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88 Nev.

1, 1 (1972)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
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Volume 88
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88 Nev. 1, 1 (1972) Memory Gardens v. Pet Ponderosa
MEMORY GARDENS OF LAS VEGAS, INC., a Nevada Corporation, Appellant, v. PET
PONDEROSA MEMORIAL GARDENS, INC., a Nevada Corporation, Respondent.
No. 6461
January 3, 1972 492 P.2d 123
Appeal from an order granting a preliminary injunction by the Eighth Judicial District
Court, Clark County; Clarence Sundean, Judge.
After defendant terminated water supply to plaintiff's pet cemetery, plaintiff commenced
lawsuit for injunctive relief and damages. The district court granted preliminary injunction,
and appeal was taken. The Supreme Court, Batjer, J., held that in light of status quo to be
maintained of growing lawn, plants and trees which could only be accomplished by restoring
water to the land and showing of irreparable injury in rendering pet cemetery barren and
devoid of grass and shrubbery and in keeping it in that condition and very definite possibility
of multiple lawsuits against plaintiff, granting preliminary injunction was proper.
Affirmed.
88 Nev. 1, 2 (1972) Memory Gardens v. Pet Ponderosa
Wiener, Goldwater & Galatz and Herbert L. Waldman, of Las Vegas, for Appellant.
John Peter Lee, of Las Vegas, for Respondent.
1. Injunction.
Where defendant leased to plaintiff approximately ten acres of land to be used as pet cemetery and by
agreement allowed plaintiff to use all available water for two hours each evening in order to develop and
maintain landscaping at pet cemetery but subsequently defendant summarily terminated water supply,
status quo was growing lawn, plants and trees which could only have been accomplished by restoring water
to the land and granting of preliminary injunction against defendant would not be improper on ground that
drying up of grass and shrubbery had been accomplished and there remained no status quo to be
maintained.
2. Injunction.
Even if act causing injury has been completed before action is instituted, a mandatory injunction may be
granted to restore the status quo.
3. Injunction.
Where defendant leased to plaintiff approximately ten acres of land to be used as pet cemetery and agreed
that plaintiff be allowed to use all available water for two hours each evening but summarily thereafter
terminated water supply to plaintiff's property, rendering pet cemetery barren and devoid of grass and
shrubbery and keeping it in that condition was an irreparable physical change and there was a very definite
possibility of multiple lawsuits against plaintiff if pet cemetery continued in barren condition and plaintiffs
showed sufficient irreparable injury so as to support preliminary injunction against defendant.
4. Injunction.
Any act which destroys or results in substantial change in property, either physically or in character in
which it has been held or enjoyed, does irreparable injury which justifies injunctive relief.
5. Injunction.
Where there was nothing in record to show any prejudice to defendant, five-month delay between
termination of water supply to plaintiff under agreement between plaintiff and defendant and filing of
action by plaintiff did not amount to laches.
6. Equity.
Alleged prejudice so that a delay will amount to laches cannot be prospective or illusory.
OPINION
By the Court, Batjer, J.:
On September 2, 1967, the appellant leased to the respondent approximately ten acres of
land to be used as a pet cemetery. This land adjoined the appellant's human cemetery. By
agreement, the appellant allowed the respondent to use all available water for two hours
each evening in order to develop and maintain the landscaping at the pet cemetery.
88 Nev. 1, 3 (1972) Memory Gardens v. Pet Ponderosa
agreement, the appellant allowed the respondent to use all available water for two hours each
evening in order to develop and maintain the landscaping at the pet cemetery.
The record indicates that over 300 pets were buried in the cemetery at the time this action
arose, and each individual who buried a pet paid an initial interment fee plus a fee of $2.50
per year for a period of up to ninety years to finance the maintenance of the property.
On February 1, 1970, the appellant summarily terminated the water supply to the
respondent's property. Within a short period of time the grass, shrubs and trees dried up and
died.
After the water supply had been cut off, the president of the respondent corporation
attempted to renegotiate the lease agreement with the appellant, but to no avail. Attempts
were also made to obtain the services of a water truck to haul water to the pet cemetery but
that proved too expensive. The respondent contacted other water users in the area in an effort
to purchase water from them but they were not able to spare any water from their wells.
On June 7, 1970, more than four months after the water supply had been terminated, the
respondent commenced this lawsuit seeking injunctive relief and damages. After a hearing on
the matter, the trial court entered its findings of fact and conclusions of law and granted a
preliminary injunction requiring the appellant to allow the respondent the use of the entire
water supply available at its cemetery for a period two hours each evening, seven days a
week. The trial court indicated that the preliminary injunction was granted because there was
no readily available source of water and no well could be drilled by the respondent without
the consent of the appellant. It also found that the condition of the pet cemetery was such at
the time of the hearing that many owners of pets interred therein could sue to enforce their
contract rights requiring upkeep of the property, and that such suits were inestimable and
could run into hundreds in number.
The appellant contends that the trial court erred in granting the preliminary injunction
because the drying up of the grass and shrubbery had been accomplished and there remained
no status quo to be maintained, and that the respondent had failed to show, at the time of the
hearing, any irreparable injury.
[Headnote 1]
Relying upon Sherman v. Clark, 4 Nev. 138 (1868) and Berryman v. Int'l. Bhd. Elec.
Workers, 82 Nev. 277, 416 P.2d 387 (1966), the appellant contends that inasmuch as the
grass and shrubbery were dead at the time of the hearing on the motion for a preliminary
injunction, the wrong, if any, had been completed, and if an injury has been completed a
mandatory injunction can have no effect for it cannot be applied correctively so as to
remove the wrong.
88 Nev. 1, 4 (1972) Memory Gardens v. Pet Ponderosa
motion for a preliminary injunction, the wrong, if any, had been completed, and if an injury
has been completed a mandatory injunction can have no effect for it cannot be applied
correctively so as to remove the wrong. The law enunciated in those cases is inapposite for
here the injury was continuing because neither grass nor shrubbery will grow as long as water
is withheld. Furthermore, the respondent would have been subject to a multiplicity of lawsuits
by the owners of pets buried in its cemetery as long as the drought continued.
[Headnote 2]
Status quo in this case was the growing lawn, plants and trees and that could only have
been accomplished by restoring the water to the land. Unless the water was restored to the
land it would lie barren and the injury to the respondent and its lessees would continue. Even
if the act causing the injury has been completed before the action is instituted, a mandatory
injunction may be granted to restore the status quo. City of Reno v. Matley, 79 Nev. 49, 378
P.2d 256 (1963). Injunctions of this type have frequently been employed in cases involving
irrigation and water rights. Grosfield v. Johnson, 39 P.2d 660 (Mont. 1935). See also Sokel v.
Nickoli, 79 N.W.2d 485 (Mich. 1956) (garage had already been built when suit instituted);
Van De Carr v. Schloss, 101 N.Y.S.2d 48 (App. Div. 1950) (erection of boathouse); Harris v.
Pierce, 73 So.2d 330 (La.Ct.App. 1954) (erection of building); Texas Co. v. Watkins, 82
S.W.2d 1079 (Tex.Ct.Civ.App. 1935); Baltimore & P.S. Co. v. Ministers, Etc., Starr
M.P.Church, 130 A. 46 (Md.Ct.App. 1925).
[Headnote 3]
The appellant's contention that the respondent failed to show irreparable injury is also
without merit. Here the trial court found the irreparable injury to be the unavailability of other
sources of water, a continuing barren landscape, and the possibility of multitudinous
litigation.
[Headnote 4]
Any act which destroys or results in a substantial change in property, either physically or
in the character in which it has been held or enjoyed, does irreparable injury which justifies
injunctive relief. See Lackaff v. Bogue, 62 N.W.2d 889 (Neb. 1954); Viestenz v. Arthur Tp.,
54 N.W.2d 572 (N.D. 1952); Armbruster v. Stanton-Pilger Drainage District, 100 N.W.2d
781 (Neb. 1960); Faught v. Platte Valley Public Power & Irr. Dist., 25 N.W.2d 889 (Neb.
1947); Hood v. Foster, 13 So.2d 652 {Miss.
88 Nev. 1, 5 (1972) Memory Gardens v. Pet Ponderosa
So.2d 652 (Miss. 1943); and Roseberg v. American Hotel & Garden Co., 121 A. 9 (N.J.Ch.
1923). Rendering the pet cemetery barren and devoid of grass and shrubbery and keeping it in
that condition was an irreparable physical change.
The avoidance of multiple lawsuits is also a justifiable basis for a mandatory injunction.
See Home Finance Co. v. Balcom, 61 Nev. 301, 127 P.2d 389 (1942). Here there was a very
definite possibility of multiple lawsuits against the respondent if the pet cemetery continued
in a barren condition.
[Headnotes 5, 6]
The appellant also claims that the respondent was guilty of laches because of the
five-month delay between termination of the water supply and filing of the action. Such a
delay not causing actual prejudice does not amount to laches. The alleged prejudice cannot be
prospective or illusory. Rheinberger v. Security Life Ins. Co. of America, 51 F.Supp. 188
(N.D.Ill. 1943); McCavic v. DeLuca, 46 N.W.2d 873 (Minn. 1951); Sullivan v. Balestrieri,
298 P.2d 688 (Cal.App. 1956); and Scioscia v. Iovieno, 63 N.E.2d 898 (Mass. 1945). There is
nothing in this record to show any prejudice whatsoever to the appellant, nor do we find any
specific allegation of prejudice by the appellant. As a matter of fact, it appears that the delay
was to appellant's benefit for during that period of time it had an extra volume of water to use
on its cemetery.
The order of the district court is affirmed.
Zenoff, C. J., and Mowbray, Thompson, and Gunderson, JJ., concur.
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88 Nev. 5, 5 (1972) Savini Constr. v. A & K Earthmovers
SAVINI CONSTRUCTION COMPANY, a Co-Partnership, Appellant, v. A & K
EARTHMOVERS, INC., a Nevada Corporation, Respondent.
No. 6572
January 3, 1972 492 P.2d 125
Appeal from a judgment of the First Judicial District Court, Churchill County; Richard L.
Waters, Jr., Judge.
Action by prime contractor for state highway construction project against subcontractor for
breach of contract. The district court entered judgment for defendant, and plaintiff appealed.
The Supreme Court held that evidence supported finding that defendant had fully
performed pursuant to oral subcontract, and that substantial evidence test is particularly
applicable where there is conflicting evidence and credibility of witnesses is in issue.
88 Nev. 5, 6 (1972) Savini Constr. v. A & K Earthmovers
finding that defendant had fully performed pursuant to oral subcontract, and that substantial
evidence test is particularly applicable where there is conflicting evidence and credibility of
witnesses is in issue.
Affirmed.
Seymour H. Patt, of Reno, for Appellant.
Diehl, Recanzone, Evans & Smart, of Fallon, for Respondent.
1. Contracts.
Evidence, in action by prime contractor for state highway construction project against subcontractor for
breach of contract, supported finding that subcontractor had fully performed pursuant to oral subcontract
for moving earth from cut in proposed roadway to fills at bridge abutment.
2. Appeal and Error.
Substantial evidence test is particularly applicable where there is conflicting evidence and credibility of
witnesses is in issue.
3. Witnesses.
In absence of showing that resident state engineer had any personal knowledge of provisions of oral
subcontract, any testimony by him regarding terms of subcontract would have been conjecture and
therefore not admissible in action by prime contractor for state highway construction project against
subcontractor for breach of contract.
OPINION
Per Curiam:
The appellant was the prime contractor on the Pinion Hills Bridge, a state highway
construction project. The respondent submitted a bid offer of 35 cents a yard for moving
certain earth on the project from a cut in the proposed roadway to fills at the bridge abutments
and was awarded a subcontract at that price by the appellant. No written contract was ever
executed, but the parties orally agreed concerning the work to be performed under the
subcontract. On November 13, 1969, the respondent left the job claiming that the earth fills at
the bridge abutments had been completed and the contract had been fully performed. The
appellant claims that the roadway excavation had not been completed by the respondent
according to the master contract or the subcontract, and that it was required to do additional
excavation work to complete the project.
Thereafter the appellant filed a complaint against the respondent to recover $3,146.41 that
it alleged it had been required to spend to complete the excavation work left unfinished by
the respondent.
88 Nev. 5, 7 (1972) Savini Constr. v. A & K Earthmovers
required to spend to complete the excavation work left unfinished by the respondent. After a
trial on the merits, the district court found that the appellant was not entitled to recover on its
complaint because the respondent had fully performed pursuant to the oral subcontract. In this
appeal the appellant contends that there was insufficient evidence to support that finding.
[Headnotes 1, 2]
We have reviewed the record and find substantial evidence to support the trial court's
judgment. Kenneth Hiatt, general manager for the respondent, testified that all of the roadway
excavation agreed to under the subcontract had been completed by the respondent at the time
it left the project. The trial judge chose to believe Hiatt's testimony. There is no showing by
the appellant that the judgment of the trial court was clearly erroneous or was not based upon
substantial evidence. Brandon v. Travitsky, 86 Nev. 613, 472 P.2d 353 (1970); Utley v.
Airoso, 86 Nev. 116, 464 P.2d 778 (1970). The substantial evidence test is particularly
applicable here where there is conflicting evidence and the credibility of the witnesses is in
issue. Douglas Spencer v. Las Vegas Sun, 84 Nev. 279, 439 P.2d 473 (1968); Briggs v.
Zamalloa, 83 Nev. 400, 432 P.2d 672 (1967).
[Headnote 3]
It is also asserted by the appellant that the trial court erred in refusing to allow the
testimony of the resident state engineer regarding the provisions of the subcontract. After a
timely objection, the trial court correctly ruled that inasmuch as there had been no showing
that the witness had any personal knowledge of the provisions of the subcontract, any
testimony by him would be merely conjecture and therefore inadmissible. See Deakyne v.
Lewes Anglers, Inc., 204 F.Supp. 415 (D.Del. 1962).
Affirmed.
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88 Nev. 7, 7 (1972) Johnston, Inc. v. Weinstein
JOHNSTON, INC. a Texas Corporation, Appellant, v. JACK WEINSTEIN and SANDRA
BANKSTON, dba PLAYMATES BY SAUNDRA, INC., Respondents.
No. 6559
January 11, 1972 492 P.2d 616
Appeal from order setting aside default judgment. Eighth Judicial District Court; William
R. Morse, Judge.
88 Nev. 7, 8 (1972) Johnston, Inc. v. Weinstein
Action for money due from sale of merchandise and for punitive damages as result of
allegedly fraudulent representations. The Supreme Court held that where defendants' motion
to set aside default judgment, and affidavit and supporting document attached thereto,
containing factual assertions to show excusable neglect and what would be a meritorious
defense if proven, in that their business had been sold prior to time plaintiff's suit was filed,
supported defendants' assertions that debt was not theirs, setting aside default judgment was
not an abuse of discretion.
Affirmed.
[Rehearing denied February 23, 1972]
Emilie N. Wanderer, of Las Vegas, for Appellant.
James L. Buchanan II, of Las Vegas, for Respondents.
1. Appeal and Error.
On appeal from order setting aside default judgment, issue is whether setting aside default was an abuse
of discretion, and in absence of clear showing of abuse, action in setting aside default will be affirmed.
2. Judgment.
Where defendants' motion to set aside default judgment, and affidavit and supporting document attached
thereto, containing factual assertions to show excusable neglect and what would be a meritorious defense if
proven, in that their business had been sold prior to time plaintiff's suit for money due from sale of
merchandise was filed, supported defendants' assertions that debt was not theirs, setting aside default
judgment was not an abuse of discretion.
OPINION
Per Curiam:
The appellant filed suit against the respondents for money due from the sale of
merchandise, and for punitive damages as a result of allegedly fraudulent representations.
After service of process upon the respondents and their failure to timely answer the appellant
took a default, and judgment was entered against the respondents on July 29, 1970.
On November 20, 1970, the respondents moved to set aside the judgment. Attached to
their motion was an affidavit containing factual assertions to show excusable neglect and
what would be a meritorious defense if proven. Also attached to the motion was a document
showing that the business of the respondents had been sold prior to the time the appellant's
suit was filed, in support of the assertions of the respondents that the debt was not
theirs.
88 Nev. 7, 9 (1972) Johnston, Inc. v. Weinstein
suit was filed, in support of the assertions of the respondents that the debt was not theirs.
After the appellant's response in opposition to the motion to set aside judgment was filed,
and the parties were heard, the district court entered its order setting aside the judgment and
giving the respondents a time within which to plead further. It is from that order setting aside
the judgment that this appeal is taken.
[Headnote 1]
The sole appellate issue in these circumstances is whether or not the district court abused
its discretion in setting aside the default judgment. In the absence of a clear showing of abuse,
the action of the court below must be affirmed. Hotel Last Frontier v. Frontier Properties,
Inc., 79 Nev. 150, 380 P.2d 293 (1963); Minton v. Roliff, 86 Nev. 478, 471 P.2d 209 (1970).
[Headnote 2]
Upon review of the record on appeal we find that the motion of the respondents to set
aside the default judgment, and the affidavit and supporting document attached thereto, set
forth sufficient facts upon which the district judge could rule that excusable neglect had been
shown, and that they contain allegations which, if proven, would tend to establish a defense to
all or part of the asserted claim for relief. Thus we cannot find such a clear showing of abuse
of discretion as to warrant a reversal of the order setting aside the judgment. Howe v.
Coldren, 4 Nev. 662 (1868); Morris v. Morris, 86 Nev. 45, 464 P.2d 471 (1970).
Affirmed.
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88 Nev. 9, 9 (1972) Collins v. State
VARNER RAY COLLINS, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 6575
January 12, 1972 492 P.2d 991
Appeal from judgment of conviction of robbery by Eighth Judicial District Court, Clark
County; Clarence Sundean, Judge.
The Supreme Court, Mowbray, J., held, inter alia, that arrest at time when there were two
warrants outstanding for such arrest was lawful, and evidence obtained as result thereof was
admissible, though at the time of his arrest the warrants were not in the possession of the
arresting officers, where such officers knew the existence of the warrants.
88 Nev. 9, 10 (1972) Collins v. State
was admissible, though at the time of his arrest the warrants were not in the possession of the
arresting officers, where such officers knew the existence of the warrants.
Affirmed.
Robert G. Legakes, Public Defender, and John C. Ohrenschall, Deputy Public Defender,
Clark County, for Appellant.
Robert List, Attorney General; Roy A. Woofter, District Attorney, and Charles L. Garner,
Chief Deputy of Appeals, Clark County, for Respondent.
1. Arrest; Criminal Law.
Arrest at time when there were two warrants outstanding for such arrest was lawful, and evidence
obtained as result thereof was admissible, though at the time of the arrest the warrants were not in the
possession of the arresting officers, where such officers knew of the existence of the warrants. NRS
171.122, subd, 1.
2. Criminal Law.
Amendment of information immediately prior to trial, at suggestion of the court, to correct misspelling of
defendant's name was not prejudicial. NRS 173.095.
3. Jury.
Absence of any member of defendant's race on petit jury was not error where there was no systematic
exclusion of members of a race or class.
4. Criminal Law.
Fact that witness testified that she believed defendant was the robber but that she was not sure went to the
weight of her testimony, not to its admissibility.
5. Witnesses.
In robbery prosecution, no abuse of discretion was shown in refusal to permit defendant, after the State
had rested its case, to recall officer for purpose of cross-examining him on method used in lifting
fingerprints.
6. Criminal Law.
There was no error in failure to grant defendant's motion for continuance to obtain legal authorities to
challenge the lawfulness of his arrest.
OPINION
By the Court, Mowbray, J.:
Appellant Varner Ray Collins was tried to a jury and convicted of robbery. He has
appealed from his judgment of conviction, and he has assigned numerous assignments of
error, which we reject as meritless and, therefore, affirm the jury's verdict.
88 Nev. 9, 11 (1972) Collins v. State
1. The Facts.
A lone gunman on July 14, 1969, held up the barmaid, Lou Ella Beavers, in the Huddle
Bar located in Las Vegas. The gunman had a beer, minutes before the robbery. He then
produced his weapon and demanded at gunpoint from Lou Ella the contents of the cash
register, which she promptly handed to him. The robber left the premises. Lou Ella
telephoned the police. The Clark County Sheriff's office responded to the call within minutes.
The Sheriff's office had received an anonymous phone call that a late-model, light green
Cougar automobile was seen in the vicinity of the crime. This information was radioed to
Deputy Sheriff Alfred B. Leavitt while he was en route to the crime scene. When the sheriff's
deputies arrived at the Huddle Bar, Lou Ella gave them a description of the robber. Deputy
Sheriff Robert Roderick, in processing the scene of the crime, lifted latent fingerprints from
the beer bottle and glass used by the robber.
The following day, July 15, the sheriff's deputies went to Collins's residence to arrest him
on two pending felony charges (robbery and unlawful possession of narcotics) that had no
connection with the Huddle Bar robbery. As the deputies approached Collins's residence, they
noted in the driveway a vehicle that matched the description of the car that was reported in
the vicinity of the Huddle Bar at the time of the robbery. Upon confronting Collins, the
deputies also observed that his physical appearance matched Lou Ella's description of the
robber. The deputies then arrested Collins and removed him to the county jail, where he was
fingerprinted. The print from appellant's left index finger matched one of the prints taken by
Deputy Roderick at the scene of the crime. The next day, July 16, the officers, upon their
affidavit, obtained a warrant to search Collins's residence. They did so at once and found a
weapon resembling the one used in the robbery. Collins was thereupon charged by criminal
complaint with robbery and later, upon trial, was found guilty thereof.
2. The Arrest and the Search.
A. The Arrest.
[Headnote 1]
First, Collins claims that his arrest was unlawful. His contention is untenable. At the time
he was taken into custody, there were two outstanding warrants for Collins's arrest. It is true
that at the time of the arrest the warrants were not in the deputies' possession, but the deputies
knew of the existence of the warrants.
1
NRS 171.122, subsection 1, is controlling and
dispositive of the arrest issue in this case.

____________________

1
Collins has not attacked the validity of either warrant.
88 Nev. 9, 12 (1972) Collins v. State
NRS 171.122, subsection 1, is controlling and dispositive of the arrest issue in this case. It
provides:
The warrant shall be executed by the arrest of the defendant. The officer need not have
the warrant in his possession at the time of the arrest, but upon request he shall show the
warrant to the defendant as soon as possible. If the officer does not have a warrant in his
possession at the time of the arrest, he shall then inform the defendant of his intention to
arrest him, of the offense charged, the authority to make it and of the fact that a warrant has or
has not been issued. The defendant must not be subjected to any more restraint than is
necessary for his arrest and detention, but if the defendant either flees or forcibly resists, the
officer may use all necessary means to effect the arrest.
B. The Search.
The deputies, in an effort to find the weapon used in the robbery, searched Collins's
residence after his arrest. They first obtained a warrant to do so, based on their affidavit that
Collins's fingerprint matched one found at the scene of the crime. They found a weapon
similar to the one used in the robbery, and it was introduced as evidence during the trial.
Collins challenges the constitutionality of the use of the weapon as evidence, on the ground
that the search was unlawful because his arrest that led to the taking of his fingerprints was
unlawful. Since we have ruled otherwise, i.e., that his arrest was lawful, Collins's contention
on this issue must fail. The weapon was properly received in evidence.
3. The Amendment of the Information.
[Headnote 2]
Immediately prior to trial, the learned trial judge noticed that Collins's name was
misspelled in the information.
2
The judge suggested that the error be corrected on motion by
the district attorney's office. This was done, and Collins claims that it resulted to his
prejudice. NRS 173.095 provides:
The court may permit an information to be amended at any time before verdict or finding
if no additional or different offense is charged and if substantial rights of the defendant are
not prejudiced.
There was no prejudice at all to Collins in this case, and we find this assignment of error
without merit. See Harris v. State, 86 Nev. 197, 466 P.2d 850 (1970).
____________________

2
The trial judge knew Collins and his true name.
88 Nev. 9, 13 (1972) Collins v. State
4. The Composition of the Jury.
[Headnote 3]
Collins next complains that there was no member of his race on the jury that convicted
him and therefore his conviction must be overturned. This may happen in a case. The absence
of members of one's race on a petit jury may occur. If so, it is not error. It is the systematic
exclusion of members of a race or class that spoils the makeup of the jury. Since the record is
void of any such exclusion in this case, the error complained of is meritless. Swain v.
Alabama, 380 U.S. 202, 203-204 (1965); Martin v. Texas, 200 U.S. 316, 320-321 (1906).
5. Lou Ella's Testimony.
[Headnote 4]
Collins complains that, since Lou Ella could not positively identify him as the robber, the
trial judge should have excluded her testimony. Lou Ella testified that she believed Collins
was the robber but that she was not sure. Such an objection goes to the weight of the
testimony, but not to its admissibility. As the court said in People v. Houser, 193 P.2d 937,
941 (Cal. App. 1948):
In order to sustain a conviction it is not necessary that the identification of the defendant
as the perpetrator of the crime be made positively or in a manner free from inconsistencies. It
is the function of the jury to pass upon the strength or weakness of the identification and the
uncertainness of the witness in giving her testimony. [Citation omitted.] See also State v.
Brown, 456 P.2d 368, 370 (Ariz. 1969).
Lou Ella's testimony was properly received and presented to the jury.
6. The Recall of Deputy Roderick.
[Headnote 5]
After the State had rested its case, counsel for Collins sought to recall Deputy Roderick to
the stand for the purpose of cross-examining him on the method he used in lifting the
fingerprints from the beer bottle and glass. Counsel was not permitted to do so, and he asserts
that the trial judge committed reversible error in denying his request. We do not agree. As this
court recently ruled in Casey v. State, 87 Nev. 413, 416, 488 P.2d 546, 548 (1971).
. . . An accused may be permitted to recall a witness for cross-examination after the state
has closed its case. . . . It is, however, for the discretion of the court to disallow such
recross-examination when the party seeking it has had abundant opportunity to draw out
his case.' 3 Wharton's Crim. Ev., 900 {l2th Ed.
88 Nev. 9, 14 (1972) Collins v. State
recross-examination when the party seeking it has had abundant opportunity to draw out his
case.' 3 Wharton's Crim. Ev., 900 (l2th Ed. 1955). On the record in this case, we could not
find that the lower court abused its discretion, even had it refused any additional
cross-examination whatever.
[Headnote 6]
The remaining assignments of error, namely, that the court failed to grant Collins's motion
for a continuance to obtain legal authorities to challenge the lawfulness of his arrest and that
the trial judge denied him a fair trial, are equally unfounded.
The judgment of conviction is affirmed.
Zenoff, C. J., and Batjer, Thompson, and Gunderson, JJ., concur.
____________
88 Nev. 14, 14 (1972) Downey v. Sheriff
JOAN ANN DOWNEY, Appellant, v. SHERIFF,
CLARK COUNTY, NEVADA, Respondent.
No. 6729
January 21, 1972 492 P.2d 989
Appeal from order denying pre-trial petition for writ of habeas corpus. Eighth Judicial
District Court, Clark County; Howard W. Babcock, Judge.
The Supreme Court held that although affidavit by means of which state secured
continuance of a scheduled preliminary examination contained inaccuracies and prosecutor
had been guilty of lack of diligence in preparation of affidavit, accused was not entitled to
writ of habeas corpus discharging her from restraint and prohibiting further prosecution.
Affirmed.
Robert G. Legakes, Public Defender, and Thomas D. Beatty, Deputy Public Defender,
Clark County, for Appellant.
Robert List, Attorney General, Roy A. Woofter, District Attorney, and Charles L. Garner,
Chief Deputy of Appeals, Clark County, for Respondent.
Habeas Corpus.
Although affidavit by means of which state secured a scheduled preliminary examination contained
inaccuracies and prosecutor had been guilty of lack of diligence in preparation of affidavit,
accused was not entitled to writ of habeas corpus discharging her from restraint and
prohibiting further prosecution.
88 Nev. 14, 15 (1972) Downey v. Sheriff
had been guilty of lack of diligence in preparation of affidavit, accused was not entitled to writ of habeas
corpus discharging her from restraint and prohibiting further prosecution. DCR 21.
OPINION
Per Curiam:
The sole issue presented by this appeal is whether or not the appellant is entitled to a writ
of habeas corpus discharging her from restraint and prohibiting further prosecution when the
state secures a continuance of a scheduled preliminary examination by means of an affidavit
1
containing inaccurate statements of fact.
2
Upon the strength of the state's affidavit, the
magistrate granted a two week continuance. The appellant petitioned for a writ of habeas
corpus, which was denied, and this appeal followed.
The issue thus presented must be answered in the negative. While the prosecutor was
guilty of a lack of diligence in the preparation of the affidavit, this is not a case where a
continuance was sought without the required affidavit. Cf. Hill v. Sheriff, supra, and Stockton
v. Sheriff, 87 Nev. 94, 482 P.2d 285 (1971). Neither is it a case where the prosecutor willfully
disregarded important procedural rules. Cf. Maes v. Sheriff, 86 Nev. 317, 468 P.2d 332
(1970). Nor is this a case where the prosecutor exhibited a conscious indifference to rules of
procedure affecting the accused's rights. Cf. State v. Austin, 87 Nev. 81, 482 P.2d 284 (1971).
While the affidavit contained inaccuracies, the record does not reveal that either the
prosecutor or counsel for the appellant were aware of them at the time the continuance was
sought. Because both the motion for a continuance and the supporting affidavit appeared
proper on their face, the magistrate was entitled to rely on them. Consequently, the two week
continuance which was granted upon the strength of the motion and supporting affidavit was
justified, and the district court did not err in denying habeas relief.
Affirmed.
____________________

1
As required by DCR 21 and Hill v. Sheriff, 85 Nev. 234, 452 P.2d 918 (1969).

2
While no contention is made that the state intentionally set forth false statements or that the affidavit was
made in bad faith, it is conceded that the content of the affidavit was inaccurate due to a failure of the prosecutor
to examine all sources of information available to him.
____________
88 Nev. 16, 16 (1972) Las Vegas Ins. Adjusters v. Page
LAS VEGAS INSURANCE ADJUSTERS, a Nevada Corporation, Appellant, v. LEHMANN
M. PAGE, Respondent.
No. 6615
January 24, 1972 492 P.2d 616
Appeal from order of Eighth Judicial District Court, Clark County, granting summary
judgment; Joseph S. Pavlikowski, Judge.
Affirmed.
John Marshall, of Las Vegas, for Appellant.
Denton & Monsey, of Las Vegas, for Respondent.
OPINION
Per Curiam:
We affirm the summary judgment entered below since there is no genuine issue as to any
material fact. NRCP 56(c). The appellant's claim for money from the respondent was
compromised and settled by written agreement between them. The appellant's effort to avoid
the binding effect of that agreement is denied by the record which shows conclusively that the
agreement was entered into with full knowledge of all relevant facts.
Affirmed.
____________
88 Nev. 16, 16 (1972) Jasper v. Sheriff
MARJORIE JASPER, Appellant, v. SHERIFF, CLARK
COUNTY, NEVADA, Respondent.
No. 6694
January 24, 1972 492 P.2d 1305
Appeal from an order denying a pre-trial petition for a writ of habeas corpus. Eighth
Judicial District Court, Clark County; Howard W. Babcock, Judge.
The district court denied petition, and petitioner appealed. The Supreme Court held that
finding of magistrate that affidavit in support of state's motion for continuance failed to show
exercise of due diligence to secure attendance of an absent witness did not operate to preclude
magistrate from granting a continuance and was not a basis for obtaining habeas corpus relief
on ground that magistrate was without power to order a continuance once finding was
made, where magistrate interrogated prosecutor, though not on oath, and ruled on oral
representations made by him that state had complied with requirements of rule; however,
in the future, magistrate must take supplementary testimony from prosecutor by means
of sworn testimony.
88 Nev. 16, 17 (1972) Jasper v. Sheriff
a continuance once finding was made, where magistrate interrogated prosecutor, though not
on oath, and ruled on oral representations made by him that state had complied with
requirements of rule; however, in the future, magistrate must take supplementary testimony
from prosecutor by means of sworn testimony.
Affirmed.
Robert G. Legakes, Public Defender, and Morgan D. Harris, Deputy Public Defender,
Clark County, for Appellant.
Robert List, Attorney General, Roy A. Woofter, District Attorney, and Charles L. Garner,
Chief Deputy of Appeals, Clark County, for Respondent.
1. Criminal Law.
Where preliminary examination was scheduled for April 29, 1971, but on April 28, 1971 prosecutor filed
a motion for a continuance, supported by an affidavit, in which it was alleged that one of state's witnesses
would be out of town until May 15, 1971, and would not be able to testify, where, based on oral
representations made by prosecutor in response to magistrate's inquiry a continuance was ordered until
May 17, 1971, and where record did not reflect granting of any prior continuances, and no contention was
made below, or in appellate proceedings, that petitioner had been denied her right to a preliminary
examination within fifteen days, fifteen day rule was waived. NRS 200.070.
2. Habeas Corpus.
Finding of magistrate that affidavit in support of state's motion for continuance failed to show exercise of
due diligence to secure attendance of an absent witness did not operate to preclude magistrate from
granting a continuance and was not a basis for obtaining habeas corpus relief on ground that magistrate was
without power to order a continuance once finding was made, where magistrate interrogated prosecutor,
though not on oath, and ruled on oral representations made by him that state had complied with
requirements of rule. DCR 21.
3. Criminal Law.
Where, in determining existence of good cause, magistrate supplements information obtained from
affidavit in support of state's motion for continuance by oral representations made by prosecutor in
response to magistrate's inquiry, magistrate must in future take supplementary testimony from prosecutor
by means of sworn testimony. DCR 21.
OPINION
Per Curiam:
By criminal complaint the appellant was charged with two counts of involuntary
manslaughter under NRS 200.070, in that on November 17, 1970, she operated a motor
vehicle while under the influence of intoxicating liquor and failed to stop in obedience to a
traffic control device, colliding with another vehicle and killing two of its occupants.
88 Nev. 16, 18 (1972) Jasper v. Sheriff
that on November 17, 1970, she operated a motor vehicle while under the influence of
intoxicating liquor and failed to stop in obedience to a traffic control device, colliding with
another vehicle and killing two of its occupants.
[Headnote 1]
A preliminary examination was scheduled for April 29, 1971.
1
On April 28, 1971, the
prosecutor filed a motion for a continuance, supported by an affidavit,
2
in which it was
alleged that one of the state's witnesses was out of town until May 15, 1971, and not able to
testify. Neither the motion nor the supporting affidavit have been made a part of the record on
appeal, but from the transcript of the preliminary examination it is evident that no attempt had
been made to secure the attendance of the absent witness until the day before, when a
subpoena was issued but not served. The prosecutor, in response to the magistrate's inquiry,
stated that the reason for the delay in attempting to secure the attendance of the witness was
that the coroner's office did not supply him with the name of the witness
3
until the day
before the scheduled preliminary examination, although at least two prior requests were made
to the coroner's office for the information.
The magistrate denied the state's motion for a continuance upon his finding that the
supporting affidavit failed to show due diligence. However, based upon the oral
representations made by the prosecutor in response to the magistrate's inquiry, a continuance
was ordered until May 17, 1971. The appellant petitioned for a writ of habeas corpus on the
grounds that the magistrate was without power to order a continuance after a finding that
there was not a showing of due diligence in the supporting affidavit. The district court denied
the writ and the appellant appealed.
Without the benefit of the affidavit as part of the record on appeal we are not able to
determine whether or not it met the requirements of DCR 21. The magistrate ruled that it did
not, in that it failed to show the exercise of due diligence to secure the attendance of the
absent witness.
____________________

1
Since the record does not reflect the granting of any prior continuances, and no contention was made below,
or in these appellate proceedings, that the appellant had been denied her right to a preliminary examination
within fifteen days, it is apparent that there had been a waiver of the fifteen day rule under NRS 171.196(2).

2
As required by DCR 21 and Hill v. Sheriff, 85 Nev. 234, 452 p.2d 918 (1969).

3
The absent witness was a physician, apparently the only person available who could testify as to the cause of
death of the accident victims.
88 Nev. 16, 19 (1972) Jasper v. Sheriff
the attendance of the absent witness. However, the magistrate interrogated the prosecutor and
ruled that, upon the oral representations made by him, the state had complied with the
requirements of DCR 21.
While the prosecutor was not sworn by the magistrate, the procedure used by the
magistrate to ascertain facts in addition to those supplied by the affidavit was substantially as
suggested by our opinion in Bustos v. Sheriff, 87 Nev. 622, 491 P.2d 1279 (1971). There we
said . . . [I]t is reasonably clear that the prosecutor could have shown good cause had the
magistrate required his sworn testimony in lieu of affidavit, and since this method of showing
cause has not heretofore been suggested we shall not fault the magistrate for granting a
continuance in this instance. . . .
[Headnotes 2, 3]
The thrust of the habeas petition below, and in these appellate proceedings, was not that
the prosecutor's oral representations failed to show good cause, but simply that upon a failure
of the affidavit to show good cause the magistrate was without power to grant a continuance.
We reject that contention and we approve the procedure used by the magistrate to supplement
the deficiencies of the affidavit.
4
Consequently, upon the record before us we cannot fault
either the magistrate's order for a short continuance, or the district court's denial of habeas.
Affirmed.
____________________

4
Hereafter, however, the magistrate must take supplementary testimony from the prosecutor by means of
sworn testimony.
____________
88 Nev. 19, 19 (1972) Moss v. State
LARRY MAURICE MOSS, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 6590
January 25, 1972 492 P.2d 1307
Appeal from judgments of conviction of the Second Judicial District Court, Washoe
County; Llewellyn A. Young, Judge.
The district court found defendant guilty of obtaining money by false pretenses and of
attempting to obtain money by false pretenses, and he appealed. The Supreme Court,
Thompson, J., held that the Sixth Amendment was not violated by on-the-scene identification
of defendant by 88-year-old widow (from whom defendant had on previous day obtained
money by false pretenses and who, when he was met by a police officer at victim's door,
was again attempting to obtain money by false pretenses) immediately following
apprehension of defendant by the police.
88 Nev. 19, 20 (1972) Moss v. State
pretenses and who, when he was met by a police officer at victim's door, was again
attempting to obtain money by false pretenses) immediately following apprehension of
defendant by the police.
Affirmed.
James F. Sloan, of Reno, for Appellant.
Robert List, Attorney General, Robert E. Rose, District Attorney, and Kathleen M. Wall,
Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Sixth Amendment was not violated by on-the-scene identification of defendant by 88-year-old widow
(from whom defendant had on previous day obtained money by false pretenses and who, when he was met
by a police officer at victim's door, was again attempting to obtain money by false pretenses) immediately
following the apprehension of defendant by the police. NRS 205.380, 208.070; U.S.C.A.
Const.Amend. 6.
2. Criminal Law.
Although a pretrial photographic identification of defendant by two bank employees should not have been
conducted in the absence of his counsel, the in-court identification testimony by the bank employees was
properly received, where each employee testified explicitly that his in-court identification was wholly
independent of the photographic identification and was based upon observations of the defendant when he
was in the bank.
3. Criminal Law.
Where counsel for defendant, charged with obtaining money by false pretenses and with attempting to
obtain money by false pretenses, failed to object at trial to several telephone conversations which the victim
had had with Mr. Allen and which linked defendant with the acts constituting the crimes with which he
was charged, defense counsel could not on appeal question the admissibility of testimony relating to those
conversations.
4. Criminal Law.
Prosecutor's comment, during summation to the jury, that the State's evidence was uncontradicted did not
infringe upon defendant's Fifth Amendment privilege against self-incrimination. U.S.C.A.Const. Amend. 5.
OPINION
By the Court, Thompson, J.:
A jury convicted Moss of obtaining money by false pretenses [NRS 205.380], and
attempting to obtain money by false pretenses [NRS 208.070]. We affirm the convictions
since none of the assigned errors has merit.
88 Nev. 19, 21 (1972) Moss v. State
An 88-year-old widow, Alma Clarke, received a telephone call from a Mr. Allen who
represented himself to be a federal bank inspector. He informed Mrs. Clarke that someone at
the bank was tampering with her account and asked her to withdraw $4,800 to facilitate the
culprit's capture. She did so. Upon returning to her home the telephone rang. The call was
from Mr. Allen who said that his deputy Mr. Baggs would be by shortly to pick up the
money. Mr. Baggs soon arrived, received the money from Mrs. Clarke and departed. Mrs.
Clarke became suspicious, telephoned the bank, and was instructed to contact the police. The
officer requested her to let him know should she receive another call from Allen.
The next day Allen called and informed Mrs. Clarke that her money had been
redeposited, but that another withdrawal was necessary in order to catch the culprit. She
notified the police and her home was placed under surveillance. A sham transaction was
arranged with the bank whereby Mrs. Clarke would go through the motions of withdrawing
$4,500. The police were at her home when she returned from the bank. Within an hour they
observed an automobile drive in to the alley near her home. Two men were in the car. One of
them exited from the car and walked to the front door of Mrs. Clarke's home where he was
confronted by a police officer. Mrs. Clarke came to the door and identified that man, the
appellant here, as the man to whom she had delivered $4,800 the day before using the name
of Baggs. He was thereupon arrested and advised of his rights.
It is apparent that there exists substantial evidence to support each conviction and the
assigned error on that basis is dismissed out of hand. We turn briefly to consider the other
claimed errors.
[Headnote 1]
1. The on-the-scene identification of appellant by the victim, in the absence of counsel, is
challenged as violative of the doctrine announced in United States v. Wade, 388 U.S. 218
(1967), and its companion cases of Gilbert v. California, 388 U.S. 263 (1967), and Stovall v.
Denno, 388 U.S. 293 (1967). In Wade, the accused was exhibited to witnesses before trial at a
post-indictment lineup conducted for identification purposes without notice to and in the
absence of the accused's appointed counsel. In these circumstances the court ruled that the
lineup was a critical stage of the criminal proceeding and the accused had the right to the
assistance of counsel. In Gilbert, the Supreme Court applied the doctrine of Wade to state
court trials. And in Stovall, the court denied retroactivity to Wade and ruled that it would
only be applied to confrontations occurring after June 12, 1967.
88 Nev. 19, 22 (1972) Moss v. State
and ruled that it would only be applied to confrontations occurring after June 12, 1967. None
of those cases involved an on-the-scene identification of the suspect by the victim. In Nevada
we have extended the Wade doctrine to embrace a lineup which occurs before the filing of
formal charges if the prosecutorial process has shifted from the investigatory to the
accusatory stage and has focused upon the accused. Thompson v. State, 85 Nev. 134, 138,
451 P.2d 704 (1969); Lloyd v. State, 85 Nev. 576, 460 P.2d 111 (1969).
We have not, however, had occasion to consider an on-the-scene identification of the
suspect by the victim.
1
We hold that the Sixth Amendment is not violated when the
identification by the victim immediately follows apprehension of the suspect by the police.
Here, the appellant was attempting to commit a criminal act when apprehended and
immediately identified. The proximity of the time of the commission of the crime to the time
of confrontation of the appellant and victim was almost instantaneous. Cf. State v. Meeks,
469 P.2d 302 (Kan. 1970); State v. Jordan, 274 A.2d 605 (Sup.Ct.N.J. 1971). The
confrontation here was neither a lineup within the contemplation of Wade, nor a showup
within the intendment of Stovall. Nor can it realistically be said to be so unnecessarily
suggestive and conducive to irreparable mistaken identification as to deny due process.
Stovall v. Denno, supra; McCray v. State, 85 Nev. 597, 460 P.2d 160 (1969).
[Headnote 2]
2. Two employees of the bank made a pretrial photographic identification of the appellant
in the absence of his counsel, and later identified him in court. Each testified explicitly that
his in-court identification was wholly independent of the photographic identification, and was
based upon observation of the appellant when he was in the bank. The court, at the
conclusion of a hearing in the absence of the jury, found that the identification of each
witness had a solid origin independent of the photographs and that such independent origin
was established by clear and convincing evidence. Although the photographic lineup should
not have been conducted in the absence of counsel, Thompson v. State, 85 Nev. 134, 451
P.2d 704 (1969), the in-court identification testimony was properly received.
____________________

1
See: Riley v. State, 86 Nev. 244, 468 P.2d 11 (1970); Tucker v. State, 86 Nev. 354, 469 P.2d 62 (1970);
McCray v. State, 85 Nev. 597, 460 P.2d 160 (1969); Hamlet v. State, 85 Nev. 385, 455 P.2d 915 (1969);
Hampton v. State, 85 Nev. 720, 462 P.2d 760 (1969); Boone v. State, 85 Nev. 450, 456 P.2d 418 (1969).
88 Nev. 19, 23 (1972) Moss v. State
received. Hernandez v. State, 87 Nev. 553, 490 P.2d 1245 (1971); Corbin v. State, 87 Nev.
214, 484 P.2d 721 (1971); Ridley v. State, 86 Nev. 102, 464 P.2d 500 (1970); Wyand v.
State, 86 Nev. 500, 471 P.2d 216 (1970); Carmichel v. State, 86 Nev. 205, 467 P.2d 108
(1970); Lloyd v. State, 85 Nev. 576, 460 P.2d 111 (1969); Thompson v. State, supra.
[Headnote 3]
3. Defense counsel failed to object to several telephone conversations which the victim
had with Mr. Allen. These conversations linked appellant as Mr. Baggs with the acts
constituting the crimes with which he was charged. His effort to now object comes too late.
Wilson v. State, 86 Nev. 320, 468 P.2d 346 (1970).
[Headnote 4]
4. During summation to the jury the prosecutor commented that the State's evidence was
uncontradicted. The comments were within permissible limits. Fernandez v. State, 81 Nev.
276, 402 P.2d 38 (1965). His comments were factually correct, and did not refer to the
accused specifically. The State's case may be contradicted by witnesses other than the accused
if such witnesses exist. Consequently, we will not construe the comments here involved as an
infringement upon the accused's Fifth Amendment privilege against self-incrimination.
Affirmed.
Zenoff, C. J., and Batjer, Mowbray, and Gunderson, JJ., concur.
____________
88 Nev. 23, 23 (1972) State v. Pashos
STATE OF NEVADA, Appellant, v. MICHAEL PASHOS, NORRIS WAYNE
SANDERS, and CHESTER DAVIS SMITH, Respondents.
No. 6778
January 25, 1972 492 P.2d 1309
Appeal from an order dismissing petition for contempt. Eighth Judicial District Court,
Clark County; Joseph S. Pavlikowski, Judge.
Appeal by state from order of the district court dismissing petition for order to show cause
why officers of union should not be held in contempt for failing to appear before State
Gaming Control Board and testify concerning union activities in the gaming industry.
88 Nev. 23, 24 (1972) State v. Pashos
in the gaming industry. The Supreme Court held that State Gaming Control Board had power
to issue subpoenas to compel testimony regarding union activities in the gaming industry.
Reversed.
[Rehearing denied March 14, 1972]
Robert List, Attorney General, and David C. Polley, Deputy Attorney General, for
Appellant.
Peter L. Flangas, of Las Vegas, for Respondents.
States.
State Gaming Control Board had power to issue subpoenas to compel testimony regarding union
activities in the gaming industry. NRS 463.130, subd. 1, 463.140, subd. 5.
OPINION
Per Curiam:
The State Gaming Control Board issued subpoenas directing respondents, officers of the
Union of Gaming and Affiliated Casino Employees Union of America, Local 711, to appear
before the Board and testify concerning union activities in the gaming industry. Respondents
failed to present themselves at the time specified in the subpoenas. The appellant then filed a
petition for an order to show cause why the respondents should not be held in contempt. This
petition was dismissed. The trial judge was of the opinion that the Board was without
jurisdiction to compel testimony regarding union activities in the gaming industry. We
conclude that the Board did possess the power to issue these subpoenas and accordingly
reverse with directions to the trial court to enforce the subpoenas.
The State Gaming Control Board was created by legislative enactment in 1955. The state
public policy sought to be advanced by this agency is declared in the provisions of NRS
463.130(1). To carry out this expressed policy, the Board is given full authority to issue
subpoenas, compel attendance of witnesses, and require testimony under oath. NRS
463.140(5). The Board is not to be frustrated in its efforts to enforce that policy. The rights of
those subpoenaed may be asserted at the time of questioning.
Reversed.
____________
88 Nev. 25, 25 (1972) Meakin v. Meakin
FRANCIS HARDIE MEAKIN, Appellant, v. MARTHA
JANIS MEAKIN, Respondent.
No. 6609
January 26, 1972 492 P.2d 1304
Appeal from order denying reduction in child support, Eighth Judicial District Court,
Clark County; John F. Mendoza, Judge.
Proceeding on appeal from an order of the district court denying ex-husband's motion for
reduction of child support. The Supreme Court, Gunderson, J., held that affidavit, which was
offered in support of ex-husband's motion for reduction of child support, and in which
husband stated that deterioration of his health prevented his practice of dentistry, that he had
to file bankruptcy, and that he was constrained to work as a hospital orderly earning only
$400 per month and thus was unable to meet $750 monthly child support payments, was
legally insufficient, being a mere conclusion.
Affirmed.
George, Steffen & Simmons, of Las Vegas, for Appellant.
David Canter, of Las Vegas, for Respondent.
1. Divorce.
Affidavit, which was offered in support of ex-husband's motion for reduction of child support, and in
which husband stated that deterioration of his health prevented his practice of dentistry, that he had to file
bankruptcy, and that he was constrained to work as a hospital orderly earning only $400 per month and
thus was unable to meet $750 monthly child support payments, was legally insufficient, being a mere
conclusion.
2. Appeal and Error.
Where appellant had not brought up hearing transcript, nor a substitute therefor, Supreme Court would
assume that evidence supported trial court's implicit determinations.
OPINION
By the Court, Gunderson, J.:
On May 8, 1970, appellant obtained a Nevada divorce which provided, among other
things, for child support payments of $750 per month. In January, 1971, our district court,
without stating its reasons, denied a motion by appellant for reduction of child support. This
appeal follows.
88 Nev. 25, 26 (1972) Meakin v. Meakin
[Headnote 1]
1. Appellant argues our district court's refusal to reduce the child support amounts to an
abuse of discretion, contending (a) the deterioration of his health prevents his practice of
dentistry, (b) he has had to file bankruptcy, and (c) he is now constrained to work as a
hospital orderly earning only $400 per month and thus is unable to meet the $750 monthly
child support payments. Except in his brief, the only place in the record where appellant's
contentions are found is in his affidavit of December 10, 1970. In Green v. Green, 75 Nev.
317, 340 P.2d 586 (1959), we held that a wife's affidavit which alleged that she had
insufficient funds was legally insufficient, being a mere conclusion. Appellant's affidavit
before us is within our holding in Green.
[Headnote 2]
2. As appellant has not brought up the hearing transcript [nor a substitute therefor] we
must assume the evidence supported the trial court's implicit determinations. Leeming v.
Leeming, 87 Nev. 530, 490 P.2d 342 (1971); City of Henderson v. Bentonite, Inc., 87 Nev.
188, 483 P.2d 1299 (1971).
Since the record does not establish that the trial court abused its discretion, the judgment is
affirmed.
Zenoff, C. J., and Batjer, Mowbray, and Thompson, JJ., concur.
____________
88 Nev. 26, 26 (1972) Maheu v. District Court
ROBERT A. MAHEU, Individually and Doing Business as ROBERT A. MAHEU
ASSOCIATES, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK, DEPT. NO. 6, and
THE HONORABLE HOWARD W. BABCOCK, Judge Thereof, Respondent.
No. 6663
January 28, 1972 493 P.2d 709
Petition for writs of prohibition and mandamus to the Eighth Judicial District Court, Clark
County; Howard W. Babcock, Judge.
The Supreme Court, Gunderson, J., held that entry of ex parte orders staying depositions
noticed by defendant, thereafter denying defendant's motion to vacate order that stayed
deposition,
88 Nev. 26, 27 (1972) Maheu v. District Court
deposition, and then declining to consider any matter except plaintiff's Motion to Stay
pending its determination, all without motions for protective orders seasonably made by any
party or by the person to be examined and upon notice and for good cause shown, denied
defendant's right to take testimony of any person, including a party, by deposition upon oral
examination or written interrogatories, and entitled defendant to writ of mandamus
commanding vacation of order staying deposition of plaintiff through its managing agent.
Writs of prohibition and mandamus issued in accord with opinion.
Mowbray, J., dissented.
[Rehearing denied March 14, 1972]
Morton Galane, of Las Vegas, for Petitioner.
Davis & Cox, of New York City; Morse, Foley and Wadsworth, of Las Vegas, for
Respondent.
1. Prohibition.
Prohibition will arrest proceedings in aid of an order that is not binding on the petitioner. NRS 34.320.
2. Appeal and Error; Prohibition.
Where defendant posted proper appeal bond in connection with his appeal from preliminary injunction
requiring defendant to return plaintiff 's business records, and moved for an order fixing supersedeas
bond necessary to obtain a stay during appeal, denial of motion was improper, and proceedings on plaintiff
's motion for stay of all proceedings by defendant until defendant complied with the prior order to return
records to plaintiff and for an extension of time to respond to pleadings until after defendant complied with
prior order were in excess of jurisdiction, entitling defendant to writ of prohibition with respect to such
proceedings. NRS 34.320; NRCP 73(d), (d)(2), (d)(4).
3. Motions.
Any special motion involving judicial discretion that affects rights of another, as contrasted to motions
of course, must be made on notice even where no rule expressly requires notice, except when
requirement is statutorily altered to meet extraordinary situations. NRCP 26(a), 65(b).
4. Discovery; Mandamus.
Entry of ex parte orders staying depositions noticed by defendant, thereafter denying defendant's
motion to vacate order that stayed deposition, and then declining to consider any matter except plaintiff's
Motion to Stay pending its determination, all without motions for protective orders seasonably made by
any party or by the person to be examined and upon notice and for good cause shown, denied defendant's
right to take testimony of any person,
88 Nev. 26, 28 (1972) Maheu v. District Court
any person, including a party, by deposition upon oral examination or written interrogatories, was
improper and entitled defendant to writ of mandamus commanding vacation of order staying deposition of
plaintiff through its managing agent. NRS 34.160; NRCP 6(d), 26(a), 30(b), 65(b).
OPINION
By the Court, Gunderson, J.:
In these original proceedings, Robert A. Maheu seeks certain extraordinary writs directed
to the respondent court, in which litigation is pending that involves Maheu, Hughes Tool
Company (HTCo), Howard R. Hughes (HTCo's sole shareholder), and others. Specifically,
Maheu requests these writs:
(1) prohibition arresting proceedings on a Motion for a Stay and for an Extension of
Time, filed by HTCo;
(2) mandamus commanding respondent to vacate an ex parte order that purports to stay the
deposition of HTCo by its managing agent, Howard R. Hughes;
(3) mandamus commanding respondent to furnish Maheu opportunity to file and have
entertained a motion for the imposition of a conditional sanction to ensure the appearance of
Howard R. Hughes for the taking of his deposition; and
(4) mandamus commanding respondent to vacate that provision of an Order Sealing
Exhibit which curtails disclosure of the contents of certain documents.
Of these requests, we grant the first two for reasons stated in this Opinion. With those matters
determined by us, we are confident respondent will promptly consider and decide any motion
for a conditional sanction Maheu may address to it; thus, we believe Maheu will now have a
plain, speedy and adequate remedy concerning the matter involved in his third request;
therefore we deny it, without prejudice. While Maheu's counsel may have acquiesced in the
court's entry of an order precluding disclosure of his exhibit, we have no doubt that, subject to
appropriate safeguards, Maheu's counsel is nonetheless entitled to copies thereof to prepare
his case, and during deposition should be allowed to examine Hughes on the original
documents. However, again, we are confident the court will now allow such access upon
proper application; thus Maheu's fourth request for relief is also denied, without prejudice.
A complaint is pending in the respondent court by Robert A. Maheu, plaintiff, against
Chester C. Davis, Frank William Gay, and C. J. Collier, Jr., as defendants, claiming damages
for wrongful interference with Maheu's alleged right to control certain business properties.
88 Nev. 26, 29 (1972) Maheu v. District Court
certain business properties. Another complaint is pending in the name of HTCo, as plaintiff,
seeking an injunction and damages against Maheu, as defendant, for wrongful refusal to
surrender control of business properties and records. In addition to pleading defenses to
HTCo's complaint, Maheu has stated a counterclaim against Hughes and HTCo.
On December 12, 1970, while conducting combined hearings on motions for preliminary
injunction filed by Maheu and HTCo, the court entered an Order Sealing Exhibit, providing
that a documentary exhibit offered by Maheu be sealed in an envelope, which should not be
reopened except on application to the court, and that Maheu was prohibited from making
any further disclosure, dissemination or other use of the exhibit.
On December 24, 1970, the court entered a preliminary injunction from which Maheu has
taken an appeal, the merits of which are not before us. The injunction contains provisions
requiring Maheu to return records, with which Maheu claims to have complied to the extent
he understands the obligations created thereby.
1

On December 31, 1970, Maheu served HTCo's counsel with notice under NRCP 26(a),
advising them he would take the deposition of HTCo, by its managing agent, Howard R.
Hughes, at 10:00 a.m., January 11, 1971, at the office of Maheu's attorney. No one appeared
pursuant to the notice. Instead, at 10:33 a.m. on January 11, HTCo's counsel filed a paper
styled Motion to Vacate Notice to Take Deposition, asserting that (1) the discovery sought
was premature, (2) the discovery was not in conformity with applicable provisions of the
Nevada Rules of Civil Procedure nor with other applicable rules of law, and (3) HTCo may
not be compelled to produce Howard R. Hughes as its managing agent. The same day, at
10:35 a.m., HTCo's counsel procured an ex parte order, purporting to stay the deposition
until further order of the court following hearing and determination of said Motion. The
motion was never heard.
On January 11, Maheu applied for an order directing the amount of the supersedeas bond
to be posted by him to obtain a stay of the preliminary injunction pending his appeal.
____________________

1
Among other things, the preliminary injunction provides:
IT IS FURTHER ORDERED that defendants, their respective agents, servants, employees and attorneys,
and all persons in active concert and participation with any of them, shall forthwith return or cause the return to
plaintiff of all books, documents, records and communications of plaintiff or pertaining directly or indirectly to
the business operations or affairs of plaintiff, including all copies or other reproductions [sic] of same, and all
other property belonging to plaintiff, as may be in the possession, custody or control of defendants directly or
indirectly.
88 Nev. 26, 30 (1972) Maheu v. District Court
amount of the supersedeas bond to be posted by him to obtain a stay of the preliminary
injunction pending his appeal. January 14, the court denied this application.
On January 19, at 5:14 p.m., counsel purporting to act only for HTCo filed the Motion for
a Stay and for an Extension of Time that is the subject of Maheu's application for a writ of
prohibition. This motion asked the court: (1) for a stay of all actions, proceedings,
processes and other activities by or on behalf of Robert A. Maheu. . . other than for
compliance with the prior orders of this court dated December 12 and 24, 1970, relating to
certain documents and other property to be returned to HTCO, until MAHEU has fully
complied with and satisfied the Court as to his compliance with said prior orders of this
court; and (2) for an extension of time for any party to move, answer or otherwise respond
to pleadings until after Maheu shall have fully complied and satisfied the court as to his
compliance with said prior orders of this Court.
2
By ex parte order filed at 5:19 p.m., the
court extended the time of any party to plead, as requested by the motion, and stayed
depositions of Frank W. Gay and Chester C. Davis (respectively noticed by Maheu for
January 25 and February 1) until further order of this Court following hearing and
determination of the Motion to Stay.
On February 5, Maheu served another notice to depose Hughes, and moved the court to
vacate its ex parte stay order of January 11. March 3, the court denied Maheu's motion
without prejudice.
April 1, the court conducted a conference to schedule the order in which pending matters
would be heard. The court decided, over protests by Maheu's counsel, that it would not
consider any other matters until such time as it had heard and determined HTCo's "Motion for
a Stay and for an Extension of Time."
____________________

2
The grounds for this Motion for Stay were:
1. MAHEU has failed and refused to comply with the prior orders of this Court;
2. substantial rights of HTCO in the above cases are materially and adversely affected so long as MAHEU
fails to comply with the prior orders of this Court relating to the return of documents and property belonging to
HTCO;
3. MAHEU is not entitled to the use or protection of the rules, procedures or processes of this Court in
connection with the above cases so long as he is defying the prior orders of this Court; and
4. the conduct of MAHEU is contumacious and tends to make a mockery of the rules, procedures and
orders of this Court. It is not only inequitable but prejudicial to HTCO to require the parties involved in the
above cases to proceed with the litigation of the issues raised by MAHEU so long as MAHEU fails and refuses
to comply with the outstanding orders of this Court.
88 Nev. 26, 31 (1972) Maheu v. District Court
determined HTCo's Motion for a Stay and for an Extension of Time. Thereafter, the court
held hearings at which it permitted HTCo's counsel to call numerous persons to interrogate
them concerning the nature and quantity of records removed from premises of HTCo, where
Maheu and his company had conducted business (including managerial services for HTCo)
until HTCo undertook to terminate its relationship with Maheu. These proceedings continued
from time to time until June 12, when our court stayed them to consider the petition now
before us.
I
[Headnotes 1, 2]
Under NRS 34.320, the writ of prohibition arrests the proceedings of any tribunal,
corporation, board or person exercising judicial functions, when such proceedings are without
or in excess of jurisdiction. As a corollary, prohibition will arrest proceedings in aid of an
order that is not binding on the petitioner. See: State ex rel. Friedman v. Dist. Ct., 81 Nev.
131, 399 P.2d 632 (1965), and Culinary Workers v. Court, 66 Nev. 166, 207 P.2d 990 (1949),
both granting prohibition against proceedings in aid of a restraining order improperly issued
without a bond. Thus, if the injunction's provisions requiring Maheu to return records failed
for any reason to bind him, then prohibition lies against proceedings instituted to enforce
those provisions.
Maheu contends that proceedings predicated upon mandatory provisions of the preliminary
injunction are therefore in excess of the district court's jurisdiction because although he
appealed, posted a proper appeal bond, and moved for an order fixing the supersedeas bond
necessary to obtain a stay during appeal, the district court unlawfully denied his motion. If the
injunction's mandatory provisions are deemed to direct the assignment or delivery of
documents or personal property within the meaning of NRCP 73(d)(2), Maheu urges, then
under that rule he had an absolute right to enter a bond [i]n lieu of assignment and delivery.
However, if NRCP 73(d) does not require a supersedeas bond, Maheu argues, his appeal itself
effected an automatic stay, because NRCP 73(d)(4) states [i]n cases not provided for. . . the
giving of an appeal bond . . . shall stay proceedings in the court below upon the judgment or
order appealed from. As Maheu in fact sought to have the court fix the supersedeas required
of him, we may assume the case is governed by NRCP 73(d)(2).
The pertinent part of that rule was derived from Section 407 of our 1911 Civil Practice
Act, and is in substantially the same form today as when this court decided State ex rel.
88 Nev. 26, 32 (1972) Maheu v. District Court
form today as when this court decided State ex rel. Pacific Reclamation Co. v. Ducker, 35
Nev. 214, 127 P. 990 (1912). There we said: On an appeal from a mandatory injunction
requiring defendants to deliver property to plaintiffs, as in this case, an appeal from the order
entitled the defendants, as a matter of right, upon the filing of a proper stay bond, to a stay of
proceedings under the injunction. In such a case, the fixing of the amount of the stay bond is
not a matter of discretion with the trial court. 35 Nev., at 227; 127 P., at 994; accord, Dodge
Bros. v. General Petroleum Corp., 54 Nev. 245, 10 P.2d 341 (1932). We can hardly depart
from our prior rulings, for they not only appear correct, but have been part of our practice for
more than half a century; the statute they interpreted was re-adopted by our legislature as part
of our 1937 new trials and appeals act (Stat. of Nev. 1937, ch. 32, p. 53, at p. 59); this court
itself adopted those provisions without material change, upon recommendation of our
Advisory Committee, when we promulgated NRCP; and our prior decisions, as well as our
decision today, are in accord with those in California, upon whose code our practice is based.
3

It should be noticed that the cases we have cited involved proceedings contemplating
punishment for contempt; whereas, HTCo's motion asked a stay of all actions, proceedings
processes and other activities by or on behalf of Maheu. If anything, this difference only
renders proceedings on HTCo's motion more dubious; for where a tribunal has refused to let
counsel proceed because it deemed him in contempt, this court has granted mandamus,
saying: If the alleged conduct of the relator was contemptuous, our statute provides ample
penalty for it. Cf. State ex rel. Huffaker v. Crosby, 24 Nev. 115, 123, 50 P.127, 128 (1897).
Thus, proceedings on HTCo's Motion for a Stay and for an Extension of Time are patently
in excess of jurisdiction, and as to all such proceedings a writ of prohibition must issue.
4
The
respondent court having extended the time for any party to move, answer or otherwise
respond to pleadings in the causes before it, until five days after determination of HTCo's
Motion for Stay; and proceedings on that motion now being terminated; any party under
obligation to move, answer, or otherwise respond to pleadings in the causes before the
respondent court shall do so, within five days after entry of our Notice in Lieu of
Remittitur.


____________________

3
In Clute v. Superior Court, 99 P. 362 (Cal. 1908), the Supreme Court of California arrested proceedings to
enforce a preliminary injunction directing the manager of a corporation to return books and property where,
although the petitioner has not posted a supersedeas bond, he had requested the court below to fix the amount
of an undertaking to stay proceedings. Id., at 364. See also: Kettenhofen v. Superior Court, 358 P.2d 684 (Cal.
1961); Schwarz v. Superior Court, 43 P. 580 (Cal. 1896); Dewey v. Superior Court, 22 P.333 (Cal. 1889).

4
Accordingly, while Maheu has raised other forceful arguments to support the writ's issuance, it is
unnecessary to decide them.
If the proceedings be considered as discovery into Maheu's defenses
88 Nev. 26, 33 (1972) Maheu v. District Court
The respondent court having extended the time for any party to move, answer or otherwise
respond to pleadings in the causes before it, until five days after determination of HTCo's
Motion for Stay; and proceedings on that motion now being terminated; any party under
obligation to move, answer, or otherwise respond to pleadings in the causes before the
respondent court shall do so, within five days after entry of our Notice in Lieu of Remittitur.
II.
Under NRS 34.160, mandamus lies to compel the admission of a party to the use and
enjoyment of a right or office to which he is entitled and from which he is unlawfully
precluded. Through NRCP 26(a), this court has declared the right of any party to take the
testimony of any person, including a party, by deposition upon oral examination or written
interrogatories for the purpose of discovery or for use as evidence in the action or for both
purposes. Maheu contends respondent unlawfully precluded his rights under NRCP 26(a)
when, without motions for protective orders seasonably made by any party or by the person
to be examined and upon notice and for good cause shown, as required by NRCP 30(b),
respondent first entered ex parte orders staying depositions noticed by Maheu, thereafter
denied Maheu's motion to vacate the order that stayed the deposition of HTCo through
Hughes, and then declined to consider any matter except HTCo's Motion to Stay pending
its determination.
____________________
and counterclaim, as counsel for HTCo sometimes appears to suggest, the court is equally without jurisdiction to
entertain them; for they clearly are contrary to numerous provisions of the practice we have promulgated, e.g.
NRCP 30(a)(b)(c)(e). It would be strange indeed were we to hold that respondents could allow HTCo to conduct
its discovery in court, without the slightest compliance with our rules, while denying Maheu all right to proceed
with discovery outside of court, in compliance with those rules.
Again, HTCo's motion cannot be considered as one for a protective order, in part for reasons indicated in
Point II of this Opinion.
Rasbury v. Bainum, 387 P.2d 239 (Utah 1963), upon which HTCo principally relies in justification of the
proceedings, has little or nothing in common with the case at hand. There, the court entered a pre-trial order, the
propriety and binding character of which plaintiff did not question, requiring him to produce books and records
for trial. The plaintiff failed to produce them, offering no excuse except the suggestion that possibly they had
been stolen from his office. The court held this excuse not worthy of consideration and dismissed his cause of
action; the appellate court affirmed.
88 Nev. 26, 34 (1972) Maheu v. District Court
[Headnote 3]
For a century, our settled law has been that any special motion involving judicial
discretion that affects the rights of another, as contrasted to motions of course, must be
made on notice even where no rule expressly requires notice to obtain the particular order
sought, except only when this requirement is altered to meet extraordinary situations such as
those concerned in NRCP 65(b). Pratt v. Rice, 7 Nev. 123 (1871); NRCP 6(d). It is also
fundamental that although an order's subject matter would lie within the court's jurisdiction if
properly applied for, it is void if entered without required notice. Our authorities establishing
this principle are as old as Wilde v. Wilde, 2 Nev. 306 (1866), and as recent as Reno
Raceway, Inc. v. Sierra Paving, Inc., 87 Nev. 619, 492 P.2d 127 (1971). It makes no
difference that a void order may concern a matter committed to the court's discretion, such as
discovery, regarding which the court might have granted protective orders had a proper
application been made. Cf. Checker, Inc. v. Public Serv. Commn., 84 Nev. 623, 446 P.2d 981
(1968); cf. Ray v. Stecher, 79 Nev. 304, 383 P.2d 372 (1963); cf. Whitney v. District Court,
68 Nev. 176, 227 P.2d 960 (1951); cf. Abell v. District Court, 58 Nev. 89, 71 P.2d 111
(1937).
State ex rel. Jurich v. McFadden, 43 Nev. 140, 182 P. 745 (1919), is particularly
noteworthy in view of suggestions that various acts of the district court are to be justified as
housekeeping matters. In McFadden, this court recognized that when a district court
undertook to change a trial date without a motion properly before it on notice, as required by
a general rule of practice like NRCP 6(d), extraordinary relief by certiorari was available from
this court. There, we said: Attempt is made to maintain the action of the court upon the
ground that courts have inherent power to regulate their own docket and control their own
business. This position is not tenable in face of the explicit and unconditional direction of the
statute and said rule of court. 43 Nev., at 147.
[Headnote 4]
The authorities cited leave no doubt that orders void for want of notice may be reviewed
by certiorari, although we have sometimes refused to issue the writ where it appears the
district court, on application, might vacate the offending order. Here, although Maheu's
counsel afforded the court an opportunity to correct its own error, it refused to do so and
continued to preclude Maheu's right. Mandamus lies to gain admission to a precluded right to
proceed. Cf. Swisco, Inc. v. District Court, 79 Nev. 414
88 Nev. 26, 35 (1972) Maheu v. District Court
79 Nev. 414, 385 P.2d 772 (1963); cf. LaGue v. District Court, 68 Nev. 131, 227 P.2d 436
(1951); cf. Roberts v. District Court, 43 Nev. 332, 185 P. 1067 (1920); cf. State ex rel. Howe
v. Moran, 37 Nev. 404, 142 P. 534 (1914); cf. Floyd v. District Court, 36 Nev. 349, 135 P.
922 (1913).
It is no answer to say the court has not denied, but has merely postponed, Maheu's right to
take desired depositions; for with exceptions not applicable here, NRCP 26(a) expressly
grants the right to depose witnesses without leave of court. The right to prepare one's case
in this manner is continuing and ever present, subject to discretionary control by the court
only in conformity with NRCP.
Since the court's ex parte orders staying depositions were entered without any
jurisdiction we can perceive, either under NRCP 30(b) or otherwise, and since we believe
such a jurisdictional deficiency does not become a calendar problem merely because
problems concerning it have been interjected into the court's calendar, it is our order that a
writ of mandamus issue commanding the lower court to vacate its order of January 11 staying
the deposition of HTCo through Hughes.
5

The view we take of this matter makes it unnecessary to consider the extent to which this
court may, by extraordinary writ, review merely erroneous or arbitrary orders of a district
court that decide some properly presented issue concerning discovery.
Batjer and Thompson, JJ., concur.
Zenoff, C. J., concurring:
I concur with the result reached by the majority that the extraordinary writs must issue, but
in particular, base my concurrence that mandamus lies to compel the discovery right to
depose Howard R. Hughes on the following rationale.
____________________

5
It is arguable that when a court is without time to hear a proper motion for a protective order, it may
postpone the deposition until the motion can be heard. Cf. Pioche Mines Consolidated, Inc. v. Dolman, 333 F.2d
257, 269 (9th Cir. 1964). Here, however, the court's ex parte stay order cannot thus be justified; for assuming,
out of favor to HTCo, that its Motion to Vacate Notice to Take Deposition can be considered a motion for a
protective order, it was neither seasonably made nor made upon good cause shown. See: Millholland v.
Oglesby, 155 S.E.2d 672 (Ga.App. 1967); Wieneke v. Chalmers, 385 P.2d 65 (N.M. 1963); Stevens v. Sioux
City and New Orleans Barge Lines, Inc., 30 F. R. D. 397 (W.D. Mo., W.D. 1962); Loosley v. Stone, 15 F. R. D.
373 (S.D. Ill., N.D. 1954); Dictograph Products v. Kentworth Corporation, 7 F. R. D. 543 (W.D. Ky. 1947).
Our discovery rules are patterned on the Federal Rules of Civil Procedure.
88 Nev. 26, 36 (1972) Maheu v. District Court
I. On January 11, 1971 Judge Babcock stayed the taking of the deposition of Hughes Tool
Company noticed for January 11, 1971 until further order of the court. The motion on which
the stay was predicated set forth the grounds, in addition to testimony and evidence
theretofore received, to be:
1. The discovery sought is premature.
2. The discovery sought is not in conformity with applicable provisions of the Nevada
Rules of Civil Procedure nor with other applicable rules of law.
3. Hughes Tool Company may not be compelled to produce Howard R. Hughes for
deposition as its managing agent.
Upon motion for a stay and for an extension of time, on January 19, 1971, Judge Babcock
stayed all proceedings including the taking of Howard Hughes' deposition until he would
conduct a hearing on whether or not Maheu had complied with the court's previous order to
return all papers that Maheu had taken from Hughes Tool Company and Hughes Nevada
Operations. The judge's position is that the court has the inherent power to see to it that its
orders are complied with. I maintain he was in excess of his jurisdiction and that it was not
mere error, that (1) the order to turn over all papers was stayed by the stay bond request, (2)
he has rules relating to contempt to enforce his orders, if valid, (3) that the Hughes people
have the right according to rules provided to amend their pleadings at any time that new
information is discovered (NRCP Rule 15, Amended & Supplemental Pleadings), thus, their
claim that they cannot proceed to file an answer to the counterclaim because, allegedly,
Maheu had some of their papers, is without merit, and (4) that they have the benefit of
protective orders provided in the rules on the taking of depositions and none of those
protective orders includes a stay order of all proceedings such as Judge Babcock imposed.
II. Mandamus is appropriate.
My first assignment of error has been treated by the majority. As the second and third are
self-explanatory, I will discuss more fully the fourth.
A. Rule 30 of the Nevada Rules of Civil Procedure grants the right after commencement
of the action for any party to take the testimony of any person, including a party, by
deposition upon oral examination. When this right is denied or infringed upon without lawful
authority interlocutory review may be had by use of an extraordinary writ, in this instance the
writ of mandate. Texaco, Inc. v. Borda, 383 F.2d 607 (3rd Cir. 1967). NRS 34.160 provides
in pertinent part: "The writ may be issued by the supreme court. . . to compel the
admission of a party to the use and enjoyment of a right or office to which he is entitled
and from which he is unlawfully precluded by such inferior tribunal, . . . [Emphasis
supplied.]."
88 Nev. 26, 37 (1972) Maheu v. District Court
The writ may be issued by the supreme court. . . to compel the admission of a party to the
use and enjoyment of a right or office to which he is entitled and from which he is unlawfully
precluded by such inferior tribunal, . . . [Emphasis supplied.].
There is the further requirement of NRS 34.170 that:
This writ shall be issued in all cases where there is not plain, speedy and adequate remedy
in the ordinary course of law. It shall be issued upon affidavit, on the application of the party
beneficially interested.
In Harabedian v. Superior Court, County of Los Angeles, 195 Cal.App.2d 26, 15 Cal.Rptr.
420, 422 (1961), it was held that a writ of mandamus may issue not only to enforce a proper
discovery right (Dowell v. Superior Court, 47 Cal.2d 483, 304 P.2d 1009 (1956); Powell v.
Superior Court, 48 Cal.2d 704, 312 P.2d 698 (1957); Walker v. Superior Court, 155
Cal.App.2d 134, 317 P.2d 130 (1957); Jorgensen v. Superior Court, 163 Cal.App.2d 513, 329
P.2d 550 (1958)), but also to prevent improper discovery proceedings including physical
examinations. Sharff v. Superior Court, 44 Cal.2d 508, 282 P.2d 896, 64 A.L.R.2d 494
(1955); Gonzi v. Superior Court, 51 Cal.2d 586, 335 P.2d 97 (1959).
Statutes relating to discovery procedures should be liberally construed in favor of
disclosure. Harabedian, supra; Hauk v. Superior Court of Los Angeles County, 38 Cal.Rptr.
345, 391 P.2d 825 (1964).
Chief Judge Lumbard in Trans World Airlines, Inc. v. Hughes, 332 F.2d 602, 614 (1964),
said:
We think it clear beyond any question, in light of all the circumstances here presented,
that the deposition of Hughes was necessary to all aspects of this litigation, and his willful
and deliberate default constituted a sufficient basis under Rule 37 for the dismissal of the
counterclaims with prejudice. Hughes has at all times been the sole owner of Toolco and the
guiding light behind all the transactions between Toolco and TWA. Both TWA and the
additional defendants had the right to depose Hughes.
For the purposes of this litigation, I subscribe to those views.
The notice on December 31, 1970 to Hughes Tool Company and Howard R. Hughes was
proper and in conformance with the Nevada Rules of Civil Procedure. NRCP 30(c); Deros v.
Stern, 87 Nev. 148, 483 P.2d 648 (1971). Therefore, it is clear that there is a right under the
Nevada discovery rules to take the deposition, that this right has been infringed upon, and per
the mandamus statute, the writ of mandate will lie to compel the enjoyment of the right to
which Maheu is entitled.
88 Nev. 26, 38 (1972) Maheu v. District Court
B. An appeal is not an adequate remedy in this instance. As a condition precedent to
mandamus, NRS 34.170 requires that there be no plain, speedy and adequate remedy in law.
In Annot., Availability of mandamus or prohibition to compel or to prevent discovery
proceedings, 95 A.L.R.2d 1229, 1237 (1964), it is stated:
In accordance with the general principle that the availability of other legal remedies does
not preclude proceedings in prohibition where such other remedies are not adequate, it was
held in the following cases that a writ of prohibition to review the granting of a discovery
order was available to the aggrieved party on the ground that the remedy by appeal from the
final judgment of the action wherein discovery was granted was inadequate. [California and
Arizona cases then are cited.]
In McClatchy Newspapers v. Superior Court of Sacramento County, 26 Cal.2d 386, 159
P.2d 944, 948 (1945), the California Supreme Court, in considering an interlocutory review
of pretrial discovery proceedings, stated, [m]andamus is the appropriate remedy to secure the
enforcement of a litigant's statutory right to take depositions, and an appeal from a final
judgment is neither speedy nor adequate where a trial court improperly refuses to order that a
deposition be taken [citations omitted].
The Arizona Court of Appeals had occasion in Phelps Dodge Corp. v. Superior Court, 7
Ariz.App. 277, 438 P.2d 424 (1968), to consider a writ of certiorari seeking review of pretrial
discovery order entered in a civil action. The court stated, at 427, [w]e agree with California
that appeal is not an adequate remedy for denial of discovery because a litigant has a right to:
. . . the means of obtaining in advance of the trial information concerning the issues and the
means of producing at the trial the evidence necessary to sustain his action or defense.'
McClatchy, [supra,] 159 P.2d at 948-49.
Consequently the requirements of NRS 34.170 are satisfied in this case.
III. The general rule in Nevada is that mandamus will not lie to review the discretionary
acts of a trial judge. This has been the inflexible rule as exemplified by the following citations
of its application. Only a relatively small handful of exceptions have been made even in light
of the extensive changes which have occurred in criminal and civil discovery. Those cases
which recite the rule include:
1. Mears v. State, 83 Nev. 3, 7, 422 P.2d 230 (1967) (mandamus and
prohibitioncriminal discovery).
88 Nev. 26, 39 (1972) Maheu v. District Court
2. Jowers v. Compton, 82 Nev. 95, 96, 411 P.2d 479 (1966) (mandamuscivilwill
contest).
3. Wilmurth v. District Court, 80 Nev. 337, 340, 393 P.2d 302 (1964)
(mandamuscivilrequest to vacate pretrial order).
4. Marshall v. District Court, 79 Nev. 280, 283, 382 P.2d 214 (1963) (certioraricriminal
discovery).
5. Franklin v. District Court, 85 Nev. 401, 402, 455 P.2d 919 (1969) (certioraricriminal
discovery).
6. Pinana v. District Court, 75 Nev. 74, 75, 334 P.2d 843 (1959) (mandamuscriminal
discovery).
7. State v. McFadden, 46 Nev. 1, 6, 205 P. 594 (1922) (mandamuscivilto expunge
grand jury report).
8. State v. District Court, 40 Nev. 163, 166, 161 P. 510 (1916)
(mandamuscivilremoval of administrator).
9. State v. Curler, 26 Nev. 347, 356, 67 P. 1075 (1902) (mandamuscivilrefusal to
appoint appraisers).
10. Hoole v. Kinkead, 16 Nev. 217, 222 (1881) (mandamuscivilcommissioners'
determination of best bid).
11. State ex rel. Hetzel v. Board of Commissioners of Eureka County, 8 Nev. 309, 310
(1873) (mandamuscivilelection of county officers).
12. State v. Curler, 4 Nev. 445, 447 (1869) (mandamusciviltransfer of cause).
The Nevada Supreme Court has recognized that mandamus will lie in the following class
of cases.
A. Proceedings which are not within jurisdiction of district court.
Culinary Workers v. District Court, 66 Nev. 166, 207 P.2d 990 (1949).
Gaming Control Bd. v. District Court, 82 Nev. 38, 409 P.2d 974 (1966).
B. Court's declination to use jurisdiction it possessed.
Roberts et al. v. Second Judicial District Court, 43 Nev. 332, 185 P. 1067 (1920),
Swisco, Inc. v. District Court, 79 Nev. 414, 385 P.2d 772 (1963),
Floyd v. District Court, 36 Nev. 349, 135 P. 922 (1913).
C. Noncompliance with statutory provisions.
State ex rel. Friedman v. District Court, 81 Nev. 131, 399 P.2d 632 (1965), and Shelton v.
District Court, 64 Nev. 487, 185 P.2d 320 (1947). (Here the legal principle is the same
although these cases arose under the rubric prohibition.)
State ex rel. Cooper v. Reese, 57 Nev. 125, 59 P.2d 647 (1936).
88 Nev. 26, 40 (1972) Maheu v. District Court
D. Where the court erred as a matter of law.
Dzack v. Marshall, 80 Nev. 345, 393 P.2d 610 (1964).
Smith v. Gabrielli, 80 Nev. 390, 395 P.2d 325 (1964).
I conclude that a trial court which so abuses its discretion relative to pretrial discovery
matters to such an extent as to exceed its jurisdiction is subject to interlocutory review by writ
of mandamus to an appellate court.
IV. Law of other jurisdictions.
The application is recognized in other jurisdictions. In Arizona, after the courts had
struggled with the problem of extraordinary writs for a number of years, the Arizona Supreme
Court adopted Rules of Procedure for Special Actions[Extraordinary WritsCertiorari,
Mandamus, Prohibition] 17 ARS Annot., 1969-70 Supp. (effective January 1, 1970). Rule 3
thereof is as follows:
Rule 3. Questions Raised
The only questions that may be raised in a special action are:
(a) Whether the defendant has failed to exercise discretion which he has a duty to exercise;
or to perform a duty required by law as to which he has no discretion; or
(b) Whether the defendant has proceeded or is threatening to proceed without or in excess
of jurisdiction or legal authority; or
(c) Whether a determination was arbitrary and capricious or an abuse of discretion.
[Emphasis supplied.]
In commenting upon and explaining Rule 3, John Nelson, in The Rules of Procedure for
Special Actions: Long Awaited Reform of Extraordinary Writ Practice in Arizona, 11 Ariz.
L.Rev. 413, 423-24 (1969), said:
There is no question that the more recent cases have tended to broaden the traditional
scope of mandamus. The fact that discretion may have been exercised is no longer a complete
bar to relief by mandamus since the courts have held that, although they normally will not
control the exercise of discretion, they may do so if the respondent has acted arbitrarily or has
abused his discretion. This does not mean that the petitioner must establish bad
motivationhe need only show conduct which the court deems unreasonable or ultra vires.
. . .
Rule 3(c)
Whether a determination was arbitrary and capricious or an abuse of discretion.
88 Nev. 26, 41 (1972) Maheu v. District Court
In the past it was often said by Arizona courts that prohibition would not lie merely to
correct error, irregularity, or mistake in the proceedings of an inferior tribunal. Similarly,
[c]ertiorari issues only to test jurisdiction, and not to determine whether it was erroneously
exercised.' Although these principles have never been expressly repudiated, recent cases
indicate that they are no longer binding standards, and that the court will see that essential
justice is done.' For example, in discussing certiorari, the Supreme Court of Arizona in State
ex rel. Ronan v. Superior Court [95 Ariz. 319, 390 P.2d 109 (1964)], stated:
[I]f the court abused its discretion, or failed regularly to pursue its authority, which has
the same meaning, the reviewing court might examine the evidence bearing on jurisdiction or
abuse of discretion, but not with a view to determine facts or draw conclusions therefrom
respecting guilt. [Footnotes omitted.]
New York has adopted a special action rule merging the three remedies, N.Y.Civ.Prac.
Laws and Rules 7801 (McKinney's 1963) ( 7803(3) dealing with abuse of discretion), and
Colorado has to a considerable extent done the same, Colo.R.Civil Proc. 106 (1964).
As already noted, in California the trial court's discretion relative to discovery matters has
long been subject to review by special writs.
In Daum v. Superior Court, Sutter County, 228 Cal.App.2d 283, 39 Cal.Rptr. 443, 445
(1964), an original proceeding to compel the Superior Court to permit petitioners to file a
second amended complaint, the court stated:
Section 1086 of the Code of Civil Procedure provides that the writ of mandamus will
issue in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary
course of law.' (Sharff v. Superior Court, 44 Cal.2d 508, 282 P.2d 896, 64 A.L.R.2d 494.)
Case law has established that mandate will lie, inter alia, to control judicial discretion when
that discretion is abused; and that [i]n a legal sense discretion is abused whenever in the
exercise of its discretion the court exceeds the bounds of reason, all of the circumstances
before it being considered.' (State Farm Mutual Automobile Ins. Co. v. Superior Court, 47
Cal.2d 428, 432, 304 P.2d 13, 15; Hays v. Superior Court, 16 Cal.2d 260, 105 P.2d 975.)
In Sharff v. Superior Court, 44 Cal.2d 508, 282 P.2d 896 (1955), the California Supreme
Court held that plaintiff in a personal injury action who was ordered to undergo a physical
examination by defendant's doctor was entitled to have the assistance and protection of
her attorney during the examination, and the denial of this right imposed an unlawful
condition upon plaintiff's right to proceed to trial.
88 Nev. 26, 42 (1972) Maheu v. District Court
examination by defendant's doctor was entitled to have the assistance and protection of her
attorney during the examination, and the denial of this right imposed an unlawful condition
upon plaintiff's right to proceed to trial. Mandamus was held to be a proper remedy. The court
summarized its holding, at 897, We are of the view that the respondent court, in staying all
proceedings until plaintiff should comply with the order directing her to submit to an oral and
physical examination without the presence of her attorney, imposed an unwarranted condition
on her right to have the case proceed to trial.
V. The trial court abused its discretion.
A. Referring back to the mandamus statute, NRS 34.160, all that is required to be shown
is that the petitioner is unlawfully precluded by such inferior tribunal from a right to which
he is entitled. . . . The trial court abused its discretion on three grounds:
1. The petitioner only must show that the district judge acted unlawfully. NRCP 26-37
grant broad powers to litigants promoting and expediting the trial of civil matters by allowing
those litigants an adequate means of discovery during the period of trial preparation. To
prevent abuse of this expanded discovery process, the district court has been granted
discretion in the granting of protective orders under NRCP 26(c) and 30(d). Rule 30(d) is
inapplicable as it focuses on the time during the taking of the deposition.
Rule 26(c) provides:
(c) Protective Orders. Upon motion by a party or by the person from whom discovery is
sought, and for good cause shown, the court in which the action is pending may make any
order which justice requires to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense, including one or more of the following [sanctions].
None of the grounds stated in the motion to vacate notice to take deposition relied upon by
the lower court in its stay order of January 11, 1971 is allowed for by Rule 26(c) and
therefore the district judge unlawfully stayed the deposition. In this light it may appear that
the district court exceeded its jurisdiction. The case of Dzack v. Marshall, 80 Nev. 345, 393
P.2d 610 (1964), held that the district court had a duty to grant a 56(e) summary judgment
under the facts of the case, that there was no remaining discretion left in the court.
Conceptually, the same result could have been reached by stating that the lower court abused
its discretion in not granting the judgment when the defendant had a legal right to it. Here,
the trial court either exceeded its jurisdiction or abused its discretion, both of which
amount to the same.
88 Nev. 26, 43 (1972) Maheu v. District Court
the trial court either exceeded its jurisdiction or abused its discretion, both of which amount
to the same.
2. The district court relied on the motion to vacate, the first ground stated therein being
that The discovery sought is premature. In this matter the discovery was not premature. It is
difficult to predict if and when Howard R. Hughes will be available for deposition. His
vagaries are common knowledge. In De Wagenknecht v. Stinnes, 102 U.S.App.D.C. 89, 250
F.2d 414 (1957), the Court of Appeals affirmed the district court's order, under F.R.Civ.P. 27,
authorizing the taking of the deposition of a 74-year-old witness, saying at 417, Mrs. Stinnes
seeks by this proceeding to perpetuate the testimony of a person who has knowledge of
certain events and transactions, many of which took place years ago. There can be no
certainty that this testimony will still be available when the controversy is ready for litigation,
since the witness is at present seventy-four years of age.
In Texaco, Inc. v. Borda, 383 F.2d 607 (3rd Cir. 1967), the appellate court held that the
denial to the petitioner of leave to take the deposition from an individual whose civil antitrust
action against the company had been stayed until determination of a related criminal antitrust
action in which the company has been named co-conspirator was an abuse of discretion,
where the individual was 71 years old, and the alleged conspiracy had occurred 11 years
previously. See also, Martin v. Reynolds Metals Corporation, 297 F.2d 49 (9th Cir. 1961),
and Block v. Superior Court of Los Angeles County, 219 Cal.App.2d 469, 33 Cal.Rptr. 205
(1963), both of which illustrate the policy of allowing liberal discovery by deposition to
perpetuate testimony.
3. The stay order of January 19, 1971 staying all proceedings until Maheu showed
compliance with the turnover orders of December 12 and 24, 1970 and the motion in support
of the stay order clearly show that this stay order was imposed as a sanction to force
compliance with the court's prior order. As pointed out in the foregoing analysis, Maheu has a
right to depose Howard R. Hughes (NRCP 30), that certain designated grounds are set out in
NRCP 26(c) for the protection of any person from whom discovery is sought, namely,
protection from annoyance, embarrassment, oppression, or undue burden or expense and that
none of these grounds includes a stay to force or precipitate compliance with a court order.
Other rules in the nature of contempt proceedings are provided for that purpose. The district
judge abused his discretion and in effect acted without jurisdiction.
88 Nev. 26, 44 (1972) Maheu v. District Court
his discretion and in effect acted without jurisdiction. See Hauk v. Superior Court of Los
Angeles County, 38 Cal.Rptr. 345, 391 P.2d 825 (1964).
I concur in the result reached by the majority and trust that discovery, including the
deposition of Howard R. Hughes, will now proceed forthwith to the end that the merits of the
action will be resolved.
Mowbray, J., dissenting:
Respectfully, I must object to the issuance of the writs of prohibition and mandamus
ordered by the court in its opinion filed today. Nevada precedent, in my opinion, does not
support the ruling of the court.
The background of this litigation may be summarized as follows: Petitioner Maheu was
the chief executive of Hughes Nevada Operations, which comprised all of Hughes Tool
Company's business activities in Nevada. On December 4, 1970, Maheu was relieved of that
position. Immediately, he sought and obtained a temporary restraining order prohibiting those
seeking his ouster from taking any further action to do so.
1
At this time, many of the papers,
files, and records of Hughes Tool Company were removed from the offices of Hughes
Nevada Operations. Hughes Tool Company then filed a complaint in the district court to
enjoin Maheu from asserting any control or authority over Hughes Nevada Operations.
2
The
two actions were consolidated. Evidentiary hearings were held before Judge Babcock, who on
December 24, 1970, dissolved the temporary restraining order previously obtained by Maheu
and granted the preliminary injunction sought by Hughes Tool Company, which enjoined
Maheu from interfering with or exercising any control over the activities of Hughes Nevada
Operations.
Maheu on December 31, 1970, filed a $50 million counterclaim against Hughes Tool
Company, seeking damages for breach of his employment contract. With the filing of the
counterclaim, Maheu gave notice of the taking of Hughes's deposition, scheduled for January
11, 1971.
3
Judge Babcock, however, on motion of Hughes Tool Company, vacated the
January 11 date and stayed the taking of the Hughes deposition until further order of the
court.
____________________

