certificate on the
transcript could not operate to deprive him of this right. An attorney may prefer one of the
former methods, to avoid the possibility of delay which might be occasioned by the necessity
of correction on motion duly notice. As the transcript of the record on appeal was filed
within 30 days after the appeal had been perfected, and the bills of exceptions settled by the
court, the motion to dismiss on this ground must be denied.
2. We have gone thus far into the merits of the motion merely for the purpose of giving to
the bar the benefit of our opinion upon a new statute on procedure, for we think that all
objections included in the motion have been waived by the conduct of respondent in
recognizing the appeal and by not making a timely motion, except the objection that the
bills of exceptions were not served and filed within the time required by law.
48 Nev. 108, 113 (1924) Barbash v. Pitt
benefit of our opinion upon a new statute on procedure, for we think that all objections
included in the motion have been waived by the conduct of respondent in recognizing the
appeal and by not making a timely motion, except the objection that the bills of exceptions
were not served and filed within the time required by law. As we have seen, the transcript of
the record on appeal was filed in this court on February 18, 1924, but the notice of motion
and motion to dismiss and strike were not filed until April 25, 1924, something over two
months late. We do not regard this as timely. If dilatory motions to dismiss are recognized, a
hearing on the merits may be unreasonably delayed thereby, for under section 2 of said
statute:
No appeal shall be dismissed by the supreme court for any defect or informality in the
appellate proceedings until the appellant has been given an opportunity, upon such terms as
shall be just, and within a reasonable time to be fixed by the court, to amend or correct such
defect, and shall within such time have failed to comply with any terms imposed and correct
the defect.
3. It appears that the attorneys for respondent applied to and obtained from the attorney for
the appellants a stipulation giving them 20 days' additional time in which to file a reply brief,
and thereafter applied to and obtained from a justice of this court an additional time of 20
days in which to prepare, file, and serve said belief, without making any reservation of right
to move against the appeal. Their action in this regard, and their failure to promptly move for
a dismissal of the appeal, constitute a wavier of objection to all errors, irregularities, or
omissions in the appeal taken not amounting to a jurisdictional defect. Miller v. Walser, 42
Nev. 497, 181 Pac. 437. There are none of this latter character complained of, except that the
bills of exceptions were not filed and served within 20 days after the decision on motion for a
new trial was made, as required by section 1 of said act.
4, 5. Section 10 of an act relating to bills of exceptions (Stats. 1915, c. 142, as amended by
Stats. 1919, p. 55) is in pari materia with the act of 1923, supra, and by virtue thereof the
time allowed after decision on motion for a new trial for filing and serving a bill of
exceptions "may be enlarged upon good cause shown by the court, any justice of the
supreme court, judge, referee, or judicial official, or by stipulation of the parties."
48 Nev. 108, 114 (1924) Barbash v. Pitt
and by virtue thereof the time allowed after decision on motion for a new trial for filing and
serving a bill of exceptions may be enlarged upon good cause shown by the court, any
justice of the supreme court, judge, referee, or judicial official, or by stipulation of the
parties. It appears, as we have heretofore stated, that the reporter's transcript was filed
October 16, 1923, and it was served on that date. It further appears from the affidavit of
counsel for appellant, filed and admitted on the hearing of the motion to dismiss, that, before
the time allowed by statute to file and serve a bill of exceptions had expired, counsel for
respondent entered into a written stipulation with the former, giving appellants to and
including the 20th day of October, 1923, in which to file and serve their bill of exceptions to
the order of the court denying their motion for a new trial in the action, and that the time
allowed by statute be extended accordingly. This was sufficient to give the lower court
jurisdiction to settle and allow the bills of exceptions in this case.
The motion to dismiss and strike must be denied.
It is so ordered.
On The Merits
March 9, 1925. 233 Pac. 844.
1. PartnershipMember of Two Firms May Not Direct Application of Check of One on Debt
of Other.
Plaintiff doing work on separate contracts, one with defendant, the other with
another partnership, and receiving defendant's checks, could not credit them on the
indebtedness of the other, rather than that of defendant, merely at direction of one who
was a member of both firms, but was not shown authorized to so direct.
See 30 Cyc. p. 483, n. 62.
Action by Benjamin Barbash against W. C. Pitt and others, partners as Pitt-Taylor
Syndicate. Judgment for plaintiff, new trial denied, and defendants appeal. Reversed.
Booth B. Goodman, for Appellants:
Plaintiff can succeed upon case made by his complaint and not upon different one.
48 Nev. 108, 115 (1924) Barbash v. Pitt
and not upon different one. His evidence must prove substance of issue tendered by his
pleading or he will fail no matter what else he may prove. Bremmerman v. Jennings, 101 Ind.
253; 21 R. C. L. 609. Plaintiff cannot, against objection, recover upon theory essentially
different from one alleged. Gretnier v. Fehrenschield, 68 Pac. 619.
We had right to assume we were to defend upon account as stated. Our defenses were that
charges were incorrect and payments credited were little more than half of payments actually
made. To meet our defense respondent brings up account against third party, in no way
interested in account sued upon, on ground Taylor, who was member of two distinct
partnerships, did, and could legally, instruct assignor to credit money of appellants to debt of
the other partnership. A partner has no such authority. 20 R. C. L. 884.
Mack & Green, for Respondent:
Uncontradicted testimony shows application of credits was directed by appellants so that
work could be completed upon each separate contract so that money could be drawn from
State as contracts were completed. Appellants had employed respondent's assignor directing
him to keep separate account of work, which he did, and was paid by various parties' checks,
giving credit as directed by manager of appellants. No objection to this was made until time
of trial. So far as it was a matter of accounting, it was between defendants themselves.
Merely rendering an account is not enough to make it an account stated. 1 C. J. 680. The
account is not conclusive, but is open to explanation for errors and omissions. Roberts Shoe
Co. v. McKim, 34 Nev. 191.
After creditor has made application of the payment, it cannot be altered except by mutual
consent. Where debtor receives account applying payments in certain way, he is estopped
from thereafter questioning application made by creditor. 30 Cyc. 1239.
48 Nev. 108, 116 (1924) Barbash v. Pitt
OPINION
By the Court, Sanders, J.:
This action was brought by the plaintiff as assignee of a claim of L. Little against W. C.
Pitt, P. A. Quigley, A. L. Bachrodt, and D. B. Taylor, as the Pitt-Taylor Syndicate, to recover
judgment in the sum of $4,094.84 for services performed by Little in hauling gravel, sand,
cement, and other supplies for the defendants to be used by them upon what is known as
contract No. 29a, on the Carson-Reno highway. The defendants filed their answer to the
complaint admitting that they executed the the contract mentioned; that Little rendered certain
trucking services in hauling supplies, but denied that services were rendered to the extent and
of the value claimed; and allege that Little was fully paid for all of the services rendered.
Defendants pleaded affirmatively that at a date mentioned an account was stated between
the parties whereby it was found that the defendants were indebted to Little in the sum of
$870.65, and that that sum was paid to and accepted by Little in full settlement of the amount
due from the defendants.
The case was tried to the court without a jury. Findings of fact were made and judgment
rendered favorable to the plaintiff. A motion for a new trial having been denied, the
defendants have appealed. Numerous errors are assigned, but we do not deem it necessary to
consider each of them.
The evidence in this case has reference to three separate contracts with the state for the
construction of portions of highway. One of these contracts is the one already mentioned,
another is referred to as the Lakeview contract, and the third is designated as the
Lovelock contract. The Lovelock contract was performed by the Valley Construction
Company, which was composed of one Barber and D. B. Taylor. Though this contract was
entered into between the state highway department and defendant P. A. Quigley, it appears
from a contract in the record that he did so in behalf of the Valley Construction Company,
and that he had absolutely no interest in the contract, and that it was assigned to them.
D. B.
48 Nev. 108, 117 (1924) Barbash v. Pitt
the Valley Construction Company, and that he had absolutely no interest in the contract, and
that it was assigned to them. D. B. Taylor, who was one of the members of the Valley
Construction Company and its manager, was also a member of the Pitt-Taylor Syndicate and
for quite a period and until some time in 1921 was its manager. It also appears that several
checks were drawn by the Pitt-Taylor Syndicate payable to Little, which he cashed and
credited to his claim for services rendered to the Valley Construction Company upon its
Lovelock contract. It is contended upon the part of the defendants that these payments should
have been credited to them instead of to the Valley Construction Company. If this contention
is correct, it is clear that the judgment must be reversed.
Little testified that when Mr. Taylor asked him to go to Lovelock to look over the situation
there with a view of performing services in connection with the completion of the Lovelock
contract, he knew that that contract was held by the Valley Construction Company, but that
he did not know who composed that company. He further testified that the payments made by
the checks of the Pitt-Taylor Syndicate, and which were credited to his claim against the
Valley Construction Company, were so credited pursuant to instructions from Mr. Taylor.
Page 69 of the record shows that Little testified that it appeared from sheet 2 that five
Pitt-Taylor Syndicate checks were listed in a certain way according to instructions from
Taylor. He then testified:
Q. Then the checks are not correctly listed, are they, Mr. Little? A. They are listed
according to the way I was instructed to list them by Mr. Taylor.
Q. You were instructed to list them by Mr. Taylor? A. Yes, sir.
Q. Why did you fail to list them in that manner on the statement you rendered to the
Pitt-Taylor Syndicate in September, even, in 1921? A. Because I went backwhen I had a
conversation with Mr. Taylor and he told me to go back and change my records.
48 Nev. 108, 118 (1924) Barbash v. Pitt
Q. Oh, then you changed your records after September, 1921; is that correct? A. I don't
know just when it was.
Though Mr. Taylor was a party defendant in the action, he did not appear at the trial and
testify and was out of the state. No one testified that he had any authority to authorize Little to
credit the Pitt-Taylor Syndicate checks to the Valley Construction Company indebtedness.
The witnesses on the part of the defendants testified positively that there was no authorization
for such action, and that they did not know it was being done. This evidence is borne out by
the fact that when a statement was rendered by Little to Pitt-Taylor Syndicate in September,
1921, he changed his own records. There is not a particle of evidence in the record of any
authorization on the part of the Pitt-Taylor Syndicate to credit their money to the payment of
the debt of anotherValley Construction Company.
We are clearly of the opinion that the trial court erred in not giving the defendants full
credit for all payments made by them. For this reason the judgment and order must be
reversed. We need not consider other alleged errors.
Judgment reversed.
On Costs
June 17, 1925. 236 Pac. 1101.
1. CostsExpense of Transcribing Testimony Used on Appeal Proper Item of Costs.
Under Supreme Court rule 6, sec. 1, amount paid court reporter for typing testimony
used in transcript on appeal is proper item of costs.
See 15 C. J. sec. 321, p. 140, n. 91.
From a ruling of the clerk of the supreme court, disallowing item of costs, defendants
appeal. Reversed.
OPINION
By the Court, Sanders, J.:
This is an appeal from a ruling or decision of the clerk of this court upon an item of costs.
48 Nev. 108, 119 (1924) Barbash v. Pitt
It appears that appellants, the prevailing parties on their appeal, presented to the clerk a
duly certified cost bill for his approval and allowance. The item objected to and sustained by
the clerk is as follows:
Paid to Lew Rogers, court reporter, for typing transcript testimony of proceedings used in
the transcript on appeal, $276.31.
The clerk ruled that the item was not a proper item of costs authorized by section 1 of rule
6 of the supreme court rules. We are not in accord with this ruling. The rule itself furnishes a
sufficient answer to the objection to the allowance of the item. Section 1 provides as follows:
The expense of printing or typewriting transcripts * * * on appeal in civil causes * * *
shall be allowed as costs, and taxed in bills of costs in the usual mode. * * *
No sufficient reason appears why appellants should not be allowed the expense of
transcribing the testimony upon which their appeal was based, and which was actually used
on appeal.
The clerk's decision is reversed.
____________
48 Nev. 120, 120 (1924) Ex Parte Noyd
EX PARTE NOYD
No. 2648
August 5, 1924. 227 Pac. 1020.
1. LicensesOrdinance Held Not to Exceed Powers Delegated under Charter.
An ordinance exacting a quarterly license fee from one vending goods at retail from a railroad freight
car held authorized by Reno charter act, art. 12, sec. 10c, subd. 4, as amended by Stats. 1923, c. 77.
2. LicensesOrdinance Exacting a License Fee for Peddling Held Not Unreasonable.
Under Reno charter as amended by Stats. 1923, c. 77, authorizing license tax in proportion to the
approximate amount of business done by licensee, an ordinance exacting a quarterly license fee from one
vending goods at retail from a railroad freight car could not be deemed unreasonable, prohibitive, and
confiscatory, as long as it was uniform in proportion to the approximate amount of business done by
licensee, though the fee approximated 10 per cent of the gross returns of licensee.
3. Constitutional LawDefendant Cannot Object to Constitutionality of Provisions of
Ordinance Not Affecting Him.
One convicted of peddling from a box car without license, contrary to city ordinance, could not object
to constitutionality of provisions of ordinance not affecting him.
4. Constitutional LawOne Not Injured by an Ordinance Cannot Attack Its
Constitutionality.
One not injured by an ordinance cannot attack its constitutionality.
5. Constitutional LawDefendant Not Injured by Lack of Uniformity in Ordinance Where
He Had No License to Peddle.
If an ordinance exacting quarterly license fees for peddling was discriminatory for lack of uniformity,
defendant convicted for a violation thereof was not injured thereby, where he had not license and was not
peddling any merchandise excluded from the regular schedule of license fees.
6. Municipal CorporationsReasonableness of Penalty Prescribed by Ordinance Held Not
Open to Inquiry.
The reasonableness of a penalty prescribed by an ordinance of the city of Reno for failure to pay the
required license fees for peddling was not open to inquiry, where it was within the limitations of express
authority granted by legislature, in view of Reno charter, sec. 10i, subd. 5, as amended by Stats. 1923,
c.77; Stats. 1905, c. 71, art. 14, sec. 3.
7. Municipal CorporationsAuthorized Ordinance Not Unreasonable.
An ordinance cannot be declared unreasonable which is expressly authorized by legislature.
8. LicensesComplaint Charging Violation of Ordinance Held Sufficient without Charging
that Peddling From Box Car Was at Retail.
48 Nev. 120, 121 (1924) Ex Parte Noyd
Complaint charging defendant with peddling from a railroad box car without procuring a license, in
violation of an ordinance, was sufficient without alleging that it was at retail; peddling being sufficient to
inform defendant that he was charged with selling and deliverying at retail.
9. LicensesUnnecessary in Charging Violation of Ordinance to Allege that Railroad Box
Car Was Not a Fixed Place of Business.
In a prosecution for peddling from a railroad box car without a license, in violation of an ordinance, it
was unnecessary to allege that such car was not a fixed place of business, where by the terms of the
ordinance a freight car was defined as not a fixed place of busines.
10. LicensesUse of Term Railroad Box Car Instead of Freight Car in Charging
Violation of Ordinance Held Not Misleading.
In a prosecution for peddling from a railroad box car without a license, in violation of an ordinance, use
of the term railroad box car in the complaint, instead of freight car, as employed in the ordinance, was
not misleading.
See (1, 2, 8, 9, 10) 37 C. J. sec. 13, p. 174, n. 95; sec. 16, p. 176, n. 27; sec. 20, p. 179, n. 60; sec. 22, p. 181, n.
84, 85; sec. 41, p. 190, n. 37; sec. 42, p. 192, n. 51; sec. 77, p. 223, n. 52 (new); sec. 160, p. 268, n. 16; (3,
4, 5) 12 C. J. sec. 177, p. 760, n. 57; p. 764, n. 71; (6, 7) 28 Cyc. p. 282, n. 97; p. 723, n. 10; p. 764, n. 66;
p. 766, n. 39; (8) 29 C. J. sec. 9, p. 227, n. 4, 8.
Original proceeding in the matter of the application for a writ of habeas corpus of and for
John Noyd. Writ dismissed. Rehearing denied.
John F. Kunz, for Petitioner:
Ordinance is void because (1) it seeks to enlarge meaning of hawker or peddler to
include one retaining from freight car, thereby exceeding power given by charter. Kennedy v.
People, 49 Pac. 373; 1 Dillon Mun. Corp. sec. 89. (2) Tax imposed exceeds reasonable
expense of issuing license and regulating occupation and is virtually prohibitory. 25 Cyc. 611;
21 R. C. L. 192. (3) Being based upon number of vehicles used and not upon volume of
business done, tax is discriminatory and not uniform. Park City v. Daniels, 149 Pac. 1094; 2
McQuillin Mun. Corp. sec. 738. (4) Penalty for violation is exorbitant and unreasonable. 25
Cyc. 634; Carrollton v. Bazette, 42 N. E. 837. (5) City cannot enlarge ordinary definition of
"hawker" or "peddler."
48 Nev. 120, 122 (1924) Ex Parte Noyd
hawker or peddler. Complaint alleges sale from box car, which is not usually coupled
with avocation of peddler. Fundamental rule of construction is that legislature must have
intended to use words in commonly accepted signification. Sutherland Stat. Cons. 251.
Peddler or hawker is itinerant or traveling trader who takes goods about and actually sells
and delivers them. Martin v. Rosedale, 29 N. E. 410; Village of Schibner v. Mohr, Ann. Cas.
1912d, 1289, 21 Cyc. 367.
Reasonableness of tax is usually for court, and not for jury. Municipalities cannot,
generally, tax peddlers for revenue purposes. Burlington v. Unterkircher, 68 N. W. 795;
O'Hara v. Collier, Ann. Cas. 1914d, 938. City cannot prohibit exercise of lawful trade by
excessive licence tax. People v. Hardis, 46 N. Y. S. 596: People v. Grant, 121 N. W. 300.
Complaint is insufficient because it does not allege peddling from railroad box car was at
retail. 21 R. C. L. 184.
LeRoy F. Pike, City Attorney, and E. F. Lunsford, of Counsel, for Respondent:
This court will not consider evidence upon petition for writ of habeas corpus. Ex Parte
Dixon, 43 Nev. 196; Ex Parte Davis, 33 Nev. 309.
Charter grants practically unlimited powers for municipal purposes. Ordinance does not
violate United States Constitution, Nevada Constitution, nor statutes.
Necessity for meeting expenses justifies taxing businesses. Fact that business in question
was included in definition of hawker or peddler is immaterial. Ex Parte Siebenhauer, 14 Nev.
365.
Peddler's mode of conveyance is immaterial. The Stella Black v. Richland, 25 La. Ann. 642;
Fisher v. Patterson, 13 Pa. St. 336; Gould v. Atlanta, 55 Ga. 678; 21 Cyc. 370.
Peddler and vendor of goods from box car are synonymous in Nevada law. 3 Rev. Laws, p.
3025.
City may fix license for revenue as well as for police regulation, and may even suppress
some businesses, such as peddling.
48 Nev. 120, 123 (1924) Ex Parte Noyd
regulation, and may even suppress some businesses, such as peddling. San Jose v. R. R. Co.
53 Cal. 481; 1923 Stats. 125; Rapp v. Kiel, 115 Pac. 651; R. R. Co. v. Hoboken, 41 N. J. L.
71.
Petitioner cannot complain that ordinance is discriminatory in regard to number of trucks
used, as he is not affected thereby. Ex Parte Sloan, 47 Nev. 109.
Penalty is within limits of state act for same offense and is therefore not exorbitant. 3 Rev.
Laws, p. 3024; 2 Rev. Laws, secs. 6285, 6808. Court can inquire into reasonableness of
penalty only when limitation is not fixed by statute or charter. 2 McQuillin Mun. Corp. sec.
720; City of Tarkio v. Cook, 41 Am. St. 683.
OPINION
By the Court, Ducker, C. J.:
Petitioner was arrested, tried, and convicted in the municipal court of the city of Reno
upon a complaint charging him with peddling from a railroad box car without procuring a
license as provided in section 2 of an ordinance of said city. He was sentenced by the court to
pay a fine of $300, and in default of the payment of the fine, or any part thereof, to be
confined in the city jail of Reno for a period of not to exceed one day for each one dollar of
said fine remaining unpaid but not to exceed six months' imprisonment. Petitioner was
remanded to the custody of the chief of police of said city, and upon the issuance of the writ
of habeas corpus from this court was admitted to bail pursuant to its order.
Section 1 of said ordinance reads:
Itinerant Hawkers and PeddlersFor the purpose of this ordinance itinerant hawkers and
peddlers are defined to be all persons traveling from house to house carrying meats, fruits,
vegetables or other farm products, dry goods, furs, groceries, cigars, tobacco and other
merchandise with them and selling and delivering the same at retail from a pack or truck,
automobile, wagon, or other vehicle, and all persons selling and delivering any of said goods
at retail from motor trucks, wagons or other vehicles or freight cars or at any place not a
fixed place of business in the city of Reno.
48 Nev. 120, 124 (1924) Ex Parte Noyd
delivering any of said goods at retail from motor trucks, wagons or other vehicles or freight
cars or at any place not a fixed place of business in the city of Reno. A fixed place of business
is defined to be a place of business located in a permanent structure in the city of Reno where
merchandise is sold direct to the consumer.
Section 2 reads, in part:
Any itinerant hawker or peddler or any person, firm, association or corporation, engaged
in the business of hawking or peddling in the city of Reno, except as hereinafter provided,
shall pay for and obtain a quarterly license to carry on such business as follows, to wit. (Next
following in said section are the several license fees based upon quarterly gross receipts.)
1. Petitioner contends that the ordinance is unconstitutional for several reasons. His first
contention is that section 1 seeks to enlarge the generally accepted meaning of the word or
words hawkers or peddlers and by so doing exceeded the power to regulate the same
delegated by the legislature to the city of Reno under its charter. We see no merit in the
contention that power has been exceeded in this respect. The intention to exact a quarterly
license from one selling and delivering any of the goods described in section 1 at retail from a
freight car is expressed. The power to so legislate by ordinance is amply delegated by the
fourth subdivision of section 10c, art. 12, of the charter act of the city of Reno, as amended by
the legislature of 1923, page 122, 1923 Stats. Power is given the city council, among other
things, in said subdivision, to fix, impose, and collect a license tax on and to regulate all
character of lawful trades, callings, industries, occupations, professions, and business
conducted in whole or in part within the city, including hawkers and peddlers, unless the
latter are dealing in their own agricultural products of this state: and in the seventh
subdivision of said section 10c:
To provide for the issuance of all licenses in this charter authorized, and to fix the amount
thereof and the time for, manner of, and terms upon which the same shall be issued.
48 Nev. 120, 125 (1924) Ex Parte Noyd
The business of selling and delivering goods from a freight car is a lawful business, and
the authority to require a license for conducting the same is therefore within the grant of
power in said subdivision. The intention to exercise the power granted might have been
expressed in some other way than by including it in a definition of hawkers and peddlers, but
the method employed is of no importance. So it is unnecessary to determine whether the
ordinance goes beyond the generally accepted meaning of those terms.
Our view is illustrated by the decision in Ex Parte Siebenhauer, 14 Nev. 365, 373. In that
case it appears that the board of aldermen of Virginia City was authorized by statute to fix
and collect a license tax on and regulate almost every kind of business or occupation that
might be carried on within the city limits, including merchants and solicitors. The
ordinance adopted under that authority designated as a solicitor every person or firm
engaged in the business of soliciting the purchase of goods, wares or merchandise within the
limits of the city of Virginia, to be sent to said city of Virginia from places beyond the limits
of said city, or upon orders to be filled elsewhere than in said city, and every person,
bargaining or selling any goods, wares or merchandise by sample or otherwise, in said city,
where the same are to be sent to said city from beyond its limits.
The majority of the court said:
It is unnecessary, in my opinion, for the purpose of deciding this case, to ascertain the
meaning of the word solicitors, as employed in the amended charter of Virginia City. It is
admitted that the petitioner is a traveling merchantthat is, he keeps a stock of goods in San
Francisco and comes to Virginia City for the purpose of soliciting orders. He carries on the
business of selling goods in Virginia City, and he is none the less a merchant doing business
there because he keeps his stock of goods in another state and travels about from place to
place. The charter empowers the city of Virginia to impose a license tax upon merchants, and
the class of persons described in the ordinance are merchants.
48 Nev. 120, 126 (1924) Ex Parte Noyd
merchants. It is of no consequence that the ordinance calls them solicitors.' If the city has
authority to tax them as merchants, it may call them by any name it pleases.
Under the view we take the cases cited and discussed by counsel for petitioner determining
the extent of the meaning of the words hawkers and peddlers are not in point.
2. The next contention is that the amount imposed for obtaining a license is unreasonable,
prohibitive, and confiscatory. As previously stated, the several amounts required by the
ordinance for a license to carry on business are fixed by section 2 of the ordinance, the
minimums as follows:
Those whose quarterly gross receipts are less than three thousand ($3,000) dollars, the
sum of three hundred ($300) dollars per quarter.
The maximum amount required is as follows:
Those whose quarterly gross receipts are over fifty thousand ($50,000) dollars, the sum of
$5,000 per quarter.
The charter of the city of Reno, as we have seen, empowers it to fix, impose, and collect a
license tax on and regulate all characters of lawful business. It provides also that in fixing
licenses the city council must as nearly as practicable make the same uniform in proportion to
the approximate amount of business done by the licensee, and further provides that in fixing
licenses the city council must have due regard for and be governed as far as possible by the
approximate amount or volume of business done by each person, firm, company or
corporation thus licensed. These provisions make it clear that it was intended to give the city
authorities power to license all kinds of business and occupations that might be carried on
within the corporate limits of the city for the purpose of revenue. The intent to delegate this
power may be inferred from the provisions of the charter requiring the license tax to be
imposed with reference to the volume of business transacted. If it was intended to restrict the
council's authority to granting licenses for carrying on the business and for police regulation,
the designation of the volume of business as a basis for a license tax would have been
unnecessary.
48 Nev. 120, 127 (1924) Ex Parte Noyd
regulation, the designation of the volume of business as a basis for a license tax would have
been unnecessary. This provision and the use of the term license tax leaves no doubt of the
nature of the power delegated. They clearly pertain to the taxing power of the state, and
authorize an occupation tax. The term license tax has been held to refer to this power. City
of Lamar v. Adams, 90 Mo. App. 35; San Jose v. S. J. & S. C. R. R. Co., 53 Cal. 475. In the
latter case the court said:
The charter of the city of San Jose, in defining the powers of the common council,
authorizes it, amongst other things, to license and regulate all and every kind of business
authorized by law, and transacted and carried on in said city, and to fix the rates of license tax
upon said business.' In construing a similar power conferred upon the board of supervisors of
the city and county of San Francisco, we said in Ex Parte Frank, 52 Cal. 606, when the
power conferred upon the corporation, as in this case, is to license and regulate callings and
occupations, a question has sometimes arisen in the courts, whether, under such a grant of
power, the corporation could exact license fees for purposes of revenue, or should be limited
to a sum reasonably sufficient to defray the expense of granting the license. (Dillon on Mun.
Corp. 291.) But the rule as stated by Judge Dillon is, that in construing the words of the grant
the whole charter and general legislation of the state respecting the subject-matter must be
consulted in order to determine whether by the terms license and regulate it was intended to
authorize licenses for purposes of revenue.' Tested by this rule, we held that the power to
license and regulate' occupations in San Francisco included the power to raise revenue for
municipal purposes by means of license fees; and the same rule of construction is applicable
to the power conferred on the common council of San Jose. Indeed, the charter itself
designates it as a license tax upon such business,' indicating clearly that it is a tax on the
occupation, and not merely a license to carry on the business.
In that case it was said that the power of the legislature of the state, under the constitution,
to tax occupations and to authorize municipal corporations to tax them was settled.
48 Nev. 120, 128 (1924) Ex Parte Noyd
occupations and to authorize municipal corporations to tax them was settled.
The power of the legislature of our state, under the constitution, to tax a business or
occupation is likewise settled (Ex Parte Robinson, 12 Nev. 263, 28 Am. Rep. 794; Ex Parte
Dixon, 43 Nev. 196, 183 Pac. 642), and the authority to delegate it to municipal corporations
cannot be questioned.
As the power delegated to the city of Reno includes the power to exact license fees as a
source of revenue, it cannot be tested by the rules applicable to a municipal corporation
clothed with power to license a business merely for the conduct thereof and police regulation.
The authorities cited by counsel for petitioner have reference to the cities where the
legislature grant was so restricted, or at least of doubtful intendment. On this subject, Judge
Cooley says:
It is perhaps impossible to lay down any rule for the construction of such grants that shall
be general, and at the same time safe; but, as all delegated powers to tax are to be closely
scanned and strictly construed, it would seem that when a power to license is given the
intendment must be that regulation is the object, unless there is something in the language of
the grant, or in the circumstances under which it is made, indicating with sufficient certainty
that the raising of revenue by means thereof was contemplated. Cooley Tax'n. (3d ed.) c. 19,
p. 1139.
As we have seen, the legislative intent to delegate the power to tax clearly appears, and the
authority to fix the amount thereof, and the time for, manner of, and term upon which a
license shall be issued, given to the city in the charter act. The only limitations as to the
amount are that the same must be uniform in proportion to the proximate amount of business
done by the licensee; and in fixing the same, due regard must be paid to the approximate
amount or volume of business done by the licensee. With these limitations the amount of the
license tax is left to the legislative discretion of the municipal authorities. The ordinance is
within the extent of the grant as thus limited, which is as far as our inquiry can extend in
a proceeding of this kind.
48 Nev. 120, 129 (1924) Ex Parte Noyd
extent of the grant as thus limited, which is as far as our inquiry can extend in a proceeding
of this kind. City of St. Paul v. Colter, 12 Minn. 49 (Gil. 16), 90 Am. Dec. 278.
The power to tax all of the property and business within this state, said the court in Ex
Parte Robinson, supra, is an essential attribute of its sovereignty, and there is no restraint
upon its exercise when within constitutional limits, except the responsibility of the members
of the legislature to their constituents.
While the license tax imposed seems to be large, we cannot say judicially, as a matter of
law, that it violates any constitutional principle in this respect.
3, 4. Petitioner's third ground of objection is directed to that portion of section 2 of the
ordinance which provides:
That if any person, firm, association or corporation has more than one person engaged in
the business of peddling, or uses more than one motor, motor truck, wagon or other vehicle is
said business of peddling, the foregoing license shall be paid for each of said persons, motor
trucks, wagons or vehicles used in said business, in accordance with the amount of business
each person, motor truck or vehicle does, but not less than the minimum schedule.
The objection is that this provision is discriminatory and imposes a double tax. Petitioner
is not in a position to urge this objection to the constitutionality of the ordinance. He was
charged with and convicted of peddling from a railroad box car without a license. It does not
appear that he had more than one person engaged in the business or used more than one
vehicle, or any vehicle for the purpose. One who is not injured by an ordinance cannot attack
its constitutionality. Ex Parte Sloan, 47 Nev. 109, 217 Pac. 233. He is in the same position as
to his fourth objection, which is grounded upon that portion of section 2 of the ordinance
which provides:
That the foregoing license schedule shall not be charged any person engaged in the
vending or peddling of what are commonly known as ice cream cones, hot dogs, candies,
tamales, nuts, Eskimo pies or like articles of food usually sold at carnivals or fairs, but
that the following schedule shall be paid for the same."
48 Nev. 120, 130 (1924) Ex Parte Noyd
of what are commonly known as ice cream cones, hot dogs, candies, tamales, nuts, Eskimo
pies or like articles of food usually sold at carnivals or fairs, but that the following schedule
shall be paid for the same.
Then follows the requirement of a license for such vending or peddling of $15 per quarter,
and $30 per quarter, graduated upon quarterly gross receipts.
5. It is urged that in this respect section 2 is discriminatory, and that the license fees
designated are not uniform upon the class upon which they are sought to be imposed. It
appears that petitioner has no license, and it does not appear that he was vending or peddling
any of the merchandise excluded from the regular schedule of license fees. He is therefor
uninjured in this respect.
The next objection is that the ordinance is discriminatory in that it does not include those
who walk from place to place and sell merchandise from a bag. This objection is untenable
for the reason that that portion of section 1 of the ordinance which reads, All persons
traveling from house to house carrying meats, fruit, etc., with them and selling and delivering
the same at retail from a pack, * * * means that class of peddlers. That it means peddlers
who travel on foot is obvious from the use of the phrase selling and delivering the same
from a pack.
6, 7. It is next contended that the penalty inflicted for the violation of the ordinance is
exorbitant and unreasonable. The penalty that might be imposed for a violation of the
ordinance is provided in the charter authorizing it. By the provisions of the charter fines,
forfeitures, and penalties may be prescribed for the breach of violation of any ordinance, or
the provisions of the charter, but no penalty shall exceed the amount of $500 or six months'
imprisonment or both such fine and imprisonment. Subdivision 5 of section 10i, Stats. 1923,
p. 130.
It is further provided that the payment of fines may be enforced by imprisonment in the
city jail at the rate of one day for every one dollar of said fine remaining unpaid.
48 Nev. 120, 131 (1924) Ex Parte Noyd
unpaid. Section 3, art. 14, Stats. 1905, p. 132. Pursuant to such authority, section 9 of the
ordinance provides that any one violating any of the provisions of the ordinance shall be
deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of not less
than $300 and not exceeding the sum of $500, and in default of the payment of the fine, the
court may order the defendant imprisoned in the city jail of the city of Reno one day for each
dollar of said fine remaining unpaid. It is thus seen that the penalty imposed by the ordinance
is within the limitations of express authority granted by the legislature. The reasonableness of
the penalty is therefor not open to inquiry. An ordinance cannot be declared unreasonable
which is expressly authorized by the legislature. Coal Float v. City of Jeffersonville, 112 Ind.
15-19, 13 N. E. 115. If it is expressly authorized by the legislature within constitutional limits
and is unreasonable and oppressive, the remedy lies with the legislature or city council.
In the case of Haynes v. Cape May, 50 N. J. Law, 55-57, 13 Atl. 231, 232, the court said:
There are circumstances under which the court will inquire into the reasonableness of
ordinances passed by a municipal body under legislative powers granted to it. Those
circumstances exist when the powers granted by the legislature are expressed in terms general
and indefinite. But where the legislature has defined the delegated powers, and prescribed
with precision the penalties that may be imposed, an ordinance within the powers granted,
prescribing a penalty within the designated limit, cannot be set aside as unreasonable.
In City of Tarkio v. Cook, 120 Mo. 1, 25 S. W. 202, 41 Am. St. Rep. 678, cited by counsel
for respondent, the principle is stated and applied. After quoting the language of the New
Jersey case hereinbefore set out, the court said:
An interference with the action of the city of Tarkio, in prescribing the penalty for the
violation of this ordinance, would set at naught the authority of the legislature to delegate the
power, and to prescribe the limit to the penalties that might be imposed.
48 Nev. 120, 132 (1924) Ex Parte Noyd
the penalties that might be imposed. If the authority had been granted in general terms to
impose a fine without fixing its limit, the courts might inquire into the reasonableness of that
fixed by the ordinance; but no such inquiry should be made where, as in this case, the
maximum of the fine imposed is within the prescribed limits of the charter.
See 1 Dillon, Mun. Corp. sec. 328, an 2 McQuillin, Mun. Corp. sec. 720, for statement of
this general principle.
Petitioner challenges the sufficiency of the complaint upon several grounds, namely: That
it is not alleged therein that the peddling was from a railroad box car at retail; that it does not
allege an offense against any ordinance of said city of Reno for the reason that no ordinance
exists in said city of Reno making it an offense for a hawker or peddler to sell merchandise
from a freight car. The last contention is disposed of adversely to petitioner by our ruling that
the city council had power under the charter to and did adopt a valid ordinance requiring a
license from one selling and delivering merchandise at retail from a freight car in the city of
Reno, fixing a valid penalty for the violation of the provisions of the ordinance. That one may
peddle, in the usual acceptation of the word, by selling and deliverying goods at retail from
a freight car, is obvious.
8. As to the objection that the complaint does not state any offense under the ordinance, in
that it fails to allege that the peddling from a box car was at retail, it must be remembered that
even after judgment a complaint will not be viewed with the same strictness on habeas corpus
as if tested by a demurrer or on appeal from the judgment. And again, that the common-law
rule of strict construction of complaints and indictments has been liberalized by force of
statute. Sections 208, 209, 622, Criminal Pr. Act. (Rev. laws, secs. 7058, 7059, 7472). By the
terms of said section 3 of the charter of the city of Reno, the practice and proceedings in said
(municipal) court shall conform as nearly as practicable, to the practice and proceedings of
justice's courts in similar cases."
48 Nev. 120, 133 (1924) Ex Parte Noyd
in similar cases. It is true the words at retail employed in the ordinance are omitted from
the complaint, but other words conveying the same meaning may be used: as permitted by
section 208, supra. And if the act or omission charged as an offense is clearly and distinctly
set forth in ordinary and concise language, without repetition, and in such a manner as to
enable a person of common understanding to know what is intended, it will be sufficient.
Section 209, supra. With these statutory rules, and the nature of this proceeding in mind, we
are of the opinion that the complaint which charges the petitioner with peddling from a
railroad box car without procuring a license is sufficient. To constitute peddling there must be
selling and delivering to customers. 21 R. C. L. 184. The use of the word peddling was
therefore sufficient to inform petitioner that he was charged with selling and delivering at
retail.
9. By the terms of section 1 of the ordinance, a freight car is not a fixed place of business.
So it having been alleged that the peddling was from a railroad box car, it was unnecessary to
allege that it was not a fixed place of business.
10. We are uncertain as to whether petitioner seeks to make a point as to the sufficiency of
the complaint from the fact that the term railroad box car is used therein instead of freight
car as employed in the ordinance. However, it is not likely that petitioner was misled by the
former term in the complaint.
The writ is dismissed.
On Petition For Rehearing
December 19, 1924.
Per Curiam:
Rehearing denied.
____________
48 Nev. 134, 134 (1924) State v. Clarke
STATE v. CLARKE
No. 2662
August 29, 1924. 228 Pac. 582.
1. Criminal LawTestimony that Prosecutrix Told Witness She Had Been Out Held
Harmless.
In prosecution for rape of female under 18 years, testimony that prosecutrix told witness the following
morning that she had been out, though immaterial, was harmless.
2. Criminal LawFailure to Object to Questions Until After Answer Precludes
Consideration of Admissibility on Appeal.
Failure to object to question eliciting improper testimony until after answer was given precludes
consideration of its admissibility on appeal.
3. Criminal LawMotion to Strike Answers Properly Denied Where No Objection to
Question Made.
Where defendant has opportunity to object to questions and remains silent, though any objection he
may have is apparent, motion to strike the answer is properly denied.
4. Criminal LawProsecutrix's Mother's Testimony as to When She Visited the Scene of the
Crime, Location, Etc., Held Admissible.
In Prosecution for rape of female under 18 years, prosecutrix's mother having testified, without
objection, to going in an automobile with her daughter to the scene of the crime, her testimony as to about
how long this was after the girl's testimony to her, and as to location of the place and what she saw there,
was admissible.
5. Criminal LawProsecutrix's Testimony Identifying Two Pieces of Cloth Found at Scene
of Crime Held Sufficient to Render them Admissible.
In prosecution for rape of female under 18 years, prosecutrix's testimony that, to the best of her
knowledge, two pieces of cloth, found at the scene of the crime, were those used by her and defendant
and thrown from defendant's automobile, held to render the cloth admissible; weight of the testimony
being for the jury.
6. WitnessesProsecutrix, Cross-Examined as to Inconsistent Statements on Former Trial,
Must Be Confronted with Record.
Prosecutrix, cross-examined as to inconsistent statements made on former trial of the case, must be
confronted with the stenographic record, and where counsel relied entirely on his memory, his questions
were properly excluded.
7. RapeWhether Prosecutrix Told Witness Two Weeks before Crime She Was Going Out
with Another Man Held Immaterial.
In prosecution for rape of female under 18 years, cross-question to prosecutrix whether she told Mrs.
S., about two weeks before the crime that she was going with a young man [not defendant] in a little
roadster, held immaterial, not tending to show another than defendant committed the crime, nor
unchastity of prosecutrix.
48 Nev. 134, 135 (1924) State v. Clarke
8. RapeReputation for Unchastity of Prosecutrix Under 18 Years is Immaterial.
In prosecution for rape of female under 18 years, being under the statutory age of consent, evidence of
unchastity or reputation for unchastity is immaterial.
9. Criminal LawStatement to Officers Held Not Inadmissible as Fragmentary.
In prosecution for statutory rape, defendant's statement to sheriff, after arrest, answering question whether
he did not ask a little girl to get into his car on a certain occasion, That isn't what I said to her; I have
nothing further to say until I see my attorney; held not inadmissible as a fragmentary statement.
10. Criminal LawPermission To Have Jury View Scene of Crime Was Discretionary.
In prosecution for rape of female under 18 years, court's permission to have the jury view the place of the
alleged offense in the custody of a sworn officer, with another appointed to show them the place, was
discretionary, under criminal practice act, sec. 341, especially in the absence of objection.
11. Criminal LawSuggestion to Court of Impropriety of Permitting View Not Equivalent to
Objection.
In prosecution for rape of female under 18 years, defendant's suggestion to the court that the jury should
not be permitted to view the scene of the alleged crime because there had been no preliminary proof that
surrounding conditions were the same, was not equivalent to an objection for purpose of review.
12. Criminal LawProsecutrix's and Mother's Testimony Identifying Place of Crime After
View by Jury Held Admissible.
In prosecution for rape of female under 18 years, testimony of prosecutrix that the deputy district
attorney, appointed by the court to point out the place when the jury was viewing the scene of the crime,
parked his car the same as defendant had, and that the place was the same, and testimony of prosecutrix's
mother, as to the place where she found pieces of cloth used as state's exhibits, with reference to the car,
held properly admitted to identify the place, and not objectionable as taking evidence out of court.
13. RapeTestimony as to How Defendant Was Dressed on Certain Occasion Held
Inadmissible to Discredit Prosecutrix's Testimony.
In prosecution for rape of female under 18 years, question to witness as to how defendant was dressed on
a certain occasion before the crime, to show defendant's custom of wearing an overcoat and discredit
prosecutrix's statement that he wore a sweater at time of crime, held properly excluded as directed to a
particular instance, instead of showing custom.
14. WitnessesCross-Examination of One Claiming To Be Defendant's Common-Law Wife
as to Exact Relations, as Bearing on Credibility, Held Proper.
In prosecution for rape, one claiming to be defendant's common-law wife, having testified to an alibi, the
state was entitled to cross-examine as to her exact relations with defendant, as bearing
on her bias, motives, and general credibility, and her former marriage; the subject
being volunteered by her.
48 Nev. 134, 136 (1924) State v. Clarke
entitled to cross-examine as to her exact relations with defendant, as bearing on her bias, motives, and
general credibility, and her former marriage; the subject being volunteered by her.
15. Criminal LawState's Argument that Testimony Was Not Denied Held Not Prejudicial
or Improper, as Commenting on his Failure to Testify.
Though defendant was only person present who could have denied testimony by officers as to his
incriminating remark, state's argument to the jury that there was no denial held not prejudicial, or in
violation of criminal practice act, sec. 311, as amended by Stats. 1915, c. 158, expressly prohibiting
instructions commenting on defendant's failure to testify, and impliedly prohibiting argument commenting
on it.
16. Criminal LawCourt's Oral Answer to Jury's Inquiry Why Defendant Did Not Testify
Held Not Reversible Error, in Absence of Objection.
Where the jury returned into court after retiring, and asked why the defendant did not testify, court's oral
answer, I cannot answer that question; * * * that is a right which they have under the constitution of this
state, etc., held not reversible error, in the absence of any exception or objection.
17. Criminal LawOral Instructions, by Consent of Parties, are Proper.
Oral instructions may be given by mutual consent of the parties.
18. Criminal LawException to Oral Instructions, Given Without Consent of Parties, and
Grounds Thereof, Must Be Brought to Court's Attention.
Oral instructions, given without consent of the parties, though improper, are not deemed excepted to,
unless exception and grounds therefor are brought to court's attention.
See (1, 2, 3, 4, 5, 16, 17, 18) 16 C. J. sec. 1046, p. 547, n. 22; sec. 1222, p. 618, n. 17; sec. 1263, p. 634, n. 17;
sec. 2090, p. 826, n. 94; sec. 2195, p. 874, n. 99, 3; sec. 2206, p. 881, n. 83, 84; sec. 2250, p. 904, n. 73;
sec. 2286, p. 926, n. 64; sec. 2467, p. 1031, n. 95; p. 1032, n. 97; 17 C. J. sec. 3332, p. 62, n. 89 (new);
sec. 3333, p. 64, n. 3; sec. 3345, p. 80, n. 77; p. 81, n. 78; sec. 3662, p. 317, n. 10; (5) 22 C. J. sec. 693, p.
599, n. 29; (6) 40 Cyc. p. 2656, n. 11; p. 2732, n. 74, 75, 76; p. 2733, n. 77, 78; (7) 33 Cyc. p. 1477, n. 64
(new); p. 1481, n. 82; p. 1482, n. 88 (new).
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Robert Clarke was convicted of having carnal knowledge of a female child under 18 years
of age, and he appeals from judgment and order denying a new trial. Affirmed. Rehearing
denied.
48 Nev. 134, 137 (1924) State v. Clarke
Frane & Raffetto, for Appellant:
Declarations of prosecutrix as to circumstances of alleged assault made on following and
later days are not admissible on direct examination. They are not part of res gestae, are
self-serving and hearsay. Only permissible question would be categorical one as to whether or
not she stated she had been assaulted. In Re Kelly, 28 Nev. 491; State v. Campbell, 20 Nev.
122.
It was error to admit fragmentary answer of defendant to trick question of officers that That
is not what I said to her, the record showing answer was not completed and was in fact no
statement at all. Underhill on Criminal Evidence, 182.
District attorney in his argument referred to statements imputed to defendant as having
been made to officers and stated that such statements were not denied, thus by innuendo
referring to defendant's failure to testify in his own behalf. That this had prejudicial effect is
shown by fact that a juror, after many hours of deliberation, requested of court information as
to why defendant had not testified. It was error for trial judge to give oral instruction to this
question, not asked for or consented to by defendant's counsel.
Court erred in admitting rags in evidence which were not properly identified or property
connected with alleged crime.
Court erred in sustaining objections to questions of defendant's counsel on
cross-examination, tending to show domination over prosecutrix by her mother, her insistence
on prosecution, and her probable compulsion of prosecutrix's identification of defendant.
Court erred in excluding evidence of contradictory statements of prosecutrix, as to her
relations with other men, at former trial merely on ground record was not produced. If she had
answered in negative, it would have been necessary merely to produce record to ascertain the
facts.
Permitting jury to view scene of alleged crime where stage was set and alleged
transactions reproduced was error, in effect taking evidence out of court and actually
demonstrating prosecution's theory of case.
48 Nev. 134, 138 (1924) State v. Clarke
demonstrating prosecution's theory of case. Presence of other persons than one delegated
to accompany jury was also error. Crim. Prac. sec. 341; State v. Lopez, 15 Nev. 407.
It was error to exclude evidence of defendant's customary mode of dress about time of alleged
crime, since his identification depended very largely upon clothes he wore when identified,
which were entirely different from those worn about time of alleged crime.
The cross-examination of witness by juror showed his knowledge of and prejudice against
parties which he disclaimed on voir dire. Facts evidently within his knowledge showed bias,
and evidence elicited was incompetent, not cross-examination, and prejudicial.
Court erred in permitting such wide cross-examination of defendant's wife, which was simple
attempt to destroy her testimony by collateral attack on matters entirely disconnected with
case. State v. Wilson, 39 Nev. 308.
M. A. Diskin, Attorney-General; Thos. E. Powell, Deputy Attorney-General; L. D.
Summerfield, District Attorney; and H. L. Heward, Assistant District Attorney, for the State:
Defense in this case is alibi. If defendant did not say to prosecutrix what sheriff misquoted
him as saying, what did he say? If he said anything, there is no alibi.
No corroboration is necessary in case of this kind.
As no evidence was introduced of a complaint alleging the crime, none of cases cited by
counsel on this point applies. Such testimony as was given was either preliminary, given
without objection or motion to strike, or negative.
It was not necessary to have rags positively identified. 22 C. J. 597-8. Identification
equivalent to best opinion is sufficient. Thornton v. State, 113 Ala. 43.
Objections to questions as to prosecutrix's former statements of fear of her mother was
properly sustained, since record of former trial was not used. 40 Cyc. 2732. 1 Wharton Crim.
Evi. (10th ed.)999; Tonopah Lumber Co. v. Riley, 30 Nev. 312. Defendant's counsel did not
object to inspection of premises.
48 Nev. 134, 139 (1924) State v. Clarke
Defendant's counsel did not object to inspection of premises. No evidence was taken
during inspection. Method used is similar to diagram showing various objects and locations,
which is admissible.
Evidence that certain clothing was worn at particular time is not probative that similar
clothing was worn at another time. 22 C. J. 744. No attempt was made to show continuous
custom that would bring such evidence within rule. 22 C. J. 748.
Cross-examination of Mrs. Clarke as to whether she was actual wife of defendant was
proper to show bias and credibility.
Prosecuting attorney in analyzing testimony may state that certain evidence is
uncontradicted, though defendant is only person who can contradict it. Rev. Laws, 7161, as
amended 1915 Stats. 192, is intended merely to prevent impugning defendant's motive in not
testifying. People v. Sutherland, 210 Pac. 965; State v. Hasty, 96 N. W. 1115.
Court was compelled to answer, and juror was entitled to be informed, as to why defendant
did not take stand, it being on a point of law. The information was given as required by
statute (Rev. Laws, 7207, 7456). As remark of court favored defendant, no prejudicial error
was, in any event, committed. Only written instructions are deemed excepted to. No objection
was made nor exception taken. State v. Clark, 36 Nev. 472; Rev. Laws, 7161, as amended
1915 Stats. 192; Sturgis v. State, 102 Pac. 71; State v. Williams, 220 Pac. 555.
No prejudicial error appearing in record, judgment should be affirmed. Rev. Laws, 7469.
OPINION
By the Court, Ducker, C. J.:
The defendant was convicted of the statutory crime of having carnal knowledge of a
female child under 18 years of age. He appealed from the judgment and order denying his
motion for a new trial.
1. Objection is taken to the statement of a witness for the prosecution, Mrs. Oliver, who
was asked the following question with reference to the prosecutrix:
48 Nev. 134, 140 (1924) State v. Clarke
following question with reference to the prosecutrix:
Did she make a statement the following morning to you as to where she had been?
The witness answered:
Yes, she told me she had been out.
This declaration of the prosecutrix, standing alone, was immaterial, but entirely harmless.
2, 3. Objection is also taken to certain parts of the testimony of the mother of the
prosecutrix as to declarations made by the latter to the former a short time after the
commission of the offense charged. An examination reveals that no objection was interposed
to any of the questions which elicited the testimony complained of until after the answers
were given. We therefore decline to consider the point of admissibility sought to be raised
here. No motion to strike the answers was made, and, if such had been made, a denial of the
motion would not have been error, for the reason that it does not appear that any objection
which defendant may have had to the questions and responses thereto was not apparent when
the questions were asked, and for the further reason that it does not appear from the record
that the answers were made before counsel had an opportunity to interpose his objection. A
defendant cannot wait, trusting that the answer of a witness will be harmless or favorable, and
then be heard to object when the answer is not to his liking. In the case of People v.
Scalamiero, 143 Cal. 343, 76 Pac. 1098, the defendant was convicted of an assault with intent
to commit rape upon a girl of 11 years of age. The same point was considered and determined
in that case, and concerning it the court said:
Many objections were interposed by counsel for appellant to questions propounded to
witnesses on behalf of the prosecution and overruled by the court, and such rulings are
assigned as error. With singular uniformity, however, counsel, except in a few instances,
interposed his objections after the answers were given. In no instance does it appear that any
of such questions were answered before counsel had an opportunity to object.
48 Nev. 134, 141 (1924) State v. Clarke
object. Under such circumstances it needs neither discussion nor citation of authorities to the
proposition that objections and exceptions so taken are unavailing. A party cannot hazard
whether the reply of a witness to an objectionable question will be favorable or unfavorable
to him, and when it appears unfavorable then object to it. He must object when the question is
asked and before the answer is given, and if he does not, he waives his right to complaint of
the admission of the testimony under the answer.
In disposing of the question we do not wish to be understood as intimating that a case
might not arise in which an appellate court would properly feel that it was its duty to set aside
a verdict of conviction and to grant a new trial for errors committed by the trial court,
resulting in an unfair trial of the defendant, although no objection or exception was made or
taken to the improper admission or exclusion of evidence, because of the mistake or
misconduct, neglect, or incompetency of his counsel. No such case is before us.
4. Defendant complains of the testimony of the mother of the prosecutrix as to the latter
going with her in an automobile to a spot outside of the city limits where the daughter
claimed the crime was committed. No objection was taken to the question until after the reply
was made. Later counsel for defendant interposed a timely objection to the question:
About how long after the girl had described this spot, after the girl had made the
statement to you, was it that you went out there?
There was no error in allowing an answer to this question or in admitting subsequent
testimony of the witness as to the location of the spot and what she saw there.
5. The witness identified two pieces of cloth marked State's Exhibit A as having been
found there by her on this occasion. Error is predicated upon the admission in evidence of
these pieces of cloth. The prosecutrix testified as to their use by the defendant and herself at
the place, and that the cloth had been thrown out of the automobile.
48 Nev. 134, 142 (1924) State v. Clarke
the automobile. The exhibit was material under the testimony concerning it, but it is insisted
that its identification by the prosecutrix was insufficent. The prosecutrix testified that, to the
best of her knowledge, these pieces of cloth were used on the night in question. This was a
sufficient foundation for their admission in evidence. The weight of the testimony as to their
identification was for the jury. 22 C. J. pp. 597, 598; State v. James, 194 Mo. 268-277, 92 S.
W. 679, 5 Ann. Cas. 1007; State v. Clark, 27 Utah, 55, 74 Pac. 119.
6. The trial court sustained objections by the state to several questions asked of the
prosecutrix on cross-examination by counsel for the defendant. The objections were properly
sustained in each instance. There had been a former trial of this case in the same court in
which the prosecutrix had testified. By the questions propounded it was sought to show, for
the purposes of impeachment, that on such former trial she had testified differently in some
respects from her direct testimony in this case. Her former testimony had been taken down by
a stenographer appointed by the court and was within the reach of counsel for the defense.
The rule of fairness required that on asking such questions she be confronted with the record
of what was claimed to be her inconsistent statements. This could have been done either by
securing a transcription of the same from the stenographer or by having him or her read them
to the witness. But counsel relied entirely upon his memory in propounding the questions. His
memory may have been faulty. The witness was entitled to read, or have the alleged
inconsistent statements read to her, from the record. The rule is too well established to require
the citation of specified decisions. In 40 Cyc. p. 2732, it is thus stated:
In order to properly lay the foundation for impeachment of a witness by a statement
which was made in writing by him or has been reduced to writing by himself or another, the
writing containing such statement must be produced and shown or read to him before he is
interrogated concerning whether or not he made it; and this principle applies to testimony
which was given by the witness before an examining court or magistrate, or at a former
trial of the case.
48 Nev. 134, 143 (1924) State v. Clarke
the witness before an examining court or magistrate, or at a former trial of the case. * * *
7. Counsel assigns as error the ruling of this court in sustaining an objection to the
following question asked by him on his cross-examination of the prosecutrix.
Did you not tell her [Mrs. Stoddard], shortly after you went to Mrs. Oliver's, and about
two weeks before this occurrence, that you were going out with a young man in a little
roadster?
8. The question was immaterial and properly ruled out. If the prosecutrix had answered in
the affirmative, the reply would have had no tendency to show that some one else committed
the crime charged, which was the avowed purpose of the question. Nor could such an answer
have tended to prove unchastity or reputation for unchastity, and, even if it had, the answer
would have been immaterial in this case, as the prosecutrix was under the statutory age of
consent.
9. Defendant assigns as error the ruling of the court in admitting in evidence an admission
made by him in the presence of the district attorney, sheriff, and chief of police when he was
in custody the day after he had been charged with the crime. The admission was testified to
by the officials named, and admitted over defendant's objection. To show its materiality it
will be necessary to state briefly some of the circumstances concerning the commission of the
offense as sworn to by the prosecutrix. Defendant sought to prove an alibi as his defense.
Prosecutrix was 14 years of age. She testified that on the night when the defendant made the
assault upon her she was living with a woman by the name of Mrs. Oliver, whose residence
was at 143 Stevenson Street. Earlier in the evening she had been at the Young Women's
Christian Association and left there for the place where she was living at about 9 o'clock,
going on Virginia Street, and then west on the left side of Second Street to the vicinity of the
Catholic Church. Here the defendant drove up in a red Nash car. She testified:
So then he told me to get in the car, and I wouldn't do it, and he asked me where I was
going. I said I was going home. He told me to get in the car and he would take me home.
48 Nev. 134, 144 (1924) State v. Clarke
take me home. I wouldn't do it. So then he said he knew my mother, and I asked him who my
mother was. He said she was the one with the little red Nash car. Then he told me to get in
and he would take me home. So I got in, and instead of taking me home he put me out on the
road.
The witness then proceeded to relate how the defendant took her in the car out of town a
distance of 2 3/10 miles from the place where she got in the car to the spot where he assaulted
her. At the time of the admission claimed to have been made by the defendant in the presence
of the officers named, as appears from their testimony, the sheriff said to him, as follows:
I said to Mr. Clarke that he was arrested on a charge of rape and any statement he might
make at this time could be used against him in the trial. He said he did not know anything
about the case. I says to Mr. Clarke; I says, Didn't you, in the latter part of February, one
evening about 9 o'clock, drive your automobile up to the curb near the Catholic Church and
say to a little girl, Come on; get in; your mother sent me for you?' Mr. Clarke answered, he
said, That isn't what I said to her.' He says, I have nothing further to say until I see my
attorney.'
The testimony of the district attorney and the chief of police as to what was said on this
occasion by the defendant is the same as that of the sheriff. In view of the defense of an alibi
made by the defendant, the relevancy of this admission is obvious. The effect of the
admission is that he said something of a different nature to the girl, and was therefore the man
who she said invited her into the automobile and took her out of the city. The weight of this
admission was, of course, for the jury, in connection with all the other evidence in the case. It
was not contended that the admission was involuntary, but it is insisted that it is an
incomplete statement, and therefore inadmissible, under the rule stated in Underhill on
Criminal Evidence, as follows:
To allow the introduction of fragments of a conversation, admitting those indicative of
the prisoner's criminality and suppressing others which, by limiting or modifying the
former, may establish his innocence, is utterly inconsistent with all principles of justice
and humanity."
48 Nev. 134, 145 (1924) State v. Clarke
criminality and suppressing others which, by limiting or modifying the former, may establish
his innocence, is utterly inconsistent with all principles of justice and humanity. Page 283,
second edition.
We appreciate the force and justice of the rule but do not perceive the application here.
The officers testified all the defendant said was: That isn't what I said to her. I have nothing
further to say until I see my attorney. This was a complete statement, conditioned only upon
the proposition that the defendant might add to it upon advice of counsel. A reservation
which was not acted upon, so far as the record discloses. There was no error in the ruling of
the court in favor of its admissibility.
10, 11. It is contended that the court committed prejudicial error in permitting the jury to
view the place where the crime was alleged to have been committed, for the reason that the
inspection of itself could afford no information to the jury, and that no foundation was laid by
the prosecution to show that the conditions were the same as at the time of the commission of
the alleged offense. It was within the discretion of the court, under section 341 of the
Criminal Practice Act (Rev. Laws, sec. 7191), to permit the jury in a body to view the place
in which the offense was charged, in the custody of an officer sworn in accordance with the
statute, and to appoint a person to show the place to them. Moreover, it does not appear that
defendant's counsel made any objection to this procedure. He suggested to the court that there
had been no preliminary proof to show that the conditions surrounding the place were the
same as at the time of the occurrence, but a suggestion cannot be considered an objection.
12. On the resumption of the trial after the jury had viewed the place, the prosecutrix was
recalled by the state and testified that the deputy district attorney, when the jury was taking
the view, parked his car in the same manner, about in the same position, that the defendant
parked his car on the night in question, and that the particular spot which the jury viewed was
the same spot to which defendant took her on that night.
48 Nev. 134, 146 (1924) State v. Clarke
spot to which defendant took her on that night. The mother of the prosecutrix was recalled,
and testified as to the place where she had formerly found the pieces of cloth with reference
to the car. The reception of this testimony is assigned as error, on the ground that it was
equivalent to taking evidence out of court, and amounted to a demonstration of the state's
theory of the case in violation of the statute mentioned. We think the contention is
groundless. The statute empowers the court, in its discretion, to permit the jury to view the
place in which the offense is charged to have been committed, or in which any other material
fact occurred. As said in State v. Hartley, 22 Nev. 342, 40 Pac. 372, 28 L. R. A. 33:
A view of the premises is not taking evidence in the case. It is means provided by the
statute to enable the jury more satisfactorily to weigh the evidence given in court.
