Nevada Reports 1918-1919 (42 Nev.) PDF

42 Nev.
1, 1 (1918)
REPORTS OF CASES
DETERMINED BY
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
JULY TERM, 1918
____________
42 Nev. 1, 1 (1918) Vineyard Land & Stock Co. v. District Court
[No. 2264]
VINEYARD LAND AND STOCK COMPANY (a Corporation), Petitioner and Relator, v.
THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE
OF NEVADA, IN AND FOR THE COUNTY OF ELKO, and Honorable E. J. L.
TABER, District Judge of said District Court, and W. M. KEARNEY, as State Engineer
of the State of Nevada, Respondents.
[171 Pac. 166]
1. Constitutional LawPresumptions in Favor of Act.
When a statute is assailed as being unconstitutional, every presumption is in favor of its validity, all
doubts must be resolved in its favor, and, unless it is clearly in derogation of some constitutional provision,
it must be sustained.
2. Constitutional LawConsideration by Courts of Policy of Law.
The courts, in considering the constitutionality of a statute, have nothing to do with the general policy of
the law.
3. Constitutional LawWaters and WatercoursesDue ProcessNevada Water Law.
Water law (Stats. 1913, c. 140), as amended by Stats. 1915, c. 253, providing that, subject to existing
rights, the water of all sources of supply belongs to the public, providing for the appointment of a state
engineer, to whom application may be made to appropriate any unappropriated water in a public stream,
etc., and providing that the state engineer, on his own initiative, or on application of one or more users of
water of any stream, may make an order for the determination of the relative rights of
the water users, there being provision for notice, etc., is not violative of federal
Const.
any stream, may make an order for the determination of the relative rights of the water users, there being
provision for notice, etc., is not violative of federal Const. Amend. 14, prohibiting the taking of property
without due process of law.
4. Constitutional LawDue ProcessAdherence to Methods in Existence at Time of
Adoption of Constitution.
It is not the rule in Nevada that there can be no due process of law unless the methods, means, and
instrumentalities which were in existence at the time of the adoption of the Nevada constitution are adhered
to.
5. Constitutional LawWater lawEncroachment on JudiciaryJurisdiction of District
Court.
etc., and providing that the state engineer, on his own initiative or on application of one or more users of
water of any stream, may make an order for the determination of the relative rights of the water users, there
being provision for notice, etc., is not violative of Const. art. 6, sec. 6, providing that the district courts
shall have original jurisdiction in all cases which involve the title or the right of possession to, or the
possession of, real property, even though a water right is real estate, since the entire proceedings under the
water law amount to nothing until a copy of the order of determination of water rights of the state engineer
is filed in the office of the clerk of the district court, thus operating as a complaint, the proceedings before
the state engineer being nothing more than the routine of preparing and filing the complaint in the district
court, which invests the latter court with jurisdiction to act.
6. Constitutional LawSeparation of Powers of GovernmentWater Law.
etc., and providing that the state engineer, on his own initiative, or on application of one or more users of
water of any stream, may make an order for the determination of the relative rights of the water users, there
being provision for notice, etc., is not violative of Const. art. 3, sec. 1, and art. 6, sec. 1, providing that
the powers of government shall be divided into three separate departments, the legislative, executive, and
judicial, etc., and that the judicial power of the state shall be vested in a supreme court, district courts, and
justices of the peace, the act not conferring judicial powers on the state engineer, since the procedure
before him merely paves the way for an adjudication by the district court.
7. Eminent DomainCompensationPublic UseWater law.
etc., and providing that the state engineer, on his own initiative, or on application of one or more of the
users of water of any stream, may make an order for the determination of the relative rights of the water
users, there being provision for notice, etc., is not violative of Const. art. 6, sec. 1, providing that
private property shall not be taken for public use without just compensation, since the law does not
contemplate or suggest the taking of private property for any public or any other use.
8. Waters and WatercoursesConstitutionality of Water LawDistribution of
WaterDetermination of State Engineer.
Water law (Stats. 1913, c. 140), sec. 33, as amended by Stats. 1915, c. 253, sec. 3, providing that from
and after the filing of the state engineer's order of determination with the clerk of the district court, and
during the hearing thereon, the waters of the stream in question may be distributed as indicated in the order
of determination, unless a stay bond be given, is not unconstitutional.
9. Constitutional LawVested Rights.
No person has a vested right in any rule of law, nor can any one assert a vested right in any particular
mode of procedure.
10. Constitutional LawDue ProcessWater Law.
Water law (Stats. 1913, c. 140), as amended by Stats. 1915, c. 253, is not unconstitutional, as permitting
a taking of property without due process of law, in that should an interested party fail to file objections, to
the determination of the state engineer as to water rights, with the clerk of the district court in which the
engineer files a copy of his order of determination, and the court enters a decree in accordance with such
order, such decree will be tantamount to a taking of property without due process.
Petition for prohibition, on the relation of the Vineyard Land and Stock Company, a
corporation, against the District Court of the Fourth Judicial District of the State of Nevada in
and for the County of Elko, E. J. L. Taber, District Judge of said District Court, and W. M.
Kearney, as State Engineer of the State of Nevada. Alternative writ vacated, and
permanent writ denied, McCarran, C. J., dissenting.
Charles B. Henderson and Carey Van Fleet, for Petitioner:
All of the sections of the act entitled An act to provide a water law for the State of
Nevada, * * * (Stats. 1915, c. 253), are unconstitutional, null, and void: (1) as being in
violation of the 14th amendment to the Constitution of the United States; (2) as being in
violation of article 1, section 8, Constitution of the State of Nevada; (3) as being in violation
of article 3, section 1, Constitution of the State of Nevada; (4) as being in violation of article
4, sections 20 and 21, Constitution of the State of Nevada; (5) as being in violation of article
6, sections 1, 4, and 6, Constitution of the State of Nevada; (6) as being in violation of article
4, section 17, Constitution of the State of Nevada.
Said act is inoperative and void, in this: That the title does not express, in any manner,
shape or form, the provisions contained in the body of the act; it is so ambiguous and
uncertain that it amounts to no title at all; it purports to repeal the water law of 1913 and to
amend the water law of 1907, but it is in such shape that it is impossible for this court to
ascertain the intention of the legislature in regard thereto. Said title is in violation of article 4,
section 17, Constitution of the State of Nevada, as aforesaid.
The water law of 1913 (Stats. 1913, p. 192) was amended by the amendatory act of 1915
(Stats. 1915, p. 378), and is inoperative and void for the reason that since the amendment the
remaining sections of the law of 1913 conflict with the amendatory sections of the law of
1915, more particularly as follows: Section 51 of the law of 1913 conflicts with sections 33,
34, 35, and 36 of the amendatory act of 1915, and all of the amendatory sections of the law of
1915 conflict with sections 45 and 46 of the law of 1913.
By the amendatory act of 1915 all right of appeal to this court from the decision of the
district court, upon the hearing of the order of determination of the state engineer, is cut off.
The law of 1913 (Stats. 1913, p. 192), as amended by the law of 1915 (Stats. 1915, p.
378), is unconstitutional, null and void, in that sections 18 to 58 and 88a and 88b of said act
as amended are unconstitutional, being violative of the sections of the constitution of the
United States and the constitution of the State of Nevada heretofore set forth. The water law
of 1913 has been repealed by the amendatory act of 1915, and there is now no water law in
force and effect in the State of Nevada.
Cheney, Downer, Price & Hawkins, Amici Curiae:
The water law of 1913, as amended, does not authorize the state engineer to determine and
establish the several rights of petitioner, or other appropriators, whose rights to the use of
water became vested property rights prior to 1903, or prior to the approval of the water law of
1913, approved March 22, 1913. The legislative declaration contained in section 1 of said
water law of 1913 is insufficient to, and does not, warrant or authorize the acts done and
threatened to be done by the state engineer, for the reason that the waters do not belong to the
state, but belong to the United States government in its sovereign and proprietary capacity. If
the water law of 1913, as amended, does authorize and empower the state engineer to hear,
determine, and establish the several rights and the relative rights of petitioner and other
appropriators, all sections and parts of sectionsto wit: sections 18 to 39, inclusive, and
sections 45, 51, 75 88a, 88bare inhibited by and in contravention of the provisions of the
federal and state constitutions, and are therefore unconstitutional and void.
Whenever, by priority of possession, rights to the use of water for mining, agricultural,
manufacturing, or other purposes, have vested and accrued, and the same are recognized and
acknowledged by the local customs, laws and decisions of the courts, the possessors and
owners of such vested rights shall be maintained and protected in the same. Fed. Stats. Ann.,
vol. 7, sec. 9, p. 1090. Appropriations made in the absence of restrictions cannot be impaired
by subsequent legislation, but such legislation would apply only to appropriations made
after and in accordance with such legislation.
such legislation would apply only to appropriations made after and in accordance with such
legislation. Coffin v. Left Hand Ditch Co., 6 Colo. 443; Arnold v. Stevenson, 2 Nev. 234;
Haydon v. Board, 2 Nev. 371; O'Neal v. N. Y. M. Co., 3 Nev. 141; State v. Kruttschnitt, 4
Nev. 178; Torreyson v. Board, 7 Nev. 19; Fitch v. Elko Co., 8 Nev. 271; Ex Parte Hewlett, 22
Nev. 333; Palmer v. R. R. Com., 138 Pac. 997. There are two sets of laws governing the
appropriations of water in the State of Oregon: First, those relating to appropriations made
prior to the time that the water code went into effect; and, second, those governing
appropriations made after it went into effect. Kinney on Irrigation, 2d ed., vol. 4, sec. 1979.
The claim of ownership of all the water of all sources of water supply, contained in
section 2 of the 1913 statute, is the first legislative declaration of the kind. Previous
legislatures have been content to say that all natural watercourses and natural lakes, and the
waters thereof, which are not held in private ownership, belong to the state and are subject to
appropriation for beneficial uses. Stats. 1907, p. 30; Stats. 1903, p. 24; Stats. 1899, p. 115.
As it appears to us, from all sides of the question, the better rule is to have these rights
determined and authoritatively adjudicated in the first instance by the court. But, paramount
above all questions, it is better even to encourage litigation than that a citizen should be
deprived of his property unjustly. Kinney on Irrigation, 2d ed., vol. 3, sec. 1595. Title cannot
be vested by a mere fiat of law. No property right was acquired by the legislative declaration
in the statute. A state cannot by its legislation restrict the authority of the officers of the land
department in the disposition of the public lands of the United States or withhold from the
grantees of the Unites States any of the incidents of the transfer of the government title.
Peyton v. Desmond, 129 Fed. 1; Bagnell v. Broderick, 13 Pet. 436, 450; Wilcox v.
McConnell, 13 Pet. 498, 516; Irvine v. Marshall, 20 How. 558; Gibson v. Chouteau, 13 Wall.
13 Wall. 92; Langdon v. Sherwood, 124 U. S. 74; Paige v. Peters, 70 Wis. 182; U. S. v. Rio
Grande Irr. Co., 174 U. S. 690; Rossmiller v. State, 124 Wis. 169.
The water law of 1913, as amended in 1915, is unconstitutional. Whether a power is
within constitutional limits is to be determined by what can be done under it, not by what may
be done. It is no answer to say that the power would not be arbitrarily or unreasonably
exercised. It must be judged by what can be done under it, not by what may be done under it.
Curtin v. Benson, 222 U. S. 78; Sterrett & Oberle Packing Co. v. City of Portland, 154 Pac.
410; Stuart v. Palmer, 74 N. Y. 183.
The determination of vested property rights by the state engineer is inhibited by the
constitution. The form of the law by which an individual is deprived of a constitutional right
is immaterial. The test of its constitutionality is whether it operates to deprive any person of a
right guaranteed or given him by the constitution. If it does, it is a nullitywhatever may be
its form. Davies v. McKeeby, 5 Nev. 369.
The proceedings to hear, determine and establish vested water rights are judicial. Southern
Pacific Co. v. Bartine, 170 Fed. 725; Wattles v. Baker County, 117 Pac. 417; Thorp v.
Wollman, 1 Mont. 168; Pacific Coast C. Co. v. Pillsbury, 153 Pac. 24; Farm. Inv. Co. v.
Carpenter, 61 Pac. 258; People v. Mallory, 63 N. E. 508; In Re Dunford, 53 Pac. 92; Fitch v.
Board, 94 N. W. 952; People v. Dunn, 52 N. E. 572; Witter v. Cook County Comm., 100 N.
E. 148; State v. Blaisdell, 132 N. W. 769; State v. Brill, 111 N. W. 294.
The water law violates the due-process-of-law provisions of the constitution of Nevada, as
construed and defined by the supreme court. To hear, determine and establish that one party is
not entitled to property which he claims, and that another party claiming is entitled thereto, is
to determine and establish title or right of possession to, or the possession of, such property
so involved and so determined and established. Gibson v. Mason, 5 Nev. 2S3
Mason, 5 Nev. 283; Wright v. Cradlebaugh, 3 Nev. 341; Persing v. Reno B. Co., 30 Nev.
342; Bear Lake County v. Budge, 75 Pac. 614; State v. Guilbert, 47 N. E. 551; People v.
Simon, 52 N. E. 910; Brown v. Board, 50 Miss. 468.
Geo. B. Thatcher, Attorney-General, and W. M. Kearney, for Respondents:
The State Water Law, in controversy in this proceeding, is found in full in chapter 140,
Statutes of Nevada, 1913, page 192, and in the amendments thereto at chapter 253, Statutes of
Nevada, 1915, page 378. Sections 1 to 17, inclusive, may be called general provisions with
reference to the use and appropriation of water, storage, standards of measurements,
measurements, and the creation of the office of state engineer. Sections 18 to 51, both
inclusive, may for convenience be called the adjudication provisions of the act, and have for
their purpose the ultimate adjudication of all water rights upon any given stream system of all
appropriators thereon. Sections 52 to 58 provide for the administration and regulation of the
use of water through the office of the state engineer and through various water
commissioners. Section 59, and all the other sections of the act, in substance, provide and
regulate the method of making new appropriations of water, changes of points of diversion,
general fees, etc. This section brings into controversy the constitutionality of the provisions of
sections 18 to 51, both inclusive, the adjudication provisions of the act. Generally stated,
these provisions provide a complete system for the determination of the relative rights of all
claimants upon all of the streams and stream systems of the state, having for its ultimate
purpose a final adjudication, which will definitely determine and fix the title and right of
every water user.
If the state, in the exercise of its police power, is to regulate the distribution to
appropriators, it is essential that the relative rights of the various water users upon a stream
or stream system must be ascertained and definitely fixed.
a stream or stream system must be ascertained and definitely fixed. Under supervision of the
state, no control under its police power and no regulation of the distribution and use would be
effective without first making some determination of the relative rights, and this power of
regulation and control is clearly within the scope of the police power of the state. Farmers I.
Ditch Co. v. Agricultural Ditch Co., 45 Pac. 444; Louden Irr. Co. v. Handy Ditch Co., 43 Pac.
535; White v. Farmers H. C. & R. Co., 31 L. R. A. 828; Anderson v. Kearney, 37 Nev. 314,
336, 337, 338.
The act does not violate the due-process clause of the fourteenth amendment to the
constitution of the United States or the due-process clause of the constitution of Nevada,
article 1, section 8. Weil on Waters, 3d ed., secs. 1227, 1228, p. 1135; Spear v. Stephenson,
102 Pac. 367-372; Farm Investment Co. v. Carpenter, 50 L. R. A. 744, 761; Anderson v.
Kearney, supra; Pacific Livestock Co. v. Lewis, 217 Fed. 95.
The act does not violate section 1, article 3, of the constitution of Nevada, providing for
the distribution of the powers of the state government (Sawyer v. Dooley, 21 Nev. 390, 396;
Anderson v. Kearney, supra), nor is it in violation of sections 20 and 21. This has been too
often decided to merit discussion. The law applies equally to all appropriators of water and to
all stream systems of the state, and to all actions brought under the act, and the statute is
neither a special law nor class legislation within the constitutional inhibitions. Youngs v.
Hall, 9 Nev. 212; State v. Mining Co., 15 Nev. 234; State v. Mining Co., 16 Nev. 432; State
v. State Bank and Trust Co., 37 Nev. 456; Sawyer v. Dooley, 21 Nev. 391; Southern Pacific
Co. v. Bartine, 170 Fed. 725; Mo. Pac. Co. v. Mackey, 127 U. S. 205; Chicago R. R. Co. v.
Arkansas, 219 U. S. 453.
The act is not violative of the provisions of article 6 of the constitution of Nevada. Farm
Investment Co. v. Carpenter, supra; Crawford Co. v. Hathaway, 67 Neb.
325; State v. State Bank and Trust Co., 31 Nev. 456; Anderson v. Kearney, supra. The
distribution and regulation of the use of water on a stream system pending the hearing in the
district court is made in accordance with the order of the state engineer, but it becomes only
prima facie correct, and distribution is made only in accordance therewith when filed in the
court. So long as it remains in the hands of the state engineer it amounts to nothing so far as it
vests or divests the rights of any appropriator, or regulates or controls the disposition,
distribution and use of water. Furthermore, the order of determination made by the state
engineer and the hearings and proceedings provided by the statute preliminary thereto are not
cases in equity or cases at law as those terms are used in the state constitution. Anderson
v. Kearney, supra; In Re Silvies River, 199 Fed. 499; Pacific Livestock Co., v. Lewis, supra.
It is contended that the State of Nevada has no right or authority to pass the act in question,
for the reason that the government of the United States is the owner of all lands and water
embraced and lying within the boundaries of the state, having come into the same under the
treaty between the United States and Mexico in 1848. This contention is not tenable. The
ownership of the United States of the public lands in the various western states is not that of a
sovereign; it is proprietary only, standing in the same position with reference to ownership
and rights as any private individual. U. S. v. R. R. Co., 27 Fed. Cas. 686, Fed. Case No.
16114; Moore v. Smaw, 17 Cal. 199; People v. Shearer, 30 Cal. 645. A grant from the United
States of its public lands bounded on streams or other waters is to be construed according to
the laws of the state in which the land lies. Harden v. Jordan, 140 U. S. 371. On the
admission of a new state, short lands or tide lands belong to the state. Shiveley v. Bowler, 152
U. S. 1. The right of the United States to the public lands and the power of sale in Congress
confers no right to grant lands on the banks of the Mobile River which were below high-water
mark at the time Alabama was admitted into the Union.
at the time Alabama was admitted into the Union. Pollard v. Hagan, 3 How. 212. California,
by virtue of its admission to the Union, became the owner of the navigable rivers and the soil
under same. Mumford v. Wardwell, 6 Wall. 423. In the state is vested the waters of natural
streams; but, even if that were not the law, the government of the United States has
specifically recognized the rights of legislatures to regulate and control the waters, of natural
streams within their boundaries. Act 1866, 14 U. S. Stats. at Large, 2551. It is very evident
that Congress intended, although the language used is not happy, to recognize as valid the
customary law with respect to the use of water, which has grown up among the occupants of
the public lands under the peculiar necessities of their condition, and that law may be shown
by evidence of the local custom, or by the legislation of the state or territory or the decisions
of the court. Basey v. Gallagher, 87 U. S. 670, 683.
By the Court, Coleman, J.:
This is a proceeding in prohibition. It appears from the petition that the state engineer,
upon the application of petitioner, initiated proceedings under the water law (Stats. 1913, p.
192, as amended by Stats. 1915, p. 378) of this state, to determine, for administrative
purposes the relative rights of the appropriators of the water of the Salmon River and its
tributaries, situated in Elko County, Nevada.
After the preliminary steps provided for in the statute had been complied with by the state
engineer, and after a copy of the order of determination made by him establishing the relative
rights of appropriators of the water of said stream had been filed in the office of the clerk of
the district court of Elko County, and after an order had been made by that court fixing a time
for hearing upon such order of determination, these proceedings were instituted to prohibit
said court from proceeding with such hearing or taking any action whatever in the matter.
The act in question provides that, subject to existing rights, the water of all sources of
supply belongs to the public, and makes provision for the appointment of a state
engineer, to whom application may be made to appropriate any unappropriated water in a
public stream.
rights, the water of all sources of supply belongs to the public, and makes provision for the
appointment of a state engineer, to whom application may be made to appropriate any
unappropriated water in a public stream. It is provided also that the state engineer may, on his
own initiative, or upon the application of one or more users of water of any stream in the
state, make an order for the determination of the relative rights of the water users of such
stream; and by section 19 of the act it is made the duty of the state engineer to publish for
four weeks notices of such order and the date when examination of the rights of water users
will begin, and notify all claimants of rights in the water of the stream to make proof of their
claims. Sections 20 and 21 provide for an independent investigation by the state engineer and
the making of surveys and maps. Section 22 provides that after such investigation is made,
and maps, etc., are filed, the state engineer shall give notice, by publication and by registered
mail, of the commencement of the taking of proofs by him and of the date prior to which the
same must be filed. Section 33 of the amendatory act provides for the making by the state
engineer of an order determining the relative rights to the waters of the stream, a certified
copy of which, together with the original evidence, shall be filed with the clerk of the district
court, whereupon the court shall make an order, fixing a time for a hearing upon such order of
determination, which the state engineer shall cause to be published for four consecutive
weeks in one or more newspapers, and a copy of which he shall send, by registered mail, to
each party in interest. Interested parties may, pursuant to the act, five days prior to the day set
for hearing by the court, file with the clerk of the court exceptions to the order of
determination made by the state engineer. Section 35 of the amendatory act also provides:
The order of determination by the state engineer and the statements or claims of claimants
and exceptions made to the order of determination shall constitute the pleadings, and there
shall be no other pleadings in the cause.
pleadings, and there shall be no other pleadings in the cause. If no exceptions shall have been
filed with the clerk of the court as aforesaid, then on the day set for the hearing, on motion of
the state engineer, or his attorney, the court shall enter a decree affirming said order of
determination. On the day set for hearing all parties in interest who have filed notices of
exceptions as aforesaid shall appear in person or by counsel, and it shall be the duty of the
court to hear the same or set the time for hearing, until such exceptions are disposed of, and
all proceedings thereunder shall be as nearly as may be in accordance with the rules
governing civil actions.
Section 38 of the amendatory act reads:
From and after the filing of the order of determination, evidence, and transcript with the
county clerk as aforesaid, and during the time the hearing of said order is pending in the
district court, the division of water from the stream involved in such determination shall be
made by the state engineer in accordance with said order of determination.
The operation of said order of determination may be stayed, in whole or in part, by the
giving of a bond in an amount to be fixed by the judge of the district court.
The foregoing statement of the water law, together with such other provisions as we may
call attention to in this opinion, are, we think, sufficient for a full understanding of the
questions involved in this case.
The questions presented in this matter are not new; in fact, we think it may be said that the
law involved is well settled adversely to the contention of the petitioner. The purposes of the
water law were fully set forth by Norcross, J., in Ormsby County v. Kearney, 37 Nev. 314,
142 Pac. 803, where the statute of 1913 (before amendments) was considered, and we will
not undertake to restate them at length, contenting ourselves by saying generally that the
moving cause therefor was to provide a method whereby unappropriated water might be
appropriated, and whereby the relative rights of existing appropriators of the waters of the
public streams of the state might be determined without great delay and expense to such
appropriators, and to enable the state to supervise and administer the distribution of such
waters so that the greatest good might be attained therefrom for the development of our
agricultural resources.
appropriators of the waters of the public streams of the state might be determined without
great delay and expense to such appropriators, and to enable the state to supervise and
administer the distribution of such waters so that the greatest good might be attained
therefrom for the development of our agricultural resources.
In approaching the consideration of this case, we wish to say that the main questions upon
which this decision must turn were considered and determined in the interpretation of similar
laws, from which ours was chiefly taken, in the following cases: In Re Willow Creek, 74 Or.
592, 144 Pac. 507, 146 Pac. 475; Pacific Live Stock Co. v. Lewis (D. C.) 217 Fed. 95; Id.,
241 U. S. 440, 36 Sup. Ct. 637, 60 L. Ed. 1084; Farm. Inv. Co. v. Carpenter, 9 Wyo. 110, 61
Pac. 258, 50 L. R. A. 747, 87 Am. St. Rep. 918; Enterprise Irr. Dist. v. Tri-State Land Co., 92
Neb. 121, 138 N. W. 171. And the statutes now under consideration were ably and
exhaustively analyzed in the case of Bergman v. Kearney (D. C.) 241 Fed. 884. Just here we
may well say, as did the learned judge in Pacific Live Stock Co. v. Lewis (D. C.) 217 Fed. 95,
but with added force because of the decision of the Supreme Court of the United States in the
same case, supra, and the decision in the Bergman case, supra, it would be mere reiteration
to attempt to add anything to what has already been said on this subject.
1, 2. Nor would it be out of place at the threshold of this inquiry to call attention to the
well-known canons of construction when a statute is being assailed as being
unconstitutionalnamely, that every presumption is in favor of the validity of the act, that all
doubts must be resolved in its favor, and that unless it is clearly in derogation of some
constitutional provision, it must be sustained. It is also a well-known rule that the courts have
nothing to do with the general policy of the law.
3. We will first consider the contention that the water law of 1913, as amended in 1915, is
unconstitutional in that it is in violation of the fourteenth amendment to the federal
constitution, prohibiting the taking of property without due process of law. As stated,
Norcross, J., set forth at length, in the case of Ormsby County v. Kearney, supra, the
purpose of the 1913 statute, and held that in so far as the same was administrative it was
valid, and in this view Talbot, C. J., concurred; but it was also held in that case that, since
that statute sought to make the determination of the state engineer conclusive, subject to
the right of appeal, and since no appeal could be taken because of constitutional
limitations, that portion of the act providing for an appeal was unconstitutional; hence the
amendment of 1915, which provided for a course of procedure in the district court, by the
state engineer, almost identical with the procedure which is provided for by the Oregon
statute.
without due process of law. As stated, Norcross, J., set forth at length, in the case of Ormsby
County v. Kearney, supra, the purpose of the 1913 statute, and held that in so far as the same
was administrative it was valid, and in this view Talbot, C. J., concurred; but it was also held
in that case that, since that statute sought to make the determination of the state engineer
conclusive, subject to the right of appeal, and since no appeal could be taken because of
constitutional limitations, that portion of the act providing for an appeal was unconstitutional;
hence the amendment of 1915, which provided for a course of procedure in the district court,
by the state engineer, almost identical with the procedure which is provided for by the Oregon
statute.
As we understand the contention of counsel, it is that that portion of the act which
provides for the procedure by the state engineer from the time of the filing by him of a copy
of his order of determination with the clerk of the district court is void as not being due
process of law. It certainly cannot be said that this law is in violation of the constitutional
provision mentioned because of failure to provide for the giving of ample notice to all
interested parties, for we doubt if in the history of legislation an act was ever passed in which
so many safeguards were provided that a man might not be deprived of his property in a
proceeding without knowledge of such proceeding being brought to his attention. The first
notice of the proceedings under the water law is the publication for four weeks of an order
granting a petition for the determination of the relative rights of the users to the waters of a
public stream, and of a time when the state engineer will begin to make examinations. This is
followed by proceedings under section 22 of the act, which provides for the publication of
notice of the taking of testimony before the state engineer, and in addition thereto requires
him to serve upon each interested party personally a copy of such notice, or else to send it by
registered mail; and after the taking of testimony before the state engineer is completed, and
an order of determination of the water rights has been made by him, and a copy thereof
filed with the clerk of the district court, that court must make an order fixing the time for
the hearing upon such order of determination.
determination of the water rights has been made by him, and a copy thereof filed with the
clerk of the district court, that court must make an order fixing the time for the hearing upon
such order of determination. The order fixing the time of the hearing before the court must be
published in one or more newspapers once a week for four consecutive weeks, and a copy
thereof must also be sent by registered mail to each of the parties whose interests can be
affected by such proceedings.
Thus far it will be seen that, before a final decree can be entered by the court in the matter,
an interested party, who is known, gets five different notices of the proceedings before a
decree is entered, whereas in an ordinary action to quiet title to real estate a defendant
receives only one notice of the pendency of the suit. But, so that by no possible chance may a
final decree affecting a person's water right to his detriment be entered, it is further provided
by section 13 that any person who has not been served, and who has had no actual knowledge
of the pendency of the proceedings, may, at any time within six months from the entry of the
decree of the court, petition the court for relief. Thus it would seem that the legislature took
every precaution conceivable to prevent a final decree being entered, affecting detrimentally
the rights of an interested party, without first giving him actual notice; for, as provided by the
statute, the water is distributed in accordance with the order of determination of the state
engineer as soon as a copy thereof is filed in the office of the clerk of the district court, unless
a bond is given to stay such distribution, in which event the stay is probably effective as to the
party giving the bond only. Surely if the order of determination and the distribution of the
water in accordance therewith is a violation of the rights of any person, it will not take him
long to learn that he is being deprived of his water, especially if it be during the irrigating
season; and, if any contest whatever is made in the district court, it is more than likely that no
decree could be entered in less than six months from the time of the filing by the state
engineer of his order of determination, in which event, and with six months therefrom in
which to petition for relief, it will be seen that at least one irrigating season will have
passed before the time will have expired for those who had no actual knowledge of the
pendency of such proceeding to petition for relief.
months from the time of the filing by the state engineer of his order of determination, in
which event, and with six months therefrom in which to petition for relief, it will be seen that
at least one irrigating season will have passed before the time will have expired for those who
had no actual knowledge of the pendency of such proceeding to petition for relief. If no
contest is made, such person will have about seven months from the time when the right of
distribution accrued. Hence we see the remote possibility of the passing of the six-month
period after the entry of the decree of distribution without actual notice thereof being brought
to the knowledge of an interested party.
We have already mentioned certain decisions which we think are controlling upon the
questions involved in the case at bar. To our mind, we might well base our conclusion upon
the decisions cited growing out of the Oregon statute and the Bergman case, supra, without
giving further attention to the points urged. As we understand the contention of the learned
counsel who have appeared to assail the constitutionality of the water law of Nevada, it is not
claimed that the decisions construing the Oregon statute are not sound, but that they are not
controlling because, as urged, the Oregon constitution empowers the legislature of that state
to create a tribunal to take jurisdiction over just such proceedings as provided for in the
Oregon water code, and that it is by virtue of such a constitutional provision that the water
board in Oregon acquired jurisdiction to act, while in Nevada the constitution (art. 6, sec. 1)
limits the judicial authority to certain designated courts, whereas the water law undertakes to
confer judicial authority upon the state engineer. Conceding that there is such a constitutional
provision in Oregon as contended, certainly petitioner ought not to be able to find comfort in
that fact, for the reason that no contention was made in the Oregon case that the statute in
question was valid because of such provision. On the other hand, the law was assailed upon
the identical ground here urged, as pointed out in the opinion of the court, where it was
said that it was contended that the Oregon statute "undertakes to vest judicial power in a
tribunal and officers not recognized by the constitution {italics ours)."
pointed out in the opinion of the court, where it was said that it was contended that the
Oregon statute undertakes to vest judicial power in a tribunal and officers not recognized by
the constitution (italics ours). In Re Willow Creek, supra. We think this should suffice to
show the utter lack of force of the contention. The opinion in that case turned upon the point
that the duties imposed upon the water board were not judicial in character, but at most were
only quasi-judicial; the court saying:
The statute prescribing the duties to be performed by the water board and its members in
their respective official capacities in a determination of water rights does not confer judicial
powers or duties upon the board or such officers in any sense as indicated by the constitution.
Their duties are executive or administrative in their nature. In proceedings under the statute
the board is not authorized to make determinations which are final in character. Their
findings and orders are prima facie final and binding until changed in some proper
proceeding. The findings of the board are advisory rather than authoritative. It is only when
the courts of the state have obtained jurisdiction of the subject-matter and of the persons
interested, and rendered a decree in the matter determining such rights, that, strictly speaking
an adjudication or final determination is made. It might be said that the duties of the water
board are quasi-judicial in their character. Such duties may be devolved by law on boards
whose principal duties are administrative.
Not only the cases growing out of the Oregon law, but all other cases growing out of
similar statutes, have held that the powers conferred upon the official designated under the
statute to supervise and administer the laws were, at most, quasi-judicial. Such was the
holding in Farmers' Inv. Co. v. Carpenter, supra, where it is said:
The determination required to be made by the board is, in our opinion, primarily
administrative rather than judicial in character. The proceeding is one in which a claimant
does not obtain redress for an injury, but secures evidence of title to a valuable right, a
right to use a peculiar public commodity.
claimant does not obtain redress for an injury, but secures evidence of title to a valuable right,
a right to use a peculiar public commodity. That evidence of title comes properly from an
administrative board, which, for the state in its sovereign capacity, represents the public, and
is charged with the duty of conserving public as well as private interest. The board, it is true,
acts judicially, but the power exercised is quasi-judicial only, and such as, under proper
circumstances, may appropriately be conferred upon executive officers or boards. The
jurisdiction bears some resemblance to that of the land department of the government
concerning the disposal of the public lands. That department is not regarded as a court, or as a
branch of the judicial department; nor is its jurisdiction upheld upon the basis of any authority
residing in Congress to establish courts. It is considered as an administrative department, and
its powers are held to be quasi-judicial only. Orchard v. Alexander, 157 U. S. 372, 15 Sup.
Ct. 635, 39 L. Ed. 737. There exists the same partial resemblance to the state board of land
commissioners of our own state. State v. State Board of Land Commrs., 53 Pac. 292, 7 Wyo.
478. We are not persuaded that the act is void as conferring judicial power upon the board in
violation of the constitution.
But it is urged that that decision was of no weight in determining the question before the
court, for the reason that the Wyoming constitution authorized the creation of a tribunal with
power to adjudicate water rights. The Wyoming constitution (art. 8, sec. 2) on that point
reads:
There shall be constituted a board of control, to be composed of the state engineer, and
superintendents of the water divisions; which shall, under such regulations as may be
prescribed by law, have the supervision of the waters of the state and of their appropriation,
distribution and diversion, and of the various officers connected therewith. Its decisions to be
subject to review by the courts of the state.
So far as we are able to see, there is nothing in that section of the Wyoming constitution
conferring judicial power upon the board of control.
section of the Wyoming constitution conferring judicial power upon the board of control. To
us it seems clear that the power of the board is limited to the determination of questions of a
quasi-judicial nature, such as may arise in the investigation and granting of permits to
appropriate unappropriated water in a public stream, and in the supervision and
administration of the distribution of the waters of the public streams. There is a wide
difference between having authority to supervise and administer and having authority to
determine questions involving vested rights. The former may, we think, with propriety, be left
to an administrative officer, while the latter is properly a question for the courts.
Furthermore, from another standpoint we see no way of escaping the conclusion stated that
no judicial power was vested by the Wyoming constitution in the board of control, for the
reason that the constitution itself states just where the judicial power of the state is vested. It
reads:
The judicial power of the state shall be vested in the senate sitting as a court of
impeachment, in a supreme court, district courts, justices of the peace, courts of arbitration,
and such courts as the legislature may, by general law, establish for incorporated cities or
incorporated towns. Const. Wyo. art. 5, sec. 1.
This provision limits the exercise of judicial power to the courts mentioned therein, so we
think it must be clear that the distinction sought to be made between the Wyoming statute and
our statute because of the fact that we have no provision in our constitution such as article 8,
section 2, of the Wyoming constitution is without support. See Bergman v. Kearney, supra.
On this point the Supreme Court of Nebraska, in considering a statute similar to ours prior to
the amendment of 1915, says:
In the face of these decisions, it hardly seems necessary to again consider the question,
but we have done so, and have examined further authorities. It is a matter of common
knowledge that both in the administration of the laws of the United States and of the
several states, boards of individuals, for the purpose of exercising executive or
administrative functions, are often compelled to inquire into and determine questions
requiring the exercise of powers judicial in their nature.
of the laws of the United States and of the several states, boards of individuals, for the
purpose of exercising executive or administrative functions, are often compelled to inquire
into and determine questions requiring the exercise of powers judicial in their nature. Some of
such determinations are often, by virtue of the statutes defining the functions and power of
the tribunal, final and decisive, and others are made reviewable by appeal to the courts. * * *
Whether reviewable by the courts or not, the exercise of such powers by tribunals of this
nature has seldom been held to be a violation of the constitution in this respect. McGehee,
Due Process of Law, 162, 368; Reetz v. Michigan, 188 U. S. 505, 23 Sup. Ct. 390, 47 L. Ed.
563; Gardner v. Bonestell, 180 U. S. 362, 21 Sup. Ct. 399, 45 L. Ed. 574; Bates & Guild Co.
v. Payne, 194 U. S. 106, 24 Sup. Ct. 595, 48 L. Ed. 894; People ex rel. Deneen v. Simon, 176
Ill. 165, 52 N. E. 910, 44 L. R. A. 801, 62 Am. St. Rep. 175; Farm Investment Co. v.
Carpenter, 9 Wyo. 110, 61 Pac. 258, 50 L. R. A. 747, 87 Am. St. Rep. 918; State v. Thorne,
112 Wis. 81, 87 N. W. 797, 55 L. R. A. 956; Gee Wo v. State, 36 Neb. 241, 54 N. W. 513;
Lincoln Medical College v. Poynter, 60 Neb. 228, 82 N. W. 855. We are satisfied with the
conclusion reached by this court in the cases cited, which were followed in Farmers' Canal
Co. v. Frank, 72 Neb. 136, 100 N. W. 286, and see no reason to change our conclusion in this
respect. Enterprise Irr. Dist. v. Tri-State Land Co., 92 Neb. 121, 138 N. W. 179.
But it is contended that since nothing is said in the constitution of Nebraska about
irrigation, and since the doctrine of riparian rights existed in Nebraska, the case just quoted
from should not be considered as an authority by this court. We fail to see the force of this
contention. As we understand the law, unless the state or federal constitution prohibits
legislation upon a subject, the power of the legislature is plenary; and the legislature of
Nebraska, evidently being of this view, passed an irrigation act. This act was first brought to
the attention of the supreme court of that state in the case of Crawford v. Hathaway, 60 Neb.
754, S4 N. W. 271, where the court gave it scant consideration.
case of Crawford v. Hathaway, 60 Neb. 754, 84 N. W. 271, where the court gave it scant
consideration. On an application for a rehearing, the statute was more fully considered. 61
Neb. 317, 85 N. W. 303. Another rehearing was had in the case, where the full scope of the
act was set out. Upon this rehearing the former opinions were reversed, and it was held that
the irrigation act was constitutional, but that no vested riparian rights could be violated. 67
Neb. 325, 93 N. W. 781, 60 L. R. A. 889, 108 Am. St. Rep. 647. In that opinion it was also
held that as to unappropriated water the act in question controlled, and that vested riparian
rights might be condemned under the right of eminent domain. Following the case just
mentioned was the case of Enterprise Irr. Dist. v. Tri-State land Co., from which we have
quoted supra.
We are unable to see the force of the distinction sought to be made between the Nebraska
statute and the Nevada statute. The fact is that the constitution of neither of these states has a
word to say about irrigation, but in Nevada the courts took the bull by the horns, and in
effect repealed the doctrine of riparian rights without awaiting the action of the legislature
(Reno Smelting Works v. Stevenson, 20 Nev. 269, 21 Pac. 317, 4 L. R. A. 60, 19 Am. St.
Rep. 364), while in Nebraska it was left for the legislature to pass an irrigation act.
The only difference between the constitutions of Wyoming and Nebraska and that of
Nevada, so far as to warrant a different conclusion as to the Nevada statute of 1913, is that
there is nothing in the constitutions of the first two states prohibiting an appeal from the order
of distribution made pursuant to the water laws of those states, while in Nevada the
constitution prohibits such a proceeding; hence, since the amendment of 1915, the reasoning
and logic of the Wyoming and Nebraska cases apply with full force to the situation now
presented to us.
It is also contended, if we correctly understand counsel, that there can be no due process of
law except in a proceeding in court, where summons is regularly issued and served in
accordance with the usual practice in actions pending in such tribunals. While we do not
deem it necessary to determine this question, for the reason that we think, as will be
shown later, that the real proceeding wherein an adjudication is made is after the
proceedings are instituted in the district court, however, as pointed out by Norcross, J., in
his opinion in the Ormsby County case, supra, the Supreme Court of the United States, to
which we must look for a final interpretation of the federal constitution, took the contrary
view.
proceeding in court, where summons is regularly issued and served in accordance with the
usual practice in actions pending in such tribunals. While we do not deem it necessary to
determine this question, for the reason that we think, as will be shown later, that the real
proceeding wherein an adjudication is made is after the proceedings are instituted in the
district court, however, as pointed out by Norcross, J., in his opinion in the Ormsby County
case, supra, the Supreme Court of the United States, to which we must look for a final
interpretation of the federal constitution, took the contrary view. In that case Mr. Justice
Norcross quoted from Balch v. Glenn, 85 Kan. 735, 119 Pac. 67, 43 L. R. A. (N. S.) 1080,
Ann. Cas. 1913a, 406, as follows:
It has been held by the Supreme Court of the United States that the phrase due process of
law' does not necessarily mean a judicial proceeding. McMillan v. Anderson, 95 U. S. 37, 24
L. Ed. 335. On the other hand, it does not necessarily mean a special tribunal created for the
express purpose of hearing the merits of the particular controversy. Where ample notice is
provided which gives to the property owner an opportunity to have a hearing in any court of
competent jurisdiction before his property is affected, he is afforded due process of law.
See, also, Reetz v. Michigan, 188 U. S. 507, 23 Sup. Ct. 391, 47 L. Ed. 563; 8 Cyc. 1084;
6 R. C. L. p. 459.
4. Counsel seem to labor under the impression that there can be no due process of law
unless the methods, means, and instrumentalities which were in existence at the time of the
adoption of our constitution are adhered to. Such was never the rule in Nevada, as shown by
the opinion in the case of State v. Millain, 3 Nev. 466, where it is said:
Counsel further insists that a constitutional right of defendant's is violated, because the
indictment does not conform to the requirement at common law, and founds his objections on
a part of section 8, article 1, of the state constitution, which provides that no person shall be
deprived of life, liberty, or property, without due process of law.
be deprived of life, liberty, or property, without due process of law. The same rights are
preserved in article 5 of Amendments to the Constitution of the United States, which is held
to be a restriction of the government of the United States and the proceedings of the federal
courts, and does not apply to the state governments. But this is of no moment, as we observe
the same provision obtains in the state constitution. It has been universally held, under a like
constitutional restriction, that it does not mean the process,' or, otherwise expressed, the
proceeding,' shall be the same as pursued at common law, but that the mode and manner of
their procedure may be regulated and prescribed by statute.
A similar rule has also been adopted by the Supreme Court of the United States, as shown
in the well-considered case of Hurtado v. State of California, 110 U. S. 516, 4 Sup. Ct. 111,
292, 28 L. Ed. 232, where the question is considered at length. In that case the court quotes
approvingly from Rowan v. State, 30 Wis. 129, 11 Am. Rep. 559, as follows:
But its design was not to confine the states to a particular mode of procedure in judicial
proceedings, and prohibit them from prosecuting for felonies by information, instead of by
indictment, if they chose to abolish the grand jury system. And the words due process of
law,' in this amendment, do not mean and have not the effect to limit the powers of the state
governments to prosecutions for crimes by indictments, but these words do mean law in its
regular course of administration according to prescribed forms and in accordance with the
general rules for the protection of individual rights. Administration and remedial proceedings
must change, from time to time, with the advancement of legal science and the progress of
society; and, if the people of the state find it wise and expedient to abolish the grand jury and
prosecute all crimes by information, there is nothing in our state constitution * * * and
nothing in the fourteenth amendment to the constitution of the United States which
prevents them from doing so."
the constitution of the United States which prevents them from doing so.
See, also, 8 Cyc. 1090, and cases cited in note 2.
Without considering the question at greater length, we think the contention of counsel, that
the statutes mentioned are in violation of the fourteenth amendment, is fully and completely
answered in the opinion in Bergman v. Kearney, supra, wherein the court quotes copiously
from the Oregon and federal decisions, and we content ourselves with calling attention to that
opinion.
5. But it is said that a water right is real estate, and hence the provisions in the water law
of 1913, as amended in 1915, authorizing the proceedings here sought to be prohibited, are in
violation of section 6, article 6, or our constitution, wherein it is provided:
The district courts in the several judicial districts of this state shall have original
jurisdiction in all cases in equity; also in all cases at law which involve the title or the right of
possession to, or the possession of, real property. * * *
Conceding for the purposes of this case that a water right is real property, we are unable to
see wherein the law in question is in any way in violation of the provision of the constitution
which we have quoted. The fact of the matter is that the entire proceedings amount to nothing
until a copy of the order of determination of the state engineer is filed in the office of the
clerk of the district court. When this document is filed in that office it operates as and has the
force and effect of a complaint, and from the time of the filing thereof the water of the public
stream concerning which the order is made is divided among claimants according to the terms
of such order, unless a bond is given pending a decree of the district court. As said in Pacific
Live Stock Co. v. Lewis, 241 U. S. 440, 36 Sup. Ct. 637, 60 L. Ed. 1084:
A serious fault in this contention is that it does not recognize the true relation of the
proceeding before the board to that before the court.
board to that before the court. They are not independent or unrelated, but parts of a single
statutory proceeding, the earlier stages of which are before the board and the later stages
before the court. In notifying claimants, taking statements of claim, receiving evidence, and
making an advisory report, the board merely paves the way for an adjudication by the court
of all the rights involved. As the supreme court of the state has said, the board's duties are
much like those of a referee. * * * That the state, consistently with due process of law, may
thus commit the preliminary proceedings to the board and the final hearing and adjudication
to the court is not debatable. (Italics ours.)
If this language means anything, it means that the adjudicationthe determination, the
decreeis made by the court; and the proceedings before the water board in Oregon, to
which the state engineer in Nevada holds relatively the same position, is nothing more than
the routine of preparing and filing the complaint in the court, which invests the court with
jurisdiction to act.
Suppose the water law had provided that the attorney-general might proceed exactly as it
now provides that the state engineer may proceed, up to the point of the making by the state
engineer of an order of determination, and in lieu of the proceeding provided under the law as
it now stands, from the time of making the order of determination, had provided that the
attorney-general should, from the information to be gathered in the same manner as now
provided by law, prepare and file in the district court a complaint setting forth substantially
the same facts contained in the state engineer's order of determination, and that from the filing
thereof the proceedings thereupon should be identically the same as those now contemplated
by the water lawwould any one insist that any constitutional right would be violated? We
think not. Yet, what is the difference between conferring such power upon the state engineer
and the attorney-general? We see no difference.
We do not accept radical changes without protest. If a statute radically different from
anything to which we have been accustomed is enacted, the average lawyer becomes
alarmed and at once brands it as unconstitutional.
a statute radically different from anything to which we have been accustomed is enacted, the
average lawyer becomes alarmed and at once brands it as unconstitutional. Lawyers generally
were very much excited and alarmed when the statutes of the various states creating railroad
commissions, corporation commissions, industrial insurance commissions, and the like, were
enacted. They considered them not only unconstitutional but revolutionary. Lawyers do not
feel that way about the matter today, because they have become used to such statutes. We do
not wish to be misunderstood as saying that we can make an unconstitutional act
constitutional merely by becoming familiar with its workings. We simply desire to impress
forcibly our illustration relative to a statute providing for a proceeding by the
attorney-general.
We are too prone to view legislation as unconstitutional, unmindful of the fact that, unless
a statute violates the letter or spirit of some portion of the constitution, it should be upheld.
We think every lawyer and judge in the land could profit by a reading of the magnificent
address of Geo. B. Rose, which appears in Case and Comment for October, 1917, in which he
says:
If we undertake to make the constitution a dam to stem the tide of human progress, we
may be sure that it will be swept away. It should not be an obstruction. It should be the broad
channel, with high and well-defined banks, between which the stream of progress may flow
on forever in calm and majestic strength. * * * These hidebound constructions are
unnecessary, and they imperil the existence of constitutional government. The constitutional
guaranties must be maintained; but the only way to maintain them is to mold them to the
requirements of modern civilization. They must be reins to guide the chariot of progress in
the road of safety, not barriers across its track.
6. It is also contended that the water law is void because it is in violation of section 1,
article 3, and section 1, article 6, of the state constitution. These sections read: "The powers
of the government of the State of Nevada shall be divided into three separate
departmentsthe legislative, the executive, and the judicial; and no persons charged with
the exercise of powers properly belonging to one of these departments shall exercise any
functions appertaining to either of the others, except in the cases herein expressly
directed or permitted."
The powers of the government of the State of Nevada shall be divided into three separate
departmentsthe legislative, the executive, and the judicial; and no persons charged with the
exercise of powers properly belonging to one of these departments shall exercise any
functions appertaining to either of the others, except in the cases herein expressly directed or
permitted. Sec. 1, art. 3.
The judicial power of the state shall be vested in a supreme court, district courts, and in
justices of the peace. The legislature may also establish courts, for municipal purposes only,
in incorporated cities and towns. Sec. 1, art. 6.
The point which is made is that the legislature attempted by the terms of the water law to
confer judicial powers upon the state engineer, whereas the constitution limits the exercise of
such powers to the courts provided for in the constitution. This question was considered at
length in the Ormsby County case, supra, in the opinion of Norcross, J., where he held that
the view now urged was not well taken, though a majority of the court took the contrary view.
But, conceding that the conclusion of the majority of the court was correct, the reason which
justified such conclusion does not exist under the law as amended in 1915, because, as we
have shown, the procedure before the state engineer leading up to the determination by the
district court simply paves the way for an adjudication by the court, and is in no sense a
judicial proceeding.
7. It is also urged that the water law is unconstitutional, in that it is in violation of section
8, article 1, of the state constitution, which provides, inter alia, nor shall private property be
taken for public use without just compensation. * * * We are of the opinion that there is not
the least foundation for this contention. Nowhere does the law contemplate or suggest the
taking of private property for public or any other use. Section 2 of the water law expressly
provides that, subject to existing rights, water may be appropriated, while section S4
expressly prohibits the impairing of vested rights.
section 84 expressly prohibits the impairing of vested rights. The sole purpose of the law is to
make definite, certain, and secure the rights which have already vested, to provide a method
of determining if there is any unappropriated water in the public streams of the state, and, if
so, to enable persons desirous of so doing to appropriate the same, and to see that the water is
distributed in accordance with the rights of appropriators as they actually exist.
8, 9. It is also suggested by counsel that the act is void because that portion of section 33,
as amended, which provides that from and after the filing of the order of determination with
the clerk of the district court, and during the hearing thereon, the waters of the stream in
question may be distributed as indicated in the order of determination (unless a stay bond be
given) is unconstitutional. We are unable to agree with this contention. As said in Pacific
Live Stock Co. v. Lewis, 214 U. S. 440, 36 Sup. Ct. 637, 60 L. Ed. 1084:
The proceeding in question is a quasi-public proceeding, set in motion by a public agency
of the state. All claimants are required to appear and prove their claims; no one can refuse
without forfeiting his claim; and all have the same relation to the proceeding. It is intended to
be universal and to result in a complete ascertainment of all existing rights, to the end: First,
that the waters may be distributed, under public supervision, among the lawful claimants
according to their respective rights without needless waste or controversy; second, that the
rights of all may be evidenced by appropriate certificates and public records, always readily
accessible, and may not be dependent upon the testimony of witnesses with its recognized
infirmities; and, third, that the amount of surplus or unclaimed water, if any, may be
ascertained and rendered available to intending appropriators. Referring to a situation
resembling that to which this proceeding is addressed, the Supreme Court of Maine said, in
Warren v. Westbrook Manufacturing Co., 88 Me. 58, 66, 33 Atl. 665, 35 L. R. A. 388, 51
Am. St.
Rep. 372: To make the water power of economic value, the rights to its use, and the division
of its use, according to those rights, should be determined in advance. This prior
determination is evidently essential to the peaceful and profitable use by the different parties
having rights in a common power. To leave them in their uncertaintyto leave one to
encroach upon the other, to leave each to use as much as he can, and leave the other to sue at
law after the injuryis to leave the whole subject-matter to possible waste and destruction.'
In considering the purpose of the state in authorizing the proceeding the Supreme Court of
Oregon said in Re Willow Creek, 74 Or. 592, 613, 617, 144 Pac. 505, 146 Pac. 475: To
accelerate the development of the state, to promote peace and good order, to minimize the
danger of vexatious controversies wherein the shovel was often used as an instrument of
warfare, and to provide a convenient way for the adjustment and recording of the rights of the
various claimants to the use of the water of a stream or other source of supply at a reasonable
expense, the state enacted the law of 1909, thereby to a limited extent calling into requisition
its police power. * * * Water rights, like all other rights, are subject to such reasonable
regulations as are essential to the general welfare, peace, and good order of the citizens of the
state, to the end that the use of water by one, however absolute and unqualified his right
thereto, shall not be injurious to the equal enjoyment of others entitled to the equal privilege
of using water from the same source, nor injurious to the rights of the public.'
In view of the character of the proceeding, there is no question but that the legislature
could provide that, upon the filing of a certified copy of the order of determination with the
clerk of the district court, the waters of the stream system might, from the date of the filing
thereof, be distributed according to its terms unless a stay bond be given. But we do not
concede that, if the proceeding were not a quasi-public one, calling into requisition the police
power of the state, a statute providing for such a proceeding would be unconstitutional. In
many cases, under our practice, the court may, upon the giving of a bond, issue a
temporary injunction before summons is served or notice is given to the defendant.
under our practice, the court may, upon the giving of a bond, issue a temporary injunction
before summons is served or notice is given to the defendant. The state and municipal
corporations generally are, under our statute, exempted from giving bond in certain
proceedings in court. No person has a vested right in any rule of law (New York C. R. Co. v.
White, 243 U. S. 188, 37 Sup. Ct. 247, 61 L. Ed. 667, L. R. A. 1917d, 1, Ann. Cas. 1917D,
629); neither can any one assert a vested right in any particular mode of procedure (Boise Irr.,
etc., Co. v. Stewart, 10 Idaho, 58, 77 Pac. 25, 321; Lewis's Sutherland Stat. Const., 2d Ed.,
sec. 674). What sanctity is there in requiring a bond in a proceeding in court that the
sovereign people may not, through the legislature, dispense with unless inhibited by the
constitution? We know of none, nor do we know of any provision of the constitution which
restricts the right of the legislature in that regard.
10. It is contended that, should an interested party fail to file objections with the clerk of
the district court in which the state engineer files a copy of his order of determination, and the
court enters a decree in accordance with such order of determination, such decree would be
tantamount to a taking of property without due process of law. If what we have said of the
character of the proceedings up to and including the filing of the copy of the order of
determination with the clerk of the district court is sound, we fail to see wherein an interested
party who fails to file such exceptions would be in a worse position than the defendant in the
ordinary suit in the district court who fails to plead when duly summoned, and against whom
a default judgment is entered. Yet no one would contend that such default judgment, in the
ordinary suit, would be equivalent to taking property without due process of law.
It is suggested also that certain other sections of the water law are unconstitutional. The
sections mentioned are independent, and, whether constitutional or unconstitutional, can in no
way affect the result upon this hearing. When the constitutionality of these sections is
presented in an action in which the determination of their validity is essential to a
disposition of the case, we will consider and dispose of the question involved.
presented in an action in which the determination of their validity is essential to a disposition
of the case, we will consider and dispose of the question involved.
We are constrained to say that, in view of the fact that the state engineer initiated the
proceedings now sought to be restrained upon petition of applicant for this writ, the question
arises whether we would not be justified in denying the writ without passing upon its merits;
but, in view of the statewide importance of the attack upon the constitutionality of the water
law, we have decided to dispose of the matter upon its merits.
It is ordered that the alternative writ of prohibition heretofore issued in this matter be
vacated, and that the permanent writ asked for be denied.
Sanders, J.: I concur.
McCarran, C. J., dissenting:
I dissent.
Inasmuch as this case was originally assigned to the writer to prepare the opinion of the
court, we have transformed our original draft into this dissenting opinion, adding thereto such
observations as we deem proper in view of the attitude of the prevailing opinion.
This is an original proceeding in prohibition. From the petition it appears that the state
engineer, proceeding under the water law of this state as enacted in 1913 and as amended in
1915, has made and filed with the clerk of the district court of Elko County a certain order of
determination, establishing certain water rights, or rights to the use of water on the Salmon
River and its tributaries, among which are the water rights of petitioner.
Petitioner alleges that it and its predecessors in interest, being the owners of large tracts of
land along the Salmon River, have acquired and maintained vested rights to the use of water
upon these lands, and such acquisition was made prior to the enactment of a statue creating
the office of state engineer and defining his powers and duties.
powers and duties. As a basis for the petition, the unconstitutionality of the statute of 1913
and 1915 is declared. The statute itself contains some eighty-odd sections, many of which are
not involved in the proceedings here. I shall limit my consideration in this dissenting opinion
to those sections of the statute which by reason of the nature of the proceedings are directly
involved. The reply to the petition for the writ admits the act of the state engineer in filing his
orders of determination with the clerk of the district court. Hence that order of determination,
the manner in which it was brought about, its force and effect, are the subjects of inquiry. For
this purpose we review and set up certain sections of the statute, some of which, although
disconnected or having intervening sections, must be considered together inasmuch as they
operate jointly.
Section 29 provides:
Should any person claiming any interest in the stream system involved in the
determination of relative rights to the use of water, whether claiming under vested title or
under permit from the state engineer, desire to contest any of the statements and proof of
claims filed with the state engineer by any claimant to the waters of such stream system, as
herein provided, he shall, within twenty days after said evidence and proofs, as herein
provided, shall have been opened to public inspection, or within such further time as for good
cause shown may be allowed by the state engineer upon application made prior to the
expiration of said twenty (20) days, in writing notify the state engineer, stating with
reasonable certainty the grounds of the proposed contest, which statement shall be verified by
the affidavit of the contestant, his agent or attorney. * * *
Section 30, as amended by the act of 1915, is as follows:
The state engineer shall fix a time and place for the hearing of said contest, which date
shall not be less than thirty (30) days nor more than sixty (60) days from the date the notice is
served on the persons who are parties to the contest. Said notice may be sent by registered
mail to the person, and the receipt thereof shall constitute valid and legal service.
mail to the person, and the receipt thereof shall constitute valid and legal service. Said notice
may also be served by the state engineer, or by any person qualified and competent to serve
subpenas as in civil actions, appointed by him, and returns thereof made in the same manner
as in civil actions in the district courts of the state. The state engineer shall have power to
adjourn hearings from time to time upon reasonable notice to all parties interested and to
issue subpenas and compel the attendance of witnesses to testify at such hearings, which shall
be served in the same manner as subpenas issued out of the district courts of the state. He
shall have the power to administer oaths to witnesses. In the case of neglect or refusal on the
part of any person to comply with any order of the state engineer or any subpena, or on the
refusal of any witness to testify to any matter regarding which he may be lawfully
interrogated, it shall be the duty of the district court of any county, or any judge thereof, on
application of the state engineer, to issue attachment proceedings for contempt, as in the case
of disobedience of a subpena issued from such court, or a refusal to testify therein. Said
witnesses shall receive fees as in civil cases, the costs to be taxed in the same manner as in
civil actions in this state. The evidence in such proceedings shall be confined to the subjects
enumerated in the notice of contest and answer and reply, when the same are permitted to be
filed. All testimony taken at such hearings shall be reported and transcribed in its entirety.
Section 33, as amended by the act of 1915, provides:
As soon as practicable after the hearing of contests, it shall be the duty of the state
engineer to make, and cause to be entered of record in his office, an order determining and
establishing the several rights to the waters of said stream: provided, however, that within
sixty days after the entry of an order establishing water rights, the state engineer may, for
good cause shown, reopen the proceedings and grant a rehearing. Such order of determination
shall be certified to by the state engineer, and as many copies as required printed in the
state printing office.
engineer, and as many copies as required printed in the state printing office. A copy of said
order of determination shall be sent by registered mail, or delivered in person, to each person
who has filed proof of claim, and to each person who has become interested through
intervention or as a contestant under the provisions of section 26 or section 29 of this act.
Section 34, as amended by the act of 1915, has to do with the filing of the order of
determination made by the state engineer. It is as follows:
As soon as practicable thereafter a certified copy of the order of determination, together
with the original evidence and transcript of testimony filed with, or taken before, the state
engineer, as aforesaid, duly certified by him, shall be filed with the clerk of the county, as ex
officio clerk of the district court, in which said stream system is situated, or, if in more than
one county but all within one judicial district, then with the said clerk of the county wherein
reside the largest number of parties in interest. But if such stream system shall be in two or
more judicial districts, then the state engineer shall notify the district judge of each of such
judicial districts of his intent to file such order of determination, whereupon, within ten days
after receipt of such notice, such judges shall confer and agree where the court proceedings
under this act shall be held and upon the judge who shall preside, and on notification thereof
the state engineer shall file said order of determination, evidence, and transcripts with the
clerk of the court so designated; provided, that is such district judges fail to notify the state
engineer of their agreement, as aforesaid, within five days after the expiration of such ten
days, then, and in that event, the state engineer may file such order of determination,
evidence, and transcript with the clerk of any county he may elect, and the district judge of
such county shall have jurisdiction over the proceedings in relation thereto. In all instances a
certified copy of the order of determination shall be filed with the county clerk of each county
in which such stream system, or any part thereof, is situated.
part thereof, is situated. Upon the filing of the certified copy of said order, evidence, and
transcript with the clerk of the court in which the proceedings are to be had, the state engineer
shall procure an order from said court setting the time for hearing. The clerk of such court
shall immediately furnish the state engineer with a certified copy thereof. It shall be the duty
of the state engineer immediately thereupon to mail a copy of such certified order of the
court, by registered mail, addressed to each such party in interest at his last known place of
residence, and to cause the same to be published at least once a week for four consecutive
weeks in some newspaper of general circulation published in each county in which such
stream system or any part thereof is located, and the state engineer shall file with the clerk of
the court proof of such service by registered mail and by publication. And such service by
registered mail and by publication shall be deemed full and sufficient notice to all parties in
interest of the date and purpose of such hearing.
At least five days prior to the day set for hearing all parties in interest who are aggrieved
or dissatisfied with the order of determination of the state engineer shall file with the clerk of
said court notice of exceptions to the order of determination of the state engineer, which
notice shall state briefly the exceptions taken, and the prayer for relief, and a copy thereof
shall be served upon or transmitted to the state engineer by registered mail. The order of
determination by the state engineer and the statements or claims of claimants and exceptions
made to the order of determination shall constitute the pleadings and there shall be no other
pleadings in the cause. If no exceptions shall have been filed with the clerk of the court as
aforesaid, then on the day set for the hearing, on motion of the state engineer, or his attorney,
the court shall enter a decree affirming said order of determination. On the day set for hearing
all parties in interest who have filed notices of exceptions as aforesaid shall appear in person
or by counsel, and it shall be the duty of the court to hear the same or set the time for
hearing, until such exceptions are disposed of, and all proceedings thereunder shall be as
nearly as may be in accordance with the rules governing civil actions."
shall be the duty of the court to hear the same or set the time for hearing, until such
exceptions are disposed of, and all proceedings thereunder shall be as nearly as may be in
accordance with the rules governing civil actions.