1
Maheu v. Davis, District Court Case No. 84241, designated No. 6598 on appeal.

2
Hughes Tool Co. v. Maheu, District Court Case No. 84259, designated No. 6597 on appeal.

3
Hughes is the sole stockholder of Hughes Tool Company.
88 Nev. 26, 45 (1972) Maheu v. District Court
until further order of the court. Thereafter, on January 19, 1971, Hughes Tool Company filed
a motion to stay any further action on behalf of Maheu's $50 million counterclaim until
Maheu had returned all the books, records, and files of Hughes Tool Company. On January
21, 1971, Petitioner Maheu filed a motion to disqualify Judge Babcock on the ground of
actual prejudice. Recognizing that the motion to disqualify presented an impediment to
further proceedings, the court, on February 3, 1971, ordered a stay of all proceedings until the
motion could be heard and ruled upon by another judge. District Judge Thomas O. Craven of
the Second Judicial District was assigned to hear the motion. He did so, and after hearing the
motion he denied it on March 16, 1971.
Judge Babcock then called a calendar conference of all parties for April 1, 1971, for the
purpose of determining and scheduling the order in which the pending matters connected with
the litigation would be heard. The transcript of the proceedings of April 1, 1971, reflects the
purpose of the conference:
The Court: As the Court noted in its decision and order of March 3, 1971, the law is well
settled that the trial court has broad case discretion to manage discovery proceedings. The
parties are now underway on this apparent rocky venture to discover facts and evidence in
support of and in opposition to respective claims.
It occurs to the Court that before there can be true discovery, and in the conservation of
the Court's timeand this time I am not concerned with the litigants' time, but with the
Court's timethere should be and there must be a resolution of the matter of books and
records. We are not concerned about matters of contempt.
I am only examining the posture of these proceedings with a view of giving some
expedition, because already there has been a delay of two months by reason of the filing of a
motion to change the presiding judge.
I wish to assure the parties that there will be no delay practiced in this Court on that issue.
I expect the parties to be forthwith, forthright to the Court, so that there can be a real search
for the truth of the matters. And certainly a search for the truth would require, and does
require, that the books and records, which relate to matters material to this cause, be before
the Court and be available to the parties.
This does not interminably delay the taking of any depositions. Because this Court will
give expedition to the proceedings as it relates to the matter of records, a resolution of those
motions, and will not countenance from the parties any delaying tactics, which has been
suggested by counsel for Maheu, should this Court undertake a resolution of the matter of
records."
88 Nev. 26, 46 (1972) Maheu v. District Court
motions, and will not countenance from the parties any delaying tactics, which has been
suggested by counsel for Maheu, should this Court undertake a resolution of the matter of
records.
It was decided that the court would first hear and consider Hughes Tool Company's motion
filed January 19, 1971, seeking a stay order on Maheu's counterclaim.
4
The evidentiary
hearings followed at the convenience of the court's and counsel's calendars, on April 19-20,
May 3-4, and June 21-22, 1971, until they were halted by this court on July 12, 1971, after
Maheu filed this petition on June 14, 1971, seeking the extraordinary writs.
____________________

4
Counsel for Maheu objected to the scheduling given the evidentiary hearings. The following colloquy
occurred between Judge Babcock and counsel for petitioner at the calendar meeting:
The Court: Counsel, I wish to assure you that Mr. Maheu, nor the Hughes Tool Company, is not going to
manage the proceedings that are before this Court. I assure you of that fact.
Mr. Galane: Well, I would like to answer the Court, why they will accomplish everything that they want
through priority of hearing.
Now, your Honor, I would like to be heard. I am not suggesting either litigant will control the Court. What I
am saying is the Court, once it starts
The Court: Are you suggesting that this Court does not have sense enough to terminate a hearing when it
has determined that it has heard enough evidence?
Mr. Galane: Sometimes a Court cannot terminate a hearing without violating due process. I am not
speaking of the Court's sense. Does your Honor think that I would suggest that this Court lacks the perception
and intelligence not to analyze a proceeding? But a Court sometimes doesn't have the power to terminate a
hearing.
The Court: You are suggesting, Mr. Galane, that if we go to the matter of records, that Hughes Tool
Company can keep this Court on the bench day after day after day, or hearing after hearing after hearing, ad
infinitum?
Mr. Galane: Look at the motion.
The Court: And I can assure you that if that is your representation or belief, that this, sir, will not be the
fact, depending upon the matter upon which this Court determines.
Mr. Galane: If I can avoid it, I don't argue with the Judge. But I will show you how skillfully they can
manipulate it, with ease. May I remind the Court that I was the one who said to the Court that they may have in
the back of their mindand Miss Lea was the spokesman, and as long as I live I will never forget itI said they
will try to manipulate this record to file some motion to block proceedings, and she stood up and said, Mr.
Galane is overanticipating. And I live to see the truth of my prediction.
So if your Honor will bear with me.
The Court: I will bear with you, Mr. Galane. But I just want you to understand that this Court is the
manager of this Court, not the litigants.
88 Nev. 26, 47 (1972) Maheu v. District Court
1. Maheu in this proceeding seeks a writ of prohibition enjoining Judge Babcock from
taking any further action on the January 19 stay motion of Hughes Tool Company. Hughes
Tool Company's principal reason in seeking the stay is that the company is unable to respond
to Maheu's claims while Maheu retains possession of the Company's records. Maheu asserts
that he has returned all the Company's records. The Company claims that he has not done so.
Cf. Rasbury v. Bainum, 387 P.2d 239 (Utah 1963). Judge Babcock was conducting
evidentiary hearings to determine this very issue when our court stayed all proceedings below
on July 12, 1971. In my opinion, Judge Babcock as the trial judge should be permitted to
resolve the question. By the ruling announced by this court today, he is now barred from
doing so. Writs of mandamus and prohibition are extraordinary writs and are traditionally
never granted unless the court is acting without jurisdiction. They may not be utilized as a
substitute for an appeal. The reason for the rule is obvious, as this case demonstrates. To
utilize the writs as a substitute for an appeal delays the processing of the case and can
conceivably emasculate the orderly administration of justice. That is the basis for the rule that
writs of prohibition and mandamus are available only if the lower court's actions are in excess
of its jurisdiction or if there is no plain, speedy, and adequate remedy in the ordinary course
of the law. Both the Nevada statutes and Nevada case law have so held. NRS 34.170
provides:
This writ [of mandate] shall be issued in all cases where there is not a plain, speedy and
adequate remedy in the ordinary course of law. It shall be issued upon affidavit, on the
application of the party beneficially interested.
NRS 34.320 provides:
The writ of prohibition is the counterpart of the writ of mandate. It arrests the
proceedings of any tribunal, corporation, board or person exercising judicial functions, when
such proceedings are without or in excess of the jurisdiction of such tribunal, corporation,
board or person.
And, finally, NRS 34.330 provides:
The writ [of prohibition] may be issued only by the supreme court to an inferior tribunal,
or to a corporation, board or person, in all cases where there is not a plain, speedy and
adequate remedy in the ordinary course of law. It is issued upon affidavit, on the application
of the person beneficially interested.
This court ruled in Pinana v. District Court, 75 Nev. 74, 75, 334 P.2d 843 (1959): "It is
the settled law of this state that mandamus will not lie to control judicial discretion or to
review the propriety of judicial action.
88 Nev. 26, 48 (1972) Maheu v. District Court
It is the settled law of this state that mandamus will not lie to control judicial discretion or
to review the propriety of judicial action. State ex rel. Phillips v. District Court, 46 Nev. 25,
207 P. 80; State ex rel. Webber [sic] v. McFadden, 46 Nev. 1, 205 P. 594; State v. Ninth
Judicial District Court, 40 Nev. 163, 161 P. 510.
The concurring majority opinion states:
The general rule in Nevada is that mandamus will not lie to review the discretionary acts
of a trial judge. This has been the inflexible rule as exemplified by the following citations of
its application. Only a relatively small handful of exceptions have been made even in light of
the extensive changes which have occurred in criminal and civil discovery. Those cases
which recite the rule include:
1. Mears v. State, 83 Nev. 3, 7, 422 P.2d 230 (1967) (mandamus and
prohibitioncriminal discovery).
2. Jowers v. Compton, 82 Nev. 95, 96, 411 P.2d 479 (1966) (mandamuscivilwill
contest).
3. Wilmurth v. District Court, 80 Nev. 337, 340, 393 P.2d 302 (1964)
(mandamuscivilrequest to vacate pretrial order).
4. Marshall v. District Court, 79 Nev. 280, 283, 382 P.2d 214 (1963)
(certioraricriminal discovery).
5. Franklin v. District Court, 85 Nev. 401, 402, 455 P.2d 919 (1969)
(certioraricriminal discovery).
6. Pinana v. District Court, 75 Nev. 74, 75, 334 P.2d 843 (1959) (mandamuscriminal
discovery).
7. State v. McFadden, 46 Nev. 1, 6, 205 P. 594 (1922) (mandamuscivilto expunge
grand jury report).
8. State v. District Court, 40 Nev. 163, 166, 161 P. 510 (1916)
(mandamuscivilremoval of administrator).
9. State v. Curler, 26 Nev. 347, 356, 67 P. 1075 (1902) (mandamuscivilrefusal to
appoint appraisers).
10. Hoole v. Kinkead, 16 Nev. 217, 222 (1881) (mandamuscivilcommissioners'
determination of best bid).
11. State ex rel. Hetzel v. Board of Commissioners of Eureka County, 8 Nev. 309, 310
(1873) (mandamuscivilelection of county officers).
12. State v. Curler, 4 Nev. 445, 447 (1869) (mandamusciviltransfer of cause).
I agree with that part of the concurring majority opinion.
2. In Hughes Tool Co. v. Maheu, District Court Case No. 84259, designated No. 6597 on
appeal, the court granted a preliminary injunction on December 24, 1970, enjoining Maheu
from interfering with or exercising any control over the activities of Hughes Nevada
Operations, from which preliminary injunction Maheu has taken appeal, the merits of
which are not before us in this proceeding.
88 Nev. 26, 49 (1972) Maheu v. District Court
the activities of Hughes Nevada Operations, from which preliminary injunction Maheu has
taken appeal, the merits of which are not before us in this proceeding. The order granting the
injunction also provided:
IT IS FURTHER ORDERED that defendants, their respective agents, servants,
employees and attorneys, and all persons in active concert and participation with any of them,
shall forthwith return or cause the return to plaintiff of all books, documents, records and
communications of plaintiff or pertaining directly or indirectly to the business operations or
affairs of plaintiff, including all copies or other reproductions [sic] of same, and all other
property belonging to plaintiff, as may be in the possession, custody or control of defendants
directly or indirectly.
On December 31, 1970, Maheu filed his $50 million counterclaim in the Hughes Tool
Company action for damages resulting from the breach of an alleged oral contract of lifetime
employment. It was on this day, December 31, 1970, that Maheu gave notice to take Hughes's
deposition for 10:00 a.m., January 11, 1971. On January 11, 1971, Maheu also filed formal
notice of appeal from the order of December 24, 1970, granting the preliminary injunction.
He also sought an order under the provisions of NRCP 73(d) directing the filing of a
supersedeas bond, as he claimed he had a right to have bond set and thereby obtain a stay of
the preliminary injunction pending appeal to this court. Judge Babcock denied the application
for an order setting the amount of supersedeas bond and refused, thereby, to stay the
preliminary injunction. It is this action, as I understand the majority opinion, that is the
predicate for their finding that Judge Babcock has exceeded his jurisdiction in entertaining
the evidentiary hearings on the Hughes Tool Company motion to stay further action on
Maheu's counterclaim.
On January 15, 1971, Maheu filed an unsworn statement in which he represented that he
had fully complied with the provisions of the preliminary injunction directing him to return
all the books, records, and files of Hughes Nevada Operations. A miniscule amount of
material was returned by Maheu; yet Hughes Tool Company alleges that some 24 four-drawer
file cabinets were left completely empty after Maheu's departure. Hughes Tool Company then
filed, on January 19, 1971, its motion to stay further proceedings on Maheu's counterclaim
until the court could determine the status of the alleged missing records.
The majority have ruled that prohibition will issue to bar Judge Babcock from concluding
the evidentiary hearings because the hearings are nothing more than an attempt to
enforce the mandatory provisions of the preliminary injunction that Judge Babcock
refused to stay pending appeal to this court, by not fixing a supersedeas bond.
88 Nev. 26, 50 (1972) Maheu v. District Court
Judge Babcock from concluding the evidentiary hearings because the hearings are nothing
more than an attempt to enforce the mandatory provisions of the preliminary injunction that
Judge Babcock refused to stay pending appeal to this court, by not fixing a supersedeas bond.
In support of their ruling that prohibition will lie, the majority have cited Clute v. Superior
Court, 99 P. 362 (Cal. 1908); Kettenhofen v. Superior Court, 358 P.2d 684 (Cal. 1961);
Schwarz v. Superior Court, 43 P. 580 (Cal. 1896); and Dewey v. Superior Court, 22 P. 333
(Cal. 1889). All of these cases involved contempt proceedings. The petitioners seeking the
extraordinary writs had been found guilty of contempt of court and ordered punished therefor.
They sought review of the orders finding them in contempt of court and a stay of their
punishment pending appeal therefrom. The appellate court in each case properly granted the
writ staying the enforcement of the contempt order until it was reviewed; otherwise, the
appeal would have been moot. Not so in the instant proceedings. The hearings on Hughes
Tool Company's stay order are not contempt proceedings. They arise out of Maheu's
counterclaim for alleged breach of contract of employment, and they are totally independent
of the preliminary injunction proceedings.
5
Therefore, I would rule that Hughes Tool
Company's motion to stay is merely an evidentiary proceeding that arises out of Maheu's
counterclaim for breach of contract and that the hearing is not in the nature of a contempt
proceeding and that Judge Babcock did not act in excess of his jurisdiction.
3. Judge Babcock has never denied petitioner the right to take the deposition of Howard
R. Hughes. He has merely postponed the scheduling of the Hughes deposition. The cases
cited by the majority as a basis for the issuance of the writ mandating Judge Babcock to set
aside the order staying Hughes's deposition are, in my opinion, not relevant in these
proceedings. Those cases all involved a factual situation where a trial judge had flatly denied
the petitioner a clear legal right and from which petitioner had no redress but to seek the relief
of an extraordinary writ, or they involved direct appeals to the appellate courts from final
judgments. For example, in Texaco, Inc. v. Borda, 383 F.2d 607 (3d Cir. 1967), cited by the
majority, the trial judge had denied the petitioner's right to take a 71-year-old woman's
deposition, and he would not entertain petitioner's motion to depose the witness until
after the termination of certain criminal proceedings that conceivably would not be
concluded for several years.
____________________

5
Maheu testified in the court below that he did remove certain Hughes Tool Company records. He
represented that he returned all the documents. Yet in his present argument he urges that he had no duty to
release the documents and that the order requiring him to do so should be stayed pending appeal. It would be
quite anomalous if petitioner had a right to a stay of the injunction requiring him to do acts that he concedes
should have been done and that he claims were done.
88 Nev. 26, 51 (1972) Maheu v. District Court
majority, the trial judge had denied the petitioner's right to take a 71-year-old woman's
deposition, and he would not entertain petitioner's motion to depose the witness until after the
termination of certain criminal proceedings that conceivably would not be concluded for
several years. Even in the Borda case, the court said, at 608:
We do not agree that Judge Augelli [the trial judge] abused his discretion in staying all
other proceedings in Borda's case pending determination of the Government's criminal action.
On the latter score it is settled law that * * * the power to stay proceedings is incidental
to the power inherent in every court to control the disposition of the causes on its docket with
the economy of time and effort for itself, for counsel, and for litigants. How this can best be
done calls for the exercise of judgment, which must weigh competing interests and maintain
an even balance.' Landis v. North American Co., 299 U.S. 248, 254-255, 57 S.Ct. 163, 166,
81 L.Ed. 153 (1936).
Judge Babcock was attempting to do this very thing until this court interrupted and stayed
all pending proceedings in July 1971.
The concurring majority opinion cites as authority for the granting of the writ of mandate
Trans World Airlines, Inc. v. Hughes, 332 F.2d 602, 614 (1964). This case is not applicable,
because it was an appeal from a final default judgment.
6

For these reasons, I would deny the petition for the writs. Judge Babcock has not exceeded
his jurisdiction. His scheduling of the stay motion before the other pending motions was a
discretionary act inherent in his power to control the disposition of the motions on his docket.
He has not denied petitioner the right to depose Hughes. Petitioner may not complain about
delays in these proceedings. He delayed the proceedings with his motion for a new judge. A
reading of the transcripts of the April, May, and June hearings reveals multiple delays. I can
foresee, by the pronouncement made by the court today, the filing of unlimited petitions for
extraordinary relief from litigants who feel aggrieved by the management of their cases,
which petitions will result in further continuances and frustrations in the already painful delay
in the disposition of litigation.
____________________

6
Likewise, the Arizona authorities cited by the majority are not the law of Nevada.
____________
88 Nev. 52, 52 (1972) DuFrane v. Sheriff
JOSEPH P. DuFRANE, Appellant, v. SHERIFF,
WASHOE COUNTY, NEVADA, Respondent.
No. 6718
February 2, 1972 495 P.2d 611
Appeal from order denying pre-trial petition for writ of habeas corpus. Second Judicial
District Court, Washoe County; John E. Gabrielli, Judge.
Accused petitioned for writ of habeas corpus on ground that his confinement was unlawful
because of want of sufficient evidence to constitute probable cause to believe that a crime had
been committed and that accused committed it and because of a violation of his constitutional
rights. The district court entered an order denying relief and the petitioner appealed. The
Supreme Court held that testimony before grand jury of police informer relating to his contact
with accused for purchase of heroin and corroborating testimony of police officer who
observed the transaction and listened to conversation between informer and accused by means
of a receiving device was sufficient to constitute probable cause for indictment of accused for
sale of narcotics, notwithstanding claim that there was no proof that the substance sold was in
fact a narcotic; necessary implication from terminology used by accused to describe the
substance was that the substance was a narcotic.
Affirmed.
H. Dale Murphy, Public Defender, and William N. Dunseath, Deputy Public Defender,
Washoe County, for Appellant.
Robert List, Attorney General, Robert E. Rose, District Attorney, and Keith L. Lee, Deputy
District Attorney, Washoe County, for Respondent.
1. Indictment and Information.
Testimony before grand jury of police informer relating to his contact with accused for purchase of
heroin and corroborating testimony of police officer who observed the transaction and listened to
conversation between informer and accused by means of a receiving device was sufficient to constitute
probable cause for indictment of accused for sale of narcotics, notwithstanding claim that there was no
proof that the substance sold was in fact a narcotic; necessary implication from terminology used by
accused to describe the substance was that the substance was a narcotic. NRS 453.030.
2. Habeas Corpus.
Testimony was sufficient to support representation by state that a reasonable pre-arrest delay
was necessary due to continuing investigation of narcotics sale charge against
accused or of other charges.
88 Nev. 52, 53 (1972) DuFrane v. Sheriff
a reasonable pre-arrest delay was necessary due to continuing investigation of narcotics sale charge against
accused or of other charges. U.S.C.A.Const. Amends. 5, 6.
3. Constitutional Law.
There was no showing of a due process violation with respect to accused because of a pre-arrest delay
caused by a continuing investigation of accused who presented a wholly unconvincing claim of prejudice
by delay. U.S.C.A.Const. Amends. 5, 6.
OPINION
Per Curiam:
The appellant petitioned for a writ of habeas corpus, contending that his confinement was
unlawful, first for want of sufficient evidence to constitute probable cause to believe that a
crime had been committed and that he committed it, and second, for violation of his
constitutional rights due to a prejudicial pre-arrest delay.
He had been charged by indictment with sale of narcotics in violation of NRS 453.030.
The grand jury heard the testimony of a police informer that he contacted the appellant for the
purpose of purchasing narcotics; that on October 12, 1970, after being searched by a police
officer to determine that he had no narcotics on his person, he and an officer went to the
prearranged location to make the purchase; that when the appellant objected to the presence
of a third person the officer returned to his car; that the informer and the appellant discussed
the transaction, during which discussion the appellant referred to the substance
interchangeably as heroin, smack and stuff, he described it as good stuff, and that the
heroin was brown in color; that the informer gave the appellant $50.00 for a quantity of the
substance; that the appellant then walked to a nearby telephone booth where he left the
substance; that when the informer retrieved the substance the appellant returned to see if any
of it was being pinched because he wanted some for himself; that on his way back to the
car where the officer was waiting the informer saw a person believed to be the appellant's
main supplier; and that the informer had been talking with the appellant previously about
making a big deal with him. The informer also testified that he had been equipped with a
radio transmitter which he wore under his clothes.
That testimony was corroborated by another police officer whose assignment was to
observe the transaction between the informer and the appellant. He testified that he had
searched the informer to ascertain that he had no narcotics, that he observed the
informer's meeting with the appellant and listened to their conversation by means of a
receiver he had for the transmitter carried by the informer.
88 Nev. 52, 54 (1972) DuFrane v. Sheriff
the informer to ascertain that he had no narcotics, that he observed the informer's meeting
with the appellant and listened to their conversation by means of a receiver he had for the
transmitter carried by the informer.
On the proof thus presented to them, the grand jury returned an indictment against the
appellant on May 13, 1971, some seven months after the transaction between the informer
and the appellant. The appellant had been arrested on April 1, 1971.
[Headnote 1]
The appellant's first assignment of error, which is directed to the sufficiency of the
evidence to constitute probable cause, is without merit. While proof that the substance sold
was in fact a narcotic is required to be shown beyond a reasonable doubt at trial, that quantum
of proof is not required before a grand jury. Glosen v. Sheriff, 85 Nev. 145, 451 P.2d 841
(1969). In that case we said [T]he standard of probable cause is satisfied if the person
against whom an indictment is sought either directly, or by necessary implication, represents
that the substance he is selling is [a narcotic]. In this case the testimony of the informer,
previously described, was corroborated by the testimony of a police officer who observed the
transaction and who listened to the conversation between the informer and the appellant by
means of a receiving device. The terminology used by the appellant to describe the substance
in question is generally known to refer to heroin. Its necessary implication was that the
substance in question was a narcotic.
Under the total circumstances revealed by this grand jury transcript, including the
controlled and fully supervised nature of the transaction, which was observed and heard by a
qualified police officer including the appellant's representations to the informer, the
informer's resulting knowledge was the knowledge of the police officer. Such proof in these
circumstances is sufficient to constitute probable cause.
[Headnote 2]
With regard to the appellant's second assignment of error, he attempted to demonstrate that
he had been prejudiced by the pre-arrest delay by testifying that after his arrest neither he nor
any members of his family were able to recall his actions or his whereabouts on the date in
question, and that he was thus unable to prepare and present a proper defense to the charge.
The state replied that the pre-arrest delay was due to a continuing investigation of the charge
against the appellant or of other charges. The testimony of the informer at the grand jury
hearing made reference to his discussions with the appellant concerning "some big deal
with him."
88 Nev. 52, 55 (1972) DuFrane v. Sheriff
jury hearing made reference to his discussions with the appellant concerning some big deal
with him. He also testified that after the transaction with the appellant he observed a person
believed to be the main supplier near the scene. Thus the state's representation that a
reasonable pre-arrest delay was necessary to enable a continuing investigation to be
conducted is supported by the record. Moreover, the district judge characterized the
appellant's effort to show prejudice by the pre-arrest delay as wholly unconvincing. Scott v.
State, 84 Nev. 530, 444 P.2d 902 (1968).
[Headnote 3]
Klopfer v. North Carolina, 386 U.S. 213 (1967), extended the Sixth Amendment speedy
trial provision to state criminal cases. On December 20, 1971, the United States Supreme
Court decided United States v. Marion, 404 U.S. 307. The issue was whether dismissal of a
federal indictment was constitutionally required by reason of a period of three years between
occurrence of the alleged criminal acts and the filing of the indictment. Four members of that
Court expressed themselves to the effect that the Sixth Amendment speedy trial provision has
no application until the putative defendant in some way becomes an accused, and declined to
extend the reach of the Sixth Amendment to the period prior to arrest. They noted that the
applicable statute of limitations is the primary guarantee against bringing overly stale charges.
All seven members participating in that case agreed that the Due Process Clause of the Fifth
Amendment may be relevant to pre-indictment delay if it is shown that substantial prejudice
to a fair trial resulted. On the record before us, and at this stage of the proceeding, we do not
find a due process violation.
Affirmed.
____________
88 Nev. 55, 55 (1972) Lighthouse v. Great W. Land & Cattle
CONSTANCE M. LIGHTHOUSE, Appellant, v. GREAT WESTERN LAND
& CATTLE CORPORATION, a Nevada Corporation, Respondent.
No. 6553
February 3, 1972 493 P.2d 296
Appeal from order of the Second Judicial District Court, Washoe County, granting
summary judgment; John W. Barrett, Judge.
88 Nev. 55, 56 (1972) Lighthouse v. Great W. Land & Cattle
The district court granted summary judgment to defendant, and plaintiff appealed. The
Supreme Court, Thompson, J., held that where Sixth Judicial District Court, in a prior related
action, dismissed counterclaim without prejudice under rule compelling dismissal of an
action not brought to trial within five years, and where no appeal was taken testing that
court's exercise of its discretion to dismiss without prejudice, the subsequent action, which
asserted the identical claim for relief and which was brought before the statute of limitations
had run, was not barred by the holding in the prior case.
Reversed.
Mowbray, J., dissented.
Stewart, Horton & McKissick, of Reno, for Appellant.
Robert R. Herz, of Reno, for Respondent.
1. Judgment.
Where a district court, in a prior related action, dismissed counterclaim without prejudice under rule
compelling dismissal of an action not brought to trial within five years, and where no appeal was taken
testing that court's exercise of its discretion to dismiss without prejudice, subsequent action, which
asserted the identical claim for relief and which was brought before the statute of limitations had run, was
not barred by the holding in the prior case. NRCP 41(e).
2. Dismissal and Nonsuit.
Dismissal of an action or counterclaim not brought to trial within five years is mandatory, but the district
court retains discretion to decide whether the dismissal shall bar another action upon the same claim.
NRCP 41(e).
OPINION
By the Court, Thompson, J.:
[Headnote 1]
This appeal is from a summary judgment in favor of the respondent. The district court
believed that our holding in Great W. Land & Cattle v. District Ct., 86 Nev. 282, 467 P.2d
1019 (1970), barred the prosecution of this case. We there held that NRCP 41(e) compelling
the dismissal of an action not brought to trial within five years applies to a counterclaim as
well, and prohibited the district court from proceeding to trial upon such a counterclaim. That
court honored our writ, dismissed the counterclaim, but without prejudice. Its exercise of
discretion in dismissing without prejudice was not challenged by appeal in that case. Cf.
Lindauer v. Allen, S5 Nev. 430
88 Nev. 55, 57 (1972) Lighthouse v. Great W. Land & Cattle
of discretion in dismissing without prejudice was not challenged by appeal in that case. Cf.
Lindauer v. Allen, 85 Nev. 430, 456 P.2d 851 (1969). Since the statute of limitations had not
run against the claim for relief asserted in the counterclaim, the successor in interest of the
counterclaimant commenced the present action in the Second Judicial District Court asserting
the identical claim.
[Headnote 2]
Rule 41(e) was amended in 1964 to provide that a dismissal thereunder is a bar to another
action upon the same claim for relief. . . unless the court otherwise provides. The
amendment applies to all dismissals for want of prosecution and apparently was in response
to Dubin v. Harrell, 79 Nev. 467, 386 P.2d 729 (1963), where we held that a discretionary
two-year dismissal barred a subsequent action upon the same claim. It is now clear that the
dismissal of an action or counterclaim not brought to trial within five years is mandatory, but
that the district court retains discretion to decide whether the dismissal shall bar another
action upon the same claim. Indeed, this precise point was decided in Lindauer v. Allen, 85
Nev. 430, 456 P.2d 851 (1969). There, the district court dismissed an action not brought to
trial within five years and the dismissal was with prejudice. In affirming, we noted although
the district court might have ruled otherwise, it was within its discretion to dismiss the
complaint with prejudice and we find no abuse of that discretion. Id. at 437.
By appeal, the respondent could have tested the exercise of discretion by the Sixth Judicial
District Court in dismissing the counterclaim without prejudice. Lindauer v. Allen, supra. It
did not do so. The present action asserting the identical claim for relief is not barred.
Reversed.
Zenoff, C. J., and Batjer and Gunderson, JJ., concur.
Mowbray, J., dissenting:
I dissent.
The narrow issue presented in this case is whether a writ of prohibition issued by this court
ordering the Sixth Judicial District Court not to try a case 5 years after it had been filed may
be circumvented by refiling the case in another district.
The respondent, Great Western Land & Cattle Corporation, commenced an action in the
Sixth Judicial District Court against Appellant Constance M. Lighthouse's late husband, Noel
McElhaney. Mr. McElhaney filed a counterclaim. The case was never tried within the
5-year period prescribed in NRCP 41{e).1 After the 5-year period had run, McElhaney's
counsel set the case down for trial.
88 Nev. 55, 58 (1972) Lighthouse v. Great W. Land & Cattle
case was never tried within the 5-year period prescribed in NRCP 41(e).
1
After the 5-year
period had run, McElhaney's counsel set the case down for trial. Upon petition to this court, a
writ of prohibition was issued enjoining the Sixth Judicial District Court from going to trial.
See Great W. Land & Cattle Corp. v. District Court, 86 Nev. 282, 467 P.2d 1019 (1970). The
district judge thereupon dismissed Great Western's complaint with prejudice and the
McElhaney counterclaim without prejudice, relying, apparently, upon the final sentence in
Rule 41(e): A dismissal under this subdivision (e) is a bar to another action upon the same
claim for relief against the same defendants unless the court otherwise provides. (Emphasis
added.) This sentence was added to Rule 41(e) effective March 16, 1964.
The appellant in this case, Constance M. Lighthouse, as successor in interest to her late
husband, Noel McElhaney, then filed this action, which in essence was McElhaney's
counterclaim, in the Second Judicial District Court. The district judge, upon motion, granted
summary judgment in favor of Respondent Great Western Land & Cattle Corporation and
against Appellant Lighthouse. Lighthouse has appealed, claiming that the judge of the Second
Judicial District erred in not permitting her to proceed, since the judge of the Sixth Judicial
District had dismissed McElhaney's counterclaim without prejudice.
____________________

1
NRCP 41(e):
The court may in its discretion dismiss any action for want of prosecution on motion of the defendant and
after due notice to the plaintiff, whenever plaintiff has failed for two years after action is filed to bring such
action to trial. Any action heretofore or hereafter commenced shall be dismissed by the court in which the same
shall have been commenced or to which it may be transferred on motion of the defendant, after due notice to
plaintiff or by the court upon its own motion, unless such action is brought to trial within five years after the
plaintiff has filed his action, except where the parties have stipulated in writing that the time may be extended.
When, in any action after judgment, a motion for a new trial has been made and a new trial granted, such action
shall be dismissed on motion of defendant after due notice to plaintiff, or by the court of its own motion, if no
appeal has been taken, unless such action is brought to trial within three years after the entry of the order
granting a new trial, except when the parties have stipulated in writing that the time may be extended. When in
an action after judgment, an appeal has been taken and judgment reversed with cause remanded for a new trial
(or when an appeal has been taken from an order granting a new trial and such order is affirmed on appeal), the
action must be dismissed by the trial court on motion of defendant after due notice to plaintiff, or of its own
motion, unless brought to trial within three years from the date upon which remittitur is filed by the clerk of the
trial court. A dismissal under this subdivision (e) is a bar to another action upon the same claim for relief against
the same defendants unless the court otherwise provides.
88 Nev. 55, 59 (1972) Lighthouse v. Great W. Land & Cattle
her to proceed, since the judge of the Sixth Judicial District had dismissed McElhaney's
counterclaim without prejudice.
It is the law of this jurisdiction that dismissal is mandatory if a case has not been brought
to trial within 5 years of its filing date. See Bank of Nev. v. Friedman, 86 Nev. 747, 476 P.2d
172 (1970); Faye v. Hotel Riviera, Inc., 81 Nev. 350, 403 P.2d 201 (1965).
Counsel for Appellant Lighthouse argues that the sentence added to Rule 41(e) in 1964,
which provides that a dismissal under subdivision (e) is a bar unless the court otherwise
provides, gave the judge of the Sixth Judicial District the power to dismiss the complaint with
prejudice and the counterclaim without prejudice. Not so, in my opinion, under the posture of
this case. A writ of prohibition means precisely what it says, and while it may be directed to
one district judge, it becomes the law of the case. The intendment of the writ of prohibition
was to terminate the litigation. To hold otherwise is eminently unfair. For instance, it means
in this case that the party who initiated the litigation is out of court, while the party who was
brought into the litigation is permitted to continue, and that, because Great Western's
complaint was dismissed with prejudice, it has perhaps been precluded from asserting any
defenses it may have to the second complaint.
I would rule, therefore, that the district judge had no discretion in this case but to follow
the mandate of the writ of prohibition and terminate the litigation. The judgment of the lower
court, in my opinion, should be affirmed.
____________
88 Nev. 59, 59 (1972) Miranti v. Advance Management Corp.
LOUIS MIRANTI and PEARL MIRANTI, Appellants, v. ADVANCE MANAGEMENT
CORPORATION, a Nevada Corporation, WENDELL TOBLER, GOLDA S. TOBLER and
LEAVITT, FELGAR & BRIARE INSURANCE AGENCY, Respondents.
No. 6510
February 7, 1972 493 P.2d 707
Appeal from order granting summary judgment. Eighth Judicial District Court, Clark
County; Thomas J. O'Donnell, Judge.
Action for reconveyance of property which had been conveyed by bonding company to
defendants. The district court granted summary judgment and the plaintiffs appealed.
88 Nev. 59, 60 (1972) Miranti v. Advance Management Corp.
granted summary judgment and the plaintiffs appealed. The Supreme Court, Guinan, D. J.,
held, inter alia, that where grantors, who had entered an indemnity agreement with bonding
company which was writing bonds in connection with construction projects undertaken by
grantors, executed a grant, bargain and sale deed to company for purpose of securing
payments required to be made pursuant to indemnity agreement, company had right to sell the
property at any time, subject only to right of grantors to have proceeds applied in accordance
with the agreement, and even if such construction were incorrect, subsequent quitclaim deed
from grantors to company transferred any interest in property which grantors might have
retained.
Affirmed.
Gordon L. Hawkins, of Las Vegas, for Appellants.
Lionel Sawyer Collins & Wartman, of Las Vegas, for Respondents.
1. Deeds.
Where grantors, who had entered an indemnity agreement with bonding company which was writing
bonds in connection with construction projects undertaken by grantors, executed a grant, bargain and sale
deed to company for purpose of securing payments required to be made pursuant to indemnity agreement,
company had right to sell the property at any time, subject only to right of grantors to have proceeds
applied in accordance with the agreement, and even if such construction were incorrect, subsequent
quitclaim deed from grantors to company transferred any interest in property which grantors might have
retained.
2. Deeds.
Where grantors, who had entered an indemnity agreement with bonding company which was writing
bonds in connection with construction projects undertaken by grantors, executed a grant, bargain and sale
deed to company and thereafter executed a quitclaim deed for purpose of securing payments required to be
made pursuant to indemnity agreement, no further consideration was necessary since deeds were given
pursuant to obligations of grantors under the agreement.
3. Estoppel; Evidence.
In absence of fraud, undue influence or mistake, grantors who had executed grant, bargain and sale deed
and quitclaim deed to bonding company for purpose of securing the payments required to be made pursuant
to indemnity agreement between grantors and company were estopped to deny lack of consideration for the
deeds for purpose of defeating their operation, and parol evidence of lack of consideration
would not have been admissible at trial for that purpose.
88 Nev. 59, 61 (1972) Miranti v. Advance Management Corp.
parol evidence of lack of consideration would not have been admissible at trial for that purpose.
OPINION
By the Court, Guinan, D. J.:
This is an appeal from an order granting summary judgment in favor of respondents.
Appellants, Louis and Pearl Miranti, husband and wife, hereinafter referred to as the
Mirantis, were the owners of real property in Clark County, Nevada. They were engaged in
the construction business through two corporations which they controlled. United Bonding
Insurance Company, an Indiana Corporation, wrote bonds in connection with construction
projects undertaken by the Mirantis and, on April 6, 1966, the Mirantis entered an indemnity
agreement with the bonding company.
On October 10, 1967, the Mirantis executed a grant, bargain and sale deed to the bonding
company of property owned by them. The property was encumbered by a first deed of trust
securing a note in an amount in excess of $300,000. The deed was intended to secure the
obligations of the Mirantis under the indemnity agreement and contained the following
language:
The real property conveyed herein is for the purpose of securing payments required to be
made pursuant to a certain indemnity agreement of the grantee herein.
An agreement between the Mirantis and the bonding company executed on the same date
as the grant, bargain and sale deed contained the following language in regard to the
paragraph quoted above:
It is understood by the parties thereto that such paragraph is intended to provide that in
the event the real property described therein is subsequently sold for more than the
indebtedness against the same and the payments made on behalf of Nevcon, Inc., and Miranti
Construction Company, that any excess thereof shall be paid to Louis and Pearl Miranti; and
It is further understood and agreed that in the event that Louis Miranti obtains a sale for
said property in excess of said amounts, the United Bonding Insurance Company will
co-operate to consummate said transactions.
On November 14, 1967, the Mirantis executed a quitclaim deed to the bonding company
of all their right, title and interest in the same property.
88 Nev. 59, 62 (1972) Miranti v. Advance Management Corp.
in the same property. The bonding company sold the property, and the respondents were the
record owners thereof at the time this action was commenced.
The Mirantis sought two types of relief. They prayed for an accounting from the bonding
company and its agent for monies received and expended by them on behalf of the Mirantis in
connection with the construction contracts. That aspect of the case is not before us on this
appeal. They also sought reconveyance of the property to the bonding company, and the
respondents were joined as defendants for that purpose only.
[Headnote 1]
As we construe the grant, bargain and sale deed, the bonding company had the right to sell
the property at any time, subject only to the right of the Mirantis to have the proceeds applied
in accordance with the indemnity agreement. Their action for an accounting is pending in the
district court. Even if this construction were incorrect, the quitclaim deed transferred any
interest in the property which the Mirantis might have retained. Brophy M. Co. v. B. & D. M.
Co., 15 Nev. 101 (1880).
[Headnotes 2, 3]
Appellants contend that there was no consideration for either deed. The deeds were given
pursuant to the obligations of the Mirantis under the indemnity agreement, and no further
consideration was necessary. Furthermore, in the absence of fraud, undue influence or
mistake, appellants are estopped to deny lack of consideration for the deeds for the purpose of
defeating their operation, and parol evidence of lack of consideration would not have been
admissible at the trial for that purpose. Dalton v. Dalton, 14 Nev. 419 (1880), Feeney v.
Howard, 21 P. 984 (Cal. 1889), Russell v. Robbins, 93 N.E. 324 (Ill. 1910). There is no
allegation of fraud, undue influence or mistake in the complaint.
The order of the district court granting respondents' motion for summary judgment is
affirmed.
Zenoff, C. J., and Batjer, Mowbray, and Thompson, JJ., concur.
____________
88 Nev. 63, 63 (1972) In re Kellar
In the Matter of CHARLES L. KELLAR, Attorney at Law.
No. 6583
February 14, 1972 493 P.2d 1039
Petition for review of the Recommendation of the Board of Governors for the State Bar of
Nevada for the suspension of Petitioner.
The Supreme Court held that under record showing that attorney violated Supreme Court
Rule prohibiting an attorney from purchasing any interest in subject matter of litigation which
he is conducting attorney would be publicly reprimanded for his conduct and would be
cautioned to refrain from such conduct in the future and would be ordered to pay the costs
and fees incurred in connection with hearing before local administrative committee but would
not be suspended from practice in view of considerable evidence indicating that attorney was
misled by his client and was acting in good faith.
Recommendation modified.
Harry E. Claiborne, of Las Vegas, for Petitioner.
Richard W. Blakey, First Vice President; Robert R. Herz, Executive Secretary, State Bar of
Nevada; George E. Holt, Special Prosecutor, of Las Vegas, for Respondent.
William M. Lyons and James L. Long, of Sacramento, California, as Amici Curiae.
1. Attorney and Client.
Disciplinary proceedings against attorney were not defective because complaint did not specifically cite
Supreme Court Rule providing that an attorney shall not acquire an interest adverse to a client since all that
was required in complaint was a concise statement in simple language of misconduct which was claimed
constituted ground for his disbarment, suspension or reproval. SCR 138, 139, 166.
2. Attorney and Client.
The findings and recommendations of local administrative committee and the board of Governors of the
State Bar regarding disciplining of attorney are persuasive, but they are not binding upon the Supreme
Court. SCR 111.
3. Attorney and Client.
A member of the State Bar who knowingly or consciously, as distinguished from negligently or
inadvertently, engages in conduct prohibited by Supreme Court Rules is subject to sanctions of Supreme
Court Rule; it is not necessary that his conduct be accompanied by malice or an evil motive, but
good faith may be considered in mitigation of punishment.
88 Nev. 63, 64 (1972) In re Kellar
accompanied by malice or an evil motive, but good faith may be considered in mitigation of punishment.
SCR 163-204.
4. Attorney and Client.
Under record showing that attorney violated Supreme Court Rule prohibiting an attorney from purchasing
any interest in subject matter of litigation which he is conducting attorney would be publicly reprimanded
for his conduct and would be cautioned to refrain from such conduct in the future and would be ordered to
pay the costs and fees incurred in connection with hearing before the local administrative committee but
would not be suspended from practice in view of considerable evidence indicating that attorney was misled
by his client and was acting in good faith. SCR 163-204.
OPINION
Per Curiam:
This matter is before us on an application filed pursuant to Supreme Court Rule 111 for
review of a recommendation of the Board of Governors of the State Bar of Nevada that the
applicant, Charles L. Kellar, be suspended from the practice of law for one year and assessed
the costs of his hearing before the Local Administrative Committee, District No. 1, Clark
County.
In September 1967, Kellar agreed to defend one Sara Sims in an eviction action in the
Justice's Court of Las Vegas Township. Sims represented to Kellar that she and her family
had occupied the premises for many years under a contract of sale and had acquired an equity
in the property. Kellar moved to dismiss the eviction action on the ground that an interest in
real property was involved and that, therefore, the justice's court was without jurisdiction. The
action was continued.
Sims was unable to produce any documentation of her claim to an interest in the property,
nor was there any record in the office of the County Recorder of Clark County of such an
interest. We conclude that Sims never had an interest in the property other than as a tenant for
a term of less than one year. In November, Kellar advised Sims that in his opinion the only
way she could retain possession of the property was to purchase it.
There is a conflict in the testimony as to what transpired thereafter, and as to how much
Sims knew about what transpired. It is clear that Kellar made arrangements with the owner of
the property for its purchase by Sims, and opened an escrow in Sims's name; that Charmicor,
Inc., which was owned by Kellar and his wife, was substituted as purchaser on January 22,
1968, and made a deposit of $500 as required by the escrow instructions; and that
Charmicor, Inc., completed the purchase on February 21, 196S, for $S,000, took an
assignment of overdue rents from the former owner of the property, and evicted Sims in
April 196S. It is also clear that Charmicor, Inc., offered to sell the property to Sims for
$S,000, plus attorneys fees and costs, and continued such offer until Sims was evicted
after her refusal either to purchase the property or to pay rent.
88 Nev. 63, 65 (1972) In re Kellar
by the escrow instructions; and that Charmicor, Inc., completed the purchase on February 21,
1968, for $8,000, took an assignment of overdue rents from the former owner of the property,
and evicted Sims in April 1968. It is also clear that Charmicor, Inc., offered to sell the
property to Sims for $8,000, plus attorneys fees and costs, and continued such offer until
Sims was evicted after her refusal either to purchase the property or to pay rent.
Kellar contended that he made the $500 down payment, through Charmicor, Inc., at the
request of Sims, and on her behalf, because she was unable to raise the money, and that he
caused the purchase to be completed on her behalf, as indicated by his willingness to cause
Charmicor, Inc., to convey the property to her upon payment of the purchase price.
Sims contended that she had no contact with Kellar from some time in November until
February when she was informed Charmicor, Inc., had purchased the property. There is some
evidence in the record to contradict that contention.
Upon the complaint of Sara Sims, the local administrative committee found that Kellar
had violated Supreme Court Rule 166, which provides: A member of the state bar shall not
acquire an interest adverse to a client. The committee recommended that he be suspended
from the practice of law for three years and be required to pay the costs of the hearings. The
Board of Governors concurred, except as to the length of the suspension.
[Headnote 1]
Kellar contends that the proceedings against him were defective because the complaint did
not specifically cite Supreme Court Rule 166. All that was required in the complaint was . . .
a concise statement in simple language of the misconduct of the accused which it is claimed
constitutes ground for his disbarment, suspension or reproval. Supreme Court Rules 138 and
139. It was not necessary to include in the complaint anything more than the alleged facts
upon which the complaint was based.
[Headnote 2]
The findings and recommendations of the committee and the board are persuasive, but
they are not binding upon this court. In re Miller, 87 Nev. 65, 482 P.2d 326 (1971).
At the time of the occurrences here involved, Canon 10 of the Canons of Professional
Ethics of the American Bar Association, which were adopted by reference and made
additional rules of professional conduct of the State Bar of Nevada by Supreme Court Rule
203, provided: "The lawyer should not purchase any interest in the subject matter of the
litigation which he is conducting."
88 Nev. 63, 66 (1972) In re Kellar
Supreme Court Rule 203, provided: The lawyer should not purchase any interest in the
subject matter of the litigation which he is conducting.
[Headnote 3]
Supreme Court Rule 163 provides, among other things: The willful breach of any of
Rules 163 to 204, inclusive, shall be punished by reprimand, public or private, or by
suspension from practice, or by disbarment. A member of the State Bar of Nevada who
knowingly or consciously, as distinguished from negligently or inadvertently, engages in
conduct which is prohibited by Supreme Court Rules 163 to 204, inclusive, is subject to the
sanctions of Supreme Court Rule 163. It is not necessary that his conduct be accompanied by
malice or an evil motive. Good faith may, however, be considered in mitigation of
punishment.
[Headnote 4]
From the time Kellar caused Charmicor, Inc., to deposit $500 toward purchase of the
property, and changed the name in the escrow instructions from Sara Sims to Charmicor, Inc.,
he was in violation of Canon 10. His conduct in causing Charmicor, Inc., to complete the
transaction served only to increase the magnitude of the offense. If, after committing the
initial violation, he discovered for the first time that Sims could not arrange financing for
purchase of the property, as he contends, he should have withdrawn from the transaction,
even though forfeiture of the deposit would have resulted.
Kellar was also in violation of Supreme Court Rule 166. Even if his testimony is accepted,
i.e., that he made the down payment and subsequently completed the purchase on behalf of
Sims, and was always ready to convey the property to her upon her payment of the purchase
price, he also took an assignment of the overdue rent from the owner of the property and
attempted to collect it from Sims. Acquisition of that claim was certainly acquisition of an
interest adverse to Sims. It was part of the claim he was engaged to defend against. It has
been contended that because Sims had no interest in the property in the form of an estate in
land, Kellar could not have acquired an interest adverse to her interest. That is too narrow an
interpretation of the word interest. Sims's desire was to retain possession of the property.
Whether or not that desire was realistic is irrelevant. It was Kellar's function to assist her, if
legal means were available, to accomplish that desire, or to inform her that he could not.
Kellar's acquisition of the property through Charmicor, Inc., eventually resulted in Sims's
eviction by him.
88 Nev. 63, 67 (1972) In re Kellar
of the property through Charmicor, Inc., eventually resulted in Sims's eviction by him. This
was the result he was engaged to prevent, and was obviously an interest adverse to her
interest.
There is considerable evidence in the record to indicate that Kellar was misled by his client
and was acting in good faith, at least until he made the decision to cause Charmicor, Inc., to
complete the purchase of the property after having made the initial deposit. These mitigating
circumstances do not excuse Kellar's conduct, but they convince us that the penalties
recommended by the local administrative committee and the Board of Governors are too
severe.
It is therefore ordered that Charles L. Kellar is hereby publicly reprimanded for his
conduct in violating the Supreme Court Rules referred to in this opinion, and is hereby
cautioned to refrain from such conduct in the future; and
It is further ordered that he pay to the State Bar of Nevada the costs and fees incurred in
connection with his hearing before the local administrative committee in the total amount of
$3,774.90.
____________
88 Nev. 67, 67 (1972) Zeldin v. Agricultural Dist. No. 4
BERNARD ZELDIN, FRANK COBERT and MEYER ROVINSKY,
Appellants, v. AGRICULTURAL DISTRICT NO. 4, COUNTY OF ELKO,
STATE OF NEVADA, Respondent.
No. 6599
February 15, 1972 495 P.2d 366
Appeal from orders of the Fourth Judicial District Court, Elko County, denying motions
for change of venue; George F. Wright and Joseph O. McDaniel, Judges.
Affirmed.
Edwin J. Dotson, of Las Vegas, for Appellants.
Mark C. Scott, Jr., of Elko, for Respondent.
OPINION
Per Curiam:
This appeal is from orders denying a change of venue from Elko County to Clark County.
NRCP 72(b)(2). We can find no error in the district court's determination that
respondent's action is predicated upon obligations appellants contracted to perform in
Elko County.
88 Nev. 67, 68 (1972) Zeldin v. Agricultural Dist. No. 4
find no error in the district court's determination that respondent's action is predicated upon
obligations appellants contracted to perform in Elko County. NRS 13.010(1).
Affirmed.
____________
88 Nev. 68, 68 (1972) Julian v. City of Las Vegas
CHARLES JULIAN, dba BOOK BAR, and MINI MOVIES, INC., dba
FUN CITY, Appellants, v. CITY OF LAS VEGAS, NEVADA,
a Municipal Corporation, Respondent.
No. 6592
February 15, 1972 493 P.2d 1037
Appeal from judgment of the Eighth Judicial District Court, Clark County; William R.
Morse, Judge.
Action for injunctive relief against sale and distribution of allegedly obscene materials.
The district court entered a final judgment granting injunctive relief and an appeal was taken.
The Supreme Court, Thompson, J., held that seizure of allegedly obscene materials in
advance of an adversary hearing on issue of obscenity was violative of First Amendment
protection of free speech, even though materials were seized under a search warrant.
Reversed.
Mowbray, J., dissented.
[Rehearing denied March 15, 1972]
Harry E. Claiborne, of Las Vegas, for Appellants.
Earl P. Gripentrog, City Attorney, and Joan D. Buckley, Deputy City Attorney, Las Vegas,
for Respondent.
1. Constitutional Law.
Seizure of allegedly obscene materials in advance of an adversary hearing on issue of obscenity was
violative of First Amendment protection of free speech, even though materials were seized under a search
warrant. U.S.C.A.Const. Amend. 1.
2. Constitutional Law.
Proper respect to First Amendment protection of free speech requires an adversary hearing on issue of
obscenity prior to seizure of items believed to be obscene in either criminal proceedings or proceedings for
a civil injunction. U.S.C.A.Const. Amend. 1.
3. Obscenity.
Under statute providing that if a final order or judgment of injunction is entered such order or
judgment shall contain a provision directing seizure and destruction of obscene prints
and articles, seizure and destruction may only be ordered after an adversary hearing
and judicial determination of obscenity.
88 Nev. 68, 69 (1972) Julian v. City of Las Vegas
injunction is entered such order or judgment shall contain a provision directing seizure and destruction of
obscene prints and articles, seizure and destruction may only be ordered after an adversary hearing and
judicial determination of obscenity. NRS 201.250, subd. 4.
OPINION
By the Court, Thompson, J.:
[Headnote 1]
This appeal is from a final judgment enjoining the sale and distribution of certain
mini-movie films, books and pamphlets found by the district court to be hard core
pornography and subject to suppression under NRS 201.250(4). We have concluded that the
judgment must be set aside since the items were unconstitutionally seized in advance of an
adversary hearing on the issue of obscenity. Glass v. Eighth Judicial District Court, 87 Nev.
321, 486 P.2d 1180 (1971).
1

Fun City and Book Bar are businesses licensed by the City of Las Vegas. Each possessed
several mini-movie machines and films therefor which one could view by depositing 25 cents
for each two-minute segment of the film seen. The Book Bar also had books and pamphlets
for sale.
On separate occasions a Las Vegas police officer entered each establishment, viewed the
films, and when in the Book Bar also looked at a pamphlet. He did not purchase the pamphlet
or any others available for purchase. Search warrants were thereafter issued ex parte by a
magistrate on the basis of affidavits prepared by the officer who had viewed the films and the
pamphlet. The warrants were served, the films seized at each establishment, and eleven
pamphlets from the Book Bar as well.
2

[Headnotes 2, 3]
In Glass v. Eighth Judicial District Court, supra, we held that appropriate deference to the
First Amendment protection of free speech requires that a hearing "designed to focus
searchingly on the issue of obscenity" occur prior to seizure of the items believed to be
obscene.
____________________

1
Glass, supra, was decided after the district court ruling, and while the instant matter was pending appeal.

2
Of the 12 films seized at Fun City, only two were later received in evidence. The record does not tell us
whether the 10 films not received in evidence were lost, considered not to be obscene, returned to the proprietor,
or what. The eleven pamphlets which were received in evidence (some were duplicates) were not purchased by
the officer, and it is clear that almost all of them were not viewed by him prior to seizure. These circumstances
point up the wisdom and need for a judicial adversary hearing on the issue of obscenity prior to seizure.
88 Nev. 68, 70 (1972) Julian v. City of Las Vegas
of free speech requires that a hearing designed to focus searchingly on the issue of
obscenity occur prior to seizure of the items believed to be obscene. Compliance with the
proscriptions of the Fourth Amendment is not sufficient. Glass involved the criminal portions
of our obscenity law. The instant matter was a civil injunction proceeding. This difference
between the two cases is irrelevant to the prior adversary hearing requirement. Proper respect
to First Amendment protections must be given in either instance. Indeed, NRS 201.250(4)
under which the present action for injunction was instituted, itself contemplates an adversary
hearing prior to seizure. A part of that statute provides that if a final order or judgment of
injunction is entered. . . such final order or judgment shall contain a provision directing. . .
surrender to the sheriff. . . and of the matter described. . . and such sheriff shall be directed to
seize and destroy such obscene prints and articles. It is apparent that seizure and destruction
may only be ordered after an adversary hearing and judicial determination of obscenity.
The unconstitutional seizure in advance of an adversary hearing on the issue of obscenity
is dispositive of this appeal. Accordingly, other issues presented will not be considered.
Reversed.
Zenoff, C. J., and Gunderson, J., concur.
Batjer, J., concurring:
I agree that the judgment of the trial court must be set aside, not because of the holding of
this court in Glass v. Eighth Judicial District Court, 87 Nev. 321, 486 P.2d 1180 (1971), but
because the alleged obscene material was seized at the outset pursuant to a search warrant
issued ex parte by a magistrate on the basis of affidavits prepared by the police officer who
viewed the material. Such a procedure is not authorized under NRS 201.250(4), NRCP 65 or
NRCP 45. There is no provision under NRS 201.250(4) for the seizure of allegedly obscene
material until after the hearing as provided for in NRS 201.250(4) and a finding that the
material is obscene. See City of Phoenix v. Fine, 420 P.2d 26 (Ariz. 1966).
If the respondent had adhered to the clearly defined procedures found in NRS 201.250 and
NRCP 65, had taken advantage of the opportunity to take depositions and make discoveries
under NRCP 26 to 37, inclusive, and had enlisted the aid of NRCP 45, I am convinced that all
the pitfalls encountered in this case would have been avoided. If in the future, law
enforcement officers and city or district attorneys carefully follow the procedures set out
in the statute and rules above mentioned, I believe they will be successful in maintaining
any action they might bring to enjoin the further publication or sale of obscene material.
88 Nev. 68, 71 (1972) Julian v. City of Las Vegas
law enforcement officers and city or district attorneys carefully follow the procedures set out
in the statute and rules above mentioned, I believe they will be successful in maintaining any
action they might bring to enjoin the further publication or sale of obscene material.
Mowbray, J., dissenting:
I dissent.
My views on the requirement of a prior adversary hearing in processing these obscenity
cases have been set forth in Glass v. Eighth Judicial District Court, 87 Nev. 321, 486 P.2d
1180 (1971), and it would serve no purpose to reiterate them in this case. I would only add in
this dissent that, after Glass was decided on July 2, 1971, the United States Court of Appeals
for the District of Columbia on October 7, 1971, joined those jurisdictions that have refused
to hold unconstitutional a seizure of obscene materials under a search warrant without a prior
adversary hearing. See Huffman v. United States, 10 CrL 2076 (D.C.Cir. Oct. 7, 1971).
____________
88 Nev. 71, 71 (1972) Crescent v. White
RALPH J. CRESCENT, Appellant, v. GILL WHITE, Also Known as
GARLAND WHITE, and DOROTHY E. WHITE, Also Known as
DOROTHY E. NORD, Respondents.
No. 6625
February 17, 1972 493 P.2d 1323
Appeal from judgment of the First Judicial District Court, in and for the County of
Churchill; Richard L. Waters, Jr., Judge.
Action to set aside fraudulent conveyance. The district court dismissed the action and
plaintiff appealed. The Supreme Court held that recordation of debtor's deed was not
constructive notice to creditors so as to commence running of limitations on action to set
aside fraudulent conveyance.
Reversed and remanded.
James F. Sloan, of Reno, for Appellant.
Diehl, Recanzone, Evans & Smart, of Fallon, for Respondents.
88 Nev. 71, 72 (1972) Crescent v. White
Limitation of Actions.
Recordation of debtor's deed was not constructive notice to creditors so as to commence running of
limitations on action to set aside fraudulent conveyance. NRS 11.190, subd. 3(d), 111.320, 112.010 et
seq.
OPINION
Per Curiam:
At pre-trial conference, the district court dismissed plaintiff's action, which seeks to have a
deed from defendant husband to defendant wife declared void under the Uniform Fraudulent
Conveyance Act, NRS 112.010 et seq. The court evidently believed recording the deed
constituted constructive notice to creditors, as well as to subsequent purchasers and
mortgagees, NRS 111.320, thus conclusively establishing an affirmative defense based on
the statute of limitations, NRS 11.190(3)(d).
1

It is not our understanding, however, that the statute gives notice to all persons in all
situations. As was said by this court in the case of Wilson v. Wilson, 23 Nev. 267, 45 P.
1009, 1010, We are satisfied, however, that the statute of this state concerning records
(section 2594, Gen.St.) is not intended to impart notice other than to subsequent purchasers
and mortgagees. . . .' In Re Wilson's Estate, 56 Nev. 500, 501-502, 56 P.2d 1207, 1208
(1936); cf. Allen v. Webb, 87 Nev. 261, 485 P.2d 677 (1971).
Reversed and remanded.
____________________

1
NRS 111.320 provides: Every such conveyance or instrument of writing, acknowledged or proved and
certified, and recorded in the manner prescribed in this chapter, shall, from the time of filing the same with the
recorder for record, impart notice to all persons of the contents thereof; and subsequent purchasers and
mortgagees shall be deemed to purchase and take with notice.
NRS 11.190(3)(d) allows 3 years to commence [a]n action for relief on the ground of fraud or mistake,
providing further that the cause of action in such case is not to be deemed to have accrued until the discovery
by the aggrieved party of the facts constituting the fraud or mistake.
____________
88 Nev. 73, 73 (1972) In re Wilson
In the Matter of the Petition of LEONARD ALBERT WILSON
for Admission to the State Bar of Nevada.
No. 6330
February 17, 1972 493 P.2d 1036
Petition for admission to the State Bar of Nevada.
The Supreme Court held that rule providing that, as condition to admission to practice in
state, person, who has been disbarred in another jurisdiction, must have been restored to
practice in such jurisdiction and must have practiced in such state for at least one year after
restoration was inapplicable to petitioner, who reestablished his residence in Nevada and
passed bar examination before adoption of the rule.
Petition granted.
Wiener, Goldwater, Galatz & Raggio, Ltd., of Las Vegas, for Petitioner.
Howard L. Cunningham, of Reno, for Respondent Board of Bar Examiners.
Attorney and Client.
Rule providing that, as condition to admission to practice in state, person, who has been disbarred in
another jurisdiction, must have been restored to practice in such jurisdiction and must have practiced in
such state for at least one year after restoration was inapplicable to petitioner, who reestablished his
residence in Nevada and passed bar examination before adoption of the rule. SCR 101.
OPINION
Per Curiam:
Having passed the bar examination administered by our board of bar examiners, and
having removed the one impediment to his admission that the board mentioned when it first
recommended he be denied the right to practice law, petitioner has applied for admission to
the State Bar of Nevada. The board's Answer opposes petitioner's admission because he has
not complied with SCR 101, by residing and actively practicing law in California for not less
than one year after his restoration to practice there. However, we deem SCR 101 inapplicable
to petitioner, who reestablished his residence in Nevada, and passed the bar examination,
long before we adopted SCR 101.
88 Nev. 73, 74 (1972) In re Wilson
It is therefore the decision and order of the court that petitioner be admitted to the State
Bar of Nevada, upon taking the oath of office.
____________
88 Nev. 74, 74 (1972) Moore v. State
ARTHUR J. MOORE, Appellant, v. STATE OF
NEVADA, Respondent.
No. 6626
February 18, 1972 493 P.2d 1035
Appeal from a conviction of murder in the first degree and attempted murder in the first
degree, Second Judicial District Court, Washoe County; John W. Barrett, Judge.
The Supreme Court held that the assignment that the statute defining the degrees of
murder was unconstitutional would not be considered, where the appellant cited no authority
to support such position and no error or violation of due process presented itself, and that
even if Supreme Court would consider the charge, the statute would not be unconstitutional
on ground that the jury knowing penalty for first degree murder but being kept in ignorance as
to penalty for second degree murder were more likely to convict of first degree.
Affirmed.
Samuel B. Francovich, of Reno, for Appellant.
Robert List, Attorney General, and Robert E. Rose, District Attorney of Washoe County,
for Respondent.
1. Criminal Law.
Assignment of error that statute in directing jury to set the degree and to decide penalty if they find
defendant guilty of first degree murder is unconstitutional on ground that the jury knowing penalty for first
degree murder but being kept in ignorance as to penalty for second degree murder are more likely to
convict of first degree would not be considered, where appellant cited no authorities in support of such
position and no error or violation of due process clearly presented itself. NRS 200.030.
2. Criminal Law.
Even it Supreme Court would consider the charge, the statute defining degrees of murder, in directing
jury to set degree and to decide penalty if they find defendant guilty of first degree murder would not be
held unconstitutional on ground that the jury, knowing penalty of first degree murder, but being kept in
ignorance as to penalty for second degree murder were more likely to convict of first degree. NRS
200.030.
88 Nev. 74, 75 (1972) Moore v. State
3. Homicide.
In prosecution for first degree murder and attempted murder in the first degree, instruction that except in
offense of murder in the first degree punishment provided by law for all other offenses charged in
indictment was not to be considered by jury in arriving at an impartial verdict as to guilt or innocence of
the defendant was proper. NRS 200.030.
OPINION
Per Curiam:
The appellant contends that his conviction for first degree murder and attempted murder in
the first degree must be set aside because the statute under which he was sentenced is
unconstitutional.
NRS 200.030 defines degrees of murder, directs the jury to set the degree and to decide the
penalty if they find the defendant guilty of first degree murder. The appellant contends that
this statute is unconstitutional because the members of a jury, knowing the penalty for first
degree murder, but being kept in complete ignorance as to the penalty for second degree
murder, are more likely to convict of first degree.
[Headnote 1]
The appellant has cited no authorities in support of his position. Therefore, since no
error or violation of due process clearly presents itself, this court will not consider the
assignment of error. Howarth v. El Sobrante Mining Corp., 87 Nev. 492, 489 P.2d 89 (1971);
Carson v. Sheriff, 87 Nev. 357, 487 P.2d 334 (1971); Smithart v. State, 86 Nev. 925, 478
P.2d 576 (1970).
[Headnotes 2, 3]
Even if this court were willing to indulge in the speculation that there is a tendency to
convict of first degree murder merely because the penalty for second degree is unknown to
the jury, the statute under consideration would not be the proper vehicle to effect a change in
this alleged unfair procedure. NRS 200.030 does not direct that the penalty for second degree
shall not be revealed to the jury. It was the standard instruction given in this case which
provided that except in the offense of Murder in the First Degree, the punishment provided
by law for all other offenses charged in this Indictment is not to be considered by the jury in
arriving at an impartial verdict as to the guilt or innocence of the accused. An instruction of
this type directing the jury not to involve the question of guilt with a consideration of the
penalty is proper.
88 Nev. 74, 76 (1972) Moore v. State
of guilt with a consideration of the penalty is proper. People v. Shannon, 305 P.2d 101
(Cal.App. 1956).
Affirmed.
____________
88 Nev. 76, 76 (1972) Gurschke v. Sovereign Broadcast, Inc.
DORIS L. GURSCHKE, Appellant, v. SOVEREIGN BROADCAST, INC.,
a Corporation, and ROBERT D. HANNA, Respondents.
No. 6666
February 18, 1972 493 P.2d 707
Appeal from order setting aside default judgment, Eighth Judicial District Court, Clark
County; Thomas J. O'Donnell, Judge.
Affirmed.
Perry & Clary, of Las Vegas, for Appellant.
Earle W. White, Jr., of Las Vegas, for Respondents.
OPINION
Per Curiam:
We determine appellant's various contentions, to the effect that the district court abused its
discretion when it set aside a default judgment against respondents, to be without merit.
Affirmed.
____________
88 Nev. 76, 76 (1972) United States v. State ex rel. Beko
UNITED STATES OF AMERICA: AEROJET GENERAL CORP., an Ohio Corporation;
PAN AMERICAN WORLD AIRWAYS, INC., a New York Corporation; CATALYTIC
CONSTRUCTION CO., a Delaware Corporation; REYNOLDS ELECTRICAL AND
ENGINEERING CO. INC., a Texas Corporation; SHAFT DRILLER, INC., a Texas
Corporation; and E. G. & G., INC., a Massachusetts Corporation, Appellants, v. THE STATE
OF NEVADA, Ex Rel. WILLIAM P. BEKO, District Attorney of
Nye County, Nevada, Respondent.
No. 6552
February 18, 1972 493 P.2d 1324
Appeal from findings of fact, conclusions of law and decision sustaining ad valorem tax
assessments made pursuant to Nevada taxing statutes against six corporate contractors
utilizing otherwise exempt property in the performance of their contracts with the United
States.
88 Nev. 76, 77 (1972) United States v. State ex rel. Beko
Nevada taxing statutes against six corporate contractors utilizing otherwise exempt property
in the performance of their contracts with the United States. Fifth Judicial District Court, Nye
County, Kenneth L. Mann, Judge.
Taxpayer's suit challenging validity of taxing statutes designed to place on county tax rolls
property, otherwise exempt, utilized in connection with a business conducted for profit. The
district court entered a decision sustaining the assessments and the validity of the statutes, and
an appeal was taken. The Supreme Court, Zenoff, C. J., held that statutes and assessments
made pursuant thereto against contractors utilizing otherwise exempt property in performance
of their contracts with the United States were valid.
Affirmed.
Fred B. Ugast, Acting Assistant Attorney General; Meyer Rothwacks, William Massar,
Daniel B. Rosenbaum, Department of Justice, Washington, D.C.; Bart M. Schouweiler,
United States Attorney; John L. Endicott, Thomas B. Pitcher, of Los Angeles, California, for
Appellant United States of America.
Robert W. Austin, John L. Thorndal, of Las Vegas, for Appellants Aerojet General Corp.,
Pan American World Airways, Inc., Catalytic Construction Co., Reynolds Electrical and
Engineering Co., Inc., Shaft Drillers, Inc., and E. G. & G., Inc.
Robert List, Attorney General; William P. Beko, District Attorney, and Peter L. Knight,
Deputy District Attorney, Nye County, for Respondent.
1. Statutes.
A statute adopted from another state will be presumed to have been adopted with the construction placed
upon it by courts of that state before its adoption.
2. Taxation.
Real and personal property of the Federal Government utilized by contractors in performance of their
contracts with the Federal Government was taxable under Nevada statutes designed to place on county tax
rolls property, otherwise exempt, utilized in connection with a business conducted for profit. NRS
361.157, 361.159.
3. Taxation.
Revenue statutes designed to place on county tax rolls property, otherwise exempt, utilized in connection
with a business conducted for profit were applicable to contractors engaged in a for-profit business and ad
valorem taxes were properly assessed against such contractors based on their utilization of real and
personal property owned by the United States in the carrying out of their contracts.
88 Nev. 76, 78 (1972) United States v. State ex rel. Beko
personal property owned by the United States in the carrying out of their contracts. NRS 361.157,
361.159.
4. Constitutional Law; Taxation.
Statutes designed to place on county tax rolls property, otherwise exempt, utilized in connection with a
business conducted for profit were not unconstitutional as a denial of equal protection even though it was
shown that there were approximately 125 uses of exempt property that could have been taxed, but that
other than contractors challenging the statute only two other uses in the state were taxed, where there was
no showing of intentional deletion of taxable exempt property. NRS 361.157, 361.159.
5. Taxation.
Statutes designed to place on county tax rolls property, otherwise exempt, utilized in connection with a
business conducted for profit were not invalid as applied to taxation of contractors using real and personal
property owned by the Federal Government on theory final incidence of such tax fell upon Federal
Government and thus conflicted with supremacy clause, in view of fact constitutional immunity does not
extend to contractors of the Federal Government but is limited to taxes imposed directly on the United
States. NRS 361.157, 361.159.
6. Taxation.
Ad valorem tax assessments against corporate contractors utilizing otherwise exempt property in
performance of their contracts with United States were not improper on theory of violation of section of
constitution requiring a uniform and equal rate of assessment and taxation where in fact a uniform rate of
assessment was present. Const. art. 10, 1.
7. Taxation.
Statute designed to place on county tax rolls property otherwise exempt, utilized in connection with
business conducted for profit was not unconstitutional on theory it operated to discriminate against the
United States and users of its real property, even though by its terms it was inapplicable to certain state and
public property. NRS 361.157, 361.159.
OPINION
By the Court, Zenoff, C. J.:
This is a taxpayer's suit challenging two taxing statutes, appellants' intention being to
recover taxes paid under protest.
In 1965 the Nevada Legislature enacted two revenue statutes, NRS 361.157 and 361.159
(1965 Nev. Stats., ch. 432), which were designed to place on the county tax rolls property,
otherwise exempt, utilized in connection with a business conducted for profit. Pursuant to this
statute, the Nye County Assessor levied taxes against the appellant contractors, each of whom
is a private corporation engaged in a for-profit business and qualified to conduct that business
in Nevada.
88 Nev. 76, 79 (1972) United States v. State ex rel. Beko
Under contracts with the Atomic Energy Commission real and personal property owned by
the United States at the Nevada Test Site in Nye County, Nevada, is utilized in the conduct of
appellants' businesses. These businesses are basically similar in nature.
Reynolds Electrical and Engineering Co., Inc., provided general support services including
construction and maintenance services, technical support services and special or related
service. E. G. & G., Inc., provided scientific services at the Test Site for the AEC. Shaft
Drillers, Inc., provided drilling services in connection with the nuclear tests conducted at the
Test Site. This is the only contractor in the present suit which does not operate on a
cost-plus-fixed-fees basis.
The remaining appellant contractors used exempt property in connection with their
for-profit businesses relating to work at the Test Site's Nuclear Rocket Development Station.
The employment of exempt property under the above contracts was in all relevant respects
substantially similar to the uses under the Reynolds and E. G. & G., contracts.
The Nye County Assessor's office sought real and personal property declarations from all
persons or other entities in the county who were thought to be using otherwise tax exempt
property in a profit-motivated business manner. After time extensions and substantial delay
the government contractors filed under protest their declarations upon which the assessments
were made. The time period wherein assessments were made under review by this appeal is
from the act's effective date (April 13, 1965) through June 30, 1967. None of the assessments
exceed the rate of 35 percent of full cash value of the real and personal property used by
appellants. Taxes levied under NRS 361.159 for the time interval aggregated $553,198.64.
Taxes levied under NRS 361.157 aggregated $240,585.17.
Relative to the assessment practices of the various assessors' offices throughout the State
of Nevada the evidence indicated that the assessors and their respective staffs had not been
instructed or directed by anyone having or purporting to have authority to treat property
owned by the Federal Government or any of its entities any differently than property owned
by the state or any of its political subdivisions. No policy of separate treatment existed or
prevailed. If and when property thought to be taxable was discovered to be escaping proper
levies, it was immediately enrolled and assessed to the proper party. The assessors had no
knowledge or information indicating that property owned by the State of Nevada or its
political subdivisions was escaping taxation.
88 Nev. 76, 80 (1972) United States v. State ex rel. Beko
political subdivisions was escaping taxation. For the purpose of enrolling or changing the
status of enrolled property the assessors relied on information from the county recorders'
offices. Furthermore, the evidence indicated that any failure to assess under the statutes in
question resulted directly from a lack of knowledge and information of a taxable use and not
from any deliberate, intentional and systematic plan to treat federal property differently than
property owned by the state or its political subdivisions.
The trial court found and the evidence indicated that in the entire state, other than the Nye
County Assessor, only one county assessor assessed taxes during the period in question under
NRS 361.157 and 361.159. Other than the six Test Site contractors two companies were
taxed.
The Federal Government was granted leave to intervene because it will have to stand the
financial burden of taxes found to be due and owing. There is an unresolved dispute between
the government and Shaft Drillers, Inc., whether the government is required to reimburse
Shaft Drillers, Inc., for any taxes found to be due from it. The trial court found that all
administrative remedies had been exhausted.
The statutes around which this litigation revolves are as follows:
361.157 Exempt real estate subject to taxation when leased to, used in business conducted
for profit; exceptions.
1. When any real estate which for any reason is exempt from taxation is leased, loaned or
otherwise made available to and used by a private individual, association, partnership or
corporation in connection with a business conducted for profit, it shall be subject to taxation
in the same amount and to the same extent as though the lessee or user were the owner of
such real estate. This section does not apply to:
(a) Property located upon or within the limits of a public airport, park, market, fairground
or upon similar property which is available to the use of the general public; or
(b) Federal property for which payments are made in lieu of taxes in amounts equivalent to
taxes which might otherwise be lawfully assessed; or
(c) Property of any state-supported educational institution; or
(d) Property leased or otherwise made available to and used by a private individual,
association, corporation, municipal corporation, quasi-municipal corporation or a political
subdivision under the provisions of the Taylor Grazing Act or by the United States Forest
Service, the Bureau of Reclamation of the United States Department of the Interior or
other federal agency.
88 Nev. 76, 81 (1972) United States v. State ex rel. Beko
by the United States Forest Service, the Bureau of Reclamation of the United States
Department of the Interior or other federal agency.
(e) Property of any Indian or of any Indian tribe, band or community which is held in trust
by the United States or subject to a restriction against alienation by the United States.
2. Taxes shall be assessed to such lessees or users of real estate and collected in the same
manner as taxes assessed to owners of real estate, except that such taxes shall not become a
lien against the property. When due, such taxes shall constitute a debt due from the lessee or
user to the county for which such taxes were assessed and if unpaid shall be recoverable by
the county in the proper court of such county.
361.159 Exempt personal property subject to taxation when leased to, used in business
conducted for profit.
1. Personal property exempt from taxation which is leased, loaned or otherwise made
available to and used by a private individual, association or corporation in connection with a
business conducted for profit is subject to taxation in the same amount and to the same extent
as though the lessee or user were the owner of such property.
2. Taxes shall be assessed to such lessees or users of such personal property and collected
in the same manner as taxes assessed to owners of personal property, except that such taxes
shall not become a lien against such personal property. When due, such taxes constitute a
debt due from the lessee or user to the county for which such taxes were assessed and if
unpaid shall be recoverable by the county in the proper court of such county.
This legislation has been amended once, 1967 Nev. Stats., ch. 88 (approved March 6,
1967), wherein NRS 361.157(1)(d) was shortened by deleting the last three words.
The issues presented to this court are:
1. Whether the contractor's utilization of government property in the performance of their
contracts with the government is taxable under NRS 361.157 and 361.159.
2. Whether during the period in issue NRS 361.157 and 361.159 were administered (a) in
violation of the 14th Amendment and the supremacy clause of the Federal Constitution, and
(b) in violation of the uniformity provision, Article 10, 1 of the Nevada Constitution.
3. Whether NRS 361.157, as applied, operated to unconstitutionally discriminate against
the government or the users of its real property.
88 Nev. 76, 82 (1972) United States v. State ex rel. Beko
1.A. The appellants contend that the Nevada Legislature did not intend these tax statutes
to be applied to the fact situation presented in this appeal citing a statement in United States
v. City of Detroit, 355 U.S. 466, 470 (1958), that the purpose of the Michigan statute there
upheld and allegedly the source of the instant Nevada statutes was to equalize the annual tax
burden carried by private businesses using exempt property with that of similar businesses
using nonexempt property.
[Headnote 1]
No Nevada authority is cited for their proposition that this court will presume such
intendment by the legislature to adopt another state's construction. Although it is not
absolutely binding upon courts, it is the general rule and the rule in Nevada that a statute
adopted from another state will be presumed to have been adopted from another with the
construction placed upon it by courts of that state before its adoption. Kramer v. State, 60
Nev. 262, 108 P.2d 304 (1940); Cooper v. Liebert, 81 Nev. 341, 344, 402 P.2d 989 (1965). If
we were to adopt the construction the Michigan Supreme Court places on these statutes, this
court would be obliged to uphold them because the Michigan court ruled that the tax was
neither discriminatory nor on the property of the United States but instead was a tax on the
lessee's privilege of using the property in a private business conducted for profit. United
States v. City of Detroit, 345 Mich. 601, 77 N.W.2d 79 (1956).
[Headnote 2]
There is no evidence of legislative intendment that the statutes should not be applied
where the contractual services were provided to the government as opposed to being provided
to some other private entity, or that in any other respects these statutes were not applied in the
instant case as intended.
In upholding a use tax upon a federal contractor the Utah Supreme Court in Thiokol
Chemical Corporation v. Peterson, 15 Utah 2d 355, 393 P.2d 391, 395 (1964), emphasized
that the tax statute was an attempt to close gaps in the tax structure by placing a tax upon the
privilege of possessing and using in a business for profit any property which is otherwise
exempt. . . .
[Headnote 3]
1.B. The appellants next contend that NRS 361.157 and 361.159 are not applicable to
them under the standards formulated and applied by the trial court.
88 Nev. 76, 83 (1972) United States v. State ex rel. Beko
In an attempt to categorize, classify and tabulate the numerous private uses of exempt
property throughout the state the trial judge thought it his duty to formulate a test. Appellants
contend that by comparing exemptions given by the trial court to certain medical specialists
and other casual and incidental uses with the Test Site contractors' use an inconsistent
application becomes evident.
There are two answers to this contention. First, we are dealing in an area or province set
aside to the trial court's discretion and function. Unless it is clearly wrong or erroneous the
appellate court should not upset its decision. The trial court conscientiously set out a standard
and classified the various exempt uses. We cannot see that it misapplied the test it created.
Second, even if the trial court erred in its classification, that there may be a few more exempt
uses which are taxable, this does not advance appellants' case. As will be set out, the
appellants must prove an intentional, deliberate and systematic discrimination against them
before relief is granted. To claim that certain exempt uses are taxable but not taxed changes
appellants' position little relative to their taxation.
Specifically the appellants contend that the Test Site contractors did not utilize the
government's property in the conduct of their own business.
The appellants agree with the trial court that the contractors were independent and were
not agencies or instrumentalities of the government, thus this issue is removed. As to the
balance, this court is aided substantially by the United States Supreme Court's decision in
United States v. Boyd, 378 U.S. 39 (1964), wherein the Court concluded that the private
contractors who operated the AEC plant at Oak Ridge, Tennessee, were subject to state
taxation. Specifically, the Court said at 44, 45:
The use by the contractor for his own private endsin connection with commercial
activities carried on for profitis a separate and distinct taxable activity.
. . . .
The vital thing is that Carbide, as well as Ferguson, was using the property in
connection with its own commercial activities. United States v. Township of Muskegon, 355
U.S. 484, 486. [Footnotes omitted.]
[Headnote 4]
2.A. If the statutes are deemed applicable, as we so hold, the appellants claim that the
statutes are unconstitutional. The trial court found that during the time period under
consideration, there were approximately 125 uses of exempt property that could have been
taxed, and that other than the AEC contractors taxed here, only two other uses in the
state were taxed.
88 Nev. 76, 84 (1972) United States v. State ex rel. Beko
that could have been taxed, and that other than the AEC contractors taxed here, only two
other uses in the state were taxed. Appellants contend that this fact without an additional
showing of intentional deletion is clearly violative of the Fourteenth Amendment to the
Federal Constitution.
We are unpersuaded. The trial court found that in no instance was there an intentional
deletion of taxable exempt property. Appellants have cited not one case where unintentional
deletion of taxable property from the rolls has been ground for relief to the complaining
taxpayer under the equal protection clause. The U.S. Supreme Court on numerous instances
has had this question presented to it and has uniformly denied relief.
In Sunday Lake Iron Co. v. Wakefield, 247 U.S. 350, 353 (1918), the Court said:
It is also clear that mere errors of judgment by officials will not support a claim of
discrimination. There must be something moresomething which in effect amounts to an
intentional violation of the essential principle of practical uniformity. The good faith of such
officers and the validity of their actions are presumed; when assailed, the burden of proof is
upon the complaining party.
In Sioux City Bridge v. Dakota County, 260 U.S. 441 (1923), wherein a railroad bridge
was assessed at 100 percent of its estimated value while property in the county averaged
55.70 percent for acreage and 49.29 percent for improved real estate, Chief Justice Taft said,
at 445, 447:
The purpose of the equal protection clause of the Fourteenth Amendment is to secure
every person within the State's jurisdiction against intentional and arbitrary discrimination,
whether occasioned by express terms of a statute or by its improper execution through duly
constituted agents. And it must be settled that intentional systematic undervaluation by state
officials of other taxable property in the same class contravenes the constitutional right of one
taxed upon the full value of his property.
. . . .
It is therefore just that upon reversal we should remand the case for a further hearing upon
the issue of discrimination, inviting attention of the well established rule in the decisions of
this Court, cited above, that mere errors of judgment do not support a claim of discrimination,
but that there must be something moresomething which in effect amounts to an intentional
violation of the essential principle of practical uniformity.
88 Nev. 76, 85 (1972) United States v. State ex rel. Beko
These authorities have been followed consistently, Hillsborough v. Cromwell, 326 U.S.
620, 623 (1946); Iowa-Des Moines Bank v. Bennet, 284 U.S. 239 (1931); Cumberland Coal
Co. v. Board, 284 U.S. 23, 25 (1931); Charleston Assn. v. Alderson, 324 U.S. 182 (1945),
and particularly in several cases which have construed statutes similar to NRS 361.157 and
361.159 taxing otherwise exempt property, Marquardt Corp. v. Weber County, 360 F.2d 168,
173 (1966), and Thiokol Chemical Corp. v. Peterson, 15 Utah 2d 355, 393 P.2d 391 (1964).
Further, the courts require the complaining taxpayer to prove the assessor's state of mind to
intentionally discriminate before relief is granted. In Southland Mall, Inc. v. Garner, 324
F.Supp. 674 (W.D.Tenn. 1971), the court held that a taxpayer may make out a case of
intentional discrimination if he establishes that state taxing authorities deliberately or
systematically disregarded factors which affect value of taxable property. The court stated, at
676:
We would agree, of course, that a Court may, from evidence of a failure to consider, or
even from evidence of a failure to give proper weight to, relevant appraisal factors, infer
intentional discrimination, but such state of mind must be found to have existed before a
denial of equal protection can be found. [Emphasis supplied.]
The court can also notice that these statutes were new in scope and effect. Until there was
a legal opinion or a court adjudication on the matter the assessors were rightly hesitant to
enroll previously exempt property. This hesitation does not demonstrate a disposition to
intentionally or designedly discriminate against these taxpayers. On the other hand, it is
evident that whatever failure of proper and uniform application of the statute there was,
stemmed from lack of knowledge and/or misunderstanding of the new law. Thiokol
Chemical Corp. v. Peterson, supra, at 396.
[Headnote 5]
2.B. The appellants assert that because the final incidence of the tax falls upon the Federal
Government the tax is voided by the supremacy clause.
Beginning with M'Culloch v. Maryland, 4 Wheat 316 (1817), the United States Supreme
Court has struck down taxes where the direct incidence was on the Federal Government or an
instrumentality thereof. As recently as 1968 the Court in Agricultural Bank v. Tax Comm'n,
392 U.S. 339 (1968), invalidated a sales tax imposed by Massachusetts on a National Bank.
"There can be no doubt from the clear wording of the statute that the Massachusetts
Legislature intended that this sales tax be passed on to the purchaser [here a National
Bank]."
88 Nev. 76, 86 (1972) United States v. State ex rel. Beko
a National Bank. There can be no doubt from the clear wording of the statute that the
Massachusetts Legislature intended that this sales tax be passed on to the purchaser [here a
National Bank]. 392 U.S. 348. Closer to home, the Federal District Court of Nevada,
Thompson, D. J., invalidated the Nevada Sales and Use Tax which had direct incidence upon
the Nevada AEC operation on purchase of goods through independent contractors. United
States v. Nevada Tax Comm'n, 291 F.Supp. 530 (D. Nev. 1968).
However this may be, the U.S. Supreme Court most recently in Boyd, supra, upheld taxes
imposed upon AEC contractors. The Court said at 49-51:
It is undoubtedly true, as the Government points out, that subjection of government
property used by AEC contractors to state use taxes will result in a substantial future tax
liability. But this result was brought to the attention of Congress in the debates on the repeal
of 9(b), which exempted the activities of AEC contractors from state taxation; indeed the
AEC argued that the repeal would substantially increase the cost of the atomic energy
program by subjecting AEC contractors to state sales and use taxes and business and
occupation taxes. Nonetheless, Congress, well aware of the principle that constitutional
immunity does not extend to cost-plus-fixed-fee contractors of the Federal Government, but
is limited to taxes imposed directly on the United States, S. Rep. No. 694, 83rd Cong., 1st
Sess., 2, repealed the statutory exemption for the declared purpose of placing AEC
contractors in the same position as all other government contractors. Act of August 13, 1953,
c. 432, 67 Stat. 575. The principles laid down in King & Boozer, Curry, Esso, and Muskegon,
we think, strike a proper judicial accommodation between the interests of the States' power to
tax and the concerns of the Nation, they are workable, and we adhere to them. If they unduly
intrude upon the business of the Nation, it is for Congress, in the valid exercise of its proper
powers, not this Court, to make the desirable adjustment. [Footnotes omitted.]
[Headnote 6]
2.C. Appellants contend that the Test Site contractors are entitled to relief under Article
10, 1 of the Nevada Constitution which requires a uniform and equal rate of assessment
and taxation.
The meaning of this clause has been construed by several early Nevada cases. In State v.
Eastabrook, 3 Nev. 173 (1867), holding that a tax on the net proceeds of mines at a rate
either higher or lower than other ad valorem taxes violates Nevada Constitution Article
10, 1, the court said, at 177:
88 Nev. 76, 87 (1972) United States v. State ex rel. Beko
rate either higher or lower than other ad valorem taxes violates Nevada Constitution Article
10, 1, the court said, at 177:
We have no hesitation in saying that the constitutional convention, in using the language
last quoted, meant to provide for at least one thing in regard to taxation: that is, that all ad
valorem taxes should be a uniform rate or percentage. That one species of taxable property
should not pay a higher rate of taxes than other kinds of property.
This case has been cited with approval in Sawyer v. Dooley, 21 Nev. 390, 397, 32 P. 437
(1893) (All that is required is a uniformity of taxes, and not a uniformity in the manner of
assessing or collecting them.), State v. Kruttschnitt, 4 Nev. 178 (1868), and Boyne v. State
ex rel. Dickerson, 80 Nev. 160, 166, 390 P.2d 225 (1964).
The trial court found that all assessments do not exceed 35 percent of full cash value of the
real and personal property used by defendants. Cf. NRS 361.225. Furthermore, the parties
stipulated that all assessments were properly made.
Article 10 requires a uniform rate, which was present in the instant case.
[Headnote 7]
3.A. Appellants' final contention is that NRS 361.157 is unconstitutional because it
operates so as to discriminate against the United States and the users of its real property. NRS
361.157, by its terms, is inapplicable to (1) Property of any state-supported educational
institution, and (2) Property located upon or within the limits of a public airport, park,
market, fairground or upon similar property which is available to the use of the general
public. Appellants argue that because of those exemptions NRS 361.157 operates so as to
discriminate against the United States and users of its real property and is unconstitutional
because, as the Supreme Court said in City of Detroit, supra, at 473:
It still remains true, as it has from the beginning, that a tax may be invalid even though it
does not fall directly on the United States if it operates so as to discriminate against the
Government or those with whom it deals.
Since NRS 361.157 does not provide for the taxation of private users of real property
owned by state-supported educational institutions, but does provide for the taxation of private
users of real property owned by federally supported educational institutions, the statute
allegedly discriminates against the United States and the users of its real property.
88 Nev. 76, 88 (1972) United States v. State ex rel. Beko
The trial court did not reach the merits of appellants' present contention, but rejected it for
(1) lack of proof that the exemption gave rise to any discrimination in fact (2) lack of
standing to urge the unconstitutionality of the exemption of real property owned by
state-supported educational institutions (NRS 361.157(1)(c)) since the Test Site contractors
were not adversely affected, and (3) because the exemption, if unconstitutional, was severable
and did not invalidate the entire statute.
In defining the term discriminate it seems clear that the legal concept here is the same as
the Fourteenth Amendment's equal protection clause. The case which most favorably supports
appellant, Phillips Co. v. Dumas School Dist., 361 U.S. 376 (1960), does not require a higher
level of equal protection than is prescribed by the Fourteenth Amendment. In Phillips,
supra, the appellant was taxed under a Texas statute on the full value of the real property
which it leases from the Federal Government, while business with similar leases, using
exempt property owned by the state and its political subdivisions, are not taxed on their
leaseholds at all. Chief Justice Warren stated there the applicable test to be that [t]he
imposition of a heavier tax burden on lessees of federal property than is imposed on other
exempt public property must be justified by significant differences between the two classes.
361 U.S. at 383.
In considering the identical exemption here challenged the court in Chrysler Corp. v.
Township of Sterling, Macomb County, M., 410 F.2d 62 (6th Cir. 1969), upheld the statute
under a similar attack as now presented on two grounds, first, that the exemption in its
practical operation did not discriminate against the United States and its lessees because the
amount of property of state-supported educational institutions is infinitesimal when compared
to the total value of taxable and exempt property in the state. Here, the evidence indicated that
only an exempt warehouse and a caterer for the dining commons at the University of Nevada
at Las Vegas escaped taxation because of the exemptions. The harm to the government
contractors would be de minimus. One who is not injured by an ordinance cannot attack its
constitutionality. Ex Parte Noyd, 48 Nev. 120, 129, 227 P. 1020 (1924); Ex Parte Sloan, 47
Nev. 109, 120, 217 P. 233 (1923). Secondly, the circuit court held that the exemption of the
lessees of property of state-supported educational institutions is reasonable and valid because
it is founded upon the well-recognized policy of both the United States and the State of
Michigan to protect, promote and support education, including colleges and universities.
88 Nev. 76, 89 (1972) United States v. State ex rel. Beko
protect, promote and support education, including colleges and universities. Chrysler Corp. v.
Township of Sterling, Macomb County, M., 410 F.2d 62, 70 (6th Cir. 1969). We subscribe to
these views.
3.B. Relative to the exemption of NRS 361.157(1)(a) the circuit court in Chrysler Corp.,
supra, agreed with the lower court that the concession exemption standing alone does not
result in unconstitutional discrimination to the Federal Government or its contractors in
respect to this exemption.
Other subsidiary issues raised by appellants have been carefully reviewed and are found to
be without merit.
We hold that the statutes are constitutional as applied and that the taxes levied thereunder
were proper.
Affirmed.
Batjer, Mowbray, Thompson, and Gunderson, JJ., concur.
____________
88 Nev. 89, 89 (1972) Cannon v. Taylor
IVAN CANNON, DARYL B. GARNER, and FORREST PURDY, Appellants, v. WILLIAM
L. TAYLOR, C. R. CLELAND, and JOHN MYERS, Respondents.
No. 6367
February 23, 1972 493 P.2d 1313
Appeal from order granting defendant-respondents' motion for summary judgment and
from order denying plaintiff-appellants' motion for summary judgment; Eighth Judicial
District Court, Clark County; William R. Morse, Judge.
Class action by taxpayer seeking repayment to the city of all sums paid the mayor and
councilmen in excess of salary as it existed before salary increases established by the city
council. The district court granted defendants' motion for summary judgment, and plaintiffs
appealed. The Supreme Court reversed with direction, 87 Nev. 285, 486 P.2d 493 (1971). On
rehearing, the Supreme Court held that where an Attorney General's opinion told city officials
that salaries established in accordance with certain legislation were retroactive to April 15,
1967, city officials were entitled to retain the increase even if some increased salary payments
were accepted before issuance of the Attorney General's opinion and even though the opinion
was not upheld.
Affirmed, on rehearing.
88 Nev. 89, 90 (1972) Cannon v. Taylor
[See Cannon v. Taylor, 87 Nev. 285, 486 P.2d 493 (1971)]
L. Earl Hawley and Edward G. Marshall, of Las Vegas, for Appellants.
Carl E. Lovell, Jr., of North Las Vegas, for Respondents.
1. Municipal Corporations.
Though opinion of Attorney General was not addressed directly to officials of particular city, officials of
such city were entitled to rely upon it. NRS 228.150.
2. Municipal Corporations.
Generally, where government officials are entitled to rely on opinions of state's Attorney General, and do
rely in good faith, they are not responsible in damages to governmental body they serve if Attorney General
is mistaken.
3. Municipal Corporations.
Where Attorney General's opinion told city officials that salaries established in accordance with certain
legislation were retroactive to April 15, 1967, city officials were entitled to retain increase even if some
increased salary payments were accepted before issuance of Attorney General's opinion and even though
opinion was not upheld. NRS 228.150, 404.010 et seq.
4. Appeal and Error.
Established practice does not allow litigant to raise new legal points for first time on rehearing in
Supreme Court.
5. Appeal and Error.
Rule that litigant may not raise new legal points for first time on rehearing did not require Supreme Court
to ignore Attorney General's opinion to which no counsel for any party had called court's attention.
OPINION ON REHEARING
Per Curiam:
When this appeal was briefed and argued, counsel did not mention, thus this court was
unaware, that the state's Attorney General had, on June 14, 1967, issued his Opinion No. 422,
discussing the enactment here concerned, and concluding:
It is therefore the opinion of this office that:
1. Chapters 400 and 404 of the 1967 Statutes of Nevada, repealed and wiped out the
salaries of named city officials in effect as of the date of the passage and approval of said
acts, to-wit, April 15, 1967.
2. The acts established the procedure for the setting of new salaries by the City Council
of North Las Vegas and the City Commissioners of Las Vegas, and such salaries once
established were retroactive to April 15, 1967.
88 Nev. 89, 91 (1972) Cannon v. Taylor
3. That the provision against diminishing or increasing salaries of the officials named in
the acts designated above referred to the salaries established under the new bills, and did not
refer to salaries previously paid the named city officials. Op. Att'y Gen. No. 422 (June 14,
1967).
While the Attorney General's opinions are not binding on us, and the members of the court
adhere to their respective views concerning the interpretation of Chapter 400 of the 1967
Statutes, all members of the court agree that the issuance of the Attorney General's opinion,
and the council members' reliance thereon, must alter the result we originally reached. See:
Cannon v. Taylor, 87 Nev. 285, 486 P.2d 493 (1971).
One of the duties of the Attorney General is to issue written opinions upon questions of
law to guide public officials, which in this case he properly did at the request of the City
Attorney of Las Vegas. NRS 228.150. It appears clear the Attorney General intended also to
advise the City Attorney of North Las Vegas, whose City Council faced the same problem;
for his Opinion covered both cities, reaching the same conclusion as to each. We must
assume that the City Attorney of North Las Vegas relied on this advice at least to some
degree, when he permitted respondents to believe accepting a salary increase had been and
would be proper.
[Headnote 1]
However indirectly conveyed, the city fathers were entitled to rely on the Attorney
General's advice, to-wit: that they must enact a new salary structure; that they might properly
increase their salaries when doing so; that such salaries and any increases in them were to be
retroactive to April 15, 1967; and that state law did not preclude this, but indeed required
action by them if they were legally to be paid at all. As our prior opinion reflects, a majority
of this court believe the Attorney General was incorrect, but as said in State v. Fidelity &
Deposit Co. of Maryland, 58 S.W.2d 696 (Ark. 1933), which involved mistaken payment of
living expenses approved by the state's Attorney General: It does not follow, however, that
the commissioners are liable for the erroneous payments. Id., at 698.
[Headnote 2]
A case of this kind must stand on its own facts, but as a general proposition where
government officials are entitled to rely on opinions of the state's Attorney General, and do
rely in good faith, they are not responsible in damages to the governmental body they
serve if the Attorney General is mistaken.
88 Nev. 89, 92 (1972) Cannon v. Taylor
in good faith, they are not responsible in damages to the governmental body they serve if the
Attorney General is mistaken. State v. Fidelity & Deposit Co. of Maryland, supra; State v.
Broadaway, 93 S.W.2d 1248 (Ark. 1936); Standard Surety & Casualty Co. v. State of
Oklahoma, 145 F.2d 605 (10th Cir. 1944); cf. State v. Meier, 115 N.W.2d 574 (N.D. 1962).
Were the rule otherwise, few persons of responsibility would be found willing to serve
the public in that large capacity of offices, which requires a sacrifice of time and perhaps
money, but affords neither honor nor profit to the incumbent. State v. Fidelity & Deposit Co.
of Maryland, supra, at 699.
[Headnote 3]
We believe the facts of this case warrant application of the rule just enunciated. If the city
fathers accepted some increased salary payments before issuance of the Attorney General's
opinion, they could not have been many, nor is this material; for that opinion told them such
salaries once established were retroactive to April 15, 1967, and therefore theirs to keep and
to utilize in their personal and civic activities.
[Headnotes 4, 5]
As appellants contend, our established practice does not allow a litigant to raise new legal
points for the first time on rehearing. Cf. In Re Lorring, 75 Nev. 330, 340 P.2d 589 (1959);
rehearing denied, 75 Nev. 334, 349 P.2d 156 (1960). Here, however, we consider that
respondents' counsel has merely directed our attention to an incontrovertible fact, verifiable
from records in the building where we sit. Our precedents do not require us to ignore it, in
favor of appellants, who lost in the court below. Were we to accept their contention that such
a fact must be shown by the record, the result reached by our prior opinion would still be
incorrect. A gap in the record, a factual question, would stand revealed, on which respondents
would be entitled to a trial. Since there is no genuine issue as to this material fact, there is no
need of a trial to resolve it. NRCP 56.
The respective members of the court adhere to their views, exactly as stated in our prior
opinion. That opinion is withdrawn only insofar as it ordered reversal of the judgment entered
by the lower court. The summary judgment in favor of respondents must be, and hereby is,
affirmed in all respects.
Compton, D. J., concurring:
I concur in the result reached by the Court today but for different reasons.
88 Nev. 89, 93 (1972) Cannon v. Taylor
In my view, the reasoning as set forth in the Court's prior decision is based on a sound
analysis of the facts, and the rules of law therein enunciated properly interpret the legislature's
statutory intent. See: Cannon v. Taylor, 87 Nev. 285, 486 P.2d 493 (1971).
The majority places undue weight upon facts brought before this Court for the first time by
respondents at their requested rehearing. The fact that respondents may have relied on oral
representations by the Attorney General's office prior to the publication of its opinion is not
sufficient to overturn this Court's earlier determination. It should be pointed out that in
respondents' points and authorities on rehearing, notably submitted by the City Attorney of
North Las Vegas as attorney for respondents, a chronological breakdown of facts is set out as
an aid to the Court. This chronology indicates that respondents raised their salary from its
former level 14 days following the adoption of Senate Bills 450 and 451, while the Attorney
General's Opinion No. 422 was not issued until June 14, 1967, some sixty days following
adoption, and 46 days after the respondents had fixed a new salary level. To me, reliance on
these facts is tenuous, at best.
However, I am in agreement with the rule as stated by the majority that a case of this kind
must stand on its own facts. As a general proposition where government officials are entitled
to rely on opinions of the state's Attorney General, and do rely in good faith, they are not
responsible in damages to the governmental body they serve if the Attorney General is
mistaken. Although this is not a case wherein talk of damages is appropriate; rather it is one
for the repayment of improper compensation.
In my judgment, if there is a sound basis for overturning our earlier determination, it is
respondents' argument on rehearing that appellants are estopped by the doctrine of laches
from asserting a taxpayer's claim against respondents.
The fact is that on April 29, 1967, respondents established salary levels above those set at
the time of their election to office. Subsequently on May 13, 1969, and after a period of
almost two years, appellants filed their complaint. And as was noted by the Court in its prior
decision, this class action suit was instituted by the appellants, as taxpayers, on the day
before the expiration of the respondents' term of office.
Expenditures of municipal funds, as well as other actions taken by city councils, are
regularly published in local newspapers. In fact, by law, proposed and final budgets compiled
by city councils must be published. NRS 354. Knowledge or notice on the part of appellants
of the alleged wrong is a important factor in determining whether delay in bringing a
taxpayers' action constitutes laches.
88 Nev. 89, 94 (1972) Cannon v. Taylor
notice on the part of appellants of the alleged wrong is an important factor in determining
whether delay in bringing a taxpayers' action constitutes laches. Johnson v. Black, 49 S.E.
633, insufficient notice; Torgeson v. Connelly, 348 P.2d 63.
And delay in bringing a taxpayers' action, where the complainants have express or implied
knowledge or notice of the situation, may constitute such laches as to bar relief. Conners v.
Lowell, 140 N.E. 742; See generally 27 Am.Jur.2d 710, Equity 167.
After reviewing pertinent sections of the record of the case at bar, I can discern no valid
reason why appellants delayed filing suit for nearly two years. Appellants, as reasonably
diligent taxpayers, are charged with knowledge of public notices required to be published for
their benefit. Of course, a delay however long, by itself, does not constitute laches. There
must also be prejudice to the respondents resulting therefrom. As the majority has indicated,
the respondents acted in good faith, and to require them, at this late date, to return funds
which they had in good faith believed they had earned (and at which rates their successors in
office are paid) is not justified under the circumstances.
The record reflects a void as to when appellants discovered respondents had established an
improper salary level, however, the requirement of reasonable diligence on the part of
appellants cannot be disregarded. Thus, in my judgment, a delay of this magnitude under the
facts and circumstances as this record presents, was fatal to appellants.
I would affirm the trial court's order granting summary judgment.
____________
88 Nev. 94, 94 (1972) Pollard v. Gibbs
LEE A. POLLARD, Appellant, v. FRANK ROLLA
GIBBS and BUTLER CRANE SERVICE, Respondents.
No. 6644
February 23, 1972 493 P.2d 1317
Appeal from judgment upon jury verdict and denial of post-judgment motions. Eighth
Judicial District Court, Clark County; Clarence Sundean, Judge.
Action was brought for injuries alleged to have been negligently inflicted. A jury in the
district court denied recovery, and the plaintiff appealed. The Supreme Court, Thompson, J.,
held that use of the words however slight in an instruction concerning the defense of
contributory negligence was error, but without a trial transcript or narrative statement of
testimony, it was necessary to presume that the error was harmless.
88 Nev. 94, 95 (1972) Pollard v. Gibbs
concerning the defense of contributory negligence was error, but without a trial transcript or
narrative statement of testimony, it was necessary to presume that the error was harmless.
Affirmed.
[Rehearing denied April 5, 1972]
Charles L. Kellar, of Las Vegas, for Appellant.
Leavitt, Edwards & Gladstone, of Las Vegas, for Respondents.
1. Appeal and Error.
Use of words however slight in instruction concerning defense of contributory negligence was error,
but without trial transcript or narrative statement of testimony, it was necessary to presume that error was
harmless. NRCP 61.
2. Appeal and Error.
Under rule, grounds of objection to offensive instruction should have been expressed at trial. NRCP 51.
OPINION
By the Court, Thompson, J.:
[Headnotes 1, 2]
This appeal, presented without a trial transcript or a narrative statement of the testimony,
asks us to set aside a judgment entered upon a jury verdict denying the appellant damages for
injuries alleged to have been negligently inflicted. The main claim of error is that the court
used the words however slight with regard to one of the instructions concerning the defense
of contributory negligencewords, the use of which we condemned in Driscoll v. Erreguible,
87 Nev. 97, 482 P.2d 291 (1971). As we noted in Driscoll, however, this error does not
automatically mandate a reversal, for usually, without a trial transcript or a statement of the
evidence, the record will contain no substantial indicia that an error in instructing the jury has
had a prejudicial effect. Id. at 100. We found reversible error in that case because the record
revealed the deadlocked deliberations of the jury, its subsequent question in open court
whether any negligence would bar the plaintiff's recovery, and its rapid verdict following
the court's erroneous responsecircumstances which are not disclosed in the record now
before us. Since a prima facie showing of prejudice is not shown, we must, absent a trial
transcript or a narrative statement of the testimony, deem the offensive instruction to be
harmless error.
88 Nev. 94, 96 (1972) Pollard v. Gibbs
a narrative statement of the testimony, deem the offensive instruction to be harmless error.
Pfister v. Shelton, 69 Nev. 309, 250 P.2d 239 (1952); NRCP 61. Moreover, we note, as did
the district court in denying the appellant's motion for a new trial, that the grounds of
objection to the offensive instruction were not expressed as required by NRCP 51. Lathrop v.
Smith, 71 Nev. 274, 288 P.2d 212 (1955).
Other claims of error are either without substance or are incapable of appropriate
evaluation on the scanty record before us.
Affirmed.
Zenoff, C. J., and Batjer, Mowbray, and Gunderson, JJ., concur.
____________
88 Nev. 96, 96 (1972) Ring v. Walker
ROBERT A. RING, III, a Minor, By and Through his Guardian Ad Litem,
ROBERT A. RING, Jr., Appellants, v. WILLIAM F. WALKER and
CHARLES MAPES, Respondents.
No. 6648
February 23, 1972 493 P.2d 1037
Appeal from order of the Second Judicial District Court, Washoe County, granting
summary judgment; John E. Gabrielli, Judge.
Affirmed.
Bradley & Drendel, Ltd., of Reno, for Appellants.
Wait & Shamberger & Georgeson and Robert A. McOuaid, Jr., of Reno, for Respondent
Walker.
Erickson & Thorpe and C. Nicholas Pereos, of Reno, for Respondent Mapes.
OPINION
Per Curiam:
We believe that in the instant case the district court correctly determined that there was no
genuine issue as to any material fact, and that defendants were entitled to judgment as a
matter of law. Summary judgment was properly entered. NRCP 56(c).
____________
88 Nev. 97, 97 (1972) Sinclair v. Holt
PHILLIP SINCLAIR, Appellant, v. ROY E.
HOLT, Respondent.
No. 6600
February 23, 1972 493 P.2d 1316
Appeal from judgment of the Eighth Judicial District Court, Clark County; George F.
Wright, Judge.
Action to recover balance due on purchase price of chattels. The district court found for
seller and buyer appealed. The Supreme Court, Mowbray, J., held that where seller sold
goods which had been security for note which seller as guarantor paid to bank and received
assignment of note, buyer could not avoid liability for selling price on basis that seller lacked
legal title in goods.
Affirmed.
Lee and Beasey, of Las Vegas, for Appellant.
Pomeranz, Cochrane, Lehman & Nelson, of Las Vegas, for Respondent.
1. Chattel Mortgages.
Statutory procedure for effecting formal assignment of mortgage rights was not only means for
transferring rights of mortgagee.
2. Chattel Mortgages.
Where guarantor of note secured by chattel mortgage paid balance due on debt to bank which transferred
to guarantor all of bank's right, title, and interest in note, the security followed the note and conveyed to
guarantor the rights of a mortgagee.
3. Sales.
Where seller sold goods which had been security for note which seller as guarantor paid to bank and
received assignment of note, buyer could not avoid liability for selling price on basis that seller lacked legal
title in goods.
OPINION
By the Court, Mowbray, J.:
On September 21, 1962, the Vegas Development Corporation of Nevada, through its
officers, signed a $35,400 corporate installment note payable to the order of the First National
Bank of Nevada. The note was secured by a chattel mortgage covering apartment furniture
owned by the corporation.
On September 24, 1963, Respondent Roy E. Holt became guarantor of the note. Later the
corporation encountered financial difficulties. In September 1964 the corporation filed a
voluntary petition in bankruptcy in the United States District Court for the District of
Nevada.
88 Nev. 97, 98 (1972) Sinclair v. Holt
a voluntary petition in bankruptcy in the United States District Court for the District of
Nevada. The bank, upon receipt from Holt of the balance due on the corporate note,
transferred to Holt all of the right, title, and interest in the note. After the corporation was
adjudicated a bankrupt, the furniture covered by the chattel mortgage note was abandoned to
Holt by order of the Referee in Bankruptcy. Holt sold the furniture to Appellant Phillip
Sinclair, who in turn has sold the furniture for value to a third party.
Holt has sued Sinclair in the lower court for the balance due on the purchase price of the
furniture. Sinclair defended the suit on the ground that Holt did not have legal title in the
furniture when he sold it to Sinclair. The district judge found in favor of Holt and against
Sinclair. We affirm the judgment.
[Headnotes 1-3]
Sinclair, in attacking Holt's title to the furniture, claims that the chattel mortgage covering
the furniture was not formally assigned to Holt. While chapter 106 of NRS then in effect did
prescribe the means of effecting formal assignment of mortgage rights,
1
the statutory
procedure set forth therein was not the only means for transferring the rights of a mortgagee.
In this case the security followed the note, thus conveying to respondent Holt the rights of a
mortgagee. 4 Corbin, Contracts 907 (1951); 3 Williston, Contracts 432A (3d ed. 1960).
Under the express terms of the mortgage, the mortgagee had the right of private sale. That is,
upon default, the mortgagee was empowered to take possession of the mortgaged property
and later by private sale convey good title to a third party. See Cram v. Wells Cargo, Inc., 70
Nev. 19, 253 P.2d 200 (1953). This was done in the instant case. At the time the bank
assigned the note to Holt, he acquired by virtue of the assignment the bank's interest in the
security. The property was abandoned to him by the Referee in Bankruptcy. Sinclair then
purchased the property, and he later sold it for value to a third party. Sinclair may not renege
on his purchase agreement, and he must therefore pay the remainder of the purchase price due
thereunder as ordered by the district court.
The judgment is affirmed.
Zenoff, C. J., and Batjer, Thompson, and Gunderson, JJ., concur.
____________________