The parking of the car on the spot and in the position in which the prosecutrix testified that
defendant parked his car would enable the jury more satisfactorily to weigh the evidence in
court, for the offense was not claimed to have been committed on the ground at the spot, but
in the automobile. There is no evidence in the case contradicting the testimony of the
prosecutrix in this respect. Conditions were made the same, which counsel for defendant
suggested to the court might be changed. Defendant and his counsel were either there or had
an opportunity to be there. The presence of the deputy district attorney and his parking the car
in the place is not significant, for he was the person appointed by the court to point out the
place to the jury, and his action more effectively performed that duty. The pieces of cloth
testified to were material facts in the case and the jury was entitled to view the places where
they were found. The effect of the testimony of the prosecutrix and her mother was merely to
identify the place where the offense was charged to have been committed and where the
pieces of cloth were found, and was not in violation of the statute.
48 Nev. 134, 147 (1924) State v. Clarke
The case of State of Nevada v. Lopez, 15 Nev. 407, cited and quoted from by defendant, is
not in point. In that case it appeared, as stated by the court, that when the jury arrived at the
premises they were sent to inspect, they found there a person named Chris Walsh, who was
never even sworn as a witness in the case, and who, in response to questions addressed to him
by members of the jury, pointed out to them all the special features of the premises. In view
of the theory of the prosecution and the defense, the court thought it was probable the jurors
inquired as to the room where the homicide occurred and the place where the other persons
slept, and that their inquires as to these particulars were answered by Walsh. Whether the
answers were correct or incorrect cannot be known, said the court. They may have been
false and extremely prejudicial to the defendant, but whether they were or not makes no
difference. It cannot be denied that the jury received material and vitally important evidence
out of court from a witness who was not sworn, who was not confronted with the defendant,
and as to whom there was no opportunity of cross-examination. Such is not the case here.
The jurors asked no questions of persons present at the scene, nor can it be said that any
information was volunteered to them by the physical act of the assistant district attorney,
which amounted to taking evidence out of court. The prosecutrix and her mother were both
witnesses sworn in the case, and full cross-examination was allowed.
13. There was no error in the ruling of the court in sustaining objections of the state to
certain questions asked of Tony Pecetti, a witness for the defense. The questions related to the
wearing of an overcoat by the defendant on a certain occasion in Carson, when the witness,
who is a musician, was playing for a dance there. To the first question in this respect, which
was ruled out, the witness could fix no definite date when he saw the defendant in Carson.
The second question to which objection was sustained was:
You may state to the jury, at the time you saw the defendant, about the 27th day of
February last, how he was dressed?"
48 Nev. 134, 148 (1924) State v. Clarke
defendant, about the 27th day of February last, how he was dressed?
The purpose of the question, as stated by counsel for the defendant, was to show that the
usual manner and custom of the defendant about the time of the commission of the alleged
offense was to wear an overcoat, for the purpose of throwing light on the probability or
improbability of his being dressed in a sweater, as testified to by the prosecutrix. Conceding,
without deciding, that the defendant's customary mode of dress may have been shown under
the circumstances of this case, as bearing upon the question of the prosecutrix's identification
of him, the question was directed to a particular instance and had no tendency to prove
custom. It was properly ruled out.
14. The court did not abuse its discretion in the latitude allowed the state on the
cross-examination of Margery Clarke. She was defendant's principal witness as to the defense
of an alibi interposed by him, and claimed to be his common-law wife. The state was entitled
on cross-examination to inquire as to her exact relations with the defendant as bearing upon
her bias motives and general credibility. The questions relating to a former marriage were not
improper. The subject was volunteered by the witness. No objection was interposed to the
questions complained of, which were asked of this witness by one of the jurors.
15. The assistant district attorney, in his argument to the jury referring to the admission
made by the defendant as testified to by the officers, said:
Now, gentlemen, I want to urge upon you that Clarke made that remark, and he said,
That isn't what I said to her.' You know Summerfield, you know Hillhouse, and you know
Kirkley. Are they the type of men that are going to lie? And, gentlemen, if they were going to
lie to you, why not pad the story a bitwhy not put in a few details? Oh, if they were going
to tell you a phony story, gentlemen, how simple, how easy, to get together on some other
remark that Clarke had made. But the fact is he was caught unawares. He made that remark,
realized that he had put his foot in it, and shut up like a clam, and, gentlemen of the jury,
there is not the slightest denial before you of that remark."
48 Nev. 134, 149 (1924) State v. Clarke
realized that he had put his foot in it, and shut up like a clam, and, gentlemen of the jury,
there is not the slightest denial before you of that remark.
An exception to the last remark was taken by counsel for the defendant. A few moments
later the assistant district attorney said:
Put it this way: We have got three witnesses, three able, reputable witnesses to tell you
that remark was made, and there is no denial of that remark presented to you.
An exception was again taken by defendant's counsel. The remarks of counsel for the state
are assigned as misconduct prejudicial to the defendant. The defendant did not take the stand
as a witness in the case. In this regard, section 311 of the Criminal Practice Act, as amended
by Stats. 1915, p. 192, provides:
Nothing herein contained shall be construed as compelling any such person to testify. No
instruction shall be given relative to the failure of the person charged with the commission of
crime or offense to testify, except, upon the request of the person so charged, the court shall
instruct the jury that, in accordance with a right guaranteed by the constitution, no person can
be compelled, in a criminal action, to be a witness against himself.
As the statute expressly prohibits the court from instructing the jury, relative to the failure
of a person charged with crime, to testify, except upon request of the person so charged, it
impliedly prohibits the state's attorney from commenting on such failure in his argument to
the jury. It is apparent from the remarks of the assistant district attorney that there was no
direct reference to the failure of the defendant to take the stand as a witness and deny making
the admission attributed to him. But his counsel contends that, as there were only three
persons present besides the defendant when the admission was made as testified to by such
witnesses, the only person who could have denied it was the defendant, and therefore, the
remarks made to the jury were a direct reference to his failure to testify, which is equally
obnoxious to the statute.
48 Nev. 134, 150 (1924) State v. Clarke
which is equally obnoxious to the statute. The jurors had probably observed that the
defendant did not testify; so, even though the effect of the remarks may have directed the
attention to this fact, we fail to see how he could have been prejudiced by it. Moreover, the
assistant district attorney was within his rights. The statute is designed to prevent the jury
from drawing an unfavorable inference from the fact that a defendant does not testify in his
own behalf; but it does not go so far as to take from a prosecuting officer his right to
comment upon all or any part of the testimony, and draw such inferences therefrom as may
tend to show its truth or falsity. He may draw any legitimate inference towards that end.
As said by the court in State v. Harrington, 12 Nev. 125:
All circumstances which it is proper for the jury to consider it is proper for counsel to
comment upon.
It was certainly proper for the jury, in determining whether the defendant made the
admission attributed to him, to consider that three witnesses had testified that he did, and that
their testimony was not contradicted. This was as far as the assistant district attorney went in
his argument on this phase of the testimony. The same point was raised in Clinton et al. v.
State, 56 Fla. 57, 47 South. 389. On this phase of the case the court said:
Objections were taken to the argument of counsel to the jury to the effect that certain
testimony was uncontradicted, or stood uncontradicted and undenied, as a comment upon the
failure of the accused to become a witness, based upon the fact that the testimony was as to
private conversations between the witness and the accused. We are cited to cases holding, in
substance, that the state will not be permitted to argue by innuendo that the defense could
have taken the stand and denied the testimony; but no such showing is made here. The
preexisting right of the state to argue the character of the evidence adduced by it had not been
taken away by the statute permitting the accused to be a witness and forbidding the state to
comment upon his failure to accept that privilege.
48 Nev. 134, 151 (1924) State v. Clarke
and forbidding the state to comment upon his failure to accept that privilege. The state still
has the right to direct the attention of the jury to that portion of the evidence as to which there
is conflict and to that portion which is without conflict. Testimony may in a sense be
contradicted in various ways, as by inherent improbability, by cross-examination, or by the
demurrer of the testifier. So long as the state does not exercise its preexisting right, so as to
make it directly or covertly a comment upon the failure of the accused to voluntarily become
a witness, the law is not violatedciting cases.
The same view has been taken in a number of cases collected in respondent's brief. State v.
Hasty, 121 Iowa, 507, 96 N. W. 1115; State v. Smokalen, 37 Wash. 91, 79 Pac. 603; People
v. Paisley, 299 Ill. 576; 132 N. E. 822; People v. Sicks, 299 Ill. 282, 132 N. E. 573; State v.
Krittenbrink (Iowa), 192 N. W. 157; People v. McNamara (Cal. App.), 224 Pac. 476; People
v. Sutherland, 59 Cal. App. 462, 210 Pac. 965.
16. The jury returned into court after it had retired to deliberate upon the case, and one of
the jurors asked the court why the defendant was not put upon the witness stand. To this
question the court replied:
I cannot answer that question. That is a right which they have, and that is not supposed to
be held against anybody. It is a right which they have under the constitution of this state. If
that is all, it is well to vacate, and the defendant will be remanded to the custody of the
officer, and the officer will take charge of the jury.
17, 18. Appellant contends that this statement of the court constitutes reversible error,
firstly, in that it is an oral instruction, and the record does not show affirmatively the consent
of the defendant to the giving of an oral instruction; and, secondly, in that it was in violation
of the statute hereinbefore quoted, as no instruction upon the subject of the defendant's failure
to testify had been requested by him. An answer to each of these objections is that no
exception was taken to the statement of the court. We need not decide whether the statement
complained of amounted to an instruction.
48 Nev. 134, 152 (1924) State v. Clarke
It was oral. Oral instructions may be given by the mutual consent of the parties, but are not
deemed excepted to when given without such consent. An exception and the ground thereof
should have been brought to the attention of the trial court at the time the statement was
made. State v. Clark, 36 Nev. 472-485, 135 Pac. 1083.
For the same reasons, the question sought to be raised by defendant that the reply of the
court to the juror was in violation of the statute, concerning the failure of the defendant to
testify, because no instruction on this point had been requested by defendant, is not properly
before the court. A careful consideration of all the evidence convinces us that the defendant
received a fair trial and that there is sufficient evidence to justify the verdict.
The judgment is affirmed.
On Petition For Rehearing
November 12, 1924.
Per Curiam:
Rehearing denied.
____________
48 Nev. 153, 153 (1924) McLaughlin v. McLaughlin
McLAUGHLIN v. McLAUGHLIN
No. 2665
August 30, 1924. 228 Pac. 305.
On Motion For Allowance
1. Divorce$50 Per Week Held Necessary for Support and Maintenance of Wife Pending
Final Disposition of Cause.
In an action for divorce, $50 per week held necessary for support and maintenance of wife pending
final disposition of cause by appellate court.
See 19 C. J. sec. 532, p. 223, n. 61; sec. 533, p. 224, n. 83.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Action by James McLaughlin against Belle Stanton McLaughlin. Judgment for plaintiff,
and defendant appeals. On defendant's motion for allowance of certain sums to enable her to
prosecute appeal. Motion granted.
Cooke, French & Stoddard, for Appellant.
Sardis Summerfield, for Respondent.
OPINION
By the Court, Ducker, C. J.:
Appellant has perfected her appeal from an order of the Second judicial district court
denying her motion for a new trial, and has made a motion in this court for the allowance of
certain sums to enable her to prosecute said appeal. The notice of motion included a
statement of amounts necessary for estimated expense of three copies of transcription of oral
testimony adduced and depositions admitted in evidence on the trial of the action; for fees of
her counsel on appeal; for paying fees of the clerk of the supreme court and incidental costs
and expenses to be incurred in connection with the taking of said appeal; and for paying $50
per week (instead of and in lieu of $32 per week under the existing order of the trial court) for
the support and maintenance of defendant pending the final disposition of said cause by this
court, and which payments are to be made weekly and to continue until terminated by law.
48 Nev. 153, 154 (1924) McLaughlin v. McLaughlin
made weekly and to continue until terminated by law.
Upon the hearing of the motion counsel for the parties stated that all sums so claimed by
appellant as necessary for the purposes mentioned had been agreed upon, except the sum of
$50 per week for her support and maintenance. Consequently the controversy is limited to
this item.
It appears from respondent's affidavit admitted on the hearing of the motion that the lower
court decided he was entitled to a divorce; that he was worth not more than $40,000; that
appellant was entitled to $20,000 as her portion of property; that the trial court withheld
making a minute order granting a decree of divorce until the $20,000 was paid to the clerk of
the court; that on February 25, 1924, respondent, in open court, tendered to appellant
$19,712, being the sum of $20,000, less deductions therefrom at that time authorized by the
orders of said court to be made, in full satisfaction of the judgment order in appellant's favor
and against respondent; and that at that time and place appellant refused to accept the same.
In his affidavit he avers that he is worth less than $40,000, the amount found by the court.
Appellant, in her affidavit, states that respondent is worth very much in excess of $40,000,
and asserts as her belief that he is worth one-half million of dollars, or more. What
respondent is actually worth within these limitations has little or no bearing on the question as
to what amount is necessary for her support and maintenance pending the determination of
her appeal. Enough appears to show that he is able to pay the weekly amount claimed as
necessary. The only question is: Is the sum of $50 per week necessary for her support and
maintenance?
It appears from her affidavits that she is physically unable to earn money, and that she has
no means other than such moneys as she is receiving from the respondent under the existing
order of the court. That this sum is not sufficient for her support and maintenance is fairly
shown from her affidavits, which are not contradicted in this respect, and under the showing
made we think that $50 per week is a proper sum to be allowed for such purposes.
48 Nev. 153, 155 (1924) McLaughlin v. McLaughlin
we think that $50 per week is a proper sum to be allowed for such purposes.
As counsel for the parties have agreed upon the sums of $360, $750, and $40, respectively,
for the expense of three copies of oral testimony adduced and depositions admitted in
evidence on the trial of the action, for fees of appellant's counsel on appeal, and for paying
fees of the clerk of the supreme court and incidental costs and expenses to be incurred in
connection with the taking of said appeal, these sums are also ordered to be paid by
respondent to appellant for the purposes mentioned.
In case the judgment for a divorce is not reversed on appeal, or money judgment in her
favor is not substantially modified adversely to her, the sums allowed to her for her support
and maintenance should be deducted from the amount paid to her in satisfaction of said
judgment.
It is so ordered.
On Merits
August 5, 1925. 238 Pac. 402.
1. DivorceIf Spouse Using Morphine is Guilty of Indignities which Render Condition of
Injured Spouse Intolerable, Such Acts Constitute Extreme Cruelty, though No Physical
Violence Inflicted.
Though habitual, excessive, and intemperate use of morphine standing alone does
not constitute extreme cruelty, if spouse using drug is guilty of cruelties and indignities
which render condition of injured spouse intolerable, ultimately destroying legitimate
ends and objects of matrimony, such acts and conduct constitute extreme cruelty,
although no physical or personal violence is inflicted, threatened, or apprehended.
2. DivorceThere Is No Interlocutory Decree of Divorce in Nevada Practice.
There is no interlocutory decree of divorce in Nevada practice.
3. DivorceCauses of Action in Complaint Held Not Res Judicata, Because of Interlocutory
Decree of Divorce in Court of Another State, Where Defendant Had Voluntarily and
With Leave of Court Discontinued Her Petition in Such Court.
Where, in action for divorce, it appeared that wife, suing for divorce in Rhode
Island, had voluntarily and with leave of court discontinued suit after interlocutory
decree for divorce, held, causes of action in husband's complaint were not res judicata,
since wife's dismissal of divorce suit carried whole case out of court.
48 Nev. 153, 156 (1924) McLaughlin v. McLaughlin
4. WitnessesExclusion of Cross-Examination of Plaintiff in Divorce Suit, as to Whether He
Owned Property in State of Original Domicile, Held Error.
Where, in action for divorce, it appeared that plaintiff, in proceedings for divorce in
Rhode Island shortly before coming to state, had sought decree of divorce, held, court
erred in refusing to allow, on issue of plaintiff's domicile, cross-examination as to
whether plaintiff owned property in Rhode Island and whether he had changed his bank
account to Nevada.
See (1, 2, 3) 19 C. J. sec. 88, p. 49, n. 39; sec. 106, p. 56, n. 37 (new); sec. 376, p. 148, n. 30;
sec. 402, p. 158, n. 80; sec. 457, p. 185, n. 6; (4) 22 C. J. sec. 297, p. 282, n. 58; 40 Cyc.
p. 2492, n. 21.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Action by James McLaughlin against Belle Stanton McLaughlin. From an order denying
defendant's motion for a new trial, she appeals. Reversed and remanded. Petition for
rehearing denied.
Cooke, French & Stoddard, for Appellant:
Nearly every state recognizes cruelty as ground for divorce, but that morphinism is not
cruelty is shown by fact that some states make drug habit, when it attains certain degree,
separate and distinct ground for divorce. Keezer, Marriage and Divorce (2d ed.), 238; Burt v.
Burt, 46 N. E. 622; 9 R. C. L. 343. 2 Schouler, Marriage and Divorce (6th ed.), sec. 1591;
Young v. Young, 6 L. R. A. 548.
It cannot be said that Rhode Island decree on merits finding husband guilty of extreme
cruelty and wife guiltless thereof was pursuant to any stipulation, however true it may be
respecting award of moneys, etc. In any event, judgment rendered by consent operates as
estoppel. 2 Black, Judgments (2d ed.), 772; 23 Cyc. 1134.
When no further action of court is required to determine rights of parties, judgment is
final, though other orders are necessary to carry it into effect. Perkins, v. Sierra etc. Co., 10
Nev. 414.
Interlocutory decree of divorce is final as to matters adjudicated, though reserved or
postponed questions may still be open. 2 Black {2d ed.), 773; 23 Cyc.
48 Nev. 153, 157 (1924) McLaughlin v. McLaughlin
adjudicated, though reserved or postponed questions may still be open. 2 Black (2d ed.), 773;
23 Cyc. 673; Newell v. Superior Court, 149 Pac. 999.
Rhode Island decree was rendered upon same facts as plaintiff asks Nevada court to pass
upon. Full faith and credit shall be given to judicial proceedings of every other state. U. S.
Const. art. IV, sec. 1.
Ruling on objection to evidence is deemed excepted to. 1915 Stats. 321.
Sardis Summerfield, for Respondent:
Scope of review by this court will be limited to assigned and argued alleged errors. Smith
v. I. O. O. F. B. A., 46 Nev. 54.
Our statute provides as ground for divorce in laconic terms: SixthExtreme cruelty in either
party. Court have given negative, rather than affirmative definitions of extreme cruelty. Each
case is left to be judged on its own facts. Kelly v. Kelly, 18 Nev. 56. Any character of
misconduct which renders life of other miserable, though no personal violence is
apprehended, is extreme cruelty. Reed v. Reed, 4 Nev. 395. Decisions of other states contrary
to our own can have no weight.
Though evidence be conflicting, there is sufficient to support finding of appellant's
desertion.
For judgment or decree to operate as res adjudicata it must have reached finality.
Questions distinctly put in issue and determined are conclusively settled by final decree or
judgment and cannot be further litigated between same parties. Vickers v. Vickers, 45 Nev.
281; On Petition for Rehearing, 285, quoting with approval Oklahoma v. Texas, 65 L. Ed.
475.
It is error to enter final decree against wish of petitioner. Court will require petitioner,
within reasonable time, either to consent to entry of final decree or to withdraw petition.
McLaughlin v. McLaughlin (R. I.), 117 Atl. 649. Appellant withdrew her petition in Rhode
Island and thus entirely obliterated action, as much as if it had never been commenced. Rhode
Island decree was not even operative.
48 Nev. 153, 158 (1924) McLaughlin v. McLaughlin
was not even operative. Unless both parties are bound by the estoppel matter, neither is
concluded thereby. Hughes v. Clarksville, 8 L. Ed. 430. Appellant cannot claim she is bound
by Rhode Island interlocutory decree for reason its supreme court has held conclusively she is
not. 117 Atl. 649.
Reed v. Reed, 4 Nev. 395, quoted by counsel holds that if conduct of offending spouse makes
it probable that life of other will be rendered miserable though no personal violence is
apprehended, or if there be reason to apprehend bodily harm, decree should be granted. Court
reaffirmed this in Knapp v. District Court, 31 Nev. 451.
OPINION
By the Court, Sanders, J.:
This appeal is taken from an order denying the defendant's motion for new trial in an
action for divorce, wherein James McLaughlin is plaintiff and Belle Stanton McLaughlin is
defendant. We shall refer to the parties as they stood in the court below.
The history of the case is this: The parties were domiciled inhabitants of Rhode Island,
residing at Cumberland Hill in that state. They were married in 1912, and the marriage
relation was preserved until 1921, though the intervening years were filled with distressing
incidents, minutely described in the pleadings and detailed by witnesses in a record consisting
of about 1,000 pages of testimony. The record discloses that in March, 1921, Belle Stanton
McLaughlin filed a petition in the superior court of Rhode Island, in and for the counties of
Providence and Bristol, for divorce from bed and board for extreme cruelty, and for her
husband's refusal and neglect to provide the petitioner with necessaries for her subsistence.
James McLaughlin denied the charges and pleaded by cross-petition that the petitioner was an
habitual, excessive, and intemperate user of morphine and prayed an absolute divorce. Under
the statutes of Rhode Island, the habitual, excessive, and intemperate use of opium,
morphine, or chloral constitutes a separate and distinct cause for divorce from the bond
of marriage.
48 Nev. 153, 159 (1924) McLaughlin v. McLaughlin
and intemperate use of opium, morphine, or chloral constitutes a separate and distinct cause
for divorce from the bond of marriage. Pub. Laws R. I. 1902, chapter 971. The cause was
heard on July 7, 1921, and further heard from time to time upon the original pleadings. On
September 27, 1921, and before the trail was concluded, the parties entered into a stipulation
in writing in which the expressed their willingness to settle the question of alimony without
contest, subject, of course, to the decision of the Justice being favorable to the petitioner, and
stipulated that the petitioner should be paid the sum of $20,000 in lieu of alimony and in lieu
of dower and all claims and interest the petitioner might have in the estate or property of
James McLaughlin. The stipulation was filed in the cause, and on the same day, to wit,
September 27, 1921, James McLaughlin withdrew his cross-petition for divorce and Mrs.
McLaughlin amended her petition and, as amended, prayed a divorce from the bond of
marriage. On the same day the case was decided in favor of the petitioner and an interlocutory
decree entered, divorcing the parties from the bond of marriage because of extreme cruelty,
and for the neglect and refusal of James McLaughlin to provide the petitioner with
necessaries for her subsistence. In the decree the Justice fixed the amount of alimony in
accordance with the stipulation of the parties referred to in the decree. Under the statute of
Rhode Island, such divorce cannot be final and operative until six months after the trial and
decision. On March 22, 1922, before the expiration of six months from the entry of the
decree, Mrs. McLaughlin filed notice of her withdrawal and discontinuance of the petition.
The court refused to permit the petitioner to discontinue. On March 28, 1922, after the
expiration of six months from the entry of said decree, James McLaughlin moved the court to
enter a final decree divorcing the parties from the bond of marriage. Mrs. McLaughlin
opposed the motion. On July 6, 1922, the supreme court, on the petition of Mrs. McLaughlin,
issued a writ of prohibition against said superior court, commanding it to refrain from
entering a final decree upon the motion of James McLaughlin, contrary to the wish of the
petitioner.
48 Nev. 153, 160 (1924) McLaughlin v. McLaughlin
commanding it to refrain from entering a final decree upon the motion of James McLaughlin,
contrary to the wish of the petitioner. See McLaughlin v. McLaughlin, 44 R. I. 429, 117 A.
649.
Thereafter, to wit, on September 26, 1922, Mrs. McLaughlin, with leave of said superior
court, discontinued her petition for divorce. Within a few days thereafter James McLaughlin
left the jurisdiction of said superior court and came to Reno, Washoe County, Nevada,
arriving there on October 9, 1922. On April 22. On April 11, 1923, he commenced this action
against the defendant for divorce for extreme cruelty and for desertion, alleging residence in
Washoe County for six months before the filing of the complaint. Summons and copy of the
complaint were served personally on the defendant at her place of residence in Rhode Island,
where she verified before a notary public an answer and cross-complaint. Thereafter the
defendant came to Reno and filed an amended answer and cross-complaint in the cause.
The plaintiff for a first cause of action alleged, in substance, that shortly after the marriage
the defendant began a course of conduct which rendered his condition intolerable; that the
defendant at the time of the marriage, and without plaintiff's knowledge, was an habitual,
excessive, and intemperate user of morphine; that the plaintiff at all times, and at large
expense, endeavored to have the defendant cured of her drug habit, but without success. The
complaint recites many cruelties and indignities practiced by the defendant upon the plaintiff
which rendered his physical and mental condition intolerable and the marriage relation
unbearable. For a second cause of action the plaintiff pleaded desertion and alleged that the
defendant lived separate and apart from the plaintiff without his fault and without his consent
and against his will. He alleged that there was no issue of the marriage and that there was no
community property.
In her answer, the defendant denied all the allegations of the complaint in respect to
cruelty and desertion, and specifically denied that she was a drug addict as alleged in the
complaint, and pleaded the divorce proceedings in the Rhode Island court and set up the
interlocutory decree in favor of the defendant as a bar to plaintiff's action, and by way of
cross-complaint charged plaintiff with extreme cruelty, and with neglect and refusal to
provide the defendant with the common necessaries of life, and demanded judgment for
separate maintenance and support, specifying many cruelties and indignities practiced by
plaintiff upon the defendant.
48 Nev. 153, 161 (1924) McLaughlin v. McLaughlin
in the complaint, and pleaded the divorce proceedings in the Rhode Island court and set up
the interlocutory decree in favor of the defendant as a bar to plaintiff's action, and by way of
cross-complaint charged plaintiff with extreme cruelty, and with neglect and refusal to
provide the defendant with the common necessaries of life, and demanded judgment for
separate maintenance and support, specifying many cruelties and indignities practiced by
plaintiff upon the defendant.
The plaintiff interposed a demurrer to the answer, upon the ground that it did not state
facts sufficient to create an estoppel nor facts sufficient to constitute a defense. The demurrer
was overruled. The plaintiff for reply denied that the superior court of Rhode Island in the
case of McLaughlin v. McLaughlin entered an interlocutory decree which created an estoppel
in the nature of res adjudicata, and in this connection set up the stipulation entered into
between the parties on the trial of the Rhode Island case and alleged that in consideration of
said stipulation it was understood and agreed that the plaintiff would withdraw his
cross-petition, and that in the event the case should be decided in favor of the defendant she
would apply for and receive an absolute divorce at the expiration of six months from the entry
of the decision, and further alleged in this connection that no decree had been entered in favor
of the defendant in the Rhode Island case except by reason of and upon said stipulation.
Upon the trial of the case the defendant withdrew her claim for separate maintenance and
support. After a hearing upon the pleadings and evidence, the trial judge decided that the
plaintiff had established his causes of action by the preponderance of the evidence, but that no
judgment for divorce, based upon findings, would be entered in his favor until plaintiff had
deposited with the clerk of the court the sum of $20,000, an amount adjudged to be one-half
the value of the plaintiff's entire property. The defendant moved for a new trial. Her motion
was denied. Thereupon she appealed to this court from the order denying and overruling her
said motion for new trial.
48 Nev. 153, 162 (1924) McLaughlin v. McLaughlin
Nothing is said on appeal about the unusual decision as to the conditions upon which the
decree in favor of the plaintiff would be entered. The errors assigned and relied upon for
reversal of the order involve the discussion of these questions: First, was plaintiff a resident
of Washoe County, domiciled there, when he brought this suit? Second, does the habitual,
excessive, and intemperate use of morphine constitute extreme cruelty under our statute?
Third, are the causes of action stated in the complaint res adjudicata by reason of the
interlocutory decree of divorce rendered in favor of the defendant in the superior court of
Rhode Island? Fourth, does the evidence support the complaint?
1. It will be observed from the history of the case that it presents some unusual features,
and we shall reverse the order of discussion of the questions presented for decision by
deferring for the last that of the plaintiff's residence in Washoe County. We are of opinion
that the habitual, excessive, and intemperate use of morphine, standing alone, does not under
our statute constitute extreme cruelty. The habitual use of such drug naturally results in an
estrangement of affections, but it does not necessarily follow that its habitual use constitutes
extreme cruelty. When, however, the spouse using the drug is guilty of cruelties and
indignities which render the condition of the injured spouse intolerable, ultimately destroying
the legitimate ends and objects of matrimony, such acts and conduct persisted in constitute
extreme cruelty, although no physical or personal violence may be inflicted, or even
threatened or reasonably apprehended. Breene v. Breene, 76 Pa. Sup. Ct. 568.
2. We have no such thing in our practice as an interlocutory decree of divorce. In those
jurisdictions where such decree is provided for by statute, it is held that the statutory
interlocutory decree in divorce suits is final, except as against such attack as is authorized by
statute for the modification or vacating of final judgments. 9 Cal. Jur. 762. Barring, of course,
the familiar equitable considerations of fraud or mistake in the procurement of this decree, all
matters therein litigated have passed beyond the possibility of future litigation.
48 Nev. 153, 163 (1924) McLaughlin v. McLaughlin
have passed beyond the possibility of future litigation. Olson v. Superior Court, 175 Cal. 250,
165 P. 706, 1 A. L. R. 1589. This, we take it, is the rule in Rhode Island. Thrift v. Thrift, 30
R. I. 357, 75 A. 484.
3. Ordinarily the operational and effect of a dismissal or discontinuance of a divorce suit
carries the whole case out of court and necessarily the interlocutory decree goes out with it.
19 Corpus Juris, 148. The defendant having voluntarily and with leave of court discontinued
her petition in the Rhode Island court, upon principle, her contention that the causes of action
stated in the complaint are res adjudicata is without merit.
4. Was the plaintiff a resident of Washoe County, domiciled there, when he brought this
suit? For the purpose of answering this question, the undisputed facts may be shortly stated.
Prior to his coming to Nevada, the plaintiff subjected himself and his marital relation to the
laws of his original domicile and to the jurisdiction of its courts. In the course of the
proceedings in the Rhode Island court the plaintiff sought to have the Justice of said court
enter a final decree divorcing the parties from the bond of marriage. This the supreme court of
Rhode Island said could not be done without the consent of the petitioner, who is the
defendant here. The petitioner voluntarily discontinued her petition, and within a few days
thereafter James McLaughlin left Rhode Island and came to Reno, Washoe County, Nevada,
and on the second day after the expiration of six months from the date of his arrival there he
commenced this suit for divorce, upon the grounds of cruelty and desertion, alleging
residence in Washoe County for the period of six months before the filing of his complaint. It
is not denied that the plaintiff came here for a divorce. As a witness in his own behalf, he
testified upon the trial that he came to Nevada with the intention of making Reno, Washoe
County, his permanent home; that he had no residence other than Reno, and that he had no
immediate intention of abandoning that residence. On cross-examination he admitted that he
had no property in Nevada, and that he had made no attempt to acquire a business or to
engage in one in Nevada.
48 Nev. 153, 164 (1924) McLaughlin v. McLaughlin
When asked on cross-examination whether he owned property in Providence, R. I., his
original domicile, and whether he had changed his bank account from Rhode Island to
Nevada, counsel for plaintiff objected to the questions as being incompetent, irrelevant, and
immaterial. The objection was sustained. The defendant did not offer any affirmative
evidence negativing the testimony of the plaintiff. This being all the testimony relating to the
issue of residence, the court assumed jurisdiction of the subject-matter of the suit and
proceeded to hear and determine the case upon its merits.
The record discloses that sufficient exceptions were taken in the court below to bring
before us the question of whether the trial judge committed reversible error in sustaining the
plaintiff's objections to questions propounded him upon cross-examination to test the good or
bad faith of his residence in Nevada for six months before the filing of his complaint. After
reviewing the cases in this court and many cases in other jurisdictions, we conclude that, with
respect to the evidence necessary to establish domiciliary intention, it is impossible to lay
down any positive rule. As remarked in Whelan v. Whelan, 37 Pa. Co. Ct. R. 115, courts of
justice must necessarily draw their conclusions from all the circumstances of each case, and
each case must varying its circumstances, and, moreover, in one a fact may be of the greatest
importance, but in another the same fact may be so qualified as to be a little weight.
Conceding that the best evidence of intention is to be ascertained from the party's
declarations, and that their credibility is a matter for the trial judge to pass upon, yet the rule
is well established that evidence of expressed intention has no controlling weight if such
intent is inconsistent with the acts and general conduct of the person. While a resident,
domiciled her, is entitled to the full benefit of the six months' residence clause of our divorce
statute, no sufficient reason exists why in a contested case the plaintiff should not be
cross-examined fully with respect to his domiciliary intention. The evidence, sought to be
elicited by the questions objected to, might not be conclusive of plaintiff's bad faith, but
when taken in connection with his acts and conduct and all the circumstances
surrounding and attending his stay in Nevada it might well be considered as a
circumstance tending to show that the plaintiff's residence was not in good faith.
48 Nev. 153, 165 (1924) McLaughlin v. McLaughlin
faith, but when taken in connection with his acts and conduct and all the circumstances
surrounding and attending his stay in Nevada it might well be considered as a circumstance
tending to show that the plaintiff's residence was not in good faith. The facts that plaintiff
owned property in the state of his original domicile, that he was a business man there and
kept a checking account in his home bank to pay the expenses incident to his six months'
residence in Nevada for a divorce might well be considered in connection with other
circumstances to show that his residence in Nevada was merely colorable.
Entertaining these views, we conclude that, under all the circumstances of this case, the
trial judge committed reversible error in refusing to permit a full and searching
cross-examination of the plaintiff with respect to his domiciliary intention. This conclusion
renders it unnecessary to discuss the question of whether the evidence is sufficient to support
the complaint.
The order appealed from is reversed, and the cause is remanded for such further
proceedings as the parties may be advised.
Ducker, J.: I concur.
Coleman, C. J.: I concur in the order of reversal solely upon the ground that the court erred
in sustaining objections to questions asked the plaintiff on cross-examination for the purpose
of showing his lack of good faith in establishing a residence in Washoe County, Nevada.
On Petition For Rehearing
November 3, 1925.
Per Curiam:
Rehearing denied.
On Costs
November 23, 1925. 240 Pac. 1115.
Per Curiam.
This matter is now before the court on an appeal disallowing the items of cost claimed in
the cost bill filed by the appellant, in whose favor this court decided.
48 Nev. 153, 166 (1924) McLaughlin v. McLaughlin
by the appellant, in whose favor this court decided. Rule vi of this court provides for the
filing of a cost bill by the prevailing party, and for the filing of objections thereto by the
losing party. Paragraph 3 of the rule provides: If there be no objections to the costs claimed
by the party entitled thereto, they shall be taxed as claimed in his cost bill. No objection was
made. This rule is clear and leaves nothing to decide. The ruling of the clerk is overruled,
with instructions to allow the cost bill as claimed.
____________
48 Nev. 166, 166 (1924) Milisich v. Hillhouse
MILISICH v. HILLHOUSE
No. 2606
September 3, 1924. 228 Pac. 307.
1. Husband and WifeProperty Acquired During Coverture Presumed Community Property.
All property acquired by either spouse during coverture is presumed community property, under Rev.
Laws, sec. 2156.
2. Husband and WifeCommunity Property Remains Such Until Transmutation Into
Separate Property Is Clearly Shown.
Community property, within Rev. Laws, sec. 2156, remains community property until a transmutation
into the separate property of one of the spouses is clearly shown.
3. Husband and WifeSavings of Wife from Husband's Advances for Household Expenses
Remain Community Funds.
Savings of the wife, made from husband's advances for household and other expenses, remain
community funds.
4. Husband and WifeProof of Facts Required To Overcome Presumption Property Was
Community Property.
Where the presumption existed that a car was community property, within Rev. Laws, sec. 2156, the
wife could not overcome such presumption by mere naked statements that the car was a gift to her, or that
the money and the old car given in payments were gifts, but it was necessary to present facts from which
the conclusion could be reached that the property was not community property.
5. Husband and WifeFunds Wife Had in House Presumed Community Funds, in Absence
of Showing to Contrary.
Funds which the wife had at the house, and paid on car claimed by her, held presumed to be
community funds, within Rev. Laws, sec. 2156, in the absence of showing to the contrary.
48 Nev. 166, 167 (1924) Milisich v. Hillhouse
6. Husband and WifeThat Bill of Sale of Automobile Ran to Wife Held Not to Overcome
Presumption Car Was Community Property.
The mere fact that a bill of sale of automobile ran to wife held not to affect the presumption that the car
was community property, within Rev. Laws, sec. 2156.
See 31 C. J. sec. 1141, p. 47, n. 81; p. 48, n. 93, 95; sec. 1142, p. 49, n. 3; sec. 1144, p. 54, n. 48 (new), 55; sec.
1171, p. 79, n. 23.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Action by Thora J. Milisich against J. D. Hillhouse, as Sheriff of Washoe County. From a
judgment for defendant, and from an order denying a new trial, plaintiff appeals. Affirmed.
Rehearing denied.
Mack & Green, for Appellant:
If it is possible in this state for wife to be possessed of separate property, this is such case.
Rev. Laws, 2155, 2168, 2169, 2171, 2172.
A deed of conveyance or bill of sale is not merely evidence of gift or other grant; it is the
gift or grant itself and ipso factor operates to transfer title of property. Where conveyance is
made to one and consideration paid by another, a trust is presumed in favor of latter only
between strangers, and not between persons bound by some natural, moral, or legal obligation
to provide. The transaction was therefore a gift. Hamilton v. Hubbard, 134 Cal. 604.
Neither wife's equitable nor statutory separate estate is liable for debts of her husband. 21
Cyc. 1473.
Delivery of horse and buggy by husband to his wife, made while he is solvent, followed by
possession on her part which is actual and continuous, vests title in her, and is good though
he may use them more or less. Morgan v. Ball, 5 L. R. A. 579; Lannint v. Fogler, 16 Ohio (C.
C.), 151; Barnum v. Farthing, 40 Haward Pr. Rep. (N. Y.) 25.
Fact that husband has control of, or uses property of wife does not raise presumption that
he was owner of it. If wife purchased property it is hers, even though husband signed
deferred payment notes for part of purchase price.
48 Nev. 166, 168 (1924) Milisich v. Hillhouse
husband signed deferred payment notes for part of purchase price. Campbell v. Fillmore, 58
Pac. 790; Fox v. Tyrone, 16 South 5.
Husband may make gift to his wife of anything he chooses, so long as it does not prejudice
existing creditors. Jansen v. Lewis, 42 Nev. 556; 21 Cyc. 1397; 90 Am. St. Rep. 553; Stewart
on Husband and Wife, sec. 116; Corbett v. Sloan, 99 Pac. 1025.
Sale of personal property, coupled with delivery and continuous change of possession
immediately vests title in purchaser, and when transfer is between husband and wife, rules
governing change of possession are not applied with same strictness as when transaction is
between strangers. Morgan v. Ball, supra; Hamilton v. Hubbard, supra; Harvey v. Stowe, 219
Fed. 17; Van Sickle v. Wells, Fargo & Co., 105 Fed. 16.
Declarations of husband made at time when he is free from debt are admissible against
subsequent creditors to prove gift in favor of his wife. First National Bank v. Holland, 33 S.
E. 126; German Ins. Co. v. Bartlett, 58 N. E. 1075; Corbett v. Sloan, supra.
Even if automobile was purchased with community funds or separate funds of husband,
title passed to wife by bill of sale and remained in wife to date of attachment. Status was
fixed at time of purchase. Deschamps' Estate, 137 Pac. 1009; Guy v. Guy, 115 Pac. 731;
Barrett v. Franke, 46 Nev. 170.
Presumption that all property acquired after marriage is community property is overcome by
course of dealing between spouses which clearly indicates contrary fact. Lanigan v. Miles,
172 Pac. 896.
Cooke, French & Stoddard, for Respondent:
Money saved by wife from money given her by her husband for household expenses
remains community property. 5 R. C. L. sec. 31; Abbott v. Wetherby, 33 Pac. 1070.
Circumstances in wife's favor that bill of sale was made in her name is utterly obliterated
by husband's signing application card for license, fully and correctly filled out, with himself
as owner of car.
48 Nev. 166, 169 (1924) Milisich v. Hillhouse
Wife must prove by preponderance of evidence and clear and convincing in testimony that
property once community has been transmuted to her separate estate. Evans v. Covington, 70
Ala. 440.
If wife did receive money by gift from her husband it was hopelessly commingled with
property admittedly community. Funds thus commingled retain their character of community
property. 21 Cyc. 1655; Barrett v. Franke, supra.
Secret agreement between husband and wife will not affect rights of existing or subsequent
creditors where parties continue to live together. Lanigan v. Miles, 172 Pac. 894;
McCullough v. Henshaw, 225 Pac. 898.
Statements of either party of ownership of wife would be merely their conclusions. Barrett
v. Franke, supra. If error was committed in excluding such testimony it was only harmless
error. Such evidence is clearly self-serving.
Wife in this case pleaded purchase, not gift. Many of appellant's authorities refer to gifts,
and are not applicable.
OPINION
By the Court, Coleman, J.:
This is an appeal from a judgment in favor of the defendant in the action, and from an
order denying a motion for a new trial. We will allude to the parties as plaintiff and
defendant, as they were in the trial court.
The defendant, as sheriff, acting under a writ of attachment, attached a Haynes automobile
in an action to recover a money judgment against one Steve B. Milisich, the husband of the
plaintiff, of whom we will speak as Steve. This action was instituted to recover the
possession of the car, upon the theory that it was the separate property of the plaintiff. On the
other hand, it is maintained that the car is community property.
1, 2. With certain exceptions not involved in this case, it is provided by section 2156, Rev.
Laws of Nevada, 1912, that all property acquired after marriage by either husband or wife is
community property.
48 Nev. 166, 170 (1924) Milisich v. Hillhouse
by either husband or wife is community property. It is not contended that the car in question,
or the consideration given for it, was acquired before the marriage of the parties mentioned.
Hence we are brought to a consideration of whether the evidence in this case shows a
transmutation of community property into the separate property of the plaintiff. In
determining this case the trial court declined to consider as applicable certain well-established
rules of law urged upon it by counsel for the plaintiff, and, while they are urged upon us at
great length, we fail to see their application to the situation in hand, and will endeavor to state
the principles of law which we think control, and which, in fact, were applied by the trial
court.
It being conceded that the plaintiff had no separate property at the time of her marriage,
and it not being contended that she acquired any by descent or devise or by gift, except as
hereinafter stated, we come to consider briefly the facts, but before doing so we wish to lay
down certain well-established principles of law which apply to the facts of the case. First, the
presumption prevails that all property acquired by either spouse during coverture is
community property; and, second, that it remains such until clearly shown to have been
transmuted into the separate property of one of the spouses. Laws v. Ross, 44 Nev. 405, 194
Pac. 465; Barrett v. Franke, 46 Nev. 170, 208 Pac. 435.
3, 6. The evidence shows that at the time the Milisiches were married Steve was engaged
in business and had a personal account at the Reno National Bank, and that some time after
the marriage he arranged matters so that his wife could draw upon that account. This
arrangement continued during the period covered by the transactions involved. It also appears
that there was a safety deposit box to which they both had access, for a considerable length of
time, at least; that each had a savings account at some bank in Reno. About 1916 Steve
purchased a Reo car. This was the first car acquired by the family. The plaintiff testified that
Steve gave her this car, and that she traded it in for another Reo, paying the difference, and
in 1920 traded in the second Reo for the Haynes car in question, paying a difference of
$1,700 in cash.
48 Nev. 166, 171 (1924) Milisich v. Hillhouse
another Reo, paying the difference, and in 1920 traded in the second Reo for the Haynes car
in question, paying a difference of $1,700 in cash. Plaintiff claims that the major portion of
the cash she used in paying the difference in these trades was savings from money her
husband gave her with which to run the house.
In considering the question as to whether or not the savings from the money advanced by
Steve for household expenses was separate property, the trial court held that they were not,
quoting from 5 R. C. L. p. 843, sec. 21, as follows:
Money saved by the wife out of money given to her by her husband for household and
other community expenses does not thereby become separate estate, but remains community
property, liable for community debts.
This is the well-recognized rule, 31 C. J. p. 79, sec. 1171.
With the rules of law, which we have stated, in mind, let us briefly consider the evidence.
Just here we may say that the circumstances are such that the important question in the case is
one of fact merely, and, there being sufficient evidence to support the judgment, we would
not be justified in reversing it. It may be observed that it appears from the opinion of the trial
judge, which, pursuant to statute, is incorporated in the record, that he rejected the testimony
of the Milisiches. Hence the main question for us to determine is: Did the trial court abuse its
discretion in this particular?
The plaintiff was confronted with the necessity of overthrowing the presumption of law
that the car was community property. This could not be done by mere naked statements that
the car was a gift, nor that the money and the car, which were given as consideration for the
car in question, were gifts, but it was necessary to present facts from which the conclusion
could be reached that they were not community property. It is clear from a reading of the
testimony of both of the Milisiches that they were desirous of establishing the claim of
plaintiff. The trial judge filed a lengthy opinion, showing studious and careful consideration
of the facts.
48 Nev. 166, 172 (1924) Milisich v. Hillhouse
opinion, showing studious and careful consideration of the facts. Since the case must turn
solely upon the sufficiency of the evidence to support the judgment, we might properly refrain
from considering the evidence at all, and shall consider it but briefly.
The Milisiches contradict each other in their testimony and, in at least one instance, Mrs.
Milisich contradicts herself. For instance, she testified at one time that Steve made her a
present of the Reo first bought, and that she turned that in and got the second one, paying the
difference in cash. At another time she testified that Steve made her a present of both the
Reos. Steve testified that he bought both Reos, turning in the first one for the second, and
paying the difference. Mrs. Milisich testified:
Q. Who owned the Reo car? A. It was a gift to me from my husband.
Q. In what year? A. When the first 1918 model came out. I think it was in 1917, Mr.
Green.
Q. Latter part of 1917? A. No, it was in the spring. You see, the models came out before,
generally a year before, the late models.
Q. You had ait was a 1918 model, was it? A. It was a 1918 model, and I think we got it
in 1917.
Q. Did you have a car before that? A. Yes, I had a car before that.
Q. What did you do with the first car you had? A. We turned that in as partly trade for the
1918 model.
Q. What was the model of the first car? A. I think that was a 1918, but I don't remember.
Q. Who owned the 1918 car? A. That was also my car.
Q. And the 1918 car you traded in for the 1919? A. Yes, sir.
Q. 1918 you traded in for the Haynes that is now in controversy? A. Yes.
Q. Did you drive either or both of those cars? A. I drove both of them.
Q. You drove all of them. A. Well, I thought you meant only the Reos. Yes, I drove all
three of the cars from the very beginning that we had them.
48 Nev. 166, 173 (1924) Milisich v. Hillhouse
The question is: How could Steve turn in the first Reo on a purchase of the second one if it
was the separate property of his wife? On the other hand, how could Steve have made his
wife a present of the second Reo, if she had purchased it? The inconsistency is glaring. But
the main question in the case is whether the money deposited in the name of the plaintiff was
her separate property. This money was accumulated in the main, she testified, from saving of
money turned over to her by Steve for household expenses. Some of the money so
accumulated was put into bonds, according to her testimony. In this connection, let us
consider the transaction whereby the Haynes car was acquired. Mr. Wiley, the agent for the
Haynes car, testified:
Mr. Milisich, in the presence of another party, came into our place and looked over the
Haynes automobiles and seemed quite interested in them. We had some little conversation; he
told me that they had a Reo car that they would want to trade in, if they made any deal or
transaction.
Again Mr. Wiley testified:
After some few minutes' conversation with Mr. Milisich, he went out and I interviewed
him on the street several times afterwards, and we gradually arranged a trade in between the
used car and this other. However, he informed me that it would be quite largely up to his wife
as to the selection; that she was purchasing the car, or it was for her, and it was immaterial to
him.
All of these conversations were had with Steve before Mrs. Milisich saw the car. From the
testimony it appears that Steve was the moving party, that he first conceived the notion of
making a trade, and that the trade was gradually arranged between him and Mr. Wiley,
though it is true that Mrs. Milisich had to be satisfied. She had to be satisfied, no doubt,
because she did the driving; furthermore it was only natural that she should have been, in any
circumstances. She testified that she drove from the first for the reason that Mr. Milisich was
not a careful driver. When the deal was finally closed, it was upon the turning in of the 1918
Reo and the payment of $500 cash, and the depositing of liberty bonds of the value of
$1,200 to secure the deferred payments.
48 Nev. 166, 174 (1924) Milisich v. Hillhouse
and the payment of $500 cash, and the depositing of liberty bonds of the value of $1,200 to
secure the deferred payments. It is admitted that Steve paid the $500 when the car was gotten,
and also paid the $1,200 and took up the bonds, but is is contended that the plaintiff
reimbursed him for these payments out of her savings, as before stated. The trial court held
that, if such were the fact, the savings of the wife made from advances by the husband for
household expenses were community property, as herein pointed out, and hence the payment,
in any event, was made, not from her separate estate, but from the community funds.
It is also said by the plaintiff that $200 of the $1,200 was from money she had at the
house. There is no showing that the $200 was not community funds, and the presumption is
that it was. As to the bonds which she put up as security for the deferred payment of $1,200,
some of these the plaintiff said were purchased with her savings, some were a gift from Steve,
and others were obtained from other persons. Her testimony as to where and how she
obtained these bonds was unsatisfactory. At first she flatly refused to tell of whom she got
them.
While the bill of sale to the Haynes car, executed by Wiley Bros., was to plaintiff, the
license on the car was issued at their request to the husband, and at the time the car was
attached the license bore a statement signed by Steve, as the owner of the car. The mere fact
that the bill of sale was to plaintiff did not affect the presumption that the car was community
property. The trial court, in deciding the case, applied the correct principles of law, and we
cannot say that it erred in its findings of fact. From a consideration of the entire record it is
clear that the judgment should be affirmed.
It is so ordered.
On Petition For Rehearing
April 11, 1925.
Per Curiam:
Rehearing denied.
____________
48 Nev. 175, 175 (1924) Barrett v. Franke
BARRETT v. FRANKE
No. 2642
September 5, 1924. 228 Pac. 306.
1. Appeal and ErrorOpinion on First Appeal Is Law of the Case on Second Appeal.
On second appeal in action, opinion on former appeal is law of the case, so far as applicable.
2. Appeal and ErrorObjections to Sufficiency of Assignments of Error Are Waived by
Arguing Merits.
Counsel's argument on appeal of the merits of the case waived objections to the sufficiency of
appellant's assignments of error.
3. Husband and WifeWife's Loan of Money to Husband Held to Give Her No Interest in
Land.
Where, prior to marriage, the husband contracted to purchase a ranch, and made first payment
thereon, wife's subsequent loan of her money to him to put on the ranch created relation of debtor and
creditor only, and gave her no interest in the ranch.
See (1, 2) 3 C. J. sec. 1549, p. 1398, n. 73; 4 C. J. sec. 3075, p. 1093, n. 77; (3) 30 C. J. sec. 258, p. 680, n. 43
(new); 31 C. J. sec. 1137, p. 44, n. 53.
Appeal, from Eighth Judicial District Court, Churchill County; Thomas F. Moran, Judge.
Action by Minnie B. Barrett and husband against F. F. Franke, administrator, and others.
From a judgment and order overruling motion for new trial, defendants appeal. Reversed and
remanded, with directions.
A. L. Haight, for Appellants:
Law of this case was declared on former appeal. Facts are identical. Barrett v. Franke, 46
Nev. 170.
Appellants state in opening brief points and errors relied on with reference to pages of record;
court did not ask more definite specifications. 1923 Stats. 164. In many states, under similar
statutes, general assignment that court erred in overruling motion for new trial brings up for
review all grounds properly made as basis for motion without more specific assignment. 2
C.J. 1388.
Motion for new trial on ground that evidence is not sufficient, or verdict is contrary to
evidence, or that court erred in granting or refusing new trial, is sufficient.
48 Nev. 175, 176 (1924) Barrett v. Franke
sufficient, or verdict is contrary to evidence, or that court erred in granting or refusing new
trial, is sufficient. 2 C. J. 1393. Stats. 1893, 88, establishes rule exactly contrary to contention
of respondents. It is necessary only to state errors relied on sufficiently to bring court's
attention to same. 1923 Stats. 164.
Early Nevada cases cited by respondents are no longer authority since law under which
they were decided has been radically changed. 1893 Stats. 88; 1919 Stats. 319; 1923 Stats.
164.
There is no necessity to state why ruling is erroneous, such statement has no place in
pleading and is mere argument. Kernsher v. Trinidad Company, 189 Pac. 658.
In absence of exception to alleged defective finding, pointing out defect, it will be deemed
sufficient. Warren v. Quill, 9 Nev. 259; 5345 Rev. Laws, as amended 1919 Stats. 319; 2 Cal.
Jur. 282.
Final judgment should be ordered as it is apparent after two trials that all evidence has
been presented. 4 C. J. 1192; Waldron v. Waldron, 24 Pac. 649.
As money was loaned by wife to husband her recourse is by creditor's bill to administrator,
not claim against property. Pepper's Estate, 112 Pac. 62.
Cooke, French & Stoddard, for Respondents:
Assignment that court erred in refusing motion for new trial is too general. 1923 Stats.
164; 2 R. C. L. 162. Assignment that judgment is contrary to law, evidence, law and
evidence, or preponderance of evidence is too general. 3 C. J. 1386. Assignment failing to
state particulars in which evidence is insufficient must be disregarded. Caldwell v. Greely, 5
Nev. 258; 3 C. J. 1381; Kershner v. Trinidad Company, 189 Pac. 658; Smith v. Hopkins, C.
C. A., 120 Fed. 921. Assignment which compels court or counsel to look further into record
fails of its purpose. Sovereign Camp. v. Jackson, C. C. A., 97 Fed. 382; 3 C. J. 415.
Act of 1923 changes act of 1915 only in that assignment should be made in appellant's
opening brief instead of by separate instrument, and as to reference to page or record.
48 Nev. 175, 177 (1924) Barrett v. Franke
instead of by separate instrument, and as to reference to page or record. Coffin v. Coffin, 163
Pac. 831 and Corbett v. Job, 5 Nev. 201, were decided under law identical except as stated.
Judgment shall not be reversed for defective finding or want of finding unless exception be
made in court below. Rev. Laws, 5345, as amended 1919 Stats. 319. Finding necessary to
support judgment when not made nor requested, is presumed. 33 Nev. 267.
Facts embracing crux of this case were not before court on former appeal. Former briefs have
not application. Judgment is based squarely on new evidence and is in exact accord with law
of case laid down in former appeal.
Error claimed on appeal must be clearly established. Peterson v. Pittsburgh Silver Peak G. M.
Co., 37 Nev. 117. Meager showing is insufficient. Roney v. Buckland, 5 Nev. 219. Judgment
will not be disturbed if there is any substantial evidence to support it. Gault v. Grose, 39 Nev.
274. Trial court is exclusive judge of credibility of witnesses. Anderson v. Feutsch, 31 Nev.
501.
OPINION
By the Court, Coleman, J.:
1. While it seems that there have been three trials of this case, this is the second appeal to
this court therein. The opinion on the former appeal is reported in 46 Nev. at page 170, 208
Pac. 435. That opinion is the law of the case, so far as it is applicable, and reference may be
had to it for a full understanding of the case. This appeal, like the former one, was taken by
the defendants in the trial court from the judgment, and from an order denying a motion for
anew trial.
2. Counsel for respondents have devoted about 12 pages of their brief to an attack under
the assignments of error made by the appellants, contending that such assignments are not
specific enough. The law relative to assignments of error, as modified by chapter 97, Stats.
1923, is very liberal. Section 3 of the act provides that, if the assignment be insufficient,
this court may direct the filing of a more specific assignment.
48 Nev. 175, 178 (1924) Barrett v. Franke
that, if the assignment be insufficient, this court may direct the filing of a more specific
assignment. Such seems to be the only order that may be made where the assignment is
attacked.
We do not deem it necessary to determine whether the assignments are insufficient, since
counsel for respondents have argued the merits of the case. If the assignments are indefinite,
respondents have waived their objections.
3. The only question in the case is whether Minnie B. Barrett, one of the plaintiffs, is
entitled to an interest in certain property left by James C. Lofthouse, who died intestate in
1918. They intermarried in November, 1908, and were divorced in 1916. Prior to their
marriage Lofthouse entered into a written agreement to purchase the Moore ranch; the first
payment having been made prior to the marriage, and all subsequent payments thereafter, but
not later than June 1, 1911. On the former appeal we held that, since it did not appear from
the evidence that any of the separate funds of the wife or any community funds were used to
complete the purchase of the property, Mrs. Barrett could not recover.
Upon the last trial of the case it was sought to be shown that the separate funds of the wife
were used to complete the payments on the purchase of the property. Since the opinion
rendered on the prior appeal is the law of the case, we will confine ourselves, in disposing of
the case on this appeal, to the new evidence given upon the last trial. This evidence is that
given by Mrs. Clark, the mother of the plaintiff. She testified that James C. Lofthouse, during
the years 1910 and 1911, stated to her that he used some of the money of his wife (Mrs.
Barrett). We quote from her testimony:
Q. Do you recall having any conversation with Mr. Lofthouse, during the years 1910 and
1911, in regard to the purchase of the Moore ranch? A. He said he was trying to pay for it.
Q. You had some conversation? A. Yes.
Q. State any conversation that you had with him in which he mentioned the use of your
daughter's money. A. He said that he got money of her to pay on the ranch and to pay
taxes.
48 Nev. 175, 179 (1924) Barrett v. Franke
which he mentioned the use of your daughter's money. A. He said that he got money of her to
pay on the ranch and to pay taxes.
Q. Where did the conversation occur, the first you can recall? A. In my own house at my
dining room table.
Q. Who was present? A. No one in particular, except the children, school children.
Q. Recall anything further about the conversation, how it came up? A. Just talked about
it; said he was short of money, and he had to take some of hers and use it.
Q. What in regard to the amount? A. He said he had got between $300 and $400 from
her.
Q. How long after their marriage? A. I think this was 1910, in the fall.
Q. In the fall of 1910? A. Yes.
Q. For the purpose you have already stated? A. Yes.
Q. What, if anything, did he state in regard to the way he used that $300 or $400? A. On
the ranch, and for taxes.
Q. What ranch? A. The Moore ranch.
Q. After that, at any other time, did you have any conversation with him during his
lifetime in regard to this same subject? A. We often talked about it.
Q. Can you recall any other conversation when his making payments on the Moore ranch
was discussed? A. He told me that he had borrowed money several times, and used her
money.
Q. Who do you mean by he? A. Mr. Lofthouse.
Q. You have told us about one conversation in 1910. Now, what I am trying to find out is
if you can fix the time, or approximate time, of any other conversation in which he mentioned
receiving any other money from her? A. Before that he told me he had borrowed money from
her. I cannot tell just what date, but in that year.
Q. Did he mention the amount he had obtained from her? A. Yes.
48 Nev. 175, 180 (1924) Barrett v. Franke
Q. What was the amount? A. About $500, he got from her at one time.
Q. In the fall of 1910 he got $300 from her? A. Yes.
Q. And then this other of $500? A. Yes.
There is only one conclusion to be drawn from this testimony. The witness clearly and
unequivocally testified that Lofthouse stated to her that he borrowed from the plaintiff at one
time $500, and at another $300, to put on the ranch. This being the fact, Lofthouse became
indebted to the plaintiff for the amount of money he got from her. Those transactions could
not become the basis for the plaintiff's acquiring an interest in the property. The transactions
created the relationship merely of debtor and creditor.
The judgment and order are reversed, and the case is hereby remanded to the trial court,
with directions that it enter judgment in favor of the appellants, in accordance with the law of
the case as declared in this opinion and in the former opinion of this court. Appellants to
recover their costs on this appeal.
____________
48 Nev. 181, 181 (1924) Bawden v. Kuklinski
BAWDEN v. KUKLINSKI
No. 2630
September 5, 1924. 228 Pac. 588.
1. TrialMotion for Nonsuit Waived, Where Evidence Introduced by Movants after Denial
Thereof.
Defendant's motion for a nonsuit was waived, where he introduced evidence in support of his defense
after such motion was denied.
2. TrialRefusal to Make Particular Finding Held Not Error, in View of Other Findings.
In action for injuries, that court refused to make finding on issue raised by defendant as to plaintiff's
negligence held not error, in view of its finding that defendant's negligence was proximate cause of
plaintiff's injury.
3. TrialRule Stated as to when Failure to Expressly Find on Matter Negatived in Answer
Not Error.
Generally, where court makes an affirmative finding of fact on issue raised by allegation of complaint,
which is necessarily complete negative of truth of matter set forth in answer, failure of court expressly to
find on matter so negatived is not error.
4. Appeal and ErrorFinding on conflicting Testimony in Automobile Collision Case that
Plaintiff Gave Signal Not Disturbed.
In automobile collision case, evidence being conflicting as to giving of signal by plaintiff indicating
left-hand turn, appellate court was bound by trial court's finding thereon; it not being clearly against
weight of testimony.
5. Municipal CorporationsFailure of Automobilist to Look Back on Making Turn No Bar
to Recovery for Collision, Unless Proximate Cause of Accident.