For further information on any subject in controversy the court may employ one or more
qualified persons to investigate and report thereon under oath, subject to examination by any
party in interest as to his competency to give expert testimony thereon. The court, may, if
necessary, refer the case or any part thereof for such further evidence to be taken by the state
engineer as it may direct, and may require a further determination by him, subject to the
court's instructions. After the hearing, the court shall enter a decree affirming or modifying
the order of the state engineer. Upon the hearing the court may assess and adjudge against any
party such costs as it may deem just and equitable, or may assess the costs in proportion to the
amount of water right allotted. Appeals from such decree may be taken to the supreme court
by the state engineer or any party in interest, in the same manner and with the same effect as
in civil cases.
From and after the filing of the order of determination, evidence, and transcript with the
county clerk as aforesaid, and during the time the hearing of said order is pending in the
district court, the division of water from the stream involved in such determination shall be
made by the state engineer in accordance with said order of determination.
At any time after the order of determination, evidence and transcript has been filed with
the clerk of the court, as aforesaid, the operation of said order of determination may be stayed
in whole or in part by any party upon filing a bond in the court wherein such determination is
pending in such amount as the judge thereof may prescribe, conditioned that such party will
pay all damage that may accrue by reason of such determination not being enforced,
pending decree by said court.
damage that may accrue by reason of such determination not being enforced, pending decree
by said court. Immediately upon the filing and approval of such bond, the clerk of the court
shall transmit to the state engineer a certified copy of such bond, which shall be recorded in
the records of his office, and he shall act in accordance with such stay.
Section 45 of the act is as follows:
In any suit which may be brought in any district court in the state for the determination of
a right or rights to the use of water of any stream, all persons who claim the right to use the
waters of such stream and the stream system of which it is a part shall be made parties. When
any such suit has been filed, the court shall, by its order duly entered, direct the state engineer
to furnish a complete hydrographic survey of such stream system, which survey shall be made
as provided in section 20 of this act, in order to obtain all physical data necessary to the
determination of the rights involved. The cost of such suit, including the costs on behalf of
the state and of such surveys, shall be charged against each of the private parties thereto in
proportion to the amount of water right allotted. In the case of any such suit now pending or
hereafter commenced the same may at any time after its inception, in the discretion of the
court, be transferred to the state engineer for determination as in this act provided.
Section 84 declares:
Nothing in this act contained shall impair the vested right of any person to the use of
water, nor shall the right of any person to take and use water be impaired or affected by any of
the provisions of this act where appropriations have been initiated in accordance with law
prior to the approval of this act. Any and all appropriations, based upon applications and
permits now on file in the state engineer's office, shall be perfected in accordance with the
laws in force at the time of their filing.
Stats. 1913, p. 192; Stats. 1915, p. 378.
Dwelling now on these statutory provisions as we find them, and especially these
sections, inasmuch as they are the sections directly involved, we may inquire: With what
does this statute deal?
them, and especially these sections, inasmuch as they are the sections directly involved, we
may inquire: With what does this statute deal? It deals with that vested estate which one may
acquire by diverting water from a public stream and applying the same to a beneficial use.
This is commonly termed a water right.
By reason of the nature of the soil and the climatic conditions attendant in western arid and
semiarid states, it has been recognized, and rightfully so, that the waters of the public streams
are indispensable to the land, the productiveness of the whole depending entirely, as it does,
upon the beneficial application of the former. This being true, the land and the water as
beneficially applied thereto must be, and indeed have been by courts and text-writers,
regarded as one by reason of their correlation. Property in land acquires its value and
importance, its very life in regions such as that encompassed by this state, from the
application of water. A vested right to divert the waters from a public stream and apply them
to a beneficial use in the way of irrigation applies to and is of the very nature of the realty
itself. A deprivation of the land made valuable by the application of water diverted from a
public stream would no more affect the property rights of the individual than would the
deprivation of the water itself by reason of which the value of the estate was acquired and
without which it would be worthless.
In the case of Conant v. Deep Creek & C. Valley Irrigation Co., 23 Utah, 627, 66 Pac. 188,
90 Am. St. Rep. 721, the supreme court of that state declared in effect that an action to
ascertain, determine, and decree the extent and priority of water rights partakes of the nature
of an action to quiet title to real estate. The same court, in the case of Taylor v. Hulett, 15
Idaho, 265, 97 Pac. 37, 19 L. R. A. (N. S.) 535, held that a water right appurtenant to irrigated
land was real property.
The right to the flow and use of water, being a right in a natural resource, was held by the
Supreme Court of Colorado, in the case of Travelers' Insurance Co. v. Childs, 25 Colo.
Childs, 25 Colo. 360, 54 Pac. 1020, to be real estate; and to the same effect will be found
Davis v. Randall, 44 Colo. 488, 99 Pac. 322, and Bates v. Hall, 44 Colo. 360, 98 Pac. 3.
In the case of Hill v. Newman, 5 Cal. 445, 63 Am. Dec. 140, the Supreme Court of
California held that a justice of the peace, although conferred with jurisdiction to try and
determine actions for damages for taking, detaining and injuring personal property, had no
jurisdiction over an action for diversion of water because it was an action concerning title to
real estate. Holding to the same conclusion, we find the case of Griseza v. Terwilliger, 144
Cal. 456, 77 Pac. 1034.
In the case of Yankee Jim's Union Water Co. v. Crary, 25 Cal. 504, 85 Am. Dec. 145, the
Supreme Court of California held that water rights may be held, granted, abandoned, or lost
by the same means as a right of the same character issuing out of lands to which a private title
exists, saying that:
The right of the first appropriator may be lost, in whole or in some limited portions, by
the adverse possession of another. And when such person has had the continued,
uninterrupted, and adverse enjoyment of the watercourse, or of some certain portion of it,
during the period limited by the statute of limitations for entry upon lands, the law will
presume a grant of the right so held and enjoyed by him.
Supporting this general proposition of law may be found the cases of Lower Kings River
Water Ditch Co. v. Kings River & F. C. Co., 60 Cal. 410, and Last Chance Co. v. Emigrant
Ditch Co., 129 Cal. 278, 61 Pac. 960. See, also, Hayes v. Fine, 91 Cal. 398, 27 Pac. 772;
Stanislaus Water Co. v. Bachman, 152 Cal. 716, 93 Pac. 858, 115 L. R. A. (N. S.) 359.
Mr. Kinney, in his work on Irrigation and Water Rights, summing up the subject, puts it
thus:
It is generally conceded by all the authorities that a water right, or an interest in a water
right, is real property, and it is so treated, under all the rules of law appertaining to such
property." Kinney on Irrigation and Water Rights {2d Ed.), vol.
appertaining to such property. Kinney on Irrigation and Water Rights (2d Ed.), vol. 2, p.
1328.
The assertion of the author in this respect is supported by a line of authorities wherein the
question has been discussed and determined in nearly every phase.
To the same effect will be found the holding of the courts in the cases of Hough v. Porter,
51 Or. 318, 95 Pac. 732, 98 Pac. 1083, 102 Pac. 728; Town of Sterling et al. v. Pawnee Ditch
Extension Co., 42 Colo. 421, 94 Pac. 339, 15 L. R. A. (N. S.) 238; Fisher et al. v. Bountiful
City, 21 Utah, 29, 59 pac. 520.
Mr. Weil, in his work on Water Rights in the Western States (vol. 1), asserts the same
general principle.
Our legislature has in but one instance, so far as we are able to ascertain, attempted to
define the term real property, and in that instance they declared that:
The term real property' shall include every estate, interest and right in lands, tenements,
and hereditaments, corporeal or incorporeal. Section 6294, subd. 10, Rev. Laws.
In the case of Rickey Land and Cattle Co. v. Miller & Lux, 152 Fed. 11, 81 C. C. A. 207,
Judge Wolverton, speaking for the Circuit Court of Appeals for the Ninth Circuit, analyzed
the question at hand with a finesse which is to our mind unanswerable, and there the court,
after a complete analysis in which he referred to numerous cases supporting the position, held
that an appropriation of water from a public stream put to a beneficial use savors of and is a
part of the real estate. Speaking of the nature of the suit, which was in that instance one to
determine water rights on the Walker River, the court said:
The suit, * * * in its purpose and effect, is one to quiet title to realty.
This court, speaking through Mr. Justice Hawley, has declared to the same effect, holding that
a right to the use of water diverted from a public stream should be regarded and protected as
property. Dalton v. Bowker, 8 Nev. 190. Hence, it may be asserted as the first and major
premise of the position which we here take that the subject-matter dealt with by the
sections of the act referred to is real property.
Hence, it may be asserted as the first and major premise of the position which we here take
that the subject-matter dealt with by the sections of the act referred to is real property.
The validity of this act is challenged under the several sections of our constitution, as well
as under the fourteenth amendment. Article 1, section 8, or our constitution provides, inter
alia:
No person shall be subject to be twice put in jeopardy for the same offense * * * nor be
deprived of life, liberty, or property, without due process of law. * * *
Article 3, section 1, provides:
The powers of the government of the State of Nevada shall be divided into three separate
departmentsthe legislative, the executive, and the judicial; and no persons charged with the
exercise of powers properly belonging to one of these departments shall exercise any
functions appertaining to either of the others, except in the cases herein expressly directed or
permitted.
Article 4, sections 1 and 6, provide:
Section 1. The judicial power of this state shall be vested in a supreme court, district
courts, and in justices of the peace. The legislature may also establish courts, for municipal
purposes only, in incorporated cities and towns.
Sec. 6. The district courts in the several judicial districts of this state shall have original
jurisdiction in all cases in equity; also in all cases at law which involve the title or the right of
possession to, or the possession of real property, or mining claims, or the legality of any tax,
impost, assessment, toll or municipal fine, and in all other cases in which the demand
(exclusive of interest) or the value of the property in controversy exceeds three hundred
dollars. * * * They shall also have final appellate jurisdiction in cases arising in justices'
courts, and such other inferior tribunals as may be established by law. The district courts, and
the judges thereof, shall have power to issue writs of mandamus, injunction, quo warranto,
certiorari, and all other writs proper and necessary to the complete exercise of their
jurisdiction.
mandamus, injunction, quo warranto, certiorari, and all other writs proper and necessary to
the complete exercise of their jurisdiction. * * *
The framers of our constitution, judging from the report of debates upon the subject,
appear to have been most zealous and careful in the language selected and the terms used in
each particular section and article. It was no haphazard selection of provisions thrown
together for the purpose of forming the fundamental law for the government of a new state.
Words were selected with regard to their true, usual, and ordinary acceptation and meaning;
and we, in construing and applying these provisions, now may well give these terms the very
broadest meaning of which they are susceptible, but none such as would be inconsistent with
the spirit and intent of the framers of that organic law.
Mr. Chief Justice Marshall, in the case of Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23, at
page 188, expresses the idea when he says that the framers of the constitution must be
understood to have employed words in their natural sense and to have intended what they
have said. The application of this rule would forbid forced or unnatural construction to be put
upon the language found in the constitutional provisions. This, says Mr. Cooley, seems so
obvious a truism that one expects to see it universally accepted without question; but the
attempt is made so often by interested subtlety and ingenious refinement to induce the courts
to force from these instruments a meaning which their framers never held, that it frequently
becomes necessary to redeclare this fundamental maxim. Cooley, Constitutional Limitations,
p. 93.
In so far as the sections of the water law of this state directly involved in the proceedings
in the district court are concerned, and in our attempt to test them under the constitutional
provisions, we may be mindful of the rule that we are bound to indulge in the presumption of
the validity of the statute, and we should so construe unless we find in the constitution some
specific inhibition which has been disregarded or some express command which has been
disobeyed.
which has been disregarded or some express command which has been disobeyed.
Reluctant as we may be to accept a responsibility wherein by reason of the nature of our
duties we may be called upon to nullify the enactment of the legislative branch of the
government, the seriousness of that responsibility impresses us all the more with the necessity
that we should speak plainly and emphatically, and when we find some specific inhibition of
the constitution which has been disregarded or some express command thereof which has
been disobeyed, we should adopt no apologetic language, but declare the condition, that the
future may be benefited thereby.
Sections 25, 30, 33, 34, 35, 36, 37, 38, and 39 of the water law as amended seek to deal in
a determinative way with the subject of real property. In this and in the results accomplished
pursuant to these statutory provisions, has a specific inhibition of the constitution been
disregarded, has some express command of the constitution been disobeyed? This is the
scope and limit of our inquiry. The identical question here presented was up for consideration
before the Federal District Court of the District of Nevada but a short time since (Bergman v.
Kearney [D. C.] 241 Fed. 884), and inasmuch as the view expressed there by the learned
judge is the apparent inspiration of the prevailing opinion here, we deem both eminently
worthy of review.
Certain sections of this actand to these sections we confine ourselves entirelywould
confer upon the state engineer the power to determine in the first instance the title to and the
right to possession of real property as such is founded in the use and beneficial application of
water diverted from the public streams.
The framers of our constitution, recognizing that some tribunal or arbiter was necessary for
the settlement of disputes and controversies having to do with the title to or possession of real
property, designated in no uncertain language the district court as created by the constitution
to be the tribunal that should have jurisdiction over such matters.
jurisdiction over such matters. The district court by the express provisions of the constitution
(art. 6, sec. 6) is conferred with original jurisdiction of cases in equity, and cases at law
which involve the title or right of possession to or possession of real property.
Sections 29, 30, 33, and 34 of the act provide for the institution, hearing, and
determination of a contest, the subject of which is the right of the contestants to a stated
appropriation of water. Under these sections the state engineer assumes functions of equal
significance to a constituted court. The pleadings are provided for and the issues of fact and
law are thereby made. Witnesses are required to testify before the state engineer. The
subject-matter of the action is the independent, usufructuary estate in the use of water. Vested
rights are set up and their validity passed upon by the state engineer. An order is made and
caused to be entered of record by the engineer determining and establishing these rights,
vested or otherwise. The order of the state engineer thus made becomes effective against the
property of the parties contestant immediately on its being filed with the clerk of the district
court. This is the original or initial proceeding involving property of the highest order. Is the
function judicial? Is it the exercise of that portion of judicial authority appertaining to or
belonging to the judicial department? Bergman v. Kearney, supra. It is not necessary for this
court to answer this query. The organic law (sec. 6, art. 6) answers far above our power to add
or detract. It is the exercise of that portion of judicial authority belonging originally to the
district court.
By section 35 the district court, the constituted court of original jurisdiction, is made a
court of review only. The order of determination having already been made and filed by the
state engineer pursuant to sections 29, 30, 33, and 34, and the establishment having been
already set up and put into effect, the district court reviews the orders and establishments
already made by the state engineer, and this review is limited to the orders of
determination made, and is circumscribed as to those orders by the scope of the
exceptions filed as provided in section 35.
the state engineer, and this review is limited to the orders of determination made, and is
circumscribed as to those orders by the scope of the exceptions filed as provided in section
35. We say this because the pleadings as fixed by section 35 being the order of
determination of the state engineer and the statements or claims of claimants and exceptions
made to the order of determination limit and fix the scope of the review that may be
conducted by the district court. Finally, the district court may, pursuant to section 36, do but
one of two prescribed acts: Affirm or modify the order of the state engineer. So by these
sections it is sought to transfer the court of original jurisdiction into a court of review, where
its field of review is limited and its powers or relief are fixed, and where the greatest function
that it can perform with reference to a subject-matter over which it was by the organic law
given original jurisdiction is to affirm or modify orders made originally by another tribunal. If
this statute is to be upheld, the district court ceases to be a court of first instance as to these
matters and becomes a court invested with limited powers of review and yet more limited
powers as to the making of orders therein. Instead of being a proceeding the initial stages of
which are before the engineer and the final stages before the district court, the reverse is the
fact, for it is the order of determination as initially and finally made by the state engineer that
is dealt with by the district court. Such order by the language of section 36 is final, subject
only to modification by the district court. Modification has to do rather with degree of
effectiveness than with finality. If that court affirms, it merely reasserts (Standard Dict.) an
order in the making of which it had no part. Certainly, it will not be seriously contended that
this is the original jurisdiction prescribed by section 6 of article 6 of the constitution as
belonging to the district court.
The Supreme Court of the United States, in Pacific Live Stock Co. v.
Live Stock Co. v. Lewis, referring to the Oregon law under the Oregon constitution, said:
That the state, consistently with due process of law, may thus commit the preliminary
proceedings to the board and the final hearing and adjudication to the court is not debatable.
Pacific Live Stock Co. v. Lewis, 241 U. S. 440, 36 Sup. Ct. 637, 60 L. Ed. 1084.
Such observations might, under the peculiar language of the Oregon constitution, making
no mention of the matter of original jurisdiction over real property, be pertinent. Again, it
might apply by reason of the peculiar reviewing powers conferred on the circuit court of
Oregon by their constitution. But under our constitution, which of itself commits the
preliminary proceedings in matters involving title to real property specifically to the district
court and limits the power of review by such court to certain matters arising in the justice's
court only (Anderson v. Kearney, 37 Nev. 314, 142 Pac. 803), such an observation as that
made in the Lewis case is not to be anticipated.
It is asserted that the proceeding following the acts of the state engineer in making his
determination and establishment is a special proceeding; that the transfer from the state
engineer's office to the district court is not an appeal.
Taking the first assertion as to special proceeding, it must be admitted that, if it is a special
proceeding, it is one originating before a ministerial officer; and, if it is a special proceeding,
it is one involving title to real property, a subject constitutionally assigned to the judicial
branch of the government. If it is a special proceeding, its culmination is an order establishing
rights to the possession of real property, an order, the finality of which can, by the terms of
section 36, be disturbed by the district court to the extent only of modification.
Taking the second assertion, that the proceeding in the district court is not an appeal, the
language of the statute (section 36) precludes the idea of a trial de novo.
The latter term implies complete power to try and determine as of the first instance. The
language of the statute here studiously avoids such, and makes the power of determination of
the district court limited to affirmance or modification of an order of establishment already
made and entered by a subordinate authority. Can it be seriously contended that this is the
original jurisdiction reposed in the district court by the framers of article 6, section 6, of the
constitution? However minutely the district court may review the proceedings under the
exceptions taken (section 35), whatever evidence may be produced before the district court
within the scope of the exceptions, however erroneous or unfounded the court may find the
determination of the state engineer, such determination must stand in that court subject only
to modification. The determination of the state engineer when filed in the district court under
our statute (section 34) is not there as a matter of evidence (Pacific Live Stock Co. v. Lewis,
supra; In Re Willow Creek, 74 Or. 592, 144 Pac. 505, 146 Pac. 475). It has passed beyond the
realm of the evidentiary. It cannot be excluded. The rules of materiality, relevancy,
competency, and general admissibility are inoperative, because the statute confirms it as a
fixity which must be affirmed, or at most can be but modified. How in seriousness can it be
said that this order of determination, made originally by the state engineer, the finality of
which cannot be disturbed, but at most can be but modified, is not of the very essence of that
which is the sine qua non of that judicial power vested in the original jurisdiction of the
district court? True, the form of the procedure whereby the determination of the state engineer
goes to the district court is not such as we are accustomed to recognize as an appeal, but the
substance of the whole proceeding in the district court is that of review only, review looking
only to affirmance or modification. An appeal or review, except where it is provided for
hearing de novo, is not to be regarded as a trial. People v. McKemy, 168 Cal. 531, 143 Pac.
752.
Hence, the trial, if there be one, in which is involved the title or right to possession of real
property in so far as the same is involved in a vested water right is, under this statute,
originally conducted, and the original order of determination is entered by the state engineer.
A review of that trial looking only to affirmance or modification of that order is conducted
in the district court; and, whether this review be termed an appeal or a special proceeding, the
substance and result are the same. Due process of law as affecting real property under our
constitution (art. 6, sec. 6) placed the power of original trial and final determination in the
district court; the whole matter was one for the judicial branch of the government only. This
was a constitutional guaranty under section 8, article 1. The judicial authority of the state
may, says the Supreme Court of the United States, keep within the letter of the statute
prescribing forms of procedure in the courts and giving the parties interested the fullest
opportunity to be heard, and yet it might be that its final action would be inconsistent with the
amendment (Fourteenth Amendment, United States Constitution). In determining what is due
process of law, regard must be had to substance, not to form. Chicago, Burlington and
Quincy R. R. Co. v. City of Chicago, 166 U. S. 226, 17 Sup. Ct. 581, 41 L. Ed. 979.
And again in the case of Davidson v. New Orleans, 96 U. S. 97, 24 L. Ed. 616, that court
made the pertinent observation:
Can a state make anything due process of law which, by its own legislation, it chooses to
declare such? To affirm this is to hold that the prohibition to the states is of no avail, or has
no application where the invasion of private rights is effected under the forms of state
legislation.
By this statute and under the sections providing for the trial and determination by the state
engineer of property rights in the contest proceeding (secs. 29, 30, 33, 34, 35, and 36), that
officer is made to assume the powers properly belonging to the judicial branch of the
government.
powers properly belonging to the judicial branch of the government.
These sections of the water statute were taken largely from a similar statute found in the
State of Oregon. In passing upon these sections of the act as they are now amended by our
statute of 1915, the federal court, in Bergman v. Kearney, adopted the conclusion announced
by the Supreme Court of the United States in the case of Pacific Live Stock Co. v. Lewis,
supra, where like provisions of the Oregon statute were challenged. The constitution of
Oregon (art. 7, sec. 9) provides:
All judicial power, authority, and jurisdiction not vested by this constitution, or by laws
consistent therewith, exclusively in some other court, shall belong to the circuit courts; and
they shall have appellate jurisdiction and supervisory control over the county courts, and all
other inferior courts, officers, and tribunals.
In the Lewis case the appellant concluded, as does petitioner here, that the proceeding in
the circuit court constituted an appeal and was therefore a proceeding, the nature of which
was not properly belonging to the circuit court. The Supreme Court of the United States,
reviewing this provision of the water law of Oregon, in response to the argument of appellant,
said:
A serious fault in this contention is that it does not recognize the true relation of the
proceeding before the board to that before the court. They are not independent or unrelated,
but parts of a single statutory proceeding, the earlier stages of which are before the board and
the later stages before the court. In notifying claimants, taking statements of claim, receiving
evidence, and making an advisory report, the board merely paves the way for an adjudication
by the court of all the rights involved. As the supreme court of the state has said, the board's
duties are much like those of a referee. Pacific Live Stock Co. v. Lewis, supra.
Speaking of this phase of our water law, Judge Farrington, in his opinion in the case of
Bergman v. Kearney, said: "There is no appeal from the determination of the engineer to
the district court, but rather a continuation in that court of proceedings commenced by
and before the state engineer."
There is no appeal from the determination of the engineer to the district court, but rather a
continuation in that court of proceedings commenced by and before the state engineer.
The decision of the Supreme Court of the United States in the case of Pacific Live Stock
Co. v. Lewis, while it appears to have afforded the thought which guided the learned judge of
the federal court in the assertion just quoted, appears to our mind to afford no assistance in
deciding the question as to the nature of the proceedings before the state engineer and as to
the validity of sections 30, 33, 34, 35, 36, and 38 of the statute under the sections of our
constitution. In that case the court was, as it expressly declares, guided by the decision of the
Supreme Court of Oregon in the case of In Re Willow Creek, supra. This latter decision of
the Supreme Court of Oregon was construing the statute of that state in the light of their
constitution, wherein the jurisdiction of the circuit court is as stated. Under their
constitutional provision the way was made clear for matters such as the investigation by the
circuit court of the findings and determination of the water board, the latter being the early
stages of a statutory proceeding, the later stages of which might be before the circuit court
under its constitutional grant of appellate jurisdiction and supervisory control over * * *
officers and tribunals.
It is said in the prevailing opinion that neither the constitution of Nebraska nor Nevada
has a word to say about irrigation. Hence, the decision of the Supreme Court of Nebraska in
the cases of Crawford v. Hathaway, 60 Neb. 754, 84 N. W. 271, and Enterprise Irrigation
District v. Tri-State Land Co., 92 Neb. 121, 138 N. W. 171, should be guiding authorities
here. True, neither the constitution of Nevada nor that of Nebraska mentions irrigation; in
both, however, property rights are protected. But, singularly, in Nevada real property is a
subject over which a given tribunal, the district court, is vested with original jurisdiction. No
such provision is found in the constitution of Nebraska. This same distinction may be noted
in comparing the constitution of Nevada with those of Wyoming and Oregon, and this
distinction differentiates the effect of the water statute of those states from that of ours
under our constitutional provisions.
Nevada with those of Wyoming and Oregon, and this distinction differentiates the effect of
the water statute of those states from that of ours under our constitutional provisions. This
differentiation takes from the force and effect of the decisions rendered in the states named.
The function exercised by the state engineer under sections 29, 30, 33, and 34 being an
original determination and establishment of the right to possession and enjoyment of
property arrived at after a trial conducted with all the formality with which such would be
conducted in a court of established jurisdiction, attended with all the seriousness and
responsibility that is always attendant where title and right to possession of property is
involved, is one which by the express command of the constitution is placed in the district
court, which by the specific inhibition of that organic law is denied to any other authority.
Keeping always in mind the nature of the proceeding contemplated by our water law and
the character and nature of the subject-matter, and realizing that our water law was largely
drafted from the Oregon statute, we may dwell with more than usual seriousness on a
comparison of the constitutional grant of jurisdiction of our district court with that of the
circuit court of Oregon. The constitution of Oregon (art. 7, sec. 1) vests the judicial power of
the state in the supreme court, circuit court, and county courts. To the circuit court is granted
general jurisdiction to be limited, regulated, and defined by law. Section 9 of article 7 makes
clear the placing of all judicial power not otherwise vested by the constitution or by laws in
the circuit court. The term jurisdiction as applied to courts has been variously defined. It is:
The power conferred on a court by constitution or statute to take cognizance of the
subject-matter of a litigation and the parties brought before it, and to legally hear, try, and
determine the issues * * * joined by them, either of law or of fact. Brown on Jurisdiction,
sec. 2. Western Union Tel. Co. v. Arnold, 33 Tex. Civ. App. 306, 77 S. W. 249.
Jurisdiction is the right to put the wheels of justice in motion and to proceed to the final
determination of a cause upon the pleadings and evidence. Illinois Central R. Co. v. Adams,
180 U. S. 28, 21 Sup. Ct. 251, 45 L. Ed. 410; Venner v. Great Northern Ry., 209 U. S. 24, 28
Sup. Ct. 328, 52 L. Ed. 666.
Jurisdiction is not only the power to hear and determine, but also the power to render a
particular judgment in a particular case. Charles v. White, 214 Mo. 187, 112 S. W. 545, 21 L.
R. A. (N. S.) 481, 127 Am. St. Rep. 674.
Turning to our constitution (art. 6, sec. 6), we find specific conference of jurisdiction
placed in the district court with reference to a given and specific subject-matterto wit, title
to real property and the right of possession theretoso the right to put the wheels of justice in
motion and proceed to final determination as to these specific subjects is vested in our district
court. Moreover, the section of the organic law referred to gives the district court original
jurisdiction. The word original is defined as:
Of or belonging to the beginning; the first stage or existence of a thing. Standard
Dictionary.
Of or pertaining to the origin or beginning; first in order or existence; belonging to or
being the origin or source. Webster.
Pertaining to or characteristic of the first or earliest stages or state of anything. Century.
Proceeding immediately from its source; not arising from or dependent on any other
thing; independent; underivative. Oxford.
Our constitution not only specifies the branch of the state government in which that
particular subjectto wit, title to and possession of real propertyshall be determined, and
specifically provides the forum in which such matters may be heard and determined, but with
equal emphasis it declares that forum to be the situs of the first stage or existence of a case
involving matters of this general character. It is a well-established doctrine that the extent,
character, and completeness of jurisdiction of a court is ordinarily to be determined by the
provisions of the organic law or by such statutory provisions as may be enacted
thereunder.
provisions of the organic law or by such statutory provisions as may be enacted thereunder.
To give sanction to the expression found in the prevailing opinion, and taken from the
opinion of the federal district court in the case of Bergman v. Kearney, wherein it is declared
that the proceedings provided for by sections 36, 37, and 38 are but a continuation in the
district court of proceedings commenced by and before the state engineer, we must close our
eyes not only to the technical but to the ordinary acceptation and meaning of the term
original jurisdiction as found in section 6 of article 6 of our constitution applicable to our
district court. The term permits of no such interpretation as signifying the continuation of a
something commenced before any other authority. This term is applied to a specific forum
which is empowered to deal originally with specific subject; it limits the place of first
existence of actions with reference to the matters named. Actions commenced in a court
endowed with original jurisdiction must, by reason of the very terms used, giving the words
their very broadest scope and significance, be independent and unrelated to any primary or
inferior authorities. Original jurisdiction is a vested power which bears no relation to prior
proceedings. It is a power independent and unrelated; hence, the view taken by the Supreme
Court of the United States in the case of Pacific Live Stock Co. v. Lewis, supra, as to the
validity of the Oregon law in the light of the Oregon constitution, cannot be binding or
applicable, and we regret that it can be of no assistance in view of the vested power and
emphatic exclusiveness thereof placed specifically in the district court by the constitution of
this state as to the subject of real property, its title and possession.
Addressing himself to this phase of the question and to the same contention as that of
petitioner here, the learned judge of the federal court in the case of Bergman v. Kearney, says:
The insistence that the proceedings provided in the statute as amended are tantamount to
an appeal to the district court, as authorized in the act of 1913, is not well founded.
the district court, as authorized in the act of 1913, is not well founded. At no stage does the
determination possess any of the characteristics of finality; it cannot be regarded as
terminating between the parties litigation on the merits of the case.
We dwell on the words of the learned judge, because they give force to our position both
as to section 38 and also as to the effect of sections 34, 35, 36, and 37.
The very thing prescribed against by section 6 of article 6 of the constitution is here
presentedto wit, a proceeding involving title to or possession of real property brought
before the district court, the initial stage or existence of which was before another jurisdiction
or officer. Moreover, by the operation of these sections in conjunction with section 38, not
only are the initial stages and existence of the proceedings brought before an authority other
than that prescribed by section 6 of article 6 of the constitution, but the initial order of
determination is before another authority, and more, the initial power of execution of such
orders of determination (section 38), which execution lays hold on real property, divests of or
confers possession, declares the right of possession to, and would deliver possession thereof;
all of which powers are by the constitutional prescription placed originally in the district
court.
In reference to this proceeding, the court, in Bergman v. Kearney, further comments:
It [the order of determination] operates, not as a judgment, but as a pleading, or the
findings of a referee.
Again we dwell on the words of the learned federal court, for we may emphasize our
thoughts thereby.
Section 33 requires the state engineer to make, and cause to be entered of record in his
office, an order determining and establishing the several rights to the waters of said stream. *
* * Section 34 provides for the filing of this order of determination and establishment in the
office of the clerk of the court. This is made and entered prior to any court action.
A pleading is a statement of causes of action or grounds of defense; allegations of what
is affirmed on one side or denied on the other, disclosing to the tribunal of trial the matter
in dispute between the parties.
grounds of defense; allegations of what is affirmed on one side or denied on the other,
disclosing to the tribunal of trial the matter in dispute between the parties. It seems to us we
are going far afield when we try to apply this definition to an order of determination filed in a
court, subject to attack only within the scope of exceptions filed thereto, and which order of
determination can only be affected in that court to the extent of modification or affirmance.
Section 38 commands the state engineer, after filing his order of determination with the
clerk of the district court, to immediately assume the role of executioner, and without let or
hindrance, as though clothed with all the equitable writs, enter upon private property, close
and open headgates, confer or divest possession of property. Let us view section 38 under the
theory of respondent that the state engineer might exercise the powers there sought to be
conferred because his action in this respect was but temporary at most and was not final. If
this ministerial officer can confer or divest title to property for the period of an hour, if he can
for a day oust of or instate to possession of real property, what is there to limit the time during
which his order conferring or divesting title or ousting of or instating to possession may be
enforced? If the determination and order and the execution thereof made by the state engineer
affecting the title to and right to possession of real property can, under our constitution, be
effective for the shortest period of time, can it not with equal sanction be made to be effective
at the pleasure of that officer? When the constitution declared that where a controversy arose
involving the title or right to possession of real property it should originate in the district
court, did it infer there that any other power than that tribunal could even temporarily oust of
possession or divest of ownership? Was not the jurisdiction conferred on the district court by
article 6, section 6, original and exclusively so? If so, then by what other means than the
power and process of the district court may title to real property or the right to possession
thereof be even temporarily determined?
to possession thereof be even temporarily determined? The prevailing opinion in dealing with
section 38 waives it aside by alluding to the provision of section 39, wherein it declares that
the operation of the order of determination may be stayed in whole or in part by any party
upon filing a bond in the court wherein such determination is pending. We deem it sufficient
observation to say that we are here required to determine whether a law is contrary to
constitutional prescription, rather than as to how the effect of the law may be avoided.
Section 38 is before us in this proceeding more effectually than any other section of the
statute. It is no answer to the question of constitutionality to say that the effect of the law may
be stayed by the giving of a bond by the party against whom the operation of the law may be
enforced. Such does not operate to make a void law valid, nor does the fact that by this means
there is offered a simple way of avoiding the force of the law resolve the question of its
constitutionality. This section deals with property of the highest order and of which no man
may be deprived without due process of law. Const. sec. 8, art 1. The question is not, may the
force of this statute be avoided by some court order, such as the issuance of an extraordinary
writ, but, rather, does the statute when enforced place in the hands of some ministerial officer,
power and privilege which by the organic law may only be exercised by the judicial branch of
the government? We have declared that where the means for the exercise of a grant of power
are given, no other or different means can be employed as being more effectual or convenient.
State v. Hallock, 14 Nev. 202, 33 Am. Rep. 559; Fletcher v. Oliver, 25 Ark. 289.
Let us suppose that a statute was enacted authorizing the state engineer to inquire as to the
title and right to possession of all lands contiguous to the natural watercourses in this state,
and that as to a strip of land for one mile on each side of such watercourses he was
empowered to inquire as to the ownership or right to possession and to "determine and
establish" the same, and, after filing his determination and establishment in the office of
the clerk of the district court, he was empowered by the statute to issue his orders,
putting his determination and establishment into effect.
possession and to determine and establish the same, and, after filing his determination and
establishment in the office of the clerk of the district court, he was empowered by the statute
to issue his orders, putting his determination and establishment into effect. Let us suppose
that pursuant to such statute the state engineer, having determined and established title and
right to possession of the lands adjacent and contiguous to the Carson River system, sought to
exercise his orders, and in furtherance thereof directed that certain parties vacate a given tract,
and that the same be turned over to another; that certain gates be thrown open and others
permanently closed; that certain titles were good and sufficient and others were voidwould
such a statute be constitutional? Under section 6 of article 7 of our organic law, would such
acts be recognized? Manifestly not. A writ of injunction would no doubt lie to prevent the
acts of the state engineer in this respect, but if the statute be challenged as to its
constitutionality, would it be a sufficient answer for this court to say that, inasmuch as a
remedy was available by way of injunction, the question of constitutionality might be
overlooked? Would this court be warranted, when called upon to declare as to the
constitutionality of the statute, in saying: Assuming that this statute is unconstitutional, the
parties are protected in their property rights, inasmuch as they may seek relief by injunction,
or would it suffice to say that, inasmuch as injunction might be sought to prevent the acts of
the engineer, therefore the act was not in contravention of the organic law?
But there is another observation that might be made as to the availability of a remedy by
injunction against the order determining and establishing water rights under section 33 of the
statute under consideration and against the enforcement of such orders as provided for by
section 38 of the statute. The learned judge of the federal court in the Bergman case, like the
prevailing opinion in this case, passed lightly over sections 33 and 3S and laid emphasis on
the so-called remedy offered by section 39.
and 38 and laid emphasis on the so-called remedy offered by section 39. The prevailing
opinion contents itself with the assumptive hypothesis that section 38 is unconstitutional. In
order to typify the remedy suggested by section 39, relied upon in the prevailing opinion, let
us assume that an appropriator on the upper waters of the North Fork of the Humboldt (a
tributary of the Humboldt River system), finding his vested rights impaired by the state
engineer, seeks the remedy of injunction to prevent his being deprived of his property by the
acts of that officer. For immediate relief he must act under section 39 of the statute, which
provides:
At any time after the order of determination, evidence and transcript has been filed with
the clerk of the court, as aforesaid, the operation of said order of determination may be stayed
in whole or in part by any party upon filing a bond in the court wherein such determination is
pending in such amount as the judge thereof may prescribe, conditioned that such party will
pay all damage that may accrue by reason of such determination not being enforced, pending
decree by said court. * * * (We italicize.)
To whom may damage accrue by reason of such determination not being enforced? All the
appropriators on a stream system affected by the order of determination made by the state
engineer whose order of determination the appropriator seeks to stay. The injunction
proceedings must be and are none other than a proceeding for the determination of a water
right and to relieve such water right of an order unjustly and illegally made. That being true,
the party seeking injunctive relief, unless he brings in all the appropriators on the stream, will
be met with the objection of defect of parties defendant, because by section 45 of the original
act of 1913 it is provided that:
In any suit which may be brought in any district court in the state for the determination of
a right or rights to the use of water of any stream, all persons who claim the right to use the
waters of such stream and the stream system of which it is a part shall be made parties,"
etc.
claim the right to use the waters of such stream and the stream system of which it is a part
shall be made parties, etc. Stats. 1913, p. 204.
So our appropriator on the North Fork seeking injunctive relief from the order affecting his
property must bring in as parties defendant, under the authority of sections 39 and 45, not
alone the state engineer, but all persons who claim the right to use the waters of such stream
and the stream system of which it is a part. The stream system of which the North Fork is a
part is the Humboldt River system, extending from northern Elko County to western
Humboldt County, affecting a culture watered area of approximately 300,000 acres, with
more than 400 water users and appropriators. The court in fixing the bond before the issuance
of the injunction must do so with a view to the damage that may accrue by reason of such
determination not being enforced, and the condition must run accordingly. Injunctive relief
under such conditions is the adequate protection suggested by the prevailing opinion, afforded
by way of staying the order of determination. To him whose property has been taken, whose
vested rights have been divested, whose possession has been ousted, whose title may have
been set aside, an injunction under such conditions is said to be available. Section 39, taken,
as it must be, in connection with section 45 of the act of 1913, makes injunctive relief a
useless and impossible thing. However just may be the appropriator's cause, however secure
and well founded may be his vested right, immediate relief from the effects of an order,
however unjust or unauthorized, is a thing impossible. A more effective plan of making the
determination and order of the state engineer entered and put forth under sections 33 and 38
free from interference by court action could scarcely be conceived. By these sections a
condition, and not a theory, is presented. The injunctive relief offered by section 39, when
sought for, will, in the light of section 45, be found to be a remedy that does not relieve, a
function without substance, a camouflage which serves the purpose of covering the hidden
sting in section 3S.
camouflage which serves the purpose of covering the hidden sting in section 38.
Respondents contend that section 38 is put in force only by the properly constituted
authority, and in furtherance of this they argue that not until the final order and decree of the
state engineer are filed with the clerk of the district court may such order become operative.
In this, they say, is due process.
The contention of respondents in this respect finds sanction only in the fact that the order
of determination, evidence, and transcript are filed with the clerk of that tribunal wherein is
vested the original power to determine matters of that nature. If we read the section correctly,
it calls for no judicial investigation or sanction to put it in operation. From the time the state
engineer files the orders of determination which he made, affecting certain property rights, he
might set about under the sanction of section 38 and from thence exercise all the jurisdiction
and powers that by the organic law were reposed in the district court. The judge of the district
court, that constituted officer whose judgment and decision is presumed to be exercised and
in whom is reposed the powers and duties under the law of determining title, possession, and
right to possession of real property, might be in the remote ends of the state, yet by the mere
act of filing his determination the state engineer becomes clothed with powers to fix, limit,
regulate, establish, and set up the title or the right of possession or the possession of real
property within that judicial district. This statute may give evidence of a studied effort to
clothe the proceedings with the outward form of due process of law, but with that ingenious
refinement of which Mr. Cooley makes mention, it is made devoid of the substance. Chicago,
Burlington & Q. R. R. Co. v. City of Chicago, supra.
Section 38 ousts the district court of its constitutional function and seeks to repose in a
ministerial officer powers which belong exclusively in that court. It is in contravention of the
letter and spirit of the constitution, as expressed in section 6, article 6, as well as in article
3, section 1.
as expressed in section 6, article 6, as well as in article 3, section 1.
In the case of Bergman v. Kearney, supra, plaintiff contended, as does petitioner here, that
these sections of the act were void as conferring judicial powers on a nonjudicial officer. In
the opinion in that case, the court took occasion to remark:
Apparently it is not the exercise of all judicial authority, but the exercise of that portion of
the judicial authority pertaining or belonging to the judicial department, which is forbidden.
We would search in vain for n expression more cogent to the furtherance of our views.
Real property, the title thereof, and questions involving the possession or right of possession
thereof, are all matters which the constitution ordained should be originally dealt with, pertain
to, and belong to the judicial department. These matters are exclusively and originally within
the jurisdiction authority pertaining and belonging to the district court. The exercise of
judicial authority to the extent of ousting from or conferring possession of real property is not
only ultimately, but originally, in the district court, and any act which seeks to place this
power to any extent in any other tribunal, board, body, or officer must fall by the force of the
organic law, and especially under the view thereof as expressed by the learned judge of the
federal court.
It is the exception found in section 1 of article 3 of our constitution that adds emphasis to
the application of the expression of the learned judge of the federal court:
No persons charged with the exercise of powers properly belonging to one of these
departments shall exercise any functions appertaining to either of the others, except in cases
herein expressly directed or permitted.
There are exceptions expressly directed and permitted by the organic law itself. These
exceptions furnished the basis for the assertion in the Bergman-Kearney case that a complete
and perfect separation of powers is not made by the constitution itself."
not made by the constitution itself. The veto power of the governor is authorized by the
constitution; likewise the lieutenant-governor is made the presiding officer of the senate. It is
by constitutional provision that the legislature is made the judge of the qualifications of its
own members, and the senate the high court of impeachment. By section 6, article 6, the
original jurisdiction over the subject of real property, title thereto, and possession thereof, was
specifically vested in the judicial branch, and no exception is expressly directed or permitted,
nor can such exception be inferred from the language employed. The power of originally
putting in motion the wheels of justice applicable to the title or right to possession of real
property is seated in a designated branch of the government, and that without the remotest
inference of exception:
When the constitution defines the circumstances under which a right may be exercised or
a penalty imposed, the specification is an implied prohibition against legislative interference
to add to the condition. Cooley, Constitutional Limitations, p. 99.
It is seriously contended here that the powers sought to be conferred on the state engineer
by section 29 and those sections following are not such as belong to judicial officers; and in
furtherance of this argument it is said that all acts judicial in their nature are not within the
exclusive province of the judicial department of the government. We are referred to instances
where nonjudicial officers have been required to exercise functions which in a sense are
judicial and courts have held statutes imposing such duties or powers to be constitutional.
Perhaps the most striking illustration of this is found in the statutes creating our railroad
commission, the constitutionality of which was passed upon in the case of Southern Pacific v.
Bartine (C. C.) 170 Fed. 725. But there it was held that the power exercised by this
commission, as by other boards similarly created, is, in a constitutional sense, legislative
rather than judicial. Judicial power in the constitutional sense, says the court in the
Bergman case, supra, "is something more than authority to hear and determine; it
includes the power to decide finally and conclusively."
court in the Bergman case, supra, is something more than authority to hear and determine; it
includes the power to decide finally and conclusively. We would add to this expression by
saying that when by constitutional mandate the power to hear originally and decide finally as
to a specific thing, as in this instance the right to possession of real property, is placed in the
judicial branch of the government, then a statute which seeks to confer these powers, either in
the initial stage of determination or finally, in some other branch of the government, is void
as against the constitutional mandate. If the original jurisdiction to determine reasonable rates
to be charged for freight and fares by common carrier was a function which by the
constitutional mandate could be exercised originally and finally only by the district court,
would not the fixing of freights and fares by a board or officer other than the district court be
a usurpation of judicial function?
It is absurd to argue that in the proceeding before the state engineer nothing is involved
which belongs to the function of the district court under its constitutional grant of
jurisdiction. A mere analysis of the matter dispels such a contention. From the very
movement that the state engineer attempts to establish (secs. 29, 30, and 33), title and right to
possession are involved. By reason of the force and effect of section 38, the immediate
possession of and right of possession of a usufructuary estate is to be determined. When the
proceeding before the state engineer passes out of the realm of investigation into that of
establishment or determination, the nature of the proceedings changes; and the constitutional
prescription, establishing the specific functions of the several branches of the state
government, as a traffic officer on the avenue of governmental guaranties, calls a halt and
points the way. Up to a given point the proceedings are ministerial; when they assume to
establish or determine (secs. 25 to 38) they take on the nature of an action to quiet title
(Rickey Land and Cattle Co. v. Miller & Lux, supra), and that function belongs, from the
very initial step, to the district court.
function belongs, from the very initial step, to the district court.
It has been suggested that the statute here under consideration is enacted under the police
power of the state and for regulation; hence, the observations as to the application of the
several sections of the constitution are not well taken. No authority of which we are aware has
ever held that police regulation took the place of or superseded specific constitutional
provision. Determination and establishment of individual or relative property rights is one
thing; police regulation after determination and establishment is another. Where by the
organic law itself the way is made and the machinery furnished for the carrying out of a given
policy, that is final, and police regulation can only follow.
To those who, believing in organized government, would adhere to a democracy, the
constitution is looked to as the instrument of guaranty, and its specific inhibitions and
commands are to be enforced and carried out. We are referred to the learned words coming by
way of an excerpt from an address of Mr. George B. Rose, of the Arkansas bar. The language
and thought therein expressed, in the midst of the prevailing opinion, is most refreshing and
enlightening. In our humble way we might interpolate the words of the learned author by
saying that the constitution is never a dam to stem the tide of human progress, when it
points the way and paves the avenue by which that progress may be accomplished. It is the
avoidance of that broad channel furnished by the organic law for human progress, and
evasive constructions sanctioning such avoidance, that imperils the existence of constitutional
government by making the same a mere scrap of paper rather than a guaranty. It is the
constitution-be-damned theory that wrecks the chariot of democratic government and
makes the road of constitutional safety a quagmire of uncertainty.
In the proceeding before us it is sought to prohibit the district court from assuming
jurisdiction of a matter involving title and right to possession of real property where a
determination and establishment of that title has been already made by a ministerial
officer and where, notwithstanding the constitutional direction that such was the original
function of the district court, the determination and establishment as originally made by
the ministerial officer can only be affected to the extent of modification.
involving title and right to possession of real property where a determination and
establishment of that title has been already made by a ministerial officer and where,
notwithstanding the constitutional direction that such was the original function of the district
court, the determination and establishment as originally made by the ministerial officer can
only be affected to the extent of modification.
The order of determination was originally and finally made by a ministerial officer, and in
this he exercised functions belonging to the district court.
The district court assumes to take jurisdiction of this matter after determination by a
ministerial officer, and can only review to ultimately affirm or modify that determination. In
this it permits itself to be divested of original jurisdiction and assumes an appellate
jurisdiction forbidden by the constitution.
The order of determination which the lower court will act upon, and which it will modify
or affirm, is a decree by which it is bound, and not of its own making. It is not due process of
law.
This writ should have issued.
On Petition for Rehearing
Per Curiam:
Rehearing denied.
____________
42 Nev. 67, 67 (1918) The City of Reno v. Dixon
[No. 2308]
THE CITY OF RENO, Respondent, v. J. B. DIXON,
Appellant.
[172 Pac. 367; 177 Pac. 17]
1. Criminal LawSupreme CourtJurisdictionCriminal CasesCases at Law.
The penalty which a city under its charter (Stats. 1915, c. 184; Stats. 1917, c. 76) may prescribe for
violation of an ordinance being such that the offense under the definition of Rev. Laws, 6266, is a
misdemeanor, the supreme court has no jurisdiction of appeal from conviction thereof, its appellate
jurisdiction in criminal cases being by Const. art. 6, sec. 4, limited to felony, and it being immaterial
that the case was transferred from the police court to the district court because the validity of the tax
imposed by the ordinance was attacked; cases at law in which is involved the legality of a tax, of which
the supreme court is given appellate jurisdiction, not including a criminal case.
Appeal from Second Judicial District Court, Washoe County; T. F. Moran, Judge.
J. B. Dixon, prosecuted by the City of Reno for violation of ordinance against practicing
the profession of law without a license, was, on removal of the case from the city court to the
district court, convicted, and appeals. Appeal dismissed.
Frame, Browne & Burrows, and J. B. Dixon (in pro. per.), for Appellant:
The legislature is prohibited from passing local laws or prescribing punishments for crimes
or misdemeanors in particular localities. All laws declaring offenses to be crimes or
misdemeanors must be general in their nature. Const. Nev., art. 4, sec. 20. This prohibition
extends also to municipalities like the city of Reno, which is acting under delegated authority.
The legislature has no power to delegate authority to the city of Reno to declare an act
committed there and not elsewhere a misdemeanor, the state having no power to authorize a
municipality to do that which it cannot itself lawfully do.
The identical act penalized by the ordinance has never been the subject of state legislation;
and if the ordinance in question be construed to create a misdemeanor, which we think is not
necessary, the same is void as infringing upon the constitutional provision cited; and if the
violation of the ordinance creates merely a penalty, as distinguished from a misdemeanor,
which implies an offense against the sovereign, the same may be collected by a civil action,
known as an action at law or civil proceeding, bringing the question of the validity of the tax
or municipal fine within the jurisdiction of the supreme court.
A proceeding for a violation of a city ordinance is a civil and not a criminal action.
Cassville v. Jimmerson, 75 Mo. App. 426; City v. Tarwater, 44 S. W. 750; Hoyer v. Town of
Mascoutah, 59 Ill. 137; City of St. Louis v. Knox, 74 Mo. 78. An action to recover a penalty
for hawking and peddling without a license is a civil action, entitling either party to an appeal.
Webster v. People, 14 Ill. 365. An action instituted for the recovery of a penalty, provided for
by a municipal ordinance, prohibiting the use of profane and obscene language is a civil
action, although the person charged may be brought into court under a warrant, and therefore
either party has the right of appeal. Knowles v. Wayne City, 31 Ill. App. 471. The phrase
civil action includes actions to recover a penalty or forfeiture for the violation of some law.
Ives v. Jefferson County, 18 Wis. 166; Lyman v. Boston & A. Ry. Co., 70 Fed. 408; Waters
v. Day, 10 Vt. 487.
Where a penalty is provided by statute, and there is no specified mode of recovery
prescribed, an action of debt will lie. 30 Cyc. 1343, et seq. An action brought for the recovery
of a penalty is governed by the same rules of evidence as are applicable to ordinary civil
actions. In general, the rules of procedure relating to trials in civil actions, including the
giving of instructions, as well as defining the province of the court and jury, will govern. 30
Cyc. 1357. Where an action to recover a penalty is regarded as a civil action, an appeal will
lie from the judgment.
recover a penalty is regarded as a civil action, an appeal will lie from the judgment. State
officers cannot, by instituting an action in the form of an indictment, deprive the party of the
right of appeal. 30 Cyc. 1361.
L. D. Summerfield, City Attorney, for Respondent:
Appellant contends that section 18 of article 4 of the constitution, providing that the
legislature shall not pass local or special laws for the punishment of crimes and
misdemeanors, removes the case at bar from the criminal category. However, said section
applies only to the legislature, and prohibits it from passing any criminal law not generally
applicable throughout the entire state. What is the rule relative to municipalities? This phase
of the question is controlled by section 1 of article 4, where the following express exception
to special acts is made: The legislature shall pass no special act in any matter relating to
corporate powers except for municipal purposes. Under this provision of the constitution,
powers conferred on municipal corporations by special charter have been held valid. State v.
Swift, 11 Nev. 128; State v. Ruhe, 24 Nev. 251.
Under section 4 of article 6 of the constitution of Nevada the supreme court has no
jurisdiction of this appeal. To bring the action into this court on appeal, it would have to be
either a case at law involving the title or the right of possession to, or the possession of, real
estate or mining claims, or the legality of a tax, impost, assessment, toll, or municipal fine, or
a criminal case in which the offense charged amounts to a felony. We do not believe that the
expression all cases at law,' as used in the constitution, was intended to apply to criminal
actions at all, and we have only assumed for the movement that it does, in order to show that,
in any event, the district judge was right in dismissing the charge against Grant. State v.
Rising, 10 Nev. 97.
In the light of the provisions as we find them in the charter of the city of Reno, we apply the
reason as well as the interpretation which we find in the case of State v. Rising, supra, and in
the language of Mr.
v. Rising, supra, and in the language of Mr. Justice Beatty, as said in that case, we say there
can be no doubt that the municipal court had jurisdiction of the offense charged against the
petitioner, and that it was the duty of that court to try and determine it, unless it was made to
appear, before or during the trial, that an issue involving the legality of a tax or the
constitutionality of an ordinance imposing a tax, was to be decided, in which case it was the
duty of the municipal court, in obedience to the statute, to transfer the proceeding to the
district court. In Re Dixon, 40 Nev. 228. Following this decision, and in exact accordance
with the instructions there laid down, the case at bar was certified to the district court, in
obedience to the statute, and there tried. Under section 4 of article 6 of the constitution of
Nevada, therefore, unless the present action presents a case a law in which is involved the
legality of a tax municipal fine, or a criminal case in which the offense charged amounts to a
felony, this court has no jurisdiction, and the appeal should be dismissed. This point has been
conclusively settled. Town of Gold Hill v. Brisacher, 14 Nev. 52.
By the Court, McCarran, C. J.:
A prosecution was commenced in the police court of the city of Reno against the
appellant, Dixon, by a complaint under oath. In that complaint the appellant was charged with
having unlawfully practiced the profession of law at and within the city of Reno without
having first obtained and paid for a license from the city clerk of the city of Reno. The
prosecution was instituted under a city ordinance. Appellant was arraigned in the police court
upon the complaint. On arraignment, appellant filed a motion to set aside the complaint,
alleging, among other things, that the ordinance under which the license tax was imposed was
invalid. Upon the filing of the motion by the appellant, the police court made an order
transferring the cause to the Second judicial district court in and for the county of Washoe,
upon the ground that the validity of a tax was involved and that the police court was
without jurisdiction.
ground that the validity of a tax was involved and that the police court was without
jurisdiction. In the meantime, the matter had been considered by this court under proceedings
in habeas corpus. In Re Dixon, 40 Nev. 228, 161 Pac. 737. It was pursuant to the order of this
court that the municipal court transferred the matter to the district court. On trial in the
district court before a jury, a verdict of a conviction was rendered against the appellant. From
that verdict, and from the judgment entered pursuant thereto, appellant seeks to appeal to this
court. A motion to dismiss the appeal is earnestly presented here by respondent.
The prosecution in this case was conducted against the defendant for a violation of a
municipal ordinance. Viewing the matter as of the first instance, the municipal court had,
without doubt, jurisdiction of the offense charged against petitioner, and that court might with
propriety have tried and determined the matter. It was on the motion of appellant, in which
motion he raised the question of the legality of an ordinance imposing a tax, that the matter
was transferred to the district court. In the case of Ex Parte Dixon, supra, following the
doctrine of the case of State v. Rising, 10 Nev. 97, we held that it was in obedience to the
statute that the judge of the municipal court was required to transfer the proceedings to the
district court.
By statutory declaration the legislature of this state has declared what is to be regarded as a
misdemeanor and what is to be regarded as a felony. Section 6266, Rev. Laws, provides:
A crime is an act or omission forbidden by law and punishable upon conviction by death,
imprisonment, fine, or other penal discipline. * * * Every crime punishable by a fine of not
more than five hundred dollars, or by imprisonment in a county jail for not more than six
months, is a misdemeanor.
The offense charged against the appellant was not raised to the dignity of a felony by being
transferred to the district court. It was in the first instance, and remains until the present,
possessed only of the qualities and characteristics of a misdemeanor.
remains until the present, possessed only of the qualities and characteristics of a
misdemeanor. It originated under a provision of the charter of the city of Reno authorizing the
city council to prescribe fines, forfeitures, and penalties for the breach or violation of any
ordinance, or the provisions of this charter, in which it is further provided:
No penalty shall exceed the sum of $500 or six months imprisonment, or both such fine
and imprisonment. Stats. 1915, p. 273; Stats. 1917, p. 119.
The right of appeal to this court in such matters has been definitely and positively
negatived by the case of Town of Gold Hill v. Brisacher, 14 Nev. 52, and as said there by Mr.
Chief Justice Beatty, after referring to the case of State v. Rising, supra, so we say here:
This is clearly a criminal case, and cannot therefore be one of the cases at law' in which
this court has appellate jurisdiction; and, since the offense charged does not amount to a
felony, we have no jurisdiction of it as a criminal case. Const. art. 6, sec. 4.
The appeal is dismissed.
It is so ordered.
On Rehearing
A rehearing of this case was granted on petition of appellant. In our former opinion we
held that the offense charged against petitioner was a misdemeanor, and, being such, did not
come within the appellate jurisdiction of this court. It was our judgment then that the former
decision of this court in the case of Town of Gold Hill v. Brisacher, 14 Nev. 52, was
controlling. The petition for rehearing and an argument of counsel on the rehearing sought to
distinguish that case from the matter at bar.
We are not in accord with the theory of differentiation. To differentiate would be to set
aside the whole theory of the law as laid down by Mr. Chief Justice Beatty in the Brisacher
case. It is our judgment that the law was there correctly interpreted, and that the rule of
that case is controlling in this.
the law was there correctly interpreted, and that the rule of that case is controlling in this.
Our former opinion will prevail, and the order therein made is hereby reaffirmed.
It is so ordered.
____________
42 Nev. 73, 73 (1918) Dixon v. Southern Pacific Co.
[No. 2303]
J. B. DIXON, Respondent, v. SOUTHERN PACIFIC
COMPANY (a Corporation), Appellant.
[172 Pac. 368; 177 Pac. 14]
1. Trover and ConversionReception from Wrongful Possessor.
As a general rule, it is a conversion to receive property from one wrongfully in possession, and thereafter
to exercise control of it against the wish of the person entitled.
2. CarriersLiability of CarrierConversion.
The carrying of goods by a carrier from terminus to terminus on the requirement of a person unlawfully in
possession is not a conversion, though if the true owner intervenes before the goods are delivered, and
demands them, and the carrier refuses to deliver them, it is liable in trover.
3. CarriersTransporting OreNotice of Title.
Where the owner of ore on a mine dump, anticipating that E., who was operating the mine, would
endeavor to ship it, notified the railroad, and forbade the transportation of such ore, and the railroad, when
E. offered the ore for transportation, required him to make affidavit that such ore was his, which he did,
and the railroad transported the ore for him, such railroad was liable to the owner of the ore as for a
conversion, being charged with constructive notice of the owner's right.
4. Trover and ConversionDamagesValue of Property.
The measure of damages for a conversion of property is its value at the time of the conversion, with legal
interest from the date to that of rendering judgment, though special and exemplary damages may be
allowed in certain cases.
5. EvidenceJudicial NoticeExtraction of Mineral from Ore.
Courts cannot take judicial notice of what percentage of mineral can be extracted from a particular class
of ore, which is a matter of proof in each particular case, where material.
On Rehearing
1. CarriersDuty as to DeliveryConflicting Claims to Property.
It is the duty of a carrier on demand to deliver property in its possession to the true owner, whether it has
been received from him or from another as consignor, notwithstanding that, in case of
conflicting claims, a hardship will be imposed upon it in determining right of
possession.
from him or from another as consignor, notwithstanding that, in case of conflicting claims, a hardship will
be imposed upon it in determining right of possession.
2. CarriersConflicting Claims to PropertyNotice of OwnershipWaiver.
Where an owner of ore notified defendant carrier that he owned it, but that he believed a third person
intended to steal and ship it as owner, the carrier by avowing its intention to ship the ore if tendered to it
waived its right to insist that the description of the ore was insufficient to give it notice of plaintiff's title in
a subsequent suit by the owner against the carrier to recover for the conversion of the ore.
On Costs
1. CostsAppealModification of JudgmentStatute.
Under Rev. Laws, 5381, where, in opinion on rehearing, the supreme court made no order as to costs,
since defendant appellant had obtained relief originally by reduction of judgment against it, judgment
having been reversed unless plaintiff agreed to reduction, appellant should recover its costs on original
appeal.
2. CostsRehearingStatute.
Where both parties petitioned for rehearing, and neither obtained any relief as a consequence, each party,
under Rev. Laws, 5381, should pay his own costs incurred on rehearing.
Appeal from Second Judicial District Court, Washoe County; Mark R. Averill, Judge.
Suit by J. B. Dixon against the Southern Pacific Company, a corporation. From a judgment
for plaintiff, defendant appeals. Reversed, and cause remanded for new trial, unless plaintiff
agrees to a reduction of judgment, in which event, as modified, it will be affirmed.
After reversal on rehearing from a ruling of the clerk of the supreme court, on the cost bill
filed by defendant, said defendant appeals. Ruling ordered modified, and, as modified,
affirmed.
Brown & Belford, for Appellant:
As a common carrier, the defendant cannot be held guilty of converting property delivered
for shipment, and by it transported in the ordinary course of its business as such common
carrier. A common carrier is bound to accept all goods offered within the course of his
employment and is liable to an action in case of refusal."
refusal. York Co. v. Central Co., 3 Wall. 107; Jackson A. I. Works v. Hurlbut, 158 N. Y. 34;
6 Cyc. 365; Michie on Carriers, sec. 333; Hutchinson on Carriers, 3d ed., sec. 47.
In the State of Nevada the common-law duty to receive and carry all goods offered for
shipment, under penalty of liability for damages, is imposed upon railroads by statute. Rev.
Laws, 3558, 3559. Both at common law and under the statute, a railroad company refuses at
its peril to transport any goods offered it for shipment, its reasonable regulations being
complied with.
It is the rule of law that where one is in possession of personal property, such possession is
prima facie evidence of ownership in him. Nanson v. Jacobs, 12 Mo. App. 125; Smith v.
Colby, 67 Me. 169; Gurley v. Armstead, 148 Mass. 267; Saunders v. Greever, 85 Va. 252. A
common carrier is entitled to rely upon the prima facie evidence of ownership indicated by
the possession of one who tenders him goods for shipment. The ordinary rule as to the
liability of one who exercises acts of dominion over the property of another without that
other's consent finds an exception in the case of common carriers. Gurley v. Armstead, supra;
Robert G. White Co. v. Railroad, 87 Mo. App. 330; Fowler v. Hollins, 7 Q. B., 35 Victoria,
616; Burditt v. Hunt, 25 Me. 419; Shellnut v. Central Ry. Co., 18 L. R. A. 494; 6 Cyc. 472.
It is only where goods are in the possession of the carrier, and the true owner, who is not
the shipper or the consignee, demands possession, that the railroad company must satisfy
itself as to the title, and deliver the goods to the party to whom they belong. In the absence of
such demand, the carrier will be protected in the delivery of the goods to the consignee.
Robert G. White Co. v. Railroad, supra.
There was no evidence which justified the lower court in finding mere nominal damages.
Courts are supposed to act on evidence, and not on mere assumption. No judge can look at a
sample of ore and say that he has judicial knowledge that the ore when smelted or
otherwise treated, will yield any certain per cent of the theoretical value.
judge can look at a sample of ore and say that he has judicial knowledge that the ore when
smelted or otherwise treated, will yield any certain per cent of the theoretical value. Plaintiff
failed to meet the burden imposed by law upon him of showing the value of the property
alleged to have been taken. Only certain elements of value were shown. There was, therefore,
no basis for an approximation of damages. Richardson v. National O. P. & R. Co., 34 Nev.
453.