1
The Uniform Commercial Code was not then in effect.
____________
88 Nev. 99, 99 (1972) Collins v. Warden
ALFRED JOSEPH COLLINS, Appellant, v. WARDEN,
NEVADA STATE PRISON, Respondent.
No. 6483
February 23, 1972 493 P.2d 1335
Appeal from order denying post-conviction petition for habeas relief, Second Judicial
District Court, Washoe County; Grant L. Bowen, Judge.
The district court denied relief, and prisoner appealed. The Supreme Court, Gunderson, J.,
held that under statute, defendant who was sentenced to three consecutive sentences and who
had been convicted of prior felonies was precluded from parole only outside prison's
buildings and enclosures, and defendant, against whom habitual criminal charges were
dismissed by trial judge who expressed belief and intent that defendant would be allowed to
earn early parole consideration, was not precluded from being paroled from one sentence to
another so long as he remained within prison.
Affirmed.
H. Dale Murphy, Washoe County Public Defender, for Appellant.
Robert List, Attorney General, of Carson City; Robert Rose, District Attorney, and
Kathleen M. Wall, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Where defendant's guilty pleas were accepted before United States Supreme Court decision requiring
inquiry to establish that pleas are intelligent and voluntary before acceptance of pleas, defendant seeking
habeas corpus relief through post-conviction petition was not entitled to plead anew because of acceptance
of his pleas without the requisite inquiry.
2. Pardon and Parole.
Statute concerning concurrent and consecutive sentences merely recited rules to determine intent of
sentencing judge, and did not limit his power or that of parole board and did not preclude inmate serving
the first of two or more consecutive sentences from being paroled from that sentence to begin serving a
subsequent sentence. NRS 176.035, 176.035, subd. 2.
3. Pardon and Parole.
Under statute, defendant who was sentenced to three consecutive sentences and who had been convicted
of prior felonies was precluded from parole only outside prison's buildings and enclosures, and defendant,
against whom habitual criminal charges were dismissed by trial judge who expressed belief and intent that
defendant would be allowed to earn early parole consideration, was not precluded from being
paroled from one sentence to another so long as he remained within prison.
88 Nev. 99, 100 (1972) Collins v. Warden
was not precluded from being paroled from one sentence to another so long as he remained within prison.
NRS 213.110.
4. Habeas Corpus.
Prisoner who, because of prior felony convictions, was eligible for parole only inside prison could
challenge constitutional validity of prior convictions and thereby seek eligibility for outside parole. NRS
213.110.
OPINION
By the Court, Gunderson, J.:
April 22, 1968, appellant withdrew his prior not guilty plea, and pleaded guilty to an
information charging robbery. April 23, he withdrew his not guilty plea and pleaded guilty
to an information concerning a later incident, charging attempted robbery and assault with a
deadly weapon. Simultaneously the State, obviously as the result of plea bargaining, moved
for dismissal of habitual criminal charges alleging prior felonies in enhancement of penalty.
The court dismissed the habitual charges, and subsequently imposed consecutive sentences
of 10, 3 and 6 years on the principal charges, expressing belief and intent that appellant would
be allowed to earn early parole consideration.
1
Counsel for the State at no time suggested
that the court misunderstood the effect contemplated by dismissal of the habitual charges.
Prison authorities thereafter advised appellant that he is ineligible for parole; he then sought
post-conviction relief, which a different judge of the district court denied; hence, this appeal.
[Headnote 1]
1. Appellant contends he is entitled to plead anew, simply because the court accepted his
pleas without requisite inquiry to establish them intelligent and voluntary. Boykin v.
Alabama, 395 U.S. 238 (1969); Higby v. Sheriff, 86 Nev. 774, 476 P.2d 959 (1970). This
contention has no merit, for appellant's pleas were accepted before the U.S. Supreme Court
announced the doctrine of Boykin, which in our view is not retroactive. Mathis v. Warden, 86
Nev. 439, 471 P.2d 233 {1970); Anushevitz v. Warden, S6 Nev. 191
____________________

1
When sentencing appellant, Judge Craven stated: Now, the sentences I intend to impose will be
consecutive; but as a practical matter, it isn't going to make any difference because it is going to be entirely up to
the parole board. . . . While a psychiatric evaluation tendered as part of the pre-sentence report suggested
appellant be allowed to earn early parole consideration, Judge Craven clearly chose to impose consecutive rather
than concurrent sentences, to vest the parole board with maximum future control.
88 Nev. 99, 101 (1972) Collins v. Warden
(1970); Anushevitz v. Warden, 86 Nev. 191, 467 P.2d 115 (1970).
[Headnote 2]
2. Appellant further seeks the right to re-plead, or to be resentenced, because the
sentencing judge supposedly was unaware that under NRS 176.035 an inmate serving the first
of two or more consecutive sentences cannot be paroled from it to begin serving a subsequent
sentence.
2
In support of the premise that NRS 176.035 precludes such paroles, appellant
cites an opinion of our Attorney General (Op. Att'y Gen. No. 578, 1969); however, we
believe Judge Craven, rather than the Attorney General's deputy, has correctly construed NRS
176.035(2), which merely recites rules to determine the intent of the sentencing judge, and
does not limit his power or that of the parole board.
[Headnotes 3, 4]
3. Appellant further seeks the right to re-plead, or to be resentenced, because the court
assertedly was unaware NRS 213.110 precludes parole to persons who have previously been
more than three times convicted of a felony and served a term in a penal institution. Again,
we disagree with appellant's premise. By the express terms of NRS 213.110, only paroles
outside the prison's buildings and enclosures are precluded to persons stigmatized by that
statute.
____________________

2
NRS 176.035 Conviction of two or more offenses; concurrent and consecutive sentences.
1. Whenever a person shall be convicted of two or more offenses, and sentence has been pronounced for one
offense, the court in imposing any subsequent sentence may, in its discretion, provide that the sentences
subsequently pronounced shall run either concurrently or consecutively with the sentence first imposed.
2. If the court shall make no order with reference thereto, all sentences shall run concurrently; but whenever
a person under sentence of imprisonment shall commit another crime and be sentenced to another term of
imprisonment, such latter term shall not begin until the expiration of all prior terms.
Our former Attorney General's interpretation of this statute, discussed herein, has led to bizarre results. For
example, one convicted of a misdemeanor in prison necessarily suffers, not merely the usual penalties for that
crime, but the loss of all parole possibilities on his original sentence, i.e. an indiscriminate additional sanction
fortuitously dependent upon the length of his original sentence and the time his second sentence is imposed. To
avoid such purely arbitrary results, which our prison authorities find inimical to their prospects for control and
rehabilitation of prisoners, our trial judges have sometimes felt constrained to grant probation for offenses
committed while in prison. As the instant case illustrates, the Attorney General's view would also tend to deter
judges from imposing consecutive sentences in cases like the instant one, a result hardly consistent with allowing
the parole board maximum control over criminal offenders.
88 Nev. 99, 102 (1972) Collins v. Warden
paroles outside the prison's buildings and enclosures are precluded to persons stigmatized by
that statute. The sentencing judge apparently recognized that appellant might properly be
paroled from one sentence to another, so long as he remained within the prison, and his
advice to petitioner in this regard was correct.
3

We affirm the order denying appellant post-conviction relief, with the expectation that
appellant will be allowed parole consideration in conformity with law, as the sentencing court
apparently contemplated.
4

Zenoff, C. J., and Batjer, Mowbray, and Thompson, JJ., concur.
____________________

3
Petitioner may, of course, challenge the constitutional validity of his prior convictions as suggested in
Eisentrager v. State Bd. Parole, 85 Nev. 672, 462 P.2d 40 (1969), and thereby seek eligibility for outside parole.

4
In its Answering Brief, the State says it would concur in our resolving this case by assuming the
sentencing judge was ignorant of NRS 213.110, and adjusting appellant's sentences to run concurrently. Respect
for the sentencing court, and for its determination that consecutive sentences will best enable the parole board to
protect the public, impels us to decide the court correctly interpreted the intended effect of the dismissals sought
by the State.
____________
88 Nev. 102, 102 (1972) Dean v. Kimbrough
CHARLECY E. DEAN, Appellant, v. RUBY
KIMBROUGH and BEN W. KIMBROUGH, Respondents.
No. 6664
February 24, 1972 492 P.2d 988
Appeal from order granting a petition for writ of habeas corpus involving custody of two
minor children. Eighth Judicial District Court, Clark County; Thomas J. O'Donnell, Judge.
Habeas corpus proceeding by father and grandmother to obtain custody of children in
possession of mother. The district court granted the writ and mother appealed. The Supreme
Court, Zenoff, C. J., held that grant or denial of writ of habeas corpus in child custody
proceeding is final judgment and appealable, and that where full hearing on mother's
application for order modifying custody agreement had been held 13 days prior to filing of
habeas corpus proceeding by father and grandmother, to whom agreement gave custody, to
obtain children from mother, court's refusal to make habeas corpus proceeding a full scale
custody hearing was not a abuse of discretion.
88 Nev. 102, 103 (1972) Dean v. Kimbrough
children from mother, court's refusal to make habeas corpus proceeding a full scale custody
hearing was not an abuse of discretion.
Affirmed.
Greenman & Goldberg, of Las Vegas, for Appellant.
Leavitt, Edwards & Gladstone, of Las Vegas, for Respondents.
1. Habeas Corpus.
Grant or denial of writ of habeas corpus in child custody proceeding is final judgment and appealable.
NRCP 72(b)(1).
2. Habeas Corpus.
Child custody habeas corpus proceeding partakes in its nature that of private suit in which state is not
party as in criminal action.
3. Habeas Corpus.
Child custody may be modified on showing of change of circumstances but court need not have full
custody hearing in habeas corpus proceeding involving child custody.
4. Habeas Corpus.
Where full hearing on mother's application for order modifying custody agreement had been held 13 days
prior to filing of habeas corpus proceeding by father and grandmother, to whom agreement gave custody,
to obtain children from mother, court's refusal to make habeas corpus proceeding a full scale custody
hearing was not an abuse of discretion.
OPINION
By the Court, Zenoff, C. J.:
Charlecy E. Dean was granted a divorce from Ben W. Kimbrough in the state of Alabama
on August 15, 1969. In those proceedings she was awarded the care, custody and control of
the two minor children of their marriage. Later, she signed an agreement ratified by her
former husband and father of the children that the children would be under the care and
custody of their paternal grandmother, Ruby Kimbrough.
In November of 1970 Charlecy gained possession of the children by pretext and brought
them to Las Vegas where she sought to modify again the Alabama custody award which had
been modified by the agreement with the grandmother. After a hearing her action was
dismissed by the trial judge.
While her petition for a rehearing of that motion was pending Ben Kimbrough, father of
the children, and Ruby Kimbrough the grandmother, approximately 13 days after the
dismissal of the motion to modify petitioned a different judge for a writ of habeas corpus
seeking custody of the children.
88 Nev. 102, 104 (1972) Dean v. Kimbrough
dismissal of the motion to modify petitioned a different judge for a writ of habeas corpus
seeking custody of the children. Because he was scheduled to leave the country for an
extended overseas military tour he stipulated with Charlecy that the habeas corpus hearing be
a full-blown custody hearing, but the trial court refused to convert the habeas hearing into a
custody hearing principally on the ground that there was no showing that a change in custody
was essential or vital or necessary.
From what we can glean from the record Charlecy's only claim of changed circumstances
was that she was again married. She appeals from the granting of the writ.
Two issues are presented: (1) is the granting of a habeas corpus writ in connection with
child custody an appealable judgment, and (2) if it is appealable, nevertheless, did the trial
court abuse its discretion in not conducting a full custody hearing at the time set for the
habeas hearing when 13 days prior in another judicial department a motion to modify the
child custody award was dismissed.
1. The specific issue whether the granting of a child custody habeas corpus writ is an
appealable judgment has not heretofore been decided by this court, although the court has
heard appeals in the past from child custody habeas corpus proceedings. McGlone v.
McGlone, 86 Nev. 14, 18, 646 P.2d 27 (1970); Ferguson v. Krepper, 83 Nev. 408, 432 P.2d
668 (1967); Welfare Division v. Maynard, 84 Nev. 525, 445 P.2d 153 (1968); In the Matter
of Schultz, 64 Nev. 264, 181 P.2d 585 (1947); In the Matter of Swall, 36 Nev. 171, 134 P. 96
(1913); Tiedemann v. Tiedemann, 35 Nev. 259, 129 P. 313 (1913).
[Headnote 1]
Traditionally, habeas corpus as applied to child custody matters has been considered to be
civil in nature. Evens v. Keller, 35 N.M. 659, 6 P.2d 200 (1931); Tillman v. Walters, 214 Ala.
71, 108 So. 62 (1925); and so too by some states in habeas proceedings arising from the
criminal context, Little v. Rhay, 413 P.2d 15, 19 (Wash. 1966). As such, its granting or denial
is a final judgment and appealable under NRCP 72(b)(1).
[Headnote 2]
A child custody contest partakes in its nature that of a private suit in which the state is not
a party as in a criminal action. The rights of the parties are decided as in any civil action and
the judgment rendered is a final adjudication on the facts and circumstances existing at the
time of the judgment. Cf. Ex parte Bruegger, 267 P.
88 Nev. 102, 105 (1972) Dean v. Kimbrough
parte Bruegger, 267 P. 101 (Cal. 1928); Application of Croze, 145 Cal.App.2d 492, 302 P.2d
595 (1956).
[Headnote 3]
2. Nevada law holds that child custody may be modified upon the showing of change of
circumstances, but that does not mean that the Nevada court must have a full custody hearing
in a habeas corpus proceedings. Lyerla v. Ramsay, 82 Nev. 250, 415 P.2d 623 (1966);
Murphy v. Murphy, 84 Nev. 710, 447 P.2d 664 (1968); Ferguson v. Krepper, 83 Nev. 408,
432 P.2d 668 (1967); Sisson v. Sisson, 77 Nev. 478, 367 P.2d 98 (1961); Osmun v. Osmun,
73 Nev. 112, 310 P.2d 407 (1957).
[Headnote 4]
Considering that a hearing to modify having been had but 13 days prior and a failure in the
instant proceedings to show that a change in custody was essential or vital or necessary, under
these circumstances the trial judge did not abuse his discretion.
Affirmed.
Batjer, Mowbray, Thompson, and Gunderson, JJ., concur.
____________
88 Nev. 105, 105 (1972) Miller v. West
GEORGE E. MILLER, State Welfare Administrator, MEMBERS OF THE NEVADA
STATE WELFARE BOARD, Individually, and NEVADA STATE WELFARE BOARD,
Appellants, v. HENRY A. WEST (PAT WEST), Respondent.
No. 6500
February 24, 1972 493 P.2d 1332
Appeal from a judgment of the Eighth Judicial District Court; Thomas J. O'Donnell,
Judge.
The district court upheld aid to blind recipient's claim that Welfare Division's changes in
payments made to him were improper and appeal was taken. The Supreme Court, Batjer, J.,
held that action of Welfare Division in changing allocation of shelter needs between aid to
blind program and aid to dependent children program and thereby reducing aid to blind
recipient was proper.
Reversed and remanded.
88 Nev. 105, 106 (1972) Miller v. West
[Rehearing denied March 13, 1972]
Robert List, Attorney General, Margie Ann Richards, Deputy Attorney General, for
Appellants.
B. Mahlon Brown, III, Clark County Legal Aid Society, for Respondent.
1. Social Security and Public Welfare.
Applicant for aid to blind, if he is aggrieved by decision of Welfare Division and seeks judicial review,
must comply with statutory requirements and petition district court to review such decision. NRS
426.450.
2. Social Security and Public Welfare.
Complaint for injunction was not a proper vehicle for seeking redress of Welfare Division's change in
allocation of aid to blind person. NRS 426.450, 426.450, subd. 3.
3. Social Security and Public Welfare.
Action of Welfare Division in changing allocation of shelter needs between aid to blind program and aid
to dependent children program and thereby reducing amount received by aid to blind recipient was proper.
NRS 426.030, subd. 2, 426.040, 426.040, subd. 2.
4. Social Security and Public Welfare.
Statement in notification to aid to blind recipient that decrease in grant was due to new budgetary policy
prorating shelter with ADC companion case did not constitute improper reference to indigency or
pauperism. NRS 426.030, subd. 1.
OPINION
By the Court, Batjer, J.:
The respondent is and for several years has been a recipient of financial aid to the blind
under NRS 426.010426.500. His wife and four children are recipients of financial aid from
the Nevada Welfare Division's aid to dependent children program.
In December of 1969 the respondent was receiving $229.00 per month from the aid to the
blind program, and his wife and four children were receiving $81.00 per month from the aid
to dependent children program. On December 18, 1969, the appellants notified the respondent
that his aid to the blind grant was being reduced to a total of $10.00 per month, and that his
family's aid to dependent children grant was being increased to $160.00 per month. The
overall net effect of these changes resulted in a decrease in aid to the respondent and his
family of $140.00 per month.
In an effort to have the original monthly grants restored, the respondent filed a request
for a hearing with the Nevada State Welfare Board.
88 Nev. 105, 107 (1972) Miller v. West
the respondent filed a request for a hearing with the Nevada State Welfare Board. An
administrative hearing was held, and the respondent was informed of the reasons for the
changes and that the original grants would not be restored. The major reason for the
budgetary changes was that the Welfare Division had adopted a shelter-splitting policy
whereby the respondent's shelter needs would be allocated to his aid to the blind budget, and
those of his family would be allocated to the aid to dependent children budget. Prior to this
time the shelter needs of all six members of the family were included in the respondent's aid
to the blind budget. The total shelter needs remained constant, but the total aid received was
decreased because the aid to dependent children program compensates at a lower percent of
total need than does the aid to the blind program. The remaining decrease in the budget was
due to the Welfare Division's decision to disallow the respondent the privilege of diverting
his social security income to meet the needs of his family. Since this income could no
longer be diverted it was included in the respondent's own-resources section of his aid to the
blind budget, and his needs, according to the Welfare Division's tables, were calculated to be
only $10.00 per month.
In an effort to obtain judicial relief, the respondent filed a complaint for injunction with
the district court. This complaint was answered but no hearing was held nor was any action
taken on the matter. The parties then entered into a stipulation which provided for resumption
of the pre-December aid until the legal issues were resolved, and for the filing of amended
pleadings. The respondent did file an amended complaint and the district court found for him
on all of the issues raised therein. The appellants contend that this procedure did not properly
confer jurisdiction upon the lower court and that as a consequence its judgment is void.
[Headnotes 1, 2]
An applicant for aid to the blind, if he is aggrieved by a decision of the Welfare Division
and seeks judicial review, must comply with the provisions of NRS 426.450 which require
one to petition the district court to review such decision.
1
The complaint for injunction first
filed by the respondent was not a proper vehicle for seeking redress through the courts.
____________________

1
NRS 426.450(3): If such individual feels himself aggrieved by the decision of the welfare division in
respect to his case he shall have the right, at any time within 90 days after the mailing to him of written notice of
the decision, to petition the district court of the judicial district in which he resides to review such decision and
the
88 Nev. 105, 108 (1972) Miller v. West
See Villa v. Arrizabalaga, 86 Nev. 137, 139, 466 P.2d 663 (1970). If the amended complaint
meets the statutory requirements it confers jurisdiction upon the district court. Las Vegas
Network v. B. Shawcross, 80 Nev. 405, 407, 395 P.2d 520 (1964); McFadden v. Ellsworth
Mill and Mining Company, 8 Nev. 57, 60 (1872). However, as the appellant contends, the
respondent failed to proceed pursuant to NRS 426.450(3) and only through his self-serving
declaration in the amended complaint to the effect that he had exhausted his administrative
remedies in accordance with NRS 426.450 and that he was correctly seeking relief in the
district court can it possibly be construed that the district court had jurisdiction. Nevertheless,
the district court proceeded to review the decision of the Welfare Division and entered a
judgment against the appellants. Although we commend to the respondent and the district
court a much closer adherence to the provisions of NRS 426.450(3), we will, for the purpose
of this appeal and to secure a just, speedy and inexpensive determination of this action
(NRCP 1) consider that the trial court did have jurisdiction to enter judgment.
In reviewing the decision of the Welfare Division, this court is limited to the same scope
of review as the district court. It is the function of this court as well as the lower court to
review the evidence presented to the board to determine if the board's decision was supported
by the evidence, and to ascertain whether that body acted arbitrarily, capriciously or contrary
to the law. NRS 426.450(3); Barnum v. Williams, 84 Nev. 37, 436 P.2d 219 (1968); Bd.
Chiropractic Exam'rs v. Babtkis, 83 Nev. 385, 432 P.2d 498 (1967).
[Headnote 3]
The major change in the grants to the respondent and his family was due to the Welfare
Division's new policy of allocating five-sixths of the family's shelter needs to the aid to
dependent children program, and one-sixth to the aid to the blind program. The lower court
ruled that this new policy of prorating shelter needs was an improper combination of the
aid to the blind program with other Welfare Division programs.
____________________
district court shall have jurisdiction to review the decision on the record of the case before the welfare division, a
copy of which shall be certified as correct by the state welfare administrator and filed by the welfare division
with the clerk of the court as part of its answer to any such petition for review. The district court shall either
affirm the decision of the welfare division, or, if it concludes that the findings of the welfare division are not
supported by evidence or that the welfare division's decision is arbitrary, capricious or otherwise contrary to law,
reverse the decision and remand the case to the welfare division for further proceedings in conformity with the
decision of the court.
88 Nev. 105, 109 (1972) Miller v. West
prorating shelter needs was an improper combination of the aid to the blind program with
other Welfare Division programs. The lower court erred in this decision inasmuch as NRS
426.040(2) specifically provides that all aid to a blind recipient is intended to help him meet
his individual needs and is not for the benefit of any other person, unless that other individual
is a needy essential person as defined by the State Welfare Board.
2
The respondent's wife
and children were not needy essential persons because their needs were met by the aid to
dependent children program. The policy of the Welfare Division in prorating shelter needs is
consistent with NRS 426.040 because such a policy provides aid to meet the individual needs
of the blind recipient. The respondent asserts that his individual needs include the needs of
his family, but the legislature has clearly determined that the aid to the blind budget is to be
used to provide for the individual needs of the blind recipient, and that other programs be
used to satisfy the needs of others. NRS 426.040(2); see NRS 426.030(2).
At the time the appellants decided to withhold from the respondent the privilege of
diverting his social security income from the own-resources section of his aid to the blind
budget he was a student at the University of Nevada at Las Vegas. As a student, he was
engaged in a state-approved plan for achieving self support and special regulations within 42
U.S.C. 1202,
3
pertaining to the diversion of income, applied. However, the respondent has
since graduated from the university and is no longer participating in a plan for achieving self
support. Since he no longer comes within the provisions of 42 U.S.C. 1202 there is no
judicable controversy presented nor can effective relief be granted, and it is the duty of this
court to dismiss this issue as moot. We have repeatedly refused to render opinions on moot
questions or abstract propositions.
____________________

2
NRS 426.040(2): All money paid to a recipient under NRS 426.010 to 426.500, inclusive, is intended to
help him meet his individual needs and is not for the benefit of any other person, except that money may be
included in such payment to meet the needs of a needy essential person. The criteria of a needy essential person'
shall be defined by the state welfare board.

3
The relevant portions of 42 U.S.C. 1202 (State Plans for Aid to Blind) read as follows: (a) A State plan
for aid to the blind must . . . (8) provide that the State agency shall, in determining need, take into consideration
any other income and resources of the individual claiming aid to the blind, . . . except that, in making such
determination, the State agency. . . (B) shall. . . disregard such additional amounts of other income and
resources, in the case of an individual who has a plan for achieving self-support approved by the State agency as
may be necessary for the fulfillment of such plan. . . .
88 Nev. 105, 110 (1972) Miller v. West
Morrow v. Morrow, 62 Nev. 492, 156 P.2d 827 (1945); City of Reno v. District Court, 58
Nev. 325, 78 P.2d 101 (1938); State v. Cohen, 45 Nev. 266, 210 P. 1027 (1921); Edwards v.
City of Reno, 45 Nev. 135, 198 P. 1090 (1921); Ex Parte Moriarity, 44 Nev. 164, 191 P. 360
(1920); Ex Parte Ming, 42 Nev. 472, 181 P. 319 (1919); Earl v. Morrison, 39 Nev. 120, 154
P. 75 (1915); Pac. L. Co. v. Mason Val. M. Co., 39 Nev. 105, 153 P. 431 (1915); Foster v.
Jones, 35 Nev. 248, 128 P. 986 (1912); State v. Pray, 30 Nev. 206, 94 P. 218 (1908);
Wedekind v. Bell, 26 Nev. 395, 69 P. 612 (1902); Haley v. Eureka Co. Bank, 21 Nev. 127, 26
P. 64 (1891); State v. McCullough, 20 Nev. 154, 18 P. 756 (1888). In State v. Pray, supra at
220; City of Reno v. District Court, supra at 328; and in Morrow v. Morrow, supra at 497,
this court quoted with approval from Mills v. Green, 159 U.S. 651, 653 (1895): The duty of
this court, as of every other judicial tribunal, is to decide actual controversies by a judgment
which can be carried into effect, and not to give opinions upon moot questions or abstract
propositions, or to declare principles or rules of law which cannot affect the matter in issue in
the case before it. The facts presented in this issue do not afford any reason or justification
for this court to take a position contrary to the rule announced in earlier Nevada decisions and
give an opinion on a moot question.
[Headnote 4]
In the notification to the respondent dated December 17, 1969, the appellants stated that
the decrease in the grant was due to a New budgetary policy prorating shelter with ADC
companion case. The respondent asserted and the lower court held that this was an improper
reference to indigency or pauperism in contravention of the provisions of NRS 426.030 (1).
4
This explanatory statement contained in the letter did not refer to the respondent as a pauper
or a indigent, and no fair reading of it can produce the conclusion that any attempt at
demeaning the dignity of this blind individual was intended.
The judgment of the district court is reversed and the case is remanded with instructions
to the district court to enter an order affirming the decision of the Welfare Division.
____________________

4
NRS 426.030(1): No blind person shall be deemed or designated a pauper, an indigent or a public charge
because be receives aid or services under this chapter, and no reference to pauperism, indigency or public charge
shall be made on any application or other document relating to aid or services to the blind or on any warrant
drawn by the state in payment of aid or services to the blind.
88 Nev. 105, 111 (1972) Miller v. West
is remanded with instructions to the district court to enter an order affirming the decision of
the Welfare Division.
Zenoff, C. J., and Mowbray, Thompson, and Gunderson, JJ., concur.
____________
88 Nev. 111, 111 (1972) El Ranco, Inc. v. New York Meat & Prov.
EL RANCO, INC., a Nevada Corporation, Appellant, v. NEW YORK MEAT
AND PROVISION CO., a Nevada Corporation, Respondent.
No. 6588
February 24, 1972 493 P.2d 1318
Appeal from a money judgment. Eighth Judicial District Court, Clark County; William P.
Compton, Judge.
Action to recover balance due on sales of merchandise. The district court granted
judgment for seller and buyer appealed. The Supreme Court, Zenoff, C. J., held that where
buyer signed sale receipts which showed on their faces both liability to pay and obligation to
pay, obligation to pay was founded on instrument in writing within statute of limitations
applicable to action based on instruments in writing.
Affirmed.
Thompson, J., dissented.
Lionel Sawyer Collins & Wartman and Steve Morris, of Las Vegas, for Appellant.
Morton Galane, of Las Vegas, for Respondent.
1. Statutes.
In adopting practice act of California, act must be presumed to have been adopted as interpreted by
highest court of judicature of that state. NRS 11.190, subd. 1(b).
2. Limitation of Actions.
Where limitation statute contains provision for obligations founded on writing, strict construction should
not be applied by courts in determining what does and what does not constitute contract in writing. NRS
11.190, subd. 1(b).
3. Limitation of Actions.
Where buyer signed sale receipts which showed on their faces both liability to pay and obligation to pay,
obligation to pay was founded on instrument in writing within statute of limitations applicable to action
based on instruments in writing. NRS 11.190, subd.1(b).
88 Nev. 111, 112 (1972) El Ranco, Inc. v. New York Meat & Prov.
4. Limitation of Actions.
Where buyer signed sale receipts which showed on their faces both liability to pay and obligation to pay
action to recover balance due was not an action on an open account for goods sold and delivered within
statute of limitations provision relating to actions on an open account. NRS 11.190, subd. 2(a).
5. Limitation of Actions.
Under Nevada statute of limitations applicable to actions based on instrument in writing, all that is
required is that there be writing which fairly imports obligation to pay. NRS 11.190, subd. 1(b).
6. Courts.
Party bringing action to recover balance due on series of sales could aggregate separate claims so that
jurisdictional amount for district court would be obtained.
OPINION
By the Court, Zenoff, C. J.:
This suit was brought by New York Meat and Provision Co. to recover the sale price of
meat and meat products sold to El Rancho Hotel. Judgment was rendered in favor of New
York Meat and Provision Co. in the sum of $5,000, plus interest. We affirm.
Between June 3, 1960 and June 16, 1960 New York Meat and Provision Co. sold meat
items to appellant in twenty-six separate transactions. The purchasing agent or the chef would
check prices of various meat companies and telephone the orders. New York Meat used
three-copy sale receipts designating the goods ordered and the prices thereof. These receipts
bore at the heading the words Sold to............ The products were checked and weighed upon
delivery by either the purchasing agent, his assistant, or their secretary who signed or
receipted the sale slip, retaining one copy for the hotel accounting department. New York
Meat retained two copies, sending one to the El Rancho with its monthly billing and retaining
one in its permanent records. These transactions had been going on for a rather extended
period of time.
The hotel burned in the summer of 1960. On December 15, 1960 the hotel made a partial
payment on its account, leaving a balance due of $5,000, covering the twenty-six purchases
made between June 3, 1960 and June 16, 1960.
Suit was filed August 25, 1965. The question on appeal is whether it was barred by the
statute of limitations, NRS 11.190, those sections applicable being as follows: "1.
88 Nev. 111, 113 (1972) El Ranco, Inc. v. New York Meat & Prov.
1. Within 6 years:
(a) An action upon a judgment or decree of any court of the United States, or of any state
or territory within the United States.
(b) An action upon a contract, obligation or liability founded upon an instrument in
writing, except those mentioned in the preceding sections of this chapter.
2. Within 4 years:
(a) An action on an open account for goods, wares and merchandise sold and delivered.
(b) An action for any article charged in a store account.
(c) An action upon a contract, obligation or liability not founded upon an instrument in
writing.
1. The peculiar language of NRS 11.190(1)(b) is derived from a California statute adopted
in 1850, allowing four years for: An action upon any contract, obligation, or liability,
founded upon an instrument of writing. 1850 Calif. Stats., Ch. 127 (Ch. III 17). It should
be noted that the statute is not limited to actions upon contracts in writing, but relates to
any obligation or liability founded upon an instrument of writing. In 1855, before the statute
was adopted in Nevada, the California Supreme Court placed a broad interpretation on the
words founded upon an instrument in writing. In Sannickson v. Brown, 5 Cal. 57 (1855),
the California court held accounts the defendant had marked audited and approved and
certified to be correct were sufficient to constitute instruments in writing within the
meaning of the statute, so that an action founded or based upon them was entitled to a
longer statute of limitations than an action brought upon a mere account not evidenced in
such a way.
[Headnote 1]
In 1861, Nevada adopted the California statute with its judicial gloss. Laws of the
Territory of Nevada, First Regular Session, ch. XII, 16 (1861). In adopting the practice act
of California, it must be presumed to have been adopted as interpreted by the highest court of
judicature of that state. Williams v. Glasgow, 1 Nev. 533, 538 (1865); Harris v. Harris, 65
Nev. 342, 346, 196 P.2d 402 (1948); Astorga v. Ishimatsu, 77 Nev. 30, 32, 359 P.2d 83
(1961). The statute has been carried forward with the only substantial change being that the
limitation period was extended to six years. (1867 Nev. Stats., ch. XLIX 5; 1869 Nev.
Stats., ch. 196, tit. I; 1911 Civil Practice Act 25; Revised Laws of Nevada 4967 (1912);
NCL 8524 (1929).)
88 Nev. 111, 114 (1972) El Ranco, Inc. v. New York Meat & Prov.
In Stephens v. McCormack, 50 Nev. 383, 263 P. 774 (1928), this court interpreted Revised
Laws of Nevada 4967 (NRS 11.190) as barring a suit by the representative of a cosurety
against the other cosurety. The statute was held to run against the claim for contribution when
the common debt was discharged. The action was based upon a contract which the law
implies from the equitable obligation imposed upon cosureties to proportionately share a
common loss and not upon any written instrument. Here the situation is different and is a case
provided for where the court in Stephens, supra, at 390, quoting a California case with
approval, stated that In order to be founded upon an instrument in writing, the instrument
must itself contain a contract [obligation or liability] to do the thing for the nonperformance
of which the action is brought.' Whatever dicta there is to the contrary in Stephens, supra,
should be ignored.
Subsequent California authorities interpreting the statute are consistent with our result,
e.g., Tagus Ranch Co. v. Hughes, 148 P.2d 79 (Cal.App. 1944); Ashley v. Vischer, 24 Cal.
322, 85 Am.Dec. 65 (1864); Lawrence Barker, Inc. v. Briggs, 248 P.2d 897 (Cal. 1952);
Nomellini Construction Co. v. Harris, 77 Cal.Rptr. 361 (Cal.App. 1969). It may be noted that
Ashley, supra, retreated somewhat from Sannickson, supra, but under all of the pertinent
California authorities it would appear that an instrument like that here concerned would be
deemed sufficient.
In construing what is meant by An action upon a contract, obligation or liability founded
upon an instrument in writing, the Supreme Court of Utah in Bracklein v. Realty Ins. Co., 80
P.2d 471, 476 (Utah 1938), considering their statute which was also derived from the
California Code of Civil Procedure 336, 337, stated:
Chipman v. Morrill, 20 Cal. 130, 131, 7 Pac.St.Rep. 130that a cause of action is
founded upon an instrument of writing' when the contract, obligation, or liability grows out
of written instruments, not remotely or ultimately, but immediately.' O'Brien v. King, 174
Cal. 769, 164 P. 631, 632; Chipman v. Morrill, supra; Ashley v. Vischer; Cal. 322, 85
Am.Dec. 65, 8 Pac.St.Rep. 322; Louvall v. Gridley, 70 Cal. 507, 11 P. 777; Scrivner v.
Woodward, 139 Cal. 314, 73 P. 863; that if the fact of liability arises or is assumed or
imposed from the instrument itself, or its recitals, the liability is founded upon an instrument
in writing. If the instrument acknowledges or states a fact from which the law implies an
obligation to pay, such obligation is founded upon a written instrument within the statute.
88 Nev. 111, 115 (1972) El Ranco, Inc. v. New York Meat & Prov.
within the statute. If the writing upon its face shows a liability to pay, such liability is on a
written instrument within the statute of limitations.
[Headnote 2]
Where the limitation statute contains provision for obligations founded upon a writing,
the authorities support the proposition that a strict construction should not be applied by the
courts in determining what does and what does not constitute a contract in writing. In
Texas, for instance, Tex.Civ. Stats., art. 5527, provides that actions on an indebtedness
evidenced by or founded upon any contract in writing shall be commenced and prosecuted
within four years after the action accrues. That state has concluded in Jackson v. Paulsel
Lumber Company, 461 S.W.2d 161, 167 (Tex.Civ.App. 1970), that signed writings, such as
appear in this case, unquestionably acknowledged the existence of a set of facts from which
the law implies an obligation to pay, and that being true, the obligation sued on is founded
upon a written contract within the meaning of the Texas limitation statute. Where, however,
the statute specifically provides for a contract, absent founded, the result is otherwise.
Rudolph Bros. v. Husat, 187 N.E.2d 190 (Ohio App. 1961).
At the time these transactions occurred NRS 96.720(1) provided:
Where, under a contract to sell or a sale, the property in the goods has passed to the
buyer, and the buyer wrongfully neglects or refuses to pay for the goods according to the
terms of the contract or the sale, the seller may maintain an action against him for the price of
the goods.
[Headnote 3]
It is apparent that at the time appellant's agents signed the sale receipts, the sales became
consummated and the receipts showed upon their faces both a liability to pay and an
obligation to pay. Such obligation is founded upon written instruments within our statute.
[Headnote 4]
2. This is not an action on an open account for goods sold and delivered to which NRS
11.190(2)(a) is applicable. One selling upon an open account may properly protect himself
by obtaining written evidence of the sales he makes, and if a seller does obtain a sufficient
instrument in writing, there is no reason why he should be precluded from enjoyment of the
longer limitations statute. This court has long recognized that separate sections of the
statute of limitations can be applicable to a given business transaction.
88 Nev. 111, 116 (1972) El Ranco, Inc. v. New York Meat & Prov.
separate sections of the statute of limitations can be applicable to a given business
transaction. See: Henry v. Confidence Mining Co., 1 Nev. 619 (1866), holding that although a
debt secured by a mortgage was extinguished by the statute of limitations, the mortgage was
not extinguished; Mackie v. Lansing, 2 Nev. 302 (1866), holding that although the principal
debt was barred by the statute of limitations a right to foreclose the mortgage securing the
debt was not barred until lapse of the longer statute of limitations; cf. Cookes v. Culbertson, 9
Nev. 199 (1874); Shoecraft v. Beard, 20 Nev. 182 (1888); State v. Murphy, 23 Nev. 390
(1897), holding that although the two-year statute for forfeitures and penalties had expired, an
action upon the bail bond itself was an action upon an obligation founded upon an instrument
in writing, so that the six-year statute applied.
[Headnote 5]
Under our statute, as interpreted by authorities that have concerned themselves with the
same language, all that is required is that there be a writing which fairly imports the
obligation to pay. This is a fair construction of the statute, consistent with its language and
with the legislative purpose to allow a longer time to commence an action for which there is
solid written proof. In the absence of signed documentation, our ruling may be different, and
such situation will be considered when it arises.
3. Because several of the sales slips were for an amount less than $300, a question is
presented whether the district court had jurisdiction as to these items. NRS 4.370(1)(a)
provides that the justice court shall have jurisdiction in actions arising on contract for the
recovery of money only if the sum claimed does not exceed $300.
[Headnote 6]
The respondent is entitled to aggregate the separate claims so that the jurisdictional
amount for the district court is obtained. Hartford M. Co. v. H. L. & C. Co., 61 Nev. 19, 114
P.2d 1093 (1941); cf. 13 Cal.Jur.2d 578, Courts 75 (1954).
The lower court must be affirmed.
Batjer, Mowbray, and Gunderson, JJ., concur.
Thompson, J., dissenting.
From June 3, 1960, to June 16, 1960, in twenty-six separate transactions, New York Meat
sold goods in the form of meat and meat products to El Ranco for which there was a
balance due of $5,000.
88 Nev. 111, 117 (1972) El Ranco, Inc. v. New York Meat & Prov.
and meat products to El Ranco for which there was a balance due of $5,000. An employee of
the buyer would place a verbal order with the seller. When the goods arrived at the buyer's
hotel an employee would sign an invoice provided by the seller indicating that the goods had
been received as ordered. Each invoice was posted to a ledger maintained by the seller, and at
the end of the month a statement was sent to the buyer. The seller's ledger cards in evidence
reflect an open account running from August 31, 1959, to December 12, 1960. The complaint
was filed August 25, 1965.
This appears to be a common open account transaction for goods sold and delivered
subject to the bar of limitations if action thereon is not commenced within four years. NRS
11.190(2)(a). In Stephens v. McCormack, 50 Nev. 383, 263 P. 774 (1928), this court
considered the meaning of what is now NRS 11.190(1)(b) and approved the following
language: But a cause of action is not upon a contract founded upon an instrument in
writing, within the meaning of the code, merely because it is in some way remotely or
indirectly connected with such an instrument, or because the instrument would be a link in
the chain of evidence establishing the cause of action. In order to be founded upon an
instrument in writing, the instrument must itself contain a contract to do the thing for the
nonperformance of which the action is brought. Id. at 390. The invoices here involved are
links in the chain of evidence establishing the cause of action and cannot qualify as
instruments containing a contract to do the thing for the nonperformance of which the action
is brought. Moreover, the Stephens decision flatly rejected the giving of any significance to
the word founded as used in the statute. Id. at 389. I perceive no reason why the reasoning
of Stephens should not control the disposition of the instant matter. See also: Rudolph Bros.
v. Husat, 187 N.E.2d 190 (C.A. Ohio 1961). In my view, today's opinion in large measure
nullifies NRS 11.190(2)(a). I would reverse.
____________
88 Nev. 118, 118 (1972) Weaks v. Mounter
P. F. WEAKS, dba WEAKS CONSTRUCTION COMPANY, Appellant, v. GERALD E.
MOUNTER and E. RUTH MOUNTER, ................, an infant,
1
by JOHN TOM ROSS, her
Guardian ad Litem, Respondents.
No. 6509
February 25, 1972 493 P.2d 1307
Appeal from verdicts favoring the parents and infant daughter of deceased in a wrongful
death action; First Judicial District Court, Storey County; Richard L. Waters, Jr., Judge.
The district court rendered judgment in favor of decedent's parents and infant daughter and
defendants appealed. The Supreme Court, Zenoff, C. J., held that posthumous illegitimate
child could sue for death of her father although father had not acknowledged paternity, but
that Dead Man Statute did not justify exclusion of eyewitness testimony by defendants'
employee.
Reversed and remanded.
Thompson and Batjer, JJ., concurred in part, dissented in part.
Wait, Shamberger & Georgeson, of Reno, for Appellant.
Martillaro & Bucchianeri, of Carson City, for Respondents Gerald E. Mounter and E.
Ruth Mounter.
Ross & Crow, of Carson City, for Respondent............, an infant.
1. Infants.
Unborn child is a person for purpose of remedies given for personal injuries, and child may sue after
his birth.
2. Bastards.
Illegitimate children are humans and have their being.
3. Death.
Heirs for purpose of wrongful death suit include illegitimate child whose identity has been established
regardless of lack of formal acknowledgment. NRS 12.080, 12.090, 41.080, 41.090, 134.170.
4. Death.
Posthumous illegitimate child could sue for death of her father although father had not acknowledged
paternity. NRS 12.080, 41.090.
____________________

1
It is the practice of this court to omit the minor's proper name where there may be an unwarranted reflection.
88 Nev. 118, 119 (1972) Weaks v. Mounter
5. Death.
Infant could sue for death of minor father through infant's guardian ad litem, without appointment of
guardian for father. NRS 12.080.
6. Witnesses.
Purpose of Dead Man Statute is to prohibit fraudulent claims against estate to deceased. NRS 48.010.
7. Witnesses.
Eyewitness testimony of defendant's employee was admissible in action for death arising out of
automobile accident, despite Dead Man Statute, particularly since plaintiffs also produced eyewitness
testimony. NRS 48.010.
8. Appeal and Error.
On new trial after remand, new evidentiary statute, replacing repealed Dead Man Statute, should be
utilized. NRS 48.010.
9. Death.
Verdict for decedent's parents and decedent's child in wrongful death action properly allocated amounts
between parents and child, rather than awarding lump sum on which attorneys' fees could not have been
awarded. NRS 12.080, 18.010, subd. 3(a), 41.080, 41.090.
OPINION
By the Court, Zenoff, C. J.:
A truck-motorcycle collision occurred on August 31, 1966, at the intersection of U.S. 50
and State Route 17, near Virginia City, instantly killing James E. Mounter, a minor aged 19.
Two principal questions are presented on appeal. One is the standing of an illegitimate
minor child to sue for the death of its father who was also a minor. The original plaintiffs
were the natural mother and father of Mounter, but upon motion to intervene the illegitimate
and posthumous daughter of the deceased was allowed as an additional plaintiff.
A second issue concerns the trial court's application of NRS 48.010, the Dead Man Statute,
as excluding the testimony of eyewitness William Goldson, the driver of the truck with which
the deceased collided. He was in the employ of P. F. Weaks, the truck's owner and doing
business as Weaks Construction Company, and was a witness testifying on Weaks' behalf.
While he was relating the germane facts of the accident the trial court prevented further
testimony on the assertion of the statute. This exclusion from testifying was in the face of the
plaintiffs having been permitted already to put on eyewitness testimony of Andrew Minister,
a passenger in another car who claimed he saw the accident.
88 Nev. 118, 120 (1972) Weaks v. Mounter
saw the accident. Nevertheless, Goldson was stopped at the point where the trial court felt
that the facts would be within the knowledge of the deceased, and therefore, under the Dead
Man Statute, the agent-employee would be prevented from telling his version.
Verdicts were rendered in favor of the natural parents for $10,000, plus $4,000 attorneys'
fees, and in favor of the minor daughter for $20,000. Appellant also contests the division of
the verdicts claiming they should be one verdict, if at all, and that their total prohibited the
assessment of attorneys' fees.
1. NRS 41.080 provides for the survivability of wrongful death actions and NRS 12.080
and NRS 12.090 specify who has the right to sue in such actions. Whatever standing
plaintiffs have. . . must be found in the statutes of Nevada. The remedy [in wrongful death
cases], being wholly statutory, is exclusive. The statute provides the only measure of
damages, and designates the only persons who can maintain such action. Wells, Inc. v.
Shoemake, 64 Nev. 57, 66, 177 P.2d 451 (1947); Perry v. Tonopah Mining Co., 13 F.2d 865
(D. Nev. 1915).
At the time of the accident no statute specifically designated a right of action for the child
of a minor. Respondents justify this suit on the ground that NRS 41.090 allows a child to sue
for the death of its parent.
2
NRS 12.080 sets out the right of the parents of the deceased
minor to sue, but further adds, a guardian may maintain an action for the injury or death of
his ward, when such injury or death is caused by the wrongful act or neglect of another, the
action by the guardian to be prosecuted for the benefit of the heirs of the ward. (Emphasis
supplied.)
It readily becomes apparent therefore that we must decide whether the right of a child of
NRS 41.090 includes an
____________________

2
41.090 Proceeds or judgment not liable for debt of deceased; damages.
1. The proceeds of any judgment obtained in any action brought under the provisions of NRS 41.080 and this
section shall not be liable for any debt of the deceased, provided he or she shall have left a husband, wife, child,
father, mother, brother, sister, or child or children of a deceased child.
2. The court or jury, as the case may be, in every such action may give such damages, pecuniary and
exemplary, as shall be deemed fair and just. Every person entitled to maintain such action, and every person for
whose benefit such action is brought, may prove his respective damages, and the court or jury may award such
person that amount of damages to which it considers such person entitled, including damages for loss of
probable future companionship, society and comfort.
88 Nev. 118, 121 (1972) Weaks v. Mounter
illegitimate child, and under NRS 12.080, whether the posthumous illegitimate child is an
heir within the statute or at all.
3

The child's mother testified that she became pregnant by James E. Mounter and together
they made plans to marry, that he went to the doctor with her, that the child had already been
given his surname, that further evidence showed that the deceased boy's parents were
apprised by their son and future daughter-in-law of the pregnancy, that they accepted the child
as his and later aided the mother in the expenses of the birth. Throughout the litigation no
doubt was thrown upon the child's paternity, only appellant claims that because the deceased
never signed a declaration acknowledging the child as required by NRS 134.170 the child is
not an heir within the contemplation of NRS 12.080 and cannot bring this lawsuit for the
wrongful death of its father.
4

In this regard there has been a remarkable departure in the law. Indeed, fortune appears to
smile upon the lot of the illegitimate who in times past was saddled with life's infirmities but
could not always reap its benefits.
[Headnote 1]
First, as to the standing of a posthumous child it is well established, as enumerated and
enunciated in La Blue v. Specker, 100 N.W.2d 445 (Mich. 1960), that an unborn child is a
"person" in those situations where remedies are given for personal injuries inflicted thus
permitting the child after her birth to bring her own action against the alleged
wrongdoer.5 The court in La Blue held that an illegitimate child born after her putative
father was killed in an automobile accident and who had been acknowledged by the
father is a posthumous child entitled to support by that father, and when the means of
support is wrongfully taken from the child a cause of action lies.
____________________

3
12.080 Parent and guardian may maintain action for death, injury of minor child. The father and mother
jointly, or the father or the mother, without preference to either, may maintain an action for the death or injury of
a minor child, when such injury or death is caused by the wrongful act or neglect of another; and a guardian may
maintain an action for the injury or death of his ward, when such injury or death is caused by the wrongful act or
neglect of another, the action by the guardian to be prosecuted for the benefit of the heirs of the ward. Any such
action may be maintained against the person causing the injury or death, or, if such person be employed by
another person who is responsible for his conduct, also against such other person.

4
134.170 Illegitimate child.
1. Every illegitimate child shall be considered as an heir of the person who shall acknowledge himself to be
the father of such child by signing in writing a declaration to that effect in the presence of one credible witness,
who shall sign the declaration also as a witness, and shall in all cases be considered as heir of the mother, and
shall inherit in whole or in part, as the case may be, in the same manner as if born in lawful wedlock. Illegitimate
children shall be legitimatized by the intermarriage of the parents with each other. Children, so acknowledged or
so legitimatized, shall have all the rights of inheritance of legitimate children.
2. The issue of all marriages, deemed null in law or dissolved by divorce, shall be legitimate.
88 Nev. 118, 122 (1972) Weaks v. Mounter
is a person in those situations where remedies are given for personal injuries inflicted thus
permitting the child after her birth to bring her own action against the alleged wrongdoer.
5
The court in La Blue held that an illegitimate child born after her putative father was killed in
an automobile accident and who had been acknowledged by the father is a posthumous child
entitled to support by that father, and when the means of support is wrongfully taken from the
child a cause of action lies.
The question then becomesis the legitimacy of the child a prerequisite to that right of
action? In Levy v. Louisiana, 391 U.S. 68 (1968), the United States Supreme Court struck
down a statute construed to deny wrongful death action by illegitimate children as creating an
invidious discrimination which contravened the 14th Amendment's equal protection clause
because legitimacy or illegitimacy of birth has no relation to the nature of the wrong allegedly
inflicted. See also Glona v. American Guarantee & Liability Ins. Co., 391 U.S. 73 (1968).
The next roadblock to recovery is the statute requiring a written acknowledgment of
paternity by the father. That impediment was resolved by Armijo v. Wesselius, 440 P.2d 471
(Wash. 1968), and Schmoll v. Creecy, 254 A.2d 525 (N.J. 1969). In the former, a baby girl
was born illegitimate, her father had freely and publicly acknowledged his parentage of the
impending child before his accidental death but he had not complied with the written
acknowledgment of paternity requirements of the Washington statutes. Common-sense
humanity, that court concluded, requires that the child of a decedent have a remedy for lost
support, and further, that the child or children recited in the statute encompassed all natural
or adopted children of the decedent who were dependent upon him regardless of their
legitimacy. To the protest that such a holding would place decedents' estates at the mercy of
unscrupulous charlatans posing as illegitimate children intending to reap undeserved benefits
the court replied that upon those who would assert their right as a child of deceased would lie
the burden of proof to establish their contention and the burden was a heavy one.
[Headnote 2]
Legitimacy or illegitimacy of birth has no relation to the nature of the wrong allegedly
inflicted. Illegitimate children are humans and have their being.
____________________

5
The Legislature has provided in another connection that Posthumous children are considered as living at
the death of their parents. NRS 134.140.
88 Nev. 118, 123 (1972) Weaks v. Mounter
humans and have their being. When the child's claim of damage for loss of his mother or
father is in issue there is no sound reason why the tort feasor should go free merely because
the child is illegitimate. Our paternity statute would create an open season on illegitimates in
the area of automobile accidents by giving a windfall to tort feasors. Glona, supra, at 75. An
obvious, possible extension of Levy and Glona would be to permit a recovery in a father-child
relationship in which the identity of the father has been legally determined but the child has
not been legitimatized.
[Headnote 3]
An illegitimate child is subject to all the responsibilities of a citizen including the payment
of taxes and conscription under the Selective Service Act. The illegitimate, after all, doesn't
ask to be born. For the sole purpose of this wrongful death suit against the wrongdoers
responsible for the loss of the father's obligation of financial support to the child, the heirs
as provided in NRS 12.080 should include the illegitimate child whose identity has been
established to the court regardless of the lack of a formal acknowledgment. In re Estate of
Ross, 323 N.Y.S.2d 770 (N.Y.Sur.Ct. 1971).
[Headnote 4]
For the purposes of NRS 12.080 this child is an heir entitled to bring a wrongful death
suit but is adorned with that classification for the sole purpose of this action only and does not
meet the requirements of the acknowledgment statute to permit it necessarily to participate in
descent and distribution if its father has left an estate. Bower v. Landa, 78 Nev. 246, 253, 371
P.2d 657 (1962); cf. In re Hendrix Estate, 326 N.Y.S.2d 646 (N.Y.Sur.Ct. 1971).
Progressively, society is becoming more aware that children deserve proper care, comfort
and protection even if they are illegitimate. The illegitimate child suffers serious pecuniary
loss because the right of support from the deceased father is denied. Removing the obstacle of
the acknowledgment statute and relegating it to its proper place within the legalities of
inheritance of estates solves at the same time the invidious discrimination that would punish
the child and inflict problems upon the community, consequences that arise solely from the
father's inability to get to the marriage bureau before he was killed.
[Headnote 5]
2. As noted, the statute recites that a guardian may maintain an action for the death of his
ward to be prosecuted for the benefit of the heirs of the ward.
88 Nev. 118, 124 (1972) Weaks v. Mounter
benefit of the heirs of the ward. A guardian ad litem brought the action on behalf of the child
but he was not the guardian of the deceased minor father. The primary concern is for the
bereaved infant and the defect in not designating a guardian for the minor father to bring the
action is infinitesimal. In re Estate of Ross, supra, at 773.
[Headnote 6]
3. The trial court erroneously excluded the testimony of William Goldson, driver of the
truck, concerning the immediate details that led to the accident. The purpose of the Dead Man
Statute was to prohibit fraudulent claims being made against the estate of the deceased. No
one should have an unfair advantage over the deceased, but in this case it is not the estate of
the deceased that is being attacked, rather representatives are suing in their own right for
injuries to themselves against the live defendant. Matusik v. Large, 85 Nev. 202, 452 P.2d
457 (1969); see also C. Coker, Competency of a Defendant to Testify when Sued under the
Wrongful Death Statute, 29 Miss.L.J. 258 (1958).
Further, at the time of trial NRS 48.010(1)(b) provided that when a representative of a
deceased person, respondents here, produced testifying witnesses of their own claiming to
have been present when the transaction took place then the other party could also testify. The
eyewitness, Minister, being respondents' witness opened the door to allow Goldson's
testimony on behalf of his employer. Carswell v. Greene, 116 S.E.2d 801 (N.C. 1960).
[Headnotes 7, 8]
We conclude therefore that the testimony should have been admitted and its omission was
error sufficiently important to cause reversal for a new trial.
6

4. Because this matter may again result in recovery we will decide for guideline purposes
the third point raised on appeal, that is, was it error to separate the judgments for purposes of
allowing attorneys' fees to the parents?
[Headnote 9]
Under current statute, NRS 18.010(3)(a), the court may make allowance for attorneys' fees
if the prevailing party has not recovered in excess of $10,000. This court decided in Wells,
Inc. v. Shoemake, supra, at 73, that a single lump sum finding on damages suffered by heirs
from wrongful death is the only proper method of assessing damages, and whether it is
divided among them after recovery or how it is divided are matters of no concern to
defendants.
____________________

6
NRS 48.010 to 48.320 were repealed effective July 1, 1971 by 1971 Nev. Stats., ch. 402. On remand, the
trial court should utilize the new evidentiary statute. Staudter v. Elter, 166 A.2d 394 (N.J. 1960).
88 Nev. 118, 125 (1972) Weaks v. Mounter
finding on damages suffered by heirs from wrongful death is the only proper method of
assessing damages, and whether it is divided among them after recovery or how it is divided
are matters of no concern to defendants. Yet, the statutory language pertaining to Nevada's
Wrongful Death Act does not require the separate causes of action to be joined in one suit.
While appellant claims that there is only one cause of action, NRS 12.080 allows the parents
a cause of action for their loss. Walker v. Burkham, 63 Nev. 75, 83, 165 P.2d 161 (1946);
Pardini v. City of Reno, 50 Nev. 392, 404, 263 P.2d 768 (1928); Armstrong v. Onufrock, 75
Nev. 342, 341 P.2d 105 (1959); cf. NRS 41.080 and NRS 41.090.
We agree that the trial court was correct in recognizing two separate claims.
Reversed and remanded.
Mowbray and Gunderson, JJ., concur.
Thompson, J., with whom Batjer, J., agrees, concurring in part and dissenting in part:
The majority properly orders another trial because of prejudicial error in precluding the
eyewitness testimony of Goldson. NRS 48.010(1)(b). Otherwise, I do not agree with the
opinion.
1. This is an action to recover damages for the wrongful death of a minor. The plaintiffs
are the father and mother of the decedent and his alleged illegitimate daughter who was born
after his death.
1
Death occurred in 1966. At that time NRS 12.080 gave only the father and
mother a right of action for the death of their minor child. Perry v. Tonopah Mining Co., 13
F.2d 865 (D. Nev. 1915); L. A. & S. L. R. Co. v. Umbaugh, 61 Nev. 214, 123 P.2d 224
(1942). And, of course, NRS 12.090, as it then read, granted a cause of action to heirs of a
person not a minor. The statutory scheme then effective simply did not grant a right of action
to a minor child for the death of her minor parent. Since the cause of action for wrongful
death is created and circumscribed by statute, we necessarily are confined to the statutory
authorization. Wells, Inc. v. Shoemake, 64 Nev. 57, 177 P.2d 451 (1947). That portion of
NRS 12.080 utilized by the majority granting a guardian the right to maintain an action for
the injury or death of his ward, has nothing whatever to do with this case since the
decedent was not the ward of anyone.
____________________

1
I agree with the majority that a child conceived, but not yet born, should be deemed an existing person for
the purposes of a wrongful death action in the event of its subsequent birth. La Blue v. Specker, 100 N.W.2d 445
(Mich. 1960).
88 Nev. 118, 126 (1972) Weaks v. Mounter
nothing whatever to do with this case since the decedent was not the ward of anyone.
Even if the decedent was of age when accidentally killed (he was not) the illegitimate child
would not qualify as his heir invested with a right of action for wrongful death under NRS
12.090. An heir is one entitled to inherit the estate of the decedent under our law of
succession. Bower v. Landa, 78 Nev. 246, 371 P.2d 657 (1962). Before a illegitimate child
may be considered an heir of an alleged male parent, that parent must either have given his
written acknowledgment of paternity or subsequently have married the child's mother. NRS
134.170.
2
Neither event happened in this case. A cause of action for wrongful death is not
given to the illegitimate child in the narrow circumstances before us. The majority has
judicially created a cause of action where none existed either at common law or by statute.
2. Today's opinion stresses the need to treat legitimate and illegitimate children
equallya proposition with which I fully agree. To do otherwise is invidious discrimination
against a class in violation of the Equal Protection Clause of the Federal Constitution. Levy v.
Louisiana, 391 U.S. 68 (1968); Glona v. American Guarantee Co., 391 U.S. 73 (1968);
Schmoll v. Creecy, 254 A.2d 525 (N.J. 1969). However, that doctrine does not become
operative until it is legally established that the deceased male is in fact the father of the
illegitimate child. In Nevada, the relationship of parent and illegitimate child may be
established judicially pursuant to NRS ch. 126, the Uniform Illegitimacy Act, pursuant to
NRS 41.530, or by the father's written acknowledgment of paternity in accordance with NRS
134.170.
____________________