Act of driver of automobile in turning at intersection of streets without looking back is not such
negligence as will bar recovery for collision with following car, unless such failure was proximate cause
of accident.
6. Municipal CorporationsOrdinance Requiring Automobilist to Signal before Changing
Course Held to Impose Duty on Following Car to Watch for Signal.
Ordinance providing that, before an automobilist shall change his course, he shall see that there is
sufficient space, so that movement can be made in safety, and shall signal to person in charge of car
behind, and make no turn until car behind has passed on left, placed on following car reciprocal duty of
driving cautiously and watching for signals.
7. Municipal CorporationsEvidence Held to Show that Defendant's Negligence and Not
Plaintiff's Failure to Look Back, Was Proximate Cause of Automobile Collision.
Where defendant, driving an automobile at excessive speed, observed that plaintiff swerved to make
turn, evidence that thereafter defendant had time enough in which to turn to left with view to cutting
corner, throw on emergency brake, wobble a little, and then endeavor to get behind plaintiff, in doing
which he struck plaintiff's car two or three feet from rear end, held to sustain
finding that defendant was guilty of negligence which constituted proximate cause
of collision, though plaintiff failed to look back before making turn.
48 Nev. 181, 182 (1924) Bawden v. Kuklinski
which he struck plaintiff's car two or three feet from rear end, held to sustain finding that defendant was
guilty of negligence which constituted proximate cause of collision, though plaintiff failed to look back
before making turn.
See (1, 2, 3,) 38 Cyc. p. 1561, n. 53; p. 1984, n. 78; (4) 4 C. J. sec. 2855, p. 885, n. 41; (5, 6, 7) 28 Cyc. p. 36, n.
13; p. 38, n. 27; p. 27, n. 20.
Appeal from Second Judicial District Court, Washoe County; Geo. A. Bartlett, Judge.
Action by Joseph R. Bawden and others against Otto G. Kuklinski. Judgment for
plaintiffs, and defendant appeals. Affirmed. Rehearing denied. (Sanders, J., dissenting.)
Huskey & Kuklinski, for Appellant:
It was plaintiff's duty to look to see if he had room to turn; to give plainly visible signal of
intention to turn; to wait until closely following car has passed. Court found defendant guilty
of not giving signal of intention to pass plaintiff, though no evidence was given of his duty so
to do. Plaintiff should have yielded right of way. Kenney v. King, 190 Pac. 834.
Occupants of defendant's car saw no signal. Negative proposition is as subject to proof as
positive. Witnesses on each side, if equally honest and informed, are equally entitled to
credence. 3 Jones Evidence (1896 ed.), 1982; 1 Moore Facts, sec. 43.
If defendant were really traveling at excessive speed, plaintiff's duty to yield right of way
was rather intensified than lessened thereby. Kenney v. King, supra.
Cheney street comes into Virginia Street from north but does not cross it. Driver making
left-hand turn on Virginia Street loses all right of way. Defendant was entitled to instruction
embodying these facts. Where two contentions are made and evidence is introduced to
support both, it is duty of court to instruct on both theories. Crossman v. S. P. Co., 42 Nev.
92.
While reminded of rule of conflicting evidence, we submit defendant proved plaintiff's
contributory negligence, and case comes within rule of Smith v. Goodin, 46 Nev. 229
48 Nev. 181, 183 (1924) Bawden v. Kuklinski
and case comes within rule of Smith v. Goodin, 46 Nev. 229, that it is duty of this court to
look into evidence and grant new trial if it appears that evidence taken altogether does not
support verdict. Hayne New Trial and Appeal, 288; Watt v. N. C. R. R. Co., 23 Nev. 154.
Instructions should not take from jury either party's theory of case, but should state law
applicable to both sides. Zelavin v. Tonopah Belmont D. Co., 39 Nev. 1. To refuse to instruct
on matter pleaded and proved is error. Stein v. U. R. R. 113 Pac. 663.
Though one be guilty of wanton negligence, another may not close his eyes to approaching
danger and rush blindly into it. Sego v. S. P. Co., 70 Pac. 279. If person sustaining injury be
also guilty of negligence, without which injury would not have happened, recovery is
defeated. Tucker v. Northern Lumber Co., 68 Pac. 426. Violator of ordinance is guilty of
negligence per se if such violation contributes proximately to accident. Hutchinson v. Miller
& Lux, 212 Pac. 394. That principal duty is upon passing driver is not correct law. Court's
failure to determine plaintiff's duty was failure to consider ordinance. The law of
contributory, and not comparative negligence governs. Straten v. Spencer, 196 Pac. 540. Case
was decided on defendant's responsibility alone, though plaintiff's negligence directly
contributed to accident. Moore v. Rochester Weaver M. Co., 42 Nev. 164.
No substantial recovery may be based on mere guesswork or inference. 17 C. J. 758; Richards
v. Vermilyea, 42 Nev. 294.
Frame & Raffetto, for Respondents:
Issues tendered were supported by substantial evidence. Case was decided upon
conflicting testimony. Record shows plaintiff was traveling six or seven miles per hour; that
he did not cut corner; that signal was given; that intersection was brightly lighted and, if due
care were used, signal would have been plainly visible. Decision of these points disposes of
case.
48 Nev. 181, 184 (1924) Bawden v. Kuklinski
Burden is upon the appellant to establish by clear preponderance of evidence his
affirmative defense of contributory negligence.
Every material issue was conflicting. Upon well-settled rule, long established, this court
will not attempt to weigh and determine sufficiency of evidence.
This court has frequently decided that where mental suffering or physical pain, coupled
with physical injury, is shown, amount of recovery is in discretion of jury, which will not be
disturbed in absence of proof of prejudice, passion or partiality.
OPINION
By the Court, Coleman, J.:
Plaintiffs, who are respondents in this court, instituted this action to recover damages
alleged to have been sustained through the negligence of the appellant. A judgment was
rendered in favor of the plaintiffs, and the defendant appealed from the judgment and the
order denying the motion for a new trial.
The facts are these: About 1 o'clock a.m. of October 29, 1922, the plaintiff, Joseph R.
Bawden, accompanied by his wife, and the defendant were driving their automobiles along
Virginia Street in the city of Reno, in a southerly direction, the plaintiff's car preceding the
defendant's. When the plaintiff came to the point at which Cheney Street comes into Virginia
Street from an easterly direction, at which latter street it ends, the plaintiff sought to turn
down Cheney Street to his home. The plaintiff claims that he was traveling at about 5 miles
per hour when he sought to make the turn, and that he gave the signal required by the
ordinance to be given in such a situation, but that the defendant was traveling at a rate of
speed far in excess of 12 miles per hour fixed by ordinance as the speed limit, and as a result
of such excessive rate of speed ran into plaintiff's car, turned it over, and thereby injured
plaintiff's wife and damaged his car.
The ordinance of the city of Reno applicable to the case reads as follows: "Signal on
Changing Course.
48 Nev. 181, 185 (1924) Bawden v. Kuklinski
Signal on Changing Course. Every person riding, driving, propelling, or in charge of any
vehicle on any street shall, before turning, stopping, or changing the course of such vehicle,
first see that there is sufficient space so that such movement can be made in safety, and shall
then give a plainly visible signal to the persons in charge of vehicles behind the vehicle so
turning, stopping, changing its course, or turning from a standstill, of his intention to make
such movement, in which event no turn shall be made until such vehicle shall have passed on
the left.
The signals above mentioned shall be given in the following manner, to wit:
First, arm straight outturning in the direction pointed to.
Second, arm pointed upwardturning in the opposite direction.
Third, arm pointed downwardstopping or suddenly changing speed.
If it is a closed vehicle, the signals must be given by a proper signaling device indicating
the same signal as those required by hand.
The court, to which the case was tried without a jury found among other things as follows:
That all of the allegations of plaintiffs' complaint alleging negligence on the part of the
defendant are true and sustained by the evidence, and particularly in this: That the defendant
attempted to pass plaintiff's automobile at the intersection of Virginia and Cheney Streets
after plaintiff had given a plainly visible single of his intention to turn into Cheney Street, and
that before the defendant attempted to pass plaintiffs' automobile, he did not give any signal
of his intention to attempt to pass the automobile of plaintiff, and that the defendant's
negligence was the approximate cause of plaintiff's injuries.
1. The appellant has assigned four errors as grounds for a reversal. The first is that the
court erred in denying the defendant's motion for a nonsuit. Since the defendant introduced
evidence in support of his defense after such motion was denied, he waived his motion.
48 Nev. 181, 186 (1924) Bawden v. Kuklinski
7 Standard Ency. Prac. p. 673; Chamberlain v. Woodin, 2 Idaho (Hasb.), 642, 23 Pac. 177;
Bogk v. Gassert, 149 U. S. 17, 13 Sup. Ct. 738, 37 L. Ed. 631; Lyon v. United Moderns, 148
Cal. 470, 83 Pac. 804, 4 L. R. A. (N. S.) 247, 113 Am. St. Rep. 291, 7 Ann. Cas. 672; Wees
v. Page, 47 Wash. 213, 91 Pac. 766; Hochschultz v. Potosi Z. Co., 33 Nev. 198, 110 Pac. 713.
2, 3. The next assignment is that the court refused to make a finding on the issue raised by
the defendant as to plaintiff's negligence. In his answer the defendant charges that the plaintiff
was guilty of certain facts of negligence, and that they were the sole, immediate, and
proximate cause of the accident. We think the finding of the court, to the effect that the
defendant's negligence was the proximate cause of the injuries sustained by the plaintiff,
negatives the truth of the affirmative defense, and and hence no further finding was necessary.
It is the general rule that, where a court makes an affirmative finding of fact on an issue raised
by an allegation of the complaint, which is inconsistent with and is necessarily a complete
negative of the truth of the matter set forth in the answer, the failure of the court expressly to
find on the matter thus negatived is not error. 38 Cyc. 1984; Churchill v. Baumann, 95 Cal.
541, 30 Pac. 770; Skliris v. Melis, 51 Utah, 391, 170 Pac. 968.
The next two assignments of error go the sufficiency of the evidence to sustain the
findings and judgment. It becomes necessary in this connection to consider the ordinance of
the city of Reno, which we have quoted.
It is the theory of the plaintiffs that the accident was the direct result of the excessive rate
of speed at which the defendant was driving. On the other hand, it is contended that the
plaintiff, Bawden, was guilty of contributory negligence, in that he drove at an excessive rate
of speed, and that he violated the ordinances in question in failing to look back to see if the
defendant was so close behind him as to prevent plaintiff's making the turn with safety. The
trial court heard the evidence, and in disposing thereof applied the law, and reached the
conclusion that the plaintiff was not guilty of contributory negligence, but that the
negligence of the defendant was the proximate cause of the accident.
48 Nev. 181, 187 (1924) Bawden v. Kuklinski
the conclusion that the plaintiff was not guilty of contributory negligence, but that the
negligence of the defendant was the proximate cause of the accident.
Let us consider the evidence. It appears that both parties were driving at an excessive rate
of speed when about midway the block, the plaintiff at about 25 miles an hour and the
defendant at from 28 to 30 miles an hour, and that the plaintiff slowed down, swung to the
right a little to turn down Cheney Street, and at the time the defendant observed the plaintiff
swing to turn at the intersection of Cheney Street the defendant was still going at from 28 to
30 miles an hour. The witness Hood, an automobile man and an experienced driver, in
explaining what happened at the time of the accident, testified:
Well, he was turned what you call practically diagonal across the corner. The other car
was coming down here, and when he saw he couldn't make the turn inside the curb, which I
judge was his idea, he started to slam both brakes here, and you could hear his brakes
squealing. Then he started to wobble a little bit, and then tried to get back of the other car,
and this car I should say was at that angle when he camethe way it seemed to me, he caught
the left rear fender of the front car with his left front fender; that is the way it looked to me
from where I was, and I was within 50 feet of it when it happened.
The witness further testified:
Then, as I came down here, this car slowed up, and he made a curve about like this, and
then started to cut across here.
Q. Mark that with an arrow. A. (Witness does so.) And threw his brakes on here, and I
think that is what carried him over a little bit, because he kind of carried over a little bit, and
then started to cut the corner, and this car was coming right in here.
Q. Which car? A. The K car, and tried to turn in here.
Q. To the left? A. Yes, and I think he found he could not cut the corner, so then he
slammed his brakes on and tried to go back, and he waved a little bit, and I think his
fender caught this in here."
48 Nev. 181, 188 (1924) Bawden v. Kuklinski
on and tried to go back, and he waved a little bit, and I think his fender caught this in here.
Before we consider the evidence alluded to, we must observe that the testimony in behalf
of the plaintiff is that he was traveling at about 5 or 6 miles an hour when he sought to turn
the corner, and that prior to reaching the corner he held his hand out, giving the sign required
by the ordinance to indicate his intention to make the turn. On the other hand, the defendant
and the occupants of his car testified that defendant was traveling at a moderate rate of speed,
and that they saw no sign indicating an intention on plaintiff's part to make the turn. We
observe, too, that there is testimony to the effect that the defendant was only 10 feet behind
the plaintiff when he sought to turn.
In considering the facts of this case, we must keep in mind that a car going at a rate of 25
miles per hour covers 36.66 feet per second of time, and while going at the rate of 30 miles
per hour will cover 44 feet per second. Just here we may say that, if it be conceded that the
plaintiff was traveling at an excessive rate of speed when he sought to make the turn, it could
in no way have contributed to the accident.
This brings us to a determination of the negligence of the plaintiff in failing to give a
signal indicating his intention to turn, his alleged negligence in turning without looking back
to see if any one was behind him, and the alleged negligence of the defendant.
4. The testimony of the plaintiff and the occupants of his car is that there was a large light
at the intersection of the streets whereat plaintiff sought to turn; that one could read a
newspaper by it; that plaintiff held out his hand for some distance before beginning to make
the turn. Plaintiff admitted that he did not look back to see if anyone was behind him. The
evidence, being conflicting as to the giving of the signal by the plaintiff at the time and place
testified to in his behalf, we are bound by the finding of the court; it not being clearly against
the weight of the testimony.
5, 6. The ordinance, as shown, provides that, before a person who is driving an
automobile shall change his course, he shall see that there is sufficient space so that such
movement can be made in safety, and shall give a signal to the person in charge of the car
behind, and that he shall make no turn until the car behind shall have passed on the left.
48 Nev. 181, 189(1924) Bawden v. Kuklinski
person who is driving an automobile shall change his course, he shall see that there is
sufficient space so that such movement can be made in safety, and shall give a signal to the
person in charge of the car behind, and that he shall make no turn until the car behind shall
have passed on the left. The question is: What interpretation shall be put upon the ordinance?
Shall it be given a strained construction, or one which harmonizes with its evident spirit, with
a view of effectuating its purpose of minimizing the dangers of the road and yet expedite
travel? Clearly but one view justly can be taken in this connection. The present indications
point to a growing automobile traffic, that common-sense rules are imperative for the
guidance of such traffic, and that the rules and regulations must be construed and harmonized,
with the view of attaining the desired end. With these observations we approach the
contention of the defendant that it is contributory negligence for a driver to turn at the
intersection of two streets without looking back, and that nothing can excuse that negligence.
If the failure of the plaintiff to look back was not the proximate cause of the accident, this
contention must be rejected. Weck v. Reno Traction Co., 38 Nev. 285, 149 Pac. 65. If the trial
court was justified in concluding from the evidence that, had the plaintiff looked back, he
reasonably could have assumed that he had sufficient room in which to make the turn
(providing the defendant was driving at a lawful rate of speed and otherwise exercising care,
as plaintiff had the right to presume), the court could properly have concluded that the
plaintiff would have endeavored to make the turn as he did, and if, in such circumstances, the
accident occurred through the negligence of the defendant, his negligence would be
proximate cause of the injury. The fact that the plaintiff did not look back is not material,
unless such failure was the proximate cause of the accident. And just here we may observe
that no careful driver will follow an automobile to its left and close to it in approaching an
intersection without keeping his car under control. If any other rule be sanctioned, a
reckless, malicious driver may keep the forward car from making a turn to the left for
miles and looking back will not alter the situation.
48 Nev. 181, 190 (1924) Bawden v. Kuklinski
sanctioned, a reckless, malicious driver may keep the forward car from making a turn to the
left for miles and looking back will not alter the situation. No construction should be placed
upon an ordinance permitting such a thing to happen, except when absolutely necessary.
Upon the following car is imposed a reciprocal dutyone which cannot be escapedthat of
driving cautiously and watching for signals.
7. In the light of these observations, let us consider the undisputed evidence and the
physical facts. The plaintiff, after giving the signal, proceeded to make the turn. What
happened? The undisputed testimony of Hood is to the effect that the defendant, tried to cut
the corner, that he then put on his brakes, that the car wobbled a bit, and that he then tried to
get back of plaintiff's car, striking it 2 or 3 feet from the rear end. This is, indeed, a significant
state of facts, in view of the further fact that the car of plaintiff was carried by the impact a
distance of 30 feet, and then turned over. What was the trial court justified in concluding
from this testimony? The car was going, according to Hood, at the rate or 28 or 30 miles an
hour, or, as shown, about 40 feet per second. This is corroborated by the distance plaintiff's
car was carried by the impact. Yet, after the defendant observed that the plaintiff swerved to
make the turn, the defendant had time enough in which to turn to the left with a view of
cutting the corner, throw on the emergency brake, wobble a little, and then endeavor to get
behind plaintiff, in doing all of which he struck plaintiff's car about 2 or 3 feet from the rear
end. Now, if the defendant had enough time, after observing the swerving of the plaintiff's car
before starting to turn, to go through these movements, what is the inevitable conclusion? It is
that, had the defendant been driving at the lawful rate of speed, or had he observed the signal
given by the plaintiff, which the court found was given, or had he exercised reasonable care
after he noticed the plaintiff begin to swerve, he could have prevented the collision, and that
his failure to avoid the accident was due to his own negligence, which constituted the
proximate cause of the injury.
48 Nev. 181, 191 (1924) Bawden v. Kuklinski
which constituted the proximate cause of the injury. The fact that the defendant made three
movements before doing the usual thing of dropping behind the forward car necessarily
demonstrated to the trial court that there was ample room between the two cars for the first
one to turn in safety if the rear one had been under control, and the driver was observing the
signal. The fact that the defendant struck so near the rear end of plaintiff's car, in the
circumstances, shows that, if the defendant had been driving within the speed limit, or had
turned behind the forward car, even after observing its swing to make the turn, he would have
avoided the collision. Viewing the situation from any angle, the findings of the trial court are
amply sustained by the evidence.
The last error assigned is that the court guessed at the amount of damages sustained by the
plaintiffs. There is no legal rule for the measurements of damages, and we cannot say that the
amount fixed by the court is so excessive as to justify a modification. Forrester v. Southern
Pacific Co., 36 Nev. 247, 134 Pac. 753, 136 Pac. 705, 48 L. R. A. (N.S.) 1.
Perceiving no prejudicial error, the judgment is affirmed.
Ducker, C. J.: I concur.
Sanders, J., dissenting:
The assignment of error to the effect that the court refused to make a special finding on the
issue of plaintiff's contributory negligence, in my opinion, is well taken. It may be conceded
that, where negligence as to the operation of an automobile is alleged in the complaint in
general terms, it is sufficient if the finding on the issue is equally general, and specific
findings as to acts done or omitted are not necessary. But where, in an action for damages
from the collision of two automobiles, the answer alleges contributory negligence, and there
is evidence sufficient, if believed by the court or jury, to sustain the plea, it is error for the
court to fail to find on the issue. Maxwell v. Western Auto Stage Co.,
48 Nev. 181, 192 (1924) Bawden v. Kuklinski
Stage Co., 46 Cal. App. 548, 189 Pac. 710; Tucker v. United Railroads, 171 Cal. 702, 154
Pac. 835.
In an action for damages for personal injuries resulting from a collision between an
automobile and a motorcycle upon which plaintiff was riding, where the issue whether
plaintiff was guilty of contributory negligence was presented by evidence both pro and con,
the failure to make a distinct finding on such issue is reversible error. Huntington v. Vavra,
36 Cal. App. 352, 172 Pac. 166.
As to the finding, in general terms, that the defendant's negligence was the proximate
cause of plaintiff's injury, it may well have been, as said the court in Huntington v. Vavra,
that the plaintiff was guilty of acts which contributed proximately to cause the injurious
consequences which resulted. The right to have a material issue presented by the pleadings in
a cause determined by a finding of the court is one important to the parties to a suit, and the
failure to make such a finding results in prejudicial error entitling the complaining suitor to
reversal.
In Maxwell v. Western Auto Stage Co., after making it clear that, upon all the evidence, it
was for the trial court to say as to whether, under the circumstances, there was negligence on
the part of either plaintiff or the defendants, the court said:
The failure, however, of the court to find as to the contributory negligence of the plaintiff
was a matter which cannot be thus answered, and for which defendants are entitled to a new
trial.
The finding of the trial court, as quoted in the opinion of Justice Coleman, does not even
inferentially determine the issue of plaintiff's contributory negligence adversely to the
defendant's plea. The finding fixes the entire responsibility for the accident upon the failure of
the defendant to give any signal of his intention to attempt to pass plaintiff's car. The record
discloses that, immediately upon the submission of the case, the trial judge announced his
decision upon the merits from the bench. In the course of his decision, counsel for defendant
interrupted and made this request in the form of a question:
48 Nev. 181, 193 (1924) Bawden v. Kuklinski
defendant interrupted and made this request in the form of a question:
Mr. Huskey: If your honor please, would you be willing to let the record show how your
honor views the violating of law on the part of Mr. Bawden by not ascertaining the short
distance from him of the car passing, and allowing it to pass on his left?
The Court: The court does not find it necessary to determine that it was the duty of
Bawden to look around at the time when he was about to turn into Cheney Street, in view of
the fact that the court believes that, when a car attempts to pass another car ahead at a street
intersection, that the responsibility rests upon the car trying to pass, and the principal duty is
upon the shoulders of the man who tries to pass another car at a street intersection, regardless
of what these traffic cops say. I believe it is a dangerous thing for a person to pass another car
at a street intersection at any such speed as thirty miles an hour. The record may show that.
From this expression of the court, supplemented by the formal finding as set forth in the
opinion of my associate, it is manifest that the trier of the case not only failed but refused to
make a finding upon the issue of contributory negligence. The fact that the court included the
statement that the defendant attempted to pass plaintiff's car after plaintiff had given a plainly
visible signal of his intention to turn into Cheney Street does not, in my opinion, amount to an
adverse determination of the issue of contributory negligence. While I concede that it is
incumbent upon the operator of a car approaching another from the rear, while both are
traveling in the same direction to exercise a greater degree of care, and that he must have his
car well in hand and under perfect control, I do not yield to the proposition that the failure of
the defendant to give any signal of his intention to attempt to pass plaintiff's car was, under
the circumstances, such negligence as to be the proximate cause of the injury. The constant
and frequent passage of automobiles along the streets of a city is in itself sufficient notice of
the near approach of other automobiles and other vehicles, requiring of all drivers of such
vehicles the exercise of a high degree of care and watchfulness.
48 Nev. 181, 194 (1924) Bawden v. Kuklinski
of a city is in itself sufficient notice of the near approach of other automobiles and other
vehicles, requiring of all drivers of such vehicles the exercise of a high degree of care and
watchfulness. Government Street Lumber Co. v. Ollinger, 18 Ala. App. 518, 94 South. 177.
I shall not pause to review the evidence, nor enlarge upon the reciprocal duties of drivers
of automobiles or other motor vehicles proceeding in the same direction along the streets of a
city, since I am of opinion that the refusal of the court to find on the issue of contributory
negligence constitutes reversible error.
On Petition For Rehearing
February 9, 1925. 232 Pac. 782.
1. Appeal and ErrorLack of Finding on Question of Contributory Negligence Held Not to
Necessitate Reversal, where Defendant's Negligence Was Found To Be Proximate
Cause of Injury.
Stats. 1919, c. 177, as to reversal for want of finding, does not necessitate reversal
because of absence of finding on question of contributory negligence, where court has
found that defendant's negligence was proximate cause of injury.
2. Appeal and ErrorColloquy Between Court and Counsel Cannot Be Considered or
Weighed against Formal Findings.
Colloquy between court and counsel cannot be considered or weighed against formal
findings.
See 4 C. J. sec. 2363, p. 554, n. 37; sec. 3204, p. 1175, n. 37.
On motion for rehearing. Petition denied. (Sanders, J., dissenting.)
Huskey & Kuklinski, for Appellant:
Findings need not expressly negative every possible exception or qualification of facts
found, as implied negative necessarily exists, where facts found are inconsistent with those
not found. 38 Cyc. 1984.
Some states support doctrine of implied findings. Nevada requires express findings where
request has been made. Even where doctrine of implied findings occurs, failure to find on
contributory negligence is error. Maxwell v. Auto Stage Co., 189 Pac. 710.
While it is recognized rule in Nevada that where there is no special finding, and only
general finding in favor of party, the finding will be construed on appeal so as to sustain
judgment.
48 Nev. 181, 195 (1924) Bawden v. Kuklinski
of party, the finding will be construed on appeal so as to sustain judgment. Still, where
losing party requests specific findings and court refuses, nothing can be presumed in favor of
finding made, and judgment must be reversed. Moore v. Rochester W. M. Co., 42 Nev. 164.
This court did not take into consideration, as to duties of trial court as respects implied
findings, cases of Moore v. Rochester W. M. Co., supra, Schwartz, v. Stock, 26 Nev. 128, nor
Warren v. Quill, 9 Nev. 259.
Negligence on part of defendant will not relieve plaintiff from using due care, and his failure
to do so is contributive omission so proximately connected with accident that but for such
omission accident would not have occurred. Livingston v. Barney, 163 Pac. 863.
Frame & Raffetto, for Respondents:
It is apparent from record that negligence of appellant was proximate cause of accident
without intervention of any negligence on part of respondent. Giving of signal of intention to
turn was sufficient to warn following car. Blame for accident rests upon appellant.
Only specification of errors in support of motion for new trial was denial of directed
verdict or motion for nonsuit. It is too well settled that all other matters of law must be
contained in such specification of errors in support of motion for new trial, all other errors
being waived. Petition is without merit and should be denied.
OPINION
By the Court, Coleman, C. J.:
1. A petition for a rehearing has been presented. It is insisted that we reached the wrong
conclusion on the contention that the trial court failed to make a finding as to the contributory
negligence of the plaintiff. It is strenuously urged that we did not give consideration to the
concurring opinion of the writer in Moore v. Rochester Weaver Mining Co., 42 Nev. 164,
174 P. 1017, 19 A. L. R. 830 (and the authorities therein relied upon), which was quoted from
in the original brief of appellant. We did not allude to it for the reason that we were of the
opinion that the question involved was disposed of by what we did say.
48 Nev. 181, 196 (1924) Bawden v. Kuklinski
were of the opinion that the question involved was disposed of by what we did say. We may
say, however, that the rule stated in that opinion was incorporated in the statute law of this
state by chapter 177, Stats. 1919, p. 319, and hence it is now the law. But we do not think this
is a case in which it can be said the rule invoked was violated, for the reason pointed out in
our former opinion herein.
In the Moore Case the affirmative defense relied upon was that of estoppel, and the writer
took the view that a finding that the matters pleaded in the complaint were true was not a
finding upon the issue of estoppel, and that, if the plea of estoppel was or could be
established, this court could have determined if the law was properly applied to the facts
found. In other words, the writer took the view in that case that the defense of estoppel
brought into the case an element or issue which was not disposed of by the general finding;
whereas, in the original opinion in the instant case, the finding to the effect that the
negligence of the defendant was the proximate cause of the accident disposed of the ultimate
fact upon which the case must turn. Or, conceding that the plaintiff was guilty of contributory
negligence, if that contributory negligence was not the proximate cause of the injury, the
plaintiff could still recover (Weck v. Reno Traction Co., 38 Nev. 285, 149 P. 65), since the
real issuable fact upon which the judgment turned was as to whose negligence was the
proximate cause of the accident. Upon this question of fact the court made a specific finding.
Defendant in his petition for a rehearing dwells at length upon the cases of Tucker v.
United Railroads, 171 Cal. 702, 154 P. 835; Huntington v. Vavra, 36 Cal. App. 352, 172 P.
166, and Maxwell v. Western Auto Stage Co., 46 Cal. App. 548, 189 P. 710, cited in the
dissenting opinion of our associate. The opinions in the last mentioned cases are by the
District Court of Appeals of California, and are based upon the opinion in the Tucker Case
which was by the Supreme Court of California, which, of course, controls.
48 Nev. 181, 197 (1924) Bawden v. Kuklinski
California, which, of course, controls. In that case it was said:
The pleadings clearly raised the issue, and the court was bound to find upon the question
whether or not deceased was guilty of contributory negligence, proximately causing her death.
The failure of the court to make a finding responsive to this issue was error.
We think the law of that case is sound, and that it is in accord with the views expressed in
our original opinion herein. The court there held that for failure to find whose negligence
constituted the proximate cause of the injury, the judgment had to be reversed, whereas, we
held that a finding to the effect that the defendant was guilty of negligence which was the
proximate cause of the injury was sufficient. Certainly there is no difference in legal effect
between our holding in the original opinion, and the holding in the Tucker Case.
2. As to the colloquy between court and counsel, quoted from in the dissenting opinion, we
wish to observe that this court is not bound thereby, but by the findings of fact. We certainly
cannot overthrow the findings by such a statement, nor should we look to it for guidance. We
have repeatedly had occasion to point out impropriety of the incorporating the written opinion
of the trial judge in the findings. Day v. Cloke, 47 Nev. 75, 215 P. 386. If to incorporate the
written decision of the trial judge, which is the result of study and mature reflection, into the
findings is an evil practice, certainly it should not be seriously asserted that an oral statement
made during a colloquy between court and counsel, which is not incorporated in the findings,
should be weighed against the formal findings.
The petition for rehearing is hereby denied.
Ducker, J.: I concur.
Sanders, J.: I dissent.
____________
48 Nev. 198, 198 (1924) Ex Rel. Cameron v. District Court
Ex Rel. CAMERON v. DISTRICT COURT
No. 2641
September 5, 1924. 228 Pac. 617.
1. ContemptAppearance and Contest of Rule to Show Cause Held to Confer Jurisdiction of
Proceedings.
Where petitioners, cashier of bank and his attorney, appeared and contested rule to show cause why
they should not be punished for contempt, for refusal to deliver certain moneys standing to credit of
corporation to receiver of corporation, court acquired full jurisdiction over their persons as well as
subject matter.
2. ReceiversCourt May Enforce Order to Turn Over Property to Receive by Attachment or
Writ of Possession.
When possession of property is withheld from a receiver by parties to the suit or others, claiming
under them with notice of the receiver's appointment, the court may interfere in summary way and
enforce its order for surrender to receiver of such property by attachment or writ of possession.
3. Constitutional LawRequirement by Summary Process of Surrender of Property to
Receiver Held not to Violate Due Process Clause.
Requiring by summary process surrender of property by third person to receiver appointed to take
possession of it does not affect the right of property or ultimate decision of the case in such manner as to
violate constitutional requirement of due process.
4. Constitutional LawImprisonment of Bank Cashier for Refusal to Surrender Deposit to
Depositor's Receiver Not Violation of Inhibition Against Imprisonment for Debt.
Imprisonment of bank cashier for contempt for refusal to obey order to turn over moneys on deposit
to credit of corporation to its receiver did not violate constitutional inhibition against imprisonment for
debt.
5. ReceiversInterference with Possession of Receiver on Ground That Appointment Ill
Advised Not Permitted.
Courts of equity will not permit any unauthorized interference with possession of their receivers to be
justified on ground that appointment was ill advised or illegal, the remedy of parties deeming
appointment erroneous being by application to court itself; this rule applying to property which receiver
has been appointed to receive, but which he has not yet reduced to possession.
6. CourtsJurisdiction Depends on Right to Decide Case, Not on Merits of Decision.
Jurisdiction of a court depends on its right to decide a case, and never on the merits of its decision,
and errors must be corrected by appeal, and not by disobedience.
See (1) 13 C. J. sec. 13, p. 12, n. 92; sec. 16, p. 15, n. 27; sec. 101, p. 72, n. 15; (2, 5) 34 Cyc. p. 167, n. 39, 40;
p. 180, n. 22; p. 204, n. 26, 28, 29; p. 207, n. 45; p. 212, n. 63, 64, 66; p. 217, n.
48 Nev. 198, 199 (1924) Ex Rel. Cameron v. District Court
n. 97; (3, 4) 12 C. J. sec. 998, p. 1223, n. 13; (6) 15 C. J. sec. 13, p. 723, n. 79; sec. 26, p.
729, n. 49.
Original proceeding in prohibition by the State, on the relation of J. D. Cameron and
another, against the Second Judicial District Court of the State of Nevada in and for Washoe
County and another. Heard on rule to show cause. Order to show cause recalled, and writ
refused. Rehearing denied.
Cooke, French & Stoddard, for Petitioners:
Cameron and French are strangers to order, not named therein, not ordered to do anything.
Order commands Fairchild and Allied Company to deliver all money to Huntington. It is for
alleged refusal to obey order that Cameron is to be punished. Order is ex parte, mandatory,
injunctive, restraining, and void because issued without undertaking. It is immaterial that it is
called order appointing receiver. 32 C. J. 28; McWaters v. Stockslager, 162 Pac. 671; Rev.
Laws, 5136, 5140. Nor do Cameron and French come within rule against unauthorized
interferences by strangers with receiver, because rule presupposes receiver in possession. 5
Cal. Jur. 905. Cameron could not pay out money unless authorized by directors or by check in
usual course. Bank was entitled to day in court. If it paid money, equitable owners could have
recovered. McStay Supply Co. v. John S. Cook Co., 35 Nev. 284; Ex Parte Rickey, 31 Nev.
82.
Proceeding is attempt to coerce collection of debt by imprisonment. Constitution, art. 1, sec.
14.
Plaintiff is mere contract creditor without lien. Complaint is therefore fatally defective and
confers no jurisdiction to appoint receiver or make order. Rev. Laws, 5193. Stranger cannot
invoke relief. Rev. Laws, 4986.
Title to money vested in bank with right of Fairchild, trustee, to collect at any time. Ex
Parte Rickey, supra.
Death of trustee made no case for appointment of receiver. 1 Perry on Trusts (5th ed.),
secs. 264, 344; Shannon v. Davis, 2 South. 240. Proceedings should have been stayed until
legal representatives were brought in.
48 Nev. 198, 200 (1924) Ex Rel. Cameron v. District Court
have been stayed until legal representatives were brought in. Rev. Laws, 5004-8; Judson v.
Love, 35 Cal. 364.
It is not contempt to fail to obey order court has no jurisdiction to make. McKinnon v.
Harwood, 35 Nev. 393.
Other creditors, equitably real owners of money, were indispenable parties with right to
hearing before order could be made. Scrivner v. Dietz, 24 Pac. 171; 3 Pom. Eq. Jur., sec.
1086; 5 C. J. 1069.
In absence of statute ex parte appointment of receiver is void, and can be assailed.
Whitney v. Bank, 15 South. 33. Notice must be given. 2 Tardy's Smith on Receivers (2d ed.),
1964.
Wm. McKnight, for Respondents:
Court had authority to appoint receiver on death of trustee. In absence of statute, court had
authority by virtue of chancery powers to fill vacancy. Batesville v. Kaufman, 18 Wall. (U.
S.) 151; 5 C. J. 1141, 1207.
Receiver may be appointed where debtor has made assignment or property is being wasted
on application of simple contract creditor. 3 Cal. Jur. 326; Mellen v. Moline Iron Works, 131
U. S. 352. 23 R. C. L. 16; Oleson v. Bank, 45 Pac. 734.
Order was not ex parte, since proper showing was made. Rev. Laws, 5193. Insolvency of
assignee is good cause for appointment. Court may appoint on its own motion, without
notice. 5 C. J. 1207; Connah v. Sedgwick, 1 Bard. 210.
Court would not have exceeded jurisdiction anyway, since it had jurisdiction of subject
matter already. Maynard v. Railey, 2 Nev. 313.
It was not necessary to make directors of Allied Company parties. Appointment did not work
dissolution of corporation. 34 Cyc. 182; Thompson on Corporations (2d ed.), secs. 6370,
6486.
Trust under assignment for benefit of creditors is personal and does not pass to successor.
Woessner v. Crank, 3 S. W. 318; Hayne v. Seally, 35 App. Div. N. Y. 633.
48 Nev. 198, 201 (1924) Ex Rel. Cameron v. District Court
Receiver immediately became entitled to money on deposit to credit of trustee. 23 R. C. L.
71; Am. Bonding Co. v. Williams, 131 S. W. 652. Bank did not own money. Smith v. Fuller,
99 N. E. 214. Creditors did not own money. McNeill v. Hagerty, 37 N. E. 526. Money was
property of trust. Smith v. Fuller, supra. Title to property vested in successor. 5 C. J. 1208.
Refusal of petitioners to deliver money after demand and order was contempt. Rev. Laws,
5394. Disobedience of even erroneous order, if court had jurisdiction, was contempt.
Sutherland Code Pl., 1581. That one acted under advice is no defense. 13 C. J. 43. Attorney is
also guilty. Ex Parte Vance, 26 Pac. 118.
Court acquired jurisdiction of petitioners when they appeared. In Re Cohen v. Jones, 5
Cal. 393.
There could be no imprisonment for debt when no debt existed. In Re Rosser, 41 C. C. A.
497.
Validity of appointment cannot be challenged in collateral proceeding. Mellen v. Moline
Iron Works, supra.
OPINION
By the Court, Sanders, J.:
This is an original proceeding in prohibition. The matter comes before us upon the answer
of the respondent court and judge thereof to a rule to show cause why they should not be
prohibited from carrying into execution a judgment finding the relators and petitioners guilty
of contempt of court.
1. It is conceded that the respondent court caused petitioners, J. D. Cameron, cashier of the
Stock Growers' and Ranchers' Bank of Reno, and L. N. French, his attorney, to be served with
a rule to show cause why they should not be punished as for contempt for their failure and
refusal to deliver to John G. Huntington, receiver, the sum of $18,085.75 on deposit in said
bank to the credit of M. D. Fairchild, trustee for the Allied Land and Live Stock Company, a
corporation, for which company Huntington had been appointed receiver by order of the
respondent court. It is conceded that in obedience to the rule the relators appeared and
contested the matter before the court in all its phases.
48 Nev. 198, 202 (1924) Ex Rel. Cameron v. District Court
contested the matter before the court in all its phases. After a full hearing of the objections
interposed by the relators to the contempt proceeding, which objections were overruled, the
relators offered themselves as witnesses in their own behalf and were adjudged guilty of
contempt and a day fixed for the pronouncement of judgment. We are of opinion that, when
the relators appeared and contested the rule to show cause, the court acquired full jurisdiction
over their persons as well as the subject matter.
In the case of Ex Parte Cohen and Jones, 5 Cal. 494, on habeas corpus, the district court
caused the parties to be served with a rule to show cause why they should not be ordered to
deliver certain property in their possession to the receiver, appointed in a case to which they
were not parties, and in obedience to the rule they appeared and contested the matter before
the court. The court held that, when they appeared and filed their answer to this rule, the court
acquired full jurisdiction over their persons, as well as the subject matter.
2. As a general rule courts will not interfere in a summary way as against the possession of
a stranger to the action claiming by paramount title, but will leave the question of title to be
tried by a proper action to be brought for that purpose. When, however, the possession is
withheld by parties to the suit, or by others claiming under such parties, with notice of the
appointment of the receiver (as in this case), there can be no question as to the authority of
the court to interfere in a summary way and enforce its order for the surrender of the property
by attachment or writ of possession. High on Receivers, sec. 144; 34 Cyc. 204.
3, 4. This power does not conflict with the provision of law that no man shall be deprived
of his property without due process of law (Ex Parte Cohen and Jones, supra), since the
surrender to the receiver does not affect the right of property or the ultimate decision of the
case (34 Cyc. 180). We are also of opinion that, since the subject matter of the rule to show
cause was a specific sum of money under the control of Cameron as cashier of said bank,
the order cannot be said to conflict with the provision of law against imprisonment for
debt.
48 Nev. 198, 203 (1924) Ex Rel. Cameron v. District Court
as cashier of said bank, the order cannot be said to conflict with the provision of law against
imprisonment for debt. 9 Cyc. 9.
5. It is insisted, however, that the court was without and exceeded its jurisdiction in the
appointment of a receiver, and consequently all orders in the receivership proceeding were
void. In this we are unable to agree. The appointment of the receiver may have been
erroneous under the facts, a question not before us, but the court in no sense usurped or
exceeded its jurisdiction. Courts of equity will not permit any unauthorized interference with
the possession of their receivers to be justified upon the ground that the appointment of the
receiver was ill-advised or illegal. French advised Cameron that the appointment of the
receiver was insufficient and illegal. Parties, dissatisfied with or deeming such order
erroneous, must take the proper course to question its validity by application to the court
itself, and it is not competent for any person to interfere with the receiver's possession upon
the ground that his appointment was improvidently made. This rule is not limited to property
actually in the receiver's possession, but extends also to property which he has been appointed
to receive, but which he has not yet reduced to possession. High on Receives, sec. 143; 34
Cyc. 212.
6. It would serve no useful purpose to attempt to answer the exhaustive argument of
counsel to persuade us that the court was without jurisdiction to appoint a receiver. An
examination of the answer of respondents to the order to show cause convinces us that the
court had jurisdiction of the parties and of the subject matter. The appointment of the receiver
may have been improvidently made or erroneous, but all of this appears to have been
thoroughly thrashed out before the court in the receivership proceeding and upon the
objections to the rule to show cause. The jurisdiction of a court depends upon its right to
decide a case, and never upon the merits of its decision. Errors must be corrected by appeal,
and not by disobedience. Holbrook v. James H. Prichard Motor Co., 27 Ga.
48 Nev. 198, 204 (1924) Ex Rel. Cameron v. District Court
v. James H. Prichard Motor Co., 27 Ga. App. 480, 109 S. E. 164.
We do not pass upon the questions raised by counsel for the relators as to the legality of
the appointment of the receiver. We simply hold that the order, whether erroneous or not, was
within the jurisdiction of the court, and that the court had jurisdiction of the parties and the
subject matter involved in the rule to show cause why the relators should not be punished for
contempt.
The order to show cause herein is recalled, an the petition for the writ of prohibition is
refused.
Ducker, C. J.: I concur.
Coleman, J.: I concur in the general principles of law stated in the foregoing opinion.
On Petition For Rehearing
February 10, 1925.
Per Curiam:
Rehearing denied.
____________
48 Nev. 205, 205 (1924) Effinger v. Effinger
EFFINGER v. EFFINGER
No. 2645
September 10, 1924. 228 Pac. 615.
On Motion For Counsel Fees
1. DivorceAffidavits Held Not to Justify Court Order Requiring Husband to Pay Wife's
Counsel Fees.
Allegations in affidavits held not to show divorced wife to be in such necessitous circumstances as to
justify court order requiring the husband to pay her counsel fees, on appeal from divorce decree in
husband's favor.
2. DivorceWife's Actual Need Is Basis of Right to Compel Husband to Pay Counsel Fees
on Appeal.
Wife's actual need is the basis of her right to compel her divorced husband to pay her counsel fees on
appeal from the decree.
3. DivorceFrom Standpoint of Law, to Entitle Party to Counsel Fees, $600 Monthly as
Living Expenses Is Rather High.
Considered from standpoint of necessitous circumstances contemplated by the law, to entitle wife to
allowance of counsel fees on appeal from divorce decree, $600 per month for living expenses was rather
high, especially where no one was dependent on her for support.
See 19 C. J. sec. 547, p. 232, n. 92; sec. 553, p. 235, n. 47.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Suit by Robert Craig Effinger against Annie Harahan Effinger. Decree for plaintiff, and
defendant appeals. On motion for counsel fees. Motion denied.
Cooke, French & Stoddard, for Appellant.
Hoyt, Norcross, Thatcher, Woodburn & Henley, for Respondent.
OPINION
By the Court, Ducker, C. J.:
This is a motion made by appellant for counsel fees, on an appeal taken by her from a
decree of divorce obtained by respondent.
1. In her motion and notice thereof she asks that respondent be required to pay $2,500 as
her necessary and reasonable counsel fee.
48 Nev. 205, 206 (1924) Effinger v. Effinger
and reasonable counsel fee. In support of her motion she filed two affidavits, and respondent
has filed his affidavit in opposition thereto, all of which were read and submitted on the
hearing of the motion. From a careful consideration of the affidavits for and against the
motion, we are persuaded that no such necessity exits as to call for the exercise of our
discretion in requiring respondent to pay to appellant the sum of $2,500, or any sum, for her
counsel fees on this appeal.
In the case of Black v. Black, recently decided in this court, we said that the rule requiring
the husband to pay the wife sufficient to enable her to maintain herself and meet the expenses
of her suit or defense is based on necessity to prevent a failure of justice, and will not be
required unless it appears that the wife is destitute of the means to be employed for such
purposes. Black v. Black, 47 Nev. 346, 221 Pac. 239. On this subject Mr. Nelson, in his work
on Divorce and Separation, cited in the foregoing case, says:
The ecclesiastic courts seemed to have allowed temporary alimony almost as a matter of
course, without much inquiry as to the wife's circumstances. But as this relief is only granted
on the ground of necessity, it is incumbent upon the wife to show that the necessity exists.
Especially is this true at the present time when married women may acquire and possess real
and personal property in their own right. It is error to grant alimony without such proof, as
there is no presumption that she has no property. To grant temporary alimony without proof
of the wife's needs is an abuse of discretion. The fact that the wife is destitute of means to
carry on her suit and, to support herself during its pendency is as essential as any other fact to
authorize the court to award temporary alimony. This is not a mere matter of discretion, but
the settled principle of equity. 2 Nelson on Divorce and Separation, ; Collins v. Collins,
80 N. Y. 1.
Such is the great weight of authority.
Appellant admits that she has $900 more or less in bank, and that she has an income from
a trust estate which normally amounts to $S,000 per annum, and it appears from
respondent's affidavit that she testified on the trial of the case that this income for the
year 1916 amounted to $S,0S5.74; for the year 191S, $S,6S5.60; for the year 1919,
$S,351.S7; for the year 1921, $S,637.35.
48 Nev. 205, 207 (1924) Effinger v. Effinger
which normally amounts to $8,000 per annum, and it appears from respondent's affidavit that
she testified on the trial of the case that this income for the year 1916 amounted to $8,085.74;
for the year 1918, $8,685.60; for the year 1919, $8,351.87; for the year 1921, $8,637.35. She
alleges that she is indebted in the sum of $4,000 to various persons and that her ordinary and
necessary living expenses amount to $600 per month, which will be greatly increased, owing
to the fact that on the advice of her physician it will be necessary for her to leave her place of
residence in the city of New York and temporarily, at least, to reside in a warmer climate. She
alleges that she has paid $625 towards obtaining a transcript of the record on appeal in this
case and for filing the appeal in the clerk's office of this court; that she has no income or
property other than the income from the trust estate, and that the whole thereof is necessary to
meet her expense of living and to pay the heavy indebtedness incurred by her in the defense
of the action; that she has received no moneys to meet such expense from the respondent, by
order of court or otherwise, and that the expense of the defense of said litigation in the district
court, and incidental costs and disbursements incurred and paid in connection with obtaining
numerous depositions therein, and the expense of her residence in Reno, apartment rent,
living expenses, service of maid, etc., during the time she resided in Reno, covering a period
of a year or thereabouts, were substantially in excess of her then current income, so that her
income is still affected and depleted by having to be used to meet the expenses incurred upon
the trial.
2. In her second affidavit she sets out an itemized statement of expenses incurred since
making the first affidavit, by reason of an accident to her foot amounting in the aggregate to
$1,015.15, part of which was incurred in New York City, and the balance in London and
Paris. From this showing it appears that she has expended more than a year's income from her
private estate. But the showing is not entirely satisfactory as to her actual need, which is the
basis of her right to a contribution from the respondent.
48 Nev. 205, 208 (1924) Effinger v. Effinger
contribution from the respondent. It is indefinite as to what amount, if any, her expenses will
be increased by a change of residence into a warmer climate, which change, we may note in
passing, has not been made, so far as appears from her last affidavit.
3. Again, $600 per month may be a fair estimate of her ordinary expenses of living, and
necessary also according to the mode of living to which she has been accustomed from her
situation in life. But we regard it as rather high, considered from the standpoint of that
necessity contemplated by law entitling a party to support and maintenance pending divorce
proceedings, especially in view of the fact that she has no one dependent upon he for support,
so far as is shown. But be this as it may, appellant has an income of not less than $8,000 per
annum, and, while this may have been exhausted for a current year or more by her living
expenses and the expense of litigation, we are of the opinion that the showing does not reveal
any such inroads upon her estate as to place her in need of help from the respondent to pay
her counsel fees in the prosecution of this appeal, within the rule announced by this court in
Black v. Black, supra. She has assets upon which to raise money to conduct her case. In
Buehler v. Buehler, 38 Nev. 500, 151 Pac. 44, the court allowed the respondent a reasonable
sum as an attorney's fee for her defense on appeal, but it appeared in that case that the
appellant was a man of considerable means. And, as stated by the court, it also appeared that
respondent was without means of support, had no assets upon which to raise money to
conduct her case on appeal, and had no way of earning her living. In other words, it appeared
that respondent was destitute of means to employ an attorney.
Appellant alleged that respondent is a man of wealth, owning and holding in his own name
U. S. Liberty Bonds to the amount of $200,000, or thereabouts, and real estate in
Charlottesville, Virginia, of the value of $12,000 or $15,000; that his father is worth
$1,000,000, and upwards, and that respondent can, at any time, by applying to his father,
obtain whatever funds he may need, with hardly any limit to the amount.
48 Nev. 205, 209 (1924) Effinger v. Effinger
need, with hardly any limit to the amount. Respondent, in his affidavit denies these
allegations as to his resources and alleges that he has an annual income of $8,931; that he has
no property other than said income and $1,677.07 in bank, and owes $1,200; that he was
compelled to sell a two-thirds interest in property at Staunton, Virginia, to help defray the
expenses of the trial in the lower court; that the business in which he has been engaged has
proved unprofitable. He alleges that his father is not worth $1,000,000 or upwards, or any
other sum in excess of $300,000; that he has no call upon his father for financial assistance,
and that his father renders him no financial assistance whatsoever; and that the father is an
elderly man with a wife and two daughters, partially dependant upon him.
From the opposing affidavits it appears that the parties are about on an equal footing to
yearly income, with no other sources of revenue, and both equally burdened with the
expenses of litigation. But the ability of the respondent to pay her counsel fee is immaterial,
as the appellant has shown no such necessitous conditions as warrants the granting of her
motion.
It is therefore denied.
On The Merits
October 7, 1925. 239 Pac. 801.
1. EvidenceExpert Testimony to Show Witness Not Credible Proper, After Showing that
Witness Was Drug Addict.
Where, from testimony of superintendent of insane asylum, it was established that a
witness, a former patient of the asylum, was a drug addict, it was competent to show by
such expert testimony that as a drug addict the witness was not credible.
2. WitnessesProof of Habitual Use of Drugs Proper to Affect Credibility of Witness.
The habitual use of drugs, causing mental confusion and impairing moral character,
may be shown to affect credibility of witness.
3. EvidenceQuestion as to Time in which Witness Became Drug Addict for Jury, in
Determining Condition at Time of Occurrences Testified To.
Doctor's testimony that witness had been in his opinion a drug addict for a year, and
could not have arrived in such condition for at least six months, was for jury to weigh,
in determining whether witness was drug addict at time of occurrences testified to by
her.
48 Nev. 205, 210 (1924) Effinger v. Effinger
4. DivorceJuryDivorce Action Statutory; Trial by Jury Granted in Divorce Suit.
A divorce action is statutory, and either party, under Rev. Laws, sec. 5845, has a right
to a trial by jury, though such action may be equitable in nature.
5. DivorceUnder Statute Requiring Questions of Fact in Equity Case To Be Submitted to
Jury, Issue Found by Jury Finding as in Action at Law.
Where a statute requires questions of fact presented by pleadings in equity case to be
submitted to jury, issue found by jury is not simply advisory to court, but binding as in
action at law, and application in a divorce action for court to disregard findings of jury
and make own findings was properly denied.
6. DivorceVerdict in Divorce Action Conclusive, where Trial by Jury Granted, and Set
Aside Only by New Trial for Cause.
The verdict in a divorce action, where a statute gives right to trial by jury, is conclusive
as in action at law, and can only be set aside by a new trial for sufficient cause.
7. DivorceThough Jury Findings in Divorce Action Advisory Only, no Error for Court to
Refuse to Make Own Findings, Where it Was Satisfied with Jury Findings.
Where, in an action for divorce, findings of jury are regarded as advisory only, it was
not error for court to submit case to jury on general verdict and special findings, and
refuse to make its own findings, where court was satisfied with and adopted findings and
verdict of jury.
8. Appeal and ErrorReceiving General Verdict, Together with Special Findings, Harmless
Error, where Special Findings Adopted by Court.
In equity case, a general verdict should not be submitted or received with special
findings; but, if such findings are adopted by court, the receipt of the general verdict is
harmless error.
See (1, 3) 22 C. J. sec. 758, p. 664, n. 39; sec. 823, p. 729, n. 71; (2) 40 Cyc. p. 2575, n. 48;
(4, 5, 6, 7) 19 C. J. sec. 23, P. 22; sec. 384, p. 151, n. 69; sec. 391, p. 154, n. 98, 99; (8) 4
C. J. sec. 3039, p. 1056, n. 66 (new); 21 C. J. sec. 723, p. 589, n. 53 (new); sec. 728, p.
592, n. 16; sec. 736, p. 597, n. 17.
Suit by Robert Craig Effinger against Annie Harahan Effinger for divorce. From a decree
of divorce and an order denying a motion for new trial, defendant appeals. Affirmed.
Cooke, French & Stoddard and Sardis Summerfield, for Appellant:
Mere fact that witness uses or has used drugs does not impair his credibility in absence of
showing that his mind or memory was affected thereby or that he was under influence at
time of occurrence or when testifying.
48 Nev. 205, 211 (1924) Effinger v. Effinger
not impair his credibility in absence of showing that his mind or memory was affected
thereby or that he was under influence at time of occurrence or when testifying. State v.
Milosovich, 42 Nev. 263; State v. Shuman, 152 Pac. 1084.
Court may submit case to jury on general issues in law, but not in equity. Simpson v.
Harris, 21 Nev. 376; Strattan v. Raine, 45 Nev. 10.
Trial court is bound by verdict of jury in law, but may disregard it in equity if not entirely
square with judge's conscience. Const. art. 6, sec. 6; Rev. Laws, 4830; Strattan v. Raine,
supra.
Divorce case is suit in equity. Sharon v. Sharon, 7 Pac. 456; Rev. Laws, 5841.
If special findings are inconsistent new trial should be granted. Court cannot disregard
some and render judgment on remainder. Barnes v. Sabron, 10 Nev. 217; 38 Cyc. 1931, n. 20.
Finding that defendant is guilty of extreme cruelty is conclusion and not finding of any
fact. Cargnani v. Cargnani, 116 Pac. 306.
While recriminatory matter should be pleaded if wife seeks relief, it is admissible though not
pleaded to refute allegation that her jealousy was without just cause, and also to throw light
on general issue as to whether husband's conduct with other women was of such nature as to
justify his wife's jealousy. Gardner v. Gardner, 23 Nev. 213.
Thatcher & Woodburn, for Respondent:
Instant case is distinguished from State v. Shuman, cited by appellant, for reason that here
it clearly appears witness was habitual user of morphine at very time of occurrence of events
testified to. State v. Fong Loon, 158 Pac. 233; State v. Prentiss, 183 N. W. 411.
Defendant will not be permitted to show plaintiff has not been faithful to marriage
obligations, although complaint stated he was always faithful, where answer was general
denial. As matter of recrimination is affirmative defense, it must be specially pleaded.
48 Nev. 205, 212 (1924) Effinger v. Effinger
Newman v. Newman, 98 N. E. 507; Banks v. Banks, 67 Atl. 853.
Action for divorce is purely statutory in character. Worthington v. District Court, 37 Nev.
212. Even in equity cases where law provides for trial by jury, its verdict is same as in
common-law action, and cannot be more readily disregarded. The Western States, 159 Fed.
354; Reider v. Walz, 101 N. W. 601; Mayville v. French, 92 N. E. 919.
Rev. Laws, 5845, gives either party right to trial by jury, in accordance with general rules
governing trial of civil actions in district court. In such case, verdict of jury is conclusive.
Horn v. Horn, 130 N. Y. S. 591; Garrett v. Garrett, 96 N. E. 882.
Since court adopted findings of jury, whether on theory tenable or untenable, how is
appellant aggrieved? That court was satisfied with verdict is shown by its refusal to grant new
trial. Stanley v. Stanley, 146 Ill. App. 109; McCauley v. McKeig, 21 Pac. 22.
Trial court, which hears witnesses, is better qualified to judge their credibility than appellant
court which can learn the evidence only after it had been reduced to writing. Verdicts will not
be disturbed except for most cogent reasons. Burns v. Loftus, 32 Nev. 55.
OPINION
By the Court, Ducker, J.:
In this action respondent sued for and obtained a decree of divorce from appellant. The
complaint alleged extreme cruelty. The charges of cruelty were denied in the answer. For a
further defense, and by way of counterclaim, appellant charged the respondent with willful
desertion, and prayed for a decree of separate maintenance. On the trial of the case, at
appellant's request, the counterclaim was dismissed. The case was tried before a jury. Special
issues were submitted to the jury, and also a form of general verdict, all of which were found
in favor of respondent. A decree of divorce was entered, from which, and the order denying a
motion for a new trial, this appeal is taken.
48 Nev. 205, 213 (1924) Effinger v. Effinger
1. Appellant assigns as error the admission of the testimony of Dr. R. H. Richardson, a
witness for respondent, whose testimony went to the credibility of Mrs. Burger, a witness for
appellant. The circumstances under which the doctor's testimony was admitted are as follows:
Mrs. Burger testified that she had resided in Reno at the Gibson Apartments, and that a
manicurist, Mrs. McKinney, had apartments next to hers. She stated that she saw the
respondent leaving the apartments of the manicurist late at night a number of times. She said
she saw him on one occasion leaving about 20 minutes past 2 in the morning, and on another
about 1; never before 12. The witness then described in detail the brevity of the manicurist's
costume and the affectionate nature of respondent's leave-taking. She also testified as to
conversations she had with respondent at the Riverside Hotel in Reno about the 30th of July,
1921, in which he told her that he wanted to get a divorce from his wife; that he had
absolutely no reason, but was going to get a divorce, if he had to manufacture some grounds
on which to get it; and that as soon as he got it he was going to marry his secretary. The
witness also testified that respondent told her in one of these conversations that he would
poison his wife, if necessary, to get her out of the way.
Substantially stated, Dr. Richardson testified that he was the superintendent of the State
Insane Asylum, and that Mrs. Burger was received in that institution under the name of
Elizabeth Ware on the 11th day of January, 1922; that she was committed to the asylum for
two months as a drug addict of the pronounced type, and that her physical condition was
caused by the persistent use of morphia hypodermically. He said that she was emaciated,
nervous, and showed all the usual signs in such cases, including the marks of needles. In his
opinion, the witness had been addicted to the use of morphia for over a year, and could not
have arrived in her condition in a shorter period than six months. In response to a question as
to whether drug addicts are worthy of belief he stated:
My experience is that they are not credible witnesses, and that I would seldom believe
one on a subject in which he was interested, unless he was corroborated.
48 Nev. 205, 214 (1924) Effinger v. Effinger
and that I would seldom believe one on a subject in which he was interested, unless he was
corroborated. They have a tendency to want to distort the truth in preference to telling the
truth. That is my experience, and I believe it is the experience of all. A drug addict is not
liable to tell the truth, if he can avoid it.
On cross-examination the doctor stated that his statement on direct, that drug addicts were
not credible witnesses on a subject in which they were interested, should not have been so
limited, but that he meant that they were just as liable to distort the truth as to things they
were not interested in. He said, also, that the woman was discharged from the asylum after
two months' treatment as cured. He stated that a drug addict, discharged as cured of the habit,
had a tendency to avoid telling the truth, but for how long a time thereafter he did not know.
He admitted that he had never made any investigation for the purpose of testing this opinion.
We think his testimony was properly admitted. The examination discloses that the doctor
was amply qualified by knowledge of the subject and long experience in the observation and
treatment of drug addicts to give his opinion that the witness was one, the probable duration
of the habit, and its effect upon her mental faculties. The fact was established by the doctor's
testimony that Mrs. Burger was a morphine addict of the pronounced type when received in
the asylum. On cross-examination he emphasized his opinion given on direct by saying:
Her appearance was that of a pronounced drug addict. I haven't any doubt about it.
2. If the respondent could establish that she was such at the time of the occurrences and
statements concerning which she testified, it was competent to show by expert testimony the
abnormal effect upon her mind to her liability to distort or subvert the truth. The propensity in
this regard of an habitual user of drugs is well described and fortified by authority in State v.