The damages to which plaintiff would be entitled, if he is entitled to any damages, would be
the market value of the property at the time and place of the alleged conversion, with
damages for the detention of that value, which is legal interest from the time of the
conversion to the date of the judgment. Sutherland on Damages, 4th ed., sec. 1109; Carlyon
v. Lannan, 4 Nev. 156; Boylan v. Huguet, 8 Nev. 345; Menzies v. Kennedy, 9 Nev. 152;
Newman v. Kane, 9 Nev. 234; Bercich v. Marye, 9 Nev. 312; Ward v. Carson River Wood
Co., 13 Nev. 44; Robinson M. Co. v. Riepe, 37 Nev. 27; Torp v. Clemons, 37 Nev. 474.
A. E. Painter (J. B. Dixon, in pro. per.), for Respondent:
The authorities are numerous and practically unanimous that the owner of personal
property of which he is deprived by the acts of others is entitled to be reimbursed for all loss
sustained by him by reason of the taking or conversion, and it is immaterial whether or not
the defendants acted in bad faith or intended to injure the plaintiff, except as to the amount of
damages to be allowed. An illegal taking is all that is necessary to show. 4 Sutherland on
Damages, sec. 1108; Swim v. Wilson, 27 Pac. 33; Kimball v. Billings, 55 Me. 147; Koch v.
Branch, 44 Mo. 543; Hoffman v. Carow, 22 Wend. 285; Bercich v. Marye, 9 Nev. 312.
Trover will lie against a carrier for a misdelivery or an appropriation of the property to its
own use, or for any act antagonistic to and inconsistent with plaintiff's claim of right.
claim of right. Blowers v. Canadian Pacific Ry. Co., 155 Fed. 935; Central Ry. Co. v.
Lampley, 76 Ala. 357; Illinois Central Ry. Co. v. Parks, 54 Ill. 294. As the actual owner may
recover the property from the carrier, it is excused for failure to deliver to the consignee by
delivering the property to the actual owner. 1 Michie on Carriers, 547; Raleigh R. Co. v.
Lowe, 101 Ga. 320; National Bank v. Railroad, 44 Minn. 224; King v. Richards, 6 Whart.
418.
Where a carrier wrongfully delivers goods to one other than the owner, after having been
expressly directed by the owner not to deliver them, the carrier is guilty of conversion, for
which the owner can recover without further demand. Lister v. Railroad, 36 N. Y. Supp. 907;
6 Cyc. 472.
It is held by almost all courts that where values are fluctuating, or where there are special
circumstances, such rule will be adopted as will place the plaintiff in as favorable a position
as he would have occupied if his property had not been taken from him against his will. In
most of the cases this has been held to be the highest value between conversion and trial, a
few cases holding that the value at the time of the trial is the proper rule. O'Meara v. North
American M. Co., 2 Nev. 112; 4 Sutherland on Damages, pp. 4239, 4240, 4250; Douglas v.
Kraft, 9 Cal. 562; Dorsey v. Manlove, 14 Cal. 555; Burton v. Dutcher, 34 N. Y. 493; Burks v.
Hubbard, 69 Ala. 379; Whitfield v. Whitfield, 40 Miss. 352; Gregg v. Fitzhugh, 36 Tex. 127;
Smith v. Savin, 141 N. Y. 315.
In addition to the highest value between conversion and trial, respondent ought in reality to
have been allowed punitive damages, so that the amount allowed was too small rather than
too large. If the amount allowed is not too large, it is immaterial if the trial judge gave the
wrong reason for his decision.
Respondent brought suit to recover damages alleged to have been sustained by the
conversion by appellant of certain ore which respondent claimed to own.
of certain ore which respondent claimed to own. The undisputed facts are that in July, 1914,
appellant was engaged in operating a line of railroad in the State of Nevada; that the
respondent owned certain ore which he had purchased at an execution sale, wherein it and
other personal property was sold under a judgment against the Nevada United Mines
Company; that one Galvin was the purchaser at an execution sale of the mining claim upon
which said ore was situated, and thereafter entered into an agreement with one Ephraim,
pursuant to which Ephraim mined and extracted therefrom certain ore; that in the month of
June, 1914, respondent, anticipating that the said Ephraim intended to ship respondent's ore,
notified the railroad company that he owned some ore upon the dump of the mine in question,
and that he anticipated that Ephraim would endeavor to ship it, and forbade the transportation
thereof by the railway company; that about ten days or two weeks after said notice had been
given, the said Ephraim offered to the appellant for transportation about 26 1/2 tons of ore;
that thereupon the appellant required that the said Ephraim make affidavit that he owned the
ore so tendered for transportation, and upon his doing so the ore was received and transported
to the Western Ore Purchasing Company at Hazen, Nevada, which was engaged in the
business of sampling and buying ores. The question of the ownership of the ore so shipped
was litigated in the trial court, which found that the respondent owned fourteen tons thereof,
and the finding on that point is not questioned here. The court found that said fourteen tons of
ore was converted by appellant, that it was valued at $2,205.70, that $6 a ton should be
deducted as smelting charges, and gave judgment against appellant for $2,121.70. A motion
for a new trial having been denied, an appeal was taken.
1. It is urged as a ground for reversal that under the circumstances of this case appellant
could not have been guilty of conversion. As a general rule, it constitutes conversion to
receive property from one wrongfully in possession of it and thereafter exercise dominion
or control over it against the wish of the person rightfully entitled to its possession.
wrongfully in possession of it and thereafter exercise dominion or control over it against the
wish of the person rightfully entitled to its possession. 38 Cyc. 2024. But appellant contends
that since a common carrier must accept for transportation property offered to it or be liable
in damages for refusal to do so (citing Hutchinson on Carriers, 3d Ed., sec. 47; Michie on
Carriers, sec. 333; Revised Laws of Nevada, 3558, 3559), the facts of this case constitute an
exception to the general rule, and that the rule which controls is that laid down in Fowler v.
Hollins, 7 Q. B. 632, where it is said:
The trade of a common carrier is one of the few occupations which the person carrying it
on is bound by law to exercise upon the requirement of a person bringing him goods to be
carried, and it would be unjust that he should be bound by law to do an act which the law, in
the event of the person bringing the goods not being the true owner, declared to be an
unlawful act. It has therefore been deemed that the carrying of goods by a carrier from
terminus to terminus, upon the requirement of a person unlawfully in possession of them, is
not conversion, although, if the true owner intervenes before the goods be delivered and
demands them, and the carrier refuses to deliver them, he is liable in an action of trover.
In support of this doctrine, our attention is called to Gurley v. Armstead, 148 Mass. 267,
19 N. E. 389, 2 L. R. A. 80, 12 Am. St. Rep. 555; White Live Stock Co. v. Railway Co., 87
Mo. App. 330; Nanson v. Jacobs, 93 Mo. 331, 6 S. W. 246, 3 Am. St. Rep. 531; Burditt v.
Hunt, 25 Me. 419, 43 Am. Dec. 289; Shellnut v. Cent. Ry. Co., 131 Ga. 404, 62 S. E. 294, 18
L. R. A. (N. S.) 494.
2. We approve of the rule just mentioned, but it is based upon a reason which does not
exist in the case at bar. The reason for the rule is that a common carrier cannot be expected to
inquire into the right of a person in possession of property to ship it; but it will be observed
that as soon as the carrier has notice from the person rightfully entitled to the possession of
the property to deliver the same to him, failure to do so will make the carrier liable.
property to deliver the same to him, failure to do so will make the carrier liable.
Counsel for appellant say in their brief:
It is only where the goods are in the possession of the carrier, and the true owner, who is
not the shipper or the consignee, comes and demands possession, that the railroad company
must satisfy itself as to the title, and deliver the goods to the party to whom they belong.
3. We find nothing in the authorities or in reason to justify this contention. A carrier can
be guilty of conversion by wrongfully taking into its possession property and exercising
dominion over it, as well as by wrongfully exercising dominion over it after it comes into its
possession. Let us illustrate: Suppose that while Jones, a bank clerk, is taking a sack of gold
from one bank to another, and just as he gets opposite the express company's office the gold
is snatched from him by a thief, who carries it into the express office and offers it to the
company for transportation, but, before the company receives it, Jones acquaints the company
with the facts and notifies it not to receive the gold. Could it be said that in case the gold is
accepted, transported to California, and there delivered to the thief, the company would not
be liable for conversion simply because it did not have possession of the gold at the time it
was warned of the facts? We think not. Yet, if the contention of counsel is sound, the express
company would not be liable because it was notified of the facts a moment before it received
possession of the gold, instead of after its receipt thereof.
We do not wish to be understood as holding that notice to a common carrier by the owner
of property that he expected some one to tender for transportation property not capable of
accurate description, belonging to him, and warning such carrier not to accept it, would in
every instance make such carrier liable should it accept and transport the property and
thereafter deliver it to one not the owner. But in the case at bar the carrier had notice that a
particular person, one Ephraim, would offer the ore for transportation; and when it was
offered, the company, having in mind the notice received by it, required of Ephraim an
affidavit of ownership.
Ephraim, would offer the ore for transportation; and when it was offered, the company,
having in mind the notice received by it, required of Ephraim an affidavit of ownership. Since
the notice which appellant received was sufficient to warrant it in taking the precaution of
requiring an affidavit from Ephraim, we conclude that appellant was brought within the rule
asserted in Lang Syne M. Co. v. Ross, 20 Nev. 127, 18 Pac. 358, 19 Am. St. Rep. 337, as
follows:
Whenever a party has information or knowledge of certain extraneous facts which of
themselves do not amount to, nor tend to show, an actual notice, but which are sufficient to
put a reasonably prudent man upon an inquiry respecting a conflicting interest, claim, or right,
and the circumstances are such that the inquiry, if made and followed up with reasonable care
and diligence, would lead to the discovery of the truthto a knowledge of the interest, claim,
or right which really existsthen the party is absolutely charged with a constructive notice of
such interest, claim, or right.
See, also, Rollo v. Nelson, 34 Utah, 116, 96 Pac. 263, 26 L. R. A. (N. S.) 315; 29 Cyc.
1114.
4. It is also contended that the court erred in its finding as to the amount of damages
sustained by respondent. Appellant offered evidence to the effect that the ore purchasing
company paid Ephraim the sum of $544.92 for the two shipments of ore, which was based
upon the value of the ore at the time of purchase, while the court in making its findings and
rendering judgment based its conclusion upon the highest market price of the metals
contained in the ore between the date of receipt of the ore and the date of trial. That this was
clearly error is not debatable. This court has, in several instances, had occasion to lay down
the rule which should control our courts in fixing the damage which a party sustains under
circumstances like those existing in the case at bar. In Torp v. Clemons, 37 Nev. 474-485,
142 Pac. 1115, where the prior decisions of this court on the point were cited, it was held
that the measure of damage for wrongful conversion of property is the value of the
property at the time of conversion, with legal interest from the date of conversion to the
date of rendering judgment.
cited, it was held that the measure of damage for wrongful conversion of property is the value
of the property at the time of conversion, with legal interest from the date of conversion to the
date of rendering judgment. It is contended that some other courts have laid down a different
rule, and one which we should follow. Suffice it to say that this court, in Boylan v. Huguet, 8
Nev. 345, considered at some length this question, adverted to the decisions taking the
contrary view and adopted the rule which has ever since been adhered to, and we see no
reason for repudiating it now. True, as said in Ward v. Carson River Wood Co., 13 Nev. 62,
special and exemplary damages may be allowed in certain cases, but the trial court did not
find that respondent was entitled to recover special or exemplary damages.
5. We deem it proper to say, also, that the learned trial judge, in taking a 90-per-cent
extraction as a basis for figuring the value of the ore in question, merely assumed that a
90-per-cent extraction could be obtained, as shown by his opinion, and did not base his
conclusion upon any evidence introduced at the trial. Courts cannot take judicial notice of
what percentage of mineral can be extracted from a particular class of ore; it is a matter of
proof in each particular case. In Richardson v. National Ore P. & R. Co., 34 Nev. 455, 124
Pac. 779, it was said:
Courts in this state will take judicial knowledge of the fact that processes of crushing,
amalgamating, and cyaniding ores will not effect an extraction of 100 per cent of the metallic
content. What would be a reasonable per cent of extraction would depend largely upon the
process used and the character of the ore; but there is nothing in this case to show what ought
to have been such extraction.
Counsel for appellant suggest in their brief that in case this court finds that appellant was
guilty of conversion the judgment may be reduced to $287.28, with legal interest from the
date of conversion, which it claims is based upon the highest selling price of the metallic
contents of the ore during July, 1914.
metallic contents of the ore during July, 1914. Since the evidence in this case is such that it is
impossible for us to say for just what sum the judgment should be, it is ordered that the
judgment of the district court be reversed and the cause remanded for a new trial, unless the
respondent agrees, within ten days from the filing of the remittitur herein in the district court,
in a written statement filed with the clerk of said court, to a reduction of the said judgment to
the sum of $287.28, with legal interest as aforesaid; in which event the judgment as thus
modified will be affirmed; appellant to recover its costs on appeal.
On Rehearing
The question of the propriety of establishing the rule laid down in our former opinion
being of such great importance to common carriers of the state, we decided to grant the urgent
petition for a rehearing, that we might give the same further consideration; but, after
extensive investigation and mature reflection, we find ourselves unable to adopt the views
urged by counsel for appellant.
Upon the original hearing the burden of appellant's argument turned upon the distinction
sought to be made between a case in which the property in question was in the possession of
the carrier at the time of receiving notice of the rights of the third party and a case in which
the carrier accepted the property after receiving such notice. At this time, the burden of
appellant's contention is the injustice of the rule which holds a common carrier liable under
the particular facts of this case, because of the indefinite description given of the ore in
question at the time the notice was served upon appellant. In fact, it is now contended that a
common carrier is not liable for refusing to deliver up possession of property, even though
demanded by the owner, who is entitled to the possession thereof, and the case of Switzler v.
N. P. Ry. Co., 45 Wash. 221, 88 Pac. 137, 12 L. R. A. (N. S.) 254, 122 Am. St. Rep.
122 Am. St. Rep. 892, 13 Ann. Cas. 357, is cited as sustaining that contention. The argument
now urged upon us necessitates the statement that the trial court held the ore in question to
have been stolen from respondent by Ephraim, and also of the statement of the evidence of
the general freight agent of the appellant company, who when notified by respondent not to
accept the ore telegraphed to San Francisco for instructions. He testified:
I told him (respondent) that we (the railroad) could not stop the ore, and that we would
not if it was offered to us for shipping as common carriers without due process of law being
taken to protect us from shipping it; that we must ship it.
This statement to respondent obviated the necessity of further action by respondent so far
as giving a more definite description of the ore is concerned or of taking other steps except
legal ones to protect himself, for he was notified that they would be ignored.
1. The line of argument now urged, as to the hardships which would be inflicted upon a
carrier because of the necessity to determine who is the one entitled to the possession of the
property, is not new, and has been uniformly urged in favor of appellant's contention. This
very argument is answered in a unanimous opinion in Georgia R. & B. Co. v. Haas, 127 Ga.
187, 56 S. E. 313, 119 Am. St. Rep. 327, 9 Ann. Cas. 677, the opinion having been written by
that distinguished jurist, Mr. Justice Lumpkin. We quote with approval from the opinion:
A carrier cannot refuse to recognize the demand of the true owner of property, made
while such property is in the carrier's possession and duly pressed, and carry it away and
deliver it to a person who does not own it, or his order, merely because the carrier received it
from such person as consignor. There may be some authority tending to sustain this position;
but we think the better view is to the contrary. It may be inconvenient for a common carrier
to have two claimants for goods in his possession; but so it is for any other bailee or
depository.
common carrier to have two claimants for goods in his possession; but so it is for any other
bailee or depository. The rule that a carrier is estopped from denying the title of his consignor
is not without exception in this state. Section 2286 of the civil code [of 1895] is as follows:
The carrier cannot dispute the title of the person delivering the goods to him, by setting up
adverse title in himself, or a title in third persons, which is not being enforced against him.'
Hutchinson on Carriers (2d Ed.), sec. 407, thus deals with the subject: In such cases,
however, if it should turn out that such claimant has not the paramount title as against the
bailor, the withholding the goods by the carrier from the latter will be treated as a conversion
by him. And so, when a demand is made upon him by the adverse claimant, if the carrier
should refuse to surrender the goods to him, he will be equally guilty of a conversion, if the
title of such claimant should prove to be the better, and he, as the true owner, was really
entitled to them. Where, therefore, the title to the property is disputed, and it becomes
difficult or impossible for the carrier to determine who is entitled to them, he may be placed
in a perilous position; for, no matter to which he gives up the goods, whether to the bailor, or
in pursuance of his directions, or to the adverse claimant, he will be in danger of being held to
account for them by the other, as for a conversion, if he can show the better title.' * * * In
Trans. Co. v. Barber, 56 N. Y. 544, it is said: When the owner comes and demands his
property, he is entitled to its immediate delivery, and it is the duty of the possessor to make it.
The law will not adjudge the performance of this duty tortious as against a bailor having no
title.' In Hentz v. The Idaho, 93 U. S. 575, 23 L. Ed. 978, Mr. Justice Strong, in the opinion,
says: But if he [the bailee] has performed his legal duty by delivering the property to its true
proprietor at his demand, he is not answerable to the bailor. And there is no difference in this
particular between a common carrier and other bailees.' See, also, 5 Am.
bailees.' See, also, 5 Am. & Eng. Ency. Law (2d Ed.), 196, and citations; Southern Express
Co. v. Palmer, 48 Ga. 85(2); Savannah R. Co. v. Wilcox, 48 Ga. 432; Shellenberger v.
Fremont R. Co., 45 Neb. 491, 63 N. W. 859, 50 Am. St. Rep. 563; Wells v. Am. Exp. Co., 55
Wis. 32, 11 N. W. 537, 12 N. W. 441, 42 Am. Rep. 700; Savannah Ry. Co. v. Talbot, 123 Ga.
378, 51 S. E. 401, 3 Ann. Cas. 1092; Atlantic R. Co. v. Howard Supply Co., 125 Ga. 478, 54
S. E. 530.
The Supreme Court of Kansas, in A., T. & S. F. Ry. Co. v. Jordon Stock Food Co., 67
Kan. 86, 72 Pac. 533, in which all the justices concurred, considering the question, said:
The position of the railroad company was one of great hazard and embarrassment. It was
liable to be mulcted in damages if it wrongfully refused to carry and deliver the goods under
its contract with the shipper, and it was without any adequate means or opportunity of
knowing definitely who the true owner might be. The law, however, must always aid the true
owner in the recovery of his property, and he cannot be deprived of it by means of any
contract relation between a wrongdoer and the carrier. When, therefore, the owner did appear
and demanded his goods, he was entitled to their immediate delivery, and it was the duty of
the possessor to make it.
In Nanson v. Jacob, 93 Mo. 331, 6 S. W. 246, 3 Am. St. Rep. 531, the question of the
liability of the carrier was made to turn upon the matter of notice. The court said:
A mere bailee, whether common carrier or otherwise, is guilty of no conversion, though
he receive property from one not rightfully entitled to possession, and, acting as a mere
conduit, deliver it in pursuance of the bailment, if this is done before notice of the rights of
the real owner. On the other hand, if he has such notice, his status is altogether altered, and he
acts at his peril. Cooley on Torts, 456. This distinction between acting with or without notice,
in such circumstances, is fully and pointedly recognized in Dusky v. Rudder, S0 Mo.
and pointedly recognized in Dusky v. Rudder, 80 Mo. 400. The rule thus laid down is
recognized as correct in Robert G. White L. S. Co. v. Chicago, M. & St. P. R. R. Co., 87 Mo.
App. 330.
It is insisted that the case of Shellnut v. Cent. of Ga. Ry. Co., 131 Ga. 404, 62 S. E. 294,
18 L. R. A. (N. S.) 494, which was relied upon in the original hearing, supports the
appellant's contention. If the case mentioned is an authority in this case, it is clearly against
appellant's contention, for it appears from the opinion that the cotton in question was shipped
and delivered to consignee before demand therefor was made. The court said:
And, the bill of lading having been issued in the name of Haney, the cotton was shipped
and delivered under that bill of lading; and, when so shipped and delivered, the company was
free from any liability for a conversion, as no demand was made upon it for the property
while it was in its possession. It seems to be a well-settled principle that a common carrier is
guilty of no conversion, though he receive property from one not rightfully entitled to
possession, and, acting as a mere conduit, deliver it in pursuance of the bailment, if this is
done before notice of the rights of the real owner. * * *'
Continuing, the court said:
Indeed, the argument and the reasoning in that case tend very strongly to the conclusion
which we have reached in this. We do not think it could be said that, where a railroad
company receives property for transportation, which the law imperatively demands that it
shall receive when it is offered, and then, acting, as was said in the case of Nanson v. Jacobs,
supra, as a mere conduit,' delivers it in pursuance of the bailment, it can be said to exercise a
dominion over it in exclusion or in defiance' of the true owner's right; because, if the true
owner should, before the delivery of the property by the carrier in pursuance of the bailment,
make demand for it or show his right to the possession of it, and give notice of his intention
to enforce that right, then the carrier would be bound to recognize that right, or, refusing
to do so, would refuse at its peril."
and give notice of his intention to enforce that right, then the carrier would be bound to
recognize that right, or, refusing to do so, would refuse at its peril.
But it is contended that the case of A., T. & S. F. Ry. v. International L. & I. Co., 247 Fed.
265, 159 C. C. A. 359, sustains appellant's contention as urged upon the hearing. That is a
case somewhat similar to this in some of its features. The property in question consisted of
three hotel cars, which came into the railroad company's possession after it had received
notice. The company transported the cars over its line and delivered them to the person from
whom it had received them, in the same condition as they were when received. The court
says:
The rule as commonly stated is that a common carrier is liable in conversion for
misdelivery or nondelivery of property intrusted to it for transportation, and that upon the
making of an adverse claim and demand by a third person the carrier assumes the risk of
correctly deciding between the claimant and the shipper or consignee. The result of this is
that, though the carrier is without adequate means of information, it will be held in
conversion if it errs in its decision. In the statement of the rule it is generally recognized as
productive of much hardship to common carriers, impartial as between the contending parties
and desirous only of discharging the duties imposed upon them by law.
The court does not approve or disapprove of the rule, but in disposing of the case says:
Giving full force to the incidents held in varying circumstances to constitute a
conversion, we do not think sufficient were shown at the trial.
We fail to see that the case mentioned is of much force in aiding us in arriving at a
conclusion. It seems that in that case both parties honestly asserted claim to the property. In
the case before us the property had been stolen.
We are confronted with the case of Kohn v. R. & D. Ry. Co., 37 S. C. 1, 16 S. E. 376, 24
L. R. A. 100, 34 Am. St. Rep. 726, which was considered in Shellenberger v. Fremont, etc.,
Fremont, etc., R. R. Co., 45 Neb. 487, 63 N. W. 859, 50 Am. St. Rep. 561, and disapproved,
the court saying:
There is no doubt that the assertion of conflicting claims has been the occasion of
frequent embarrassment to bailees, particularly common carriers, who are bound to receive
goods offered for transportation, although there has been suggested no sufficient reason for
excepting them from the operation of the rule by which the rightful owner is permitted to
reclaim property wherever found. We are aware of the exceptions to the rule, but they rest
upon equitable considerations, none of which are presented by the record in this case, and
need not, therefore, be noticed.
It may be said in this case with equal force that there are no equitable considerations
appearing which would justify our following the Kohn case.
Our attention is called to the case of Switzler v. N. P. R. Co., 45 Wash. 221, 88 Pac. 137,
12 L. R. A. (N. S.) 254, 122 Am. St. Rep. 892, 13 Ann. Cas. 357, as holding contrary to the
view which we entertain. Upon a casual reading of this case it might so seem, but the court in
its opinion took it bodily out of the class of cases to which this case belongs. It said:
When a person in the possession of personal property presents the same to such
transportation company for shipment, upon the terms common to the public, such carrier, in
the absence of actual knowledge, or of the facts that should readily lead to actual knowledge,
to the contrary, may assume that the would-be shipper is rightfully in possession of said
property and authorized to enter into a legal contract for its transportation. Not only may such
carrier presume this to be the case, but it is legally bound so to do and to receive such
property for shipment. Having so accepted and forwarded said property, it becomes its duty to
fulfil the contract of shipment made with the consignor.
2. The court in that case apparently based its conclusion upon the fact that the railroad
company did not have actual knowledge, or knowledge of facts which should have led to
actual knowledge, of the rights of Switzler, before receiving the horses for shipment, while
in the case at bar, though it is admitted that notice was given to the railroad before it
received the ore in question, it is urged upon rehearing that the description of the ore was
too indefinite and uncertain to charge the company with knowledge of the rights of the
respondent.
before receiving the horses for shipment, while in the case at bar, though it is admitted that
notice was given to the railroad before it received the ore in question, it is urged upon
rehearing that the description of the ore was too indefinite and uncertain to charge the
company with knowledge of the rights of the respondent. By its avowal of its intention to ship
the ore if tendered it, and basing its decision so to do, apparently upon its legal rights in the
premises, rather than upon the indefinite description of the ore, of which it made no
complaint at the time, we think it waived any right it might otherwise have to now insist that
the description of the ore was too indefinite and uncertain to charge it with knowledge of the
fact that the ore tendered it by Ephraim was the ore owned by respondent, and cannot now be
heard to say that it did not have actual knowledge that the ore in question was the property of
respondent.
Respondent takes exception to the view expressed in the original opinion relative to the
other matters considered. Suffice it to say that after a careful consideration we are entirely
satisfied with the views then expressed.
Counsel for appellant has filed a list of authorities, holding that we may enter an order
directing the judgment which should be entered. There is no doubt as to the law on this point,
but we do not feel that we would be justified in making such an order in this case.
For the reasons given in the original opinion, the order will be that the judgment of the
district court be reversed, and the case remanded for a new trial, unless the respondent agrees,
within ten days from the filing of the remittitur herein in the district court, in a written
statement filed with the clerk of said court, to a reduction of said judgment to the sum of
$287.28.
On Costs
By the Court, Coleman, C. J.:
This case is now before the court on an appeal from a ruling of the clerk of this court upon
the cost bill filed by appellant.
by appellant. In the original opinion in this case it was ordered that, unless respondent
consented to a reduction of the judgment from $2,121.70 to $287.28, a new trial would be
granted. A rehearing was granted (both parties petitioning therefor), and upon final
determination the original order was entered as to the merits of the case. Upon the rendition
of the original opinion, appellant filed its cost bill. Since the opinion on rehearing was filed,
appellant has filed no cost bill, including the items in its original cost bill and its costs on
rehearing. Respondent has filed no cost bill, but has filed objections to appellant's cost bill.
The clerk has overruled the objections, and allowed the items of cost as contained in the cost
bill filed, from which respondent has appealed.
1. Section 5381, Revised Laws, provides that:
In the following cases the costs of an appeal to the supreme court shall be in the
discretion of the court:
1. Where a new trial is ordered.
2. When a judgment is modified. In the event no order is made by the court relative to the
costs in the two instances mentioned in this section, the party obtaining any relief shall have
his costs.
In the opinion on rehearing the court made no order as to costs; consequently, since
appellant obtained relief, it necessarily follows that it should recover its costs. This is not
open to debate. The statute is clear, emphatic, and peremptory to the effect that the party
obtaining any relief shall have his costs. The judgment against the appellant was ordered
reversed, unless respondent agreed to a reduction from $2,121.70 to $287.28. Certainly it
cannot be said that appellant did not obtain relief.
2. As to costs on rehearing, since both parties petitioned therefor, and neither obtained any
relief as a consequence thereof, each party should pay his own costs incurred upon such
rehearing.
It is therefore ordered that the ruling of the clerk of this court be so modified as to disallow
appellant's costs incurred upon rehearing, and, as so modified, that his ruling be affirmed.
____________
42 Nev. 92, 92 (1918) Crosman v. Southern Pacific Co.
[No. 2267]
FRED CROSMAN, Respondent, v. SOUTHERN PACIFIC COMPANY (a Corporation),
Appellant.
[173 Pac. 223]
1. TrialSpecial FindingsInconsistency with Verdict.
The inconsistency between special findings and the general verdict which, under Stats. 1915, c. 92,
makes the former controlling, must be irreconcilable; one that no reasonable hypothesis or inference under
the pleadings can remove.
2. RailroadsDuty to Persons on TracksInstructions.
A general instruction, leaving it to the jury to apply the same standard of duty in the management of trains
towards one on the track, whether rightfully or wrongfully there, is erroneous.
3. TrialInstructionsTheories of Case.
The parties having different theories of the case, and there being evidence tending to support each,
instructions should given on both.
4. RailroadsInjury to Person on TrackLiability.
In the absence of wantonness, negligence of railroad company in backing its switch engine without a rear
light, and in not keeping a lookout, will not make it liable for injury to a person running his velocipede car
after dark, contrary to instructions, and using the track which he knew was regularly used for trains running
in the opposite direction.
5. NegligenceWantonnessFindings.
Special finding that defendant's conduct was careless disregard for plaintiff's safety rebuts assumption
that its act was wilful, wanton, or aggravated misconduct or reckless disregard of his safety.
Action by Fred Crosman against the Southern Pacific Company. Judgment for plaintiff,
and defendant appeals. Reversed, and remanded for new trial.
Statement of Facts
The Southern Pacific Company, a railway corporation, has appealed to this court from a
judgment in the sum of $25,000, the amount assessed against it by the verdict of a jury as
compensation for personal injuries alleged to have been sustained by plaintiff in consequence
of the alleged negligence of the defendant company. At the proper stage in the trial the
defendant moved for a nonsuit and a directed verdict.
moved for a nonsuit and a directed verdict. Both motions were denied. Upon the request of
counsel for the parties the court submitted to the jury 37 special interrogatories, 35 of which
were answered, returned, and filed with the verdict. The defendant moved for judgment upon
the special findings, notwithstanding the general verdict in plaintiff's favor, and also moved
for a new trial, which motions were denied.
The uncontradicted facts are that, long prior to the date of the injuries complained of, the
Southern Pacific company operated and maintained between its stations, Truckee, Cal., and
Sparks, Nevada, a double main-line track; that prior to and at the time of the accident and
injuries to the plaintiff, there was in vogue between these points what is called the left-hand
traffic movement; that is to say, all trains operated between these points moved upon the
left-hand track. The Postal Telegraph Cable Company, long prior to the injuries, owned and
operated telegraph lines extended along the right of way of the Southern Pacific Company
between its stations referred to in this statement. The railroad company, at the request of the
telegraph company, granted permission to allow its employees engaged in repair and
maintenance service to operate upon its tracks velocipede cars at their discretion, in the
course of their employment, between Sparks and Wells, Nevada. This arrangement is
evidenced by a written agreement, dated the 31st day of January, 1911, which, among other
things, provided that said employees might use such cars at their sole risk as gratuitous
licensees, and the railroad company should owe them no duty, nor be liable for injuries
sustained by them, whether arising from negligence or otherwise, and the postal company
should indemnify and hold harmless the railroad company on account of any injuries to any
employee while so engaged in operating such cars between Sparks and Wells. The injuries
complained of were received at a point on defendant's road between Sparks and Reno. The
city of Reno is an intermediate station between Truckee and Sparks, situate about three
miles west of Sparks.
Truckee and Sparks, situate about three miles west of Sparks. Sparks is a division point that
marks the western limit of the Salt Lake division and the eastern limit of the Sacramento
division. Wells is a station situate several hundred miles east of Sparks. The Sparks and Reno
yards overlap, but for a distance of about three-quarters of a mile between these points there
are but two main-line tracks. Long prior to the injuries complained of the defendant employed
a switch engine, equipped with headlights on front and rear, in its Reno yards. The engine
was housed at Sparks, and customarily left the latter place in the early hours of the morning to
do its work in the Reno yards. When its work was completed it necessarily moved backward
to Sparks, pulling such cars as were required to be transferred from Reno to the Sparks yards.
Crosman, the plaintiff, was employed by the telegraph company, on or about July 1, 1911,
as a lineman, whose duty it was to assist in the maintenance of his employer's lines as far east
as Lovelock, Nevada, and as far west as Floriston, Cal. At the time of his employment the
telegraph company operated a velocipede car upon the tracks of the defendant company out of
Reno. Crosman resided in Reno, and from the date of his employment operated a velocipede
car out of Reno up to the date of his injuries without protest or objection on the part of the
defendant's officers, agents, or employees, except as here now stated: An accident occurred
on the line of defendant company some time in September, 1911, which was attributed to the
use of the velocipede cars by the employees of the telegraph company upon defendant's tracks
after dark without a light. This led the company to revoke or modify its permission
theretofore given the telegraph company, to the extent of prohibiting the use of its tracks on
the Salt Lake division after dark. Pursuant to an order of the defendant company, the
telegraph company, by telegram and letter dated September 25, 1911, instructed Crosman not
to use the motor car upon defendant's tracks after dark under any circumstances.
tracks after dark under any circumstances. In this letter he was requested to advise if the
instructions contained were clearly and definitely understood. Crosman wrote the company on
October 4, 1911, as follows:
In acknowledgment of your letter of September 25, in regard to running of cars after dark,
I wish to state I thoroughly understand the meaning of that instruction.
In so far as it appears from the record, the plaintiff at no time attempted to operate a
velocipede car upon defendant's track after dark up to the date of his injuries. On February 14,
1912, the telegraph company inclosed to Crosman in a letter a copy of its agreement herein
referred to with the defendant company. In the letter Crossman was requested to carry the
permit with him while using the car to show his authority so to do when challenged. On the
18th day of February, 1914, Crosman, together with a coemployee, while proceeding in a
westerly direction upon a velocipede car, at a speed of about ten or fifteen miles per hour,
between Sparks and Reno, after dark, between the hours of 6:30 and 7 p.m., at a point about
400 yards west of the Sparks ticket office on the Salt Lake division, was run into by a switch
engine moving backward in an easterly direction on the left-hand track of the main-line track,
which was returning from Reno to Sparks drawing a train of twenty cars to be distributed in
the Sparks yards. The velocipede car weighed approximately 400 pounds, and was propelled
by a two-cylinder gas engine. Crosman operated the car, and his companion sat immediately
in front of him on a narrow running-board. The evidence tends to show that at about the time
the engine crew had completed their labors and were ready to return to Sparks, it was
discovered that the rear headlight on the tender of the engine was out of commission. A
lantern was placed on the bumper beam which extended across the length of the tank about
four feet above the track. The reflection of this lighted lantern would not enable the engineer
or fireman to see any character of obstruction upon the track, but such light could be seen
for approximately a distance of one-half mile on a straight track.
character of obstruction upon the track, but such light could be seen for approximately a
distance of one-half mile on a straight track. The engine was drifting along without steam at a
speed of ten or twelve miles per hour at the place of the collision. The regulation signals were
given from time to time en route. The engineer testified, in substance and to the effect, that he
had no reason to anticipate that there would be a gasoline car on the left-hand track on going
to Sparks that night; that he had no knowledge of the presence of the car upon the left-hand
track until about the time of the collision; that he thought he had a clear track in front of him
when he started his engine upon the left-hand track for Sparks.
The plaintiff and his companion testified, in substance and to the effect, that at the time of
the collision there was no light on the engine; that they had no knowledge of its approach, and
that just before the impact the plaintiff's companion yelled There is something on the track
just ahead of us, and he jumped and escaped injury. The plaintiff stated:
I was not thinking just exactly of the switch engine; I was looking for any train, but was
expecting them to come with a headlight or a light, and there was no light whatever.
The night was dark, cold, and the wind was blowing from the west. The plaintiff's
companion sat with his hat drawn down and his coat collar turned up to protect him from the
elements. The plaintiff endeavored to extricate himself from his position in operating the car,
but could not do so in time to clear himself from danger. His car was caught beneath the
running-board extending along the side of the engine. It appears that when in operation this
velocipede car made more noise than a motorcycle or automobile with its muffler wide open,
and the noise of the approaching engine could not be heard. Crosman, as the result of the
collision, was desperately injured.
The averments of the complaint are to the effect that Crosman operated the car between
Sparks and Wells in virtue of the agreement between the said companies, and operated
the car between Reno and Sparks with the knowledge, consent, and permission of the
railroad company.
virtue of the agreement between the said companies, and operated the car between Reno and
Sparks with the knowledge, consent, and permission of the railroad company.
The defendant, by its answer, set up, among other defenses, that Crosman, prior to his
injuries, was forbidden the use of defendant's track after dark, and was where he had no right
to be at the time of receiving his alleged injuries. In reply the plaintiff alleges, in substance,
that he was at the time of his injuries in the line of his duty, and engaged in making repairs to
certain of the wires of the telegraph company at or near Gilpin (east of Sparks), and had
completed his work and started on his return journey in time to reach Reno before dark, but
while within the station and yard limits of Sparks, and near the Sparks station, it became
necessary to make certain repairs to the velocipede car, so that the time required to make such
repairs prevented plaintiff from reaching the point where he was injured before dark.
Such of the special findings deemed pertinent to the conclusion reached are referred to in
the opinion.
Uncontradicted testimony shows that at the time of the injury to respondent he was using
his gasoline speeder on the tracks of the appellant in direct and knowing violation of his
positive instructions. He was not only a naked trespasser, but he was a trespasser who was
guilty of negligence himself, which in the very nature of things proximately contributed to his
injury and without which the injury would not and could not have occurred. Every
unauthorized entry upon land of another is a trespass. 38 Cyc. 995. A person who goes or
remains upon land of another without authority for so doing is a trespasser; and where a
person, having authority for the original entry, exceeds or abuses such authority, he becomes
a trespasser ab initio. 28 Cyc. 444-445, 38 Cyc. 1000.
A carrier owes no duty to a trespasser, except to refrain from wantonly or wilfully
injuring him after his presence is discovered.
refrain from wantonly or wilfully injuring him after his presence is discovered. The only
relaxation of this rule is as to places where the presence on the track is reasonably to be
anticipated, such as street crossings in populous communities. 29 Cyc. 442; 3 Thompson on
Negligence, 722, 723. In determining respondent's negligence we must determine the duty it
owed to appellant, since negligence occurs only where there is a breach of legal duty. That
duty in cases of licensees and volunteers is not to wilfully or wantonly injure them. Shafer v.
Tacoma Eastern Ry. Co., 157 Pac. 485; Egan v. Montana Central Ry. Co., 63 Pac. 831;
Martin v. Northern Pacific Co., 149 Pac. 89; Kroeger v. Grays Harbor Construction Co., 145
Pac. 63; Toomey v. Southern Pacific Co., 24 Pac. 1074; A. T. & S. F. Co. v. Todd, 38 Pac.
804; Hayden v. A. T. & S. F. Co., 124 Pac. 165; Malott v. Union Pacific R. Co., 160 Pac.
978; Kansas Southern Co. v. Langley, 160 Pac. 451; M. K. & T. Co. v. Robnett, 157 Pac. 72.
There is no difference in the duty owed by a railroad company to trespassers and bare
licensees. Egan v. Montana Central Ry. Co., 63 Pac. 831; 33 Cyc. 767; 2 Elliott on Railroads,
sec. 1250; 2 Thompson on Negligence, sec. 1705; Bull v. Cleveland Co., 52 N. E. 1013;
Ward v. Southern Pacific Co., 136 Pac. 166.
The agreement between the Southern Pacific Company and the Postal Telegraph Cable
Company was valid, and constituted a complete bar to the action. P. C. C. & St. L. Ry. Co. v.
Mahony, 46 N. E. 517; Robinson v. St. Johnsbury & L. C. R. Co., 66 Atl. 814; Boering v.
Chesapeake B. Ry. Co., 193 U. S. 442; Muldoon v. Seattle Ry. Co., 38 Pac. 995; Quimby v.
Boston & M. R. Co., 23 N. E. 205.
The testimony established, and the jury so found, that the plaintiff at the time of the
accident was a trespasser. He could not recover unless the defendant was guilty of some
wilful or wanton act toward him after discovering his peril. 1 Street on Foundations of Legal
Liability, p. 155. The jury found that plaintiff was a trespasser, and it also found that the
defendant was not guilty of wilfulness, wantonness, or recklessness.
was not guilty of wilfulness, wantonness, or recklessness. In order to constitute wilfulness or
wantonness or reckless indifference to probable consequences, the act done or omitted must
be done or omitted with a knowledge or a present consciousness that injury will probably
result; and this consciousness is not to be implied from mere knowledge of the elements of
the dangerous situation the person may be in and negligent and inadvertent acts in respect to
this fact. Duncan v. St. Louis Ry. Co., 44 So. 418; Brooks v. Pittsburg Co., 62 N. E. 694;
Schug v. C., M. & St. P. Ry. Co., 78 N. W. 1090.
Where a wanton or wilful act is relied upon to create a liability, it must be specifically
charged. An allegation of negligence raises no issue as to wilful infliction of the injuries
complained of. 29 Cyc. 585; Bailey v. Railway Co., 62 S. E. 912; Memphis R. R. Co. v.
Martin, 23 So. 231; L. & N. R. R. Co. v. Anchora, 22 So. 279; Chicago R. R. Co. v. Hedges,
7 N. E. 801. There is no virtue in a pleading which charges an act as gross negligence,
unless facts alleged show it to be such, and also show it to be wanton or wilful. If such facts
are not pleaded, the term is a mere expletive and is surplusage. Meadow v. Richmond Ry.
Co., 11 S. E. 316; D. & R. G. Co. v. Buffehr, 69 Pac. 582; Kelly v. Malott, 135 Fed. 74;
Gregory v. Cleveland Ry. Co., 14 N. E. 228; Railway Co. v. Schmidt, 5 N. E. 684; Mescall v.
Tully, 91 Ind. 96; Schuyler v. Southern Pacific Co., 109 Pac. 465; Savannah & W. R. Co. v.
Meadows, 10 So. 141.
The plaintiff was shown to have been guilty of such contributory negligence as precludes a
recovery. Contributory negligence is such negligence as proximately contributes to the injury;
one of the moving causes of the accident which resulted in the injury and without which the
injury would not have happened. Such negligence need not be in itself the sole cause of the
injury, but rather one of the joint causes out of which the accident arose. 29 Cyc. 505-507; 1
Thompson on Negligence, secs. 169, 176. It was incumbent upon plaintiff, having no lawful
right to be on the tracks, to exercise the utmost vigilance for his own safety.
the utmost vigilance for his own safety. Pluckwell v. Wilson, 5 Carr. & P. 375; Chicago Ry.
Co. v. Roberts, 44 Ill. App. 179.
As to either trespassers or persons who are guilty of contributory negligence, although not
trespassers, the defendant, even though its negligence might be described as gross, is not
liable for any omission or negligence occurring before actual discovery of the position of peril
of the trespasser or other person guilty of contributory negligence. Williams v. Southern
Pacific Co., 70 Cal. 120; Herbert v. Southern Pacific Co., 121 Cal. 227; Sego v. Southern
Pacific Co., 137 Cal. 405.
Dixon & Miller, for Respondent:
The authorities are almost unanimous in holding that where the party injured or killed had
not signed the contract between his employer and the railroad company, he was not bound by
the terms or conditions of such contract. Yoemans v. Contra Costa S. W. Co., 44 Cal. 71;
Fordyce v. Jackson, 56 Ark. 694; Blair v. Erie Ry. Co., 66 N. Y. 313; Chamberlain v.
Pearson, 87 Fed. 420; Graham v. Pacific R. Co., 66 Mo. 536; Grand Trunk v. Stevens, 95 U.
S. 655; Brown v. Sullivan, 71 Tex. 477; Nichols v. Ry. Co., 89 N. Y. 370. Such contracts are
void as against public policy. Chicago Co. v. Solan, 169 U. S. 135; Inman v. S. C. Ry. Co.,
129 U. S. 130; Phila. R. R. Co. v. Derby, 14 How. 485; Penn. R. Co. v. Butler, 57 Pa. 335;
Munn v. Illinois, 94 U. S. 113; United States v. Joint Traffic Assn., 171 U. S. 505.
The jury did not find plaintiff to be a trespasser, and the trial judge expressed the same
opinion at all times, both on the motion for judgment on the special findings and in his
decision on the motion for a new trial. The appellate court should at all times give the same
liberal interpretation to special findings in an endeavor to sustain the general verdict, if it is
possible to do so. Antonian v. S. P. Co., 9 Cal. App. 718; Ready v. Peavy Elevator Co., 80
Minn. 154; Alhambra Addition Water Co. v. Richardson, 72 Cal. 606; Clementson on Special
Verdicts, p.
Verdicts, p. 139; Union Traction Co. v. Vandercook, 32 Ind. App. 621.
Even if it should be held that plaintiff was a trespasser on the tracks at the time of
receiving the injuries, the great weight of authority is that trespassers have many rights, which
arise, to a considerable extent, from the duty imposed by law upon railways. Where a
defendant is guilty of gross negligence, or acted with a reckless disregard of the rights of
others or of the consequences of the act, it is liable in damages even to trespassers. 1
Sedgwick on Damages, p. 720; 3 Thompson on Trials, secs. 2555, 2556, 2569; Forrester v.
Southern Pacific Co., 36 Nev. 247; Grand Trunk W. Ry. v. Lindsey, 233 U. S. 42. A railroad
owes a general duty to use ordinary care and skill to avoid injuring others. 21 Am. & Eng.
Ency. Law, 470. Licensees have higher rights than trespassers and are entitled to a higher
degree of care at the hands of the railway. 33 Cyc. 760; Croft v. Railroad, 108 N. W. 1053;
Railroad v. Dawson, 11 Am. Neg. Rep. 407; Davis v. Mich. Cent. Ry., 105 N. W. 877;
Duhme v. Hamburg Am. P. Co., 184 N. Y. 404.
A railway company is liable if a plaintiff was injured by reason of wanton or wilful
negligence. Williamson v. Southern R. Co., 51 S. E. 195; Blankensby v. Chesapeake & O. R.
Co., 94 Va. 449; Fry v. St. Louis R. Co., 78 S. W. 566; 29 Cyc. 443.
Defendant is liable where he might have discovered the peril of the plaintiff by the
exercise of reasonable care, or has neglected the most ordinary precaution in failing to do so,
or where not knowing of the danger he has sufficient notice to put a prudent man on the alert.
Denver R. R. Co. v. Buffehr, 30 Colo. 27; Dahlstrom v. St. Louis R. R. Co., 96 Mo. 99;
Bogan v. Carolina Central R. Co., 129 N. C. 154; Buxton v. Ainsworth, 138 Mich. 532.
It is undoubtedly the law that if the negligence of the appellant which caused the injuries
was gross, wilful, or wanton, the appellant cannot set up as a defense the contributory
negligence of plaintiff.
the contributory negligence of plaintiff. The statute provides the doctrine of comparative
negligence, and also the right of the jury in all cases to pass upon the negligence of the
defendant, the contributory negligence of the plaintiff, and the comparative negligence of
defendant and plaintiff. The jury has fulfilled its duty, both by the general verdict and by
several of the special findings. Southwestern B. & I. Co. v. Schmidt, 226 U. S. 162; Konig v.
N. C. O. Ry., 36 Nev. 181; Bunting v. Central P. R. Co., 14 Nev. 351; Davis v. Mich. Cent.
R. Co., 19 Am. Neg. Rep. 325; Cederson v. Oregon N. Co. 38 Or. 343; Brendie v. Spencer,
125 N. C. 474.
By the Court, Sanders, J., after stating the facts:
The case has been presented to us with care and ability. The cause is one of the utmost
moment to the plaintiff, of general importance to the defendant company, and, in some
respects, is of interest to the profession.
The principal assignment of errors is involved in the discussion of the leading questions:
What duty did the law impose upon the defendant to protect the plaintiff from the injuries of
which he complains? Was the plaintiff guilty of negligence which directly or proximately
contributed to his injuries? Was the defendant's negligence of such character as to preclude
the defense of contributory negligence? Did the agreement between the telegraph company
and the defendant company operate as a bar to the right of plaintiff to maintain his action?
1. Our respect for the voluminous and exhaustive briefs, embracing, as they do, an
analysis of a large number of the leading authorities bearing upon these questions of law,
would ordinarily impel us to follow the argument of the learned counsel and pass upon all the
points discussed, but the procedure adopted as the trial confines our inquiry to the real
question presented for our consideration: Are the special findings of the facts inconsistent
with the general verdict of the jury? If they are, the law is imperative that they control the
verdict, "and the court must give judgment accordingly."
they are, the law is imperative that they control the verdict, and the court must give
judgment accordingly. Stats. 1915, p. 110.
Criticism of statutes authorizing special interrogatories is often indulged in by those who
would place the verdict of a jury above the law, but from the decisions of this and other
courts we are impressed that the practice is universally approved. By submitting special
interrogatories the expense and delay of a second trial may often be avoided, and by this
practice the law is much more effectually separated from the fact than by giving hypothetical
instructions. Lambert v. McFarland, 7 Nev. 159. The statute also enables the court to
determine if a general verdict is due to an erroneous application of the law to the facts as
actually found by the jury. Weck v. Reno Traction Co., 38 Nev. 300. The rule of construction
of special findings of facts is to harmonize them, if possible, with each other and the general
verdict. To justify a judgment on special findings, notwithstanding the verdict, the former
must be such as absolutely to determine the controversy in favor of the moving party.
Clementson, Special Verdicts, c. 8, pp. 131-149. In determining whether the general verdict
or the answers to special interrogatories control, the findings are not to be aided by
intendment, and the inconsistency between the verdict and the findings must be
irreconcilable; that is, it must be such that no reasonable hypothesis or inference under the
pleadings and evidence can remove the conflict.
In view of the findings in this case that cover every phase of the evidence, material or
otherwise, we now approach the question: Can the findings be true and the verdict be
permitted to stand? In the consideration of this question it must be understood that the same
measure of justice, the same rule of conduct, and the same principle of law apply to the
defendant corporation as to the unfortunate plaintiff.
Our construction of the pleadings is that the complaint proceeds upon the theory that the
plaintiff at the time of his injuries was lawfully upon the defendant's road.
his injuries was lawfully upon the defendant's road. The answer of the defendant shows
affirmatively that plaintiff was not there rightfully, but, on the contrary, was there in direct
violation of positive instructions not to use the motor car upon defendant's tracks under any
circumstances after dark. The plaintiff in his reply to the answer seeks to justify his presence
upon the track after dark, and at the place of his injuries, upon the grounds that he was there
in the regular course of the performance of his duties to his employer, and that the time lost in
making necessary repairs to his velocipede car at Sparks prevented him from reaching the
point where he was injured before dark, and it was the duty of the defendant to use
reasonable and ordinary care that the plaintiff was not injured while running said car on its
tracks. The only charge of negligence resting against the defendant is, therefore, that the
defendant's employees in the moving of its switch engine in question after dark carried no
headlight, or other light, to warn plaintiff of its approach.
2, 3. The court defined negligence to be the omission to do something which a
reasonable man guided upon those considerations which ordinarily regulate the conduct of
human affairs would do, or doing something which a prudent and reasonable man would not
do. It is obvious that the first element of this definition is a duty to do or not to do a
particular act. It applies to the plaintiff in the operation of his velocipede car, as well as to the
defendant in the management and control of its engine and cars. But from the instruction
given on the part of the plaintiff immediately following this definition, the jury were, in
effect, told that if they believed from the evidence that the act or omission to display a
headlight, or other light, was negligence, and that the plaintiff's injuries resulted therefrom,
the defendant was liable; provided plaintiff's negligence did not proximately contribute to the
injuries; and, though they find that the plaintiff's acts and conduct did contribute to his
injuries, if they believe from the evidence that the act or omission complained of was wilful,
wanton, and in reckless disregard for the safety or life of the plaintiff, the defendant was
liable, notwithstanding the contributory negligence of the plaintiff.
wanton, and in reckless disregard for the safety or life of the plaintiff, the defendant was
liable, notwithstanding the contributory negligence of the plaintiff. The underlying error in
the position taken by the learned presiding judge results from the assumption that a like duty
to use care in the management and control of the engine rested upon the defendant, whether
the plaintiff was rightfully or wrongfully upon the defendant's track at the time and place of
the collision. The rightfulness or wrongfulness of the plaintiff's presence upon the track was
an issuable or disputed fact left to the jury for its determination without the aid of instructions
clearly and distinctly defining the duty the law imposed upon the parties in respect to the
relative rights and reciprocal duties and obligations arising from the joint occupancy of the
locus in quo. A general instruction which left it to the jury to apply the same standard of duty
and use of care in the management and control of its trains and engines towards one
wrongfully as to one rightfully upon the company's tracks is wrong. Hern v. So. Pac. Co., 29
Utah, 127, 81 Pac. 906. Where two contentions are made, as were here made, and the
evidence tends to support both, it was the duty of the court to instruct upon both theories.
Zelavin v. Tonopah-Belmont Dev. Co., 39 Nev. 1, 149 pac. 188.
4. If we clearly interpret the position taken by the learned counsel for the plaintiff, the
injuries were the result of the nonperformance or omission of a plain and manifest duty for
the protection of human life, and the defendant cannot be heard to say in justification of its
negligence that the plaintiff was at the time of his injuries at a place where he had no right to
be. This rule does not apply where he had no right to be. This rule does not apply where the
party injured, knowing of the danger, purposely or negligently puts himself in its way. The
application of the rule here would, in effect, require the company to, in the movement of its
switch engines after dark, provide in advance appliances for protecting persons from the
result of their negligence in running velocipede cars upon defendant's tracks after dark. Such
an extreme rule of liability would lead to unjust results, and would ignore the rule of
contributory negligence.
would lead to unjust results, and would ignore the rule of contributory negligence. Even in
cases of injury to an employee the law is well settled that he cannot prevail in an action for
damages where his injuries sustained in the course of his employment were brought about by
his own negligence in performing an act, the danger of which was so obvious and threatening
that a reasonably prudent man under similar circumstances would have avoided it, if in his
power to do so. Konig v. N. C. O. Ry. Co., 36 Nev. 181, 135 Pac. 141. The rule is equally
well established that, though it may be shown that the defendant did not exercise care, yet no
recovery will be allowed against it if it further appears that the injury would have been
avoided if the person injured had exercised care on his own part. Patnode v. Harter, 20 Nev.
303, 21 Pac. 679; 20 R. C. L. 138. The plaintiff in the exercise of a gratuitous privilege in
running his car upon defendant's tracks was bound to use the care a man of average prudence
would use under similar circumstances, and one of the circumstances to be considered in this
respect was the plaintiff's knowledge of the situation and its danger. He is held to know
everything in respect to a situation and its dangers which he would have known had he
exercised due care. Myers v. Boston & Maine R. Co., 72 N. H. 175, 55 Atl. 892. That it was
the general duty of the defendant to display a light on its switch engine in moving after dark
between the Reno and Sparks yards is not seriously controverted, but its failure so to do
would not excuse the plaintiff from exercising ordinary care in voluntarily running his car
after dark against positive instructions.
It is obvious from the facts found that the plaintiff knowingly and voluntarily chose the
wrong track, and that he negligently continued his journey after dark up to the instant of the
collision. Under these circumstances he placed himself in a position of too great danger to
hazard his own safety upon a signal that might or might not be given. Certainly the situation
in which he placed himself was too uncertain to authorize him to omit taking those
precautions which common prudence for his own safety would dictate.
him to omit taking those precautions which common prudence for his own safety would
dictate. Railroad Co. v. Depew, 40 Ohio St. 125. When the plaintiff continued his journey
after dark upon the wrong track it must be understood that the defendant's knowledge of his
situation was in no respect superior to his own, nor can it be successfully contended that the
engineer's failure to anticipate the plaintiff's possible or chance presence upon the left-hand
track was in any respect different from the plaintiff's failure to anticipate that the switch
engine without a light would be in his path. The running of a velocipede car after dark upon a
railroad track is not in itself so innocent as to excuse the operator from the duty of exercising
ordinary care, not only for his own safety, but, in a sense, for the safety of defendant's
employees, passengers, or others lawfully upon its tracks. When on the road with his car the
plaintiff recognized that for his own safety it was necessary for him to know the traffic
movement of defendant's trains.
The jury specially found that the plaintiff received instructions about October 4, 1911, not
to use his car upon defendant's tracks after dark; that the plaintiff knew that between Reno
and Sparks on the main line the left-hand track was used for the regular movement of trains
and engines; that plaintiff was negligent in running his car after dark; that he was negligent in
running the car westerly toward Reno after dark on the defendant's east-bound main-traffic
track; that he was negligent in continuing his journey after it became dark after repairing his
motor, and that though the rules of the defendant permitted switch engines to run on any track
between the points named, it was negligent for plaintiff to run his car on the track on which
he was injured; that the plaintiff as a reasonable man should have known that the defendant
company was then using the left-hand track for its regular movement of trains between
Sparks and Reno.
That the plaintiff's negligence was one, if not the proximate, cause of his injuries is a fact
concerning which reasonable minds could not differ.
which reasonable minds could not differ. The only plausible pretext upon which these
findings can be reconciled with the general verdict would be to hold that the jury was correct
in its assumption or conclusion that, notwithstanding the plaintiff's negligence or want of
ordinary care and reasonable diligence, no light on engine was the proximate cause of the
injuries.
Ordinarily proximate cause is a question of fact, but it is a term sufficiently defined to
enable courts to determine if from a given or undisputed state of facts in a case of negligence
a verdict or finding thereon is binding or conclusive upon us. There is no evidence to weigh,
nothing to be done but to decide whether from the issues, the findings and the verdict the
latter meets the requirement of the law. Ophir Mining Co. v. Carpenter, 4 Nev. 534. It is not
pretended that the plaintiff's negligence and wrongful entry upon the left-hand track was the
occasion or remote cause of his injuries, nor can it be successfully contended that the injuries
were the natural sequence of the defendant's negligence, for the reason that it affirmatively
appears from the findings of the jury that the plaintiff failed to establish any duty or
obligation on the part of the company to safeguard him in the running and operation of his
velocipede car upon the wrong track, either by day or by night. But it is strenuously urged that
it was the general duty of the company, under the circumstances in this case, to keep a
constant lookout, and, having failed so to do, when a proper lookout would have prevented
the injuries, the company is liable. This assumption is rebutted by the findings of the jury
hereinabove referred to, which show that the negligent entry of plaintiff upon the wrong track
was without excuse or justification. But, as is said in the case of Milwaukee, etc., Railway
Co. v. Kellogg, 94 U. S. 469:
* * * That, in order to warrant a finding that negligence, or an act not amounting to
wanton wrong, is the proximate cause of an injury, it must appear that the injury was the
natural and probable consequence of the negligence or wrongful act, and that it ought to
have been foreseen in the light of the attending circumstances."
of the negligence or wrongful act, and that it ought to have been foreseen in the light of the
attending circumstances.
If it were shown that plaintiff's injuries were the result of the defendant's culpable
ignorance of his perilous situation, he could appeal to the law for relief, but in view of the
findings to the effect that the plaintiff in entering upon the wrong track was culpably ignorant
of his danger, and that he consciously and negligently placed himself in its way, we are of the
opinion that, under all the attending circumstances, the failure to keep a proper lookout was
not the proximate cause of the injuries. The fact that pedestrians in large numbers were
accustomed to use the tracks between Reno and Sparks as a walkway would not excuse or
justify one of this class to voluntarily, for his own convenience or pleasure, run a velocipede
car thereon. If injury resulted, such person would have to bear the consequences of his own
wrong. Was plaintiff, who knew the traffic-movement rule, and who is not shown to be
excusably ignorant of his danger, to be placed in a better position than a mere stranger? It is
true the plaintiff may not have had in mind, as he testified, the switch engine and did not
expect any train to be coming toward him without a light, but it was this expectation that
proved to be disastrous. In excuse for not taking the proper track, it is urged that by the rules
of the company switching engines were permitted to run on either track, but, notwithstanding
this rule, the jury found that it was negligent for plaintiff to run his car on the track on which
he was injured. It is further insisted that the jury found that the plaintiff, as a reasonable man,
should have known, or expected, or had reason to expect, that the engine ought to comply
with the rule of the company and carry the prescribed light so as to warn plaintiff of danger
and the approach of the engine.
The effect of this finding is destroyed by the related finding that it was negligence on the
part of plaintiff, notwithstanding the rule, to run his car on the track on which he was
injured.
which he was injured. The plaintiff was not justified in relying upon any such rule, as the
result shows. If a person could implicitly rely upon the company's employees performing their
duties, and if such reliance would excuse the plaintiff from using precautions for his own
protection, then there could be no room whatever for the application of the doctrine of
contributory negligence.
Was the act or omission complained of of such character as to preclude the defense of
contributory negligence? We have before us a cold, unimaginative record. The collision of
the car and engine was not of an unusual or remarkable character. The jury attributed the
injuries to the negligence of both contending parties. But it is insisted that the defendant's act
or omission transcended the bounds of negligence and became a wanton, wilful act
perpetrated in reckless disregard of plaintiff's safety. The cases that have undertaken to define
in abstract terms wanton or wilful conduct are legion. Before a court of review should so
denominate any conduct it should be sure it has before it the judgment of a jury on that
question. I. C. R. R. Co. v. Klein, 95 Ill. App. 231; Denny v. Chicago R. I. & P. Ry. Co., 150
Iowa, 460, 130 N. W. 364.
5. In response to the inquiry for a special finding in respect to the character of the
defendant's negligence, the jury were asked: Q. If you find that plaintiff's injuries were
caused by the negligence of defendant or its employees, was such negligence gross or wanton
or with a careless disregard for the safety of plaintiff, or aggravated misconduct? The jury
found: Careless disregard. This finding rebuts the assumption that the act complained of
was wilful, wanton or aggravated misconduct, or reckless disregard of plaintiff's
safety.
Our conclusion is that the special findings of facts made by the jury are inconsistent with
their general verdict.
The order and judgment appealed from are reversed. The cause is remanded for a new
trial.
It is so ordered.
McCarran, C. J.: I concur in the order.
Per Curiam:
Rehearing denied.
____________
42 Nev. 111, 111 (1918) Walser v. Moran
[No. 2320]
MARK WALSER and FRANK MARGRAVE, Petitioners, v. THOMAS F. MORAN, as
District Judge of the Second Judicial District of the State of Nevada, Respondent.
[173 Pac. 1149; 180 Pac. 492]
1. PleadingNatureStatutory Authority.
The only source of authority for any pleading and the rules for the construction thereof are drawn from
the practice act.
2. ActionJoinder of Causes of ActionAuthorityPractice Act.
Two or more causes of action cannot be united in the same complaint, unless the joinder is authorized by
the practice act.
3. ActionJoinder of Separate Causes of ActionConstruction of Statute.
Practice act, sec. 97, specifying cases in which two or more causes can be joined in same complaint, is to
be liberally construed, with a view to effect its object.
4. ProhibitionNatureCorrecting Errors.
The office of the writ of prohibition is not to correct errors, but to prevent courts from transcending the
limitation of their jurisdiction in exercise of judicial power.
5. StatutesConstructionRegulation of Existing Right by Negative Words.
Where an existing right or privilege is subject to regulation by a statute in negative words, the mode so
prescribed is imperative.
6. ProhibitionExcess of JurisdictionStatutory Restrictions.
Where a statute has imposed restrictions under which a court may act in matters otherwise within its
jurisdiction, and those restrictions are disregarded, the party aggrieved may have a remedy by prohibition.
7. ProhibitionIrregularities in Exercise of Inherent Authority.
There is no remedy by prohibition for the correction of errors or a mere irregularity in the exercise of an
authority inherent in a court.