2
NRS 134.170: Every illegitimate child shall be considered as an heir of the person who shall acknowledge
himself to be the father of such child by signing in writing a declaration to that effect in the presence of one
credible witness, who shall sign the declaration also as a witness, and shall in all cases be considered as heir of
the mother, and shall inherit in whole or in part, as the case may be, in the same manner as if born in lawful
wedlock. Illegitimate children shall be legitimatized by the intermarriage of the parents with each other.
Children, so acknowledged or so legitimatized shall have all the rights of inheritance of legitimate children.
See also:
NRS 122.140: Illegitimate children shall become legitimatized by the subsequent marriage of their parents
with each other.
Smith v. Gabrielli, 80 Nev. 390, 395 P.2d 325 (1964), where summary judgment was granted to the putative
father who had paid hospital and medical expenses incident to the birth of an illegitimate child, but who had not
acknowledged paternity in writing.
88 Nev. 118, 127 (1972) Weaks v. Mounter
134.170. When the relationship is established in this manner the illegitimate child becomes
entitled to treatment equal to that afforded a legitimate child.
I do not read the United States Supreme Court cases cited by the majority to mean that a
State may not prescribe how the relationship of the putative father and illegitimate child is to
be established. When the status of mother and child is involved, as in Levy, supra, and Glona,
supra, their relationship is easily established. Proof of maternity does not give rise to the same
problems that proof of paternity spawns. In the case of a male decedent charged with
parenthood there is a legitimate fear of spurious claims against which the tort-feasor is unable
to defend. For this reason, and others, our legislature has prescribed how paternity is to be
established. When the legislative direction is not met, the claims of an illegitimate child to the
benefits of paternity are not cognizable.
Therefore, I conclude that the child does not possess a cause of action for the wrongful
death of James E. Mounter. The jury verdict and judgment for her should be set aside and the
new trial should be limited to the claims of the parents of the decedent.
____________
88 Nev. 127, 127 (1972) Wiener v. City of Reno
LOUIS WIENER, JR., Appellant, v. THE CITY OF RENO and
MAPES ENTERPRISES, INC., Respondents.
No. 6546
February 28, 1972 494 P.2d 277
Appeal from judgment of the Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
Bidder for airport concessions brought action to enjoin city and concessionaire from
formalizing concession agreement. The district court refused relief and the bidder appealed.
The Supreme Court, Thompson, J., held that action of city in putting airport concessions out
to bid but granting existing concessionaire right to meet or improve upon highest bid was not
improper where bidders were notified of existing concessionaire's right of first refusal.
Affirmed.
Mowbray, J., and Zenoff, C. J., dissented.
[Rehearing denied March 29, 1972] Lohse and Lohse, of Reno, and Wiener, Goldwater,
Galatz & Raggio, of Las Vegas, for Appellant.
88 Nev. 127, 128 (1972) Wiener v. City of Reno
Lohse and Lohse, of Reno, and Wiener, Goldwater, Galatz & Raggio, of Las Vegas, for
Appellant.
Robert L. Van Wagoner, Reno City Attorney, for Respondent City of Reno.
Cooke & Roberts, of Reno, for Respondent Mapes Enterprises, Inc.
1. Injunction.
Even if amendment to concession agreement giving existing city airport concessionaire right of first
refusal when concessions were put out to bid was unenforceable as between city and concessionaire, where
city and concessionaire considered amendment to be enforceable and no dispute existed between those
parties, alleged invalidity of the amendment had no bearing on high bidder's right to enjoin city and
concessionaire, which had met bidder's bid, from formalizing concession agreement.
2. Municipal Corporations.
Under statutes, city, once having decided to put airport concessions out to bid, was entitled to impose
thereon such terms and conditions as would be most advantageous to city. NRS 496.010 et seq.,
496.090, subd. 3.
3. Municipal Corporations.
Action of city in putting airport concessions out to bid but granting existing concessionaire right to meet
or improve upon best bid was not improper where bidders were notified of existing concessionaire's right
of first refusal; formalizing concession agreement with existing concessionaire which met highest bid was
not improper. NRS 496.010 et seq., 496.090, subd. 3.
OPINION
By the Court, Thompson, J.:
The appellant unsuccessfully sought to enjoin the City of Reno and Mapes Enterprises,
Inc., from formalizing a concession agreement for specified concessions at the Reno
International Airport, and has appealed to this court for relief.
Mapes Enterprises has been the concessionaire at the airport since 1959. In 1962 the base
agreement was amended to allow Mapes, during a specified period in 1970, to give the City
written notice of its desire to extend the lease for another ten years upon terms mutually to be
agreed upon. If agreement was not reached, the City was to request bids from other parties,
granting to Mapes, however, the right of first refusal and the right to meet the terms of such
bids or offers by making the same or a higher or better offer. If Mapes made the same or a
higher or better offer, the City agreed to grant the concession contract to Mapes.
88 Nev. 127, 129 (1972) Wiener v. City of Reno
or a higher or better offer, the City agreed to grant the concession contract to Mapes.
Negotiations for an extension of the lease failed, and the City, faithful to its agreement,
advertised for bids. The published notice to bidders explicitly advised that the existing
concessionaire has the right of first refusal and the right to meet the terms of the bid
determined by the City as the best bid by making the same or a higher or better offer.
Concessionaire has a reasonable time limit to meet the best offer and the City will permit the
present concessionaire to 12:00 o'clock (noon) on December 21, 1970 to exercise that right. If
the best offer is not met by the present concessionaire, the City Council will award a contract
agreement to the party submitting the best proposal, or may reject all proposals as determined
by the City Council.
Several bids were submitted to the City, and on December 14, 1970, the Council
determined that the bid of Louis Wiener, Jr., was the best bid, but withheld action thereon
until December 21 to allow the existing concessionaire to meet or improve upon Wiener's
bid. On December 18, Mapes Enterprises submitted its proposal meeting the bid of Wiener
and increasing the annual minimum guarantee to the City by approximately $1,000. On
December 21 the City Council unanimously accepted the proposal of Mapes Enterprises.
1. Wiener's complaint for injunctive relief does not charge bad faith, fraud or collusion.
Cf. Clark Sanitation, Inc. v. Sun Valley Disposal Co., 87 Nev. 338, 487 P.2d 337 (1971). It
does not assert that the bidding process itself was unlawful, nor suggest that Wiener's bid was
better than the proposal submitted by Mapes. Cf. Douglas Co. Board v. Pederson, 78 Nev.
106, 369 P.2d 669 (1962). There is not the slightest hint that the action of the City in granting
the airport concessions to Mapes worked to the disadvantage of the City and the public
interest. None of these claims is made.
[Headnote 1]
The thrust of the complaint is that the 1962 amendment to the base agreement was invalid
and unenforceable as between the parties thereto, and that such invalidity somehow nullified
everything that followed. This contention rests upon the decision of City of Reno v. Silver
State Flying Serv., 84 Nev. 170, 438 P.2d 257 (1968), where we held that a lease covenant
granting the lessee the right of first refusal to extend the lease on the same terms offered to
any other person was unenforceable as between the parties and irrelevant to the determination
of damages in an action by the lessee for breach of the lease.
88 Nev. 127, 130 (1972) Wiener v. City of Reno
That decision is inapposite to this case. Here, there exists no dispute between the contracting
parties. Neither of them considered the 1962 amendment to the base lease to be
unenforceable. Each of them honored that agreement and fully performed according to its
terms and are prepared to execute a formal concession agreement in the form supplied by the
City. Cf. Harmon v. Tanner Motor Tours, 79 Nev. 4, 14, 377 P.2d 622 (1963). The district
court correctly found that the City of Reno v. Silver State case, supra, has no bearing upon the
merits of this litigation.
[Headnotes 2, 3]
2. The City need not put airport concessions out to bid. NRS ch. 496, Municipal Airports
Act; Reno, Nev., Municipal Code ch. 9.04.010-9.04.020. It may enter into private agreements
for such concessions upon such terms and conditions as the governing body deems proper
[NRS 496.090(3)], and under such terms and conditions as are most advantageous to the
city, Reno, Nev., Municipal Code, supra. This is the declared public policy. Accordingly, it
must follow that the City, once having decided to bid, may impose thereon such terms and
conditions as are most advantageous to the city.
Although the bid form here used admittedly gave an advantage to the existing
concessionaire, Mapes Enterprises, this manner of handling it also produced an advantage to
the City. The bidding process was not chilled. Eight bids were received. All bidders knew that
Mapes had the right to meet or improve upon the best bid and submitted their bids
notwithstanding this knowledge. The entire procedure was open and above-board. The result
of the procedure was to produce a higher return for the City and also to avoid disruption of
the airport operation attendant upon a change of the concessionaire. In awarding the
concession contract to Mapes, the Council apparently had in mind the municipal code
direction to do so on terms most advantageous to the city. This was proper. Clark
Sanitation, Inc. v. Sun Valley Disposal Co., supra.
3. Our disposition of this appeal avoids any need to decide whether Wiener has standing
to question the validity of right of first refusal contractually granted to Mapes by the City, or
whether he is estopped to deny the validity of that contract provision, the notice to bidders
and the bidding procedures employed, by reason of having submitted his bid with full notice
and knowledge thereof.
Affirmed.
Batjer and Gunderson, JJ., concur.
88 Nev. 127, 131 (1972) Wiener v. City of Reno
Mowbray, J., dissenting:
I dissent.
On September 11, 1959, the City of Reno and Mapes Enterprises, Inc., signed a lease
agreement covering certain concessions at the Reno Municipal Airport. The parties later
amended their agreement, both as to the length of the lease and as to the procedures to be
followed if the lessee, Mapes, elected to renew the lease. Under the terms of the amendment,
the period of the lease was adjusted to run from January 1, 1960, to December 31, 1970. The
renewal clause specified that if Mapes wished to renew the lease, notice of intention to do so
had to be given in writing to the City within 180 days following January 1, 1970. The renewal
clause further provided that in the event the City and Mapes could not reach an agreement
prior to October 1, 1970, regarding the new rent to be paid the City for the renewal of the
lease, then the City had the right to advertise for and accept bids for the lease of the
concessions. Mapes notified the City on January 12, 1970, that it elected to renew the lease.
The City and Mapes could not, from January 12, 1970, to September 29, 1970, reach any
agreement on the amount of rent to be paid by Mapes for the new term of the lease. On
September 29, 1970, the City voted to grant Mapes an additional period to negotiate the rent,
to and including October 12, 1970. The parties failed to reach an agreement within the
extended period. On October 12, 1970, the City denied an additional request by Mapes to
extend the negotiation period. The City then decided that it was necessary to go to open
bidding.
On November 9, 1970, the City approved the specifications and bid documents to be made
available to public bidders. The Notice to Bidders, which was published in the Reno
newspapers, stated that the sealed proposals to be submitted would be opened and read
publicly on December 10, 1970, and that the City would make a determination no later than
December 14, 1970, as to the best bid submitted. The notice further stated that Mapes would
have the right to meet the terms of that best bid, by making the same or a higher or better
offer. In the event that Mapes did not meet the designated best offer, the City could award the
lease agreement to the party who had submitted the best proposal, or could reject all bids.
On December 14, 1970, as provided in the Notice to Bidders, the City determined that the
bid of Appellant Louis Wiener, Jr., was the best bid. Thereafter, on December 18, 1970,
Mapes submitted to the City a bid that it designated a first offer. The first offer also contained
an alternate bid that was to be considered by the City if Mapes's first proposal was
rejected.1
88 Nev. 127, 132 (1972) Wiener v. City of Reno
was to be considered by the City if Mapes's first proposal was rejected.
1

The Reno City Council met on December 21, 1970, pursuant to the terms set forth in the
Notice to Bidders, to award the contract. The Mapes and Wiener bids were the only proposals
under discussion. The City decided that Mapes's first bid was not a better offer than the bid
previously submitted by Wiener. The City then accepted Mapes's alternate bid. The effect of
this procedure was to give Mapes two bids, while all other bidders were limited to a single
bid.
Wiener then sought in the district court a preliminary injunction to prevent the City and
Mapes from finalizing the lease agreement. After a hearing on the motion, the district judge
denied it. Hence, this appeal.
With regard to the propriety of judicial review, it is generally agreed that the courts will
not interfere with the discretionary actions of city officials absent fraud, corruption, or abuse
of discretion. 10 E. McQuillin, The Law of Municipal Corporations 29.83 (3d ed. 1966). In
my opinion, that principle is not applicable on the facts of this case, since the court is
reviewing the actions of the City in an area where there is no room for discretion in the face
of overriding public policy considerations.
When the City, of its own volition, decides to award a municipal contract or lease
agreement after seeking public bids, the courts should not hesitate to intercede where it is
apparent that the bidding process established by the governmental agency, albeit in good
faith, destroys the very principles of public policy that form the underlying basis of
competitive bidding. The courts should scrutinize the conduct of the bidding process by any
governmental agency when it appears that a violation of the public trust may be involved.
The principal issue on this appeal is addressed to the propriety of allowing a right of first
refusal in a competitive bidding situation, where that right allows one bidding party to obtain
an unfair advantage over the remaining bidders. It is a generally recognized principle of law
that the purpose of public bidding is to protect the public interest, i.e., to invite
competition; to guard against possible favoritism, fraud, or extravagance; and to insure
that the public is fully protected.
____________________

1
ALTERNATE BID
In the event the above proposal is rejected by the City, Mapes Enterprises, Inc. offers to meet the
percentages bid by Louis Wiener, Jr. and to increase the minimum annual guarantee to $251,000 per year.
If the bid of Louis Wiener, Jr. is, for any reason, withdrawn or disqualified, this bid and alternate bid are
withdrawn and Mapes Enterprises, Inc. reserves its contract rights in regard to any other bid the City might
determine to be the best bid.
88 Nev. 127, 133 (1972) Wiener v. City of Reno
generally recognized principle of law that the purpose of public bidding is to protect the
public interest, i.e., to invite competition; to guard against possible favoritism, fraud, or
extravagance; and to insure that the public is fully protected. McQuillin, supra, 29.29.
On August 17, 1962, when the City and Mapes agreed upon the terms of the renewal
procedure, the City was not required to invite public bids on the concession rights at the
airport. See NRS 496.090 in the form in which it was in effect on August 17, 1962, and
through April 3, 1967. Nor was the City required to invite public bids on such contracts under
the current provisions of NRS 496.090, which became effective April 4, 1967. Nevertheless,
the express terms of the lease renewal clause provided that such bidding would be required if
the parties could not reach a new agreement within the time specified. Whether competitive
bidding enters the picture by statutory requirement or by voluntary agreement, the bidding
procedure used must be conducted reasonably and fairly and in such a way as to insure
protection of the public interest. In my opinion, allowing Mapes to submit the same or a
higher or better offer after publication of all bids and designation of the best bid rendered the
competitive bidding process a sham.
2

The right of first refusal is a valid and useful concept of contract law when it is applied in
the appropriate context. But when such a right is given to a single party in competitive
bidding for governmental contract awards, that procedure, in my opinion, should be held
void, as being against the interests of the group to be protectedthe public. When public
bidding is deemed to be necessary, all prospective bidders must stand in the same position.
Consequently, the bidding procedure in this case should be amended and then performed in a
manner that conforms to the principles of public policy, as set forth herein.
No award should be given on the basis of the prior bidding procedure. To hold otherwise
would result in the elimination of Mapes by judicial fiat. Strict adherence to the dictates of
public policy requires that bids should be called for anew and the bidding process be
completed in a proper manner, with all prospective bidders participating on an equal footing.
I would therefore reverse and remand the case to the district court with instructions to enter
an order directing the City to submit the lease agreement to open bidding in accordance
with the views just expressed.
____________________

2
What contractor bidding on a public project would spend the time, money, and effort to submit a valid, bona
fide bid, knowing that another bidder would have the right to outbid him even after his bid was accepted as the
best bid?
88 Nev. 127, 134 (1972) Wiener v. City of Reno
instructions to enter an order directing the City to submit the lease agreement to open bidding
in accordance with the views just expressed.
Zenoff, C. J., concurs.
____________
88 Nev. 134, 134 (1972) Rodela v. Rodela
DALE A. RODELA, Appellant, v. CAROLE L.
RODELA, Respondent.
No. 6653
March 1, 1972 494 P.2d 277
Appeal from nunc pro tunc order correcting a divorce decree. Eighth Judicial District
Court, Clark County; Thomas J. O'Donnell, Judge.
The Supreme Court held that failure of trial court to be aware of the provisions of marital
settlement agreement which it approved did not qualify as clerical mistake arising from
oversight or omission, and thus agreement was not subject to correction by nunc pro tunc
deletion of a provision thereof.
Reversed and remanded.
Raymond E. Sutton, of Las Vegas, for Appellant.
Beckley, DeLanoy & Jemison, of Las Vegas, for Respondent.
Divorce.
Failure of trial court to be aware of the provisions of a marital settlement agreement which it approved
did not qualify as clerical mistake arising from oversight or omission, and thus agreement was not subject
to correction by nunc pro tunc deletion of a provision thereof. NRCP 60(a).
OPINION
Per Curiam:
In this divorce action neither the pleadings nor the proposed decree apprised the district
judge of a agreement granting Dale the right to visit a minor child whom he had neither sired
nor adopted, but who was the issue of Carole's prior marriage. At a later date the district
judge, on his own motion, deleted that provision nunc pro tunc since, in his view, his prior
approval thereof could not reasonably be attributed to an exercise of judicial discretion,
but was in truth, an oversight or omission.
88 Nev. 134, 135 (1972) Rodela v. Rodela
thereof could not reasonably be attributed to an exercise of judicial discretion, but was in
truth, an oversight or omission. NRCP 60(a); Alamo Irrigation Co. v. United States, 81 Nev.
390, 404 P.2d 5 (1965); Smith v. Epperson, 72 Nev. 66, 294 P.2d 362 (1956). We do not
believe that the failure of a judge to be aware of the provisions of a marital settlement
agreement which he has approved qualifies as a clerical mistake arising from oversight or
omission within the meaning of NRCP 60(a) and subject, therefore, to correction nunc pro
tunc. Cf. State ex rel. Friedman v. Dist. Ct., 81 Nev. 131, 399 P.2d 632 (1965); Finley v.
Finley, 65 Nev. 113, 189 P.2d 334 (1948). Accordingly, we set aside the nunc pro tunc order
and remand this matter with instructions to rule upon the merits of the mother's pending
motion to modify the agreement and approving decree to delete therefrom the provisions
regarding visitation granted Dale of the child in question.
Reversed and remanded.
____________
88 Nev. 135, 135 (1972) Schoultz v. Warden
ROBERT K. SCHOULTZ, Appellant, v. WARDEN,
NEVADA STATE PRISON, Respondent.
No. 6527
March 1, 1972 494 P.2d 274
Appeal from order dismissing petition for post-conviction habeas relief, Second Judicial
District Court, Washoe County; Grant L. Bowen, Judge.
Proceeding on petition by prison inmate for post-conviction habeas corpus relief. The
district court dismissed the petition without an evidentiary hearing and the inmate appealed.
The Supreme Court, Gunderson, J., held that where both defense counsel and sentencing
judge informed defendant in open court that penalty for robbery was between 1 and 15
years, sentencing judge's inquiry satisfied requirements of statute pertaining to acceptance of
guilty pleas.
Affirmed.
H. Dale Murphy, Washoe County Public Defender, of Reno, for Appellant.
Robert List, Attorney General, of Carson City; Robert E. Rose, District Attorney, and
Kathleen M. Wall, Deputy District Attorney, Washoe County, for Respondent.
88 Nev. 135, 136 (1972) Schoultz v. Warden
1. Courts.
Nevada court was free to place its own construction upon meaning to be given Nevada statute pertaining
to acceptance of guilty pleas and was not required to place same construction on statute as federal courts
had placed on federal rule on which Nevada statute was patterned. NRS 174.035, 174.035, subd. 1,
177.355; Fed.R.Crim.P. 11, 18 U.S.C.A.
2. Criminal Law.
Where both defense counsel and sentencing judge informed defendant in open court that penalty for
robbery was between 1 and 15 years, sentencing judge's inquiry satisfied requirements of statute
pertaining to acceptance of guilty pleas. NRS 174.035, subd. 1, 200.380, subd. 2.
3. Criminal Law.
Where there was no contention that defendant was psychotic or unfit to stand trial, information that he
was mentally slow and had undergone psychotherapy treatments while previously imprisoned in
California was not critical to the acceptance of plea of guilty and defense counsel's failure to so inform the
court did not deny defendant effective assistance of counsel. NRS 174.035, subd. 1.
4. Criminal Law.
Guilty plea is not coerced merely because motivated by desire to avoid possibility of higher penalty.
5. Criminal Law.
Guilty plea to robbery charge was not coerced because plea was entered to avoid prosecution as habitual
criminal. NRS 174.035, subd. 1, 200.380, subd. 2.
6. Habeas Corpus.
Order which dismissed petition for habeas corpus without an evidentiary hearing was not a nullity
because the State's motion to dismiss petition was filed late. NRS 177.355.
OPINION
By the Court, Gunderson, J.:
Appealing from an order that dismissed his petition for post-conviction relief without an
evidentiary hearing, appellant asks relief from the 10-year sentence he is serving because:
(1) the sentencing judge accepted Appellant's plea in violation of N. R. S. 174.035;
1
{2)
his counsel was "derelict in not advising Appellant of the nature and consequences of his
plea," and in not advising the court of appellant's "mental deficiency";

____________________

1
Patterned on Fed.R.Crim.P. 11, NRS 174.035(1) provides, inter alia: A defendant may plead not guilty,
guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and
shall not accept such plea or a plea to nolo contendere without first addressing the defendant personally and
determining that the plea is made voluntarily with understanding of the nature of the charge and consequences of
the plea. Our statute does not contain language of the 1966 amendment to Fed.R.Crim.P. 11, to which the U.S.
Supreme Court specifically referred in deciding McCarthy v. United States, 394 U.S. 459 (1969). See 394 U.S.,
at 462, n. 4.
88 Nev. 135, 137 (1972) Schoultz v. Warden
(2) his counsel was derelict in not advising Appellant of the nature and consequences of
his plea, and in not advising the court of appellant's mental deficiency;
(3) the State coerced his plea; and
(4) the Court erred in issuing an Order dismissing Appellant's petition one day after the
State's Motion to Dismiss, in violation of N. R. S. 177.355.
2

[Headnote 1]
1. Appellant apparently realizes that the constitutional doctrine of Boykin v. Alabama,
395 U.S. 238 (1969), which we applied in Higby v. Sheriff, 86 Nev. 774, 476 P.2d 959
(1970), has no application to appellant, who pleaded guilty and was sentenced before Boykin
was decided. Stocks v. Warden, 86 Nev. 758, 476 P.2d 469 (1970); Mathis v. Warden, 86
Nev. 439, 471 P.2d 233 (1970); Anushevitz v. Warden, 86 Nev. 191, 467 P.2d 115 (1970).
Still, appellant urges that NRS 174.035(1), enacted before appellant's plea, should be
construed to impose similar obligations on Nevada courts, as Fed.R.Crim.P. 11 was construed
to do in the case of federal courts. McCarthy v. United States, 394 U.S. 459 (1969). In Stocks
v. Warden, cited above, we heretofore rejected this contention, deciding we are free to place
our own construction upon the meaning to be given our statute. 86 Nev., at 762; 476 P.2d, at
471.
[Headnote 2]
As appellant states his grievance, he contends that he had a right to know exactly the
penalty that could be imposed before entry of plea and that due to the failure of counsel and
the court to so inform Appellant, the plea was therefore involuntary, uninformed and void.
However, the record shows appellant's counsel quite clearly and correctly told appellant in
open court that the penalty for robbery is between 1 and 15 years. See: NRS 200.380(2). In
our view, the sentencing judge's inquiry satisfied NRS 174.035(1).
3
[Headnote 3]

____________________

2
That section of our post-conviction relief act provides, inter alia: Within 30 days after the docketing of the
petition, or within any further time the court may fix, the state shall respond by motion or answer. . . .

3
Before accepting appellant's guilty plea, the court interrogated him and his counsel as follows:
The Court: Mr. Schoultz, to the amended information which charges you with having committed a felony:
to wit, robbery, what is your plea? The Defendant: Guilty. The Court: Guilty? The Defendant: Yes, sir, guilty,
your Honor. The Court: Have you been talking with Mr. Ferguson, Mr. Schoultz, about this case? The
Defendant: Just what my rights were, sir. The Court: Did he
88 Nev. 135, 138 (1972) Schoultz v. Warden
[Headnote 3]
2. Aside from his unfounded assertion that he was not told what penalty the court could
impose, appellant's contention that he was denied effective assistance of counsel rests on the
claim counsel knew of the mental deficiency of his client, yet failed to so inform the court.
Regarding this, appellant cites Evans v. Kropp, 254 F.Supp. 218 (E.D.Mich., S.D. 1966), in
which counsel pleaded his client guilty of murder without revealing his client had been
determined psychotic and unfit to stand trial by the Chief of Psychiatry of the Detroit General
Hospital. In the Evans case, the court held [t]he failure on the part of the prosecutor or
petitioner's counsel to disclose to the court this extremely critical information prevented the
court from making an adequate determination of petitioner's competency to offer a guilty
plea. Id., at 220. In the instant case, appellant does not contend he was psychotic or unfit to
stand trial, but merely that he is mentally slow and underwent extensive psychotherapy
treatments while previously imprisoned in California. As this information concerning
appellant's past does not appear critical to the sentencing court's function under NRS
174.035(1), we reject the contention that his counsel was incompetent in failing to reveal it.
4
[Headnotes 4, 5]

____________________
advise you of your Constitutional rights? The Defendant: Yes, sir. The Court: Have you been in trouble before?
The Defendant: Yes, sir. The Court: Did we have any kind of an examination made of the defendant here? Mr.
Freitag: None yet, your Honor. The Court: Mr. Ferguson, have you talked with him about the effect of a plea of
guilty in a case of this kind? Mr. Ferguson: Yes, I have, your Honor. I have informed him of his rights and the
effect of a plea of guilty. The Court: Have you told him what the pleaI mean, what the felony would be? Mr.
Ferguson: Yes, I have, your Honor. The Court: Do you understand that the sentencing is entirely up to me, and I
can give you whatever sentence that I think is proper. What is it, between 1 and 15? Mr. Ferguson: 1 to 15. Mr.
Freitag: That's correct. The Court: Do you understand that, even if you ask for probation, I may or may not grant
it, depending upon the results of the report? Do you understand that? The Defendant: Yes, sir. The Court: How
far did you go in school? The Defendant: I got my high school diploma. The Court: Where was that? The
Defendant: In D. V. I. The Court: Where? The Defendant: Dore Vocational Institution, in Tracy, California. The
Court: Well, all right. I will accept your plea of guilty, but I think I will refer this to the probation officer.

4
We do not know whether the sentencing court considered records of petitioner's California confinement.
However, they establish that if petitioner told his counsel of his supposed mental deficiency, investigation would
have established his claims to be groundless. Particularly, they show he finished high school while confined,
holds an aircraft mechanic's license, and participated but two months in group therapy
88 Nev. 135, 139 (1972) Schoultz v. Warden
[Headnotes 4, 5]
3. Appellant's contention that the State coerced his plea seems partially grounded on the
theory that, by the Information first filed against appellant, the prosecutor threatened
prosecution under Nevada's habitual criminal act. NRS 207.010. Of course, a guilty plea is
not coerced merely because motivated by desire to avoid the possibility of a higher penalty,
Brady v. United States, 397 U.S. 742 (1970); and in Stocks v. Warden, supra, we applied this
principle to a plea entered to avoid prosecution as an habitual criminal.
5

Appellant's contention that his plea was coerced also seems partially based on the claim
that [w]hen negotiations began, counsel advised Appellant the Habitual Criminal charge
would be dismissed and he would be given a term of from five to seven years if he would
plead guilty. The record seems to negate any plausible assertion that such advice induced
appellant's plea; thus, we believe, the district court properly dismissed appellant's petition
without conducting an evidentiary hearing on the issue. Cf. United States v. Follette, 268
F.Supp. 674 (S.D.N.Y. 1967).
[Headnote 6]
4. We reject as frivolous appellant's fourth contention, to wit: that because the State's
motion to dismiss his petition was late, the order dismissing his petition must be declared a
nullity.
Affirmed.
Zenoff, C. J., and Batjer, Mowbray, and Thompson, JJ., concur.
____________________
while remaining in the general prison population. His psychiatric evaluation recited he does not show evidence
of organicity and is not psychotic.

5
Brady v. United States does intimate coercion may occur if the defendant's will is overborne by threats of, or
promises to discontinue, improper harassment (397 U.S., at 755, and 751, n. 8); and appellant does suggest the
habitual criminal charge against him was unfounded because one of his prior convictions, which the State
alleged as a felony, was merely a misdemeanor since he was sentenced to custody of the California Youth
Authority rather than to prison. However, if appellant contends this possible error in pleading constituted
prosecutorial harassment of such magnitude as to coerce his plea, we reject the claim as frivolous. Assuming the
habitual criminal charge could have been successfully challenged as appellant claims, we cannot perceive how
the State's insistence on litigating the issue, if the case was to be tried, could constitute improper coercion.
____________
88 Nev. 140, 140 (1972) Leggett v. Estate of Leggett
FREDA LEGGETT, Appellant, v. THE ESTATE OF SIDNEY LEGGETT, and
J. BRICE LEGGETT, the Executor Thereof, Respondents.
No. 6549
FREDA LEGGETT, Appellant, v. J. BRICE LEGGETT, Executor of the
Estate of SIDNEY LEGGETT, Deceased, J. BRICE LEGGETT and
LESLIE A. LEGGETT, Respondents.
No. 6627
March 1, 1972 494 P.2d 554
Appeal from an order declaring that a will was not revoked by a subsequent marriage and
that all of the decedent's property was his sole and separate property, and from an order
granting summary judgment, both entered by the Second Judicial District Court, Washoe
County; Grant L. Bowen, Judge.
The Supreme Court, Batjer, J., held that where widow was mentioned specifically by name
and status in distributive clause of testator's will which disposed of all his property to his two
sons by former marriage, will, executed by testator while divorce action against widow was
pending and before parties' remarriage, was not revoked by the remarriage, under statute
providing for presumption of revocation if testator marries after execution of will and spouse
survives him, unless he has provided for surviving spouse by marriage contract, by provision
in the will, or has mentioned her in such way as to show an intention not to provide for her.
Affirmed.
Sylvia J. Thompson, Joseph J. Kay, Jr., of Reno; Cartwright, Saroyan, Martin &
Sucherman, Inc., of San Francisco, California, for Appellant.
Leslie A. Leggett, of Reno, for Respondents.
1. Wills.
To prevent revocation of a will by subsequent marriage, a spouse must merely be mentioned in such a
way as to show testator's intention not to make a provision for spouse. NRS 133.110.
2. Wills.
Where widow was mentioned specifically by name and status in distributive clause of testator's will
which disposed of all his property to his two sons by former marriage, will, executed by
testator while divorce action against widow was pending and before parties'
remarriage, was not revoked by the remarriage, under statute.
88 Nev. 140, 141 (1972) Leggett v. Estate of Leggett
property to his two sons by former marriage, will, executed by testator while divorce action against widow
was pending and before parties' remarriage, was not revoked by the remarriage, under statute. NRS
133.110.
3. Declaratory Judgment.
Where order entered by district court that will executed while divorce action was pending was not
revoked by subsequent remarriage and that all of testator's property was his sole and separate property
made it clear that court relied solely upon will itself and not upon any extrinsic evidence when determining
that will upon its face showed an intentional disinheritance of widow, receiving evidence regarding terms
and conditions of divorce decree, manner in which parties treated their own property subsequent to
remarriage and alleged intent of testator in not executing a new will after parties were remarried was not
error. NRS 133.110.
4. Declaratory Judgment.
Where widow did not present any evidence as to what property held by testator at his death could be
characterized as community property, widow was not entitled to declaration as to whether any community
property existed in testator's estate at date of testator's death.
5. Judgment.
Although all inferences must be drawn in favor of party against whom order of summary judgment is
entered, nevertheless such party is required to point out something indicating existence of a triable issue of
fact and is not entitled to have motion for summary judgment denied on mere hope that at trial he may be
able to discredit movant's evidence.
OPINION
By the Court, Batjer, J.:
These two cases were consolidated for the purpose of appeal because the same legal issues
are involved in each.
Freda Leggett, appellant, and Sidney Leggett were married in Virginia City, Nevada in
1930. At the time of the marriage Sidney Leggett had two children by a previous marriage, J.
Brice Leggett and Leslie A. Leggett, who are the respondents in this action. Early in 1964
Sidney Leggett filed an action for divorce. On July 1, 1964, while that divorce action was
pending he executed a will devising and bequeathing all of his separate property and his share
of the community property to the respondents. Four months after the will was executed a final
judgment and decree of divorce was entered granting a divorce and dividing the property
between the parties. The appellant was awarded a motel and a trailer park, and Sidney Leggett
was awarded two motels, an industrial lot and the family residence. The divorced parties
executed the documents necessary for compliance with the judgment of the court, each
taking title to the property awarded as his and her sole and separate property.
88 Nev. 140, 142 (1972) Leggett v. Estate of Leggett
necessary for compliance with the judgment of the court, each taking title to the property
awarded as his and her sole and separate property.
On December 31, 1964, approximately one month after the decree of divorce was entered,
the parties remarried. The appellant and Sidney Leggett then remained married until Sidney
Leggett's death on July 2, 1969.
Respondent J. Brice Leggett filed a petition for probate of the decedent's will on August 1,
1969, and the will was admitted to probate two weeks later. The appellant then filed a petition
in that probate proceeding asserting that the decedent's will had been revoked as to her by
their subsequent marriage and that she was entitled to take from the decedent's estate
according the laws of intestacy, and that the property owned by the decedent at his death was
community in nature. The district court entered an order finding that the will was valid
inasmuch as the appellant had been mentioned and intentionally disinherited by the
decedent, and that the property possessed by the decedent at his death was his sole and
separate property.
The appellant, apparently questioning the jurisdiction of the district court to make the
above determination regarding the validity of the will and the character of decedent's property
within the probate proceedings, filed an action for declaratory relief in the district court
before the order in the probate proceeding was entered. This action for declaratory relief
requested the district court to determine whether the decedent's will was revoked by his
subsequent remarriage, and whether or not any community property existed in the decedent's
estate. The appellant subsequently filed a motion for summary judgment alleging that no
triable issues of fact existed regarding the validity of the decedent's will. This motion was
denied and, upon the court's invitation, the respondents filed a motion for summary judgment
alleging that no triable issues of fact existed regarding the validity of the will and the nature
of the decedent's property. The respondents' motion for summary judgment was granted, and
this appeal is taken from that order and the one entered in the probate proceeding.
The decedent, in the distributive clause of his will, provided: I give, devise and bequeath
all my separate property and my proportionate part of and interest in the community property
of myself and my wife, Freda Leggett, to my two sons, J. Brice Leggett and Leslie A. Leggett,
share and share alike. The appellant admits that she was mentioned in the will, but she urges
this court to adopt the rule announced in In Re Poisl's Estate, 2S0 P.2d 7S9 {Cal.
88 Nev. 140, 143 (1972) Leggett v. Estate of Leggett
Poisl's Estate, 280 P.2d 789 (Cal. 1955), which provides for revocation in situations where an
after-acquired spouse is mentioned in the will but the testator has failed to indicate on the
face of his will that he contemplates a relationship of marriage with the after-acquired spouse.
In construing a statute nearly identical to NRS 133.110, the California Supreme Court has
reasoned that public policy requires a testator to bear in mind the possibility of a subsequent
marriage and the serious changes in domestic relations resulting therefrom. In Re Poisl's
Estate, supra; In Re Axelrod's Estate, 147 P.2d 1 (Cal. 1944). On the other hand, the
respondents contend that the appellant was not only mentioned in the will but was mentioned
in such a way as to show an intention not to make any provision for her and, as a consequence
the will is valid as to her.
At common law, a revocation of a will, because of a subsequent change in the marital
status of a person making the will, was based upon an implied intention. See 2 Page on Wills
(Bowe-Parker Revision, 21.86 et seq.). In Nevada the doctrine of implied revocation has
been superseded by a statutory presumption of revocation. NRS 133.110 provides for the
presumptive revocation of a will if the testator marries after executing his will and his spouse
survives him, unless he has provided for the surviving spouse by marriage contract, by
provision in the will, or has mentioned her in such a way as to show an intention not to
provide for her.
1
Although recognizing that the policy underlying the California rule of
social disfavor toward a testator's failure to provide for his surviving spouse is sound, we will
not engraft, by judicial legislation, additional requirements upon the clear and unambiguous
provisions of NRS 133.110. The sole purpose of that statute is to guard against the
unintentional disinheritance of the surviving spouse.
[Headnotes 1, 2]
Here the appellant was mentioned specifically by name and status in the distributive clause
of Sidney Leggett's will that disposed of all of his property to his two sons. The testator had
her in mind and did not forget her or overlook her. At the time he executed the will he did not
unintentionally disinherit her for he intended to give her nothing. See In Re Drown's Estate,
372 P.2d 196 (Wash. 1962); In Re Steele's Estate, 273 P.2d 235 {Wash.
____________________

1
NRS 133.110: If a person marries after making a will and the spouse survives the maker, the will is
revoked as to the spouse, unless provision has been made for the spouse by marriage contract, or unless the
spouse is provided for in the will, or in such a way mentioned therein as to show an intention not to make such
provision; and no other evidence to rebut the presumption of revocation shall be received.
88 Nev. 140, 144 (1972) Leggett v. Estate of Leggett
235 (Wash. 1954); cf. Perkins v. Brown, 27 So.2d 521 (Fla. 1946).
Until such time as our legislature deems it advisable to revise NRS 133.110, we hold that
to prevent revocation a spouse must merely be mentioned in such a way as to show an
intention not to make any provision for that person.
The rule of In Re Poisl's Estate, supra, requiring that contemplation of future marriage
must appear on the face of the will to prevent revocation as to the person mentioned cannot
logically be applied to the facts in this case. It would be ridiculous to hold that Sidney
Leggett, in order to insure against revocation of his will, was required not only to mention
Freda Leggett in such a way as to show an intention not to make provision for her, but also to
provide, on the face of the will, that he contemplated a future marriage with her although he
was in the process of obtaining a divorce from her.
[Headnote 3]
Pursuant to the provisions of NRS 133.110, the only evidence admissible to rebut the
presumption of revocation is evidence showing that (1) provision has been made for the
spouse by marriage contract, (2) a provision for the spouse has been made in the will, or (3)
the spouse has been mentioned in the will in such a way as to show an intention not to make
such provision. The appellant claims that the trial court erred in receiving evidence regarding
the terms and conditions of the divorce decree, the manner in which the parties treated their
own property subsequent to the remarriage and the alleged intent of the testator in not
executing a new will after the divorced parties were remarried. It is also asserted by the
appellant that the trial court erred in refusing to allow her to introduce evidence regarding the
decedent's lack of communication with his sons, which evidence might tend to show that she
was unintentionally disinherited. Much of the extrinsic evidence admitted into evidence bore
upon the question of the existence of community property and for that purpose it is
admissible. Furthermore, the order entered by the district judge makes it clear that he relied
solely upon the will itself and not upon any extrinsic evidence when determining that the will
upon its face showed an intentional disinheritance of the appellant. In any event the district
court reached the correct result. Wyatt v. State, 86 Nev. 294, 468 P.2d 338 (1970).
[Headnotes 4, 5]
The lower court granted the respondents' motion for summary judgment and held that the
will was not revoked and that no community property was owned by the decedent at his
death.
88 Nev. 140, 145 (1972) Leggett v. Estate of Leggett
no community property was owned by the decedent at his death. Appellant contends that the
granting of summary judgment was improper because genuine issues of fact remained
undecided, among which were the legal characterization of the assets held by the decedent at
his death, and whether or not any community property existed by reason of the labors and
efforts of the parties during the remarriage. After receiving oral and documentary evidence,
the trial court determined that the property awarded each spouse by the divorce decree
became the separate property of each, that separate accounts relative to these properties were
maintained during the subsequent marriage and that these properties and the rents, issues and
profits therefrom were readily identifiable at the date of decedent's death. Throughout all of
the proceedings in the lower court the appellant failed to give any indication of what property
held by the decedent at his death must be characterized as community property. Although all
inferences must be drawn in favor of Freda Leggett, against whom the order was entered,
nevertheless she was required to point out to the district court something indicating the
existence of a triable issue of fact. This she failed to do. She was not entitled to have the
motion for summary judgment denied on the mere hope that at trial she might be able to
discredit the movants' evidence. Bair v. Berry, 86 Nev. 26, 464 P.2d 469 (1970); Thomas v.
Bokelman, 86 Nev. 10, 462 P.2d 1020 (1970). Nothing appears in the record to indicate the
existence of a genuine issue of material fact, and for that reason the trial court acted properly
in granting summary judgment. Polk v. MacMillan, 87 Nev. 526, 490 P.2d 218 (1971).
Affirmed.
Mowbray and Thompson, JJ., concur.
Gunderson, J., concurring:
This was not a case involving a deceased who simply marries after making a will, as
NRS 133.110 envisions. Here, the deceased made a will while obtaining a divorce that settled
the parties' property rights, then remarried the same woman. It seems evident to me that our
legislature did not intend to deal with such a situation when it promulgated NRS 133.110;
thus, I would simply hold the statute inapplicable to the case at bar. Cf. Perkins v. Brown, 27
So.2d 521 (Fla. 1946).
The assumption that NRS 133.110 applies mechanically to any situation where a testator
marries, including any where he divorces and remarries, requires the majority to avoid
injustice in this case by concluding that to prevent revocation a spouse must merely be
mentioned in such a way as to show an intention not to make any provision for that
person," even in situations where the will is not made in contemplation of marriage.
88 Nev. 140, 146 (1972) Leggett v. Estate of Leggett
spouse must merely be mentioned in such a way as to show an intention not to make any
provision for that person, even in situations where the will is not made in contemplation of
marriage. These departures from what I conceive to be sound law may, I believe, cause
injustice in future cases.
For example, in the case before us, were it not for the fortuitous fact that the majority is
able to determine Freda Leggett was mentioned in such a way as to show an intention not to
make any provision for her, the majority's pronouncements would allow her recovery
although Mrs. Leggett received a property settlement in the divorce, and remarriage left her
situated as she was when the will was executed. Again, under the majority's pronouncements,
NRS 133.110 will not operate, as it should, to protect pretermitted wives I believe our
legislature must surely have intended to protect, e.g. women who, before any marriage, are
mentioned but not substantially provided for in wills executed by men they later marry. Cf. In
Re Poisl's Estate, 280 P.2d 789 (Cal. 1955).
Zenoff, C. J., concurs.
____________
88 Nev. 146, 146 (1972) Tupper v. Kroc
LLOYD G. TUPPER, aka LLOYD G. TUPPER, Trustee, LLOYD G. TUPPER, as Trustee,
GERALD K. SHEPARD and SHEPARD & TUPPER, INC., a Nevada Corporation,
Appellants, v. RAY A. KROC and JANE E. KROC, Respondents.
No. 6513
LLOYD G. TUPPER, LLOYD G. TUPPER, as Trustee, LLOYD G. TUPPER, as General
Partner of T & K Enterprises Number 1, a Nevada Limited Partnership, LLOYD G. TUPPER,
as General Partner of T & K Enterprises Number 3, a Nevada Limited Partnership, LLOYD
G. TUPPER, as General Partner of T & K Enterprises Number 4, a Nevada Limited
Partnership, T & K ENTERPRISES NUMBER 3, a Nevada Limited Partnership, T & K
ENTERPRISES NUMBER 4, a Nevada Limited Partnership, and SHEPARD & TUPPER,
INC., a Nevada Corporation, Appellants, v. RAY A. KROC, Respondent.
No. 6517
March 2, 1972 494 P.2d 1275
Appeal from an order denying a motion to set aside an execution sale, and from an order
terminating a receivership, both entered by the Eighth Judicial District Court, Clark County;
Howard W.
88 Nev. 146, 147 (1972) Tupper v. Kroc
entered by the Eighth Judicial District Court, Clark County; Howard W. Babcock, Judge.
Proceedings on general partner's motion to set aside judicial sale of his interest in three
limited partnerships, conducted pursuant to charging order, and sole limited partner's motion
to terminate receivership and discharge receiver who had been appointed to manage the
partnerships pending separate actions by limited partner against general partner. The district
court entered orders denying the motion to set the sale aside and terminating the receivership,
and general partner appealed. The Supreme Court, Batjer, J., held that general partner was
estopped to question propriety of the charging order, that limited partner who purchased
general partner's interest at the judicial sale was not obligated to justify sale price, and entire
burden was rather upon general partner to prove its inadequacy, and that limited partner was
entitled to all of profits and surplus, and general partner had no immediate or future rights or
surplus or any equity whatever in partnership property and thus could not insist on
continuation of the receivership.
Affirmed.
[Rehearing denied March 30, 1972]
George, Steffen & Simmons, of Las Vegas; Fulop, Rolston, Burns & McKittrick, of
Beverly Hills, California, for Appellants.
Lionel Sawyer Collins & Wartman, of Las Vegas; Sonnenschein, Levinson, Carlin, Nath &
Rosenthal, and Frederick Lane, of Chicago, Illinois, for Respondents.
1. Appeal and Error.
Issue, whether sole limited partner, who had been awarded judgment on notes executed by general
partner, was required to affirmatively prove that judicial sale of general partner's interest in three limited
partnerships was necessary before ordering of such sale for purpose of applying proceeds against
unsatisfied amount of the judgment, could not, under theory that a party on appeal cannot assume an
attitude or accept a theory inconsistent with or different from that at hearing below, be raised for first time
on appeal from order denying general partner's motion to set the sale aside. NRS 87.280.
2. Partnership.
Charging order, directing sheriff to sell all of general partner's interest in three limited partnerships and to
apply proceeds against unsatisfied amount of judgment against such partner in favor of sole limited partner,
could properly be entered against general partner's interest in the partnerships. NRS 87.280.
88 Nev. 146, 148 (1972) Tupper v. Kroc
3. Partnership.
General partner who was given notice that sole limited partner was, as judgment creditor under statute
authorizing order charging interest of a debtor-partner, seeking judicial sale of general partner's interest in
three partnerships, who was given opportunity, by notice to him and his attorneys and by limited partner's
application for charging order, to take whatever steps he deemed necessary to either limit the charging
order or prevent the sale, and who was allowed 30 days to file an appeal from order charging his interest in
the partnerships and ordering the sale, but did not appeal from such order and instead waited nearly a year
after the sale was made before filing motion to set it aside was estopped to question propriety of the
charging order. NRS 87.280; NRCP 73.
4. Partnership.
Accounting to determine nature and extent of interest to be sold was not required prior to judicial sale,
pursuant to charging order, of general partner's interest in three limited partnerships in order to satisfy
judgment against general partner in favor of sole limited partner. NRS 87.280.
5. Partnership.
Where anyone reading or relying on notice of judicial sale, conducted pursuant to charging order, of
general partner's interest in three limited partnerships was deemed to understand that by statute the sale
consisted of a sale of partner's share of profits and surplus and no more, such sale was not void on ground
partner's interest in the partnerships was inadequately described. NRS 87.240, 87.260.
6. Partnership.
Judicial sale conducted pursuant to order charging general partner's interest in three limited partnerships
was not void on ground it was conducted 14 days after notice of sale was posted by sheriff rather than in
compliance with statute governing notice of sale under execution. NRS 21.130, subd. 2, 87.280, subd.
1.
7. Partnership.
Sole limited partner who brought application for charging order to direct sheriff to sell general partner's
interest in three limited partnerships and to apply proceeds against unsatisfied amount of judgment against
general partner in favor of limited partner and who purchased general partner's interest at judicial sale
conducted pursuant to the charging order was not obligated to justify sale price, and entire burden was
rather upon general partner to prove its inadequacy.
8. Partnership.
In proceedings on general partner's motion to set aside judicial sale of his interest in three limited
partnerships, conducted pursuant to charging order, and sole limited partner's motion to terminate
receivership and discharge receiver who had been appointed to manage the three partnerships pending
separate actions by him against general partner, question whether price paid at the sale by limited partner
for general partner's interest in the partnerships was adequate was for trier of facts.
9. Partnership.
Sale made pursuant to charging order of partner's interest in partnership did not constitute
assignment of interest in partnership.
88 Nev. 146, 149 (1972) Tupper v. Kroc
partnership did not constitute assignment of interest in partnership. NRS 87.270, 87.280.
10. Partnership.
Partnership agreements could not divest district court of its powers, provided by statute governing
charging order with respect to a partner's interest, to charge and sell interest of partner in partnership. NRS
87.280.
11. Partnership.
Sole limited partner who bought at judicial sale all of general partner's interest in three limited
partnerships was entitled to all of profits and surplus, and general partner had no immediate or future rights
to any profits or surplus or any equity whatever in partnership property and thus could not insist on
continuation of receivership which had been set up to manage the partnerships pending final outcome of
separate action by limited partner against general partner for alleged mismanagement and misappropriation
of funds from the partnerships. NRS 87.260, 87.280.
12. Partnership.
Surplus is excess of assets over liabilities.
OPINION
By the Court, Batjer, J.:
These two cases were consolidated for the purpose of appeal because the same legal issues
are involved in each.
Lloyd G. Tupper, appellant, and Ray A. Kroc, respondent, entered into three limited
partnerships for the purpose of holding title to and leasing parcels of real estate. Tupper was
the general partner, Kroc was the limited partner and each held a fifty percent interest.
Kroc filed an action alleging that Tupper had mismanaged and misappropriated funds from
these partnerships and requested that they be dissolved and that a receiver be appointed.
Pending the final outcome of that action the trial court appointed a receiver to manage the
three business organizations. Prior to the date on which the complaint for dissolution had
been filed, Tupper had on several occasions been unable to pay his share of the partnerships'
obligations. Kroc on those occasions personally contributed the total amounts owed by the
partnerships, and in return accepted interest bearing notes from Tupper in amounts equal to
one-half of the partnerships' debts paid by him. Kroc thereafter filed an action against Tupper
to recover on those notes and was awarded a summary judgment in the amount of $54,609.02.
In a effort to collect on that judgment, Kroc filed a motion pursuant to NRS S7.2S01
requesting the district court to charge Tupper's interest in the partnerships with payment
of the judgment and for the sale of Tupper's interest to satisfy the judgment.
88 Nev. 146, 150 (1972) Tupper v. Kroc
pursuant to NRS 87.280
1
requesting the district court to charge Tupper's interest in the
partnerships with payment of the judgment and for the sale of Tupper's interest to satisfy the
judgment. On June 12, 1969, a charging order was entered directing the sheriff to sell all of
Tupper's right, title and interest in the three partnerships and to apply the proceeds against
the unsatisfied amount of the judgment. Tupper was served with notice of the sale, but he
took no action to redeem his interest. The sale was held on June 27, 1969, and Kroc
purchased Tupper's interest for $2,500.
Kroc filed a motion to terminate the receivership on March 12, 1970, contending that he
was the sole owner of the partnerships and that the need for a receiver had ceased. On May
18, 1970, the appellants filed an objection to the respondents' motion to terminate the
receivership, and a motion to set aside the sale conducted pursuant to the charging order. The
trial court denied the appellants' motion to set aside the sale, and granted the respondents'
motion to terminate the receivership and discharge the receiver. It is from these two orders
that this appeal is taken.
The appellants contend that the trial court erred when it confirmed the sale of Tupper's
interest in the three partnerships because (1) Kroc failed to affirmatively show that a sale of
Tupper's interest in the partnerships was necessary; (2) a partner's interest in a partnership is
not subject to a sale in satisfaction of a judgment; (3) it was improper to nominate the sheriff
to conduct the sale which was irregularly and improperly held; (4) the sheriff's sale was
inequitable in that the price paid for Tupper's partnership interest was grossly inadequate; (5)
it was impermissible to conduct the sale of Tupper's interest in the partnerships while
they were in receivership; and {6) the sale was in violation of the partnerships'
agreements.
____________________

1
NRS 87.280: 1. On due application to a competent court by any judgment creditor of a partner, the court
which entered the judgment, order, or decree, or any other court, may charge the interest of the debtor partner
with payment of the unsatisfied amount of such judgment debt with interest thereon; and may then or later
appoint a receiver of his share of the profits, and of any other money due or to fall due to him in respect of the
partnership, and make all other orders, directions, accounts and inquiries which the debtor partner might have
made, or which the circumstances of the case may require.
2. The interest charged may be redeemed at any time before foreclosure, or in case of a sale being directed
by the court may be purchased without thereby causing a dissolution:
(a) With separate property, by any one or more of the partners, or,
(b) With partnership property, by any one or more of the partners with the consent of all the partners whose
interests are not so charged or sold.
3. Nothing in this chapter shall be held to deprive a partner of his right, if any, under the exemption laws, as
regards his interest in the partnership.
88 Nev. 146, 151 (1972) Tupper v. Kroc
was impermissible to conduct the sale of Tupper's interest in the partnerships while they were
in receivership; and (6) the sale was in violation of the partnerships' agreements. Furthermore,
the appellants contend that it was improper to discharge the receiver because Tupper retained
such an equity in the partnership business and assets as to compel continuation of the
receivership.
[Headnote 1]
The appellant's contention that Kroc was required to affirmatively prove that a sale of
Tupper's interest in the partnerships was necessary before a sale could be ordered was not
raised in the court below, but raised for the first time in this appeal. Upon the rule announced
in Cottonwood Cove Corp. v. Bates, 86 Nev. 751, 476 P.2d 171 (1970) and Clark County v.
State, 65 Nev. 490, 199 P.2d 137 (1948), that a party on appeal cannot assume an attitude or
accept a theory inconsistent with or different from that at the hearing below, we will not
consider that issue. Also, this issue amounts to an attack upon the validity of the charging
order and the appellants concede that the charging order is not under attack.
[Headnotes 2, 3]
The charging order was properly entered by the district court against Tupper's interest in
the three partnerships. NRS 87.280; Balaban v. Bank of Nevada, 86 Nev. 862, 477 P.2d 860
(1970); State v. Elsbury, 63 Nev. 463, 175 P.2d 430 (1946). The district court also was
authorized, in aid of the charging order, to make all orders and directions as the case required.
NRS 87.280(1). Pursuant to the provisions of this statute the district court was authorized to
appoint a receiver to act as a repository for Tupper's share of the profits and surplus for the
benefit of Kroc, or as the court did here, order the sale of Tupper's interest. NRS
87.280(1)(2); Frankil v. Frankil, 15 D. & C. 103 (Phila. Co. 1928); see also 87.320(2). In
Kroc's application for the order charging Tupper's interest in the partnerships he requested an
order directing a sale of that interest. Likewise in the notice to Tupper and his attorneys they
were advised that Kroc was seeking a sale of Tupper's interest. The application and notice
afforded Tupper an opportunity to take whatever steps he deemed necessary to either limit the
charging order or prevent the sale.
2
Tupper was allowed 30 days to file an appeal from the
order charging his interest in the partnerships and ordering the sale.
____________________

2
If only a charging order had been entered or had the court in the charging order appointed a receiver under
NRS 87.280, to receive Tupper's share of the partnerships' profits or upon dissolution his share of the surplus
instead of ordering a sale, then upon receipt by Kroc of
88 Nev. 146, 152 (1972) Tupper v. Kroc
an appeal from the order charging his interest in the partnerships and ordering the sale. NRCP
73. He did not appeal from that order, but instead waited nearly a year after the sale was made
before filing a motion to set it aside. The appellants are now estopped to question the
propriety of the charging order.
[Headnote 4]
Although the appellants concede that the charging order is not under attack they continue a
collateral attack by insisting that the sale of Tupper's interest in the partnerships authorized by
the charging order was void. One of those contentions of irregularity is based upon the fact
that an accounting to determine the nature and extent of the interest to be sold was not
required by the district court before it entered its order authorizing the sale. In support of this
contention the appellants rely upon Balaban v. Bank of Nevada, supra. Although we declared
the sale in that case to be void and ordered an accounting, it is inapposite to support a claim
that the sale in this case is void. In Balaban the notice of sale advised that said sale will
include all physical assets. This was impermissible and for that reason we set the sale aside.
Furthermore, Balaban concerned a dissolution of a partnership by death, its winding up and
the interplay of the Uniform Partnership Act (NRS Ch. 87) and the probate code (NRS Chs.
143 and 148). Within those chapters are found special provisions and requirements for an
accounting (NRS 143.040; NRS 87.430; NRS 148.210) which are not found in the statute
authorizing the charging order (NRS 87.280). An accounting prior to the sale of Tupper's
interest was not compelled in this case.
[Headnote 5]
The appellants also contend that Tupper's interest in the partnership was inadequately
described. Anyone reading or relying on the notice of sale was, as a matter of law, deemed to
understand that by statute the sale of Tupper's interest in the partnerships consisted of a sale
of his share of the profits and surplus and no more. NRS 87.240; NRS 87.260; NRS 87.280.
Any further or more extensive description would have been confusing or redundant. An
accounting might have revealed the amount of current profits, if any, or the estimated
value of the surplus, if any, but it would not have added anything to the description of
Tupper's interest beyond that found in NRS S7.260.
____________________
an amount sufficient to satisfy the judgment against Tupper entered on April 30, 1969, Tupper would have been
restored to his right to receive his share of the profits or upon dissolution his share of the surplus; however, when
his interest in the partnerships was sold he was forever foreclosed from receiving any profits or surplus from the
three partnerships.
88 Nev. 146, 153 (1972) Tupper v. Kroc
the amount of current profits, if any, or the estimated value of the surplus, if any, but it would
not have added anything to the description of Tupper's interest beyond that found in NRS
87.260.
[Headnote 6]
Pursuant to NRS 87.280(1) the district court was authorized to make any order which the
circumstances of the case required. That statute authorized the appointment of the sheriff of
Clark County to sell Tupper's interest in the partnerships, and authorized Tupper's interest to
be sold in accordance with the provisions of NRS 21.130(2)
3
at a time certain on June 27,
1969. Because this was a judicial sale authorized by NRS Ch. 87, and not an execution sale,
the district court was not bound to have Tupper's partnership interest sold in strict compliance
with NRS 21.130(2) but the court was free, pursuant to NRS 87.280(1), to order any notice
procedure that it deemed reasonable. Therefore, it was authorized to modify the notice
requirements of NRS 21.130(2) by requiring that Tupper's interest be sold at 9:00 a.m. on
June 27, 1969. The fact that the sale was conducted fourteen days after the notice of sale was
posted by the sheriff has no effect upon the validity of the sale and can be construed to have
inured to the benefit of Tupper.
[Headnotes 7, 8]
The appellants' contention that the price paid by Kroc for Tupper's interest in the three
partnerships is inadequate, is without merit. The mode for determining the value of Tupper's
interest in the partnerships was by a public sale. See McMillan v. United Mortgage Co., 82
Nev. 117, 412 P.2d 604 (1966). The fair market value of $2,500 was established by Kroc's
bid at the sheriff's sale. The respondents were under no duty or obligation to support or justify
that price and the entire burden was upon the appellants to prove its inadequacy. Thus it
became a question of fact to be determined by the trial judge who heard the testimony and
observed the witnesses. Douglas Spencer and Associates v. Las Vegas Sun, Inc., 84 Nev. 279,
439 P.2d 473 {196S).
____________________

3
NRS 21.130(2): In case of other personal property, by posting a similar notice in 3 public places of the
township or city where the sale is to take place, not less than 5 nor more than 10 days before sale, and, in case of
sale on execution issuing out of a district court, by the publication of a copy of the notice in a newspaper, if there
be one in the county, at least twice, the first publication being not less than 10 days before date of sale.
88 Nev. 146, 154 (1972) Tupper v. Kroc
439 P.2d 473 (1968). We will not substitute our judgment for that of the trial judge as to the
weight given to evidence. Richfield Oil Corp. v. Harbor Ins. Co., 85 Nev. 185, 188, 452 P.2d
462 (1969).
The appellants seek to enlist the aid of the doctrine of custodia legis
4
to support their
claim that it was impermissible to conduct the sale of Tupper's interest in the partnerships'
assets and business but not the interest of a partner in the partnerships. Tupper's interest in the
partnerships, i.e. his right and title in the profits and surplus, were his personal property and
not partnership property in the custody of the receiver. NRS 87.260.
5

[Headnotes 9, 10]
The appellants contend that the sale amounted to an involuntary assignment of Tupper's
interest in the partnerships and is in violation of the partnership agreements which preclude a
partner from assigning his interest. We do not agree. A sale made pursuant to a charging
order (NRS 87.180) of a partner's interest in a partnership is not an assignment of an interest
in a partnership. See NRS 87.270. Furthermore, the partnership agreements could not divest
the district court of its powers provided by statute to charge and sell an interest of a partner in
a partnership.
[Headnotes 11, 12]
Finally the appellants contend that because Tupper retained an equity in the partnerships'
business and assets, the district court erred when it discharged the receiver. Unfortunately for
the appellants this is not true. After Kroc bought all of Tupper's interest in the partnerships,
i.e. all of his right and title to the profits and surplus, Kroc was entitled to all of the profits
and all of the surplus. Surplus is the excess of assets over liabilities. Balaban v. Bank of
Nevada, supra; State v. Elsbury, supra; Anderson v. United States, 131 F.Supp. 501 (S.D.Cal.
1954). After the sale Tupper had no immediate or future rights to any profits or surplus or any
equity whatever in the partnership property, and therefore he had no valid reason to insist on a
continuation of the receivership.
Although as a matter of law the respondents were entitled to have the receivership
terminated and the receiver discharged, the wisdom of that request, short of the dissolution
of the partnerships, is questionable, for as soon as the receiver was discharged Tupper
had the authority under NRS Ch.
____________________

4
The phrase custodia legis means in the custody of the law. Hopping v. Hopping, 10 N.W.2d 87 (Iowa
1943); Stockwell v. Robinson, 32 A. 528 (Del. 1892).

5
NRS 87.260: A partner's interest in the partnership is his share of the profits and surplus, and the same is
personal property.
88 Nev. 146, 155 (1972) Tupper v. Kroc
the wisdom of that request, short of the dissolution of the partnerships, is questionable, for as
soon as the receiver was discharged Tupper had the authority under NRS Ch. 87, as well as
the partnerships' agreements, to assert his right to participate in the management. By
purchasing Tupper's interest in the partnerships Kroc did not divest Tupper of his other
property rights. (NRS 87.240.)
The receiver was appointed at the request of Kroc, now Tupper wants the receiver to be
reappointed to protect Tupper as a general partner from liability that might be incurred
through excessive partnership debts. At a glance it might seem that Tupper's fears have some
merit. However, as a matter of law, at the moment the receiver was discharged Tupper's right
to participate in the management of the partnerships (NRS 87.240) was restored, and as the
general partner he would, at least theoretically, be able to prevent the partnerships from
incurring liabilities in excess of assets.
The orders of the district court from which these appeals have been taken are affirmed.
Zenoff, C. J., and Mowbray, Thompson, and Gunderson JJ., concur.
____________
88 Nev. 155, 155 (1972) United States Fidelity v. Fisher
UNITED STATES FIDELITY AND GUARANTY COMPANY, a Maryland Corporation,
Appellant, v. DAVID R. FISHER, JAMES BOND, and
NORMA BOND, Respondents.
No. 6611
March 2, 1972 494 P.2d 549
Appeal from judgment of the Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Insurer brought action for declaratory judgment to determine whether omnibus clause
coverage of automobile liability policy extended to driver of insured's automobile. The
district court rendered judgment adverse to insurer and it appealed. The Supreme Court,
Mowbray, J., held that under initial permission rule, where named insured had asked driver
to drive her in her automobile to airport, had told driver to park automobile in driveway at his
residence during her absence and to move automobile in case of an emergency and named
insured, on prior occasions, had given driver permission to use her automobile to go to and
from his place of employment and on shopping tours, omnibus clause coverage extended
to driver who used automobile approximately one week after having taken insured to
airport and became involved in accident.
88 Nev. 155, 156 (1972) United States Fidelity v. Fisher
use her automobile to go to and from his place of employment and on shopping tours,
omnibus clause coverage extended to driver who used automobile approximately one week
after having taken insured to airport and became involved in accident.
Affirmed.
[Rehearing denied April 19, 1972]
Cromer and Barker, of Las Vegas, for Appellant.
Wiener, Goldwater, Galatz & Raggio, Ltd., and J. Charles Thompson, of Las Vegas, for
Respondents.
1. Insurance.
Under initial permission rule, where named insured had asked driver to take her to airport in her
automobile, had told driver to park automobile in driveway at his residence during her absence and to
move automobile in case of emergency and named insured, on prior occasions, had given driver permission
to use her automobile to go to and from his place of employment and on shopping tours, omnibus clause
coverage of insured's automobile liability policy extended to driver who used automobile about one week
after he had taken insured to airport and became involved in accident. NRS 485.3091, subd. 2(b).
2. Insurance.
If person is given permission by an insured owner to use motor vehicle in first instance, any subsequent
use while vehicle remains in person's possession is a permissive use within terms of standard automobile
liability policy. NRS 485.3091, subd. 2(b).
OPINION
By the Court, Mowbray, J.:
The United States Fidelity and Guaranty Company commenced this action in the district
court by filing a complaint for a declaratory judgment to determine whether the omnibus
clause coverage contained in an insurance policy issued to one Zelda Link extended to
Respondent David R. Fisher, who, while driving Zelda's car, was involved in an accident with
a vehicle owned by Respondents James and Norma Bond. The district judge ruled that David
was insured under the omnibus clause, as he had Zelda's permission to operate the vehicle.
We affirm that ruling.
1. The Facts.
They are substantially undisputed and they are as follows. The Company issued to Zelda
Link its customary motor vehicle liability insurance policy. The policy contained an omnibus
clause naming those persons insured thereunder, as prescribed by NRS 4S5.3091,
subsection 2.1 The policy issued to Zelda, in naming those insured, included "any other
person using such automobile with the permission of the Named Insured, provided his
actual operation or {if he is not operating) his other actual use thereof is within the scope
of such permission."
88 Nev. 155, 157 (1972) United States Fidelity v. Fisher
clause naming those persons insured thereunder, as prescribed by NRS 485.3091, subsection
2.
1
The policy issued to Zelda, in naming those insured, included any other person using
such automobile with the permission of the Named Insured, provided his actual operation or
(if he is not operating) his other actual use thereof is within the scope of such permission.
On June 30, 1968, Zelda asked David, a next-door neighbor, to drive her in her car to
McCarran Airport in Clark County, as she was leaving town on vacation. Zelda told David to
park the car in the driveway at his residence during her absence and to move the car in case of
an emergency. Zelda had on several prior occasions given David permission to use the car in
going to and from his place of employment and also on shopping tours.
On July 7, 1968, while Zelda was still on holiday, David used the car and had an accident
involving the Bond vehicle. The Bonds have sued Zelda and David and were about to default
David when the Company stepped into this present litigation and asked the court below to
decide whether its liability insurance coverage extended to David. This is the sole issue
presented on appeal.
2. The Omnibus Clause Coverage.
The Company's liability insurance coverage may extend to David if he was operating
Zelda's car with her permission at the time of the accident. The courts have adopted one of
three views in determining whether a person who has received initial permission from an
owner to drive his vehicle and then later deviates therefrom is covered by the omnibus
liability insurance clause. These views have been well summarized in Matits v. Nationwide
Mut. Ins. Co., 166 A.2d 345, 347 (N.J. 1960), as follows: ". . . {1) The liberal or so-called
'initial permission' rule that if a person has permission to use an automobile in the first
instance, any subsequent use while it remains in his possession though not within the
contemplation of the parties is a permissive use within the terms of the omnibus clause;
for cases so holding, see Annotations, 72 A.L.R. 1375, 1405-09 {1931); 106 A.L.R. 1251,
1262 {1937); 126 A.L.R. 544, 553-55 {1940); 5 A.L.R.2d 600, 629-36 {1949); {2) the
moderate or 'minor deviation' rule that the permittee is covered under the omnibus clause
so long as his deviation from the permissive use is minor in nature; Annotations 72 A.L.R.,
supra, at pp.
____________________

1
NRS 485.3091, subsection 2:
2. Such owner's policy of liability insurance shall:
(a) Designate by explicit description or by appropriate reference all motor vehicles with respect to which
coverage is thereby to be granted; and
(b) Insure the person named therein and any other person, as insured, using any such motor vehicle or motor
vehicles with the express or implied permission of such named insured, against loss from liability imposed by
law for damages arising out of the ownership, maintenance or use of such motor vehicle or motor vehicles within
the United States of America or the Dominion of Canada, subject to limits exclusive of interest and costs, with
respect to each such motor vehicle, as follows: $15,000 because of bodily injury to or death of one person in any
one accident, and, subject to such limit for one person, $30,000 because of bodily injury to or death of two or
more persons in any one accident, and $5,000 because of injury to or destruction of property of others in any one
accident.
88 Nev. 155, 158 (1972) United States Fidelity v. Fisher
. . . (1) The liberal or so-called initial permission' rule that if a person has permission to
use an automobile in the first instance, any subsequent use while it remains in his possession
though not within the contemplation of the parties is a permissive use within the terms of the
omnibus clause; for cases so holding, see Annotations, 72 A.L.R. 1375, 1405-09 (1931); 106
A.L.R. 1251, 1262 (1937); 126 A.L.R. 544, 553-55 (1940); 5 A.L.R.2d 600, 629-36 (1949);
(2) the moderate or minor deviation' rule that the permittee is covered under the omnibus
clause so long as his deviation from the permissive use is minor in nature; Annotations 72
A.L.R., supra, at pp. 1401-03; 106 A.L.R., supra, at p. 1259; 126 A.L.R., supra, at p. 552; 5
A.L.R.2d, supra, at pp. 636-43; and (3) the strict or conversion' rule that any deviation from
the time, place or purpose specified by the person granting permission is sufficient to take the
permittee outside the coverage of the omnibus clause; Annotations 72 A.L.R., supra, at pp.
1403-05; 106 A.L.R., supra, at pp. 1260-62; 126 A.L.R., supra, at pp. 552-53; 5 A.L.R.2d,
supra, 626-29. For additional authorities discussing these rules, see 7 Appleman, Insurance
169-181 (1942); Putman, The Standard Automobile Policy: What Persons and Which
Vehicles are Covered,' 11 Ark.L.Rev. 20 (1956-57); Ashlock, Automobile Liability
Insurance: The Omnibus Clause,' 46 Iowa L.Rev. 84, 102-118 (1960).
[Headnote 1]
A reading of the findings of fact and conclusions of law filed by the learned trial judge
leads us to believe that the court adopted the initial permission rule in finding that David at
the time the accident occurred had Zelda's permission to use her car. For the reasons
expressed in this opinion, we adopt the initial permission rule as controlling.
As Chief Justice Weintraub wrote in his dissent in Baesler v. Globe Indem. Co., 162 A.2d
854, 859 (N.J. 1960), which dissent was cited in part, with approval, in the later case of
Odolecki v. Hartford Accident & Indem. Co., 264 A.2d 38 (N.J. 1970):
People contract for results, presumably sensible ones. Words are mere vehicles to convey
their intention. Perfect expression is rare, particularly in the composition of a general
covenant when the draftsman can not foresee all cases which may call it into play.
Zelda, as the named insured, was covered by the liability policy, and the omnibus clause
extended coverage to any other person using such automobile with the permission of the
Named Insured, provided his actual operation. . . is within the scope of such permission."
88 Nev. 155, 159 (1972) United States Fidelity v. Fisher
Named Insured, provided his actual operation. . . is within the scope of such permission.
Nevada's motor vehicle liability policy, defined in NRS 485.3091, subsection 2(b), of
the Safety Responsibility Act, declares in part that every such insurance policy shall [i]nsure
the person named therein and any other person, as insured, using any such motor vehicle or
motor vehicles with the express or implied permission of such named insured.
Keeping in mind the policy announced by our Legislature, we turn to examine the omnibus
clause coverage in this case.
We know that contracting parties cannot contemplate every possible situation and spell out
in advance their understanding as to each situation that might develop. If we are to interpret
the intention of the parties, we must seek the reason for the extended coverage and be guided
by that reason.
Zelda bought and paid for the protection of others who might drive her car. Conspicuous is
the fact that she was vested with plenary authority to determine who should be the beneficiary
of the contract. Whether she permitted one or a hundred to drive her car, the premium
remained the same. The Company was paid for a policy under which Zelda as the named
insured could extend the liability coverage to whomever she pleased.
Zelda on numerous occasions had given David permission to drive the car. The car in a
sense was entrusted to David while Zelda was away on vacation. He had instructions to move
the car if in his judgment it was necessary, and it is reasonable to assume, under the factual
posture presented in this case, that when he drove the car on July 7, 1968, he had Zelda's
implied permission to do so. Surely, it would not have been Zelda's intention to restrict
insurance coverage to moving the car on the driveway. Applying the initial permission rule
in the instant case, we rule that David was covered by the liability policy under the terms of
the omnibus clause contained therein. Many reasons have been advanced that favor the
adoption of the initial permission rule. As the court said in Odolecki v. Hartford Accident
& Indem. Co., supra, 264 A.2d at 42:
. . . [A]s Chief Justice Weintraub pointed out in his dissent in Baesler: A named insured
untutored in law and fearful that his consent might lead to his own liability for damages in
excess of the policy limits (indeed by statute in some jurisdictions he would be so liable) may
well be tempted to invent a claim that he prohibited others to drive or to convert a precatory
request into a binding prohibition.'. . . We add that the fear of insurance policy
cancellations might well have the same effect."
88 Nev. 155, 160 (1972) United States Fidelity v. Fisher
into a binding prohibition.'. . . We add that the fear of insurance policy cancellations might
well have the same effect.
An even more powerful argument in favor of the initial permission rule is the important
policy of assuring that all persons wrongfully injured have financially responsible persons to
look to for damages. In other words, a liability insurance policy is for the benefit of the public
as well as for the benefit of the named insured. Our Legislature has spoken on the issue, as
evidenced by NRS 485.3091, subsection 2, of the Safety Responsibility Act, supra. Once an
owner voluntarily hands over the keys to his car, the extent of permission he actually grants is
irrelevant. Making coverage turn on the scope of permission given in the first instance
renders coverage uncertain in many cases. Such practice fosters litigation regarding the
existence or extent of any possible deviation, and it obstructs achievement of the policy
declared by the Legislature. As the court said in Matits v. Nationwide Mut. Ins. Co., supra,
166 A.2d at 349:
. . . We think that the initial permission' rule best effectuates the legislative policy of
providing certain and maximum coverage, and is consistent with the language of the standard
omnibus clause in automobile liability insurance policies.
[Headnote 2]
We therefore rule that if a person is given permission by an insured owner to use a motor
vehicle in the first instance, any subsequent use while the vehicle remains in the person's
possession is a permissive use within the terms of a standard automobile liability insurance
policy.
The judgment is affirmed.
Zenoff, C. J., and Batjer, Thompson, and Gunderson, JJ., concur.
____________
88 Nev. 160, 160 (1972) State Farm Mut. Auto. v. Christensen
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant,
v. ANN KATHERINE CHRISTENSEN, Respondent.
No. 6577
March 13, 1972 494 P.2d 552
Appeal from summary judgment in favor of respondent as insured under five insurance
policies issued by appellant wherein such policies aggregated $50,000 uninsured motorist
coverage. Second Judicial District Court, Washoe County; Emile J. Gezelin, Judge.
88 Nev. 160, 161 (1972) State Farm Mut. Auto. v. Christensen
Action by insured, injured in collision of her motorcycle with uninsured motorist's
automobile, against insurer to recover combined policy limits of five policies, plus interest.
The district court granted summary judgment in favor of insured and insurer appealed. The
Supreme Court, Zenoff, C. J., held that statute declaring that no judgment in any action
between insured and operator of uninsured motor vehicle is binding upon insurer with respect
to existence or amount of liability under uninsured motorist coverage represents an
adjudication which is a judicial function and is void, and insurer was bound by judgment
obtained by insured against uninsured motorist for injuries sustained in collision.
Affirmed.
Vargas, Bartlett & Dixon, and Jon J. Key, of Reno, for Appellant.
Hibbs & Bullis, of Reno, for Respondent.
1. Constitutional Law; Insurance.
Statute declaring that no judgment in any action between insured and operator of uninsured motor vehicle
is binding upon insurer with respect to existence or amount of liability under uninsured motorist coverage
represents an adjudication which is a judicial function and is void. NRS 693.115, subd. 5.
2. Insurance.
Insurer was bound by judgment obtained by insured against uninsured motorist for injuries sustained in
collision.
3. Interest.
Award of prejudgment interest against insurer which had issued five policies to insured commenced on
date of insured's personal injury judgment against uninsured motorist rather than on date summary
judgment was rendered for insured in her action against insurer; it was of no consequence that decision
holding that policies issued by same company could be stacked had not been rendered at time judgment
was obtained against uninsured motorist. NRS 693.115, 693.115, subd. 5.
4. Interest.
Interest is allowed, where no written contract fixes a different rate, at 7 percent per annum upon all
money from the time it becomes due upon contracts, express or implied. NRS 99.040, subd. 1.
OPINION
By the Court, Zenoff, C. J.:
The parties agree on the issues of this appeal and the facts that gave rise to them.
88 Nev. 160, 162 (1972) State Farm Mut. Auto. v. Christensen
Ann Katherine Christensen, respondent while commuting from work on her motorcycle
was involved in a collision with an automobile driven by Richard R. Stanton who was an
uninsured motorist. Respondent was insured by five policies issued from State Farm under
uninsured automobile coverage. She sued Stanton obtaining a default judgment in the amount
of $96,302.95 on June 16, 1969. Although notified of this litigation State Farm chose not to
participate.
Respondent then commenced an action against appellant seeking $50,000 which
represented the combined policy limits of the five policies, plus interest. Her motion for
summary judgment was granted on January 4, 1971 in the amount of $50,000, plus
prejudgment interest at 7 percent from June 16, 1969 (the date of the Stanton judgment) until
paid, plus costs of suit with interest thereon from January 4, 1971.
1. The first question for our determination is whether the insurance company was bound
by the Christensen judgment against Stanton so that the date the interest commenced to run
was properly June 16, 1969 as the trial court ruled.
In Allstate Insurance Co. v. Pietrosh, 85 Nev. 310, 454 P.2d 106 (May 6, 1969), this court
stated that when the company is given notice of the action, has the opportunity to intervene,
and judgment is thereafter obtained against the uninsured motorist in an adversary
proceeding, that the company should be bound thereby even despite contrary policy
provisions. Prior to Pietrosh, the Nevada legislature on April 23, 1969 amended NRS 693.115
(1969 Nev. Stats. ch. 568), as follows: No judgment in any action between the named
insured or any person claiming under him and the owner or operator of an uninsured motor
vehicle is binding upon the insurer with respect to the existence or amount of any liability
under the coverage required by this section. It is the insurance company's contention now
that the new law, subsection 5 thereof, should be applied to the Stanton action which was
commenced March 20, 1969 and concluded June 16, 1969.
[Headnotes 1, 2]
Such legislative adjudication represented by the statute is a judicial function and is void.
Cf. Volpert v. Papagna, 85 Nev. 437, 456 P.2d 848 (1969). The effect of Pietrosh, supra,
procedurally is to impliedly pronounce the insurer as an indirect party which is a procedural
consequence that is ours to decide. Pietrosh, supra, being the last pronouncement on the
subject is controlling.
88 Nev. 160, 163 (1972) State Farm Mut. Auto. v. Christensen
is controlling. The insurance company is bound by the judgment against Stanton.
[Headnote 3]
2. We turn now to decide whether the award of prejudgment interest against the insurance
company properly commenced from June 16, 1969, the date of the respondent's judgment
against Stanton, or should have commenced as of January 4, 1971, the date of the summary
judgment against the insurance company.
The main issue presented to the trial court was whether State Farm's liability was limited
to the one policy limit of $10,000 or whether State Farm was under obligation to pay all five
policies so that a total of $50,000 would be due. We decided in United Services Auto. Assoc.
v. Dokter, 86 Nev. 917, 478 P.2d 583, rendered December 28, 1970, that policies issued by
the same company could be stacked. The day after that decision the trial court in this case
granted summary judgment which was entered on January 4, 1971.
The insurance company's liability became fixed the date of the Stanton judgment, June 16,
1969. On that date the appellant's obligation to compensate respondent in accord with its
contractual obligations to her was established. Their contention that they had an unresolved
bona fide issue of stacking and that therefore they should be absolved of prejudgment interest
until it was decided is of no consequence.
We said in Paradise Homes v. Central Surety, 84 Nev. 109, 437 P.2d 78 (1968), that the
money becomes due when performance was due as resolved by the court upon trial of the
cause. The Stanton judgment fixed their duty to pay under their contracts. Although this court
had not yet decided Dokter, supra, the amount they were to pay was at their risk if they were
wrong.
The Dokter decision being this court's first pronouncement of the stacking principle was,
nevertheless, declarative of existing law applicable at the time of the event (Stone v. City and
County of San Francisco, 80 P.2d 175, 178 (Cal.App. 1938)), in this instance the date of the
default judgment. Gt. Northern Ry. v. Sunburst Co., 287 U.S. 358, 364 (1932).
[Headnote 4]
Under our law with exceptions not pertinent here, interest is allowed, where no written
contract fixes a different rate, at 7 percent per annum, upon all money from the time it
becomes due upon "contracts, express or implied."
88 Nev. 160, 164 (1972) State Farm Mut. Auto. v. Christensen
due upon contracts, express or implied. NRS 99.040(1); Paradise Homes v. Central Surety,
supra.
1

Therefore, interest on the total amount of $50,000 commenced to run on June 16, 1969 at
7 percent. All interest ceased on May 13, 1971 at which time tender was made of the entire
$50,000.
Affirmed.
Batjer, Mowbray, Thompson, and Gunderson, JJ., concur.
____________________

1
The three-pronged tests defining due dates of prejudgment interest on contracts are specified in Paradise
Homes v. Central Surety, 84 Nev. 109, 116, 437 P.2d 78 (1968), wherein the Nevada cases on the subject are
reviewed and NRS 99.040 is construed.
____________
88 Nev. 164, 164 (1972) Williams v. State
LORENE WILLIAMS, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 6679
March 13, 1972 494 P.2d 960
Appeal from a judgment of conviction by a jury for the crime of unlawful use of a credit
card. Eighth Judicial District Court, Clark County; Thomas J. O'Donnell, Judge.
The Supreme Court held that evidence was sufficient to support jury verdict finding
defendant guilty.
Affirmed.
Robert G. Legakes, Public Defender, Jerrold J. Courtney, Deputy Public Defender, Clark
County, for Appellant.
Robert List, Attorney General, Roy A. Woofter, District Attorney, Charles L. Garner,
Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Where defendant cited no authorities in support of her position on appeal, Supreme Court was not
required to consider assignment of error.
2. False Pretenses.
Evidence was sufficient to support jury verdict finding defendant guilty of unlawful use of a credit card.
NRS 205.500.
OPINION
Per Curiam:
The appellant challenges the sufficiency of the evidence to support the jury verdict
finding her guilty of unlawful use of a credit card, a violation of NRS 205.500.
88 Nev. 164, 165 (1972) Williams v. State
support the jury verdict finding her guilty of unlawful use of a credit card, a violation of NRS
205.500.
[Headnotes 1, 2]
Since the appellant has cited no authorities in support of her position, this court is not
required to consider the assignment of error. Howarth v. El Sobrante Mining Corp., 87 Nev.
492, 489 P.2d 89 (1971); Carson v. Sheriff, 87 Nev. 357, 487 P.2d 334 (1971); Smithart v.
State, 86 Nev. 925, 478 P.2d 576 (1970). We have, however, reviewed the entire record and
found therein substantial evidence to prove each and every element of the crime with which
she was charged. Marshall v. State, 87 Nev. 536, 490 P.2d 1056 (1971); Collins v. State, 87
Nev. 436, 488 P.2d 544 (1971). This independent review of the record which we have
conducted clearly establishes that the appellant's claim of error is frivolous. Gay v. State, 87
Nev. 540, 490 P.2d 666 (1971); Sanchez v. State, 85 Nev. 95, 450 P.2d 793 (1969).
Affirmed.
____________
88 Nev. 165, 165 (1972) Haughton Elevator v. R. C. Johnson & Assocs.
HAUGHTON ELEVATOR COMPANY, a Delaware Corporation, Appellant, v.
R. C. JOHNSON & ASSOCIATES, a Nevada Corporation, Respondent.
No. 6669
March 14, 1972 494 P.2d 961
Appeal from judgment of the Eighth Judicial District Court, Clark County; William P.
Compton, Judge.
The Supreme Court held that there was no error in refusing to relieve appellant from its
counsel's stipulation.
Affirmed.
Emilie N. Wanderer, of Las Vegas, for Appellant.
Wiener, Goldwater, Galatz & Raggio, Ltd., of Las Vegas, for Respondent.
Stipulations.
Where counsel stipulated that respondent should pay appellant stated sum in stated installments with
interest from the date of the stipulation, and the stipulation provided that if respondent failed to make any
payment when due, appellant might cause court to enter judgment in form attached to the stipulation, and
where neither the stipulation nor the contemplated judgment allowed attorneys' fees, there was
no error, upon application for judgment following default, in refusing to relieve
appellant from stipulation by awarding attorneys' fees and interest from date debt
allegedly was due.
88 Nev. 165, 166 (1972) Haughton Elevator v. R. C. Johnson & Assocs.
allowed attorneys' fees, there was no error, upon application for judgment following default, in refusing to
relieve appellant from stipulation by awarding attorneys' fees and interest from date debt allegedly was due.
OPINION
Per Curiam:
The parties' counsel stipulated respondent should pay appellant $8,329.61, in stated
installments, with interest from the stipulation's date at 7% per annum. The stipulation
provided further that if respondent failed to make any payment when due, appellant might
thereupon cause the court to enter a judgment in a form attached to the stipulation. Neither
the stipulation nor the contemplated judgment allowed attorneys' fees to appellant.
Respondent defaulted in paying the first of the required installments; appellant thereupon
applied for judgment, but asked the court to award attorneys' fees and interest from the date
the debt allegedly was due. The court refused to relieve appellant from its counsel's
stipulation, and entered judgment in accord with the stipulation. We find no error in the lower
court's action. Cf. Second Bapt. Ch. v. Mt. Zion Bapt. Ch., 86 Nev. 164, 466 P.2d 212 (1970).
Affirmed.
____________
88 Nev. 166, 166 (1972) Brown v. Warden
WARREN ROBERT BROWN, Appellant v. WARDEN,
NEVADA STATE PRISON, Respondent.
No. 6619
March 14, 1972 494 P.2d 959
Appeal from an order denying post-conviction relief. Eighth Judicial District Court, Clark
County; Howard W. Babcock, Judge.
The Supreme Court held that where trial court failed to make inquiry regarding waiver of
privilege against compulsory self-incrimination, right to trial by jury, and right to confront
one's accusers, statute regarding acceptance of guilty plea, upon which is imposed the
constitutional gloss of Boykin v. Alabama, was violated and petitioner, who pleaded guilty
after the date of Boykin, was entitled to plead anew.
Reversed and remanded with instructions.
88 Nev. 166, 167 (1972) Brown v. Warden
Albert Matteucci, of Las Vegas, for Appellant.
Robert List, Attorney General, Roy A. Woofter, District Attorney, and Charles L. Garner,
Deputy District Attorney, Clark County, for Respondent.
Criminal Law.
Where trial court failed to make inquiry regarding waiver of privilege against compulsory
self-incrimination, right to trial by jury, and right to confront one's accusers, statute regarding acceptance of
guilty plea, upon which is imposed the constitutional gloss of Boykin v. Alabama, was violated and
petitioner, who pleaded guilty after the date of Boykin, was entitled to plead anew.
OPINION
Per Curiam:
This is an appeal from an order of the district court denying post-conviction relief to
Brown who, on April 20, 1970, pleaded guilty to robbery and currently is serving a six-year
sentence in the Nevada State Prison. Brown was represented by counsel at the arraignment
where he entered his plea of guilty.
On August 20, 1970, Brown filed a petition for a writ of habeas corpus prepared by
another inmate alleging (1) that the guilty plea was induced by promises of the Clark County
District Attorney's Office and (2) that the plea was not entered with knowledge of its
consequences and was therefore involuntary. On October 12, 1970, a hearing on the petition
was held and argument was heard. The writ was denied.
Brown then filed a petition for post-conviction relief. This petition also alleged that the
plea was induced by unfulfilled promises and was neither knowledgeable nor voluntary.
Counsel was appointed by the court to represent Brown at the hearing to be held on the
petition. The hearing was held and the petition denied on March 4, 1971. Notice of appeal
from the order denying the petition for post-conviction relief was then filed.
Now, for the first time, on appeal Brown specifically cites the case of Boykin v. Alabama,
395 U.S. 238 (1969), alleging that the mandates there announced were not followed when the
district court accepted his plea of guilty. The State concedes that the doctrine of Boykin as
construed by this court in Stocks v. Warden, 86 Nev. 758, 476 P.2d 469 (1970), and Higby v.
Sheriff, 86 Nev. 774, 476 P.2d 959 (1970), was not followed. The State, however, urges
affirmance of the district court's order arguing that the record shows that the plea was
voluntarily and knowingly made.
88 Nev. 166, 168 (1972) Brown v. Warden
order arguing that the record shows that the plea was voluntarily and knowingly made. We do
not agree.
The relevant part of NRS 174.035(1) provides that the court shall not accept a guilty plea
without first addressing the defendant personally and determining that the plea is made
voluntarily with understanding of the nature of the charge and consequences of the plea. As
of June 2, 1969, the constitutional gloss of Boykin v. Alabama is imposed upon the meaning
of the phrase consequences of the plea. Stocks v. Warden, supra.
The record in this case clearly shows that the doctrine of Boykin was not followed. The
district judge failed to make inquiry regarding the waiver of fundamental trial rightsthe
privilege against compulsory self-incrimination, the right to trial by jury, and the right to
confront one's accusers. Hence, the provisions of NRS 174.035(1) as construed by this court
in Higby were violated.
We, therefore, reverse the order denying the petition for post-conviction relief and remand
the case to the district court to permit the defendant to plead anew to the charge in the manner
prescribed by statute.
____________
88 Nev. 168, 168 (1972) Collins v. State
VARNER RAY COLLINS, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 6595
March 14, 1972 494 P.2d 956
Appeal from a conviction of robbery. Eighth Judicial District Court, Clark County; John F.
Mendoza, Judge.
The Supreme Court held that denial of defendant's request for a jury composed of six black
persons and six white persons did not require reversal on ground that jury verdict violated
equal protection clause of Fourteenth Amendment, absent evidence suggesting that members
of defendant's race were excluded systematically from jury duty.
Affirmed.
Robert G. Legakes, Public Defender, and Thomas D. Beatty, Deputy Public Defender,
Clark County, for Appellant.
Robert List, Attorney General, Roy A. Woofter, District Attorney, and Charles L.
88 Nev. 168, 169 (1972) Collins v. State
Attorney, and Charles L. Garner, Deputy District Attorney, Clark County, for Respondent.
1. Constitutional Law.
Denial of defendant's request for a jury composed of six black persons and six white persons did not
require reversal on ground that jury verdict violated equal protection clause of Fourteenth Amendment,
absent evidence suggesting that members of defendant's race were excluded systematically from jury duty.
U.S.C.A.Const. Amend. 14.
2. Criminal Law.
Refusal to give defendant's proposed instruction regarding inferences that could be drawn from his failure
to testify in his own behalf was not error, where instructions given recited substantially the same law as the
instruction requested, including principle that no person can be compelled to be a witness against himself.
3. Criminal Law.
Supreme Court will not consider assignment of error, for which no authority is cited, unless the error is so
unmistakable that it reveals itself by a casual inspection of the record.
4. Criminal Law.
Imposition of sentence in excess of that recommended by department of parole and probation does not
constitute abuse of discretion.
OPINION
Per Curiam:
During the morning of September 10, 1969, an individual entered the Hyde Park Liquor
store in Las Vegas and forced two patrons to lie on the floor while he took from the employee
on duty a paper bag of cash and a cigar box containing rolled coin. Before fleeing, the robber
directed the three individuals to enter one of the restrooms. The store owner after parking his
car observed a man running from the store carrying a cigar box and a paper bag and enter an
automobile. This aroused the owner's suspicions so he took down the auto's license number.
Appellant was later arrested near an apartment house, standing beside a vehicle bearing the
license number taken by the store owner. A paper bag and cigar box, identified as those taken
from the store, were located in a trash receptacle at the rear of the apartments. Several
hundred dollars in bills and coin were scattered in the bag, cigar box, and trash receptacle.
Fingerprints taken from the paper bag, cigar box, and automobile matched those of appellant.
Upon this evidence and the identification of the appellant by both the store owner and one of
the patrons who observed the robbery, appellant was convicted.
88 Nev. 168, 170 (1972) Collins v. State
Appellant now contends that his conviction must be reversed because: (1) his request for a
jury composed of six black persons and six white persons was denied, (2) the court refused to
give his proposed instruction regarding the inferences that could be drawn from his failure to
testify in his own behalf, (3) the district judge imposed a sentence in excess of that
recommended by the Department of Parole and Probation, and (4) insufficient evidence was
adduced at the trial to support his conviction. We find all the assertions of error to be without
merit.
[Headnote 1]
Regarding appellant's first assignment of error, a jury verdict violates the equal protection
clause of the Fourteenth Amendment only if it can be shown that members of the appellant's
race were excluded systematically from jury duty. We find nothing in the record to suggest
that members of the appellant's race were so excluded from jury service, nor has appellant
directed us to any portion of the record which would so indicate. Howard v. State, 84 Nev.
599, 446 P.2d 163 (1968); Collins v. State, 87 Nev. 436, 488 P.2d 544 (1971); Collins v.
State, 88 Nev. 9, 492 P.2d 991 (1972). In Swain v. Alabama, 380 U.S. 202, 202-04 (1965) the
United States Supreme Court stated, Although a Negro defendant is not entitled to a jury
containing members of his race, a State's purposeful or deliberate denial of Negroes on
account of race of participation as jurors in the administration of justice violates the Equal
Protection Clause.
[Headnote 2]
With reference to appellant's second contention, the record reflects that the instruction
given by the trial court recited substantially the same law as the instruction requested,
including the principle that no person can be compelled to be a witness against himself. It is
not error to refuse to give an instruction when the law encompassed therein is substantially
covered by another instruction given to the jury. Summers v. State, 86 Nev. 210, 467 P.2d 98
(1970); Vincze v. State, 86 Nev. 546, 472 P.2d 936 (1970).
[Headnotes 3, 4]
Appellant cites no authority in support of his third assignment of alleged error. This court will
not consider the assignment unless the error is so unmistakable that it reveals itself by a
casual inspection of the record. Carson v. Sheriff, 87 Nev. 357, 487 P.2d 334 (1971);
Smithart v. State, 86 Nev. 925, 47S P.2d 576 {1970).
88 Nev. 168, 171 (1972) Collins v. State
478 P.2d 576 (1970). No such error is revealed here. Furthermore there is no requirement
imposed upon the sentencing court to set the penalty in compliance with the
recommendations of the Department of Parole and Probation. A trial court does not abuse its
discretion by imposing a sentence in excess of that suggested by the Department.
We have reviewed the record and find it contains substantial competent evidence to
support the jury's verdict. McGuire v. State, 86 Nev. 262, 468 P.2d 12 (1970); Collins v.
State, 87 Nev. 436, 488 P.2d 544 (1971).
The judgment of the district court is affirmed.
____________
88 Nev. 171, 171 (1972) Chislee v. Smith
ESTHER FERN CHISLEE, Appellant, v. VIRGINIA
SMITH, Respondent.
No. 6667
March 14, 1972 494 P.2d 282
Appeal from judgment of Second Judicial District Court, Washoe County; John F. Sexton,
Judge.
Affirmed.
Melvin Schaengold, of Reno, for Appellant.
Echeverria and Osborne Chartered, John T. Coffin, and Dennis J. Healy, Jr., of Reno, for
Respondent.
OPINION
Per Curiam:
We have reviewed the scanty record presented in this case, and we find no merit to this
appeal. The remittitur shall issue forthwith.
____________
88 Nev. 172, 172 (1972) Guerra v. Archie
NANCY GUERRA, Appellant, v. ROBERT ARCHIE, Executive Director, EMPLOYMENT
SECURITY DEPARTMENT OF THE STATE OF NEVADA, Respondent.
No. 6678
March 16, 1972 494 P.2d 957
Appeal from order of the Eighth Judicial District Court, Clark County, dismissing petition
for judicial review to determine entitlement to unemployment compensation; Clarence
Sundean, Judge.
The Supreme Court, Gunderson, J., held that pregnancy of employee, who was discharged
once employer learned of her condition, was not cause for denying her unemployment
benefits to which she was otherwise entitled until 60 days of time she was confined for
childbirth.
Reversed and remanded with instructions.
[Rehearing denied April 13, 1972]
B. Mahlon Brown, III, of Las Vegas, for Appellant.
Peter I. Breen, of Reno, for Respondent.
1. Social Security and Public Welfare.
Legislature has established a plan of relief for persons who, when willing and able to work, are separated
involuntarily from their employment, and Employment Security Department is bound to implement plan
within its statutory limits. NRS 612.435, 612.440, subd. 2.
2. Social Security and Public Welfare.
Pregnancy of employee, who was discharged once employer learned of her condition, was not cause for
denying her unemployment benefits to which she was otherwise entitled until 60 days of time she was
confined for childbirth. NRS 612.435, 612.440, subd. 2.
OPINION
By the Court, Gunderson, J.:
Another employee in whom appellant confided having told their mutual employer
appellant was some two months pregnant, the employer immediately discharged her.
Thereupon, appellant applied for unemployment compensation. NRS 612.010 et seq.
Although respondent admits appellant was fully able to discharge all duties of her previous
employment, and remained ready, willing and able to work, appellant was denied benefits
at each level of administrative review.
88 Nev. 172, 173 (1972) Guerra v. Archie
able to discharge all duties of her previous employment, and remained ready, willing and able
to work, appellant was denied benefits at each level of administrative review. The district
court dismissed her petition for judicial review, holding that pursuant to NRS 612.435, it is
not necessary for a pregnant individual to be unable to work before she is disallowed
unemployment compensation benefits under the provisions of this section of NRS.
1
This
appeal follows.
[Headnote 1 ]
Respondent tells us appellant's employer makes a general practice of discharging expectant
mothers as soon as the employer learns they are pregnant, and we do not question the
employer's right to implement this policy. However, our legislature has established a plan for
the relief of persons who, when willing and able to work, are separated involuntarily from
their employment; and it is this policy respondent is bound to implement, within its statutory
limits. NRS 612.435 must be read in conjunction with NRS 612.440(2) which provides: A
claimant's unemployment shall be deemed to be due to pregnancy if such unemployment
exists within 60 days of expected confinement. As the Supreme Court of Kansas has said,
interpreting a similar statute: We must assume that if the legislature had intended to make
pregnancy per se a disqualification for benefits it would have so stated. Boeing Co. v.
Kansas Employment Security Bd. of Rev., 392 P.2d 904, 907 (Kan. 1964).
We are forced to conclude that pregnancy does not of itself render an employee
unavailable for employment prior to the two months immediately preceding the expected
birth. Whether pregnancy renders an employee unavailable for work previous to the
expiration of the first seven months is a matter for the determination of the Employment
Security Board under the facts and circumstances of the particular case. Id., at 909.
[Headnote 2]
Upon the facts admitted by respondent, until 60 days of the time she was confined for
childbirth, appellant's pregnancy was not cause for denying her benefits to which she was
otherwise entitled.
____________________