Fong Loon, 29 Idaho, 248, 158 P. 233, L. R. A. 1916F, 1198. The court said: "We believe it
will be admitted that habitual users of opium, or other like narcotics, become notorious
liars.
48 Nev. 205, 215 (1924) Effinger v. Effinger
We believe it will be admitted that habitual users of opium, or other like narcotics,
become notorious liars. The habit of lying comes doubtless from the fact that the users of
those narcotics pass the greater part of their lives in an unreal world, and thus become unable
to distinguish between images and facts, between illusions and realities. In Wharton & Stille's
Medical Jurisprudence (3d ed.), sec. 1111, it is said that of the mental symptoms,' in the
case of morphinomaniac or other habitual users of drugs, the most characteristic, perhaps,
are the moral perversions. The chronic morphinomaniac is often a confirmed liar. The truth is
not in him. * * * There is something quite pathological in this mendacity; the lying is
unblushing, inexpert, spontaneousa sort of second nature. * * * They have been so often
narcotized, and thus cut off from actualities, living in a dream state, that they do not seem
able to recognize realities when they see them.'
The mental confusion and impairment of moral character produced by the habitual use of
morphine, cocaine, or a like narcotic are established facts in medical research. That such use
may be shown for the purpose of affecting the credibility of a witness is also well established.
State v. Fong Loon, 29 Idaho, 248, 158 P. 233, L. R. A. 1916f, 1198; Anderson v. State, 65
Tex. Cr. R. 365, 144 S. W. 281; People v. Webster, 139 N. Y. 73, 34 N. E. 730. In State v.
Fong Loon, supra, the lower court was reversed for sustaining objections to questions
propounded to a witness on cross-examination for the purpose of showing that he was an
habitual user of opium and yen she. The appellate court said:
And we think it was error for the court to restrict counsel for appellant's attempt to elicit
by cross-examination this information from Yee Wee, or to lay the foundation for the purpose
of establishing by independent proof that Yee Wee was an habitual user of opium or other
like narcotics, the extent of that use, and what, if any, effect it had or was more than likely to
have upon the mental balance of this witness, the truthfulness of his testimony, and his
capacity to remember and correctly translate the questions of the representative of the state
to Fong Chung into Chinese, and Fong Chung's answers into English."
48 Nev. 205, 216 (1924) Effinger v. Effinger
representative of the state to Fong Chung into Chinese, and Fong Chung's answers into
English.
3. Appellant contends that the doctor's testimony does not tend to show that Mrs. Burger
was an habitual user of morphine, either at the time she gave her testimony or at the time of
the occurrences or statements testified to by her. It may be conceded that the testimony does
not tend to show that she was a drug addict when her deposition was given, but we think it
has such tendency at the time she claims to have observed the respondent's conduct at the
Gibson Apartments and heard his statements concerning appellant at the Riverside Hotel. She
claims the statements were made about July 30, 1921. She gives no date as to the occasions
on which she saw respondent leaving the apartment of the manicurist, but it appears from the
testimony of Mr. Gibson, the manager of the Gibson Apartments, that she came there on the
2d day of August, 1921, and left about the 1st of the following September, and that Mrs.
McKinney, the manicurist, whom she claims she saw respondent kissing and caressing on
leaving her apartment late at night and in the early morning hours, did not come to the Gibson
Apartments until August 14, 1921. Consequently Mrs. Burger's opportunities for observing
the actions of respondent and Mrs. McKinney at the Gibson Apartments, as she claims she
did, could not have been earlier than the middle of August, 1921. In Dr. Richardson's opinion
she was a morphine addict of the pronounced type within this period. As previously stated, he
testified that she was such an addict on January 11, 1922, and in his opinion has been
addicted to the use of morphia for over a year, and could not have arrived in her condition in
a shorter period than six months. We think it was proper for the jury to weigh his testimony in
this regard.
4. It is contended that the court erred in submitting the case to the jury upon the general
issue or general verdict, and in denying appellant's application to the court to reject the
special findings and general verdict and in disregarding his application to the court to make
its own findings and enter a decree in her favor denying respondent any relief.
48 Nev. 205, 217 (1924) Effinger v. Effinger
its own findings and enter a decree in her favor denying respondent any relief. These
assignments are based upon the contention that the action is one in equity and not an action at
law. This court has heretofore declared, upon authority entirely satisfactory, that a divorce
action is statutory. Worthington v. District Court, 37 Nev. 230, 142 P.230, L. R. A. 1916a,
696, Ann. Cas. 1916e, 1097. Whether, notwithstanding it is essentially equitable in this
nature, as appellant contends, we find it unnecessary to determine. By statute either party is
given the right of trial by jury. Section 5845 of the Revised Laws provides:
Either party, on application to the court, may be entitled, at such trial, to have the issue of
fact involved in such case and presented by the pleadings, tried by a jury, in accordance with
the general rules governing the trial of civil actions in the district court.
5. It is well established that, when a statute requires a question of fact presented by the
pleadings in an equity case to be submitted to a jury, then the issue found by the jury is to
simply advisory to the court, but binding, as in an action at law. 21 C. J. 592; Mayville v.
French, 246 Ill. 434, 92 N. E. 919; Reider v. Walz et al., 93 Minn. 399, 101 N. W. 601; The
Western States, 159 F. 354, 86 C. C. A. 354. The rule is recognized and stated in McClave v.
Gibb, 157 N. Y. 413, 52 N. E. 186. In The Western States, supra, the reason for the rule is
stated:
When, however, the statute gives to a party the right to a jury trial, it is difficult to believe
that it was intended to authorize the court to take this right away and substitute its own
findings for the jury's, as in the case of feigned issues sent out of chancery. Such a practice
does not give the party a jury trial at all, or, at best, it gives with one hand what it takes away
with the other. It seems to us that, consistently with a party's right to a jury trial, the power of
the court can go no further than to grant a new trial.
6. When the right of trial by jury is given by statute in divorce actions the verdict is
uniformly held to be conclusive as in an action at law and can only be set aside by the
granting of a new trial for sufficient cause.
48 Nev. 205, 218 (1924) Effinger v. Effinger
conclusive as in an action at law and can only be set aside by the granting of a new trial for
sufficient cause. 19 C. J. 154; 7 Ency. Pl. & Prac. 120; Garrett v. Garrett, 252 Ill. 318, 96 N.
E. 882; Lowenthal v. Lowenthal, 157 N. Y. 236, 51 N. E. 995; Horn v. Horn, 73 Misc. Rep.
14, 130 N. Y. S. 591; Poertner v. Poertner, 66 Wis. 644, 29 N. W. 386; Jackson v. Jackson,
49 Pa. Super. Ct. 18.
7. But, even if it were not for the force of the statute in this case, giving the right of trial by
jury, it is difficult to see how appellant's point that the findings were advisory only, could be
of any avail. The court adopted the findings, as it would have had a right to do in an equitable
case, and there is nothing to indicate that it considered the adoption of the findings obligatory,
and that, if it had not, it would have disregarded them, and made findings of its own favorable
to the appellant. On the contrary, it appears from the written decision which we find in the
record, that the conscience of the court was entirely satisfied with the findings and verdict of
the jury. Consequently, appellant could be in no wise prejudiced, even if we conceded that
her point that the findings were advisory only, was well taken.
8. We agree with appellant's claim that in an equity case a general verdict should not be
submitted or received with special findings, but where, as in this case, the findings were
adopted by the court, we are at a loss to perceive how the fact that a general verdict was also
received could have injured appellant. The same contention was made and held to be without
merit in McCauley v. McKeig, 8 Mont. 389, 21 P. 22, cited by respondent, in respect to
which the court said:
One more alleged error is much relied upon by appellant, who claims that this is an equity
case, and that the jury should not have been asked or allowed to return a general verdict, and
cites as authority cases from the California reports. The respondent, on the other hand, insists
that there is a combination of a common-law action with a suit in equity, and that the question
of damages was properly made the subject of a general verdict, and cites as authority Basey
v. Gallagher, 20 Wall.
48 Nev. 205, 219 (1924) Effinger v. Effinger
a general verdict, and cites as authority Basey v. Gallagher, 20 Wall. 670. This might,
perhaps, afford a subject for learned discussion; but surely it should not be allowed to disturb
a solemn judgement. In what respect was the plaintiff injured by the return of a general
verdict? The record shows that the jury did return special findings; that the judge below,
sitting as an equity judge, did solemnly accept this formal aid to his conscience, and did
approve of the special findings; and the record further shows that upon such acceptance and
approval, judgment was entered in favor of the defendant. The judgment and order appealed
from are affirmed, with costs.
Appellant assigns as error the action of the court in adopting each of the special findings of
the jury, claiming that they are not supported by the evidence and are inconsistent with and
contradictory to each other. We find nothing contradictory in the findings, and an
examination of the record discloses that there is substantial evidence to support them.
Respondent was entitled to a decree on the findings. The various matters in which appellant
claims the respondent's testimony was impeached were resolved against her by the jury and
the trial court.
The judgment is affirmed.
____________
48 Nev. 220, 220 (1924) Black v. Black
BLACK v. BLACK
No. 2621
October 2, 1924. 228 Pac. 889.
1. DivorceCause of Action for Extreme Cruelty Held Sufficiently Alleged.
Cause of action for extreme cruelty held sufficiently alleged in wife's complaint.
2. DivorceDecision on Conflicting Evidence and Credibility of Witnesses for Trial Court in
Divorce Suit.
Matters of conflict in evidence and credibility of witnesses in wife's divorce suit are for trial court,
whose decree for plaintiff will not be disturbed where supreme court cannot say, on all evidence, that
wrong conclusion was reached.
3. DivorceConclusion that Wife Did Not Desert Husband in Going to Her Parents' Home
Held Justified.
Evidence that wife went to parents' home with husband's consent held to justify conclusion, in her
divorce suit, that she did not desert defendant.
4. DivorceWife's Refusal of Marital Intercourse Not Willful Desertion.
Wife's refusal of marital intercourse with husband for more than year is not willful desertion under
divorce statute, which contemplates complete withdrawal of marital cohabitation.
5. DivorceFinding against Wife on Cause of Action for Failure to Provide Held Not
Inconsistent with Finding of Extreme Cruelty.
Finding against wife on her cause of action for divorce for failure to provide held not inconsistent
with finding for her on cause of action for extreme cruelty, though failure to provide was admitted in
answer.
6. DivorceCourt Not Bound by Admission of Alleged Cause of Action.
Trial court is not bound by admission of cause of action alleged in divorce suit.
7. DivorceAward of Custody of Minor Children to Wife Held within Court's Discretion.
Award of care and custody of minor children to wife granted divorce held within court's discretion
under civil practice act, sec. 24.
See 19 C. J. sec. 111, p. 59, n. 66; sec. 276, p. 111, n. 48; sec. 350, p. 135, n. 46; sec. 367, p. 142, n. 52; sec.
368, p. 144, n. 61; sec. 382, p. 151, n. 62 (new); sec. 479, p. 193, n. 32; sec. 799, p. 345, n. 35; sec. 803,
p. 347, n. 65; sec. 823, p. 361, n. 36.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Suit by Lillian Fahey Black against Edwin Gregory Black. Decree for plaintiff, and
defendant appeals. Affirmed. Rehearing denied.
48 Nev. 220, 221 (1924) Black v. Black
James D. Finch, for Appellant:
Findings that defendant was guilty of extreme cruelty and at same time not guilty of failure
to provide, in view of admitted evidence, are inconsistent. Authors v. Bryant, 22 Nev. 242.
Cruelty of wife and her provocation of his alleged cruelty more than offset husband's cruelty.
Wife is not entitled to divorce nor custody of children where her desertion was unjustified. 1
Nelson on Divorce and Separation, secs. 427-8; Wheeler v. Wheeler, 24 Pac. 900.
Plaintiff who provoked conduct or contributed to injury of which she complains cannot
obtain relief. 1 Nelson, sec. 433. Unless such conduct or injury greatly exceeded provocation.
Reed v. Reed, 4 Nev. 395. There will be no relief where fault is mutual. 1 Nelson, sec. 440;
Adams v. Adams, 6 Pac. 677.
Consent to live apart may be revoked by either party at any time. Refusal of offer in good
faith to resume cohabitation constitutes desertion. Keezer on Marriage and Divorce, sec. 147;
Danforth v. Danforth, 41 Am. St. Rep. 330.
Law does not require husband to follow wife to such place as she sees fit to go, in order to
escape charge of voluntary absence. Keezer, sec. 149. Nor useless and repeated efforts on part
of husband to get wife to return, where circumstances show her firm determination to remain
away. Ibid. sec. 78; Thrall v. Thrall, 32 N. J. Eq. 231.
Cause justifying separation must be sufficient as ground for divorce. 1 Nelson, sec. 95.
Refusal of sexual intercourse constitutes desertion. 1 Nelson, sec. 71.
Wife is not justified in living apart from husband because he refuses to live with her
father, nor because she fears having children, nor is poor if he shares whatever he has, nor
because she considers support inadequate, nor because she dislikes him, nor because she
desires to live in her own fashion, if she could remain with safety and retain her self respect. 1
Nelson, sec. 71.
48 Nev. 220, 222 (1924) Black v. Black
Defendant may have relief on cross-demand or answer if evidence shows him entitled to it.
1 Nelson, sec. 744; Wuest v. Wuest, 17 Nev. 218.
Having once obtained jurisdiction by plaintiff's bill, equity will retain jurisdiction until all
equitities are meted out. 1 Nelson, sec. 38; 59 L. R. A. 149; Ferry v. Ferry, 37 Pac. 431.
The name given to a pleading is immaterial. 31 Cyc. 226.
Wife who commits matrimonial offense cannot choose domicile; her domicile follows that of
husband. Aspinwall v. Aspinwall, 40 Nev. 55.
Ayres & Gardiner, for Respondent:
Cross-complaint for divorce must state same facts as must be stated by original complaint.
Hilton v. Hilton, 43 Nev. 128.
In order to rely upon errors at law, appellant must file memorandum thereof, and no other
errors than those mentioned can be considered. Rev. Laws, 5322.
As both parties desired divorce and one was granted, neither has any complaint.
Controversy concerning who should have decree is moot question for gratification of
personal feelings of appellant. Wedekind v. Bell, 26 Nev. 395.
Child's welfare is paramount consideration concerning its custody. Rev. Laws, 5840; 19 C. J.
343-346.
Cruelty is relative term. Unjustifiable conduct which wounds feelings or so utterly destroys
peace of mind as to impair health or object of matrimony is extreme cruelty. Dawson v.
Dawson, 132 S.W. 379; Character, breeding, and temperament of parties should be
considered. McAllister v. McAllister, 37 Nev. 92. Much is left to discretion of court or jury in
determining whether acts constitute cruelty. Reed v. Reed, 4 Nev. 396.
Judgment on conflicting evidence will not be set aside if supported by substantial evidence.
Wiggins v. Pradere, 32 Nev. 183.
Divided custody of children is not favored. One who has no permanent home, who travels
about country, who dislikes or is annoyed by children, may be considered improper person
to have custody.
48 Nev. 220, 223 (1924) Black v. Black
dislikes or is annoyed by children, may be considered improper person to have custody. 19 C.
J. 344; Reitman v. Reitman, 183 S. W. 135.
Lower court has right to grant nonsuit at any time subsequent to close of plaintiff's case, and
every presumption is in favor of validity of its judgment. Pease v. Pease, 47 Nev. 124.
OPINION
By the Court, Ducker, C. J.:
A decree was granted by the trial court in this action in favor of the respondent dissolving
the bonds of matrimony existing between the parties, and awarding the care and custody of
the minor children to the former. This appeal is taken from the decree and the order denying a
motion for a new trial.
Respondent was plaintiff in the court below. Her complaint sets out the jurisdictional facts,
and two causes of action are alleged in it, to wit, failure to provide and extreme cruelty. A
demurrer to the complaint on the ground that it did not state facts sufficient to constitute a
cause of action having been overruled, the appellant answered denying and admitting certain
allegations, pleading extreme cruelty as a recriminatory defense, and as grounds for a divorce
setting up willful desertion in what is designated a separate cause of action and counterclaim
and cross-complaint. The decree was granted to respondent on the grounds of the extreme
cruelty, alleged in the complaint as follows:
That during all of said period from December, 1920, to March 29, 1921, defendant was,
without cause or provocation, jealous of plaintiff, and in pursuance of such jealousy
continually suspected her of secretly keeping company and going about with men, went
around to her friends and made inquiries concerning her conduct and relations with men,
inquired of the little boy of plaintiff and defendant concerning his mother's conduct with men,
continually accused plaintiff of kissing men, kept her under surveillance and a complete
espionage; upon one occasion even complained to a stranger whose seat by accident
happened to be next to plaintiff in a street car and forbade said stranger to sit next to
plaintiff, and thereby caused plaintiff great embarrassment in the presence of several
persons upon said street car, all of which caused plaintiff great embarrassment,
humiliation, and mental suffering.
48 Nev. 220, 224 (1924) Black v. Black
upon one occasion even complained to a stranger whose seat by accident happened to be next
to plaintiff in a street car and forbade said stranger to sit next to plaintiff, and thereby caused
plaintiff great embarrassment in the presence of several persons upon said street car, all of
which caused plaintiff great embarrassment, humiliation, and mental suffering.
That on March 28, 1921, defendant sent from Washington, D. C., to the father of plaintiff
in San Francisco, Cal., a telegram which said: Trouble home. Have evidence. Wire authority
to put W. out.' W' in said telegram referred to a certain gentleman, who with his wife and
family were tenants of a portion of the house of plaintiff's father. Said accusations in said
telegram were false and without truth or foundation whatsoever.
On the same day, March 28, 1921, defendant wrote to plaintiff's father a letter in which
he accused plaintiff of kissing the said tenant and of being unduly familiar with him, all of
which said accusations were false and without foundation. On the same day, in the presence
of plaintiff and of the wife of said W.,' defendant did quarrel with said W.' and did accuse
him of kissing the plaintiff, all of which caused plaintiff great embarrassment, humiliation,
and mental suffering. That said acts of extreme cruelty constituted but a modicum of a long
line and continual and systematic course of unkind treatment and that the same, together with
a long line and systematic course of similar unkind acts and treatment, caused plaintiff great
and grievous physical and mental pain and suffering, seriously affected her health, and
purposes of the marriage, and by reason thereof she ceased to cohabit with defendant, and on
March 29, 1921, severed all relations with him and never since said date has lived or
cohabited with him.
1, 2. Appellant contends that the allegations as above set forth do not constitute a cause of
action, but the question is not discussed. We think that a cause of action for extreme cruelty is
sufficiently alleged. It is insisted that the evidence is insufficient to support the charge and
finding of extreme cruelty.
48 Nev. 220, 225 (1924) Black v. Black
charge and finding of extreme cruelty. We see no necessity for setting forth the evidence, but,
having reviewed and considered it carefully, are of the opinion that there is substantial
evidence to sustain the findings. It may be remarked that the evidence is not strong, but it
tends to prove the cruelty charged. Matters of conflict in the evidence and the credibility of
the witnesses argued by counsel for appellant in his brief and before this court in his oral
presentation of the case on appeal were within the province of the trial court, and we cannot
say upon all of the evidence that a wrong conclusion was reached. There is also substantial
evidence to support the finding of the trial court that appellant's recriminatory defense of
extreme cruelty set up as a bar to the wife's right to a divorce was not true. To detail and
comment on the evidence bearing upon this issue would be a work of supererogation and
unnecessarily extend this opinion
3, 4. The trial court found that the plaintiff did not desert defendant, and in this regard it is
contended that the evidence of willful desertion as alleged in his separate cause of action,
counterclaim, and cross-complaint, is without conflict. The contention of willful desertion is
twofold. It is insisted that she deserted him when she left their home in New Orleans, La., on
August 8, 1917, and went to the home of her parents in Washington, D. C.; and that she
deserted him by abstaining from all marital intercourse with him after the birth of their
youngest child on June 29, 1917. As to the first branch of this question there is evidence
tending strongly to show that she left their home at that time and went to the home of her
parents with the consent of her husband. The trial court was therefore justified in concluding
that there was no desertion in this respect. The evidence is, however, without conflict as to
the cessation of marital intercourse after the birth of the youngest child. The appellant
asserted this fact in his deposition read on the trial of the case, and the respondent admitted it.
In this respect she testified as follows: "Q.
48 Nev. 220, 226 (1924) Black v. Black
Q. Did you deny him relations from the time of the birth of your daughter? A. I did.
Q. Why did you deny him? A. Well, there were many reasons.
Q. What were they? A. Well, for one reason I had no love for the man. I had lost respect
for him for several things that he did that I can't tell in court. They were too terrible.
We thus have presented for determination the question whether the refusal of a wife to
have marital intercourse with her husband for a period of more than one year constitutes
willful desertion under the statute. Much might be said in favor of the continual refusal of
sexual intercourse, when health and physical condition do not make such refusal imperative,
being made a ground of divorce; but we cannot concede that the words willful desertion
employed in our statute defines such a condition. We think the legislature intended these
words to mean a complete withdrawal of marital cohabitation. As said by the court in
Southwick v. Southwick, 97 Mass. 327, 93 Am. Dec. 95:
The word desertion in the statute does not signify merely a refusal of matrimonial
intercourse, which would be a breach or violation of a single conjugal or marital duty or
obligation only, but it imports a cessation of cohabitation, a refusal to live together, which
involves an abnegation of all the duties and obligations resulting from the marriage contract.
There are decisions to the contrary, but the great weight of authority accords with the view
we take. In 19 C. J. 59, it is said:
But by the weight of authority refusal of marital intercourse is not in itself desertion, but
becomes so only when coupled with a substantial abandonment of other matrimonial duties.
See note 66 on same page for citation of a number of cases to support the foregoing
statement.
This opinion as to the weight of authority on this point is expressed in 9 R. C. L. p. 368,
where it is said: According to the prevailing view in this country the term 'desertion' as
used in the divorce statute does not include the mere unreasonable refusal of one spouse
to have with the other matrimonial intercourse, which would be merely a breach of single
conjugal or marital duty or obligation only, but it imports a cessation of cohabitation, a
refusal to live together, which involves an abrogation of all duties and obligations
resulting from the marriage contract."
48 Nev. 220, 227 (1924) Black v. Black
term desertion' as used in the divorce statute does not include the mere unreasonable refusal
of one spouse to have with the other matrimonial intercourse, which would be merely a
breach of single conjugal or marital duty or obligation only, but it imports a cessation of
cohabitation, a refusal to live together, which involves an abrogation of all duties and
obligations resulting from the marriage contract.
And as it is pointed out in the same paragraph of the last-named authority that:
This rule conforms essentially to that which prevailed in the early ecclesiastical courts.
These courts, while requiring the offending party to return and live with the libelant, never
undertook to compel the granting of sexual intercourse. They made a clear distinction
between marital intercourse' (sexual intercourse) and marital cohabitation' (living together).
The latter was a right to be enforced by the courts. The former was a right to be enforced only
in foro conscientiae.
A well-reasoned case making up those constituting the weight of authority on this question
is the case of Fritz v. Fritz, 138 Ill. 436, 28 N. E. 1058, 14 L. R. A. 685, 32 Am. St. Rep. 756,
in which a number of the authorities are discussed. The court concluded that the term willful
desertion employed in the statute involved the nonperformance of other duties besides the
cessation of marital intercourse. In the opinion it was said:
The doctrine contended for [refusal of one spouse to have sexual intercourse with the
other] rests mainly upon the idea that sexual intercourse is the central element of marriage to
which the rest is but ancillary,' and, while it may be urged with no little force, that the refusal
of such intercourse by one of the parties to the marriage contract is such a violation of marital
duty that it ought to be regarded as a good ground of divorce, yet the question before us is
simply as to the meaning of our statute. The divorce act provides that a divorce may be
granted where either party has willfully deserted or absented himself or herself from the
husband or wife, without any reasonable cause, for the space of two years.' We think that
the willful desertion here referred to was intended to mean the abnegation of all the
duties of the marital relation, and not of one alone."
48 Nev. 220, 228 (1924) Black v. Black
space of two years.' We think that the willful desertion here referred to was intended to mean
the abnegation of all the duties of the marital relation, and not of one alone.
And again, at page 442 (28 N. E. 1059) of the opinion, the court said:
At common law, whenever either the husband or wife was guilty of the injury of
subtraction, or lived separate from the other without any sufficient reason, a suit could be
brought in the ecclesiastical courts for a restitution of conjugal rights. But those courts made a
distinction between marital intercourse,' or sexual intercourse, and marital cohabitation,' or
living together. They enforced the latter, but not the former. They merely required the
offending party to return and live with the libelant. In such proceedings, the cessation of
cohabitation warranted a decree, but the suit for restitution of conjugal rights could not be
maintained on the ground of a refusal of marital intercourse. Desertion in such suits was held
to signify a refusal to live together, and, in this country, the action for divorce on the ground
of desertion is a substitute for the English proceeding for the restitution of conjugal
rightsciting authorities.
In line with the foregoing authorities are: Prall v. Prall, 58 Fla. 496, 50 South, 867, 26 L.
R. A. (N. S.) 577; Anonymous, 52 N. J. Eq. 349, 28 Atl. 467; Segelbaum v. Segelbaum, 39
Min. 258, 30 N. W. 492; Pratt v. Pratt, 75 Vt. 432, 56 Atl. 86; Stewart v. Stewart, 78 Me.
548, 7 Atl. 473, 57 Am. Rep. 822; Schoessow v. Schoessow, 83 Wis. 553, 53 N. W. 856.
But it is needless to multiply decisions. The words of our statute forbid the conclusion
contended for by appellant. Willful desertion and marital cohabitation, that is, living
together, in the ordinary acceptation of the meaning of those terms, are diametrically opposed,
and it would be an overstrained construction of the former term to declare that its meaning
does not necessarily signify a cessation of cohabitation.
5, 6. The trial court found against respondent on her cause of action alleged on the
grounds of failure to provide, and it is urged that this finding is inconsistent with the
finding of extreme cruelty upon which the decree is based.
48 Nev. 220, 229 (1924) Black v. Black
provide, and it is urged that this finding is inconsistent with the finding of extreme cruelty
upon which the decree is based. We perceive no inconsistency in these findings. One may be
a good provider and still be guilty of extreme cruelty, and vice versa. It was not necessary for
respondent to prove both causes of action to obtain a divorce. Either would be sufficient.
Appellant does not assert to the contrary, but contends that as the cause of action for failure to
provide was admitted in his answer, the finding of the court to the contrary is inconsistent
with the finding of extreme cruelty for the reasons that if he had been guilty of extreme
cruelty he would have had no justification for his admitted failure to provide. The point is
without merit. In divorce actions the trial court is not bound by an admission as to a cause of
action alleged in the proceedings. But, anyhow, we do not perceive how the finding of the
court as to the failure to prove the first cause of action has any bearing at all inconsistent with
the finding of extreme cruelty.
7. The awarding of the minor children to the care and custody of the respondent was
within the discretion of the trial court. Section 24 of the civil practice act (Rev. Laws 1912,
sec. 5840) provides:
The court, in granting a divorce, shall make such disposition of, and provision for, the
children, as shall appear most expedient under all the circumstances, and most for the present
comfort and future well being of such children. * * *
The right of visitation was reserved to the father in that part of the decree awarding the
children to the mother. They are of tender years, and the evidence does not disclose any
reason why the action of the court in this respect should be disturbed.
Judgment affirmed.
On Petition for Rehearing
November 15, 1924.
Per Curiam:
Rehearing denied.
____________
48 Nev. 230, 230 (1924) Guardia v. Guardia
GUARDIA v. GUARDIA
No. 2646
October 4, 1924. 229 Pac. 386.
1. DivorceStatute Empowering Courts to Set Aside Default Judgments Liberally Construed.
Statute empowering courts to set aside default judgments is remedial, and should be liberally
construed, especially in divorce actions.
2. JudgmentAttorney's Miscalculation of Time to Plead or Appear Insufficient Ground to
Set Aside Default.
Attorney's miscalculation of time to plead or appear is insufficient ground to set aside default
judgment.
3. JudgmentSupreme Court Indulgent in Setting Aside Defaults, because of Attorney's
Excusable Neglect.
Generally, attorney's negligence is imputable to his client, who cannot be relieved from judgment
taken against him in consequence thereof, but supreme court is quite indulgent in setting aside defaults in
consequence of attorney's excusable neglect, if party himself was not directly in default.
4. DivorceRefusal to Set Aside Default Decree Held Not Abuse of Discretion.
Trial judge held not to have abused discretion in refusing to vacate default decree of divorce on wife's
motion, in view of facts showing that she had no meritorious defense, and that to open case could only
result in determining amount of alimony.
See (1, 4) 19 C. J. sec. 408, p. 162, n. 49; sec. 409, p. 162, n. 56; sec. 412, p. 163, n. 72; (2, 3) 34 C. J. sec. 527,
p. 307, n. 81; p. 709, n. 86.
Appeal from Second Judicial District Court, Washoe County; George A. Bartlett, Judge.
Suit by Harry A. Guardia against Myra C. Guardia. Decree for plaintiff. From a judgment
and order refusing to vacate and set aside the decree, defendant appeals. Order affirmed.
Huskey & Kuklinski, for Appellant:
In divorce action, upon very slight showing court will set aside default, if application be
made in due time. Rule concerning defaults in divorce cases is not as harsh as in other cases.
Rebfuss v. Rebfuss, 145 Pac. 1020.
Discretion of court to set aside defaults should be liberally exercised to end that causes may
be determined on merits. Horton v. New Pass Co., 21 Nev. 184. Courts will be liberal in
setting aside default where meritorious defense is shown to exist, and where failure to
answer is due to excusable mistake or negligence.
48 Nev. 230, 231 (1924) Guardia v. Guardia
Courts will be liberal in setting aside default where meritorious defense is shown to exist,
and where failure to answer is due to excusable mistake or negligence. Bawmann v. Nevada
Colony Corporation, 44 Nev. 10.
It is hard to lay down general rule as to when default should be opened. Each case depends
largely on its own facts. Stretch v. Montezuma M. Co., 29 Nev. 163; Esden v. May, 36 Nev.
611; Rev. Laws, 5084.
Negligence of attorney is excusable if due to honest mistake, even though client, of course,
must be free from negligence. 23 Cyc. 939.
Affidavit of merits is not required on motion to set aside judgment in action for divorce.
Rebfuss v. Rebfuss, supra; State v. Moore (Nev.), 207 Pac. 75.
Wayne T. Wilson, for Respondent:
Unless appellant's attorneys can bring their prayer for relief within strict meaning and
intent of Rev. Laws, 5084, and show some mistake, inadvertence, surprise or excusable
neglect and, in addition, show that trial court abused discretion to end that it defeats
substantial justice, there should be no relief.
It is not ground for opening default that, due to too much business, attorney forgets to file
appearance. Lovel v. Willis, Ann. Cas. 1914b, 587; 23 Cyc. 939.
Having meritorious defense is not ground for setting aside default. Rev. Laws, 5084.
Claim that appellant's counsel relied upon respondent's attorney to keep them informed of
state of case is absurd, but even if it were breach of ethics it would not be sufficient reason to
set aside decree which answered requirements of law. Nevada Con. Mng. Co. v. Lewis, 34
Nev. 521.
Appellant's counsel had full knowledge of pendency of case for fifty-seven days, and were
retained during that time, yet neglected to file appearance. That is inexcusable neglect and
appellant is responsible for it, as negligence of attorney is negligence of client. 23 Cyc. 939.
48 Nev. 230, 232 (1924) Guardia v. Guardia
OPINION
By the Court, Sanders, J.:
On August 16, 1923, Harry A. Guardia filed suit in the district court for Washoe County
against his wife, Myra C. Guardia, for divorce, upon the ground of desertion. In lieu of
service by publication, the defendant being a nonresident, a certified copy of the summons
and complaint was served, personally, upon the defendant at her place of residence in
California, on September 1, 1923. The defendant did not appear. On October 13, 1923, the
plaintiff caused the default of the defendant to be entered, and on that day was granted a
divorce, wherein the defendant was awarded the custody of the infant child of their marriage
and plaintiff was ordered to pay to the defendant the sum of $30 per month for the
maintenance and education of the child during its minority, and until the further order of the
court. On October 15, 1923, the defendant moved to vacate and set aside the judgment, upon
the ground of surprise, inadvertence, and excusable neglect. On November, 3, 1923, the
motion was denied. The defendant appeals from the judgment and order refusing to vacate
and set aside the decree of divorce.
The motion to vacate was supported by the affidavit of the defendant and the affidavit and
testimony of her attorney, H. W. Huskey. The motion was opposed by counter affidavits of
the plaintiff and his attorney, Wayne T. Wilson. The trial judge made no findings of fact, and
the entire proceeding is before us for review upon a bill of exceptions containing apparently a
full transcript of the proceeding. We are asked to reverse the order, with directions to the trial
court to permit the defendant wife to defend the case upon its merits.
1. The law and the practice in such cases as this is so well settled that no time need be
spent in reviewing the authorities; it having been repeatedly decided that the statute
empowering courts to set aside default judgments is remedial and should be liberally
construed (Bowman v. Bowman, 47 Nev. 207, 217 Pac. 1102), especially in divorce actions
{Blundin v. Blundin, 3S Nev. 212
48 Nev. 230, 233 (1924) Guardia v. Guardia
especially in divorce actions (Blundin v. Blundin, 38 Nev. 212, 147 Pac. 1083).
2. It is contended that the trial court abused its discretion in refusing to vacate the
judgment. The substance of this contention is that the attorneys for the defendant
miscalculated the time for appearance, and were led to believe by the attorney for the plaintiff
that no steps would be taken without notice to the defendant's attorneys; and in reliance upon
counsel's promises to give notice of his intention to proceed in the cause they failed to appear
in time, and immediately upon the discovery of the default judgment moved to have the same
vacated and set aside. The miscalculation of the time to plead is not sufficient ground to set
aside the default. If a default could be vacated upon a mere showing that attorneys
inadvertently miscalculated the time to appear, it would be difficult to imagine a case where a
default should stand.
It is certain that the attorneys for the defendant had actual notice of the filing of the
complaint on the 17th day of August, 1923. Prior to the commencement of the action, Huskey
& Kuklinski were retained to keep the defendant's attorney in Los Angeles informed of any
steps taken by the plaintiff to procure a divorce, and were authorized to negotiate a
settlement, if possible, of the defendant's claim against her husband for support of herself and
child. The defendant, after being served with process, retained Huskey & Kuklinski, through
her Los Angeles attorney, to defend the action, and to this end, on September, 21, 1923, she
forwarded to them at their Reno address her affidavit, to be used in support of a motion for
suit money and counsel fees. No motion was made and the affidavit was never filed though
the same was accomplished with the filing fee. Their admitted neglect to file the affidavit
was, under the circumstances, inexcusable. It was a case of pure negligence, and the question
is whether the consequences of their neglect should be visited upon their client.
3. It is a general rule that the negligence of an attorney is imputable to his client, and that
the latter cannot be relieved from a judgment taken against him, in consequence of the
neglect, carelessness, forgetfulness, or inattention of the former.
48 Nev. 230, 234 (1924) Guardia v. Guardia
cannot be relieved from a judgment taken against him, in consequence of the neglect,
carelessness, forgetfulness, or inattention of the former. 23 Cyc. 939. This rule finds support
in the case of Harper v. Mallory, 4 Nev. 447, but this court is quite indulgent in setting aside
defaults in consequence of excusable neglect of attorneys, provided the party himself was
not directly in fault. There are many cases which support the proposition that, where a party
has employed counsel of good reputation, and practicing habitually in the particular court, the
neglect of such counsel is a surprise to the party, within the meaning of the statute entitling
him to relief in such case (see note, 27 L. R. A. [N.S.] 858), but the rule is not applied in
every case.
4. Upon the hearing of the motion to vacate, Mrs. Guardia filed and tendered her answer
and cross-complaint, praying a divorce from the plaintiff upon the ground of desertion, and
asserting that $60 per month was a reasonable sum to be adjudged and decreed against
plaintiff for the support of herself and child. It further appeared from one of her affidavits that
in September, 1921, the parties separated, and that on September 28, 1921, Mrs. Guardia
instituted separate maintenance proceedings against her husband in one of the courts in Los
Angeles, and that on November 14, 1921, her husband was ordered to pay her $40 per month
for the maintenance of herself and child. It appears that, subsequent to the making of this
order, the husband left California and came to Reno, Nevada. It was made to appear from his
affidavit that he had complied substantially with said judgment and order of the California
court. Both parties apparently desired a divorce upon the ground of desertion. Mrs. Guardia
was willing that her husband should take judgment, provided satisfactory arrangements could
be made for the support and maintenance of herself and child. By the terms of the decree she
was granted the custody of the child, and $30 per month for its maintenance and education
until the further order of the court. It appears from the affidavit of Mr. Guardia that to assure
the payment of said sum he had made arrangements with his mother to make the monthly
payments in accordance with the decree.
48 Nev. 230, 235 (1924) Guardia v. Guardia
of said sum he had made arrangements with his mother to make the monthly payments in
accordance with the decree. There is nothing to show that there was any community property
or separate property involved in the proceeding for divorce. The only possible injury resulting
to Mrs. Guardia from the refusal of the court to set aside her default relates to her incidental
claim of alimony. The court obviously was of opinion that Mrs. Guardia had not shown a
meritorious defense to the action, and to open the case could only result in determining the
amount, if any, she should be paid as alimony. In view of the facts, this court cannot say that
the trial judge abused his discretion in refusing to vacate the default.
Therefore the order is affirmed.
____________
48 Nev. 235, 235 (1924) Mellan v. Messenger
MELLAN v. MESSENGER
No. 2631
October 6, 1924. 228 Pac. 1095.
1. Appeal and ErrorMotion to Dismiss on Matters Not in Record To Be Accompanied by
Affidavit.
Motion to dismiss appeal, so far as based on matters not appearing in the record, should be
accompanied by affidavit or other showing.
2. Appeal and ErrorStatute against Dismissal for Defect in Appellate Practice Till
Opportunity to Amend Held Applicable.
Stats. 1923, c. 97, sec. 2, providing against dismissal of appeal for defect in appellate proceedings till
appellant has been given opportunity to correct it, held to be construed most liberally, and applicable to
motion to dismiss, on ground that trial court had not disposed of respondent's objections there made to
bill of exceptions.
3. Appeal and ErrorGround of Motion to Dismiss, that Bill of Exceptions Not Filed with
Trial Court Clerk, Held Not Supported.
Ground of motion to dismiss appeal, that bill of exceptions had not been filed with trial court clerk,
held to fail as not supported; bill bearing what purported to be notation of its having been duly filed, and
what purported to be clerk's certificate that it was true bill of exceptions and record on appeal.
48 Nev. 235, 236 (1924) Mellan v. Messenger
4. Appeal and ErrorAppeal from Judgment and Order Denying New Trial Must be within
Time Limit for Both.
Under Stats. 1913, c. 91, providing that appeal may be taken from final judgment within six months after
it is rendered, and from an order denying new trial within 60 days after order is made and entered, an
appeal, though from both judgment and order, not being within statutory periods as to each, is too late,
though within six months from denial of new trial.
See 3 C. J. sec. 1050, p. 1053, n. 11; 4 C. J. sec. 2399, p. 588, n. 87 (new); sec. 2420, p. 599, n. 1 (new).
Appeal from Seventh Judicial District Court, Mineral County; J. Emmett Walsh, Judge.
Action by Jess Mellan against Ed. V. Messenger. From judgment for defendant, and order
denying new trial, plaintiff appeals. Appeals dismissed, and judgment and order affirmed.
I. S. Thompson, for Appellant:
Plaintiff complied with Rev. Laws, 5068, so far as he could in furnishing complete
itemized statement of account. Law does not require impossibilities. Connor v. Hutchinson,
17 Cal. 279. Though notice and demand be not complied with, it is still in discretion of court
to allow evidence. Silva v. Bair, 75 Pac. 162. At least plaintiff was entitled to prove items set
forth.
Appellant's right to appeal dates from decision on motion for new trial, until which time
judgment does not become final for purpose of review. Brown v. Evans (Nev.), 18 Fed. 56.
Transcript plainly shows question presented. Such record does not need approval of
opposite counsel nor certificate of judge, and may be filed in lieu of bill of exceptions and
constitutes bill of exceptions without further stipulation or settlement. 1923 Stats. 164.
Having prevented hearing on merits, respondent now seeks to prevent review.
Separate appeals from judgment and order denying motion for new trial are not necessary.
First would be valueless and would deprive appellant of very object of motion for new trial.
48 Nev. 235, 237 (1924) Mellan v. Messenger
J. H. White and C. C. Ward, for Respondent:
Immediately upon service of alleged transcript objections and motion to strike were made,
filed, and served, which objections and motion have not been ruled upon. If decided favorably
to defendant, alleged appeal will be moot question for there will be nothing for this court to
decide. Jones v. Montagu, 194 U. S. 150; State v. Savage, 90 N. W. 898.
Notice of appeal purports to appeal from judgment of trial court when no final judgment
was rendered, and such appeal is dated more than six months after date of alleged judgment,
and is too late. 1913 Stats. 113.
Pretended appeal was not filed in this court until more than seventeen days after time
prescribed.
If it be contended that appeal was from decision, instead of final judgment, still, as no
notice of intention to appeal from decision sustaining objection to introduction of testimony
was made, filed, or served within twenty days from rendition thereof, it came too late. 1915
Stats. 166.
There has been no final judgment. Appellant attempts to appeal from decision sustaining
objection to introduction to certain evidence, which decision was not error, as failure to give
itemized account on demand acts as bar to introduction of any evidence in support thereof.
Rev. Laws, 5068.
OPINION
By the Court, Coleman, J.:
This case is before the court on a motion to dismiss the appeal.
1, 2. The motion to dismiss is based upon several grounds, one being that objections had
been made by the defendant (respondent) to the so-called bill of exceptions in the district
court, and that the same had not been disposed of in that court.
We may say here that there is no affidavit accompanying the motion to dismiss, or other
showing which we think would justify our granting the motion, so far as it is based upon
matters not appearing in the so-called record on appeal.
48 Nev. 235, 238 (1924) Mellan v. Messenger
it is based upon matters not appearing in the so-called record on appeal. But there is another
reason why the motion is not good. Section 2, c. 97, Stats. 1923, provides that no appeal shall
be dismissed for any defect or informality in the appellate proceedings until the appellant has
been given an opportunity to amend or correct such defect. This is a wholesome provision,
and we think it should be construed most liberally.
3. Another ground of the motion is that the so-called bill of exceptions had not been filed
with the clerk of the trial court. Inspection thereof shows that it bears what purports to be a
notation of its having been duly filed. There is also what purports to be a certificate of the
clerk, under the seal of the court, that the within is the true, original bill of exceptions and
record on appeal. * * * There being no showing in support of the respondent's motion, this
ground of objection must fail.
4. The respondent also moves to dismiss the appeal, upon the ground that it was not taken
either from the judgment or from the order denying the motion for a new trial within the
statutory time. The statute (Stats. 1913, p. 113) provides that an appeal may be taken from a
final judgment within six months after the judgment is rendered, and from an order denying a
motion for a new trial within 60 days after the order is made and entered in the minutes of the
court. The final judgment was rendered on November 24, 1922, and on June 26, 1923, the
order denying the motion for a new trial was filed with the clerk of the court. The appeal from
both the judgment and the order was taken on September 19, 1923.
It is clear that neither appeal was within the time limit fixed by the statute. It is said by
counsel for appellant that where the appeal is from both the judgment and the order denying a
motion for a new trial, the appellant has six months from the date of the denial of the motion
for a new trial in which to appeal, citing Brown v. Evans (C. C.), 18 Fed. 56, in support of the
contention. We do not think this case undertakes to construe our statute, nor one similar to
it, and, if it did, we would be disposed not to follow it.
48 Nev. 235, 239 (1924) Mellan v. Messenger
construe our statute, nor one similar to it, and, if it did, we would be disposed not to follow it.
To give our statute the interpretation contended for would result in giving a party two
opportunities to appeal from the judgment, and greatly delay the perfecting of the appeal. It is
obvious from a reading of the statute that no such a result can be accomplished, except by a
distorted interpretation.
Appellant having failed to take an appeal from both the judgment and the order within the
time limit, it follows that both appeals must be dismissed, and that the judgment and order
must be affirmed.
It is so ordered.
____________
48 Nev. 239, 239 (1924) Wallman v. Wallman
WALLMAN v. WALLMAN
No. 2661
October 6, 1924. 229 Pac. 1.
On Motion For Attorney's Fee
1. DivorceHusband's Poverty No Defense to Wife's Application for Suit Money.
Where husband is plaintiff in divorce suit, his poverty is not ground on which to resist application for
suit money, since he must either furnish wife funds with which to make her defense or submit to stay or
proceedings in action.
2. DivorceHusband Liable on Appeal to Allowance for Wife's Attorney's Fees, but Not for
Expense of Depositions.
On plaintiff husband's appeal from judgment in wife's favor in divorce suit, wife on motion therefor is
entitled to allowance for reasonable attorney's fees for services rendered in supreme court, but not for
expenses incurred in taking depositions in trial court, which matter was entirely in the trial court's
jurisdiction.
See 19 C. J. sec. 554, p. 236, n. 63, 65; sec. 547, p. 232, n. 92.
Appeal from Second Judicial District Court, Washoe County; James A. Callahan, Judge.
Suit for divorce by Harry M. Wallman against Catherine C. Wallman. From a decree for
defendant, and an order denying a new trial, plaintiff appeals.
48 Nev. 239, 240 (1924) Wallman v. Wallman
and an order denying a new trial, plaintiff appeals. On motion by defendant for allowance of
attorney's fees for defense of suit in supreme court, and expenses incurred in taking
depositions in trial court, and for stay of proceedings. Granted as to attorney's fees, and
proceedings stayed until compliance with order.
John Robb Clarke, for Appellant.
Evalyn Gregory, for Respondent.
OPINION
By the Court, Coleman, J.:
This suit was instituted by Harry M. Wallman to procure a divorce from his wife,
Catherine C. Wallman. We will allude to the parties as plaintiff and defendant, they were
designated in the district court.
The parties intermarried in the State of New Jersey. The plaintiff, having established his
residence in this sate, instituted this action for a divorce. The defendant appeared and
contested the action. Judgment and decree were entered in her favor. From the judgment, and
an order denying a motion for a new trial, the plaintiff has appealed.
In apt time the defendant appeared in this court and made a motion for the allowance of
attorney's fees in the sum of $200 for services to be rendered in defending the suit in this
court, and forth payment of a further sum to pay expenses incurred by the defendant in the
taking of depositions in her own behalf which were used in the trial court. Defendant also
asks that an order be made staying these proceedings until such order as may be made is
complied with.
In support of the motion the defendant filed and read upon the hearing several affidavits
tending to establish the financial status of the respective parties. She recites that she resides in
Newark, N. J.; that she has no money nor property, and no financial resources; and that she is
dependent upon her own labor for a livelihood; and that she is earning only $64 per month.
She further states that the plaintiff is a professional musician, and when residing in New
Jersey earned $60 per week as such; that he is able-bodied and capable of earning a good
salary; that the plaintiff deserted her in December, 1922, since which time he had
contributed nothing to her support or maintenance; that, at that time, he had in his
possession $1,000; that she desires to employ Evalyn Gregory, an attorney at law, to
present her defense in this court, and that $200 is a reasonable fee to be paid for such
services; and that she is wholly without means to pay for the service of an attorney.
48 Nev. 239, 241 (1924) Wallman v. Wallman
further states that the plaintiff is a professional musician, and when residing in New Jersey
earned $60 per week as such; that he is able-bodied and capable of earning a good salary; that
the plaintiff deserted her in December, 1922, since which time he had contributed nothing to
her support or maintenance; that, at that time, he had in his possession $1,000; that she
desires to employ Evalyn Gregory, an attorney at law, to present her defense in this court, and
that $200 is a reasonable fee to be paid for such services; and that she is wholly without
means to pay for the service of an attorney.
Appellant file counter affidavits to the effect that, at the time his affidavit was executed, he
was out of employment and had been out of employment since March, 1924, and that his total
earnings for the 12 months prior to the making of the affidavit aggregated the sum of
$269.10; that he has no other means, and that he is unable to borrow any money whatever,
and that he is in debt to the amount of $1,450; and that he is unable to pay the amount asked
for, or any sum whatever, as attorney's fees to the defendant. There are other affidavits and
counter affidavits, but we do not deem it necessary to allude to them.
1, 2. In considering the motion, we must bear in mind that the husband instituted the suit
in the trial court and is the appellant in this court, and that the defendant was brought into the
case against her will. Suffice is to say that we think it appears from the affidavits that neither
of the parties has any means of any consequence. That the plaintiff was at the time of filing
his affidavit out of employment, and that the defendant was barely earning a living for
herself.
Where the husband is the plaintiff in a suit for divorce, poverty on his part is no ground
upon which to resist an application for suit money, since he must either furnish his wife with
funds which to make her defense, or submit to stay or proceedings in the action. In Cairnes v.
Cairnes, 29 Colo. 260, 68 Pac. 233, 93 Am. St. Rep. 55, it was said: "In this connection it
may be well to state, however, that, when a husband desires the luxury of a divorce from
his wife, he should be compelled to pay the expense 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 plaintiff to deposit in court a sum sufficient to pay the expenses of
the wife from her home to the State of Colorado, to be paid to her upon her arrival here
within a reasonable time, with such additional sum as may be necessary to properly
defend the suit.
48 Nev. 239, 242 (1924) Wallman v. Wallman
In this connection it may be well to state, however, that, when a husband desires the
luxury of a divorce from his wife, he should be compelled to pay the expense 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 plaintiff to deposit in court a sum sufficient to pay the
expenses of the wife from her home to the State of Colorado, to be paid to her upon her
arrival here within a reasonable time, with such additional sum as may be necessary to
properly defend the suit. And in case the plaintiff is unable to make reasonable provision for
his wife during the pendency of the suit, the suit should be abated until he is able to do so.
The Court of Appeals of Missouri, in Mangels v. Mangels, 6 Mo. App. 481, said:
If the husband is plaintiff, and cannot furnish his wife with the means of defending his
suit, he is not entitled to decree. Purcell v. Purcell, 3 Edw. Ch. 194. That the husband has no
visible estate is not a sufficient ground for refusing to the wife a proper allowance for
necessary expenses of the suit.
In discussing this question it was said in Deemer v. Deemer, 7 Pa. Co. Ct. R. 554:
As to her husband's ability to furnish the means for her, it is immaterial whether he has
the ability or not. If he has the ability the wife is protected by an order in her favor. If he has
not the ability and he is, as here, the libelant, we accomplish virtually the same end by making
the allowance and suspending the proceedings until he becomes of sufficient ability to pay it.
Schireman v. Schireman, 2 Max. 25, 7 Pa. C. C. R. 110.
Such is the rule in New York. We quote from Cohen v. Cohen, 11 Misc. Rep. 704, 32 N.
Y. Supp. 1082:
A careful consideration of the papers submitted satisfies me that the plaintiff is absolutely
without means; but his poverty is no defense to the application. Hallock v. Hallock, 4 How.
Pr. 160; Frickel v. Frickel, 4 Misc.
48 Nev. 239, 243 (1924) Wallman v. Wallman
4 Misc. Rep. 382, 24 N. Y. Supp. 483. He must, in an action of this character, either furnish
the wife with the money to enable her to make her defense, or abandon the action. Purcell v.
Purcell, 3 Edw. Ch. 194. Great injustice might be done if the husband were not compelled to
furnish to his wife the means of having so important a question of fact as is involved in this
action decided in the usual manner. Hallock v. Hallock, supra. It is proper, however, to take
into consideration the pecuniary ability of the husband, and the circumstances in life of the
parties, in fixing the amount of the allowance.
To the same effect, 19 C. J. 236, sec. 554.
Counsel for the plaintiff does not contend that the sum of $200 is not a fair and reasonable
fee for defending the suit in this court.
We have no authority in this proceeding to make an order for the payment of the expense
incurred in taking depositions in the trial court. That was a matter entirely in the jurisdiction
of the trial court, subject to review on appeal.
It is ordered that the plaintiff pay to the clerk of this court for the benefit of the defendant
as an attorney's fee the sum of $200, and that proceedings herein be stayed until this order is
complied with.
____________
48 Nev. 244, 244 (1924) Johns-Manville, Inc. v. Lander County
JOHNS-MANVILLE, INC. v. LANDER COUNTY
No. 2696
October 14, 1924. 229 Pac. 387.
1. Appeal and ErrorAppeal Not Dismissed for Failure to Serve Bill of Exceptions, Copy of
Record or Judgment Roll Until Appellant has Opportunity to Cure Defect.
Under Stats. 1923, c. 97, sec. 2, which should be construed most liberally, appeal will not be
dismissed for failure to file bill of exceptions, or serve it or copy of record or judgment roll on
respondent, until appellant has been given opportunity to cure defect.
2. Appeal and ErrorOrder Refusing to Set Aside Default Not Appealable; Final
Judgment.
Order refusing to set aside default is not final judgment, nor order from which appeal may be taken,
under Rev. Laws, sec. 5329, as amended by Stats. 1913, c. 91.
3. Appeal and ErrorNo Appeal, Except as Provided in Statute.
There can be no appeal, except as provided in statute.
See 3 C. J. sec. 29, p. 316, n. 43; sec. 360, p. 527, n. 36; 4 C. J. sec. 2380, p. 565, n. 52.
Appeal from Sixth Judicial District Court, Humboldt County; James A. Callahan, Judge.
Action by Johns-Manville, Inc., of California, against the county of Lander and others.
From an order refusing to set side default, defendants appeal. On motion to dismiss appeal.
Appeal dismissed.
Howard E. Browne, District Attorney, for Appellants:
Default was entered through mistake, inadvertence, surprise, and excusable neglect of
appellants' counsel under circumstances warranting and requiring court to exercise discretion,
as provided in 5084 Rev. Laws, to set it aside and allow hearing on merits.
This section has been liberally construed. Where motion to set default aside is made in due
time and meritorious defense is shown, relief will be granted. Kidd v. Four Twenty Mng. Co.,
3 Nev. 381; Howe v. Coldren, 4 Nev. 171; Horton v. New Pass Co., 21 Nev. 189: Conley v.
Chedic, 7 Nev. 336; Nolan v. May, 36 Nev. 611; Bowman v. Bowman, 47 Nev. 207.
Where complaint fails to state cause of action, any judgment entered thereon can be vacated
in proper action. Where court acquires no jurisdiction and default is entered judgment is
void and will be set aside on application.
48 Nev. 244, 245 (1924) Johns-Manville, Inc. v. Lander County
is entered judgment is void and will be set aside on application. Continental Gin Co. v.
Arnold, L. R. A. 1918b, 511; Ward v. Bank, 225 Pac. 497; W. U. Tel. Co. v. Beach, 1034.
L. O. Hawkins, for Respondent:
Right of appeal from district court is governed by chapter 46 of the civil practice act, as
amended, and does not provide for appeal from order refusing to set aside default before final
judgment. Rev. Laws, 5325, 5329, as amended 1913 Stats. 113; Botsford v. Langan, 29 Nev.
459.
Appeal taken before rendition of judgment will be dismissed. Elko-Tuscarora Mer. Co. v.
Wines, 24 Nev. 305.
Where record shows mere sustaining of demurrer without judgment, appeal will be
dismissed. Keyser v. Taylor, 4 Nev. 435.
Appeal cannot be taken from judgment or any part thereof until all rights of parties are
determined and fixed. Lake v. Lake, 17 Nev. 236.
Order setting aside default before entry of judgment is not appealable, it not being order after
judgment nor interlocutory order within Code Civ. Proc. sec. 963. Savage v. Smith, 97 Pac.
821; Bowen v. Webb, 85 Pac. 739; 3 C. J. 437.
In absence of bill of exceptions matter cannot be reviewed on appeal, though there may be
question whether such objection should be raised on merits of appeal, rather than on motion
to dismiss.
Appeal should be dismissed because no record of appeal was served as required by rule
xiii, sec. 3; 1923 Stats. 165.
Refusal to vacate order of default before judgment is mere interlocutory, reviewable only
on appeal after final judgment. Jordan v. Hutchinson, 81 Pac. 867.
OPINION
By the Court, Coleman, J.:
The respondent has moved to dismiss the appeal in this case upon three grounds: {1)
That the court is without jurisdiction to consider the appeal, for the reason that it was
prematurely taken, in that no final judgment had been rendered against the appellants or
either of them; {2) that no bill of exceptions had been filed or served upon the
respondent, as provided by the rule of this court, and {3) that no copy of the record on
appeal, or judgment roll, had been served upon the respondent.
48 Nev. 244, 246 (1924) Johns-Manville, Inc. v. Lander County
case upon three grounds: (1) That the court is without jurisdiction to consider the appeal, for
the reason that it was prematurely taken, in that no final judgment had been rendered against
the appellants or either of them; (2) that no bill of exceptions had been filed or served upon
the respondent, as provided by the rule of this court, and (3) that no copy of the record on
appeal, or judgment roll, had been served upon the respondent.
1. We may say generally that there is no merit in either of the last two grounds. Section 2
of chapter 97, Stats. 1923, provides that no appeal shall be dismissed for any defect or
informality in the appellant's proceedings, until the appellant has been given an opportunity to
correct such defect. This is an excellent provision and should be construed most liberally.
2. The first ground of the motion is well taken. Section 5329, Rev. Laws, as amended by
chapter 91, Stats. 1913, p. 113, designates the judgments and orders from which an appeal
may be taken. Paragraph 1 of that section provides that an appeal may be taken from a final
judgment within six months. Nowhere in the statute is there an authorization of an appeal
from an order refusing to set aside a default, and such is the order sought to be appealed from
in this case.
3. The right of appeal is fixed by the statute, and there can be no appeal except as provided
therein. We have no discretion in the matter. No final judgment having been rendered, and
this not being a case falling within the terms of either of the other paragraphs of the law
authorizing an appeal, the motion must be sustained. Sherman v. Standard M. Co., 166 Cal.
524, 137 Pac. 249; Bowen v. Webb, 34 Mont. 61, 85 Pac. 739; Elko-Tuscarora M. Co. v.
Wines, 24 Nev. 305, 53 Pac. 177.
Appeal dismissed.
On Second Motion to Dismiss
April 3, 1925. 234 Pac. 518.
1. Appeal and ErrorFiling of Notice of Appeal with Clerk, and Actual Service of It, or
Copy, Held Necessary.
Filing of notice of appeal with clerk, and actual service of it, or copy, thereafter
upon adverse party, held requisite to perfection of appeal, in view of Rev. Laws, sec.
48 Nev. 244, 247 (1924) Johns-Manville, Inc. v. Lander County
it, or copy, thereafter upon adverse party, held requisite to perfection of appeal, in view
of Rev. Laws, sec. 5330, and section 5369, as amended by Stats. 1923, c. 72, and mere
attempt to serve is insufficient.
2. Appeal and ErrorThat Notice of Appeal Contains More Matter Than is Required Held
Not Ground for Dismissing Appeal.
That notice of appeal contains more matter than is required held not ground for
dismissing appeal.
3. Appeal and ErrorSupreme Court May Review Intermediate Orders Without Reference
Thereto in Notice of Appeal from Judgment.
On an appeal from a judgment, supreme court may review intermediate orders without
reference thereto in the notice of appeal.
4. Appeal and ErrorMere Statement in Notice of Appeal that Defendant Appeals from
Order as well as from Judgment Does Not Oust Supreme Court of Jurisdiction.
Mere statement in notice of appeal that defendant appeals from order as well as from
judgment does not oust supreme court of jurisdiction.
5. Appeal and ErrorFailure Actually to Serve Copy of Notice of Appeal Held Jurisdictional
Defect Requiring Dismissal of Appeal; Defect or Informality.
Failure actually to serve copy of notice of appeal on adverse party held jurisdictional
defect requiring dismissal of appeal in view of Rev. Laws, sec. 5330, and section 5369 as
amended by Stats. 1923, c. 72, not being curable defect or informality within Stats.
1923, c. 97, sec. 2.
6. Appeal and ErrorParty May File and Serve New Notice of Appeal if Time for Appealing
has Not Expired.
A party whose attempted service of notice of appeal upon adverse party fails may file a
new notice and serve it if time within which the appeal may be taken has not expired.
See 3 C. J. sec. 1328, p. 1227, n. 59; sec. 1332, p. 1229, n. 77, 78; sec. 1333, p. 1230, n. 82,
83; sec. 1338, p. 1235, n. 22; 4 C. J. sec. 2380, p. 567, n. 74; p. 572, n. 16 (new).
Appeal from Sixth Judicial District Court, Humboldt County: James A. Callahan, Judge.
Action by the Johns-Manville, Incorporated, of California, against the county of Lander.
From adverse order and judgment, defendant appeals. On motion to dismiss. Appeal
dismissed.
(Judge Callahan died, and Mr. L. O. Hawkins, of Winnemucca, former attorney for
respondent herein, was appointed district judge, and Mr.
48 Nev. 244, 248 (1924) Johns-Manville, Inc. v. Lander County
was appointed district judge, and Mr. Lunsford substituted as attorney for respondent in this
case.)