8. PleadingDemurrerAdmissionsMisjoinder.
A demurrer to a complaint for misjoinder of causes of action concedes that the complaint states two or
more good causes of action.
9. ActionSeparate Causes of ActionArising Out of Contract.
A complaint stating five causes of action, the first being for breach of employment contract, the second
and third being for shares of stock alleged to have been acquired by defendants in virtue of their
contractual relationship with plaintiff, or for value thereof, and fifth for a discovery and accounting from
defendants of all their dealings with certain property of plaintiffs intrusted to them under an executory
contract, is not bad for misjoinder; all such causes of action arising out of contract and being authorized by
practice act, sec. 97, subd. 1, permitting several causes of action to be united in same complaint, when
arising out of contract, express or implied.
10. ActionJoinder of Causes of ActionCommon Liability of Defendants.
A complaint alleging a defendant acquired a part of plaintiffs' property under a contract as their attorney,
and that a contract with another defendant, whereby latter was to receive a portion of plaintiffs' property,
was void in its inception, because fraudulent, and praying for damages for defendants' failure to protect
such property from loss, is bad, because it does not state cause of action against both defendants; the
defendants being jointly liable, if at all, and the complaint showing on its face that latter defendant had no
interest in property, and hence no duty of protecting it from loss.
11. Principal and AgentLiability of AgentAccounting.
An agent can be brought to account with his principal for moneys and property received in transaction
arising out of agency relationship.
12. Pleadinginconsistent ReliefRescission of ContractDamages for Breach.
Plaintiff in equity action will not be permitted to rescind a contract for fraud, and, failing in this, to
recover damages for breach, and relief for violation of fiduciary obligation created by the contract; such
relief being inconsistent.
On Rehearing
1. PleadingComplaintSufficiencyCivil Practice Act.
However strong grievances or wrongs may appeal to the conscience of the chancellor for correction and
relief, averments and allegations thereof, however varied they may be, make a sufficient complaint only
when squaring with the rules of the civil practice act.
2. PleadingsComplaintStatement of Cause of ActionRelief.
Plaintiff is required to state in his complaint facts which constitute his cause of action and nothing more.
3. ActionImproper JoinderSingle Cause of Action.
The formal chancery bills for accounting, discovery, and the like are no longer used, but the remedies are
preserved, and, conceding a complaint to be a good specimen of a bill in equity, nevertheless, if it states but
one cause of action, whatever else it may contain, the defendant cannot successfully demur on the ground
of improper uniting of several causes.
4. ActionSingle Cause of Action.
A complaint reciting one connected history of the property affected by an agreement through a series of
acts on the part of defendants which contributed to and culminated in the alleged injuries to plaintiffs,
showing defendants have a connected and common interest in the one subject-matter of the action, and
charging the defendants with an inexcusable disregard of a duty voluntarily assumed by their contract,
while showing defendants as much liable in damages for negligent breach of contract as for violation of a
trust, constitutes but one cause of action.
5. ActionAction Ex Contractu or Ex Delicto.
Where the law imposes a duty arising from the relation rather than the contract, and there is a breach of
duty, the aggrieved party may sue in trespass on the case, but if there be no legal duty, except arising from
the contract, there can be no election, and the party must rely upon the agreement alone, although in either
case the complaint may be required to lay a previous ground by showing a contract.
6. ActionMisjoinder of Causes of ActionContract and Tort.
The averment of negligence in the first cause of action and fraudulent dealings in the second and
subsequent causes held to amount to substantial allegations of breach of agreement, and not tort, and hence
there was no misjoinder.
7. ActionPrayerMisjoinder of Causes.
Plaintiffs are entitled to such relief as they establish upon proper proof of alleged facts, and the prayer for
judgment is not demurrable as asking relief upon both tort and contract.
Petition for writ of prohibition by Mark Walser and another against Thomas F. Moran, as
District Judge of the Second Judicial District of the State of Nevada. Writ granted.
On rehearing, opinion granting writ of prohibition reversed, demurrer to petition
sustained, alternative writ discharged, and proceeding dismissed.
Cheney, Downer, Price & Hawkins, for Petitioners:
The practice act alone prescribes the rules by which the sufficiency of pleadings shall be
determined. Rev.
Laws, 5036; McKim v. District Court, 33 Nev. 44. Only causes of action can be joined which
the statute authorizes. State v. Yellow Jacket S. M. Co., 14 Nev. 220. All of the causes joined
must belong to one of the classes created by the statute. Rev. Laws, 5039; 14 St. Enc. Proc.
671; 1 C. J. 1074, 1077, 1081; De Wolfe v. Abraham, 45 N. E. 455; Stark v. Wellman, 31
Pac. 259; Thelin v. Stewart, 34 Pac. 861; Gardner v. Ogden, 22 N. Y. 326. The causes
authorized to be joined must also affect all the parties to the action. Rev. Laws, 5039; State
v. Kruttschnitt, 4 Nev. 179, 214. In most states, but not in Nevada, causes of action when they
arise out of the same transaction, or are connected with the same subject of action, may be
united. 14 St. Enc. Proc. 671; 1 C. J. 1081; Jasper v. Hazen, 51 N. W. 583; Wiles v. Suydam,
64 N. Y. 173; Bran v. Christopher, 151 Pac. 172; Hannahs v. Hammond, 19 N. Y. Supp. 883.
It is only actions for causes which are authorized to be united in one complaint that the
court has power to order consolidated. Rev. Laws, 4578; 5 St. Enc. Proc. 255, 272.
A demurrer to a complaint for an improper uniting of causes of action goes to the
complaint as a whole, and the only course of plaintiff thereon is to file an amended complaint,
leaving out the objectionable causes of action. State v. Williams, 77 Pac. 965, 972;
Alexander v. Thacker, 46 N. W. 825. If plaintiff declines to amend by electing which action
he will prosecute, it is proper to enter a judgment for the defendant to the effect that plaintiff
take nothing by the action. Johnson v. Seattle Elec. Co., 81 Pac. 705.
An order overruling a demurrer is deemed to have been excepted to. Rev. Laws, 5318.
The act of 1915, page 164, in reference to bills of exceptions, has no application to an order
which is deemed excepted to, where the order constitutes a part of the judgment roll. An
order constituting a part of the judgment roll and deemed excepted to by the statute will be
reviewed upon appeal without a bill of exceptions. Davis v. Honey Lake W. Co., 33 Pac.
Honey Lake W. Co., 33 Pac. 270; Hawley v. Kocher, 55 Pac. 696; Alpers v. Bliss, 79 Pac.
171.
In prohibition proceedings, the primary question is whether it is a case where there is no
plain, speedy, and adequate remedy in the ordinary course of law. State v. District Court, 38
Nev. 323. But the concurrent remedy is not regarded as adequate so as to prevent the issuing
of the writ if it does not afford the particular right to the party aggrieved, or if its slowness is
likely to produce immediate injury or mischief. 32 Cyc. 617; Bell v. District court, 28 Nev.
280; State v. District Court, 146 Pac. 743. The statute does not say that the writ will not
issue in any case where there is an appeal. There must not only be a right of appeal, but the
appeal must furnish some adequate remedy, in order to prevent the issuance of the writ.
Havemeyer v. Superior Court, 24 Pac. 121; Reclamation District v. Superior Court, 154 Pac.
845; Ex Parte Montgomery L. & T. Co., 65 So. 403; White v. Superior Court, 58 Pac. 450.
The writ should issue for the furtherance of justice and security, and for regularity in
judicial proceedings, in cases where none of the ordinary remedies provided by law are
applicable. Walcott v. Wells, 21 Nev. 51. The writ should freely issue whenever it is
necessary for the protection of the rights of a litigant, and he has no plain, speedy and
adequate remedy. Silver Peak v. District Court, 33 Nev. 124.
A writ of prohibition may properly issue where a court, although having conceded
jurisdiction of the parties and the subject-matter of a cause, is proceeding therein to do
something in excess of its jurisdiction. Rev. Laws, 5703. If the inferior tribunal is assuming
to act where it has no jurisdiction of the subject-matter of the proceeding, or if it has
jurisdiction thereof, but is exceeding its legitimate powers in the particular matter, the writ
will lie. 32 Cyc. 605; Bruner v. Superior Court, 28 Pac. 341, 345; High, Extr. Legal Rem.,
3d ed., sec. 781; State v. Fort, 109 S. W. 737; State v. McQuillan, 165 S. W. 713; Carter v.
Bolster, 9S S. W. 105. "A court that proceeds in the trial of a cause against the express
prohibition of a statute is exceeding its jurisdiction and may be prevented by prohibition
from this court." Hayne v. Justice Court, 23 Pac.
98 S. W. 105. A court that proceeds in the trial of a cause against the express prohibition of
a statute is exceeding its jurisdiction and may be prevented by prohibition from this court.
Hayne v. Justice Court, 23 Pac. 125.
Prohibition is as properly granted where the inferior court acts upon a false view of the
law fixing its jurisdiction or a misconstruction of a statute conferring jurisdiction, as where it
arbitrarily usurps jurisdiction in total disregard of law. Baldwin v. Cooley, 1 S. C. 256;
Thomas v. Mead, 36 Mo. 232; State v. Superior Court, 36 Pac. 443; State v. Clendenning,
112 N. E. 1029; State v. Kimmel, 183 S. W. 651.
The rule that consent cannot give jurisdiction is subject to the qualification that the parties
may waive rights and privileges and authorize the court to do what it could not do without
their consent. 11 Cyc. 675; Treadway v. Wilder, 12 Nev. 108; McComb v. District Court, 36
Nev. 417.
It is not claimed that legal and equitable cause of action may not be united in one action, if
they belong to any one of the classes which the legislature has said may be united, and affect
all parties to the suit. The statute which classified the causes of action which may be united
prohibits the joining of those not authorized by it. State v. Yellow Jacket S. M. Co., 14 Nev.
237. Where it appears by uncontested facts that causes of action are improperly united, the
court has no discretion in the matter, and the lack of discretion is the main test whether its
action in trying the cause upon this complaint is in excess of its jurisdiction. Bruner v.
Superior Court, 28 Pac. 341.
It would be going a great way for this court to say defendant is not injured by being sued
in a mode not only not authorized, but, if he object, expressly forbidden by the statute. Stark
v. Wellman, 31 Pac. 260.
The distinction between actions growing out of a contract and those arising from tort, this
court has said, is as necessary to be maintained under our system of pleading as it was at
common law.
is as necessary to be maintained under our system of pleading as it was at common law.
Knickerbocker & N. S. M. Co. v. Hall, 3 Nev. 196.
Norcross & Thatcher, for Respondent:
The complaint states but one cause of action, although several different kinds of relief are
asked for. Alexander v. Winters, 24 Nev. 143. The other causes of action are equitable in
character, and admittedly could be joined together in one action, and they can be joined with
the first cause of action. The character of the relief demanded is not a test for the
determination of the proper joinder of actions.
There is but one cause of action. A declaration, complaint or petition by which name the
pleading may be designated under the prevailing practice, which seeks to enforce the remedial
right arising from the infringement of the single primary right by a single wrong constitutes
but one cause of action. * * * 23 Cyc. 380. It is not necessary that the wrong shall consist of
a single act, or that the resulting injuries consist of but a single element; and the amount
sought to be recovered may be made up of several items. Under these principles but a single
cause of action is stated in the petition seeking the enforcement of a single contract. 23 Cyc.
381.
A joinder takes place on contract when separate and independent contracts are set forth
separately as causes of action, and there is no joinder when all that is sought is separate relief
for each separate breach of one contract. 23 Cyc. 283, 284, 383, 385.
The writ of prohibition is to be issued only in cases of extreme necessity, and where wrong,
damage, and injustice are likely to follow the action of the inferior tribunal. Lonkey v. Wells,
16 Nev. 271; Gardner v. Gardner, 23 Nev. 207; Low v. Crown Point M. Co., 2 Nev. 75;
Walcott v. Wells, 21 Nev. 51; Turner v. Langan, 29 Nev. 281; State v. District Court, 28 Nev.
323. By the Court, Sanders, J.:
By the Court, Sanders, J.:
The petitioners ask for writ of prohibition to restrain the Second judicial court of the State
of Nevada, in and for the county of Washoe, from proceeding to try a civil action pending
therein against the petitioners, upon the ground that the said court, unless restrained, will
transcend the limits of its jurisdiction. Upon the filing of the petition an order to show cause
was issued, and the return thereon consists of a general demurrer and answer; both raising the
question whether the facts alleged show any excess of jurisdiction for which the petitioners
have no other adequate remedy. Rev. Laws, 5708, 5709. It appears that the petitioners
interposed a joint and separate demurrer to the complaint, which was overruled, and, instead
of answering, as required by the court's order, they have applied for this writ.
Though other questions are ably discussed, the only one to be considered in this
proceeding is the propriety of our granting the writ, in view of the long line of decisions
holding that the writ ought not to issue where there is another and adequate remedy. Unless
the case as made by the petition is to be distinguished from those cases, we should hesitate to
entertain this application. That portion of the demurrer material here, and to which this
inquiry is directed, is that there is a misjoinder of causes of action in the complaint, in that it
attempts to set forth:
(a) A cause of action on an express contract; (b) a claim against specific personal
property; (c) a claim against a trust by virtue of a contract, or by operation of lawwhich
said causes of action, so stated, belong to more than one of the classes which may be joined in
the same action and do not affect all the parties to the action.
1, 2. The demurrer involves a discussion of section 97 of our practice act (Rev. Laws,
5039) which permits causes of action to be united when they all belong to one only of the
seven subdivisions enumerated in the section and affect all the parties to the action.
and affect all the parties to the action. The only source of authority for any pleading, and the
rules for the construction thereof, are drawn from our practice act. It provides that all the
forms of pleading in civil actions and the rules by which the pleadings shall be determined
shall be those prescribed by the act. Rev. Laws, 5036. It also provides that in the construction
of a pleading, for the purpose of determining its effect, its allegations shall be construed with
a view to substantial justice between the parties. Rev. Laws, 5065. We are mindful that our
constitution and statute have broken down the barrier of the common law, in so far as the
form of a civil action is concerned. Rev. Laws, 329, 4943. Nevertheless, parties must find
their authority for the form of their pleading in the practice act. Rev. Laws, 5036. It is the
general rule that a complaint shall contain but a single cause of action (14 Standard Ency.
Proc. 668), and two or more causes of action cannot be united in the same complaint, unless
the joinder is authorized by the practice act (State v. Yellow Jacket S. M. Co., 14 Nev. 220;
Dyer v. Barstow, 50 Cal. 652).
3. Section 97 of the practice act provides:
The plaintiff may unite several causes of action in the same complaint, when they all arise
out of:
1. Contract, express or implied; or * * *
3. Claims to recover specific personal property, with or without damages for the
withholding thereof; or
4. Claims against a trustee, by virtue of a contract, or by operation of law; * * *
But the causes of action so united shall all belong to only one of these classes and shall
affect all the parties to the action, and not require different places of trial, and shall be
separately stated. * * *
The object of this section is said to be to avoid a multiplicity of actions, and is entitled to a
liberal construction, with a view to effect its object. State Bank v. Lanam, 34 Okl. 485, 126
Pac. 220; Cincinnati, etc., R. Co. v. Cooke, 37 Ohio St. 265. But a legitimate construction
will not permit of causes of action being united contrary to the limitations or restrictions
contained in the act.
contrary to the limitations or restrictions contained in the act. The general purposes of its
limitations is to secure and maintain a regular and orderly administration of justice. Their
particular purpose is to avoid a multiplicity of distinct grievances, diverse and incongruous
matters, whereby a defendant would be subjected to the embarrassment and difficulty of
meeting on the trial widely different issues. Horton v. Equitable Life A. Society, 35 Misc.
Rep. 495, 71 N. Y. Supp. 1060. But a party who seeks to take advantage of its limitations is
not entitled to such technical construction of the pleading as would defeat the general object
of the privilege afforded the complainant.
4-6. If the pleading in this case were attacked on one of the general grounds of demurrer,
such as that it fails to state facts sufficient to constitute a cause of action, there would be
much force to this contention. State v. District Court, 38 Nev. 323, 149 Pac. 178. Properly
speaking, the office of the writ of prohibition is not to correct errors, but to prevent courts
from transcending the limitation of their jurisdiction in the exercise of judicial power. Low v.
Crown Point M. Co., 2 Nev. 75. The limitations are negative in character, and expressive of
the legislative intent that a party who seeks to avail himself of the privilege to unite his causes
of action must square his pleading with the rules prescribed by the practice act. State v.
Yellow jacket S. M. Co., supra. Where an existing right or privilege is subject to regulation
by a statute in negative words, the mode so prescribed is imperative (2 Lewis's Sutherland,
Stats. Constr. 633); and where a statute has imposed restrictions under which a court, or judge
thereof, may act in matters otherwise within its jurisdiction, and those restrictions are
disregarded, the party aggrieved may have a remedy by prohibition (People ex rel. v. Nichols,
79 N. Y. 591; Quimbo Appo v. People, 20 N. Y. 531).
7. We do not apprehend that the rule stated extends to the correction of errors for a mere
irregularity in the exercise of an authority inherent in a court; but, where an authority
otherwise inherent is limited by statute, the court which acts differently from the
prescription of the act exceeds its jurisdiction, and is therefore liable to prohibition.
an authority otherwise inherent is limited by statute, the court which acts differently from the
prescription of the act exceeds its jurisdiction, and is therefore liable to prohibition.
McDonald v. Elfe, 1 Nott & McC. (S. C.) 504. Unquestionably a court that proceeds in the
trial of a cause against the express prohibition of a statute exceeds its jurisdiction. Hayne v.
Justice Court, 82 Cal. 284, 23 Pac. 125, 16 Am. St. Rep. 114.
8. Entertaining the views the question remains: Has the respondent exceeded the limits of
its jurisdiction in proceeding with the trial of this cause contrary to the prohibitions contained
in section 97 of our practice act? A demurrer to a complaint for misjoinder of causes of action
involves the concession that it states two or more good causes of action. Pomeroy's Code
Rem., sec. 342. We shall therefore consider the grounds of the demurrer upon this
assumption, without expressing any opinion as to the legal sufficiency of either of the causes
of action or upon the merits of this lawsuit.
9. The complaint is too lengthy to allow of a minute synopsis of its allegations. It contains
five causes of action, separately stated, against both of the defendants, and we are of the
opinion that it states a cause of action aimed against one of the defendants, though not
separately stated. We have examined with care the able analysis of the facts stated in the
complaint made by counsel for the petitioners, without being able to reach the conclusion
contended for by them that the causes of action separately stated against both of the
defendants belong to more than one only of the classes enumerated in section 97. Therefore
we conclude that the demurrer to the petition on this particular ground should be sustained. In
view of that lack of certainty and definiteness which should characterize a pleading that seeks
redress for numerous wrongs of a different nature and various remedies adopted to meet the
circumstances of the case, we have reached this conclusion with some misgivings as to its
correctness; and as the point discussed is likely to have some material bearing on further
proceedings in the cause, we shall state briefly our views of the pleading.
proceedings in the cause, we shall state briefly our views of the pleading.
The first cause of action is confessedly to recover from the defendants $30,000 as damages
for the breach of a contract of employment. The second and third causes of action are to
establish the plaintiffs' alleged right to a specific portion of a number of shares of valuable
mining stock in different companies, alleged to have been acquired and held by the
defendants in virtue of their contractual relationship with the plaintiffs, and in the event that
the stock cannot be delivered that plaintiffs be given judgment for its value, aggregating the
sum of $209,233. The fourth cause of action is not discussed. The fifth cause of action seeks
a discovery and an accounting from the defendants of all their dealings with certain property
of the plaintiffs intrusted to them under an executory contract. Fraud is charged in the
creation of the contractual relation between the plaintiffs and the defendant Margrave. This
feature of the pleading will be dealt with in the discussion of that portion of the demurrer
which states that the causes of action did not affect all the parties. Fraud and deceit are also
charged in the management and disposition of the property embraced in the contract.
The defendants, in so far as they are jointly liable, are proceeded against as agents, and not
as trustees. The second and following causes of action disclose such wilful violation of the
fiduciary relationship between the parties imposed by the contract that it would be
unconscionable for the defendants to withhold from plaintiffs their alleged portion of all of
the property in any manner acquired in virtue of their contractual relations. Contract, then,
being the foundation of the duties imposed upon the defendants, it is clear that the breach of
those duties must be regarded as arising out of contract and therefore as within subdivision 1
of section 97, which embraces all causes of action arising out of contract, either express or
implied. But it does not follow that the complaint contains but one cause of action. We are
impressed that it clearly discloses, and that it was the intention of the pleader to state,
independent and distinct causes of action.
are impressed that it clearly discloses, and that it was the intention of the pleader to state,
independent and distinct causes of action. Should the defendants be brought to trial on the
pleading as it now stands they would be entitled to all the advantages incident to a pleading
that contains two or more causes of action properly joined.
Another more difficult question remains to be considered. An objection is stated in the
demurrer that the causes of action do not affect both of the defendants. This branch of the
demurrer is both difficult and perplexing, because of the appetite of the pleader. A technical
construction of the pleading involves a multitude of subjects, parties, contract, tort, fraud,
deceit, damages, agencies, nondisclosure, trust in invitum, voluntary trust, discovery,
accounting, receivers, and injunction. When, however, the pleading is denuded of its narrative
averments, it affirmatively appears that on December 21, 1912, the defendant Walser was
employed by plaintiffs in his professional capacity as an attorney at law, and in the contract of
employment he was constituted the plaintiffs' attorney in fact to reduce to possession, by
litigation or otherwise, all of plaintiffs' rights and interests, vested or contingent, in certain
mining companies and properties named in the contract, without cost or expense to plaintiffs.
As compensation for his services, the plaintiffs by the contract of employment sold and
conveyed to the said defendant, his heirs or assigns, an undivided two-thirds interest in all of
the property embraced in the contract and it was expressly stipulated therein that the plaintiffs
were to receive one-third of everything recovered under the contract.
At or about the time the contract was executed, it is charged that the defendant Walser
falsely and fraudulently represented to plaintiffs that it would require large sums of money to
accomplish the purposes of the agreement, and falsely and fraudulently represented that it
would be necessary to have associated with him one of sufficient means to do the things
required of him to be done under the contract, and that he falsely and fraudulently
represented that his codefendant Margrave was such person.
one of sufficient means to do the things required of him to be done under the contract, and
that he falsely and fraudulently represented that his codefendant Margrave was such person. It
is charged that the defendant Margrave knew of the false and fraudulent representations made
by his codefendant as to his financial ability, and acquiesced therein. It appears that the
defendant Walser represented at this time that it was necessary that plaintiffs sell, assign, and
transfer to Walser a two-thirds interest in the property, because of and in consideration of the
money to be advanced by Margrave, for which consideration he (Walser) would have to
convey to Margrave a one-third interest in the contract; that thereafter the defendant Walser,
by a purported assignment in writing, attempted to convey to Margrave an undivided
one-third interest of all the rights of the plaintiffs in all the property named in the contract
with Walser.
It is charged, as a conclusion, that by reason of the false and fraudulent representations of
the defendants, and that by reason of the fact that the defendant Margrave at the time of the
representations was without any money whatever, the sale to Walser of more than a one-third
interest in plaintiffs' property named in the contract was without any consideration whatever.
It appears that the defendant Margrave acted with his codefendant Walser under the contract
as owner of a one-third interest in the property of plaintiffs, and in the course of their joint
dealings under the contract there came under the control of the defendants 291,000 shares of
stock in one of the companies named in the contract. It is the prayer of the complainants that
they be given judgment for the sum of $30,000, as damages against the defendants for their
failure and neglect of duty in not protecting from loss property intrusted to them in virtue of
the contract of December 21, 1912. We do not apprehend that it is the contention of plaintiffs
that a joint and several judgment could be had against the defendants under the pleading in its
present form. The defendants are jointly liable, or not at all, for the breach of duty
complained of.
at all, for the breach of duty complained of. If, then, on the face of the complaint, it should
appear that the defendants are not jointly liable for the loss of the stock as alleged, and no
several judgment could be had against them, no legal reason is suggested why they, or either
of them, should be subjected to the cost and inconvenience of a trial on the first cause of
action. If the facts as above outlined be true, they clearly negative any duty or promise on the
part of the defendant Margrave to protect the plaintiffs' property from loss.
It is charged that that particular portion of the contract whereby Margrave acquired an
interest in its subject-matter was fraudulent in its inception, and that by reason of the fraud
perpetrated by his codefendant Walser, and acquiesced in by him, he became the owner of a
one-third interest in the contract, that all of his acts in conjunction with his codefendant's
were tortious, and that the alleged attempted assignment to him of a one-third interest in the
property embraced in the contract was without consideration; and the plaintiffs demand
judgment that they be decreed owners of one-half of the two-thirds interest originally sold and
conveyed to Walser under the contract. The effect of the relief demanded is to repudiate and
disavow Margrave's interest in any of the property alleged to have been acquired by the
defendants under the contract. The effect of these allegations is equivalent to an admission
that Margrave owed no duty to plaintiffs to protect their property from loss. The relation
between the plaintiffs and the defendant Walser was of a fiduciary character; that of the
defendant Margrave was tortious; yet it is sought to mulct him in damages for the breach of a
fiduciary duty, when it clearly appears that none is shown, but, on the contrary, is expressly
disaffirmed.
10. It is just such a situation as this that section 97 of the practice act is designed to meet.
Why should the defendant Margrave be subject to the cost, inconvenience and necessity of
resisting an action against him which could result only in a voidable judgment? Under the
liberal rule of construction enjoined for the purpose of determining the effect of a
pleading {Rev. Laws, 5065), we uphold the causes of action separately stated in the
complaint upon the ground that they were founded upon a contract equally binding under
the circumstances upon both of the parties defendant.
the liberal rule of construction enjoined for the purpose of determining the effect of a
pleading (Rev. Laws, 5065), we uphold the causes of action separately stated in the complaint
upon the ground that they were founded upon a contract equally binding under the
circumstances upon both of the parties defendant. But this conclusion does not deprive the
defendant Margrave of the benefit of his demurrer upon the ground that the causes of action
do not affect both of the defendants.
11. It is obvious that by the fifth cause of action the plaintiffs seek an accounting from the
defendants upon the ground of their fiduciary relation arising from their original contractual
relation. That an agent, or one standing in such relation, can be brought to account with his
principal for moneys and property received cannot be doubted; but in order to uphold said
action it must appear that the transaction arose out of such relation. If, therefore, no such
contractual relation existed between the plaintiffs and the defendant Margrave as created a
confidential or trust relation, but, on the contrary, one tortious in its nature, there should be
judgment for the defendants on the demurrer.
But it is strenuously urged that as one of the causes of action is at law and the others are
equitable in their nature, and a court of equity having acquired jurisdiction over the parties
and the subject-matter, and as the relief obviously extends to property in the hands of both
defendants, equity will settle and adjust in a single action all the rights and interests incapable
of being tried and disposed of by a single judgment at law. We are not called upon to
determine whether the causes of action separately stated and the one intermingled therewith
are properly joinable under the old equity practice. The petitioners are here litigating a rule of
pleadingone that negatives and limits the general power or authority of the respondent
court in a proceeding under it. In the case of State v. Yellow Jacket S. M. Co., supra, the
question was asked: "Is our code 'the only source of authority from which rules of pleading
may be drawn, and have its methods so completely supplanted those which preceded it
that the latter can no longer be appealed to as possessing of themselves any force and
authority?'"
Is our code the only source of authority from which rules of pleading may be drawn, and
have its methods so completely supplanted those which preceded it that the latter can no
longer be appealed to as possessing of themselves any force and authority?'
The court answered this question by holding that a complaint, answer, or demurrer is
sufficient when it squares with the rules prescribed by the practice act, and not otherwise. But
regardless of the statute, we have been referred to no rule of practice, at law or in equity,
which justifies the course of the plaintiffs in this action. It is true that section 97 does not
provide that causes of action, to be united, must be consistent; but it is obvious that the
complainants state a cause of action for the breach of a contract and a distinct and
independent cause of action for fraud in its procurement. This fraud is blended and
intermingled with the whole structure of the complaint, and each of its causes of action, so
much so that by reason thereof the plaintiffs were induced to demand its rescission in part as
to both of the defendants and in its entirety as to one of the defendants, and that two-thirds of
the property acquired under it be decreed to be that of the plaintiffs, and in case the contract
be not rescinded, that the defendants be held jointly liable, both at law and in equity, for its
breach.
12. We are aware that a court of equity is ever the master of frauds and that its doors stand
open to relief against it; but it would be unjust for the plaintiffs to try the experiment in this
action of rescinding the contract for fraud in its procurement, and, failing in this, to recover
damages at law for its breach and relief in equity for the violation of a fiduciary obligation
implied from the contractual relationship of the parties created by the contract. One of these
positions negatives the other. Though the plaintiff is not confined to one kind of relief, yet
each prayed for, though differing in character, should be consistent. The principle that forbids
the union of inconsistent causes of action should prevent a demand for inconsistent relief
in any one cause.
union of inconsistent causes of action should prevent a demand for inconsistent relief in any
one cause. Bliss on Code Pleadings, sec. 164.
We are of the opinion that the rule of pleading prescribed by section 97, designed as it is
for the regular and orderly administration of justice, is not to be departed from; and as the
writ of prohibition is designed to prevent the violation of some fundamental principle of
justice or the transgression of the bounds prescribed by law, should the respondent undertake
to try this cause on the pleading in its present form, it would proceed against the spirit and the
letter of the statute, and the writ as applied for should be granted.
It is so ordered.
McCarran, C. J., concurring in the order:
I concur in the order, and in so much of the opinion of Mr. Justice Sanders as supports the
issuance of the writ by reason of the failure of the causes of action to affect both of the
defendants. I am not in accord with the views of Mr. Justice Sanders as expressed in his
opinion relative to the question of misjoinder of causes of action. Having originally prepared
a tentative opinion for the court, in which I dealt exclusively with two questions involved in
this proceeding, I deem the matter of sufficient importance to annex my opinion, together
with a statement of facts essential to a clear understanding of the pleadings and principles
involved.
Statement of the Facts
The complaint sets up five causes of action. By the first cause of action it is related that
during the year 1912, and prior to the 2d day of July of that year, the plaintiffs, R. S. Page and
Marie Olive Page, had invested in and had loaned or advanced for the benefit of the Indian
Consolidated Mines Company the sum of $10,000, on account of which investment and
advances the Pages became the owners of, or asserted ownership to, a large amount of the
capital stock of the Indian Consolidated Mines Company and other mining property and
interests at the town of Rochester, county of Humboldt, State of Nevada.
of Nevada. On or about the 2d day of July, 1912, the Pages consulted with Mark Walser, an
attorney at law, and one of the defendants here, relative to their rights in the Indian
Consolidated and other property interests in and about Rochester. Walser advised suit and
accepted a retainer of $150 for the institution of the same.
During the month of September, 1912, it is alleged: That Walser, as attorney for the
plaintiffs, advised that proceedings be instituted in the United States District Court, at Carson
City, for the purpose of having the Indian Consolidated Company declared insolvent and
bankrupt. This advice appears also to have applied to the Limerick Consolidated Mines
Company and the Little Indian Mining Company, in all of which the Pages were more or less
interested. That on such advice Walser received from the Pages the sum of $180 for the
purpose of accomplishing the results advised. On the 21st day of December, 1912, it is
alleged that Walser advised that he could settle all disputes between the Pages and the Indian
Consolidated Company, and upon such advice the Pages entered into a written agreement
with Walser, as their attorney, by the terms of which the Pages assigned, sold, and conveyed
to him an undivided two-thirds of their interest in and to all stocks, claims, debts, or
demands, whether vested or prospective, in the Indian Consolidated Mines Company of South
Dakota, the Indian Consolidated Mines Company of Nevada, the Limerick Mines Company,
and the Limerick town site, and appointed and instituted Walser their attorney in fact, for the
purpose of representing them in any action at law or otherwise, or in any proceeding
necessary to reduce their interests to possession.
By the terms of this agreement Walser was to commence and maintain such actions at law
as might be necessary to clear the title to the interests owned by plaintiffs, or which they
claimed to be entitled to, in the several companies mentioned in the contract, such actions to
be carried on at the expense of Walser; he further agreeing to defend all actions that might be
instituted against the plaintiffs by reason of their interests in the said companies or their
connection therewith, and at his own expense to protect the property, free it from liens,
and protect it from other claimants, the contract further providing that the Pages were to
have an undivided one-third interest in and to everything recovered from or on account of
the rights or interests which they had in any or all of the several companies named in the
contract.
instituted against the plaintiffs by reason of their interests in the said companies or their
connection therewith, and at his own expense to protect the property, free it from liens, and
protect it from other claimants, the contract further providing that the Pages were to have an
undivided one-third interest in and to everything recovered from or on account of the rights or
interests which they had in any or all of the several companies named in the contract.
It is alleged that at the time of the execution of this contract the defendant Walser made
false and fraudulent representations to the Pages to the effect that in order to conduct the
litigation, or other proceedings or negotiations, necessary to establish the rights of plaintiffs
and reduce the same to possession, large expense would necessarily be incurred, and that it
would be necessary for him to have associated with him a man of considerable means, who
would advance the money necessary to carry on such litigation, negotiations, or dealings
necessary to establish the interests of plaintiffs and reduce the same to possession. It is
alleged that Walser then and there introduced his codefendant in this action, Frank Margrave,
to the Pages, representing that Margrave was a man of means and possessed the necessary
finances to carry on such litigation and other negotiations or dealings to accomplish the
purpose of the agreement.
There are a number of allegations in the first cause of action as to the false and fraudulent
representations alleged to have been made by Walser relative to the financial standing of
Margrave. By the representations it is alleged that the Pages were led into the sale,
assignment, and transfer of two-thirds of their interest and property rights in the various
companies mentioned in the agreement. There is also an allegation as to the act of the
defendant Walser in attempting to assign to Margrave one-third of the interests acquired by
him. It is alleged that on the 21st day of December, and at or about the time of the execution
of this agreement, Walser demanded of plaintiffs, and as their attorney informed
plaintiffs, that it would be necessary for him to have in his possession all of the stocks and
securities of the plaintiffs in and to all of the mining properties mentioned in the
agreement, and, by reason of the demand and representation thus made by Walser, the
Pages delivered to him stocks in the mining companies mentioned, to the amount of
6S9,000 shares, besides other securities, inclusive of 6,000 shares of the capital stock of
the Limerick Consolidated Mines Company.
or about the time of the execution of this agreement, Walser demanded of plaintiffs, and as
their attorney informed plaintiffs, that it would be necessary for him to have in his possession
all of the stocks and securities of the plaintiffs in and to all of the mining properties
mentioned in the agreement, and, by reason of the demand and representation thus made by
Walser, the Pages delivered to him stocks in the mining companies mentioned, to the amount
of 689,000 shares, besides other securities, inclusive of 6,000 shares of the capital stock of
the Limerick Consolidated Mines Company.
It is alleged that by virtue of the agreement the defendants Walser and Margrave came into
control of all the stock, property rights, and interest of all of the North Rochester Mines
Company, the same being the property of the Pages. It is alleged that in February, 1913, in
settlement of a dispute theretofore existing between the Limerick Consolidated Mines
Company and the North Rochester Mines Company, the latter conveyed to the former all its
right, title, and interest in and to the Limerick, Condee, and Plainview group of mining claims
at Rochester, in consideration for which conveyance the Limerick Consolidated Mines
Company agreed to issue and did issue to the North Rochester Mines Company 300,000
shares of the capital stock of the Limerick Consolidated, together with a cash payment of
$2,500, which said cash payment was upon the demand of Walser and Margrave paid directly
to them; that the receipt of this $2,500 was by Walser and Margrave kept from the knowledge
of the Pages, and the latter did not become apprised of the same until the month of February,
1917; that during the month of March, 1913, Walser, acting for the North Rochester Mines
Company, entered into an agreement to pool 291,000 shares of the Limerick Consolidated
Company's stock until September 15, 1913. It is alleged that at or about the time of the
making of the agreement between the Pages and Walser, the North Rochester Mines
Company had an outstanding indebtedness amounting approximately to $500; that at the
time of the making of the settlement between the North Rochester Mines Company and
the Limerick consolidated Mines Company it was agreed as part of the consideration that,
out of the $2,500 received by Walser and Margrave as representatives of the North
Rochester Mines Company, they would pay all of said outstanding indebtedness.
Company had an outstanding indebtedness amounting approximately to $500; that at the time
of the making of the settlement between the North Rochester Mines Company and the
Limerick consolidated Mines Company it was agreed as part of the consideration that, out of
the $2,500 received by Walser and Margrave as representatives of the North Rochester Mines
Company, they would pay all of said outstanding indebtedness.
The first cause of action then proceeds to set forth the institution of attachment
proceedings by an outstanding creditor of the North Rochester Mines Company, the levy of a
writ of execution on the 291,000 shares of the Limerick Consolidated, and the sale of the
same to satisfy the execution. it is alleged that Walser and Margrave at all times had full
knowledge of these proceedings, including the attachment, execution, and sale under
execution of the 291,000 shares of stock, but failed and neglected and refused to pay the
amount of the claim, or to pay the judgment, or to defend the action, and failed to notify the
Pages, or either of them, of the existence of such proceedings; and in this respect it is alleged
that the defendant Walser notified the Pages that the 291,000 shares of stock of the North
Rochester Consolidated was still in the hands of the pooling trustee under the pool agreement.
It is by reason of the loss accruing to the Pages, growing out of the attachment, execution, and
sale under execution of the 291,000 shares of stock of the North Rochester Mines Company,
that damages are claimed in the first cause of action for the sum of $30,000.
The second cause of action rests on the acquisition of certain shares of stock in the Nevada
Packard Mines Company by Walser and Margrave, which acquisition it is declared was
accomplished by the purchase of interests in other mining properties represented by stock of
the Nevada Packard Mines Company, which said purchase and interest was paid for out of the
$2,500 received by Walser and Margrave as a part consideration of the settlement between
the North Rochester Mines Company and the Limerick Consolidated.
The third cause of action rests on the acquisition by Walser and Margrave of certain shares
of stock in the Rochester Mammoth Mines Company, which acquisition, it is alleged, was
paid for by moneys received by Walser and Margrave in the settlement between the North
Rochester Mines Company and the Limerick Consolidated.
The fourth cause of action is or the recovery of 6,000 shares of the capital stock of the
Limerick Consolidated Mines Company, delivered by the Pages to Walser at his instance,
request, and demand, on the 21st day of December, 1912.
In the fifth cause of action it is alleged by virtue of the contract of December 21, 1912, and
by reason of the stocks and securities delivered to Walser by the Pages on that day, and by
reason of the matters and things directly growing out of the contract of that date, Walser and
Margrave have acquired large property interests in various unnamed mining companies,
operating in Rochester mining district, and have received on account thereof large sums of
money, none of which property interests or money so obtained have ever been accounted for
by defendants or either of them to plaintiffs, but, on the contrary, such have been kept by
defendants for their own use and benefit. The value of the property thus acquired is alleged to
be in the neighborhood of $200,000.
The plaintiffs pray for judgment for damages based on the first cause of action in the sum
of $30,000; for the delivery of 375,000 shares of the capital stock of the Nevada Packard
Mines Company, or, in the event such stock cannot be delivered, for the value thereof in the
sum of $191,250, based upon the second cause of action; for the delivery to plaintiffs of
177,333 shares of the capital stock of the Rochester Mammoth Mines Company, or, in the
event such stock cannot be delivered, for judgment in the sum of $17,733.30, the value
thereof, based on the third cause of action; for the delivery of 6,000 shares of the capital stock
of the Limerick Consolidated Mines Company, or, in the event delivery thereof cannot be
had, for the value thereof in the sum of $900, based upon the fourth cause of action.
thereof cannot be had, for the value thereof in the sum of $900, based upon the fourth cause
of action.
There is a fifth cause of action, in which, if we read the complaint correctly, plaintiffs seek
to require defendants to render an accounting of all other properties and moneys secured by
defendants by or through or by virtue of the contract of December 21, 1912.
A demurrer was interposed in the court below, on the ground that the causes of action in
the complaint set forth were improperly united, setting up, among other things, that there is a
misjoiner of causes of action in the complaint; and that it attempts to set forth: (a) A cause of
action upon express contract; (b) a claim to recover specific personal property; (c) a claim
against a trust by virtue of a contract or by operation of law. An order was made, overruling
the demurrer and directing the defendants to answer. A writ of prohibition was sued out in
this court by defendants to prohibit the trial court from proceeding further.
McCarran, C. J., after stating the facts:
The complaint filed in the district court in this matter set up five separate causes of action,
the first of which consists of thirty-four paragraphs relating the history of a contractual
relation established between the plaintiffs and the defendants, resulting, as it is averred, in a
failure on the part of the defendants to properly protect the interests of plaintiffs, by reason of
which said failure plaintiffs were damaged in the sum of $30,000. This first cause of action
may properly be said to be for damages arising out of failure to perform under express
contract. The second and third causes of action have as their object the establishment of a
trust relationship and the recovery of specific personal property or damages for conversion of
the same. The fourth cause of action has as its object the enforcement of a claim against a
trustee by virtue of a contract.
Section 97 of our civil practice act (Rev. Laws, 5039) is as follows: "The plaintiff may
unite several causes of action in the same complaint, when they all arise out of:
The plaintiff may unite several causes of action in the same complaint, when they all arise
out of:
1. Contracts, express or implied; or,
2. Claims to recover specific real property with or without damages for the withholding
thereof, or for waste committed thereon, and the rents and profits of the same; or,
3. Claims to recover specific personal property, with or without damages for the
withholding thereof; or,
4. Claims against a trustee, by virtue of a contract, or by operation of law; or,
5. Injuries to character; or,
6. Injuries to person; or,
7. Injuries to propertybut the causes of action so united shall all belong to only one of
these classes and shall affect all the parties to the action, and not require different places of
trial, and shall be separately stated; provided, however, that an action for malicious arrest and
prosecution, or either of them, may be united with an action for either injury to character or to
the person.
Section 98 of our civil practice act (Rev. Laws, 5040) provides:
The defendant may demur to the complaint within the time required in the summons to
answer, when it appears upon the face thereof, either:
1. That the court has no jurisdiction of the person of the defendant, or the subject of the
action; or, * * *
5. That several causes of action have been improperly united. * * *
In nearly all of the jurisdictions where code pleading is established we find statutory
provisions at least somewhat similar to that of our civil practice relative to the joinder of
causes of action. We find the law applicable to the subject stated thus:
In a majority of the states the joinder of different causes of action is a matter of statutory
regulation. Under the codes and statutes, as at common law and in equity, the general rule is
that the complaint or petition shall contain but a single cause of action. To this rule there are
certain exceptions specified which have for their purpose the prevention of a multiplicity
of actions.
there are certain exceptions specified which have for their purpose the prevention of a
multiplicity of actions. Generally, therefore, causes of action cannot be joined unless the
joinder is authorized by the code or practice act; the common law furnishes no criterion. * * *
The test under the code, for determining whether several causes of action may be joined is
very simple, as all the causes of action united must belong to the same subdivision of the
code section relating to joinder. Any number of causes of action, which do not offend the
rules as to affecting the parties to the action, as to place of trial, etc., may be joined if all arise
out of one of the enumerated classes, but they need not be joined, as it is a privilege allowed
the pleader of which he may avail himself in his discretion. 14 St. Enc. Proc., p. 668.
In many jurisdictions, of which we find New York to be one (section 484, Civ. Proc. N.
Y.), the code of civil procedure permits the pleader to unite causes of action arising out of the
same transaction or transactions connected with the same subject of action, and this provision
appears to have been incorporated into the law to avoid the very condition which in our
judgment prevails in the matter at bar. It is settled to a degree which in our judgment
approaches the distinction of finality that, where statutes prescribe causes of action which
may be united, such causes only may be joined as are enumerated by the statutes. This was
explicitly declared by the Supreme Court of California in the case of Keller v. Hicks, 22 Cal.
457, 83 Am. Dec. 78, and again by the Supreme Court of Kentucky in the case of Louisville
and Nashville R. R. Co. v. Commonwealth, 102 Ky. 300, 43 S. W. 458, 53 L. R. A. 149.
Prior to the year 1897 the civil practice act of the State of California was identical to ours
with reference to the joinder of actions. In the case of Stark v. Wellman, 96 Cal. 400, 31 Pac.
259, we find Commissioner Temple discussing the subject under the California code thus (the
views of the commissioner were adopted by the supreme court): "The classification of causes
of action which may be united under section 427, Code Civ. Proc., while intended to be
founded upon manifest reason, is nevertheless to some extent arbitrary, and differs
materially from that which prevails in most of the states.
The classification of causes of action which may be united under section 427, Code Civ.
Proc., while intended to be founded upon manifest reason, is nevertheless to some extent
arbitrary, and differs materially from that which prevails in most of the states. In nearly all,
for instance, causes of action arising out of the same transaction, or transactions connected
with the same subject of action, may be united. Had this been in our code, it would have
authorized the joinder of the causes of action in this case. It was in the code from which it is
supposed ours was copied, and, if so, was, of course, designedly omitted. This court may
possibly think the rule which prevails elsewhere is preferable, and that, if the lower courts
follow such rule, no one would be injured; and thus section 427, Code Civ. Proc., might be
practically repealed under section 475.
The matter there under consideration presented two causes of action growing out of one
and the same transaction. The first was for damages growing out of the careless conduct of
the defendant in attempting to care for and redeliver a package received under contract. The
second cause of action was predicated on the same contract, but alleged that the plaintiff was
the owner and entitled to the possession of the package, which being in the possession of the
defendant, he had converted to his own use. The demurrer alleging misjoinder of causes of
action was sustained, on the ground that the first cause of action was for breach of contract
and the second was founded upon tort.
Subsequent to the decision in the case of Stark v. Wellman, and in 1897, the legislature of
the State of California amended its civil practice act in this respect, and by the amendment it
was provided that:
Claims arising out of the same transaction or transactions connected with the same
subject of action, and not included within one of the foregoing subdivisions of this section
may be united.
In the case of Boulden v. Thompson et al., 21 Cal. App. 279, 131 Pac. 765, we find the
question again passed upon by the Supreme Court of California, and there the court had
before it a complaint in three counts, each one stating a cause of action.
upon by the Supreme Court of California, and there the court had before it a complaint in
three counts, each one stating a cause of action. The first alleged a cause of action based upon
a breach of covenant contained in a lease of real and personal property, it being alleged that
during the term of the lease defendants wrongfully and forcibly ejected plaintiff from the
leased property, to his damage in a specified sum. The second cause of action alleged that, at
the time the defendant wrongfully entered upon and took possession of the leased property,
plaintiff owned and had in the dwelling-house certain household furniture and other personal
property, of which defendant took possession and refused to deliver to plaintiff, to his damage
in the sum specified. The third cause of action alleged that at the time and in the unlawful act
of dispossessing plaintiff, and as a part of the acts of defendant in ejecting plaintiff from the
premises, they swore at plaintiff and his wife, called him vile names, threatened his life, etc.,
thereby causing the plaintiff great mental worry and pain, by reason whereof he was damaged
in a specified sum. The case of Stark v. Wellman, supra, was reviewed by the court, and the
language of Commissioner Temple in the latter case was referred to, after which the court,
after quoting the language of the amendment to the code of civil procedure, said:
If the causes of action so united are within any one of the first seven subdivisions of the
section, they may, by reason of that fact, be united. If not so included (and in this case they
were not), they may nevertheless be united by virtue of subdivision 8, if they arise out of the
same transaction or transactions connected with the same subject of action.
The Supreme Court of Washington, in the case of Clark v. Great Northern Ry. Co., 31
Wash. 658, 72 Pac. 477, referring to the statute of the State of Washington, which provides
that the plaintiff may unite several causes of action in the same complaint when they arise out
of (1) contract, express or implied, or (2) injuries with or without force to the person, held
that such a statute merely authorizes the joinder of causes of like character; that is, that
any number of causes upon contract might be united in one complaint, when the parties
and the place of trial are the same; that any number of causes of action for injuries with
or without force might be united by the parties, when the places of trial were the same.
with or without force to the person, held that such a statute merely authorizes the joinder of
causes of like character; that is, that any number of causes upon contract might be united in
one complaint, when the parties and the place of trial are the same; that any number of causes
of action for injuries with or without force might be united by the parties, when the places of
trial were the same. But it was there emphatically laid down that an action on contract could
not be united with an action on tort.
In the case of Reynolds v. Lincoln, 71 Cal. 183, 9 pac. 176, 12 Pac, 449, the Supreme
Court of California was considering the effect of a demurrer for misjoinder of causes of
action, where the complaint, sought by the first count to quiet title under a section of the code
of civil procedure, and in the second count, referring to the same premises and to the same
parties, sought to have the defendants convey by reason of the existence of a trust relation.
The court, referring to the subdivisions of the code of California identical with ours, held that,
as causes of action coming under these different classes cannot be united in the same action,
there was therefore a misjoinder.
In the case of Bran v. Christopher et al., 27 Cal. App. 741, 151 Pac. 172, the District Court
of Appeals for the Second District of California had occasion to consider the subject here
under consideration, and there held that under subdivisions 1, 4, and 8, section 427, of the
code of civil procedure, which is in all respects the same as ours (Rev. Laws, 5039), a cause
of action arising out of contract and one based on claim against a trustee by virtue of a
contract or by operation of law could not properly be joined. While the facts there are not like
those in the case at bar, the doctrine enunciated is none the less applicable.
The Supreme Court of New York, in the case of Hannahs et al. v. Hammond et al., 19 N.
Y. Supp. 883, referring approvingly to the former decision of that court in Keep v. Kauffman,
56 N. Y. 332, reenunciated the rule that causes of action in tort and in contract could not
be joined, except when arising out of the same transaction or transactions connected
with the same subject of action.
rule that causes of action in tort and in contract could not be joined, except when arising out
of the same transaction or transactions connected with the same subject of action. We refer to
this case solely to bring out the fact that the exception there mentioned rests exclusively on
the peculiar classification of the New York code, providing, as does the amended code of
California, the claims arising out of the same transaction, or transactions connected with the
same subject of action, and not included within one of the other subdivisions of the section,
may be united.
In the case of Wiles v. Suydam, 64 N. Y. 173, the complaint set up two causes of action,
one against the defendant as a stockholder liable for the debts of a corporation to the amount
of his stock, and the other against the defendant as a trustee. The object of the action was the
same, namely, to collect a debt. The court, although confronted with a provision of the statute
permitting the union of causes of action arising out of the same transaction, or transactions
connected with the same subject of action, held that the complaint contained two separate and
distinct causes of action which, could not properly be united; the one being upon contract and
the other being based upon a statute for a penalty or forfeiture. The court said:
The nature of the two actions are essentially different, although the object to be attained is
the same. The facts to establish the liability are entirely unlike. The measure of liability is
different; the defenses are different. The rights of the defendant may be seriously prejudiced.
Suppose a general verdict is obtained.
In the case of State v. Kruttschnitt, 4 Nev. 179, this court for the first time, rather
incidentally perhaps, but emphatically nevertheless, expressed itself on the question of the
improper joinder of actions. There the action was brought against the sureties of an assessor,
who had become sureties only to the amount of $2,500, and for damages against the assessor
for $10,000. Judge Beatty, speaking for this court, said:
We know of no principle or practice by which a suit on a bond against A., B., C. can be
united with an action for damages against A.
on a bond against A., B., C. can be united with an action for damages against A. alone. The
plaintiff will have to elect to prosecute the suit against the principal alone for the whole
amount claimed, or against the principal and sureties for the $2,500. The two actions cannot
be united.
In the case of State of Nevada v. Yellow Jacket Silver Mining Co., 14 Nev. 220, this court,
speaking through Mr. Justice Leonard, quoted approvingly from Mr. Pomeroy's work on
Remedies and Remedial Rights, saying:
It may now, I think, be regarded as the established doctrine that the code in each of the
states is the only source of authority from which rules of pleading may be drawn; that its
methods have completely supplanted those which preceded it, so that the latter can no longer
be appealed to as possessing of themselves any force and authority.
Continuing on the subject, Justice Leonard said:
In our opinion, it is wisdom to preserve the plain, simple methods and rules of the code,
in pleading and practice; and if section 64 [Rev. Laws, 5039] or any other, does not, in terms,
embrace all that is desirable, then let us appeal to the legislature for aid, rather than to judicial
legislation.
In that case this court held that taxes due to the state on the proceeds of mines for the
different quarters of each year could not be united in the same cause of action, for the reason
that every quarterly or yearly tax constituted a separate and independent liability. It will be
noted in this respect that, pursuant to this decision, our later statutes on the subject of taxation
and actions for the collection of the same have been amended, so as to overcome the force
and effect of the decision in the case of State v. Yellow Jacket, supra.
Illustrative of the manner in which our statutory provision relative to joinder of actions
was regarded, we may with propriety refer to the early case of Knickerbocker & Nevada
Silver Mining Co. v. Hall, 3 Nev. 194, wherein it was held that in pleadings the distinction
between the several causes of action must be strictly observed.
between the several causes of action must be strictly observed. In that case the court was
dealing with a pleading involving an action arising out of tort and one growing out of
contract. There Justice Beatty, in a concurring opinion, took occasion to say:
Because, under our practice, the pleadings are to be liberally construed, with a view to
substantial justice between the parties, it does not follow that the substantial rules of pleading
can be disregarded and that every hotch-potch of inconsistent facts indorsed complaint,' or
answer,' is to be deemed a sufficient pleading.
The force and effect of statutes such as that found in the amendment to the code of
California and in the statutes of New York, permitting the joinder in one complaint of two or
more causes of action where they arise out of the same transaction, is expressed concisely in 1
R. C. L. 363. There it is said:
By virtue of statute in many, if not all, of the so-called code states, there may be a joinder
in one complaint of two or more causes of action, where they arise out of the same
transaction; the word transaction,' as used in such statutes, meaning something which has
taken place whereby a cause of action has arisen, and embracing, not only contractual
relations, but occurrences in the nature of tort as well.
If this provision were present in our code, and on occasions when the pleadings warranted,
we might well, in concert with other courts, follow the doctrine as it is asserted in Ruling
Case Law, to wit:
It is no objection to the joinder of causes of action that they concern separate primary
rights, for, however numerous may be minor transactions, each constituting a primary right
enforcible by the proper remedy, so long as they all reach back to the point of union as the
parent cause thereof they all arise out of one transaction' and may be vindicated together,
regardless of the form of remedy requisite as to each, provided they affect all the parties and
do not require different places of trial.
If our statute contained a provision such as that of California and New York, we might
with propriety follow the rule as heretofore asserted; but whether such a rule, even with the
elasticity permitted by the peculiar statutory provision referred to, would permit the complaint
in this instance to stand against demurrer for misjoinder, is conjectural. The difficulty
encountered by the courts on occasions when they were required to deal with the statute
permitting joinder of actions where they arise out of the same transaction is found apparent in
nearly every jurisdiction where that provision is present. However, inasmuch as such a statute
is not before us, we are not required to cross that bridge.
One test that may, we think, be properly applied in cases where the question of misjoinder
is to be considered under statutory prescription such as ours, is aptly laid down by Mr.
Pomeroy in his work on Code Remedies (3d Ed.), p. 516, where, addressing himself to the
subject, the author says:
If the examination discloses more than one distinct and independent primary right held by
the plaintiff, and all of them invaded by the defendant, or more than one distinct and
independent wrong done by the defendant to the plaintiff's primary right or rights, then the
complaint or petition has united different causes of action, and the rules which control their
joinder are brought into operation.
The doctrine thus announced by the learned author is undoubtedly sound. Its application to
the question at bar serves to bring the whole matter more in relief, so that the lines of
demarcation affecting causes of action here presented stand out more prominently. Hence, as
the author says, the rules which control their joinder are brought into operation, and here the
rules which control their joinder are furnished by plain, unequivocal language set forth in our
code. In determining the question, we must do one of two things: Either apply this rule which
the statute makes operative and which regulates the joinder of actions, or we must close our
eyes to it and delegate to ourselves legislative functions.
eyes to it and delegate to ourselves legislative functions. It is true that different causes of
action may be united in the same complaint, and in this respect the restrictions imposed on
the pleader are those found in the statute; yet where causes of action are united in the
complaint, which by reason of these statutory restrictions belong to different classes, as these
classes are made by the statute, then the union is prohibited and hence improper. If in a
complaint the pleader seeks to join a cause of action which belongs to one of the classes made
by the statute with another cause of action not mentioned in the statute, or not belonging to
either of the statutory classes, then the statutory inhibition would not apply. In such a case, if
the causes of action grew out of a single transaction, their union might be permitted on the
theory that such would avoid vexatious litigation. This is especially true when the entire
matter might be terminated by a single verdict. There is some authority, which, looking to
differentiation in this respect, we deem worthy of note here. We refer especially to Jones v.
The Cortes, 17 Cal. 487, 79 Am. Dec. 142; Pfister v. Dascey, 65 Cal. 405, 4 Pac. 393; Rogers
v. Duhart, 97 Cal. 504, 32 Pac. 570; Sloane v. Southern Railway Co., 111 Cal. 677, 44 Pac.
320, 32 L. R. A. 193.
The principle on which this differentiation turns is in one way well illustrated by the
consideration given to the matter in the opinion of Judge Leonard in the case of Waters v.
Stevenson, 13 Nev. 157, 29 Am. Rep. 293. There the case of Jones v. The Cortes, supra, is
referred to, and the views of the Supreme Court of California are approved. There damages
was the underlying element in the whole matter. This court, addressing itself to the question,
said:
A cause of action is stated by an allegation of the facts, and the alleged amount of
damages is demanded; and whether the pleader intended to allege trespass to the land, or
trespass de bonis, or trover, the result is that the plaintiff is entitled to recover just such
damages as are allowable from the facts alleged and proved, which make up the whole case.
The object of the action here is twofold: Damages, and recovery of personal property said
to be impressed with trust relation. In every cause of action, the wrong asserted is the basic
thing. In the first cause of action in this complaint, the wrong charge against the defendants
was their failure to protect the interest of the plaintiffs against litigation through which that
interest was lost. The wrong in the second and third causes of action is entirely foreign to that
of the first and may properly be said to be the act of conversion of personal property by the
defendants. The wrong in the fourth cause of action differs from either that of the first or of
the second and third, and may be properly expressed as the fraudulent acquisition and
wrongful retention or conversion of personal property. In the fifth cause of action the wrong
charged against the defendants may be likened to that of the second and third. Here is a union
of actions ex contractu in the first with actions ex delicto in the second, third, and fifth. It is
true that the facts constituting the several causes of action refer to the contract entered into
between plaintiffs and defendants in the first instance, but the basic principle underlying the
wrong in the first cause of action is the neglect of the defendants to perform a duty, while in
the second, third, and fifth causes of action the wrong is based upon an affirmative injury.
These the statute specifically segregates into causes of action independent in themselves and
that must not be united. Each subdivision of our code was intended to provide for a class not
included in either of the other subdivisions. Hulce v. Thompson, 9 How. Prac. (N. Y.) 113.
Concluding, as we do, that the complaint in this instance set forth causes of action which
under our statute could not be united, we may next inquire as to whether or not prohibition
under such circumstances is the proper remedy. In this we are not without precedent in the
decisions of this court or guidance from those of other jurisdictions. It is claimed here by
respondent that, inasmuch as petitioners have the right of appeal, prohibition will not lie. It
may, we think, with propriety be said that the existence of a remedy by appeal is not of
itself a bar to prohibition, unless such remedy be plain, speedy, and adequate, in view of
the nature of the proceedings and the annoyance or havoc that might be wrought on the
party seeking relief.
with propriety be said that the existence of a remedy by appeal is not of itself a bar to
prohibition, unless such remedy be plain, speedy, and adequate, in view of the nature of the
proceedings and the annoyance or havoc that might be wrought on the party seeking relief.
In the case of State ex rel. Marshall et al. v. District Court, 50 Mont. 289, 146 Pac. 743,
Ann. Cas. 1917c, 164, the Supreme Court of Montana, in considering the question, took
occasion to remark that:
A remedy is speedy when, having in mind the subject-matter involved, it can be pursued
with expedition and without essential detriment to the party aggrieved; and it is neither
speedy nor adequate if its slowness is likely to produce immediate injury or mischief.
In the matter at bar, it appears that petitioners were ordered to answer within a limited
period of time. Their failure in this respect would have entailed a judgment by default, with
all the attendant consequences. They had the right, looking to the proper interposition of their
defenses, to rely upon the specific direction of the statute as to the joinder of causes of action.
The error of the district court in overruling the demurrer for misjoinder was one which might
have been taken advantage of by permitting judgment to be entered by default against the
defendants and thereafter perfecting their appeal to this court. But what kind of a judgment
would be entered by default in this case, and what intricacies would follow the entry of such
judgment or judgments, and how involved or encumbered would be the property rights of the
defendants during all of the time while the appeal to this court was being perfected? When we
regard this phase of the matter, it appears to us to be one in which remedy by appeal could not
be pursued with that expedition which the nature of the case and the nature of the judgment or
decrees that might be entered would demand. Ferguson v. Superior Court, 26 Cal. App. 554,
147 Pac. 603.
In the case of Bell, Davidson et al. v. First Judicial District Court, 28 Nev. 280, 81 Pac.
875, 1 L. R. A.
(N. S.) 843, 113 Am. St. Rep. 854, 6 Ann. Cas. 982, this court, speaking through Mr. Justice
Norcross, as to the province of the writ of prohibition in cases of this character, said:
The object of the writ is to restrain inferior courts from acting without authority of law in
cases where wrong, damage, and injustice are likely to follow from such action. * * * The
writ should not be granted, except in cases of usurpation or abuse of power, and not then,
unless the other remedies provided by law are inadequate to afford full relief.' * * * If the
entire proceedings are without authority in law, * * * certainly the remedy to be obtained by
the slow process of appeal, which could only follow a vain, fruitless, and perhaps expensive,
trial, could not be considered an adequate remedy.
While that case was one involving ouster from office, and might be said to be of a
quasi-criminal nature, the rule there applied is no less applicable in cases like the one at bar.
The Supreme Court of Missouri in the case of State ex rel. Minnesota Mutual Life Ins. Co.
v. Denton, 229 Mo. 187, 129 S. W. 709, 138 Am. St. Rep. 417, in reply to a suggestion
similar to that of respondent here, said:
Ordinarily an error committed in the rendering of a money judgment may be corrected on
appeal, but if the accounting that must be had before the balance can be ascertained is of a
character which the court has no power to make, and would involve destruction of rights
which could not be restored, an appeal would be of little, if any, avail.
In our judgment, the observation there made properly applies to the matter at bar, in view
of the orders which we find to have been made by the district court in this instance. This
doctrine is subscribed to by the Supreme Court of Washington in the case of State ex rel.
Wolferman v. Superior Court, 8 Wash. 591, 36 Pac. 443.
In the case of Hayne v. Justice Court, 82 Cal. 284, 23 Pac. 125, 16 Am. St. Rep. 114, the
Supreme Court of California laid down the doctrine that, if an inferior court proceeds to try
a cause against an express prohibition of a statute, its excess of jurisdiction may be
prevented by prohibition.
California laid down the doctrine that, if an inferior court proceeds to try a cause against an
express prohibition of a statute, its excess of jurisdiction may be prevented by prohibition. To
the same effect will be found the case of State ex rel. Haskell v. Huston, 21 Okl. 782, 97 Pac.
982.