1
NRS 612.435 provides:
Separation from work because of pregnancy. An individual shall be disqualified for benefits for the week in
which the claimant is separated from work because of pregnancy and each week thereafter until proof of ability
to work following confinement is submitted.
88 Nev. 172, 174 (1972) Guerra v. Archie
entitled. This cause is reversed and remanded with instructions to enter an appropriate
judgment in favor of appellant.
2

Zenoff, C. J., and Batjer, Mowbray, and Thompson, JJ., concur.
____________________

2
Appellant not having left her employment voluntarily and without good cause, her aforementioned
employer's experience rating should be charged for benefits awarded to her. NRS 612.475(6); NRS
612.550(4)(c).
____________
88 Nev. 174, 174 (1972) Seyden v. Frade
WILBUR SEYDEN and SYBIL J. SEYDEN, Appellants, v.
JOSEPH A. FRADE and WILLIAM M. FRADE, Respondents.
No. 6622
March 23, 1972 494 P.2d 1281
Appeal from a judgment of the First Judicial District Court, Lyon County; Frank B.
Gregory, Judge.
Suit by vendors for reformation of deed and deed of trust, alleging that a mutual mistake
regarding property had occurred. The district court dismissed the complaint and abated
purchase price and vendors appealed. The Supreme Court, Batjer, J., held that where parties
to sale of ranch agreed upon price of $350,000 for property consisting of 320-acre home
ranch and parcel of land in valley consisting of approximately 2,300 acres, there was a sale
in gross and fact that title report revealed only 2,160 acres in the valley area did not warrant
reduction of purchase price.
Reversed and remanded.
Emerson J. Wilson and Peter I. Breen, of Reno, for Appellants.
Diehl, Recanzone and Evans, of Fallon, for Respondents.
1. Vendor and Purchaser.
Whether sale of land is a sale in gross or a sale by the acre depends primarily upon the intention of the
parties, which is to be determined from variety of factors such as the negotiations of the parties, the mode
of stating the purchase price, the manner of describing the lands and the language of the contract.
2. Vendor and Purchaser.
Sale of 320-acre home ranch and second parcel of land consisting of approximately 2,300 acres, for
$350,000, was not changed from one in gross to one by the acre by the fact that at the time of the
close of escrow the accountant for vendors allocated a certain part of the purchase
price to land.
88 Nev. 174, 175 (1972) Seyden v. Frade
the time of the close of escrow the accountant for vendors allocated a certain part of the purchase price to
land.
3. Vendor and Purchaser.
If a sale of land is a sale in gross, and not by the acre, a purchaser is not entitled to a diminution of the
purchase price because of a deficiency in acreage.
4. Vendor and Purchaser.
Where parties to sale of ranch agreed upon price of $350,000 for property consisting of 320-acre home
ranch and parcel of land in valley consisting of approximately 2,300 acres, there was a sale in gross and
fact that title report revealed only 2,160 acres in the valley area did not warrant reduction of purchase
price.
5. Vendor and Purchaser.
If land sale is in gross, a substantial variance from the supposed acreage is immaterial.
6. Reformation of Instruments.
Courts will reform contracts and deeds in accordance with the true intention of the parties when their
intentions have been frustrated by a mutual mistake.
7. Reformation of Instruments.
Where deed conveying 40-acre parcel from ranch by vendors' predecessors in interest was recorded and
available for discovery by both parties, inclusion in deed to purchasers of the 40-acre parcel was a mutual
mistake, and, as against purchasers, vendors possessed equitable right to have deed reformed so as to
convey the actual parcels intended to be conveyed.
OPINION
By the Court, Batjer, J.:
In May of 1965 Wilbur and Sybil Seyden, appellants, began negotiations for the sale of
their property in Lyon County, Nevada, to Joseph and William Frade, respondents. The
parties finally agreed upon a sale price of $350,000 for all of the appellants' property in Lyon
County consisting of a 320-acre home ranch, a parcel of land in Adrian Valley which the
appellants represented as consisting of approximately 2300 acres, livestock, equipment and
improvements on the home ranch. The appellants' attorney obtained a title report from a title
company and drafted the deed, deed of trust and escrow instructions for both parties. A
preliminary title report indicated that the home ranch area consisted of 320 acres and the
Adrian Valley property consisted of 2160 acres. After the transaction had been completed, it
was determined that the home ranch contained 320 acres, but the Adrian Valley property
consisted of only 2120 acres because a 40-acre parcel of the real property described in the
deed had been conveyed to third parties by the appellants' predecessor in title.
88 Nev. 174, 176 (1972) Seyden v. Frade
The appellants filed suit in the district court for reformation of the deed and deed of trust,
alleging that a mutual mistake regarding the property had occurred. That complaint was
dismissed by the lower court upon the grounds that the appellants had failed to state a claim
upon which relief could be granted. The appellants then filed an amended complaint seeking
reformation and this time alleged that a mutual mistake had occurred because they had not
intended to convey, nor had the respondents intended to acquire that 40-acre parcel which had
been inadvertently included in the deed and deed of trust. The respondents counterclaimed
requesting compensation for damages alleged to have been suffered by reason of the fact that
they received fewer acres than they had bargained for. The district court denied the appellants'
request for reformation and found a defect in title amounting to 180 acres. Damages were
determined by the district court to be $18,000, and that court abated the purchase price by that
amount.
Pursuant to NRCP 52(b) and 59(e), the appellants filed a motion with the district court
supported by points and authorities requesting an order amending, modifying and
supplementing the court's findings of fact and conclusions of law and for the entry of an
amended judgment and decree. That motion was denied by the district court. The appellants
now appeal from the judgment and from the order denying their motion to modify, amend and
supplement findings of fact, conclusions of law and decree, contending that the sale of their
property in Lyon County to the respondents was a sale in gross with no warranty as to the
quantity of land involved, and that the district court erred when it allowed an abatement of the
purchase price and refused to reform the deed and deed of trust.
[Headnote 1]
Whether a sale of land is a sale in gross or a sale by the acre depends primarily upon the
intention of the parties, which is to be determined from a variety of factors such as the
negotiations of the parties, the mode of stating the purchase price, the manner of describing
the land and the language of the contract. Dixon v. Morse, 463 P.2d 284 (Idaho 1970);
Speedway Enterprises v. Hartsell, 251 P.2d 641 (Ariz. 1952); 1 ALR 2d 9. Here the evidence
reveals that at the outset of negotiations the sellers (appellants) were asking $450,000 and the
buyers (respondents) were offering $250,000 for all of the property of the appellants located
in Lyon County, Nevada, and subsequently they agreed upon a sale price of $350,000 for the
appellants' ranch which comprised approximately 320 acres in Mason Valley and
approximately 2300 acres of range land located from Wabuska to Adrian Valley, including
all cattle, personal property and improvements situated on the property.
88 Nev. 174, 177 (1972) Seyden v. Frade
located from Wabuska to Adrian Valley, including all cattle, personal property and
improvements situated on the property. On one occasion William M. Frade, one of the
buyers, and Ted Seyden, a relative of the appellants, rode over some of the Adrian Valley
property and Seyden pointed out the boundaries in a general way. The escrow receipt read:
Deposit on purchase of Wilbur Seyden Ranch320 A. in Mason Valley and 2300 acres
Webuska (sic) [Wabusha] to Adrian ValleyAcreage Approximate.
Up to the point in time when the escrow was opened there is nothing in the record that
points to a sale by the acre and every piece of evidence revealing the intention of the parties
points to a sale in gross.
[Headnote 2]
The fact that the title report revealed only 2,160 acres in the Adrian Valley area and that
after escrow was closed it was discovered that the appellants were without title to 40 acres
that they attempted to convey does not alter the nature of the sale. Nor is the sale changed
from one in gross to one by the acre by the fact that at the time of the close of escrow the
accountant for the appellants allocated a certain part of the purchase price to land.
[Headnote 3]
If a sale of land is a sale in gross, and not by the acre, a purchaser is not entitled to a
diminution of the purchase price because of a deficiency in acreage. Dixon v. Morse, supra;
Continental Life Ins. Co. v. Murphy, 44 P.2d 1112 (Idaho 1935); see also Speedway
Enterprises v. Hartsell, supra; Meyer v. Ranson, 224 N.E.2d 293 (Ill.App. 1967).
In Consolazio v. Summerfield, 54 Nev. 176, 179, 10 P.2d 629 (1932), we said: The
general rule of this court is that when the evidence is conflicting and there is substantial
evidence to sustain the judgment it will not be disturbed. But there is an exception to the
general rule to the effect that where, upon all the evidence, it is clear that a wrong conclusion
has been reached, the judgment will be reversed. Price v. Sinnott, 85 Nev. 600, 460 P.2d 837
(1969); Walker Brothers Bankers v. Janney, 52 Nev. 440, 290 P. 413 (1930); Watt v. Nev.
Cen. R. R. Co., 23 Nev. 154, 44 P. 423 (1896); Dalton v. Dalton, 14 Nev. 419 (1880); Reed
v. Reed, 4 Nev. 395 (1868); cf. Cram v. Durston, 68 Nev. 503, 237 P.2d 209 (1951);
Kitselman v. Rautzahn, 68 Nev. 342, 232 P.2d 1008 (1951). In our view the exception stated
in Consolazio v. Summerfield, supra, applies to the record before us. Here there was no
conflict in the evidence on the question of the nature of the sale.
88 Nev. 174, 178 (1972) Seyden v. Frade
the evidence on the question of the nature of the sale. There was no substantial evidence to
support the findings of the trial court. On the contrary, all the evidence supports the
appellants' contention that this transaction was a sale in gross.
[Headnote 4]
In their answering brief the respondents admit that we are dealing with a sale in gross but
contend that the discrepancy of 180 acres is approximately seven percent of 2300 acres and is
so substantial as to warrant the trial court's reduction of the purchase price. We do not agree.
In support of their position they rely upon Hay v. Allen, 247 P.2d 94 (Cal.App. 1952); Dixon
v. MacGillivray, 185 P.2d 109 (Wash. 1947), and Richard v. Baker, 297 P.2d 674 (Cal.App.
1956). Those cases are inapposite. Unlike this case, where acreage was referred to in
approximations, those cases dealt with factual situations where the sellers made
representations of definite boundaries or areas and the buyers relying on those representations
acted to their detriment.
[Headnote 5]
If a land sale is in gross, a substantial variance from the supposed acreage is immaterial.
Speedway Enterprises v. Hartsell, supra. This court, in Gottlieb v. Close, 81 Nev. 38, 41, 398
P.2d 248 (1965), where the frontage on Highway 91 in Clark County, Nevada, was 420 feet
instead of 570 feet, held that such variance was of no significance as the purchaser agreed to
buy that property owned by M. D. Close. . . as described on a sketch.
Ordinarily, when a sale of land is in gross, deficiencies of ten to twenty percent and even
more than thirty percent have not been considered sufficiently material to entitle a buyer to
relief. See cases collected in 1 ALR2d 9. Those jurisdictions that grant equitable relief to a
purchaser if the discrepancy in acreage is ten percent or over will deny relief if the
discrepancy is less than ten percent [Krumholz v. Goff, 315 F.2d 575 (6th Cir. 1963)] and
may deny relief when the discrepancy exceeds ten percent where the acreages are referred to
in approximations [Sullivan v. Gouge, 223 S.W.2d 985 (Ky. 1949)].
[Headnote 6]
The courts in this state will reform contracts and deeds in accordance with the true
intention of the parties when their intentions have been frustrated by a mutual mistake. Lattin
v. Gray, 75 Nev. 128, 335 P.2d 778 (1959); Roberts v. Hummel, 69 Nev. 154, 243 P.2d 248
(1952); Holman v. Vieira, Et Al., 53 Nev. 337
88 Nev. 174, 179 (1972) Seyden v. Frade
53 Nev. 337, 300 P. 946 (1931); Ruhling v. Hackett, 1 Nev. 360 (1865).
The record reveals a mistake of fact on the part of the appellants. The respondents contend,
however, that the mistake was not shared by them and for that reason the mistake was not
mutual. All the testimony in the record indicates that the respondents bargained to purchase
all of the appellants' property in Lyon County, no more and no less. There is no evidence to
indicate an intention on the part of the respondents to have conveyed to them any lands that
had previously been conveyed to other parties by the appellants' predecessors in interest. The
deed by the appellants' predecessors in interest conveying the 40-acre parcel was recorded in
book 33, page 127 of Deeds, records of Lyon County, Nevada, and was available for
discovery by both parties.
[Headnote 7]
We conclude that the record establishes without dispute that the inclusion in the deed of
the 40-acre parcel not owned by the appellants was a mutual mistake. As against the
respondents, the appellants possessed an equitable right to have the deed from them reformed
to convey the actual parcels intended to be conveyed.
The respondents are not entitled to any abatement in the purchase price of the premises.
The judgment in this case is reversed with instructions that a judgment be entered to the
effect that the deed dated the 24 day of June, 1965, by and between Wilbur Seyden and Sybil
J. Seyden, his wife, parties of the first part, and Joseph A. Frade and William M. Frade,
parties of the second part, recorded in book 48 of Deeds at page 185, records of Lyon County,
Nevada, and the deed of trust recorded in book 33 of Mortgages, at page 541, records of Lyon
County, Nevada, be reformed by striking from the parcel descriptions in each instrument the
Southwest Quarter of Southeast Quarter of Section 29, Township 15 North, Range 25 East,
M.D.B. & M.
Zenoff, C. J., and Mowbray, Thompson, and Gunderson, JJ., concur.
____________
88 Nev. 180, 180 (1972) Perry v. Law Enforcement Electronics
JACK G. PERRY and PATRICK C. CLARY, Individually and as Partners in PERRY AND
CLARY, a Partnership, Appellants, v. LAW ENFORCEMENT ELECTRONICS, INC., a
Nevada Corporation, Respondent.
No. 6680
March 29, 1972 495 P.2d 355
Appeal from judgment of the Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Corporation brought suit against attorneys seeking a judgment declaring that it was not
indebted to defendants for certain legal fees. The district court entered judgment in favor of
plaintiff, and defendants appealed. The Supreme Court held that on the appeal of defendant
attorneys, the record simply did not contain the information necessary for the Supreme Court
to rule upon defendants' assigned error that the lower court erred in refusing to allow the
deposition of one of defendants' witnesses to be introduced into evidence, where counsel for
plaintiff, at the time the deposition was offered, stated that he objected to its being offered
into evidence but that he would not object to it being published, where the objection was
sustained, but where, for some reason, the deposition was not published nor was an offer of
proof made by defendants.
Affirmed.
John Marshall, of Las Vegas, for Appellants.
Fadgen & Johnson, of Las Vegas, for Respondent.
1. Appeal and Error.
On the appeal of defendant attorneys, against whom corporation brought suit seeking a judgment
declaring that it was not indebted to defendants, the record simply did not contain the information
necessary for Supreme Court to rule upon defendants' assigned error that lower court erred in refusing to
allow the deposition of one of defendants' witnesses to be introduced into evidence, where counsel for
plaintiff, at the time the deposition was offered, stated that he objected to its being offered into evidence
but that he would not object to it being published, where the objection was sustained, but where, for some
reason, the deposition was not published nor was an offer of proof made by defendants.
2. Appeal and Error.
Where there is substantial evidence in the record to support lower court's decision, the decision will not
be disturbed on appeal.
OPINION
Per Curiam:
The respondent filed a complaint for declaratory relief seeking a determination of
whether respondent was indebted to appellants for certain legal fees.
88 Nev. 180, 181 (1972) Perry v. Law Enforcement Electronics
seeking a determination of whether respondent was indebted to appellants for certain legal
fees. Appellants filed an answer and counterclaim. This appeal is from judgment denying
appellants' counterclaim for legal services rendered.
Appellants contend that the lower court erred in refusing to allow a deposition of one of
appellants' witnesses to be introduced into evidence. Appellants also contend that the district
court's findings of fact and conclusions of law were not supported by the evidence introduced
during trial.
[Headnote 1]
At trial appellants sought to introduce into evidence the deposition of Richard L. Noble, a
securities attorney from Los Angeles. Counsel for respondent stated that he objected to the
deposition being offered into evidence, but that he would not object to it being published. The
objection was sustained. For some reason, the deposition was not published and marked for
identification, nor was an offer of proof made by appellants. There is nothing in the record on
appeal which would indicate what was contained in Mr. Noble's deposition.
Accordingly, this court will not speculate as to the contents of the deposition. The record
simply does not contain the information necessary for this court to rule upon the assigned
error. Foreman v. Ver Brugghen, 81 Nev. 86, 398 P.2d 993 (1965); Alamo Airways, Inc. v.
Benum, 78 Nev. 384, 374 P.2d 684 (1962).
[Headnote 2]
The record on appeal is replete with evidence which supports the lower court's findings of
fact and conclusions of law. When there is substantial evidence in the record to support the
lower court's decision, that decision will not be disturbed on appeal. Bagston v. Brown, 86
Nev. 653, 473 P.2d 829 (1970).
The judgment of the lower court is affirmed.
____________
88 Nev. 182, 182 (1972) Archie v. Pierce
ERIC L. ARCHIE Appellant, v. STANLEY W. PIERCE, VANILLA ARCHIE, aka
VANALLA ARCHIE, aka VANILLA GLOVER, and LINDA FULTON, Respondents.
No. 6675
March 29, 1972 495 P.2d 363
Appeal from order denying without prejudice motion to vacate sheriff's sale and sheriff's
deed. Eighth Judicial District Court, Clark County; Roscoe H. Wilkes, Judge.
The Supreme Court, Zenoff, C. J., held that order was not an appealable determination.
Appeal dismissed.
Charles L. Kellar, of Las Vegas, for Appellant.
Robert L. Gifford, of Las Vegas, for Respondents Pierce and Fulton.
Cochran & Pomeranz, of Las Vegas, for Respondent Vanilla Archie.
Appeal and Error.
Denial without prejudice of motion to vacate sheriff's sale and to set aside sheriff's deed in action wherein
same relief is sought by pending complaint was not an appealable determination. NRCP 72(b),(b)(3).
OPINION
By the Court, Zenoff, C. J.:
This is one of a continuing series of legal procedures designed to gain restitution to Eric L.
Archie for injuries arising from alleged conduct of the respondents herein.
Prior to the commencement of this action a default judgment was obtained by Pierce
against Archie which resulted in an execution and sheriff's sale of a portion of Archie's
property on June 13, 1967. The appeal taken from that judgment was dismissed on June 3,
1968 per the request of appellant Archie. (Bank of Nevada v. Archie, No. 5627 on appeal,
No. A-42897 below.) After that dismissal Archie obtained an order entered on May 26, 1971
dismissing the complaint therein with prejudice, subject to the right of appellant to continue
the present litigation which had been started on December 10, 1969 setting forth five causes
of action against the named respondents.
88 Nev. 182, 183 (1972) Archie v. Pierce
On April 5, 1971 Archie moved the district court in the present action to vacate the
sheriff's sale and to set aside the sheriff's deed. This motion related to Archie's third and
fourth causes of action wherein he had requested a lien to be impressed on the subject
property and that any cloud upon his title be declared void. The motion was denied, from
which order a purported appeal was taken. Later respondents obtained an amended order
denying appellant's motion to vacate wherein appellant's request was denied without
prejudice in the following language:
IT IS ORDERED that plaintiff's Motion to Vacate Sheriff's Sale and to Set Aside
Sheriff's Deed filed herein on April 5, 1971, is hereby denied without prejudice to bringing
the same issues on to be determined at the trial of this cause.
We do not reach the merits presented by appellant because we hold that the denial without
prejudice of a motion to vacate a sheriff's sale and to set aside a sheriff's deed in an action
wherein the same relief is sought by the pending complaint is not an appealable determination
under NRCP 72.
NRCP 72(b) states precisely what determinations are appealable and does not include a
denial of an interlocutory motion to set aside a sheriff's sale and deed. Alper v. Posin, 77 Nev.
328, 330, 363 P.2d 502 (1961); Bates v. Nevada Savings & Loan Ass'n, 85 Nev. 441, 443,
456 P.2d 450 (1969); Christensen v. Insurance Comm'r, 85 Nev. 335, 337, 454 P.2d 891
(1969). NRCP 72(b)(3) provides for appeal [f]rom an interlocutory. . . order . . . made or
entered in actions to redeem real. . . property from a . . . lien thereon, determining such right
to redeem and directing on accounting. . . . This is not such an action.
The appeal is dismissed.
Batjer, Mowbray, Thompson, and Gunderson, JJ., concur.
____________
88 Nev. 183, 183 (1972) State Farm Mut. Auto. Ins. v. Wharton
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
Appellant, v. DEVOLA M. WHARTON, Respondent.
No. 6602
March 30, 1972 495 P.2d 359
Appeal from judgment of the Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
88 Nev. 183, 184 (1972) State Farm Mut. Auto. Ins. v. Wharton
Suit by automobile insurer, as subrogee of its named insured, to recover moneys paid
under provisions of uninsured motorist clause as result of collision involving insured's vehicle
and one driven by defendant. The district court dismissed the complaint and insurer appealed.
The Supreme Court, Mowbray, J., held that action by insurer, as subrogee of its named
insured, suing to recover moneys paid under provisions of uninsured motorist clause as result
of collision involving insured's vehicle and one driven by defendant, sounded in tort rather
than in contract and 2-year statute of limitations was applicable and started to run from the
date the injuries were incurred.
Affirmed.
Rose & Norwood, Ltd., and Keith Edwards, of Las Vegas, for Appellant.
Beckley, DeLanoy & Jemison, Chartered, Jay H. Brown, and Alvin B. Maupin, of Las
Vegas, for Respondent.
1. Limitation of Actions.
Action by insurer, as subrogee of its named insured, suing to recover moneys paid under provisions of
uninsured motorist clause as result of collision involving insured's vehicle and one driven by defendant,
sounded in tort rather than in contract and 2-year statute of limitations was applicable and started to run
from the date the injuries were incurred. NRS 11.190, 11.190, subds. 1(b), 3(a), 4(e), 11.220,
41.100, subd. 4.
2. Insurance; Parties.
If insurer desires to press subrogation claim against an uninsured motorist, it may intervene in any timely
action commenced by its insured or it may commence a timely action against the tort-feasor alleging
insurer's liability to the insured for the damages the tort-feasor has caused, the insurer's intent to discharge
that liability, and its own right to be subrogated to the insured's rights upon payment.
OPINION
By the Court, Mowbray, J.:
State Farm Automobile Insurance Company, as subrogee of its named insured, Murwyn H.
Fain, sued Devola M. Wharton for $14,875, representing moneys that State Farm had paid
under the provisions of the uninsured motorist clause of its automobile insurance policy to
Murwyn H. Fain and his passengershis wife, Vyrle, and Floyd and Veda Jonesall of
whom were injured in an accident involving the Fain vehicle and one driven by Respondent
Devola M. Wharton.
88 Nev. 183, 185 (1972) State Farm Mut. Auto. Ins. v. Wharton
Wharton filed a motion to dismiss the complaint on the ground that the action was barred
by the 2-year statute of limitations, NRS 11.190, subsection 4(e).
1
According to State Farm's
complaint, which was filed on December 15, 1970, the accident occurred in Las Vegas,
Nevada, on February 26, 1967. The district judge granted the motion, and he dismissed the
complaint. Hence, this appeal.
Two issues are presented for our consideration on this appeal: (1) When does the statute of
limitations start to run where an insurance company seeks recovery as a subrogee under the
terms and conditions of an uninsured motorist provision of an insurance policy? (2) What
statute of limitations is applicable in such a case?
State Farm has suggested that the present action sounds in contract and therefore perhaps
the 6-year statute, NRS 11.190, subsection 1(b),
2
governs. Or the 3-year statute, NRS
11.190, subsection 3(a),
3
may be applicable. Or the catchall 4-year statute, NRS 11.220,
4
perhaps should be applied.
5
State Farm's counsel argues that the instant action is unique
and is predicated on and permissible only because of the provisions of NRS 41.100,
subsection 4, which states: The provisions of this section [prohibiting the assignment of
claims for personal injuries] shall not prevent subrogation suits under the terms and
conditions of an uninsured motorists' provision of an insurance policy."
____________________

1
NRS 11.190:
Actions other than those for the recovery of real property, unless further limited by NRS 11.205 or by or
pursuant to the Uniform Commercial Code, can only be commenced as follows:
. . .
4. Within 2 years:
. . .
(e) An action to recover damages for injuries to a person or for the death of a person caused by the wrongful
act or neglect of another. . . .

2
1. Within 6 years:
. . .
(b) An action upon a contract, obligation or liability founded upon an instrument in writing, except those
mentioned in the preceding sections of this chapter.

3
3. Within 3 years:
(a) An action upon a liability created by statute, other than a penalty or forfeiture.

4
NRS 11.220:
An action for relief, not hereinbefore provided for, must be commenced within 4 years after the cause of
action shall have accrued.

5
The scant record on appeal consists of the complaint, respondent's motion to dismiss, the points and
authorities in support thereof and in opposition thereto, and the judge's brief order granting the motion.
88 Nev. 183, 186 (1972) State Farm Mut. Auto. Ins. v. Wharton
and conditions of an uninsured motorists' provision of an insurance policy. Because of its
uniqueness, State Farm argues, the action is not barred by the 2-year personal injury statute
and must fall into some other category.
In Hartford Ins. Group v. Statewide Appliances, Inc., 87 Nev. 195, 484 P.2d 569 (1971),
the subrogee insurance company sought recovery for property damages. The company
claimed that the 6-year statute of limitations was applicable because the action was predicated
on a contract. This court rejected that contention and ruled (87 Nev. at 197, 484 P.2d' at 571)
that one must look to the real purpose of the complaint. We cited the case of Automobile
Ins. Co. v. Union Oil Co., 193 P.2d 48, 50-51 (Cal.App. 1948), which held:
In determining whether an action is on the contract or in tort, we deem it correct to say
that it is the nature of the grievance rather than the form of the pleadings that determines the
character of the action. If the complaint states a cause of action in tort, and it appears that this
is the gravamen of the complaint, the nature of the action is not changed by allegations in
regard to the existence of or breach of a contract. In other words, it is the object of the action,
rather than the theory upon which recovery is sought[,] that is controlling. (Citations
omitted.)
[Headnote 1]
We believe that the present action sounds in tort. Therefore, the 2-year statute of
limitations is applicable and starts to run from the date the injuries were incurred.
State Farm urges that California has provided a 3-year built-in statute in these cases,
which commences to run when the insurer has actually made payment under the policy. This
is true as provided in Cal. Ins. Code 11580.2(g) (West 1972).
6
But the 3-year statute is
only part of the statutory scheme provided by California. For example, California also
requires by statute that no cause of action shall accrue to the named insured under the
uninsured motorist coverage unless within 1 year from the date of the accident (1) suit for
bodily injury has been filed against the uninsured motorist or (2) agreement as to the amount
due under the policy has been concluded or (3) the insured has formally instituted
arbitration proceedings.
____________________

6
Cal. Ins. Code 11580.2(g):
The insurer paying a claim under an uninsured motorist endorsement or coverage shall be entitled to be
subrogated to the rights of the insured to whom such claim was paid against any person causing such injury or
death to the extent that payment was made. Such action may be brought within three years from the date that
payment was made hereunder.
88 Nev. 183, 187 (1972) State Farm Mut. Auto. Ins. v. Wharton
insured has formally instituted arbitration proceedings. See Cal. Ins. Code 11580.2(i) (West
1972).
. . . [T]he California courts have repeatedly held that compliance with the statute is a
condition precedent to any determination of the insured's claim, and that whether a claim is
barred by the one-year period of limitations is a matter for judicial determination (and not a
matter to be decided by an arbitration); . . . a three-year statute of limitations governs the right
of an insurance company to assert its subrogation claim after having compensated a claimant
under this coverage.
. . .
Thus far, California is the only state to have clarified the problem by enacting legislation
which specifies a statute of limitations against the insured under the uninsured motorist
coverage. . . . (Footnotes omitted.) A. Widiss, A Guide to Uninsured Motorist Coverage
2.24, 2.25 at 54 (1969).
[Headnote 2]
We conclude that Nevada's 2-year statute is applicable in the instant case and that it
commences to run from the date the injuries of the insured were incurred. To rule otherwise
would mean that an insurance company could withhold payment under the uninsured motorist
policy for an unlimited period and then after payment seek recovery as the subrogee of its
insured. Such practice would delay the settlement and disposition of such cases.
7
The
judgment is affirmed.


____________________

7
While appellant suggests that inequities may occur under our law as we interpret it, the procedures available
under our rules are sufficiently flexible to enable an insurance carrier to preserve its right in the event it cannot
settle with its insured within 2 years. We recently annulled a legislative enactment that was contrary to a
procedural rule established by this court and that allowed carriers to defer interminably their obligations under
uninsured motorist policies. We reaffirmed our holding that a carrier is bound by the result of an action between
its insured and an uninsured motorist when the carrier has notice of the action but elects not to intervene. State
Farm Mut. Auto. Ins. Co. v. Christensen, 88 Nev. 160, 494 P.2d 552 (1972); Allstate Ins. Co. v. Pietrosh, 85
Nev. 310, 454 P.2d 106 (1969). If a carrier desires to press a subrogation claim against an uninsured motorist, it
may intervene in any timely action commenced by its insured as contemplated by our holdings in the Pietrosh
and Christensen cases. Alternatively, it may commence a timely action against the tort-feasor alleging the
carrier's liability to the insured for the damages the tort-feasor has caused, the carrier's intent to discharge that
liability, and its own right to be subrogated to the insured's rights upon payment. In the latter case, the carrier can
make the insured a party to resolve any remaining disputes, in proceedings binding upon all partiesa result the
carrier should desire.
Where only the insurance contract allows for subrogation and a
88 Nev. 183, 188 (1972) State Farm Mut. Auto. Ins. v. Wharton
The judgment is affirmed.
Zenoff, C. J., and Batjer, Thompson, and Gunderson, JJ., concur.
____________________
subrogated carrier must therefor sue in the name of its insured, it has been said:
Under the Trust Agreement, between carrier and insured, carrier may force insured to bring a lawsuit
against uninsured motorist, and therefore any lost remedy incurred by the carrier as to its right of subrogation,
was due to its own negligence. (Footnote omitted.) Feldman, Uninsured Motorist Coverage, A. B. A. Section of
Insurance, Negligence and Compensation Law, 1968-1969 Proceedings 370, 381 (1969).
There is surely less reason for delay where the carrier is vested by statute with a right to subrogation and may
sue in its own name. Therefore, if insurance carriers will utilize available procedures with the diligence we
require of other litigants, they can adequately protect their rights. In this case, the carrier unfortunately allowed
the statute of limitations to bar an action based on its insured's personal injuries. We see no occasion, however,
to extend the normal statute of limitations to aid appellant or other carriers who may sleep on their rights. The
policy of allowing 2 years to seek recovery for personal injuries applies equally when the injured person has
uninsured motorist coverage and when he does not. In any event, change in our statutory law, if desirable, must
come from the Legislature.
____________
88 Nev. 188, 188 (1972) Page v. State
JOHNNY PAGE, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 6651
March 30, 1972 495 P.2d 356
Appeal from judgment of conviction of burglary. Eighth Judicial District Court, Clark
County; William P. Compton, Judge.
The Supreme Court, Mowbray, J., held that under statute, defendant could be convicted of
burglary even though offense was committed in the daytime.
Affirmed.
Robert G. Legakes, Public Defender, and John C. Ohrenschall, Deputy Public Defender,
Clark County, for Appellant.
Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and Rex A.
Bell, Deputy District Attorney, Clark County, for Respondent.
88 Nev. 188, 189 (1972) Page v. State
1. Burglary.
Under statute, defendant could be convicted of burglary even though alleged offense occurred in the
daytime. NRS 205.060.
2. Criminal Law.
In prosecution for burglary, witness' testimony that he had observed defendant remove clothing from back
seat of another's automobile was admissible even though witness testified on direct examination that
defendant had been wearing dark-colored slacks but on cross-examination admitted that he had signed
statement that defendant had been wearing tan or light-colored slacks. NRS 205.060.
3. Witnesses.
Any discrepancy between witness' testimony on direct examination and prior statement given officers
went only to weight and not to admissibility of witness' testimony.
4. Criminal Law.
In prosecution for burglary, pliers and knife found under pickup truck near burglarized automobile were
admissible where officer testified that, as he approached defendant and companion, he observed them
throw two objects under the pickup truck and defendant subsequently admitted at trial that he was the one
who threw pliers and knife under the truck. NRS 205.060.
OPINION
By the Court, Mowbray, J.:
The appellant, Johnny Page, was charged in the district court with burglary. He was tried
to a jury and convicted. He has appealed from the judgment of conviction, asserting several
assignments of error, which we find meritless. Therefore, the judgment is affirmed.
1. The victim of the burglary, Elmer W. Kelter, Jr., upon reporting for duty at Nellis Air
Force Base in Clark County, was assigned temporary off-base quarters at the Moulin Rouge
Hotel in nearby Las Vegas. Kelter parked his car on the hotel parking lot. In the early
morning hours of June 22, 1969, Witness Jack B. Anderson, while waiting for transportation
to Nellis, saw two men pass through the parking lot toward Kelter's car. Anderson identified
one of the men as Appellant Page. He did not, at first, see the men near Kelter's car, as his
vision to the car was partially obscured by a camper truck parked adjacent to it. While the
men were out of sight and apparently near Kelter's car, Anderson heard a distinct clicking
noise. The dome light then came on in Kelter's car, and Anderson saw Page . . . reaching
over the seat and removing clothing from a clothing rod in the back seat of the car. Anderson
then observed Page and his companion leave Kelter's car with their arms full of clothing.
88 Nev. 188, 190 (1972) Page v. State
arms full of clothing. Anderson returned to the hotel and told the desk clerk to call the police.
While he was doing this, he lost sight of the men for a minute or so; then, as he watched from
the hotel office, they came back into his line of vision. At this point the police arrived.
Officers Howard Oren and James Kelly arrested Page and his companion. Oren testified at the
trial that, as he and Kelly approached the area, Page and his companion threw two objects
under a nearby pickup truck. The objects were retrieved, and they were found to be a pair of
pliers and a knife. At trial, the State claimed that the knife was used to gain entry to Kelter's
two-door, hardtop vehicle.
[Headnote 1]
2. The burglary occurred on June 22, 1969 (and, it is conceded, in the daytime). Page
argues that he cannot be guilty of burglary committed in the daytime because there was no
such crime in June 1969. We do not agree.
The history of the burglary statute commences with the first regular session of the
Legislative Assembly of the Territory of Nevada in 1861. Section 59 of chapter 28 of the
1861 Laws of Nevada Territory defined burglary as a nighttime offense.
1
The crime was
punishable by imprisonment in the Territorial Prison for not less than 1 nor more than 10
years. In 1873, the Nevada State Legislature added day-time burglary as a crime,
characterized housebreaking, and set the penalty therefor at not less than 1 nor more than 5
years.
2
In 1909, the Nevada Legislature amended the burglary statute to provide for degrees
of burglary: Nighttime, or first-degree, burglary, carrying a penalty term of not less than 1
nor more than 15 years' imprisonment; daytime, or second-degree, burglary, carrying a
penalty term of not more than 5 years' imprisonment.3 In 1967, the Legislature amended
the burglary statute by decreasing the disparity in the penalty provisions between first-
and second-degree burglary.
____________________

1
Act of Nov. 26, 1861, ch. 28, 59 [1861] Laws Nev. Territory 66 (Gillespie 1862):
SEC. 59. Every person who shall in the night-time forcibly break and enter, or without force (the doors and
windows being open), enter into any dwelling-house, or any other house whatever, or tent, with intent to commit
murder, robbery, rape, mayhem, larceny, or other felony, shall be deemed guilty of burglary, and upon
conviction thereof, shall be punished by imprisonment in the Territorial Prison, for a term not less than one, nor
more than ten years.

2
Act of Mar. 7, 1873, ch. 76, 1 [1873] Stats. Nev. 144:
SECTION 1. Section fifty-nine of said Act [(1861) Laws Nev. Territory 66 (Gillespie 1862)] is amended
so as to read as follows:
Section Fifty-nine. Every person who shall, in the night-time, forcibly break and enter, or without force (the
doors or windows being open), enter into any dwelling house, or tent, or any other house or building whatever,
or any vessel, water craft, railroad, passenger, or freight car, with intent to commit murder, robbery, rape,
mayhem, grand larceny, petit larceny, or any felony, shall be deemed guilty of burglary, and, on conviction
thereof, shall be punished by imprisonment in the State Prison for a term not less than one nor more than ten
88 Nev. 188, 191 (1972) Page v. State
burglary: Nighttime, or first-degree, burglary, carrying a penalty term of not less than 1 nor
more than 15 years' imprisonment; daytime, or second-degree, burglary, carrying a penalty
term of not more than 5 years' imprisonment.
3
In 1967, the Legislature amended the burglary
statute by decreasing the disparity in the penalty provisions between first- and second-degree
burglary. Act of March 29, 1967, ch. 211, 138 [1967] Stats. Nev. 494, amending NRS
205.060.
4
The following year, the Legislature did away with the distinction between first-
and second-degree burglary and provided that "[a]ny person convicted of burglary shall be
punished by imprisonment in the state prison for not less than 1 year nor more than 10
years."
____________________
years. Whenever such burglary is committed upon a railroad train, in motion or in rest, in this State, and it
cannot with reasonable certainty be ascertained in what county said crime was committed, the offender may be
arrested and tried in any county through which said railroad train may have run. Every person who, in the
day-time, shall enter any dwelling house, shop, warehouse, depot, store, mill, barn, stable, outhouse, other
building, vessel, or railroad passenger or freight car, with intent to steal, or to commit any felony whatever
therein, is guilty of housebreaking, and, on conviction, shall be punished by imprisonment in the State Prison for
not less than one nor more than five years. Night-time, as in this section named, means the period between sunset
and sunrise. If housebreaking be committed upon any railroad train, in motion or in rest, in this State, and it
cannot with reasonable certainty be ascertained in what county said crime was committed, the offender may be
arrested and tried in any county through which said railroad train may have run. (Emphasis added.)

3
Act of Feb. 20, 1909, ch. 27, 1 [1909] Stats. Nev. 25:
SECTION 1. Section fifty-nine of said Act [(1861) Laws Nev. Territory 66 (Gillespie 1862)] is hereby
amended to read as follows:
Section 59. Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill,
barn, stable, outhouse, or other building, tent, vessel, or railroad car, with intent to commit grand or petit
larceny, or any felony, is guilty of burglary.
Every burglary committed in the night-time is burglary of the first degree, and every burglary committed in
the daytime is burglary of the second degree.
Burglary of the first degree is punishable by imprisonment in the State Prison for not less than one nor more
than fifteen years.
Burglary of the second degree is punishable by imprisonment in the State Prison for not more than five
years.
Whenever burglary is committed upon a railroad train, in motion or in rest, in this State, and it cannot with
reasonable certainty be ascertained in what county said crime was committed, the offender may be arrested and
tried in any county through which said railroad train may have run.
The phrase night-time,' as used in this section, means the period between sunset and sunrise.

4
Act of March 29, 1967, ch. 211, 138 [1967] Stats. Nev. 494:
SEC. 138. NRS 205.060 is hereby amended to read as follows:
205.060 1. Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill,
barn, stable, outhouse or other building, tent, vessel, vehicle, vehicle trailer, semitrailer or housetrailer,
88 Nev. 188, 192 (1972) Page v. State
burglary and provided that [a]ny person convicted of burglary shall be punished by
imprisonment in the state prison for not less than 1 year nor more than 10 years. Act of Feb.
26, 1968, ch. 22, 3 [1968] Stats. Nev. 45-46.
5

The Legislature did not, as Page would have us believe, delete from the burglary statute
burglary perpetrated during the daytime. To make it clear that there was no such intendment,
the 1971 Legislature amended the burglary statute again, by inserting the phrase either by
day or night, in subsection 1 of NRS 205.060.
6
[Headnotes 2, 3]

____________________
or railroad car, with intent to commit grand or petit larceny, or any felony, is guilty of burglary.
2. Nighttime' as used in this section means the period between sunset and sunrise.
3. Every burglary committed in the nighttime is burglary of the first degree. Burglary of the first degree is
punishable by imprisonment in the state prison for not less than 1 nor more than [15] 12 years.
4. Every burglary committed in the daytime is burglary of the second degree. Burglary of the second degree
is punishable by imprisonment in the state prison for not less than 1 year nor more than [5] 10 years.
5. Whenever burglary is committed upon a railroad train, vehicle, vehicle trailer, semitrailer or housetrailer,
in motion or in rest, in this state, and it cannot with reasonable certainty be ascertained in what county the crime
was committed, the offender may be arrested and tried in any county through which the railroad train, vehicle,
vehicle trailer, semitrailer or housetrailer may have run on the trip during which such burglary is committed.
(Brackets and emphasis in original, indicating, respectively, deleted and new wording.)

5
Act of Feb. 26, 1968, ch. 22, 3 [1968] Stats. Nev. 45-46:
SEC. 3. NRS 205.060 is hereby amended to read as follows:
205.060 1. Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill,
barn, stable, outhouse or other building, tent, vessel, vehicle, vehicle trailer, semitrailer or housetrailer,or
railroad car, with intent to commit grand or petit larceny, or any felony, is guilty of burglary.
2. Any person convicted of burglary shall be punished by imprisonment in the state prison for not less than
1 year nor more than 10 years. [Emphasis in original.]
3. Whenever burglary is committed upon a railroad train, vehicle, vehicle trailer, semitrailer or housetrailer,
in motion or in rest, in this state, and it cannot with reasonable certainty be ascertained in what county the crime
was committed, the offender may be arrested and tried in any county through which the railroad train, vehicle,
vehicle trailer, semitrailer or housetrailer may have run on the trip during which such burglary is committed.

6
Act of April 25, 1971, ch. 547, 1 [1971] Stats. Nev. 1161-1162:
SECTION 1. NRS 205.060 is hereby amended to read as follows:
205.060 1. Every person who, either by day or night, enters any house, room, apartment, tenement, shop,
warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, vehicle, vehicle trailer,
88 Nev. 188, 193 (1972) Page v. State
[Headnotes 2, 3]
3. Page claims the court erred in admitting Anderson's testimony because Anderson
testified on direct examination that Page was wearing at the time of his arrest a white T-shirt,
dark-colored slacks, and a beret-type cap or hat. On cross-examination, Anderson admitted
that he had signed a statement for the police that Page was wearing tan or light-colored
slacks. While Page's argument is not clear, it appears to be his position now that this so-called
discrepancy in the testimony regarding the color of Page's slacks rendered Anderson's
identification of Page inadmissible. Any discrepancy went only to the weight and not to the
admissibility of Anderson's testimony. See Collins v. State, 88 Nev. 9, 492 P.2d 991 (1972).
[Headnote 4]
4. Finally, Page complains that the court erred in admitting into evidence the pliers and
knife found under the pickup truck. Officer Oren testified that, as he approached Page and his
companion, he saw them throw two objects under the pickup truck. Page later admitted at
trial that he was the one who threw the pliers and knife under the truck. It was not error to
receive the two items in evidence.
The judgment of conviction is affirmed.
Zenoff, C. J., and Batjer, Thompson, and Gunderson, JJ., concur.
____________________
semitrailer or housetrailer, or railroad car, with intent to commit grand or petit larceny, or any felony, is guilty of
burglary. [Emphasis in original.]
2. . . . [No change; same as in 1968 Act, supra.]
3. . . . [No change; same as in 1968 Act, supra.]
____________
88 Nev. 193, 193 (1972) Savage v. Salzmann
DOROTHY SAVAGE, aka DOROTHY REINDERS and DOROTHY MECUM, Appellant,
v. ALBERTA M. SALZMANN and ELSIE K. GIVENS,
Co-Administratrices of the Estate of Bernard Henry Teuscher, Deceased, Respondents.
No. 6672
March 30, 1972 495 P.2d 367
Appeal from judgment of dismissal with prejudice. Second Judicial District Court,
Washoe County; Thomas O. Craven, Judge.
88 Nev. 193, 194 (1972) Savage v. Salzmann
Suit to set aside default judgment. The district court entered judgment dismissing action
with prejudice, and plaintiff appealed. The Supreme Court held that though complaint alleged
that parties had entered into prior agreement which would have obviated default judgment
and that plaintiff had relied upon agreement, in absence of showing of oral agreement
including its terms and where respondents categorically denied existence of agreement,
contention was not sufficient against a motion to dismiss but action should not have been
dismissed with prejudice.
Reversed and remanded with instructions.
Byron K. Meredith and Samuel B. Francovich, of Reno, for Appellant.
Laub, Clark, Puzey & Lane and Dennis R. Haney, of Reno, for Respondents.
1. Judgment.
Upon proof of extrinsic fraud, normal six-month limitation of rule for relief from judgment has no
application, but relief from intrinsic fraud must be sought not later than six months after the decree was
entered. NRCP 60(b).
2. Judgment.
Though complaint alleged that parties had entered into prior agreement which would have obviated
default judgment and that plaintiff had relied upon agreement, in absence of showing of oral agreement
including its terms and where respondents categorically denied existence of agreement, contention was not
sufficient against a motion to dismiss in suit to set aside default judgment, but action should not have been
dismissed with prejudice. NRCP 9(b).
3. Dismissal and Nonsuit.
A failure to plead with sufficient particularity does not warrant a dismissal of action with prejudice.
OPINION
Per Curiam:
On January 22, 1969, respondents Salzmann and Givens, co-administratrices of the Estate
of Bernard Henry Teuscher, obtained a default judgment in a separate action against appellant
Savage. On May 19, 1970, appellant filed suit to set aside that default judgment. Her
complaint alleged that it was filed pursuant to NRCP 60(b) which provides that an
independent action may be brought to set aside a judgment for fraud upon the court. The
complaint further alleges that prior to the entry of said default judgment the parties hereto
had entered into an oral agreement which, if observed, would have obviated the
judgment."
88 Nev. 193, 195 (1972) Savage v. Salzmann
entered into an oral agreement which, if observed, would have obviated the judgment. It was
also alleged that the oral agreement had operated to lull the plaintiff into inactivity so that
some unconscionable advantage would be gained by respondents. No particular facts were
pleaded.
Respondents moved to dismiss the complaint on the grounds that the default judgment
obtained in the prior action operated as res judicata and that plaintiff was estopped from
raising her contentions since she had failed to act within six months following the entry of the
original default judgment. The lower court entered judgment dismissing appellant's action
with prejudice. The sole issue raised on appeal is whether the lower court erred in rendering
its judgment of dismissal with prejudice.
[Headnote 1]
NRCP 60(b) expressly states that it does not limit the power of a court to entertain an
independent action to relieve a party from a judgment, order or proceeding, or to set aside a
judgment for fraud upon the court. The purpose of this part of the rule is to afford relief
upon proof of extrinsic fraud, and the normal six month limitation of Rule 60(b) has no
application. Manville v. Manville, 79 Nev. 487, 387 P.2d 661 (1963). Relief from intrinsic
fraud, under NRCP 60(b), must be sought not later than six months after the decree was
entered.
Extrinsic fraud is defined as fraud by reason of which there was, in fact, no adversary trial
or decision of the issue in the case; where there has never been a real contest in the trial or
hearing of the case. Villalon v. Bowen, 70 Nev. 456, 469, 273 P.2d 409 (1954), citing
United States v. Throckmorton, 98 U.S. 61 (1878). Extrinsic fraud has been held to exist
when the unsuccessful party is kept away from the court by a false promise of compromise, or
such conduct as prevents a real trial upon the issues involved, or any other act or omission
which procures the absence of the unsuccessful party at trial. Further, it consists of fraud by
the other party to the suit, which prevents the losing party either from knowing about his
rights or defenses, or from having a fair opportunity of presenting them upon the trial.
Murphy v. Murphy, 65 Nev. 264, 271, 193 P.2d 850 (1948), quoted with approval in Colby v.
Colby, 78 Nev. 150, 369 P.2d 1019 (1962).
[Headnote 2]
In this case, appellant's complaint alleged that the parties had entered into a prior
agreement which would have obviated the default judgment and that she had relied upon this
agreement. Hence, appellant has alleged facts which if proved would support a finding of
extrinsic fraud.
88 Nev. 193, 196 (1972) Savage v. Salzmann
support a finding of extrinsic fraud. However, appellant has failed to comply with NRCP 9(b)
which provides that in all averments of fraud or mistake, the circumstances constituting
fraud or mistake shall be stated with particularity. Appellant has, without evidence or
affidavit, merely contended that an oral agreement existed between herself and the
respondents prior to the default judgment. In the absence of a showing of the oral agreement,
including its terms, and because respondents have categorically denied the existence of the
agreement, such a contention is not sufficient against a motion to dismiss. Garteiz v. Garteiz,
70 Nev. 77, 254 P.2d 804 (1953); Mazour v. Mazour, 64 Nev. 245, 180 P.2d 103 (1947).
[Headnote 3]
Even if the district court was correct in granting the motion to dismiss, the action should
not have been dismissed with prejudice. Respondents' motion to dismiss did not apprise
appellant of the fact that her complaint was subject to dismissal for failure to state a cause of
action. If it had, appellant could have requested leave to amend her complaint. A failure to
plead with sufficient particularity does not warrant a dismissal of the action with prejudice.
Accordingly, the judgment of dismissal is reversed, and the action is remanded to the
district court with instructions to afford appellant the opportunity to plead with sufficient
particularity the circumstances constituting the alleged fraud.
____________
88 Nev. 196, 196 (1972) Watson v. State
CHARLES L. WATSON, Appellant, v. STATE
OF NEVADA, Respondent.
No. 6317
March 30, 1972 495 P.2d 365
Appeal from judgment of conviction. Sixth Judicial District Court, Humboldt County;
Llewellyn A. Young, Judge.
Prosecution for possession of marijuana. A jury in the district court found defendant guilty
and he was sentenced. Defendant appealed. The Supreme Court, Thompson, J., held that a
charge of possession of narcotic drug requires union of act and intent, and the necessary
intent does not exist when an amount is so minute as to be incapable of being applied to any
use, though chemical analysis may identify a trace of narcotics. The court also held that
unlawful possession of narcotic drug could not be established merely by proof that
contraband was found in a bedroom which was customarily occupied by defendant's
daughters but to which he also had access.
88 Nev. 196, 197 (1972) Watson v. State
drug could not be established merely by proof that contraband was found in a bedroom which
was customarily occupied by defendant's daughters but to which he also had access.
Reversed.
J. Rayner Kjeldsen, of Reno, for Appellant.
Robert List, Attorney General, and William Macdonald, District Attorney, Humboldt
County, for Respondent.
1. Drugs and Narcotics.
Charge of possession of narcotic drug requires union of act and intent, and necessary intent does not exist
when amount is so minute as to be incapable of being applied to any use, though chemical analysis may
identify trace of narcotics. NRS 453.030.
2. Drugs and Narcotics.
Unlawful possession of narcotic drug could not be established merely by proof that contraband was found
in bedroom which was customarily occupied by defendant's daughters but to which he also had access.
NRS 453.030.
OPINION
By the Court, Thompson, J.:
Charles Watson was charged by indictment with possession of marijuana. A jury found
him guilty and the court has pronounced judgment upon the verdict. By this appeal he
contends that the evidence is insufficient to sustain the conviction.
1
For the reasons hereafter
discussed we believe that the judgment must be reversed.
The police, armed with a search warrant, entered Watson's home and discovered 17
marijuana seeds weighing but a fraction of a gram scattered on the floor in the bedroom
occupied by his two teen-age daughters. No other marijuana was found in the house and none
was found on his person. Watson testified that he had never possessed marijuana, used it, nor
did he recognize its appearance. The expert witness for the State explained that the active
ingredient of marijuana, tetrahydrocannabinol, was practically nonexistent in the seeds and
that they were useless as a narcotic. Such is the relevant evidence.
[Headnote 1]
1. The Uniform Narcotic Drug Act that Nevada has adopted declares it to be unlawful for
any person to possess any narcotic drug.
____________________

1
Other errors also are assigned but need not be considered.
88 Nev. 196, 198 (1972) Watson v. State
any narcotic drug. NRS 453.030. Some courts hold that the word any is relevant to the
quantity of narcotic as well as to its type, and extend the statutory ban to possession of even
the most minute traces. People v. Harrington, 190 N.W.2d 343 (Mich.App. 1971); State v.
Young, 427 S.W.2d 510 (Mo. 1968); State v. Dodd, 137 N.W.2d 465 (Wis. 1965); State v.
Winters, 396 P.2d 872 (Utah 1964). Other courts believe that possession of minute quantities
of a narcotic, useless for either sale or consumption, is an insufficient foundation upon which
to sustain a conviction for possession. People v. Leal, 413 P.2d 665 (Cal. 1966); State v.
Larkins, 473 P.2d 854 (Wash.App. 1970); State v. Haddock, 418 P.2d 577 (Ariz. 1966). We
adopt the latter view. The charge of possession of a narcotic drug requires a union of act and
intent. The intent necessary to establish the crime of possession simply does not exist when
the amount is so minute as to be incapable of being applied to any use, even though chemical
analysis may identify a trace of narcotics.
2

[Headnote 2]
2. Equally valid is Watson's contention that unlawful possession may not be established
merely by proof that contraband was found in the bedroom customarily occupied by his
daughters to which he also had access. Guilty knowledge is not presumed. It has to be
established by evidence. In a sense it can be said that one has possession of everything that is
contained in the home or apartment in which he lives but this is not the sense in which
possession' is used in the penal statute. People v. Antista, 276 P.2d 177, 179 (Cal.App.
1954); People v. Fernandez, 342 P.2d 309 (Cal.App. 1959); People v. Savage, 274 P.2d 905
(Cal.App. 1954); People v. Barnett, 257 P.2d 1041 (Cal.App. 1953); People v. Bledsoe, 171
P.2d 950 (Cal.App. 1946).
Therefore, we conclude that the judgment below must be reversed and Charles L. Watson
discharged from custody. Since counsel for the appellant was appointed by the district court
to handle this appeal, we direct that court to compensate counsel as provided by NRS 7.260.
Zenoff, C. J., and Batjer, Mowbray, and Gunderson, JJ., concur.
____________________

2
This case was tried before the 1971 amendment to NRS ch. 453 adding a new section: the amount of a
narcotic drug needed to sustain a conviction of a person for an offense prohibited by this chapter is that amount
necessary for identification as a narcotic drug by a witness qualified to make such identification. See Stats. Nev.
1971, ch. 250.
____________
88 Nev. 199, 199 (1972) Cardinal v. C. H. Masland & Sons
CHARLES W. CARDINAL (and, by Substitution, THERESA CARDINAL, Executrix
of the Estate of CHARLES W. CARDINAL, Deceased) and THERESA CARDINAL,
as Individuals and as General Partners of JOE CARDINAL COMPANY,
a Partnership, Appellants, v. C. H. MASLAND AND SONS,
a Pennsylvania Corporation, Respondent.
No. 6308
March 30, 1972 495 P.2d 364
Action by partners to cancel forged deed of trust covering partnership real property and to
recover such property which was sold under foreclosure sale. The district court granted
summary judgment for defendant, and plaintiffs appealed. The Supreme Court, Mowbray, J.,
87 Nev. 224, 484 P.2d 1075 (1971), reversed and remanded for a limited trial. On rehearing,
the Supreme Court, Thompson, J., held that where partner waited 21 months after acquiring
knowledge of forgery by his brother, who was also a partner in partnership consisting of such
brothers and their mother, of deed of trust covering partnership real property before bringing
suit along with his mother to cancel such deed of trust and recover the partnership property
from corporation which was payee under forging partner's note secured by such deed of trust
and which foreclosed on the deed of trust and bought the property under the foreclosure sale,
such 21-month period was unreasonable time to wait before filing suit, and plaintiffs were
thus deemed to have ratified the forgery.
Opinion on appeal overruled and order of district court granting summary judgment
affirmed.
Lionel Sawyer Collins & Wartman and Jeffrey N. Sheehan, of Las Vegas, for Appellants.
Beckley, DeLanoy & Jemison, of Las Vegas, for Respondent.
Partnership.
Where partner waited 21 months after acquiring knowledge of forgery by his brother, who was also a
partner in partnership consisting of such brothers and their mother, of deed of trust covering partnership
real property before bringing suit along with his mother to cancel such deed of trust and recover the
partnership property from corporation which was payee under forging partner's note secured by such deed
of trust and which foreclosed on the deed of trust and bought the property under the foreclosure sale, such
21-month period was unreasonable time to wait before filing suit, and plaintiff-partners were thus
deemed to have ratified the forgery.
88 Nev. 199, 200 (1972) Cardinal v. C. H. Masland & Sons
suit, and plaintiff-partners were thus deemed to have ratified the forgery.
OPINION ON REHEARING
By the Court, Thompson, J.:
On the appeal of this case we reversed an order of the district court granting summary
judgment to C. H. Masland and Sons in an action commenced by Charles and Theresa
Cardinal to cancel a deed of trust and recover partnership real property sold to Masland under
foreclosure sale. Cardinal v. C. H. Masland & Sons, 87 Nev. 224, 484 P.2d 1075 (1971), two
justices dissenting. We granted rehearing to reconsider that holding. A majority of this court
is now of the view that the district court order granting summary judgment should be
affirmed for the reasons expressed in the dissenting opinion on appeal. Accordingly, we
overrule our opinion on appeal, and affirm the order of the district court granting summary
judgment.
Batjer and Mowbray, JJ., concur.
Chief Justice Zenoff and Justice Gunderson adhere to the majority opinion on appeal
except that the remand for a new trial should not have been limited to the sole issue of
ratification.
Zenoff, C. J., and Gunderson, J.
____________
88 Nev. 200, 200 (1972) Western Land Co. v. Truskolaski
WESTERN LAND CO., LTD., Appellant, v. LEONARD
TRUSKOLASKI, et al., Respondents.
No. 6562
March 31, 1972 495 P.2d 624
Appeal from a temporary restraining order and from a judgment of the Second Judicial
District Court, Washoe County; Emile J. Gezelin, Judge.
Suit brought by subdivision homeowners to enjoin defendant from constructing a shopping
center on a 3.5-acre parcel of land located within the subdivision. The district court entered
judgment in favor of plaintiffs, and defendant appealed. The Supreme Court, Batjer, J., held
that restrictive covenants which specifically restricted entire 40 acres of subdivision to
single-family dwellings and which further prohibited any stores, butcher shops, grocery or
mercantile business of any kind were enforceable, and defendant was properly enjoined
from constructing a shopping center, since, notwithstanding defendant's claim that the
covenants should not be enforced because the subdivision had so radically changed in
recent years as to nullify their purpose, the evidence supported lower court's
determination that the covenants remained of substantial value to the subdivision
homeowners and that the changes which had occurred since 1941 {at which time the
restrictive covenants were imposed) were not so great as to make it inequitable or
oppressive to restrict the property to single-family residential use.
88 Nev. 200, 201 (1972) Western Land Co. v. Truskolaski
Supreme Court, Batjer, J., held that restrictive covenants which specifically restricted entire
40 acres of subdivision to single-family dwellings and which further prohibited any stores,
butcher shops, grocery or mercantile business of any kind were enforceable, and defendant
was properly enjoined from constructing a shopping center, since, notwithstanding
defendant's claim that the covenants should not be enforced because the subdivision had so
radically changed in recent years as to nullify their purpose, the evidence supported lower
court's determination that the covenants remained of substantial value to the subdivision
homeowners and that the changes which had occurred since 1941 (at which time the
restrictive covenants were imposed) were not so great as to make it inequitable or oppressive
to restrict the property to single-family residential use.
Affirmed.
Vargas, Bartlett and Dixon, and Jon J. Key, of Reno, for Appellant.
Breen, Young, Whitehead and Hoy, of Reno, for Respondents.
1. Covenants.
Notwithstanding defendant's claim that covenants which specifically restricted entire 40 acres of
subdivision to single-family dwellings should not be enforced because the subdivision had so radically
changed in recent years as to nullify their purpose, the evidence supported finding that the covenants
remained of substantial value to the homeowners and that the changes which had occurred since the time
the covenants were imposed were not so great as to make it inequitable or oppressive to restrict the
property to single-family residential use.
2. Covenants.
Even though nearby avenues may become heavily traveled thoroughfares, restrictive covenants are still
enforceable if the single-family residential character of the neighborhood has not been adversely affected,
and the purpose of the restrictions has not been thwarted.
3. Covenants.
Although, since 1941 when lots in subdivision were subjected to restrictive covenants specifically
restricting the subdivision to single-family dwellings, commercialization had increased in the vicinity of the
subdivision, such activity did not render the covenants unenforceable, since they were still of real and
substantial value to those homeowners living within the subdivision.
4. Appeal and Error.
Where the evidence is conflicting and the credibility of witnesses is in issue, lower court's judgment will
not be disturbed on appeal if the evidence is substantially in support of the judgment.
88 Nev. 200, 202 (1972) Western Land Co. v. Truskolaski
5. Covenants.
A zoning ordinance cannot override privately-placed restrictions, and a trial court cannot be compelled to
invalidate restrictive covenants merely because of a zoning change.
6. Covenants.
Even if property in question was presently more valuable for commercial than residential purposes, that
fact did not entitle subdivider to be relieved of the restrictions it had created in 1941 on all lots within
subdivision, since substantial benefit inured to the restricted area by enforcement of the restrictive
covenants.
7. Covenants.
In order for community violations to constitute an abandonment of restrictive covenants, they must be so
general as to frustrate original purpose of the agreement.
OPINION
By the Court, Batjer, J.:
[Headnote 1]
The respondents, homeowners in the Southland Heights Subdivision in southwest Reno,
Nevada, brought an action in the district court to enjoin the appellant from constructing a
shopping center on a 3.5-acre parcel of lad located within the subdivision at the northeast
corner of Plumas and West Plumb Lane. In 1941 the appellant subdivided this 40-acre
development, and at that time it subjected the lots to certain restrictive covenants which
specifically restricted the entire 40 acres of the subdivision to single family dwellings and
further prohibited any stores, butcher shops, grocery or mercantile business of any kind.
1
The district court held these restrictive covenants to be enforceable, and enjoined the
appellant from constructing a supermarket or using the 3.5 acres in any manner other than
that permitted by the covenants.
____________________

1
The agreement as to building restrictions for the Southland Heights Subdivision, signed and filed for record
by the Western Land Co., Ltd., provides in pertinent part as follows:
WHEREAS, the said Western Land Co. Ltd. desires to subject said lots to the conditions and restrictions
hereinafter set forth for the benefit of said lots and of the present and subsequent owners thereof.
NOW, THEREFORE, the Western Land Co. Ltd., for the benefits and considerations herein set forth
accrued and accruing to it, does covenant and agree that said lots, pieces, and parcels of land shall be held or
conveyed subject to the following conditions and restrictions, to-wit:
1. No structures shall be erected, altered, placed or permitted to remain on any of said lots or parcels of
ground other than one single family dwelling. . . .
. . . .
4. No store, butcher shop, grocery or mercantile business of any
88 Nev. 200, 203 (1972) Western Land Co. v. Truskolaski
that permitted by the covenants. The appellant contends that the district court erred in
enforcing these covenants because the subdivision had so radically changed in recent years as
to nullify their purpose. We agree with the holding of the district court that the restrictive
covenants remain of substantial value to the homeowners in the subdivision, and that the
changes that have occurred since 1941 are not so great as to make it inequitable or oppressive
to restrict the property to single-family residential use.
In 1941 the Southland Heights subdivision was outside of the Reno city limits. The
property surrounding the subdivision was primarily used for residential and agricultural
purposes, with very little commercial development of any type in the immediate area. At that
time Plumb Lane extended only as far east as Arlington Avenue.
By the time the respondents sought equitable relief in an effort to enforce the restrictive
covenants, the area had markedly changed. In 1941 the city of Reno had a population of
slightly more than 20,000; that figure had jumped to approximately 95,100 by 1969. One of
the significant changes, as the appellant aptly illustrates, is the increase in traffic in the
surrounding area. Plumb Lane had been extended to Virginia Street, and in 1961 the city of
Reno condemned 1.04 acres of land on the edge of the subdivision to allow for the widening
of Plumb Lane into a four-lane arterial boulevard. A city planner, testifying for the appellant,
stated that Plumb Lane was designed to be and now is the major east-west artery through the
southern portion of the city. A person who owns property across Plumas from the subdivision
testified that the corner of Plumb Lane and Plumas is terribly noisy from 5:00 p. m. until
midnight. One of the findings of the trial court was that traffic on Plumb Lane had greatly
increased in recent years.
____________________
kind shall be maintained, carried on, or conducted upon any of said lots or parcels. . . .
. . . .
10. These covenants are to run with the land and shall be binding upon all the parties and all persons
claiming under them until January 1st, 1966, at which time said covenants shall be automatically extended for
successive periods of ten years unless by a vote of the majority of the then owners of the lots it is agreed to
change the said covenants in whole or in part; . . . and whether or not it be so expressed in the deeds or other
conveyances of said lots, the same shall be absolutely subject to the covenants, conditions, and restrictions which
run with and are appurtenant to said lots or every part thereof as herein expressed as fully as if expressly
contained in proper and obligatory covenants and conditions in each and every deed, contract, and conveyance
of or concerning any part of the said land or the improvements to be made thereon.
88 Nev. 200, 204 (1972) Western Land Co. v. Truskolaski
Another significant change that had occurred since 1941 was the increase in commercial
development in the vicinity of the subdivision. On the east side of Lakeside Drive, across
from the subdivision property, is a restaurant and the Lakeside Plaza Shopping Center. A
supermarket, hardware store, drug store, flower shop, beauty shop and a dress shop are
located in this shopping center. Still further east of the subdivision, on Virginia Street, is the
Continental Lodge, and across Virginia Street is the Park Lane Shopping Center.
Even though traffic has increased and commercial development has occurred in the
vicinity of the subdivision, the owners of land within Southland Heights testified to the
desirability of the subdivision for residential purposes. The traffic density within the
subdivision is low, resulting in a safe environment for the children who live and play in the
area. Homes in Southland Heights are well cared for and attractively landscaped.
The trial court found that substantial changes in traffic patterns and commercial activity
had occurred since 1941 in the vicinity of the subdivision. Although it was shown that
commercial activity outside of the subdivision had increased considerably since 1941, the
appellant failed to show that the area in question is now unsuitable for residential purposes.
[Headnotes 2, 3]
Even though nearby avenues may become heavily traveled thoroughfares, restrictive
covenants are still enforceable if the single-family residential character of the neighborhood
has not been adversely affected, and the purpose of the restrictions has not been thwarted.
Burden v. Lobdell, 235 N.E.2d 660 (Ill. App. 1968); Gonzales v. Gackle Drilling Company,
353 P.2d 353 (N.M. 1960); Continental Oil Co. v. Fennemore, 299 P. 132 (Ariz. 1931).
Although commercialization has increased in the vicinity of the subdivision, such activity has
not rendered the restrictive covenants unenforceable because they are still of real and
substantial value to those homeowners living within the subdivision. West Alameda Heights
H. Ass'n. v. Board of Co. Com'm., 458 P.2d 253 (Colo. 1969); Burden v. Lobdell, supra;
Hogue v. Dreeszen, 73 N.W.2d 159 (Neb. 1955).
The appellant asks this court to reverse the judgment of the district court and declare as a
matter of law that the objects and purposes for which the restrictive covenants were originally
imposed have been thwarted, and that it is now inequitable to enforce such restrictions against
the entity that originally created them. This we will not do. The record will not permit us to
find as a matter of law that there has been such a change in the subdivision or for that
matter in the area to relieve the appellant's property of the burden placed upon it by the
covenants.
88 Nev. 200, 205 (1972) Western Land Co. v. Truskolaski
in the subdivision or for that matter in the area to relieve the appellant's property of the
burden placed upon it by the covenants. There is sufficient evidence to sustain the findings of
the trial court that the objects and purposes of the restrictions have not been thwarted, and
that they remain of substantial value to the homeowners in the subdivision.
The case of Hirsch v. Hancock, 343 P.2d 959 (Cal.App. 1959) as well as the other
authorities relied upon by the appellant [Key v. McCabe, 356 P.2d 169 (Cal. 1960); Strong v.
Hancock, 258 P. 60 (Cal. 1927); Downs v. Kroeger, 254 P. 1101 (Cal. 1927)] are inapposite
for in those cases the trial court found many changes within as well as outside the subdivision
and concluded from the evidence that the properties were entirely unsuitable and undesirable
for residential use and that they had no suitable economic use except for business or
commercial purposes, and the appellate courts in reviewing those cases held that the evidence
supported the findings and sustained the judgments of the trial courts.
On the other hand, in the case of West Alameda Heights H. Ass'n. v. Board of Co.
Com'm., supra, upon facts similar to those found in this case, the trial court decided that the
changed conditions in the neighborhood were such as to render the restrictive covenants void
and unenforceable. The appellate court reversed and held that the trial court misconceived
and misapplied the rule as to change of conditions and said, 458 P.2d at 256: As long as the
original purpose of the covenants can still be accomplished and substantial benefit will inure
to the restricted area by their enforcement, the covenants stand even though the subject
property has a greater value if used for other purposes. See also Rombauer v. Compton
Heights Christian Church, 40 S.W.2d 545 (Mo. 1931); Porter v. Johnson, 115 S.W.2d 529
(Mo.App. 1938); Finley v. Batsel, 353 P.2d 350 (N.M. 1960); Southwest Petroleum Co. v.
Logan, 71 P.2d 759 (Okla. 1937); Burden v. Lobdell, supra.
[Headnote 4]
There is substantial evidence in the record to support the trial court's findings of fact and
conclusions of law that the covenants were of real and substantial value to the residents of the
subdivision. Where the evidence is conflicting and the credibility of the witnesses is in issue,
the judgment will not be disturbed on appeal if the evidence is substantially in support of the
judgment of the lower court. Bangston v. Brown, 86 Nev. 653, 473 P.2d 829 (1970); Brandon
v. Travitsky, 86 Nev. 613, 472 P.2d 353 (1970); Havas v. Alger, 85 Nev.
88 Nev. 200, 206 (1972) Western Land Co. v. Truskolaski
627, 461 P.2d 857 (1969). Here the appellant has not carried its burden of showing that the
subdivision is not now suitable for residential purposes because of changed conditions.
[Headnote 5]
In another attempt to show that the restrictive covenants have outlived their usefulness, the
appellant points to actions of the Reno city council. On August 1, 1968, the council adopted a
Resolution of Intent to reclassify this 3.5-acre parcel from R-1 [residential] to C-1(b)
[commercial]. The council never did change the zoning, but the appellant contends that since
the council did indicate its willingness to rezone, it was of the opinion that the property was
more suitable for commercial than residential use. This argument of the appellant is not
persuasive. A zoning ordinance cannot override privately-placed restrictions, and a trial court
cannot be compelled to invalidate restrictive covenants merely because of a zoning change.
Rice v. Heggy, 322 P.2d 53 (Cal.App. 1958).
[Headnote 6]
Another of the appellant's arguments regarding changed conditions involves the value of
the property for residential as compared to commercial purposes. A professional planning
consultant, testifying for the appellant, stated that the land in question is no longer suitable for
use as a single-family residential area. From this testimony the appellant concludes that the
highest and best use for the land is non-residential. Even if this property is more valuable for
commercial than residential purposes, this fact does not entitle the appellant to be relieved of
the restrictions it created, since substantial benefit inures to the restricted area by their
enforcement. West Alameda Heights H. Ass'n. v. Board of Co. Com'm., supra; Cawthon v.
Anderson, 84 S.E.2d 66 (Ga. 1954).
In addition to the alleged changed circumstances, the appellant contends that the restrictive
covenants are no longer enforceable because they have been abandoned or waived due to
violations by homeowners in the area. Paragraph 3 of the restrictive agreement provides that
no residential structure shall be placed on a lot comprising less than 6,000 square feet. Both
lot 24 and lot 25 of block E contain less than 6,000 square feet and each has a house located
on it. This could hardly be deemed a violation of the restrictions imposed by the appellant
inasmuch as it was the appellant that subdivided the land and caused these lots to be smaller
than 6,000 feet. Paragraph 7 of the agreement provides that a committee shall approve any
structure which is moved onto the subdivision, or if there is no committee, that the
structure shall conform to and be in harmony with existing structures.
88 Nev. 200, 207 (1972) Western Land Co. v. Truskolaski
if there is no committee, that the structure shall conform to and be in harmony with existing
structures. The appellant did show that two houses were moved on to lots within the
subdivision, but the appellant failed to show whether a committee existed and if so approved
or disapproved, or whether the houses failed to conform or were out of harmony with the
existing structures. Finally, in an effort to prove abandonment and waiver, the appellant
showed that one house within the subdivision was used as a painting contractor's office for
several years in the late 1940's, and that more recently the same house had been used as a
nursery for a baby sitting business. However, the same witnesses testified that at the time of
the hearing this house was being used as a single-family residence.
[Headnote 7]
Even if the alleged occurrences and irregularities could be construed to be violations of the
restrictive covenants they were too distant and sporadic to constitute general consent by the
property owners in the subdivision and they were not sufficient to constitute an abandonment
or waiver. In order for community violations to constitute an abandonment, they must be so
general as to frustrate the original purpose of the agreement. Thodos v. Shirk, 79 N.W.2d 733
(Iowa 1956).
Affirmed.
Zenoff, C. J., and Mowbray, Thompson, and Gunderson, JJ., concur.
____________
88 Nev. 207, 207 (1972) Moore v. Board of Trustees
GEORGE L. MOORE, Appellant, v. THE BOARD OF TRUSTEES OF CARSON-TAHOE
HOSPITAL, a Public Hospital, and WILLIAM SCHULTZ, WILLIAM YOUNG,
GENE GOLD, JOSEPH LITTLEFIELD, and MARY GIALY, Constituting
the Members of Said Board, Respondents.
No. 6684
April 6, 1972 495 P.2d 605
Appeal from order of the First Judicial District Court, Carson City; Richard L. Waters, Jr.,
Judge.
Proceeding on petition for writ of mandate to force board of trustees of public hospital to
restore petitioner-doctor's medical staff privileges. The district court denied request, and
doctor appealed. The Supreme Court, Mowbray, J., held that board, in terminating, on
grounds of unprofessional conduct, staff privileges of doctor, who, with regard to attempt
to administer spinal anesthetic, unsuccessfully attempted spinal puncture several times
and performed minimal skin preparation and placed fingers on spinal needle without
wearing sterile gloves, and who had scheduled surgery that was cancelled on basis that
he was in no condition physically or mentally to perform such surgery, had not acted
arbitrarily or without standard to guide it, though doctor's acts complained of were not
expressly defined and prohibited in bylaws, rules and regulations promulgated by
hospital.
88 Nev. 207, 208 (1972) Moore v. Board of Trustees
board, in terminating, on grounds of unprofessional conduct, staff privileges of doctor, who,
with regard to attempt to administer spinal anesthetic, unsuccessfully attempted spinal
puncture several times and performed minimal skin preparation and placed fingers on spinal
needle without wearing sterile gloves, and who had scheduled surgery that was cancelled on
basis that he was in no condition physically or mentally to perform such surgery, had not
acted arbitrarily or without standard to guide it, though doctor's acts complained of were not
expressly defined and prohibited in bylaws, rules and regulations promulgated by hospital.
Affirmed.
[Rehearing denied May 3, 1972]
Thompson and Gunderson, JJ., dissented.
Carl F. Martillaro, of Carson City, for Appellant.
Michael E. Fondi, District Attorney, and Laxalt, Berry & Allison, of Carson City, for
Respondents.
1. Hospitals.
Board of trustees of public hospital, in terminating, on grounds of unprofessional conduct, staff privileges
of doctor, who, with regard to attempt to administer spinal anesthetic, unsuccessfully attempted spinal
puncture several times and performed minimal skin preparation and placed fingers on spinal needle without
wearing sterile gloves, and who scheduled surgery that was cancelled on basis that he was in no condition
physically or mentally to perform such surgery, had not acted arbitrarily or without standard to guide it,
though doctor's acts complained of were not expressly defined and prohibited in bylaws, rules and
regulations promulgated by hospital. NRS 450.010 et seq., 450.160, 450.180, subd. 4, 450.440,
subd. 1.
2. Hospitals.
Right to enjoy medical staff privileges in community hospital is not an absolute right, but is subject to
reasonable rules and regulations of hospital.
3. Hospitals.
Board of trustees of a community hospital may not act arbitrarily or unreasonably deny medical staff
privileges to doctor.
OPINION
By the Court, Mowbray, J.:
The appellant, George L. Moore, is a doctor of medicine and is licensed to practice in the
State of Nevada. He also enjoyed medical staff privileges at the Carson-Tahoe Hospital
until they were terminated on February 19, 1970, by action of the Hospital Board of
Trustees.
88 Nev. 207, 209 (1972) Moore v. Board of Trustees
enjoyed medical staff privileges at the Carson-Tahoe Hospital until they were terminated on
February 19, 1970, by action of the Hospital Board of Trustees. Doctor Moore filed a petition
in the district court seeking a writ of mandate in an effort to force the Board to restore his
medical staff privileges. The district judge denied his request and hence this appeal.
The issues presented for our consideration may be summarized under two headings: (1) Is
the action of a governing board of a public hospital arbitrary, capricious, and unreasonable
when it terminates the medical staff privileges of a physician on the grounds of
unprofessional conduct, where the acts constituting the conduct complained of are not
expressly defined and prohibited in the bylaws, rules, and regulations promulgated by the
hospital? (2) Is there sufficient evidence in this case to support the findings of the Board?
1. Doctor Moore was charged with 12 alleged acts of unprofessional conduct, and he was
found guilty of Charges Nos. 7 and 11 of the complaint. Those charges read as follows:
7. On or about July 26, 1969, you attempted to administer to an O.B. patient, ready to
deliver a baby, a spinal anesthetic without benefit of sterile technique in that you prepared the
medication, performed a minimal skin preparation and placed your fingers on the spinal
needle, all without wearing sterile gloves. Additionally, you attempted the spinal puncture
several times, all attempts being unsuccessful.
11. On or about July 28, 1969, you had a meeting with the Chief of Staff, Doctor
Thomas Hines, and Doctor William King, at approximately 7:30 a.m. in the morning, after
which Doctor Hines, with the concurrence of Doctor King, cancelled certain surgery you had
scheduled on the basis that you were in no condition physically or mentally to perform
surgery.
2. The Carson-Tahoe Hospital is a public hospital and is governed by the provisions of
NRS 450.010 through 450.700. NRS 450.160 provides as follows:
The board of hospital trustees shall make and adopt such bylaws, rules and regulations for
its own guidance and for the government of the hospital, and such rules and regulations
governing the admission of physicians to the staff, as may be deemed expedient for the
economic and equitable conduct thereof, not inconsistent with NRS 450.010 to 450.510,
inclusive, or the ordinances of the city or town wherein such hospital is located.
NRS 450.180, subsection 4, further provides:
The board of hospital trustees shall have the power:
. . .
88 Nev. 207, 210 (1972) Moore v. Board of Trustees
4. To control the admission of physicians, surgeons and interns to the staff by
promulgating appropriate rules, regulations and standards governing such appointments.
The Hospital Board of Trustees, as the governing body of the institution, promulgated
bylaws, rules, and regulations designed to govern the medical staff of the Hospital.
NRS 450.440, subsection 1, provides:
1. The board of hospital trustees shall organize a staff of physicians composed of every
regular practicing physician in the county in which the hospital is located who meets the
standards fixed by the rules and regulations laid down by the board of hospital trustees.
The delegated power to establish admission standards for medical staff members impliedly
includes the power to continue to regulate membership after admission. It is axiomatic under
the rule of statutory construction that a power conferred by statute necessarily carries with it
the power to make it effective and complete. See Checker, Inc. v. Public Serv. Comm'n, 84
Nev. 623, 629-630, 446 P.2d 981, 985 (1968), citing Koelling v. Board of Trustees, 146
N.W.2d 284 (Iowa 1966).
[Headnote 1]
Article 4, Section 5, of the Hospital's By-Laws, Rules & Regulations Governing the
Medical Staff provides in part that any Medical Staff member who is guilty of
unprofessional conduct, may have his privileges reviewed[,] altered or rescinded by the Board
of Trustees on recommendation of the Medical Staff. Doctor Moore was formally charged
by a complaint that set forth with specificity in 12 counts the acts with which he was charged.
He was present with counsel at all stages of the proceedings and was afforded the right of
cross-examination of witnesses and the right to call witnesses in his own behalf. There is no
procedural due process challenge presented in this case. Rather, Doctor Moore complains that
he was denied substantive due process because the acts of which he was found guilty
(numbered paragraphs 7 and 11 of the complaint) were not specifically proscribed in the
Hospital's By-Laws, Rules & Regulations Governing the Medical Staff, and therefore they
cannot constitute a predicate for the Board's conclusion that he was guilty of unprofessional
conduct. We do not agree.
In North Broward Hosp. Dist. v. Mizell, 148 So.2d 1 (Fla. 1962), the court held that the
governing body of the hospital should be permitted certain discretion under the broad
standard [for] the good of the hospital or the patients therein, and that such words were
essentially the same in meaning, when used in such context, as those used in other
instances to authorize suspension for "unprofessional conduct."
88 Nev. 207, 211 (1972) Moore v. Board of Trustees
that such words were essentially the same in meaning, when used in such context, as those
used in other instances to authorize suspension for unprofessional conduct. The court ruled
that the particular bylaw provision set an objective standard upon which a board could act and
by which a physician would have sufficient notice to guide him in his conduct. The court
said, 148 So.2d at 5:
. . . There is at least equal difficulty in precise definition of professional fitness for staff
membership in any given institution . . . Detailed description of prohibited conduct is
concededly impossible, perhaps even undesirable in view of rapidly shifting standards of
medical excellence and the fact that a human life may be and quite often is involved in the
ultimate decision of the board.
The Oregon Supreme Court, in a case involving a revocation of a physician's license to
practice medicine, said in In re Mintz, 378 P.2d 945, 948 (Ore. 1963):
. . . [T]he variety of forms which unprofessional conduct may take makes it infeasible to
attempt to specify in a statute or regulation all of the acts which come within the meaning of
the term. The fact that it is impossible to catalogue all of the types of professional misconduct
is the very reason for setting up the statutory standard in broad terms and delegating to the
board the function of evaluating the conduct in each case. . . .
If the standard unprofessional conduct is sufficiently objective in the case of a
revocation of a physician's license to practice, it should be a sufficiently objective standard to
guide a hospital board in acting upon the revocation of a physician's medical staff privileges
in a community hospital.
Today, in response to demands of the public, the hospital is becoming a community health
center. The purpose of the community hospital is to provide patient care of the highest
possible quality. To implement this duty of providing competent medical care to the patients,
it is the responsibility of the institution to create a workable system whereby the medical staff
of the hospital continually reviews and evaluates the quality of care being rendered within the
institution. The staff must be organized with a proper structure to carry out the role delegated
to it by the governing body. All powers of the medical staff flow from the board of trustees,
and the staff must be held accountable for its control of quality. The concept of corporate
responsibility for the quality of medical care was forcibly advanced in Darling v. Charleston
Community Memorial Hosp.
88 Nev. 207, 212 (1972) Moore v. Board of Trustees
Hosp. 211 N.E.2d 253 (Ill. 1965), wherein the Illinois Supreme Court held that hospitals and
their governing bodies may be held liable for injuries resulting from imprudent or careless
supervision of members of their medical staffs. The role of the hospital vis-a-vis the
community is changing rapidly. The hospital's role is no longer limited to the furnishing of
physical facilities and equipment where a physician treats his private patients and practices
his profession in his own individualized manner.
[Headnotes 2, 3]
The right to enjoy medical staff privileges in a community hospital is not an absolute right,
but rather is subject to the reasonable rules and regulations of the hospital. Licensing, per se,
furnishes no continuing control with respect to a physician's professional competence and
therefore does not assure the public of quality patient care. The protection of the public must
come from some other authority, and that in this case is the Hospital Board of Trustees. The
Board, of course, may not act arbitrarily or unreasonably in such cases. The Board's actions
must also be predicated upon a reasonable standard.
In Selden v. City of Sterling, 45 N.E.2d 329 (Ill.App. 1942), the court ruled that the
recommendation of the medical staff executive committee, based on the observations of its
members of another physician's work, established a sufficient standard upon which to act in
the granting of medical staff privileges. In the present case, Dorothy Haman, a nurse
anesthetist, testified regarding Doctor Moore's unsuccessful attempts to administer the spinal
anesthetic. She also testified regarding the procedure normally utilized. Dr. Thomas Hines
testified that the procedure used by Doctor Moore substantially deviated from the accepted
practice. Doctor King likewise testified. These three witnesses established the objective
standard for administering spinal anesthetics. Doctor Moore failed to establish any other
standard. Rather, he admitted deviating from the standard procedure but felt that he was
justified in doing so. Doctors Hines and King testified that Doctor Moore was in no physical
or mental condition to perform surgery that he had scheduled on the morning of July 28,
1969. Doctor Hines, in conference with Doctor Moore, so advised him, and it was agreed that
the scheduled surgery be canceled. No physician should perform surgery when he is not
physically or mentally fit to do so.
After reviewing the record, it is clear that the Board did not act arbitrarily in this case, or
without a standard to guide it, and that the record does contain sufficient evidence to support
the charge of violation of the standard of professional care required in such cases.
88 Nev. 207, 213 (1972) Moore v. Board of Trustees
the charge of violation of the standard of professional care required in such cases. Therefore,
the judgment of the district court is affirmed.
1

Zenoff, C. J., and Batjer, J., concur.
Thompson, J., with whom Gunderson, J., agrees, dissenting:
Dr. Moore, a Board certified physician and surgeon who specializes in obstetrics and
gynecology, and is licensed to practice in Nevada, appeals from a judgment denying his
petition for a writ of mandate to compel his admission to membership on the medical staff of
Carson-Tahoe Hospital, a public hospital.
2
He was excluded from staff privileges for
unprofessional conduct in that on one occasion he administered a spinal anesthetic without
wearing sterile gloves, and on another occasion he had appeared at the hospital to perform
scheduled surgery when in no condition physically or mentally to do so. The spinal anesthetic
was administered without damage to the patient. Dr. Moore acquiesced in the postponement
of the scheduled surgery and successfully performed the operation at a later time.
1. It is apparent that important rights and policies are involved. The effect of expulsion
from a medical staff can be disastrous for it may follow the doctor to other areas and have the
result of denying to a licensed physician qualified to practice in Nevada the right to fully
exercise his profession. Conditions of modern medicine almost make it imperative that a
doctor have a hospital in which he can practice. On the other hand, a hospital cannot function
without its medical staff whose most important responsibility is to see that the staff members
conform to certain standards which the community has the right to expect.
The Board of Hospital Trustees enjoys the power to control the admission of physicians
to the staff by promulgating appropriate rules,
____________________

1
Of course, this ruling is not to be interpreted as barring forever Doctor Moore from seeking staff privileges
at the Hospital. He may, if he wishes, at a later date submit his application for readmission to the Board for its
consideration.