E. F. Lunsford, for Movant:
Order sought to be appealed from is not appealable, being made before final judgment and
not of character from which appeal is authorized. In earlier appeal, this court referred to 5329
Rev. Laws, as amended 1913 Stats. 113, and pointed out that statute designates judgment and
orders from which appeal may be taken, and says that nowhere in statute is there
authorization for appeal from order refusing to set aside default. Court held, in effect, not that
appeal was premature, but that order was not appealable.
More than sixty days had intervened between date of making order and filing notice of
appeal. Statute quoted is only section providing for time within which appeals may be taken.
After providing that appeal from final judgment may be taken within six months, section
deals with orders and interlocutory judgments and fixes maximum at sixty days. When appeal
is not taken within time provided motion to dismiss must be sustained. Clark v. Turner, 42
Nev. 450; Nelson v. Smith, 42 Nev. 302; Luke v. Coffee, 31 Nev. 165.
No appeal has been perfected from order in that no copy of notice was served before, at time
or, or within three days after filing notice. 5330 Rev. Laws.
Service of notice is jurisdictional and cannot be waived. Reese M. C. v. Rye Patch M. Co.,
15 Nev. 341; State v. Brown, 30 Nev. 497.
Notice of appeal from order is combined in same paper with notice of appeal from judgment
and is attempt to combine two appeals in one notice. 5330 Rev. Laws, in providing what two
appeals may be combined in same notice, excludes all others. This not being appeal from
judgment and order denying motion for new trial, two appeals cannot be united in same
notice.
Record on appeal consisting of only cost bill, judgment, certificate, notice and certificate
to record is insufficient. 5273 Rev. Laws.
48 Nev. 244, 249 (1924) Johns-Manville, Inc. v. Lander County
Howard E. Browne, for Appellant:
Except in case of willful intent to delay, party with good defense should be allowed to set
it up, notwithstanding negligence on part of himself or counsel. Howe v. Coldren, 4 Nev. 171.
In all decisions of this court on defaults, there is only one in which court refused to set aside
default where application was made within reasonable time, excusable neglect shown, and
meritorious defense asserted, viz: Harper v. Mallory, 4 Nev. 417. Its doctrine was
disapproved in Horton v. New Pass, etc., Co., 21 Nev. 184, wherein Howe v. Coldren was
approved. Most recent case of Bowman v. Bowman, 47 Nev. 207, cited Howe v. Coldren
with approval. Same ruling obtains in other states having similar statute. Watson v. R. R. Co.,
41 Cal. 17; Grady v. Donohoo, 41 Pac. 41; Park v. Hillman, 224, Pac. 100; Toon v. Pickwick
Stages, 226 Pac. 628.
Purpose of remedial statute is to grant relief to litigants who can show good defense, who
have been guilty of only carelessness with no willful or fraudulent intention to delay.
Where court acquires no jurisdiction to enter judgment but judgment is entered by default
it is void and will be set aside on proper application. Continental Gin Co. v. Arnold, L. R. A.
1918b, 511, 167 Pac. 613.
Default judgment on complaint which states no cause of action will be reversed. 5084 Rev.
Laws: Ward v. Bank, 225 Pac. 497; Johnson v. Gooch, 211 Pac. 551.
Affidavit of merits made by attorney, with copy of proposed answer is sufficient. Doubt
should be resolved in favor of applicant. Sherman v. S. P. Co., 31 Nev. 285; Bowman v.
Bowman, supra.
OPINION
By the Court, Coleman, C. J.:
Heretofore we entered an order in a case entitled as above and concerning the same
litigation, whereby we dismissed an appeal from an order made before final judgment.
48 Nev. 244, 250 (1924) Johns-Manville, Inc. v. Lander County
judgment. 48 Nev. 244, 229 P. 387. Subsequently to the entry of that order, counsel for the
defendants gave notice of appeal to the effect that defendant, county of Lander, hereby
appeals to the Supreme Court of the State of Nevada, from the order of this court denying
defendant county of Lander's motion to set aside the default entered against said county of
Lander and to allow said county of Lander to answer the complaint filed in this action on the
merits; and said county of Lander, State of Nevada, also appeals from the judgment in said
action against the county of Lander, as the same appears on file in the above-entitled court
and cause. Said appeal is upon the judgment roll alone.
The plaintiff has moved to dismiss upon several grounds: (1) Because no appeal can be
taken from the order mentioned; (2) because more than 60 days have elapsed since the
making of the order mentioned and before an appeal was attempted to be taken in the matter;
(3) because no copy of the notice of appeal was served upon the plaintiff or its attorney within
three days after the filing of said notice of appeal, nor at the time of or prior to the filing of
said notice; (4) that the notice of appeal from said order is combined in the same paper with a
notice of appeal from the judgment which was made and entered in said action on December
20, 1924, and is an attempt to combine two appeals in one notice, not authorized by law; (5)
that there is not a sufficient record on appeal from either the order of the Sixth judicial district
court of the State of Nevada, in and for the county of Humboldt, of date March 5, 1924,
denying the motion of the defendant county of Lander to set aside the default entered against
said county of Lander, or from the judgment made and entered in said mentioned court on the
30th day of December, 1924, to properly, or at all, present the questions and matters sought to
be urged and raised on either of said appeals to the Supreme Court of the State of Nevada, in
this, that the said appeals are each and both taken upon the judgment roll alone, and there is
no judgment roll in the said record on appeal.
48 Nev. 244, 251 (1924) Johns-Manville, Inc. v. Lander County
Counsel for respondent calls our attention to section 5330, Revised Laws, which provides:
An appeal is taken by filing with the clerk of the court in which the judgment or order
appealed from is entered, a notice stating the appeal from the same or some specific part
thereof, and within three days thereafter serving a similar notice or copy thereof on the
adverse party or his attorney.
Upon the hearing an affidavit was read to the effect that no notice or copy of the notice of
appeal was served upon the plaintiff or its counsel as provided by law. It was stipulated that
counsel for appellant attempted to serve the notice upon counsel for the plaintiff and, failing
to find him in his office, handed a copy of the notice to another party to be served. But that is
the only showing in the matter.
1. The filing of a notice of appeal with the clerk and the service of it or a copy thereafter
upon the adverse party or his attorney are necessary to the perfection of the appeal. No mere
effort to make service will satisfy the statute. There must be an actual service, as provided in
section 5369, Revised Laws, as amended by statute (1923 Stats. pp. 103, 104).
That the filing and service of the notice in question are jurisdictional is not questioned by
counsel for appellant, and that such is the law is well settled in this state. This court, in
Spafford v. White River Valley L. & L. Co., 24 Nev. 184, 51 P. 115, quoting approvingly
from a former opinion of the court, held:
In order to take and perfect an appeal, the appellant should first file his notice of appeal,
next serve it, and within five days of the filing of the notice, file an undertaking on appeal; the
service of the notice must precede or be contemporaneous with the service.
See, also, State v. Brown, 30 Nev. 495, 98 P. 872.
2, 4. In the cases mentioned the point in question was as to the order of serving; the court
holding that, when the service was not in the order prescribed by the statute, the appellate
court acquired no jurisdiction. In the instant case, where there was an entire lack of service of
the notice, there would be even stronger ground to sustain the conclusion that this court
acquired no jurisdiction of the appeal.
48 Nev. 244, 252 (1924) Johns-Manville, Inc. v. Lander County
service of the notice, there would be even stronger ground to sustain the conclusion that this
court acquired no jurisdiction of the appeal. While what we say disposes of the entire appeal,
we may add that if the notice had been properly served, the mere statement in the notice to the
effect that the defendant appeals from the order as well as the judgment would in no way oust
this court of jurisdiction. An appeal will not be dismissed merely because the notice of appeal
contains more matter than is required. On an appeal from a judgment, this court may review
intermediate orders without reference thereto in the notice of appeal, and a notice such as
complained of would not be prejudicial. Potter v. L. A. & S. L. R. R. Co., 42 Nev. 370, 177 P.
933.
5, 6. Counsel for appellant contends that, pursuant to section 2, Stats. 1923, p. 164 (which
provides that no appeal shall be dismissed for any defect or informality in the appellate
proceedings until the appellant has been given an opportunity to correct the defect), the
appeal in this matter should not be dismissed without his being given an opportunity to serve
a copy of the notice of appeal on the respondent. It cannot be said that the failure to serve a
copy of the notice of appeal was a defect or informality. It was a total failure to comply with a
jurisdictional requirement of the statute. There is a wide difference between rectifying a
defect or informality and the performing of an act which was not done at all, especially when
that act is jurisdictional as is the service of a copy of a notice of appeal. In this connection we
deem it proper to suggest, if the time within which an appeal may be taken has not expired,
that a new notice may be filed and served. Douglass v. Thompson, 35 Nev. 196, 127 P. 561,
Ann. Cas. 1914c, 920.
Other matters were discussed upon the argument, but we do not deem it necessary to
consider them.
It is ordered that the appeal be dismissed.
____________
48 Nev. 253, 253 (1924) Johns-Manville, Inc. v. Lander County
JOHNS-MANVILLE, INC. v. LANDER COUNTY
No. 2701
November 23, 1925. 240 Pac. 925.
1. Appeal and ErrorPapers and Files Used in Support of Motion to Vacate Default Order
Form No Part of Judgment Roll.
Papers and files used in support of a motion to vacate a default order certified as part of the judgment
roll, from which alone the appeal was taken, without bill of exceptions, will be stricken on motion
therefor as being no part of judgment roll within Rev. Laws, sec. 5273.
2. StatutesStatutory Right Limited to Exact Words of Act Creating Right.
Right created solely by legislation will be limited in its application to exact words of act creating
right.
3. Schools and School DistrictsComplaint Against Board of County Commissioners for
Failure to Take Bond of Contractor to Whom Plaintiff Furnished Material Held to
Require Reversal of Judgment in Favor of Plaintiff as Not Stating Cause of Action.
In action against board of county commissioners for material furnished to contractor employed by
defendants to construct high school building pursuant to Stats. 1921, p. 63, based on defendants' failure
within Stats. 1913, p. 407, secs. 1, 5, 12, to take bond of contractor, complaint merely averring
defendants failed to exact bond, without additionally averring that they failed to take the bond, held to
require reversal as not stating cause of action; the latter statute requiring a strict construction.
See (1) 4 C. J. sec. 1775, p. 168, n. 34; (2) 36 Cyc. p. 1177, n. 98, 1; (3) 35 Cyc. p. 961, n. 77; p. 968, n. 53.
Appeal from Sixth Judicial District Court, Humboldt County; James A. Callahan, Judge.
Action by Johns-Manville, Incorporated, of California, against the county of Lander
(sometimes called Lander County), and three others as constituting Board of County
Commissioners. Judgment for plaintiff, and defendants appeal. Reversed. (Pending on
petition for rehearing.)
Howard E. Browne, District Attorney, for Appellants:
Numerous cases have been before this court wherein Rev. Laws, 5084, giving
discretionary power to court to relieve parties from defaults, have been construed, and in
practically every instance where default as entered, on motion to set same aside, made in
due time and where meritorious defense was shown, relief sought was granted.
48 Nev. 253, 254 (1924) Johns-Manville, Inc. v. Lander County
on motion to set same aside, made in due time and where meritorious defense was shown,
relief sought was granted. Kidd v. Mng. Co., 3 Nev. 381; Howe v. Coldren, 4 Nev. 171;
Horton v. New Pass Co., 21 Nev. 189; Bowman v. Bowman, 47 Nev. 207; Sherman v. S. P.
Co., 31 Nev. 285. Harper v. Mallory, 4 Nev. 447, is only case, among all cases passed upon,
wherein this court refused to set aside default where application was made within reasonable
time and meritorious defense asserted, and its doctrine was disapproved in Horton v. New
Pass Co., supra, wherein Howe v. Coldren was approved. In recent case of Bowman v.
Bowman, supra, doctrine of Howe v. Coldren was again cited with approval. Courts of other
states having similar statutes have given similar construction.
Where complaint fails to state cause of action, or where under existing facts it is impossible
to state cause of action, judgment thereon is void and will be reversed. Question may be
raised for first time on appeal. Cal. State Tel. Co. v. Patterson, 1-2 Nev. 124; Neilsen v.
Rebard, 43 Nev. 274; Gerrens v. Mng. Co., 10 Nev. 137; Nichols v. W. U. Tel. Co., 44 Nev.
148.
E. F. Lunsford, for Respondent:
Appeal is from judgment roll alone, which is permissible. Rev. Laws, 3334. Section 5273
provides just what papers shall constitute judgment roll and in as much as record discloses
that judgment entered was upon default of Lander County, subdivision 1 of said section
applies. Papers other than those which constitute judgment roll are not properly before court
and cannot be considered. Howard v. Richards, 2 Nev. 136.
Answer filed in support of motion to set aside default is no part of judgment roll and on
motion should be stricken. Reinhart v. Company D., 23 Nev. 369.
In Rosenthal v. Rosenthal, 39 Nev. 74, this court said it had been repeatedly held that in
absence of statement on appeal or bill of exceptions court was confined to consideration of
judgment roll alone.
If motion to strike is granted nothing remains except papers properly constituting
judgment roll, and if complaint states cause of action, judgment must be affirmed.
48 Nev. 253, 255 (1924) Johns-Manville, Inc. v. Lander County
papers properly constituting judgment roll, and if complaint states cause of action, judgment
must be affirmed.
Stats. 1913, p. 407, sec. 5, provides that if party letting contract shall fail to exact and take
bond such party and its officers shall be jointly and severally liable.
Granting or refusing to set aside defaults is matter of sound discretion of trial court; unless
there has been abuse of that discretion, this court will not reverse such decisions. It is
significant that of the ten cases cited by appellant, action of trial court was reversed in but
two, Kidd v. Mng. Co. 3 Nev. 381, and Horton v. New Pass, 21 Nev. 184. In the one
defendant was misled by summons, and the other excusable neglect was clearly shown. In
case at bar, absolutely no excuse is offeredsimply fact that correspondence passed between
district attorney and Salt Lake attorneys, but even this is not pointed out as cause of neglect to
file answer. If neglect is inexcusable, default will not be set aside. Baumann v. Nev. Col.
Corp., 44 Nev. 10; Wyle v. Lynch, 195 Fed. 392; Guardia v. Guardia, 48 Nev. 230.
In plain case discretion has no office to perform; its exercise is limited to doubtful cases. If it
is doubted whether excuse is sufficient, judgment of court below will not be disturbed. Bailey
v. Taafe, 29 Cal., 426, cited with approval in Horton v. New Pass, 21 Nev. 189.
OPINION
By the Court, Sanders, J.:
This action was brought by Johns-Manville, Incorporated, of California, against Lander
County and its codefendants to recover for materials furnished a contractor in the
construction of a public building known as the Battle Mountain high school. Upon the default
of the defendants to appear and answer the complaint and upon proof of its averments, the
court below rendered a joint and several judgment against the defendants for the sum of
$888.85 as prayed for in the compliant. This appeal is from said judgment, upon the
judgment roll alone, without any bill of exceptions, and practically by the defendant
Lander County alone.
48 Nev. 253, 256 (1924) Johns-Manville, Inc. v. Lander County
the judgment roll alone, without any bill of exceptions, and practically by the defendant
Lander County alone.
1. The record discloses that prior to the entry of said judgment, the court below had denied
a motion to set aside and vacate its order of default. The defendants appealed to this court
from that order. The appeal was dismissed. See 229 P. 387. The defendant Lander County,
upon its appeal from the judgment, caused to be certified as a part of the judgment roll all the
papers and files used in support of the motion to set aside and vacate said default order
without any bill of exceptions.
We are confronted with a motion to strike all the papers and files used in support of the
motion to vacate said default, upon the ground that they form no part of the judgment roll
under the statute. Section 331 of the civil practice act; section 5273; Revised Laws. The
statute does not make a default order a part of the judgment roll in cases wherein the
judgment is entered upon the default of the defendant to appear and answer. The motion to
strike is sustained. We cannot, therefore, in the absence of any bill of exceptions, notice the
point that the court below erred in refusing to vacate the default and to permit the defendant
Lander County to answer.
With the elimination from the record of the papers and files stricken, there remains to be
considered the single question of whether the complaint states facts sufficient to constitute a
cause of action against Lander County.
The complaint alleges that the legislature at its session in 1921 adopted an act entitled An
act to authorize the board of county commissioners of the county of Lander, State of Nevada,
to issue bonds to provide for the construction, equipment and furnishing of a high school
building in the town of Battle Mountain, Nevada, and authorizing the county board of
education of said county to construct, equip and furnish said building. Statutes 1921, p.63.
The complaint alleges, in substance, that the defendants A. Altenburg, G. M. Southward,
and H. G. Meyer were the duly elected, qualified, and acting county commissioners for said
defendant county of Lander; that subsequent to the enactment and approval of the
aforesaid act, and acting in pursuant of the terms and provisions thereof, and as a board
of county commissioners for said county, the defendants Altenburg, Southward, and
Meyer entered into a certain contract with one Robert Paysee for the construction of a
high school building for said county, at Battle Mountain, for the contract price of $62,000.
48 Nev. 253, 257 (1924) Johns-Manville, Inc. v. Lander County
duly elected, qualified, and acting county commissioners for said defendant county of Lander;
that subsequent to the enactment and approval of the aforesaid act, and acting in pursuant of
the terms and provisions thereof, and as a board of county commissioners for said county, the
defendants Altenburg, Southward, and Meyer entered into a certain contract with one Robert
Paysee for the construction of a high school building for said county, at Battle Mountain, for
the contract price of $62,000.
The complaint further alleges that, at the special instance and request of said Robert
Paysee, the plaintiff furnished and delivered to him as the contractor for said building certain
materials of the reasonable and contract price of $1,888.85, which said materials were used
and entered into the construction of said building; that there was paid thereon the sum of
$1,000, and the balance of $888.85 is now due, owing, and unpaid; that said Robert Paysee
failed and refused to pay plaintiff the aforesaid balance, or any part thereof, although demand
had been made upon him therefor.
Paragraph 5 of the complaint reads as follows:
That for several years prior thereto, and at the time the said contract was let and entered
into by said defendants A. Altenburg, G. M. Southward and H. C. Meyer, acting as a board of
county commissioners for said county of Lander, and the said Robert Paysee, there was then
and there in existence and unrepealed that certain act of the legislature of the State of Nevada,
approved March 26, 1913, entitled An act requiring bonds for the protection of
subcontractors, laborers and materialmen on public buildings and structures; providing for the
filing of such bonds and the giving and effect of certified copies thereof; creating a penalty
for failure to exact such bonds; relating to actions thereon, to procedure in such actions, and
allowing an attorney's fee to the prevailing party,' which said act is now, and during all of the
times mentioned in this compliant has been unrepealed and in full force and effect.
48 Nev. 253, 258 (1924) Johns-Manville, Inc. v. Lander County
That notwithstanding, and in direct violation of the terms of said last-mentioned act, the
said defendant, county of Lander, and said defendants A. Altenburg, G. M. Southward, and
H. C. Meyer, acting for and in behalf of said county of Lander, and as its board of county
commissioners, did, at the time the aforesaid contract was let and entered into between them
and the said Robert Paysee, and at all times thereafter, fail and neglect to exact of and from
the said Robert Paysee, contractor as aforesaid, the bond provided for and required by the
terms of said last aforesaid act of the legislature of the State of Nevada.
This covers the substance of the allegations of the complaint, except as to the certain
details unnecessary to this discussion.
The act of 1913 (Statutes of 1913, p.407), entitled as alleged in paragraph 5 of the
complaint, provides as follows:
Section 1. That at the time of making any contract for the erection, construction,
alteration or repair of any public building or structure, the contract price of which shall
exceed the sum of five hundred ($500) dollars, the party letting the contract shall exact from
the contractor, and the contractor shall give to such party a good and sufficient bond, * * *
which bond shall be conditioned that the contractor shall well and truly pay, or cause to be
paid, all just debts contracted by him for labor performed upon and materials furnished for the
work provided to be done by said contract.
Section 5 of the act provides, in part, as follows:
If the party letting such contract shall fail to exact and take the bond herein provided for,
or shall knowingly accept insufficient sureties thereon, such party, and the individual officers
and agents thereof, by whom such contract was authorized, shall be jointly and severally
liable to all who have performed labor upon and to all who have furnished materials for the
work provided to be done by such contract. * * *
Section 12 of the act provides: "The word 'party,' as herein used, is hereby declared to
mean and to include; * * * every county of the State of Nevada, and every board and
commission thereof.
48 Nev. 253, 259 (1924) Johns-Manville, Inc. v. Lander County
The word party,' as herein used, is hereby declared to mean and to include; * * * every
county of the State of Nevada, and every board and commission thereof. * * *
The above being the law applicable to the complaint, it will be observed that the plaintiff
bases its right of action upon the failure and neglect of the defendant county and its board of
county commissioners to exact of and from Robert Paysee, the contractor, the bond provided
for in the act of 1913.
2, 3. The attorney for the plaintiff argues that the complaint negatives the giving of the
statutory bond and it, therefore, states a cause of action. If counsel is correct in this
contention, no necessity exists to consider any other question. Under counsel's construction of
the law, a failure to exact the statutory bond of itself created a liability upon the defendants to
pay the plaintiff's claim for materials furnished the contractor. We do not so construe the law.
It must be conceded that the plaintiff's right to recover in this action is a right solely and
exclusively of legislative creation, and any person who would avail himself of such summary
remedy must bring himself within both the spirit and the letter of the law. Sutherland on
Statutory Construction (2d ed.), sec. 572. It is correctly said that, when a right is solely and
exclusively of legislative creation, the courts will not extend the application of the statue, but
will limit its application to the exact words of the act. Johnson v. Darr (Tex. Sup.), 272 S. W.
1098.
Section 5 of the act provides that if the party letting the contract fails to exact and take the
bond provided for, such party shall be liable to all who have performed labor upon and to all
who have furnished materials for the work provided to be done by such contract. The word
if as used in this section implies that no liability accrues or attaches unless the party letting
the contract fails altogether to exact and take the bond provided for in section 1 of the act.
Section 1 makes it mandatory upon the party letting the contract to exact from the contractor,
and upon the contractor to give to such party, a good and sufficient bond conditioned as
the section directs.
48 Nev. 253, 260 (1924) Johns-Manville, Inc. v. Lander County
contractor, and upon the contractor to give to such party, a good and sufficient bond
conditioned as the section directs. The duty imposed by section 1 of the act is that the party
letting the contract shall exact from the contractor, and the contractor shall give to such party,
a good and sufficient bond conditioned as directed. The liability created by section 5 of the
act is contingent on the failure of the party letting the contract to exact and take the bond
provided for. The particle and, which conjoins the words exact and take, in view of the
context, indicates that something in addition to the failure to exact the bond is required in
order to create a liability, and that addition is that the party letting the contract shall also fail
to take the bond which the contractor is required to give. Thus the liability created is made to
accord with the duty imposed by the first section of the act. The averment of the failure to
exact the bond does not of itself create a liability.
It is suggested that a complaint after judgment should be construed so as to support the
judgment, and that in the absence of a demurrer to this complaint the averment of the failure
of defendants to exact the bond should by implication be construed to mean that no bond was
taken. If the statue simply imposed a duty on the party letting the contract to require a bond, it
might be said that such an averment would imply that no bond was taken; but we are dealing
with a statute which purports to impose new responsibilities, not recognized by common law,
upon municipalities and their officers. The application of such a statute must be limited to the
exact words of the act, and a complaint founded upon its violation should not depend on
implication nor be helped out by intendment to bring it within the exact words of the statute.
The liability of these defendants rests upon their failure to exact and take the bond provided
for, and, therefore, a complaint which merely avers that the defendants failed to exact the
bond without the additional averment that they failed to take the bond does not state a cause
of action.
The judgment is therefore reversed.
(Pending on petition for rehearing.)
____________
48 Nev. 261, 261 (1924) Ex Rel. McGill v. Oldfield
Ex Rel. McGILL v. OLDFIELD
No. 2678
October 14, 1924. 229 Pac. 384.
1. ElectionsElection Law, Declaring That Candidate for Nomination to Nonpartison Office
Who Receives Majority of All Votes Cast Shall be Only Candidate, Applies Where
Only Two Candidates Appear.
Stats. 1917, c. 155, sec. 22, as amended by Stats. 1923, c. 43, sec. 3, providing that, when only one
person is to be elected to a nonpartisan office, any candidate who receives at primary election a majority
of the total votes cast for all candidates for such office shall be the only candidate at the ensuing election,
is applicable where there are only two candidates for nomination.
See 20 C. J. sec. 171, p. 147, n. 65.
Appeal from Ninth Judicial District Court, White Pine County; C. J. McFadden, Judge.
Application by the State of Nevada, on the relation of Ozello E. McGill, for a writ of
mandate to be directed to F. D. Oldfield, as County Clerk of White Pine County. From a
judgment of dismissal, plaintiff appeals. Affirmed.
Geo. P. Annand and V. H. Vargas, for Appellant:
The question is one of purely statutory construction of 1923 Stats. 51, section 22, and in so
far as it is applicable to nonpartisan candidates, legislature intended to include situation
where two such candidates filed for office to which one was to be elected.
Briefly, section provides that where but one person is to be elected to nonpartisan office,
candidate who receives majority of votes at primary election shall be only candidate at
ensuing election.
Such provision is repugnant to spirit and purpose of primary law and should be strictly
construed; it does not apply to cases wherein only two nonpartisan candidates file
declarations to which one shall be elected.
Purpose of primary law is to select candidates to run at general election, and not to elect
them to office at primary. 9 R. C. L. 1072; Ritter v. Douglas, 32 Nev. 400; Line v. Board of
Canvassers, 117 N. W. 730; State v. Erickson, 137 N. W. 385; Newberry v. United States,
256 U. S. 250.
48 Nev. 261, 262 (1924) Ex Rel. McGill v. Oldfield
Situation legislature sought to remedy should be taken into consideration. Hamilton v.
Rathbone, 175 U. S. 419; Maynard v. Johnson, 2 Nev. 409.
M. A. Diskin, Attorney-General, Thos. E. Powell, Deputy Attorney-General, and G. F.
Boreman, for Respondent:
Office in question was not created by constitution, but by statute. Rev. Laws, 3418, as
amended 1923 Stats. 332, sec. 2. Office created by statute is wholly within control of
legislature. Sinclair v. Young, 40 S. E. 901.
Stats. 1923, 51, sec. 22, entirely changed former law by proviso that in case but one person
is to be elected to nonpartisan office, any candidate receiving majority of total vote cast for all
candidates shall be only candidate for such office. Petitioner did not receive majority of votes
cast, but her opponent did, with result that opponent shall be only candidate.
The amendment of 1923 was copied from the California law, under which, in Marsh v.
Board of Supervisors, 192 Pac. 708, the supreme court held that where the petition showed
there were three judges to be elected, and each of the three candidates received votes of
majority of those voting at primary, and no other candidates received majority vote, names of
the three candidates are only names lawfully to be placed on ballot for general election.
In People v. Zamansky, 175 Pac. 408, California supreme court ruled that in as much as
petitioner did not allege he was majority candidate, petition did not state facts sufficient to
constitute cause of action.
Language of section 22 of election law, as amended by 1923 Stats. 51, is plain; there is no
room for construction; court is not permitted to search for meaning beyond statute itself. State
v. Jepson, 46 Nev. 196; State v. Clark, 21 Nev. 307.
OPINION
By the Court, Ducker, C. J.:
Judgment was rendered by the district court of White Pine County in favor of respondent,
dismissing appellant's affidavit and denying the peremptory writ of mandate prayed for
therein.
48 Nev. 261, 263 (1924) Ex Rel. McGill v. Oldfield
White Pine County in favor of respondent, dismissing appellant's affidavit and denying the
peremptory writ of mandate prayed for therein.
It appears from the affidavit upon which the application for the writ is based that appellant,
Ozello E. McGill, was a nonpartisan candidate at the recent primary election for the office of
short-term member of the county board of education of White Pine County, and that one
George Doyle was the only other candidate at said election for said office. Appellant received
592 votes, and Doyle received 597 votes. Appellant made a demand upon respondent for a
certificate of nomination to said office in order that her name appear as a nominee therefor on
the official ballot for the ensuing general election to be held in White Pine County, which
demand was refused by him. It appears from the record that respondent interposed a demurrer
to the affidavit, on the ground that it did not state facts sufficient to constitute a cause of
action or to entitle appellant to the relief prayed for or to any relief. The demurrer was
sustained and judgment as aforesaid subsequently rendered, from which this appeal is taken.
There is no difficulty in determining the question presented by these facts. As the office of
short-term member of the county board of education is, under existing law, a nonpartisan
office to which one person is to be elected at the ensuing general election, and as one of the
candidates for nomination received a majority of all the votes cast for both, the case is
controlled by the proviso in the last paragraph of section 22 of the act regulating the
nomination of candidates for public office in this state. The first paragraph of the section
relates to the nomination of party candidates, and has no bearing upon the question involved.
The second paragraph reads:
In the case of a nonpartisan office, the candidates equal in number to twice the number to
be elected to such office, or less, if so there be, who receive the highest number of votes shall
be the candidates for such office at the ensuing election, and their names as such candidates
shall be placed on the official ballot voted at the ensuing election; provided, however, that
in case there is but one person to be elected at the November election to a nonpartisan
office, any candidate who receives at the September primary election a majority of the
total number of votes cast for all the candidates for such office shall be the only candidate
for such office at the ensuing election."
48 Nev. 261, 264 (1924) Ex Rel. McGill v. Oldfield
voted at the ensuing election; provided, however, that in case there is but one person to be
elected at the November election to a nonpartisan office, any candidate who receives at the
September primary election a majority of the total number of votes cast for all the candidates
for such office shall be the only candidate for such office at the ensuing election. Section 3,
p. 51, Stats. 1923.
The intention of the legislature to make a nomination to a nonpartisan office equivalent to
an election to such office, under the condition prescribed, is manifested in words of
unmistakable import. We are not concerned with the policy of this statute, nor does appellant
raise any question as to the power of the legislature to enact it. It is claimed, however, that the
proviso is applicable only when there has been more than two candidates for nomination to a
nonpartisan office to which one person is to be elected, and one who has received a majority
of the total number of votes cast for all of the candidates. The language of the proviso affords
no basis for this claim. It is merely a qualification of the second paragraph of the section.
Section 22 is an amendment of the primary law of 1917 (Stats. 1917, c. 155). As the law then
stood, section 22 contained this paragraph:
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.
In 1923 the legislature eliminated this paragraph, but included the substance of it in the
second paragraph of the amendment. The second paragraph, as we have seen, provides for the
nomination of candidates for all nonpartisan offices, with the qualification contained in the
proviso that in case there is but one person to be elected to such office, the candidate
receiving a majority of the total number of votes cast for all the candidates shall be the only
candidate.
Appellant places stress upon the word all, used in the proviso, as indicating an intention
to provide for an exclusive nomination of one candidate by a majority vote only when there
are more than two candidates for the nomination, but we are convinced that no such
restricted meaning of the adjective employed was intended.
48 Nev. 261, 265 (1924) Ex Rel. McGill v. Oldfield
vote only when there are more than two candidates for the nomination, but we are convinced
that no such restricted meaning of the adjective employed was intended. The provision in its
entirety is free from ambiguity and leaves no room for construction. As appellant's
application does not show that she received a majority vote, and does show that the other
candidate did receive a majority of all the votes cast for the office of short-term member of
the county board of education of White Pine County, she is not entitled to have her name
placed upon the ballot for such office, and the demurrer was properly sustained.
The judgment of the lower court dismissing appellant's affidavit and denying the
peremptory writ of mandate asked for is affirmed.
It is so ordered.
____________
48 Nev. 265, 265 (1924) Ex Rel. Reinhart v. Callahan
Ex Rel. REINHART v. CALLAHAN
No. 2663
October 23, 1924. 229 Pac. 702.
1. PledgesCourt Held to Have Jurisdiction to Order Rendering of Account.
Where, after plaintiff had purchased certain pledged securities, defendants, as assignees of pledgee,
collected large sums of money on such securities and retained them after payment of the debt secured,
held that plaintiff's remedy was in equity for an accounting and the surrender of such securities, and court
had jurisdiction to order defendants to render an account of money received by them in payment of the
securities.
2. AccountCourt May Require That Account be Rendered Before Taking Account.
Where it has been made to appear that an accounting should be ordered, court of equity may refer
case to referee in first instance or take the account itself, or, before making an order of reference or taking
the account itself, order that verified account be rendered; such order not being in contravention of Rev.
Laws, secs. 5229-5231.
See (1) 31 Cyc. p. 860, n. 63; (2) 1 C. J. sec. 131, p. 644, n. 42.
Original proceeding in prohibition by the State of Nevada, on the relation of Moses
Reinhart, and others against James A. Callahan, District Judge of the Sixth Judicial District,
and another.
48 Nev. 265, 266 (1924) Ex Rel. Reinhart v. Callahan
Judicial District, and another. Dismissed. Rehearing denied.
Warren & Dignan, for Petitioner:
The complaint states simple action at law to recover personal property alleged to be
wrongfully withheld, asks that notes and sums collected thereon be turned over to plaintiff.
The answer puts in issue plaintiff's right to possession of notes and denies defendants have
collected any money on notes. Court made order at close of case for defendants to file and
serve statement of account. Defendants refused, and are cited for contempt. The pleadings do
not warrant reference for any purpose. Judgment to account is extra judicial and is based on
nothing.
Judgment must be warranted by pleadings of party in whose favor it is rendered. Frevert v.
Henry, 14 Nev. 191. No court or referee had authority to find fact or draw conclusion outside
issues. Marshal v. Golden Fleece, 16 Nev. 156. Judicial question may not be referred for
determination in unjudicial manner. 16 Cyc. 434. Where accounts are on one side only or
claim is single legal demand, there is no jurisdiction in equity. 1 Cyc. 425. Before accounting
can be claimed, accounts must be mutual and complicated. 1 Cyc. 422. Code provides when
reference may be ordered. Rev. Laws, 5229-31. Equity will not take jurisdiction where there
is full, complete, and adequate remedy in ordinary course of law. Conley v. Chedic, 6 Nev.
222.
Proceedings to punish for contempt are quasi-criminal. Petition or affidavit must state fact
showing contempt before court has jurisdiction to punish. Cline v. Langan, 31 Nev. 239.
Alleged violation of void order is not contempt. Prohibition will lie to prevent proceedings to
punish for such alleged contempt. McKinnon v. Harwood, 35 Nev. 494. Prohibition is proper
remedy where inferior court attempts to make excessive or unauthorized application of
judicial force in case otherwise cognizable by it. Yarehola v. Duling, 207 Pac. 293; Martin v.
O'Reilly, 200 Pac. 687. Where order which has been disobeyed is void, order punishing for
contempt for disobedience thereof is also void.
48 Nev. 265, 267 (1924) Ex Rel. Reinhart v. Callahan
disobeyed is void, order punishing for contempt for disobedience thereof is also void. Ex
Parte Gardner, 22 Nev. 280.
No trust relationship is alleged. Simple action at law for money judgment and damages
cannot be twisted by assumptions and speculations into bill in equity. Where pledgor may
obtain adequate redress at law, equity is without jurisdiction. 31 Cyc. 857, note 23.
In suit against bank to recover value of pledged property sold by it where complainants do
not attempt to trace proceeds into any particular fund, but seek decree which would bind all
bank's property, suit is at law, not in equity. Cecil National Bank v. Thurber, 59 Fed. 913.
Campbell & Robins, for Respondents:
There is but one form of civil action in this state. The facts stated determine relief to be
granted, regardless of whether petition shows grounds, either at law or in equity. Equity has
jurisdiction to compel accounting, although complainant has adequate remedy at law, where
fiduciary relation exists. 1 R. C. L., Accounts, sec. 26.
Equity never has fettered itself by defining particular relations to which it will be applied.
10 R. C. L. 349.
Every person who receives money to be paid to another, or to be applied to particular
purpose to which he does not apply it, is a trustee, and may be sued either at law for money
had and received or in equity as trustee for breach of trust. Glenon v. Harris, 13 Ann. Cas.
1163.
Action may be maintained in equity to redeem pledge, although plaintiff could have
resorted to trover or replevin. Colburn v. Riley, 52 Pac. 684; Dunn v. Stokesberry, 26 Pac.
333; 1 Cyc. 420.
Prohibition does not lie to control or to restrain court from acting within its jurisdiction
and make its decision without interference, even though its method may not be warranted by
facts. If erroneous, matter can be tested only by appeal. Smith v. McKay (U. S.), 40 L. Ed.
731.
48 Nev. 265, 268 (1924) Ex Rel. Reinhart v. Callahan
OPINION
By the Court, Coleman, J.:
This is an original proceeding in prohibition. G. W. Brainard brought suit in the district
court of Humboldt County against the petitioners herein, alleging in his complaint that the
Jaca Commercial Company, a corporation, being indebted to the First National Bank of
Boise, Idaho, in the sum of $59,000 on or about theday of October, 1920, made, executed,
and delivered to said bank its promissory note for the amount stated and delivered to the bank
as collateral security for the payment of said note, sundry notes aggregating the sum of
$96,000; that thereafter the defendants (petitioners here) purchased of said bank the note of
the Jaca Commercial Company, and took over all of the securities so deposited as collateral;
that subsequently to said purchase of the note mentioned the same was fully paid and
discharged; that on or about December 10, 1920, certain of the securities so pledged were
sold and assigned to the plaintiff, and that the plaintiff is, in virtue of the payment of the note
of the Jaca Commercial Company, the sole owner of the said securities; that the defendants
have collected upon the securities so sold and assigned to the plaintiff large sums of money;
and that plaintiff has demanded of the defendants an accounting and the payment to him of
whatever sum may be due and the delivery to him of the securities held by the defendants, but
that the defendants have neglected, failed and refused to comply with such demand. Plaintiff
prays for an accounting and the surrender of such securities and general equitable relief.
The defendants filed an answer in the respondent court denying that the note of the Jaca
Commercial Company was or had been paid, and otherwise pleading such matters as tend to
constitute a defense to the suit. The petition for the writ alleges:
That thereafter and on the 14th day of April, 1924, the said cause came on for trial before
the court without a jury, a jury trial having been denied by order of said court, and, after
the introduction of all the evidence for and on behalf of the plaintiff and defendants and
the submission of said cause to the court for its decision, the said court then and there
made and entered its order as follows, to wit:
48 Nev. 265, 269 (1924) Ex Rel. Reinhart v. Callahan
a jury, a jury trial having been denied by order of said court, and, after the introduction of all
the evidence for and on behalf of the plaintiff and defendants and the submission of said
cause to the court for its decision, the said court then and there made and entered its order as
follows, to wit:
It is ordered that within 10 days from this date the defendants render and file with the
clerk of this court a full and complete accounting to the plaintiff of all moneys received by the
defendants, or any of them, on account of payments to them, or either of them or any of them,
in satisfaction or in partial satisfaction of any securities held by them or any of them and
received by them, or either of them directly or indirectly, from the First National Bank of
Boise, Idaho, or its assignees, indorsees, transferees, or successors in interest, as security for
the payment of those two certain promissory notes executed by the Jaca Commercial
Company to the First National Bank of Boise, Idaho, and which notes so made by the Jaca
Commercial Company are referred to in the complaint on file herein; and it is further ordered
that the defendants serve upon the attorneys for the plaintiff within 10 days from this date a
copy of said account so to be filed with the clerk of this court.
It is further ordered that within 5 days from the filing and service of such account the
plaintiff serve and file herein such objections and exceptions to such account as they see fit;
and that thereafter a hearing upon said account and said objections and exceptions be had in
this court upon 5 days' notice to the opposite party.
It is further ordered that the court reserve judgment upon that portion of the prayer in the
complaint that the defendants be required by order of the court to deliver to the plaintiff all of
the securities referred to in the complaint, and which securities are now in the possession of
the defendants, until the final hearing on the said account. And it is further ordered that the
court reserve jurisdiction to determine the question of costs, and as to which parties should
pay costs until the final hearing on said account.
48 Nev. 265, 270 (1924) Ex Rel. Reinhart v. Callahan
costs, and as to which parties should pay costs until the final hearing on said account.
Done in open court this 17th day of April, A. D. 1924.
James Callahan, District Judge.'
It is alleged that a copy of said order was served upon the petitioners; that thereafter an
affidavit was filed reciting the service of a copy of said order, and that the petitioners
willfully and contumaciously refused and still refuse to comply therewith; and that thereupon
an order was entered by said court directing the defendants to show cause on a given day why
they should not be punished for contempt for failure to obey the order above quoted; that said
order had been duly served upon the petitioners; and that upon the hearing of said matter the
court will order and adjudge that the petitioners be punished as for contempt. It is alleged in
the petition herein that the said district court had no jurisdiction to make and enter the order
herein quoted, and that it and all subsequent proceedings are null and void and of no force or
effect.
1. It is first contended that the proceeding in the district court is an action at law and not a
suit in equity in which an accounting may be had. We cannot accede to this contention, nor do
we find it necessary to go outside of our own jurisdiction to find authorities to support us in
this conclusion. Substantially the identical question was before this court at a very early day
in the case of Beatty v. Sylvester, 3 Nev. 228. That was a case in which a party had pledged
certain securities to secure a running account. The pledgor alleged the existence of the pledge
agreement; that he had offered to pay what was owing by him, and demanded the redelivery
of the articles pledged, but that defendant refused to account or redeliver the securities. The
complaint prayed for an accounting, and that upon such accounting and upon the payment by
him of the amount due to the pledgee the defendant be compelled to surrender the securities.
The court held that the suit was one in chancery, and that an accounting might be had.
48 Nev. 265, 271 (1924) Ex Rel. Reinhart v. Callahan
one in chancery, and that an accounting might be had. There is no difference between that
case and the instant case, save that in the one now under consideration the complaint alleges
that the debt secured by the pledge has been fully paid and discharged.
Jones on Pledges, at section 557, says:
A bill in equity may be maintained to redeem a pledge, if an account is wanted * * *
notwithstanding the pledgor has a remedy at law in an action of trover.
See, also, Sims v. Canfield etc., 2 Ala. 555; Smith v. 49 & 56 Quartz Mfg. Co., 14 Cal.
242; Haselden v. Hamer, 97 S. C. 178, 81 S.E. 424; Beugger v. Ashley et al., 161 App. Div.
576, 146 N. Y. Supp. 910; Colburn v. Riley, 11 Colo. App. 184, 52 Pac. 684; Castoriano v.
Dupe, 145 N. Y. 250, 39 N. E. 1065; Keeble v. Jones et al., 187 Ala. 207, 65 S. E. 384;
Cahoon v. Bank, 7 N. Y. 486; Tillar v. Cook, 77 Va. 477.
The next question for determination is whether the court exceeded its jurisdiction in
making the order. The allegations of the complaint tended to show that plaintiff was entitled
to an accounting. Defendants denied these allegations. The propriety of an accounting
therefore became the first question for the court's determination. 1 Ency. Pl. & Pr. p. 102; 1
Stand. Ency. of Prac. p. 305; Weldon v. Brown, 84 App. Div. 482, 82 N. Y. Sup. 1051;
Jordan v. Underhill, 71 App. Div. 559, 76 N. Y. Supp. 95; Collyer v. Collyer et al., 38 Pa.
257; Duff v. Duff, 71 Cal. 513, 12 Pac. 570; Fox v. Hall, 164 Cal. 287, 128 Pac. 749; Hudson
v. Trenton L. & M. Co., 16 N. J. Eq. 475.
2. We have no statutory provision as to the method of procedure when it has been made to
appear that an accounting should be ordered, but it seems that a court of equity has a wide
discretion in this matterit may refer a case to a referee in the first instance, or it may take
the account itself, or it may, before making an order of reference or before taking the account
itself, order that an account be rendered, duly verified.
In Hollister v. Barkley, 11 N. H. at page 506, it is said: "According to the present English
practice, there are two modes of taking accounts in the master's office; the one in the
form of a debtor and creditor account, brought in by the accounting party; the other by
examining such party upon interrogatories; and these two modes are sometimes
combined in taking an account.
48 Nev. 265, 272 (1924) Ex Rel. Reinhart v. Callahan
According to the present English practice, there are two modes of taking accounts in the
master's office; the one in the form of a debtor and creditor account, brought in by the
accounting party; the other by examining such party upon interrogatories; and these two
modes are sometimes combined in taking an account. 2 Smith's Ch. Pr. 114; Gresley's Eq.
Evid. 395. The rule in New York is the same. New York Ch. Rules, 79, rule 107; 4 Paige's R.
112; Story v. Brown. The debtor and creditor account is prepared as an affidavit, and this
affidavit is a substitution for an examination, which was the manner of accounting before the
new orders. 2 Smith's Ch. Pr. 114; Blake's Ch. Pr. 204, 250. Oral examinations were common
in New York. 2 Johns Ch. R. 499, Remsen v. Remsen. But the master is still at liberty to
examine on interrogatories. 2 Smith, 122; New York Ch. Rules and Orders, 79. As we have
adopted no rule in this respect, either of these modes may be resorted to.
In Bellows v. Stone, 18 N. H. at page 480, the same court used the following language:
There are two modes of accounting in the master's office, the one by a debtor and creditor
account, rendered by the accounting party, and verified by his affidavit; the other by an
examination of him upon interrogatories, and both modes may be combined in taking the
same account. 11 N. H. Rep. 501, 506, Hollister v. Barkley, and authorities cited.
In Ross v. Stevens, 45 N. J. Eq. 231 at page 233, 13 Atl. 225, it is said:
The defendant must account. A reference will not, however, be ordered in the first
instance. The decree will direct the defendant to deliver to the complainant's solicitor, within
twenty days after service of a copy of the decree, an itemized account, showing the gross
profits realized and also the deductions which the defendant claims should be made therefrom
to show the net profit.
See, also, 2 Smith's Ch. Pr. 114.
Such is the practice in the federal courts pursuant to rule 63, and in several state courts
pursuant to similar rules.
48 Nev. 265, 273 (1924) Ex Rel. Reinhart v. Callahan
rule 63, and in several state courts pursuant to similar rules. Story v. Brown, 4 Paige (N. Y.),
112; Reed v. Jones, 8 Wis. 421; 11 Vt. p. 699; Wiggin v. Gans, 6 N. Y. Super. Ct. 646;
Hathaway v. Russell, 7 Abb. N. C. (N. Y.) 138; 2 Daniel Ch. Pl. & Pr. (6th Am. Ed.) 1221.
These rules do not confer jurisdiction upon the courts of equity to proceed as directed, but
are adopted pursuant to the general equity jurisdiction for the purpose of effectuating
uniformity in the practice in the jurisdictions wherein they are adopted. In other words, the
rules result from a power already enjoyed.
It is contended that the order is in direct contravention of sections 5229, 5230, and 5231,
Rev. Laws. We think not. The sole purpose of these provisions is to authorize in certain
actions at law a practice similar to that prevailing in courts of equity. Certainly there is
nothing in them to strip equity courts of any authority already enjoyed. Wiggin v. Gans, 6 N.
Y. Super Ct. 646; Brevoort v. Warner, 8 How. Prac. (N. Y.) 321; Hathaway v. Russell, 7 Abb.
N. C. 138.
The respondent court having had jurisdiction, it is ordered that this proceeding be
dismissed, and that the stay order be vacated.
On Petition for Rehearing
February 9, 1925.
Per Curiam:
Rehearing denied.
____________
48 Nev. 274, 274 (1924) Holtzman v. Bennett, Et Al.
HOLTZMAN v. BENNETT, Et Al.
No. 2634
November 3, 1924. 229 Pac. 1095.
1. Mechanics' LiensNo Variance Between Form of Contract in Lien Statement and
Allegations in Complaint.
Where lien statement set forth terms of contract relied on, and complaint alleged that work was
performed at request of defendants, the value of which they agreed to pay, there was no variance
precluding recovery.
2. Mechanics' LiensLien Statutes Liberally Construed.
Mechanics' Lien statutes are liberally construed to effect their object and purpose.
3. Mechanics' LiensEvidence of Contract Value of Services Held to Support Judgment on
Quantum Meruit.
Evidence of contract value of services, for which mechanic's lien is sought, will support judgment on
quantum meruit.
4. Appeal and ErrorRecord Must be in Proper Shape and Intelligible.
It is incumbent on attorneys to see that record on appeal is in proper shape and intelligible.
5. Mechanics' LiensPermitting Trial Amendment to Lien Statement to Conform to Proof
Held Without Error.
Where oil was necessary to operation of mill, permitting trial amendment to lien statement to conform
to proof that item was for services rendered in hauling oil, and not for goods sold and delivered, was not
an abuse of discretion, in view of Rev. Laws, sec. 2217, amended by Stats. 1917, c. 41, as services were
lienable.
6. Mechanics' LiensSustaining Lien on Sufficient Land for Future Operations of Mill Held
Without Error.
Sustaining lien on sufficient land used in connection with mill of mine to allow for future operations
of mill held without error.
7. Mechanics' LiensLabor as Cook Held Not Basis for Lien on Mine.
Cook doing no work in connection with operation of mine cannot assert lien, under Rev. Laws, sec.
2231.
8. ActionSuits to Foreclosure Mechanics' Liens Should Be Consolidated.
Suits against same defendant to foreclose mechanics' liens should be consolidated.
See (1, 2, 3, 5, 6, 7) 27 Cyc. p. 20, n. 26; p. 770, n. 26; p. 774, n. 41; p. 780, n. 92, 93; p. 781, n. 4; (4) 4 C. J.
sec. 2124, p. 422, n. 59; (8) 1 C. J. sec. 327, p. 1129, n. 75.
Appeal from Ninth Judicial District Court, White Pine County; C. J. McFadden, Judge.
Action by R. H. Holtzman against W. S. Bennett and others.
48 Nev. 274, 275 (1924) Holtzman v. Bennett, Et Al.
others. From judgment for plaintiff and order denying a new trial, defendants appeal.
Remanded, with directions to modify judgment, and for further proceedings. Rehearing
denied.
A. Jurich and J. M. Lockhart, for Appellants:
Causes of action in complaint are based on quantum meruit while lien notices set out
express contracts. Evidence supports neither. Testimony is of stated account. When work
ceased there was undetermined amount for wages and undetermined amount for board and
commissary. Balances were submitted to and approved by lien claimants. This constituted
account stated. Johnson v. Gallatin Co., 98 Pac. 883.
Variance between complaint and lien notice is fatal. Malone v. Big Flat Gravel Co., 18
Pac. 772.
Only such proof as establishes allegations of leadings is admissible. Wheeler v. Schad, 7
Nev. 204; Carson River Co. v. Bassett, 2 Nev. 249.
Statement for mechanics' lien must be essentially true. Where lien claimed for labor and
material and proof showed only labor, variance was fatal. Wagner v. Hansen, 37 Pac. 195.
Performing labor for carrying on mill means actual, manual labor in mill, and does not
include services of cook. McCormick v. Los Angeles, 40 Cal. 185.
Ely Coal and Lumber Company claimed as materialman under Rev. Laws, 2213, and filed
in accordance with Rev. Laws, 2217. Amendment was allowed under Rev. Law, 2231 (which
allows lien for performing labor), permitting claim of or labor. Amendment was two years too
late. Company initiated right to lien under 2213. If it desired to claim lien under 2231 it
should have done so in first lien notice or in independent notice. Court erred in allowing
amendment, which should be allowed only under 2217, to correct names, etc., and not to
change charge from material to labor. What cannot be done directly should not be permitted
indirectly.
48 Nev. 274, 276 (1924) Holtzman v. Bennett, Et Al.
Chandler & Quayle, for Respondent:
We refer to brief in companion case, Richmond Machinery Co. v. Bennett, 48 Nev. 286.
If variances did exist, they would not substantially have affected rights of appellants.
However, alleged variances did not in fact exist. Proof showed express contracts were made
as alleged. Subsequent happenings which might have justified suits on account stated did not
show lien claims were untrue. Claim of lien must disregard subsequent account stated since
statute requires claim of lien to state time, terms, and conditions of contract.
If complaint was ambiguous, defendant should have demurred.
Under allegation of agreed price and failure in proof thereof, evidence is competent to
show reasonable value or usual compensation, not beyond amount alleged. After complete
performance of express contract, there is no reason why recovery may not be had on quantum
meruit, when opposite party has not been misled. Burgess v. Helm, 24 Nev. 242, which is not
so strong a case as this on express contract.
Complaint may support recovery on quantum meruit or special contract, as facts disclose,
particularly in absence of demurrer for uncertainty, etc. Lacy Mfg. Co. v. Los Angeles etc.
Co., 106 Pac. 413; McClain v. Hutton, 63 Pac. 183; Castagnino v. Balletta, 23 Pac. 127, proof
in which case would have justified action on account stated.
There is no variance where proof shows special contract or implied contract, as case may
be. Bardwell v. Anderson, 32 Pac. 285; Lucas v. Rea, 102 Pac. 822.
Variance is immaterial where there is no difference between agreed price and reasonable
value. Foulger v. McGrath, 95 Pac. 1004; Star etc. Co. v. Porter, 88 Pac. 497; Adams v.
Burbank, 37 Pac. 640.
Variance shall not defeat lien unless fraudulent, intentional, or misleading. Rev. Laws,
2217. This provision distinguishes counsel's California citations.
Rev. Laws, 2231, provides for liens for construction, repairing, or carrying on of any mill,
not upon them as the California statute provides.
48 Nev. 274, 277 (1924) Holtzman v. Bennett, Et Al.
repairing, or carrying on of any mill, not upon them as the California statute provides.
McCormick v. Los Angeles, does not, therefore, apply. Labor of cook certainly was
performed for carrying on of mill. Character of work is not closely scrutinized. If it has
legitimate connection with general work of plant, it is sufficient. Malone v. Big Flat G. Co.,
18 Pac. 772, quoted with approval in Maynard v. Ivey, 21 Nev. 241.
Group consists of sixteen contiguous, interdependent claims. Mill was to serve all. Court did
not err in granting lien on four claims of group. Gould v. Wise, 18 Nev. 253; Salt Lake
Hardware Co. v. Chainman etc. Co., 137 Fed. 632.
Complaint and lien were properly amended as to claim of Ely Lumber and Coal Company
since, by mistake, item was charged as material instead of haulage of oil. Variance was not
fraudulent, intentional, or misleading to defendant. Rev. Laws, 2217. Service for hauling oil
is lienable. In Re Hope Mng. Co., 1 Sawyer, 710.
OPINION
By the Court, Coleman, J.:
This action was instituted to foreclose several mechanics' liens assigned to the plaintiff.
Judgment was rendered in favor of the plaintiff as prayed in the complaint, from which, and
from an order denying a motion for a new trial, an appeal has been taken. The facts will
sufficiently appear from the opinion. The parties will be referred to as plaintiff and defendants
as in the trial court.
1. The first error assigned is that there is a fatal variance between the forms of the contract
stated in the lien statement, the allegations of the complaint, and the proof.
The lien statements set forth the precise terms of the alleged contract relied upon, whereas
the complaint alleges that the work performed was so performed at the special instance and
request of the defendants of a definite value, which the defendants agreed to pay therefor.
48 Nev. 274, 278 (1924) Holtzman v. Bennett, Et Al.
a definite value, which the defendants agreed to pay therefor.
2. There was no variance justifying the contention urged. Lien statutes are liberally
construed in this jurisdiction with a view of effectuating their object and purpose. Ferro v.
Bargo M. Co., 37 Nev. 139, 140 P. 528, and it is a well-recognized rule that, when the lien
statement sets forth an express contract, and an implied contract is pleaded and proven, or
vice versa, there is no such variance as will preclude recovery under the lien statement.
Foulger v. McGrath, 34 Utah, 86, 95 P. 1004; Lucas v. Rea, 10 Cal. App. 641, 102 P. 822;
Horton v. Emerson, 30 N. D. 258, 152 N. W. 529; Wright v. Lake, 48 Wash. 469, 93 P. 1072.
See Section 2217, Revised Laws.
3. It is next assigned as error that the court erred in finding that the labor of the various
claimants was performed at a reasonable value. In support of this assignment it is said in the
brief of appellant:
The liens all allege employment at a fixed rate of day pay, and the evidence of the witness
Fuller also bears that out. The findings are certainly contrary to the evidence, for outside of
the complaint, there is nothing in the record to indicate that defendants agreed to pay for said
service whatever they were reasonably worth.
If we correctly interpret the brief of appellant, it simply contends that evidence of a
contract value of services rendered will not support a judgment on a quantum meruit. Such is
not the law of this state. Burgess v. Helm, 24 Nev. 242, 51 P. 1025.
4. Error is assigned to the ruling of the trial court relative to plaintiff's Exhibit 2. In
reference to this assignment we may say that three companion cases are before the court on
appeal growing out of the alleged indebtedness incurred by the defendants. The records in
these three cases inclosed in one package, and a lot of exhibits contained in another package,
were received by the clerk at the same time. These exhibits do not indicate in what case they
were received in evidence, and it is impossible for this court to determine.
48 Nev. 274, 279 (1924) Holtzman v. Bennett, Et Al.
and it is impossible for this court to determine. We find one document marked in one place,
Plaintiff's Exhibit 2, and in another place, Plaintiff's Exhibit Q. The exhibit does not show on
its face what it is for, or in what case it was used as an exhibit. It is not incumbent upon this
court to draw upon its imagination, but it is incumbent upon attorneys bringing cases here to
see to it that the record is in proper shape and intelligible. So far as we are able to say, there is
no merit in the assigned error.
5. It is also contended that the trial court erred in refusing to strike from the evidence the
line claim of the Ely Lumber and Coal Company upon the ground that the proof shows that
the last item of the claim was not for goods, wares, and merchandise sold and delivered, as
stated in the lien statement, but was for services rendered in hauling oil. Section 2217,
Revised Laws, as amended (Stats. 1917, p. 44, sec. 1), provides:
Upon the trial of any action or suit to foreclose such lien no variance between the lien and
the proof shall defeat the lien or be deemed material unless the same shall result from fraud or
be made intentionally, or shall have misled the adverse party to his prejudice, but in all cases
of immaterial variance the claim of lien may be amended * * * to conform to the proof.
The evidence shows that the original lien statement was introduced in evidence without
objection. When it appeared from the evidence that there was a variance between the
statement and the proof, the plaintiff sought and was permitted to amend the statement to
conform to the proof. The only question is: Did the court abuse its discretion in the matter? If
the services for which this item is sought to be made chargeable is one for which a lien might
have been stated in the first instance, no error was committed. By section 2231, Rev. Laws, it
is provided that all persons performing labor for the carrying on of any mill shall have a lien.
Since oil is necessary in the operation of a mill, we think the item is one for which a lien may
be asserted. In Re Hope Mine Co., 1 Sawy. 710, Fed. Cas. No. 6681.
48 Nev. 274, 280 (1924) Holtzman v. Bennett, Et Al.
6. It is also contended that the court erred in sustaining a lien upon too much land for use
in connection with the mill. Counsel says the testimony shows that only between 50 and 150
feet around the mill was required for its operation. The only testimony on this point is that
given by the defendant McCulloch, who testified as follows:
Q. Do you know the amount of ground necessary for the operation of such a mill as is on
this ground, as is supposed to be? A. The dimensions of the mill covering all the machinery
that is used is probably 60 by 205 feet.
Q. How much additional ground would be necessary for the operation of that mill in your
judgment? A. The mill would operate inside the building.
Q. Yes, but the surrounding ground? A. Oh, it is hard telling. I can't tell.
Q. Would you say 50 to 100 feet all around the building? Would that be sufficient for the
operation of the mill? A. If the mill ran for ten years, no.
Q. Well, we are talking about now? A. It wouldn't require any amount of ground around it
to run it the way it is running now.
Q. Well, suppose it was operating now. How much would it require? Would it require as
much as fifty feet around? A. Yes, I believe 50 feet around would be sufficient.
The amount of ground shown to be necessary for the operation of the mill by the above
testimony was estimated upon a basis of present needs. It made no allowance whatever for the
future operation of the mill. Such is not a fair basis upon which the court could make an order
for future operations.
As was pointed out by Judge Hawley in Salt Lake Hardware Co. v. Chainman etc. (C.C.),
137 F. 632, there must be ground for dumps, tailings, supplies, and for the convenient use and
operation of the property. See, also, Guild v. Wise, 18 Nev. 253, 3 P. 30; Western Well
Works, Inc. v. California Farms Co. et al., 60 Cal. App. 749, 214 P. 491. We perceive no
prejudicial error in the matter complained of.
7. Error is assigned to the ruling of the court in rendering judgment upon a claim for
services performed as a cook.
48 Nev. 274, 281 (1924) Holtzman v. Bennett, Et Al.
rendering judgment upon a claim for services performed as a cook. In support of this
assignment our attention is directed to the case of McCormick v. Los Angeles Water Co., 40
Cal.185, wherein it was held that there could be no lien for services rendered as a cook. It is
contended, however, that the statute under which the lien is asserted in this case is different
from the one therein construed. In this case it is sought to enforce the lien pursuant to section
2231, Rev. Laws, above alluded to. The case of Malone v. Big Flat G. Co., 76 Cal. 578, 18 P.