The Supreme Court of Missouri has had occasion to consider this question in a case where
the lower court had sought to exercise an unwarranted authority, thereby causing a verdict
and wrongful invasion of property rights. It was there held, in conformity with what we
believe to be the general rule, that the writ should properly issue. In principle the case is quite
analogous to the matter at bar. St. Louis, K. & S. R. Co. et al. v. Wear, Judge, 135 Mo. 230,
36 S. W. 357, 33 L. R. A. 341. To the same effect is the more recent case of State ex rel. Fenn
et al. v. McQuillin, 256 Mo. 693, 167 S. W. 713.
Where the statute makes a specific direction as to the mode by which an action or
proceeding may be instituted, or specifically prohibits the bringing of an action or the
institution of a proceeding in other than a designated form, the failure or refusal of the trial
court to observe these statutory directions or inhibitions may be remedied by appeal, but that
such a remedy exists should not preclude a remedy by a more speedy and adequate avenue.
The legislature has in no uncertain manner declared as to what causes of action may be
united, and has established classes in this respect. This legislative act constitutes a permission
and an inhibitiona permission to unite causes of action each of which belongs to the same
specified class; an inhibition forbidding the union of causes each of which belongs to a
different class. To ignore this statutory provision is to ignore a jurisdictional requisite, and
such may properly be the subject of prohibition.
In the case of Bruner v. Superior Court, 92 Cal. 239, 28 Pac. 341, the Supreme Court of
California analyzed the underlying principle here involved in much the same way as that
found in the case of Bell et al. v.
way as that found in the case of Bell et al. v. District Court, 28 Nev. 280, 81 Pac. 875, 1 L. R.
A. (N. S.) 843, 113 Am. St. Rep. 854, 6 Ann. Cas. 982. The doctrine of the Bruner case was
reiterated by the Supreme Court of California in the case of Anderson v. Superior Court, 122
Cal. 216, 54 Pac. 829. There an application of the rule which we deem pertinent here is set
forth with that degree of cogency characteristic of the eminent writer of the opinion. There the
question on which the case turned was the ruling of the superior court in a bankruptcy
proceeding. The alleged insolvents objected to the amendments of the petition by which
amendments new creditors were brought in. They contended that the statute did not permit
such an amendment; that the addition of new petitioning creditors constituted a new and
distinct proceeding. These objections were overruled by the lower court, and an order made
requiring the alleged bankrupts to answer. The supreme court, speaking through Justice
Beatty, made mention of the statutory conditions upon which a party may be forced into
bankruptcy, and then said:
Considering the serious consequences to the supposed insolvent and to those who have
dealt with him, the conditions imposed by the statute are not onerous, and there is no reason
why they should be disregarded.
Then the court made the pertinent observation that:
This particular excess of jurisdiction is one for which an appeal is a wholly inadequate
remedy. The only effect of an appeal would be to reverse the adjudication of insolvency, but
in the meantime the petitioners would have incurred cost and damages for the recovery of
which they would have no security.
The principle is pat to the matter at bar, for, inasmuch as there is here a direct violation of
a statutory provision as to joinder of actions, an appeal to this court would entail a reversal,
and in the meantime petitioners would have been subjected to all the inconveniences,
annoyances, and expense which a judgment, the appointment of a receiver, or the depositing
of enormous undertaking would entail.
undertaking would entail. The ordinary course by appeal does not furnish that speedy and
adequate relief to which petitioners are entitled.
Addressing himself to the subject here at hand, Mr. Spelling, in his work on Injunctions
and Other Extraordinary Remedies, page 1491, says:
Prohibition is as properly granted where the inferior court acts upon a false view of the
law fixing its jurisdiction, or a misconstruction of a statute conferring jurisdiction, as where it
arbitrarily usurps a jurisdiction in total disregard of law.
Commenting on the rule as laid down in some jurisdictions, the author continues:
The better doctrine, however, is that the adequacy of the remedy by appeal should remain
an open question to be determined, along with the question of jurisdiction in the higher court,
upon the hearing of the application.
Adequacy of the remedy by appeal is in our judgment an open question, to be determined
in a given case. This doctrine has been adhered to quite consistently by the Supreme Court of
California, and we find it followed as well in other jurisdictions. White v. Superior Court,
126 Cal. 245, 58 Pac. 450; Terrill v. Superior Court, 60 Pac. 38; Havemeyer v. Superior
Court, 84 Cal. 327, 24 Pac. 121, 10 L. R. A. 627, 18 Am. St. Rep. 192. The latter case
especially supports the position which we take here. There the superior court undertook to
appoint a receiver without authority. Orders were issued directing that officer to take hold of
the property, close down its works, and sell its stock, machinery, and utensils. The court held
emphatically that under such conditions, and where such havoc would be wrought, although a
remedy existed by appeal, prohibition, being more adequate and speedy, was the proper relief.
To the same effect are the cases of Yearian v. Speirs, 4 Utah, 482, 11 Pac. 618, and Weaver v.
Toney, 107 Ky. 419, 54 S. W. 732, 50 L. R. A. 105.
Commenting on the principle announced in these decisions, Mr. Spelling says:
The doctrine is quite reasonable and in consonance with general principles governing
the employment of extraordinary remedies; for, if it is a general principle that if an
ordinary remedy, or such remedy as is available 'in the ordinary course of law,' does not
afford a party the specific relief to which he is entitled, or does not meet the emergencies
of his case, it is no bar to injunction, mandamus, or other remedies of an extraordinary
character, why then should such fruitless resort stand in the way of prohibition?"
with general principles governing the employment of extraordinary remedies; for, if it is a
general principle that if an ordinary remedy, or such remedy as is available in the ordinary
course of law,' does not afford a party the specific relief to which he is entitled, or does not
meet the emergencies of his case, it is no bar to injunction, mandamus, or other remedies of
an extraordinary character, why then should such fruitless resort stand in the way of
prohibition? Spelling, Injunctions and Other Extraordinary Remedies, p. 1489.
The statute, in declaring that only certain causes of action may be united in a complaint,
grants to every party defendant a right to so shape his defense as to meet only those causes
which by statute may be joined in one action against him. This right, like others provided by
the statute, is a something to be relied upon, and not a mere direction to be followed in
consonance with the whim of the trial court.
The question of whether a remedy is speedy and adequate should be determined in the
light of its prompt effectiveness, looking toward the particular error from the effect of which
the aggrieved party seeks to be relieved; this, too, in contemplation of the havoc, expense,
jeopardy, and confusion entailed to all parties. State ex rel. Martin v. Superior Court of Grant
County, 97 Wash. 358, 166 Pac. 630, L. R. A. 1917f, 905. In the last-cited case the Supreme
Court of Washington had before it the propriety of a writ of prohibition, where the lower
court had denied a change of venue; the same having been demanded under statutory
provision. There, as here, it was contended that the same could be properly reviewed on
appeal. The court, in passing on the question, said:
Where there is a right to a trial in a particular place, which right is independent of the
issue as tendered by the complaint, an adequate remedy means a trial in the first instance by a
court having jurisdiction to hear and determine the merits.
Addressing itself to the question of adequacy of the remedy by appeal, the court continued
by saying: "Before we could even consider the merits of the case, we would have to decide
the question of venue, or the question of jurisdiction, and do that which ought to have
been done in the first place."
Before we could even consider the merits of the case, we would have to decide the
question of venue, or the question of jurisdiction, and do that which ought to have been done
in the first place.
So here, if the adequate remedy means that the complaint shall not present actions the
joinder of which is prohibited by the statute, before this court could consider the merits of the
case on appeal, it would be compelled to first decide the question of the propriety of the
pleading upon which the case was predicated. The question of the proper joinder of actions
and proper joinder of parties would confront us in the very first instance; and deciding this, as
we must, as being such as is not permitted by the statute, a reversal of the case would follow,
with instructions to sustain the demurrer on one or both of such grounds; hence to do that
which should have been done in the first instance with the intervening delay and inadequacy
entailing confusion and expense. So we say, as did the court in the case of State ex rel. Martin
v. Superior Court, supra:
If we would have to so hold on appeal, why should we not say so now?
It is not alone in matters where absolute lack of jurisdiction is present that the writ will lie
to stay the action of an inferior tribunal, but with equal force will its functions operate where,
although the subject-matter is properly within the jurisdiction of the inferior tribunal, the
latter exceeds its legitimate powers. High on Extraordinary Legal Remedies (3d Ed.), p. 734;
Long v. Superior Court, 102 Cal. 449, 36 Pac. 807; Quimbo Appo v. People, 20 N. Y. 531.
The writ should issue, for the reason that there is a misjoinder of causes of action, and also
for the reason that there is a misjoinder of parties defendant.
Coleman, J., concurring:
I concur in the order, and generally in the conclusions reached by Mr. Justice Sanders as to
the law. To my mind, all of the causes of action alleged against the defendant Walser grew
out of the contract entered into between the plaintiffs and himself, and hence were
properly joined.
between the plaintiffs and himself, and hence were properly joined.
It is conceded, as I understand, that, if section 97 of our civil practice act provided for the
joinder of causes of action growing out of the same transaction, the various causes of action
pleaded against defendant Walser would be properly joined, but contended that, since that
section does not provide for the joinder of causes of action growing out of the same
transaction, but provides for the joinder of causes of action growing out of contract, that the
causes of action pleaded against defendant Walser are improperly joined. I cannot see the
force of the contention. The word transaction is simply a more comprehensive term than
the word contract; but the right of joinder in either case is simply statutory. To my mind,
the spirit which should control in determining whether two or more causes of action may be
joined when they grow out of a transaction should control in determining whether two or
more causes of action growing out of a contract may be joined; and in either case the words
of Winslow, C. J., in McArthur v. Moffatt et al., 143 Wis. 564, 128 N. W. 445, 33 L. R. A.
(N. S.) 264, are inspiring. He says:
The cold, not to say inhuman, treatment which the infant code received from the New
York judges is a matter of history. They had been bred under the common-law rules of
pleading, and taught to regard that system as the perfection of logic, and they viewed with
suspicion a system which was heralded as so simple that every man would be able to draw his
own pleadings. They proceeded by construction to import into the code rules and distinctions
from the common-law system to such an extent that in a few years they had practically so
changed it that it could hardly be recognized by its creators. Although the code by its terms
abolished all existing forms of pleading, and prescribed one general form of pleading, which
should be used in all actions, the courts early decided that the distinctive features of pleadings
at law and in equity still remained, and so they easily held that what was formerly called a
cause of action at law could not be joined with what was formerly called a cause of action
in equity.
of action at law could not be joined with what was formerly called a cause of action in equity.
To meet and counteract this narrow and illiberal construction of the law, the amendments of
1852 (Laws 1852, c. 392) were adopted, providing expressly that legal and equitable causes
of action might be joined, provided they both belonged to one of the seven classes, and
further creating a new class of joinable actions, to wit, those which arise out of the same * *
* transactions connected with the same subject of action.' It is very clear that the legislative
intent in making these amendments was to permit and encourage the joinder of causes of
action which could reasonably be said to involve kindred rights and wrongs, and thus settle
such kindred rights and wrongs in one proceeding, rather than to require them to be settled by
piecemeal in different actions with much greater expenditure of time and money.
The language of Beatty, C. J., in State v. Yellow Jacket S. M. Co., 14 Nev. 253, is also
instructive. He says:
The practice act is a remedial law. It was designed to simplify legal proceedings; to
expedite them and render them less costly and burdensome to litigants. Many of its rules are
borrowed from the practice in equity, and, in construing its provisions, courts have generally
professed to be guided by the liberal and enlightened principles of equity, with a view to the
promotion of justice, the discouragement of oppression, and the prevention of needless
expense and delay. For all these reasons, I not only feel authorized, I feel constrained, to give
the largest and most liberal possible construction to the provision in question. For it cannot be
denied that the rule of equity and of sound policy is against the unnecessary multiplication of
suits. When a number of demands of similar nature, involving similar principles and results,
capable of being heard together without inconvenience, and open to the same defense, can all
be embraced in the same judgment, they ought to be united in the same action, not only for
the sake of the litigants, but also for the sake of the public.
the sake of the litigants, but also for the sake of the public. This is the doctrine of equity
(Story's Eq. Pl., secs. 530-532), and this is the spirit of section 64 of the practice act, as is
shown by the restrictive clause near the end, which prohibits the joinder of actions, unless
they all belong to only one of these classes and shall affect all the parties to the action, and
not require different places of trial.' This express limitation upon the right of uniting separate
causes of action in the same suit proves that it was the intention of the framers of the law that,
subject to its own positive restrictions, it should be largely and liberally construed. Exceptio
probat regulam.'
That the various causes of action pleaded against defendant Walser grew out of contract is
to my mind clear. A cause of action, briefly stated, is nothing more nor less than the violation
or threatened violation of a legal right. The rights of the plaintiffs on the one hand and of
Walser on the other were fixed by the contract. The various causes of action pleaded against
Walser will necessitate the use, to a large extent, of the same evidence, and none of them can
be maintained except by proof of the contract pleaded, as the very foundation of their
respective rights. Hence I see no escaping the conclusion that such causes of action grew out
of the contract, or the force of the reasoning which induced the legislature to provide for the
joining of causes of action which grow out of a contract.
Plaintiffs take an inconsistent attitude relative to the contract under which it is claimed
defendant Margrave acquired his interest. First, they assert that, because of the fraud practiced
in inducing the execution of that contract, it should be declared null and void, and that they
should be permitted to recover the interest held by Margrave. Assuming that this contention is
sound, then their rights in that regard cannot be said to arise out of contract, and hence that
cause of action is improperly joined with those growing out of the contract. On the other
hand, if this contention be waived, or if it be found that this contract was not induced by
fraud, this cause of action is not joinable with the cause of action alleged against Walser,
for the reason that it does not affect both of the defendants, as the plaintiffs are seeking,
not the one-third interest which Walser acquired, or anything because thereof, but only
the one-third interest which Margrave acquired.
fraud, this cause of action is not joinable with the cause of action alleged against Walser, for
the reason that it does not affect both of the defendants, as the plaintiffs are seeking, not the
one-third interest which Walser acquired, or anything because thereof, but only the one-third
interest which Margrave acquired.
On Rehearing
A change has been made in the personnel of this court since the order for rehearing. As the
order is not directed to a review of any particular point or points covered by the opinion, we
shall consider the cause as being before us for reexamination and decision as though it had
never been considered and decided. For the purposes of this opinion we refer to the abstract
of the pleading in question made by McCarran, C. J.: and in view of the already full and
exhaustive discussion of the facts we deem further comment thereon unnecessary.
Upon further examination and consideration of the pleading (the proper construction of
which is made the basis of this proceeding), we are constrained and impelled to recede from
the position taken in the former opinionthat a distinct and unconnected cause of action is
alleged against the defendant Margraveand now hold that the supposed several causes of
action are not improperly joined. Hence the demurrer to the petition for prohibition must be
sustained. This disposes of the proceeding, but as the construction to be given the complaint
has been reargued with such force and earnestness by counsel whose names appear upon the
records of this court as able jurists, who have had occasion to decide many questions of
procedure equally as important as that here presented, we shall examine more fully their
respective positions.
If we clearly interpret that taken by counsel for petitioners, it is their contention that the
plaintiffs by their own showing have improperly joined a cause of action on contract with
causes of action against trustees, not eo nomine but quasi-trusteespersons who reap
benefits from a breach of trust and so become answerable as trustees. Lewin, Trusts, 4th
ed., 562-63S.
reap benefits from a breach of trust and so become answerable as trustees. Lewin, Trusts, 4th
ed., 562-638.
Counsel for respondent insists that, if the complaint states a cause for equitable relief,
having jurisdiction of the parties and the subject-matter, the court is in duty bound to uphold
the pleading.
1, 2. A fair criticism of the pleading from the point of view of the respondent is that the
pleader, by whom this complaint was drawn, lost sight of the radical changes in pleading
introduced by the code system. However strong grievances or wrongs may appeal to the
conscience of chancellor for correction and relief, we are of the opinion that the averments
and allegations of such grievances or wrongs, however varied they may be, when stated in the
form of a complaint, it is sufficient only when it squares with the rules of the civil practice act
(Rev. Laws, 4943, et seq.), and not otherwise. State v. Y. J. S. M. Co., 14 Nev. 238. The
pleader has confused the issue by intermingling a variety of pretenses and charges in the
charging part of the complaint in the usual form of a bill in equity. Such form of pleading
prevailed extensively under the old chancery practice. We need scarcely say that nothing of
this kind is allowable under the code. The plaintiff is now required to state the facts which
constitute his cause of action, and nothing more, and the court will give to him such relief as
he is entitled to under the rules of law.
3. The formal bill in chancery, as for an accounting, a discovery, and the like, is no longer
used, but the remedies are preserved. Conceding the complaint to be a good specimen of a bill
in equity, nevertheless, if the complaint states but one cause of action, whatever else it may
contain, the defendants cannot successfully demur on the ground that several causes of action
have been improperly united. State v. Y. J. S. M. Co., supra.
4. A cause of action is defined, and the test of whether a right of action is single or distinct
is prescribed, in State v. Y. J. S. M. Co., supra. The application of these rules bring us to the
consideration of the petitioners' contentionthat the pleader has improperly joined a cause of
action for the breach of a contract with separate and distinct causes of action against
defendants as trusteesand in support of their position they confidently rely upon the
rules of pleading applied in the case of Alger v. Scoville, 6 How. Prac. {N. Y.)
cause of action for the breach of a contract with separate and distinct causes of action against
defendants as trusteesand in support of their position they confidently rely upon the rules of
pleading applied in the case of Alger v. Scoville, 6 How. Prac. (N. Y.) 131, where a demurrer,
similar to that here interposed, was sustained. The case of Alger v. Scoville is conspicuous
for several reasons: First, because it was the first decision of the Supreme Court of New York
after the adoption of the code system (1848) that involved the construction to be given section
167 of the code of civil procedure, which then read the same as section 97 of our practice act
(Rev. Laws, 5039), when this action was commenced in the lower court; second, because the
court declined to adopt the construction given the section by Mr. Field, counsel in the case,
who is recognized as one of the learned authors of the code system of pleading; third, because
the conclusion reached by the court, it has been supposed, brought about the amendment that
added to the section another subdivision which permits causes of action, whether legal or
equitable, or both, to be united where they all arise out of the same transaction or
transactions connected with the same subject of action. Moak's Van Sant, Pl. (3d Ed.) 135. It
has been argued that had section 97 of our practice act contained this subdivision when this
suit was filed, the demurrer to the complaint might have been properly overruled. We are of
the opinion that the amendment has no bearing upon the supposed several causes of action
stated in this complaint. An analysis of the demurrer shows that it amounts to a misjoinder of
parties; that is to say, that the defendants by one cause of action are sued as individuals to
recover a personal judgment for the sum of $30,000 as damages for the breach of a written
contract; and by the second and subsequent causes of action they are sued in the capacity of
trustees by operation of law. This is a strained construction for the purpose of establishing a
misjoinder of action. If the defendants are liable as trustees, it is by reason of their contract
with plaintiffs.
plaintiffs. The objection goes to the remedy, and not to the cause of action. The facts are
entirely different from those stated in the complaint in Alger v. Scoville. In the latter case
several persons were joined as defendants, against one of whom was stated a cause of action
upon a simple contract for the payment of money, and against another defendant as assignee,
and distinct causes of action were stated against other defendants, in some of which some of
the defendants had no interest. No such causes of action are pretended to be stated in the
complaint under discussion.
The one subject-matter of this suit is trust property arising from an agreement entered into
between the plaintiffs and the defendant Walser, in the execution of which the defendants
became joint actors and beneficiariesin what proportion is immaterial. The complaint
recites but one connected history of the property affected by the agreement; it begins with its
origin, as stated in the agreement, and comes down in one unbroken line through a series of
acts on the part of the defendants which contributed to and culminated in the alleged injuries
to plaintiffs. The defendants are shown to have a connected and common interest in the one
subject-matter of the action centering in the point in issue in the cause. Though the relief
demanded is distinct, it is still but one subject-matter of action. If the allegations of the
complaint are true, and as such they are to be taken on this demurrer, the defendants are
charged with an inexcusable disregard of the plain performance of a duty voluntarily assumed
by their contract. They may be liable as trustees, but we are not concerned with the remedy.
They became trustees by reason of the contract, and it is not necessary for us to clothe and to
unfrock them of a trust in order to establish a misjoinder of action. They are as much liable in
damages for the loss of property by negligent acts in disregard of their contractual duty as
they are to answer for property found in their hands, and placed beyond the reach of plaintiffs
in violation of their agreement.
5. It is also argued that the first cause of action is for the breach of a duty imposed by
contract and improperly joined with the second and subsequent causes of action for a tort or
torts. It is elementary that where the law imposes a duty that arises from the relation rather
than the contract, and where the parties have entered into these relations and the duty is
disregarded, the one who suffers may sue upon the agreement, or may treat the wrong as a tort
and bring an action analagous to that of trespass on the case. But if there be no legal duty
except as arising from the contract, there can be no electionthere is no tort, and the party
must rely upon the agreement alone. Bliss, sec. 14. It is clear, in any view of the complaint,
the action is not maintainable without referring to the contract and laying a previous ground
for it by showing a contract.
6. The averment of negligence in the first cause of action and fraudulent dealings in the
second and subsequent causes of action may, we think, fairly be construed as amounting to
substantial allegations of the breach of the agreement upon which the action is founded, and it
is not necessary to hold that plaintiffs charge the defendants with a tort or torts, independent
of the breach of the agreement, so as to establish a misjoinder of action. As above stated, this
contention cannot be sustained, as no legal duty is shown to exist on the part of defendants,
except as arising from the contract.
7. Considering the demurrer in connection with the several prayers for judgment, the real
ground of demurrer is founded upon the several grounds for relief. The latter may be wholly
omitted in the complaint, yet the plaintiffs would be entitled to such relief as they could
establish upon proper proof of alleged facts. The prayer for judgment is not demurrable.
Garner v. Harmony Mills, 6 Abb. N. C. (N. Y.) 218.
Margrave is a proper party. Brinkerhoff v. Brown, 6 Johns. Ch. 139; Fellows v. Fellows, 4
Cow. 682; Boyd v. Hoyt, 5 Paige, 65. True, these cases were decided before the code of civil
procedure, but the ground upon which the decisions are put is that in such cases there is
but one cause of action averred.
the decisions are put is that in such cases there is but one cause of action averred. The cases
decided in New York since the code are cited in Wood v S. S. B. & F. Co., 37 N. Y. Supp.
885.
Entertaining these views, the demurrer to the petition for a writ of prohibition must be
sustained, the alternative writ discharged, and the proceeding dismissed.
Coleman, C. J., concurring:
I concur in the conclusion reached in the majority opinion, that the complaint sets forth
only one cause of action, and in the order.
The facts were pretty fully stated in the opinion of McCarran, C. J., when the case was
before us upon the first hearing. The complaint, briefly stated, alleges a trust relationship
between the Pages and Walser, and that Margrave took his interest knowing the facts of the
trusteeship between the Pages and Walser, and without consideration. The relief sought is and
can be nothing more nor less than an accounting by the defendants. It is true that the so-called
first cause of action concludes with a prayer for damages, but the legal effect of a complaint
must be determined by its allegations, and not by its prayer. 31 Cyc. 111.
Whether the trust is one arising from contract or by operation of law, matters not. The
relationship exists just the same, and it is the duty of the defendants in the action to give an
account of their stewardship. 2 Pomeroy, Eq. Jur. (2d Ed.) sec. 1063. And this duty is very
comprehensive; it extends through the entire range of operation by the trustees. They may be
liable for neglect by being held answerable for property actually lost through want of care or
prudence, and also for stock, securities, or other assets which they might have received if they
had exercised due care and prudence in their dealings with the trust property. It is also a
well-known rule that where a person takes property charged with a trust, knowing it to be so
charged, as did Margrave, he is liable as trustee; and when he takes an interest, as did
Margrave, he becomes a cotrustee, and is liable.
is liable. These rules are fundamental, and need no citation of authorities to support them.
Sustaining the general rules enunciated, attention is called to sections 1066 to 1081, inclusive,
of 2 Pomeroy's Equity Jurisprudence (2d Ed.). In view of the contention of counsel for
petitioners, I feel constrained to quote at length from section 1080 of the work just
mentioned, as follows:
It was already been shown that a beneficiary may always claim and reach the trust
property through all its changes of form while in the hands of the trustee, and that he may also
follow it into the possession and apparent ownership of third persons, until it has been
transferred to a bona-fide purchaser for valuable consideration and without notice; and that a
court of equity will furnish him with all the incidental remedies necessary to enforce his claim
and to render it effective. In addition to this claim of the beneficiary upon the trust estate as
long as it exists, the trustee incurs a personal liability for a breach of trust by way of
compensation or indemnification, which the beneficiary may enforce at his election, and
which becomes his only remedy whenever the trust property has been lost or put beyond his
reach by the trustee's wrongful act. The trustee's personal liability to make compensation for
the loss occasioned by a breach of trust is a simple contract equitable debt. It may be enforced
by a suit in equity against the trustee himself, or against his estate after his death, and the
statute of limitations will not be admitted as a defense unless the statutory language is express
and mandatory upon the court. The amount of liability is always sufficient for the complete
indemnification and compensation of the beneficiary.
Perry on Trusts and Trustees (6th Ed.), sec. 843, lays down the general rule that an action
at law will not lie against a trustee while the trust is still open; and in the concluding
paragraph of White v. Sheldon, 4 Nev. 280, this court, speaking through Lewis, J., said:
But it is argued an action for money had and received might have been maintained by
the plaintiff at the time the defendant sold the stock, and that in such case a period of two
years ought to bar his right.
received might have been maintained by the plaintiff at the time the defendant sold the stock,
and that in such case a period of two years ought to bar his right. We do not think that such
action could be maintained. Had Sheldon acknowledged in any way that any sum was due the
plaintiff, perhaps such an action might be maintained; but where, as in this case, it was
necessary for the plaintiff to establish facts out of which a trust was created, and then to show
that the trust property was converted into money, it is very certain that such facts could not be
established in an action brought simply to recover money. The plaintiff could not show
himself entitled to any relief whatever until an implied trust was established, which certainly
could not be done in a court of law and in an action of assumpsit; such trust can only be
established in an equity proceeding. So, too, this is the only character of action in which the
plaintiff could obtain full and adequate relief.
If Margrave did not know of the interest of the Pages in the securities deposited by them
with Walser, but took his interest without parting with a valuable consideration therefor, the
trust may be enforced against him. 39 Cyc. 526.
____________
42 Nev. 164, 164 (1918) Moore v. Rochester Weaver Mining Co.
[No. 2301]
M. B. MOORE and ROBERT H. YOUNG, Respondents, v. ROCHESTER WEAVER
MINING COMPANY, (a Corporation) and F. M. SCHICK, Appellants.
[174 Pac. 1017]
1. EstoppelElection of RemediesClaim Under or Against Conveyance.
Where one has an election either to ratify or disaffirm a conveyance, he can either claim under or against
it, but he cannot do both, and, having adopted one course, he cannot afterwards pursue the other.
2. EstoppelUnauthorized SaleConfirmation by Owner.
Where one without title or authority from real owner assumes to sell and convey land in fee, and true
owner, knowing facts, consents to and accepts proceeds of sale in satisfaction of his interest, he cannot
thereafter assert his legal title as against buyer.
3. Attorney and ClientDealing with ClientPresumption of fraud.
Where attorney deals with client for his own benefit, transaction is not only regarded with suspicion, and
closely scrutinized, but it is presumptively invalid for constructive fraud, a presumption to be overcome
only by the clearest evidence.
4. Attorney and ClientExaction of Additional Compensation.
Where an attorney, with the work he is required to do under his contract partially performed, exacts from
his client an additional compensation under threat of withdrawing from the case, nothing but the best of
reasons are sufficient to uphold the agreement.
5. EvidenceIntentConclusiveness of Testimony.
Though intent is a matter of fact that ordinarily may be testified to by the person whose intent is in
question, if the reason for the motive is equivocal, it is not conclusive as against presumptions and
inferences equally as credible.
6. Quieting TitleAid of Legal TitleBurden to Establish.
Where one comes into equity seeking equitable relief in aid of a legal title, he must first establish such
legal title; and where it is doubtful the court will not grant the relief.
7. EstoppelRatification of ConveyanceAcceptance of ProceedsSufficiency of
Evidence.
In action to quiet title to undivided interest in mining claims, evidence held to show plaintiffs were
prevented from asserting legal title as against title of defendant company after having ratified their grantor's
acts in conveying to defendant by accepting from him half of proceeds of sale of property by him.
8. Appeal and ErrorPresumption Against Trial CourtFindings.
Fact that trial court refused to find as requested, not showing court did not find at all, and record not
affirmatively showing court either failed or refused to follow practice act, supreme court will not presume
against regularity of proceedings of trial court as to findings.
9. Appeal and ErrorHarmless ErrorFailure to Find as Requested.
Appellant company held not prejudiced by trial court's refusal to find as requested, especially in view of
exhaustive decision covering all issues, and additional finding, made before motion for new trial was
disposed of, in conformity to particular issues of title to property in suit made by complaint and
cross-complaint.
Appeal from Sixth Judicial District Court, Humboldt County; Edward A. Ducker, Judge.
Action by M. B. Moore and Robert H. Young against the Rochester Weaver Mining
Company, a corporation, and F. M. Schick. From judgment for plaintiffs, defendants appeal.
Reversed, and cause remanded, Coleman, J., dissenting in part.
Hoyt, Gibbons & French and H. J. Murrish, for Appellants:
The respondents, by reason of having received the $2,500, the sum being one-half of the
purchase price paid by Schick to Olson for all of the latter's interest in the Weaver group,
thereby estopped themselves from denying the appellants' title. It is well settled that a person
shall not be allowed at once to benefit by and repudiate an instrument, but, if he chooses to
take the benefits which it confers, he shall likewise take the obligations or bear the onus
which it imposes. Alexander v. Winters, 24 Nev. 146; Marye v. Martin, 9 Nev. 28. One
who has accepted the benefits of an invalid contract is estopped from asserting its invalidity.
Sage v. Finney, 135 S. W. 996; Hilton v. Meier, 100 N. E. 962; Hector v. Warren, 124 S. W.
1119; McCormick v. Unity Co., 87 N. E. 924; Barnes v. Vandiver, 62 S. E. 994; Keel v.
Jones, 47 So. 385; Grooms v. Mullett, 113 S. W.
683; McCoy v. Niblick, 70 Atl. 577; Dunham v. Milhous, 70 Ala. 596; Seymour v. Lewis, 78
Am. Dec. 108; Sutton v. Baldwin, 58 N. E. 335. When the owner of land stands by and sees
another sell it, or the minerals therein, and says nothing, and especially when he receives a
part or all of the purchase money, he will be estopped to thereafter claim the property.
Manning v. Kansas Coal Co., 81 S. W. 140; Hunt v. Wright, 139 S. W. 1007; Hawks v.
Smith, 81 S. E. 200; Jones v. Langhorne, 34 Pac. 997. Where one having the right to accept
or reject a transaction takes and retains benefits thereunder, he becomes bound by the
transaction and cannot avoid its obligations or effect by taking a position inconsistent
therewith. 16 Cyc. 787. A party cannot apply to his own use that part of the transaction
which may bring to him a benefit and repudiate the other which may not be to his interest to
fulfil. Heath v. West, 28 N. H. 108.
On failure of the trial court to find on the issues made by the pleadings in an action, the
judgment must be reversed on appeal and the cause remanded for a new trial. For a failure
on the part of the court below to find on the issues made by the pleadings in the case, the
judgment must be reversed and the cause remanded for a new trial. Conklin v. Stone, 6 Pac.
378. There is no finding on the issue raised by the answer as to the averments in
justification; the findings are silent upon this subject. Judgment and order reversed. Hawes
v. Green, 3 Pac. 496. It will not be disputed that a conflict of evidence does not deprive a
party of the right to have a finding upon a material issue. Williams v. Pratt, 10 Cal. App.
625, 103 Pac. 151.
It is not sufficient that there is a conflict in the evidence, but such conflict must be a
substantial conflict. State v. V. & T. R. R. Co., 23 Nev. 283.
L. G. Campbell, R. H. Young, and M. B. Moore, for Respondents:
Estoppel can operate only between parties to the transaction or their privies, and the party
who pleads an estoppel must be one who has acted in good faith and who has been misled
by the conduct of the party whom he seeks to estop, to his injury.
an estoppel must be one who has acted in good faith and who has been misled by the conduct
of the party whom he seeks to estop, to his injury. Butler v. Supreme Court of Foresters, 53
Wash. 125, 101 Pac. 481; 16 Cyc. 777. Before a person can sustain a plea of estoppel against
another, he must have been informed of the facts pleaded, and have relied upon them. Chellis
v. Coble, 15 Pac. 506; 16 Cyc. 742, 770, 875; Bigelow on Estoppel, 6th ed. 492, 732, 738,
745; Jacobs v. Miller, 50 Mich. 119. Before an estoppel can be raised there must be certainty
to every intent, and the facts alleged to constitute it are not to be taken by argument or
inference. 16 Cyc. 748; Halbert v. De Bode, 15 Tex. Civ. App. 615; Van Bibber v. Beirne, 6
W. Va. 168, 178; Ware v. Cowles, 24 Ala. 446, 60 Am. Dec. 482; 11 Ency. Law, 2d ed., 242.
There can be no estoppel by ratification against the respondents, for the reason that there
was no intention on the part of respondents to adopt and be bound by the acts of Olson. It
must be clearly shown in order to operate as an estoppel that the parties receiving the money
receive it, not only knowing of the facts, but with the intention of ratifying the transaction,
and not for any other purpose. Town of Ansonia v. Copper, 33 Atl. 905; Garbett v. Maye &
Donovan, 52 Atl. 495; Gunn v. Manhaska Co., 136 Atl. 929.
Acts and declarations or silence to create an estoppel in pais must be wilfully intended to
lead the party setting up the estoppel to act upon them. Gardner v. Pierce, 22 Nev. 146.
Evidence of estoppel in pais should be carefully scrutinized, as it is a dangerous species of
evidence, liable to abuse. Davis v. Davis, 26 Cal. 24.
The law is well settled that where findings are sufficient to sustain a judgment, failure to
find on other issues, which could not change the result, is harmless. It is perhaps hardly
necessary to add that if the findings actually made (which are sufficient to support the
judgment) were sustained by the evidence, the failure to find upon additional issues, which
could not affect the result, would be entirely immaterial."
result, would be entirely immaterial. Robinson v. Muir, 90 Pac. 521. When the court finds
in an action for trespass that the ownership was in defendant, a failure to find on affirmative
defenses does not prejudice plaintiff. Murphy v. Bennett, 9 Pac. 738; Hutchings v. Castle, 48
Cal. 152; Daly v. Sorocco, 22 Pac. 211. Judgment will not be reversed for failure to find on
a material issue, which, if made, must be against appellant. White v. White, 23 Pac. 276;
O'Connor v. Clarke, 44 Pac. 482; Bank v. Bank, 80 Pac. 820.
Findings on ultimate facts are all-sufficient, and therefore the court must have found the
probative facts in favor of respondents. Chaffee-Miller Land Co. v. Barber, 97 N. W. 850;
Fritchetts v. Victoria Land Co., 101 N. W. 655.
This was an action to quiet title and to remove a cloud from the respondents' title to an
undivided one-fourth interest in three contiguous lode mining claims, situate in the Rochester
mining district, Humboldt County, Nevada, known as the Weaver group.
The main question to be considered on this appeal is, whether the respondents by their acts
and conduct are prevented from asserting their title to the property in controversy as against
the appellant company, which claims title to the whole of the property in dispute.
The appellant company, by its answer, set up two equitable defenses, either of which, if
sustained, constitutes a complete defense to the action. One was in form an affirmative
defense, admitting the execution and delivery to the respondents of a deed purporting to
convey to them an undivided one-fourth interest in the Weaver group, but that their said deed
was obtained by fraud. The other was in form a separate and distinct defense, in substance
and to the effect that the respondents knew at the time their title accrued that their grantor
had, prior thereto, executed a deed conveying his entire interest in the premises to the
appellant Schick, and with full knowledge of the material facts, ratified the acts of their
grantor by accepting from him one-half of the proceeds of the sale of the property.
ratified the acts of their grantor by accepting from him one-half of the proceeds of the sale of
the property.
Whether, upon the facts proved, a case was made upon which, according to the principles
of equity, the respondents are prevented from asserting their legal title against the appellant
company, is the real point in controversy. The point is important as between the parties, and
still more important because it involves in its wider aspects a question affecting the security
of all title to real property and a consideration of the circumstances under which a legal title
may be practically subverted and lost, although the true owner has never executed any deed or
conveyance of or any writing agreeing to convey his land. Thompson v. Simpson, 128 N. Y.
284, 28 N. E. 627. Such defense to an action of this character rests upon the plain principle of
justice of right, and law, that a man cannot accept the benefits and reject the burdens of a
transaction, and not upon any of the essential elements of estoppel in pais.
1. Where one has an election either to ratify or disaffirm a conveyance, he can either claim
under or against, but he cannot do both. And having adopted one course, he cannot afterwards
pursue the other. And it is wholly immaterial, of course, what may be the infirmities of the
transaction abstractly considered; if he elects to take under it, he thereby cuts himself off from
attacking it. It is good as to him, though it may be bad as to everybody else. Kahn v. Peter,
104 Ala. 531, 16 South. 524.
Upon this principle, the books abound with cases in which those who are entitled to avoid
a sale, or to adopt and ratify it, or to claim under or in opposition to a conveyance, by
accepting the proceeds of the sale, or the benefits of the conveyance, preclude themselves
from avoiding it. Goodman v. Winter, 64 Ala. 434, 38 Am. Rep. 13.
2. The rule is, that where one, without title or authority from the real owner, assumes to
sell and convey the land in fee, and the true owner, knowing the facts, consents to and does
accept the proceeds of the sale in full satisfaction of his interest, this ought in equity to
operate as a confirmation of the unauthorized sale, and preclude the real owner from
asserting his legal title.
satisfaction of his interest, this ought in equity to operate as a confirmation of the
unauthorized sale, and preclude the real owner from asserting his legal title. The sale in the
case supposed is treated as his act, or at least it operates in connection with the receipt of the
purchase money as an agreement on his part to sell to the purchaser and as a payment by the
latter to the true owner of the consideration. Thompson v. Simpson, supra.
The acts relied upon in this case as constituting ratification of the unauthorized acts of
respondents' grantor are that the respondents, with full knowledge of all the material facts,
accepted from him one-half of the purchase price of the property in controversy. To rebut the
presumption and inference deducible from their act, the witness Moore, one of the
respondents, testified that their intent and motive for accepting from their grantor a sum
equivalent to one-half of the proceeds obtained by him from his unauthorized conveyance of
the property was not to ratify or affirm the conveyance, but was demanded as and for an
additional compensation for legal services to be performed as attorneys in behalf of their
grantor in an action then pending between him and his grantee Schick, involving the former's
title to other mining ground, and to support his statement the witness gave in detail an
account of the transaction whereby respondents received from their grantor a sum equal to
one-half of the proceeds of the sale of the property. From the testimony of this witness, and
facts and circumstances connected with it, the trial court found, quoting from its decision,
that:
Moore's testimony in this regard is satisfactory, and from it the court concludes that
plaintiffs' conduct in reference to the transaction did not amount to a ratification of Olson's
acts in accepting $5,000 from Schick for his interest in the Weaver claims, and therefore does
not constitute an estoppel.
The duty devolves upon us, at the expense of prolixity, to review the evidence upon which
this finding is based, and determine if the evidence is such as to prevent the respondents
from asserting in equity their legal title against the appellant company.
respondents from asserting in equity their legal title against the appellant company.
One Olson, respondents' grantor, and one Schick, the appellant, were the owners of the
Weaver group and other mining ground, situate in the Rochester mining district. Olson, on
the 28th day of October, 1912, conveyed to Schick his undivided one-half interest in the
Weaver group. The deed was placed in the First National Bank of Lovelock, with instructions
to the bank, signed by both parties, to deliver the deed to Schick on the payment by Schick
into the bank, to the credit of Olson, the consideration expressed in the deed, to wit, $5,000,
according to the payments named in the instruction to the bank. Shortly after this transaction,
Olson apparently became dissatisfied with the relationship existing between him and Schick,
and on the 10th day of December, 1912, consulted his attorney, the respondent Young,
concerning his legal rights in the premises. The witness Moore, upon solicitation of Young,
participated in the conference, and as a result the following agreement or memorandum was
signed by Olson:
I hereby employ R. H. Young of Lovelock, and Stoddard, Moore, and Woodburn of
Reno, Nevada, as my attorneys to represent me and my interests, and to take such action by
suit or otherwise to secure for me the interest to which I am entitled in mining ground located
in Rochester Canyon or vicinity in Humboldt County, Nevada, by F. M. Schick in our names
jointly, or his, F. M. Schick's, or any claim located by him or any other person or persons, and
being without funds to pay my said attorneys, I hereby agree to allow them as payment for
said services to be rendered, and I do hereby agree with my said attorneys to pay over to them
and transfer to them one-half (1/2) of all money or property which now stands in my name
and said Schick's name or which they may secure for me from said Schick or any other person
or persons or corporation by action, suit or in way of settlement with said Schick or any other
person, persons or corporation.
Thereupon the respondents, with the authority and consent of Olson, and over his
signature, gave notice to the bank and to Schick of his rescission and repudiation of the
deed of October 2S, 1912, and caused to be posted a similar notice upon the ground in
controversy, and thereafter notified all parties dealing with Schick for the purchase of the
Weaver group of Olson's repudiation of the instrument, and also, on later dates, gave
notice to others dealing with Schick of respondent's title to an undivided one-fourth
interest in the property.
consent of Olson, and over his signature, gave notice to the bank and to Schick of his
rescission and repudiation of the deed of October 28, 1912, and caused to be posted a similar
notice upon the ground in controversy, and thereafter notified all parties dealing with Schick
for the purchase of the Weaver group of Olson's repudiation of the instrument, and also, on
later dates, gave notice to others dealing with Schick of respondent's title to an undivided
one-fourth interest in the property. On the 18th day of December, 1912, Olson executed,
acknowledged and delivered a deed, at the request and solicitation of the respondent Young,
conveying to the respondents an undivided one-fourth interest in the Weaver group, the
Rochester group, the Crown Point Extension and the Weaver Extension lode mining claims.
This deed was filed for record on the 23d day of December, 1912.
Pursuant to their employment, the respondents, on or about the 23d day of December,
1912, filed suit in the name of Olson v. Schick to establish Olson's undivided one-half
interest in and to the Rochesters, the Crown Point Extension, and the Weaver Extension
locations, and pursuant to their employment, on the 9th day of January, 1913, filed suit in the
name of Olson v. Schick to annul the deed of October 28, 1912, on the ground of fraud and
deceit, and also filed contemporaneously therewith notice of lis pendens, and on the 20th day
of January, 1913, filed an amended complaint in the cause, all the pleadings being verified by
Olson.
Olson, without the knowledge of the respondents, and after he had been advised and
instructed not to accept any money from Schick on account of the transaction with him in
connection with the Weaver group, had actually on or about the 6th day of January, 1913, and
before the filing of the suit to cancel his deed to Schick of the Weaver group, accepted the
sum of $1,000 on the purchase price of the property; and, without the knowledge of
respondents, on or about the 13th day of January, 1913, Olson was paid the remaining sum of
$4,000 in accordance with the escrow instructions accompanying the placing of the deed
in the bank, and, without their knowledge or consent, the deed was delivered by the bank
to Schick on the 12th day of January, 1913.
in accordance with the escrow instructions accompanying the placing of the deed in the bank,
and, without their knowledge or consent, the deed was delivered by the bank to Schick on the
12th day of January, 1913. On or about January 30, 1913, upon discovering for the first time
that Olson had accepted the said sum of $5,000, they procured an interview with him, and
learned from him that he had accepted the said sum in full satisfaction of all of his right, title,
and interest in and to the Weaver group from appellant Schick, and learned, from some
source not disclosed by the record, that Olson also had signed an agreement ratifying a deal
which Schick had made with third parties for the Crown Point Extension, and learned also,
from some source not disclosed by the record, that Olson had been negotiating with Pitt and
McIntosh, who held a contract from Schick, for the five original Rochester claims; all of
which mining ground formed the basis of the suit pending to establish Olson's one-half
interest in those particular properties.
The testimony of the witness Moore bearing directly upon the transaction concerning the
demand and payment of a sum equal to one-half of the purchase price received by Olson from
the sale of the Weaver group is as follows:
We went to Young's Hotel, where he was, and asked him to come to the office; we
wanted to see him. He came to the office, and I said to him, Nelse, have you taken that
$5,000 from the bank?' He said, No.' I said, I am informed that you have,' and repeated my
question. And then he said, I did.' I said, Why did you take it?' Well,' he said, a friend of
mine told me it was over there, and I might just as well take it down.' I said, Do you know
what you have done by taking that money?' He said, No.' I said, You have forfeited all claim
that you had to the Weaver property, and you have no chance whatever to recover on account
of the suits you have brought.' I said, When did you get this money?' He said, About two
weeks ago.' I said, You had this money when you filed this last complaint?' He said, 'I
did.' I said, 'Who told you to take this money down?' He said, 'A friend of mine, and I don't
want to tell you who it was,' or something to that effect. 'They told me I might as well
take this money as not, and that I wouldn't affect my suit against the Weavers.' I said, 'As
far as you are concerned you are out of the Weavers, but it hasn't and won't affect Mr.
had this money when you filed this last complaint?' He said, I did.' I said, Who told you to
take this money down?' He said, A friend of mine, and I don't want to tell you who it was,' or
something to that effect. They told me I might as well take this money as not, and that I
wouldn't affect my suit against the Weavers.' I said, As far as you are concerned you are out
of the Weavers, but it hasn't and won't affect Mr. Young and myself.' I said: Nelse, it seems
to me that you haven't played fair with us. You have permitted us to commence this action
and prosecute it after you had taken the money, and you have kept it from us all this time.
You have also permitted us to commence an action on your grubstake contract,' which we had
commenced. * * * I said, You have signed an agreement with Farris and Organ to ratify any
deal they might make with Mr. Schick, and you have been flirting with McIntosh and Pitt,
and you are placing this other suit in such a condition that it is making our work much harder
for us, and if you continue it will be impossible for us to be successful, and I am not going on
with this litigation under present circumstances, and in order for me to go on with your
litigation you will have to pay me for it,' to which he made some objection. I said, On
account of your conduct you cannot be relied upon, and the first thing we know we will be
entirely out of our contingent fee on the Crown Point Extension, Rochester Extension, and
Weaver Extension.' And he wanted to know how much we wanted, and I said, Twenty-five
hundred dollars.' He demurred to that at first, but finally said, All right; the money is in the
bank.' And we went to the bank, and the money wasn't there at that time, we were informed.
So we came outside of the bank, and he said he would get it. Mr. Young and I went back to
Mr. Young's office, and in the course of an hour, I think it was, Mr. Olson came back with a
check book which hadn't any check taken out, and Mr. Young made out a check, and Mr.
Olson signed it. Mr Young went to the bank, and brought me back a certified check for
$1,250, payable to Stoddard & Woodburn."
bank, and brought me back a certified check for $1,250, payable to Stoddard & Woodburn.
The respondents invoke the rule of conflict of testimony, and insist that we are precluded
from disturbing the finding of the court on appeal because of this universal rule. We are
unable to concur in this view, for the reason that it affirmatively appears from the finding that
it is made to rest upon the uncontradicted testimony of the witness Moore, and was to the
effect that the respondents' conduct did not amount to a ratification of Olson's act in accepting
the $5,000 from Schick for his interest in the Weaver group, and therefore did not constitute
an estoppel. The witness Moore is a lawyer of ability and high standing at this bar, and his
testimony must be construed, scrutinized, and criticized in the light of the intellectual plane
upon which the testimony of such witness is placed. The credibility of the witness is not in
question, but the credibility of his testimony is. These terms are by no means equivalent.
Without the slightest reflection upon the integrity or standing of the witness, his testimony
may fail to win belief apart from any considerations definitely affecting the personality of the
witness. 2 Moore of Facts, sec. 976. The witness Moore evidently felt the necessity of having
to explain, or in some manner overcome, the presumption or inference standing in opposition
to his statement that respondents actually received, with knowledge of all the material facts,
one-half of the proceeds obtained by Olson for the conveyance. The reasons assigned by the
witness for his act were apparently satisfactory to the trial court. In its decision it states:
The reasons given by Moore, for exacting further compensation from Olson, namely, that
by his action he had involved and rendered more difficult their work in the litigation
undertaken in his behalf, was sufficient to justify them in that course.
The testimony does not so impress us; on the contrary, it is far from being satisfactory. We
do not doubt that the witness conscientiously felt that respondents, in view of their
contingent fee and their client's conduct, were justified in exacting from him all that the
"traffic would bear"; that is to say, one-half of what Olson received from Schick for the
Weaver group, and still hold a one-fourth interest in the Weaver group, one-half of the
stock recovered in the suit involving the other properties, and also one-half of Olson's
interest under the contract in all properties standing in the name of Schick in which Olson
had an interest.
that the witness conscientiously felt that respondents, in view of their contingent fee and their
client's conduct, were justified in exacting from him all that the traffic would bear; that is to
say, one-half of what Olson received from Schick for the Weaver group, and still hold a
one-fourth interest in the Weaver group, one-half of the stock recovered in the suit involving
the other properties, and also one-half of Olson's interest under the contract in all properties
standing in the name of Schick in which Olson had an interest. But it is our view that the
relationship of the parties existing at the time of the transaction weakens the testimony, and
that the reason or explanation for their act is not conclusive as against the facts and
circumstances in opposition to it. The respondents knew the material facts; they demanded
just one-half of what their grantor received for his interest; the demand was coincident in time
with the receipt of the money by Olson, and the sum thus demanded and received would give
to them a much larger fee than that agreed upon in their written contract with Olson.
3, 4. No principle has been so rigidly adhered to by the courts of this country and England
than that, where an attorney deals with his client for the former's benefit, the transaction is not
only regarded with suspicion and closely scrutinized, but it is presumptively invalid on the
ground of constructive fraud, and that this presumption can be overcome only by the clearest
and most satisfactory evidence. The rule is founded in public policy, and operates
independently of any ingredient of actual fraud, being intended as a protection to the client
against the strong influence to which the confidential relation naturally gives rise. Thomas v.
Turner's Admr., 87 Va. 1, 12 S. E. 149, 668; Elmore v. Johnson, 143 Ill. 513, 32 N. E. 413,
21 L. R. A. 366, 36 Am. St. Rep. 401. It is said in a leading case that:
Integrity of character and purity of motive have never enabled such contracts to stand in
full force, against the principle of equity, which commonly excludes all inquiry into the
fairness of the transactions, and sets them aside, as violations of the policy of justice."
them aside, as violations of the policy of justice. Lecatt v. Sallee, 3 Port. (Ala.) 115, 29 Am.
Dec. 249.
We do not go to the extent of this case and hold that such an agreement is invalid and
cannot be enforced. The weight of authority does not go that far. But where an attorney, with
the work he is required to do under his contract partially performed, exacts from his client an
additional compensation under a threat of withdrawing from the case if the agreement was not
made, nothing but the best of reasons would be sufficient to uphold the agreement. Bolton v.
Daily, 48 Iowa, 348. The reason given by respondents as the consideration for exacting an
additional fee is but a loose statement that respondents had learned that their client had been
dealing with his adversary Schick, and with third parties concerning the sale of the property
involved in other litigation. In what respect this conduct rendered their duties more
burdensome under their continuous contract of employment is a matter of pure conjecture and
speculation. Ordinarily such conduct, in the absence of other evidence, might tend to lessen
rather than increase their labor, as the dealings complained of might be construed as a
recognition by Schick and others of Olson's interest in the property which the litigation
sought to establish. It is difficult to see how such conduct would render their labor so much
harder as to justify the respondents in making a threat to withdraw from Olson's litigation if
the sum demanded of him was not paid. It is, however, readily perceived how Olson's conduct
if persisted in might in a measure complicate the collection of their contingent fee. But it
appears that prior to the institution of this suit the respondents had received all that was
coming to them under their contract with Olson. It is true Olson appears to have been
exceedingly changeable in humor and inconsistent in his acts, but the trial court characterizes
Olson as being a laboring man, and, depending solely thereon for a livelihood, without
previous experience in business affairs of legal matters, he became unexpectedly precipitated
into litigation, with the prospects of losing or acquiring what to him seemed a considerable
sum of money, an amount not exactly "beyond the dreams of avarice," but still a
substantial sum to a man in his situation in life.
considerable sum of money, an amount not exactly beyond the dreams of avarice, but still a
substantial sum to a man in his situation in life.
We are impressed from the anxiety evinced on the part of respondents to protect
themselves at every stage of the proceedings against the pitfalls or temptations that might
overcome their client, that they must have had in mind just such a situation as that which
confronted them at the time they first learned that Olson had received $5,000 for his interest
in the Weaver group. They recorded their deed and gave, to all parties dealing with Olson and
Schick for the purchase of the Weavers, notice of their interest therein. They may have been
justly entitled under their contract to one-half the sum of $5,000, but they could not, knowing
the facts, take and appropriate it to their own use and then attack the deed for which the said
sum had been received by their grantor.
5, 6. It is true that intent is a matter of fact that ordinarily may be testified to by the person
whose intent is in question, but if the reason for the motive is equivocal, it is not conclusive
as against presumptions and inferences equally as credible. We take it that, where the latter
are convincing or persuasive, evidence equally strong is necessary to relieve the parties of the
prejudicial effect of the presumptions or inferences. The mere statement of an intent based
upon a reason that does not support it certainly is not evidence of such a character as is
necessary to overcome the presumption standing in opposition to it. We are here called upon
to lay down a rule that affects all title to real estate, and are mindful that: Where one comes
into a court of equity seeking equitable relief in aid of a legal title, the party must first
establish his legal title, and where the latter is doubtful the court will not grant the relief. Low
v. Staples, 2 Nev. 209; West v. Schnebly, 54 Ill. 523; Huntington v. Allen, 44 Miss. 654;
Sanford v. Cloud, 17 Fla. 568; Story's Eq. Jur. (12th Ed.) 700, note.
7. From all the evidence we are impelled to conclude that the respondents by their own
showing are prevented from asserting their legal title to the premises in controversy as
against the title of the appellant company, and that the finding of the trial court is not
warranted by the evidence.
that the respondents by their own showing are prevented from asserting their legal title to the
premises in controversy as against the title of the appellant company, and that the finding of
the trial court is not warranted by the evidence.
The principal point made on the appeal from the judgment is that the findings do not
support the judgment, in that the court refused to correct or modify its findings as requested
by the appellant company, and that there is an entire want of findings upon its defenses, and
the judgment is against law.
8. The fact that the court refused to find as requested does not show that the court did not
find at all, and as the record does not affirmatively show that the court either failed or refused
to follow the practice act, we will not indulge in presumptions against the regularity of the
proceedings of the trial court in this particular. Schwartz v. Stock, 26 Nev. 143, 65 Pac. 351.
It is universally held that, where the system of express findings prevails, if the court fails
to make findings on every material issue it constitutes reversible error. But Nevada is not
classed as one of those states where such system prevails. Haynes, New Trial and Appeal,
sec. 238.
The authorities cited by counsel for the appellant company from California have been
heretofore answered by this court in the case of Dutertre v. Shallenberger, 21 Nev. 509, 34
Pac. 450, where the court said that:
Under the present California system, the express findings must support the judgment,
and, if they do not, the case will be reversed; but with us there is an implied finding in favor
of the judgment, of all facts properly pleaded.
This court has also held that, where a judgment is rendered for plaintiff upon certain
findings in his favor without reference to the findings of fact upon certain issues raised in
defendant's answer, it will be presumed that such findings were found. More v. Lott, 13 Nev.
376; Langworthy v. Coleman, 18 Nev. 440, 5 Pac. 65.
9. We are of the opinion that the appellant company was not prejudiced by the court's
refusal to find as requested, especially in view of the able and exhaustive decision covering
all of the issues, and the additional finding made before the motion for a new trial was
disposed of in conformity to the particular issues of title to the property made by the
complaint and cross-complaint. Section 5227 of the Revised Laws, as amended by Stats.
1915, p. 218.
The appeal from the order making the Rochester Mining Company a party defendant after
the cause was tried on its merits is not discussed, and we pass no opinion thereon.
The judgment is reversed, and the cause is remanded.
McCarran, C. J.: I concur.
Coleman, J., dissenting in part:
I concur in the order, but for reasons other than those assigned in the foregoing opinion.
The complaint in the action is in the usual form to quiet title to real estate. The answer denies
certain allegations of the complaint, and sets up an affirmative defense, wherein certain facts
are alleged which, it is contended, estop the plaintiffs from asserting title to the property in
question. The case was tried before the court without a jury. The court made findings of fact
sustaining the allegations of the complaint, but made no finding as to the affirmative defense
of estoppel, though specific request was made therefor by counsel for defendants, and
exceptions were taken as provided by our statute to the refusal of the court to make such
findings.
In my opinion, the action of the court in refusing to comply with the request and make
findings upon such plea of estoppel justifies a reversal of the judgment. It is insisted by
respondents that it necessarily follows from the general finding sustaining the allegations of
the complaint that the court made a finding upon the affirmative plea of estoppel pleaded by
the defendants. While it is a well-recognized rule of law in Nevada that, where there is no
special finding, and only a general finding in favor of a party, the finding will be construed
on appeal so as to sustain the judgment, still, where the losing party requests specific
findings upon an issue, and the court refuses to make findings thereon, nothing can be
presumed in favor of the findings so made, and it is the duty of the appellate court to
reverse the judgment.
where there is no special finding, and only a general finding in favor of a party, the finding
will be construed on appeal so as to sustain the judgment, still, where the losing party
requests specific findings upon an issue, and the court refuses to make findings thereon,
nothing can be presumed in favor of the findings so made, and it is the duty of the appellate
court to reverse the judgment. In my opinion, the defendants were entitled to a finding upon
the affirmative defense of estoppel, that this court might determine if the law was properly
applied to the facts found. I think my view is amply sustained by prior decisions of this court.
In Warren v. Quill, 9 Nev. 259, it is said:
Each party is undoubtedly entitled to a finding upon every issue raised that is essential to
the determination of the case, and the findings ought always to contain a concise statement of
each specific essential fact established by the evidence; but this duty is not made obligatory
upon the court unless the proper steps are taken by counsel.
What are the proper steps alluded to in the quotation just given? Clearly, a specific request
for a finding upon the issue upon which there is no finding. In the case of Welland v.
Williams, 21 Nev. 230, 29 Pac. 403, the court says:
If all the issues in the case have not been covered, findings upon the omitted points may
be requested, when it will become the duty of the court to supply them. Hathaway v. Ryan, 35
Cal. 191. If not so requested, the judgment will not be reviewed upon that point (Warren v.
Quill, 9 Nev. 259), unless it be upon an assignment of error that the evidence does not
support, or is contrary to, the implied finding. More v. Lott, 13 Nev. 377.
Nor do I think that the case of Dutertre v. Shallenberger, 21 Nev. 507, 34 Pac. 449, cited in
the opinion of the court, is contrary to the view which I have expressed; for, while it is said in
that case that with us there is an implied finding in favor of the judgment, the court also
says that there was no exception upon the ground that the findings were defective or for
want of a finding upon this point."
the findings were defective or for want of a finding upon this point. This statement clearly
shows that the court was not dealing with a situation such as is presented in this case. In that
case the court likewise says:
If then, we should admit that the findings as found in the transcript are upon this point
insufficient to support the judgment, in the absence of all exceptions to them, we must imply
a finding.
Thus we see that the court will imply a finding only in the absence of exceptions. In the
case at bar there was not only an exception, but a request for specific findings. To take any
other view than that which I have expressed would, it seems to me, be to overturn the
decisions of this court and violate the spirit of section 5345, Rev. Laws, which reads:
In cases tried by the court without a jury, no judgment shall be reversed for want of a
finding, or for a defective finding of the facts, unless exceptions be made in the court below
to the finding, or to the want of a finding; and in case of a defective finding, the particular
defects shall be specifically and particularly designated; and upon failure of the court below
to remedy the alleged error, the party moving shall be entitled to his exceptions, and the same
shall be settled by the judge as in other cases. * * *
In my opinion, the case of Schwartz v. Stock, 26 Nev. 143, 65 Pac. 351, is not in conflict
with the views which I have expressed. The court says:
An unanswerable reason exists which justified the trial court in refusing to make the
findings of fact after judgment, as requested by the appellant. The section of the practice act
above quoted does not authorize any such practice, and we have been unable to find any other
provision which does. If the court did not make the findings required by the section quoted, or
had made defective findings, the appellant had ample remedy, under the requirements of
another section, to correct the action of the court in the premises, and, in case of refusal to
make the correction, the matter could have been, by following the plain directions of the
statute, presented to us for review.
been, by following the plain directions of the statute, presented to us for review. Section 2 of
an act to regulate appeals in the courts of justice in this state (Comp. Laws, 3858) expressly
prescribes the method of presenting such matters to the appellate court. It provides that, in
cases tried by the court without a jury, no judgment shall be reversed for want of findings or
for a defective finding of fact, unless exceptions be made in the court below to the finding or
to the want of finding, and, in case of defective finding, the particular defects shall be
particularly and specifically designated; and, upon failure of the court below to remedy the
alleged error, the party moving shall be entitled to his exceptions, and the same shall be
settled by the judge as in other cases. It further prescribed the time within which such
exceptions shall be filed. The record does not show that there was a want of finding or
defective finding; neither does it show that any of the steps required by the statute were taken
to correct any want of findings or defective findings, or that any exception or other action was
taken in the matter further than is indicated above. This matter has been before this court,
considered, and determined, and, under the cases presented and decided, we must hold that
the appellant's claim is without merit. McClusky v. Gerhauser, 2 Nev. 52, 90 Am. Dec. 512;
Whitmore v. Shiverick, 3 Nev. 312; State v. Manhattan Co., 4 Nev. 336; Warren v. Quill, 9
Nev. 263; Welland v. Williams, 21 Nev. 230, 29 Pac. 403.
But it is nowhere urged by counsel for respondent that the rule which I contend for and
which is urged by appellant, both upon oral argument and in the brief, is not the law of this
state, but it is said that the case does not fall within the rule, and reliance is had upon the case
of Daly v. Sorocco, 80 Cal. 367, 22 pac. 211, and the case of Murphy v. Bennett, 68 Cal. 528,
9 pac. 738, to sustain their contention. There is nothing in those cases in conflict with the rule
invoked. The decision in each of those cases was in favor of the defendant, and all that was
necessary to defeat the plaintiff's recovery was a finding against him upon the cause of
action made by his complaint.
finding against him upon the cause of action made by his complaint. To prevail he had to
sustain the allegations therein contained. As was said in Murphy v. Bennett, 68 Cal. 528, 9
Pac. 738:
There should be findings upon all the material issues in the case, but a judgment will not
be reversed for want of a finding on a particular issue, where it is apparent that the failure to
find on that issue is in no way prejudicial to the appellant.
In other words, if plaintiff failed to sustain the cause of action, he could not recover, and
hence it was not necessary for the court in the case mentioned to make findings as to the
affirmative matter pleaded in the answer; but in the case at bar, in which the court may have
found the legal title to the property in question in plaintiffs, it was necessary that the court
make findings of fact as to the plea of estoppel set up in the answer, that this court might
apply the law to the facts so found and determine whether or not the plea of estoppel should
be sustained.