2
A doctor has a right to treat his patients in a public hospital so long as he conforms to the reasonable rules
and regulations of the hospital. Findlay v. Board of Sup'rs of County of Mohave, 230 P.2d 526 (Ariz. 1951);
Ware v. Benedikt, 280 S.W.2d 234 (Ark. 1955); Hamilton County Hospital v. Andrews, 84 N.E.2d 469 (Ind.
1949). And, of course, a writ of mandate may issue to compel the admission of a party to the use and enjoyment
of a right or office to which he is entitled and from which he is unlawfully precluded. . . . NRS 34.160; State v.
City of Parkersburg, 136 S.E.2d 783 (W.Va. 1964).
88 Nev. 207, 214 (1972) Moore v. Board of Trustees
the admission of physicians to the staff by promulgating appropriate rules, regulations and
standards [NRS 450.180(4); 450.440(1)] and concomitantly, possesses the power to exclude
physicians who do not comply with appropriate rules thus promulgated. The By-Laws, Rules
& Regulations Governing the Medical Staff promulgated by the Carson-Tahoe Board of
Trustees, in relevant part, provide only that any Medical Staff member who is guilty of
unprofessional conduct may have his privileges reviewed, altered or rescinded by the Board
of Trustees on recommendation of the Medical Staff. One searches in vain for a description
of unprofessional conduct even in general terms. Herein lies the difficulty with the instant
matter. A hospital should not be permitted to adopt standards for the exclusion of doctors
which are so vague and ambiguous as to provide a substantial danger of arbitrary
discrimination in their application. Rosner v. Eden Township Hospital District, 375 P.2d 431
(Cal. 1962); Jacobs v. Martin, 90 A.2d 151 (N.J.Sup. 1952).
Our legislature has defined unprofessional conduct for the guidance of the Board of
Medical Examiners in exercising its disciplinary powers. NRS 630.030; 630.300. A definition
was deemed essential in order to guard against discriminatory action by the Board of Medical
Examiners. A suitable definition is equally essential to protect a hospital staff member from
arbitrary conduct by a Board of Hospital Trustees of a public hospital. Absent that definition,
the Board is clothed with almost unlimited power, susceptible of abuse.
2. The acts for which Dr. Moore was expelled from the staff point to the need for a
definition of unprofessional conduct. His acquiescence in the request not to perform
scheduled surgery was an act of compliance rather than an act of disobedience. And, the
administration of an anesthetic without sterile gloves can be no more than an isolated instance
of negligence which did not result in injury or damage. Such in isolated act without injury
cannot be a reasonable basis for revocation of staff privileges, for if it is, and if enforced
equally and without discrimination, medical staffs will disappear entirely. Every professional
man errs from time to time.
3. The Board is concerned with its liability to third persons for the misconduct of its staff
members. Darling v. Charleston Community Memorial Hospital, 211 N.E.2d 253 (Ill. 1965).
This is a legitimate concern, but it possesses no relevance to the case at hand. Neither of the
instances relied upon by the Board to justify the expulsion of Dr. Moore could possibly result
in Board liability to others.
88 Nev. 207, 215 (1972) Moore v. Board of Trustees
result in Board liability to others. Consequently, this concern of the Board points to the
arbitrariness of its action rather than to a reason for sustaining it. Cf. Boswell v. Bd. Med.
Ex., 72 Nev. 20, 293 P.2d 424 (1956).
The judgment should be reversed with directions to issue a writ of mandate compelling the
Board to admit Dr. Moore to membership on the medical staff.
____________
88 Nev. 215, 215 (1972) Burns v. State
WILLIAM BURNS, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 6682
April 6, 1972 495 P.2d 602
Appeal from judgment of First Judicial District Court, Churchill County; Frank B.
Gregory, Judge.
Defendant was convicted in the district court of grand larceny and was adjudged a habitual
criminal, and he appealed. The Supreme Court, Mowbray, J., held that where statements
defendant made at police station were not result of any police interrogation, but were
voluntary, statements were properly received in evidence, notwithstanding that defendant was
not given warnings of right to counsel and the right to remain silent; but that where there was
no affirmative showing that defendant was represented by counsel or that he had validly
waived his right to counsel in prior felony proceedings resulting in convictions, the prior
felony convictions could not be considered in determining whether defendant was a habitual
criminal.
Affirmed as to jury's verdict; reversed as to habitual criminal adjudication and
remanded to district judge for resentencing.
Noel E. Manoukian, of Zephyr Cove, for Appellant.
Robert List, Attorney General, Carson City; Dennis E. Evans, District Attorney, Churchill
County, for Respondent.
1. Criminal Law.
Volunteered statements are not barred by the Fifth Amendment and they are not affected by United States
Supreme Court decision requiring warnings of right to counsel and right to remain silent. U.S.C.A.Const.
Amend. 5.
88 Nev. 215, 216 (1972) Burns v. State
2. Criminal Law.
Where statements defendant made at police station were not result of any police interrogation, but were
voluntary, statements were properly received in evidence, notwithstanding that defendant was not given
warnings of right to counsel and right to remain silent.
3. Larceny.
Evidence was sufficient to support conviction of grand larceny against defendant who allegedly picked
pocket of cabaret patron, was chased down the street by cabaret owner and bartender and threw out wad of
bills that defendant stated was the money that he had stolen.
4. Criminal Law.
A jury's verdict may not be disturbed where substantial evidence is adduced to support it.
5. Criminal Law.
Where trial court properly sustained defense counsel's objections to district attorney's argumentative
questions as to whether defendant was lying and where defendant's only answer was a negative one, failure
to admonish jury to disregard the colloquy between district attorney and defendant was not reversible error.
6. Criminal Law.
Prosecutors should not engage in argumentative questioning.
7. Criminal Law.
Instruction which was directed to weight jury could give the testimony of all the witnesses, not any
particular witness, did not result in unfair comment with respect to defendant's testimony.
8. Criminal Law.
Where defendant has been charged as a habitual criminal as well as convicted of substantive crime, trial
court must sentence on the substantive crime charged and then invoke the recidivist statute to determine the
penalty. NRS 207.010, subd. 1.
9. Criminal Law.
Where there was no affirmative showing that defendant was represented by counsel or that he had validly
waived his right to counsel in prior felony proceedings resulting in convictions prior felony convictions
could not be considered in determining whether defendant was a habitual criminal. NRS 207.010. subd.
1.
OPINION
By the Court, Mowbray, J.:
William Burns picked the pocket of John Loter while the two were in a cabaret in Fallon,
Nevada. Burns obtained approximately $120. He was charged with grand larceny, tried to a
jury, and found guilty. Thereafter, in a separate hearing before the district judge, Burns was
adjudged to be a habitual criminal because he had been convicted of two prior felonies.
88 Nev. 215, 217 (1972) Burns v. State
NRS 207.010, subsection 1.
1
The district judge thereupon sentenced Burns to 25 years'
imprisonment in the State Prison. Burns has appealed, challenging the validity of his
conviction, as well as his sentence. We affirm the jury's verdict, but we reverse the habitual
criminal adjudication and remand the case to the district judge for resentencing.
1. Burns and Loter were patronizing the Club Horseshoe in Fallon, Nevada, on February
1, 1971, the date of the crime. While Loter was having a beer at the bar, Burns entered the
room and, enroute to the bar, brushed against Loter. Loter finished his beer and left the
club, but as he walked down the street he discovered that his wallet was missing. He
immediately walked back into the club and announced his loss to the owner's wife, the owner,
and the bartender. About that time, Burns emerged from the rest room and was accosted at
once by Loter, who demanded, Young man, if you have got my wallet I would like to have it
back. Burns remained silent. The bartender telephoned the police, whereupon Burns fled the
scene. The owner then went into the rest room and found Loter's empty wallet in a
wastebasket. The club owner and an extra bartender chased Burns down the street. They were
soon joined by Police Officer Alfred Mason in a squad car and were successful in overtaking
Burns. Burns was placed under arrest and taken to the police station. Officer Mason, whose
testimony was corroborated by Chief Donald Mills, testified at the trial that, as the police
were booking Burns, . . . [Burns] threw out to one side a wad of bills and he stated to me,
This is the money that I stole off the old man at the club. Give the money back to him and
give me a break.' or words to that effect. The wad contained four $20 and five $1 bills.
Burns was then placed in the lockup room. Meanwhile, Loter had arrived at the station. He
was shown the money and claimed that he had had more in his wallet.
____________________

1
NRS 207.010, subsection 1, as in effect on May 11, 1971, the date of sentencing:
Every person convicted in this state of any crime of which fraud or intent to defraud is an element, or of
petit larceny, or of any felony, who shall previously have been twice convicted, whether in this state or
elsewhere, of any crime which under the laws of the situs of the crime or of this state would amount to a felony,
or who shall previously have been three times convicted, whether in this state or elsewhere, of petit larceny, or of
any misdemeanor or gross misdemeanor of which fraud or intent to defraud is an element, shall be adjudged to
be an habitual criminal and shall be punished by imprisonment is (sic) the state prison for not less than 10
years. (Note: This subsection was amended effective July 1, 1971, by adding the phrase nor more than 20
years. See ch. 123, 1 [1971] Stats. Nev. 173.)
88 Nev. 215, 218 (1972) Burns v. State
had more in his wallet. Burns was then taken to an interrogation room and, upon entering,
said to Chief Mills, Here. Here's the rest of it, holding forth another $20 bill. He was told to
strip. He did so, and Loter's remaining $20 bill was found in his underwear. Burns then said,
according to Officer Mason, That's it.
[Headnotes 1, 2]
2. Burns claims as one of his assignments of error that the statements he volunteered to
the officers were improperly received in evidence because he was not given the Miranda
warning.
2
Miranda v. Arizona, 384 U.S. 436 (1966). We do not agree. Volunteered
statements are not barred by the Fifth Amendment, and they are not affected by Miranda. See
Miranda, supra, at 478. The statements Burns made at the police station were not the result of
any police interrogation. They were voluntary and volunteered. State v. Billings, 84 Nev.
55, 59, 436 P.2d 212, 214 (1968).
[Headnotes 3,4]
3. Burns has challenged the sufficiency of the evidence. He claims it will not support the
verdict. A reading of the record demonstrates otherwise. A jury's verdict may not be disturbed
where substantial evidence is adduced to support it. Fairman v. State, 87 Nev. 627, 491 P.2d
1283 (1971), citing Collins v. State, 87 Nev. 436, 488 P.2d 544 (1971); Graham v. State, 86
Nev. 290, 467 P.2d 1016 (1970); McGuire v. State, 86 Nev. 262, 468 P.2d 12 (1970).
4. The district attorney, in cross-examining Burns, asked him the following questions:
Q. Do you know why there would be any reason to lie on this witness stand?
A. I ain't lying.
Q. Do you know of any reason why you would?
A. No.
Q. Wouldn't be because it is very important that the jury believe you?
Mr. Mackedon [attorney for defendant]: Objection. It is very argumentative.
Court: Sustained.
[Headnote 5]
The district attorney's questions were argumentative, and the district judge properly
sustained defense counsel's objections.
____________________

2
Counsel for Burns did not object to the admissibility of Burns's statements during his trial.
88 Nev. 215, 219 (1972) Burns v. State
the district judge properly sustained defense counsel's objections. Burns on appeal claims that
the judge committed reversible error in failing to admonish the jury to disregard the colloquy
between the district attorney and Burns. We disagree, inasmuch as Burns's only answer was a
negative one.
[Headnote 6]
We might say in passing that when prosecutors engage in this sort of examination they are
treading on dangerous ground and therefore should refrain from such conduct.
[Headnote 7]
Burns also claims that Instruction No. 7 resulted in unfair comment with respect to his
testimony. Not so. Instruction No. 7 is the instruction given in almost every criminal case; it
is directed to the weight the jury may give the testimony of all the witnesses, not any
particular one.
3

We conclude that the record on appeal fails to demonstrate any irregularities in the trial
that would constitute a ground for reversing the jury's verdict. The guilty verdict must stand.
____________________

3
Instruction No. 7:
The jury are the sole and exclusive judges of the effect and value of evidence addressed to them and of the
credibility of the witnesses who have testified in the case. The term witness' includes every person whose
testimony under oath has been received as evidence, whether by examination here in court or through deposition.
The character of the witnesses, as shown by the evidence, should be taken into consideration for the purpose
of determining their credibility, that is whether or not they have spoken the truth. The jury may scrutinize the
manner of witnesses while on the stand, and may consider their relation to the case, if any, and also their degree
of intelligence. A witness is presumed to speak the truth. This presumption, however, may be repelled by the
manner in which he testifies; his interest in the case, if any, or his bias or prejudice, if any, for or against one or
any of the parties; by the character for truth, honesty or integrity, or by contradictory evidence. A witness may be
impeached also by evidence that at other times he has made statements inconsistent with his present testimony as
to any matter material to the cause on trial; and a witness may be impeached also by proof that he has been
convicted of a felony.
A witness wilfully false in one material part of his or her testimony is to be distrusted in others. The jury
may reject the whole of the testimony of a witness who has wilfully sworn falsely as to a material point. If you
are convinced that a witness has stated what was untrue as to a material point, not as a result of mistake or
inadvertence, but wilfully and with the design to deceive, then you may treat all of his or her testimony with
distrust and suspicion, and reject all unless you shall be convinced that he or she has in other particulars sworn to
the truth.
88 Nev. 215, 220 (1972) Burns v. State
[Headnotes 8, 9]
5. The 25-year sentence, however, may not stand. Preliminarily, as this court said in
Hollander v. State, 82 Nev. 345, 353, 418 P.2d 802, 807 (1966): The trial court must
sentence on the substantive crime charged. . . , and then invoke the recidivist statute to
determine the penalty. The State introduced in evidence exemplified copies of the two prior
felony convictions. This court announced in Hamlet v. State, 85 Nev. 385, 387, 455 P.2d 915,
916 (1969), in following the mandate of the High Court in Burgett v. Texas, 389 U.S. 109
(1967), that there must be an affirmative showing that the defendant was represented by
counsel or that he validly waived his right to counsel in the prior felony proceedings. If the
record does not so show, that felony conviction may not be considered in determining
whether the defendant is a habitual criminal. Neither of the prior felony convictions
introduced in evidence met the test of Hamlet and Burgett.
4
We therefore must reverse the
lower court's adjudication that Burns is a habitual criminal, and we remand the case for a
resentencing solely on the grand larceny charge.
6. Since counsel for the appellant was appointed by the district judge to take this appeal,
we direct that court to compensate counsel as provided by NRS 7.260.
Zenoff, C. J., and Batjer, Thompson, and Gunderson, JJ., concur.
____________________

4
Counsel for the State frankly and forthrightly conceded that the mandates of Hamlet and Burgett were not
met in this case. He further admitted in oral argument that he did not know whether they could be satisfied by a
further evidentiary hearing on remand.
____________
88 Nev. 220, 220 (1972) State v. Ricci
STATE OF NEVADA, Petitioner, v. JOSEPH DONALD
RICCI and GARY STEPHEN ELLINGTON, Respondents.
No. 6760
April 6, 1972 495 P.2d 614
Original proceeding by the State for writs of certiorari, mandamus and prohibition arising
after the district court remanded a murder prosecution to the justice of the peace for a second
preliminary examination. The Supreme Court, Thompson, J., held that even if prosecutor's
statement concerning credibility of witnesses influenced the magistrate in deciding probable
cause, the district court exceeded its jurisdiction in declining to rule on defendants'
habeas corpus petitions and in remanding the case for second preliminary hearing.
88 Nev. 220, 221 (1972) State v. Ricci
cause, the district court exceeded its jurisdiction in declining to rule on defendants' habeas
corpus petitions and in remanding the case for second preliminary hearing.
Writs granted.
Robert List, Attorney General, Robert E. Rose, District Attorney, and Kathleen M. Wall,
Deputy District Attorney, Washoe County, for Petitioner.
Sanford, Sanford & Fahrenkopf, of Reno, for Respondent Joseph Donald Ricci.
Vargas, Bartlett & Dixon, of Reno, for Respondent Gary Stephen Ellington.
1. Habeas Corpus.
District court does not possess statutory authority to order a second preliminary examination where the
sole issue tendered to the court is whether the petitioners for habeas corpus relief had been committed
without reasonable or probable cause, and the court's duty is to decide the issue and either discharge the
petitioners, or continue them under restraint. NRS 34.500, subd. 7, 34.550, 34.640.
2. Habeas Corpus.
Even if prosecutor's statement concerning credibility of witnesses influenced the magistrate in deciding
probable cause, the district court exceeded its jurisdiction in declining to rule on defendants' habeas corpus
petitions and in remanding the case for second preliminary hearing. NRS 34.020, subd. 2, 34.160,
34.320, 34.500, subd. 7, 34.550, 34.640.
OPINION
By the Court, Thompson, J.:
The respondents stand jointly charged with murder. Following a preliminary examination,
the Justice of the Peace found probable cause to believe that the offense had been committed
and that they committed it. Consequently, he ordered them to answer in the district court.
There, they requested release by habeas corpus upon the sole ground that the evidence
received at the preliminary examination did not establish probable cause to hold them for
trial. The district court declined to rule upon that contention. Instead, it remanded the case to
the Justice of the Peace for another preliminary examination with the direction to hear and
weigh the testimony provided by both sides and weigh and judge the credibility of all
witnesses and evidence presented."
88 Nev. 220, 222 (1972) State v. Ricci
and evidence presented. That ruling precipitated this original proceeding for writs of
certiorari, mandamus and prohibition. The State contends that certiorari is appropriate since
the district court exceeded its jurisdiction in entering the remand order (NRS 34.020(2)); that
mandamus should issue to compel the district court to decide the single contention presented
by the habeas petitions (NRS 34.160); and that a second preliminary examination should be
prohibited (NRS 34.320). All agree that the challenged order is not one for which review by
appeal has been provided.
It is not suggested that a jurisdictional defect existed in the preliminary examination or that
it was irregularly conducted. Both sides offered evidence and a conflict on material points
developed. The prosecutor argued that the credibility of witnesses was not the concern of the
Justice's Court. This argument was disputed by defense counsel. However, the prosecutor's
statement apparently prompted the district court to decline to rule upon the subsequent
petitions for habeas corpus grounded upon the insufficiency of the evidence to establish
probable cause, and to remand the matter for a second preliminary examination with the
direction to weigh the evidence and the credibility of witnesses. The record of the preliminary
examination does not contain the slightest hint that the Justice of the Peace was influenced by
the prosecutor's argument in finding probable cause to hold the respondents for trial.
1

[Headnotes 1, 2]
A district court does not possess statutory authority to order a second preliminary
examination where the sole issue tendered to the court is whether the petitioners for habeas
relief have been committed without reasonable or probable cause.
2
The court's duty is to
decide the issue and either discharge the petitioners, NRS 34.500(7); 34.640, or continue
them under restraint, NRS 34.550; 34.640. Indeed, were we to assume that the prosecutor's
statement concerning the credibility of witnesses somehow influenced the magistrate in
deciding probable cause {an unwarranted assumption upon this record), the correction
thereof is by review in the district court through appropriate petitions for habeas corpus.
Cf. Bonnenfant v. State, S6 Nev. 393
____________________

1
In the district court the prosecutor offered the Justice of the Peace as a witness on that point, but the Court
would not allow his testimony.

2
In certain instances a district court may order a preliminary examination where none has been held. NRS
171.208. Moreover, if it appears that there is a defect in the institution of the prosecution, or in the indictment,
information or complaint, the court may grant a motion addressed to that point and order the accused held in
custody or that his bail be continued for a specified time pending the filing of a new indictment, information or
complaint. NRS 174.145. These statutes do not bear upon the case at hand.
88 Nev. 220, 223 (1972) State v. Ricci
witnesses somehow influenced the magistrate in deciding probable cause (an unwarranted
assumption upon this record), the correction thereof is by review in the district court through
appropriate petitions for habeas corpus. Cf. Bonnenfant v. State, 86 Nev. 393, 469 P.2d 401
(1970). If probable cause does not exist, the district court will order the petitioners
discharged. If it does exist, they will be held for trial. We find no authority in support of the
order entered below and conclude that it was entered in excess of jurisdiction. Accordingly,
we grant the requested writs and direct the district court to rule upon the petitions for habeas
corpus tendered to that court by Ricci and Ellington, i.e., to decide whether the record of the
preliminary examination contains sufficient evidence to sustain the magistrate's finding of
probable cause to hold them for trial. The remand of the district court for a second
preliminary examination is voided and that examination is prohibited.
Zenoff, C. J., and Batjer, Mowbray, and Gunderson, JJ., concur.
____________
88 Nev. 223, 223 (1972) Sargeant v. Sargeant
HARRY H. SARGEANT, Appellant and Cross-Respondent,
v. MATILDA E. SARGEANT, Respondent and Cross-Appellant.
No. 6567
April 7, 1972 495 P.2d 618
Appeal from findings of fact, conclusions of law and decree of divorce. Second Judicial
District Court, Washoe County; John E. Gabrielli, Judge.
The district court granted wife a divorce as party least at fault and, inter alia, awarded her a
lump sum for support and maintenance, and husband appealed. The Supreme Court, Zenoff,
C. J., held that where husband was worth $3,000,000 at time of divorce, where wife's
meager savings consisted of stock worth $42,000, from which she received annual
dividends of $1,700, and savings and checking accounts totaling $2,200, and where total
hours expended by wife's attorneys numbered 753, plus court appearances, conferences,
depositions and review of many exhibits and records spanning a 29-year period, awarding
wife's counsel $5,000 in preliminary attorneys' fees, plus $47,500 at conclusion of suit for a
total of $52,500, was not an abuse of discretion.
88 Nev. 223, 224 (1972) Sargeant v. Sargeant
of $52,500, was not an abuse of discretion. It was further held that order compelling husband
to establish a $50,000 trust fund for child over whom he and his wife had accepted
responsibility could not be supported on basis of husband's oral agreement to support child,
even though agreement established his standing in place of parent (loco parentis), since
husband could abandon burdens attendant on such status at any time; nor did bare promises of
future support convert such status to a degree of permanence on theory that husband was
estopped from withdrawing from promises.
Affirmed in part; reversed in part.
Thompson, J., dissented in part.
[Rehearing denied May 3, 1972]
Gene Barbagelata, of Reno, and Peter Echeverria, of Reno, for Appellant and
Cross-Respondent.
Johnson and Sloan, of Reno, and John J. Hurtak and Norman K. Rutkin, of Miami,
Florida, for Respondent and Cross-Appellant.
1. Divorce.
A wife is not required to show necessitous circumstances in order to authorize an award for an attorney's
fee in a divorce proceeding; overruling Allis v. Allis, 81 Nev. 653, 408 P.2d 916 (1965). NRS
125.040.
2. Divorce.
Amount to be awarded wife's attorney in a divorce proceeding is within discretion of trial court. NRS
125.040.
3. Divorce.
Where husband was worth $3,000,000 at time of divorce, where wife's meager savings consisted of
stock worth $42,000, from which she received annual dividends of $1,700, and savings and checking
accounts totaling $2,200, and where total hours expended by wife's attorneys numbered 753, plus court
appearances, conferences, depositions and review of many exhibits and records spanning a 29-year period,
awarding wife's counsel $5,000 in preliminary attorneys' fees, plus $47,500 at conclusion of suit for a total
of $52,500, was not an abuse of discretion.
4. Executors and Administrators.
Under statute providing that in event of death of either party or subsequent remarriage of wife, all
alimony awarded by decree shall cease unless it has otherwise been ordered by court, an alimony award
payable in installments can presumably be ordered a charge against estate of husband in order that her
subsistence be insured in event of his death or his voluntary dissolution of his assets in recrimination
against her. NRS 125.150, subd. 4.
5. Divorce.
Dour attitude of aged husband to his wife 20 years his junior, despite her many years of care and
affection before they were married and after, together with potential problems {she lived
in Florida) which would attend possible litigious harassment via Nevada courts
justified trial court's exercise of discretion in awarding wife a lump sum support and
maintenance award of $331,200, payable in nine installments, where trial court
found, inter alia, that overall attitude and conduct of husband illustrated some
possibility that he might attempt to liquidate, interfere, hypothecate or give away his
assets to avoid payment of any alimony or support obligations to wife.
88 Nev. 223, 225 (1972) Sargeant v. Sargeant
married and after, together with potential problems (she lived in Florida) which would attend possible
litigious harassment via Nevada courts justified trial court's exercise of discretion in awarding wife a lump
sum support and maintenance award of $331,200, payable in nine installments, where trial court found,
inter alia, that overall attitude and conduct of husband illustrated some possibility that he might attempt to
liquidate, interfere, hypothecate or give away his assets to avoid payment of any alimony or support
obligations to wife. NRS 125.150, subd. 4.
6. Divorce.
A court may set aside husband's separate property for wife's support when need is shown and an order for
support is present. NRS 125.150, subd. 3.
7. Divorce.
Where it was apparent that lump sum alimony award was the setting apart of the husband's separate
property for support of wife, award was a proper order within statute. NRS 125.150, subd. 3.
8. Divorce; Executors and Administrators.
Since an award of alimony shall cease on death of either husband or wife or on her remarriage unless
otherwise ordered by court, Supreme Court would order that provisions of divorce decree awarding a lump
sum alimony to wife would become a charge against husband's estate and would further order that husband
set lump sum apart in a trust from which monthly installments could be paid to wife as periodic alimony
installments until her death or her remarriage and, in event of husband's prior death, monthly payments
were to continue as a charge against his estate payable from appropriated fund until wife died or fund was
exhausted. NRS 125.150, subd. 3.
9. Adoption; Divorce.
Even though there was evidence of husband's affection for child over whom he and his wife had assumed
responsibility, doctrine of equitable adoption did not apply, and order compelling husband to establish a
$50,000 trust fund for child in divorce proceeding was not valid, in absence of even an unfulfilled promise
to adopt.
10. Parent and Child.
Order compelling husband to establish a $50,000 trust fund for child over whom he and his wife had
accepted responsibility could not be supported on basis of husband's oral agreement to support child, even
though agreement established his standing in place of parent (loco parentis), since husband could abandon
burdens attendant on such status at any time; nor did bare promises of future support convert such status to
a degree of permanence on theory that husband was estopped from withdrawing from promises.
OPINION
By the Court, Zenoff, C. J.:
The parties to this appeal were married September 25, 1940 and resided in Florida for the
majority of their married life.
88 Nev. 223, 226 (1972) Sargeant v. Sargeant
The day before the marriage the parties voluntarily executed an antenuptial agreement
whereby they agreed that their separate property would remain separate. It must be noted that
it is apparent from the record that Matilda Sargeant was not aware nor permitted to be aware
of the agreement's significance. At the time of the marriage Harry Sargeant was worth
$285,000, but at the time of the divorce his net worth was $3,000,000. He managed all
financial affairs during the marriage and made allowances to her sufficient for their food,
clothing and housing and for the care of a child whom they brought into their home.
Marital difficulties began in 1960 and continued for approximately eight years when he,
surprisingly to her, commenced divorce proceedings in Nevada. He was 81 years of age at the
time. After an extensive contest the trial court granted her the divorce as the party least at
fault, gave her a lump sum support and maintenance award of $331,200 payable in nine
installments, awarded the wife's counsel $47,500, plus $5,000 preliminary fees, and ordered
the creation of a $50,000 trust fund for the benefit of the foster child, Michael Estes, for his
education and support.
The husband contests the awarding of attorneys' fees, traveling expenses and costs when it
was not shown that the wife was in necessitous circumstances, that the $52,500 attorneys' fees
to her were excessive, that the preliminary alimony of $400 per month, coupled with
residence privileges for herself and Michael was error, and also that the lump sum award of
alimony and the trust for Michael were invalid.
1. The trial court awarded Matilda's counsel $5,000 preliminary attorneys' fees, plus
$47,500 at the conclusion of the suit for a total of $52,500, which Harry claims the court had
no right to give and which were, in any event, excessive. Keeping in mind that he was worth
$3,000,000 at the time of the divorce, her meager savings, as described by the trial court,
consisted of stock worth $42,000, from which she received annual dividends of $1,700 and
savings and checking accounts totaling $2,200.
[Headnote 1]
Our historical standard of measuring preliminary and final allowances was stated in Allis
v. Allis, 81 Nev. 653, 408 P.2d 916 (1965), wherein we said the husband's greater wealth is
not relevant to the issue of the wife's need of money to pay her counsel fee, but that the wife
must show necessitous circumstances to authorize such an award. See also Cranmer v.
Cranmer, 79 Nev. 128, 379 P.2d 474 (1963). The term necessitous circumstances does not
appear in Nevada's suit money statute, NRS 125.040,1 nevertheless, this court for many
years has written in that requirement.
88 Nev. 223, 227 (1972) Sargeant v. Sargeant
money statute, NRS 125.040,
1
nevertheless, this court for many years has written in that
requirement. However, when we hue to the strict letter of necessitous circumstances we are
out of step with the majority of the nation's community. Cf. Jolley v. Jolley, 363 P.2d 1020
(Idaho 1961); Cudahy v. Cudahy, 258 N.W. 168 (Wis. 1935); Stuber v. Stuber, 244 P.2d 650
(Utah 1952); Sweeley v. Sweeley, 170 P.2d 469 (Cal. 1946); Gregg v. Gregg, 272 S.W.2d
855 (Mo. 1954); Sigesmund v. Sigesmund, 115 Cal.App.2d 628, 252 P.2d 713 (1953); Bell v.
Bell, 328 P.2d 115 (Mont. 1958); Schmidt v. Schmidt, 321 P.2d 895 (Wash. 1958); Small v.
Small, 485 P.2d 1365 (Kan. 1971); Lowe v. Lowe, 182 S.E.2d 75 (S.C. 1971); Swanson v.
Swanson, 464 S.W.2d 225 (Mo. 1971); Smith v. Smith, 474 P.2d 619 (Colo. 1970).
According great respect to the trial court's discretion we now declare Allis v. Allis, supra,
overruled and all cases therein cited as to the pertinent point now discussed are likewise
overruled. The wife must be afforded her day in court without destroying her financial
position. This would imply that she should be able to meet her adversary in the courtroom on
an equal basis. Here, without the court's assistance, the wife would have had to liquidate her
savings and jeopardize the child's and her future subsistence still without gaining parity with
her husband.
[Headnotes 2, 3]
Neither is the final amount excessive for the total hours expended by her attorneys
numbered 753, plus court appearances, conferences, depositions and the review of many
exhibits and records spanning a 29-year period. The amount of counsel fees is within the
court's discretion, Fox v. Fox, 81 Nev. 186, 198, 401 P.2d 53 (1965), and we will not say in
view of all of the circumstances that the court abused its discretion in making the award or in
the amount. Sigesmund v. Sigesmund, supra.
____________________

1
NRS 125.040: Allowances and suit money for wife during pendency of action. In any suit for divorce
now pending, or which may hereafter be commenced, the court, or judge, may, in its discretion, upon
application, of which due notice shall have been given to the attorney for the husband if he has an attorney, or to
the husband if he has no attorney, at any time after the filing of the complaint, require the husband to pay such
sums as may be necessary to enable the wife to carry on or defend such suit, and for her support and for the
support of the children of the parties during the pendency of such suit. A court or judge may direct the
application of specific property of the husband to such object, and may also direct the payment to the wife for
such purpose of any sum or sums that may be due and owing the husband from any quarter, and may enforce all
orders made in this behalf as provided in NRS 125.060.
88 Nev. 223, 228 (1972) Sargeant v. Sargeant
2. A second point of major proportion is appellant's objection to payment of alimony in a
lump sum instead of periodic installments.
[Headnote 4]
NRS 125.150(4) provides: In the event of the death of either party or the subsequent
remarriage of the wife, all alimony awarded by the decree shall cease unless it has otherwise
been ordered by the court. Presumably, an alimony award payable in installments can be
ordered a charge against the estate of the husband in order that her subsistence be insured in
the event of his death or his voluntary dissolution of his assets in recrimination against her.
In justifying the lump sum award the trial court found that It is conceivable the plaintiff
could die within a short period of time; that the overall attitude and conduct of this plaintiff
illustrates some possibility that he might attempt to liquidate, interfere, hypothecate or give
away his assets to avoid payment of any alimony or support obligations to defendant. Under
the plaintiff's view that the defendant never was nor now is entitled to any consideration it is
foreseeable that there may be further litigation on modification of any alimony or support
award the court may make because of change of circumstances; that defendant intends to
remain a resident of Florida, and if the Nevada courts retain jurisdiction, such litigation
would be expensive to the defendant and that it would be most advantageous to the parties to
settle differences on alimony with finality.
The husband's life expectancy was 4.9 years, the wife's life expectancy was 23.1 years. The
trial court awarded the alimony on the basis of $1,200 per month or $14,337.66 per year
multiplied by her life expectancy, totaling $331,100, having taken into consideration factors
including her age, health, length of marriage, standard of living, assets of each party, health
insurance policies, ownership of furnishings, earning capacity of each party and conduct of
the parties.
This court has previously approved lump sum alimony awards. Fenkell v. Fenkell, 86 Nev.
397, 469 P.2d 701 (1970); Winn v. Winn, 86 Nev. 18, 467 P.2d 601 (1970); Shane v. Shane,
84 Nev. 20, 435 P.2d 753 (1968); see also Reeves v. Reeves, 399 S.W.2d 641 (Mo.App.
1966); Udell v. Udell, 151 So.2d 863 (Fla.App. 1963); Broida v. Broida, 388 S.W.2d 617
(Ky. 1965); cf. Cruikshank v. Cruikshank, 121 P.2d 25, 27 (Cal.App. 1942).
88 Nev. 223, 229 (1972) Sargeant v. Sargeant
[Headnote 5]
The dour attitude of the aged husband to his wife 20 years his junior, despite her many
years of care and affection before they were married and after, together with the potential
problems (she lives in Florida) which would attend the possible litigious harassment via the
Nevada courts justify the trial court's exercise of discretion that we will not disturb. The
finding of fault by the trial court predominated against the husband, the voluminous
testimony and evidence weighed in her favor. His bitterness foretells future harassment.
2

[Headnotes 6-8]
Under NRS 125.150(3) the court may set apart the husband's separate property for the
wife's support when the need is shown (Lewis v. Lewis, 71 Nev. 301, 289 P.2d 414 (1955);
Jacobs v. Jacobs, 83 Nev. 73, 422 P.2d 1005 (1967)) and an order for support is present.
Zahringer v. Zahringer, 76 Nev. 21, 348 P.2d 161 (1960); Thorne v. Thorne, 74 Nev. 211,
326 P.2d 729 (1958); Stojanovich v. Stojanovich, 86 Nev. 789, 476 P.2d 950 (1950). It is
apparent to this court that the lump sum alimony award was the setting apart of the husband's
separate property for the support of the wife and, as such, was a proper order within the
statute. Further, since the statute also provides that an award of alimony shall cease upon the
death of either husband or wife or upon her remarriage unless otherwise ordered by the court
we do herewith order that the provisions of this decree shall forthwith become a charge
against the husband's estate. In addition, to further supplement these protective features it is
ordered that the husband shall forthwith set apart in a trust approved by the district court
herein the lump sum heretofore decreed from which monthly installments shall be paid to the
wife as periodic alimony installments until her death or her remarriage. In the event of the
husband's prior death, of course, the monthly payments will continue as a charge against his
estate payable from the appropriated fund until the wife dies or the fund is exhausted.
____________________

2
J. DuCanto, The case for More Frequent Use of Installment Payment of Lump Sum Alimony in Divorce
Settlement Agreements and Judgments, 6 Law Notes 35, 40 (1970): The use of lump sum settlements in divorce
cases has achieved continuing and unvarying acceptance and support by the Courts of virtually every state in the
nation, both by way of enforcement of the provisions of such agreements irrespective of lamentable and valid
changes of circumstances on the part of either party to them, as well as by reason of numerous court decisions
disavowing the inherent power of a court to change their terms or conditions. (Footnotes omitted.)
88 Nev. 223, 230 (1972) Sargeant v. Sargeant
the appropriated fund until the wife dies or the fund is exhausted. Thus, the husband's
property is being set apart for the support of his wife as authorized by law.
3. There were no children born of the marriage but the Sargeants in 1958 assumed
responsibility for the care, control and custody of Clarence Michael Estes, now also known as
Michael C. Sargeant, who was then four years of age, and 15 years of age at the time of trial.
Michael was the son of Matilda Sargeant's niece. The child was abandoned by his natural
parents who are still alive, but their whereabouts are in doubt. With the parents' consent
Michael had lived with his grandmother, Matilda's sister, until he came to live with these
parties.
While the evidence of their intention to adopt him is inconclusive he was treated as their
natural born son in all respects. Harry Sargeant provided full support, maintenance and
education for the child. Neither the grandparents nor the natural parents ever requested his
return. He was given their name and Harry Sargeant had established trust funds for the child's
education and had made provision for him in his will. When these proceedings were
instituted Harry promised to buy Michael a home and an automobile but he also threatened to
cancel those promises and to cease future support and all other benefits being provided if
Matilda defended against his divorce action.
The question now is whether the trial court's order compelling the husband to establish a
$50,000 trust fund for the boy is valid. We must hold that it is not.
[Headnotes 9, 10]
Evidence of the husband's affection for the child is manifold, but in the absence of even an
unfulfilled promise to adopt, the doctrine of equitable adoption cannot apply. Bower v.
Landa, 78 Nev. 246, 371 P.2d 657 (1962); Fuller v. Fuller, 247 A.2d 767 (D.C.Ct.App. 1968).
The trial court instead sought to support the $50,000 trust fund on the oral agreement to
support the boy. This, of course, establishes their standing in the place of a parent (loco
parentis) but one may abandon the burdens attendant upon such status at any time. Farris v.
Farris, 365 P.2d 14 (Wash. 1961); Franklin v. Franklin, 253 P.2d 337 (Ariz. 1963); Chestnut
v. Chestnut, 147 S.E.2d 269 (S.C. 1966); see also 18 S.C.L.Rev. 541 (1966). Nor will bare
promises of future support convert this status to a degree of permanence on the theory that the
husband is estopped from withdrawing from those promises. Fuller v. Fuller, supra; cf.
Clevenger v. Clevenger, 189 Cal.App.2d 65S, 11 Cal.Rptr.
88 Nev. 223, 231 (1972) Sargeant v. Sargeant
658, 11 Cal.Rptr. 707, 90 ALR2d 569 (1961); also People v. Sorensen, 437 P.2d 495 (Cal.
1968); Niesen v. Niesen, 157 N.W.2d 660 (Wis. 1968). Wilson v. Wilson, 14 Ohio App. 2d
148, 237 N.E.2d 421, 426 (1968).
Affirmed in part, reversed as to the trust for the child and remanded to the trial court to
execute a modified decree in accordance with this opinion and for such other and further
proceedings as the trial court shall deem necessary for the purposes hereof.
Batjer, Mowbray, and Gunderson, JJ., concur.
Thompson, J., dissenting in part:
I agree with the majority except for that part of the opinion overruling firmly established
law [NRS 125.040; Allis v. Allis, 81 Nev. 653, 408 P.2d 916 (1965), and the cases therein
cited] in order to approve the trial court award of fees for the wife's counsel. There is, of
course, no duty imposed upon this court to follow decisions which are absurd or obsolete.
Blind adherence to the requirements of stare decisis is not consonant with justice. On the
other hand, precedent should not be changed unless the policies which underlie the proposed
new rule are strong enough to outweigh the policy supporting the existing rule and the
disadvantages of making a change. The majority opinion does not speak to this point.
I am not aware that the law regarding suit money as it existed until today worked in such a
way as to preclude a wife from enjoying her day in court with competent representation.
Consequently, I perceive no good reason for a change of law, and fear that such change may
result in the mischief of redistributing the separate wealth of a party litigant simply because
the opportunity to do so is present.
____________
88 Nev. 231, 231 (1972) Todkill v. Todkill
GLADYS TODKILL, Appellant, v. BURTON
A. TODKILL, Respondent.
No. 6446
April 7, 1972 495 P.2d 629
Appeal from a decree of divorce of the Eighth Judicial District Court, Clark County;
William R. Morse, Judge.
The Supreme Court, Batjer, J., held that where husband testified that his transfer of family
home and one-sixth interest in certain corporation to wife was in trust but that he had no
recollection why he transferred his one-sixth interest in corporation to wife, and wife,
through her testimony, raised issue that home was a birthday present to her and that
interest in corporation was given her for her financial security, husband's evidence was
not so clear and convincing as to rebut presumption of an absolute gift to wife of disputed
property.
88 Nev. 231, 232 (1972) Todkill v. Todkill
in certain corporation to wife was in trust but that he had no recollection why he transferred
his one-sixth interest in corporation to wife, and wife, through her testimony, raised issue that
home was a birthday present to her and that interest in corporation was given her for her
financial security, husband's evidence was not so clear and convincing as to rebut
presumption of an absolute gift to wife of disputed property.
Affirmed in part, reversed in part and remanded.
[Rehearing denied May 3, 1972]
Morton Galane and Miriam Shearing, of Las Vegas, for Appellant.
Edwin A. Adamson and Charles W. Deaner, of Las Vegas, for Respondent.
1. Husband and Wife.
Properties acquired during marriage are presumed to be community property and such presumption can
only be overcome by clear and certain proof.
2. Appeal and Error.
If there is clear and convincing evidence to support lower court's finding, when adjudicating marital
property rights, that property purchased during marriage was separate property, Supreme Court will not
reverse such determination on appeal.
3. Husband and Wife.
Evidence in divorce proceeding supported finding that property acquired by parties during marriage,
regardless of how title was held, was husband's separate property. NRS 123.130, 123.220.
4. Trusts.
In divorce proceeding in which property rights were adjudicated, evidence was insufficient to support
finding that transfer of husband's one-sixth interest in corporation and all of his interest in family home
were prompted by desire on part of husband to avoid seizure by his creditors and that there was an oral
agreement between parties that wife would hold property in trust for husband and would retransfer it to him
at his request.
5. Husband and Wife.
When a husband transfers title to his separate property from his name into his wife's name, he is
presumed to intend a gift to her, even though his original intent was to defraud creditors, and such
presumption, while rebuttable, can be overcome only by clear and convincing evidence.
6. Husband and Wife.
Husband has burden of proof to rebut presumption that his transfer of title to his separate property from
his name into wife's name is a gift to her.
7. Husband and Wife.
Where husband testified that his transfer of family home and one-sixth interest in certain corporation to
wife was in trust but that he had no recollection why he transferred his one-sixth interest
in corporation to wife, and wife, through her testimony, raised issue that home was a
birthday present to her and that interest in corporation was given her for her
financial security, husband's evidence was not so clear and convincing as to rebut
presumption of an absolute gift to wife of disputed property.
88 Nev. 231, 233 (1972) Todkill v. Todkill
that he had no recollection why he transferred his one-sixth interest in corporation to wife, and wife,
through her testimony, raised issue that home was a birthday present to her and that interest in corporation
was given her for her financial security, husband's evidence was not so clear and convincing as to rebut
presumption of an absolute gift to wife of disputed property.
8. Appeal and Error.
Finding that a husband's transfer of his separate property to his wife during marriage is not a gift will be
sustained on appellate level if supported by clear and convincing evidence but will be reversed if it is not.
OPINION
By the Court, Batjer, J.:
On October 8, 1970, the district court entered a decree of divorce granting Burton A.
Todkill, the respondent, a divorce, finding all property in dispute to be the sole and separate
property of respondent, concluding as a matter of law that there was no community property
belonging to the parties and awarding Gladys Todkill, the appellant, alimony and attorney
fees.
Both parties appear to be satisfied with the termination of the marital relationship, and
neither the divorce, the alimony nor attorney fees are an issue in this appeal which is taken
only from that portion of the decree designating certain assets to be the separate property of
respondent and awarding all of that property to him.
Respondent has been a resident of Nevada since 1948. He and appellant were married in
this state in July of 1961. At the time of the marriage appellant was working as a receptionist
in a doctor's office in Las Vegas, Nevada, and respondent was managing his automobile
agency (Todkill Lincoln-Mercury) in the same city. After the marriage, appellant continued
working for only about two months and respondent continued to manage his automobile
agency until it was sold in October, 1966. Respondent worked full time at the agency and
received approximately $3,000 per month, plus a bonus of an undetermined amount at the
end of each year. It is undisputed that in 1944 he inherited $750,000 in stock from his father's
estate and that the automobile agency was sold in 1966 for five ($5.00) dollars, plus the
assumption by the purchaser of nearly a million dollars in liabilities.
In June of 1962, respondent purchased a lot at 7082 Mira Vista, Sierra Vista Ranchos,
Clark County, Nevada for $10,000. He testified that this money came from the sale of stock
which he inherited from his father.
88 Nev. 231, 234 (1972) Todkill v. Todkill
which he inherited from his father. He took title to this property solely in his name. A loan of
$42,400 was obtained in July of 1962 for the purpose of constructing a house on the property.
This loan was secured by a deed of trust on the property signed by both respondent and
appellant. Respondent testified that he borrowed an additional $42,000, secured by his
inherited stock, to complete the construction of the home. The house and lot were transferred
by deed from respondent to appellant on October 27, 1965. Respondent claims he initiated
the transfer to protect the property from creditors, as his business was failing at the time.
Appellant denied that there was any conversation regarding safekeeping from creditors and
testified that the house and lot were a birthday present. (Her birthday is October 28.) After the
transfer, respondent continued to pay the taxes and to make all payments on the promissory
note secured by the trust deed. Prior to October, 1966, these payments were made from the
bank account where he deposited his salary and bonuses. The district court found that the
home property had been transferred to appellant to avoid its seizure by respondent's creditors,
and that appellant had orally agreed to hold it in trust for respondent and to reconvey it at his
request. The district court then went on to find this property to be the sole and separate
property of respondent.
In 1962, respondent, with two other persons, formed C. B. C. Inc., for the purpose of
purchasing, improving and selling parcels of real estate. The corporation purchased a parcel
of land on Paradise Road in Clark County. Respondent testified that he used proceeds from
the sale of his inherited stock, plus a bank loan secured by more of the same stock, to
purchase his interest in the corporation. Appellant testified that she was not sure where
respondent obtained the funds to make this purchase. Stubs in the C. B. C. Inc., stock record
book show that a one-sixth interest in the corporation was issued to respondent on November
29, 1965, and a one-sixth interest was, on the same date, issued to appellant. Respondent
testified that he could not recall why his wife had been given a one-sixth interest. He did
testify, however, that he recalled turning the certificates over to her for the purpose of
safekeeping. On January 12, 1966, the stock certificate issued to respondent was transferred
by him to appellant. Appellant testified that the transfer was made because respondent wanted
her to have some security, but respondent stated he could not recall why the transfer was
made.
88 Nev. 231, 235 (1972) Todkill v. Todkill
The sole asset of C. B. C. Inc., consisting of the Paradise Road property, was sold in June
of 1969 for $800,000. Although appellant held in her name a certificate evidencing a
one-third interest, respondent personally received $302,779.74 from the sale. This represented
a return of his invested capital plus his share of the profit. The district court awarded the
proceeds to respondent and held that the transfer was merely to avoid creditors and that there
was an oral agreement to reconvey.
Respondent purchased property at 2000 Las Vegas Boulevard South in 1950. It was at this
location that he operated his automobile agency. On November 9, 1962, after his marriage to
appellant, he purchased a parcel of property near the agency referred to as the Commerce
Street property. Title to this property was taken in the name of Todkill Lincoln-Mercury, Inc.
Respondent owned all of the stock in that corporation. The purchase of the Commerce Street
property was financed by encumbering that property and the Las Vegas Boulevard South
(agency) property with a deed of trust. The payments toward reducing that encumbrance were
made by Todkill Lincoln-Mercury, Inc., from 1962 until the agency was sold in 1966.
In May of 1968, the parties discussed the purchase of a lot adjoining the 7082 Mira Vista
property. Respondent admitted that he was short on cash and testified that he told appellant
she would have to get the $750 for the down payment. Appellant did consummate the
transaction, and she put the property in her name. Respondent alleged that appellant used his
money to make the purchase, but appellant claimed that she made all payments and paid all
taxes with her own money which respondent had given her for security. The district court
found this lot to be the sole and separate property of respondent.
Appellant contends that the district court erred in finding no community property
belonging to the parties, but instead finding all property purchased by the parties during the
marriage to be the sole and separate property of respondent and holding that the property
conveyed by respondent to appellant during marriage was held by her in trust for him.
[Headnote 1]
It is undisputed that the home property at 7082 Mira Vista, the C. B. C. Inc., stock, the
Sierra Vista lot adjoining the home property and the Commerce Street property were acquired
during the marriage. Properties acquired during marriage are presumed to be community
property,1 and the presumption can only be overcome by clear and certain proof.
88 Nev. 231, 236 (1972) Todkill v. Todkill
presumed to be community property,
1
and the presumption can only be overcome by clear
and certain proof. Carlson v. McCall, 70 Nev. 437, 271 P.2d 1002 (1954); Lake v. Bender, 18
Nev. 361, 7 P. 74 (1884).
[Headnote 2]
In adjudicating marital rights we have previously held that if there is substantial evidence
to support the lower court's findings we will not reverse that determination upon appeal.
Shane v. Shane, 84 Nev. 20, 435 P.2d 753 (1968); Zahringer v. Zahringer, 76 Nev. 21, 348
P.2d 161 (1960); Ormachea v. Ormachea, 67 Nev. 273, 217 P.2d 355 (1950). Likewise, when
adjudicating marital property rights, if there is clear and convincing evidence to support a
lower court's finding that property purchased during marriage is separate property we will not
reverse that determination on appeal. Kelly v. Kelly, 86 Nev. 301, 468 P.2d 359 (1970).
[Headnote 3]
Here we will not disturb the district court's determination that property acquired by the
Todkills during marriage, regardless of how title was held, was the husband's separate
property. The district court correctly found that under NRS 123.130 those assets were the
separate property of respondent. Whether or not the evidence was clear and convincing and
sufficient to overcome the presumption that the property acquired during marriage was
community property was a question for the district court. The evidence offered by the
respondent, together with the reasonable inferences to be drawn therefrom, can be deemed
clear and convincing. On the other hand, appellant failed to offer clear and convincing proof
that the purchases were made with community funds or credit or acquired by the respondent's
community toil or talent. Kelly v. Kelly, supra; Barrett v. Franke, 46 Nev. 170, 208 P. 435
(1922).
Shortly after the marriage appellant terminated her employment and thereafter made no
contribution of wages or property to the community. At the time of the marriage she owned
some separate property but it is in no way involved in this case. The only community
property generated and received by the parties during the marriage was respondent's
salary of $3,000 per month, together with undetermined bonuses from Todkill
Lincoln-Mercury, Inc., which business enterprise respondent had purchased prior to the
marriage with money from his father's estate.
____________________

1
NRS 123.130: 1. All property of the wife owned by her before marriage, and that acquired by her
afterwards by gift, bequest, devise or descent, with the rents, issues and profits thereof, is her separate property.
2. All property of the husband owned by him before marriage, and that acquired by him afterwards by gift,
bequest, devise or descent, with the rents, issues and profits thereof, is his separate property.
NRS 123.220: All property other than that stated in NRS 123.130, acquired after marriage by either
husband or wife, or both, except as provided in NRS 123.180 and 123.190, is community property.
88 Nev. 231, 237 (1972) Todkill v. Todkill
separate property but it is in no way involved in this case. The only community property
generated and received by the parties during the marriage was respondent's salary of $3,000
per month, together with undetermined bonuses from Todkill Lincoln-Mercury, Inc., which
business enterprise respondent had purchased prior to the marriage with money from his
father's estate. The salary and bonuses were received by respondent until the agency was sold
in October, 1966. There is substantial evidence that the salary and bonuses were used to
defray family living expenses and clear and convincing evidence to show that any of the
salary and bonuses were used to purchase the disputed property is absent. Kelly v. Kelly,
supra.
[Headnote 4]
However, it is undisputed that during the marriage respondent transferred his one-sixth
interest in the C. B. C. Inc., stock and all of his interest in the property at 7082 Mira Vista to
appellant. The district court found that these transfers were prompted by a desire on the part
of respondent to avoid seizure by his creditors and that there was an oral agreement between
the parties that appellant would hold the property in trust for respondent and would re-transfer
it to him at his request. Appellant contends that this was error on the part of the trial court,
and we agree.
In his complaint, respondent alleged that appellant was holding the real property at 7082
Mira Vista, Sierra Vista Ranchos, Clark County, Nevada, as constructive trustee for the
benefit of respondent. In Moore v. DeBernardi, 47 Nev. 33, 50, 220 P. 544 (1923), this court
said: It is well settled that a constructive trust cannot be established by a mere preponderance
of the evidence, but must be established by evidence which is clear, definite, unequivocal,
and satisfactory. We find no clear, definite, unequivocal and satisfactory evidence in the
record to support the finding of such a trust. There was no trust relationship created by or in
connection with the deed of the real property located at 7082 Mira Vista (home property), and
it did not become the duty of appellant to reconvey that property to respondent under the
terms of any trust.
[Headnotes 5-7]
When a husband transfers title to his separate property from his name into his wife's name,
he is presumed to intend a gift to her, even though his original intent was to defraud creditors.
Peardon v. Peardon, 65 Nev. 717, 201 P.2d 309 (1948); cf. Peterson v. Brown, 17 Nev. 172,
30 P. 697 (1882). That presumption, while rebuttable, can be overcome only by clear and
convincing evidence.
88 Nev. 231, 238 (1972) Todkill v. Todkill
convincing evidence. The husband has the burden of proof. If the evidence is conflicting the
presumption remains. Here, in spite of the testimony of respondent that his transfer of the
home and one-sixth of the C. B. C. Inc., stock to the appellant was in trust, she has, through
her testimony, raised the issue that the home was a birthday present and that the stock was
given to her for her financial security. This raises a conflict in the evidence and the
respondent's evidence is therefore not so clear and convincing as to rebut the presumption of
an absolute gift. Peardon v. Peardon, supra.
Respondent testified that he had no recollection why he transferred his interest in his C. B.
C. Inc., stock to appellant.
2
On the other hand, appellant unequivocally testified that
respondent transferred his stock to her because he wanted her to have security.
3
There is
some evidence to support the finding of the trial court that the transfers were prompted by
respondent's desire to avoid seizure of the properties by his creditors, but this intention on the
part of respondent does not overcome the presumption of an absolute gift to the wife. See
Weeks v. Weeks, 72 Nev. 268, 302 P.2d 750 (1956).
[Headnote 8]
Just as the findings of the trial court will be sustained on the appellate level if they are
supported by substantial evidence, Shane v. Shane, supra; Zahringer v. Zahringer, supra; and
Ormachea v. Ormachea, supra, they will be reversed if they are not. Roberts Roof & Floor v.
Ford Wholesale, 84 Nev. 298, 440 P.2d 124 (1968); Peardon v. Peardon, supra. Likewise, the
finding of a trial court that a husband's transfer of his separate property to his wife during
marriage is not a gift will be sustained on the appellate level if it is supported by clear and
convincing evidence, but it will be reversed if it is not.
The evidence introduced by the respondent was not clear and convincing. It did not
overcome the presumption of a gift from him to the appellant of the real property at 70S2
Mira Vista and the one-sixth interest in C. B. C.
____________________

2
The respondent's testimony was as follows:
Q. I note on the back of Exhibit, defendant's Exhibit F, there is an endorsement signed by you and dated
January 12, 1966. Do you recall endorsing that certificate?
A. I do not recall it. It's got my signature.
Q. Do you recall why that was endorsed?
A. I sure don't.

3
The appellant's testimony was as follows: A. He [respondent] said that he wanted me to have this. He said,
I want you to have this.' He said, I have said many times I wanted you to have security. This is yours.' And he
signed his portion over to me.
88 Nev. 231, 239 (1972) Todkill v. Todkill
from him to the appellant of the real property at 7082 Mira Vista and the one-sixth interest in
C. B. C. Inc.
We reverse that part of the decree of divorce holding: That any title which defendant
holds in the following described properties is held in trust for the Plaintiff to-wit: a. A house
and real property located at 7082 Mira Vista and adjoining lot described as:
Lots 7 and 8, Block 2, Sierra Vista Ranchos, Unit #1, as shown by map thereof on file
in Book of Plats, Page 54, in the office of the Clark County, Nevada, recorder.
b. Capital stock in C. B. C. Inc., a Nevada corporation, now reduced to cash pursuant to a
liquidation arising out of the sale of corporation assets, now on deposit in Nevada State Bank.
That this decree in accordance with NRCP 70 shall have the effect and operation at law
and in equity of vesting title to the aforesaid real and personal property in the Plaintiff,
BURTON A. TODKILL, as fully as if Defendant, by Deed of Conveyance and/or Bill of Sale,
had transferred the same to him in fee simple. That Defendant and all persons claiming from,
through and under her (other than Plaintiff) be and they are hereby forever barred from
asserting any right, title, or interest in any of the aforesaid described properties, real and
personal, or any part thereof except as provided below.
The case is remanded to the district court with instructions to enter an amended decree of
divorce confirming the appellant's right, title and interest as her sole and separate property to
the house and real property located at 7082 Mira Vista, Sierra Vista Ranchos, Clark County,
Nevada, and to confirm and allow to her and require to be paid to her by the respondent the
sum of $151,389.87, plus accumulated interest from October 8, 1970, the same being
one-half of the proceeds received by respondent from the sale of the assets of C. B. C. Inc.
The district court is further instructed to confirm to the respondent all right, title and
interest in and to the lot adjacent to the property located at 7082 Mira Vista referred to as the
Sierra Vista lot, and to require the appellant to quit claim to the respondent the title thereto.
The amended decree of divorce shall in all particulars conform to the holdings reflected in
this opinion.
In all other particulars the decree of divorce entered on October 8, 1970 by the district
court in Case No. A62980, Burton A.
88 Nev. 231, 240 (1972) Todkill v. Todkill
Burton A. Todkill, plaintiff vs. Gladys Todkill, defendant, is hereby affirmed.
Zenoff, C. J., and Mowbray, Thompson, and Gunderson, JJ., concur.
____________
88 Nev. 240, 240 (1972) Azbill v. State
SYLVESTER JACKSON AZBILL, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 6122
April 7, 1972 495 P.2d 1064
Appeal from a judgment entered upon a jury verdict from an order denying a motion for a
new trial and from an order denying a motion for repayment of costs advanced. Eighth
Judicial District Court, Clark County; Alvin N. Wartman, Judge.
Defendant was convicted in the district court of first degree murder and arson and, after
motion for new trial was denied, defendant appealed. The Supreme Court, Batjer, J., held that
testimony of defendant's son and son's friends implicating defendant in setting of fire in
master bedroom of family home, as well as testimony of expert who found human tissue on
crutch with which defendant allegedly struck his wife while she lay in bed and testimony of
physician who concluded that wife died in the fire, constituted substantial evidence to support
convictions.
Judgment entered upon a jury verdict and the order denying a motion for a new trial
is affirmed. The order denying a motion for repayment of costs advanced is reversed
and remanded.
[Rehearing denied May 19, 1972]
John Manzonie, Wiener, Goldwater & Galatz, of Las Vegas, for Appellant.
Robert List, Attorney General; Roy A. Woofter, District Attorney, and Charles L. Garner
and Raymond D. Jeffers, Deputy District Attorneys, Clark County, for Respondent.
1. Criminal Law; Witnesses.
Scope and extent of cross-examination is largely within the sound discretion of the trial court, and a
reversal will not be granted in the absence of abuse of discretion.
88 Nev. 240, 241 (1972) Azbill v. State
2. Witnesses.
Credibility of a witness may be attacked by showing his conviction of a felony but not by his mere arrest.
NRS 48.020.
3. Witnesses.
Where trial court specifically afforded defendant opportunity to inquire into any expectations of leniency
as to witnesses who testified for state and who had allegedly been involved in the past in taking an
automobile out of state without permission but had not been convicted of any offense in connection
therewith, defendant who insisted upon an all or nothing at all position was not denied any of his
constitutional rights by trial court's order in limine restricting inquiry as to alleged offense for purpose of
showing interest, bias and state of mind of the witnesses.
4. Criminal Law.
Giving of instruction relating to duties of jurors but making it clear to jury that each member had duty to
adhere to his own honest opinion although he should consider opinions of fellow jurors was not error.
5. Criminal Law.
Giving of Allen or dynamite charge in criminal prosecutions should be avoided.
6. Criminal Law.
All judicial interference in jury deliberations in criminal matters should be abandoned.
7. Criminal Law; Witnesses.
Trial court has right to examine witnesses for purpose of establishing the truth or clarifying testimony, but
in so doing must not become an advocate for either party nor conduct himself in such manner as to give
jury an impression of his feelings.
8. Criminal Law.
Trial court, under guise of examining a witness for purpose of establishing truth or clarifying testimony,
must not comment on evidence or attempt to mislead jury or belittle or cast aspersions on a witness.
9. Criminal Law.
Where witness, in testifying as to probable cause of death of victim, stated he did not understand
precisely the phrase medical certainty, whereupon court stated Well, in other words, are you saying this
is your best guess on the basis of what we have at the present time., as to which witness answered
Precisely, court's employment of phrase your best guess in context of examination was not a comment
on the evidence nor an expression of trial court's feelings, nor was it calculated to mislead jury or belittle
the witness.
10. Criminal Law.
Color photographs showing color of blood of deceased who was found dead in bedroom of her home
after fire and whose inhalation of carbon monoxide during fire might have affected color of her blood were
properly admitted in that their probative value as to whether victim inhaled carbon monoxide during fire
outweighed any prejudicial effect they might have had on jury.
11. Witnesses.
Impeachment is an attack upon the credibility of the witness and usually may not be done by the party
calling the witness, although such party has right to offer evidence showing facts to be
different from those testified to by such witness and may in that manner contradict
his own witness.
88 Nev. 240, 242 (1972) Azbill v. State
although such party has right to offer evidence showing facts to be different from those testified to by such
witness and may in that manner contradict his own witness.
12. Witnesses.
Where state offered testimony of one of its experts that cause of victim's death was by fire only to
produce independent evidence that victim's death had been caused by fire allegedly set by defendant, such
testimony was not improperly admitted on theory that its purpose was to impeach prior testimony of two
other of state's experts who had both testified that more probable cause of death of victim was use of a
combination of ethanol and barbiturates.
13. Criminal Law.
A trial court does not commit error when it refuses to give an offered instruction if content of such
instruction is covered in other instructions, even though the offered instruction correctly states the law.
14. Criminal Law.
Where court gave instruction in murder and arson prosecution that jury could not speculate that a
criminal agency caused the death of the victim but that death by criminal means had to be proven by
evidence beyond reasonable doubt, rejection of offered instruction that in order to find the defendant guilty
of homicide, there must be an expert medical opinion proving beyond a reasonable doubt that fire allegedly
set by defendant was cause of death was not error.
15. Criminal Law.
If there is substantial evidence to support a jury verdict, neither trial court nor Supreme Court may disturb
it.
16. Arson; Homicide.
Testimony of defendant's son and son's friends implicating defendant in setting of fire in master bedroom
of family home, as well as testimony of expert who found human tissue on crutch with which defendant
allegedly struck his wife while she lay in bed and testimony of physician who concluded that wife died in
the fire, constituted substantial evidence to support first degree murder and first degree arson conviction.
17. Criminal Law.
Where questions of fact are dependent upon the credibility of witnesses, jury is entitled to decide
questions of credibility and weight to be attached to their testimony.
18. Criminal Law.
In all criminal proceedings, weight and sufficiency of evidence are questions for jury, and its verdict will
not be disturbed upon appeal if there is evidence to support it.
19. Criminal Law.
Evidence in criminal proceedings cannot be weighed by Supreme Court. Const. art. 6, 4; NRS
177.025.
20. Costs.
Where trial court, in entertaining motions of defendant for reimbursement of his counsel for costs
advanced in his defense, found defendant to be an indigent and allowed expenses for medical expert,
defendant's status as an indigent was confirmed at such time and all out-of-pocket
expenses incidental to his defense incurred after such date by his counsel were
reimbursable.
88 Nev. 240, 243 (1972) Azbill v. State
medical expert, defendant's status as an indigent was confirmed at such time and all out-of-pocket expenses
incidental to his defense incurred after such date by his counsel were reimbursable.
OPINION
By the Court, Batjer, J.:
A jury found the appellant guilty of murder in the first degree and set his penalty at life in
prison without possibility of parole. The same jury found him guilty of arson in the first
degree and he was sentenced to 10 years, both sentences to run concurrently. A motion for a
new trial was denied, and this appeal follows.
The appellant and Rose Mapel were married on September 20, 1967. At the time of the
marriage she was approximately 20 years his senior. On the evening of December 27, 1967,
the charred remains of Rose Mapel Azbill were discovered in the master bedroom of the
Mapel-Azbill home at 709 Rancho Drive, Las Vegas, Nevada. The appellant and his son,
Brad Azbill, were the only persons immediately present when the disastrous fire started. At
the trial Brad testified that sometime during the evening of December 27, 1967, between eight
and nine o'clock, he was in the master bedroom of the Mapel-Azbill home with his
stepmother, Rose Mapel Azbill, and the appellant. The appellant asked Brad to get him a
drink. When Brad returned to the bedroom the appellant stated he was going to kill Rose
because she had found out that he had married her for her money and was going to divorce
him, and he then requested Brad to get some charcoal lighter fluid. At that time, according to
Brad's testimony, the appellant hit Rose several times with his fist and then hit her with his
crutch. Upon being hit with the crutch Rose raised herself on the bed and mumbled
something. By then the appellant had poured the lighter fluid on the bed. Brad looked away to
avoid seeing his father hit Rose, and he suddenly realized that the room was filling with
smoke.
On the day of the fire, Mark Hutton and Frank Luhman, friends of Brad, visited him at the
home of his father and stepmother. They arrived between 10 a.m. and 11 a.m. John Hutton,
another friend, arrived about 6 p.m. At approximately 6:30 p.m. the appellant and Brad went
to the liquor store where the appellant purchased beer and liquor. At about 7 p.m. Brad took a
bottle of beer to the decedent and noticed that the bottle of vodka on the floor near the bed
contained less than three inches of liquor.
88 Nev. 240, 244 (1972) Azbill v. State
that the bottle of vodka on the floor near the bed contained less than three inches of liquor. At
that time Brad observed that the decedent seemed alert and she thanked him for the beer. Just
after 7 p.m. Brad went back out to the guest house behind the main house to be with his
friends. At about 7:30 p.m. Brad was summoned into the house and told by the appellant that
Rose wanted another can of beer. After serving the beer, as requested, Brad returned to the
guest house where he remained until he was recalled to the main house by the appellant, just
before the fire was started. John Hutton testified that as soon as the television program Lost
in Space was over he looked toward the main house and saw smoke coming from it. He and
the other two boys ran inside the main house where they met Brad, who told them the oven
was on fire. They searched the kitchen area and failed to find any fire or smoke, then the
appellant told them that the Christmas tree was on fire, but that the fire had been
extinguished. After examining the tree the boys found no damage so they began looking
around the house and found the smoke was coming from the master bedroom. The smoke
prohibited them from entering the room so they went outside, broke the bedroom window and
used a garden hose in an attempt to extinguish the fire. It was at this time that they saw the
decedent in the flames. They then began yelling for someone to call the fire department and
police. There was no cross-examination of John Hutton.
Frank Luhman testified that during the afternoon of the day in question, the appellant was
quite drunk and boastful; further, that in such drunken state, the appellant threw a pen knife at
him and then he brought a revolver into the living room and stated he would just as soon kill
someone as look at him. The witness further testified that he saw Rose Mapel Azbill on the
afternoon prior to her death while he was changing the sheets in the appellant's bedroom and
that she appeared to be asleep in her room. At 5:30 in the evening, the appellant requested
this witness to get some girls, in return for such favor he was to be given $100. The
witness, in response to the appellant's request, took a taxi but was unable to locate the type of
women requested by the appellant.
Upon his return from the unfruitful search, the witness returned to the guest house. At
about 8:30 p.m. he saw smoke coming from the main house and went to locate the fire. He
corroborated the testimony of John Hutton that they were directed to the oven, and finding no
fire there, were told by the appellant that the Christmas tree had been on fire. Having
determined that the tree was not damaged he discovered the fire in the bedroom, broke the
window into the room, and upon observing a burning body he fainted.
88 Nev. 240, 245 (1972) Azbill v. State
fire in the bedroom, broke the window into the room, and upon observing a burning body he
fainted. Upon cross-examination of this witness, the defense elicited testimony that on the
day of the fire Brad was quite intoxicated and that he seemed to be almost falling down from
drunkenness. On re-cross-examination the witness was asked why he had not previously told
the police or grand jury about the incident with the gun or about going out in the early
evening looking for girls. He replied: Nobody asked me.
In an attempt to impeach the testimony of the witness, the defense called Joanne Allison, a
teacher at the school attended by the witness. She testified that he had a bad reputation for
truth and veracity.
Mark Hutton corroborated the testimony about the pen knife and about the appellant's
statement that the Christmas tree had been on fire. He also testified that he had not been
drinking liquor that day but that Brad had been drinking but was not drunk. He added that
while Brad and the appellant were at the liquor store in the early evening Rose had called for
Brad.
The appellant took the stand and simply stated he did not start the fire. There was no
cross-examination.
The appellant contends that the trial court erred (1) in denying him the right to impeach the
respondent's witness by restricting cross-examination; (2) in giving an Allen Charge type of
instruction to the jury which coerced them into reaching a verdict; (3) when it commented
upon the testimony of an expert witness; (4) when it admitted into evidence colored
photographs of the deceased; (5) when it allowed the respondent to impeach its own expert
witness, and (6) in refusing to give an instruction which he had requested to the jury. The
appellant further contends that the verdict of the jury is not supported by substantial evidence
sufficient to justify such finding, and is contrary to the law and the weight of the evidence and
that the aggregate of the trial court's error violates federal requirements of due process and
constitutes grounds for a new trial.
1. The appellant, during cross-examination of Brad Azbill, Mark Hutton and Frank
Luhman, sought to elicit testimony from them that they were involved, on or about May 6,
1968, in taking an automobile belonging to Halliburton Oil Well Cementing Company,
without permission or authority, from Las Vegas, Nevada to West Covina, California; that
they were arrested by West Covina authorities; that they were subsequently turned over to the
juvenile authorities of Los Angeles County and later returned to Las Vegas; and that no
further action was taken.
88 Nev. 240, 246 (1972) Azbill v. State
County and later returned to Las Vegas; and that no further action was taken. The appellant
contended that he could properly inquire into the alleged offense for the purpose of showing
interest, bias and state of mind of the witnesses.
The trial court by an order approving the respondent's motion in limine restricted the
inquiry as to the alleged offense, but expressly stated that the appellant was not precluded
from inquiry into the state of mind of each witness.
1
At various intervals during the trial the
appellant made offers of proof as to the unlawful conduct of Brad Azbill, Frank Luhman and
Mark Hutton. Each time the trial court made the same ruling for the reasons stated.
[Headnote 1]
The scope and extent of cross-examination is largely within the sound discretion of the
trial court and in the absence of abuse of discretion a reversal will not be granted. Smith v.
Illinois, 390 U.S. 129 (1968); Beasley v. State, 81 Nev. 431, 404 P.2d 911 (1965); State v.
Fitch, 65 Nev. 668, 200 P.2d 991 (1948); State v. McNeil, 53 Nev. 428, 4 P.2d 889 (1931).
NRS 48.020 provides: No person shall be disqualified as a witness in any action or
proceeding on account of his opinions on matters or religious belief, or by reason of his
conviction of a felony, but such conviction may be shown for the purpose of affecting his
credibility. . . .
[Headnote 2]
Although this court has indicated that within the limits of the exercise of sound discretion
a cross-examiner must be permitted to elicit any facts which show bias, interest or similar
feelings which may color the witnesses testimony {State v. Fitch, supra), it is the
established law in this state that the credibility of a witness may be attacked by showing
his conviction of a felony but not by his mere arrest. Johnson v. State, S2 Nev. 33S
____________________

1
The Court: All right. The Court's ruling will be this Mr. Wiener (Counsel for the appellant): You may not
inquire into any juvenile offenses or alleged juvenile offenses that he may have committed. You may ask him the
question: Have any promises or anything been extended to him in return for his testimony in court,' and seek to
lay a grounds for impeachment on that basis, but in the specific of things, juvenile offenses which he may or may
not have committed, you may not examine him with regard to those. His state of mind, if you ask him, was he
given anything or promised anything in exchange for his testimony at the time of the preliminary hearing, then
you are going to develop his state of mind.
The only thing that I'm going to permit you to go into, if you want to try and develop his state of mind, fine;
but you may not examine him with regard to the factual content of any alleged juvenile offense which he may or
may not have committed. If you want to develop in some way what his state of mind was, if he felt anything was
being done for him at the time he testified at the preliminary hearing, fine; go ahead and do it, but I'm not going
to let you examine him, factually speaking, with regard to his juvenile offense.
88 Nev. 240, 247 (1972) Azbill v. State
feelings which may color the witnesses testimony (State v. Fitch, supra), it is the established
law in this state that the credibility of a witness may be attacked by showing his conviction of
a felony but not by his mere arrest. Johnson v. State, 82 Nev. 338, 418 P.2d 495 (1966).
However, the appellant cites Alford v. United States, 282 U.S. 687 (1931), for the proposition
that upon cross-examination, for the purpose of establishing interest, bias or motive to testify
falsely, some inquiry of the witness concerning his unlawful conduct may be permitted
although there has been no felony conviction. Relying upon that case he claims that his
constitutional rights were violated by the trial court's order in limine which precluded him
from showing the interest, bias and state of mind of the juvenile witnesses. He contends that
he should have been allowed to show not only the facts surrounding the taking of the
automobile but also the fact that up to the time of his trial the juveniles had not even been
charged with an act of delinquency.
[Headnote 3]
The appellant's contention is without merit. The trial judge specifically afforded him the
opportunity to inquire into any expectation of leniency. However, the appellant insisted upon
an all or nothing at all position and he made no attempt to lay a foundation for any
questions or to explore the perimeters of the order in limine and refused to further pursue
cross-examinations of the juvenile witnesses. Johnson v. State, supra.
2. During its charge to the jury the trial court instructed them as follows: The Court
instructs the Jury that although the verdict to which each Juror agrees must, of course, be his
own conclusion, and not a mere acquiescence in the conclusion of his fellows, yet, in order to
bring twelve minds to a unanimous result the jurors should examine with candor the
questions submitted to them, with due regard and deference to the opinions of each other. A
dissenting juror should consider whether the doubt in his mind is a reasonable one, when it
makes no impression on the minds of so many jurors equally honest, equally intelligent with
him, who have heard the same evidence, with an equal desire to arrive at the truth, under the
sanction of the same oath. You are not to give up a conscientious conclusion after you have
reached such a conclusion finally, but it is your duty to confer with your fellow jurors
carefully and earnestly and with a desire to do absolute justice both to the State and to the
defendant.
The appellant took specific exception to this instruction upon the ground that it was an
"Allen Charge" which has been condemned in a number of jurisdictions.
88 Nev. 240, 248 (1972) Azbill v. State
the ground that it was an Allen Charge which has been condemned in a number of
jurisdictions.
The name is derived from the case of Allen v. United States, 164 U.S. 492 (1896), in
which the High Court approved a similar charge.
2

In State v. Hall, 54 Nev. 213, 13 P.2d 624 (1932), this court held that an instruction very
similar in wording to the Allen Charge was within the discretion of the trial court to give if
it thought proper to do so. In Basurto v. State, 86 Nev. 567, 570, 472 P.2d 339 (1970), we
considered an instruction identical to the one given here and we said: The charge is
approved so long as it makes clear to the jury that each member has a duty to conscientiously
adhere to his own honest opinion and the charge avoids creating the impression that there is
anything improper, questionable or contrary to good conscience for a jury to create a mistrial.
. . . In this case the charge was clear that no juror was to give up any conscientious conviction
he may hold. The coercive language and effect of State v. Hall [supra], is absent and this is
desirable. While the choice of State v. Hall, supra, as against this new look is not now
squarely presented our preference is expressed in this opinion. The dynamite' charge should
be avoided.
[Headnotes 4-6]
A careful comparison of the instruction given in this case and in Basurto with the original
Allen Charge indicates that those instructions are far less coercive than the original Allen
Charge and they do make it clear to the jury that each member has a duty to adhere to his
own honest opinion and they avoid creating the impression that there is anything improper,
questionable or contrary to good conscience for a jury to create a mistrial. We find no error in
the giving of instruction 52 in this case, however, as we did in Basurto, we again insist that
the dynamite or Allen Charge should be avoided and that there should be an
abandonment of all judicial interference in jury deliberations.
____________________

2
The charge in Allen was substantially as follows: [A]lthough the verdict must be the verdict of each
individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the
question submitted with candor, and with a proper regard and deference to the opinions of each other; that it was
their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be
convinced, to each other's arguments; that, if much the larger number were for conviction, a dissenting juror
should consider whether his doubt was a reasonable one which made no impression upon the minds of so many
men, equally honest, equally intelligent with himself. If, upon the other hand, the majority were for acquittal, the
minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which
was not concurred in by the majority.
88 Nev. 240, 249 (1972) Azbill v. State
there should be an abandonment of all judicial interference in jury deliberations. Posey v.
United States, 416 F.2d 545 (5th Cir. 1969); United States v. Fioravanti, 412 F.2d 407 (3rd
Cir. 1969).
3. During the course of the trial the presiding judge used the phrase your best guess
3
in
questioning an expert witness. The appellant asserts that the use of the word guess
amounted to a prejudicial comment by the trial judge on the testimony.
[Headnotes 7, 8]
A trial judge has the right to examine witnesses for the purpose of establishing the truth or
clarifying testimony, but in doing so he must not become an advocate for either party, nor
conduct himself in such a manner as to give the jury an impression of his feelings. Herdandez
v. State, 87 Nev. 553, 490 P.2d 1245 (1971); People v. Rigney, 359 P.2d 23 (Cal. 1961);
People v. Smith, 165 N.E.2d 333 (Ill. 1960); Baldwin v. District of Columbia, 183 A.2d 566
(D.C.Mun.Ct.App. 1962). Furthermore, under the guise of examining a witness, a trial judge
must not comment on the evidence or attempt to mislead the jury or belittle or cast aspersions
on a witness. Hernandez v. State, supra; Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 470 P.2d
135 (1970); Kinna v. State, 84 Nev. 642, 447 P.2d 32 (1968); People v. Rigney, supra;
Peterson v. Silver Peak, 37 Nev. 117, 140 P. 519 (1914).
[Headnote 9]
We have reviewed the record in this case and are lead to the conclusion that the
questioning by the trial court was for the sole purpose of eliciting the truth and to make more
understandable the conclusions of the expert witness. It cannot be said that the employment
of the phrase your best guess in the context of the examination was a comment on the
evidence, nor an expression of the trial judge's feelings. Nor can it be said that the question
was calculated to mislead the jury or belittle the witness.
____________________

3
Judge Alvin Wartman, the trial judge, entered into the following question and answer colloquy with the
witness, Dr. John Wesley Grayson, Jr.:
Q. And your opinion as to the most probable cause of death is not that it was traumatic but that it was due
to a combination of alcohol and barbiturates?
A. I think that is the most probable. . . .
The Court: . . . Do you mean to a medical certainty?
A. . . . I don't really understand precisely the phrase medical certainty.'
The Court: Well, in other words, are you saying this is your best guess on the basis of what we have at the
present time.
A. Precisely.
88 Nev. 240, 250 (1972) Azbill v. State
that the question was calculated to mislead the jury or belittle the witness.
4. Relative to proof that carbon monoxide was induced into the blood stream through the
lungs of the victim at the time of the fire, certain colored photographs were admitted into
evidence to show the color of the victim's blood. The appellant claims that the pictures were
without a scientific purpose, that their presence only inflamed the minds of the jurors and that
the trial court erred when they were admitted. We do not agree. Because the inhalation of
carbon monoxide can affect the color of blood, a color photograph showing the color of the
blood of the deceased was highly probative of whether or not she inhaled carbon monoxide
during the fire.
[Headnote 10]
The purpose of a trial is to ascertain and disclose the truth and any evidence which is
relevant to that purpose is admissible. Here the color photographs were properly admitted
because their probative value outweighed any prejudicial effect they might have had on the
jury. Shuff v. State, 86 Nev. 736, 476 P.2d 22 (1970); Walker v. State, 85 Nev. 337, 455 P.2d
34 (1969); Langley v. State, 84 Nev. 295, 439 P.2d 986 (1968); Morford v. State, 80 Nev.
438, 395 P.2d 861 (1964).
5. Dr. John Wesley Grayson, Jr., and Dr. Thorne Jefferson Butler, witnesses for the state,
both testified that the more probable cause of death of Rose Mapel Azbill was the use of a
combination of ethanol and barbiturates. Dr. Joseph Alexander Jachimczyk, also a witness for
the state, testified that her death was caused by the fire. The appellant objected to Dr.
Jachimczyk's testimony upon the ground that its purpose was to impeach the testimony of Dr.
Grayson and Dr. Butler. The trial court correctly found that the testimony of Dr. Jachimczyk
was contradictory in nature and not for the purpose of impeachment and overruled the
objection. In overruling the appellant's objection the trial court limited Dr. Jachimczyk's
testimony to his opinions based on the independent research and observations and precluded
him from in any way voicing an opinion on the testimony of Dr. Grayson and Dr. Butler.
[Headnote 11]
Impeachment is an attack upon the credibility of a witness and usually may not be done by
the party calling the witness, but he has a right to offer evidence showing facts to be different
from those testified to by such witness and in that manner contradict his own witness. United
States v. Williamson, 424 F.2d 353 (5th Cir. 1970); Commonwealth v. Staino, 204 A.2d 664
{Pa.
88 Nev. 240, 251 (1972) Azbill v. State
A.2d 664 (Pa. 1964); State v. Winters 344 P.2d 526 (Wash. 1959); State v. Timm, 12 N.W.2d
670 (Wis. 1944); Cahow v. Michelas, 62 Nev. 295, 149 P.2d 233 (1944); Nevada R. & S. Co.
v. Grich, 59 Nev. 345, 93 P.2d 513 (1939); Wigmore, Evidence 3d ed., Vol. 3A 694-698
(1970); 98 C.J.S. Witnesses 630.
In Talley v. Richart, 185 S.W.2d 23, 26 (Mo. 1945), that court said: It is well settled a
party may contradict his own witness by independent evidence showing facts to be different
from those testified to by such witness. . . . Such rule does not violate the general rule that
one may not impeach his own witness because to contradict is not to impeach. The terms are
not synonymous. Impeachment is directed to the credibility of the witness for the purpose of
discrediting him. It ordinarily furnishes no factual evidence. Contradiction, on the other hand,
is directed to the accuracy of testimony and supplies additional factual evidence to be
considered along with such testimony. Such evidence as is relevant to the issues may not be
excluded because it contradicts another witness called by the same party, whether such
witness is friendly or hostile.
[Headnote 12]
In the present case the state did not seek to prove by Dr. Jachimczyk that either Dr.
Grayson or Dr. Butler had at some previous time made contrary statements, but only to
produce independent evidence that Rose Mapel Azbill's death had been caused by the fire.
This the state was permitted to do and the trial court committed no error in permitting Dr.
Jachimczyk to testify.
6. The appellant offered the following jury instruction which was rejected by the trial
court: In order to find the defendant guilty of homicide there must be an expert medical
opinion worthy of belief and proving beyond a reasonable doubt fire was the cause of death.
[Headnotes 13, 14]
The trial court properly rejected the offered instruction. After examining all of the
instructions given by the trial court, and in particular instruction No.19,
4
it is our opinion
that the subject matter was properly and fully treated in the other instructions. It is the
established law of this state that a trial court does not commit error when it refuses to give an
offered instruction if the content of that instruction is covered in other instructions, even
though the offered instruction correctly states the law.
____________________

4
Instruction number 19: You may not speculate that a criminal agency caused the death of Rose Azbill.
Death by a criminal means must be proven by evidence, proving beyond a reasonable doubt that said death was
by a criminal means.
88 Nev. 240, 252 (1972) Azbill v. State
instruction if the content of that instruction is covered in other instructions, even though the
offered instruction correctly states the law. Summers v. State, 86 Nev. 210, 467 P.2d 98
(1970); Wallace v. State, 84 Nev. 603, 447 P.2d 30 (1968); Carlson v. State, 84 Nev. 534,
445 P.2d 157 (1968).
[Headnote 15]
The appellant contends that the jury verdict is not supported by substantial evidence and is
contrary to the law and the weight of the evidence. If there is substantial evidence to support a
jury verdict neither the trial court nor this court will disturb it. McGuire v. State, 86 Nev. 262,
468 P.2d 12 (1970); Lamb v. Holsten, 85 Nev. 566, 459 P.2d 771 (1969); Tellis v. State, 85
Nev. 679, 462 P.2d 526 (1969); Criswell v. State, 84 Nev. 459, 443 P.2d 552 (1968); Crowe
v. State, 84 Nev. 358, 441 P.2d 90 (1968).
[Headnote 16]
We find that although there was conflicting evidence, and in particular concerning the
cause of death, there was substantial evidence to support the verdict in this case. The
testimony of Brad Azbill and friends, as well as the testimony of the expert who found human
tissue on the crutch, together with the testimony of the doctor who concluded that Rose
Azbill died in the fire, is such substantial evidence.
[Headnote 17]
Where questions of fact are dependent upon the credibility of witnesses, the jury is entitled
to decide questions of credibility and the weight to be attached to their testimony. Martinez v.
State, 77 Nev. 184, 360 P.2d 836 (1961).
[Headnotes 18, 19]
In all criminal proceedings the weight and sufficiency of the evidence are questions for the
jury, and its verdict will not be disturbed upon appeal if there is evidence to support it. The
evidence cannot be weighed by this court. Nev. Const. art. 6, 4; NRS 177.025; State v.
Butner, 66 Nev. 127, 206 P.2d 253 (1949); State v. Soares, 53 Nev. 235, 296 P. 1081 (1931);
State v. Watts, 52 Nev. 453, 290 P. 732 (1930); State v. Boyle, 49 Nev. 386, 248 P. 48
(1926); State v. Van Winkle, 6 Nev. 340 (1871).
7. As his final assignment of error the appellant claims that the trial court erred when it
denied his motion, as an indigent, for an order directing Clark County to reimburse his
attorney for costs advanced in his defense.
88 Nev. 240, 253 (1972) Azbill v. State
On May 9, 1968, the appellant filed a motion requesting that Clark County pay the
expenses for a medical expert to make studies in the case on his behalf, based on his affidavit
that he was indigent. This motion was granted on May 19, 1969. On October 7, 1969, the trial
court ordered Clark County to reimburse the appellant's counsel for monies advanced to Dr.
Henry, a defense pathologist. But when appellant moved for an order directing Clark County
to reimburse his attorneys for costs advanced, the motion was denied.
In State v. District Court, 85 Nev. 241, 245, 453 P.2d 421 (1969), this court stated:
Holding, as we do, that an indigent defendant's constitutional rights require reimbursement
to his counsel for out-of-pocket expenses incidental to his defense, the trial courts have the
inherent right to entertain motions seeking such allowances and to order payment of such
reasonable amounts as they, in their discretion, deem proper and necessary.
[Headnote 20]
Here the trial court did entertain motions of the appellant for reimbursement of his counsel
and on May 19, 1969, it found the appellant to be an indigent and allowed expenses for a
medical expert. At that time appellant's status as an indigent was confirmed and all
out-of-pocket expenses incidental to his defense incurred after that date by his counsel are
reimbursable.
We affirm the jury's verdict and the judgment of the trial court, but remand the matter to
the district court for the sole purpose of determining the reimbursable out-of-pocket expenses
incurred by the appellant's attorneys from and after May 19, 1969, to and including
September 25, 1969.
Zenoff, C. J., and Mowbray, Thompson, and Gunderson, JJ., concur.
____________
88 Nev. 254, 254 (1972) Flowers v. Scott
In the Matter of the Adoption of ALLEN
DEAN SCOTT, a Minor.
JOHN ROBERT CHARLES FLOWERS, Appellant, v.
ALFRED ELROY SCOTT, Respondent.
No. 6514
ANITA SHEREE FLOWERS, Appellant, v.
ALFRED ELROY SCOTT, Respondent.
No. 6297
April 10, 1972 495 P.2d 610
No. 6514Appeal from an order dismissing the petition of John Robert Flowers to adopt
Allen Dean Scott, a Minor; Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
Affirmed.
No. 6297Appeal from judgment granting visitation and support rights to Alfred Elroy
Scott, the natural father of Allen Dean Scott, and denying the petition of Anita Sheree
Flowers to terminate the parental rights of Alfred Elroy Scott; Eighth Judicial District Court,
Clark County, Roscoe H. Wilkes, Judge.
The district court dismissed adoption petition and petition by mother to terminate parental
rights of natural father of minor and appeals were taken. The Supreme Court, Thompson, J.,
held that where natural father of minor had obtained declaration of existence of relation of
parent and child between himself and minor and had not consented to adoption, proposed
adoption by husband of mother was properly denied and that record sustained trial court's
refusal to terminate parental rights of natural father of illegitimate child whose mother had
married.
Affirmed.
Beckley, DeLanoy & Jemison and Fadgen & Johnson, of Las Vegas, for Appellant.
Morris, Walker & Pilkington, of Las Vegas, for Respondent.
1. Adoption.
Where adoption proceeding had not been completed at time of enactment of new statute relating to
consent by father whose parental right had been established to adoption, new statute must be complied
with. Stats. Nev. 1971, ch. 412; NRS 41.530.
2. Adoption.
Where natural father of minor had obtained declaration of existence of relation of parent and child
between himself and minor, and had not consented to adoption, proposed adoption by
husband of mother was properly denied.
88 Nev. 254, 255 (1972) Flowers v. Scott
minor, and had not consented to adoption, proposed adoption by husband of mother was properly denied.
Stats. Nev. 1971, ch. 412; NRS 41.530.
3. Bastards.
Record sustained trial court's refusal to terminate parental rights of natural father of illegitimate child
whose mother had married.
OPINION
By the Court, Thompson, J.:
These consolidated appeals concern the welfare of Allen Dean Scott, a six-year old child
who was born out of wedlock to Anita Sheree Flowers [nee Schweche] and Alfred Elroy
Scott. Subsequently, Anita married John Robert Charles Flowers who petitioned to adopt
Allen. Before his petition was filed, however, Alfred Scott, the natural father, had secured
from the court a declaration of the existence of the relation of parent and child between
himself and Allen, and had persuaded the court to deny a subsequent petition by Anita to
terminate his parental rights thus declared. Armed with these court declarations, Alfred Scott
moved to dismiss the adoption petition filed by John Robert Charles Flowers on the ground
that he, Alfred, was the natural father whose parental rights had not been terminated, and who
had not consented to the adoption. The district court granted the motion and dismissed the
petition for adoption. That ruling forms the basis for the appeal in Case No. 6514 to which we
now turn.
[Headnotes 1, 2]
1. No. 6514. Whatever may have been the law regarding consent to the adoption of a child
born out of wedlock when the district court ruled, it is now certain that if parental rights
have been established in a court of competent jurisdiction by the father of such a child,
pursuant to NRS 41.530, his consent shall be required. Stats. Nev. 1971, ch. 412, p. 835,
effective April 22, 1971. Since the proposed adoption has not been completed, the new law
must be complied with. We, therefore, affirm the dismissal of the petition for adoption since
the relationship of father and son was established pursuant to NRS 41.530 and the father had
not consented to the proposed adoption.
[Headnote 3]
2. No. 6297. Pursuant to NRS 41.530, Alfred Elroy Scott commenced an action to
establish that he was the father of Allen Dean Scott, and following a hearing, the court so
declared.
88 Nev. 254, 256 (1972) Flowers v. Scott
declared. Subsequently, he moved to modify the judgment to provide for visitation rights and
to require him to support Allen. While that motion was pending, Allen's mother filed a
petition to terminate the parental rights of Alfred. The motion to modify, and that petition
were consolidated for hearing. The court granted modification and denied the petition to
terminate parental rights from which decision the mother appeals. Our review of the record
reveals substantial evidence in support of the decision below and we, therefore, affirm.
Zenoff, C. J. and Batjer, Mowbray, and Gunderson, JJ., concur.
____________
88 Nev. 256, 256 (1972) Federal Sav. & Loan Ins. Corp. v. Moss
FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION, an Agency of the
United States of America, Appellant and Cross-Respondent, v. MELVIN S. MOSS, ALBERT
G. NEUMEYER, ROBERT C. FIELDING, EDWARD J. HELLMER, JOHN DONALD
PULLIAM and WILLIAM G. RAYSON, Respondents and Cross-Appellants.
No. 6374
April 11, 1972 495 P.2d 616
Appeal from order granting motion for voluntary dismissal upon payment of attorneys'
fees, and cross-appeals from denial of motions seeking dismissal with prejudice, Eighth
Judicial District Court, Clark County; Roscoe H. Wilkes, Judge.
Suit brought by savings and loan association's assignee seeking some $20 million in
damages for waste and mismanagement. An appeal and cross-appeal were taken from an
order of the district court denying the motion of four defendants to dismiss for want of
prosecution, granting the motion of plaintiff (as to those four defendants) for a voluntary
dismissal without prejudice on condition that plaintiff pay those defendants' costs and
attorney fees, and denying the motion of two other defendants to amend a judgment of
dismissal as to them. The Supreme Court held, inter alia, that because defendants were not
parties to the action after plaintiff noticed voluntary dismissal of the action as to them, neither
of those two defendants was a party aggrieved within meaning of rule when lower court
declined to amend the dismissal to be with prejudice; accordingly, those two defendants'
appeal from lower court's order refusing to amend the dismissal had to be dismissed.
88 Nev. 256, 257 (1972) Federal Sav. & Loan Ins. Corp. v. Moss
lower court's order refusing to amend the dismissal had to be dismissed.
Appeal and cross-appeals dismissed.
Munger, Tolles, Hill & Rickershauser; Peter R. Taft, Ronald L. Olson, of Los Angeles;
Milton W. Keefer, of Las Vegas, for Appellant.
Simon, Sheridan, Murphy, Thornton & Medvene, of Los Angeles; Jones, Jones, Close,
Bilbray & Kaufman, Ltd., of Las Vegas, for Respondents.
1. Appeal and Error.
Because defendants were not parties to the action after plaintiff noticed voluntary dismissal of the action
as to them, neither of those two defendants was a party aggrieved within meaning of rule when lower
court declined to amend the dismissal to be with prejudice; accordingly, defendants' appeal from lower
court's order refusing to amend the dismissal had to be dismissed. NRCP 41(a)(1), (a)(2), 72(a).
2. Appeal and Error.
Since lower court had not entered a final order disposing of the action as between the parties, but had
simply entered an order granting plaintiffs motion for a voluntary dismissal without prejudice as to certain
defendants on the condition that plaintiff pay those defendants' costs and attorney fees, the appeals of both
plaintiff and those defendants had to be dismissed. NRCP 41(a)(1),(a)(2),72(b).
OPINION
Per Curiam:
May 23, 1967, First Western Savings and Loan Association filed a complaint in our Eighth
Judicial District Court, seeking some $20 million in damages for waste and mismanagement.
June 13, 1967, respondents Moss, Hellmer, Pulliam and Rayson answered the complaint, and
thereafter proceeded with discovery through interrogatories. By special appearance,
respondents Neumeyer and Fielding moved the court to quash purported service of process
upon them, which it did July 2, 1968.
Except for answering interrogatories propounded by the respondents who appeared,
unsuccessfully resisting motions to quash service made by those who did not, and filing but
not perfecting an appeal from the lower court's order quashing service of process, First
Western did little to move its action forward. On September 28, 1968, First Western assigned
its interest in the case to appellant Federal Savings and Loan Insurance Corporation
{"FSLIC"), which on November 12, 196S, petitioned to remove the case to the United
States District Court.
88 Nev. 256, 258 (1972) Federal Sav. & Loan Ins. Corp. v. Moss
interest in the case to appellant Federal Savings and Loan Insurance Corporation (FSLIC),
which on November 12, 1968, petitioned to remove the case to the United States District
Court. Simultaneously, FSLIC commenced in federal court an action it characterizes as
incorporating claims of [First Western] pursuant to the assignment and original claims of
FSLIC. In federal court, FSLIC apparently concentrated its efforts on the second action; on
November 8, 1969, that court held that FSLIC's attempt to remove the first action was
improper, and remanded it to the Eighth Judicial District Court.
December 19, 1969, FSLIC noticed voluntary dismissal of the first action as to Fielding
and Neumeyer, pursuant to NRCP 41(a)(1); February 10, 1970, Fielding and Neumeyer
moved to have the dismissal amended to be with prejudice.
1
February 10, the other
respondents moved to dismiss the action with prejudice pursuant to NRCP 41(a)(2); March 6,
FSLIC moved for voluntary dismissal of the action against those respondents, pursuant to
NRCP 41(e).
2
May 11, the court entered an Order that recited in material part:
1. The motion of defendants Moss, Hellmer, Pulliam and Rayson to dismiss for want of
prosecution pursuant to Rule 41{e) of the Nevada Rules of Civil Procedure is hereby
denied;
____________________

1
NRCP 41(a)(1) provides: Subject to the provisions of Rule 23(e), of Rule 66, and of any statute, an action
may be dismissed by the plaintiff upon repayment of defendants' filing fees, without order of court (i) by filing a
notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary
judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have
appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without
prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff
who has once dismissed in any court of the United States or of any state an action based on or including the same
claim.