772, which is a case wherein it was held that a blacksmith was entitled to a lien for work done
in sharpening picks, drills, etc., used in the mine, is cited in support of the contention. That
decision was based upon a statutory provision to the effect that such tools should be deemed
affixed to the mine. In view of this law, the work was done upon the mine itself. It is clear
that this case is not in point. A lien cannot be asserted, except where authorized by statute.
The cook did no work in connection with the operation of the mine, and can assert no lien.
Clark et al. v. Beyrle et al., 160 Cal. 306, 116 P. 739.
8. It is also contended that the court erred in denying the motion to consolidate the actions
to foreclose mechanics' liens against the defendants. We think this contention is well
founded. As pointed out in the opinion on rehearing in Daly v. Lahontan Mines Co., 39 Nev.
14, 151 P. 514, 158 P. 285, suits to foreclose mechanics' liens against a defendant should be
consolidated.
It is ordered that this case be remanded to the trial court, with directions that it modify its
judgment in accordance with the views herein expressed, and that it further proceed in the
premises in accordance with law and rules of practice in such cases made and provided, and,
as so modified, it is ordered that the judgment be affirmed.
On Petition for Rehearing
December 13, 1924.
Per Curiam:
Rehearing denied.
48 Nev. 274, 282 (1924) Holtzman v. Bennett, Et Al.
On Costs
February 9, 1925. 232 Pac. 1081.
1. CostsWhere Several Parties Appeal, One May Recover Costs for All.
Where several parties appeal jointly, they need not all join in affidavit as to costs,
but each should be considered as agent of other in such matters, and one may recover
for all, especially where attorney for one swore that he was better informed as to costs
incurred, and it appears that he paid out all money expended or incurred.
See 15 C. J. sec. 655, p. 262, n. 24.
Opinion on appeal from ruling of clerk in taxation of costs. Ruling modified.
OPINION
By the Court, Coleman, C. J.:
Appellants having prevailed in this action, a cost bill was filed, verified by A. Jurich, as
attorney for Argus Mines Company, containing the following items:
County clerk's fee................................................................................ $42.15
Clerk of supreme court........................................................................ 25.00
Typing transcript................................................................................ 215.45
Typing briefs...................................................................................... 4.85

__________

Total.................................................................................................... $287.45
Counsel for respondent filed objections to it, urging that the $215.45 item is excessive, and
furthermore, that there having been three appellants, only one-third of whatever amount
appellants are entitled to can be paid pursuant to the bill filed. The clerk, in passing upon the
objections to the cost bill allowed all of the items in full, as claimed by appellant, except the
item of $215.45, and of that he held that respondent is liable for $148.50 only, making a total
for which respondent is held liable of $220.50. However, there being three appellants, he held
that costs could be taxed in the sum of only $73.50, under the cost bill filed.
An appeal was taken pursuant to the rule. But one question is presented on this appeal,
viz., did the clerk err in holding that only one-third of the cost incurred by appellants could be
recovered? We think he did.
48 Nev. 274, 283 (1924) Holtzman v. Bennett, Et Al.
The cost bill is verified by Anthony Jurich, one of the attorneys for the appellant, who swore
that he was better informed relative to the costs incurred than the Argus Mines Company. So
far as appears, he paid out all of the money expended or incurred by appellants. There are
receipts in the files for money paid by him covering the first two items, and there is an
affidavit of Clara Murdock Vargas filed by respondent, wherein she states that she was paid
by Jurich for transcribing the testimony of the case. Thus it would appear that the fact is that
the attorney for the Argus Mines Company actually paid out the money on account of the
expenses incurred in this appeal.
We have never understood that when there are several parties appealing jointly, they must
all join in the affidavit as to the costs. We think each should be considered the agent of the
other in such matters, especially when one, or the attorney of one, is better informed as to the
matter than the parties themselves. If the expense has been incurred, an appellant, or the
appellants, may recover, and we think one may recover for all.
It is ordered that the ruling of the clerk be modified in accordance herewith, and that costs
be taxed in favor of appellants in the sum of $220.50.
____________
48 Nev. 284, 284 (1924) Holtzman v. Bennett, Et Al.
HOLTZMAN v. BENNETT, Et Al.
No. 2635
November 3, 1924. 229 Pac. 1097.
1. Mechanics' LiensParty Owning Interest In Property Against Which Mechanics' Liens
Asserted is Proper Party Defendant.
Where party had interest in property against which mechanics' liens were asserted, there was no error
in making him party defendant.
2. PleadingLimiting Time Within Which Party Defendant Must Plead Held Without Error.
Where party, having interest in mine against which mechanics' liens were asserted, and who was made
a party defendant, had represented another defendant in preparing defense identical with his own, there
was no error in limiting his time in which to plead.
See (1) 27 Cyc. p. 779, n. 84; (2) 31 Cyc. p. 132, n. 29.
Appeal from Ninth Judicial District Court, White Pine County; C. J. McFadden, Judge.
Action by R. H. Holtzman against W. S. Bennett and others. From judgment for plaintiff
and order denying a new trial, defendant H. G. McCulloch appeals. Affirmed, subject to
order of modification. Rehearing denied.
A. Jurich, for Appellant McCulloch:
Adopts brief in No. 2634, supra.
Chandler & Quayle, for Respondent:
Adopt brief in No. 2636, infra.
OPINION
By the Court, Coleman, J.:
This case is before the court upon a separate appeal by the defendant H. G. McCulloch.
The record in the case is identical with that of the case of Holtzman v. Bennett et al. (No.
2634) 229 P. 1095, this day decided. That appeal is from the judgment and order denying a
motion for a new trial.
All of the questions presented herein are disposed of in case No.
48 Nev. 284, 285 (1924) Holtzman v. Bennett, Et Al.
in case No. 2634, except the one hereinafter considered, and we need not reconsider questions
so disposed of.
1, 2. It is insisted that the court erred in ordering that appellant be made a party defendant
in this case and in limiting the time in which he should answer. Counsel occupies a rather
anomalous position in insisting that the court erred in making the appellant a defendant in this
case and in insisting that it erred in not making him a defendant in the case of Richmond
Machinery Co. v. Bennett et al. (No. 2636) 229 P. 1098. The court did not err in ordering that
the appellant be made a party defendant when it was made to appear that he held an interest in
the property, nor did it commit prejudicial order in limiting his time in which to plead. He
testified that he at all times represented the defendant Argus Mines Company in preparing for
its defense, which is identical to that of appellant.
It not appearing that the appellant was in any way prejudiced, it is ordered that the
judgment appealed from be affirmed, subject to an order of modification as made in case No.
2634.
On Petition for Rehearing
December 13, 1924.
Per Curiam:
Rehearing denied.
On Costs
February 9, 1925. 232 Pac. 1082.
1. CostsParty Relying Solely Upon Transcript in Another Case, and Not Incurring Any
Expense, Not Entitled to Include Items in Costs on Appeal.
Where a party did not file a separate transcript, but relied solely upon transcript in
another case, and was put to no expense in preparing and filing transcript of record and
other papers, he is not entitled to include items in costs on appeal.
See 15 C. J. sec. 661, p. 265, n. 74.
Opinion on appeal from ruling of clerk in disallowing claim for costs. Ruling sustained.
48 Nev. 284, 286 (1924) Holtzman v. Bennett, Et Al.
OPINION
By the Court, Coleman, C. J.:
Respondent filed objections to the cost bill presented by the appellant in this case, and the
clerk sustained the objections, disallowing the claim. We think the ruling is correct.
This appellant did not file a separate transcript, but relied solely upon the transcript in the
case of Holtzman v. Bennett (No. 2634), 232 P. 1081. He was put to no expense in any way
in preparing and filing a transcript of the record and other papers in the above entitled case.
We are at a loss to understand upon just what theory double payment of an expenditure can
be demanded. See Dralle v. Town of Reedsburg, 140 Wis. 319, 122 N. W. 771.
The ruling is sustained.
____________
48 Nev. 286, 286 (1924) Richmond Machinery Co. v. Bennett
RICHMOND MACHINERY CO. v. BENNETT
No. 2636
November 3, 1924. 229 Pac. 1098.
1. Mechanics' LiensLien Statement Held Timely Filed.
Where purchase price of pulley was to be amount paid by seller for new pulley to replace that sold,
plus transportation and installation expenses, lien statement filed under Rev. Laws, sec. 2217, within
50-day period after installation of new pulley on seller's engine, was timely.
2. Mechanics' LiensStatutes Liberally Construed.
Mechanic's lien statues are to be given liberal construction.
3. ActionDenying Application to Make third Person Party Defendant After Parties Rested
Held Not Abuse of Discretion.
In suit to foreclose mechanic's lien, denial of application of third person to be made party defendant
after case was tried and parties rested was not abuse of discretion; applicant not being prejudiced by
judgment in action in which he was not party.
48 Nev. 286, 287 (1924) Richmond Machinery Co. v. Bennett
4. Mechanics' LiensLand on Which Improvement Placed With Owner's Knowledge Held
Properly Subjected to Lien.
Where owner of land on which improvement were placed with his knowledge in another's mill did not
give notice under Rev. Laws, sec. 221, that he would not be responsible for improvements thereon, his
interest was subject to mechanics' liens.
5. ActionRefusal to Consolidate Actions to Foreclose Liens Held Abuse of Discretion.
Refusal to sustain motion to consolidate actions to foreclose mechanics' liens held an abuse of discretion.
See (1, 3, 4) 27 Cyc. p. 773, n. 39; p. 775, n. 52; p. 779, n. 84; (2) 27 Cyc. p. 20, n. 26; (5) 1 C. J. sec. 327, p.
1129, n. 75.
Appeal from Ninth Judicial District Court, White Pine County; C. J. McFadden, Judge.
Action by the Richmond Machinery Company against W. S. Bennett and others. From
judgment for plaintiff, and order denying a new trial, defendants appeal. Remanded, with
instructions to consolidate cases; otherwise affirmed. Rehearing denied.
A. Jurich and J. M. Lockhart, for Appellants:
It was duty of court to order consolidation. All liens should be disposed of in one action.
Law contemplates all claimants shall be brought in and their rights determined in one
proceeding. Rev. Laws, 2224; Lonkey v. Well, 16 Nev. 277; Daly v. Lahontan Mines Co., 39
Nev. 29.
Lien must be filed not later than fifty days after delivery of material. Rev. Laws, 2217. Period
runs from date when last item is actually delivered, regardless of anything else. 27 Cyc. 140:
Beatty v. Mills, 45 Pac. 468.
Complaint and lien notice conveyed impress in material was delivered in September when
in truth it was delivered in June, plainly violating Rev. Laws, 2217, and misleading plaintiffs
to their prejudice.
Though lien law should be liberally construed, being creature of statute, compliance with
its terms is required. Daly v. Lahontan Mines Co., supra. Lien cannot be enforce if statement
therein is untruthful. Santa Monica v. Hege, 51 Pac. 555.
48 Nev. 286, 288 (1924) Richmond Machinery Co. v. Bennett
Respondent claimed as materialman in lien notice, complaint, and in testimony, and
cannot claim as contractor for first time in this court. One who delivers or installs material for
another is materialman. Caulfield v. Polk, 46 N. E. 932; Pubh v. Moxley, 128 Pac. 1039.
Chandler & Quayle, for Respondent:
Lien statutes should be liberally construed. Substantial compliance only is required. Aim is
to do justice to all. Lamb v. Mining Co., 37 Nev. 9; Ferro v. Bargo Co., 37 Nev. 135.
Consolidation of liens is in discretion of court. Rev. Laws, 2224; Lonkey v. Wells, Elliot v.
Ivers, and Daly v. Lahontan M. Co., cited, do not present question of consolidation, and are
not applicable.
Pulley in question was not carried in stock, but was stripped from another engine as an
accommodation to appellants, and on special agreement that it should be replaced by one
from factory and charged for at costs of replacement, freight, etc. It does not lie in mouth of
appellants now to deny terms of special contract made at their solicitation and for their
accommodation. Contract was not completed until new pulley was received and installed and
bills and charges known. Allegation not denied is admitted. Even finding of fact will not
prevail against admission in answer. Nosler v. Haynes, 2 Nev. 56.
Time runs either from last physical delivery or date of completion of contract, depending
upon whether one is materialman or contractor. Respondent was original contractor dealing
directly with owner, and was entitled to fifty days after completion of contract. Salt Lake
Hdw. Co. v. Chainman etc. Co., 128 Fed. 509.
Special contracts may be entered into, disassociated from actual delivery, which govern
the date from which the time begins to run. Marble v. Jones Co., 28 N. W. 309; Gordon Hdw.
Co. v. San Francisco etc. Co., 65 Pac. 125.
Owner having knowledge of improvement being made must post notice of
nonresponsibility and cannot rely on provision of recorded lease or contract with occupant
to protect him.
48 Nev. 286, 289 (1924) Richmond Machinery Co. v. Bennett
provision of recorded lease or contract with occupant to protect him. Rev. Laws, 2221; Ah
Louis v. Harwood, 74 Pac. 741; Pac. Sash and Door Co. v. Bumiller, 124 Pac. 230. Method
prescribed is exclusive. Rosina v. Trowbridge, 20 Nev. 105; Gould v. Wise, 18 Nev. 253.
OPINION
By the Court, Coleman, J.:
This is an appeal from a judgment foreclosing a mechanic's lien and from an order denying
a motion for a new trial.
1. The first error assigned is that the lien statement was not filed within the time provided
by law. The defendants were engaged in operating a mill, and while so engaged found it
necessary to procure a friction clutch pulley. Their representatives went to Salt Lake City and
called at plaintiff's place of business to procure the pulley. The plaintiff had none in stock,
and informed them that it would take from 60 to 90 days to get one from the factory.
Defendants were anxious to get the pulley at once, and induced the plaintiff to take on from
an engine equipped with such a pulley and to order another from the factory to replace the
one so taken, with the understanding that upon its arrival it should be placed upon the engine
in lieu of the one taken off and shipped to defendants, and that defendants would pay plaintiff
the price of the new pulley, plus the expense of transportation and installation. With this
understanding the defendants received the pulley so taken off the engine in June, 1920. The
plaintiff received the new pulley, and had it placed on the engine September 15, 1920, at
which time the defendants were charged with the pulley and all expenses as agreed. The lien
statement was filed within the 50-day period provided by statute from September 15, but not
within 50 days after the pulley taken from the engine was received by the defendants; hence
the contention made.
The section (2217, Rev. Laws), pursuant to which the lien statement was filed, reads: "*
* * Every person claiming the benefit of this chapter shall, not earlier than ten days after
the completion of his contract, or the delivery of material by him, or the performance of
his labor, as the case may be, and not later than fifty days after filing of the owner or
other person as aforesaid of the affidavit hereinbefore provided for, or within fifty days
after the performance of any labor in a mining claim, file for record" with the county
recorder his lien statement.
48 Nev. 286, 290 (1924) Richmond Machinery Co. v. Bennett
the lien statement was filed, reads: * * * Every person claiming the benefit of this chapter
shall, not earlier than ten days after the completion of his contract, or the delivery of material
by him, or the performance of his labor, as the case may be, and not later than fifty days after
filing of the owner or other person as aforesaid of the affidavit hereinbefore provided for, or
within fifty days after the performance of any labor in a mining claim, file for record with
the county recorder his lien statement.
2. On the part of the plaintiff it is contended that the time in which to file the lien did not
begin to run until the completion of the contract under which the pulley was taken from the
engine (which was on September 15), and hence the lien statement was filed within the time
limit provided by the statute. We think the contention of the plaintiff should be sustained. The
statute clearly contemplates one of three contingencies upon which a lien statement may be
filed: (1) The completion of the contract; (2) the delivery of the material; and (3) the
performance of labor. In the instant case, in the very nature of things, the plaintiff could not
be in a position to file its lien statement until after the new pulley had been received and put
upon the engine, for, until that was done, it could not tell what the expense would be. If we
are to give the lien statute a liberal construction, as we must, there is no escaping this view.
Certainly no lien statement could have been filed until the amount due was ascertainable, and,
in the circumstances of this case, that was utterly impossible until the pulley taken off the
engine had been replaced. A case sustaining this view is that of Marble v. Jones etc., 19 Neb.
732, 28 N. W. 309. That was a case in which a contractor went to a lumber dealer and took
several pieces of lumber with the understanding that he might return them, but if he decided
to keep them he would notify the company to that effect, when he could be charged with
them. At the end of several days he decided to keep the lumber, so notified the company, and
directed that he be charged with them, which was done on the day it received word so to do.
48 Nev. 286, 291 (1924) Richmond Machinery Co. v. Bennett
to do. The lien statement was filed within the time allowed by statute from the date of the
charge, but not within the time allowed from the date the lumber was taken. The court held
that the lien was filed within time, saying:
Upon the above facts, which were, of course, found to be true by the trial court, I think
that September 15, 1882, was the true date of delivery for the purposes of the lien. That was
the date upon which plaintiff was authorized to charge these items up to the defendants, or
either of them; and clearly, if the books of the plaintiff were properly kept and the items
charged under the proper dates, it must be held to be in time if it proceeded to file the lien
within the statutory limitation after such dates.
3. It is contended that the court erred in denying the application of one McCulloch to be
made a party defendant. This application came after the case had been triedafter the parties
plaintiff and defendant had rested their case. The court did not abuse its discretion. Had
application been made in apt time, it would have been the better practice to grant the
application. No prejudicial error was committed, for, as pointed out in Rosina v. Trowbridge,
20 Nev. 105, 17 P. 751, the applicant could not be prejudiced by a judgment in an action to
which he was not a party.
4. It is also contended that the court erred in not entering judgment in favor of the
defendant Argus Mines Company. This contention is based upon the fact that the mill
operated by the other defendants is upon ground held under an agreement of sale by them
from the Argus Company, which authorized the holders of the option to remove the mill in
case of their failure to purchase the property. Section 2221, Rev. Laws, under which the lien
is claimed, reads:
Every building or other improvement * * * constructed upon any lands with the
knowledge of the owner * * * shall be held to have been constructed at the instance of such
owner, * * * and the interest owned or claimed shall be subject to any lien filed in accordance
with the provisions of this chapter, unless such owner * * * shall, within three days after he
shall have obtained knowledge of the construction, alteration or repair, or the intended
construction alteration or repair, give notice that he will not be responsible for the same,
by posting a notice in writing to that effect," etc.
48 Nev. 286, 292 (1924) Richmond Machinery Co. v. Bennett
such owner * * * shall, within three days after he shall have obtained knowledge of the
construction, alteration or repair, or the intended construction alteration or repair, give notice
that he will not be responsible for the same, by posting a notice in writing to that effect, etc.
The contention made is based upon the theory that the property of the Argus Company was
in no way benefited by the improvements put on the mill.
Our statute provides that the real estate upon which improvements are placed with the
knowledge of the owner shall be subject to a lien, unless the owner posts a notice to the effect
that he will not be liable. There is no exception provided in the statute within which the
Argus Company falls, and we do not feel justified in reading an exception into it. It is a
broad, comprehensive statute, but contains a provision whereby the Argus Company might
have relieved its property of all liability had it seen fit to do so. We see no escape from the
plain language of the statute. Ah Louis v. Harwood, 140 Cal. 500, 74 P. 41; Pacific Sash & D.
Co. v. Bumiller, 162 Cal. 664, 124 P. 230, 41 L. R. A. (N. S.) 296; Evans v. Judson, 120 Cal.
282, 52 P. 585; West Coast Lumber Co. v. Apfield, 86 Cal. 335, 24 P. 993; Leoni v. Quinn,
189 Cal. 622, 209 P. 551; S. H. Lumber Co. v. Brown, 165 Cal. 193, 131 P. 368.
But we think our own court has decided the question. In Gould v. Wise, 18 Nev. 253, 3 P.
30, it was held that a lien might be had for labor rendered in operating a mill. Certainly labor
performed in operating the mill in question in no way tended to improve the mining property
upon which the mill was situated. It was said in that case:
But the interest of the owner may be subjected to lien claims, notwithstanding the labor
and materials have not been furnished at his instance if, knowing that alterations or repairs are
being made or are contemplated, he failed to give notice that he will not be responsible
therefor, as provided in section 9 of the act.
There is no merit in the assignment to the effect that there is a variance between the
statement in the lien and the allegations in the complaint.
48 Nev. 286, 293 (1924) Richmond Machinery Co. v. Bennett
and the allegations in the complaint. What we have said relative to the right of a lien for the
pulley disposes of this assignment.
5. We think the court abused its discretion in not sustaining the motion to consolidate this
case with the Holtzman Case (No. 2634), 48 Nev. 274. The case is remanded, with
instructions that the court consolidate these cases; otherwise the judgment and order appealed
from are affirmed.
On Petition for Rehearing
December 13, 1924.
Per Curiam:
Rehearing denied.
On Costs
February 9, 1925. 232 Pac. 1082.
1. CostsDefendants Entitled to Costs on Appeal; Where Cases Not Tried Together, and
Testimony in One Not Available for Bill of Exceptions in Other, Prevailing Parties
Entitled to Separate Costs.
Where defendants sought to have their cases consolidated for trial in lower court, but
motion was denied, and on appeal all of defendants' assignments of error except as to
refusal to consolidate cases were overruled and case was remanded, with instructions
that cases be consolidated, relief obtained by defendants on appeal entitled them to
recover costs, and as cases were separately tried, and testimony in one case could not be
made basis of bill of exceptions in other, defendants were separately entitled to costs
incurred on appeal.
See 15 C. J. sec. 597, p. 240, n. 97; sec. 643, P. 257, n. 40.
Opinion on appeal from ruling of clerk of taxation of costs. Allowance of costs directed.
OPINION
By the Court, Coleman, C. J.:
In due time after the filing of the opinion in this case appellants filed their cost bill
containing the following items, viz:
County clerk's fee................................................................................ $32.90
Clerk of this court................................................................................ 25.00
Typing testimony................................................................................ 215.45
Typing briefs......................................................................................7.85 Counsel for
respondent filed objections thereto.
48 Nev. 286, 294 (1924) Richmond Machinery Co. v. Bennett
Counsel for respondent filed objections thereto. The clerk sustained the objection to the
item of $215.45 for transcribing the testimony, but allowed the other items. Appellants have
appealed from the ruling of the clerk.
This is a companion case to Holtzman v. Bennett (No. 2634) 232 P. 1081 and Holtzman v.
Bennett (No. 2635) 232 P. 1082. The defendants in these lien cases sought to have them
consolidated for trial in the lower court, but, upon objection on the part of the plaintiffs, the
motion was denied. The defendants appealed to this court, assigning several errors, but they
were all overruled except the one pertaining to the refusal of the court to consolidate the
cases, and, as to that, the case was remanded, with instructions that the cases be consolidated.
The reason assigned by the clerk for disallowing the item of $215.45 in toto is that the
transcript of the evidence in this case is the same as in case No. 2634, and to allow a charge
for it would be to permit double payment for only one expenditure. We think the clerk is in
error. The two cases were not tried together, and the testimony in one case could not be the
basis of a bill of exceptions in the other case.
It is contended by the respondent that the appellant obtained no such relief in this court as
entitled it to recover its costs on appeal. We cannot agree with this view. The costs in this
kind of cases are usually considerable, both before and after judgment, and necessarily they
are multiplied when there are two trials instead of one. We need not point out all of the
possibilities in this direction. We think the appellants are entitled to recover all of their
legitimate expenditures incurred on this appeal.
It is ordered that the appellants be allowed so much of the item of $215.45 as they actually
expended, not to exceed the amount fixed by the rule of court, in addition to the items
allowed by the clerk, to be calculated and fixed by the clerk, with right of appeal therefrom by
either party within the usual time.
48 Nev. 286, 295 (1924) Richmond Machinery Co. v. Bennett
Second OpinionOn Costs
May 1, 1925. 235 Pac. 1117.
By the Court, Coleman, C. J.:
Subsequent to our former opinion in this case relative to costs the clerk of the court taxed
the costs as follows:
County clerk's fee................................................................................ $32.90
Clerk of this court................................................................................ 25.00
Typing testimony................................................................................ 189.07
Typing briefs on appeal...................................................................... 7.85
Counsel for respondent have appealed from the allowance of the item of $189.07, upon the
ground that it is excessive, in that, as is claimed, it is a copy of the testimony taken in the case
of Holtzman v. Bennett et al. (No. 2634), 48 Nev. 274, 229 P. 1095. An inspection of the
record in the case of Holtzman v. Bennett et al. shows that it came on for trial before the
lower court on March 4, 1922, whereas this case came on for trial on March 10, 1922.
Furthermore, the first witness called in one of the cases was W. H. Fuller, while the first
witness called in the other was Vail M. Pittman. It also appears from the record in the two
cases that the matters involved were entirely different, and hence the evidence in the two
cases could not be the same. Case No. 2634 was to recover for work and labor, while case
No. 2636 was to recover the price of a pulley bought in Salt Lake City. We do not take it to
be our duty to read every line of the testimony in these two cases to ascertain if there is any
similarity in the testimony, and, if so, upon conjecture determine if any portion of it by
chance could have been used in another case. There is a limit beyond which we should not be
expected to go. The ruling of the clerk is sustained, and it is ordered that a remittitur issue
forthwith.
____________
48 Nev. 296, 296 (1924) Felis v. Felis
FELIS v. FELIS
No. 2655
November 5, 1924. 229 Pac. 764.
1. DivorceCourt Had Jurisdiction to Decree Community Property to Wife.
Court had jurisdiction to decree community property to wife for alimony.
See 19 C. J. sec. 770, p. 331, n. 97.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Action by Lillie R. Felis against Mike Felis. From the judgment, defendant appeals.
Affirmed.
Francis J. Cunningham and L. D. Summerfield, for Respondent:
There was no motion for new trial; appeal is from portion of judgment only; no statement
or bill of exceptions is before court. This appeal carries up judgment roll alone, and if
supported by pleadings must be affirmed. Finnegan v. Ulmer, 31 Nev. 523; Rosenthal v.
Rosenthal, 39 Nev.74. This court is limited to judgment roll as defined by Rev. Laws, 5273.
Findings of fact, conclusions of law, and many other documents included in record on appeal
cannot be considered, not being part of judgment roll. Peers v. Reed, 23 Nev. 404; Werner v.
Babcock, 34 Nev. 42.
Appellant cites no arbitrary rule that unless trial court orders payment of debts before
dividing community property it has committed error, nor can we find it. Community property
is still liable for debts after division. 19 C. J. 340.
Without evidence, this court cannot say lower court abused discretion, as it does not know
what proof actuated decision.
Objection with reference to negatives pregnant will not be regarded favorably unless made
before trial, where it does not appear plaintiff was mislead; and reply was not demurred to. 31
Cyc. 203.
Trial court would have had accounting and divided property as incident of divorce action,
even without any allegations in pleading with reference to property.
48 Nev. 296, 297 (1924) Felis v. Felis
property as incident of divorce action, even without any allegations in pleading with reference
to property. Rev. Laws, 2166, 5841; Hegwood v. Hegwood, 202 S. W. 35. Trial court's
judgment is based on the evidence. There is no showing what evidence disclosed at date of
trial.
What error appears on face of judgment roll to show excessive allowance? Upon divorce for
adultery or extreme cruelty, court may grant such portion as in its discretion, from facts in
case, it deems just. Rev. Laws, 2166, 5841. Ruling will not be disturbed unless discretion is
abused. Lake v. Bender, 18 Nev. 361.
Price & Hawkins, for Appellant:
Community property is liable for community debts. On dissolution by death interest of
surviving spouse is residuary and subordinate to debts. Same rule applies in divorce. In
general, where community is insolvent, heirs have no residuary interest. 31 C. J. 188.
Appellate court may modify excessive allowance Powell v. Campbell, 20 Nev. 232;
McConahey v. McConahey, 32 N. W. 300.
Trial court's first decree or decision was final judgment. Later attempt to modify without
new trial or consent was void. Rosina v. Trowbridge, 17 Pac. 751. Judgment can be amended
or set aside only as provided by statute. Sweeney v. Sweeney, 42 Nev. 432; 23 Cyc. 868.
Appeal on ground judgment is contrary to findings must be taken upon certified copy of
judgment roll, which includes findings. Rev. Laws, 5342. Upon divorce, community property
must be equally divided, except in case of adultery. Rev. Laws, 2166; Moran v. McInerney,
61 Pac. 575.
A negative pregnant implies affirmance. McIntosh L. S. Co. v. Buffington, 217 Pac. 636.
Appellant relies upon insufficient denials as raising no issues. It is unnecessary to encumber
the record with evidence. Respondent did not put in issue affirmative allegations of appellant
inform recognized by law, and cannot be heard to say appellant should have objected in court
below, as no issue was ever raised.
48 Nev. 296, 298 (1924) Felis v. Felis
Pleadings show debts which render net community estate less than that attempted to be
disposed of. Court should have provided for payment of debts before dealing with community
property.
The judgment and order modifying judgment, though in form two, were in substance
one judgment.
Rev. Laws 5342 deals with complete, not defective, or no findings. Record is controlled by
1919 Stats. 319.
OPINION
By the Court, Sanders, J.:
This appeal is taken from a judgment, upon the judgment roll alone, in an action wherein
the plaintiff wife was granted a divorce from the defendant husband, upon the ground of
extreme cruelty. The appeal is taken only from that portion of the decree wherein the
defendant was ordered to convey to the plaintiff by a sufficient quit claim deed all his right,
title, and interest in and to the community real estate of the marriage, consisting of four
contiguous lots in the city of Sparks, Nevada, together with the buildings thereon.
The appellant husband complains that the court erred in requiring such conveyance
without first making provision for the payment of the community debts; that the court
committed error in modifying in its decree a previous order made from its findings of fact that
the plaintiff should pay to the defendant the sum of $350 upon the date of the signing of the
decree and upon the delivery of said deed, the said amount of $350 being one-half the sum
expended by the defendant in the improvement of the community property; that the allowance
to the wife of all the community real estate in lieu of alimony pendente lite and permanent
alimony is excessive.
The judgment roll consists of the complaint, the answer, the reply, the findings of fact, the
judgment, and notice of appeal. No bill of exceptions accompanies the record, and the
evidence is not before us.
The court is of opinion that the complaint supports the findings and the findings the
judgment.
48 Nev. 296, 299 (1924) Felis v. Felis
the findings and the findings the judgment. The court granting the decree had jurisdiction of
the subject matter and of the parties, and there being nothing to show that the court abused its
discretion in the particulars complained of, or to show that the court exceeded its jurisdiction
in decreeing the community property to plaintiff, the judgment should and must be affirmed.
____________
48 Nev. 299, 299 (1924) Ex Rel. Blake v. County Commissioners
Ex Rel. BLAKE v. COUNTY COMMISSIONERS
No. 2684
December 13, 1924. 231 Pac. 384.
1. MandamusWill Not Issue Unless Right to Relief Shown.
Mandamus will never issue unless a clear legal right to relief sought is shown.
2. EvidencePresumed That Public Officials Did Their Duty.
It is presumed that, when public officials have acted, they did their duty, and hence court must
presume that election officers inspected both tally lists in making their return of votes, and their
conclusion as to number of votes must be accepted until mistake is shown by satisfactory proof.
3. MandateProduction of One Tally List Held Not to Warrant Issuance of Mandamus to
Compel Recount.
In proceeding in mandamus by defeated candidate to compel recount by board of county
commissioners, under general election law, sec. 25, production of one tally list showing that in one
square there were five vertical and one horizontal line, which were claimed to have been counted as five,
instead of six votes, held not sufficient to overcome presumption in favor of return.
See (1, 3) 38 C. J. sec. 56, p. 582, n. 71; sec. 328, p. 728,n. 59; (2) 22 C. J. sec. 69, p. 133, n.
31.
Original proceeding in mandamus by the State, on the relation of L. J. Blake, against
E. S. Daugherty and others, as members of the Board of County Commissioners of the county
of Ormsby. Writ denied.
Sullivan & Deady, James T. Boyd, James D. Finch, and Wm. McKnight, for Relator: Tie
exists in tallies, though not in footings.
48 Nev. 299, 300 (1924) Ex Rel. Blake v. County Commissioners
Tie exists in tallies, though not in footings. Tallies control. Declaration of result must yield
to tally list. Totals, if incorrect, must be corrected. People v. Butler, 29 Cal. App. 385; Rice v.
Canvassers, 50 Kans. 149; Dalton v. State, 43 Ohio, 652; State v. Hill, 20 Nebr. 119; People
v. Ruyl, 91 Ill. 525; Hughes v. Parker, 65 Pac. 265.
Any candidate for assembly or senate may demand recount when tie exists. 1917 Stats. c.
197, sec. 25. Public is also vitally interested. Sweeny v. Adams, 75 Pac. 182. Commissioners
shall order recount if tie exists; it is the only proper procedure. Stockton R. R. Co. v.
Stockton, 51 Cal. 339. Canvassing board's duty is not fully performed until true count is
made. State v. Bailey, 7 Iowa, 390. Canvass means to scrutinize. Webster; Clark v. Tracy, 95
Ida. 410. Board may be compelled to reassemble and make correct canvass. 9 R. C. L. sec.
115; Lehman v. Pettingell, 89 Pac. 48. Duty is ministerial, to add up returns correctly, and
declare result. State v. Trimbell, 41 Pac. 183. Canvassers mistakes should not defeat will of
people. People v. Worley, 260 Ill. 536; Brown v. Commissioners, 17 Pac. 304.
Canvassers refuse to recount. Mandamus is only plain, speedy and adequate remedy. Rev.
Laws, 5696; Humboldt Co. v. Commissioners, 6 Nev. 30; Wright v. Commissioners, 27 Nev.
33; 9 R. C. L. sec. 115; Hebb v. Cayton, 45 W. Va. 578; Bradley v. Canvassers, 154 Mich.
274, 189 Mich. 372. Relator has no other remedy. He cannot contest. 1917 Stats. c. 197, sec.
68.
Hoyt, Norcross, Cheney & Hoyt, for Respondents:
Petitioner assumes there is such book as The Combined Poll and Tally Book. Bare
reference to statutes discloses there is no such book or combined book known to law. For
convenience poll books and tally lists are combined together, but there are two of these, one
retained by clerk after canvass by commissioners and other kept by one of inspectors. Sec. 17,
general election law. There was no allegation or proof that other poll book and tally list
corresponded with one offered upon hearing, and it does not follow that other book and
list will disclose same result.
48 Nev. 299, 301 (1924) Ex Rel. Blake v. County Commissioners
that other poll book and tally list corresponded with one offered upon hearing, and it does not
follow that other book and list will disclose same result. Section 16 provides board shall
count votes cast and when complete clerks shall set down in poll books number of votes in
words and figures.
Presumption is that officers performed their duty.
Other poll book and tally list being available, should have been produced. Presumption is
that, if offered, it would not support case.
Tally lists are so prepared that only five votes are to be placed in each square. Extra mark
in any square is strong evidence of mistake. In fact another square in list offered contains
extra mark. If only marks should be counted, petitioner could claim with equal force that he
was entitled to two more votes in which case there would not be tie. It is only in case of tie
that recount should be had.
Abstract was made as required by section 25, and is in accordance with returns as provided
in section 16.
Proper rule is that canvassers consider entire return and decide, between certificate and
tally list, which is correct and make abstract accordingly. They are not bound to accept tally
list as conclusive. People v. Murphy, 129 Pac. 603; Dublin v. Connelley, 129 Pac. 607.
Familiar rule that mandamus will issue only to enforce clear legal right is sufficient to
require denial of peremptory writ.
OPINION
By the Court, Coleman, J.:
This is an original proceeding in mandamus. The petition alleges that at the general
election on November 4, 1924, L. J. Blake and V. E. Maher were opposing candidates for the
assembly from Ormsby County, Blake being the Democratic nominee, and Maher the
Republican nominee; that on November 6, 1924, the respondents assembled and canvassed
the votes of said county. The petition also alleges: "That on said date and at all times herein
mentioned on 'the combined poll and tally book, including challenge list, of the general
election held in Ormsby County, in Carson City number one {1) precinct, on the 4th day of
November, 1924,' on page eleven {11) thereof, and in the thirty-third square of said page,
appeared six marks or tallies for your petitioner; that said square was canvassed and
counted by the respondents as five votes, instead of six votes, as marked in said square,
for your petitioner, whereby your petitioner was deprived of one marked vote in the total
for said precinct; that the total vote of said precinct was canvassed by the respondents as
one hundred seventy for your petitioner and one hundred forty-four for said V. E. Maher;
that the total vote of the county was canvassed by said respondents as four hundred and
seventy-two for your petitioner and four hundred seventy-three for V. E. Maher; that said
respondents should have canvassed the vote of said precinct number one as one hundred
seventy-one for your petitioner and four hundred seventy-three for your petitioner's vote
in said county, thereby making the count between the two candidates a tie; that the
failure of said respondents to declare the vote a tie was due to their mistake in counting
five votes in one square, instead of six votes in said square, as were plainly marked in
said square; that on the Sth day of November, 1924, your petitioner demanded of said
respondents that they declare the vote a tie, and that they order a recount of the ballots
of said election; that the respondents knew that six votes were marked in said square
above referred to, and nevertheless refused to declare said vote a tie, and refused to
order a recount, and do still refuse to do so."
48 Nev. 299, 302 (1924) Ex Rel. Blake v. County Commissioners
That on said date and at all times herein mentioned on the combined poll and tally book,
including challenge list, of the general election held in Ormsby County, in Carson City
number one (1) precinct, on the 4th day of November, 1924,' on page eleven (11) thereof, and
in the thirty-third square of said page, appeared six marks or tallies for your petitioner; that
said square was canvassed and counted by the respondents as five votes, instead of six votes,
as marked in said square, for your petitioner, whereby your petitioner was deprived of one
marked vote in the total for said precinct; that the total vote of said precinct was canvassed by
the respondents as one hundred seventy for your petitioner and one hundred forty-four for
said V. E. Maher; that the total vote of the county was canvassed by said respondents as four
hundred and seventy-two for your petitioner and four hundred seventy-three for V. E. Maher;
that said respondents should have canvassed the vote of said precinct number one as one
hundred seventy-one for your petitioner and four hundred seventy-three for your petitioner's
vote in said county, thereby making the count between the two candidates a tie; that the
failure of said respondents to declare the vote a tie was due to their mistake in counting five
votes in one square, instead of six votes in said square, as were plainly marked in said square;
that on the 8th day of November, 1924, your petitioner demanded of said respondents that
they declare the vote a tie, and that they order a recount of the ballots of said election; that the
respondents knew that six votes were marked in said square above referred to, and
nevertheless refused to declare said vote a tie, and refused to order a recount, and do still
refuse to do so.
Section 25 of the general election law (Stats. 1917, c. 197, p. 358) provides that in the case
of a tie vote for candidates for the assembly any of the persons receiving such tie vote shall
have a right to demand of the board of county commissioners a recount of all of the ballots
cast for the office for which such person was a candidate.
The only question in the case is whether the petitioner received in precinct No.
48 Nev. 299, 303 (1924) Ex Rel. Blake v. County Commissioners
received in precinct No. 1, of Ormsby County, 171 votes, or only 170 votes, as shown by the
totals on the tally list of that precinct which was sent to the clerk of the board of county
commissioners by the election officers of the precinct. When the matter came on for hearing
the petitioner offered evidence in support of his contention that he was entitled to have
counted for him 171 votes, instead of 170. The evidence relied upon to sustain this contention
was the tally list, which was returned by the officers of election in precinct No. 1 to the clerk
of the board of county commissioners, which was resorted to by said board in making its
canvass. In the thirty-third square of the tally list, which contains the record of the votes
counted for the petitioner, are five perpendicular marks with a horizontal line drawn through
them. The square mentioned is the second from the last one in which votes are recorded.
Section 17 of the election law provides that a return shall be made to the clerk of the board
of county commissioners, which shall include, among other things, one of the tally lists of
regular ballots and one of the poll books. It also provides that:
The other poll books and tally lists shall be deposited with one of the inspectors of the
election.
No evidence was tendered as to the tally list deposited with the inspector of election.
It is said that the board of county commissioners, as a board canvassers, should have
ignored the footings as returned by the election officers, and been controlled by the tallies
made in the tally sheet, allowing six votes in the thirty-third square. Our attention is directed
to the following authorities, pro and con: Rice v. Board of Canvassars etc., 50 Kan. 149, 32 P.
134; People v. Butler, 20 Cal. App. 379, 129 P. 600; People v. Murphy, 20 Cal. App. 398,
129 P. 603; Devlin v. Donnelly, 20 Cal. App. 495, 129 P. 607; Hughes v. Parker, 63 Kan.
297, 65 P. 265.
Authority has to be lodged somewhere to add up the returns from the various precincts and
to issue a certificate of election to the person shown, by adding the returns from the various
precincts, duly certified to as correct by the election officers, to be entitled thereto; and it
may be that the legislature contemplated that the board of canvassars should do no more
than add up such certified returns and issue the certificate to the person thus shown to be
entitled thereto.
48 Nev. 299, 304 (1924) Ex Rel. Blake v. County Commissioners
correct by the election officers, to be entitled thereto; and it may be that the legislature
contemplated that the board of canvassars should do no more than add up such certified
returns and issue the certificate to the person thus shown to be entitled thereto. It would be
remarkable if the legislature contemplated that the certificate of the election officials, based
upon all of the evidence possibly available, could be overthrown upon an inspection of only
one of the tally lists, when that one might be easily changed, though the other is accessible.
The Supreme Court of Colorado, in construing a statute similar to ours, took the view
contrary to that urged upon us by petitioner's counsel, holding that the tally lists were not a
part of the certified return saying:
* * * It certainly was not the purpose of the general assembly to allow mere tally sheets,
which are not certified, which contain nothing more than strokes of pen or pencil, with
respect to the number of votes cast for any candidate, and which can be readily changed to be
taken as evidence sufficient to contradict the certificates, in case of a discrepancy between
such certificates and the tally sheets. People Ex Rel. Miller v. Tool, 35 Colo. on page 251,
86 P. 232, 6 L. R. A. (N. S.) 822, 117 Am. St. Rep. 198.
This reasoning is cogent, but, since a determination of the contention is not necessary to a
disposition of this matter, we decline to lay down a rule which should control in such a
situation.
1. It has repeatedly been held that mandamus will never issue, unless a clear, legal right of
the relief sought is shown. State v. Noyes, 25 Nev. 31, 56 P. 946. Can it be said in this case
that the petitioner has shown such a right?
Section 2 of the general election law provides that the several boards of county
commissioners in the state shall so arrange and divide the voting places in the county that no
greater number than 400 voters shall vote in one precinct. The tally lists furnished the election
officials are arranged into 80 squares, for the registration of five votes in each for each
candidate, or a total of 400.
48 Nev. 299, 305 (1924) Ex Rel. Blake v. County Commissioners
of five votes in each for each candidate, or a total of 400. The tally lists are bound in the poll
book, to which are attached directions and illustration showing the manner in which the votes
shall be recorded and tallied by the clerks of election, from which it appears that in each
square there should be four perpendicular lines and a line drawn diagonally across them to
indicate the recordation of five votes for a candidate. There are three inspectors and two
clerks of election in each precinct, and it is the duty of each clerk to record on a separate tally
sheet the votes as announced by the inspectors, and the votes so recorded by the clerks should
agree. In this manner of keeping a tally of the votes counted each clerk is a check upon the
other, and their record are the basis for the return made by the said election officials.
2, 3. When public officials have acted, it is a presumption of law that they did their duty.
This is a well-established rule. We must presume that the election officers inspected both of
the tally lists and from such inspection found that the petitioner received 170 votes. We must
accept this conclusion, until it has been made to appear by clear and satisfactory proof that
petitioner in fact received 171 votes. Can it be said that such proof has been produced? We
think not. We do not think that the marks in the thirty-third square clearly show that the clerk
who made that tally list intended to record therein six votes, instead of five. It might easily
have happened that the clerk in question thoughtlessly put down the fifth perpendicular line
before discoverying that it was the fifth vote registered in the square, and, upon learning the
fact, simply drew the horizontal line through the square without erasing the fifth line. The
sole purpose in drawing the line across the perpendicular lines is to indicate that five votes
have been cast, so that the total may be quickly ascertained and called a tally, and a clerk,
discovering that five perpendicular marks have been made, might naturally draw the line
across without thinking it necessary to erase one of the perpendicular lines, especially when
it is recorded in ink as in the instant case.
48 Nev. 299, 306 (1924) Ex Rel. Blake v. County Commissioners
especially when it is recorded in ink as in the instant case.
If we were to concede that the tally list in question shows that the petitioner should receive
171 votes, it is evident that the tally list of the other clerk should show that, too. It is not
probable that both clerks could have made a similar mistake. If this be true, it is almost
certain that in totalling the votes a discrepancy between the results shown by the two tally
lists would have been discovered by the election officials, and the tally list in evidence would
have been corrected to correspond with the other, and the total on it given at 171, instead of
170, if such officials had deemed the matter of consequence.
Viewing the matter from any standpoint, we are unable to say that the petitioner has shown
that clear legal right to the writ sought which would justify its issuance.
It is ordered that the writ be denied, and that the proceedings be dismissed.
Sanders, J., concurring:
This is a proceeding in mandamus, brought under section 25 of the general election law
(Statutes 1917, p. 358), which, among other things, provides as follows:
On the tenth day (or if that day shall fall on Sunday, then on the Monday following), after
the close of any election, or sooner, if all the returns be received, the board county
commissioners shall proceed to open said returns and make abstracts of the votes * * * And it
shall be the duty of the board of county commissioners to cause a certificate of election to be
made out by the respective clerks of said board of county commissioners to each of the
persons having the highest number of votes for members of the legislature, district, county,
and township offices, respectively, and to deliver such certificate to the person entitled to it
on his making application to said clerk at his office; provided, that when a tie shall exist
between two or more persons for the senate or assembly, or any other county, district or
township officer, any of said persons shall have the right to demand of the board of
county commissioners a recount of all the ballots cast for them for the office for which
they were candidates.
48 Nev. 299, 307 (1924) Ex Rel. Blake v. County Commissioners
township officer, any of said persons shall have the right to demand of the board of county
commissioners a recount of all the ballots cast for them for the office for which they were
candidates. * * *
The record discloses that the board of county commissioners of Ormsby County, upon
making an abstract of the votes cast at the recent general election for candidates for the
assembly, ordered its clerk to issue a certificate of election to V. E. Maher as the candidate
receiving the highest number of votes for that office. The result of the canvass shows that L.
J. Blake was defeated for the office by one vote. He wants a recount. Subsequent to the
board's order to issue the certificate of election to his opponent, he inspected the tally list,
made a part of the election returns by section 17 of the statute, and discovered that the tally
list from precinct No. 1 revealed a condition which he believed entitled him to demand of the
board a recount. He thereupon made demand upon the board to order a recount, which was
refused. He then applied to and obtained from this court an alternative writ of mandamus,
commanding said board to immediately order a recount, or show cause before this court on a
day fixed in the writ why it had not done so. The board appeared and interposed a general
demurrer to the petition for the writ. Preliminary to the hearing, it was in effect stipulated by
the attorneys for the respective parties that the relator should make proof of the facts alleged
in his petition, and that the entire matter upon argument, be submitted to the court for
decision. The relator put in his proof. The respondent board made no proof whatever. The
demurrer was not pressed, but the respondent took the position that, upon the admitted and
undisputed facts, the relator was not entitled to the writ commanding the respondent to order
a recount.
I regard the case as one of primary importance, not so much, perhaps, from the effect that
its decision may have upon the candidates for the assembly or the temporary prospects of
political parties, but from the permanent influence which the decision will have upon the
duties of county boards, with respect to recounts of ballots cast for the particular officer
named in the statute.
48 Nev. 299, 308 (1924) Ex Rel. Blake v. County Commissioners
the duties of county boards, with respect to recounts of ballots cast for the particular officer
named in the statute.
The first question I will consider is: What is the power of the court in this summary
proceeding to compel county boards to order a recount? Counsel for the respective parties
have argued the question upon the assumption that, since canvassing boards are ministerial
officers, their actions may be controlled by mandamus. In a proper case this, as a general
proposition, is true, but here we are dealing, not so much with the powers and duties of
county boards with respect to the canvass of the result of an election held, as with their duty
to order a recount upon the demand of a defeated candidate when no tie is shown to exist. The
relator bases his right to a recount, not upon the ground that a tie exists, but upon the
hypothesis that, if the board had made a proper and legal abstract of the official returns, a tie
would have existed, and therefore this court should compel the board to declare the result a
tie and then order a recount. It is a new question. It is apparent, from the hypothetical
statement of the facts, that the issuance of the writ is made dependent upon the contingency
that a proper computation of the returns shows that a tie exists. Both upon principle and upon
authority, I take the general position in this matter that a court can neither direct canvassing
officers what result to ascertain or declare from their investigations, nor can it, by any
processes of its own, ascertain for them a result by which they will be bound to make their
return. Barnes v. Gottschalk, 3 Mo. App. 225. In this case the court is asked to place itself in
the position of the respondent board, and determine for it whether a tie exists, and compel the
board to act in accordance with its decision of this question. In other words, the court is asked
to consider questions which the canvassing board itself had no power to consider and to
compel action by the board, based upon its decision of such questions. This cannot be done.
In Re Woods, 5 Misc. Rep. 575, 26 N. Y. S. 169; 15 Cyc. 385.
As before stated, this is a summary proceeding to compel public officials by mandamus to
perform a certain act, to wit, order a recount.
48 Nev. 299, 309 (1924) Ex Rel. Blake v. County Commissioners
compel public officials by mandamus to perform a certain act, to wit, order a recount. It must
be conceded that before the board can be required to perform the act it must be one which
the law especially enjoins as a duty resulting from an office, trust, or station. Revised Laws
of Nevada, sec. 5695; State of Nevada v. Gracey, 11 Nev. 233. It is well settled that
mandamus does not lie to compel a board of canvassers to do an act which, without its
command, would not have been lawful for the board to do. The writ, whether alternative or
peremptory, must not only show the obligation of the defendant to perform the act, but must
also show his omission to perform it. Rosenthal v. State Board of Canvassers, 50 Kan. 129,
32 P. 129, 19 L. R. A. 157.
It is not controverted that the determination of the result of an election by a canvassing
board is not a judicial act. It is purely a matter of calculation. State v. Osburn, 24 Nev.187, 51
P. 837; McCrary on Elections (4th ed.), sec. 261, 15 Cyc. 279, 280. In section 265, McCrary
on Elections, it is said the doctrine that canvassing boards and return judges are ministerial
officers possessing no discretionary or judicial power is settled in nearly or quite all the
states. Applying the above principles to the statute under consideration, I fail to discover
anything in the law which enjoins upon county boards a duty or obligation to order a recount,
when no tie is shown to exist from the calculation made by the canvassing board of the
official returns.
It is urged on the part of the relator that the statute itself assumes it to be the duty of county
boards to correct mistakes apparent upon the face of the returns, and, the respondent having
refused to correct the mistake complained of, mandamus lies to compel its correction. I
concede that, where the mistake is one made by the board itself, as, for example, an error in
addition or of some kind too clear for controversy as a matter of simple justice the aggrieved
party is entitled to have the mistake corrected, whatever may be the result, or whoever it may
affect. But we are dealing in this instance with the question of the power of county boards to
order a recount in the face of the express inhibition of the statute.
48 Nev. 299, 310 (1924) Ex Rel. Blake v. County Commissioners
inhibition of the statute. There is nothing clearer to my mind than that the statute does not
authorize county boards to correct mistakes which have occurred on the part of the inspectors
of election in a given precinct. It was once the law that, when the county board had canvassed
the votes for candidates for the legislature, and it appeared from such canvass that any
legislator voted for had received a majority of 10 votes or less, in such case, upon the
application of the defeated candidate, setting forth under oath that he had reason to believe
and did believe that a mistake or mistakes had occurred on the part of the inspector of
election in any election precinct or precincts sufficient to change the result, it then became the
duty of the board to immediately proceed to recount the ballots. Section 1513, Revised Laws.
But this section of the county government act was expressly repealed by the legislature in
1915 (Statutes 1915, p. 6), and in consequence of the repeal the law as to recounts stands now
as it has stood since 1861. I am of opinion that the relator seeks, by this summary proceeding,
to have the court revive a repealed law by attributing to the respondent board a mistake, if it
be a mistake of the election officials, and thus circumvent the plain meaning and purpose of
the law as to recounts.
It is strongly urged on the part of the relator that, in a case where a discrepancy exists
between tally markings and the statement of the total votes for a candidate made by the
election officials, the former control and require a declaration to be made in conformity
therewith. I do not concede that any such discrepancy is shown in this case. According to the
returns, the relator received 170 votes in precinct No. 1, when the tally markings opposite his
name are counted by squares, five marks each to the square. But, if each mark opposite the
name of the relator is to be counted as a vote, he received 171 votes in that precinct.
Assuming, for the sake of the argument, and the argument only, that it was within the
discretion of the board, from the condition revealed by the tally list, to accept the count by
squares as the correct number of votes cast for the relator, the board cannot be compelled
by mandamus to alter its determination.
48 Nev. 299, 311 (1924) Ex Rel. Blake v. County Commissioners
for the relator, the board cannot be compelled by mandamus to alter its determination. It is
certain that the board could not determine judicially whether the mark was in fact a vote for
the relator.
It is claimed that this court should take judicial notice that the extra mark in square 33
(which gave rise to this controversy) was recorded as a vote cast for the relator. My answer is,
as a matter of principle, judicial notice of a fact that is reasonably open to dispute should not
be taken. Only such facts as are reasonably not open to dispute should be judicially noticed.
It is suggested that the conclusion reached leaves the realtor without a remedy. If this be
true it is the fault of the legislature; not the fault of the respondent board or this court. But I
am not prepared to concede that the relator is without a remedy. This question, however, is
not involved, and I intimate no opinion upon it.
As I conclude that the statute imposes no duty upon the board to order a recount in the
present case, it is unnecessary to enter upon a discussion of the evidence, but, if I were
pressed to do so, I should say that no unfavorable inference is to be drawn from the relator's
failure to put in evidence the corresponding or duplicate tally list which is not made a part of
the election returns by the statute. The board itself had no right to consider such list (15 Cyc.
382), and, since this court can go no further than the board, it is probable that, had the
duplicate list been offered, it would be immaterial. But I am clearly of opinion that an
unfavorable inference is to be drawn from the failure of the parties to place before the court
the poll book or poll list of the number of votes cast in precinct No. 1, which is a part of the
official returns. It is possible that the poll book would have settled this controversy one way
or the other, and why it was not placed before the court is a matter of conjecture.
In any view of the case, this court cannot by mandamus help the relator out of the dilemma
in which the law places him.
The writ was improvidently issued, and the proceeding should be dismissed.
____________
48 Nev. 312, 312 (1925) Wm. Johnson Land & Live Stock Co. v. Harris
WILLIAM JOHNSON LAND AND LIVE STOCK
CO. v. HARRIS, Sheriff
No. 2619
January 5, 1925. 231 Pac. 1095.
1. ReplevinPlaintiff Must Show Himself Entitled to Immediate Possession.
In action of claim and delivery to recover possession of personal property, plaintiff must show himself
entitled to immediate possession.
2. ReplevinClaimant Not Required to Establish Ownership.
Claimant in action for claim and delivery is not called upon to establish ownership but merely right to
immediate possession.
3. Sheriffs and ConstablesDefendant Sheriff, Justifying Under Execution, Held Required
to Show Execution Issued on Valid Subsisting Judgment.
Where sheriff, defendant in replevin, justifies under execution, and attacks plaintiff's title on ground
of fraud, he must show execution was issued on a valid subsisting judgment; plaintiff being a stranger
thereto.
4. Frauds, Statute ofSheriffs And ConstablesSheriff, Justifying Under Execution on
Judgment Declared Void, May Not Attack Plaintiff's Title or Agreement Under Which
He Claims.
Where execution under which sheriff justifies was issued on judgment determined to be void, sheriff
has no foundation for attack on plaintiff's title as fraudulent, and is not in position to attack agreement by
which plaintiff acquired its right or claim, as violative of Rev. Laws, sec. 1078.
5. Appeal and ErrorCourt's Determination as to Validity of Judgment on Which Defendant
Sheriff Predicates His Claim Not Disturbed if Supported by Substantial Evidence.
Whether judgment and execution thereon on which sheriff, as defendant in replevin, predicates his
right is valid as against plaintiff is question peculiarly for court sitting as jury, whose determination will
not be disturbed if supported by substantial evidence.
6. ReplevinOne Entitled to Personality, Though Not Owner, May Replevin From One
Having no Better Right.
One entitled to personalty, though not owner, may replevin from one who can show no better right.
7. Sheriffs and ConstablesPlaintiff Held Entitled to Possession as Against Defendant
Sheriff Who Seized Under Execution.
Plaintiff, to whom its debtor had delivered property for purpose of sale and application of proceeds to
the debt, held, as against sheriff seizing the property under execution on void judgment against debtor,
entitled to possession of property.
See (1, 2, 6) 34 Cyc. p. 1387, n. 54; p. 1389, n. 65; p. 1390, n. 68; (3, 7) 35 Cyc. p. 1749, n. 49; p. 1843, n. 33;
(4) 27 C. J. sec. 392, p. 307, n. 62; (5) 4 C. J. sec. 2855, p. 884, n. 37.
48 Nev. 312, 313 (1925) Wm. Johnson Land & Live Stock Co. v. Harris
Appeal from Fourth Judicial District Court, Elko County; E. J. L. Taber, Judge.
Action by the William Johnson Land and Live Stock Company against J. C. Harris, as
sheriff of the county of Elko. From judgment for plaintiff and order denying new trial,
defendant appeals. Affirmed.
Milton B. Badt and James Dysart, for Appellant:
It is elementary that plaintiff in replevin must recover on strength of his own title and not
on weakness of his adversary's, and he must establish his right to possession by
preponderance of evidence. Mountain Home Sheep Co. v. Faraday, 212 Pac. 970.
Contract, reiterating words rent and lease created relation of landlord and tenant, and
not that of owner and cropper. If contract gives owner his share as rent, occupant is tenant; if
it give occupant his share as compensation, he is cropper. Mull v. Boyle, 171 Pac. 652; Gray
v. LaFayette, 27 N. W. 311.
As contract amounts to lease, crops and increase belong to occupant, whether he pays rent
in money or share of products. He is owner pro hac vice, with title until division and delivery.
24 Cyc. 1191, 1465, 1469, 16 R. C. L. 912; Mountain etc. Co. v. Faraday, supra.
As title did not pass, plaintiff cannot maintain action in replevin because it relies upon no
other circumstance to support its title. There was no marking, no change of condition or
position, no exclusiveness of possession, no delivery nor even symbolic delivery. Wilson v.
Hill, 17 Nev. 401; Lawrence v. Burnham, 4 Nev. 361.
Purported agreement whereby Johnson was to take over property is void for uncertainty in
regard to number, amount, price, time, terms, and all other details. So vague a contract is
unenforceable in law or equity. Williston on Contracts, sec. 18; Donovan v. Bull etc. Co., 198
Pac. 436.
Mack & Green and A. F. Lasher, for Respondent:
Creditors whose claims were included in judgment against Thueson elected to take it
against him as individual rather than against copartnership, whereby their claims against
it became merged in judgment against him.
48 Nev. 312, 314 (1925) Wm. Johnson Land & Live Stock Co. v. Harris
individual rather than against copartnership, whereby their claims against it became merged
in judgment against him. 30 Cyc. 596.
Statement upon which judgment was entered was not sworn to, and was therefore void.
Rev. Laws, 5250; Bryant v. Harding, 29 Mo. 347.
Decision will not be disturbed on appeal where there is substantial evidence to support it.
DeRemer v. Anderson, 41 Nev. 288.
Judgment by confession must be based on strict compliance with statute. 23 Cyc. 699.
Execution issued under void judgment is void. 15 R. C. L. 739.
Firm creditors have prior claim. 46 L. R. A. 494; Hannon v. O'Dell, 43 Atl. 147.
One partner cannot sue another until account is settled. 30 Cyc. 461.
Partners cannot give individual creditors preference. Conway's Admrs. v. Stealey, 28 S. E.
793; 30 Cyc. 551.
Sheriff committed trespass in attaching specific property described in complaint instead of
partnership interest of Thueson. 46 L. R. A. 481; Tait v. Murphy, 80 Ala. 440.
Partnership is not dissolved until business ceases. 20 R. C. L. 963.
Even after dissolution, partners are estopped to deny partnership to injury of those whom
they have lead to deal with them on faith that partnership still existed. Fetter on Equity, 47.
Judgment confessed for purpose of hindering, delaying or defrauding creditors is void.
Rev. Laws, 1083.
General rule is where demise is made, term created, exclusive possession given, and
produce is to be paid as rent, contract is lease; but where occupant covenants to deliver
portion of crop, contract is cropping agreementa letting on sharesand parties are tenants
in common of crop. Putnam v. Wise, 1 Hill, 247; Bernal v. Hovious, 17 Cal. 544.
Defrauded stranger may impeach, even collaterally, judgment by proof of fraud in
obtaining it. 17 Am. & Eng. Enc. Law, 849; Freeman on Judgments (3d ed.), Pars. 336, 337.
48 Nev. 312, 315 (1925) Wm. Johnson Land & Live Stock Co. v. Harris
No writing is necessary to constitute pledge. 31 Cyc. 796.