Taking the view which I do, I have declined to consider the point urged in the opinion of
the court as a ground for a reversal of the judgment, believing that to consider the merits of
the case upon a point where there is no finding, though expressly requested, would be
contrary, not only to the spirit of our statute, but to the well-established practice.
____________
42 Nev. 185, 185 (1918) State v. Kuhl
[No. 2327]
STATE OF NEVADA, Respondent, v. B. E. KUHL,
ED. BECK, and WM. McGRAW, Appellants.
[175 Pac. 190]
1. Criminal LawEvidencePalm PrintsExperts.
Evidence of experts as to identity of palm prints of defendant in a homicide case with that found upon a
blood-smeared envelope found at place of crime was properly admitted.
2. Criminal LawEvidencePhotographsEnlargements.
In a homicide case, photographic enlargements of palm prints were properly admitted; no question being
raised as to accuracy of exhibits.
3. WitnessUse of Projectoscope.
In a homicide case, a projectoscope was properly used to illustrate the testimony of experts.
4. Criminal LawEvidencePhotographs.
Photographs of palm prints were properly admitted in evidence, although experts who testified in regard
to them had previously placed certain lines upon them; their existence and significance being fully
explained by the witnesses.
5. Criminal LawAppealObjection to Evidence.
Where the only objection to evidence was that the question had already been answered, appellate court
need not consider assignment that an expert testified positively as to a matter of opinion.
6. Criminal LawExpert Testimony.
While it is the usual practice for expert witnesses to testify as to their belief in a given conclusion, no rule
of law prevents them from testifying positively on such subjects.
7. WitnessesImpeachment.
If statement on a former occasion was brought home to witness on cross-examination, with elements of
impeachment incorporated therein, as to time, place, and party to whom made, which she denied, it was
proper for state, on rebuttal, to present party to whom former statement was made, and to propound, after
fixing time and place, exact language of witness sought to be impeached.
8. SundayCourt Proceedings.
Under the power given the court by Rev. Laws, 4870, subd. 2, to sit on Sunday to receive a verdict, the
court is necessarily authorized to remand a defendant and fix a date for further proceedings.
Appeal from Fourth Judicial District Court, Elko County; E. J. L. Taber, Judge.
42 Nev. 185, 186 (1918) State v. Kuhl
B. E. Kuhl and others were convicted of murder, and Kuhl appeals. Affirmed, with
directions.
Edwin E. Caine and Harold P. Hale, for Appellant:
Where there is no evidence at all tending to prove that the witness is qualified to testify as
an expert, or where there is palpable abuse of discretion, the ruling of the trial court is subject
to review. Jones on Evidence, vol. 2, p. 898.
None of the witnesses for the state, upon their foundation testimony, qualified as experts
upon the proposition of the palm print. The rules with respect to the use of expert evidence
are numerous. They follow, in the main, the principle of furnishing assistance to the jury upon
the subject to which the evidence relates. McKelvey on Evidence, p. 228. In a great variety
of cases where the subjects under investigation are wholly unfamiliar to the jury, or even to
the judge, there would be no adequate mode of arriving at any satisfactory conclusion, if
expert testimony were rejected. In recognition of this fact, the courts have adopted the rule of
permitting the opinions of witnesses whenever the subject-matter of inquiry is such that the
inexperienced are unlikely to prove capable of forming a correct judgment upon it without
assistance; in other words, when it so far partakes of the nature of a science as to require a
course of previous habit or study in order to attain a knowledge of it. Jones on Evidence, vol.
2, pp. 891, 892. To qualify, a general knowledge of the department to which the subject
belongs would seem sufficient. Idem, 896. However, it seems an impossibility to require a
man to have a general knowledge of a science which apparently does not exist. The state
endeavored to present expert testimony upon a point never before discussed. The case falls
within the class where an opinion is asked upon an unknown quantity. Opinion evidence has
sometimes been excluded on the ground that the subject was beyond the powers of any
person, expert or nonexpert, to express an opinion, and in such case the jury must be left to
reach a result from the facts testified to in the best manner possible."
42 Nev. 185, 187 (1918) State v. Kuhl
in such case the jury must be left to reach a result from the facts testified to in the best manner
possible. McKelvey on Evidence, p. 228. The matter of palm prints is in such a condition,
statistically and otherwise, as not to permit of reasonably correct testimony in regard to it.
It was error to admit in evidence photographs containing lines and markings placed
thereon by the expert witnesses, the originals of the photographs being in the court for the
inspection of the jury. Pictorial evidence is not admissible where the original objects are
before the jury. McKelvey on Evidence, p. 424.
It was error to ask the expert witness whether or not he could make a positive statement as
to the identity of the hand that made certain prints. All that the witness could be permitted to
state was his opinion. Jones on Evidence, vol. 2, pp. 906, 908, 914.
Geo. B. Thatcher, Attorney-General, E. T. Patrick, Deputy Attorney-General, Wm.
McKnight, Deputy Attorney-General; E. P. Carville, District Attorney, and Chas. A.
Cantwell, Deputy District Attorney, for Respondent:
Admitting that there is a scientific basis for fingerprint identification, is there a scientific
basis for palmprint identification? This is the main point relied upon by appellant.
Identification by finger prints rests upon the primary assumption, made by writers and
students on the subject, that the papillary ridges which occur on the inner surface of the hands
and on the soles of the feet occur in countless variety of pattern and with innumerable
characteristics and distinctive marks of identification, and persist without change throughout
life. From that primary assumption, it follows that an imprint of those papillary ridges
furnishes an infallible means of identification. Identification by finger print has received the
unqualified sanction of the courts. State v. Cerciello, 52 L. R. A. 1010; People v. Jennings, 43
L. R. A. 1206; State v. Miller, 60 Atl. 202; State v. Conners, 94 Atl.
42 Nev. 185, 188 (1918) State v. Kuhl
Conners, 94 Atl. 812; People v. Roach, Ann. Cas. 1917a, 410. The palms of the hands and
the soles of the feet are covered with two totally distinct classes of marks. * * * The least
conspicuous marks, but the most numerous so far, are the so-called papillary ridges. * * *
They are in some respects the most important of all anthropological data. * * * They have the
unique merit of retaining all of their peculiarities unchanged throughout life, and in
consequence an incomparably surer criterion of identity than any other bodily feature.
Galton on Finger Prints.
Photographic enlargements of prints were admissible in evidence. Where the court is of
the opinion that comparison of the writing or matter in dispute may be facilitated by the use
of enlargements, it is proper to admit them. People v. Jennings, supra; Parker v. Rex, 3 Brit.
Rul. Cas. 68; Dederichs v. S. L. C. R. Co., 35 L. R. A. 802. Nor does the admissibility of the
enlargements seem to be at all affected by the fact that the originals are already in evidence.
However, photographs of instruments already in evidence, which are so enlarged as to make
the proportions plainer and to illustrate the testimony of witnesses, may go to the jury in the
same way as would magnifying glass or microscope. 17 Cyc. 420; Dederichs v. S. L. C. R.
Co., supra.
The admissibility of the enlargements was not affected by having on them lines and figures
made in ink by the expert (Sir E. R. Henry, Classification and Uses of Finger Prints); and an
expert may, instead of using enlargements, exhibit prints on a screen in the presence of the
jury, by means of a projectoscope, using plates prepared for that purpose. 35 L. R. A. 813.
An expert who has given his opinion as to identity may answer a subsequent question
calling for his positive statement. It is usual for expert witnesses to testify that they believe or
think, in their best judgment, that such and such a thing is true, and no rule of law prevents
them from testifying positively on such subjects. State v. Jennings, supra.
42 Nev. 185, 189 (1918) State v. Kuhl
It was not error for the trial court to receive and record a verdict on Sunday and on that day
set a time for sentence. State v. Rover, 13 Nev. 18.
In this case we are dealing with the appeal of B. E. Kuhl only. The appeal of Ed. Beck,
who was tried separately, is dealt with by this court in another opinion. [See No. 2330,
immediately following this case.]
The appellant, Kuhl, with his codefendants, were jointly informed against by the district
attorney of Elko County for the crime of murder. They were specifically charged with the
killing of one Fred M. Searcey, a United States mail-stage driver, at or near Jarbidge, in Elko
County, Nevada. The testimony was wholly circumstantial. One of the elements in the case
was an envelope, secured from one of the rifled mail sacks, on which was a bloody print or
impression of a portion of the palm of a human hand. The trial of the defendant Kuhl resulted
in a verdict of murder in the first degree, by reason of which the death penalty was imposed.
From the judgment, and from the order denying a new trial, this appeal ensues.
It is the contention of appellant here that the trial court erred in admitting the testimony of
the witnesses Stone and Botorff, offered in behalf of the state, as experts on palm-print
identification. From the record it is disclosed that the impression found upon the envelope
taken from the rifled mail sack was made by that portion of the palm which is immediately
below the base of the little finger of the left hand. In offering the testimony of the experts,
photographic enlargements and projectoscope views were used and presented to the jury.
Objections were interposed to these methods of presenting the evidence, and with such we
will deal during the course of the opinion.
The first question which we propose to discuss is a novel one, inasmuch as our research
has failed to disclose an expression from any court from which we might gain aid or
guidance.
42 Nev. 185, 190 (1918) State v. Kuhl
gain aid or guidance. After the arrest of the appellant, Kuhl, and while he was confined in the
jail at Elko, an impression was taken of the palm of his left hand, and particularly that portion
of the palm below the base of the little finger. The fact that the witnesses Stone and Botorff
testified that the two impressions were made by the same hand gives rise to that phase of the
appeal most strongly contended for by appellant.
Before testifying to their opinion as to the identity of the defendant's palm print with the
impression found upon the bloody envelope taken from the mail sack, each of the witnesses
fully explained his qualifications. Mr. Stone related in detail as to his study on the subject of
finger-print identification and classification. It is disclosed that his investigation and research
in this line had taken up his time almost continuously from the year 1908 or 1909 to the time
of the trial; that during that time he had been engaged by at least two recognized
identification bureaus, one under the state police department of the State of Nevada, the other
under the police department of the city of Fresno in California. He testified to having visited
numerous identification bureaus and to having attended conventions held by those engaged in
this science in the United States. The witness Botorff related an experience entailing research
and investigation in the line of finger-print identification and classification continuing from
the year 1903 up to the time of the trial. Each of the witnesses was, as the record discloses,
exhaustively and skilfully cross-examined on every phase of the subject that would bring
forth to the jury their ability or lack of ability to give a correct or worthy conclusion as to the
identity of finger-print impressions.
Were we dealing here with a finger-print impression, or the question of the comparison or
identity of finger-print impressions, our course would be easy, for the courts of this county,
and of England as well, have paved the way for the recognition of this science as an
evidentiary element in criminal prosecutions. The main contention here is that the experts
who testified were not qualified to give an opinion as to the identity of palm-print
impressions; and, as we understand the contention of appellant, it is that science has not
yet developed this question sufficiently to bear out the conclusion of an expert on the
subject.
42 Nev. 185, 191 (1918) State v. Kuhl
contention here is that the experts who testified were not qualified to give an opinion as to the
identity of palm-print impressions; and, as we understand the contention of appellant, it is
that science has not yet developed this question sufficiently to bear out the conclusion of an
expert on the subject. Will the same rule which has led the courts to recognize experts on
finger-print identification permit such experts to testify as to their conclusion upon palm-print
identification? This is the one vital question here.
The origin of finger-print identification may be traced back to a period a hundred years
before the birth of Christ. Scientific American, April 1, 1916, p. 356. By a Japanese scholar,
Mr. Kumagusu Minakata, in an article entitled The Antiquity of the Finger-Print Method,
we are told that the discovery of this phenomenon of identity, as it may be termed, was made
by the Chinese. In a most interesting article, entitled History of the Finger-Print System
(Annual Report of the Board of Regents of the Smithsonian Institution for the year ending
June 30, 1912, p. 631), Mr. Berthold Laufer traces the subject back to an era before the birth
of Christ. He refers to the writings of Kai Kung-Yen, an author who wrote about the year 650
A. D., and who makes allusion to the employment of finger-print impressions in his time, and
earlier, for the purposes of identification.
It may have come as a result of the diversified and extensive reading of the learned author
that, in his famous novel, Puddin' Head Wilson, Mark Twain causes one of his characters to
make the significant speech:
Every human being carries with him from his cradle to his grave certain physical marks
which do not change their character and by which he can always be identifiedand that
without shadow of doubt or question. These marks are his signature, his physiological
autograph, so to speak; and this autograph cannot be counterfeited, nor can he disguise it or
hide it away, nor can it become illegible by the wear of the mutations of time.
42 Nev. 185, 192 (1918) State v. Kuhl
of time. This signature is each man's ownthere is no duplicate of it among the swarming
millions of the globe. Upon the haft of this dagger stands the assassin's natal autograph,
written in the blood of that helpless and unoffending old man who loved you and whom you
all loved. There is but one man in the whole earth whose hand can duplicate that crimson
sign.
When these lines were written by the beloved author modern science and modern culture
had as yet failed to grasp the full significance of his words. Indeed, it was not until recent
years that the true force of the lines of the great Westerner could be fully appreciated.
However ancient may be the origin of this means of identification, it remained for Sir Francis
Galton to bring forth the principle in such a way as to gain the recognition of the world of
science. In his book published in 1892, we find the following significant paragraph:
We read of the dead body of Jezebel being devoured by the dogs of Jezreel, so that no
man might say, This is Jezebel,' and that the dogs left only her skull, the palms of her hands,
and the soles of her feet; but the palms of the hands and the soles of the feet are the very
remains by which a corpse might be most surely identified, if impressions of them, made
during life, were available.
All of the writers upon the subject, to whose lines we have had access, agree that the
palmar surface of the hands and the soles of the feet in men and monkeys are covered with
minute ridges that bear a superficial resemblance to those made on the sand by wind or
flowing water. Galton first gave expression to this fact; and Sir E. R. Henry, commissioner of
police of the metropolis of London, corroborates with the statement that the inner part of the
hand and the sole of the foot are traversed in all directions by lines of varying length. He says
that the most conspicuous are the creases caused by the folding of the skin, and the least
conspicuous but much more numerous lines are the papillary ridges which exist over the
whole palmar surface, giving it an appearance that may be likened to that of a newly
plowed field with its ridges and furrows, or to sand which the water, in receding from, has
left ribbed.
42 Nev. 185, 193 (1918) State v. Kuhl
ridges which exist over the whole palmar surface, giving it an appearance that may be likened
to that of a newly plowed field with its ridges and furrows, or to sand which the water, in
receding from, has left ribbed. In Mr. Frederick A. Brayley's book, entitled Finger-Prints
Identification, we find the following significant language:
God's finger-print language,' the voiceless speech, and the indelible writing imprinted on
the fingers, hand palms, and foot soles of humanity by the All-Wise Creator for some good
and useful purpose in the structure, regulation, and well-being of the human body, has been
utilized for ages before the civilization of Europe as a means of identification by the Chinese,
and who shall say is not a part of the plan of the Creator for the ultimate elimination of crime
by means of surrounding the evilly disposed by safeguards of prevention, and for the
unquestionable evidence of identity in all cases where such is necessary, whether it be in
wills, deeds, insurance, or commercial mediums of finance, as well as in the discovering and
identification of lawbreakers.
Mr. Tighe Hopkins, in his work, Wards of the State, makes extended reference to the
papillary lines as covering the palms of the human hands and the soles of the human feet. In a
work entitled Criminal Investigation, translated by John and J. Collyer Adam from the
work entitled System der Kirminalistik, by Dr. Hans Gross, extended reference is made to
the general subject. In a pamphlet published by Sir Wm. J. Herschel, dealing with the subject
of finger-print identification, we find a most interesting history of experiments made by the
learned author while acting in the British service in India. He interestingly relates of his
experimentation with his own whole hand and with his right foot, which he says after an
interval of fifty-seven years remained irresistibly unchanged. The Origin of Finger Printing,
by Sir Wm. J. Herschel, Humphrey Milford, Oxford University Press, June, 1916, p. 11.
42 Nev. 185, 194 (1918) State v. Kuhl
In his work Guide to Finger-Print Identification, by Henry Faulds, late surgeon
superintendent of Tsukiji Hospital, Tokyo, Japan, reference is made to the papillary ridges
found covering the face or palmar surface of the hands and feet of the human being. In a terse
and graphic little work entitled Hints on Finger Prints, written by Rai Sahib Hem Chandra
Bose, finger-print expert of Bengal, India, and a pupil of Sir Edward Henry, we find that,
after dwelling on the possibility of error in finger-print comparison, the author makes this
most significant assertion:
In fact, the indications on the inner surface of the hand are so numerous that, if half a
square inch of any part of it were all that remained, that would be enough in that it would
prove identity by comparison.
In his work entitled The Finger-Print Instructor, Mr. Frederick Kuhne, of the bureau of
criminal investigation of the police department of the city of New York, after dwelling at
length on the basis of finger-print identification and the methods of classifying finger-print
impressions, and especially upon the extent and usefulness of such identification, tells us that
in some European cities impressions of the palms of the hands are utilized as an additional
means of identification, especially because numerous patterns and characteristics appear in
the palms as well as in the fingers, and in his work (page 96) he sets forth an illustration
vividly portraying the truth of his assertion.
The lines on the palms of the human hand and the soles of the feet, which form the basis of
individual identification, are the papillary ridges. They serve the office of raising the mouths
of the ducts, so as to facilitate the discharge of the sweat, and perhaps perform the additional
functions of aiding the sense of touch and of giving elasticity to the skin of the hand, and,
having a vacuumistic tendency, they assist in preventing against slipping. These papillary
ridges form figures, patterns, or designs, which research, study, and science have divided into
classes named after their particular form, to wit, arches, loops, whorls, and composites.
42 Nev. 185, 195 (1918) State v. Kuhl
to wit, arches, loops, whorls, and composites. These patterns, as they have been established
and named by those who have become devotees to the science of finger-print identification,
while they have been discussed principally in connection with finger impressions, are not
confined to the human finger alone, but are found with equal importance and equal
persistency in the human palm and the sole of the human foot.
Mr. Harold J. Shepstone, in an article entitled The Finger-Print System of Identification,
appearing in the Scientific American of date October 1, 1910, at page 256, after dwelling
upon the wonderful lineations in the form of ridges and patterns which adorn the palmar
surface of the human hand, says:
One of the most interesting facts about this system is that every member of the human
race, irrespective of age or sex, carries in person certain delicate markings by which identity
can be readily established.
The learned author illustrates his article by a whole-hand impression showing the systems
and the identifying markings. In the issue of the Scientific American of date August 19, 1911,
there appears an article entitled No Two Finger Prints Alike, and there reference is made to
a communication addressed to the French Academy of Science by Mr. M. V. Balthazard, a
student of the finger-print science. This learned authority declares his findings to the effect
that, if any finger print be divided into a hundred squares, each square will contain some
distinctive mark. He says that two finger prints will differ from each other, either in the
arrangement of the marks in the different squares or in the character of the marks in a
particular square. He says the total number of combinations of the two kinds of marks
(branching or termination of ridges) in the 100 squares in the 100th power of 4. This, says
the author, is a number that no one can possibly imagine. It is equal approximately to a
number that would be represented by the figure 1 followed by 60 zeros. This means that there
are possible just so many different kinds of prints, and that no particular combination will
occur more frequently than others.
42 Nev. 185, 196 (1918) State v. Kuhl
kinds of prints, and that no particular combination will occur more frequently than others.
The chances of any particular combination of marks occurring may be represented by a
fraction with 1 as the numerator and a denominator represented by 1 followed by 60 zeros, a
very tiny fraction of a chance indeed. To the suggestion as to how many points must agree in
two finger prints to make sure of identity, this author bases his reply on mathematical
grounds, to the effect that, when two finger prints agree in 17 out of the 100 squares, it is
practically certain that they were made by the same finger. His reasoning in establishing this
basis is most interesting and instructive.
In the issue of Law Notes of February, 1917, there appears an article entitled Finger-Print
Evidence, in which the subject is treated at some length. In an issue of the same publication
of date January, 1918, and under the same caption, attention is directed to the learned
discussion of the subject by Judge Wadhams, of the Court of General Sessions of the Peace of
New York, where, in the case of People v. Sallow, 100 Misc. Rep. 447, 165 N. Y. Supp. 915,
the matter is historically dealt with in the consideration of the validity of an act requiring the
taking of the finger prints of persons arrested for crime.
In a most exhaustive work that has just come to our attention, in the writing of which Mr.
Harris Hawthorne Wildes, Ph.D., and professor of zoology in Smith College, and Mr. Bert
Wentworth, former police commissioner of Dover, N. H., collaborate, a system somewhat
similar to that established by Galton is made the basis of sectional investigation by which
palm-print identification may be carried out by means of the human hand. On page 138 of the
work, illustrations are set forth in which the several sections of the hand are portrayed. By
this work our attention is called to a term applied to the skin of the palmar surface of the hand
and the sole of the foot which we think most appropriate, to wit, "friction skin."
42 Nev. 185, 197 (1918) State v. Kuhl
friction skin. After dwelling upon the nature and character of this, the authors reassert the
statement found in the works of all the other writers to whom we have referred, to the effect
that this friction skin is covered by breaking, forking, splitting ridges, which ridges form
patterns and designs most irregular and individual, and, say the authors:
As these features remain absolutely constant throughout the entire life, and are far too
complicated to make a duplication of even a single ridge probable, it naturally follows that a
small area of friction skin, no matter where taken, is sufficient for an absolute and positive
identification, provided only that a record of it, in the form of a print,' or some other form of
accurate reproduction, has been previously made and is available for comparison.
On page 126 of the work the authors refer to an instance where a small square area was cut
out from the same place in the hand prints of two individuals, the place selected being one
which has never occasioned any special interest among investigators, and where the ridges
run monotonously in straight or slightly curved parallels. The area from which this patch of
friction skin was taken lies above the proximal end of the metacarpal bone of the thumb,
which would be approximately at the base of the first system of the hand under Galton's plan
of subdivision. The authors refer to the fact that this region, or area, from which the
experimental patch was taken, is the most featureless and monotonous of any of the parts of
the human hand. Yet they say a careful scrutiny of the prints, especially when aided by a
slight magnification, shows such marked differences that even a beginner in the work of
identification would have no trouble in distinguishing them at once.
In concluding a most interesting chapter on the subject of structure and development of
friction ridges on the palmar surface of the human hand and the sole of the human foot,
dealing with details of their course and arrangement, the authors conclude that these
surfaces furnish a basis upon which to found a system of identification positive and
absolute.
42 Nev. 185, 198 (1918) State v. Kuhl
human foot, dealing with details of their course and arrangement, the authors conclude that
these surfaces furnish a basis upon which to found a system of identification positive and
absolute. Here we find the unequivocal declaration that the patterns of the friction skin are
individual, and, taken together, impossible to duplicate in another individual. Further, they
declare that the separate ridges, too, show numerous details, which are in themselves so
individual that a small area of friction skin, taken even in the most featureless portion, cannot
be matched by any other piece. Personal Identification, by Wildes and Wentworth.
All of the learned authors, experts, and scientists on the subject of finger-print
identification, and each of those to whom we have heretofore referred, agree that these
patterns, formed by the papillary ridges on the inner surface of the human hand and the sole
of the foot, are persistent, continuous, and unchanging, from a period in the existence of the
individual extending from some months before birth until disintegration after death. While
most of the experts on finger-print identification deal most extensively with impressions of
the human fingers, we find that some, of whom Mr. Galton is first and foremost, have divided
the palmar surface of the human hand into what they term well-marked systems of ridges. Mr.
Galton in his work fixes these systems thus:
First, that which runs over the ball of the thumb and adjacent parts of the palm, bounded
by a line which starts from the middle of the palm, close to the wrist, and sweeps around the
ball of the thumb to the edge of the palm on the side of the thumb, which it reaches about half
an inch, more or less, below the base of the forefinger. The second system is bounded toward
the thumb by the base line of the first system and toward the little finger by a line starting
from about the middle of the little-finger side of the palm and ending on the opposite side just
below the forefinger. The third system is bounded thumbwards by the base line of the second
until that line arrives at a point immediately below the axis of the forefinger.
42 Nev. 185, 199 (1918) State v. Kuhl
second until that line arrives at a point immediately below the axis of the forefinger. There
the boundary of the third system leaves this base line and skirts the base of the forefinger,
until it reaches the interval which separates the fore and middle fingers. The upper boundary
of the third system consists of a line which leaves the middle-finger side of the palm a small
distance below the base of the little finger and terminates between the forefinger and middle
fingers. Galton on Finger Prints, Macmillan & Co., London and New York, 1892, p. 53.
Mr. Galton in his work draws comparison between the patterns that may occur in these
individual systems of the palm and those which occur on the bulbs of the thumb and fingers.
He refers to the latter as being more definite in position, more conspicuous in lineation, and
more instructive to study. Moreover, he says they are more easy to classify. The palm print or
impression involved in this case is made by that portion of the hand which falls principally in
the third system, and perhaps partly in the second system, as these systems have been
established by Galton in his arrangement of the human palm heretofore referred to.
The cuts are from the palm impressions as admitted in evidence at the trial in the lower
court.
Figure AThe impression found on the envelope taken from the mail sack found at the
scene of the crime.
Figure BThe impression made by the palm of the hand of defendant after arrest.
We have gone at length into the subject of palm-print and finger-print identification,
largely for the purpose of evolving the indisputable conclusion that there is but one
physiological basis underlying this method of identification; that the phenomenon by which
identity is thus established exists, not only on the bulbs of the finger tips, but is continuous
and coexisting on all parts and in all sections and subdivisions of the palmar surface of the
human hand. History of the Finger-Print System, by Berthold Laufer, supra. The rules and
systems established by students of the subject, through which identification is made
positive, apply no more to one section or system of this palmar surface than to another.
42 Nev. 185, 200 (1918) State v. Kuhl
established by students of the subject, through which identification is made positive, apply no
more to one section or system of this palmar surface than to another. A student of the subject
may have confined his research and study largely to prints or impressions made only by the
finger tips or by the bulbs on the ends of the fingers, but the knowledge and experience thus
gained, and the methods of determining identity thus established and
(Picture) used, are applicable with equal significance and effect to any given surface of
the palm of the hand.
42 Nev. 185, 201 (1918) State v. Kuhl
used, are applicable with equal significance and effect to any given surface of the palm of the
hand. This is true because of the truth of our former assertion as to a common physiological
basis underlying this established method of identification.
1. Progressive and scientific processes and appliances which belong to the various human
endeavors belong equally to the machinery of the law. The principle underlying the Sussex
Peerage Case, 11 Cl. & F. 85, and recognized by Greenleaf in his work on Evidence
(Greenleaf on Evidence, 516), has found sanction by the courts in modern American
jurisprudence, and this principle it is which will allow evidence of those scientific processes,
the work of trained and skilful men in their respective departments, to be applied by way of
demonstration of a fact, leaving the weight and effect of such demonstration entirely to the
consideration of the jury under proper instruction. State v. Cerciello, 86 N. J. Law, 309, 90
Atl. 1112, 52 L. R. A. (N. S.) 1010.
In the case of State v. Miller, 71 N. J. Law, 528, 60 Atl. 202, the court held that it was not
erroneous to admit evidence of the coincidence between the hand of the accused and the
bloody print of a hand upon the wall of a house where a crime was committed. This case, as
we understand it, did not turn upon finger-print identification, such as is involved in the case
at bar; but the principle there applied is worthy of note as supporting the position which we
deem proper here. In the case of State v. Connors, 87 N. J. Law, 419, 94 Atl. 812, the court
recognized the propriety of admitting the testimony of finger-print experts for the purpose of
establishing identity.
In the case of Parker v. Rex (Australia) 14 C. L. R. 681, the only evidence upon which
conviction of breaking and entering rested was a comparison of one of several finger prints
found on a bottle in the premises entered with the print of the middle finger of the accused's
hand taken in jail. The High Court of Australia, in considering the case on appeal from the
Supreme Court of Victoria, speaking through Mr. Chief Justice Griffith, made reference to
the fact of the general recognition by courts and authorities of the individuality of the
corrugations in the skin on the fingers of the human hand, and said:
42 Nev. 185, 202 (1918) State v. Kuhl
reference to the fact of the general recognition by courts and authorities of the individuality of
the corrugations in the skin on the fingers of the human hand, and said:
A finger print is therefore in reality an unforgeable signature. That is now recognized in a
large part of the world, and in some parts has, I think, been recognized for many centuries.
The court, after thus referring to the finger print, concluded by saying:
There is in this case evidence that the prisoner's signature was found in the place which
was broken into.
In the case of Emperor v. Sahdeo (India) 3 Nagpur Law Rep. 1, the court recognized the
propriety of establishing the identity of the party accused by the use of sheets bearing
impressions of finger markings. Again, in the case of Emperor v. Hulost, 7 Crim. L. J. (India)
406, the principle was followed that identity of the individual might be established by the
opinion of experts testifying as to the identity of finger impressions made upon certain
impression slips with those of the accused taken in court. To the same effect is the case of
Emperor v. Abdul Hamid, 32 Indian Law Rep. (Calcutta Ser.) 759.
The courts of Great Britain have followed the principle that, inasmuch as the science of
finger-print identification was an established science, evidence proving identity by this means
should be received; and in Castleton's Case, 3 Crim. App. 74 (England), a conviction was
sustained where the only proof of identity in the lower court was the evidence of finger prints.
Two leading cases in this country have gone at length into this question. In People v.
Jennings, 252 Ill. 534, 96 N. E. 1077, 43 L. R. A. (N. S.) 1206, the Supreme Court of Illinois,
speaking through Mr. Chief Justice Carter, on an appeal from conviction of murder in the first
degree, upheld the trial court, wherein it admitted the evidence of experts as to the
comparison of photographs of the finger prints found on a railing in the premises with the
enlarged finger prints of the defendant.
42 Nev. 185, 203 (1918) State v. Kuhl
premises with the enlarged finger prints of the defendant. The opinion of the chief justice of
the Illinois court is to our mind exhaustive of the subject, and we cite it here with approval.
In the case of People v. Roach, 215 N. Y. 602, 109 N. E. 618, Ann. Cas. 1917a, 410, Mr.
Justice Seabury went at length into the subject and referred approvingly to the case of People
v. Jennings, supra, and upheld the ruling of the admissibility of such evidence. In the Roach
case, as in the Jennings case, the appeal was from a conviction of murder. The appellant
assigned as error the testimony of an expert as to finger-print impressions found upon the
clapboards of a house where the homicide was committed. There the experts testified
positively that the impressions on the clapboards were finger prints of the left hand of the
defendant. This testimony was rendered after the expert had opportunity to compare the finger
prints of the defendant with those markings found in the house. The Supreme Court of New
York in that case held that the evidence was admissible, its weight being for the
determination of the jury.
These cases, and others to which we might properly refer (Young v. State, 68 Ala. 569;
People v. Storrs, 207 N. Y. 147, 100 N. E. 730, 45 L. R. A. (N. S.) 860, Ann. Cas. 1914c,
196), establish the rule of the admissibility of this character of evidence, and in the light of
progressive science, and inasmuch as the underlying principle of this science as recognized in
the cases cited is directly applicable and is the underlying principle here, the foundation was
sufficiently laid for the testimony of the witnesses Stone and Botorff. The evidence of these
experts as to the identity of the palm print of the defendant with that found upon the
blood-smeared envelope taken from the rifled mail sack was a proper subject for the
consideration of the jury. The weight to be given to this testimony was for the jury to
determine.
2, 3. It is contended by appellant here that the court erred in admitting certain
photographic enlargements and in permitting the witnesses Stone and Botorff to illustrate
their testimony by the use of a projectoscope by means of which an enlarged photograph
of the impressions was displayed to the jury.
42 Nev. 185, 204 (1918) State v. Kuhl
and in permitting the witnesses Stone and Botorff to illustrate their testimony by the use of a
projectoscope by means of which an enlarged photograph of the impressions was displayed to
the jury. It might suffice to say that no question is raised as to the accuracy of the
photographic exhibits, nor is any question raised as to the method of identifying the
photographs or as to the manner in which the palm-print impression of the defendant was
taken or as to the correctness of the enlargements. The appliances used and the methods
resorted to, so far as we are able to determine, were those appliances and methods recognized
by science. By these appliances, the jury was afforded an opportunity to follow the testimony
of the experts in their direct and cross-examination. By this means they were better able to
judge of the correctness of the testimony as it was being given and to estimate its weight and
significance. This method of presenting proof has received the sanction of the highest
authority. Wharton on Criminal Evidence (8th Ed.), sec. 544; Wigmore on Evidence, vol. 1,
sec. 795; Rogers on Expert Testimony (2d Ed.), sec. 140; Dederichs v. Salt Lake C. R. Co.,
14 Utah, 137, 46 Pac. 656, 35 L. R. A. 802, and note; State v. Connors, 87 N. J. Laws, 419,
94 Atl. 812. That instruments may be photographed for the purpose of so enlarging as to
make the proportions plainer, and such photographs, when already in evidence, may be
projected to illustrate the testimony of witnesses, is a rule that has found general sanction.
First National Bank v. Wisdom, 111 Ky. 135, 63 S. W. 461; United States v. Ortiz, 176 U. S.
422, 20 Sup. Ct. 466, 44 L. Ed. 529; Howard v. Illinois Trust Co., 189 Ill. 568, 59 N. E. 1106;
Marcy v. Barnes, 16 Gray (Mass.) 161, 77 Am. Dec. 405.
4. Appellant complains of the act of the trial court in admitting photographs of the palm
impressions, when upon such photographs there were certain lines and markings, placed there
by the witnesses Stone and Botorff before their testimony was given. These lines, as appears
from what record there is before us, were placed on the photographs by the experts for the
purpose of more clearly illustrating their testimony.
42 Nev. 185, 205 (1918) State v. Kuhl
placed on the photographs by the experts for the purpose of more clearly illustrating their
testimony. They indicated the points of similarity and identity to which the experts testified.
Their existence and significance were fully explained by the witnesses. These markings in no
wise affected the photographs, and we are at a loss to discern any prejudice or injury that
could have thus accrued to the appellant.
5-7. Error is assigned to the ruling of the trial court in permitting the witness Stone to
make a positive statement as to the identity of the palm impressions. In this respect he
testified positively that these palm prints were made by one and the same hand. We might
with propriety pass this assignment without comment, for the reason that the only ground of
objection assigned in the trial court was that the question had already been answered. Aside
from this, it may with propriety be said that, while it is the usual practice for expert witnesses
to testify as to their belief in a given conclusion or as to their best judgment, no rule of law
prevents them from testifying positively on such subjects. Whether they give their best
judgment or belief, or testify positively as to their conclusion, the fact remains that it is for
the jury to determine the weight to be given to their testimony. People v. Jennings, supra.
8. Near the scene of the murder there was found an overcoat which bore blood stains.
From the briefs of counsel we are informed that E. B. Williams, a restaurateur, testified to
having seen the appellant wearing this overcoat in and about his place of business. In putting
in his case, the appellant called as a witness Pearl Williams, associated with E. B. Williams in
the restaurant business. We are informed by the briefs that Pearl Williams testified on her
examination in chief positively, as did E. B. Williams, in regard to Kuhl's familiarity with and
treatment in the restaurant. She, however, testified that she had never seen the appellant,
Kuhl, wear such a coat; that the only coat she had ever seen him wear was a brown
Mackinaw. The record as to this testimony is not before us, either in narrative form or
otherwise; hence we must content ourselves with such statement of facts bearing on this
phase of the case as we find in the briefs of the respective counsel.
42 Nev. 185, 206 (1918) State v. Kuhl
this testimony is not before us, either in narrative form or otherwise; hence we must content
ourselves with such statement of facts bearing on this phase of the case as we find in the
briefs of the respective counsel. It appears that on cross-examination the witness Pearl
Williams was asked as to a statement she had previously made to Sheriff Harris, and, if we
understand the proceedings correctly, she was asked, on cross-examination by the state, if it
were not true that, shortly after the murder, in the town of Jarbidge, where her restaurant was
located, she had told Sheriff Harris that she could positively identify the coat as the property
of Kuhl, but that she did not want to be drawn into the case, for business reasons. At the trial,
and on cross-examination, she denied having made this statement. The state called the sheriff
in rebuttal, and, it appears, propounded the question to the sheriff, incorporating therein the
language of the witness Pearl Williams as used by her on the occasion referred to.
Appellant contends that the court erred in permitting this interrogatory to be answered by
the sheriff on rebuttal. The question propounded to the witness Pearl Williams by the state, if
we are correctly informed, implied that she had, on another and former occasion, made a
contradictory statement as to the defendant having worn the coat. If her statement made on a
former occasion was brought home to her on cross-examination with the proper elements of
impeachment incorporated therein (that is, as to time, place, and the party to whom the
statement was made), and if she denied having made the statement at the time and place and
to the party, it was proper for the state, on rebuttal, to present the party to whom her former
statement was made, and to propound to that witness, after the fixing of the time and place,
the exact language of the witness sought to be impeached. We find no error in the conduct of
the court in this respect.
9. The verdict in this case was rendered and received by the court on Sunday, and, after
the recording of the verdict, the court proceeded to fix a date on which judgment would
be pronounced.
42 Nev. 185, 207 (1918) State v. Kuhl
by the court on Sunday, and, after the recording of the verdict, the court proceeded to fix a
date on which judgment would be pronounced. The act of the trial court in this respect is
assigned as error. Under the second subdivision of section 4870 of our Revised Laws, the
court is authorized to receive the verdict of a jury on a nonjudicial day. This statute
necessarily contemplates the making of such order or orders, on the reception of the verdict,
as may be necessary for the proper and expeditious course of justice. If a verdict of acquittal
were received by the court on a nonjudicial day, manifestly the statute permitting the
reception of such a verdict would contemplate an order discharging the defendant. So, too,
where a verdict of conviction is rendered and received on a nonjudicial day, the right to
receive the same implies the right and power in the court to remand the defendant and to fix a
date for further proceedings. In the case of State v. Rover, 13 Nev. 17, Mr. Justice Hawley,
speaking for this court, said:
The power given to the court to sit on Sunday to receive the verdict necessarily authorizes
it to have the verdict then read and recorded, to discharge the jury, and make such other
orders as are incident to the power given by the statute.
The making of the order setting a date on which judgment would be pronounced pursuant
to the verdict was an act incident to the reception of that verdict.
We have scrutinized the instructions given by the trial court in this case, and find no error
upon which reversal could be predicated. Assignment No. 54 deals with an instruction on
which we commented in the case of State v. Sella, 41 Nev. 113. The decision of this court in
the Sella case was not in the hands of the trial court at the time of the trial of this case. As to
the propriety or advisability of the giving of such an instruction in this case we are not at
liberty to say, in view of the meager record that is here before us. In the Sella case we gave
expression to our views, discouraging the giving of this instruction, inasmuch as one
clause therein, at least, might be considered as a comment by the court on the weight to
be given to witnesses whose testimony might agree on all points.
42 Nev. 185, 208 (1918) State v. Kuhl
case we gave expression to our views, discouraging the giving of this instruction, inasmuch as
one clause therein, at least, might be considered as a comment by the court on the weight to
be given to witnesses whose testimony might agree on all points. We again express our
disapproval of this instruction, and advise against its being given.
At the outset of our opinion, we made mention that the proof of guilt in this case rested
entirely of circumstantial evidence. We are not advised as to the completeness of the
circumstantial chain connecting the appellant with commission of the crime. We note,
however, in the brief of his able and painstaking counsel, the following assertion:
It is fully appreciated that this is one of those curious cases where every link in the chain
of circumstantial evidence seems satisfactorily forged.
We find nothing in the appeal from which it might be inferred that appellant received other
than a fair trial, or that there was other than the utmost diligence put forth by able counsel.
The judgment is affirmed. The court below is directed to fix a time and make all necessary
orders for having its sentence carried into effect by the warden of the state penitentiary.
Let the order be entered accordingly.
[By reason of the unavoidable absence of Mr. Justice Coleman, he did not participate in
the foregoing opinion.]
____________
42 Nev. 209, 209 (1918) State v. Beck
[No. 2330]
THE STATE OF NEVADA, Respondent, v. ED.
BECK, Appellant.
[174 Pac. 714]
1. Criminal LawHarmless ErrorConspiracyEvidence.
In a homicide case, it is not reversible error to admit the testimony of a coconspirator concerning
statements of defendant prior to prima facie proof of conspiracy, where the conspiracy was thereafter
proven.
2. Criminal LawConspiracyEvidenceAdmissibilityConnection of Appellant with
Crime.
The testimony of a coconspirator that defendant informed the witness that he and another were planning
to rob the stage; that defendant later unqualifiedly stated the robbery had been committed and the stage
driver murdered, was admissible.
3. HomicideParticipationEvidenceSufficiency.
In view of declarations by defendant to a codefendant, evidence held to show that the defendant was a
party to a conspiracy to rob the stage, that the stage was robbed, and that in perpetrating the robbery the
driver was killed.
4. HomicideConspiracy to RobMurderGuilt.
All persons who are involved in the conspiracy to rob are guilty of murder, if murder is committed by one
of the coconspirators in the perpetration of the crime of robbery.
5. Criminal LawEvidenceAdmissibilityInterest in Property.
The testimony of a coconspirator that after the crime the defendant stated to him that the robbery and
murder had taken place was admissible to establish the conspiracy and murder and connect defendant with
it, whether there was any subsisting interest in property thereby fraudulently acquired or not.
6. Criminal LawHarmless ErrorEvidenceGuilt of Another.
The testimony of a coconspirator that defendant stated that a third conspirator, who was not present, had
committed the murder was not prejudicial to the defendant, since it tended to connect him with the crime.
7. Criminal LawEvidenceStatements of DefendantTestimony of Coconspirators.
In a murder case, the testimony of a coconspirator in the robbery in which the murder was committed that
defendant told him that a third conspirator had committed the murder was admissible as a voluntary
statement against the interest of the defendant connecting him with the murder, through the conspiracy to
rob.
42 Nev. 209, 210 (1918) State v. Beck
Ed. Beck was convicted of murder in the first degree, and he appeals. Affirmed.
Harold P. Hale, for Appellant:
The evidence in this case was identical with the testimony adduced in the Kuhl case, with
two exceptionsfirst, the testimony of finger-print experts was not introduced, but in its
place was presented the testimony of one McGraw, one of the defendants, who was called in
behalf of the state; and, secondly, there was admitted, over the objection of appellant, the
statement or confession of appellant, introduced immediately following the testimony of
McGraw. The court erred in the admission of these matters, for the reason that the conspiracy
had not been proven prima facie before the introduction of the McGraw testimony; the
testimony of McGraw with respect to the statements made by appellant showed no act or
declaration done in furtherance of a conspiracy, nor did it form a part of the res gestae; the
statements alleged by McGraw to have been made to him by appellant showed nothing more
than mere knowledge that another was involved in crime, and did not show an active
participation or an express or implied ratification; part of the testimony set forth a declaration
made after the culmination of the unlawful design as charged, and did not relate to a
subsisting interest in property fraudulently acquired pursuant to the conspiracy; the testimony
of McGraw was intended as proof of the guilt of the defendant Kuhl, and is a statement made
when the latter was not present, nor impliedly or expressly acquiesced in by him; the
testimony of McGraw constituted in effect a hearsay confession upon the part of Kuhl
himself, which, even though true, does not establish the guilt of the principal as concerned
with the conspiracy, but established only his individual guilt, and is admissible only for that
purpose. (1 R. C. L., p. 518, cases under note 16; Idem, 521, 522; Metcalfe v. Connor, 12
Am. Dec.
42 Nev. 209, 211 (1918) State v. Beck
340; Smith v. State, 81 S. W. 936; 5 R. C. L. 1089, note 16, note 66.)
Geo. B. Thatcher, Attorney-General, E. T. Patrick, Deputy Attorney-General, Wm.
McKnight, Deputy Attorney-General, E. P. Carville, District Attorney, and Chas. C.
Cantwell, Deputy District Attorney, for Respondent:
A coconspirator is, under the provisions of our statues, a competent witness against the
other conspirators. Rev. Laws, 7180, 7451; State v. Tranmer, 39 Nev. 142; State v. Douglas,
26 Nev. 196. This holding is in accordance with the great weight of authority. 1 R. C. L. 163;
5 R. C. L. 1090; 12 C. J. 636; United States v. Lancaster, 44 Fed. 896. The existence of the
conspiracy may be proven by the testimony of a coconspirator. 5 R. C. L. 1090; United States
v. Lancaster, supra.
If the conspiracy was to obtain money by larceny if possible, but by robbery if necessary,
under our statute a murder committed in the perpetration of that robbery, either with or
without intent to take human life, is murder in the first degree. 1 Wharton, Crim. Law,
697-699; State v. Lopez, 15 Nev. 407; State v. Gray, 19 Nev. 212. All who have a part in the
conspiracy to rob are guilty of murder, if murder is committed by one of the conspirators. It is
no defense that such other conspirators did not intend or contemplate that any killing should
be done, did not approve of such action by their coconspirators, or even expressly forbade any
such taking of life. People v. Vasquez, 49 Cal. 560; People v. Lawrence, 76 Pac. 893, 68 L.
R. A. 193; Conrad v. State, 6 L. R. A. 1154; People v. Friedman, 45 L. R. A. 55; Reagan v.
People, 112 Pac. 786; State v. Mangana, 112 Pac. 786; Taylor v. State, 55 S. W. 961; People
v. Olsen, 22 Pac. 125.
B. E. Kuhl, Ed. Beck, and Wm. M. McGraw were jointly charged with the crime of
murder. On motion, separate trials were granted the defendants. Defendant Beck {appellant)
was convicted of murder in the first degree, and appeals.
42 Nev. 209, 212 (1918) State v. Beck
Beck (appellant) was convicted of murder in the first degree, and appeals.
Upon the trial defendant McGraw was called as a witness in behalf of the state, and
testified relative to certain statements alleged to have been made to him by appellant. It is
insisted that the court erred in overruling the objection of counsel for defendant to the
testimony of the witness mentioned. For an understanding of the points urged, we quote from
the brief of counsel for appellant:
The testimony of McGraw consisted substantially of the following: FirstThe witness
testified that appellant had secured from him a certain gun, which gun he later identified as
being the one in evidence in the case. SecondThat at the time of securing the gun appellant
had told witness that he was going hunting with it. ThirdThat upon the following day
appellant had told witness that he (appellant) and his partner, or rather they,' were going to
hold up the mail stage, and had it all fixed with the stage driver; that it was all cut and dried.'
FourthThat appellant told witness to keep his mouth shut or he would kill him. FifthThat
later in the evening of the day of the crime, about 8 o'clock, witness was called out of a
saloon by appellant, and told: She's all off; the trick is turned. The stage is held up, and the
driver's head blown off.' That in response to the question, Who did that?' appellant answered
Ben' (Kuhl). That appellant had told witness that if he said a word he would kill him.
1. The first point made by counsel for appellant is that the conspiracy had not been proven
prima facie before the introduction of the evidence showing statements of appellant. As to
this contention, we may say that if the conspiracy was thereafter shown by the evidence to
have existed, it was not reversible error to admit evidence of the statements at the time it was
received. State v. Ward, 19 Nev. 297, 10 Pac. 133.
2. The second contention urged upon our consideration is that the declaration urged upon
our consideration is that the declaration made by appellant, as testified to by McGraw, shows
no act done in furtherance of a conspiracy or forming a part of the res gestae.
42 Nev. 209, 213 (1918) State v. Beck
of a conspiracy or forming a part of the res gestae. A reading of the outline of the evidence
taken from the brief of counsel for appellant refutes this contention. It shows that appellant
informed McGraw before the crime was committed that he and Kuhl were planning to rob the
stage; that thereafter the crime of robbery as planned was committed, and that in the
commission thereof the stage driver was murdered. The unqualified statement that the crime
had been committed, in view of the previous statement of the contemplated robbery, is
sufficient to connect appellant with the crime.
3, 4. It is next contended that appellant's statements to McGraw show nothing more than a
knowledge that another was involved in a crime, and does not show an active participation or
an express or implied ratification. This contention is without merit. The evidence shows that
appellant was a party to the conspiracy to rob the stage, that the stage was in fact robbed, and
that in the perpetration of the robbery the driver was killed. It is a well-known rule of law that
all persons who are involved in a conspiracy to rob are guilty of murder if murder is
committed by one of the coconspirators in the perpetration of the crime of robbery. People v.
Vasquez, 49 Cal. 560; People v. Lawrence, 143 Cal. 148, 76 Pac. 893, 68 L. R. A. 193, and
note; Conrad v. State, 75 Ohio St. 52, 78 N. E. 957, 6 L. R. A. (N. S.) 1154, 8 Ann. Cas. 966,
and note; People v. Friedman, 205, N. Y. 161, 98 N. E. 471, 45 L. R. A. (N. S.) 55, and note;
Reagan v. People, 49 Colo. 316, 112 Pac. 786; Taylor v. State, 41 Tex. Cr. R. 564, 55 S. W.
961; Romero v. State, 101 Neb. 650, 164 N. W. 554, L. R. A. 1918b, 70, and note.
In State v. Mangana, 33 Nev. 519, 112 Pac. 693, alluding approvingly to State v. King, 24
Utah, 483, 68 Pac. 418, 91 Am. St. Rep. 808, it is said:
* * * When two or more persons associate together to rob another, and he is killed by one
of them, the act is that of each and all of the conspirators, and all are chargeable therewith.
State v. Schmidt, 136 Mo. 652, 38 S. W. 719.
42 Nev. 209, 214 (1918) State v. Beck
5. It is next contended that that portion of the testimony of McGraw in relating the
statement of Beck made after the culmination of the unlawful design does not relate to a
subsisting interest in property fraudulently acquired pursuant to the conspiracy. This
contention certainly verifies the force of the old saying that a dying man grabs at every straw.
What does it matter whether it be an interest in property or not? The question is, Does the
evidence tend to establish the conspiracy and murder and connect appellant with it? The
evidence is competent for both of these purposes.
6. It is urged that the testimony of McGraw was further intended as proof of the guilt of
the defendant Kuhl, and is a statement made when Kuhl was not present. If this be true,
appellant was not prejudiced thereby, provided it also tended to connect appellant with the
crime, which it clearly does.
7. It is claimed that the testimony of McGraw constitutes in effect a hearsay confession
upon the part of Kuhl, and that, even though true, it does not establish the connection of Kuhl
with the conspiracy, but only establishes his individual guilt, and is admissible only for that
purpose. There is nothing in this contention. The statements testified to by McGraw were
those made to him by appellant, and clearly connected appellant with the conspiracy and the
perpetration of the crime, which was the purpose of the evidence.
The main contention of counsel for appellant can best be presented in the language of his
brief, where it is said:
But we contend that there can be no such thing as an admission by one conspirator to
another, but that the testimony of McGraw necessarily becomes direct because of the position
he occupies in the case.
We are unable to agree with counsel's contention. It is a universal rule that a voluntary
statement against interest in a civil suit or involving the maker in a crime is always
admissible against the party making it, and the mere fact that it is made to a coconspirator
does not rob it of its competency, nor is the coconspirator to whom it is made disqualified
from testifying concerning it merely because he is a coconspirator.
42 Nev. 209, 215 (1918) State v. Beck
not rob it of its competency, nor is the coconspirator to whom it is made disqualified from
testifying concerning it merely because he is a coconspirator. There is no analogy between the
situation in this case and in one in which evidence is offered of a statement made by a
conspirator to a third person after the accomplishment of the criminal purpose, involving a
coconspirator.
No error appearing in the record, it is ordered that the judgment be, and it is hereby,
affirmed.
McCarran, C. J., concurring:
I concur.
The witness McGraw, to whose testimony defendant objected on the ground that he was a
coconspirator, was at the time of the trial a codefendant. The question raised by the
assignment of appellant in this respect is as to the competency of a coconspirator to give
testimony against his fellow conspirators as to facts within his personal knowledge bearing on
the conspiracy.
Under the provisions of our criminal practice act (Rev. Laws, 7180, 7451), a coconspirator
may be a competent witness against his fellow conspirators. On two occasions this court has
passed upon this question. In the case of State v. Douglas, 26 Nev. 196, 65 Pac. 802, 99 Am.
St. Rep. 688, it was held that, even though it was shown or admitted that a witness was an
accomplice, that fact does not render him incompetent to give testimony under our statute. In
the case of State v. Tranmer, 39 Nev. 142, 154 pac. 80, the holding was to the same effect.
The right of the prosecution to have testimony of this character go to the jury depends entirely
on how such testimony may be corroborated by evidence coming from other than
coconspirators or accomplices.
At the time of presenting McGraw as a witness, it appears from the record that the state
had already proven the commission of the offense charged in the information. It had offered
evidence establishing the circumstances and conditions under which the crime was
committed.
42 Nev. 209, 216 (1918) State v. Beck
was committed. Evidence had been presented as to a transaction between the witness
McGraw and the defendant Beck, in which the latter had secured a weapon from the former.
The testimony tended to show contradictory statements made by Beck to the witness McGraw
as to the purpose for which he secured the weapon, one being that he and his partner Kuhl
wanted to go hunting. In a statement made by the appellant to McGraw after he had obtained
possession of the gun, it appears that he said that he had given the gun to his partner Kuhl,
and that he and his partner were going to hold up the stage. Other statements made by Beck
were brought forth in the testimony of McGraw, one being that he (McGraw) was to keep still
or he would be killed; and a statement made after the commission of the crime was to the
effect that the stage had been held up and the driver killed.
As I read the record, it appears to me that under the rule requiring the establishment of a
conspiracy as a foundation for the admissibility of the statements of a coconspirator, the
testimony of McGraw was admissible at the time at which it was offered. The rule contended
for by appellant is not one which requires the proving of a conspiracy beyond a reasonable
doubt before the testimony of a coconspirator may be admitted. What the rule requires is that
the testimony of a coconspirator shall be preceded by proof of an existent conspiracy; that is,
there must be proof of a common plan or scheme preexisting, the consummation of which
was the public offense with which the party on trial stands accused. The preconceived plan or
scheme may have had as its object the commission of one crime, but its consummation may
have resulted in another, as murder may result from an attempt to carry out a conspiracy to
rob, but on a trial for either crime the evidence of a coconspirator is admissible against his
fellow conspirators when such evidence is confined to the acts, utterances, and conduct of the
latter. The testimony of the coconspirator may, and in fact often does, support the proof of
the existence of the conspiracy.
42 Nev. 209, 217 (1918) State v. Beck
testimony of the coconspirator may, and in fact often does, support the proof of the existence
of the conspiracy. In this, as in any other phase of the case, the testimony of the coconspirator
must be corroborated. There is a wide difference between evidence which discloses only the
declarations of the witness as a coconspirator and evidence given by a coconspirator as to
facts and circumstances bearing on the conspiracy or as to statements made by his fellow
conspirator prior to the consummation of the act for which the conspiracy was formulated.
It is contended by appellant that the statements testified to by the witness McGraw as
having been made by Beck showed only a knowledge by the latter of an intended crime or a
knowledge by the latter of a completed crime. The statements testified to by McGraw as
having been made by Beck disclosed a knowledge by the latter of an intended crime in which
he (Beck) was to participate. It also disclosed a knowledge by Beck of a consummated crime
in which he did participate, at least to the extent of aiding and abetting. The declarations
testified to by the witness McGraw as having been made to him by the defendant were
admissible, being against the maker of such declarations, and properly a part of the res gestae.
____________
42 Nev. 218, 218 (1918) State v. District Court
[No. 2328]
THE STATE OF NEVADA, Ex Rel. JOHN ESSER, Petitioner, v. THE DISTRICT COURT
OF THE FIFTH JUDICIAL DISTRICT OF THE STATE OF NEVADA, IN AND FOR
THE COUNTY OF NYE, and the Hon. MARK R. AVERILL, Judge of Said Court,
Respondents.
[174 Pac. 1023]
1. LarcenyConstruction of statuteCattle.
Rev. Laws, 6640 (Crimes and Punishment Act, sec. 375), which defines the stealing of cattle as grand
larceny, embraces cows, bulls, and steers of the domesticated bovine genus.
2. Words and PhrasesBovineNeat CattleCattle.
The term bovine is taken from the Latin bos, which means cow or bull. Neat cattle are animals
belonging to the genus bos, term not embracing horses, sheep, goats, or swine. Cattle as generally used
in Western America or the western states means neat cattle straight-backed, domesticated animals of the
bovine genus regardless of sex, and is not generally, but may be, taken to mean calves, or animals younger
than yearlings. It includes cows, bulls, and steers, but not horses, mares, geldings, colts, mules, jacks, or
jennies, goats, hogs, sheep, shoats, or pigs.
3. LarcenySufficiency of InformationCattle.
Under Stats. 1913, c. 209, sec. 4, requiring charge to be clearly set forth, etc., an information, charging
theft of cattle, is not bad, the word cattle, as used in Rev. Laws, 6440 (Crimes and Punishments Act,
sec. 375), embracing cows, bulls, and steers of domesticated bovine genus.
4. Criminal LawJudicial NoticeRevised Laws of State.
Supreme court will take judicial cognizance of the publication of the Revised Laws of the state, compiled
and published under the supervision of the code commission in which the crimes and punishments act, sec.
375 (Rev. Laws, 6640), appears.
5. WitnessesPrivilegeTrial of Accomplice.
Under Rev. Laws, 7451, a person charged with larceny may refuse, on the ground of incrimination, to
testify at the trial of an accomplice against whom a separate information has been filed.
6. Criminal LawTrial of AccompliceVoluntary Testimony.
Rev. Laws, 7451, providing that a person may be sworn as a witness against an accomplice, but that such
testimony shall not be used against witness except on perjury charge, there is no rule precluding a witness
from voluntarily testifying either for or against an accomplice, though called as witness by prosecuting
attorney.
7. Criminal LawPreliminary HearingAccompliceSeparate Informations.
Where two persons are jointly charged with grand larceny by complaint filed in justice court, and after a
joint hearing in such court, at which evidence is taken, are held to answer to district court, they cannot
complain upon the subsequent filing of separate informations against them that they were denied the right
of preliminary hearing.
8. Indictment and InformationSeparate Indictments.
Where two persons are jointly charged with grand larceny in preliminary examination, and subsequent to
such examination grand jury investigates charge, separate indictments may be filed against the parties.
9. Criminal LawJoint IndictmentSeparate Trials.
Where two persons are jointly indicted of grand larceny after preliminary examination in which they were
jointly charged with such crime, and after investigation by grand jury, they may, under the statute, demand
separate trials which demand court would be required to grant.
Original proceeding in prohibition by the State of Nevada, on the relation of John Esser,
against the District Court of the Fifth Judicial District of the State of Nevada, in and for Nye
County, and Mark R. Averill, Judge of said court. Writ denied, and proceeding dismissed.
Thomas & Ham, Charles E. Barrett, and C. L. Richards, for Petitioner:
A writ of prohibition is the proper remedy. An appeal in a criminal case is not a plain,
speedy or adequate remedy. Evans v. Willis, 22 Okl. 313; State v. Gay, 118 Pac. 830; Pearian
v. Spiers, 10 Pac. 609; Terrell v. Superior Court, 60 Pac. 38; Arfsten v. Superior Court, 128
Pac. 949; Levy v. Wilson, 10 Pac. 272; Ex Parte Smith, 33 Nev. 466; In Re Waterman, 29
Nev. 298; Ex Parte Zany, 129 Pac. 295.
The district court has no jurisdiction to hear, try or determine the purported charge against
the petitioner, because no preliminary hearing was held on the charge contained in the
information, and the information is not accompanied by an affidavit of any person; because
the information is based upon what purports to be section 6640 of the Revised Laws of
Nevada of 1912, and such section is not a valid law; and for the reason that the paper
writing termed an information does not charge a crime under any law of the State of
Nevada.
section is not a valid law; and for the reason that the paper writing termed an information
does not charge a crime under any law of the State of Nevada. Stats. 1913, p. 293; Const.
Nev., art. 15, sec. 8; In Re Waterman, 29 Nev. 298.
An information charging the defendant with having stolen a number of cattle charges no
crime. Mobley v. State, 57 Fla. 22. Where the statute describes more than one object or thing
belonging to the same class or species, the indictment must be framed according to the
particular facts, even though one of the descriptive terms, if taken in a generic sense, is
sufficiently comprehensive to include all. Mobley v. State, supra; State v. McDonald, 10
Mont. 21; Brisco v. State, 4 Tex. App. 219.
The state, by calling the petitioner as a witness in the case of State v. May, granted
petitioner amnesty, and cannot further prosecute him. It is provided in the constitution of
Nevada (art. 1, sec. 8) that a defendant shall not be compelled in any criminal case to be a
witness against himself. This constitutional provision is the same as the fifth amendment to
the constitution of the United States. Brown v. Walker, 40 L. Ed. 819; Counselman v.
Hitchcock, 142 U. S. 547; Boon v. People, 148 Ill. 440; Lawson v Boyden, 160 Ill. 613;
People v. Argo, 237 Ill. 173; People v. O'Brien, 176 N. Y. 253; State v. Gardiner, 92 N. W.
529; Ex Parte Clarke, 37 Pac. 230; Boyd v. U. S., 116 U. S. 616; United States v. James, 60
Fed. 257.
H. H. Atkinson, District Attorney, for Respondents:
If the grand jury could have brought in separate indictments, there was nothing to preclude
the filing of separate informations. Stats. 1913, c. 209, sec. 1.
The district court has jurisdiction to try petitioner. The crimes and punishments act, under
which the prosecution was instituted, and of which section 6640, Revised Laws, is a part, was
passed in 1911. Section 570 of the act (Rev. Laws, 6835) provides that the crimes and
punishments act shall take effect January 1, 1912. In 1911 the legislature passed an act
regarding publication of certain statutes.
1911 the legislature passed an act regarding publication of certain statutes. Stats. 1911, c. 84,
sec. 1.
The information is sufficiently specific. The word cattle has a well-defined and specific
meaning in the State of Nevada. Rev. Laws, 6640; People v. Littlefield, 5 Cal. 355; Walton v.
State, 55 S. W. 566; Matthews v. State, 51 S. W. 915; State v. Switzer, 38 Nev. 108.
Petitioner was not compelled to be a witness against himself. His statutory rights were not at
any time invaded. He testified voluntarily, according to the provisions of law, and was not
compelled by any order of the court to do so. Rev. Laws, 7451.
This is an original proceeding in prohibition. The petitioner, John Esser, was informed
against by the district court of Nye County, the information reading as follows:
That John Esser, on or about the 12th day of March, 1917, * * * did then and there
commit the following felony, to wit: That then and there the said John Esser did feloniously
steal, take, and carry away nine head of cattle, then and there not the property of the said John
Esser, but then and there the property of L. P. Kimball and E. S. Van Dyke, against the peace
and dignity of the State of Nevada.
Our statute provides (Rev. Laws, 6640; section 375, Crimes and Punishments Act):
Every person who shall feloniously steal, take and carry, lead, drive, or entice away any
horse, mare, gelding, colt, cow, bull, steer, calf, mule, jack, jenny, or any one or more head of
cattle or horses or any sheep, goat, hog, shoat, or pig, not his own property but belonging to
some other person; * * * shall be deemed guilty of grand larceny, and upon conviction shall
be punished by imprisonment in the state prison for any term not less than one year nor more
than fourteen years.