2
NRCP 41(a)(2) provides: Except as provided in paragraph (1) of this subdivision of this rule, an action
shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions
as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the
plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the
counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the
order, a dismissal under this paragraph is without prejudice.
NRCP 41(e) provides: The court may in its discretion dismiss any action for want of prosecution on motion
of the defendant and after due notice to the plaintiff, whenever plaintiff has failed for two years after action is
filed to bring such action to trial. . . . A dismissal under this subdivision (e) is a bar to another action upon the
same claim for relief against the same defendants unless the court otherwise provides.
88 Nev. 256, 259 (1972) Federal Sav. & Loan Ins. Corp. v. Moss
41(e) of the Nevada Rules of Civil Procedure is hereby denied;
. . .
3. Defendants Neumeyer and Fielding's motion to amend judgment of dismissal is hereby
denied;
4. Plaintiff's motion for voluntary dismissal without prejudice pursuant to Rule 41(a)(2)
of the Nevada Rules of Civil Procedure as to defendants Moss, Hellmer, Pulliam, and
Rayson, and the twenty John Does is hereby granted on condition that plaintiff pay the cost of
defendants Moss, Hellmer, Pulliam, and Rayson as permitted by Nevada law and/or by
agreement of the parties during the course of the litigation and on condition that plaintiff also
pay the reasonable attorneys fees paid by defendants Moss, Hellmer, Pulliam, and Rayson for
legal services in this case, and said defendants shall have twenty days from the date of this
order for submitting said bills.
May 28, FSLIC then noticed a purported appeal from that certain portion of Paragraph
numbered 4 of that certain Order . . . which provides that Plaintiff pay the reasonable
attorneys fees paid by Defendants Moss, Hellmer, Pulliam, and Rayson. . . The thrust of this
appeal is that FSLIC, as an agency of the United States Government, cannot be assessed for
legal fees it causes others to incur. The defendant-respondents have purported to cross-appeal
from paragraphs 1, 3 and 4 of the court's order, contending the record shows such delay on
the part of First Western and FSLIC as to make dismissal with prejudice obligatory.
[Headnote 1]
Because Neumeyer and Fielding were not parties to the action in the lower court after
FSLIC dismissed its action as to them, neither was a party aggrieved within the meaning of
NRCP 72(a) when the lower court declined to amend FSLIC's dismissal of its action against
them; hence, we dismiss their appeal. Rule 41(a)(1) is the shortest and surest route to abort a
complaint when it is applicable. So long as plaintiff has not been served with his adversary's
answer or motion for summary judgment he need do no more than file a notice of dismissal
with the Clerk. That document itself closes the file. There is nothing the defendant can do to
fan the ashes of that action into life and the court has no role to play. This is a matter of right
running to the plaintiff and may not be extinguished or circumscribed by adversary or court.
American Cyanamid Company v. McGhee, 317 F.2d 295, 297 (5th Cir. 1963); cf. Volpert v.
Papagna, 83 Nev. 429, 433 P.2d 533 (1967).
88 Nev. 256, 260 (1972) Federal Sav. & Loan Ins. Corp. v. Moss
[Headnote 2]
Because the lower court has not entered a final order disposing of the action as between
FSLIC and the other respondents, the appeals of those parties are likewise dismissed. NRCP
72(b). Since appellant has declined to accept a voluntary dismissal on the terms the court
below would allow it, the court on remand may, on a renewed motion to dismiss for want of
prosecution, decide that appellant's delay in prosecuting its case constitutes an adequate
independent ground for a dismissal with prejudice. In that event, any error that may arguably
have occurred in the court's original order would be harmless. United States v. Pacific Fruit &
Produce Co., 138 F.2d 367 (9th Cir. 1943).
Appeals dismissed.
____________
88 Nev. 260, 260 (1972) Kay v. Bd. County Comm'rs of Clark Co.
EDITH KAY, EDWARD SINGER, THERESA SINGER, BENJAMIN KISHNER,
CHARLOTTE KISHNER, DARRYL RANDERSON, MARJORIE RANDERSON, and
JANE LEONARD, Appellants, v. BOARD OF COUNTY COMMISSIONERS OF CLARK
COUNTY, NEVADA, Respondent, v. REALTY HOLDINGS, INC., a Nevada Corporation,
Intervenor-Respondent.
No. 6707
April 13, 1972 495 P.2d 628
Appeal from an order of the Eighth Judicial District Court, Clark County, dismissing a
petition for writ of review, Thomas J. O'Donnell, Judge.
Affirmed.
Peter L. Flangas, of Las Vegas, for Appellants.
Roy A. Woofter, District Attorney, Richard E. Vogel and Thomas R. Severns, Deputy
District Attorneys, Clark County, for Respondent.
Lionel Sawyer Collins & Wartman, of Las Vegas, for Intervenor-Respondent.
OPINION
Per Curiam:
This appeal is from a district court denial of certiorari which challenged the jurisdiction
of the Board of County Commissioners to grant a setback variance.
88 Nev. 260, 261 (1972) Kay v. Bd. County Comm'rs of Clark Co.
challenged the jurisdiction of the Board of County Commissioners to grant a setback
variance. The Board did not act in excess of its jurisdiction, NRS 278.020, and we, therefore,
affirm the district court out-of-hand.
____________
88 Nev. 261, 261 (1972) Prins v. Prins
JOHN PRINS, Appellant, v. MARGUERITE PRINS, Respondent.
No. 6665
May 1, 1972 496 P.2d 165
Appeal from an order modifying a divorce decree. Eighth Judicial District Court, Clark
County; John F. Mendoza, Judge.
Ex-wife moved to modify divorce decree to terminate ex-husband's visitation rights for
non-payment of support, and for judgment for the arrearage in support payments. Ex-husband
cross-moved seeking to have ex-wife held in contempt for failing to afford him visitation
rights and requested transfer of child's custody to himself. The district court entered judgment
in favor of ex-wife, and ex-husband appealed. The Supreme Court held, inter alia, that absent
a trial transcript or a statement of the evidence, it had to presume that sufficient evidence was
presented to support the findings and ruling of the trial court which modified the divorce
decree by altering ex-husband's unqualified right of visitation; moreover, the trial court is
afforded vast discretionary powers in determining what is in best interests of a child in cases
involving modification of visitation rights.
Affirmed.
Charles L. Kellar, of Las Vegas, for Appellant.
Scotty Gladstone, of Las Vegas, for Respondent.
1. Divorce.
Absent a trial transcript or a statement of the evidence, Supreme Court had to presume that sufficient
evidence was presented to support the findings and ruling of the trial court which modified divorce decree
by altering father's unqualified right of visitation; moreover, the trial court is afforded vast discretionary
powers in determining what is in best interests of a child in cases involving modification of visitation
rights. NRS 125.140; NRCP 75(n).
88 Nev. 261, 262 (1972) Prins v. Prins
2. Divorce.
Not having been favored with a complete record of the testimony below, Supreme Court had to presume
that the evidence warranted modification of divorce decree to condition father's visitation rights upon
payment of all arrearages in child support, and in being current in his continuing payments.
3. Divorce.
Where ex-wife moved to modify divorce decree to terminate ex-husband's visitation rights for
non-payment of support, and for judgment for the arrearage in support payments, and where, after a
hearing, the court, inter alia, entered an order conditioning ex-husband's visitation rights upon paying all
child support arrearages and being current in continuing payments, it was not inappropriate for the court,
under those circumstances, to award attorney fees to the ex-wife. NRS 125.180, subd. 1.
4. Appeal and Error.
Assignments of error were not ground for reversal absent a showing of how appellant had been
prejudiced or aggrieved, and without any citation of supporting authority.
OPINION
Per Curiam:
The parties to this appeal were divorced in Las Vegas in 1968. The decree, inter alia,
awarded to the respondent the custody of the child of the marriage; ordered the appellant to
make support payments of $50.00 per month; and granted him reasonable rights of visitation.
The decree was silent on exactly when the support should be paid and what would constitute
reasonable visitation rights. In 1969 the parties executed an agreement explicitly defining
when the appellant's visitation rights should be exercised, and specifying exactly when the
support payments should be made.
Subsequently, the relationship between the parties apparently deteriorated because in 1971,
the respondent moved to modify the divorce decree to terminate the appellant's visitation
rights for non-payment of support, and for judgment for the arrearage in the support
payments. The appellant responded by filing a cross-motion seeking to have the respondent
held in contempt of court for failing to afford him the visitation rights provided by the divorce
decree, and requesting that the court transfer custody of the child to him. Each party charged
the other with conduct detrimental to the child's well-being and each asserted that the other
was an unfit parent.
After a hearing which consumed nearly three days the court, inter alia, ordered that the
custody of the child be continued in the respondent; it continued the appellant's rights of
visitation, but it specifically defined when the visitation rights should be exercised, and it
imposed certain express conditions and limitations thereon; it continued the support
payments of $50.00 per month; and it entered judgment against the appellant for the
payments in arrears, and provided that his rights of visitation should not commence until
he had paid the support arrearage and was current in all his support obligations.
88 Nev. 261, 263 (1972) Prins v. Prins
but it specifically defined when the visitation rights should be exercised, and it imposed
certain express conditions and limitations thereon; it continued the support payments of
$50.00 per month; and it entered judgment against the appellant for the payments in arrears,
and provided that his rights of visitation should not commence until he had paid the support
arrearage and was current in all his support obligations. Attorney fees and costs were also
assessed against the appellant.
[Headnote 1]
This appeal from the order modifying the divorce decree challenges the provision which
altered the appellant's unqualified right of visitation as contained in the divorce decree to the
conditional visitation right as set forth in the modification order, contending that the court
abused its discretion.
1
However, the transcript of the testimony presented during the lengthy
hearing has not been docketed as part of the record on appeal, and in the absence of a trial
transcript, or a statement of the evidence pursuant to NRCP 75(n), we must presume that
sufficient evidence was presented to the trial court to support its findings and its ruling.
Fenkell v. Fenkell, 86 Nev. 397, 469 P.2d 701 (1970). Moreover, the trial court is afforded
vast discretionary powers in determining what is in the best interests of a child in cases
involving modification of visitation rights. NRS 125.140; Howe v. Howe, 87 Nev. 595, 491
P.2d 38 (1971).
[Headnote 2]
The appellant further contends that the trial court erred in conditioning his visitation rights
upon payment of all arrearages in child support, and in being current in his continuing
payments. However, not having been favored with a complete record of the testimony below,
we must presume that the evidence warranted such limitations, and that they are reasonable in
the factual circumstances presented to the trial court. Cf. Chesler v. Chesler, 87 Nev. 335, 486
P.2d 1198 (1971).
[Headnote 3]
The appellant also challenges the award of attorney fees to the respondent, asserting that
the award was improper and an abuse of the court's discretion. Such an assignment is without
merit on the record before us. NRS 125.180(1) provides for an award of attorney fees in these
circumstances, and there is nothing in the record to indicate that the amount of the award
is unreasonable.
____________________

1
Cf. Noble v. Noble, 86 Nev. 459, 470 P.2d 430 (1970), where the court suspended support payments during
the time the mother illegally denied the father visitation rights.
88 Nev. 261, 264 (1972) Prins v. Prins
nothing in the record to indicate that the amount of the award is unreasonable.
[Headnote 4]
We have considered the remaining points assigned as error by the appellant, and we find
them all to be without merit. Absent any showing of how the appellant has been prejudiced or
aggrieved, and without any citation of supporting authority, such assignments are not grounds
for reversal. Howarth v. El Sobrante Mining Corp., 87 Nev. 492, 489 P.2d 89 (1971).
Affirmed.
____________
88 Nev. 264, 264 (1972) Goff v. State
RANDEL HOWARD GOFF, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 6709
May 1, 1972 496 P.2d 160
Appeal from conviction of robbery. Eighth Judicial District Court, Clark County; Clarence
Sundean, Judge.
The Supreme Court, Zenoff, C. J., held, inter alia, that no error was shown in excluding
hearsay declaration against penal interest in absence of showing that purported declarant was
unavailable as a witness.
Affirmed.
Robert G. Legakes, Public Defender, and Stewart L. Bell, Deputy Public Defender, Clark
County, for Appellant.
Robert List, Attorney General, Roy A. Woofter, District Attorney, and Charles L. Garner,
Chief Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
No error was shown in excluding hearsay declaration against penal interest in absence of showing that
purported declarant was unavailable as a witness. NRS 51.055, 51.345, subd. 1(b).
2. Criminal Law.
Asserted error in excluding hearsay testimony with respect to statement which allegedly constituted
declaration against penal interest or alibi could not be considered on appeal where the alleged statement
was not preserved by offer of proof.
3. Criminal Law.
Viewing alleged admission by another that he committed crime for which defendant was accused as alibi,
there was no error in exclusion thereof where such alleged alibi was not noticed to the
district attorney ten days before trial and there was no good cause shown for not
doing so.
88 Nev. 264, 265 (1972) Goff v. State
exclusion thereof where such alleged alibi was not noticed to the district attorney ten days before trial and
there was no good cause shown for not doing so. NRS 174.087, subd. 1.
OPINION
By the Court, Zenoff, C. J.:
Appellant stands convicted of robbing the Beer Barrel Bar in Las Vegas, Nevada, on April
1, 1970.
During the trial appellant testified that while he was in the Clark County jail shortly after
his arrest he met a person named Robert Lee Mason who, appellant alleges, indicated that he
had committed the crime for which appellant was accused. The transcript reads in pertinent
part:
[By defense attorney George H. Spizzirri:]
Q. Did you talk to Mr. Mason onat any time while you were in the same cell together?
A. Yes.
Q. And do you recall approximately when this conversation took place, the time?
A. All I know it was in the daytime.
Q. Was anyone else present besides yourself?
A. Yes, me and Carter.
Q. Could you tell us and tell the jury what exactly was said at this time?
Mr. Guy: [Deputy District Attorney] I'm going to object, Your Honor.
Mr. Spizzirri: Generally, an objection has a basis.
Court: Yes.
Mr. Guy: Very well, Your Honor, it concerns a man who is not present if my
understanding is clear on it.
Mr. Spizzirri: The statements were made in the presence of the defendant, Your Honor.
Court: I don't think you have shown that whatever the statements are, are an exception to
the hearsay rule.
No further foundation was laid or offer of proof made to elicit any testimony concerning
what appellant now alleges to be a declaration against penal interest.
Further on, the trial court sustained an objection for lack of foundation as to the
admissibility of Mason's photograph.
[Headnote 1]
Appellant raises two issues on appeal. Did the trial court err in excluding a hearsay
declaration against penal interest? Did the trial court err in excluding the photo of Mason? 1.
88 Nev. 264, 266 (1972) Goff v. State
1. Appellant asserts that the statement of Mason alluded to in the portion of the transcript
set out above was in fact a declaration against penal interest and therefore should have been
admitted as an exception to the Hearsay Rule. This court has held in Alexander v. State, 84
Nev. 737, 449 P.2d 153 (1968), that the exception sought to be applied is not recognized in
this state when the declaration is sought to be proved solely through the mouth of the
defendant. 84 Nev., at 742. However, the Nevada Legislature has seen fit to adopt the
exception which now appears in NRS 51.345(1)(b) as follows:
A statement which at the time of its making:
. . .
(b) So far tended to subject him to civil or criminal liability;
. . .
that a reasonable man in his position would not have made the statement unless he believed it
to be true is not inadmissible under the hearsay rule if the declarant is unavailable as a
witness.
[Headnote 2]
All of this, however, does not advance appellant's case, as there are two deficiencies in the
record presented to this court. First, there was no showing that the purported declarant was
unavailable as a witness within the contemplation of NRS 51.055. Secondly, whatever
Mason's statement or alleged admission was, it is not preserved for our review, and,
consequently, we are unable to determine whether it was a declaration against penal interest
which determination is required before we can say that the trial judge erred in excluding the
hearsay.
[Headnote 3]
If we view Mason's alleged admission as an alibi for Goff, still no relief is available. NRS
174.087(1) requires alibis to be noticed to the district attorney ten days before trial. This was
not done here, nor was there a good cause shown for not doing so. Founts v. State, 87 Nev.
165, 483 P.2d 654 (1971). Further, there was no offer of proof made which allows us to
determine whether the statement could be considered to be an alibi.
2. The appellant admits in his brief that there was insufficient foundation for the
photograph if the declaration was not admitted.
88 Nev. 264, 267 (1972) Goff v. State
insufficient foundation for the photograph if the declaration was not admitted. Resolution of
point one resolves point two.
Affirmed.
Batjer, Mowbray, Thompson, and Gunderson, JJ., concur.
____________
88 Nev. 267, 267 (1972) McRoy v. Warden
FREDDIE McROY, Appellant, v. WARDEN, NEVADA
STATE PRISON, Respondent.
No. 6608
May 1, 1972 496 P.2d 162
Appeal from an order denying an application for post-conviction relief. Eighth Judicial
District Court, Clark County; Thomas J. O'Donnell, Judge.
The Supreme Court, Batjer, J., held that failure of petitioner's court-appointed counsel to
notify petitioner that he believed petitioner's appeal to be frivolous or without merit and that
petitioner had the right to present any arguments he might choose to raise on his behalf did
not entitle petitioner to relief where counsel sent petitioner a copy of the brief which he filed
with reviewing court, and more than a month thereafter petitioner had not raised any
additional issues to be considered on review either through court-appointed counsel or pro se.
Affirmed.
Rogers, Whitney, Lea & Woodbury, of Las Vegas, for Appellant.
Robert List, Attorney General; Roy Woofter, District Attorney, Charles L. Garner, Chief
Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Failure of petitioner's court-appointed counsel to notify petitioner that he believed petitioner's appeal to
be frivolous or without merit and that petitioner had the right to present any arguments he might choose to
raise on his behalf did not entitle petitioner to post-conviction relief where counsel sent petitioner a copy of
the brief which he filed with reviewing court, and more than a month thereafter petitioner had not raised
any additional issues to be considered on review either through court-appointed counsel or
pro se.
88 Nev. 267, 268 (1972) McRoy v. Warden
considered on review either through court-appointed counsel or pro se.
2. Criminal Law.
Absent a showing that petitioner was denied access to a copy of transcript and record, reviewing court, in
post-conviction proceeding, was without any basis upon which to consider whether petitioner had been
denied due process or equal protection in his appeal from his conviction. U.S.C.A.Const. Amends. 6, 14.
3. Criminal Law.
Petitioner's court-appointed counsel did not have to file a request to withdraw where he felt that
petitioner's appeal was frivolous or without merit.
OPINION
By the Court, Batjer, J.:
On August 22, 1969, appellant was charged by criminal complaint with the crime of
burglary. An information was filed following a preliminary hearing to which the appellant
entered a plea of not guilty. At trial the arresting officers testified that they observed the
appellant and a companion leave by the back door of the burglarized premises and that after a
short pursuit the appellant and his companion were captured. A window on the premises had
been broken by a large brick, the cigarette machine inside the building had been damaged and
pried open, and at the time of his arrest the appellant had in his possession keys that had been
left by the manager inside the building. A jury returned a verdict of guilty and the appellant
was sentenced to serve a term not exceeding five years in the Nevada state prison. On
December 30, 1969, a notice of appeal from the judgment of conviction was filed. During all
of the proceedings in the trial court and during the appeal from his conviction, appellant, an
indigent, was represented by the Clark County Public Defender who had been court
appointed. The deputy public defender who handled the trial and appeal for appellant filed an
opening brief with this court in which he summarized the testimony of each witness at the
trial and by way of argument stated that: This brief is filed as required by Anders v.
California, 386 U.S. 738 (1967), and Sanchez v. State, 450 P.2d 793 (Nev. 1969). The
evidence presented to the jury was insufficient in law to sustain a judgment of conviction for
burglary.
At the time the brief was filed the deputy public defender wrote to the appellant, enclosed
a copy of the brief, and advised him that it had been filed: Pursuant to the requirements of
Anders v. California.

88 Nev. 267, 269 (1972) McRoy v. Warden
On March 6, 1970, the state filed its motion to dismiss the appeal based on the brief filed
on behalf of appellant. This court granted the motion and dismissed the appeal. No request to
withdraw as counsel was ever filed by the office of the public defender.
On July 14, 1970, appellant filed his petition for post-conviction relief, contending that his
representation by the public defender in the appeal from his conviction was faulty and
inadequate and that pursuant to the Anders' doctrine he had been denied due process, equal
protection of the laws and effective assistance of counsel as required by the Sixth and
Fourteenth Amendments to the Constitution of the United States. The petition was denied by
the district court on September 10, 1970, and notice of appeal was filed by the appellant in
proper person on October 6, 1970. Present counsel was appointed on March 3, 1971 to
represent the appellant on this appeal from the denial of post-conviction relief.
The appellant, relying on Anders v. California, supra, contends that the trial court erred in
denying his petition for post-conviction relief because (1) his court-appointed counsel failed
to request a withdrawal and failed to give him notice that he believed the appeal to be
frivolous or without merit, (2) his court-appointed counsel failed to inform him that he had
the right to present to the appellate court any arguments he might choose to raise himself, and
(3) he was not given access to the transcript of his trial nor any part of the record on appeal.
He further contends that court-appointed counsel failed in the Anders' brief to refer to any
of the matters in the record which might have arguably supported the appeal, and as a result
he was denied due process of law, equal protection of the laws and effective assistance of
counsel.
[Headnote 1]
The appellant reads into Anders much that cannot be found in that case. He contends that
his court-appointed counsel is required to notify him that counsel believed the appeal to be
frivolous or without merit and that appellant had the right to present any arguments he might
choose to raise on his behalf. It is only suggested in Anders, supra at 744, that [a] copy of
counsel's brief should be furnished the indigent and time allowed him to raise any points that
he chooses. On February 20, 1970, counsel sent the appellant a copy of the brief which he
filed with this court. To and including March 24, 1970, when we dismissed his appeal from
the burglary conviction, the appellant neither through court-appointed counsel nor pro se
raised any additional issues to be considered on appeal.

88 Nev. 267, 270 (1972) McRoy v. Warden
[Headnote 2]
The appellant further contends that he was not given access to the transcript of his trial nor
any part of the record on appeal. At no time before the order dismissing his appeal was
entered did the appellant make an effort to obtain a copy of the transcript or the record from
either the public defender or from this court. Absent a showing that he was denied access to a
copy of the transcript and record, we are without any basis whatsoever upon which to
consider whether the appellant was denied due process or equal protection of the law. Cf.
Wade v. Wilson, 396 U.S. 282 (1970). In Gay v. State, 87 Nev. 540, 490 P.2d 666 (1971),
this court ordered that a transcript be supplied to Baron Kent Gay, who was determined to be
indigent.
[Headnote 3]
The appellant also contends that the failure of the public defender to withdraw as his
attorney was in violation of Anders. In Sanchez v. State, 85 Nev. 95, 97, 450 P.2d 793 (1969),
this court said: We will remove some of the circuitous requirements of Anders, supra, in
order that the litigants, counsel and the court can expeditiously get to the point of each case
with a minimum of procedural steps and still afford the maximum of constitutional protection
to the defendant. Appointed counsel for a defendant who demands an appeal need not file a
request to withdraw if he feels there is no reversible error to argue on appeal. If after a
conscientious examination of the record counsel believes that the appeal is frivolous, then he
must file the opening brief on the merits of all arguable issues raised by the record together
with an acknowledgment that he does not believe there is merit to the appeal. Thereafter the
state may either answer in normal course or move to dismiss the appeal as frivolous, but a
motion to dismiss must be accompanied with points and authorities in support of the claim of
frivolity.
Our holding in Sanchez does not, as the appellant contends, depart from the requirements
of Anders except in the particular that we do not require appointed counsel to request
permission to withdraw. In Anders, supra at 744, the High Court said: Of course, if counsel
finds his case to be wholly frivolous, after a conscientious examination of it, he should so
advise the court and request permission to withdraw. That request must, however, be
accompanied by a brief referring to anything in the record that might arguably support the
appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to
raise any points that he chooses; the courtnot counselthen proceeds, after a full
examination of all the proceedings, to decide whether the case is wholly frivolous.
88 Nev. 267, 271 (1972) McRoy v. Warden
not counselthen proceeds, after a full examination of all the proceedings, to decide whether
the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and
dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on
the merits, if state law so requires. On the other hand, if it finds any of the legal points
arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the
indigent the assistance of counsel to argue the appeal.
In our order of dismissal filed in McRoy v. State (Nevada Supreme Court case No. 6146),
we said: We have given full consideration to the appellant's brief and to the record on
appeal, and we find there is substantial competent evidence in the record to support the jury
verdict below. In that order we were not expressing mere idle words. Anders has been
complied with in every respect, except the suggestion that appointed counsel request
withdrawal and in that respect the procedures set out in Sanchez have been satisfactorily met.
The public defender having furnished the appellant with a copy of his brief, and the
appellant having been allowed a reasonable time within which to raise any points that he
chose in support of his appeal from conviction and having failed to respond thereto, this court
in consideration thereof and upon a full examination of the proceedings properly concluded in
its order of March 24, 1970, that the appeal from the conviction was frivolous.
The district court's order denying application for post-conviction relief is affirmed.
Zenoff, C. J., and Mowbray, Thompson, and Gunderson, JJ., concur.
____________
88 Nev. 271, 271 (1972) Lagrange Construction, Inc. v. Kent Corp.
LAGRANGE CONSTRUCTION, INC., a Corporation,
Appellant, v. KENT CORPORATION, Respondent.
No. 6467
May 1, 1972 496 P.2d 766
Appeal from judgment on cross-claim entered on construction contracts. First Judicial
District Court, Douglas County; Richard L. Waters, Jr., Judge.
The Supreme Court, Zenoff, C. J., held that, on cross-claim of defendant construction
contractor for amount allegedly due on road construction contract, wherein it appeared
that portions which were difficult to build because of granite outcroppings had not been
completed by contractor but easily constructed portions had been completed, evidence
sustained finding that parties had not intended that contractor could do the easy portions
and be paid the full unit price therefor and leave the difficult portions not completed.
88 Nev. 271, 272 (1972) Lagrange Construction, Inc. v. Kent Corp.
on road construction contract, wherein it appeared that portions which were difficult to build
because of granite outcroppings had not been completed by contractor but easily constructed
portions had been completed, evidence sustained finding that parties had not intended that
contractor could do the easy portions and be paid the full unit price therefor and leave the
difficult portions not completed.
Affirmed.
Robert A. Grayson, of Carson City, for Appellant.
Vargas, Bartlett & Dixon, and Robert W. Marshall, of Reno, for Respondent.
1. Contracts.
Where construction contract stated that unit price should prevail but also stated that contractor agreed to
take full payment as listed for quantities which were subject to variation, contract was ambiguous and
interpretation placed upon contract by parties was entitled to great, if not controlling, influence in
determining contract terms.
2. Contracts.
In proceeding on cross-claim of defendant construction contractor for amount allegedly due on road
construction contract, wherein it appeared that portion of roads difficult to build because of granite
outcroppings had not been completed by contractor but easily constructed portions had been completed,
evidence sustained finding that parties had not intended that contractor could do the easy portions and be
paid the full unit price therefor and leave the difficult portions not completed.
3. Damages.
Where contracts were entire, breaching party was obligated to place nonbreaching party in as good a
position as if contract had been performed.
4. Appeal and Error.
Where there is conflicting evidence, finding will not be disturbed on appeal.
5. Evidence.
In action involving damage allegedly sustained because of construction contractor's failure to complete
contracts for road construction, wherein, to ascertain contract damages suffered by owner, it was necessary
to prove cost of completing the contracts and it appeared that owner had decided to complete only some of
the contracts, testimony of owner's engineers as to cost of work actually done and their estimates as to cost
of completing projects to terms of contracts was not precluded by the best evidence rule.
6. Evidence.
In action involving contractor's breach of contract to construct improvements, testimony of landowner's
engineers as to estimated cost of completing project to terms of contract was competent to be
weighed by fact finder, where the uncertainty in testimony applied not to existence of
damage but rather to its extent or measure.
88 Nev. 271, 273 (1972) Lagrange Construction, Inc. v. Kent Corp.
competent to be weighed by fact finder, where the uncertainty in testimony applied not to existence of
damage but rather to its extent or measure.
OPINION
By the Court, Zenoff, C. J.:
This appeal deals solely with the cross-claim of appellant against respondent, both of
whom were at one time codefendants in a suit brought by Taylor-Jett, Sacramento, Inc. The
parties were before this court on a prior occasion in Lagrange Constr. v. Kent Corp., 83 Nev.
277, 429 P.2d 58 (1967), wherein we remanded the case for additional proceedings.
Lagrange, the contractor, entered into four contracts with Kent, the landowner, whereby
certain improvements and development work was to be done, including the construction of
streets and water lines.
On May 11, 1961 a contract (No. 1) was entered into which provided in pertinent part:
The undersigned hereby proposes and agrees to furnish, Labor, Equipment, Materials to
be used in items #4, #5, & #7, and do all work described as follows for items No. 1 thru item
No. 7.
It is hereby understood and agreed that the quantities shown herein are approximate only,
the unit price shall prevail, for the construction. The quantities herein are subject to increase
or decrease and that the Bidder as Contractor will take full payment therefor the following
sums.
Thereafter followed a description of the work to be done, the approximate quantities, the
unit price and the total amount.
On June 15, 1961 contract No. 2 was entered upon the following terms:
FOR THE TOTAL SUM OF; TWENTY FIVE THOUSAND THREE HUNDRED TEN
DOLLARS ($25,310.00), We, propose to furnish all Labor, Equipment, Materials and do all
work for four (4) items of work in the subject subdivision as we have them listed below.
[The work description is deleted.]
It is further stipulated the Bidder as Contractor shall receive payment in full upon the
completion of the above work.
On August 30, 1961 contract No. 3 was entered upon the following terms:
The undersigned as Contractor hereby proposes and agrees to furnish All Labor,
Equipment and Materials, and do All Work described below for Eleven {11) items of work
in Unit No.
88 Nev. 271, 274 (1972) Lagrange Construction, Inc. v. Kent Corp.
Work described below for Eleven (11) items of work in Unit No. 2 of Kingsbury Estates
Subdivision.
It is hereby understood and agreed that the quantities shown herein are approximate only,
the unit price shall prevail for the projects construction. The quantities herein are subject to
increase or decrease and that the Contractor will take full payment on the unit price basis for
the final quantities complete in place.
Thereafter followed a work description similar to that employed in contract No. 1.
On September 21, 1961 a fourth contract was agreed upon whereby Lagrange agreed to
install certain water lines and valves. Relative to this contract, the parties stipulated that each
party would engage an engineer to measure the quantities installed by Lagrange and compute
the monies earned. The trial court found that Lagrange had earned $36,707.40 on this
contract.
In addition to these contracts, an Extra Work Order No. 2 was agreed upon in connection
with contract No. 1.
Work was commenced by Lagrange, monthly billings were sent and payments were made.
The court found that Kent was not delinquent in making its payments. Apparently Lagrange
did not complete any of the contracts to Kent's satisfaction. Under the road construction
contracts, the evidence indicated that portions of the roads which were difficult to build
because of granite outcroppings were not completed, while, by and large, the easily
constructed portions were completed.
Lagrange voluntarily stopped work under all contracts on August 9, 1962 except that some
additional work on contract No. 2 was done later on. Kent was required to engage another
contractor to complete the job.
Lagrange sent a final statement to Kent on August 10, 1962 claiming amounts due on the
contracts to be $42,339.69.
After trial of the cross-claim, the district court treated contract No. 1 as indivisible but not
completed, treated contract No. 2 as indivisible but not completed, and treated contract No. 3
as divisible but substantially completed. By means of offsetting, the court determined that
Kent had overpaid Lagrange $5,515.36. Filed liens were discharged and attorney fees and
costs were awarded.
1. Appellant asserts here that the trial court erred in applying the theory that the contracts
were entire and indivisible. Lagrange believes that all the contracts are divisible and that he is
entitled to payment for work completed at the contract unit rates. Kent maintains that they are
entire contracts. Initially it may be noted that each contract employs different language,
therefore, we must analyze each separately.
88 Nev. 271, 275 (1972) Lagrange Construction, Inc. v. Kent Corp.
may be noted that each contract employs different language, therefore, we must analyze each
separately.
[Headnote 1]
Relative to contract No. 1 and Extra Work Order No. 2 (which does not state any terms but
arises from contract No. 1), on one hand it is stated that the unit price shall prevail, but on the
other hand the contractor agreed to take full payment as listed for quantities which were
subject to variation. This contract is ambiguous. In this situation the rule in Nevada is that the
interpretation placed upon the contract by the parties is entitled to great, if not controlling,
influence in determining the contract terms. Flyge v. Flynn, 63 Nev. 201, 239-40, 166 P.2d
539 (1946); Woods v. Bromley, 69 Nev. 96, 104-05, 241 P.2d 1103 (1952); Fredricks v. City
of Las Vegas, 76 Nev. 418, 356 P.2d 639 (1960); Schieve v. Warren, 87 Nev. 42, 482 P.2d
303 (1971).
[Headnote 2]
The trial court found that it was the intent of the parties that Lagrange was to take the good
with the bad, the easy with the difficult, and not that Lagrange could do the easy and cheap
portions of the road and be paid the full unit price therefor and leave the expensive and
difficult portions not completed.
[Headnote 3]
Therefore, it appears that the trial court correctly found contract No. 1 and Extra Work
Order No. 2 to be entire contracts per the intent of the parties. The measure of damages was
correctly computed based on the rule that the breaching party must place the nonbreaching
party in as good a position as if the contract were performed. Cladianos v. Friedhoff, 69 Nev.
41, 49, 240 P.2d 208 (1952); Hutchens v. Sutherland, 22 Nev. 363, 366 (1895).
Contract No. 2 by its terms requires completion before payment in full is to be made. The
court found contract No. 2 not to be completed, but that the reasonable value of $20,310.00
was earned by Lagrange.
Contract No. 3 provides that the contractor will be paid for the final quantities complete in
place at the unit rate. The court found contract No. 3 to be substantially performed except that
$2,000 worth of cleanup work was not done according to the contract.
2. Appellant claims that the findings are not supported by the record. NRCP 52(a) states
that Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be
given to the opportunity of the trial court to judge the credibility of the witnesses."
88 Nev. 271, 276 (1972) Lagrange Construction, Inc. v. Kent Corp.
given to the opportunity of the trial court to judge the credibility of the witnesses.
[Headnote 4]
Appellant contests all the findings against the evidence presented in Lagrange's case in
chief, but makes slight reference to respondent's evidence which does support the findings, if
believed. Nevertheless, the rule is still applied that where there is conflicting evidence a
finding will not be disturbed on appeal. Brandon v. Travitsky, 86 Nev. 613, 615, 472 P.2d
353 (1970); Sherman Gardens Co. v. Longley, 87 Nev. 558, 491 P.2d 48 (1971).
3. Finally, appellant alleges that the court erred in admitting secondary and speculative
evidence as to damages and in basing its judgment upon such evidence.
[Headnote 5]
In order to ascertain the contract damages suffered by respondent it was necessary to prove
the cost of completing the contracts. Because respondent had decided to complete only some
of the contracts, at trial evidence was presented whereby Kent's engineers and contractors
testified as to the cost of the additional work they had actually done and in addition made
estimates as to the cost of completing the project to the terms of Lagrange's contracts.
Appellant claims that the best evidence rule precluded this evidence by Kent's engineers
and contractors to prove the cost to complete the contracts. Appellant misunderstands the
rule. As stated by McCormick, The rule is this: in proving the terms of a writing, where such
terms are material, the original writing must be produced, unless it is shown to be unavailable
for some reason other than the serious fault of the proponent. C. McCormick, Handbook of
the Law of Evidence 409, 196 (1954). See NRS 52.235 and NRS 52.255.
[Headnote 6]
As to the speculative nature of the engineer's estimates, the uncertainty in the testimony
applies not to the existence of damages but rather to its extent or measure. The evidence was
competent to be weighed by the fact finder. Brown v. Lindsay, 68 Nev. 196, 205-06, 228 P.2d
262 (1951); Fireman's Fund Ins. v. Shawcross, 84 Nev. 446, 455, 442 P.2d 907 (1968).
Affirmed.
Batjer, Mowbray, Thompson, and Gunderson, JJ., concur.
____________
88 Nev. 277, 277 (1972) Nevada St. Bd. of Pharmacy v. Garrigus
THE NEVADA STATE BOARD OF PHARMACY, Consisting of N. E. BROADBENT,
MURDELL EARL, JOSEPH McBEATH, LONNIE TRUELL and WILLIAM LOCKE,
Appellant, v. ERNEST D. GARRIGUS and ARDWIN J. BLOCK, Respondents.
No. 6713
May 2, 1972 496 P.2d 748
Appeal from district court's ruling reversing administrative disciplinary proceedings.
Eighth Judicial District Court, Clark County; Thomas J. O'Donnell, Judge.
The State Board of Pharmacy revoked licenses of two pharmacists, and judicial review
was sought. The district court reversed, and the board appealed. The Supreme Court, Zenoff,
C. J., held that revocation of pharmacy licenses on ground of unprofessional conduct was
required to be reversed where pharmacists had checked with prescribing physician before
dispensing large quantities of addictive, synthetic drug, no proof was elicited as to what did
or did not constitute unprofessional conduct in the pharmacy business and no evidence was
presented as to what were the contemporary standards in the profession and it was not shown
that pharmacists knew that person to whom drugs were dispensed was a cheat and an addict
and was using several names and addresses to acquire the drugs.
Affirmed.
Robert List, Attorney General, and Robert A. Groves, Deputy Attorney General, Carson
City, for Appellant.
Harry E. Claiborne and Annette R. Quintana, of Las Vegas, for Respondents.
Cooke & Roberts, of Reno, and Sidney H. Willig, of Philadelphia, Pennsylvania, Amici
Curiae.
Drugs and Narcotics.
Revocation of pharmacy licenses by State Board of Pharmacy on ground of unprofessional conduct was
required to be reversed where pharmacists had checked with prescribing physician before dispensing large
quantities of addictive, synthetic drug, no proof was elicited as to what did or did not constitute
unprofessional conduct in the pharmacy business and no evidence was presented as to what were the
contemporary standards in the profession and it was not shown that pharmacists knew that person to whom
drugs were dispensed was a cheat and an addict and was using several names and
addresses to acquire the drugs.
88 Nev. 277, 278 (1972) Nevada St. Bd. of Pharmacy v. Garrigus
were dispensed was a cheat and an addict and was using several names and addresses to acquire the drugs.
NRS 639.210, subd. 1(d), 639.255, subd. 2.
OPINION
By the Court, Zenoff, C. J.:
Block and Garrigus were charged by the Nevada State Board of Pharmacy with furnishing
excessive quantities of narcotic drugs to a certain Larry Chapman and that by so doing they
were guilty of unprofessional conduct for which their licenses as pharmacists were revoked
by the board. On review the trial court reversed the board's judgment from which the Board of
Pharmacy now appeals.
An investigation by the Clark County District Attorney revealed that substantial quantities
of numorphan were dispensed on prescription of a Dr. Hulse by the two respondents who
were employed as pharmacists at a large Las Vegas market center called Wonder World
South. Numorphan is a synthetic drug and is addictive. It is used primarily to alleviate pain.
Between the period of April 6, 1970 and August 22, 1970 Block sold to Chapman (the
name is an alias) a total of 5,800 tablets on 33 separate occasions. At all times a proper
prescription from Hulse was provided and on several instances, almost from the first, both
Block and Garrigus checked with the prescribing physician to verify the legitimacy of the
prescriptions. Garrigus dispensed 3,450 of the numorphan tablets on 19 occasions. Block also
sold to Chapman 580 hypodermic syringes between June and August of 1970.
Despite the uncontroverted testimony of Block and Garrigus that they had verified the
prescriptions with Hulse's office and had been told that Chapman was suffering from terminal
cancer, hence the large dosage, their licenses were revoked.
NRS 639.255(2) provides that the action of the Board of Pharmacy shall be final except
that the propriety of its disciplinary action is subject to review upon questions of law by a
court of competent jurisdiction. The question becomes, what is the question of law that gives
rise to this court's review?
NRS 639.210(1)(d) allows the state board to suspend or revoke the license of any
pharmacist who is guilty of unprofessional conduct or conduct contrary to the public
interest. . . . In its rules the board did not define what amounts of drugs are medically or
pharmaceutically excessive.
88 Nev. 277, 279 (1972) Nevada St. Bd. of Pharmacy v. Garrigus
medically or pharmaceutically excessive. At the hearing before the board there was no
evidence or testimony produced that established what the standard was that constituted
conduct that became unprofessional if breached. Unlike Moore v. Board of Trustees, 88 Nev.
207, 495 P.2d 605 (1972), an ungloved doctor fingering a hypodermic needle just before it
was to be inserted into a patient's body was ipso facto unprofessional for the act in such
circumstances speaks for itself, but such blatancy does not exist here. See also Nevada State
Board of Chiropractic Examiners v. Babtkis, 83 Nev. 385, 432 P.2d 498 (1967). Narcotics in
proper doses are commonly prescribed.
The accused pharmacists have a right to know what they have violated. There is no
evidence in the record that the amount of drugs sold to Chapman was excessive under the
circumstances, no proof was elicited as to what does or does not constitute unprofessional
conduct in the pharmacy business, and no evidence was presented as to what were the
contemporary standards in the profession. Under what circumstances should a pharmacist set
up his judgment against that of a licensed physician? It would be a dangerous principle to
establish that a druggist cannot safely fill a prescription merely because it is out of the
ordinary. If that were done, many patients might die from being denied unusual remedies in
extreme cases. People's Service Drug Stores v. Somerville, 158 A. 12 (Md.App. 1932). While
that was an action for damages against a pharmacy for filling a prescription calling for a large
dose of strychnine the Maryland court stressed the absence of any witness to establish exactly
what would have required a pharmacist to decline to fill the prescription.
The profession of medicine calls for different requisites than the profession of pharmacy
and it is not for the pharmacist to second guess a licensed physician unless in such
circumstances that would be obviously fatal. The court in Somerville, supra, formulated the
test to be that where the doses prescribed were unusual inquiry of the physician should be
made to ascertain that there has been no error. Block and Garrigus did so inquire several
times. They discharged their duty.
We are furnished nothing in this record to tell this court what in the pharmaceutical
profession constitutes unprofessional conduct. The fact that the respected members of the
board felt respondents' conduct improper is not enough to provide their hearing with requisite
due process. That Chapman was a cheat and an addict and was using several names and
addresses to acquire all of the drugs that he could get was unknown to petitioners and no
circumstances are shown that Block and Garrigus should have known of it, or even if they
did, that their conduct breached any established standard for the record does not show
that a guideline standard exists.
88 Nev. 277, 280 (1972) Nevada St. Bd. of Pharmacy v. Garrigus
acquire all of the drugs that he could get was unknown to petitioners and no circumstances
are shown that Block and Garrigus should have known of it, or even if they did, that their
conduct breached any established standard for the record does not show that a guideline
standard exists.
Affirmed.
Batjer, Mowbray, Thompson, and Gunderson, JJ., concur.
____________
88 Nev. 280, 280 (1972) Tigner v. State
EDMUND TIGNER and LINDA PRESCOTT, Appellants, v.
THE STATE OF NEVADA, Respondent.
No. 6643
May 2, 1972 496 P.2d 159
Appeal from convictions of sale of narcotics. Second Judicial District Court, Washoe
County; Grant L. Bowen, Judge.
The district court found defendant guilty of selling narcotics and codefendant guilty of
aiding and abetting in sale of narcotics and they appealed. The Supreme Court, Zenoff, C. J.,
held that where there was no indication in record as to why testimony of subsequent sale of
narcotics by defendant was elicited and jury was not instructed to consider evidence for
limited purposes, conviction on charge of selling narcotics would be reversed and that
evidence was insufficient to sustain codefendant's conviction on charge of aiding and abetting
sale of narcotics.
Reversed and remanded for new trial as to Tigner.
Reversed as to Prescott.
Cooke & Roberts, of Reno, and Carl F. Martillaro, of Carson City, for Appellants.
Robert List, Attorney General, Robert E. Rose, District Attorney, and Kathleen M. Wall,
Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Where there was no indication in record as to why testimony of subsequent sale of narcotics by defendant
was elicited and jury was not instructed to consider evidence for limited purposes, conviction on charge of
selling narcotics would be reversed.
88 Nev. 280, 281 (1972) Tigner v. State
2. Drugs and Narcotics.
Evidence in prosecution on charge of aiding and abetting in sale of narcotics was not sufficient to sustain
conviction.
OPINION
By the Court, Zenoff, C. J.:
Appellants Tigner and Prescott were convicted of selling narcotics following a jury trial at
Reno, Nevada.
1. Appellant Tigner raises several issues on appeal, however, we need only discuss one.
Tigner asserts that the trial court erred in permitting evidence of a subsequent sale of
narcotics. We agree.
The evidence of Tigner's subsequent sale of narcotics came into the record on rebuttal
wherein the following questions were posed to state's witness Jones:
By Mr. Ahlswede:
Q Did you ever purchase any other narcotics from Mr. Tigner?
A Yes. I purchased numorphan.
Q Was this prior to the sale or subsequent to the sale of September 18?
A This was subsequent to it.
Q Can you state what happened on that occasion?
Mr. Reese: Objection, your Honor.
[Headnote 1]
There is no indication in the record why this testimony was elicited, nor were instructions
given to the jury to consider the evidence for limited purposes. Nester v. State, 75 Nev. 41,
334 P.2d 524 (1959). For the reasons stated in Lindsay v. State, 87 Nev. 1, 478 P.2d 1022
(1971), we reverse Tigner's conviction and remand for a new trial.
[Headnote 2]
2. Appellant Prescott asserts that she is not guilty as a matter of law in aiding and
abetting. Testimony of witness Jones inconclusively indicated that Prescott was a participant
in the initial transaction involving the heroin; she, however, took the stand in her own behalf
and denied any knowledge of the sale. Ordinarily it was within the exclusive province of the
jury to determine the credibility of Jones and Prescott. Cross v. State, 85 Nev. 580, 460 P.2d
151 (1969). We have examined the record with care and find that the evidence implicating
Prescott is not sufficient to convict.
88 Nev. 280, 282 (1972) Tigner v. State
Prescott is not sufficient to convict. Also, the jury might well have been prejudicially affected
in its consideration of the case against Tigner. We reverse Prescott's conviction.
Reversed and remanded for a new trial as to Tigner.
Reversed as to Prescott.
Batjer, Mowbray, Thompson, and Gunderson, JJ., concur.
____________
88 Nev. 282, 282 (1972) LaFever v. City of Sparks
CAROL LaFEVER, Individually and as Parent and Next Friend of
James Howard LaFever and Kenneth Wesley LaFever, Minors, Appellant,
v. THE CITY OF SPARKS, Respondent.
No. 6649
May 3, 1972 496 P.2d 750
Appeal from summary judgment of the Second Judicial District Court, Washoe County;
John E. Gabrielli, Judge.
Surviving wife and sons brought action against city, driver of automobile in which
plaintiff's decedent was riding, and driver's employer for wrongful death of automobile
passenger in intersectional collision. The district court rendered summary judgment for City,
and plaintiff appealed. The Supreme Court, Thompson, J., held that under statutes charging
State with responsibility for construction and maintenance of state highways and precluding
local authority from placing a traffic control device thereon without State's prior approval,
City could not be held liable for failure to replace knocked down stop sign at intersection of
state highways.
Affirmed.
Hibbs & Bullis, and Stanley L. Lyon, of Reno, for Appellant.
Paul Freitag, Sparks City Attorney, and Leslie A. Leggett and Paul F. Hamilton, of Reno,
for Respondent.
1. Automobiles.
Under statutes charging State with responsibility for construction and maintenance of state highways and
precluding local authority from placing a traffic control device thereon without State's prior approval, City
could not be held liable, in action for wrongful death arising from intersectional collision, for
failure to replace knocked down stop sign at intersection of state highways.
88 Nev. 282, 283 (1972) LaFever v. City of Sparks
wrongful death arising from intersectional collision, for failure to replace knocked down stop sign at
intersection of state highways. NRS 408.285, subd. 1, 484.783, subd. 2.
2. Automobiles.
A governmental decision to provide or not to provide traffic control cannot ground a cause of action;
such a decision is discretionary and falls within reach of statute precluding action against political
subdivision based on performance of or failure to perform a discretionary function by political subdivision.
NRS 41.032, subd. 2.
3. Automobiles.
Judgment of traffic officer, who drove through intersection one-half hour before fatal collision at 3:46 on
a Sunday morning and noticed downed stop sign, that downed stop sign did not constitute a traffic hazard
was within his discretion and did not subject City to liability, in action for wrongful death stemming from
collision, for failure to assign traffic officer to direct traffic at the intersection. NRS 41.032, subd. 2.
OPINION
By the Court, Thompson, J.:
This appeal is from a summary judgment in favor of a codefendant, City of Sparks, in a
wrongful death action commenced by the surviving wife and sons of a deceased passenger
against the City, the driver of the automobile in which the decedent was riding, and the
driver's employer.
1
With regard to the defendant City, the plaintiff alleged that it had failed
to replace a knocked down stop sign at the intersection of B Street (State Highway Rt. 1) and
Prater Way (State Highway Rt. 32(a)), in Sparks, Nevada, which omission caused the
automobile in which the decedent was riding to collide with a large semi-truck. The State of
Nevada owns B Street and Prater Way, including the intersection of those streets, installed the
stop signs there in place, and maintained them. We affirm the summary judgment.
[Headnote 1]
1. NRS 408.285(1) charges the State with the responsibility for the construction,
reconstruction, improvement and maintenance of state highways, and NRS 484.783(2)
precludes the local authority from placing a traffic control device thereon without the
State's prior approval.2 In these circumstances, the City may not be held liable for failing
to replace a stop sign since the duty to do so lies elsewhere.
____________________

1
The district court determined that there was no just reason to delay entry of a final judgment for the
codefendant, City of Sparks. NRCP 54(b).
88 Nev. 282, 284 (1972) LaFever v. City of Sparks
thereon without the State's prior approval.
2
In these circumstances, the City may not be held
liable for failing to replace a stop sign since the duty to do so lies elsewhere. McNulty v.
Commonwealth of Pennsylvania, 314 F.Supp. 1274 (1970); Gillespie v. City of Los Angeles,
225 P.2d 522 (Cal. 1950); Bartlett v. State, 301 P.2d 985 (Cal.App. 1956).
3

[Headnote 2]
2. The appellant contends that the City may be liable for failing to assign a traffic officer
to direct traffic at the intersection. This contention is without force. A governmental decision
to provide or not to provide traffic control cannot ground a cause of action. Hoy v. Capelli,
222 A.2d 649 (N.J. 1966). Such a decision is discretionary and falls within the reach of NRS
41.032(2) precluding an action against a political subdivision which action is based upon the
performance or the failure to perform a discretionary function. Cf. Harrigan v. City of Reno,
86 Nev. 678, 475 P.2d 94 (1970); State v. Silva, 86 Nev. 911, 478 P.2d 591 (1970). Thus,
were we to assume City control of the intersection and the stop signs (which we may not
assume as discussed above), the City would enjoy immunity from this suit.
[Headnote 3]
The record before us points out the need for immunity where pure discretion is involved.
The accident occurred at 3:46 on a Sunday morning. A traffic officer had driven through the
intersection one-half hour earlier and had noticed the downed stop sign, but did not believe
that it constituted a traffic hazard. That was a judgment call on his partone within his
discretion to make.
Affirmed.
Zenoff, C. J., and Batjer, Mowbray, and Gunderson, JJ., concur.
____________________

2
NRS 408.285(1): The highways which are constructed, reconstructed, improved and maintained by the
department. . . shall be state highways, and the department shall be charged with the responsibility of such
construction, reconstruction, improvement and maintenance. . . .
NRS 484.783(2): No traffic control device shall be placed by a local authority on a highway constructed
and maintained by the department. . . without prior approval by the department.

3
The appellant's reliance upon the opinion of this court in Las Vegas v. Schultz, 59 Nev. 1, 83 P.2d 1040
(1938), is misplaced since that case concerned the duty of a City to remove a temporary movable obstruction, a
load of poles, left by a third party on the surface of the street.
____________
88 Nev. 285, 285 (1972) Fox v. Morris
MOE FOX, Appellant, v. MILDRED L. MORRIS and TITLE
INSURANCE & TRUST COMPANY, Respondents.
No. 6712
May 3, 1972 496 P.2d 158
Appeal from order of the Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
Action was brought by a maker of secured note against payee to enjoin sale of land
pursuant to power of sale provision in deed of trust securing the note. The district court
vacated the temporary restraining order and denied motion for preliminary injunction, and
plaintiff appealed. The Supreme Court held that note providing that money should be paid
within 60 days of date of note or sooner, if a portion of the real property securing note was
sold, required payment within 60 days even if subject property was not sold and maker of
note was not entitled to enjoin sale of property where he had defaulted in payments on note.
Affirmed.
Lester H. Berkson, of Stateline, for Appellant.
Lloyd V. Smith and Robinson & Cassas, of Reno, for Respondents.
1. Bills and Notes.
Clause in note providing that money should be paid within 60 days of date of note or sooner, if a portion
of the real property securing note was sold, required payment within 60 days even if subject property was
not sold.
2. Mortgages.
Where secured note provided that money should be paid within 60 days or sooner, if a portion of real
property securing note was sold, maker who defaulted in payments was not entitled to injunction
restraining payee from selling land pursuant to power of sale provision in deed of trust securing the note.
OPINION
Per Curiam:
This appeal stems from an action brought by appellant to enjoin respondents from selling
certain unimproved real estate pursuant to a power of sale contained in a deed of trust
covering said property. A temporary restraining order enjoining the proposed sale issued at
the commencement of the proceedings in the lower court was vacated and appellant's
motion for a preliminary injunction was denied.
88 Nev. 285, 286 (1972) Fox v. Morris
the proposed sale issued at the commencement of the proceedings in the lower court was
vacated and appellant's motion for a preliminary injunction was denied. Appeal is from the
order vacating the temporary restraining order and from the order denying appellant's motion
for a preliminary injunction.
The appellant Moe Fox and respondent Mildred L. Morris are each the owners of an
undivided one-third interest in unimproved real property located at Incline Village, Nevada.
On July 10, 1970, appellant together with Gary Sanders, owner of the remaining one-third
interest in the property, executed a promissory note for $80,312 in favor of respondent
Morris. This note was secured by a deed of trust on the Incline Village property covering the
two-thirds interest owned by appellant and Mr. Sanders.
[Headnotes 1, 2]
The portion of the note pertinent to this appeal provides that seventy-five thousand
($75,000) dollars shall be paid within sixty days of the date of this note or sooner, if a portion
of the real property securing the note is sold; . . . . No payments had been made on the note;
nor had any portion of the property been sold at the time Morris filed her notice of default on
December 21, 1970.
The trial court interpreted that clause in favor of respondent Morris, and determined that
the $75,000 was to be paid within sixty days, even without a sale of the subject property, and
that a default had occurred.
The ambiguity in the clause, if any, was resolved in favor of respondent Morris. We accept
the court's interpretation of the provision calling for payment within sixty days and its finding
that a default had occurred. Consequently, there is no reason why Morris should not be
permitted to sell the property pursuant to the power of sale provision in the deed of trust.
Bankers Trust Co. v. Bordwell, 79 Nev. 473, 386 P.2d 732 (1963). The decision of the lower
court vacating the temporary restraining order and denying appellant's motion for a
preliminary injunction is affirmed.
____________
88 Nev. 287, 287 (1972) Pease v. Taylor
ARTHUR E. PEASE, a.k.a. EMERY ARTHUR PEASE,
Appellant, v. WESLEY S. TAYLOR, Respondent.
No. 5909
May 4, 1972 496 P.2d 757
Appeal from action on promissory note. First Judicial District Court, Douglas County;
Richard L. Waters, Jr., Judge.
Action by lender against borrower to recover amount allegedly due on note. Upon remand,
86 Nev. 195, 467 P.2d 109 (1970), the district court entered judgment for plaintiff, and
defendant appealed. The Supreme Court, Zenoff, C. J., held that where lender deposited
$12,000 in escrow through which he received 90-day note for $16,500, and sum in escrow
was diminished by $1,100 in loan fees paid to lender's agents, the transaction was usurious,
and lender could recover only the actual cash advance of $10,900 without any interest
thereon. The Court further held that lender was entitled to recover attorney's fees, even
though the transaction was usurious where borrower made no offer of judgment nor offer of
payment of principal, and lender relied on prior decision which was overruled as to issue of
usury in his action, but award of $2,500 for attorney's fee would be modified to $1,500.
Affirmed, as modified.
Thompson, J., dissented in part.
Ross & Crow, of Carson City, for Appellant.
Lester H. Berkson, of Stateline, for Respondent.
Prince A. Hawkins and F. DeArmond Sharp, of Reno, Amicus Curiae.
1. Usury.
Burden of proving that a transaction is usurious rests upon the party attacking it.
2. Usury.
Standard of proof in usury actions is preponderance of the evidence.
3. Usury.
Extraction of a broker's fee by the lender or his agent is to be considered in computing amount of interest
due from the borrower.
4. Usury.
Court will look to the substance of the transaction and the intent of the parties in determining whether an
agreement is usurious.
88 Nev. 287, 288 (1972) Pease v. Taylor
5. Usury.
In absence of actual expense, extraction of additional compensation for the use of money under guise of
broker's fee violates the spirit, if not the letter, of the laws prohibiting usury.
6. Usury.
Although brokers who negotiate loans may be lawfully reimbursed for their services, and extraction by
agent, who is authorized to lend money for his principal, of money from the borrower for his own benefit,
without knowledge or authority of such principal, does not make the transaction usurious, when a lender,
through his authorized agent, makes loans under a general agreement that the lender's agent must look to
the borrower for a commission, such action may make the contract usurious, whether the lender knew of
the charge or not.
7. Usury.
In light of evidence establishing that broker's commissions in connection with loan were not legitimate
loan expenses, and inferring that lender either charged the fee himself or ratified such a charge, broker's fee
would be computed as interest in determining whether the agreement was usurious.
8. Usury.
A note is to be tested for usury with reference to the actual sum given by the lender to the borrower, and
not by the face of the note.
9. Usury.
In testing for a usurious exaction, a fee or bonus beyond the legal rate of interest constitutes an additional
charge for interest.
10. Usury.
Generally, a usury statute is penal in character and must be strictly construed.
11. Statutes.
To strictly construe a statute does not require a court to emasculate its purpose.
12. Usury.
A usury statute manifests a legislative intent to make it more drastic against usurer and more favorable to
the borrower.
13. Usury.
Excessive rate of interest, within statute providing that any agreement for greater rate of interest than
therein specified would be null and void and of no effect as to such excessive rate of interest, includes all
interest and not solely the excess. NRS 99.050, subd. 2.
14. Usury.
Where lender deposited $12,000 in escrow through which he received 90-day note for $16,500, and sum
in escrow was diminished by $1,100 in loan fees paid to lender's agents, the transaction was usurious,
and lender could recover only the actual cash advance of $10,900 without any interest thereon; overruling
Kline v. Robinson, 83 Nev. 244, 428 P.2d 190 (1967). NRS 99.050.
15. Usury.
Lender, in action against borrower to recover amount allegedly due on note, was entitled to recover
attorney's fee, even though the transaction was usurious, where borrower made no offer of judgment nor
offer of payment of principal, and lender relied on prior decision which was overruled
as to issue of usury in his action, but award of $2,500 for attorney's fee would be
modified to $1,500.
88 Nev. 287, 289 (1972) Pease v. Taylor
judgment nor offer of payment of principal, and lender relied on prior decision which was overruled as to
issue of usury in his action, but award of $2,500 for attorney's fee would be modified to $1,500.
OPINION
By the Court, Zenoff, C. J.:
Respondent Taylor commenced this action against appellant Pease to recover $16,500,
which he claimed was due under the terms of a 90-day promissory note, plus attorney's fee
and costs. The note did not recite any interest rate but did provide that the makers, in case of
suit (there were two other makers, but these were not named party defendants in this action),
would pay all costs and expenses and such additional sums as the court may adjudge
reasonable as an attorney's fee in said suit or action. The district judge found in favor of
Taylor and against Pease and awarded him a judgment in the sum of $16,500 plus interest at
seven percent per annum running from the date of the note and $2,500 attorney's fee.
1

Pease has challenged the judgment of the district court on the grounds that (1) the $16,500
award is excessive because it includes usurious interest, (2) the $2,500 awarded as attorney's
fee is not an amount supported by the record, and (3) the trial judge erred in allowing seven
percent interest from the date of the note on the $16,500 award.
Taylor deposited but $12,000 in the escrow through which he received the note here
concerned, and this sum was diminished by $1,100 in loan fees paid out of the escrow to
his agents. Thus, we are concerned with a $16,500 note representing an actual cash advance
of $10,900.
2

[Headnotes 1, 2]
1. The burden of proving that a transaction is usurious rests upon the party attacking it.
McCullough v. Snow, 432 P.2d S11 {N.M. 1967); Brocke v. Naseath, 2S5 P.2d 291
{Cal.App. 1955). A great number of jurisdictions require the usual standard of proof in
civil matters, i.e., "preponderance of the evidence," which we now adopt.
____________________

1
This is the second time this case is before us. See Pease v. Taylor, 86 Nev. 195, 467 P.2d 109 (1970), where
we remanded the case to the district court so that adequate findings of fact and conclusions of law could be made
by the trial judge, to the end that the issues presented on appeal could be considered by this court.

2
The same agents also received $2,500 in loan fees from another contemporaneous transaction involving
appellant, who asks us to view such fees as diminishing further his obligations in the instant case. We decline to
do so because the record is unclear concerning the other transaction's relationship to the one before us and
concerning the present status of the obligation involved therein.
88 Nev. 287, 290 (1972) Pease v. Taylor
P.2d 811 (N.M. 1967); Brocke v. Naseath, 285 P.2d 291 (Cal.App. 1955). A great number of
jurisdictions require the usual standard of proof in civil matters, i.e., preponderance of the
evidence, which we now adopt. See Brocke v. Naseath, supra; Knoll v. Schleussner, 247
P.2d 370 (Cal.App. 1952); Damboorajian v. Woodruff, 214 N.W. 113 (Mich. 1927); 51
A.L.R.2d 1087 (1957).
[Headnote 3]
2. The exaction of a broker's fee by the lender or his agent is to be considered in
computing the amount of interest due from the borrower. National American Life Ins. Co. v.
Bayou Country Club, 403 P.2d 26 (Utah 1965); Clarke v. Horany, 27 Cal.Rptr. 901, 903
(Cal.App. 1963).
[Headnotes 4-6]
The court will look to the substance of the transaction and the intent of the parties in
determining whether an agreement is usurious. Kline v. Robinson, 83 Nev. 244, 428 P.2d 190
(1967). In the absence of actual expense, the exaction of additional compensation for the use
of money under the guise of a broker's fee violates the spirit, if not the letter, of the laws
prohibiting usury. Brokers who negotiate loans may be lawfully reimbursed for their services,
as for example, where one negotiates a loan through a third party with a money lender and the
latter bona fide lends the money at a legal rate of interest, the transaction is not made usurious
merely by the fact that the intermediary charges the borrower with a broker's commission, the
intermediary having no legal or established connection with the lender.
3
Or, when an agent
authorized to lend money for his principal exacts, without knowledge or authority of such
principal, money from the borrower for his own benefit, this does not make the transaction
usurious. However, when a lender, through his authorized agent, makes loans under a general
agreement that the lender's agent must look to the borrower for a commission, this may make
the contract usurious, whether the lender knew of the charge or not.
[Headnote 7]
In the instant case the evidence establishes that the commissions were not legitimate loan
expenses. Uncontroverted evidence inferred that the lender either charged the fee himself or
ratified such a charge. Pease having met his burden, the broker's fee may be computed as
interest in the determination of these issues.
____________________

3
See Altherr v. Wilshire Mortgage Corporation, 104 Ariz. 59, 448 P.2d 859 (1968).
88 Nev. 287, 291 (1972) Pease v. Taylor
broker's fee may be computed as interest in the determination of these issues.
[Headnotes 8, 9]
3. A note is to be tested for usury with reference to the actual sum given by the lender to
the borrower, and not by the face of the note. Taylor v. Budd, 18 P.2d 333 (Cal. 1933). In
testing for an usurious exaction, a fee or bonus beyond the legal rate of interest constitutes an
additional charge for interest. Haines v. Commercial Mortgage Co., 255 P. 805 (Cal. 1927);
Devers v. Greenwood, 293 P.2d 834 (Cal.App. 1956); Bochicchio v. Petrocelli, 11 A.2d 356
(Conn. 1940); Lydick v. Stamps, 316 S.W.2d 107 (Tex.App. 1958); Gilcrist v. Wright, 94
N.W.2d 476 (Neb. 1959).
4. NRS 99.050 provides in pertinent part:
1. Parties may agree, for the payment of any rate of interest on money due, or to become
due, on any contract, not exceeding, however, the rate of 12 percent per annum. . .
2. Any agreement for a greater rate of interest than herein specified shall be null and void
and of no effect as to such excessive rate of interest.
The note in this case made no express provision for any interest payment. Nevertheless, for
the reasons hereinafter set forth, NRS 99.050(2) should be read to bar the lender from
recovering any interest if the rate has exceeded the allowable 12 percent.
The purpose of laws prohibiting usury is stated in 91 C.J.S. 570-71, Usury 5:
Usury statutes form a part of the public policy of the state, so that contracts which are
usurious are contrary to the public policy of the state. The intent of usury statutes is to prevent
the charge of an excessive rate of interest, or usurious practices, on any pretext whatever. The
intent or purpose of the statute applies to extension and forbearance as well as to the original
loan.
Such statutes are enacted for the protection of the borrower and are for the prevention of
extortion and unjust oppression by unscrupulous persons who are ready to take undue
advantage of the necessitites [sic] of others. They proceed on the theory that a usurious loan is
attributable to such an inequality in the relation of the lender and borrower that the borrower's
necessities deprive him of freedom in contracting and place him at the mercy of the lender.
[Footnotes omitted.]
As stated by Justice Traynor in Stock v. Meek, 221 P.2d 15, 20 (Cal. 1950): "The theory
of [the usury] law is that society benefits by the prohibition of loans at excessive interest
rates, even though both parties are willing to negotiate them.
88 Nev. 287, 292 (1972) Pease v. Taylor
The theory of [the usury] law is that society benefits by the prohibition of loans at
excessive interest rates, even though both parties are willing to negotiate them.
. . .
If no loophole is provided for lenders, and all borrowers save fraudulent ones are
protected, usurious transactions will be discouraged.
In the construction of our own statute, the foregoing purpose must be kept in mind. It is
also to be remembered that usury was not illegal at common law; therefore, a statute which
prohibits the exaction of usury is the source from whence stems the power of the court in
dealing with such matters. Hawthorne v. Walton, 72 Nev. 62, 294 P.2d 364, 59 A.L.R.2d
519 (1956) (overruled on other grounds, 83 Nev. 244, 428 P.2d 190 (1967)).
[Headnotes 10-12]
As a general rule, a usury statute is penal in character and must be strictly construed.
Crisman v. Corbin, 169 Ore. 332, 128 P.2d 959 (1942). But to strictly construe a statute does
not require a court to emasculate its purpose. A usury statute manifests a legislative intent to
make it more drastic against the usurer and more favorable to the borrower. Milo Theater
Corp. v. National Theater Supply, 71 Idaho 435, 233 P.2d 425 (1951). The construction of the
usury statute by this court in Kline v. Robinson, 83 Nev. 244, 250, 428 P.2d 190 (1967), that
the sole penalty for a usurious contract consists of the denial to recover the interest exceeding
the 12 percent rate, is a much too mild reprimand.
When compared to our sister jurisdictions, this reprimand amounts to no penalty at all.
The statute (NRS 99.050) makes null and void any agreement calling for a greater rate of
interest . . . No reference is therein made to the excessive amount of interest as in the statutes
of Delaware, Missouri, Ohio, Pennsylvania and Tennessee.
4
It seems logical that all interest
be forfeited if the rate is illegal because our statute refers only to the rate, not the excess. By
such result the true concept that usury is wrong and should be penalized is thereby met.
Instead, by the view upon which the lower court relied, the lender suffers no penalty at all
for charging an illegal rate.
____________________

4
Delaware, Code Ann., Title 6, 2304:
(b) When a rate of interest for the loan or use of money exceeding that established by law has been reserved
or contracted for, the borrower or debtor shall not be required to pay the creditor the excess over the lawful rate .
. .
Missouri Ann. Code, 408.050:
. . . Any person who shall violate the foregoing prohibition of this
88 Nev. 287, 293 (1972) Pease v. Taylor
which the lower court relied, the lender suffers no penalty at all for charging an illegal rate.
In Arizona, if usurious interest is charged, the lender receiving such usurious interest loses
the right not only to the excess interest but all interest as well. ARS 44-1202.
In Oregon, the usury statute provides, [i]f it is ascertained in any action or suit brought on
any contract that a rate of interest has been contracted for greater than is authorized by this
chapter in money, [ORS 82.010(2) authorizes a maximum of 10 percent]. . . it shall be
deemed usurious, and shall work a forfeiture of the entire debt so contracted to the county
school fund of the county wherein such suit is brought. ORS 82.120(5). This statute was
construed in Crisman v. Corbin, supra.
In California, when an agreement is usurious, any stipulation to pay interest is null and
void, and no interest whatsoever is recoverable by the lender. West's Civil Code, 1916-2;
Stephans v. Herman, 225 Cal.App.2d 671, 37 Cal.Rptr. 746 (1964). As summarized by E.
Glushon, The California Usury Law, 43 Cal. St. B. J. 56, 65 (1968).
The borrower may recover all interest paid within two years on an usurious loan, not
merely the usurious excess, in an action for money had and received. Such action must be
brought within two years of payment but where the lender sues, the statute of limitations does
not preclude the borrowers from offsetting all interest paid, so as to reduce the principal of
the loan. [Footnotes omitted.]
Furthermore, in California, a plaintiff is entitled to recover treble the amount of interest
paid under the note during the year preceding the action.
____________________
section shall be subject to be sued, for any and all sums of money paid in excess of the principal and legal rate of
interest of any loan . . .
Ohio Rev. Code Ann., 1343.04:
Payments of money or property made by way of usurious interest, whether made in advance or not, as to the
excess of interest above the rate allowed by law at the time of making the contract, shall be taken to be payments
made on account of principal; and judgment shall be rendered for no more than the balance found due, after
deducting the excess of interest so paid.
Pennsylvania Stat. Ann., Title 41, 4:
When a rate of interest for the loan or use of money, exceeding that established by law, shall have been
reserved or contracted for, the borrower or debtor shall not be required to pay to the creditor the excess over the
legal rate . . .
Tennessee Code Ann., 47-14-112:
A defendant sued for money may avoid the excess over legal interest, by a plea setting forth the amount of
the usury. (Emphasis supplied.)
88 Nev. 287, 294 (1972) Pease v. Taylor
year preceding the action. Taylor v. Budd, 18 P.2d 333, 334 (Cal. 1933); West's Civil Code
1916-3(a).
5

Even in Nevada, in legislation entitled the Nevada Installment Loan and Finance Act (NRS
675.010-675.480, applicable to loans under $7,500), the legislature provided penalties
comparable to those in the jurisdictions above related for any violation of the statutory
provisions. NRS 675.480 provides:
Penalties for charging, contracting for, or receiving amounts in excess of charges
permitted by chapter.
1. If any amount in excess of the charges permitted by this chapter is charged, contracted
for, or received, except as the result of an accidental and bona fide error of computation, the
contract of loan shall be void, and the licensee shall have no right to collect or receive any
principal, charges or recompense whatever.
2. The licensee and the several members, officers, directors, agents and employees
thereof who shall have participated in such violation shall be guilty of a misdemeanor. See
also in this connection NRS 97.305.
[Headnote 13]
Therefore, it is our interpretation of NRS 99.050(2), stating that [a]ny agreement for a
greater rate of interest than herein specified shall be null and void and of no effect as to such
excessive rate of interest[,] that such excessive rate of interest includes all interest and not
solely the excess.
The Nevada case holding contrary to the foregoing position, Kline v. Robinson, supra, can
be distinguished on two grounds. First, the major issue in that case was whether a borrower
could recover excess usurious interest voluntarily paid. Hawthorne v. Walton, supra, was
overruled, and the court's attention was focused primarily on that facet of the case.
____________________

5
West's Civil Code 1916-3 also includes the following:
(b) Any person who willfully makes or negotiates, for himself or another, a loan of money, credit, goods, or
things in action, and who directly or indirectly charges, contracts for, or receives with respect to any such loan
any interest or charge of any nature, the value of which is in excess of that allowed by law, is guilty of
loan-sharking, a felony, and is punishable by imprisonment in the state prison for not more than five years or in
the county jail for not more than one year. This subdivision shall not apply to any person licensed to make or
negotiate, for himself or another, loans of money, credit, goods, or things in action, or expressly exempted from
compliance by the laws of this state with respect to such licensure or interest or other charge, or to any agent or
employee of such person when acting within the scope of his agency or employment. (Amended by Stats. 1970,
c. 784, p. 1497, 1, subject to approval by the people at a special election consolidated with the general election
to be held Nov. 3, 1970)
88 Nev. 287, 295 (1972) Pease v. Taylor
was focused primarily on that facet of the case. The statement that only the excess (as
opposed to all) interest would be recovered was interjected summarily. Second, when the
court in Kline stated, 83 Nev., at 250, that such excessive rate of interest over that allowed
by statute is recoverable by the borrower, the court considered neither legislative intent nor
public purpose and cited no authority in support of its statement over that allowed by
statute. Therefore, the precise issue was not subjected to such judicial deliberation as to
forestall questioning at this time.
[Headnote 14]
We conclude therefore that NRS 99.050(2) should be construed, as is clearly permitted by
a reading of its words, so that any agreement for a usurious rate of interest is null and void as
to all interest whatsoever.
[Headnote 15]
Under the circumstances the award of attorney's fee, having been predicated on the trial
court's assumption that the full recovery was proper, becomes excessive. Litigation was
unnecessary and the client should be responsible for his attorney's fee. Yet, the borrower
made no offer of judgment nor offer of payment of the principal and we expect that the lender
relied upon our Kline v. Robinson, supra, which we now overrule as to the issue of usury.
Under the circumstances we allow the attorney's fee modified, however, to the sum of $1,500.
Further discussion concerning computation of interest is obviated.
The judgment of the trial court is affirmed, but modified, so that judgment will enter for
$10,900 plus $1,500 attorney's fee and costs of the suit.
6

Affirmed, as modified.
Batjer, Mowbray, and Gunderson, JJ., concur.
Thompson, J., dissenting in part only:
Parties may agree for the payment of any rate of interest not exceeding, however, the rate
of 12 percent per annum. NRS 99.050(1). Any agreement for a greater rate of interest is void
and of no effect as to such excessive rate of interest. NRS 99.050{2).
____________________