Lessor may terminate tenancy when lessee repudiates it. 24 Cyc. 1353.
OPINION
By the Court, Sanders, J.:
The William Johnson Land and Live Stock Company, a Nevada corporation, brought this
action of claim and delivery to recover possession of 25 1/2 bags of wool, 2 tons of alfalfa
seed, 340 tons of hay, 80 head of cattle, 50 thoroughbred sheep, and 200 grade sheep, which
the defendant, J. C. Harris, while acting as sheriff of Elko County, justified taking upon a writ
of execution issued from the district court of that county upon a judgment rendered in favor
of Bank of Wells v. Alma Thueson for the sum of $3,147.82. The case was tried to the court
without a jury, and resulted in a judgment in favor of the plaintiff and against the defendant
for the possession of the property. The defendant appeals from said judgment and from an
order denying the defendant's motion for a new trial.
1, 2. Without reviewing the pleadings or going into the evidence except in so far as it may
be necessary to make clear the conclusion we have reached, we are of opinion that in this, as
in any case of claim and delivery, the action merely determines the right of possession at the
time of commencement of the action. In an action to recover personal property it is necessary
for the plaintiff to show that he is entitled to immediate possession. Hilger v. Edwards, 5 Nev.
84; Azparren v. Ferrel, 44 Nev. 157, 191 P. 571, 11 A. L. R. 678; 23 R. C. L. 866. In such
action the claimant is not called upon to establish ownership; merely a right to the immediate
possession of the property is sufficient. Parke v. Franciscus (Cal. Sup.) 228 P. 435. The action
is essentially a possessory one, and ownership is only incidental to the main issue. Cobbey on
Replevin (2d ed.), sec. 91.
3, 4. In the present case it is argued on behalf of the defendant that the plaintiff's claimed
right to the possession of the property is founded solely upon its alleged ownership
thereof, and, plaintiff having failed to establish title to the property, such failure carried
with it its claimed right to possession.
48 Nev. 312, 316 (1925) Wm. Johnson Land & Live Stock Co. v. Harris
defendant that the plaintiff's claimed right to the possession of the property is founded solely
upon its alleged ownership thereof, and, plaintiff having failed to establish title to the
property, such failure carried with it its claimed right to possession. Conceding, but not
deciding, that the plaintiff's right to the immediate possession of the property is founded upon
its alleged ownership and right to possession, we are of opinion that, since the trial court
expressly found that the judgment under which the defendant justified was void as to the
plaintiff, the defendant is in no position to assail plaintiff's title to the property as being
fraudulent as against Thueson's creditors. Where a sheriff justifies under an execution and
seeks to attack the title of the plaintiff in replevin on the ground of fraud, the plaintiff being a
stranger to the judgment upon which the execution is based, the sheriff must show that his
execution was issued upon a valid subsisting judgment. Wyatt v. Freeman, 4 Colo. 14;
Cobbey, sec. 806. The judgment under which the defendant justified having been declared
void, there was no foundation for the defendant or any one claiming under him to attack
plaintiff's title as fraudulent. Wilson v. Martin, 44 Mich. 509, 7 N. W. 83. For the same
reason we are of the opinion that the defendant is in no position to assert and contend that the
agreement by virtue of which the plaintiff acquired its right or claim to the property is within
our statute of frauds. Section 1078, Revised Laws.
5. The court found the facts and circumstances in connection with and attendant upon
Alma Thueson's confession of judgment in favor of the Bank of Wells were such that the
judgment and execution under which the defendant justified was void as to the plaintiff. This
question was one peculiarly within the province of the court sitting as a jury to determine.
The court having found upon conflicting evidence the judgment to be void, and there being
some testimony of a substantial nature to support the finding, we are in no position to disturb
it. Assuming, then, the correctness of the finding, the plaintiff is entitled to the possession
of the property, providing it proved its right to it.
48 Nev. 312, 317 (1925) Wm. Johnson Land & Live Stock Co. v. Harris
of the finding, the plaintiff is entitled to the possession of the property, providing it proved
its right to it. Feusier v. Lammon, 6 Nev. 209.
In this case plaintiff leased its ranch and stock to one Alma Thueson on such terms that
plaintiff had a one-half interest in the products raised on the ranch and the increase of the
stock during the term, which was for a period of three years from December 1, 1917. The
lower court found upon conflicting evidence that the lease was carried on by one O. J.
Hutchinson and said Alma Thueson as copartners under the firm name of Hutchinson &
Thueson; that the firm in carrying on the lease became indebted to plaintiff for the value of a
number of tons of hay and other products furnished and money loaned during the term; that,
while so indebted, and while in the occupancy of the premises and in possession of the
property in controversy, the firm of Hutchinson & Thueson, within a few months of the end
of the term, to wit, in October, 1920, entered into an agreement with plaintiff whereby it was
understood and agreed that the firm would turnover and deliver to plaintiff all the property in
controversy, and that the plaintiff would sell all or any portion of the firm's undivided
one-half thereof and from the proceeds of said sale the plaintiff would pay the firm's
indebtedness to it and return the balance, if any remained, to the firm. The property was
delivered, and plaintiff took possession thereof in accordance with said agreement, and, while
so possessed, the defendant as sheriff wrongfully and unlawfully seized and took possession
of the property, and wrongfully and unlawfully detained the same.
Counsel for the respective parties argue that the agreement of October, 1920, constituted a
sale or a pledge of the property. There are no words of sale in the agreement; nor is there
anything in it indicating an intention on the part of the firm to transfer to plaintiff the
ownership of its undivided one-half of the property, but, on the contrary, we find stipulations
in it utterly inconsistent with such intention. Thus it is provided in the agreement that the
plaintiff have the custody and control of the property and sell all or any portion of the
firm's half thereof and apply to the proceeds of sale to the payment of the firm's
indebtedness to plaintiff and account to the firm for the balance, if any, thereafter
remaining from said sale.
48 Nev. 312, 318 (1925) Wm. Johnson Land & Live Stock Co. v. Harris
the agreement that the plaintiff have the custody and control of the property and sell all or any
portion of the firm's half thereof and apply to the proceeds of sale to the payment of the firm's
indebtedness to plaintiff and account to the firm for the balance, if any, thereafter remaining
from said sale. There are certainly no words in the agreement which indicate an intention on
the part of the firm to transfer the property to plaintiff in pledge as security for its
indebtedness to plaintiff. It is obvious from its stipulations that the plaintiff was to have full
and entire control of the sale of the property, and that there was imposed upon the owners the
duty to deliver the property to plaintiff, and upon plaintiff the duty to sell all or any portion of
the firm's half for the purpose stated, and to account to the firm for the proceeds of said sale.
There could be no effectual sale without delivery of the property, and there could be no
delivery of possession if the property was not in plaintiff's custody or control, or, in other
words, in its actual possession. As between the parties the agreement was executed. It may be
that the agreement gave plaintiff a money interest in the property, but as to this the lower
court made no decision or finding.
6. It is well settled that one entitled to the possession of personal property, though not the
owner, may maintain replevin against a party who cannot show a better right to it. Cobbey,
sec. 90. The naked possession of goods with claim of right is sufficient evidence of title
against one who shows no better title. Cobbey, sec. 60. The right to the possession and
dominion of the goods for the time is all that is essential to entitle plaintiff to maintain its
action. Johnson v. Carnley, 10 N. Y. 570, 61 Am. Dec. 762; Abbott's Trial Evidence (3d ed.),
p. 1863.
7. Tested by these principles, we have no difficulty in determining that as between the
plaintiff company and the defendant sheriff the plaintiff has the better right to the possession
of the property. In arriving at this conclusion we do not wish to be understood as expressing
or intimating any opinion upon any collateral questions raised in the course of the trial, but
we do join in the criticism of the inconsistent positions taken by the plaintiff in the case.
48 Nev. 312, 319 (1925) Wm. Johnson Land & Live Stock Co. v. Harris
questions raised in the course of the trial, but we do join in the criticism of the inconsistent
positions taken by the plaintiff in the case. We simply hold with the trial court that the
plaintiff had a right to the immediate possession of the property at the time of the
commencement of the action. To this extent the judgment is affirmed.
____________
48 Nev. 319, 319 (1925) Barnett Bank v. Chiatovich
BARNETT BANK v. CHIATOVICH
No. 2658
January 5, 1925. 232 Pac. 206.
1. Appeal and ErrorJury's Finding that Plaintiff Was Innocent Purchaser of Note in Suit
Supported by Evidence Held Conclusive.
Jury's finding supported by evidence that plaintiff is innocent purchaser in good faith for value before
maturity, of note in suit, is conclusive.
2. Bills and NotesFraud in Contract or Consideration Out of Which Note Arose is Not
Defense Available as Against Bona Fide Purchaser.
Fraud in contract or in consideration out of which negotiable instrument arose is no defense available
to maker in suit by bona fide holder.
3. Bills and NotesFraud in Procurement not Available as Defense Against Purchaser for Value Before
Maturity, Unless Knowledge Actual or Constructive is Established.
For fraud in procurement of note to be available as defense against purchaser for value before
maturity, under negotiable instrument act, sec. 56, it must appear purchaser had actual knowledge of
fraud or of facts such that taking amounted to bad faith.
4. Bills and NotesPurchaser of Note Held Not Shown to Have Acquired it With
Knowledge of Fraud in its Procurement.
Purchaser of note held not shown to have acquired it with knowledge of fraud in its procurement,
particularly where makers themselves did not discover alleged fraud until over year after such purchase,
and in meantime paid accruing interest.
5. Bills and NotesBona Fide Holder of Instrument Arising Out of Illegal Transaction is
Unaffected Thereby, Save Perhaps Where Statute Declares Instrument Void.
Bona fide holder for value of a negotiable instrument is unaffected by fact that it originated in illegal
transaction, or was given for consideration made illegal by statute, unless perhaps in cases where
statute declares instrument absolutely void.
48 Nev. 319, 320 (1925) Barnett Bank v. Chiatovich
perhaps in cases where statute declares instrument absolutely void.
6. Bills and NotesRights of Bona Fide Holder Not Affected by Subsequent Rescission by
Maker of Contract Out of Which Note Arose.
Rights of bona fide purchaser for value of note are not affected by maker's subsequent
attempted rescission of contract out of which note arose, or by suits against payee to
enforce such rescission.
7. Bills and NotesNote Held Complete and Regular on its Face as Concerns Identity of
Maker.
Note, signed The Chiatovich Ranch, by J. M. Chiatovich, is as matter of law
complete and regular on its face, and constitutes negotiable instrument so far as identity
of maker is concerned.
8. Bills and NotesNote Need Not Disclose Identity of Maker Whether Corporation,
Partnership, or Individual.
Note need not disclose exact identity or capacity of maker whether corporation,
partnership, or individual, and failure to do so does not render it incomplete or irregular.
9. PartnershipActs Inducing General Belief in Partnership Relation May Render Persons
Liable as Partners.
Course of conduct, acts, and acquiescence in management of affairs, inducing belief
that persons are acting as partners, may render them liable as such, though no partnership
was intended.
10. PartnershipPartnership by Estoppel May Arise Between Heirs Interested in Estate,
Even Before Final Distribution.
Persons interested as heirs in estate, by their acts and acquiescence in its management
by one of their number, may become liable as partners on note executed by such person,
though during whole time property involved belonged to the estate, in course of
administration, and was under legal control of another as executrix.
11. PartnershipEvidence of Acts Both Before and After Transaction in Question
Admissible on Issue of Partnership.
Proof that alleged partners acted as such both before and after date of transaction in
issue is admissible in determining fact of partnership at that time.
12. PartnershipEvidence Held Sufficient to Go to Jury, and Sustain Finding of partnership
by Estoppel.
Evidence of acts of alleged partnership held sufficient to go to jury, and sustain findings
that partnership existed.
13. PartnershipExecutrix Refusing to Sign Note May Nevertheless Be Liable Thereon as
Partner by Estoppel.
That administratrix of estate refused to sign or authorize execution of note does not
relieve her from liability thereon as partner by estoppel, where she has allowed herself to
be held out as partner to payee and public at large.
14. PartnershipPersons Engaged in Operating Ranch and Store Thereon Held Liable as
Trading Partnership.
Defendants engaged together in operating ranch and running store thereon held liable
as trading partnership on note executed by one of its members, though part of their
business was noncommercial.
48 Nev. 319, 321 (1925) Barnett Bank v. Chiatovich
ning store thereon held liable as trading partnership on note executed by one of its
members, though part of their business was noncommercial.
15. InfantsGirl 18 Years Old at Time of Execution of Note Held Chargeable Thereon as
Partner.
Girl 18 years old at time of execution of note held, under Rev. Laws, sec. 431,
chargeable as partner.
16. InfantsInfancy is Personal Defense Waived by Failure to Interpose.
Infancy is personal defense such that failure to interpose it amounts to waiver.
17. InfantsInfant's Note is Voidable, Not Void.
Note of infant is voidable, not void, and may be ratified on attaining his majority.
18. InfantsFailure to Plead Infancy Held Implied Ratification of Codefendant's Act in
Making Note Sued on Available to Plaintiff as Waiver of Such Defense.
Where one sought to be held on note as partner by estoppel was at time of execution of
note a minor, held, her failure to plead infancy was an implied ratification of acts of her
codefendants, and was available to plaintiff as waiver of such defense.
19. InfantsInfant's Partnership Agreement is Not Void, But Voidable Only.
Infant's partnership agreement is not void, but voidable only.
20. InfantsRight to Plead Infancy as Defense Not Lost Because Party Having Such Right is
Sued Jointly with Others.
Right to plead infancy as defense to action on note is not lost because one having such
right is sued together with others liable.
21. PartnershipDefendants Held Liable on Note, Though Signed Only in Name of Firm
Under Which They Were Doing Business.
Under negotiable instruments act, sec. 18, defendants held liable on note signed in firm
name under which they were doing business.
22. Bills and NotesDefense Not Pleaded in Answer Held Not Available.
That plaintiff, purchaser of note, on being notified of fraud in its procurement
proceeded against payee, and obtained from him security, is not available as defense to
action on note where not pleaded in answer.
See (1) 4 C. J. sec. 2834, p. 853, n. 58; (2, 3, 4, 5, 6, 7, 8) 8. C. J. sec. 197, p. 107, n. 20; sec.
206, p. 114, n. 25; sec. 706, p. 496, n. 75; sec. 1020, p. 748, n. 54; sec. 1033, p. 768, n.
26; sec. 1047, p. 788, n. 86; sec. 1270, p. 968, n. 35; sec. 1358, p. 1047, n. 10; (9, 10, 11,
12, 13, 14) 30 Cyc. p. 391, n. 82; p. 395, n. 97; p. 406, n. 77; p. 415, n. 28; p. 478, n. 53;
p. 509, n. 93; p. 591, n. 21; {15, 16, 17, 1S, 19) 31 C. J. sec.
48 Nev. 319, 322 (1925) Barnett Bank v. Chiatovich
(15, 16, 17, 18, 19) 31 C. J. sec. 3, p. 987, n. 28; sec. 188, p. 1082, n. 33; sec. 193, p.
1085, n. 88; sec. 340, p. 1161, n. 41, 46.
Appeal from Seventh Judicial District Court, Esmeralda County; J. Emmett Walsh, Judge.
Action by the W. M. Barnett Bank against J. M. Chiatovich and others, doing business as
the Chiatovich Ranch. Judgment for plaintiff, and defendants appeal. Affirmed.
I. S. Thompson and Forman & Forman, for Appellants:
Fraud, inadequacy or failure of consideration is ground for rescission. 1 Black on
Rescission of Contract, secs. 20, 157, 158, 172, 538.
Courts are never strict where injured party has been lulled into inaction by wrongdoers. 2
Black, pp. 1284-86.
Time does not commence to run until discovery of fraud. Limitation is three years. Rev.
Laws, 4967.
If party has lien on two funds and another party has lien on one only, latter has right in
equity to compel former to resort to other fund first. 1 Story Equity, sec. 633. If prior creditor
resorts to doubly charged fund subsequent creditor will be substituted to his rights. Pomeroy
Equity, sec. 1414.
It is not policy of law nor disposition of our courts to require our citizens to go to another
state to collect, when court of equity can give visiting bank exact change. Officer of foreign
court should not be permitted as against claims of resident creditors, to remove from this state
assets of debtor. Hurd v. City of Elizabeth, 41 N. J. L. 1; Catlin v. Wilcox, 18 Am. St. Rep.
341.
Handwriting expert may testify to age of instrument. He is better qualified than mankind in
general. Pub. Ald. & Putnam v. Hamilton, 140 N.W. 886; 22 C. J. 520; Jones, Evidence, sec.
367.
Defect on face of paper should excite suspicion. 7 Cyc. 949.
Transferee of fraudulent note must show he purchased in good faith. If partnership, all
partners must be ignorant of fraud.
48 Nev. 319, 323 (1925) Barnett Bank v. Chiatovich
be ignorant of fraud. Darrow v. Blake, 13 N. W. 50; Bank v. Paddick, 57 N. W. 687.
Rigid rules of negotiable instrument law are relaxed to protect injured person from
deliberate fraud. Willfully remaining ignorant or refraining from inquiry which would expose
apparent defects in title to paper involves bad faith. Vaughan v. Johnson, 119 Pac. 881.
Partnership for purpose of working land is nontrading, and general rule is that member has
no implied authority to bind firm by execution of negotiable paper. 9 A. L. R. 372; McCrary
v. Slaughter, 58 Ala. 230; Gordon v. Marburger, 187 Pac. 364.
The Chiatovich Ranch was not partnership, but simply piece of real estate in process of
administration. Negotiable instrument act provides note shall have proper parties. The ranch
is not party of this kind. Note was therefore not negotiable.
Purchaser of commercial paper takes with constructive notice of disability of parties.
McClaim v. Davis, 77 Ind. 419.
Overdue interest should give notice of infirmity. Bank v. Co. Comrs. 14 Minn. 77.
Compound interest is illegal in Nevada. Cox v. Smith, 1 Nev. 161. As to such provision,
note was invalid.
No person is liable on instrument whose name does not appear thereon. Neg. Ins. Law, sec.
18.
That Margaret Chiatovich was executrix of estate was matter of public record and notice to
all that she had sole management. Rev. Laws, 1038-39.
Minor heir could not possibly have been partner, and her property was under care of
guardian. There could not have been partnership consisting of all the heirs. Minor heir could
not be bound by note in any event.
Negotiable instrument law has abrogated rule in Gillig, Mott & Co. v. Lake Bigler Road Co.,
2 Nev. 214.
H. H. Atkinson, for Respondent:
All business of family had been conducted for several years, bank accounts were opened,
mercantile business conducted, money borrowed, and in fact all business conducted in
name of the Chiatovich Ranch by J. M. Chiatovich. J. M.
48 Nev. 319, 324 (1925) Barnett Bank v. Chiatovich
conducted, money borrowed, and in fact all business conducted in name of the Chiatovich
Ranch by J. M. Chiatovich. J. M. Chiatovich attended to all business of family, and they
consented thereto. It is evident that defendants being at all times fully informed, operated
independently of estate in farming, cattle and mercantile business, with J. M. being held out
and actually acting as manger.
Lillian Chiatovich, once minor heir, was eighteen years old when note executed, and
capable of contracting. Rev. Laws, 431, 6154.
Note providing for compound interest is not illegal, but is legal to extent of simple interest.
Cox v. Smith, 1 Nev. 161.
Right of rescission is lost by failure to act promptly on discovery of fraud. 13 C. J. 616.
Bringing action on contract or endeavoring to enforce it is affirmance and will bar
rescission. 13 C. J. 624; Elgin v. Snyder, 118 Pac. 280.
It is too late to rescind contract after suit had been brought to collect it by third party, who
is bona fide purchaser before maturity. Buell v. Bank, 12 South. 29.
Bad faith, and not merely notice of circumstances sufficient to put prudent man on inquiry,
is necessary to defeat recovery by holder whose right accrued before maturity. McPherin v.
Tittle, 129 Pac. 721. Evidence of fraud on procuring note regular on its face is not sufficient
to raise presumption of bad faith; purchaser in good faith is under no duty to inquire into
consideration. Vaughan v. Johnson, 119 Pac. 879; Oppenheimer v. Bank, 56 A. S. R. 778.
Delay in payment does not necessarily constitute suspicious circumstance. Bank v.
Lindsley, 158 Pac.1082.
When negotiable paper is signed in name recognized by firm as its business name, courts
are agreed it is properly executed. 30 Cyc. 509.
Firm may use assumed name. 8 Cyc. 219.
Whether intention of parties to become partners is question for jury. 39 Cyc. 594.
In commercial or trading partnership, each partner has implied authority to issue
negotiable paper in firm name.
48 Nev. 319, 325 (1925) Barnett Bank v. Chiatovich
has implied authority to issue negotiable paper in firm name. 20 R. C.L. 900; Rooney v.
Buckland, 4 Nev. 45.
Burden is on defendant to show note was not issued for partnership purposes. Davis v. Cook,
14 Nev. 265.
Where note shows party signing acts for another, parol testimony is admissible to bind
principal. Gillig, Mott and Co. v. Lake Bigler Road Co., 2 Nev. 214.
Whether notice is imputed from face of instrument is one of law for court. Pittsburg Bank v.
Neal (U. S.), 16 L. ed. 323; 8 C. J. par. 707.
Bank's good faith was so completely shown that question could have been withdrawn from
jury and decided by court as matter of law. McLaughlin v. Dopps, 147 Pac. 6; Angus v.
Downs, 147 Pac. 630.
OPINION
By the Court, Ducker, C. J.:
The plaintiff is a corporation engaged in the banking business at the town of Wasco, State
of Oregon, and brought this action against the defendants as the owner and holder of their
promissory note. It is alleged in the complaint, as amended, that:
Before December 27, 1919, the plaintiff, for a valuable consideration, purchased said
promissory note from H. B. Thornberry in the course of its business, and in good faith.
It is also alleged in the complaint that at all times and dates mentioned therein
The defendants were and are the joint owners of and operating in the farming and
ranching business, and owning property under the name and style of the Chiatovich Ranch,
situate in the State of Nevada, and that defendant J.M. Chiatovich at all times and dates
mentioned was and is the manager of said Chiatovich Ranch.
The note sued upon is set out in the complaint as follows:
$4,750.00. Goldfield, Nevada, Dec. 27, 1917.
Three years after date, without grace, for value received, we jointly and severally
promise to pay to H. B. Thornberry, or order,
48 Nev. 319, 326 (1925) Barnett Bank v. Chiatovich
received, we jointly and severally promise to pay to H. B. Thornberry, or order, at - four
thousand seven hundred and fifty and no/100 dollars, with interest from date until paid, at the
rate of seven per cent per annum, said interest to be paid semiannually, and if not as it
becomes due, to be added to the principal and become a part thereof, and bear interest at the
same rate, but if default be made in the payment of interest as above provided, then this note
shall immediately became due at the option of the holder thereof: We jointly or severally
promise to pay 10% of the face of this note as attorney fees and costs should suit be brought
to collect this note or any portion thereof. All payments are to be in United States gold coin.
[Signed] The Chiatovich Ranch,
By J. M. Chiatovich.
The defendants J. M. Chiatovich and W. M. (Marco) Chiatovich filed a joint answer to the
complaint, and the defendants Margaret Chiatovich and Lillian Chiatovich also filed a joint
answer. In substance the answers set up matters to show that the defendant J.M. Chiatovich
was without authority to execute the note as binding upon the other defendants; that it was
procured through the fraud of said Thornberry; that the plaintiff had knowledge of such fraud
long prior to acquiring said note and knowledge of the facts which deprived said J. M.
Chiatovich of authority to execute it, and that plaintiff is therefore not a bona fide owner of
the same in good faith; that said Thornberry is still the real owner of the note, and plaintiff is
simply acting as the agent or collector of said Thornberry, in the institution of this suit and
suits on ten other promissory notes belonging to him; that any alleged assignment or transfer
of said note to plaintiff was made long after the 27th day of December, 1920, and after the
maturity of said note and without any consideration whatever; and that Thornberry is well
able to pay and satisfy the said note.
The case was tried before a jury, which rendered a verdict in favor of plaintiff for the full
amount sued for, upon which judgment was rendered in the amount of $6,130.42, with
interest upon the principal of the note at the rate of 7 per cent per annum from date until
paid, and costs.
48 Nev. 319, 327 (1925) Barnett Bank v. Chiatovich
$6,130.42, with interest upon the principal of the note at the rate of 7 per cent per annum
from date until paid, and costs. From the judgment and order of the court denying their
motion for a new trial, the defendant as have appealed.
A brief statement of the main facts out of which this controversy arose is necessary. On
March 11, 1907, John Chiatovich died testate, leaving his entire property situated in
Esmeralda County, Nevada, consisting of real estate and the improvements thereon, personal
property consisting of live stock and farming implements, and goods, wares, and merchandise
in a store at Silver Peak in said county, share and share alike to his five children, Martin
Chiatovich, John Chiatovich, Marco Chiatovich, Cecil Chiatovich, and Lillian Chiatovich, all
minors. By the terms of the will the widow, Margaret Chiatovich, and C. E. Mack were made
executrix and executor of the estate. The will was admitted to probate, and the said widow
and C. E. Mack were duly appointed and qualified as such executrix and executor. By the
terms of the will Margaret Chiatovich was nominated and appointed guardian of the minor
children, and given sole management of the estate for the benefit of herself and the children.
She was appointed by the court, and qualified as such guardian. On the 6th day of January,
1919, Martin Chiatovich conveyed his interest in the property devised by the father to
Margaret Chiatovich and John M. Chiatovich. On January 29, 1919, a decree of distribution
was entered by which the property was distributed to John M. Chiatovich, Marco Chiatovich,
Lillian Chiatovich, and Cecil Chiatovich, subject to an agreement made in September, 1916,
by which Cecil Chiatovich agreed to sell his entire interest to John Chiatovich and Marco
Chiatovich. On January 6, 1919, all of the children being then above the age of majority, said
Margaret Chiatovich was discharged from her trust.
All of the children were born while the father and mother were living on the ranch, and
were working there at the time of the trial, and had worked for their father and mother on
the ranch from the time they were old enough to do so.
48 Nev. 319, 328 (1925) Barnett Bank v. Chiatovich
father and mother on the ranch from the time they were old enough to do so. The ranch was
commonly known and called the Chiatovich Ranch, and the business conducted was
ranching and raising and selling live stock. In connection with the business a store was
conducted on the ranch, for the sale of goods, wares, and merchandise. Letters in the
transaction of business were written on stationary under the following letterhead:
The Chiatovich Ranch, Dealers in Groceries, Hardware, Boots and Shoes, Men's Clothing,
Field and Garden Seeds, Gasoline and Oils, Growers of Alfalfa and Timothy Hay, Barley,
Wheat, Oats, Corn, Potatoes and Live Stock. Railroad Station, Coaldale, Nevada.
On June 4, 1917, J. M. Chiatovich and W. M. Chiatovich, known as Marco Chiatovich,
entered into a contract with one H. B. Thornberry for the purchase of a jack named Hackman,
for the sum of $3,500, wherein said Thornberry agreed that if the jack did not get 50 per cent
of producing mares with foal he would replace him with another jack of the same breed and
price. The jack was delivered at Bishop, Cal., on the date of the contract, and purchased and
shipped to the Chiatovich Ranch on the 7th or 8th of June, 1917. The jack Hackman proved
unsatisfactory in failing to produce according to contract, and on or about June 10, 1919,
Thornberry replaced him with a jack named Wild Irishman. Three notes, amounting in all to
$3,500, were given to Thornberry in payment for the former jack, payable on June 4, 1918,
1919, and 1920, respectively, which notes were all paid at maturity. The last note was paid
out of the funds in the Chiatovich Ranch account with the Tonopah Banking Corporation in
Tonopah, Nevada. On December 27, 1917, at Goldfield, Nevada, the Chiatovich Ranch by
and through J. M. Chiatovich entered into a contract with said Thornberry for the purchase
from him of 15 head of registered and pedigreed jennets to be delivered at Coaldale, Nevada,
within 60 or 90 days from date of contract. It was agreed by Thornberry that the jennets
should be of certain specifications, and registered in either the Standard Jack and Jennet
Register of Kansas City, Mo., or in the American Breeder's Association of Jacks and
Jennets of Columbia, Tenn.
48 Nev. 319, 329 (1925) Barnett Bank v. Chiatovich
agreed by Thornberry that the jennets should be of certain specifications, and registered in
either the Standard Jack and Jennet Register of Kansas City, Mo., or in the American
Breeder's Association of Jacks and Jennets of Columbia, Tenn. The jennets were to be paid
for by three notes: One for $2,000, due in one year; one for $3,000, due in two years; and one
for $4,750, due in three years. The contract in respect to the notes was modified so that one
note for $5,000 payable in two years was given instead of two notes for $2,000 and $3,000.
The notes for $5,000 and $4,750 were executed and delivered to Thornberry on December 27,
1917, before the delivery of the jennets. They were signed, The Chiatovich Ranch, by J. M.
Chiatovich.
The note for $5,000 was paid to Thornberry when it became due out of the Chiatovich
Ranch account with the Tonopah Banking Corporation by check drawn by J. M. Chiatovich.
This action was instituted upon the note for $4,750 as previously stated.
In October, 1919, the plaintiff purchased from Thornberry the note in question, with a
number of others, for the sum of $14,573.75. The Chiatovich note was purchased at a
discount of 5 per cent. The amount was placed to Thornberry's credit in the plaintiff bank, and
was checked out by him prior to December 5, 1919. On December 5, 1919, there was an
overdraft of $1,430.59, which was covered the next day. On January 23, 1920, the sum of
$332.50, interest on the note to December 27, 1919, was paid to the plaintiff. The letter with
which the check for payment of interest was inclosed was signed The Chiatovich Ranch, by
J. M. Chiatovich. By letter of date December 20, 1920, addressed to J. M. Chiatovich, the
Chiatovich Ranch, the plaintiff bank through its cashier informed him that the note would be
due on December 27, 1920, and that payment thereof would be expected at that time. This
letter was replied to by I. S. Thompson, an attorney at law of Tonopah, Nevada, in which he
stated in substance that the note was given in part payment for 15 jennets sold by Thornberry
to the Chiatovich people; that within the last 30 days the Chiatoviches had discovered that
many of the representations made by Thornberry to induce them to buy were untrue;
48 Nev. 319, 330 (1925) Barnett Bank v. Chiatovich
the last 30 days the Chiatoviches had discovered that many of the representations made by
Thornberry to induce them to buy were untrue; that the jennets were not standard bred or
pedigreed, and were of no value whatever; that as soon as the Chiatoviches had discovered
that they had been cheated and defrauded they served upon Thornberry in Spokane, Wash., a
written rescission and notice of rescission of the contract and purchase, and offered to return
to him all of the jennets; all of the off spring and everything they had received from him and
demanded from him the surrender and cancellation of said note and the return of all money
paid. The writer suggested that the plaintiff find some courteous way in which to return the
note to Thornberry so that the defense of the Chiatoviches could be made against him, and
not against the bank. The plaintiff bank, through its cashier, replied to the attorney, in which
reply it was stated that the bank was an innocent purchaser for value, and asked payment in
full, with interest, suggesting that the Chiatoviches take up the matter of the contract directly
with Thornberry. The written rescission and notice of rescission referred to in the attorney's
letter to the plaintiff bank was signed, The Chiatovich Ranch, by J. M. Chiatovich, and
served on Thornberry at Spokane, Wash., on the 27th of November, 1920.
In December, 1920, and after said notice of rescission, J. M. Chiatovich and W. M.
Chiatovich filed a suit against Thornberry in the district court of Esmeralda County, in which
was sought a decree requiring among other things that Thornberry accept said jacks and
jennets from said Chiatoviches and return to them the said note for $4,750 still unpaid, for
cancellation, and pay back all moneys that had been paid to him upon the purchase of said
jacks and jennets, and pay the sum of $6,000, the amount of loss caused by the failure to
breed 45 head of mares belonging to the Chiatoviches. A similar suit for rescission was
commenced against Thornberry by the same parties in the District Court of the United States
for the Eastern District of Washington, which suit is still pending.
48 Nev. 319, 331 (1925) Barnett Bank v. Chiatovich
After the plaintiff bank had been notified by the defendants through their attorney that a
fraud had been committed upon them by Thornberry, a suit was brought against him by
plaintiff on the note in question and 11 others, and property belonging to him in Oregon was
attached. This suit was dismissed, and the attachment released; Thornberry giving the
plaintiff a mortgage upon his real estate to secure said notes. Such other facts as may be
necessary will be mentioned during the course of this opinion.
The defendants make a number of contentions as to the right of the plaintiff to recover
upon the note, the most of which can be resolved into the following proposition: Is the note a
negotiable instrument complete and regular on its face and sufficient to bind all of the
defendants? Is the plaintiff an innocent purchaser in good faith for value before maturity?
Both of these contentions must be answered in the affirmative.
1. The purchase was made by the plaintiff bank from Thornberry in October, 1919, more
than a year before maturity, as heretofore mentioned in the statement of fact. The
circumstances surrounding the purchase of the note, as testified to by the president of the
plaintiff bank, point to its good faith in the transaction. The testimony was not contradicted in
any way. The circumstances in evidence pointed out by counsel for defendants in his brief,
and claimed by him to indicate the bad faith of plaintiff in the transaction, were for the jury,
and resolved against defendants by the verdict in the case. As there was ample evidence to
justify the jury in concluding for plaintiff on the bona fides of the transaction, the verdict is
conclusive in this respect.
Defendants contend that the note is void by reason of fraudulent representations claimed to
have been made by Thornberry to J. M. and W. M. Chiatovich, respecting the pedigree and
breeding of the jacks and jennets sold by him to the Chiatoviches under the contracts
mentioned, and as to the number and quality of foal said jacks and jennets would produce if
properly handled. The two Chiatovich brothers testified to matters tending to support the
allegations of their answer in this regard, and other testimony to the same effect was
given.
48 Nev. 319, 332 (1925) Barnett Bank v. Chiatovich
to support the allegations of their answer in this regard, and other testimony to the same effect
was given.
2, 3. The effect of Thornberry's fraud in obtaining the note in question, upon plaintiff as its
holder, if in fact he committed any fraud, was submitted to the jury by proper instructions.
The general rule is that fraud in a contract, or in the consideration out of which a negotiable
instrument arose, is no defense in favor of the maker as against a bona fide holder. This rule
is elementary in the law merchant, and is embodied in our law concerning negotiable
instruments. Before Thornberry's fraud could be held to impeach the note in plaintiff's hands,
it must appear that plaintiff had actual knowledge of the fraud or knowledge of such facts in
connection therewith that the taking of the note amounted to bad faith. Section 56 of the
negotiable instrument act (Rev. Laws, sec. 2603), reads:
To constitute notice of an infirmity in the instrument or defect in the title of the person
negotiating the same, the person to whom it is negotiated must have had actual knowledge of
the infirmity or defect, or knowledge of such facts that his action in taking the instrument
amounted to bad faith.
4. This provision and others concerning the right of the holder of a negotiable instrument
were given to the jury in instructions. Upon this phase of the case the evidence seems to be
conclusive that, prior to the purchase of the note, the plaintiff had no knowledge of the fraud
claimed to have been committed by Thornberry. Indeed, the defendants claim and allege in
their answer that they did not discover that Thornberry's representations were false, and that
they had a right to rescind the agreement until on or about November 10, 1920. This was over
a year after the note had been negotiated to the plaintiff bank. If defendants did not know that
they had been defrauded at the time of the transfer, it is difficult to perceive how the plaintiff
would know it unless knowledge was imparted to it by Thornberry at the time or prior to the
transfer. There is no evidence to this effect.
48 Nev. 319, 333 (1925) Barnett Bank v. Chiatovich
to this effect. The allegation in the answer as to the nondiscovery of the falsity of
Thornberry's representations as to the pedigree and breeding of the animals is supported by
the fact that on January 23, 1920, interest on the note was paid to the plaintiff by the
Chiatovich Ranch, by J. M. Chiatovich, which was three months after the transfer of the note.
But it is contended that the note is absolutely void on account of certain statutes of this
state. In this connection we are referred to section 6746 of the Revised Laws of this state,
which reads, in part:
* * * Every person who shall knowingly represent an animal or bird for breeding
purposes to be of a greater degree of any particular strain of blood than such animal actually
possesses, shall be guilty of a gross misdemeanor.
And to section 6 of Statutes of 1913, p. 290, which reads as follows:
Every person, firm, or company, importing any stallion or jack into the State of Nevada,
for breeding purposes or sale, shall first secure a certificate from a recognized state or federal
veterinary office, certifying that said stallion or jack is free from any or all diseases or
unsoundness referred to in section 4 of this act. A copy of the certificate must be mailed to
the secretary of the stallion registration board at the University of Nevada, Reno, Nevada, at
least five days before the importation of the stallion or jack into the state. No stallion or jack
that is neither pure-bred nor grade according to the meaning of this act shall be imported into
the state for breeding purposes.
While the latter act was in force at the time of the making of the contract concerning the
jack, it may not be amiss to point out that this act was repealed by the last legislature. Stats.
1923, p. 11. However, the jack was not imported into this state by Thornberry contrary to the
provisions of this statute, but was delivered to the Chiatoviches at Bishop, Cal. But in
considering the contention based on these statues we lay out of view all facts concerning the
contract for the jack, for the reason that that was an independent transaction.
48 Nev. 319, 334 (1925) Barnett Bank v. Chiatovich
all facts concerning the contract for the jack, for the reason that that was an independent
transaction. The notes connected with that contract were all paid to Thornberry. The note in
question, as we have seen, was given in part payment for the jennets. Jennets are
unquestionably embraced within the provisions of section 6746, and, conceding that
Thornberry represented them to be of greater degree of a particular strain of blood than the
animals possessed, how does this affect the note transferred by him to plaintiff? Counsel for
defendants have favored us with no citation of authority in this respect, but have passed the
subject to us for our own thought and research. The statute merely prohibits the making of the
false representation mentioned, and prescribes a penalty for its violation. It does not declare
that contracts made in violation of its provisions shall be void, nor is there any language in it
necessarily implying that the legislature intended such contracts should be deemed void.
5. The general rule as to the right of a bona fide holder of a negotiable instrument given for
a consideration made illegal by statute, is, we believe, correctly stated by Mr. Daniels in his
work on Negotiable Instruments. He says:
* * * The bona fide holder for value who has received the paper in the usual course of
business is unaffected by the fact that it originated in an illegal consideration, without any
distinction between cases of illegality founded in moral crime or turpitude, which are termed
mala in se, and those founded in positive statutory prohibition which are termed mala
prohibita. The law extends this peculiar protection to negotiable instruments, because it
would seriously embarrass mercantile transactions to expose the trader to the consequences
for some covert defect. There is, however, no exception to this rulethat when a statute,
expressly or by necessary implication, declares the instrument absolutely void, it gathers no
vitality by its circulation in respect to the parties executing it. 1 Daniel on Negotiable
Instruments, sec. 197 (2).
48 Nev. 319, 335 (1925) Barnett Bank v. Chiatovich
See, also, Story on Promissory Notes, sec. 192.
There is some conflict in the authorities as to the exception stated in the above text, some
holding that a note, the consideration of which is formed by a contract or transaction declared
illegal by statute, is not void as against a holder for value without notice, unless the statute
declares the note itself void; while others hold that the note is void, not only between the
parties to it, but also as to such holder, if the contract or transaction which forms the
consideration of the note is declared void by statute.
But in determining the question before us we are not concerned with the difference of
judicial opinion as to the exception to the general rule. While there are authorities to the
contrary, the general rule is well established. In 3 R. C. L. p. 1018, it is stated:
The prevailing view seems to be that, if the law merely declares illegal and forbids the
acts and transactions giving rise to a bill or note, the instrument will not be held void in the
hands of a holder in due course.
See 8 C. J. pars. 1032 and 1033.
We think this view is sound. The statute in question does not take the note on which
judgment was recovered out of the general rule. It does not declare contracts made or
transactions had in violation of its provisions, or notes representing the consideration thereof,
void, either expressly or by necessary implication. It merely prohibits the making of the false
representations mentioned, and makes violation of its provisions a gross misdemeanor. This
does not affect the plaintiff as a holder in due course.
6. Defendant's counsel place great stress upon the written rescission and notice of
rescission served on Thornberry, and on the suits brought against him to enforce rescission,
but these facts cannot aid them if plaintiff is a holder of the note in due course. The law
quoted by defendant's counsel in their brief has reference to the right of rescission as between
parties to a fraudulent contract. Whatever effect their rescission of the contract may have had
as against the payee of the note, if it had not been transferred by him, is of no consequence
here, and the jury was correctly instructed as to the effect of rescission as against a
holder in due course.
48 Nev. 319, 336 (1925) Barnett Bank v. Chiatovich
consequence here, and the jury was correctly instructed as to the effect of rescission as against
a holder in due course.
7-9. The argument that the note is not a negotiable instrument, and is incomplete and
irregular on it face, takes a very wide range. We think, however, it may be summed up in the
proposition that the note has no maker for the reason that the Chiatovich Ranch is not an
entity, and J. M. Chiatovich has no authority to execute a note in behalf of the other
defendants. On the other hand, plaintiff maintains that the defendants, by a long course of
dealing with the property of the estate and its proceeds, became partners, and the partnership
thus made was commonly known as the Chiatovich Ranch, with J. M. Chiatovich as general
manager. The court instructed the jury that as a matter of law the note by the Chiatovich
Ranch, by J. M. Chiatovich in this action is complete and regular upon its face, and is a
negotiable instrument. There was no error in giving this instruction. The note presents all
the requisites of a negotiable instrument. True, the exact identity of the maker, whether
corporation, partnership, or individual, is not disclosed, but that does not make it incomplete
or irregular. If that were so, then a great mass of negotiable instruments purporting to be
executed by an agent would be defective because of the character of the maker, whether a
corporation, firm, or individual, was not revealed on the face of the note. The identity of the
maker may always be established by the evidence. Under the circumstances of this case the
identity of the maker, and whether J. M. Chiatovich had authority to execute the note in its
name, binding upon all the other defendants, depends upon whether there was sufficient legal
evidence to warrant the jury in finding that they were partners, or conducted themselves in a
manner calculated to lead other people to believe that they were partners doing business as
the Chiatovich Ranch. Our inquiry on this point may not extend further. The defendants may
never have intended to be partners in the property of the estate, and still there acts and
acquiescence in the management thereof may have been sufficient to induce a general
belief that they were, and render them liable to any one acting upon the assumption that
they were such partners.
48 Nev. 319, 337 (1925) Barnett Bank v. Chiatovich
and still there acts and acquiescence in the management thereof may have been sufficient to
induce a general belief that they were, and render them liable to any one acting upon the
assumption that they were such partners. This doctrine, says Mr. Lindley in his work on
Partnerships, is nothing more than an illustration of the general principle of estoppel by
contract.
10. Counsel for defendants place great stress upon the facts that during all of the
transactions with Thornberry, including the execution of the note, the property belonging to
the estate of John Chiatovich had not been distributed to the defendants, but was in the course
of administration, and that Margaret Chiatovich was the executrix of the estate, all of which
was a matter of public record. These facts could not operate as a matter of law to prevent the
defendants from so acting with reference to the affairs of the estate as to render themselves
liable as partners to third parties; nor can we see what bearing they have as evidence upon the
point. The action is not against the estate; consequently, what action of the executrix, or
orders of the court, would be necessary to charge the estate, are beside the question.
It will be unnecessary to review the evidence, except in so far as to point out what we
think is sufficient to warrant the conclusion that, before and after the transaction with
Thornberry which resulted in the execution of the note, the defendants conducted themselves
with reference to the affairs of the estate as partners doing business as the Chiatovich Ranch,
with J. M. Chiatovich in the active management thereof. Margaret Chiatovich was appointed
executrix in 1907, and was discharged as such March 5, 1919. In the meantime the defendants
resided on the ranch, and contributed their joint efforts to carrying on its business, which
consisted generally of cultivating lands, raising and selling crops, raising and selling and
buying live stock, and conducting a store on the premises. For the purposes of advertising
their business generally they adopted and used stationery with an elaborate letterhead as
heretofore set out in the statement of facts, showing them to be doing business under the
firm name of "the Chiatovich Ranch."
48 Nev. 319, 338 (1925) Barnett Bank v. Chiatovich
set out in the statement of facts, showing them to be doing business under the firm name of
the Chiatovich Ranch.
The evidence shows that the business of the Chiatovich ranch was maintained by the
defendants as a going concern both before and after the property belonging to the estate had
been distributed, and that J. M. Chiatovich was managing it, at least as to its financial affairs.
They opened an account with the John S. Cook Company Bank at Goldfield, August 2, 1916,
which was still being carried on at the time of the trial. The account stood in the name of the
Chiatovich Ranch. The money deposited in the bank to this account came from the sale of the
produce of the ranch, and was drawn out and used by the defendants as their necessities
required. Such moneys could be drawn out only on authority of J. M. Chiatovich by check
signed The Chiatovich Ranch, by J. M. Chiatovich. An account was opened with the
Tonopah Banking Corporation at Tonopah, Nevada, in January, 1920, in the name of the
Chiatovich Ranch. Money could be drawn out of this account only by check signed The
Chiatovich Ranch, by J. M. Chiatovich. The money which supplied this account came from
the same sources as that of the former bank account, that is for the sale of ranching products,
live stock, and merchandise. In addition the members of the Chiatovich family borrowed
money from the Tonopah Banking Corporation which was deposited in this account subject
to check as aforesaid. The money drawn out of this account was used for the benefit of the
defendants. A similar account on which only J. M. Chiatovich had authority to draw checks
as on the other banks was opened with the Wells Fargo Bank of San Francisco. The moneys
supplying this account came from the same sources, and were drawn out, and were used for
the purposes of the defendants.
The three notes given in payment for the jack Hackman, amounting to $3,500, were paid
out of the Chiatovich Ranch account by J. M. Chiatovich in 1918, 1919, and 1920. The last
one was paid out of the account with the Tonopah Banking Corporation.
48 Nev. 319, 339 (1925) Barnett Bank v. Chiatovich
with the Tonopah Banking Corporation. The note of $5,000 given in part payment for the
jennets was paid December 27, 1919, out of the funds with the Tonopah Banking
Corporation, and the interest due December 27, 1919, on the note in question, paid to plaintiff
out of funds in the John S. Cook Company Bank to Goldfield. All of these sums were paid by
check drawn by the Chiatovich Ranch, by J. M. Chiatovich.
11. Beginning with the year 1914, J. M. Chiatovich transacted all business with the
assessor of Esmeralda County, relative to the assessment of the Chiatovich property. It is true
some of these transactions transpired after the execution of the suit note, but they were
pertinent to be considered as a continuation of the manner in which the defendants were
doing business before its execution. Proof that alleged partners acted as such before and after
the date of a note is proper evidence to be left to the jury in determining the fact of
partnership at that time. Gilbert v. Whidden, 20 Me. 367. The evidence is conclusive that the
receipts from the sale of the products of the ranch and the operation of the store went into
funds in the different banks, which were used for the benefit of all the defendants, and for the
expenses incurred in conducting the business. That the John S. Cook Company Bank at
Goldfield and the Tonopah Banking Corporation at Tonopah regarded the defendants as
acting together in business affairs under the name of the Chiatovich Ranch, independently of
the Chiatovich estate is evident from letters from these institutions, written in response to
inquiries as to the financial standing of the defendants made by the plaintiff.
On January 27, 1920, the former bank wrote to plaintiff:
We are pleased to advise, however, that they [Chiatovich Ranch] have maintained a very
satisfactory account with us for some years and in the past we have been pleased to loan on
their paper.
The latter bank on February 5, 1920, wrote:
We * * * beg to advise that the Chiatovich Ranch carries an account with us.
48 Nev. 319, 340 (1925) Barnett Bank v. Chiatovich
Ranch carries an account with us. We consider their property a valuable one with very little
indebtedness against it. We further consider that it is ably managed by J. M. Chiatovich,
whom we consider responsible, either individually or for the firm.
12, 13. It will be seen from this that the Tonopah Banking Corporation regarded the
Chiatovich Ranch as a firm, and J. M. Chiatovich as the actual manager. There was, in our
opinion, sufficient legal evidence to go to the jury tending to show that at the time, and before
the execution of the note on which this action was brought, the defendants held themselves
out as partners independently of the Chiatovich estate, doing business as the Chiatovich
Ranch, and that J. M. Chiatovich was held out as manager. His action therefore, in executing
the note, bound all of the defendants. His evidence and that of his brother, W. M. Chiatovich,
to the effect that the defendants were not conducting business as partners; that everything
done was under the management of Margaret Chiatovich as executrix of the estate, and
subject to her orders; and that she refused to sign or sanction the signing of the note, was
resolved against the defendants by the jury. The evidence that she refused to sign the note and
to authorize its execution is uncontradicted, but this does not relieve her from liability in the
face of the verdict and evidence which tends to show that she allowed herself to be held out
to the payee of the note, and the public at large, as a partner in the Chiatovich Ranch. The
authorities are uniform in holding that one is charged with liability as a partner where he
represents himself as such, or has permitted himself to be held out as such, to the extent of
inducing others to believe, and to extend credit upon the belief that he is a partner. Story on
Partnership (7th ed.), p. 103, and cases cited in note 2; Lindley on Partnership (2d ed.), vol. 1,
pp. 39-42.
The question of J. M. Chiatovich's authority to execute the note as binding upon all of the
defendants was submitted to the jury under proper instructions.
14. It is contended by defendants that, even though a partnership existed between them
at the time of the execution of the note, it is not negotiable, for the reason that it is not a
trading partnership.
48 Nev. 319, 341 (1925) Barnett Bank v. Chiatovich
a partnership existed between them at the time of the execution of the note, it is not
negotiable, for the reason that it is not a trading partnership. If the defendants were engaged in
farming and stock raising only this might be true, unless the authority of J. M. Chiatovich to
execute negotiable paper was expressly given by the others, or implied from their general
business habits, or subsequently ratified by them. Whether there was such authority or
ratification in this case we need not determine, for the defendants were in the mercantile
business as well as in the ranching business.
In Kimbro & Bullitt v. Kimbro, 22 How. 256, 16 L. Ed. 313, it was held that a bill drawn
by a partner in the name of a firm engaged in farming, working a stream sawmill, and in
trading, was binding. The cases cited by defendants from 9 A. L. R. 372, in support of their
contention, are cases in which strictly nontrading or noncommercial partnerships were
involved, with the exception of Hunt v. Chapin (1872), 6 Lans. (N. Y.) 139. In that case the
defendant was in partnership with another in the mercantile business, and in conducting a
cotton plantation. But it appears that the two partnerships were carried on by a separate and
distinct agreement. No such agreement appears here. The mercantile business was carried on
generally with the other business of the defendants. This, we think, was sufficient to clothe
the defendants with all the implied powers of a trading corporation.
15-17. It is urged that act of J. M. Chiatovich in executing the note could not bind Lillian
Chiatovich. The argument in this respect is that she was under age during the time it is
claimed that defendants acted as partners and her estate under the care and management of a
guardian; that the guardian had not been discharged at the time of the execution of the note;
and that she was therefore incapable of becoming a partner with the other defendants or
holding herself out as such. Lillian Chiatovich was 8 years of age when the application for
guardianship was made by her mother Margaret Chiatovich, in April, 1907. She was therefore
1S years of age when the note was executed in December, 1917, of legal age, and capable
of entering into a contract.
48 Nev. 319, 342 (1925) Barnett Bank v. Chiatovich
18 years of age when the note was executed in December, 1917, of legal age, and capable of
entering into a contract. Section 431, Rev. Laws 1912. However, Lillian Chiatovich was of
legal age when the guardian was discharged, and when this action was instituted against her
and the other defendants. She filed an answer, and in her answer did not interpose the defense
of infancy. Consequently, it must be deemed waived. The plea of infancy is a personal
defense, which, after coming of age, one may or may not interpose. The general doctrine is
that the note of infant is voidable, not void, and may be ratified after he comes of age.
Goodsell v. Myers, 3 Wend. (N. Y.) 479; Conn. v. Coburn, 7 N. H. 368, 26 Am. Dec. 746. As
stated in 14 R. C. L. 294:
If the defendant were of age when sued his failure to plead his infancy at the time of the
contract would clearly be a wavier and implied ratification.
18, 19. But it is insisted that, as Lillian Chiatovich did not sign the note, her failure to
plead her infancy cannot avail plaintiff, for the reason that plaintiff relies upon holding out of
partnership by the defendants under the name of the Chiatovich Ranch to establish her
liability on the note, which she was incapable of doing when she was under age, and her
estate under the care and management of a guardian. We see no merit to this contention. An
infant may be a partner, and his agreement as such is not void, but voidable only. 1 Lindley
on Partnership, pp. 74, 75; 14 R. C. L. 228; Dunton v. Brown, 31 Mich. 182; Osburn v. Farr,
42 Mich. 134, 3 N. W. 299.
As a general rule he may, before he becomes of age, or within a reasonable time thereafter,
avoid liability for partnership debts by disaffirming past transactions. Mr. Lindley, in his
work on Partnership says:
A person who, before he comes of age, represents himself as a partner, must, when he
comes of age, take care to notify that he has ceased to be a partner, if he desires to avoid
liability. 1 Lindley on Partnership, p. 76.
48 Nev. 319, 343 (1925) Barnett Bank v. Chiatovich
20. There can be no difference in principle as to one who has permitted himself to be held
out as a partner. Lillian Chiatovich not only did not disaffirm any of the acts of J. M.
Chiatovich during her minority, but after she attained the age of majority did not disaffirm his
acts in paying the notes in the jack Hackman transaction, the $5,000 note on the jennet
transaction, and the interest on the suit note. It is unnecessary to determine whether this
amounted to a ratification or not, for we hold that her failure to plead her infancy is an
implied ratification of everything that was done by the other defendants doing business as the
Chiatovich Ranch. The fact that Lillian Chiatovich and the other defendants were sued
together could not deprive her of her right to plead her infancy as a defense. Cutts v. Gordon,
13 Me. 474, 29 Am. Dec. 520.
21. It is insisted that the defendants are not liable on the note because it is not signed by
them, and we are referred to section 18 of the negotiable instruments act (Rev. Laws, sec.
2565) in support of this contention. That section reads:
No person is liable on the instrument whose signature does not appear thereon, except as
herein otherwise expressly provided. But one who signs in a trade or assumed name will be
liable to the same extent as if he had signed in his own name.
The contention, if granted, would present a startling innovation in the law merchant, but it
cannot be granted. The firm name under which the defendants were doing business appears
on the note, and purports to have been placed there by one of the copartners. The word
person employed in said section includes a body of persons whether incorporated or not.
Section 191, Negotiable Instrument Act.
22. On the 18th of December, 1920, plaintiff was notified by a letter from defendant's
attorney that fraud had been committed by Thornberry in securing the note. Thereafter
plaintiff commenced a suit against Thornberry in Sherman County, Ore., to secure the amount
due on 12 promissory notes, among which was the note in question.
48 Nev. 319, 344 (1925) Barnett Bank v. Chiatovich
note in question. Later, on the 21st day of February, 1912, said suit was dismissed, and the
attachment upon Thornberry's property released, the plaintiff having obtained security from
him by mortgage on his property in that county. It is claimed by defendants that, plaintiff
having received such notice and taking advantage of the information to obtain security for the
note from Thornberry, this action cannot be maintained, but that the plaintiff must exhaust its
remedy against Thornberry on the security, before the defendants can be compelled to
respond in payments as makers of the note. It is sufficient to say in respect to this contention
that the matters claimed as a defense were to set up in any of the answers of the defendants.
We have considered all of the other numerous assignments of error, and find them to be
without merit. At least there is no error in record of a substantial sort.
The judgment is therefore affirmed.
____________
48 Nev. 344, 344 (1925) Chiatovich v. Mercer, Sheriff
CHIATOVICH v. MERCER, Sheriff
No. 2657
January 5, 1925. 232 Pac. 215.
1. New TrialComplaint in Suit to Restrain Enforcement of Judgment Held Sufficient as
Against Demurrer.
Complaint alleging that bank, seeking to enforce judgment on note fraudulently procured and
transferred to it, had already obtained payment of note by foreclosing mortgage given by its transferor,
and that plaintiff's remedy against payee was of no value, he being insolvent and hiding from justice, and
praying that enforcement of such judgment be enjoined, held sufficient as against demurrer.
2. PleadingDemurrer to Pleadings Admits Facts Alleged Therein.
Demurrer to pleadings admits facts alleged therein.
3. New TrialEquity Will Relieve Against Judgment at Law in Absence of Legal Remedy if
there is Sufficient Ground for New Trial by Reason of Newly Discovered Evidence.
As general rule, equity will relieve a defendant from a judgment at law if there is sufficient ground for
new trial by reason of newly discovered evidence, unless a legal remedy exists of which he has not
availed himself.
48 Nev. 344, 345 (1925) Chiatovich v. Mercer, Sheriff
4. New TrialWhat Newly Discovered Evidence Will Justify Equity in Relieving Litigant
from Judgment at Law Stated.
Newly discovered evidence to warrant equity in relieving party from judgment at law must be clear,
strong, and convincing, and such as to make it appear reasonably certain that with its aid an opposite result
would be reached on a new trial.
See (1, 3, 4) 29 Cyc. p. 901, n. 59; p. 961, n. 91; p. 963, n. 19; (2) 31 Cyc. p. 333, n. 76.
Appeal from Seventh Judicial District Court, Esmeralda County; J. Emmett Walsh, Judge.
Suit by J. M. Chiatovich and others against W. B. Mercer, Sheriff of Esmeralda County,
and another. Judgment on demurrer for defendants, and plaintiffs appeal. Reversed, with
directions.
I. S. Thompson (Forman & Forman, of Counsel), for Appellants:
Person who can resort to two funds shall not by election disappoint party having but one.
If any creditor can resort to two funds and another to only one, former must seek satisfaction
out of fund latter cannot touch. 19 Am. & Eng. Enc. Law, 1256; Chemical Natl. Bank v.
Kiam; 113 S. W. 951.
Plaintiffs are entitled to injunction because Thornberry is insolvent and because bank
resides out of state. 22 Cyc. 773; Wheeler v. Lack, 61 Pac. 849.
In Memphis & C. R. Co. v. Greer, 11 S. W. 931, Greer secured verdict of $8,000 against
railroad for injuires in wreck; passenger permitted by Greer to ride against rules also sued for
$5,000. Court granted injunction, enjoining Greer from collecting more than $3,000 until trial
of suit by passenger. Greer's insolvency was also allowed. Garrett v. Goodnow, 20 S. E. 575.
Nevada courts will not send citizens to Oregon to settle disputes which they can
completely settle here. Catlin v. Wilcox, 18 Am. St. Rep. 341; Grogan v. Egbert, 67 Am. St.
Rep. 765.
Bank's attachment of Thornberry's property and acceptance of mortgage in lieu thereof
constituted merger and consolidation of $4,750 note. 20 Am. & Eng. Enc. Law, 596-99.
48 Nev. 344, 346 (1925) Chiatovich v. Mercer, Sheriff
Sale on execution under mortgage at which bank bid full amount of judgment, satisfied
judgement and note. 2 Black on Judgments, 1488.
Confirmation of sale was res adjudicata as to all parties before court, and bank cannot be
released therefrom. 2 Freeman on Executions, 1028-29.
Plaintiffs are entitled to new trial because of fraud and facts discovered too late to be
presented on motion for new trial. 1 High on Injunctions, sec. 115.
Court which entered judgment and denied motion for new trial, or court of coordinate
jurisdiction, has power to issue injunction and grant new trial. 22 Cyc. 813.
On motion for temporary restraining order, no objection was made to sufficiency of
complaint. It cannot now be raised here. 8 Enc. Pl. & Pr., 229.
New bill with appropriate amendments may be filed. Mulford v. Cohn, 18 Cal. 47.
Person may avail himself of statutory defenses in suit in equity without excuse for not
using them at law. Jarrett v. Goodnow, 39 W. Va. 603.
Equity will restrain enforcement of unconscionable judgment procured by fraud,
unavoidable accident or mistake. Handley v. Jackson, 50 Pac. 915; Lithuanian etc. Society v.
Tunila, 70 Atl. 25.
H. H. Atkinson, for Respondents:
Where right of appeal exists, injunction staying judgment will not lie. Sheldon v. Mitter,
53 Pac. 89.
If there is adequate remedy by motion and it was not made equity will not act. Moulton v.
Knapp, 24 Pac. 803; Reagan v. Fitzgerald, 17 Pac. 198.
Judgment will not be enjoined on grounds which were relied on in motion for new trial
and denied. Telford v. Brinkerhoff, 45 N. E. 165.
Where law has been erroneously applied equity will not grant relief. Pomeroy Eq. Rem.,
par. 638.
More diligence must be shown to get injunction enjoining judgment than to get new trial
to obtain relief because of newly discovered evidence. 1 High on Injunctions, par, 114;
Mulford v. Cohn, 18 Cal. 42-46.
If there has been ample opportunity to discover evidence and it is not forthcoming, relief
will be denied.
48 Nev. 344, 347 (1925) Chiatovich v. Mercer, Sheriff
evidence and it is not forthcoming, relief will be denied. Pomeroy, par. 661. Even in case of
purger it is no ground, par. 656.