It appears that in the justice court the petitioner and one Joe May had been jointly charged
with the crime of grand larceny, in which charge it was alleged that they did steal, take,
and drive away nine head of cattle or more, the same being the property of L. P. Kimball
and E. S. Van Dyke.
of grand larceny, in which charge it was alleged that they did steal, take, and drive away nine
head of cattle or more, the same being the property of L. P. Kimball and E. S. Van Dyke.
Separate informations were filed against May and Esser in the district court. On the trial of
May, the state called the petitioner, Esser, as a witness, and he was interrogated and examined
in behalf of the prosecution.
Petitioner contends that this court should interfere by way of prohibition, and rests his
contention upon several grounds: First, that the district attorney had no power or authority to
file an information in this court against this defendant, for the reason that such information
was filed for a purported violation of section 6640 of the Revised Laws of Nevada, the same
being a purported act of the legislature of the State of Nevada, whereas they contend this act
of the legislature was never approved or passed by the legislature of the State of Nevada.
Second, that the said section 6640 of the Revised Laws of Nevada was never passed by the
legislature of this state, and, if passed, is in violation of section 17 of article 4 of the
constitution of Nevada. It is asserted that this statute was never published as provided by law.
Further, it is contended that the information is too indefinite and uncertain, the word cattle,
as used in the information, including quadrupeds of all description, such as horses, mares,
cows, steers, sheep, and other animals. Again, it is contended by petitioner that, inasmuch as
he was called as a witness by the prosecution against Joe May, he became then and there
discharged from the charge against him. It is also contended that the district court had no
power or authority to permit the district attorney to file an information in that court until a
preliminary trial and hearing or examination had been accorded to the petitioner. By section 4
of chapter 209, Statutes of 1913, it is provided that the information shall be sufficient if it can
be understood therefrom:
That the act or omission charged as the offense is clearly and distinctly set forth in
ordinary and concise language, without repetition, and in such a manner as to enable a
person of common understanding to know what is intended."
clearly and distinctly set forth in ordinary and concise language, without repetition, and in
such a manner as to enable a person of common understanding to know what is intended.
Paragraph 7 of the same section provides that the information shall be sufficient if it can
be understood therefrom:
That the act or omission charged as the offense is stated with such a degree of certainty as
to enable the court to pronounce judgment upon a conviction according to the right of the
case.
Keeping these provisions in mind, we inquire as to the sufficiency of the information, in
view of the fact that the cattle alleged to have been stolen are described in that instrument as
nine head of cattle.
We find that the lexicographers, especially of the old schools, define the word cattle as
including horses, mares, colts, geldings, and the like, as well as neat animals.
It is said in Louisville & F. R. Co. v. Ballard, 2 Metc. (59 Ky.) 177, that the word cattle
usually includes horses and sheep; and in Robinson v. State, 1 Tex. App. 311, it is asserted
that the term may be taken to include cows, steers, or oxen.
In Newark & S. O. H. C. R. Co. v. Hunt, 50 N. J. Law, 308, 12 Atl. 697, it is said that the
word cattle includes all domestic quadrupeds, and may be taken as a general term to
include horses and mules.
In the case of Decatur Bank v. St. Louis Bank, 21 Wall. (88 U. S.) 294, 22 L. Ed. 560, the
court intimated that in a limited sense the word cattle might be used to designate the
different variety of horned animals. In that case, however, the court found that the term was
frequently used with a broader signification as embracing animals in general which serve as
food for man.
In the case of United States v. Schmoll (C. C.) 154 Fed. 734, the court referred to a former
decision in the case of Rossbach v. United States (C. C.) 116 Fed. 781, and there held that the
term hides of cattle as used in the tariff act might include the hides of domesticated
animals of the bovine species.
the tariff act might include the hides of domesticated animals of the bovine species. The court
held that by the term cattle it was to be understood as referring to domesticated bovine
animals, as oxen, cows, bulls, and calves, or live stock, or it might refer to domesticated
quadrupeds which serve for tillage and other labor or food for man. However, the court held
that in a more popular sense the term cattle, as that term is used in the United States, is
understood as being restricted in meaning, and more especially applying to the group of
so-called straight-backed cattle, such as cows, oxen, steers, and bulls.
1-3. The term bovine is taken from the Latin bos, which means cow or bull. Neat
cattle are animals belonging to the genus bos, and the term does not embrace horses, sheep,
goats, or swine. The term cattle, as used in our statute, undoubtedly means neat cattle. The
term cattle, as that expression is generally used in Western America, or at least in the
Western States of the Union, by its common acceptation means neat cattle, straight-backed,
domesticated animals of the bovine genus, regardless of sex. It is not generally taken to mean
calves or animals younger than yearlings. It may, however, be sufficiently broad in its
acceptation to include such. McIntosh v. State, 18 Tex. App. 285. It does, however, embrace
and include cows, bulls, and steers. It is not a term which in its common acceptation
embraces horses, mares, geldings, colts, mules, jacks, or jennies, nor does it embrace such as
goats, hogs, sheep, shoats, or pigs. By the term cattle, as used in section 6640, it must be
inferred that the legislature intended such to apply generally to cows, bulls, and steers of the
domesticated bovine genus. It would, in our judgment, be folly to say, in view of the common
use of the term cattle in this western country, that a person of common understanding
would not know what is intended by that expression; and the specific use of the term in the
statute makes it proper for the pleader in an information or indictment to allege the larceny in
such terms with the proper enumeration.
with the proper enumeration. Matthews v. State, 39 Tex. Cr. R. 553, 47 S. W. 647, 48 S. W.
189.
This same question was dealt with by the Supreme Court of California in the case of
People v. Littlefield, 5 Cal. 355. There the indictment alleged the larceny of three head of
cattle. The court sustained the indictment in its use of these terms, holding that the defendant
could not be prejudiced in his case by language of this character, and that such language was
to be construed according to the common acceptation of the term.
We are referred to the case of State v. Brookhouse, 10 Wash. 87, 38 Pac. 862, where the
identical term was dealt with by the supreme court of that state. We refuse to follow the
decision in that case, as do we also refuse to follow the assertion of Mr. Bishop in his work
on Statutory Crimes. Our refusal in this respect is based on what we believe to be the general,
common, ordinary, and in fact universal, acceptation of the term cattle as such term is used
in the Western States.
In the case of Matthews v. State, 39 Tex. Cr. R. 553, 47 S. W. 647, 48 S. W. 189, the
Supreme Court of Texas, in general terms, held that an indictment charging the taking of one
head of cattle was sufficient to put the defendant on trial, relying on the rule that a general
description of stolen property is sufficient.
In the case of Matthews v. State, 41 Tex. Cr. R. 98, 51 S. W. 915, the Court of Criminal
Appeals of Texas again dealt with the identical question and reaffirmed its decision in
Matthews v. State, 39 Tex. Cr. R. 553, 47 S. W. 647, 48 S. W. 189.
In State v. Dewitt, 152 Mo. 84, 53 S. W. 429, it was held that an indictment charging the
taking of two head of neat cattle was sufficient, being the language of the statute. The court
approved the expression of Kelley on Criminal Law and Practice, sec. 647, when in dealing
with the question he said:
If the animal, as described in the indictment, falls within any of the terms employed in the
statute, it will be sufficient, although it might have been better described by some other
name, especially where the statutory word is a generic term."
described by some other name, especially where the statutory word is a generic term.
In Territory v. Christman, 9 N. M. 582, 58 Pac. 343, the indictment alleged one neat
cattle, the same being the language of the statute. It was held sufficient, inasmuch as it was
regarded as a comprehensive term.
In the case of Walton v. State, 41 Tex. Cr. R. 454, 55 S. W. 566, the Court of Criminal
Appeals of Texas, having before it an indictment wherein the description of the property
stolen was twenty head of cattle, held that the indictment was sufficient, and referred to its
decision in Coward v. State, 24 Tex. App. 590, 7 S. W. 332. To the same effect are the cases
of State v. Crow, 107 Mo. 341, 17 S. W 745, Castello v. State, 36 Tex. 324, and Hubotter v.
State, 32 Tex. 479.
As to the contention of petitioner that section 375 of the crimes and punishments act under
which information is instituted was never passed by the legislature of the state, and was never
published as provided by law, it will suffice to say that section 375 is a part of an act entitled
An act concerning crimes and punishments and repealing certain acts relating thereto. It
was passed by both houses of the legislature of 1911, and approved by the governor March
17, 1911. It became effective, by legislative declaration, January 1, 1912. As to the
publication of the statute, we think it may conclude the question to say that the legislature of
1911, looking to the publication of this statute, as well as others, passed an act which was
approved March 18, 1911, and which in part reads as follows:
All acts passed at the present session of the legislature which do not take effect or come
into force until after the year nineteen hundred and eleven shall not be published in the
regular session laws of the year nineteen hundred and eleven, but shall be included in the new
compilation of the laws of the state to be published this year under the supervision of the code
commission.
Stats. 1911, p. 100.
4. This court will take judicial cognizance of the publication of the Revised Laws of the
state, compiled and published under the supervision of the code commission, in which the
crimes and punishments act just referred to appears and is published in its entirety.
published under the supervision of the code commission, in which the crimes and
punishments act just referred to appears and is published in its entirety.
As to the contention of petitioner bearing on the act of the prosecution in calling him as a
witness at the trial of May, nothing is disclosed which would intimate that petitioner was
other than a voluntary witness on that occasion. Rev. Laws, 7451, provides:
* * * In all cases when two or more persons are jointly or otherwise concerned in the
commission of any crime or misdemeanor, either of such persons may be sworn as a witness
against another, in relation to such crime or misdemeanor, but the testimony given by such
witness shall in no instance be used against himself in any criminal prosecution except upon a
charge of perjury committed in the giving of such testimony; and any person may be
compelled to testify, as provided in this section.
5, 6. Petitioner might with propriety have refused to testify at the trial of May, basing his
refusal on his own incrimination, but we are aware of no rule that would prohibit the
petitioner from voluntarily testifying either in behalf of the prosecution or of the defendant.
The fact that he was called by the prosecuting attorney did not, as we view it, take from the
voluntary nature of his act. Moreover, the statute throws about him ample protection when it
provides that his testimony shall in no instance be used against him in any criminal
prosecution except upon a charge of perjury committed in the giving of such testimony.
We are referred by petitioner to many cases asserted in support of his contention and
particularly the case of Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. 195, 35 L. Ed.
1110. In that case the witness Counselman refused to answer questions, basing his refusal on
the ground that his answers might tend to incriminate himself. The court before whom he was
called as a witness adjudged him to be in contempt and made an order fining him $500 and
the costs of the proceeding, and directed the marshal to take him into custody and hold him
until he should have answered the questions and all questions of similar import which
should be propounded to him by the grand jury or the district attorney or any assistant
district attorney in the presence of such jury.
him until he should have answered the questions and all questions of similar import which
should be propounded to him by the grand jury or the district attorney or any assistant district
attorney in the presence of such jury. His release on habeas corpus was based on his right to
refuse to answer questions which the supreme court found might tend to his own
incrimination. No such refusal was made by petitioner here at the time of his testifying in the
court below. Nothing appears in the record which would lead us to believe that the testimony
of the petitioner at the trial of May was other than voluntary.
To the contention of petitioner that he was denied the right of preliminary hearing before
the filing of the information, we may observe that the petition filed in this court, setting forth
the history of the proceedings, shows the complaint filed in the justice court of Beatty
township, in which petitioner and Joseph May are jointly charged with the offense of taking
nine head of cattle. The petition also alleges a hearing by the justice of the peace of Beatty
township, at which hearing evidence was presented to the justice upon the joint charge made
against petitioner and Joseph May; and at the conclusion of such hearing it appears that the
justice of the peace entered an order and judgment holding the petitioner and Joseph May to
answer to the district court of the Fifth judicial district. It was subsequent to this order and
judgment that separate informations were filed against the petitioner and May, charging each
with the felonious taking of nine head of cattle.
7-9. We find no error or irregularity in the proceedings in this respect. Had the grand jury
of Nye County investigated the charge against petitioner and his codefendant May after the
preliminary examination held in the justice court of Beatty township, separate indictments
might have been filed against the parties; or had they been jointly indicted, either or both
might, under the statute, have demanded separate trials, and such demand the court would
have been required to recognize and grant.
demand the court would have been required to recognize and grant. Petitioner here was
deprived of no substantial right by the filing of a separate information after a preliminary
examination, although in that preliminary examination he was jointly charged with another in
the commission of an offense.
The writ should be denied, and the proceedings dismissed.
It is so ordered.
____________
42 Nev. 229, 229 (1918) Parus v. District Court
[No. 2336]
ARNE W. PARUS, Petitioner, v. THE DISTRICT COURT OF THE FOURTH JUDICIAL
DISTRICT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF ELKO,
and E. J. L. TABER, the Judge Thereof, Respondents.
[174 Pac. 706]
1. Grand JuryWho May ServeQualified Elector.
Under Const. art. 1, sec. 8, art. 2, sec. 1, as amended in 1877, art. 4, sec. 27, Rev. Laws, 4929, 4931,
4937, women, being qualified electors, may serve on the grand jury.
2. Grand JuryMembersCompetency.
One who bases an opinion as to a crime merely upon rumors and current publications is not disqualified
from serving on grand jury, returning an indictment, as to such crime, under Rev. Laws, 7005, subd. 6.
3. Grand JurySelection of Members.
Where in drawing, summoning, and impaneling the grand jury there is a substantial compliance with Rev.
Laws, 4931, on the part of the designated officers, and where this compliance indicates freedom from bias
or prejudice, an indictment will not be set aside for any technical defect.
Proceedings in prohibition by Arne W. Parus against the District Court of the Fourth
Judicial District of the State of Nevada, in and for the County of Elko, and Hon. E.J.L. Taber,
the Judge thereof. Writ denied, Coleman J., dissenting.
James Dysart and Curler & Castle, for Petitioner:
Upon the record in the case, appellant challenges the jurisdiction of the district court to try
him on the accusatory paper returned by the body assuming to act as a grand jury, and for
the following reasons insists that a writ should issue prohibiting the said court from
proceeding to try him under the so-called indictment:
accusatory paper returned by the body assuming to act as a grand jury, and for the following
reasons insists that a writ should issue prohibiting the said court from proceeding to try him
under the so-called indictment:
That the body which brought in this accusatory paper was not a legally constituted grand
jury, in that it consisted of persons not qualified to act as grand jurors; that a person acted
upon said accusatory body who, though having the general qualifications of a grand juror,
was disqualified by reason of entertaining a state of mind at and prior to the time when the
charge embraced in the pretended indictment was under consideration which prevented said
person from acting impartially and without prejudice of the substantial rights of the
defendant; and that the accusatory body which brought in the pretended indictment was not
selected by the officers prescribed by law, but was selected by the district judge, acting alone.
By the authorities, the law is settled beyond controversy that, under the common law and
the statutes of the Territory of Nevada at the time of the adoption of the constitution, only
good and lawful men were qualified to act as grand jurors or petit jurors; that when the
constitution was adopted providing that no man should be tried for a capital or infamous
offense unless he were indicted by a grand jury, the framers of the constitution had in view a
grand jury as it existed at the common law and by statute at the time of the adoption of the
constitution. Const. Nev., art. 1, sec. 8; Ency. Law & Proc., p. 740; People v. Draper, 15 N.
Y. 532; People v. Lynch, 21 Cal. 15; English v. State, 31 Fla. 340, 12 South. 689; Donald v.
State, 31 Fla. 255; State v. Barker, 10 L. R. A. 50; Carpenter v. State, 4 How. 163; Copp v.
Henniker, 55 N. H. 179; State v. Hartley, 22 Nev. 342; State v. McClear, 11 Nev. 39; Stats.
1861, pp. 138, 300, 452; Const. Nev. art. 2, sec. 2; Rosencrantz v. Territory, 2 Wash. Ter.
267; Harland v. Territory, 13 Pac. 453; People v. Lensen, 167 Pac. 406.
The foreman of the grand jury was disqualified from acting by reason of having formed
an opinion that a crime had been committed, that the crime was murder, and that
petitioner was the perpetrator of the crime, by his own affidavit, said opinion having been
formed prior to and at the time he had the crime under consideration.
acting by reason of having formed an opinion that a crime had been committed, that the crime
was murder, and that petitioner was the perpetrator of the crime, by his own affidavit, said
opinion having been formed prior to and at the time he had the crime under consideration.
Rev. Laws, 7005, 7090.
E. P. Carville, District Attorney, Chas. A. Cantwell, Deputy District Attorney, and Edwin
E. Caine, for Respondents:
At common law women were not qualified to act as grand jurors, and this common law
obtained up to the time of the adoption of the state constitution; but that common law did not
continue as an integral part of our law after the adoption of the constitution. Laws shall be
made to exclude from serving on juries all persons not qualified electors. Const. Nev., sec.
27, art. 4; sec. 1, art. 2. The constitutional amendment of 1914 did more than confer the right
of suffrage on women. Rev. Laws, 263, 296, 310, 312, 371, 411. The supreme court has
upheld the power of the legislature to fix disqualifications of grand jurors without regard to
the common-law disqualifications, the logical effect and conclusion being that the common
law was not, by virtue of the constitution, controlling in that respect. State v. Millain, 3 Nev.
424.
Legislatures have expressed, by their enactments for the exemption of married women, their
assent to the service of women on juries. 26 Am. & Eng. Ency. Law, 712; Sutherland, Stat.
Constr., sec. 237; Pomeroy v. Beach, 49 N. E. 370; Parks v. State, 64 N. E. 862; In Re Locust
Ave., 77 N. E. 1012; People v. Weinstock, 102 N. Y. Supp. 349; State v. Speigel, 109 N. E.
523; Stiers v. Mundy, 92 N. E. 374; State v. K. C. & M. R. & B. Co., 174 S. W. 248.
The juror objected to was impartial and in all respects qualified. Moreover, bias being
merely cause for challenge to the favor, the error of the court, if any, in denying the challenge,
is not jurisdictional. The disqualification for bias would not make the indictment void.
void. Petitioner cannot raise the point in this proceeding. His only remedy would be by
appeal. 20 Cyc. 1304.
A minute order postponing the term and excusing the jurors was within the power of the
court to make. 20 cyc. 1317. The objection to the selection of the grand jury by the district
judge alone, having been made in this proceeding for the first time, will not be entertained. it
was not embodied in the motion to set aside the indictment as presented to the trial court. In
making the motion, petitioner expressly avers that the twenty-four persons were selected, but
makes no allegation of improper selection. 32 Cyc. 624-626; State v. District Court, 76 Pac.
680; Baughman v. Superior Court, 72 Cal. 572.
1. This is a proceeding in prohibition. The petitioner was indicted by the grand jury of
Elko County, eleven members of this body who participated in the finding of the indictment
being men, the other members being women. As a primary contention, petitioner alleges that
the indictment is invalid, because under our constitution and laws women are not eligible to
serve as members of a grand jury. Section 8 of article 1 of our constitution provides:
No person shall be tried for a capital or other infamous crime * * * except on presentment
or indictment of the grand jury, or upon information duly filed by a district attorney, or
attorney-general of the state.
It is contended by petitioner, and conceded on behalf of respondent, that at common law
women were not qualified to sit on a grand jury, and that this rule obtained up to the time of
the adoption of our constitution. Conceding this does not, however, preclude us from
inquiring as to the class of persons from whom grand jurors were selected at common law,
and further inquiring as to how, if at all, we supplanted this class when we adopted the
grand-jury system.
In Chitty's Treatise on Criminal Law, vol. 1, p. 306, we are told that at common law all
persons serving upon the grand jury inquest must be good and lawful men, by which it is
intended, says the author, that they must be liege subjects of the king, and neither aliens,
nor persons outlawed even in a civil action, attainted of any treason or felony, or convicted of
any species of crimen falsi, as conspiracy or perjury, which may render them infamous.
Hence we see that the class of persons from whom grand jurors could be selected at common
law was those who were liege subjects of the king. By later statutes, the class from whom
grand jurors might be selected was fixed as those possessing certain property or income
qualifications in addition to their being liege subjects of the sovereign. Section 27, article 4,
of our constitution provides, inter alia:
Laws shall be made to exclude from serving on juries, all person not qualified electors of
this state.
Section 4929, Rev. Laws, being section 1 of an act entitled An act concerning juries,
provides:
Every qualified elector of the state, whether registered or not, who has sufficient
knowledge of the English language, and who has not been convicted of treason, felony, or
other infamous crime, and who is not rendered incapable by reason of physical or mental
infirmity, is a qualified juror of the county in which he resides, or the county to which it is
attached for judicial purposes.
Looking to the creation of a jury list, section 4937, Rev. Laws, provides:
The board of county commissioners in each county of the State of Nevada, shall, at its
first meeting after the approval of this act, and thereafter at its first regular meeting in each
year, by an order duly made and entered on its minutes, estimate, as nearly as possible, the
number of trial jurors that will be required for attendance on the district court of said county
until the next annual selection of trial jurors under this act. The said board shall thereupon
select from the qualified electors of the county, whether registered or unregistered, not
exempt by law from jury duty, such number of qualified electors as it has been estimated
to be necessary.
said board shall thereupon select from the qualified electors of the county, whether registered
or unregistered, not exempt by law from jury duty, such number of qualified electors as it has
been estimated to be necessary. The names of the electors so selected shall be entered upon
the minutes of said board, together with the occupation and place of residence of each of such
electors so selected.
Section 4931, Rev. Laws, provides:
It shall be the duty of the district judge and any one of the county commissioners of the
county, at least once in each year and as much oftener as the public interest may require, to
select from the jury list twenty-four persons who shall be summoned to appear as grand jurors
at such time as the judge may order. * * * If from any cause a sufficient number do not
appear, or those who appear are excused or discharged, an additional number, sufficient to
complete the grand jury, shall be selected from the jury list by the judge and clerk and
summoned to appear in court at such time as the court may direct.
It will be noted that these statutory enactments follow the direction of the constitutional
provision. By section 4937 the board of county commissioners are required to select a jury list
for the ensuing year, which list shall contain the names of qualified electors only. Section
4931 makes it the duty of the district judge, whether acting with one of the county
commissioners or with the clerk of the court, to select the members of the grand jury from
this jury list, the names of which have been previously selected by the county commissioners
from the qualified electors of the county. Nowhere do the statutory provisions lose sight of
the constitutional requisite and direction as to the qualifications of grand jurors, to wit, that
they shall be qualified electors. Hence, while it may properly be said that we have taken our
grand-jury system from the common law, it must be recognized that the class of persons
which the common law declare to be subject to grand-jury duty was, at the adoption of our
constitution, changed, and in its place was substituted a class defined as "qualified
electors."
at the adoption of our constitution, changed, and in its place was substituted a class defined as
qualified electors. So, qualified electorship in grand-jury service holds the same place
under our organic law as was held by the term liege subjects of the king at common law.
Section 1 of article 2 of our constitution as adopted by our constitutional convention
provided that:
Every white male citizen of the United States (not laboring under the disabilities named
in this constitution) of the age of twenty-one years and upwards who shall have actually, and
not constructively, resided in the state six months, and in the district or county thirty days
next preceding any election, shall be entitled to vote, etc.
By the amendment of 1877, approved and ratified in 1880, the word white appearing
before the word male was stricken out. We mention this amendment because it becomes
significant at a later place in our opinion. This section of our constitution, as it now stands
after adoption and ratification, reads as follows:
All citizens of the United States (not laboring under the disabilities named in this
constitution) of the age of twenty-one years and upwards, who shall have actually, and not
constructively, resided in the state six months, and in the district or county thirty days next
preceding any election, shall be entitled to vote. * * * There shall be no denial of the elective
franchise at any election on account of sex.
By this last amendment, the right of electorship at any election was accorded to women.
Hence any woman of the age of 21 years and upwards, who has actually and not
constructively resided in this state six months, and in the district or county thirty days next
preceding an election, is a qualified elector, and has the right to vote at any district, county, or
state election, providing she has complied with the election laws governing such elections.
It is contended by petitioner that the granting to woman of the right to vote, although the
same makes her a qualified elector, does not thereby clothe her with the privilege or
obligation of grand-jury duty.
her a qualified elector, does not thereby clothe her with the privilege or obligation of
grand-jury duty. In other words, it is contended that while by the constitutional amendment
women are made qualified electors, this does not of itself make them qualified for grand-jury
service.
We think that the contention of petitioner has been answered by the courts in those cases
where the same contention was raised following the adoption of the fourteenth and fifteenth
amendments to the federal constitution. The enactment of the fourteenth and fifteenth
amendments gave citizenship and the privileges of citizenship to persons without regard to
race, color, or previous condition of servitude. The adoption of the fourteenth and fifteenth
amendments rendered inoperative the provisions in the organic law of the several states
whereby the right of suffrage was limited to the white race. The question of the right of
members of the colored race to serve as jurors where a statute confined the selection of jurors
to persons possessing the qualifications of electors, and where such was limited to the white
race, was dealt with by the Supreme Court of the United States in the case of Neal v.
Delaware, 103 U. S. 370, 26 L. Ed. 567, and in the opinion of that court, rendered by Mr.
Justice Harlan, it was held that though no constitutional amendment had been adopted by the
State of Delaware conforming to the fifteenth amendment, nevertheless by operation and by
force and effect of the federal amendment a statute confining the selection of jurors to
persons possessing the qualifications of electors was enlarged in its operation so as to
embrace all those who by the constitution of the state, as modified by the federal amendment,
were entitled to vote. To the same effect was the case of Strauder v. West Virginia, 100 U. S.
303, 25 L. Ed 664. The question was again dealt with by the Supreme Court of the United
States in the case of Bush v. Kentucky, 107 U. S. 110, 1 Sup. Ct. 625, 27 L. Ed. 354.
To the suggestion that in adopting the grand-jury system we adopted such system as it
was known and as it existed at common law, it may be said, conceding that we adopted
the system itself, or rather the principle of the grand-jury system, from the common law,
that when we incorporated the system into our laws we departed most emphatically from
the lines which established grand-jury qualifications at common law, for under the
ancient system, not only must a grand juror have been a liege subject of the king, but the
venire facias prescribed that they be liber et legalis homo.
system we adopted such system as it was known and as it existed at common law, it may be
said, conceding that we adopted the system itself, or rather the principle of the grand-jury
system, from the common law, that when we incorporated the system into our laws we
departed most emphatically from the lines which established grand-jury qualifications at
common law, for under the ancient system, not only must a grand juror have been a liege
subject of the king, but the venire facias prescribed that they be liber et legalis homo. Chitty
reminds us that the regulation was that they be freemen or freeholders, and later statutes of
England fixed a more restricted latitude from the standpoint of property qualifications, thus:
That every man between the ages of twenty-one and sixty years, residing in any county in
England, who shall have in his own name, or in trust for him, within the same county 10 by
the year above reprizes, on lands or tenements, whether of freehold, copyhold, or customary
tenure, or of ancient demesne, or in rents issuing out of any such lands or tenements, or in
such lands, tenements, and rents, taken together, in fee simple, fee tail, or for the life of
himself or some other person, or who shall have within the same county 20 by the year above
reprizes, in lands or tenements, held by lease or leases, for the absolute term of twenty-one
years, or some longer term, or for any term of years determinable on any life or lives, or who,
being a householder, shall be rated or assessed to the poor rate, or to the inhabited house duty
in the county of Middlesex, on a value not less than 30, or in any other county on a value not
less than 20, or who shall occupy a house containing not less than fifteen windows, shall be
qualified, and shall be liable to serve on juries for the trial of all issues in the civil and
criminal courts, such issues being respectively triable in the county in which every man so
qualified respectively shall reside, and shall also be qualified and liable to serve on grand
juries, in courts of sessions of the peace, and on petty juries, for the trial of all issues
joined in such courts of sessions of the peace and triable in the county riding, or division,
in which every man so qualified respectively shall reside."
the peace, and on petty juries, for the trial of all issues joined in such courts of sessions of the
peace and triable in the county riding, or division, in which every man so qualified
respectively shall reside.
How far we departed from all of these qualifications as prescribed and recognized at
common law may be measured at a glance when by our organic law we expressly declared
that the basis of exclusion from service on juries, so far as their primary selection was
concerned, was the lack of qualified electorship. Constitution of Nevada, art. 4, sec. 27. It
may be urged that at the time of the framing of our organic law, qualified electorship was not
considered as being attributable to women. But time has wrought the unanticipated change,
and by amendment to our constitution women have been clothed with the qualification of
electorship, and by this change the female citizens of the state have automatically become
members of the class from which class alone grand jurors may be drawn, and which
classification, as established by the organic law, constitutes the only circumscription defining,
limiting, and fixing the citizenry from which grand jurors might be in the first instance
selected.
Blackstone tells us that the term homo, though applicable to both sexes, was not
regarded in the common law, applicable to the selection of grand jurors, and embracing the
female. Woman, he says, was excluded propter defectum sexus. The right of electorship is by
our laws made incident to the right, duty, and privilege of grand-jury service. It is the basis of
grand-jury selection. To say that women, after being empowered with the right of electorship,
were nevertheless excluded from grand-jury service, would be to say that, although the
organic law made electorship the basis of grand-jury service, there was nevertheless within
the body of the electorate a class excluded from grand-jury service, the only basis for this
exclusion being, as Blackstone puts it, propter defectum sexus. When the people of Nevada
approved and ratified the constitutional amendment making women qualified electors of the
state, it is to be presumed that such ratification carried with it a declaration that the right
of electorship thus conferred carried with it all of the rights, duties, privileges, and
immunities belonging to electors; and one of the rights, one of the duties, and one of the
privileges belonging to this class was declared by the organic law to be grand-jury
service.
making women qualified electors of the state, it is to be presumed that such ratification
carried with it a declaration that the right of electorship thus conferred carried with it all of
the rights, duties, privileges, and immunities belonging to electors; and one of the rights, one
of the duties, and one of the privileges belonging to this class was declared by the organic law
to be grand-jury service. Nor can we with any degree of logical force exclude women from
this class upon the basis established by Blackstone, propter defectum sexus, because we have
eliminated the spirit of this term from our consideration of womankind in modern political
and legal life. Woman's sphere under the common law was a circumscribed one. By modern
law and custom she has demanded and taken a place in modern institutions as a factor equal
to man. She may own and enjoy property, on which she may be taxed for maintenance of
government. She may enjoy equal educational rights and privileges. She may exercise the
right of citizenship and cast her vote for public servants. She may be an elector or she may be
elected to public office of honor, trust, and responsibility. The grand jury, whatever its
ancient functions may have been, has under modern law become an institution endowed
largely with inquisitorial powers. Not only does it have to do with criminal investigations, but
by statutory provision it may inquire into the affairs, conduct, and regulation of public offices,
boards, and commissions. The public health and public welfare, as well as the moral
atmosphere of a community, are matters of proper inquiry for our modern grand jury. Can we
reasonably say that although woman, on whom has been conferred the right of electorship, the
right to enjoy public office, the right to own and control property, and on whom has been
imposed the burden of taxation in a common equality with men, is nevertheless deprived of
the privilege of sitting as a member of an inquisitorial body, the power, scope of inquiry, and
significance of which affects every department of life in which she, as a citizen and elector, is
interested and of which she is a component part?
is interested and of which she is a component part? The spirit of the constitutional
amendment silences such an assertion.
It was the grand-jury system as an institution that we adopted from the common law, but in
adopting this institution we specifically changed the qualification of the class from which
grand jurors should be selected. Had we adopted the institution without designating or
making mention of the qualifications of grand jurors, then indeed it might with some force be
argued that in adopting the institution we adopted it in its entirety as it existed at common
law. Section 5 of article 4 of our constitution provides:
Senators and members of the assembly shall be duly qualified electors in the respective
counties and districts which they represent, etc.
Section 3 of article 5 of the constitution provides:
No person shall be eligible to the office of governor, who is not a qualified elector, etc.
Section 19 of article 5 provides:
A secretary of state, a treasurer, a controller, a surveyor-general, and an attorney-general
shall be elected at the same time and places and in the same manner as the governor. * * *
Any elector shall be eligible to either of said offices.
Section 3 of article 15 of our constitution provides:
No person shall be eligible to any office, who is not a qualified elector under this
constitution. * * *
Section 1 of article 18 provides:
The rights of suffrage and office holding shall not be withheld from any male citizen of
the United States by reason of his color or previous condition of servitude.
It will be noted that the last-mentioned section specifically puts office holding in the
masculine. Shall it be said that, notwithstanding the amendment to our constitution which
gives to woman the right of suffrage and electorship, these last-mentioned sections of the
organic law would have to be amended to entitle women to the right of office holding in this
state?
to the right of office holding in this state? It is said, by way of argument, that when our
constitutional convention incorporated the section providing for the grand-jury system in this
state it implied that members of that body should be males. The same argument might with
the same degree of consistency be put forth in furtherance of the assertion that when the
framers of our constitution adopted the sections last named, none but males being then
eligible to electorship, they impliedly declared that none but males should enjoy the right to
hold the several offices established. Such a contention would scarcely gain the sanction of
reason, nor would such be supported by the rules of statutory or constitutional construction
with which we are familiar.
Qualified electorship is the primary basis of the right to hold public office. Qualified
electorship is the primary basis of the right or duty of jury service. It is conceded that by the
amendment to our constitution entitling women to the right of electorship the sections of the
constitution which makes electorship the basis of office holding were impliedly amended so
as to make women equally eligible. This can only be true because qualified electorship
impliedly carried with it the right and privilege of the enjoyment of public office. But
qualified electorship carries with it the right, privilege, and duty of jury service, and the rule
which injects the force of the constitutional amendment into the sections of the constitution
making none but qualified electors eligible to office must with equal force affect that
provision of the constitution making none but qualified electors eligible to jury duty. It is not
a certain class of qualified electors who are eligible to jury duty, but all qualified electors.
While it may be of minor significance, it is, we think, worthy of note that the legislature of
this state has regarded women as being subject to jury duty, and in an amendment to the jury
laws providing for additional exemption from jury duty, passed by the legislature of 1915
and approved on March 6 of that year, we find it specifically provided that married women
may claim exemption from jury service.
1915 and approved on March 6 of that year, we find it specifically provided that married
women may claim exemption from jury service. Stats. 1915, p. 84; Stats. 1917, p. 32.
We note the decision of the Supreme Court of Washington Territory in the case of Harland
v. Territory, 3 Wash. T. 131, 13 Pac. 453. In the last-mentioned case the decision of the
majority of the Supreme Court of Washington in the case of Rosencrantz v. Territory, 2
Wash. T. 267, 5 Pac. 305, was overruled by a divided court. In the Rosencrantz case, Judge
Turner, who wrote the opinion in the Harland case, dissented, and, the personnel of the court
having changed in the interim, his dissenting opinion became the prevailing opinion in the
Harland case. Neither the reasoning of Judge Turner's opinion nor the rule in that case is of
assistance to us here. Indeed, the question determined in both of the latter cases was entirely
different from that which confronts us here. There a code provision (section 2078) was before
the court, wherein it was declared:
All qualified electors shall be competent to serve as petit jurors, and all qualified electors
and householders shall be competent to serve as grand jurors.
The decisions of the Washington court did not turn on the question of qualified
electorship, because at that time (1884-1887) women did not possess the right of electorship
under the Washington laws. Both of the decisions mentioned rather turned on the question of
the qualification of a married woman to serve as a juror under the language of the
Washington code providing that householders should be competent for such service. No such
question confronts us here. The sole qualification for grand jurors made by our constitution
and by the laws enacted thereunder is qualified electorship, and we can do naught else than
conclude that, in view of the fact that women, having been enfranchised by the amendment to
our constitution, may therefore become qualified electors, as such they are privileged to and
subject to jury duty.
We take guidance from the decisions of this court in the cases of State v. McClear, 11
Nev. 39, and State v. Hartley, 22 Nev. 342
the cases of State v. McClear, 11 Nev. 39, and State v. Hartley, 22 Nev. 342, 40 Pac. 372, 28
L. R. A. 33, because of the profound learning there displayed by our eminent predecessors;
but if these cases furnish any light on the question at bar, such only serves to illuminate the
position which we take. In neither of these cases is there a single assertion decisive of the one
question presented in this phase of the case. Not only is the adoption of the grand-jury system
from the common law recognized and conceded in our views, but we concur in the views
expressed in both the McClear and Hartley cases, and would cite them approvingly in support
of our position.
2. A second contention is made by petitioner here upon which relief by prohibition is
asked from this court. In this respect it is asserted that J. H. Cazier, the foreman of the grand
jury which returned the indictment, was disqualified under clause 6 of section 155 of the
criminal practice act (Rev. Laws, 7005). This section provides:
A challenge to an individual grand juror may be interposed for one or more of the
following causes only:
1. That he is a minor;
2. That he is an alien;
3. That he is insane;
4. That he is a prosecutor upon a charge against the defendant;
5. That he is a witness on the part of the prosecution, and has been served with process or
bound by an undertaking as such;
6. That a state of mind exists on his part in reference to the case, or to either party, which
will prevent him from acting impartially and without prejudice to the substantial rights of the
party challenging; but no person shall be disqualified as a grand juror by reason of having
formed or having expressed an opinion upon the matter of cause to be submitted to such jury,
founded upon public rumor, statements in public journals, or common notoriety; provided, it
satisfactorily appears to the court upon his declaration, under oath, or otherwise, that he will,
notwithstanding such an opinion, act impartially and fairly upon the matters to be
submitted to him."
or otherwise, that he will, notwithstanding such an opinion, act impartially and fairly upon the
matters to be submitted to him.
Attached to the affidavit of petitioner's counsel there is set forth the interrogatories
propounded by petitioner and by the state to the juryman J. H. Cazier. This examination took
place after the finding of the indictment. It is disclosed that the juryman testified that he had
seen an account of the case of State of Nevada v. Arne W. Parus, as the same was published
in the newspapers; that he had heard the case talked of, but not in detail; that he had not
talked with any of the members of the grand jury relative to the case. He was interrogated,
and answered thus:
Q. From what you had read and from what you had heard about this case, had you formed
or expressed any opinion concerning the guilt or innocence of Mr. Parus? A. Why I don't
know that I have; no. I have heard it spoken of and regretted, and I have heard people say, and
I don't know but what I have myself expressed regret that such a thing would happen, and that
is about all.
Q. You hadn't any opinion, prior to the time that you took up the consideration of this
case, as to whether a crime had been committed or not, and as to whether Mr. Parus had
committed such a crime? A. Well, I believe from what I had heard that I did consider a crime
had been committed; I believe that was the
Q. And that Mr. Parus was the party who had committed it? A. Yes; that is, through just
what I had heard; I felt like a crime had been committed; yes, I admit it.
Q. And that was prior to the time that you took up the consideration of this case as a
grand juror? A. Well, yes, I might say that, but I hadn't paid very much attention to it, not
knowing the party; but I think, perhaps, I was impressed with what I had heard; that a crime
had been committed; yes, sir.
Q. Well now, that opinion that you had, was that a fixed, settled opinion, one that would
require evidence to remove? A. Well, I don't know that it was; I don't know that it was.
fixed, settled opinion, one that would require evidence to remove? A. Well, I don't know that
it was; I don't know that it was. If the evidence was conclusive that there hadn't been a crime,
why, I would decide it by the evidence.
Q. But you were in that state of mind, were you not, Mr. Cazier, at that particular time,
which would require evidence to have changed that opinion? A. Well, I don't know but what
it would, yes. I felt like a crime had been committed, and of course we, after the case was
submitted and the particulars were known, why, I felt like we were justified in finding
Q. Now, as I understand it, at that time and before the witnesses were called and sworn in
that case before the grand jury, as I understand it, your mind was in that condition that it
would have required evidence to remove the opinion that you had as to the guilt of Mr.
Parus? A. That might possibly have been the case.
Q. Well, now, wasn't it the case? A. I hadn't thought very much about it, as I tell you, but
I felt like a crime had been committed; yes, I admit that, some crime.
Q. And it would have at that time, before you heard a word of testimony, it would have
required evidence to have removed that opinion, wouldn't it? A. Possibly, yes.
Q. Well, wouldn't it? A. Well, I hadn't thought about it that way, Judge; I don't know; I
hadn't thought about it. I thought a crime had been committed of course; from what I had
heard and what I had seen in the papers, I thought a crime had been committed, but I hadn't
thought about the evidence, and, in fact, I didn't know whether it would be submitted to this
jury or not. I hadn't thought about it much prior to the time it came before the jury.
Q. Well, now, Mr. Cazier, if you were to have beenif it were a question of your being
chosen as a trial juror and you were being examined upon your voir dire, and you had been
asked if you felt that you would have been awould be an impartial juror, wouldn't your
answer have been, 'No, I don't think I would make an impartial juror in this case?' A.
awould be an impartial juror, wouldn't your answer have been, No, I don't think I would
make an impartial juror in this case?' A. No, judge; I couldn't say that. If I had been examined
as a trial juror I believe I would have given the defendant a fair and impartial trial. That is the
way I felt; I had no prejudice; I didn't know the man, and I don't have any distinct recollection
of being introduced to Mr. Winter.
Q. But at that particular time you did have such information respecting this matter that
you were satisfied in your own mind that Mr. Parus was guilty of the offense charged? A.
Yes; I felt like he was guilty of the offense charged, becauseor he was, from what I had
heard
On cross-examination, the juror, Cazier, described his state of mind thus:
Q. As I understand, Mr. Cazier, the only idea you had of this case, before it was presented
to you as a grand juror, was gleaned from newspaper reports and a little casual talk, is that
right? A. Yes, Ithat was what I based by belief on, of course; that is the only thing I could; I
didn't have anything else.
Q. Did you talk, at any time prior to the time this matter was presented to you in the
grand-jury room, to any one who was a witness in any way in this case? A. No, I think not. I
don't think I ever met any of the witnesses, not that I recall now.
Q. What you heard, then, was in the form of this public rumor going around, was it? A.
Yes.
Q. And the rest of it was from the articles that were published in the local papers here? A.
Yes. I picked up the local paper in the window and noticed it, and then I, after coming up
here, I heard it mentioned, I couldn't say by whom either now; I have heard it mentioned
though; that is about all. I don't know that I have discussed it with anybody, any more than
just to mention the fact that the crime had been committed, or the supposition was that a
crime had been committed.
Q. And from that talk that you heard and from those newspaper reports, you formed a
certain impression, which was based upon the facts as related in the newspapers? A. Well,
yeswell, I don't know that I based any opinion.
Q. Now, was that impression that you formed in the nature of an opinion as to the guilt or
innocence of Arne Parus of the crime of murder? A. Well, I knew that he was the accused;
that is all I knew, through the paper, that he was the accused, and I hadn't paid much
attention. I don't know anything about the details or the circumstances surrounding the
killing; or course I couldn't determine whether it was murder or justifiable homicide or what
you would call it; I felt like a crime had been committed.
Q. And yet you feel that prior to the time that you heard the evidence in the grand-jury
room you would have been fully qualified as a trial juror in the case? A. Yes; I felt like I
could have given the defendant a fair and impartial trial. I had no fixed convictions as to his
guilt or innocence, because I didn't know the circumstances.
The juryman was interrogated as greater length, and was cross-interrogated, but we find
nothing in his examination which would indicate that at the time at which he became a
member of the grand jury, and prior to the time at which that body undertook the
investigation of the case, he was possessed of a state of mind which would prevent him from
acting impartially and without prejudice to the substantial rights of petitioner. There is
nothing in the record from which we might infer that the impression or opinion held by the
grand juror was other than one which, if formed at all, was based on public rumor and what
he had read in the current newspapers. The record as it is before us fails to bring the juror
within the rule which under our statute would preclude him from serving on the grand jury
prior to the investigation of the case of petitioner.
This is especially true in view of the language of subdivision 6 of section 7005 quoted, by
which it is made plain that it is not every opinion or impression formed that will preclude a
juror from acting in a case. The opinion which will disqualify must be one based on
something more substantial and tangible than mere rumor or the report of current
publications. It must be more deep-seated and substantial than a vague general opinion of the
existence of a public offense.
3. A third ground is urged here why this writ should issue. In this respect it is contended
that the accusatory body which brought in the indictment against petitioner was not selected
by the officers prescribed by law, but was selected by the district judge acting alone. From the
record as it is before us, it appears that the members of the grand jury were selected by the
district judge and one member of the board of county commissioners. From all that we may
ascertain from the record, there appears to have been a substantial compliance with the
statutory requirements in this respect. Rev. Laws, 4931. It is not every technical defect in a
proceeding of this character that will vitiate the acts of the officers in drawing the grand jury.
Where in drawing, summoning, and impaneling the jury there is a substantial compliance
with the statute on the part of the designated officers, and where this compliance indicates
freedom from bias or prejudice, the courts are not inclined to set aside indictments found after
due deliberation on the part of the grand jury, where everything indicates fair and impartial
consideration. The whole contention of petitioner relative to this phase is met squarely by the
decision of this court in the case of State v. Collyer, 17 Nev. 275, 30 Pac. 891.
The writ prayed for should be denied, and the proceedings dismissed.
It is so ordered.
Coleman, J., dissenting:
I regret that I am unable to reach the conclusion set forth in the majority opinion as to the
qualification of women to do grand-jury duty, for I feel that their service upon our grand
juries would greatly tend to produce a more wholesome moral atmosphere within the various
counties of the state; but sentiment must not be permitted to enter into the consideration of
those matters.
I shall not elaborate in the presentation of my views. In the adoption of our constitution,
while it is provided by section 6, article 1, that No person shall be tried for a capital or other
infamous crime * * * except on presentment or indictment of a grand jury, * * * the
constitution nowhere says, in express words, who shall comprise the grand jury. It is
contended by petitioner, and conceded by respondents, that at common law only men were
qualified to sit on a grand jury, and that this rule obtained up to the time of the adoption of
our constitution. It must be presumed that the constitutional convention, in providing that
indictments might be found by a grand jury, contemplated a grand jury composed of members
possessing the qualifications required of grand juries at common law. The general rule is laid
down in 8 Cyc. p. 740, as follows:
Constitutions themselves, being instruments in the nature of reenactments of an
acknowledged system of principles coeval with, and a part of, the common law itself, and
subject to judicial interpretation from their inception, it necessarily follows that the
definitions of terms used in constitutions and statutes are to a great extent to be found in the
common law and in the common usage and understanding of these terms according to the
institutions of the country in which they originated and were brought into use in the
administration of governments.
Mr. Cooley, in his work on Constitutional Limitations (6th Ed.) p. 73, says: "It is also a
very reasonable rule that a state constitution shall be understood and construed in the
light and by the assistance of the common law, and with the fact in view that its rules are
still left in force.
It is also a very reasonable rule that a state constitution shall be understood and construed
in the light and by the assistance of the common law, and with the fact in view that its rules
are still left in force. By this we do not mean that the common law is to control the
constitution, or that the latter is to be warped and perverted in its meaning in order that no
inroads, or as few as possible, may be made in the system of common-law rules, but only that
for definitions we are to draw from that great fountain, and that, in judging what it means, we
are to keep in mind that it is not the beginning of law for the state, but that it assumes the
existence of a well-understood system which is still to remain in force and be administered,
but under such limitations and restrictions as that instrument imposes.
In the case of Carpenter v. State, 4 How. (Miss.) 163, 34 Am. Dec. 116, the court says:
It is a general rule that, where terms used in the common law are contained in a statute or
the constitution, without an explanation of the sense in which they are there employed, [they]
should receive that construction which has been affixed to them by the former. To ascertain
then in what the right of trial by jury consists, we must necessarily recur to the provisions of
the common law defining the qualifications, and ascertaining the number of which the jury
shall consist; as the standard to which, doubtless, the framers of our constitution referred. At
common law the number of the jury, for the trial of all issues involving the personal rights
and liberties of the subject, could never be less than twelve; though there are some precedents
which show that a verdict by a greater number would not, on that account, be void. The
legislation of the state has left this particular topic untouched. It has in no instance prescribed
the number of the jury, if it were at all important for it to have done so; but in all cases where
the term jury' is used in our statutes, it is regarded as one of fixed and determined meaning,
ascertained by the paramount law.
In at least two cases this court has determined that such is the rule in this state, and while
the opinions are instructive, it is not deemed necessary to comment upon them or to quote
from them at length. In the case of State v. McClear, 11 Nev. 39, Hawley, C. J., considers at
length the constitutionality of an act in which the court discussed a question similar to the one
here involved, and, to my mind, used language decisive of this matter. Said the court:
It was claimed upon the oral argument that the constitutional provision only requires a
jury of twelve men. That the number is all that is essential. We must confess that this appears
to have been the view entertained by the legislature in the passage of the amended act. If this
be true, it would be within the power of the legislature to take away all the other
qualifications without violating any of the provisions of the constitution, and the right of trial
by juryso long esteemed as the palladium of our libertiesif such power was exercised,
would soon dwindle into insignificance and become a byword and reproach upon our entire
judicial system. * * * We think that the term jury,' as it is used in the constitution, means
twelve competent men who are free from all the ties of consanguinity and all other relations
that would tend to make them dependent on either party. It means twelve men who are not
interested in the event of the suit, and who have no such bias or prejudice in favor of, or
against, either party as would render them partial toward either party. These, among others,
are the general definitions which we consider are guaranteed by the constitution.
I think the learned jurist used the word men advisedly.
In the case of State v. Hartley, 22 Nev. 342, 40 Pac. 372, 28 L. R. A. 33, in which was
involved the constitutionality of an act which provided that twelve persons should be
summoned to appear as grand jurors, of which number the court should select ten persons to
constitute the grand jury, the court considered the question at some length, but a brief
quotation will suffice as follows: "At the time of the adoption of the constitution of
Nevada, wherein it is declared 'No person shall be tried for a capital or other infamous
offense * * * except on presentment or indictment of a grand jury' {art.
some length, but a brief quotation will suffice as follows: At the time of the adoption of the
constitution of Nevada, wherein it is declared No person shall be tried for a capital or other
infamous offense * * * except on presentment or indictment of a grand jury' (art. 1, sec. 8),
the provisions of the General Statutes (secs. 3795, 4106, 4107) which are declaratory of the
common law were in force, being enacted by the territorial legislature of 1861. We, therefore,
conclude that, when the people of this state adopted this constitutional provision, they had in
view a grand jury' as it existed at common law and under the statutes at the time of the
adoption of the constitution. It is so held by this court with reference to the right of trial by
jury in construing the third section of the same article of the constitution. State v. McClear,
11 Nev. 39. The reasoning in that case is applicable to the question at bar. (Italics ours.)
If the law quoted is sound, as I think it is, then our constitutional convention provided for a
grand jury of men as clearly as though the constitution itself had used the word men. The
word men is written into the constitution by operation of law. What is the difference, in
legal effect, between its being written in by operation of law and its being expressly
incorporated therein? Absolutely none. Had the constitution provided in express terms that no
person should be tried except on presentation or indictment of a grand jury composed of men,
we would not now be called upon to determine this question. Yet there is no difference
between using the word men and adopting a system which existed at common law from
which all but men were excluded. To my mind, the proposition is too clear and simple to
justify argument.
But it is said that section 27, article 4, of the constitution, which provides that laws shall
be made to exclude from serving on juries, all persons not qualified electors, * * * in effect
imposes jury duty upon all qualified electors, and when our constitution was so amended as to
confer the right of suffrage upon women, jury duty was automatically imposed upon them.
jury duty was automatically imposed upon them. To my mind, the portion of section 27,
article 4, quoted, is one of exclusion and not one of inclusion. There is, as I view it, a wide
difference between a statute or constitutional provision which imposes jury duty upon a class
of persons and one which excludes all other persons except a certain designated class. Yet the
section mentioned is one of exclusion only. In any event, conceding the contrary view, it
would be a case of harmonizing the two sections of the constitution; and if my view is
correct, the adoption of a grand jury system composed of men would not be in the least
nullified by such a section as section 27, article 4, as it in no way conflicts with the view that
the grand jury should be composed of men.
If my assumption that the constitution adopted the common-law grand-jury system is
correct, it is clear that the statutory provisions relative to the selection of grand jurors are of
no assistance to us in determinating the main question involved; for otherwise, should the
Bolsheviki get control of our legislature, the entire fundamental law of our state would be
wiped out within thirty days from their meeting.
Nor am I willing to concede that the decision in Neal v. Delaware, 103 U. S. 370, 26 L.
Ed. 567, and similar cases in that court, are authority holding a contrary view. Those were
cases wherein it was urged that the exclusion of persons of the African race from jury duty,
under a constitutional provision of Delaware which restricted the selection of jurors to white
male persons, was in violation of the fourteenth amendment to the constitution of the United
States. The fourteenth amendment provides that:
All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the state wherein they reside. No state shall
make or enforce any law which shall abridge the privileges or immunities of citizens of the
United States. * * * But is has never been contended that the fourteenth amendment
conferred all the privileges of citizenship upon women, for if such were the effect, it
would seem that it would not have been necessary to amend our constitution to confer
the elective franchise upon women, nor would it be necessary to now amend the federal
constitution, as is sought to be done, to confer the right upon them.
But is has never been contended that the fourteenth amendment conferred all the privileges
of citizenship upon women, for if such were the effect, it would seem that it would not have
been necessary to amend our constitution to confer the elective franchise upon women, nor
would it be necessary to now amend the federal constitution, as is sought to be done, to
confer the right upon them. The words of Mr. Justice Field, in Ex Parte Virginia, 100 U. S.
365, 25 L. Ed. 676, are of force in this connection, wherein he says:
But the privilege or the duty, whichever it may be called, of acting as a juror in the courts
of the country is not an incident of citizenship. Women are citizens; so are the aged above 60,
and children in their minority; yet they are not allowed in Virginia to act as jurors. Though
some of these are in all respects qualified for such service, no one will pretend that their
exclusion by law from the jury list impairs their rights as citizens.
____________
42 Nev. 254, 254 (1918) Ex Parte Schultz
[No. 2343]
In the Matter of the Application of ROBERT
SCHULTZ for a Writ of Habeas Corpus.
[174 Pac. 431]
1. Waters and WatercoursesOffenses Incident to Supply and Use of Water.
The mere opening, breaking into, tapping or connecting with any pipe, flume, ditch, or reservoir does not
constitute crime, defined by crimes and punishments act, sec. 468, subd. 1 (Rev. Laws, 6733), the taking or
removing therefrom of water belonging to another or allowing the same to be taken being essential element
of the crime.
Original application of Robert Schultz for a writ of habeas corpus. Petitioner discharged,
released, and restored to liberty.
H. V. Morehouse, for Petitioner:
In construing an indictment or criminal complaint, no inference can be allowed. People v.
Logan, 1 Nev. 110; State v. Charley Lung, 21 Nev. 209; State v. On Gee How, 15 Nev. 1S4;
State v. Boyle, 27 Iowa, 492. "The indictment must fully charge the crime.
State v. Charley Lung, 21 Nev. 209; State v. On Gee How, 15 Nev. 184; State v. Boyle, 27
Iowa, 492. The indictment must fully charge the crime. And no intendment can aid a charge
where the facts and circumstances alleged do not bring the accused within the prohibition of
the law. Ency. Pl. & Pr., vol. 10 474; State v. Smith, 11 Or. 205; Tyner v. U. S., 23 App. D.
C. 324. The charge must be made directly, and not inferentially or by way of recital. State
v. Gallagher, 98 N. W. 378; State v. Ashpole, 104 N. W. 281; People v. Arnold, 9 N. W. 406;
Moline v. State, 93 N. W. 228; Hase v. State, 105 N. W. 253; State v. Eddy, 45 Or. 625.
Where the statute creates and defines a crime, an indictment or information which does not
allege all the essential elements constituting such offense is insufficient. Lawton v. Territory,
60 Pac. 93.
A criminal complaint before a justice of the peace requires the same particularity and
nicety of pleading as an indictment. It must set forth the offense charged, with such
particulars of time, place, person, and property as to enable the defendant to understand
distinctly the character of the offense complained of and to answer the complaint. Rev.
Laws, 7471, 7472. The indictment must contain a statement of the acts constituting the
offense, in ordinary and concise language, and in a manner to enable a person of common
understanding to know what is intended. Rev. Laws, 7050.
The complaint lacks essential elements of the crime charged. These cannot be supplied by
intendment or implication. Rev. Laws, 6733; People v. Nelson, 58 Cal. 104; People v.
Robles, 49 Pac. 1042; People v. Earl, 124 Pac. 887.
Geo. B. Thatcher, Attorney-General, W. E. Baldy, District Attorney, and W. M. Kearney,
for Respondent:
Does the complaint state facts sufficient to constitute a public offense? A public offense is
charged therein with sufficient definiteness to warrant this court in refusing to discharge the
petitioner on habeas corpus.
An indictment will not be held insufficient to support a judgment, unless it is so defective
that by no construction, within the reasonable limits of the language used, can it be said to
charge the offense for which the defendant was convicted. State v. Hughes, 31 Nev. 270;
State v. Raymond, 34 Nev. 203; State v. Lovelace, 29 Nev. 43; Ex Parte Breckenridge, 34
Nev. 277.
The complaint being in all respects in conformity with the statute, and the defendant having
been found guilty both in the justice court and in the district court, and no objection having
been raised by demurrer in either instance, any irregularities that may exist in the complaint
should be disregarded by this court in habeas corpus proceedings.
This is an original proceeding in habeas corpus. Petitioner was arrested on a warrant issued
pursuant to criminal complaint filed before the justice of the peace of Carson township. Trial
and conviction followed. An appeal was taken to the district court for this district, and a trial
de novo and conviction resulted there.
This court is asked to release petitioner on habeas corpus on several alleged grounds, one
of which we deem sufficient, namely, that the complaint upon which petitioner was tried and
convicted does not state facts sufficient to constitute a public offense. It is as follows:
Personally appears before me this 14th day of April, A. D. 1917, A. Ambrose, of Ormsby
County, Nevada, on oath, makes complaint, and deposes and says: That on or about the 5th
day of April, A. D. 1917, in the county of Ormsby, State of Nevada, the crime of
misdemeanor was committed, to wit, by Robert Schultz, who then and there did wilfully and
unlawfully open, break into, interfere, and tamper with a certain ditch then and there
belonging to the Mexican Dam and Ditch Company, a corporation, then and there existing
under and by virtue of the laws of the State of Nevada, the said ditch being known as and
called the 'Mexican Ditch,' and being in Ormsby County, Nevada; and that the said Robert
Schultz did then and there wilfully, unlawfully, and with intent to injure, interfere with,
and break into said ditch by lowering certain water boxes and take-outs, and by placing a
new water box in the said Mexican ditch and the said ditch being the property of the said
Mexican Dam and Ditch Company, and being in Ormsby County, Nevada, all of which is
contrary to the form of statute in such cases made and provided," etc.
Mexican Ditch,' and being in Ormsby County, Nevada; and that the said Robert Schultz did
then and there wilfully, unlawfully, and with intent to injure, interfere with, and break into
said ditch by lowering certain water boxes and take-outs, and by placing a new water box in
the said Mexican ditch and the said ditch being the property of the said Mexican Dam and
Ditch Company, and being in Ormsby County, Nevada, all of which is contrary to the form of
statute in such cases made and provided, etc.
The complaint in this action was laid under subdivision 1 of section 468 of the crimes and
punishments act of this state (Rev. Laws, 6733). The language of the statute is as follows:
Every person who wilfully, and with intent to injure or defraud, opens, breaks into, taps,
or connects with any pipe, flume, ditch, conduit, reservoir, wire, meter, or other apparatus
belonging to or used by any water, gas, irrigation, electric, or power company or corporation,
or belonging to or used by any other person, persons or association, or by the state, or by any
county, city, district or municipality, and takes and removes therefrom or allows to be taken,
removed or flow therefrom any water, gas, electricity or power belonging to another; * * * is
guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine not
exceeding five hundred dollars, or by imprisonment in the county jail not to exceed six
months, or by both such fine and imprisonment in the discretion of the court. * * *
The act that is made criminal by subdivision 1 of section 468 of the crimes and
punishments statute is the opening, breaking into, tapping, or connecting with any pipe,
flume, ditch, conduit or reservoir, and the taking and removing therefrom, or allowing to be
taken or removed therefrom, any water belonging to another. It is not the mere opening,
breaking into, tapping, or connecting with any pipe, flume, ditch, conduit, or reservoir that
constitutes the crime sought to be established by the statute.
statute. The taking or removing of water belonging to another from the pipe, flume, ditch,
conduit, or reservoir, or the act of allowing the same to be taken or removed, is the
all-essential element which the statute declares to be of the gravamen of the crime. A crime
under this section is not alleged unless the complaint asserts the act of opening or breaking
into or tapping or connecting, coupled with the act of taking or removing or allowing to be
removed, the specified thing, whether it be water, gas, electricity, or power, belonging to a
person other than the party charged. The complaint here fails to measure up to this test. It
charges that:
Robert Schultz * * * did wilfully and unlawfully open, break into, interfere and tamper
with a certain ditch, * * * and that the said Robert Schultz did then and there wilfully,
unlawfully, and with intent to injure, interfere with and break into said ditch by lowering
certain water boxes and take-outs, and by placing a new water box in the said Mexican ditch.
Nowhere does the complaint, either directly or inferentially, allege the taking or removing
of water belonging to another. Nowhere does it allege the act of allowing the water of another
to be taken, removed, or to flow from the ditch. It is not the act of breaking into or
interfering or tampering with a ditch, or the lowering of water boxes and take-outs, or
the placing of new water boxes that constitutes a crime under this statute. These acts
constitute but a preliminary part of the statutory offense. To complete the offense, a
conjunctive act must be alleged, namely, removal of the designated substances or elements,
the property of another.
It is unnecessary to cite authorities in support of what has been declared numerous times
by this court as applicable to criminal pleading, that a crime is sufficiently alleged when it
substantially follows the language of the statute. The statute under which this complaint was
instituted creates a misdemeanor in the performance of certain conjunctive acts. A crime is
not established under this statute unless the complaint alleges these conjunctive acts as
performed by the party accused.
these conjunctive acts as performed by the party accused. The complaint in this instance fails
to state the most essential fact necessary to constitute an offense under the statute.
The petitioner is discharged, released, and restored to his liberty.
Let the order be entered accordingly.
____________
42 Nev. 259, 259 (1918) Ex Parte Twyeffort
[No. 2345]
In the Matter of the Application of ARTHUR De LANNOY TWYEFFORT for a Writ of
Habeas Corpus.
[174 Pac. 431]
1. Habeas CorpusFugitive from Justice.
Where alleged deserted wife by deposition admitted receipt of moneys from husband after date of the
desertion and failure to support alleged in the indictment, returned in a foreign state, the husband was
entitled to discharge, on writ of habeas corpus, from detention or extradition, since there was no crime as
alleged, and he could not be a fugitive from justice.
Original proceeding in habeas corpus by Arthur De Lannoy Twyeffort. Petitioner
discharged.
Cheney, Downer, Price & Hawkins and Ayres & Gardiner, for Petitioner.
Geo. B. Thatcher, Attorney-General, and William McKnight, Deputy Attorney-General, for
Respondent.
This is an original proceeding in habeas corpus.
The return to the writ shows that the petitioner was held in custody by J. H. Stern, sheriff
of Ormsby County, by virtue of an executive warrant issued by the governor of this state
pursuant to requisition issued by the governor of the State of New Jersey. In the executive
warrant, petitioner is charged with the crime of desertion.