6
The court wishes to express its appreciation to Prince A. Hawkins and F. DeArmond Sharp of the law firm
Hawkins, Rhodes & Hawkins for filing an Amicus Curiae brief in this appeal at the request of the court.
88 Nev. 287, 296 (1972) Pease v. Taylor
99.050(2). It is clear to me that an agreement for a rate of interest greater than 12 percent per
annum is void only as to such excessive rate, that is, the rate in excess of 12 percent per
annum. In Kline v. Robinson, 83 Nev. 244, 428 P.2d 190 (1967), this court so ruled.
Although we have no duty to follow an absurd or obsolete decision and blindly adhere to
stare decisis (see dissenting opinion, Sargeant v. Sargeant, 88 Nev. 223, 495 P.2d 618
(1972)), the interpretation placed upon NRS 99.050 by this court in Kline is sensible.
Consequently, I think that it is unwise to void such a recent holding and intrude upon the
legislative province. Otherwise, I agree with today's opinion.
____________
88 Nev. 296, 296 (1972) Himmage v. State
FRANKLIN DELONAR HIMMAGE, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 6246
May 4, 1972 496 P.2d 763
Appeal from conviction of burglary. Second Judicial District Court, Washoe County; John
F. Sexton, Judge.
A motion to suppress evidence was denied, and defendant was convicted in the district
court and he appealed. The Supreme Court, Mowbray, J., held that where the parolee as a
condition of his parole had agreed in writing that his parole officer could search his person,
his residence or auto at any time of the day or night upon any occasion when the officer
believed there was reasonable cause to conduct such search, and where additionally the
parolee at time of search gave his parole officer express permission to search the parolee's
apartment, and the search was made as a result of information received from a police officer
that the parolee had been involved in a burglary, a nighttime search of the parolee's apartment
by the parole officer was constitutionally permissible.
Affirmed.
H. Dale Murphy, Public Defender, and William Whitehead, III, Deputy Public Defender,
Washoe County, for Appellant.
Robert List, Attorney General, Carson City; Robert E. Rose, District Attorney, and Gary R.
Silverman, Deputy District Attorney, Washoe County, for Respondent.
88 Nev. 296, 297 (1972) Himmage v. State
1. Pardon and Parole; Searches and Seizures.
Condition of parole under which narcotics offender's parole officer could search parolee's person,
residence or auto at any time of day or night upon any occasion when parole officer believed there was
reasonable cause to conduct such search was valid and did not constitute unreasonable invasion of Fourth
Amendment rights. U.S.C.A.Const. Amend. 4.
2. Searches And Seizures.
Where parolee as condition of parole agreed in writing that his parole officer could search his person, his
residence or auto at any time of day or night upon any occasion when his parole officer believed there was
reasonable cause to conduct such search, and where additionally the parolee at time of search gave his
parole officer express permission to search parolee's apartment, and search was made as result of
information received from police officer that parolee had been involved in burglary, nighttime search of
parolee's apartment by parole officer was constitutionally permissible. U.S.C.A.Const. Amend. 4.
OPINION
By the Court, Mowbray, J.:
The narrow issue presented for our consideration on this appeal is whether it is
constitutionally permissible under the Fourth Amendment to the Constitution of the United
States for a parole officer to make a nighttime search of a parolee's apartment when such
search is made as the result of information received from a police officer that the parolee had
been involved in a burglary.
Himmage, the appellant-defendant, was paroled from the Nevada State Prison, where he
had been serving time on a 5- to 6-year sentence for robbery. On July 21, 1969, in a burglary
of the Osborne & Dermody, Inc., store in Reno, four television sets were removed from the
premises. The Reno police obtained a description of each of the TV sets and their serial
numbers. The police also had information that Himmage had one of the sets in his apartment,
and they advised his parole officer, Robert Burns, of this information. Burns, with police
officers, went to Himmage's apartment in the early hours of September 10, 1969. They were
admitted to the apartment by Himmage, and they told him of the purpose of their visit. Burns
requested Himmage's permission to search the apartment. Permission was granted, and one of
the missing TV sets was located. Himmage was later charged with burglary and, after a
preliminary hearing, was held to answer the charge in the district court. He moved to suppress
the admission of the television set as evidence in the trial.
88 Nev. 296, 298 (1972) Himmage v. State
television set as evidence in the trial. The district judge properly denied the motion to
suppress.
When Himmage was paroled, he agreed in writing, as one of the conditions of his parole,
that his parole officer could search his person, his residence, or his auto at any time of the
day or night, upon any occasion when his parole officer believed there was reasonable cause
to conduct such a search. Additionally, in this case Himmage at the time of the search gave
Burns his express permission to search the apartment.
The recent case of People v. Mason, 97 Cal.Rptr. 302 (Cal. 1971), cert. denied, 405 U.S.
1016 (U.S. Mar. 27, 1972) (No. 71-803), is on point. The facts in Mason are almost identical
with those in this case, except that Mason, who was a probationer rather than a parolee, did
not expressly consent to the search in question, as Himmage did in the instant case. The
California Supreme Court, speaking through Mr. Justice Burke, said (97 Cal.Rptr. at 303-304,
305):
Our analysis of the question requires a two-step approach. First, we must determine
whether by the terms of the condition the officers were permitted to conduct a particular
search without obtaining defendant's prior consent to that search. Second, if no prior consent
was required, we must determine whether that condition constituted an unreasonable or
unconstitutional invasion of defendant's rights.
Defendant contends that since the condition required him to submit to a search whenever
requested to do so,' the officers should have requested permission to search, thereby affording
defendant the opportunity to grant or refuse permission. To so construe the condition would,
however, render it utterly meaningless. A condition' implies a qualification or restriction;
accordingly, a condition to a grant of probation contemplates some limitation upon the
probationer's rights. (See In re Bushman, 1 Cal. 3d 767, 776, 83 Cal.Rptr. 375, 463 P.2d 727.)
If defendant had the right to withhold his consent to a warrantless search, the protection
thereby afforded him would have been as broad as that afforded all other persons under the
Fourth Amendment. . . .
We also note that to accept defendant's interpretation of the probation condition would
defeat the acknowledged purposes of such a provision to deter further offenses by the
probationer and to ascertain whether he is complying with the terms of his probation. With
knowledge he may be subject to a search by law enforcement officers at any time, he will be
less inclined to have narcotics or dangerous drugs in his possession.
88 Nev. 296, 299 (1972) Himmage v. State
The purpose of a unexpected, unprovoked search of defendant is to ascertain whether he is
complying with his terms of probation; to determine not only whether he disobeys the law,
but also whether he obeys the law. Information obtained under such circumstances would
afford a valuable measure of the effectiveness of the supervision given the defendant and his
amenability to rehabilitation.' (People v. Kern, 264 Cal.App. 2d 962, 965, 71 Cal.Rptr. 105,
107.)
Turning to the question of the validity of the condition as we have interpreted it, we are
guided by the principles set forth in In re Bushman, supra, 1 Cal. 3d 767, 776-777, 83
Cal.Rptr. 375, 381, 463 P.2d 727, 733, as follows: When granting probation, courts have
broad discretion to impose restrictive conditions to foster rehabilitation and to protect public
safety. . . . If the defendant considers the conditions of probation more harsh than the sentence
the court would otherwise impose, he has the right to refuse probation and undergo the
sentence. [Citations.] In such case he may challenge the legality of any proposed conditions
of probation on an appeal from the judgment or on habeas corpus. [Citations.]
. . .'
. . .
Defendant contends that a probation condition which requires submission to a warrantless
search constitutes an unreasonable invasion of his Fourth Amendment rights. We have
heretofore suggested, however, that persons conditionally released to society, such as
parolees, may have a reduced expectation of privacy, thereby rendering certain intrusions by
governmental authorities reasonable' which otherwise would be invalid under traditional
constitutional concepts, at least to the extent that such intrusions are necessitated by
legitimate governmental demands. (See In re Martinez, 1 Cal. 3d 641, 647, fn. 6, 83 Cal.Rptr.
382, 463 P.2d 734; cf. People v. Gilkey, 6 Cal.App.3d 183, 186-188, 85 Cal.Rptr. 642, and
cases cited.) Thus, a probationer who has been granted the privilege of probation on condition
that he submit at any time to a warrantless search may have no reasonable expectation of
traditional Fourth Amendment protection. (Footnote omitted.)
[Headnotes 1, 2]
We approve the reasoning of Mason, and we affirm Himmage's judgment of conviction.
Zenoff, C. J., and Batjer, Thompson, and Gunderson, JJ., concur.
____________
88 Nev. 300, 300 (1972) Swogger v. Sunrise Hospital, Inc.
BETTY SWOGGER, Appellant, v. SUNRISE HOSPITAL,
INC., Respondent.
No. 6662
May 4, 1972 496 P.2d 751
Appeal from judgment of the Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
Action by hospital against wife to recover reasonable value of services provided deceased
husband. The district court found for hospital and wife appealed. The Supreme Court held
that where husband had not abandoned or deserted wife, neither had secured decree of
separate maintenance, and wife had not availed herself of sole trader statute, hospital which
furnished services to husband who died leaving no community or separate property was
entitled to recover reasonable value of such services from wife.
Affirmed.
Boyd, Leavitt & Freedman, of Las Vegas, for Appellant.
R. Ian Ross, of Las Vegas, for Respondent.
1. Husband and Wife.
As general rule, separate property of wife is not liable for debts of her husband nor are her earnings so
liable. NRS 123.040, 123.210.
2. Husband and Wife.
Where husband had not abandoned nor deserted wife, neither had secured decree of separate
maintenance, and wife had not availed herself of sole trader statute, hospital which furnished services to
husband who died leaving no community or separate property was entitled to recover reasonable value of
such services from wife. NRS 123.040, 123.090, 123.110, 123.210, 124.010 et seq.
OPINION
Per Curiam:
Sunrise Hospital brought an action against Betty Swogger to recover the reasonable value
of hospital services furnished to her husband, Thomas Swogger, during his last illness.
Thomas died leaving no community or separate property. The sole issue tendered to the
district court, and now to us, is whether Betty's separate property is liable for the hospital debt
incurred by her husband. This issue is presented in a context where the husband had not
abandoned or deserted his wife, neither had secured a decree of separate maintenance, nor
had the wife availed herself of the sole trader statute, NRS ch. 124
88 Nev. 300, 301 (1972) Swogger v. Sunrise Hospital, Inc.
secured a decree of separate maintenance, nor had the wife availed herself of the sole trader
statute, NRS ch. 124. This opinion is limited accordingly.
[Headnotes 1, 2]
As a general rule, the separate property of the wife is not liable for the debts of her
husband, NRS 123.210, nor are her earnings so liable, NRS 123.040. An exception to that
rule appears in NRS 123.110 which provides that the wife must support the husband out of
her separate property when he has no separate property and they have no community property
and he, from infirmity, is not able or competent to support himself. This duty to support
necessarily runs to the benefit of creditors who supply necessaries of life to the infirm,
impecunious husband. Cf. NRS 123.090.
1

Affirmed.
____________________

1
Were Sunrise Hospital a public rather than a private hospital, there would be no question about its right to
recover. See NRS 450.390(2) which provides: Every such inhabitant or person who is not a pauper and every
relative required by the laws of this state to support any such inhabitant or person who is a pauper shall pay to
the governing head, or such officer as it shall designate, a reasonable compensation for occupancy, nursing, care,
medicine and attendance, other than medical or surgical attendance, according to the rules and regulations
prescribed by the governing head. If after demand by the governing head, or such officer as it may designate,
such inhabitant, person or relative shall fail, refuse or neglect to pay such compensation, the same may be
recovered in a suit at law brought by the governing head.
____________
88 Nev. 301, 301 (1972) M-R Sign Co. v. Avery
M-R SIGN COMPANY, INC., a Minnesota Corporation,
Appellant, v. HOLLIS N. AVERY, Respondent.
No. 6739
May 5, 1972 496 P.2d 756
Appeal from a judgment of the Eighth Judicial District Court, Clark County; Howard W.
Babcock, Judge.
The district court entered order setting aside default judgment, and appeal was taken. The
Supreme Court held that evidence, in hearing on motion to set aside default judgment,
including movant's assertion in attached affidavit that he relied upon statements of his
counsel that matter would be resolved out-of-state and that answer had already been filed in
such state and including allegations in body of motion that third party had assumed
movant's liability supported findings of excusable neglect and a meritorious defense.
88 Nev. 301, 302 (1972) M-R Sign Co. v. Avery
party had assumed movant's liability supported findings of excusable neglect and a
meritorious defense.
Affirmed.
Emilie N. Wanderer, of Las Vegas, for Appellant.
Monte J. Morris, of Las Vegas, for Respondent.
1. Judgment.
In order for a movant to have a default judgment set aside, he must show mistake, inadvertence, surprise
or excusable neglect and the existence of a meritorious defense to the action. NRCP 60(b).
2. Judgment.
Evidence, in hearing on motion to set aside default judgment, including movant's assertion in attached
affidavit that he relied upon statements of his counsel that matter would be resolved out-of-state and that
answer had already been filed in such state and including allegations in body of motion that third party had
assumed movant's liability supported findings of excusable neglect and a meritorious defense. NRCP
60(b).
OPINION
Per Curiam:
On February 16, 1971, appellant filed an action against respondent to recover $1,370.21
allegedly due on a promissory note. The respondent failed to timely answer after he had been
served with process, and a default judgment was entered on April 7, 1971.
After appellant had begun proceedings to enforce the judgment, respondent moved to set it
aside on May 5, 1971. It was asserted by respondent, in an affidavit attached to the motion,
that he had relied upon statements of his Minnesota counsel that the matter would be resolved
in Minnesota and that an answer had already been filed there. In the body of respondent's
motion it was alleged that a third party had assumed respondent's liability to appellant.
When respondent's motion came on for a hearing, copies of several documents allegedly
served on appellant in Minnesota had not been received by respondent's local counsel, and the
district court therefore granted respondent an additional ten days in which to file these
documents. After these documents had been received and a hearing held, the district court
determined that respondent had established the requisite elements of excusable neglect and a
meritorious defense necessary to support his motion, and therefore an order vacating the
default judgment was entered.
88 Nev. 301, 303 (1972) M-R Sign Co. v. Avery
to support his motion, and therefore an order vacating the default judgment was entered. It is
from this order setting aside the default judgment that this appeal is taken.
[Headnotes 1, 2]
In order for a movant to have a default judgment set aside he must show mistake,
inadvertence, surprise or excusable neglect [NRCP 60(b)] and the existence of a meritorious
defense to the action. Johnston, Inc. v. Weinstein, 88 Nev. 7, 492 P.2d 616 (1972); Minton v.
Roliff, 86 Nev. 478, 471 P.2d 209 (1970); Hotel Last Frontier v. Frontier Prop., 79 Nev. 150,
380 P.2d 293 (1963). The district court found excusable neglect in the instant action as
respondent, after being served with a copy of appellant's complaint, forwarded the pleading to
his counsel in Minnesota and relied upon the representations of that counsel that the matter
properly belonged before the Minnesota courts and would be disposed of there. The
respondent, in failing to file a responsive pleading, had no intent to delay the proceedings. He
was unfamiliar with the procedural aspects of a lawsuit and he relied upon representations of
his counsel in Minnesota. There were allegations in respondent's motion to set aside the
default judgment, regarding shifting of a liability on the note, which, if proven, would tend to
establish a defense to the action. The record contains sufficient evidence upon which the
district court could base its findings of excusable neglect and a meritorious defense. There
being no showing of a clear abuse of discretion by the court below, its judgment is affirmed.
Johnston, Inc. v. Weinstein, supra; Minton v. Roliff, supra; Hotel Last Frontier v. Frontier
Prop., supra.
____________
88 Nev. 303, 303 (1972) Martin v. Sheriff
CLIFFORD EUGENE MARTIN, Appellant, v. SHERIFF,
CLARK COUNTY, NEVADA, Respondent.
No. 6800
May 5, 1972 496 P.2d 754
Appeal from an order denying a pretrial petition for a writ of habeas corpus. Eighth
Judicial District Court, Clark County; Leonard I. Gang, Judge.
The district court denied the writ with leave to the district attorney to file an amended
information. The defendant appealed.
88 Nev. 303, 304 (1972) Martin v. Sheriff
appealed. The Supreme Court held that where a magistrate, after showing of probable cause
at preliminary hearing, erred in ordering dismissal of a rape charge and in ordering defendant
bound over on a charge of lewdness with a minor, the district court in the habeas corpus
proceeding was without authority to deny the writ and order the information amended; the
only permissible course was to grant the writ with leave to the district attorney to refile the
rape charge.
Reversed and remanded with instructions.
Robert G. Legakes, Public Defender, and Thomas D. Beatty, Deputy Public Defender,
Clark County, for Appellant.
Robert List, Attorney General; Roy A. Woofter, District Attorney, and H. Leon Simon,
Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Where evidence presented at preliminary examination showed probable cause to believe that crime of
rape had been committed and that defendant had probably committed it, magistrate erred in ordering
defendant bound over on charge of lewdness with minor, and also erred in ordering dismissal of rape
charge. NRS 200.263, 201.230, subd. 1.
2. Habeas Corpus.
Where magistrate, after showing of probable cause at preliminary hearing, erred in ordering dismissal of
rape charge and in ordering defendant bound over on charge of lewdness with minor, district court in
habeas corpus proceeding was without authority to deny writ and order information amended; only
permissible course was to grant writ with leave to district attorney to refile rape charge. NRS 34.520,
173.035, subd. 2, 173.095, 174.145, 178.562, 178.562, subds. 1, 2, 201.230, subd. 1.
3. Indictment and Information.
Statutes do not permit court to order amendment of information to restate charge which has been
dismissed by magistrate at preliminary examination, even though magistrate's order was clearly erroneous.
NRS 173.035. subd. 2, 178.562, subd. 2.
OPINION
Per Curiam:
The appellant was charged by criminal complaint with rape (NRS 200.263) and lewdness
with a minor (NRS 201.230). The rape count alleged the infliction of substantial bodily harm
[NRS 200.263(1)(a)].
The alleged victim was a 9-year-old girl, whose testimony at the preliminary examination
was sufficient to constitute probable cause to believe that the offense had occurred and
that the appellant had probably committed it.
88 Nev. 303, 305 (1972) Martin v. Sheriff
the preliminary examination was sufficient to constitute probable cause to believe that the
offense had occurred and that the appellant had probably committed it. In support of the
substantial-bodily-harm charge, the victim's mother testified that she had called the police
because of her daughter's bleeding vagina.
At the conclusion of the preliminary examination, the district attorney moved to strike the
portion of the rape charge alleging the infliction of substantial bodily harm, because of a lack
of evidence to support it. That motion was granted by the magistrate.
The magistrate then dismissed the rape charge. We cannot perceive upon what authority
such a dismissal order was entered, in view of the testimony adduced at the preliminary
examination, which showed that a rape had occurred. However, the magistrate did order the
appellant bound over to the district court for trial on the charge of lewdness with a minor by
the insertion of the penis into the vagina of the child. The district attorney thereupon filed an
information charging the crime for which the appellant had been bound over, namely,
lewdness with a minor by the insertion of the penis into the vagina of the child.
A petition for a writ of habeas corpus was then filed on behalf of the appellant. In the
petition it was contended that, inasmuch as the rape charge had been dismissed, and since the
language of NRS 201.230 explicitly excludes the act of rape from the lewdness statute,
1
the
appellant had been held to answer to a charge that is legally nonexistent.
At the hearing on the writ application, the district judge reviewed the transcript of the
preliminary examination and found that it contained sufficient evidence to constitute probable
cause to believe that the crime of rape had been committed and that the appellant probably
had committed it. He also found the testimony of the child's mother to be sufficient evidence
of substantial bodily harm to warrant reinstatement of that charge. As a result, the order of the
district court was that the writ of habeas corpus was denied, with leave to the district
attorney to file an amended information to charge the crime shown by the preliminary
examination transcript as probably having been committed, namely, rape with substantial
bodily harm.
____________________

1
NRS 201.230, subsection 1:
Any person who shall willfully and lewdly commit any lewd or lascivious act, other than acts constituting the
crime of rape and the infamous crime against nature, upon or with the body, or any part or member thereof, of a
child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or
sexual desires of such person or of such child, shall be punished by imprisonment in the state prison for not less
than 1 year nor more than 10 years. (Emphasis added.)
88 Nev. 303, 306 (1972) Martin v. Sheriff
habeas corpus was denied, with leave to the district attorney to file an amended information
to charge the crime shown by the preliminary examination transcript as probably having been
committed, namely, rape with substantial bodily harm.
The appellant's contention on appeal is that the denial of the writ, with leave to amend, in
these circumstances was error, because such a result is not authorized by our statutes. We
agree.
[Headnote 1]
The evidence presented by the State at the preliminary examination was sufficient to
constitute probable cause to believe that the crime of rape had been committed and that the
appellant had probably committed it. The magistrate erred when he ordered the appellant
bound over on a charge of lewdness with a minor. The two crimes are rendered mutually
exclusive by the language of NRS 201.230(1). On the evidence presented to the magistrate, it
was also error for him to order the dismissal of the rape charge.
[Headnotes 2, 3]
In the procedural posture in which the habeas petition was presented, the district court was
without authority to deny the writ and order the information amended. The only permissible
course under the circumstances was to grant the writ with leave to the district attorney to
refile the rape charge under NRS 173.035(2)
2
and NRS 178.562(2).
3
Neither NRS 173.095
nor NRS 174.145 nor NRS 34.520 permits the court to order the amendment of an
information to restate a charge that has been dismissed by the magistrate at the preliminary
examination, even though the magistrate's order was clearly erroneous.
4

____________________

2
NRS 173.035 subsection 2, in pertinent part:
If, however, upon the preliminary examination the accused has been discharged, . . . the district attorney may,
upon affidavit. . . by leave of the court first had, file an information. . . The affidavit mentioned herein need not
be filed in cases where the defendant . . . . has been bound over to appear at the court having jurisdiction.

3
NRS 178.562 subsection 2:
The discharge of a person accused upon preliminary examination shall be a bar to another complaint against
him for the same offense, but shall not bar the finding of an indictment or filing of an information.

4
The order of dismissal was not upon the motion of the district attorney, nor was the dismissal filed by him
pursuant to NRS 178.554, providing for voluntary dismissals; hence, the prohibition of NRS 178.562(1) is not
applicable. Nor does Turpin v. Sheriff, 87 Nev. 236, 484 P.2d 1083 (1971), preclude the refiling of the rape
charge under NRS 173.035(2), because there the dismissal was voluntarily sought by the State.
88 Nev. 303, 307 (1972) Martin v. Sheriff
Consequently, we reverse the district court's order, and we authorize the district attorney to
refile the charge of rape
5
under NRS 173.035(2) and NRS 178.562(2). Further leave of the
court is not necessary. Nor is another preliminary examination required, for we find from the
transcript of the one which was conducted that there is probable cause to bind this appellant
over for trial on a charge of rape.
____________________

5
Because the district attorney voluntarily moved to strike that portion of the rape charge alleging the
infliction of substantial bodily harm, he is now precluded from realleging it if he refiles the rape charge against
the appellant. NRS 178.554 and NRS 178.562.
____________
88 Nev. 307, 307 (1972) Ildefonso v. State
RUDOLPH J. ILDEFONSO, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 6691
May 10, 1972 496 P.2d 752
Appeal from judgment of conviction of robbery. Eighth Judicial District Court, Clark
County; Roscoe H. Wilkes, Judge.
The Supreme Court held that officers, who, about five minutes after receiving radio
broadcast that armed robbery had just occurred and that suspect had fled in a vehicle having
three tail lights, and some distance from robbery site observed a car which was not in
violation of any equipment or traffic regulations but which had three tail lights, had probable
cause to stop vehicle for investigation.
Affirmed.
Robert G. Legakes, Public Defender, and Steven L. Godwin, Deputy Public Defender,
Clark County, for Appellant.
Robert List, Attorney General; Roy A. Woofter, District Attorney, and Charles L. Garner,
Chief Deputy for Appeals, Clark County, for Respondent.
1. Arrest.
An officer may stop occupants of an automobile for legitimate police investigation so long as there is
probable cause for that action; this is proper although there is not probable cause for arrest at that moment;
if the subsequent investigation, together with the information originally received combines to supply
probable cause for arrest, the arrest may be made and a reasonable incidental search conducted.
88 Nev. 307, 308 (1972) Ildefonso v. State
2. Arrest.
Officers, who, about five minutes after receiving radio broadcast that armed robbery had just occurred
and that suspect had fled in a vehicle having three tail lights, and some distance from robbery site, observed
a car which was not in violation of any equipment or traffic regulations but which had three tail lights, had
probable cause to stop vehicle for investigation.
OPINION
Per Curiam:
On the night of December 29, 1970, Clark County sheriff's deputies received a radio
broadcast that an armed robbery had just occurred at a bar located on the Boulder highway,
and that the suspect was a male who fled in a vehicle having three tail lights. No other
descriptive information was contained in the broadcast. About five minutes after receiving the
broadcast, the deputies, some distance from the robbery site, observed a car which had three
tail lights. It was not in violation of any equipment regulations, nor was it observed to be
committing any traffic offenses. The vehicle was stopped for investigation, solely on the basis
of its similarity to the description received over the police radio.
As the appellant alighted from the vehicle one of the deputies observed in plain view paper
money and coins scattered on the floor. Also visible was the butt of a gun protruding from
under the seat of the car. Upon this evidence the appellant was then arrested, charged with the
robbery of the bar, tried before a jury and convicted.
This appeal challenges the legality of the initial stop of the vehicle on the ground that the
deputies lacked probable cause to make the stop for investigative purposes. We affirm the
judgment of conviction.
[Headnote 1]
An officer may stop the occupants of an automobile for legitimate police investigation so
long as there is probable cause for that action. This is proper although there is not probable
cause for arrest at that moment. If the subsequent investigation, together with the information
originally received combines to supply probable cause for arrest, the arrest may be made and
a reasonable incidental search conducted. Robertson v. State, 84 Nev. 559, 445 P.2d 352
(1968); People v. Bird, 56 Cal.Rptr. 501 (Cal.App. 1967); People v. Perez, 52 Cal.Rptr. 514
(Cal. App. 1966); People v. Propp, 45 Cal.Rptr. 690 (Cal.App. 1965); cf. People v.
Mickelson, 380 P.2d 658 (Cal. 1963).
88 Nev. 307, 309 (1972) Ildefonso v. State
[Headnote 2]
The information about a get-away vehicle with only three tail lights was sufficient to
supp]y probable cause to stop the vehicle for investigation.
The action of the deputies was neither arbitrary, harassing, capricious nor unreasonable.
Wilson v. Porter, 361 F.2d 412 (9th Cir. 1966).
Affirmed.
____________
88 Nev. 309, 309 (1972) Nevada Tax Comm'n v. Southwest Gas Corp.
NEVADA TAX COMMISSION, Appellant, v. SOUTH-
WEST GAS CORPORATION, Respondent.
No. 6593
May 19, 1972 497 P.2d 308
Appeal from judgment of the First Judicial District Court, Carson City; Richard L. Waters,
Jr., Judge.
Action by gas pipeline company to recover real property taxes paid under protest. The
district court entered judgment for plaintiff and Tax Commission appealed. The Supreme
Court, Thompson, J., held that where gas pipeline company had no income during income tax
year and had not traded stock, Tax Commission reasonably concluded that capitalization of
income and stock-debt indicators of value of property were not available and applicable,
within the formula adopted by Tax Commission for assessment of gas and for gas pipeline
companies requiring only that book cost less depreciation, capitalized income and market
value of stock and debt, when available and applicable be considered in determining value
of property, thus expert testimony offered by taxpayer that such indicators of value could
have been used through processes of imputation and inference does not constitute clear,
convincing and substantial evidence that Commission applied a fundamentally wrong
principle in ascertaining value.
Reversed.
Christensen, D. J., dissented.
Robert List, Attorney General, and Irwin Aarons, Deputy Attorney General, for Appellant.
Guild, Hagen & Clark and Jack B. Ames, of Reno, for Respondent.
88 Nev. 309, 310 (1972) Nevada Tax Comm'n v. Southwest Gas Corp.
1. Taxation.
Formula which was used to fix value of gas and gas pipeline companies for property tax assessment
purposes and which required weighting of book cost less depreciation, capitalized income at reasonable
rate and market value of stock and debt was per se appropriate. NRS 361.410, subd. 2, 361.430.
2. Taxation.
Taxpayer's burden of showing by a clear and satisfactory evidence that valuation established by
Commission for property tax assessment purposes was unjust and inequitable is not met unless court can
find that the Tax Commission applied a fundamentally wrong principle, or refused to exercise its best
judgment, or that assessment was so excessive as to give rise to an implication of fraud or mala fides. NRS
361.410, subd. 2, 361.430.
3. Taxation.
Generally, taxpayer's burden of proving that valuation established by Tax Commission for property tax
assessment purposes is unjust and inequitable is not met by merely showing a difference of opinion
between witnesses and the assessing authority. NRS 361.410, subd. 2, 361.430.
4. Evidence; Taxation.
Where gas pipeline company had no income during tax year and had not traded stock, Tax Commission
reasonably concluded that capitalization of income and stock-debt indicators of value of property were not
available and applicable within Tax Commission's formula for assessment of gas and for gas pipeline
companies requiring that book cost less depreciation, capitalized income and market value of stock and
debt when available and applicable, be considered in determining value of property for real property tax
purposes, thus company's expert testimony that such indicators could have been used through processes of
imputation and inference did not constitute clear, convincing and substantial evidence that Commission
applied a fundamentally wrong principle in ascertaining value. NRS 361.410, subd. 2, 361.430.
OPINION
By the Court, Thompson, J.:
This appeal is from a judgment in an action brought by Southwest Gas to recover taxes
paid under protest. At issue is whether the Nevada Tax Commission properly applied its
valuation formula for property tax assessment purposes to Nevada Northern Gas Company
for the 1963-64 tax year.
1
Following a trial de novo, the district court found an improper
application of formula which caused an excessive tax in the amount of $20,457. Southwest
Gas was given judgment for that amount and this appeal followed.
____________________

1
On December 31, 1963, Nevada Northern merged into Southwest Gas.
88 Nev. 309, 311 (1972) Nevada Tax Comm'n v. Southwest Gas Corp.
[Headnote 1]
The formula adopted by the Commission to fix the value of gas and gas pipeline
companies for assessment purposes requires the proper weighting of three indicators of value
when available and applicable. Those indicators of value are the book cost less depreciation
of the properties, the capitalized income at a reasonable rate, and the market value of the
stock and debt. The formula per se is appropriate. State v. Nevada Power Co., 80 Nev. 131,
390 P.2d 50 (1964). The application of it to the properties of Nevada Northern was
challenged in the district court for the reason that the Tax Commission utilized only the book
cost less depreciation indicator of value in assessing Nevada Northern's gas pipelines. The
capitalized income and stock and debt indicators of value were not used in making the
assessment. It was and is the Commission's position that those indicators of value were
neither available nor applicable since Nevada Northern had no income during the tax year in
question, and had not traded stock. The taxpayer contends that all three indicators of value
were available and applicable notwithstanding the absence of income and stock trading,
and should have been utilized and properly weighted in the assessment process. The trial
court was persuaded to adopt the taxpayer's contention, imputed an income where none
existed, and inferred a market value for the taxpayer's stock though none had been traded. The
court's decision rests upon the testimony given by the taxpayer's expert witness to the effect
that it was good appraisal practice to impute income and infer stock market value in the
circumstances here present. That testimony was controverted by witnesses for the
Commission who believed that the capitalization of income indicator of value and the
stock-debt indicator were unreliable in circumstances where the income had to be imputed
and the market value of the stock inferred.
[Headnote 2]
1. The parties agree that it is the taxpayer's burden to show by clear and satisfactory
evidence that the valuation established by the Commission is unjust and inequitable. NRS
361.410(2); NRS 361.430. This burden is not met unless the court can find that the Tax
Commission applied a fundamentally wrong principle, or refused to exercise its best
judgment, or that the assessment was so excessive as to give rise to an implication of fraud or
mala fides. Pittsburg Silver Peak v. Tax Commission, 49 Nev. 46, 55, 235 P. 643 (1925). The
taxpayer does not here contend that the Commission is chargeable with fraud or bad faith, nor
does it suggest that the Commission failed to exercise its best judgment.
88 Nev. 309, 312 (1972) Nevada Tax Comm'n v. Southwest Gas Corp.
exercise its best judgment. The thrust of the taxpayer's position, below and here, is that the
Commission applied a fundamentally wrong principle in that it failed to utilize all three
indicators of value in the assessment process. We are told that the testimony of its expert
witness constitutes substantial evidence of a clear and convincing nature in support of this
proposition, and that we may not, therefore, set aside the trial court ruling.
[Headnotes 3, 4]
At best, the valuation of property is an illusory matter upon which experts hold differences
of opinion. As a general proposition, the taxpayer's burden of proof is not met by merely
showing a difference of opinion between witnesses and the assessing authority. Chicago and
North Western Railway Co. v. Prentis, 161 N.W.2d 84 (Iowa 1968). There exists no absolute
mathematical formula to establish market value. Indeed, the formula adopted by the Tax
Commission for the assessment of gas and gas pipeline companies requires only that the three
indicators of value, properly weighted, be considered when available and applicable. The
very existence of the phrase when available and applicable points to a recognition that
some of those indicators of value may not appropriately be utilized in certain limited
situations. That phrase leaves room for the exercise of reasonable judgment by the assessing
authority. It is our opinion that the Tax Commission and staff reasonably could conclude that
the capitalization of income and stock-debt indicators of value were not available and
applicable in the circumstances here present, and that the expert testimony offered by the
taxpayer that such indicators of value could have been used through the processes of
imputation and inference does not constitute clear, convincing and substantial evidence that
the Commission applied a fundamentally wrong principle in ascertaining value. Pittsburgh
Silver Peak v. Tax Commission, supra.
2. Although the taxpayer suggests the possible existence of a constitutional problem in
this case, we perceive none.
Reversed.
Batjer, Mowbray, and Gunderson, JJ., concur.
Christensen, D. J., dissenting:
This suit was brought by Southwest Gas Corporation to recover property taxes paid under
protest for the 1963-64 tax year. The excessive taxes paid under protest were levied in part
against Southwest Gas Corporation with the balance having been levied against Nevada
Northern Gas Company, which subsequently merged with Southwest Gas Corporation.
88 Nev. 309, 313 (1972) Nevada Tax Comm'n v. Southwest Gas Corp.
been levied against Nevada Northern Gas Company, which subsequently merged with
Southwest Gas Corporation.
After a trial by the court, judgment was entered for respondent on February 9, 1971, for the
sum of $30,202.34.
The general basis of complaint by respondent was improper valuation of property for tax
assessment purposes by the Nevada Tax Commission.
Appellant does not quarrel with the excessive levy against Southwest Gas Corporation,
and concedes as proper that portion of the trial court's judgment.
Appellant here contends that the valuation as to Nevada Northern Gas Company by the
Nevada Tax Commission was proper and that there was not sufficient evidence to support the
judgment of the trial court. Appellant urges proper application of indicators of value by the
Nevada Tax Commission and respondent urges excessive valuation resulting from improper
application of indicators of value in violation of the formula adopted by the Commission for
computing the value for assessment purposes of gas and gas pipeline companies, and in
violation of the Nevada Constitution art. 10, 1, which requires uniform and equal
assessment.
1

The specific formulae adopted by the Tax Commission (Defendant's Exhibit 1) states:
In fixing the value for assessment purposes of electric, gas and gas pipeline; telephone
and telegraph and water companies the following indicators of value properly weighted, shall
be considered when available and applicable:
(a) Book cost less depreciation of properties.
(b) Capitalized income at a reasonable rate.
(c) Market value of stock and debt, less investments and other deductions.
On the date of valuation, Nevada Northern Gas Company had a franchise and physical
assets, just purchased and installed, but its regular gas distribution business had not yet been
commenced. The only indicator of value utilized in assessment was book cost less
depreciation of properties weighted 100 percent.
The presumption stated in NRS 47.250(9) that an official duty has been regularly
performed, remains until or unless it is controverted by other evidence which makes this type
presumption a shifting of the burden to go forward with evidence.
____________________

1
The Legislature shall provide by law for a uniform and equal rate of assessment and taxation, and shall
prescribe such regulation as shall secure a just valuation and taxation of all properties, real, personal, and
possessory. . . .
88 Nev. 309, 314 (1972) Nevada Tax Comm'n v. Southwest Gas Corp.
The burden of proof which requires proofs by clear and satisfactory evidence is a trial court
standard, as are proof by preponderance of evidence or beyond a reasonable doubt. Since
any of these three degrees of proof amount to the convincing of the mind of the trier of fact,
they may not be reviewed on appeal if there is any evidence with probative force which
convinces the mind of the trier of fact.
The rebuttable presumption running in favor of the Nevada Tax Commission was
overcome with the evidence presented in the trial court by respondent. The appraiser, Mr.
Broley E. Travis, called as a witness by respondent, clearly showed that it was improper to
give 100 percent weight to book cost less depreciation of properties as an indicator of value.
Failure to take into consideration capitalized income at a reasonable rate or market value
of stock and debt less investment and other deductions as indicators of value resulted in
unjust and inequitable evaluation and resulting tax. It is obvious that other indicators of value,
in addition to book cost less depreciation of properties are necessary, because of the factors
which distort this one single indicator of value. Cash value under many circumstances is
disproportionate to cost.
Where property has been depreciated to zero or thereabouts, but has many years of useful
life remaining, it would be absurd to say that its cash value for assessment purposes is zero.
On the other hand, if property is new, but not yet in production, its cash value may or may not
be its cost, particularly when the property is production machinery that may or may not
produce a sufficient return to make its value equal to its cost.
Because the evidence presented below, mainly in the form of expert witness testimony,
was sufficient to support the findings of the trier of fact, this court should not reverse that
judgment on appeal. Moreover, assessed valuation based upon book cost less depreciation
alone, as in this case, violates Section 1, Article 10 of the Nevada Constitution which requires
a uniform and equal rate of assessment and taxation.
____________
88 Nev. 315, 315 (1972) Odom v. Sheriff
JOHN BENJAMIN ODOM, Appellant, v. SHERIFF,
CLARK COUNTY, NEVADA, Respondent.
No. 6802
June 6, 1972 497 P.2d 906
Appeal from an order denying a pre-trial petition for a writ of habeas corpus. Eighth
Judicial District Court; Leonard I. Gang, Judge.
Petitioner, bound over to the district court for trial on charge of larceny from the person,
petitioned for writ of habeas corpus. The district court denied the petition and petitioner
appealed. The Supreme Court held that actions of plainclothes police officer who while lying
in front seat of car feigning drunkenness as part of setup changed his position so as to expose
pocket containing money did not amount to consent to the taking.
Affirmed.
Robert G. Legakes, Public Defender, and Jerrold J. Courtney, Deputy Public Defender,
Clark County, for Appellant.
Robert List, Attorney General, Roy A. Woofter, District Attorney, and Charles L. Garner,
Chief Deputy District Attorney, Clark County, for Respondent.
Larceny.
Actions of plainclothes police officer who while lying in front seat of car feigning drunkenness as part of
setup changed his position so as to expose pocket containing money did not amount to consent to the
taking. NRS 205.270.
OPINION
Per Curiam:
After a preliminary examination the appellant was bound over to the district court for trial
on a charge of larceny from the person, a felony under NRS 205.270.
1
He petitioned for a
writ of habeas corpus, contending that there was insufficient evidence presented at the
preliminary examination to hold him for trial.
____________________

1
NRS 205.270 reads: Every person who, under circumstances not amounting to robbery, shall, with intent
to steal or appropriate to his own use, take from the person of another, without his consent, any money, property
or thing of value, shall be punished by imprisonment in the state prison for not less than one year nor more than
ten years, and may be further punished by a fine of not more than $5,000.00.
88 Nev. 315, 316 (1972) Odom v. Sheriff
for trial. Upon the denial of habeas by the district court this appeal was taken.
The victim of the crime was a plainclothes officer of the Las Vegas police department who
was on special assignment on the night in question. He parked a rental car bearing
out-of-state license plates in a parking lot, with the motor running and lights off, and feigned
drunkenness in the front seat of the car. The area was under police surveillance at the time.
The appellant and a companion approached the car and, upon observing the officer lying on
his side on the front seat, opened the car doors and got into the vehicle. When the appellant
reached into one of the officer's pockets, one not containing any money, the officer moved his
position on the front seat of the car so as to expose another pocket containing dollar bills in a
money clip. The appellant reached into that pocket, removed the money and the clip, returned
the clip, and fled with the money. He was apprehended in the area with the dollar bills.
It is the appellant's contention on appeal that the testimony of the police officer failed to
show one of the elements of the crime charged, namely, the lack of consent of the victim. In
fact, it is argued that the officer consented to the taking of the money by changing his position
on the front seat to expose the pocket containing the money, thereby assisting in the taking.
We find that contention untenable, and reject it.
While the appellant was caught in a situation amounting to a police set-up the record
cannot be read to show either a consent to or assistance in the taking of money from the
officer's pocket by the appellant. The officer's cooperation may have made the appellant's
removal of the money from the pocket less difficult, but there is nothing in the record to
demonstrate that the appellant understood that such cooperation by the officer amounted to a
consent to the taking of the money. Neither did it amount to an act of assistance. It simply
made the appellant's purpose, already formulated, easier to achieve. The criminal intent
originated with the appellant, according to the record, and the act of the officer in changing
his position on the seat merely improved the opportunity afforded the appellant to
consummate the crime. [Cf. Lisby v. State, 82 Nev. 183, 414 P.2d 592 (1966); Wyatt v. State,
77 Nev. 490, 367 P.2d 104 (1961).]
Affirmed.
____________
88 Nev. 317, 317 (1972) Carpenter v. State
JOHN LIND CARPENTER, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 6771
June 6, 1972 497 P.2d 895
Appeal from a judgment of the Eighth Judicial District Court, Clark County; John F.
Mendoza, Judge.
Defendant was convicted in the district court of robbery and he appealed. The Supreme
Court held that evidence sustained conviction.
Affirmed.
Robert G. Legakes, Public Defender, and Thomas D. Beatty, Deputy Public Defender,
Clark County, for Appellant.
Robert List, Attorney General, Roy A. Woofter, District Attorney, and Charles L. Garner,
Chief Deputy District Attorney, Clark County, for Respondent.
Robbery.
Evidence, including eyewitness testimony, sustained conviction of robbery.
OPINION
Per Curiam:
Appellant was tried before a jury and found guilty of robbery. His sole allegation of error
on appeal is that there was insufficient evidence adduced at trial to warrant his conviction.
James Miller, a desk clerk at the Travel Inn Motor Lodge in Las Vegas, Nevada, testified
that at about 1:00 a.m. on April 26, 1971 he opened the locked office door to admit the
appellant, whom he positively identified, that the appellant stepped to the counter, exhibited
what appeared to be a revolver, and said: I don't want anyone to get hurt. Appellant told
Miller to take the paper money from the cash drawer and lay it on the counter, then he forced
Miller out of the office and down an alley. After a short time Miller returned to the motel
office and found the money missing.
Appellant, testifying in his behalf, admitted that he was in the motel at about the time of
the robbery, but that he made no threat towards Miller nor took any money. He further
testified that he owned no clothing fitting the description given by Miller.
88 Nev. 317, 318 (1972) Carpenter v. State
Upon review of the entire record, we find that there was substantial evidence to support
appellant's conviction, and therefore it is affirmed. Williams v. State, 88 Nev. 164, 494 P.2d
960 (1972); Marshall v. State, 87 Nev. 536, 490 P.2d 1056 (1971).
Affirmed.
____________
88 Nev. 318, 318 (1972) Easley v. Sheriff
GARY A. EASLEY, Appellant, v. SHERIFF, WASHOE
COUNTY, NEVADA, Respondent.
No. 6909
June 6, 1972 497 P.2d 905
Appeal from an order of the Second Judicial District Court, Washoe County, dismissing
petition for a writ of habeas corpus; John W. Barrett, Judge.
The Supreme Court held that where neither the State's motion for continuance of
scheduled preliminary examination nor the prosecutor's affidavit in support of the motion
were made a part of record on appeal from denial of petition for writ of habeas corpus and the
magistrate found that good cause for continuance had been shown, Supreme Court would not
disturb the dismissal of the habeas petition of petitioner who asserted that his restraint was
unlawful because the magistrate granted the continuance in reliance on affidavit which failed
to show good cause for continuance.
Affirmed.
Sloan & Meredith, of Reno, for Appellant.
Robert List, Attorney General, Robert E. Rose, District Attorney, and Calvin R. Dunlap,
Deputy District Attorney, Washoe County, for Respondent.
Habeas Corpus.
Where neither the State's motion for continuance of scheduled preliminary examination nor the
prosecutor's affidavit in support of the motion were made a part of record on appeal from denial of petition
for writ of habeas corpus and the magistrate found that good cause for continuance had been shown,
Supreme Court would not disturb the dismissal of the habeas petition of petitioner who asserted that his
restraint was unlawful because the magistrate granted the continuance in reliance on affidavit
which failed to show good cause for continuance.
88 Nev. 318, 319 (1972) Easley v. Sheriff
granted the continuance in reliance on affidavit which failed to show good cause for continuance. DCR 21.
OPINION
Per Curiam:
This is an appeal from an order dismissing the appellant's petition for a writ of habeas
corpus. That petition alleged that the appellant's restraint was unlawful because the magistrate
granted the State's motion for a continuance of a scheduled preliminary examination. The
thrust of the habeas petition was that the prosecutor's affidavit filed in support of his motion
failed to show good cause for a continuance as required by DCR 21 and Hill v. Sheriff, 85
Nev. 234, 452 P.2d 918 (1969).
Neither the motion for the continuance nor the supporting affidavit have been made a part
of the record on appeal. Without benefit of the affidavit, we are not able to determine whether
the requirements of DCR 21 were met. The magistrate found that good cause for a
continuance had been shown. Upon the record before us, we cannot fault that finding or the
district court's order dismissing the habeas petition. Jasper v. Sheriff, Clark County, 88 Nev.
16, 492 P.2d 1305 (1972).
Affirmed.
____________
88 Nev. 319, 319 (1972) Markoff v. New York Life Ins. Co.
VASIL M. MARKOFF, Appellant, v. NEW YORK LIFE
INSURANCE COMPANY, Respondent.
No. 6645
June 6, 1972 497 P.2d 904
Appeal from judgment of the Eighth Judicial District Court, Clark County; George F.
Wright, Judge.
Action by insured against insurer. The district court found for insurer and insured
appealed. The Supreme Court held that evidence sustained trial court's finding that false
statements in insured's application for insurance were intentionally made, were relied on by
company, and materially affected acceptance of risk.
Affirmed.
88 Nev. 319, 320 (1972) Markoff v. New York Life Ins. Co.
[Rehearing denied July 10, 1972]
Wiener, Goldwater, Galatz & Raggio and R. Gardner Jolley, of Las Vegas, for Appellant.
Breen, Young, Whitehead & Hoy, of Reno, for Respondent.
Insurance.
Evidence sustained trial court's finding that false statements in insured's application for insurance were
intentionally made, were relied on by company, and materially affected acceptance of risk. NRS
692.040, subd. 3.
OPINION
Per Curiam:
Markoff brought suit to recover monthly benefits for total disability claimed to be due
under an income protection disability policy issued by New York Life Insurance Company.
The district court barred recovery and entered judgment for New York Life since false
statements in Markoff's application for insurance were found to have intentionally been made,
were relied upon by the company and materially affected the acceptance of the risk and the
hazard assumed. NRS 692.040(3). Although we do not have a complete transcript of the
evidence, it is apparent from the partial record before us that this finding is amply supported
and we may not tamper with it. Other assigned errors are without substance.
Affirmed.
____________
88 Nev. 320, 320 (1972) Schmitt v. State
ROBERT J. SCHMITT, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 6524
June 6, 1972 497 P.2d 891
Appeal from judgment of conviction and sentence of the Second Judicial District Court,
Washoe County; John E. Gabrielli, Judge.
Defendant was convicted before the district court of possession of marijuana, and he
appealed. The Supreme Court, Gunderson, J., held that even if defendant's warrantless arrest
for possession of marijuana was based on original observations by police officer trained in
narcotics, where such officer was unable to tell marijuana cigarette from conventional
tobacco one except by comparison of lights, and no one was able to say if hand rolled
tobacco cigarette would burn as rapidly as marijuana one, officer's observation of
youthful defendant over 50 yards away appearing to roll and light cigarette which burned
with bright red glow and to pass it to companions who cupped their hands did not
establish cause for the arrest.
88 Nev. 320, 321 (1972) Schmitt v. State
by police officer trained in narcotics, where such officer was unable to tell marijuana cigarette
from conventional tobacco one except by comparison of lights, and no one was able to say if
hand rolled tobacco cigarette would burn as rapidly as marijuana one, officer's observation of
youthful defendant over 50 yards away appearing to roll and light cigarette which burned with
bright red glow and to pass it to companions who cupped their hands did not establish cause
for the arrest.
Reversed.
H. Dale Murphy, Public Defender, and William H. Whitehead, III, Deputy Public
Defender, Washoe County, for Appellant.
Robert List, Attorney General; Robert E. Rose, District Attorney, and C. Frederick
Pinkerton, Chief Deputy District Attorney, Washoe County, for Respondent.
1. Arrest.
Where police officers acted without a warrant in detaining and searching defendant who was
subsequently convicted of possession of marijuana, State was obliged to show defendant was searched
incident to a lawful arrest upon probable cause or his conviction could not stand. NRS 453.030.
2. Arrest.
Even if disorderly person ordinance of city was constitutional and if by being in a public park defendant
was loitering or wandering upon the streets from place to place without apparent reason or business in
violation of such ordinance and if arresting officers reasonably believed public safety demanded
defendant's identification, where defendant used his social security card to identity himself when requested,
and where the ordinance did not require citizens to corroborate their identity in any specific manner, any
arrest of defendant as a disorderly person would have been unlawful.
3. Arrest.
It is theoretically possible, if events are substantially contemporaneous, to have valid search incident to
an arrest which is not formally announced until after the search, but no arrest may be justified by what is
found in search.
4. Arrest.
Arrest may in some instances be justified on basis of composite knowledge of arresting officers.
5. Arrest.
Warrantless search of defendant could not be justified by imputing to one police officer the cause and
unspoken intention to arrest defendant on basis of another officer's observations, where such other officer,
who possessed all original knowledge of defendant's activities, did not himself assert cause to arrest
defendant but merely asserted cause to stop and inquire as to his activities.
88 Nev. 320, 322 (1972) Schmitt v. State
6. Arrest.
Even if defendant's warrantless arrest for possession of marijuana was based on original observations by
police officer trained in narcotics, where such officer was unable to tell marijuana cigarette from
conventional tobacco one except by comparison of lights, and no one was able to say if hand rolled tobacco
cigarette would burn as rapidly as marijuana one, officer's observation of youthful defendant over 50 yards
away appearing to roll and light cigarette which burned with bright red glow and to pass it to companions
who cupped their hands did not establish cause for the arrest. NRS 453.030; U.S.C.A.Const. Amend. 4.
OPINION
By the Court, Gunderson, J.:
[Headnote 1]
Convicted of possessing marijuana in violation of NRS 453.030, appellant contends police
officers violated his Fourth Amendment rights when they detained and searched him as he
and two companions left a public park near downtown Reno. As the officers acted without a
warrant, the State was obliged to show appellant was searched incident to a lawful arrest upon
probable cause, or his conviction cannot stand. Gordon v. State, 83 Nev. 177, 426 P.2d 424
(1967); Schnepp v. State, 82 Nev. 257, 415 P.2d 619 (1966); cf. Beck v. Ohio, 379 U.S. 89
(1964).
Inspector Van Curen, who precipitated appellant's detention and search, testified that from
across the Truckee River, over 50 yards away, he saw appellant appear to roll and light a
cigarette that burned in the dusk with a bright red glow, and observed the cigarette passed
between appellant and his companions, who cupped their hands when smoking it. Van
Curen then radioed Lieutenant Williams, advised him of what I had observed, and sought
help to stop appellant and his companions as they left the park. From what I had seen, he
testified, we felt that we had reasonable cause to stop and inquire as to their activities, and
who they were at this point. Van Curen expressly testified: I did not arrest them.
According to Van Curen, although he handcuffed and searched appellant, he believed that
Lieutenant Williams had arrested appellant as a disorderly person because appellant had
only a social security card to establish his identity.
1
However, Lieutenant Williams testified
that although appellant was first asked for identification, then handcuffed and searched
twice, he was not arrested as a disorderly person.


____________________

1
Officer Van Curen testified:
A. As I arrived, Lieutenant Williams had advised the subject to lean against the car for a cursory weapons
search. They were patted down, and found no weapons. And, after checking their age, and
88 Nev. 320, 323 (1972) Schmitt v. State
However, Lieutenant Williams testified that although appellant was first asked for
identification, then handcuffed and searched twice, he was not arrested as a disorderly person.
____________________
asking for identification, which they were unable to produce, Lieutenant Williams advised that I should handcuff
the defendant. And at this time I did, also stating that they were going to take them in for disorderly person.
Q. Take who in for disorderly person?
A. The defendant, one other subject that was there, and the juvenile. The male juvenile suspect that was
there was to be taken to Wittenberg. During this time the female that had been with them arrived back at the
scene. After being told that he was to be taken to jail, I handcuffed him and again I searched his person and his
pockets of his clothes.
Q. Why was he going to be taken to jail?
A. He had been arrested as a disorderly person, under our City Ordinance.
Q. Why was he arrested for disorderly person?
A. He was unable to identify himself.
Q. Was he asked for identification?
A. Yes.
Q. Did he produce any identification?
A. I believe he had a social security card, which is not to be used as identification. And, after being
handcuffed, he
Q. Were the other persons arrested for anything, other than the defendant?
A. Yes. The other subject that was over eighteen was arrested as a disorderly, and the juvenile subject was
taken to Wittenberg Hall as an unsupervised juvenile.
Q. Well, the defendant was handcuffed and he was searched; is that correct?
A. Yes, sir.
Obviously dissatisfied with this testimony, the prosecutor sought to clarify it:
Q. Are you absolutely positive that this defendant was placed under arrest for disorderly person?
Defense counsel: Your Honor, I believe the question has been asked and answered.
Prosecutor: I would like to clarify it, your Honor.
The Court: All right. It will go to credibility.
Prosecutor: There were three persons there.
By Prosecutor:
Q. Did you tell the defendant that he was under arrest as a disorderly person?
A. No, I did not. Both subjects that were adults were side by side, and I was between the two subjects, with
my back to Lieutenant Williams. And he said, Handcuff them.' And then I did.
At this time I didn't see who he was talking to; I had my back to him. I only assumed that when he said,
handcuff him,' that we were going to take them both into custody for this charge.
Q. Then you searched the defendant; is that right?
A. Yes.
Q. And you found this hand-rolled cigarette?
A. Yes.
88 Nev. 320, 324 (1972) Schmitt v. State
While Williams' testimony suggests he believed there was cause to arrest appellant for
possessing marijuana, before any was found, he said Inspector Henry arrested appellant for
possession of narcotics after Van Curen found a marijuana cigarette on his person.
2

Inspector Henry's testimony established he had no substantial knowledge of events
occurring before he arrived to assist Van Curen and Williams. Then, when Van Curen's
search revealed marijuana, Henry arrested appellant for possession of narcotics.
3

The question, obviously, is whether this record establishes a lawful arrest, to which
appellant's search can be held incident.
____________________

2
Lieutenant Williams testified:
Q. Did you see where Inspector Van Curen obtained the handrolled cigarette?
A. I didn't see it when he found it, but he indicated to me that he had found it in the upper left-hand pocket
of the suspect's coat.
Q. Was the defendant informed that he was under arrest at that time?
A. Not by myself.
Q. Well, by any of the officers present?
A. Yes, sir. He was informed by Inspector Henry.
Q. And what reason was given for the arrest?
A. Possession of narcotics.

3
Inspector Henry testified:
A. When I arrived on Arlington, Inspector Van Curen and Lieutenant Williams were conversing with three
male subjects.
Q. Do you see one of those persons in the courtroom?
A. Yes, sir.
Q. Would you point him out, please?
A. He is seated at the defense table (pointing). . . .
Q. What happened at this meeting with the other officers and the defendant and his two companions?
A. As I say, when I arrived they were in a conversation. Shortly after I arrived the defendant here was
cuffed, and
Q. Who placed the handcuffs on the defendant?
A. I believe Inspector Van Curen did.
Q. After that was done, what happened?
A. He was then searched by Inspector Van Curen. In the defendant's jacket pocket, I believe the breast
pocket, I'm not sure whether it was the left or the right, Inspector Van Curen pulled out a handrolled cigarette. . .
.
Q. What did Inspector Van Curen say when he found the handrolled cigarette?
A. What's this'? And at that time the defendant replied, That's one of those cannabis things.'
Q. All right. What did you do, if anything?
A. Inspector Van Curen then walked away, and I immediately advised the defendant he was under arrest for
possession of narcotics, and advised him of his constitutional rights.
88 Nev. 320, 325 (1972) Schmitt v. State
a lawful arrest, to which appellant's search can be held incident. The answer must be in the
negative.
1. Reno's disorderly person ordinance, under which Van Curen incorrectly thought
Williams had ordered appellant arrested, provides: (a) Every person is a vagrant who: . . . (8)
Loiters or wanders upon the streets or from place to place without apparent reason or business
and who refuses to identify himself and to account for his presence when requested by any
peace officer so to do, if the surrounding circumstances are such as to indicate to a reasonable
man that the public safety demands such identification; . . . Reno Municipal Code
11.12.070 (1966).
[Headnote 2]
Assuming that this ordinance is constitutional, that by being in a public park appellant was
loitering or wandering upon the streets or from place to place without apparent reason or
business, and that the officers reasonably believed the public safety demanded appellant's
identification, they still had no cause whatever to arrest appellant as a disorderly person.
Appellant identified himself when requested; the ordinance does not require citizens to
corroborate their identity in any specific manner; thus, Van Curen was quite mistaken in his
belief that appellant was subject to arrest because his social security card was inadequate
identification. Therefore, if Williams had in fact ordered appellant's arrest as a disorderly
person, which he denies doing, appellant's arrest would have been unlawful, and Van
Curen's search could not be sustained as incident thereto. Cf. Jones v. Payton, 411 F.2d 857
(4th Cir. 1969).
2. Except to the extent Van Curen believed Williams had arrested appellant as a
disorderly person, all officers agreed appellant was not formally arrested until Van Curen
found marijuana on his person. Thus, the record virtually impels a finding that appellant was
arrested after the contraband was found, and because it was found, in a search not incident to
any lawful arrest.
[Headnotes 3-5]
3. The State seems to suggest, however, that we should uphold Van Curen's search of
appellant as incident to an arrest for the crime of possessing marijuana, made by Van Curen
or Williams prior to and independent of Van Curen's search of appellant's person.4 We
cannot honestly do this, since a fair reading of the record makes it clear the officers did
not have and knew they did not have cause to arrest appellant for possessing marijuana,
before they searched his person.
88 Nev. 320, 326 (1972) Schmitt v. State
search of appellant's person.
4
We cannot honestly do this, since a fair reading of the record
makes it clear the officers did not have and knew they did not have cause to arrest appellant
for possessing marijuana, before they searched his person. The State's argument that the
officers had expertise in narcotics matters, which we should consider in reviewing the record,
can have no weight when Van Curen himself did not assert cause to arrest appellant for
possession of narcotics, but merely reasonable cause to stop and inquire as to their
activities.
5

Headnote 6]
Furthermore, assuming appellant was arrested on the basis of Van Curen's original
observations, those observations would not justify the arrest, even considering Van Curen's
training and knowledge. Van Curen does not pretend he can distinguish the rolling of a
marijuana cigarette from the rolling of a tobacco one.
6
While he testified he has been taught
a marijuana cigarette burns with a brighter glow than a conventional tobacco cigarette, he
acknowledged he was not an expert, and was unable to tell one from the other except by a
comparison of their lights.
7
Moreover, neither he nor any other witness was able to say if a
hand-rolled tobacco cigarette would oxygenate as rapidly as one of marijuana, and therefore
burn as brightly.
____________________

4
There might theoretically have been a valid search incident to such an arrest, though formal announcement
of it followed the search, it the events were substantially contemporaneous. However, no arrest may be justified
by what is found in the search. Hinton v. State, 84 Nev. 68, 436 P.2d 223 (1968); Nootenboom v. State, 82 Nev.
329, 418 P.2d 490 (1966); Beck v. Ohio, supra; Henry v. United States, 361 U.S. 98 (1959); Brinegar v. United
States, 338 U.S. 160 (1949).

5
If it be suggested that this court should determine that Lieutenant Williams secretly intended to, and did,
arrest appellant on the basis of Van Curen's initial observations, the same result must obtain. Of course, an arrest
may in some instances be justified on the basis of the composite knowledge of arresting officers. Mears v. State,
83 Nev. 3, 422 P.2d 230 (1967). Still, we cannot justify appellant's warrantless search by imputing to Williams
cause and unspoken intention to arrest appellant for possession of marijuana, contrary to the apparent evaluation
and intention of Inspector Van Curen, who possessed all original knowledge of appellant's activities.

6
Van Curen was asked:
Q. Officer, are you so highly trained in narcotics work that you perceive distinctions in the rolling a
tobacco cigarette and a marijuana cigarette?
A. No.

7
Van Curen was also asked:
Q. Now, do you think at a distance of 50 yards, seeing the light from the cigarette, not seeing any
associative glow, that you can tell the
88 Nev. 320, 327 (1972) Schmitt v. State
True, Van Curen testified that he has been taught marijuana is often smoked with
cupped hands, and that appellant was smoking with hands cupped, a gesture the record
does not describe. However, except for such suspicion as that mannerism, appellant's youth,
and his presence in the park might arouse, the record establishes no cause for his arrest, prior
to Van Curen's warrantless search of his person. We cannot hold that the police may stop,
handcuff, and search any young person seen in a park, and justify this action by saying they
saw a cigarette smoked with cupped hands. Cf. Henry v. United States, 361 U.S. 98 (1959).
8

Reversed.
Zenoff, C. J., and Batjer, Mowbray, and Thompson, JJ., concur.
____________________
distinction between the glow of a cigarette and the glow of a marijuana cigarette?
A. I would be able to tell which was the brighter of the two.
Q. But this was only one light, is that correct?
A. Yes.

8
The fact that packages have been stolen does not make every man who carries a package subject to arrest
nor the package subject to seizure. . . . Under our system suspicion is not enough for an officer to lay hands on a
citizen. Id., at 104.
____________
88 Nev. 327, 327 (1972) Merrick v. Metropolitan Life Ins. Co.
RUTH R. MERRICK, Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY,
a Foreign Corporation, Respondent.
No. 6764
June 7, 1972 497 P.2d 890
Appeal from denial of double indemnity provisions of life insurance policies for death
allegedly caused by accidental means, Eighth Judicial District Court, Clark County; John F.
Mendoza, Judge.
Beneficiary of two life policies sued insurance company to recover on double indemnity
provisions. The district court rendered judgment for defendant, and beneficiary appealed. The
Supreme Court held that evidence including testimony that insured was in an unconscious
state when automobile crashed and testimony of doctor who performed autopsy that insured
died because of thrombosis in right coronary was sufficient to support findings that insured's
death was caused by disease and not by automobile accident and that insurer was not liable
under double indemnity provisions of two life policies.
88 Nev. 327, 328 (1972) Merrick v. Metropolitan Life Ins. Co.
not by automobile accident and that insurer was not liable under double indemnity provisions
of two life policies.
Affirmed.
Emilie N. Wanderer, of Las Vegas, for Appellant.
McNamee, McNamee & Rittenhouse, of Las Vegas, for Respondent.
Insurance.
Evidence including testimony that insured was in an unconscious state when his automobile crashed and
testimony by doctor who performed autopsy that insured died because of thrombosis in right coronary was
sufficient to support findings that insured's death was caused by disease and not by automobile accident
and that insurer was not liable under double indemnity provisions of two life policies. NRCP 52(a).
OPINION
Per Curiam:
Appellant was the beneficiary of two life insurance policies on the life of her deceased
husband, John J. Merrick, in the total amount of $3,900, with a double indemnity provision
for accidental death.
On February 12, 1968, said John J. Merrick drove his automobile north on Maryland
Parkway, Las Vegas, Nevada, and at approximately 1:00 p.m. he was witnessed by three
persons to slump over the steering wheel and then proceed, in an unconscious state, without
control of the car, to jump a curb and crash into a light pole.
An autopsy was performed upon the deceased on February 12, 1968, which autopsy report
found that the deceased died of an occlusion of the right ventricle caused by myocardial
infarction (a blood clot-thrombosis of the right ventricle which blocked the flow of blood to
the muscle of the heart thereby restricting oxygen from entering that muscle, and death
resulted therefrom).
Dr. Thorne Butler, a pathologist who conducted the autopsy, stated that he found evidence
of past myocardial infarcts (not lethal in character) which had left scar tissue and that the
reasonable explanation for the cause of death was the thrombosis in the right coronary. Also
noted were some superficial and recent abrasion in the forehead area, which in the doctor's
opinion, did not contribute to the cause of death. Further, it was the opinion of the doctor that
the automobile accident had nothing to do with the cause of Mr. Merrick's death.
88 Nev. 327, 329 (1972) Merrick v. Metropolitan Life Ins. Co.
The court found that the respondent was not liable under the double indemnity provisions
of the policies as death was caused by disease or other bodily infirmity and that the death of
John J. Merrick was not accidental.
Appellant here presents what appears to be her final argument to the lower court. She
points to no errors of law but argues that the court came to the wrong conclusion.
While in appropriate cases we may look to documentary evidence contained in the
appellate record to determine whether or not the conclusion reached by the trial court was
clearly wrong, North Arlington Med. v. Sanchez Constr., 86 Nev. 515, 520, 471 P.2d 240
(1970), the instant case presents the situation where there is little if any evidence contrary to
the lower court's ruling. Appellant was determined by the court not to have carried her burden
of proof. There being substantial evidence to support the court's findings, the judgment based
upon said findings must be affirmed. NRCP 52(a); Lagrange Construction, Inc. v. Kent Corp.,
88 Nev. 271, 496 P.2d 766 (1972).
Affirmed.
____________
88 Nev. 329, 329 (1972) Reed v. Reed
DOLLYE FAYE REED, Appellant, v.
ROBERT D. REED, Respondent.
No. 6668
June 7, 1972 497 P.2d 896
Appeal from an order of the Eighth Judicial District Court, Clark County; Clarence
Sundean, Judge.
Former wife filed motion to recover alleged arrearages of child support. The district court
rendered judgment in favor of wife in sum of $11,303.75 and ordered that judgment be
enforced at a rate not exceeding $50 per month and the former wife appealed. The Supreme
Court, Batjer, J., held that order that judgment for child support arrearages be enforced at rate
not exceeding $50 per month was within trial court's discretion.
Affirmed.
Emilie N. Wanderer, of Las Vegas, for Appellant.
Bell & LeBaron and James E. Barfield, of Las Vegas, for Respondent.
88 Nev. 329, 330 (1972) Reed v. Reed
1. Parent and Child.
District court is vested with discretion to make an order directing entry of judgment for arrearages
resulting from a husband's default in payment of child support. NRS 125.180.
2. Divorce.
Where no transcript of hearing on former wife's motion to recover alleged child support arrearages of
$13,285.75 had been filed, Supreme Court would assume that evidence supported trial judge's conclusion
that only $11,303.75 had accrued and that only that amount without interest was properly owing to the
former wife. NRS 125.180.
3. Divorce.
Trial court's order that child support arrearages of $11,303.75 be enforced at rate not to exceed $50 per
month was within its discretion despite former wife's contention that she should have been allowed to
execute immediately upon total amount of judgment entered by trial court. NRS 125.180.
4. Parent and Child.
In a proceeding to recover child support arrearages, granting of attorney's fees and costs is discretionary
with trial court. NRS 125.180.
5. Divorce.
Absent transcript of proceedings on wife's motion to recover alleged arrearages of child support, Supreme
Court would assume that evidence justified trial court's determination that payment of attorney's fees and
costs by former husband was not warranted. NRS 125.180.
OPINION
By the Court, Batjer, J.:
Appellant and respondent were divorced in Nevada in 1962. At that time they executed a
property settlement and custody agreement which provided that appellant was to receive
custody of the four minor children, and that respondent was to have visitation rights and was
to pay $75 per week for support of the children.
Respondent failed to make the required support payments, and on February 16, 1971,
appellant filed a motion pursuant to NRS 125.180 in the district court to recover alleged
arrearages in the amount of $13,285.75, plus costs and attorney's fees. Following a hearing,
the trial judge ordered judgment for appellant in the sum of $11,303.75, to be enforced at a
rate not exceeding $50 per month. Appellant was denied any attorney's fees or costs. Without
filing a transcript of the hearing or a narrative statement of the testimony with this court,
appellant now asks us to reverse the district court's order and remand the matter with
instructions to enter judgment for the full amount originally requested plus interest,
payable immediately, and for attorney's fees and costs.
88 Nev. 329, 331 (1972) Reed v. Reed
full amount originally requested plus interest, payable immediately, and for attorney's fees
and costs.
[Headnotes 1, 2]
The district court is vested with discretionary power to make an order directing entry of
judgment for arrearages resulting from a husband's default in the payment of child support.
NRS 125.180; Folks v. Folks, 77 Nev. 45, 359 P.2d 92 (1961). Since no transcript of the
hearing has been filed with this court, we must assume that the evidence supports the trial
judge's conclusion that only $11,303.75 had accrued, and that only this amount, without
interest, was properly owing to appellant. Meakin v. Meakin, 88 Nev. 25, 492 P.2d 1304
(1972); Leeming v. Leeming, 87 Nev. 530, 490 P.2d 342 (1971).
[Headnote 3]
Appellant asserts that she should have been allowed to execute immediately upon the total
amount of the judgment entered by the district court, and that it was error for the court to
order that such judgment be enforced at a rate not exceeding $50 per month. Since the district
court has discretion to enter judgment for all or none of the claimed arrearages (NRS
125.180; Folks v. Folks, supra), it follows that the liquidation of any judgment for arrearages
may be scheduled in any manner the district court deems proper under the circumstances. In
Chesler v. Chesler, 87 Nev. 335, 486 P.2d 1198 (1971), we approved of a district court order
requiring the defaulting party to pay $25 per month toward discharge of arrearages in child
support.
[Headnotes 4, 5]
Finally, appellant contends that she was entitled to attorney's fees and costs. The granting
of these items is discretionary with the trial court (NRS 125.180) and absent a transcript of
the proceedings below we must assume the evidence justified its determination that payment
of such fees and costs by respondent was not warranted under the circumstances. Meakin v.
Meakin, supra; Leeming v. Leeming, supra.
Affirmed.
Zenoff, C. J., and Mowbray, Thompson, and Gunderson, JJ., concur.
____________
88 Nev. 332, 332 (1972) Neely v. State
CORA NEELY, Also Known As CODY WATKINS, Also Known As CORRINE LYELL,
Appellant, v. THE STATE OF NEVADA, Respondent.
No. 6318
June 7, 1972 497 P.2d 898
Appeal from judgment of conviction and sentence of the Sixth Judicial District Court,
Humboldt County; Llewellyn A. Young, Judge.
The Supreme Court held that where there was no timely objection on specific grounds at
trial to admission of testimony given at defendant's preliminary hearing, issue was not
preserved on appeal.
Affirmed.
[Rehearing denied July 21, 1972]
J. Rayner Kjeldsen, of Reno, for Appellant.
Robert List, Attorney General, William Macdonald, District Attorney, and John Doyle,
Deputy District Attorney, Humboldt County, for Respondent.
Criminal Law.
Where there was no timely objection on specific grounds at trial to admission of testimony given at
defendant's preliminary hearing, issue was not preserved on appeal.
OPINION
Per Curiam:
Appellant contends that, for various reasons, the trial court erred in allowing the State to
introduce at trial certain testimony previously given at appellant's preliminary hearing.
Whatever the merits of such contentions might be if appellant's counsel had made a timely
objection, stating specific grounds, these issues have not been properly preserved for our
review. Merica v. State, 87 Nev. 457, 488 P.2d 1161 (1971); Kelley v. State, 76 Nev. 65, 348
P.2d 966 (1960); NRS 47.040(1)(a).
Other assignments of error are without merit.
Affirmed.
____________
88 Nev. 333, 333 (1972) Nevada Refining Co. v. Newton
NEVADA REFINING CO., a Corporation; and C. G. MORRISON and GUY L.
WEATHERLY, dba MORRISON AND WEATHERLY CHEMICAL PRODUCTS,
a Partnership, Appellants, v. GEORGE E. NEWTON and BONNIE NEWTON,
dba NEWTON PETROLEUM ENTERPRISES; and REFINERS SALES COMPANY,
a Corporation, Respondents.
No. 6696
June 7, 1972 497 P.2d 887
Appeal from a judgment and a denial of a motion for a new trial. Seventh Judicial District
Court, White Pine County; Roscoe H. Wilkes, Judge.
Action involving interpretation of conditional sales contract. From a judgment and denial
of motion for new trial by the district court the conditional buyer and others appealed. The
Supreme Court, Mowbray, J., held that where conditional sales contract for sale of oil
refinery required buyer to maintain taxes and insurance commencing on certain date, and the
record disclosed that a policy had been in effect when parties signed the agreement and that
seller had been and was named beneficiary therein, and that seller remained beneficiary until
removed by buyer thereafter, record supported trial court's finding that insurance was to be
for benefit of seller and hence seller had equitable lien on insurance proceeds.
Affirmed.
Lionel Sawyer Collins & Wartman and Steve Morris, of Las Vegas, for Appellant Nevada
Refining Co.
Gray, Horton and Hill, of Ely, for Appellants C. G. Morrison and Guy L. Weatherly, dba
Morrison and Weatherly Chemical Products.
Gregory & Gregory, of Las Vegas, for Respondents George E. Newton and Bonnie
Newton, dba Newton Petroleum Enterprises.
Vaughan, Hull & Marfisi, of Elko, for Respondent Refiners Sales Company.
1. Insurance.
Where provision of conditional sales contract for sale of oil refinery required buyer to pay all taxes and
insurance commencing on certain date, but provision failed to state for whose benefit insurance should
be maintained, district judge properly looked to surrounding circumstances and
relative positions of seller and buyer when contract was executed, in order to
interpret the provisions of the agreement.
88 Nev. 333, 334 (1972) Nevada Refining Co. v. Newton
insurance should be maintained, district judge properly looked to surrounding circumstances and relative
positions of seller and buyer when contract was executed, in order to interpret the provisions of the
agreement.
2. Sales.
The essence of a conditional sales contract is that the seller shall retain and not relinquish title to property
the subject of the sale until buyer pays in full the agreed purchase price; the title-retaining feature is the
seller's security in the transaction.
3. Insurance.
Where conditional sales contract for sale of oil refinery required buyer to maintain taxes and insurance
commencing on certain date, and record disclosed that a policy had been in effect when parties signed the
agreement and that seller had been and was named beneficiary therein, and that seller remained beneficiary
until removed by buyer thereafter, record supported trial court's finding that insurance was to be for benefit
of seller and hence seller had equitable lien on insurance proceeds.
OPINION
By the Court, Mowbray, J.:
The principal issue presented for our consideration on this appeal is focused on the lower
court's interpretation of a clause in a conditional sales contract requiring the buyer named
therein to assume and pay all the taxes and insurance covering the property which was the
subject of the sale. The provision in the agreement is as follows:
13. That it is hereby agreed Buyer shall assume and pay all taxes and insurance
commencing on December 1, 1966.
The clause, unfortunately, failed to state for whose benefit the insurance should be
maintained.
The property, which consisted of an oil refinery at Eagle Springs, Nevada, was partially
destroyed by fire. Appellant Nevada Refining Co., a corporation, is the vendee or buyer of the
conditional sales contract, while Respondents George E. Newton and Bonnie Newton, doing
business as Newton Petroleum Enterprises, are the successors to the interests of the vendor or
seller, Refiners Sales Company, a corporation.
The case originated as an interpleader action filed by The Hartford Insurance Group, the
insurer, to determine which of the parties were entitled to the proceeds of the policy covering
the damaged property.
1
1.

____________________

1
Appellants C. G. Morrison and Guy L. Weatherly, dba Morrison and Weatherly Chemical products, were
named as defendants in the original interpleader action, as a result of their claim to the insurance proceeds,
which claim was based on a writ of attachment served on The Hartford Insurance Group.
88 Nev. 333, 335 (1972) Nevada Refining Co. v. Newton
1. At the time the conditional sales contract was signed, the property was insured by
Hartford. The insurance had been obtained by the seller, and the seller was the beneficiary
named therein. A premium payment on the policy was then due or about to become due. The
buyer paid that premium and kept the insurance in effect, except that at a later date, and
without notice to the seller, the buyer caused the seller to be removed as named beneficiary
and substituted itself as beneficiary.
[Headnote 1]
2. Since the pertinent clause in the conditional sales contract failed to name for whose
benefit the insurance should be maintained, it was ambiguous. The district judge therefore
looked to the surrounding circumstances and relative positions of the seller and the buyer
when the contract was executed, in order to interpret the provisions of the agreement. He was
correct in doing so. As early as 1878, this court ruled, in Kennedy v. Schwartz, 13 Nev. 229,
231 (1878):
The language of the contract is not free from doubt, and to enable us to determine its
meaning, we must look at the relative position of the parties at the time the contract was
made, and consider the object they had in view. In other words, the contract must be
interpreted by a consideration of all of its provisions with reference to the general subject to
which they relate, and in the light of the contemporaneous facts and circumstances, so as to
arrive at the intention of the parties at the time the contract was entered into. See also
Holland v. Crummer Corp., 78 Nev. 1, 8, 368 P.2d 63, 66 (1962).
3. The record presented to the district judge shows that the policy with Hartford had been
and was in effect when the parties signed the conditional sales agreement, and that the seller
had been and was the named beneficiary therein. The seller remained the named beneficiary
thereafter until removed by the buyer.
The pertinent clause also required the buyer to pay all taxes on the property. The district
judge stated in his findings of fact:
III
That by including Paragraph 13 in said conditional sales contract the parties intended that
Nevada Refining Co. [buyer] continue the insurance already in effect, with Refiners Sales
Company [seller] as the named insured, for the benefit of the seller, Refiners Sales Company,
until the full purchase price had been paid.
88 Nev. 333, 336 (1972) Nevada Refining Co. v. Newton
[Headnotes 2, 3]
The record supports that finding. The essence of a conditional sales contract is that the
seller shall retain and not relinquish title to the property the subject of the sale until the buyer
pays in full the agreed purchase price. This title-retaining feature is the seller's security in the
transaction. For that reason, the subject property is insured and protected against tax
foreclosures. Otherwise, the security may be lost. The district judge found that such was the
intent of the parties in the instant case, and the record below supports that finding. The court,
therefore, properly concluded that the seller had an equitable lien on the insurance proceeds
and ordered the funds paid to the seller.
2

The judgment is affirmed.
Zenoff, C. J., and Batjer, Thompson, and Gunderson, JJ., concur.
____________________

2
Cf. Central Nat'l Bank & Trust Co. v. Simmer, 293 N.W. 460 (Iowa 1940).
____________
88 Nev. 336, 336 (1972) Mauldin v. Mauldin
GAYEL M. MAULDIN, Appellant, v.
WAYNE G. MAULDIN, Respondent.
No. 6685
June 7, 1972 497 P.2d 886
Appeal from order of Second Judicial District Court, Washoe County; John W. Barrett,
Judge.
Former husband moved to set aside judicial sale of real property to wife at execution sale
held to satisfy judgment for child support arrearages. The district court set aside the sale, and
wife appealed. The Supreme Court, Mowbray, J., held that where wife's judgment had been
satisfied by wife's acceptance of check in full and final satisfaction for balance due under
judgment and where wife, who subsequently obtained writ of execution against husband's real
property to satisfy balance due on judgment and purchased the property herself, thus had
notice of the payment and prior satisfaction of the judgment, the sale to wife was void and
conveyed no title, even though husband's satisfaction of judgment had not been entered in
record.
Affirmed.
88 Nev. 336, 337 (1972) Mauldin v. Mauldin
Charles E. Springer, Ltd., of Reno, for Appellant.
Streeter, Sala & McAuliffe, of Reno, for Respondent.
1. Parent and Child.
Where wife's judgment against husband for child support arrearages had been satisfied by wife's
acceptance of check in full and final satisfaction for balance due under judgment and where wife, who
subsequently obtained writ of execution against husband's real property to satisfy balance due on judgment
and purchased the property herself, thus had notice of the payment and prior satisfaction of the judgment,
the sale to wife was void and conveyed no title, even though husband's satisfaction of judgment had not
been entered in record.
2. Parent and Child.
Where wife did not specify, in affidavit in opposition to husband's motion to set aside execution sale in
satisfaction of judgment against husband for child support arrearages, the basis for her conclusionary
allegation of husband's fraud which allegedly induced wife to sign agreement by which she accepted a
check in full satisfaction of balance of judgment prior to issuance of writ of execution against husband's
real property, wife was not entitled to opportunity to show that agreement was procured by fraud. Second
Judicial District Court Rule 11(e).
OPINION
By the Court, Mowbray, J.:
This is an appeal from an order of the Second Judicial District Court setting aside as void a
sale of Respondent Wayne G. Mauldin's real property to Appellant Gayel M. Mauldin, which
she had purchased under a writ of execution sale, on the ground that the judgment that was
the predicate for the issuance of the writ had been fully satisfied.
Chronologically, the facts are as follows: Gayel obtained a divorce from Wayne on
September 30, 1960. The decree ordered Wayne to pay to Gayel for the support of their two
minor children the sum of $60 a month per child.
On June 15, 1964, Gayel obtained a judgment for child support arrearages against Wayne
in the amount of $5,220 plus $350 attorney's fee. Wayne paid $2,850 on the judgment,
leaving a balance due of $2,720. The partial satisfaction of the judgment was noted in the
record below. On July 20, 1967, Gayel and Wayne signed an agreement before a notary
public, pursuant to which Gayel accepted payment by check of a sum of money in full and
final satisfaction for the remaining balance due under the judgment, noting thereon, final
payment.
88 Nev. 336, 338 (1972) Mauldin v. Mauldin
The check was cashed, but the satisfaction of judgment was never entered in the case below.
Two and one-half years later, and without notice to Wayne, Gayel obtained a writ of
execution issued to the Sheriff of Washoe County, directing him to levy upon and sell
Wayne's real property, to satisfy the remaining balance of record then due on the judgment.
The record below shows that the Sheriff filed his return to the writ of execution on January
13, 1970, wherein he stated that he had levied upon certain real property of Wayne's and had
sold it at an execution sale on December 30, 1969, to Gayel for the sum of $1,000. When
Wayne became aware of the sale to Gayel, he filed the present motion to set aside the sale,
with his affidavit in support thereof, and attached copies of the parties' agreement of July 20,
1967, and the canceled check bearing Gayel's endorsement. Gayel filed an affidavit in
opposition to Wayne's motion, wherein she did not deny the factual history of the case, but
alleged without any specificity that she had been fraudulently induced by Wayne to sign the
July 1967 agreement and cash the check.
[Headnote 1]
Although Rule 11(e) of the Rules of Practice for the Second Judicial District Court
provides that any party may request oral argument, where the granting of a motion would
dispose of the action on the merits, with prejudice, . . . no such request was made in this
instance, and the motion was submitted to the district judge for his decision. The district
judge found that the judgment had in fact been satisfied and that the execution sale to Gayel
was void. We affirm that ruling. In Walker v. Shrake, 75 Nev. 241, 247, 339 P.2d 124, 127
(1959), this court held:
A sale under a judgment that has been satisfied is void and conveys no title even though
the judgment has not been satisfied of record. Pope v. Benster, 42 Neb. 304, 60 N.W. 561, 47
Am.St.Rep. 703; Mayor and Council of City of Millen v. Clark, 193 Ga. 132, 17 S.E.2d 742.
This is particularly true where the purchaser has notice of the payment and the prior
satisfaction of the judgment, as in the instant case. Walker v. Shrake, supra. See also 30
Am.Jur. 2d Evidence 593 (1967).
[Headnote 2]
Gayel has urged on appeal that she be afforded an opportunity to show that her agreement
with Wayne was procured by fraud on his part. Yet nowhere in her affidavit does Gayel
specify the basis for her conclusionary allegation of fraud, nor has any such suggestion been
submitted to date.
88 Nev. 336, 339 (1972) Mauldin v. Mauldin
has any such suggestion been submitted to date. We are uninformed as to what additional
facts, if any, would be forthcoming by a new hearing. Therefore, under the factual posture of
this case we conclude that the district judge ruled correctly, and we affirm his order setting
aside the sale to Gayel.
Zenoff, C. J., and Batjer, Thompson, and Gunderson, JJ., concur.
____________
88 Nev. 339, 339 (1972) State ex rel. Pagni v. Brown
THE STATE OF NEVADA, on the Relation of ROY D. PAGNI, ROBERT F. RUSK,
HOWARD F. McKISSICK, SR., DWIGHT A. NELSON and JOE COPPA, Members of and
Constituting the BOARD OF COUNTY COMMISSIONERS OF WASHOE COUNTY,
STATE OF NEVADA, Petitioners, v. H. K. BROWN, County Clerk of Washoe County, State
of Nevada, and ex Officio Clerk of the Board of County Commissioners of Washoe County,
State of Nevada, Respondent.
No. 6892
June 7, 1972 497 P.2d 1364
Original proceeding in mandamus to determine the constitutionality of NRS 244.013 as
amended by Stats. Nev. 1971, ch. 649, p. 1528.
Original proceeding in mandamus to determine constitutionality of statute governing
election of county commissioners in counties having a population of 50,000 or more. The
Supreme Court, Thompson, J., held that statute requiring that five county commissioners be
elected in each county having a population of 50,000 or more, with two from among residents
of incorporated city within county in which county seat is located, one from among residents
of other incorporated cities in county, one from among residents of unincorporated areas of
county, and one at large within county, is violative of equal protection in that deviation from
numerical equality ranges from an underrepresentation of approximately 13 percent in Reno
to an overrepresentation of approximately 20 percent in Sparks and unincorporated area.
Writ issued.
Russell W. McDonald, of Reno, for Petitioners.
88 Nev. 339, 340 (1972) State ex rel. Pagni v. Brown
Robert E. Rose, District Attorney, and John Frankovich, Deputy District Attorney,
Washoe County, for Respondent.
1. Mandamus.
Board of county commissioners pursued an appropriate remedy by instituting an original proceeding in
mandamus to determine constitutionality of statute governing election of county commissioners in counties
having a population of 50,000 or more, where county clerk had refused to attest county ordinance
purporting to create county commissioner districts based on population in compliance with Local
Government Reapportionment Law, and predicate for refusal was that statute was constitutional with result
that proposed ordinance was void. NRS 244.013.
2. Constitutional Law; Counties.
Statute requiring that five county commissioners be elected in each county having a population of 50,000
or more, with two from among residents of incorporated city within county in which county seat is located,
one from among residents of other incorporated cities in county, one from among residents of
unincorporated areas of county, and one at large within county, is violative of equal protection in that
deviation from numerical equality ranges from an underrepresentation of approximately 13 percent in Reno
to an overrepresentation of approximately 20 percent in Sparks and unincorporated area. NRS 244.013;
U.S.C.A.Const. Amend 14.
OPINION
By the Court, Thompson, J.:
[Headnote 1]
The purpose of this original proceeding in mandamus, instituted by the State on relation of
the Board of County Commissioners of Washoe County, is to determine the constitutionality
of NRS 244.013 as amended by Stats. Nev. 1971, ch. 649, p. 1528.
1
The County Clerk of
Washoe County has refused to attest Washoe County Ordinance No. 186 which purports to
create Washoe County Commissioner districts based on population in compliance with the
Local Government Reapportionment Law, Stats. Nev. 1971, ch. 648. The predicate for his
refusal to so attest is that NRS 244.013, as amended by Stats. Nev. 1971, ch. 649, p. 1528, is
constitutional with the result that proposed Washoe County Ordinance No. 186 is void.
1. NRS 244.013 (Stats. Nev. 1960, ch. 85, p. 91) provides that in each county having a
population of 50,000 or more, as determined by the last preceding national census of the
Bureau of the Census of the United States Department of Commerce, five county
commissioners shall be elected: two from among the residents of the incorporated city
within the county at which the county seat is located by the residents of such city; one
from among the residents of the other incorporated cities in the county by the residents of
such cities; one from among the residents of the unincorporated areas of the county by
the residents of such areas; and one at large within the county.2
____________________

1
The remedy is appropriate. State ex rel. Herr v. Laxalt, 84 Nev. 382, 441 P.2d 687 (1968); McDonald v.
Beemer, 67 Nev. 419, 220 P.2d 217 (1950); State v. Stoddard, 25 Nev. 452, 62 P. 237 (1900). Since a prompt
and final determination is significant to prospective candidates, the public, the taxpayers and the electors of
Washoe County, we accepted this proceeding rather than to refer the petitioners to the district court.
88 Nev. 339, 341 (1972) State ex rel. Pagni v. Brown
more, as determined by the last preceding national census of the Bureau of the Census of the
United States Department of Commerce, five county commissioners shall be elected: two
from among the residents of the incorporated city within the county at which the county seat
is located by the residents of such city; one from among the residents of the other
incorporated cities in the county by the residents of such cities; one from among the residents
of the unincorporated areas of the county by the residents of such areas; and one at large
within the county.
2

The official 1970 census of population for Nevada provided by the Bureau of Census
determined that Washoe County had a population of 121,068, the City of Reno, 72,863, and
the City of Sparks, 24,187. The City of Reno is the County Seat of Washoe County and the
specially chartered cities of Reno and Sparks are the only incorporated cities in Washoe
County. Stats. Nev. 1903, ch. 102, as amended; Stats. Nev. 1949, ch. 180, as amended.
Consequently, when the official 1970 census figures are applied to NRS 244.013, as amended
in 1971, we find that two county commissioners are to be elected from the City of Reno
having a population of 72,863, one commissioner is to be elected from the City of Sparks
having a population of 24,187, one commissioner is to be elected from the unincorporated
area of the county having a population of 24,018, and one commissioner at large.
This plan involves one multi-member district and one floterial district. The disparity,
expressed in percent of the ideal representation is portrayed below.
3
Accordingly, the
petitioners contend that the inhabitants of the City of Reno are not properly represented
because of constitutionally impermissible population variances.
____________________

2
When first enacted the statute applied to Clark and Washoe Counties since all other Nevada counties fell
below the required 50,000 population. In 1971, the Legislature amended NRS 244.013 to remove Clark County
therefrom. See: Stats. Nev. 1971, ch. 649, 2, p. 1529. NRS 244.013, by reason of the 1971 amendment, applies
to each county having a population of 100,000 or more, but less than 200,000. The 1970 census determined that
Clark County had a population of 273,288 and Washoe County, 121,068. Accordingly, Clark County was
automatically eliminated from the operation of NRS 244.013. That statute now applies only to Washoe County.
This classification according to population is constitutionally permissible. State v. Donovan, 20 Nev. 75 (1887).

Number of Percent

3
District Number Population Commissioners Disparity
1. Reno...................................................... 72,863 2 - 13.536
2. Sparks.................................................. 24,187 1 +20.110
3. Rural.................................................... 24,018 1 +20.814
4. Entire County........................................ 121,068 1 ____________
Positive entries indicate overrepresentation, and negative, underrepresentation.
88 Nev. 339, 342 (1972) State ex rel. Pagni v. Brown
contend that the inhabitants of the City of Reno are not properly represented because of
constitutionally impermissible population variances. The respondent urges that the variances
are within permissible limits.
4
We turn to consider this major issue.
2. In Baker v. Carr, 369 U.S. 186 (1962), the United States Supreme Court ruled that the
allegations of a denial of equal protection due to legislative malapportionment presented a
justiciable issue. The Court apparently believed that there existed no effective alternative to
accepting jurisdiction since legislative abnegation of responsibility maintained rural political
control over a vastly larger urban population. The following year, that Court proclaimed the
one man, one vote concept. Gray v. Sanders, 372 U.S. 368 (1963). The Court stated: How
then can one person be given twice or ten times the voting power of another person in a
statewide election merely because he lives in a rural area or because he lives in the smallest
rural county? Once the geographical unit for which a representative is to be chosen is
designated, all who participate in the election are to have an equal votewhatever their race,
whatever their sex, whatever their occupation, whatever their income, and wherever their
home may be in that geographical unit. This is required by the Equal Protection Clause of the
Fourteenth Amendment. The concept of we the people' under the Constitution visualizes no
preferred class of voters but equality among those who meet the basic qualifications." Id.
at 379, 3S0.
____________________

4
Proposed Washoe County Ordinance No. 186 provides for five nonoverlapping single seat commissioner
districts. The disparity in percent of ideal representation is:

Number of Percent


District Number Population Commissioners Disparity
1................................................................. Reno 24,197 1
+0.069
2................................................................. Reno 24,168 1
+0.189
3................................................................. Reno 24,286 1 -
0.298
4................................................................. Sparks 24,272 1 -
0.241
5................................................................. Balance of County 24,145 1
+0.284
Sec. 4(1) of the Local Government Reapportionment Law, 71 Stats. ch. 648, p. 1527, pursuant to which the
County Commissioners voted for Ordinance No. 186, directs the governing board of a local governmental unit
whose members are chosen by popular vote to divide the geographical area it serves into the number of election
districts which is identical with the number of members serving on such boardsuch division to be
accomplished before January 1, 1972. This directive, however, is inapplicable if the law otherwise has made
specific provision for the election of county commissioners. NRS 244.013 as amended does so specifically
provide and must be followed if constitutional. However, if NRS 244.013 as amended is unconstitutional and
void, it is the same as no law at all, State v. Malone, 68 Nev. 36, 43, 231 P.2d 599 (1951), and the directive of
the Local Government Reapportionment Law would be operative. We are not here concerned with the
constitutionality of Ordinance