Complaint shows defendants in first case know of mortgage, but used no diligence to
obtain further information; it does not show that evidence of judgment and execution and sale
in Sherman County was not available during period they had in which to file affidavits of
newly discovered evidence. Evidence was available had they used diligence. Since they could
not obtain new trial, they cannot obtain injunction.
Judgment, not being final, all remedies at law have not been exhausted. Demurrers were
properly sustained.
OPINION
By the Court, Ducker, C. J.:
One of the respondents herein, the W. M. Barnett Bank, a corporation, obtained a
judgment against the appellants on a promissory note executed by J. M. Chiatovich on their
behalf, doing business as the Chiatovich Ranch, and which had been transferred by the payee,
H. B. Thornberry, to the respondent bank. The judgment has just been affirmed by this court.
The instant suit was instituted by appellants in the court in which the judgment was
obtained, to restrain its enforcement and to obtain a new trial in the former action. Demurrers
were interposed by the respondent to the complaint in this suit, on the ground, among others,
that it does not state facts sufficient to constitute a cause of action.
The demurrers were sustained, and judgment was entered thereon, from which this appeal
is taken. The complaint is a lengthy document, and, as many of the facts alleged in the
complaint concerning the fraudulent representations of Thornberry in obtaining the suit note,
and other notes from the appellants are set out in our opinion in the former action, they need
not be restated.
In that action it appeared that prior to its commencement the respondent bank had obtained
security for the suit note and others from Thornberry by a second mortgage on his real
estate in Sherman County, Ore.
48 Nev. 344, 348 (1925) Chiatovich v. Mercer, Sheriff
suit note and others from Thornberry by a second mortgage on his real estate in Sherman
County, Ore. It is alleged in the complaint in this suit that, after the trial in the former action,
and when the defendants therein had moved for a new trial and set up the making of the
mortgage as newly discovered evidence, the said bank represented that the mortgage was not
security for the suit note, as the full value of the land mortgage would be taken up and
consumed by a first mortgage, and other amounts that preceded the mortgage to the bank. It is
also alleged, in substance, that the respondent bank has since foreclosed said second
mortgage; that the judgment in foreclosure in favor of the bank and against Thornberry
amounted to the sum of about $32,665.99 and interest, and included the full amount of the
suit note, a $6,000 note given by Thornberry to said bank, and the full amount of ten other
notes included in the second mortgage. It is alleged that said real estate has been sold under
execution for the sum of $35,339.97, the full amount of the banks' judgment, and covered and
satisfied the full amount of the suit note; that the sale was duly and regularly confirmed by a
decree of Oregon court; that said sale on execution for $35,339.97, beside being for the
amount of the suit note and interest, and the $6,000 note from Thornberry to the bank,
included and satisfied and paid ten other notes transferred by Thornberry to the bank, the full
amount of which had been collected from the makers prior to the judgment in foreclosure;
that said double collection of said notes by said bank, and the sale of said real estate, is a part
of a fraudulent scheme on the part of said bank to defeat the rights of appellants and other
creditors of said Thornberry; that said bank in all of said collections was and is the agent of
said Thornberry. It is alleged that the said bank's purpose in now pursuing said judgment
against said Chiatoviches, and in enforcing the same by execution in the hands of said
defendant sheriff, is part of a fraudulent scheme on the part of said bank to assist said H. B.
Thornberry in securing the benefit from said Chiatovich judgment.
48 Nev. 344, 349 (1925) Chiatovich v. Mercer, Sheriff
judgment. It is alleged that at the time of the former trial, or on the motion for a new trial, or
within the time allowed by law, and by stipulation of the parties, to file affidavits of newly
discovered evidence in the former case, the appellants in this cause were unable to present the
facts set forth above, because they had no knowledge of the suit in foreclosure, nor had
execution issued or said sale in foreclosure taken place.
It is alleged that J. M. Chiatovich and W. M. Chiatovich, two of the appellants, have
rescinded the contracts concerning which Thornberry, by fraudulent representation, induced
the execution of the note in question and two others, and that said appellants, on March 1,
1921, commenced a suit in the United States District Court for the District of Washington
against Thornberry to enforce rescission, and for the return of $8,500 paid on the said two
notes, and for $6,000 damages for the loss of breeding 42 head of mares, and the surrender
and cancellation of the suit note in the former action; that any judgment recovered by said
Chiatoviches in the United States courts against Thornberry will be of no value, because he is
insolvent, and has left the United States to dodge and defeat his creditors, and because there
were both civil and criminal processes issued against him by the courts of Washington.
It is alleged that, on account of the insolvency of Thornberry, and on account of his being
in hiding out of the United States, appellants will be forever unable to secure any redress
from him; that execution has issued in said cause, and has been placed in the hands of said
Mercer, sheriff of Esmeralda County. It is alleged in substance that, unless restrained, the said
bank will have the said sheriff levy the execution upon the property of the appellants, and sell
the same; that the proceeds of said sale will be turned over by said bank to said Thornberry,
or his creditors in Washington and Oregon, thereby preventing appellants from securing
anything from said Thornberry or otherwise, for the damage done by the fraudulent sale; that
the appellants have no plain, speedy, and adequate remedy at law.
48 Nev. 344, 350 (1925) Chiatovich v. Mercer, Sheriff
1, 2. It is shown by the complaint that the note on which the respondent bank recovered
judgment as the holder thereof was, by the fraudulent representations of Thornberry, obtained
from the appellants without consideration, and that by reasons of newly discovered evidence
which could not have been discovered at the trial of the former action, or before the time in
which a motion for a new trial could be made had expired, the former has received payment
in full for the note through foreclosure proceedings and sale of Thornberry's property. It
further appears from the allegations of the complaint that the respondent bank is now, as the
agent of Thornberry, fraudulently endeavoring to collect the judgment for the benefit of
Thornberry. These facts are admitted by the demurrer, and afford sufficient ground for
equitable interference with the enforcement of the judgment. If the note has been paid by
Thornberry, the payee and transferor thereof, to the respondent bank, its holder, it is
effectually discharged as to the latter, and the former is remitted to his remedy to recover
against the defendants as the makers of the note. This remedy, according to the allegations of
the complaint, is not available to him as against the maker of the note, for the reason that the
note was given without consideration. Unless equity interposes and stays the execution of the
judgment, in which the complaint shows the respondent bank to have no interest, by reason of
its having been paid the amount of the note on which the judgment was obtained, the bank, in
pursuance of a fraudulent scheme with Thornberry, will collect it for his benefit. It would be
unconscionable to suffer the execution of a judgment for the sole purpose of enabling one to
escape the consequences of his fraud.
3. As a general rule, in a proper case, equity will relieve a defendant from a judgment at
law if there is sufficient ground for a new trial by reason of newly discovered evidence. High
on Injunctions, sec. 115 (4th ed.); Pomeroy's Equity Jurisprudence, vol. 6, sec. 661; 15 R. C.
L. 775, 776; 34 C. J. pp. 478, 479, and case cited in note 40. The rule is thus stated in the last
citation: "The general rule, however, is that, when a defendant was prevented from
making good his defense by the lack of evidence to support it, being ignorant of the
existence of such evidence, and unable to discover it by the exercise of due diligence,
equity will relieve him against the judgment, upon the subsequent discovery and
production of such evidence, unless he has a legal remedy, and failed to avail himself to
it."
48 Nev. 344, 351 (1925) Chiatovich v. Mercer, Sheriff
The general rule, however, is that, when a defendant was prevented from making good
his defense by the lack of evidence to support it, being ignorant of the existence of such
evidence, and unable to discover it by the exercise of due diligence, equity will relieve him
against the judgment, upon the subsequent discovery and production of such evidence, unless
he has a legal remedy, and failed to avail himself to it.
4. As to his legal remedy, if by statute he is permitted to move for a new trial on the
ground of newly discovered evidence, it must appear that the time for making such motion
expired before the new evidence was discovered, or by the exercise of due diligence could
have been discovered. 15 R. C. L. p. 756. The character of such evidence must be clear,
strong, and convincing. Before equity will interpose to stay a judgment on this ground the
newly discovered evidence must be of such a character as to make it appear to be reasonably
certain that, with its aid, an opposite result will be caused on a new trial. Pickford v. Talbott,
225 U.S. 651, 32 S. Ct. 687, 56 L. Ed. 1240; Snider v. Rinehart, 20 Colo. 448, 39 Pac. 408;
Brown v. Luehrs, 95 Ill. 195; Smith Pocahontas Coal Co. v. Morrison, 93 W. Va. 356, 117 S.
E. 152; Wynne v. Newman's Adm'r, 75 Va. 811; Bloss et al. v. Hull, 27 W. Va. 503; 1 High
on Injunctions (2d ed.), 117; 15 R. C. L. 755, 756. The newly discovered evidence alleged in
the complaint is of sufficient strength to bring the case within the principles above stated.
This, together with the allegations of fraud, show that the enforcement of the judgment would
be manifestly unjust.
The judgment of the lower court sustaining the demurrers to the complaint is reversed, and
the lower court is directed to overrule the demurrers, grant a temporary injunction restraining
the former judgment at law, and require the respondents to answer.
____________
48 Nev. 352, 352 (1925) In Re Byran
In Re BYRAN
No. 2637
February 4, 1925. 232 Pac. 776.
1. Guardian and WardPetition Seeking Appointment as Guardian Held to State Facts
Sufficient to Give Jurisdiction.
Petition seeking appointment as guardian of person and estate of a minor, containing jurisdictional
facts required by Rev. Laws, sec. 6150, stated facts sufficient to give court jurisdiction.
2. Guardian and WardDivorce of Father Not an Insuperable Objection for Appointment as
Guardian of Minor.
That the father is a divorced person is not an insuperable objection under Stats. 1923, c. 4, for
appointment as guardian of a minor.
3. Guardian and WardParent's Fitness as Guardian at Time of Hearing Petition for
Appointment a Determining Factor.
Determining factor in proceedings for appointment of parent as guardian of minor is parent's fitness as
a guardian at time of hearing of petition.
4. Guardian and WardFather's Misconduct, Standing Alone, Does Not Preclude His
Appointment as Guardian After a Divorce.
That father seeking appointment as guardian of a minor has been guilty of misconduct does not,
standing alone, preclude his appointment after a divorce.
5. Guardian and WardRefusal to Appoint Divorced Parent Denying Paternity of Child as
Guardian Held Proper.
Court did not abuse its discretion in appointing maternal aunt as guardian of child on mother's death,
in preference to father, who had been divorced from the mother, where court found that he had made no
material contribution to support of child after divorce, and that he had failed to pay for medical
attendance during illness of child, and that on three occasions he denied paternity of child.
See 28 C. J. sec. 46, p. 1079, n. 23, 26, 31; sec. 67, p. 1085, n. 45.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Petition by Frank Robert Byran and Phoebe Gibeau and Elizabeth MaGoffin, seeking
appointment as guardian of the person and estate of John Robert Byran, a minor. The court
ordered that letters of guardianship be issued to Elizabeth MaGoffin, and the other petitioners
appeal. Affirmed.
Huskey & Kuklinski, for Appellants:
Surviving parent is entitled to custody of minor child.
48 Nev. 352, 353 (1925) In Re Byran
Divorced parent to whom custody was granted may appoint testamentary guardian, but no
such appointment was made in this case. Rev. Laws, 6153, as amended Stats. 1923, c. 4;
Allen's Estate, 124 Pac. 237. Divorce decree granting custody to one parent does not act at bar
for all time, but only during life of one to whom custody was decreed. On that parent's death,
right of survivor becomes paramount to all others (In Re Blackburn, 41 Mo. App. 622; In Re
Forrester, 123 Pac. 283) unless unfitness is shown. Harper v. Tipple, 184 Pac. 1006. Fit
parent should not be punished by deprivation of parental rights. State v. Richardson, 40 N. H.
274.
Father may show his ability to care for child, though at former time he was unable to do
so. In Re Forrester, supra.
When survivor on cross-examination is compelled to testify to facts equally known to
survivor and decedent, benefit of statute is waived and subject to open to full explanation on
redirect. Fox v. Barrett's Estate, 75 N. W. 440.
M. J. Scanlan, for Respondent:
Court may deprive father of custody of his minor child if he willfully neglects to provide
necessary medical attention. Heinemann's Appeal, 32 Am. Rep. 532.
No person shall be allowed to testify when other party to transaction is dead. Rev. Laws,
5419. But disinterested witnesses may testify that certain declarations were made, not to
prove their truth or falsity. 1 Greenleaf (14th ed.), 171.
When admission is undisputed it is conclusive on party by whom made. 22. C. J. 420.
Statutory provision favoring granting guardianship to surviving parent is not absolute.
Court will do what it considers for best interest of child. 9 R. C. L. 475.
Parent may lose right to custody by misconduct. In Re Lally, 16 L. R. A. 683. Though
father's right to custody revives on death of divorced wife, it must be shown that minor's
interests will be best conserved by recognizing father's right. Appellant court will not
interfere unless abuse of discretion is shown.
48 Nev. 352, 354 (1925) In Re Byran
interfere unless abuse of discretion is shown. When all evidence sustains appointment,
decision will not be disturbed. In Re Lewis, 137 Cal. 682; In Re Hawkins, 192 Pac. 30; 28 C.
J. 1008.
OPINION
By the Court, Sanders, J.:
In October, 1923, three separate petitions were filed in the court below, on the probate side
thereof, wherein each petitioner sought appointment as guardian of the person and estate of
John Robert Bryan, an infant two years of age. No issue was joined upon either petition, and
the three came on to be heard together and were considered as one proceeding. The mother of
the child, Katherine Pearl Byran, a resident of Washoe County, died intestate therein on the
11th day of October, 1923, leaving an insurance policy in the Women's Benefit Association
of the Maccabees for the sum of $1,000, payable, in the event of her death, to her said child,
John Robert Byran, which constitutes his entire estate. The first petition filed was that of the
father of the child, Frank Robert Byran, the second that of Elizabeth MaGoffin, a maternal
aunt of the child, and the third that of Phoebe Gibeau, its paternal grandmother. A large
amount of proof was offered to prove the qualifications of each petitioner for the trust. The
record discloses that the petition of the father was denied, for the reason, among other things,
that he was not a fit or suitable person to be appointed guardian. The petition of the
grandmother was denied upon the assumption that it would be for the best interest of the child
to appoint Elizabeth MaGoffin as guardian, and also because it was the dying wish of the
mother that her sister, Elizabeth MaGoffin, should have the custody and care of her child.
Being a competent and suitable person for the trust, it was ordered that letters of guardianship
issue to Elizabeth MaGoffin, upon her filing a bond in the penal sum of $1,000 to be
approved by the court, and upon her subscribing and filing the usual oath of office.
48 Nev. 352, 355 (1925) In Re Byran
office. The father and the grandmother bring this appeal from the order and ask its reversal
upon two grounds: One, that the petition of Elizabeth MaGoffin did not state facts sufficient
to give the court jurisdiction of her application. The other, that the court abused its discretion
in appointing the maternal aunt as guardian in preference to the father or the grandmother of
the child.
1. The objection that the petition of Elizabeth MaGoffin does not state the necessary facts
to entitle her to the guardianship of the minor child is without merit. Her petition contains the
jurisdictional facts required by the statute, section 6150, Revised Laws. We regard the
proceeding as a contest between the father of the child and its maternal aunt. The application
of the grandmother was apparently a device to prevent the appointment of the aunt. She did
not oppose the petition of her son, the father of the child. On the contrary, as a witness in his
behalf she made it appear that he was in all respects a competent and suitable person to be
intrusted with the office of guardian, and that her claim to the custody and care of the child
was secondary to that of its father. The petition of the father is grounded necessarily upon the
statute (Statutes 1923, p. 3) which provides, among other things, that the father and mother,
except as provided, being each competent to transact his or her own business, and not
otherwise unsuitable, shall be entitled to the guardianship of the minor.
The undisputed facts as found by the trial court are as follows: In April, 1922, Katherine
Pearl Byran, the mother of the minor child, was granted a divorce form Frank Robert Byran,
its father, on the ground of extreme cruelty, in the district court of Washoe County. The
decree, among other things, awarded of the custody of the child to its mother and required the
father to pay to her the sum of $25 per month for the support of the child. The court found
that the father failed and neglected to comply with the order of the court in the divorce action,
and that he contributed nothing to the support of the child after divorce except the sum of
$105.
48 Nev. 352, 356 (1925) In Re Byran
support of the child after divorce except the sum of $105. The court further found that the
father after divorce failed to pay for medical attendance during the illness of the child, and
that on three occasions he denied the paternity of the child. From these facts the court
concluded that as a matter of law the father was not a suitable person to be appointed
guardian.
2. That the father is a divorced person is not an insuperable objection by the standard
prescribed by our statute. If it were so, courts would be debarred from ever designating a
divorced parent as a guardian of his or her children.
3. The failure and neglect of the father to contribute $25 per month for the support of his
child after divorce, standing alone, does not preclude his appointment after the death of the
mother, provided he is competent to transact his own business, and is not otherwise
unsuitable for the trust. The continued failure of the father to comply with the decree may, no
doubt, be shown as one of the items of evidence bearing upon the question of his competence
for guardianship. But, as said by the court In Re Forrester, 162 Cal. 493, 123 P. 283, it is not
the same thing as incompetency nor does it in and of itself require a conclusion that the parent
is incompetent. The past failure of a parent to provide for his child may well coexist with a
present ability to fully discharge all the duties of guardianship. The determining factor in a
case of this character is the parent's fitness for guardianship at the time of the hearing of the
petition. In Re Green, 192 Cal. 714, 221 P. 903.
4, 5. The mere fact that the father has once been guilty of misconduct does not, standing
alone, preclude his appointment after a divorce. In Re Wagner, 75 Misc. Rep. 419, 135 N. Y.
S. 686. But in the present case it was expressly found that the father at least on three
occasions denied the paternity of his child. The evidence discloses that the father, in August,
1923, in a proceeding in the divorce action to compel him through the process of contempt to
contribute to the support of his child, stated in open court, under oath, that he was not the
father of the child and that he would go to jail before he would pay for its support.
48 Nev. 352, 357 (1925) In Re Byran
not the father of the child and that he would go to jail before he would pay for its support.
Such denial is sufficient to justify the conclusion that the father is not a suitable person for
guardianship. The father now insists that his denial of the paternity of his child was not true;
that he is its father and at all times entertained for it a sincere parental affection and had its
welfare at heart; that he was provoked into making the statement he did by the mother's
treatment of him; and that is was the aggravated differences then existing between them
which angered him to such an extent that he swore the was not the father of the child and
would suffer punishment before he would pay for its support. The mother is now dead. She
cannot speak. Now the father openly admits that he was willing that his child should be
smirched, that he might show his contempt for the mother. We cannot believe that a parent
who truly loved his child, and had its welfare at heart, would be guilty of such a thing.
In Griffin v. Sarsfield, 2 Dem. Sur. (N. Y.) 4, it was held that a judgment of divorce in
favor of the wife (who later died) for cruel treatment of herself and children by the husband,
together with the expression of a doubt by the petitioning father as to the paternity of the
child, which was of tender years, and whose guardianship he was seeking, sufficiently
showed unsuitableness of the father to receive appointment as guardian.
In Re McChesney, 106 Wis. 315, 82 N. W. 149, it was held that a father who was divorced
for cruel treatment, and who expressed a suspicion as to the paternity of his minor children,
was not a suitable person to act as guardian of such children, within a statute entitling him so
to act if suitable, although he had remarried, had considerable property, a good home, enjoyed
the confidence and respect of his neighbors, and had been of good conduct.
It is perhaps to be regretted that this court cannot so condition the order of appointment of
Elizabeth MaGoffin, the maternal aunt, as guardian by modifying the order so that the
father could bestow upon the child the love he now professes; but we do not feel that we
can do more than confirm the appointment of the aunt.
48 Nev. 352, 358 (1925) In Re Byran
the order so that the father could bestow upon the child the love he now professes; but we do
not feel that we can do more than confirm the appointment of the aunt. As time passes we
trust the disappointed applicants for guardianship will be given abundant opportunity to show
the sincerity of their positions in respect to the future welfare of the child.
The order of appointment of Elizabeth MaGoffin as guardian of the person and estate of
John Robert Byran is affirmed.
____________
48 Nev. 358, 358 (1925) State v. Hunter
STATE v. HUNTER
No. 2664
February 5, 1925. 232 Pac. 778.
1. Criminal LawAppellate Court Without Power to Amend Record of Lower Court.
Motion to amend record of trial court in appellate court will be denied, in view of court rules 7 and 8,
authorizing court in amendment of records only to make such orders as may be necessary to make
transcript of record conform to record made in lower court and not to change such record.
2. HomicideDeclarations of Decedent Held Admissible as Dying Declarations.
In murder prosecutions court did not err in admitting in evidence declarations of decedent as dying
declarations, where evidence showed that he believed himself to be in extremis, and no objection to
declarations was interposed on that ground.
3. Criminal LawObjection to Declarations as Dying Declarations Because Decedent Did
Not Believe Himself to be in Extremis Not Available on Appeal, Where Not Urged in
Trial Court.
In murder prosecution, where no objection was interposed to admissibility of declarations of decedent
as dying declarations on ground that they were not made in extremis, such objection could not be urged
on appeal.
4. HomicideDying Declarations Not Hearsay When Made in Extremis.
Dying declarations are taken out of hearsay class when one makes a statement while in extremis,
believing himself so to be.
5. Criminal LawJudgment Not Reversed to Admit Testimony to Impeach Witness, Where
Not Appearing that Trial Court Abused Its Discretion.
Before appellate court would be justified in reversing a judgment to admit testimony to impeach a
state's witness, it would be necessary to show that trial court abused its discretion in
refusing to admit such testimony.
48 Nev. 358, 359 (1925) State v. Hunter
would be necessary to show that trial court abused its discretion in refusing to admit such testimony.
6. Criminal LawMotion for New Trial for Newly Discovered Evidence to Impeach State's
Witness Held Properly Denied.
Court did not err in murder prosecution in denying motion for new trial for newly discovered evidence to
impeach state's witness as a seller of drugs,where all that both witnesses swore to might have been true
except as to state's witness selling drugs, which was a collateral matter which would throw no light on issue
before court and could not be tried in the case.
7. Criminal LawApplications for New Trial Solely to Impeach an Adverse Witness are Not
Looked on With Favor.
Applications for a new trial, when sole purpose of the newly discovered evidence relied on is to impeach
an adverse witness, are not looked on with favor.
8. Criminal LawCourt Held Not to Have Violated Statute as to Defining Reasonable Doubt
by Defining Abiding Conviction.
In murder prosecution court did not violate Rev. Laws, sec. 7165, providing that no other definition of
reasonable doubt shall be given than that provided in section 7164, which court originally gave by defining
term abiding conviction on request of jury, where all court did was to make clear statutory definition, and
defendant suggested that instruction be given from some dictionary or authority.
9. Criminal LawError Held Not Predicable on Remarks Made by Special Counsel for State
in Argument Because of Failure to Properly Present Objections Below.
Error could not be predicated on remarks alleged to have been made by special counsel for state in his
argument, where objections thereto were made after conclusion of argument, and court was not requested
to rule thereon or to admonish counsel and instruct jury, and alleged remarks were not in record.
10. Criminal LawObjections to Improper Remarks Must Be Made When Uttered.
Generally, to entitle a defendant to have improper remarks of adverse counsel considered on appeal,
objections must be made to them at the time, and court must be required to rule on objection, to admonish
counsel, and instruct jury.
11. Criminal LawVerdict Not Reversed, Where Substantial Evidence to Support.
Appellate court will not reverse a verdict and judgment, where there is substantial evidence to support it.
See (1, 3, 5, 6, 7, 8, 9, 10, 11) 16 C. J. sec. 2404, p. 994, n. 35; sec. 2729, p. 1202, n. 70, p. 1204, n. 71; 17 C. J.
sec. 3332, p. 62, n. 94; sec. 3336, p. 71, n. 57; sec. 3450, p. 165, n. 23; sec. 3462, p. 170, n. 12; sec. 3582,
p. 243, n. 55; sec. 3592, p. 255, n. 55; (4) 30 C. J. sec. 493, p. 252, n. 98; sec. 504, p. 263, n. 36; sec. 690,
p. 437, n. 36.
48 Nev. 358, 360 (1925) State v. Hunter
Appeal from Fourth Judicial District Court, Elko County; J. M. McNamara, Judge.
Harry H. Hunter was convicted of murder in the second degree, and he appeals. Affirmed.
Rehearing denied. (Sanders, J., dissenting.)
M. B. Moore, Milton B. Badt, and James Dysart, for Appellant:
Before dying declaration can be admitted it must be shown that it was made in extremis.
State v. Roberts, 28 Nev. 270: People v. Hodgdon, 55 Cal. 72. Declarant must be without
hope of recovery and in articulo mortis, Bilton v. Territory, 99 Pac. 163. Declarations must
relate to facts and not matters of opinion. People v.Taylor, 59 Cal. 640. I think that this man
(the defendant) shot me is inadmissible. People v. Wasson, 4 Pac. 555.
Rev. Laws, 7165, provides that none but statutory definition of reasonable doubt shall be
given. Court in defining abiding conviction varied statutory definition. In State v. Potts, 20
Nev. 389, this court said: It would be difficult to select words that would define their
meaning better than is set forth in the statute and we would recommend to the judges that
they follow the exact language of the statute and not attempt any further explanation. Cited
in State v. Vaughn, 22 Nev. 285.
Statement of special prosecutor that you can see by the expression on the faces of every
decent woman in the audience that they are against these people was prejudicial to defendant
as attempt to bring outside influence upon jury to lead them to believe public sentiment
demanded conviction. Withdrawal of improper testimony or argument should be so emphatic
as to be unequivocal repudiation of it by court. State v. Rader, 124 Pac. 195. Public sentiment
should not be expressed in presence of jury. People v. Fleming, 136 Pac. 291. Only safe rule
in case of such misconduct is to grant new trial, unless it is clear verdict was not affected
thereby. People v. Ah Len, 28 Pac. 286. In People v. Hail, 143 Pac.
48 Nev. 358, 361 (1925) State v. Hunter
Hail, 143 Pac. 803, court reversed conviction for improper remarks of district attorney.
Where prosecuting attorney is guilty of conduct calculated to arouse prejudice or passion,
conviction should be set aside. Hager v. State, 133 Pac. 263; People v. Fielding, 46 L. R. A.
641; State v. Rodriguez, 31 Nev. 342.
M. A. Diskin, Attorney-General; Thos. E. Powell, Deputy Attorney-General: W. T.
Mathews, District Attorney, for the State:
Affidavit on motion for new trial for newly discovered evidence must show due diligence
prior to or during trial; must show what was done to make discovery and not state conclusion
that evidence could not be discovered. Robinson M. Co. v. Riepe, 37 Nev. 27; 20 R. C. L.
397. Affidavit must show facts would be material. Newly discovered evidence merely tending
to discredit witness is not sufficient. 20 R. C. L. 294; Whise v. Whise, 36 Nev. 16; Robinson
v. Riepe, supra.
Dying man may seek relief from agony if only for short while. Sending for doctor does not
indicate hope of recovery. Milton v. State, 32 So. 653; State v. Kuhn, 90 N. W. 733. If court
is satisfied of state of mind of deceased at time of making declaration, it is enough. State v.
Roberts, 28 Nev. 350. Nature of wound and state of wounded person may be considered in
passing on question. Underhill Crim. Ev. (3d ed.), sec. 173; Territory v. Eagle, 30 L. R. A.
(N. S.) 391. Objection to dying declaration as being hearsay is not well taken. All evidence of
dying declarations is hearsay. State v. Murphy, 9 Nev. 394. General objection to dying
declaration should be overruled if any part is admissible. Lipscomb v. State, 23 So. 210; State
v. Williams (Nev.), 220 Pac. 555.
Counsel for defendant made no objection at the time to court's giving definition of
abiding conviction. Defendant was not prejudiced thereby. Statutory definition of
reasonable doubt was not changed. Two words only were explained to enable jury better to
understand language used.
48 Nev. 358, 362 (1925) State v. Hunter
Limits to which counsel may go in discussing evidence must be left to discretion of court.
It is only where remarks are clearly prejudicial that instruction to disregard will not cure.
Court, at time remark was made, instructed jury not to consider it. Prosecutor apologized to
jury for any improper statements. Unwarranted statements are not sufficient to justify new
trial where they are withdrawn or ordered stricken out. State v. Petty, 32 Nev. 284; 46 L. R.
A. 641.
OPINION
By the Court, Coleman, C. J.:
The defendant was convicted of murder in the second degree. He has appealed from the
judgment and from the order denying his motion for a new trial.
1. A preliminary question is presented for determination in the form of a motion to amend
the record. In support of the motion affidavits are produced, and our attention is directed to
the rules of this court. Rules 7 and 8 are the only ones which contemplate any action by this
court pertaining to amendments to records. They go no further than to authorize the court to
make such orders as may be necessary to make the transcript of the record conform to the
record made in the lower court, and not to change the record of the lower court. This court
has no power to alter or amend the record of the lower court. The motion is denied.
The appellant has assigned five errors as grounds for a reversal of the judgment.
Prior to the giving of the testimony in the presence of the jury the court heard the evidence
to determine its qualification to show a dying declaration. For this purpose the testimony of
six witnesses was taken and no objection was made to it upon either of the grounds now
urged. The court was of the opinion that the testimony was sufficient to go to the jury, and so
ruled. The first witness to testify before the jury was Chin Gim, who, having testified as to
certain preliminaries, gave evidence to the effect that Charley Yee Hee, after responding to a
call of the bell in the booth, came back into the room in which was the lunch counter,
shouting: "Helpl
48 Nev. 358, 363 (1925) State v. Hunter
responding to a call of the bell in the booth, came back into the room in which was the lunch
counter, shouting: Help! Help! Save my life! I have been shot; shot right through; I am about
to die. He kept on saying: Save me; get me help. I am about to die. I am shot through. This
witness called for W. H. Robertson, proprietor of the hotel. Neither of them was then able to
learn who did the shooting. The witness testified that the deceased was suffering, so I helped
him into the bedroom. This witness testified that while he, Mr. Robertson, and the son of the
deceased were in the bedroom Mr. Robertson asked the deceased who shot him, whereupon
the following objection was made by counsel for the defendant:
We object, if the court please, on the ground the proper foundation has not been laid for
any statement on the part of Charley Yee Hee. Whatever statement or declaration he may
have made is hearsay; also it was not made in the presence of the defendant, or it has not been
shown it was made in the presence of the defendant; also it has not been shown yet what
question was asked him.
The objection having been overruled, the witness testified that the deceased stated that
Harry Hunter shot him. He then gave the following evidence:
Q. Was that all that was said?
Thereupon counsel interposed: We understand that our objection goes to all this line of
questions.
The Court: It may be so understood, and the same ruling and exception.
Q. What did he reply? A. Carpenter; Margie's man.
Q. Were these words said by Charley Yee Hee? A. Yes.
Q. Were they said in the Chinese language? A. That was in English.
2, 3. From a reading of the above objection, which is the one relied upon during the trial as
going to all of the same line of evidence, it seems that no objection was interposed upon the
ground that the deceased did not believe himself to be in extremis; hence this objection
cannot be urged now.
48 Nev. 358, 364 (1925) State v. Hunter
believe himself to be in extremis; hence this objection cannot be urged now. However, we
think the evidence shows that the deceased believed himself to be in extremis.
4. Just what is meant by the objection that the testimony is hearsay we are somewhat at a
loss to understand. Dying declarations are taken out of the hearsay class when one makes a
statement while in extremis, believing himself so to be. The trial court was in a better position
than are we to determine as to the condition of the deceased and whether he believed himself
in extremis, but from a reading of the entire testimony it seems that there can be no doubt
upon that point. He was suffering greatly, manifested great alarm, and was told he was going
to die and did die within about a half hour. We do not think the court erred in admitting the
evidence. We may say that counsel in their brief call our attention to some cases which hold
that certain evidence is incompetent, but they go to a situation not presented by the objection
made and ruled upon in the trial court, and hence will not be considered here.
It is also contended that the court erred in denying a motion for a new trial based upon the
ground of newly discovered evidence. In support of the motion defendant relies upon an
affidavit of John Kocas, who swore that on the morning of the shooting, and shortly prior
thereto, he went into the Overland Hotel building, passed the lunch counter, into the kitchen,
and out into the yard, and then to the window opening out into the back yard from the room
which was then occupied by George Wah, one of the witnesses for the state; that on that
morning a portion of a pane of glass was broken out of said window, and that he saw Wah
lying in his bed in the room, and spoke to him, and passed to him $8 in exchange for some
drugs which Wah passed out to him, and that this was one of the numerous occasions on
which the same character of transaction had been conducted between them; that he then went
back to his work at the depot and learned about an hour or an hour and a half later of the
shooting of the deceased.
48 Nev. 358, 365 (1925) State v. Hunter
He also swore that he had often seen in the possession of George Wah a large Colt revolver
which he took for a .38 caliber on a large frame, and that he had seen such a revolver in his
possession two or three weeks prior to the killing.
5-7. We cannot say that the court erred in denying the motion. The purpose of the
testimony was to impeach George Wah, and, before we would be justified in reversing the
judgment for this reason, it must appear that the trial court abused its discretion. We think
there is no showing whatever leading to such a conclusion. The fact is, all that both swore to
might have been true, except as to Wah's selling drugs. As pointed out in State v. Willberg,
45 Nev. 183, 200 P. 475, applications for a new trial, when the sole purpose of the newly
discovered evidence relied upon is to impeach an adverse witness, are not looked upon with
favor. Furthermore, Wah's selling of drugs is a collateral matter which could throw no light
upon the issue before the court and could not be tried in this case, and it had no place in it.
The court did not err in its ruling.
8. It is next contended that the court erred in giving an instruction which changed the one
wherein the statutory definition of reasonable doubt was originally given. After the jury had
retired to consider the case, it returned into the courtroom and requested the court to define
the meaning of the term abiding conviction contained in the statutory instruction originally
given by the court, wherein the court gave the following:
The words abiding conviction,' as used in instruction No. 4 heretofore given you, mean
such a settled and fixed opinion in your minds with reference to the truth of the charge that it
will not admit of any other reasonable conclusion.
In this connection our attention is directed to section 7165, Revised Laws, which provides
that no other definition of reasonable doubt shall be given by the court in its instruction than
that provided for in section 7164, which was the one originally given. It is contended that the
court, in defining abiding conviction, violated section 7165.
48 Nev. 358, 366 (1925) State v. Hunter
section 7165. No contention is made that the words were erroneously defined. The contention
is, to say the least, hypertechnical. One to the effect that an i is not dotted or a t is not
crossed would not be more so. But can it be said that the court violated section 7165? We
think not. It is not contended that the court gave any other definition of reasonable doubt than
that given by the statute. All that the court did was to make clear the statutory definition. This
is not in violation of the statute. No error was committed nor was any prejudice suffered by
the defendant. The contention is utterly devoid of merit. Furthermore, it appears from the
record that counsel for the defendant suggested the instruction be given from some
dictionary or some authority. It is not contended that the court did not comply with counsel's
suggestion.
9, 10. It is also contended that prejudicial error was committed by special counsel for the
state by certain remarks alleged to have been made in his argument. What was said does not
appear from the bill of exceptions. They were not taken down and incorporated in the record.
We find the following note in parenthesis:
Objection made by counsel for defense to attention being called to the outside evidence
and assigned as error.
After this note we find the following:
Court: The expression of spectators' faces should not be considered as evidence in this
case.
We then find the following statement by counsel for defendant:
Without the evidence in the case it cannot be shown.
Court: The objection is overruled. You may swear the officers to take charge of the jury.
From the appearance of the record the objections made by counsel were after the
conclusion of the argument by special counsel, and not at the time the alleged objectionable
matter was stated. If the remarks of counsel were based upon any evidence in the case, it is
clear that they would have been proper, but, since the alleged remarks are not in the record,
we cannot tell if the evidence justified such remarks. State v. McMahon, 17 Nev. 365
48 Nev. 358, 367 (1925) State v. Hunter
17 Nev. 365, 30 P. 1000. Furthermore, as a general rule, to entitle a defendant to have
improper remarks of counsel considered on appeal, objections must be made to them at the
time, and the court must be required to rule upon the objection, to admonish counsel, and
instruct the jury. This was not done, so far as the record shows.
11. The remaining assigned error is that the verdict is contrary to the evidence. This court
has repeatedly held that it will not reverse a verdict and judgment where there is substantial
evidence to support it. State v. Buralli, 27 Nev. 41, 71 P. 532. The killing is admitted, and
there is ample evidence to sustain the verdict.
Judgment affirmed.
Ducker, J.: I concur.
Sanders, J., dissenting:
The record discloses that three Chinamen, known as George Wah, N. Wing, and Charles
Yee Hee, conducted a restaurant in the Overland Hotel at Carlin, Elko County, Nevada, and
had in their employ one Chin Gim as night waiter. On the night of January 5, 1924, Charles
Yee Hee was on duty in the restaurant as cook and Chin Gim as waiter. About the hour of
5:45 a.m. of January 6, 1924, Charles Yee Hee and Chin Gim were conversing at the lunch
counter in the restaurant when Charles Yee Hee answered a call bell from one of the boxes or
booths therein and was shot in the left breast by some person unknown. The wound was
unquestionably mortal. The danger of such a wound as that inflicted, together with the
physical condition of Charles Yee Hee, aside from any exclamations made by him
immediately after he was shot, was probably sufficient under the circumstances to admit his
declarations in evidence under the rule of dying declarations.
The principal controversy in the case was as to who committed the crime. The homicide
occurred on the inside of the booth situate at a door leading out into the rear of the premises.
The deceased made no declarations as to the circumstances attending the shooting, and when
the night waiter, Chin Gim, asked the deceased who shot him he made no reply, and
continued to exclaim that he had been shot, calling for help, and ejaculating in a loud
voice in the Chinese language that he was going to die.
48 Nev. 358, 368 (1925) State v. Hunter
deceased who shot him he made no reply, and continued to exclaim that he had been shot,
calling for help, and ejaculating in a loud voice in the Chinese language that he was going to
die. The night waiter was the first to give the alarm of the shooting. The first person to appear
on the scene after the alarm was given was one W. H. Robertson, proprietor of the hotel,
whose testimony was, in substance, that when he came into the restaurant Charles Yee Hee
was standing behind the lunch counter, leaning over, and he said to the witness that he had
been shot. The witness asked, Who shot you? and he replied that he did not know. The
witness then armed himself and made a search of the premises, and on his return to the
restaurant again asked Charles Yee Hee who shot him, and he said that it was a tall man with
a mackinaw on. The witness told Yee Hee that he was dying, and suggested to Chin Gim that
he be taken to a bed. He was led to the booth where he was shot, and the night waiter went to
the room of George Wah and informed him of the shooting. He also went to the room of Yee
Hee's son, known as Yee Get, and told him of the shooting. The son, after conversing with the
night waiter in Chinese, went to the booth, and, while alone with his father, asked who shot
him and he replied that Harry Hunter shot him. Subsequently George Wah went to the
bedside of Yee Hee and conversed with him alone and asked who shot him, and he replied
that Harry Hunter shot him, the carpenter or builder. Subsequently the witness W. H.
Robertson came into the booth, and in the presence of Chin Gim and Yee Get again asked
Yee Hee, Who Shot You? and he said, I think Harry or Hallie, trying to say Harry.
This was the last expressionin fact, the last words uttered by Yee Hee.
The record discloses that the only tangible evidence of the guilt of the defendant was the
so-called dying declarations of Yee Hee, and the question is whether these declarations,
standing together, sufficiently identify the accused, as a matter of law, to be the person who
committed the crime.
48 Nev. 358, 369 (1925) State v. Hunter
What constitutes a dying declaration per se is a question of law of the court to decide;
likewise the judge must determine whether the declaration itself is one of fact, and therefore
admissible, or whether it is one of mental impression, opinion, or conclusion, and therefore
inadmissible. The judge has to deal with the matter as a preliminary question of fact. 1
Wharton's Criminal Ev. (10th ed.), sec. 296b.
While the deceased made no declaration as to the conditions or circumstances surrounding
the shooting, there is evidence in the record tending to show that it was physically impossible
for the deceased to have known who shot him. The booth in which he was shot had an electric
light in it, but there is no testimony to show that the light was turned on, and even if it had
been the room would have been dimly lighted. The evidence further tends to show that the
person who fired the shot was concealed behind curtains suspended about the entrance to the
booth.
Conceding that responses made to direct questions put to the deceased as to who shot him
are admissible as dying declarations in the absence of a statute, the proof shows that the
Chinese witnesses who asked the deceased who shot him were suspicious that Harry Hunter
was the guilty party, because of threats he had made to kill Charlie Yee Hee about ten days
before the homicide, and, further, one expression repeatedly used by the deceased in the
presence of Chin Gim immediately after he was shot, I knew this was going to come, seems
to have created the impression that this expression of the deceased was inspired by the
suspicion that Harry Hunter was the person who shot him.
I concede that the weight to be attached to dying declarations as evidence is for the jury to
determine, and, if there is a conflict in the declarations, the question is one of fact for the jury
to determine. In this instance the deceased stated to his son and to his partner in business as a
fact that it was Harry Hunter who shot him. These persons were naturally eager to know who
committed the crime, and entertained a suspicion that Hunter was the guilty party.
48 Nev. 358, 370 (1925) State v. Hunter
Hunter was the guilty party. The deceased's declaration that he thought it was Harry Hunter
who shot him, made to a disinterested witness, and it being practically his dying words, I am
of opinion that the last dying statement of the deceased that he thought it was Harry Hunter
who shot him was the expression of his opinion or belief not based on any facts. It is
indispensable that the dying declarations to be admissible should consist solely of facts, and
not of conclusions, mental expressions, or opinions. Underhill, Criminal Ev. (2d ed.), sec.
108.
The atmospheric conditions surrounding the declarations and the last statement of the
deceased in life that he thought it was Harry Hunter who shot him are sufficient to warrant the
reversal of the judgment and to entitle the defendant to a new trial. I therefore dissent from
the opinion of the majority in the affirmance of the judgment.
On Petition for Rehearing
May 1, 1925. 235 Pac. 645.
1. Criminal LawObjections to Remarks of Special Prosecutor Made at Conclusion of
Argument too Late for Review.
Objections to remarks of special prosecutor which were not made until close of
argument held too late for review.
2. Criminal LawObjection to Admission of Dying Declaration Not Presented at Trial Not
Basis for Assignment of Error.
In murder prosecution, objection to admissibility of dying declaration, in that it only
went to extent of declaring that deceased thought accused shot him, could not be basis
for error or justify reversal, where it was not made at trial.
3. Criminal LawAppeal in Criminal Cases Can be Taken on Question of Law Only.
Under Const. art. 6, sec. 4, and Rev. Laws, sec. 7287, appeals in criminal cases can
be taken on questions of law only.
See 17 C. J. sec. 3331, p. 59, n. 35; sec. 3332, p. 62, n. 94; sec. 3542, p. 202, n. 76.
Rehearing denied. (Sanders, J., dissenting.)
OPINION
By the Court, Coleman, C. J.:
A petition for rehearing has been filed, wherein it is insisted that the court erred in
certain of its rulings.
48 Nev. 358, 371 (1925) State v. Hunter
insisted that the court erred in certain of its rulings. In the opinion we quoted the objection to
the testimony which was made by counsel during the trial, and based our ruling upon the
objection as made. In that opinion we said that, in view of the fact that no objection was
interposed upon the ground that the decedent did not believe himself to be in extremis, that
point could not be urged in this court. We went a step further, however, and said that we
thought it was satisfactorily shown that the trial court was justified in its conclusion. We are
satisfied either both of the views expressed, but the first is conclusive, and as to that no point
is made in the petition for a rehearing.
1. The next contention is that we overlooked that portion of the bill of exceptions
containing the language used by the special prosecutor which, it is urged, constituted
reversible error. It is true that we did not see this statement, and for very good reasons. In the
first place, it is where no one would ever look for such a statement and, secondly, we were
refereed, on page 4, line 24, of the opening brief filed in behalf of appellant, to page 690 of
the transcript of the testimony as the place where we would find the matter complained of,
and where we did find what was quoted in our opinion and nothing more. On page 3 of the
petition for a rehearing we are directed to page 2 of defendant's proposed bill of exceptions.
The transcript of the testimony in this case consists of two volumes of nearly 700 pages of
typewriting, to which is prefixed other matter, such as the information, instructions, etc., at
the very end of which we find, on what is designated as page 90, the matter now complained
of.
While we find in the record a statement of the language used by the special prosecutor, no
objection or action appear to have been taken, save what was quoted in our former opinion
and, as there shown, what was said and done was at the conclusion of counsel's argument
rather that at the time the statement was made. It appears that the authorities are uniform in
holding that this is too late. 16 C. J. 914, sec. 2267. But counsel says that, in view of the
statement found on page 90, to the effect that the alleged error "was duly and regularly
objected to and assigned as error by defendant's counsel," overcomes the record as
quoted in our opinion.
48 Nev. 358, 372 (1925) State v. Hunter
the effect that the alleged error was duly and regularly objected to and assigned as error by
defendant's counsel, overcomes the record as quoted in our opinion. Counsel failed to quote
the entire record, for it continues to read, as appears on page 690 of the original transcript
herein. This latter quotation qualifies the portion of the quotation relied upon, and brings it
squarely within the ruling made in our opinion and restated above.
Counsel urge that we reconsider the evidence and particularly that discussed in the
dissenting opinion herein, which was given by W. H. Robertson, wherein he stated that the
deceased said he thought it was Hallie' who shot him.
2, 3. We do not think there is any real occasion for further consideration of the matter. In
our original opinion we disposed of every objection made during the trial and urged this
court, and we think, correctly. The point made in the dissenting opinion to the effect that what
one thinks cannot be the basis of a dying declaration is hornbook law, but no objection was
made in the trial court on that ground, and hence cannot be the basis of an assignment of error
here, or justify this court in reversing a verdict of twelve men and overriding the ruling of the
judge. Furthermore, that statement is just one small scrap of the testimony. This court was
created to consider and pass upon errors of the trial court, and it can hardly be said that an
error was committed in the reception of evidence, unless a timely objection is made to it.
Furthermore, that evidence purports to related what was said immediately after the shooting
and before the deceased was taken to his room, at which time it clearly appears that the
deceased was in a frenzy. Besides, we have the testimony of Constable Berning and four or
five other witnesses relating that the deceased clearly indicated that the defendant was the
man who shot him. In the face of the testimony of these witnesses, we are unable to see any
excuse for holding that the evidence does not justify the verdict, or wherein we can find
excuse to override the plain provision of section 4 of article 6 of our constitution and
section 72S7, Rev. Laws, which provide that appeals in criminal cases can be taken on
questions of law only.
48 Nev. 358, 373 (1925) State v. Hunter
override the plain provision of section 4 of article 6 of our constitution and section 7287, Rev.
Laws, which provide that appeals in criminal cases can be taken on questions of law only.
Petition is denied.
Ducker, J.: I concur.
Sanders, J.: I dissent.
____________
48 Nev. 373, 373 (1925) Stock Growers & Ranchers Bank v. Milisich
STOCK GROWERS AND RANCHERS BANK v.
MILISICH
No. 2607
February 5, 1925. 233 Pac. 41.
1. Fraudulent ConveyancesThough Debtor is Nonresident, without Property in State,
Plaintiff, in Ancillary Suit Not Having Reduced Claim to Judgment, Must Have Lien on or Interest in
Notes Fraudulently Assigned.
Though the debtor is a nonresident and has no property in the state, a suit, ancillary to an action at
law, to set aside as fraudulent an assignment of notes, is not authorized without reduction of claim to
judgment, unless plaintiff has a lien on or interest in the notes.
2. Fraudulent ConveyancesComplaint, by Reason or Allegation Being Conclusion of Law,
Held Not to Show Lien by Attachment.
Complaint in suit, ancillary to an action at law, to set aside assignment of notes and mortgages as
fraudulent, held, by reason of allegation being conclusion of law, not to show the acquisition of a lien by
attachment, so as to authorize the suit, where claim had not been reduced to judgment.
3. Fraudulent ConveyancesLiensStipulation in Ancillary Suit Held Not to Establish
Equitable Lien on Notes Fraudulently Assigned.
Stipulation in suit, ancillary to action at law, to set aside assignment of notes and mortgage security as
fraudulent, that they should be held till termination of the litigation in the safety box where they were, did
not establish an equitable lien, giving the court jurisdiction to grant the relief.
4. AssignmentsMere Promise to Pay Out of Fund Not Equitable Assignment.
Mere promise of M., whereby he induced plaintiff to make him a loan, that he would repay plaintiff
out of moneys due M. on notes of O., did not constitute an equitable assignment of an interest in the
notes debt; but an appropriation, actual or constructive, of the O. debt to the
payment of plaintiff by M., on which O. could safely, under any circumstances, pay
plaintiff, was necessary.
5. Fraudulent ConveyancesComplaint to Set Aside Fraudulent Conveyances Held
Not to Authorize Judgment for Debt.
48 Nev. 373, 374 (1925) Stock Growers & Ranchers Bank v. Milisich
of an interest in the notes debt; but an appropriation, actual or constructive, of the O. debt to the payment
of plaintiff by M., on which O. could safely, under any circumstances, pay plaintiff, was necessary.
5. Fraudulent ConveyancesComplaint to Set Aside Fraudulent Conveyances Held Not to
Authorize Judgment for Debt.
Even if under Const. art. 6, sec. 14, and 2 Rev. Laws, sec. 4943, providing for but one form of civil
action, and for law and equity being administered in the same action, there should not be a separate action
or debt and another to set aside fraudulent conveyance, judgment for debt is not authorized by complaint,
which nowhere, even inferentially, seeks such a judgment, but is aimed only at avoiding the conveyance.
6. Appeal and ErrorProvision for Giving Opportunity to be Heard Before Deciding Point,
Not Raised by Opening Briefs, Complied With by Ordering Reargument.
Provision of Stats. 1923, c. 97, sec. 4, for supreme court not deciding case on point not raised in opening
or answering briefs, without first giving parties opportunity to be heard on the point, held complied with by
submitting the question for reargument.
7. Appeal and ErrorNot Strictly Accurate to Say Point Was Not Made in Opening Brief.
In view of gradual evolving by answering and supplemental briefs, of point made in opening brief, held
that it was not strictly accurate to say that point was not made in opening brief, within Stats. 1923, c. 97,
sec. 4, inhibiting supreme court from deciding case on point not in opening or answering briefs, without
first giving parties opportunity to be heard on the point.
8. Appeal and ErrorSufficiency of Complaint to Give Jurisdiction May be Raised Any
Time.
Question of sufficiently of the complaint, going to the jurisdiction of the court, may be raised for the first
time on appeal.
See (1, 2, 3, 5) 27 C. J. 573, p. 723, n. 25; sec. 585, p. 731, n 91; sec. 590, p. 733, n. 10; sec. 657, p. 765, n. 98,
2; sec. 809, p. 850, n. 46; 37 C. J. sec. 20, p. 317, n. 82; sec. 21, p. 318, n. 92; (4) 5 C. J. sec. 78, p. 909, n.
19; sec. 80, p. 915, n. 35; p. 915, n. 38; 5 C. J. sec. 78, p. 909, n. 19; sec. 80, p. 913, n. 35; p. 915, n. 38;
(6, 7, 8) 3 C. J. sec. 651, p. 755, n. 5; sec. 708, p. 786, n. 76; sec. 1598, p. 1434, n. 32; 4 C. J. sec. 2469, p.
618, n. 41 (new).
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Suit by the Stock Growers and Ranchers Bank of Reno against Steve B. Milisich and wife.
From decree for plaintiff and order denying new trial, defendants appeal. Reversed. (Sanders,
J., dissenting.)
48 Nev. 373, 375 (1925) Stock Growers & Ranchers Bank v. Milisich
Brown & Belford, Mack & Green, and Dodge & Barry, for Appellants:
Complaint does not state cause of action because:
1. It does not show husband was indebted to plaintiff or any one at time of assignment to
wife. Gift at such time is valid and becomes separate property of wife. 21 Cyc. 1665; Bailey
v. Littell, 24 Nev. 294; Gen. Stats. sec. 499. Allegation that claim is obligation of community
is conclusion of law and does not aid pleading. 31 Cyc. 49. Husband's right to control
community does not give him right to create debts chargeable to wife's separate estate. 21
Cyc. 1677.
2. It does not show husband was insolvent at time he made assignment to wife. Albertoli v.
Branham, 22 Pac. 404; Tainter v. Broderkick Co., 171 Pac. 679.
3. It does not allege plaintiff's claim had been reduced to judgment, which is necessary in
creditor's bill in equity. 15 C. J. 1380; Tennent v. Battey, 18 Kan. 324.
If complaint states no cause of action no evidence under it can be relevant or competent.
Even voluntary conveyance by husband to wife is valid against subsequent creditors unless
made with intent to defraud them. Horbach v. Hill, 112 U. S. 114, cited in Schreyer v. Scott,
134 U. S. 405.
Conveyance to wife is not presumptively fraudulent Vansickle v. Wells, Fargo & Co.,
C. C. Dist. Nevada, 105 Fed. 16. If conveyance was not fraudulent in its inception it will not
be made so by subsequent acts. Idem. To vitiate transfer grantee also must have knowledge of
fraudulent intent. Prewit v. Wilson, 103 U. S. 22.
Plaintiff who attacks conveyance as in fraud of his rights must show fraudulent intent of
vendor. Burden then shifts to purchaser to show valuable consideration. Burden again shifts,
and plaintiff must show vendee's knowledge of grantor's fraudulent intent. Hart v. Church, 58
Pac. 296.
Statement by husband long after assignment and without presence of wife are not binding
on her. Title of grantee cannot be impeached by statement of grantor after transfer that
conveyance was fraudulent. Ross v. Wellman, 36 Pac.
48 Nev. 373, 376 (1925) Stock Growers & Ranchers Bank v. Milisich
Wellman, 36 Pac. 402; Winchester etc. Co. v. Creary, 116 U. S. 161.
Husband's gifts to wife while he is solvent are not subject to criticism. Jones v. Clifton,
101 U. S. 225.
Cooke, French & Stoddard, for Respondent:
Wife's separate answer tenders very issue, of the lack of which appellants complain.
Failure of complaint to state cause of action may be cured by other pleading. Facts alleged by
one party need not be pleaded by other. This is rule at common law. 21 R. C. L. 492;
Hawthorne v. Smith, 3 Nev. 189.
It is never necessary to show actual express intent to defraud in order to render voluntary
conveyance void as against existing creditors. If grantor was or is left insolvent, or if
conveyance deprives him of means of paying his debts, intent will be inferred. 2 Pom. Eq.
Jur. (4th ed.), sec. 972.
Question of fraudulent intent is one of fact and not of law, and is acid test under our statute
upon which plaintiff below may recover. Rev. Laws, 1083, 1086.
It is sufficient for complaint to state and court to find that plaintiff was creditor of
husband, that conveyance was made without actual valuable consideration commensurate
with then value of property for purpose of hindering, etc., creditor of right to realize on
judgement he might secure. Young v. Holman, 216 Pac. 177.
If sale was made with intent to hinder or delay creditors, it is fraudulent as to them,
whether vendor was solvent at time or not. Klauber v. Scholss, 115 Am. St. Rep. 486.
Solvent person may transfer property with intent to defraud creditors, as well as one who is
insolvent. Slade Lumber Co. v. Derby, 159 Pac. 883.
Exception to general rule is as well established as rule itself that where debtor has left
jurisdiction or is nonresident and is insolvent, etc., creditor will be excused from first
reducing claim to judgment. Taylor v. Branscombe, 38 N. W. 400; 27 C. J. 731.
In cases of this kind it is seldom, if ever, possible to prove fraudulent intent by direct
evidence, hence it is necessary to resort to circumstantial evidence.
48 Nev. 373, 377 (1925) Stock Growers & Ranchers Bank v. Milisich
prove fraudulent intent by direct evidence, hence it is necessary to resort to circumstantial
evidence. Badges of fraud are infinite in number and form. 27 C. J. 483, 822.
Property, once community, will be presumed to remain such until shown by clear and
convincing proof to have been transmuted into separate property, as against creditors. It is
immaterial that community property stands in wife's name; that is mere circumstance to be
considered. Presumption attending possession by either spouse is that it is community;
exceptions to rule must be proved. Laws. v. Ross, 194 Pac. 467; Barrett v. Franke, 208 Pac.
435.
Money saved by wife from allowances for household expense belongs to community.
Abbott v. Wetherby, 33 Pac. 1070.
No variance between pleading and proof is material unless it misleads other to his
prejudice. Rev. laws, 5066, 5080. If proof substantially supports allegation it is sufficient. 31
Cyc. 702. Evidence of actual facts will support pleading which sets up same facts according
to their legal effect. New York News Pub. Co. v. Steamship Co., 42 N. E. 514.
Statements against interest made by either spouse which throw light on transaction and
show intent are properly admissible.
Intent of assignor is principal question in case. It is entirely immaterial whether wife knew
of husband's fraudulent intent or not. Young v. Holman, supra.
Complaint alleges sufficient facts to make this original action in equity; under blending
statute reference to prior attachment action may be treated as surplusage.
Correct judgment will not be reversed though reasons for it are wrong. Bailey v. O'Fallon,
70 Pac. 755.
There is no wrong without a remedy. Where creditor lacks plain, speedy and adequate
remedy at law equity will grant relief in first instance. Where debtor absconds and leaves no
other property within reach of his creditors and wife threatens to transfer property alleged to
have been fraudulently assigned to her by husband, it is not essential prerequisite for
complaining creditor to acquire lien before invoking equity.
48 Nev. 373, 378 (1925) Stock Growers & Ranchers Bank v. Milisich
not essential prerequisite for complaining creditor to acquire lien before invoking equity.
Pendleton v. Perkins, 49 Mo. 565; Scott v. McMillen, 13 Am. Dec. 239; Heaton v. Dickson,
133 S. W. 159; In Re Beckhaus, 177 Fed. 141.
General rule no longer exists in states where statute abolishes distinction between law and
equity and gives same court power to administer both kinds of relief. 15 C. J. 1388.
Appellant is confined to grounds urged in lower court; respondent may advance any
grounds he chooses. Clarke v. Huber, 25 Cal. 593; Davey v. S. P. Co., 48 Pac. 1117.
OPINION
By the Court, Ducker, J.:
This is a suit in equity, instituted by the plaintiff to have declared void an assignment of
two promissory notes and the real estate mortgages securing them, the notes and mortgages
decreed to be community property, and subjected to the lien of an attachment issued in
another action brought by the plaintiff against the defendant, Steve B. Milisich, on his
promissory note. For convenience the parties will be referred to as in the pleadings, or by
their proper names.
A demurrer to the complaint was overruled. Separate answers were filed, to one of which a
reply was made. A decree was rendered in accordance with the prayer of the complaint. The
appeal is taken from the decree and an order overruling a motion for a new trial.
The defendants, Steve B. Milisich and Thora Milisich, are husband and wife. The main
facts out of which the controversy arose are as follows: On August 18, 1920, Milisich made
and delivered to the plaintiff his promissory note for the sum of $7,800. He paid $500 on the
principal of the note and paid the interest to December 18, 1920. On May 10, 1918, the
defendants loaned to Dennis O'Sullivan and his wife, Johanna Jane O'Sullivan, the sum of
$14,000, taking their promissory note therefor payable to the former. This note was secured
by a real estate mortgage executed in favor of the defendants.
48 Nev. 373, 379 (1925) Stock Growers & Ranchers Bank v. Milisich
was secured by a real estate mortgage executed in favor of the defendants. On February 8,
1919, the O'Sullivans borrowed $5,000, for which they gave their promissory note payable to
the defendants, and secured by a real estate mortgage executed in their favor. On July 13,
1920, Steve Milisich assigned said notes, and the mortgages securing them, to his wife, Thora
Milisich.
These facts are alleged in the complaint, and, in connection therewith, it is alleged that the
respective sums of $14,000 and $5,000 loaned to the O'Sullivans were community property of
the defendants, and, as a result, the notes and mortgages assigned, and the moneys so secured,
were and now are community property and subject to the control of Steve Milisich, and
subject to the payment of community debts, and that the sum sued upon is a community debt;
that the assignment of the notes and mortgages therein mentioned, with knowledge of the said
fraudulent intent the part of said defendant Steve B. Milisich and with intent on her part to
assist the defendant Steve B. Milisich in his said fraudulent purposes.
It is also alleged that at the time the respondent accepted the promissory note of Milisich
for the sum of $7,800, he fraudulently represented to plaintiff that he was the owner and
holder of the O'Sullivan notes and mortgages, and that if plaintiff would advance and loan to
him said sum and take and receive his promissory note therefor, he would repay the same out
of the moneys represented by the notes of O'Sullivan and his wife, and thereby induced the
plaintiff to loan to him said sum of $7,800, as evidenced by his promissory note. It is further
alleged that plaintiff is unable to discover any other property within this state owned by said
defendant Steve B. Milisich, and is informed and believes that said defendant has no oth