Pursuant to stipulation, this matter was continued from the return day in order to take the
depositions of witnesses in the demanding state. The complaint on which the requisition is
based and upon which the executive warrant issued, reads as follows:
Essex County, to wit: The grand jurors of the State of New Jersey, in and for the body of
the county of Essex, upon their oath present, that Arthur De Lannoy Twyeffort, late of the city
of Newark, in the county of Essex aforesaid, on the 10th day of October, in the year of our
Lord, 1917, with force and arms at the city aforesaid, in the county aforesaid and within the
jurisdiction of this court, being then and there the husband of one Rosalia Twyeffort, did
unlawfully desert and wilfully refuse and neglect to provide for and maintain her, the said
Rosalia Twyeffort, she, the said Rosalia Twyeffort, then and there being the lawful wife of
him, the said Arthur De Lannoy Twyeffort, etc.
By this accusation, constituting the basis of the proceedings in extradition, it appears that
the date of desertion is fixed as October 10, 1917.
From the deposition of Rosalia Twyeffort, wife of petitioner, it appears that on that date
petitioner gave her a check, which she afterwards converted into money, for the sum of $100;
that on November 1, 1917, and subsequent to his departure from the demanding state, she
received another check from petitioner for the sum of $100; that on December 3, 1917, she
received from petitioner, through an intermediate agency, the sum of $100; that on December
31, 1917, she received from petitioner, through an intermediate agency, the sum of $50. All
of these several amounts were contributed by petitioner subsequent to the date charged in the
accusation as being the date of his neglect and failure to provide for and maintain his wife.
The case of Ex Parte La Vere, 39 Nev. 214, 156 Pac. 446, is controlling here. There we
said:
Where upon a proceeding in habeas corpus a petitioner seeks release from an executive
warrant issued upon the requisition of the governor of a demanding state, on the ground
that he is not a fugitive from the justice of that state, a court will inquire into the
existence of facts determinative of that issue."
upon the requisition of the governor of a demanding state, on the ground that he is not a
fugitive from the justice of that state, a court will inquire into the existence of facts
determinative of that issue.
In the matter at bar there is no conflict in the facts presented, and the acts of petitioner in
contributing to the support of his wife after the date of the alleged desertion are admitted. As
in the La Vere case, supra, so here it is shown conclusively that the crime charged could not
have been committed as alleged, and hence petitioner is not a fugitive from justice. In Re
Kuhns, 36 Nev. 487, 137 Pac. 83, 50 L. R. A. (N. S.) 507; Ex Parte Smith, 35 Nev. 80, 126
Pac. 655, 129 Pac. 308.
Petitioner is entitled to be discharged.
It is so ordered.
____________
42 Nev. 263, 263 (1918)
REPORTS OF CASES
DETERMINED BY
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
OCTOBER TERM, 1918
____________
42 Nev. 263, 263 (1918) State v. Milosovich
[No. 2279]
THE STATE OF NEVADA, Respondent, v. CHRIS
MILOSOVICH, Appellant.
[175 Pac. 139]
1. JuryExamination by Court.
Court did not err, in a homicide case, in asking jurors on their voir dire whether they had any
conscientious scruples against the infliction of the death penalty; there being nothing to indicate that the
evidence would not sustain such a verdict.
2. JuryQualificationsOpinion.
An opinion based merely on rumors and newspaper reports does not disqualify a juror.
3. Criminal LawRemark of Counsel.
A ruling, on exception to remarks of accused's counsel as to what he was going to prove, that accused
could not prove such matter, was not prejudicial, where the record does not show an offer of a proposed
further statement.
4. Criminal LawMatters ReviewableBriefs.
The supreme court need not pass on an assignment to rulings on evidence, where the questions objected
to are not quoted in the brief, nor reference made to the place in the bill of exceptions where the questions
and rulings appear.
5. WitnessesImpeachmentIntoxication.
It may be proper to offer evidence to show that at a particular time a witness was in such an intoxicated
state that he could not comprehend what transpired, but it does not follow that a hard drinker is untruthful.
6. Criminal LawCross-Examination of Accused.
The court has wide latitude as to allowing state's counsel on cross-examination of accused to go into
matters as to his prior life, and a conviction will not be reversed, except for abuse of discretion.
7. Criminal LawEyewitnessesNecessity for Calling.
It is not obligatory upon a district attorney to call all of the eyewitnesses to a transaction charged to be a
crime.
8. HomicideInstructionProvoke.
An instruction: That no provocation can justify or excuse homicide, but may reduce the offense to
manslaughter. Words or actions, or gestures, however grievous or provoking, unaccompanied by an assault,
will not justify or excuse murderwas proper, the word provoke meaning only to irritate, excite, or
enrage.
9. HomicideHarmless ErrorInstructions.
Inconsistency of instructions as to the difference between first- and second-degree murder is harmless,
where accused is convicted of murder in the second degree.
10. HomicideMurderDegreeDeliberation.
Deliberation under Rev. Laws, 6384, and Stats. 1915, c. 48, does not of itself constitute an element of
either degree of murder, but simply enters into consideration in determining whether the crime was
committed with or without express malice.
11. HomicideMaliceSufficiency of Evidence.
Evidence held sufficient to show malice under Rev. Laws, 6384, and Stats. 1915, c. 48, in a homicide
case, although accused had known deceased only a few hours.
12. WitnessesBiasCross-Examination.
Where accused was charged with killing another with a syphon bottle, it was error to overrule objection
to a question, asked accused's witness on cross-examination, as to whether another girl had not said that
accused asked us girls not to say anything about the syphon bottle, although asked for purpose of
showing bias of the witness, since defendant should have first been connected with such statement.
Appeal from Second Judicial District Court, Washoe County; R. C. Stoddard, Judge.
Chris Milosovich was convicted of murder in the second degree, and he appeals.
Reversed.
M. B. Moore and Hoyt, Gibbons, French & Springmeyer, for Appellant:
The defendant did not have a fair and impartial trial. The court erred to the prejudice of the
defendant, and against his constitutional rights, in refusing challenges to certain jurors.
Defendant was entitled to a trial by twelve impartial men.
twelve impartial men. Defendant was forced to go to trial with at least four men in the jury
box whose minds, at the time the trial commenced, were prejudiced, and in two instances
made up. 24 Cyc. 295-300; State v. Raymond, 11 Nev. 107; State v. McClear, 11 Nev. 39;
State v. Salgado, 38 Nev. 64; State v. Roberts, 17 Pac. 798; State v. Buralli, 27 Nev. 41; State
v. Williams, 28 Nev. 409; State v. Casey, 117 Pac. 5; State v. Beatty, 25 Pac. 899; State v.
Murphy, 37 Pac. 420.
The court erred in its rulings upon certain evidence, particularly in its refusal to permit the
defendant to show the bad character and lack of credibility of the principal witness for the
state; and the failure of the state to call to the stand an eyewitness who had been subpenaed
by the prosecution was prejudicial to the defendant. It is the duty of the district attorney to aid
and assist the court and the defendant, to the extent that the defendant shall have a fair and
impartial trial. The district attorney is an officer of justice whose duty it is to aid in the
administration of justice and to prevent injustice from being done. He should present at a trial
any facts and circumstances tending to show innocence and insure justice, and let the jury
determine from all the facts the guilt or innocence of the defendant. Territory v. Hanna, 5 Pac.
252; Hurd v. People, 25 Mich. 415; Mayer v. People, 10 Mich. 226; Roscoe, Crim. Ev. 135;
State v. Beatty, 25 Pac. 889; People v. Choy Ah Sing, 84 Cal. 276; People v. Dixon, 94 Cal.
255; Elder v. State, 86 Am. St. Rep. 220, 65 S. W. 938.
It was erroneous for the court to permit certain cross-examination of the defendant by the
district attorney. The defendant was called as a witness and testified in his own behalf, and as
such was properly subjected to cross-examination upon the subjects as to which he had been
examined in chief. However, the district attorney was permitted, over the objection of counsel
for defendant, to inquire into every phase of the defendant's past life, the aim of the state
clearly being to place him in a prejudicial light before the jury.
If the defendant was guilty of any offense against the law, under the evidence in the case,
it was manslaughter only; there was no evidence of ill-feeling or malice on the part of the
accused; no evidence of a thought in the mind of the defendant to take the life of the
deceased.
law, under the evidence in the case, it was manslaughter only; there was no evidence of
ill-feeling or malice on the part of the accused; no evidence of a thought in the mind of the
defendant to take the life of the deceased. There was an utter lack of deliberation, malice, or
intent to kill. Wharton on Homicide, 126, 252; Miller v. People, 30 Mich. 16; Lahan v.
Commonwealth, 84 Pac. 80; People v. Edgar, 25 Cal. 268, 167 Pac. 891; People v. Freel, 48
Cal. 436; Murphy v. State, 31 Ind. 511; Steel v. Scott, 37 Nev. 412; Maher v. People, 81 Am.
Dec. 781.
The trial judge erred in giving any instructions to the jury upon second-degree murder.
When the evidence presented is sufficient only to warrant a conviction of manslaughter, it is
manifest error to give any instructions upon any higher degree. There was error, likewise, in
the giving of other instructions, as well as in the refusal of the court to give certain
instructions requested by the defense. The court did not state or offer to state the reasons for
the refusal of said instructions. Where there is a lack of intention to take life at the time the
blow is delivered, there cannot be a conviction of murder in the first or second degree, or of
voluntary manslaughter. Maher v. People, 81 Am. Dec. 781; People v. Freel, 48 Cal. 437;
State v. Ah Mook, 12 Nev. 390.
The court instructed the jury that no provocation can justify or excuse the killing of a man.
This was palpable and gross error. State v. Skinner, 32 Nev. 70; Rev. Laws, 6394, 6396,
6397, 6400, 6401; Sanders v. State, 113 Ga. 267; People v. Vanderpool, 1 Mich. N. P. 264;
Maher v. People, 10 Mich. 212; State v. Lodge, 33 Atl. 312; Stout v. State, 90 Ind. 1; State v.
Jones, 47 Atl. 1006; Commonwealth v. Webster, 59 Mass. 295; People v. Messersmith, 57
Cal. 575.
Geo. B. Thatcher, Attorney-General, and Edward F. Lunsford, District Attorney, for
Respondent:
If a challenge to a juror is based upon implied bias, reasons must be set forth in detail, a
general objection not being sufficient.
not being sufficient. Rev. Laws, 7148; State v. Randall, 11 Nev. 99; State v. Simas, 25
Nev. 434; State v. Salgado, 38 Nev. 64. The same rule applies as to a challenge for actual
bias. State v. Salgado, supra. If it appear to the court that he can act fairly and impartially,
notwithstanding an opinion as to the guilt or innocence of the defendant based upon public
rumor or common notoriety, a juror shall not be disqualified. State v. Millain, 3 Nev. 409;
State v. Williams, 28 Nev. 395.
The fact that a witness occasionally drinks to excess, or is otherwise indiscreet, does not
affect his credibility. Holtz v. State, 44 N. W. 1107. Proper foundation has been laid for the
admission in evidence of voluntary statements made by the accused after his arrest. State v.
Carrick, 16 Nev. 129; State v. Mircovich, 25 Nev. 487; State v. Dye, 36 Nev. 143. It was
proper to question two witnesses for the defense, for the purpose of affecting their credibility,
as to a discussion of the case by them, in which one had endeavored to influence the other to
withhold certain parts of her testimony. The interest or bias of a witness may always be
shown in this manner. Underhill, Crim. Ev. (2d. Ed.), sec. 248; State v. Cook, 88 Pac. 240.
That counsel may avail himself of a ruling on evidence, he must assign the particular ground
on which he relies in his exception. State v. Jones, 7 Nev. 408; State v. Murphy, 7 Nev. 394;
State v. Lawrence, 28 Nev. 440. The extent to which cross-examination may be carried rests
in the sound discretion of the court, and only an abuse of this discretion is cause for reversal
on appeal. Smith v. State, 74 N. E. 983; Shields v. State, 49 N. E. 351; Underhill, Crim. Ev.
(2d Ed.), sec. 245.
Murder in the second degree may be committed without an intention to kill. The failure of the
court to give requested instructions as to voluntary manslaughter did not prejudice the
defendant. State v. Millain, 3 Nev. 409; State v. Smith, 10 Nev. 118; People v. Gordon, 88
Cal. 422; People v. O'Neal, 67 Cal. 378; People v. Stevens, 75 Pac. 62; State v. Johnny, 28
Nev. 224. Upon questions of fact, the supreme court will not disturb the findings of the
jury, if there is substantial evidence to support them.
Upon questions of fact, the supreme court will not disturb the findings of the jury, if there
is substantial evidence to support them. State v. Wong Fung, 22 Nev. 336; State v. Buralli, 27
Nev. 41; State v. Hancock, 28 Nev. 300; State v. Preston, 30 Nev. 301; State v. Thompson,
31 Nev. 309; State v. Whittaker, 39 Nev. 159. A verdict in a criminal case will not be
reversed where there is any evidence to support it. State v. McGinnis, 6 Nev. 109; State v.
Raymond, 11 Nev. 98; State v. Crozier, 12 Nev. 300; State v. Mills, 12 Nev. 403.
The words wilfully, deliberately, and premeditatedly form the basic distinction between
murder in the first and second degree. At common law, which is unchanged so far as this
point is concerned, the killing which was committed without legal justification and with
malice aforethought was murder in the second degree, and in order to raise it to murder in the
first degree, it was necessary to prove that the killing was done wilfully, deliberately, and
premeditatedly. State v. Wong Fung, 22 Nev. 336; State v. Millain, 3 Nev. 409; State v.
Anderson, 4 Nev. 265; People v. Valencia, 43 Cal. 552; People v. James, 57 Cal. 115.
Appellant, having been convicted of murder in the second degree, has appealed. We do not
think it necessary to make a detailed statement of the facts, as sufficient will be stated in
considering each error to make our point clear.
1. It is first contended by counsel for appellant that the judge who presided at the trial was
guilty of conduct prejudicial to the defendant in inquiring of each of the jurors, when
examined on their voir dire, if he entertained any conscientious scruples against the infliction
of the death penalty. The indictment charged a crime for which the jury could have imposed
the death penalty, and there was nothing to indicate to the judge at the time of the selection of
the jury that the evidence would not justify such a verdict; and, though the district attorney in
his opening statement indicated to the jury that he would not ask for the death penalty,
that was after the jury had been selected and sworn to try the case.
attorney in his opening statement indicated to the jury that he would not ask for the death
penalty, that was after the jury had been selected and sworn to try the case. We are not
convinced that, when the indictment and evidence justify a verdict fixing the death penalty,
the district attorney can prevent the jury from finding a valid verdict fixing such penalty; but
we are convinced that when the indictment charges a crime for which the death penalty may
be fixed, and there is nothing to indicate to the court that the evidence will not sustain nor the
district attorney ask for such a verdict, the court commits no error in inquiring of the jurors as
it did in the case at bar.
Error is assigned to the action of the court in overruling challenges of certain jurors. The
challenges were not specific, as required by section 7150 of the Revised Laws. We have
several decisions holding adversely to the contention of appellant, and there is no reason to
consider this assignment, further than to say that it is without merit. State v. Raymond, 11
Nev. 99; State v. Salgado, 38 Nev. 64, 145 Pac. 919, 150 Pac. 764.
2. The assignment of error based upon the refusal of the court to sustain the challenge to
the juror Finn demands consideration. This juror stated upon his voir dire, in response to
questions by counsel for defendant, that he had talked about the case with persons who
purported to know the facts, and that he had formed an unqualified opinion as to the guilt of
the defendant. Thereafter he was examined by the district attorney. We quote:
Q. Mr. Finn, the party about whom you have been speaking as having told you something
about the case, is that any of the witnesses whose names have been mentioned here? A. No.
Q. Did that party say they had talked to any of the witnesses to the transaction? A. Did
not.
Q. Did they express an opinion in your presence? A. Yes, sir.
Q. Did they claim to be present at the time this thing happened? A. No.
Q. Just expressed their opinion based upon reading the articles about it in the paper? A. I
think so, and what they heard.
Q. And what they heard? A. Yes.
Q. Did they state to you they had heard from any eyewitnesses what had occurred? A. No,
they didn't state that they heard it from any eyewitness.
Q. Just general rumor, was it? A. That is what I should judge.
Q. Mr. Finn, if chosen as a juror, in this case, don't you suppose you could set aside your
opinion and listen to the evidence and try it squarely upon the evidence you hear on the stand
here, without reference whatever to the opinion that you might have at this time? A. I think
so.
Q. Think you can. You have served as juror in criminal cases before, haven't you? A.
Yes, sir.
Q. Do you think there is any reason in your mind at this time why you could not serve
fairly and impartially in this trial? A. I don't know of any.
Q. And any opinion that you might have at this time, if sworn as a juror, you would set
aside and just try this case upon the evidence you hear here in court, is that true? A. I would.
The Court:
Q. Do I understand, Mr. Flint, that what you heard was based on public rumor and
publications in the newspapers? A. Yes, sir.
Q. You understand the rule of law that a defendant in a criminal case is presumed to be
innocent until he is proven guilty beyond a reasonable doubt? A. Yes, sir.
Q. You would give that benefitthe benefit of that presumptionto the defendant in this
case, if you sat as a juror? A. I would.
Q. And I understand that you can and will, notwithstanding the opinion that you have
entertained or do entertain, that you will thoroughly and impartially act upon the matters
in this case, that is, from the evidence and the instructions of the court? A. Yes, sir.
entertain, that you will thoroughly and impartially act upon the matters in this case, that is,
from the evidence and the instructions of the court? A. Yes, sir.
Q. And you will consider nothing else? A. No sir.
We think this assignment falls squarely within the rule laid down by this court in State v.
Williams, 28 Nev. 395, 82 Pac. 353, wherein it is said:
In this era of education, intelligence, and diffusion of knowledge, when the telegraph and
the cable flash information from the most distant parts of the earth in a few seconds, when an
army of men are employed in gathering and reporting the important happenings of the world,
and improved printing presses, invented and operated by ingenious minds and cunning hands,
are publishing millions of papers daily, the man who does not read and think and form
opinions regarding such crimes as murders committed in his locality is better fitted to have
lived in the dark ages than to serve on juries in the twentieth century. Still, in order to be a
good juror, any opinion he may have must be a qualified one, and he must conscientiously
feel that he can discard it in arriving at a verdict, and realize that under our system of
jurisprudence persons charged with crime are not to be prejudged or convicted upon
newspaper reports or hearsay, or found guilty by anything excepting evidence introduced in
court under the sanctity of an oath or in conformity to legal practice. Every one, however
humble or great, accused of crime, is entitled to be tried by jurors whose minds will be guided
by such evidence only in arriving at their verdict. It is apparent that the juror was not
disqualified under this test, that the opinion he possessed was only such an one as any
disinterested, intelligent citizen who reads and thinks might form, and, although that opinion
would naturally remain in his mind until something occurred to remove it, it appears to have
been qualified by a doubt as to the truth or falsity of the information on which it was based,
and that it was not a settled conviction regarding the defendant's guilt which would weigh
with him in considering the testimony or swerve or influence his mind in arriving at a
verdict."
the defendant's guilt which would weigh with him in considering the testimony or swerve or
influence his mind in arriving at a verdict.
3. It is earnestly insisted by counsel for appellant that the court committed prejudicial
error in connection with the opening statement of counsel for appellant. We quote from the
record:
Mr. MooreWe will also show that Eva Dowling was not only drunk on that night, but
that she is known as an habitue of the cabarets, getting drunk on frequent occasions.
Mr. LunsfordNow, just pardon the interruption.
Mr. MooreYes, sir.
Mr. LunsfordIf the court please, I desire to except to the remarks of counsel at this
time, because he well knows that under the rule of evidence he would be precluded from
showing anything of the kind.
The CourtThat is the view the court will take at this time, until the matter is presented.
Mr. MooreI shall object to the ruling of the court, and state that I shall make the offer
of the testimony.
The CourtYou may make the offer when the time comes, but you will not argue the
matter to the jury at this time, Mr. Moore.
Mr. MooreAnd I also wish to take an exception and make the further objection to the
ruling of the court in precluding me from making a statement of what we expect to prove to
the jury.
The CourtYou are not precluded from making a proper statement. You may proceed.
We are unable to perceive any error in what transpired. In the first place, by his statement
he got to the jury at least a portion of what he had contemplated. He cannot complain of that;
and, since no offer appears in the record of a proposed further statement, it is impossible for
us to say that counsel did not state all that he intended or desired to state. For us to imagine
that he contemplated stating something not appearing in the record by way of offer would be
going a long way toward assisting in the preparation of a ground as the basis for the
establishment of error.
toward assisting in the preparation of a ground as the basis for the establishment of error.
4, 5. Counsel also argue that the court erred in sustaining an objection to certain questions
asked on cross-examination. The questions are not quoted in the brief, nor is our attention
directed to the place in the bill of exceptions where the questions and rulings appear. We are
left to the alternative of surmising the questions or combing the record to ascertain the matter
urged as reversible error; and, while we do not feel called upon to do either, we will (with a
warning to counsel generally not to indulge in the practice) consider the point sought to be
presented. The point in question goes to the ruling of the court in sustaining an objection to a
line of questions asked a certain witness relative to her getting drunk, for the purpose of
affecting her credibility. We think the court was right in sustaining the objection. It may be
proper to offer evidence to show that at a particular time a witness was in such an intoxicated
state that he could not comprehend what transpired; but we have yet to learn that, because a
person has been a hard drinker, it follows that he is untruthful. In fact, we think it to be well
known that many men who are scrupulously truthful are inveterate drinkers. 40 Cyc. 2612.
6. Appellant contends that the court erred in overruling an objection to certain questions
asked defendant on cross-examination as to his prior life. Counsel for appellant does not
quote in his brief the matter objected to, nor call our attention to the place in the record where
it may be found; hence we will simply say that in such matters the court has a wide latitude,
and unless it abuses its discretion the judgment will not be reversed. This identical question
was before the court in State v. Lawrence, 28 Nev. 440, 82 Pac. 614, where the widest
latitude was allowed, and the court held that no prejudicial error was committed.
7. It is contended that the district attorney was guilty of conduct during the trial
necessitating the granting of a new trial in not calling as a witness Daisy Reeves, who was
present during most of the time when the events leading up to the homicide transpired,
and our attention is directed to the following authorities: Territory v. Hanna, 5 Mont.
granting of a new trial in not calling as a witness Daisy Reeves, who was present during most
of the time when the events leading up to the homicide transpired, and our attention is
directed to the following authorities: Territory v. Hanna, 5 Mont. 248, 5 Pac. 252; Hurd v.
People, 25 Mich. 415; Maher v. People, 10 Mich. 226, 81 Am. Dec. 781; Roscoe, Crim. Ev.
p. 135. Roscoe states the rule relief upon as follows:
On a trial for murder, where the widow and daughter of the deceased were present at the
time when the fatal blow was supposed to have been given, and the widow was examined on
the part of the prosecution, Patterson, judge, directed the daughter to be called also, although
her name was not on the indictment, and she had been brought to the assizes by the other side.
The learned judge observed: Every witness who was present at a transaction of this sort
ought to be called; and, even if they give different accounts, it is fit that the jury should hear
the evidence, so as to draw their own conclusions as to the real truth of the matter.'
The rule laid down in the quotation is what might be designated the old English rule, and
grew out of the fact that the defendant was not entitled to call witnesses in his own behalf in
capital cases; but under the practice in the United States the defendant may call, at the
expense of the state, where he is not financially able to bear the expense himself, witnesses in
his behalf. Since the old English rule does not exist in the United States, practically all of our
courts hold, and we think rightly, that it is not obligatory upon the district attorney to call all
of the eyewitnesses to the transaction. The reason for the American doctrine is elaborated
upon in State v. Barrett, 33 Or. 194, 54 Pac. 807, and Ross v. State, 8 Wyo. 351, 57 Pac. 929.
See, also, 12 Cys. 550; Bullock v. State, 73 Tex. Cr. R. 419, 165 S. W. 196.
8. It is strenuously contended that the court erred in giving instruction No. 27, which reads
as follows:
You are instructed that no provocation can justify or excuse homicide, but may reduce the
offense to manslaughter. Words or actions, or gestures, however grievous or provoking,
unaccompanied by an assault, will not justify or excuse murder; and, when a deadly
weapon is used, the provocation must be great to make the crime less than murder."
grievous or provoking, unaccompanied by an assault, will not justify or excuse murder; and,
when a deadly weapon is used, the provocation must be great to make the crime less than
murder.
It is contended that the pivotal point in this instruction turns upon the meaning of
homicide, since homicide is the killing of one human being by another, regardless of the
circumstances surrounding the killing; that the correct interpretation of the instruction quoted,
and the way in which it must be deemed to have been construed by the jury, is that no act on
the part of the person killed could have justified the defendant who did the killing, even
though it was done in self-defense, notwithstanding the fact that our statute provides that one
who kills another in necessary self-defense is justified in so doing. We think there is no merit
in this contention. This court in two cases held the contrary view: State v. Raymond, 11 Nev.
98; State v. Crozier, 12 Nev. 300. In the first case mentioned, the instruction complained of
does not appear in the opinion of the court; but it does appear in the statement of counsel for
appellant. In both of the cases the court gave the point scant consideration, but nevertheless
we are satisfied from our investigation that the conclusion reached in those cases was right. In
our view, the question turns upon the interpretation put upon the word provocation, rather
than upon the word homicide. In Casner v. State, 43 Tex. Cr. R. 12, 62 S. W. 914, it is said:
Provoke,' as ordinarily understood, means to excite to anger or passion; to exasperate;
to irritate; to enrage.' Cent. Dict. This is the meaning of the word under the statute authorizing
courts to charge the law provoking the difficulty.
See, also, Ruble v. People, 67 Ill. App. 439; State v. Warner, 34 Conn. 276.
Provocation in law is defined by the Standard Dictionary to be:
Such conduct as may serve to justify or palliate an assault, or to reduce an intentional
homicide to manslaughter.
In the light of these definitions, the instruction reads, in substance, as follows:
You are instructed that no words or conduct which irritates, excites, or enrages can justify
or excuse homicide, but may reduce the offense to manslaughter, etc.
Since no one is justified in taking the life of another, except in self-defense, and since to
cause another to be irritated, excited, or enraged does not put his life in danger, it will be seen
that the objection to the instruction is not well taken.
9, 10. It is contended that the court erred in giving what is claimed to be conflicting
instructions concerning the crime of murder. It is said that instruction No. 19, wherein the
jury is told that, even if the evidence fails to show beyond a reasonable doubt that the said
killing was committed wilfully, deliberately, and premeditatedly, still if the evidence shows
beyond a reasonable doubt that the same was committed without legal justification and with
malice aforethought, as defined in these instructions, then you should find the defendant
guilty of murder in the second degree, is in conflict with that portion of instruction No. 20,
which reads:
The unlawful killing must be accompanied with a deliberate and clear intent to take life
in order to constitute murder.
The point urged is that in No. 19 the court instructed that, if the evidence fails to show that
the killing was committed deliberately by the defendant, he might be guilty of murder in the
second degree, while in instruction No. 20 the jury is told that the killing must be with a
deliberate intent, etc. These instructions are conflicting, but we do not see how appellant was
prejudiced thereby. Murder is defined to be:
An unlawful killing of a human being, with malice aforethought, either express or
implied. Rev. Laws, 6384.
Express malice is that deliberate intention unlawfully to take away the life of a fellow
creature, which is manifested by external circumstances capable of proof.
Malice shall be implied when no considerable provocation appears, or when all the
circumstances of the killing show an abandoned and malignant heart.
All murder which shall be perpetrated by means of poison, or lying in wait, or torture, or
which shall be committed in the perpetration, or attempt to perpetrate, any arson, rape,
robbery, or burglary, or which shall be committed by a convict in the state prison serving a
sentence of life imprisonment, shall be deemed murder of the first degree; and all other kinds
of murder shall be deemed murder of the second degree. Stats. 1915, p. 67.
Deliberation in murder, under our statute, as it will be seen, does not of itself constitute an
element characteristic of either degree of murder. It simply enters into consideration in
determining whether the crime was committed with or without express malice; and, as
murder in the second degree may be committed with either express or implied malice, we are
unable to see wherein appellant was injured. Had the court given conflicting instructions
relative to murder in the first and second degree, and had appellant been found guilty of
murder in the first degree, then it is clear that reversible error would have been committed; or
had the court given conflicting instructions, one pertaining to murder in the second degree
and the other to manslaughter, and had defendant been convicted of murder in the second
degree, reversible error would have been committed; but, had he been convicted of the lower
offense, there would have been no reversible error, as he would not have been injured.
11. It is next contended that the evidence shows that, if the defendant was guilty of any
offense, it was only manslaughter and not murder; and to sustain this contention it is said that
defendant and deceased had never met prior to the evening of the homicide, and hence there
could have been no grudge to satisfy. While it is probably true that murder oftener than
otherwise grows out of an old grudge, such a condition is by no means essential to the
commission of the crime.
essential to the commission of the crime. Pursuant to statute, malice essential to murder shall
be implied when no considerable provocation appears. The evidence in this case shows that
there had been more or less misunderstanding between the deceased and defendant during the
entire evening prior to the trouble between them, and the jury was warranted in implying that
malice existed. Without reviewing the evidence, we may say that it amply sustains the
verdict.
12. It is next asserted that the court erred in overruling an objection to a question asked
Daisy Reeves, a witness for the defense, upon cross-examination, relative to a statement made
to the witness by Mary Lusich, in which the latter said to Daisy Reeves that the defendant had
asked us girls not to say anything about the syphon bottle. The syphon bottle was the
instrument with which it was contended by the state at the trial the defendant struck the
deadly blow. We think the evidence given by the witness must have been very damaging to
the defendant, notwithstanding the fact that it was not shown that he in fact made such a
statement to Mary Lusich. She was not asked concerning the statement, and she alone, aside
from the defendant, could testify whether or not such a statement had been made to her. No
person on trial for a crime should be subjected to the prejudice which such a statement would
engender until it is shown that he made the statement. It is contended on the part of the state
that the question was asked for the purpose of showing the bias of the witness. Conceding for
the sake of this case that such evidence would accomplish that purpose, it would not be
justified without first connecting the defendant with such statement. Substantially the same
question was before the court in State v. Beatty, 45 Kan. 492, 25 Pac. 899, where it was held
that such an examination was reversible error.
For the error mentioned in refusing to sustain the objection, the judgment is reversed, and
the case remanded for a new trial.
McCarran, C. J., concurring:
I concur in the order and in all phases of the opinion of Mr. Justice Coleman, save and
except that which deals with instruction No. 27, as given by the trial court. As to this
instruction, however, I am not in accord with the views of my learned associate.
In this case the appellant was charged with the crime of murder. He relied on a defense of
justifiable homicide. The court gave the following instruction:
You are instructed that no provocation can justify or excuse homicide, but may reduce the
offense to manslaughter. Words or action, or gestures, however grievous or provoking,
unaccompanied by an assault, will not justify or excuse murder; and, when a deadly weapon
is used, the provocation must be great to make the crime less than murder.
The instruction as given is assigned as error. It cannot, in my judgment, receive the
sanction of this court. To approve of the giving of this instruction would be to strike down the
defense of justifiable homicide. The very first assertion in the instruction declares that no
provocation can justify or excuse homicide. This very assertion, standing alone, would
nullify the provisions of our statute defining justifiable homicide. There (Rev. Laws, 6394)
it is declared:
Justifiable homicide is the killing of a human being in necessary self-defense or in
defense of habitation, property, or person, against one who manifestly intends, or endeavors,
by violence or surprise, to commit a felony, or against any person or persons who manifestly
intend and endeavor, in a violent, riotous, or tumultuous manner, to enter the habitation of
another, for the purpose of assaulting or offering personal violence to any person dwelling or
being therein.
Homicide is justifiable when committed by a public officer, or person acting under his
command and in his aid, in the following cases:
(1) In obedience to the judgment of a competent court.
(2) When necessary to overcome actual resistance to the execution of the legal process,
mandate or order of a court or officer, or in the discharge of a legal duty.
(3) When necessary in retaking an escaped or rescued prisoner who has been committed,
arrested for, or convicted of a felony; or in arresting a person who has committed a felony and
is fleeing from justice; or in attempting, by lawful ways or means, to apprehend a person for a
felony actually committed; or in lawfully suppressing a riot or preserving the peace.
All other instances which stand upon the same footing of reason and justice as those
enumerated, shall be considered justifiable or excusable homicide.
Homicide is also justifiable when committed either
(1) In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother
or sister, or of any other person in his presence or company, when there is reasonable ground
to apprehend a design on the part of the person slain to commit a felony or to do some great
personal injury to the slayer or to any such person, and there is imminent danger of such
design being accomplished; or,
(2) In the actual resistance of an attempt to commit a felony upon the slayer, in his
presence, or upon or in a dwelling, or other place of abode, in which he is.
Section 6399 makes provision as to the burden of proving circumstances of mitigation or
justification of homicide.
The homicide appearing to be justifiable or excusable, the person indicted shall, upon his
trial, be fully acquitted and discharged.
If a person kill another in self-defense, it must appear that the danger was so urgent and
pressing that, in order to save his own life, or to prevent his receiving great bodily harm, the
killing of the other was absolutely necessary; and it must appear, also, that the person
killed was the assailant, or that the slayer had really, and in good faith, endeavored to
decline any further struggle before the mortal blow was given."
necessary; and it must appear, also, that the person killed was the assailant, or that the slayer
had really, and in good faith, endeavored to decline any further struggle before the mortal
blow was given.
Justifiable or excusable homicide has been repeatedly dealt with by this court. The law of
the subject is expressed in State v. Grimmett, 33 Nev. 531, 112 Pac. 273, where it is said:
The law is well established that where a person, without voluntarily seeking, provoking,
inviting, or willingly engaging in a difficulty of his own free will, is attacked by an assailant,
and it is necessary for him to take the life of his assailant to protect his own, then he need not
flee for safety, but has the right to stand his ground and slay his adversary.
The same principle is involved in State v. Forsha, 8 Nev. 140. The question was also dealt
with by this court in the case of State v. Smith, 10 Nev. 106.
As said in the case of Maher v. People, 10 Mich. 212, 81 Am. Dec. 781:
Homicide, or the mere killing of one person by another, does not, of itself, constitute
murder; it may be murder, or manslaughter, or excusable or justifiable homicide, and
therefore entirely innocent, according to the circumstances.
In Commonwealth v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711, it is said:
Homicide, of which murder is the highest and most criminal species, is of various
degrees, according to circumstances. The term, in its largest sense, is generic, embracing
every mode by which the life of one man is taken by the act of another. Homicide may be
lawful or unlawful; it is lawful when done in lawful war upon an enemy in battle; it is lawful
when done by an officer in the execution of justice upon a criminal, pursuant to a proper
warrant. It may also be justifiable, and of course lawful, in necessary self-defense.
We are referred to the decisions of this court in the cases of State v. Anderson, 4 Nev. 265,
and State v. Raymond, 11 Nev. 9S
Raymond, 11 Nev. 98. They are in no wise applicable to the question raised here. The rule
asserted in those cases is that where there is an intent to kill upon the part of the person taking
the life of another, or when the act is one which would otherwise be murder, no words of
reproach, no matter how grievous, or however abusive and insulting, are a sufficient
provocation to free the slayer from the guilt of murder. This rule has been consistently
adhered to, not only by this court, but by many others, and we do not find it at all necessary to
disturb such doctrine in this case. Again, we are referred to the case of State v. Crozier, 12
Nev. 300. The only application that this latter case can have to the matter at bar is that it may
apply to the latter part of the instruction as given; that is, it may sanction the doctrine that,
where a homicide was committed with a deadly weapon, the provocation must have been very
great to warrant an inference that it was done in the heat of blood to lower the grade of the
crime from murder to manslaughter. Neither of the cases last referred to bears to any extent
whatever on the objectionable feature designated in the instruction as given by the lower
court in the case at bar. The positive assertion found in the instruction here, to the effect that
no provocation can justify or excuse homicide, removes the case at bar from the effect of any
of the decisions just referred to.
It will not do to say that another instruction correctly defined the law of justifiable
homicide. Where a jury is instructed, by one assertion coming from the court that the
defendant has the right of self-defense, and by another assertion, coming from the same court,
that no provocation can justify or excuse homicide, the latter is not cured by the former.
In the case of State v. Scott, 37 Nev. 412, 142 Pac. 1053, we laid emphasis on the rule
which we find to be of general acceptation that where a record in a criminal case shows that
the court differently defined the law upon any given subject, one clause being correct, the
other erroneous, injury must be presumed to follow from such a state of facts, unless the
record clearly shows that no injury resulted therefrom.
other erroneous, injury must be presumed to follow from such a state of facts, unless the
record clearly shows that no injury resulted therefrom. To the same effect is the case of State
v. Ferguson, 9 Nev. 106. The holding of this court in the last-cited case was cited approvingly
by the Supreme Court of Washington in the case of McClaine v. Territory, 1 Wash. 345, 25
Pac. 456.
To my mind it would be unreasonable to say that, where a defendant in a criminal case
interposed a defense of justifiable or excusable homicide, the court in giving the law to the
jury could instruct them that no provocation can justify or excuse homicide, without thereby
taking from him every element of his defense, thus committing irreparable injury. The statute
law of the state in express terms provides that one accused of murder may interpose a plea of
self-defense. For us to sanction the instruction as given in this case would be equivalent to a
setting aside of the statute. We are unable to see our way clear to do this.
The judgment and order appealed from must be reversed.
Per Curiam:
Rehearing denied.
____________
42 Nev. 284, 284 (1918) Perry v. District Court
[No. 2237]
EDWARD ALSTON PERRY, Petitioner, v. THE DISTRICT COURT OF THE SEVENTH
JUDICIAL DISTRICT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY
OF ESMERALDA; J. EMMETT WALSH, Judge of Said Court, and LUCY LAND
PERRY, Respondents.
[174 Pac.1058]
1. JudgmentOpening DefaultStatute.
Rev. Laws, 5084, providing that when summons and copy of complaint have not been personally served,
court may allow defendant within six months to answer to merits, was made to cover cases only in which
there was valid service by publication.
2. DivorceLack of ServiceNullity of Decree.
If wife, in husband's divorce action, was not served with summons, decree of divorce was void ab initio
for lack of jurisdiction in court to enter it.
3. DivorceService by PublicationAffidavit.
Affidavit, in husband's divorce action, that wife's address was unknown to him, and that, after due
diligence, she could not be found in state, so that summons could not be served upon her there, did not
contain statement of facts contemplated by Rev. Laws, 5026, authorizing service by publication.
4. DivorceOrder of PublicationAffidavitStatutes.
Where husband suing for divorce knew wife was nonresident when he filed affidavit for order of
publication, wherein he did not say she was or was not, or that he did not know her residence, court, in
view of Rev. Laws, 5027, acquired no jurisdiction to order publication of summons and decree.
5. ProcessService by PublicationDerogation of Common Law.
Statutes providing for service by publication, whether in court of record or justice court, being in
derogation of common law, must be strictly construed and followed to give court jurisdiction over person.
Petition for certiorari to review an order vacating and setting aside decree for divorce by
Edward Alston Perry against the District Court of the Seventh Judicial District of the State of
Nevada, in and for the County of Esmeralda, J. Emmett Walsh, Judge of said court, and Lucy
Land Perry. Writ dismissed.
M. A. Diskin, for Petitioner:
The district court exceeded its jurisdiction in making the order setting aside the judgment
rendered October 27, 1914, as the motion to set aside the decree of divorce was not made
until approximately eight months after the rendition of the judgment.
27, 1914, as the motion to set aside the decree of divorce was not made until approximately
eight months after the rendition of the judgment.
When is a judgment rendered? Where the statute refers to the rendition of judgment it
means the formal announcement by the court, and does not mean the entry of the same by the
clerk. Central Trust Co. of California v. Holmes Mining Co., 30 Nev. 437.
The time within which the defendant may move commences to run from the rendition of the
judgment. Rev. Laws, 5084; Rule 40, Dist. Court. The court had no power or jurisdiction to
set aside a judgment unless the motion was made within six months after the rendition of
judgment. Lang Syne Gold M. Co. v. Ross, 20 Nev. 127; Construction Company v. Crawford,
141 Pac. 474; Chandler v. Probate Court, 141 Pac. 635; Smith v. McCormick, 157 Pac. 1010.
The decree of divorce and the minutes of the court recite that the default of the defendant
was duly entered. This was sufficient. Sacramento Bank v. Montgomery, 81 Pac. 138. The
entry of default is not a prerequisite to the entering of a judgment. Hibernia S. & L. Soc., 48
Pac. 370.
After the expiration of six months the court had no jurisdiction to open the default and
permit the defendant to answer. Clarke v. Strauss, 11 Nev. 76; Daniels v. Daniels, 12 Nev.
118; Horton v. Newpass, 21 Nev. 184. If the respondent has any rights, he must assert them
in a court of equity. 5 Cal. 40.
The law distinguishes between the vacation of a judgment and the opening of a judgment.
R. C. L., vol. 15, sec. 177, p. 123; 23 Cyc. 967. By asking to have the judgment opened up,
they may have so recognized its validity as to preclude them from insisting that no judgment
had ever been rendered. Board v. Walter, 112 Pac. 599.
Thompson & Thompson, for Respondents:
The application to set aside the judgment and allow the defendant to appear was filed
within six months after the filing of the findings of fact and decree with the clerk of the
court.
after the filing of the findings of fact and decree with the clerk of the court. Rev. Laws,
5084; Stanton-Thompson Co. v. Crane, 24 Nev. 181; Storke v. Storke, 116 Cal. 51. An order
or decree has no validity until it is at least delivered to the clerk for filing. Schultz v. Winter,
7 Nev. 130.
Certiorari is allowed only where there is no appeal. Rev. Laws, 5684. Proceedings in
certiorari will not lie where an appeal could have been resorted to. Chapman v. Justice Court,
29 Nev. 161; LaDue v. Forbes, 124 Pac. 867; Holmboe v. Hermond, 121 Pac. 154; Stoddard
v. Superior Court, 108 Cal. 305. If, in the case at bar, the petitioner had an appeal, the
motion to quash the writ must be granted. Dahlstrom v. Portland M. Co., 85 Pac. 918;
Bennett v. Wallace, 43 Cal. 25; Milliken v. Huber, 21 Cal. 167.
A judgment entered without jurisdiction is void. 1 Black, Judgments, 218. A judgment
void upon its face may be set aside at any time. Idem, sec. 307. A judgment against a
nonresident, where the affidavit or order for publication is insufficient and there is no
personal service nor any appearance, is absolutely void. Little v. Currie, 5 Nev. 90. The
statute requires that in case of publication where the residence of a nonresident is known, the
court or judge shall also direct a copy of the summons and complaint to be deposited in the
postoffice, directed to the person to be served at his place of residence. Rev. Laws, 5027.
The affidavit does not give the residence of the defendant, nor does it state that the plaintiff
does not know her residence. It says that the defendant's address is unknown to the
plaintiff. This makes the affidavit insufficient. Victor M. Co. v. Justice Court, 18 Nev. 26;
Ricketson v. Richardson, 26 Cal. 149.
This is a proceeding in certiorari. Petitioner obtained a decree of divorce in respondent
court on December 31, 1914, against Lucy Land Perry. Thereafter the defendant in the
divorce action, through her attorney, moved the court to set aside the decree granting the
divorce.
the court to set aside the decree granting the divorce. Numerous grounds were urged as a
basis for the motion. The court set a date for the hearing of the motion, notice of which was
served upon the attorney who represented the plaintiff in the divorce action. Upon the hearing
the court entered an order vacating and setting aside the decree mentioned. The present
proceedings are to review the order of the court thus made.
The only ground urged as a basis for the contention that the district court was without
jurisdiction to set aside the decree of divorce is that the application therefor was not made
within six months from the entry of the decree of divorce. It is insisted that the right to set
aside the decree in this case is limited to the right conferred by section 5084, Revised Laws,
wherein it is provided:
* * * And when, from any cause, the summons and a copy of the complaint in an action
has not been personally served on the defendant, the court may allow, on such terms as may
be just, such defendant or his legal representatives, at any time within six months after the
rendition of any judgment in such action, to answer to the merits of the original action.
1. In our opinion, this section does not apply to this case. The statute quoted was made to
cover cases in which there was a valid service by publication. The court, in entering the order
vacating the decree of divorce, found that the defendant was not served with summons in
said cause, as required by law. The court also found:
That said plaintiff, Edward Alston Perry, knew that defendant had been committed to the
state hospital for the insane at Raleigh, N. C. He also knew that she had been taken from said
last-named institute to Dr. C. O. Sahler's institute in the State of New York, where said
defendant has remained and is located at the present time. That said plaintiff knew all of these
facts before he commenced the above-entitled suit, and at the time he made the affidavit for
publication of summons in the above suit. That said plaintiff appeared in the superior court of
Halifax County, N. C., before the clerk thereof and objected to certain allowances being
made out of the estate of defendant for her care and support at said last-named institute.
court of Halifax County, N. C., before the clerk thereof and objected to certain allowances
being made out of the estate of defendant for her care and support at said last-named institute.
That said objections were made by plaintiff in the month of July, 1913, about three months
prior to his making the said affidavit for publication of summons in this cause. That at the
time said plaintiff, Edward Alston Perry, made the said affidavit to secure an order to serve
the summons in the above cause by publication, he knew the residence and the postoffice
address of the defendant, and he knew that she had a general guardian and that she was in the
care of Dr. C. O. Sahler at his said institute. He knew when he stated in said affidavit that the
defendant's address is unknown to plaintiff,' that the same was false, and was done for the
purpose of preventing said defendant, her guardian, or said Dr. C. O. Sahler from being
served with summons, or receiving any notice of the commencement of said suit.
2. It was upon these findings that the court based the order vacating the decree of divorce.
If the finding that the defendant in the divorce action was not served with summons can be
sustained under the law, then the decree of divorce was null and void ab initio for lack of
jurisdiction in the court to enter it, and hence these proceedings must be dismissed. In our
opinion, the court never acquired jurisdiction to make the order of publication of summons or
enter the decree of divorce. The section of our statute which authorizes the service of
summons by publication (Rev. Laws, 5026) reads:
When the person on whom the service is to be made resides out of the state, or has
departed from the state, or cannot, after due diligence, be found within the state, or conceals
himself to avoid the service of summons and the fact shall appear by affidavit, to the
satisfaction of the court or judge thereof, and it shall appear, either by affidavit or by a
verified complaint on file, that a cause of action exists against the defendant in respect to
whom the service is to be made or that he is a necessary or proper party to the action, such
court or judge may grant an order that the service be made by the publication of the
summons."
may grant an order that the service be made by the publication of the summons.
The portion of the affidavit which was filed in the divorce action, whereby it was sought to
show that personal service could not be made upon the defendant, reads:
That the defendant's address is unknown to the plaintiff, and that, after due diligence on
the part of the plaintiff, the defendant herein cannot be found in the State of Nevada, so that
summons cannot be served upon her in this state.
3. Without considering the feature of fraud which is involved in the charge that the
affidavit was false, and that affiant knew it to be false, we are of the opinion that the affidavit
did not contain such a statement of facts as is contemplated by the statute. It does not purport
to state any fact whatsoever from which the court might conclude that due diligence had been
used to ascertain whether or not the defendant could be found in the state. It contains the mere
conclusion of the affiant. We are clearly of the opinion that such an affidavit is wholly
defective and confers no jurisdiction whatever upon the court to enter an order of publication.
The language of the Supreme court of California in Ricketson v. Richardson, 26 Cal. 153,
where the statute and affidavit under consideration were almost identical with ours, is so
appropriate that we quote from it at length with approval:
An affidavit which merely repeats the language or substance of the statute is not
sufficient. Unavoidably the statute cannot go into details, but is compelled to content itself
with a statement of the ultimate facts which must be made to appear, leaving the detail to be
supplied by the affidavit from the facts and circumstances of the particular case. Between the
statute and the affidavit there is a relation which is analogous to that existing between a
pleading and the evidence which supports it. The ultimate facts of the statute must be proved,
so to speak, by the affidavit by showing the probatory facts upon which each ultimate fact
depends.
These ultimate facts are conclusions drawn from the existence of other facts, to disclose
which is the special office of the affidavit. To illustrate: It is not sufficient to state generally
that after due diligence the defendant cannot be found within the state, or that the plaintiff has
a good cause of action against him, or that he is a necessary party; but the acts constituting
due diligence or the facts showing that he is a necessary party should be stated. To hold that a
bald repetition of the statute is sufficient is to strip the court or judge to whom the application
is made of all judicial functions and allow the party himself to determine in his own way the
existence of jurisdictional factsa practice too dangerous to the rights of defendants to admit
of judicial toleration. The ultimate facts stated in the statute are to be found, so to speak, by
the court or judge from the probatory facts, stated in the affidavit, before the order for
publication can be legally entered.
The affidavit must show whether the residence of the person upon whom service is
sought is known to the affiant, and, if known, the residence must be stated. It is true that this
is not required in terms in the thirtieth section, which is more especially devoted to the
affidavit; but, as we have already said, the whole statute upon the subject of service by
publication is to be read together, and the thirty-first section requires that where the residence
is known the order shall direct a copy of the summons and complaint to be forthwith
deposited in the postoffice, directed to the person, to be served at his place of residence. In
granting the order, the court or judge acts judicially and can know nothing about the facts
upon which the order is to be granted, except from the affidavit presented by the applicant.
There is no other way of bringing the fact of residence to the judicial knowledge of the
court or judge. That the fact of residence should appear in the affidavit is therefore necessarily
implied from the whole tenor and scope of the statute. * * * Where this kind of service is
sought, the proceedings should be carefully scrutinized and strict compliance with every
condition of the law exacted; otherwise its provisions may lead to gross abuse, and the
rights of person and property made to depend upon the elastic consciences of interested
parties, rather than the enlightened judgment of a court or judge."
law exacted; otherwise its provisions may lead to gross abuse, and the rights of person and
property made to depend upon the elastic consciences of interested parties, rather than the
enlightened judgment of a court or judge.
But we need not look further than the decisions of our own court for authority to sustain
our conclusion. In Victor M. & M. Co. v. Justice Court, 18 Nev. 21, 1 Pac. 831, it was said:
The statutory provisions for acquiring jurisdiction over a defendant by any other than
personal service must be strictly pursued; that an affidavit for publication of summons, which
merely reports the language of the statute or its substance, is not sufficient, but the ultimate
facts of the statute must be proved by the affidavit, by showing the probative facts upon
which the ultimate facts depend, and that it is not sufficient for the order to state that the
ultimate facts appear to the satisfaction of the court,' but they must be sustained by the
probative facts stated in the affidavit. The probative facts set out in the affidavit must be
sufficient to justify the court in being satisfied of the existence of the ultimate facts required
by the statute before it has jurisdiction to order service of summons by publication. Little v.
Currie, 5 Nev. 90; Roy v. Whitford, 9 Nev. 372; Scorpion S. M. Co. v. Marsano, 10 Nev.
382.
In the case of Bender v. Hutton, 160 Cal. 372, 177 Pac. 322, wherein the affidavit for service
by publication stated that the last known address of said defendant was and is Clovis, New
Mexico, and this defendant now resides at Clovis, New Mexico, the trial court refused to
enter an order directing publication of summons, and on petition for a writ of mandamus to
compel the entry of such an order the court, speaking through Beatty, C. J., observed:
He is entirely justified, therefore, in requiring a statement of the grounds of the affiant's
belief in order to determine whether they are sufficient to satisfy the mind and conscience of a
reasonable man that the fact is as alleged. This involves no hardship to the plaintiff, for in
making his showing he is not limited to his own affidavit, and if he or his witnesses have
good grounds for their belief it will always be easy to state them, and if they have not he
has no right to the order.
for in making his showing he is not limited to his own affidavit, and if he or his witnesses
have good grounds for their belief it will always be easy to state them, and if they have not he
has no right to the order. The practice, therefore, of requiring reasonably strict proof of the
place of residence of the defendant when publication of summons is sought upon the ground
that he resides out of the state, so far from deserving reproof is much to be commended.
In the case of Evans v. Evans, 118 Pac. 177, the Supreme Court of Washington held that
while there was a studied effort on plaintiff's part to comply with the several requirements of
the letter of the statute, so as to make the record in the divorce suit appear valid, the spirit of
the law was wilfully violated by him, and no notice was given to the defendant of the attempt
to secure a dissolution of the marriage.
4. Furthermore, it appears from the record in this matter that petitioner knew that his wife
was a nonresident of the State of Nevada at the time he filed his affidavit for an order of
publication. In his affidavit he did not say that she was or was not a nonresident, or that he
did not know her residence, for which reason also the court acquired no jurisdiction to enter
the order of publication of summons and the decree.
Rev. Laws, 5027, provides that:
In case of publication, where the residence of a nonresident or absent defendant is known,
the court or judge shall also direct a copy of the summons and complaint to be deposited in
the postoffice, directed to the person to be served at his place of residence.
In Victor M. & M. Co. v. Justice Court, supra, it is said:
In this case the affidavit contained no statement as to the defendant's residence, and the
court made no order directing the deposit. Plaintiff may have known the residence. If he did,
he should have stated it in his affidavit; the court should have made the requisite order, and
the return in this proceeding should have shown a full compliance therewith. Nothing less, at
least, than an affidavit to the effect that plaintiff did not know defendant's residence,
could justify the failure to order the depositing of copies of the complaint and summons in
the postoffice directed as required.
an affidavit to the effect that plaintiff did not know defendant's residence, could justify the
failure to order the depositing of copies of the complaint and summons in the postoffice
directed as required. Whether or not the affidavit should also state facts showing sufficient
diligence in attempting to ascertain the residence, we do not deem it necessary to decide. We
cannot presume that plaintiff did not know the defendant's residence, and, without that
presumption, the return would not show a legal service, even though we should conclude that
the affidavit contained facts sufficient to justify the court in deciding that service could not be
made under section 1092.
Section 1092, mentioned in the quotation just given, is, in legal effect, as appears in the
opinion of the court, the same as the extract from section 5027, Revised Laws, supra.
5. The case last cited grew out of an action in the justice court, but we cannot see that that
fact would in any way affect the situation; for statutes providing for service of summons by
publication, whether in a court of record or in a justice court, are in derogation of the
common law, and must be strictly construed in order to give the court jurisdiction over the
person of the defendant. Ricketson v. Richardson, supra.
For the reasons given, it is ordered that the writ be dismissed.
____________
42 Nev. 294, 294 (1918) Richards v. Vermilyea
[No. 2057]
C. L. RICHARDS, Respondent, v. S. E. VERMILYEA,
Appellant.
[175 Pac. 188; 180 Pac. 121]
1. CorporationsContract to Deliver StockAction for BreachEvidence.
In suit for breach of contract to convey 25,000 shares of capital stock of corporation to be organized to
develop mining claims, made in consideration of plaintiff's trust deed of his interest or option in claims,
evidence held insufficient to sustain verdict of $300.
2. JudgmentSupport in FactsAssumptions.
Judgment cannot be based upon assumptions or upon conclusions reached by guess, but must be
sustained by facts shown by the evidence or admitted by the party to be bound.
3. CorporationsSale of StockBreachDamages.
In action for breach of contract to deliver shares of capital stock of corporation to be organized, its value,
if a proper criterion of damages, would be as of time of breach, and not as of date of contract.
ON PETITION FOR REHEARING
1. Appeal and ErrorReviewReason for JudgmentsEvidence.
The rule of law that a judgment which is right will not be reversed merely because a wrong reason is
given may not be applied to uphold a judgment not sustained by sufficient evidence.
ON COSTS
1. CostsOn AppealAwardStatutes.
Under the provisions of Rev. Laws, 5381, where the supreme court in reversing a judgment makes no
order as to costs, the costs shall be allowed to the party obtaining relief, and where a judgment for plaintiff
for $300 was reversed, it follows as a matter of course that costs are recoverable by appellant without an
order therefor.
2. CostsOn AppealCopy of TranscriptCourt Ruling.
In computing the costs under supreme court rule 6, fixing the amount to be allowed per folio for a
typewritten copy of the transcript, it was error for the clerk to include in his calculation the original papers
on file and included in the record.
3. CostsOn AppealReversalPremiums on Appellant's Stay Bond.
Items for cash paid a surety company by appellant as premiums on the appeal and stay bond are proper
elements of cost to be collected by appellant upon reversal, in view of Rev. Laws, 699.
Appeal from Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.
Suit by C. L. Richards against S. E. Vermilyea. Judgment for plaintiff, motion for new trial
denied, and defendant appeals. Reversed. Rehearing denied.
On respondent's appeal from the ruling of the clerk on the cost bill, ruling of the clerk
sustained as modified.
H. R. Cooke, for Appellant.
Geo. B. Thatcher and C. L. Richards, for Respondent:
Where there is a conflict in the testimony, the judgment of the trial court will not be set
aside, unless clearly against the weight of evidence. Ency. Ev., vol. 14, p. 214; McNamee v.
Nesbitt, 24 Nev. 400; Roberts v. Webster, 25 Nev. 94; Roberti v. Anderson, 37 Nev. 396;
Tonopah L. Co. v. Riley, 30 Nev. 312; Murphy v. Southern Pacific Co., 31 Nev. 120. Where
a case is tried by the court, it will be presumed that he passed on every question presented by
the record; and, if his decision can be sustained on any grounds deducible from the pleading
and the evidence, the judgment will be affirmed. Cent. Dig., secs. 3402, 3421.
Respondent brought suit to recover judgment in the sum of $500 for breach of contract. In
1916 respondent and one Degman obtained an option upon three mining claims situated in
the Manhattan mining district, Nye County, Nevada, and thereafter sold said option to
appellant. This suit grows out of the contract entered into between appellant and respondent
relative to the sale of respondent's half interest. The written contract entered into between the
parties is as follows:
This agreement, made in duplicate and entered into this 26th day of May, 1906, by and
between C. L. Richards, of the town of Manhattan, county of Nye, State of Nevada, the party
of the first part, and S. E. Vermilyea, of the town of Goldfield, county of Esmeralda, state
aforesaid, the party of the second part, witnesseth:
That whereas, the said party of the first part is the owner of an undivided one-half (1/2)
interest in a certain escrow deed wherein those certain mines or mining claims known as
and called the 'Reno,' 'Reno No.
escrow deed wherein those certain mines or mining claims known as and called the Reno,'
Reno No. 1,' and Reno No. 2' are conveyed by Chas. Nash and Chas. Knox to C. L.
Richards and J. T. Degman;
And whereas, the said party of the second part is desirous of purchasing said mining
claims and incorporating same for the purpose of taking over, working and developing said
claims:
Now, therefore, the said party of the first part for and in consideration of the sum of five
hundred ($500) dollars lawful money of the United States to him in hand paid by the said
party of the second part, the receipt of which is hereby acknowledged, and the further
consideration of the covenants and agreements hereinafter contained and reserved on the part
of the said second party, to be kept and performed by said second party, has this day executed
a good and sufficient deed of all his interest to the said second party as trustee.
It is covenanted and agreed on the part of the said second party, in consideration of the
aforesaid premises, to deliver to said first party, his heirs or assigns, twenty-five thousand
(25,000) shares of the capital stock of a corporation to be hereafter organized for the purpose
of taking over, operating and developing aforesaid mining claims. Said stock to be delivered
to said first party on or before sixty (60) days from the date of this agreement.
This agreement is binding upon the heirs, executors, administrators or assigns of all the
parties hereto. In witness whereof, we have hereunto set our hands and seals the day and
year first above written.
C. L. Richards. [Seal.]
Witness: _________. S. E. Vermilyea. [Seal.]
It is agreed that the within-mentioned twenty-five thousand shares of stock is subject to
pool with all other stock with the exception of treasury stock.
C. L. Richards.
Judgment was rendered in behalf of the plaintiff in the case for $300, together with interest
from July 25, 1916, and costs, from which judgment and an order denying a motion for a new
trial this appeal is taken.
1, 2. The evidence is very conflicting as to just how much cash was paid by appellant to
Degman and respondent for their option (it is not contended that it was over $2,000), but as
we view the situation it does not matter how much he paid, for this controversy grows out of
the stipulation of appellant to deliver to respondent 25,000 shares of stock in a corporation
which was to take title to the mining ground described in the contract. We see no difference
between this case, wherein defendant agreed to give 25,000 shares of stock in a company to
be organized in lieu of a payment of $300, and a case where a person pays $300 in cash, for
which he is to receive 25,000 shares of stock in a corporation to be organized. The same rules
of law would apply to both cases. Defendant pleaded in his answer facts which he claimed
excused the failure to incorporate the company, and alleged his readiness so to do, but we do
not consider these allegations of any importance in disposing of this appeal.
We quote the findings and conclusion of law as made by the trial court, as follows:
That the defendant, on the 26th day of May, 1906, agreed to deliver within sixty days
25,000 shares of stock in a corporation to be formed, in lieu of the sum of $300, which said
sum otherwise should have been paid the plaintiff as a part of his share of the purchase price
of the option described in the complaint. That the defendant did not deliver the said stock
within sixty days or at all.
Conclusion of law reached: That the plaintiff is entitled to judgment for the sum of $300,
interest from the 25th day of July, 1906, to the date of this judgment, and to his costs.
The process by which the trial judge reached his conclusion as to the amount for which
judgment should be entered is disclosed by his opinion, from which we quote as follows:
In the usual' corporation 600,000 shares of stock cover the outlay, which in this case was
$7,800, of which $6,000 was the actual purchase price of the ground and $1,S00 {double
the amount Degman received in money) was the purchase price of the option.
$6,000 was the actual purchase price of the ground and $1,800 (double the amount Degman
received in money) was the purchase price of the option. The stock then was worth at that
time to all these people, except Degman, $.013 per share, and 25,000 shares were worth $325,
an amount near enough $300 for that figure to be a good guess at the value of the stock on a
rough estimation.
It will be seen from this quotation that the court, in arriving at its conclusion as to the
amount for which judgment should be rendered, assumed that the company which was to
have been incorporated should have been capitalized for 600,000 shares. It then determined
that the defendant actually paid for the property which was to go into the company the sum of
$7,800, and upon that basis figured the value of the stock as of the date of the contract
between the parties at $.013 per share, or $325 for the 25,000 shares, which, the court says,
was an amount near enough $300 for that figure to be a good guess at the value of the
stock.
The judgment of the court is not sustained by the evidence. In the first place, there was
absolutely no evidence introduced as to the number of shares into which it was agreed the
proposed company should be divided, and it is admitted by plaintiff that the proposed
company was never organized. The court assumed that the usual corporation was divided
into 600,000 shares, and upon this assumption reached its conclusion. Judgment cannot be
based upon assumptions, or upon conclusion reached by guess, but must be sustained by
facts shown by the evidence or admitted by the party to be bound. Even if it had been proven
what was usual in such matters, it is doubtful if such evidence could be considered.
3. The trial court evidently took, as a basis for reaching a conclusion (which it finally
guessed at) as to the value of the stock in a company which never existed, the purchase price
of the mining claims as called for in the option plus the amount which it found was paid by
defendant for the option; but in fixing the time from which interest should begin to run
upon the judgment made it sixty days after the sale of the option, or the time when the
stock should have been delivered under the terms of the contract.
which interest should begin to run upon the judgment made it sixty days after the sale of the
option, or the time when the stock should have been delivered under the terms of the contract.
If the value of the property itself was a proper criterion of the damage which plaintiff
sustained (as to which we express no opinion), it must be such value as of the time of the
breach of the contract, and not as of the date of the contract; and as mining property is very
fluctuating in value, we cannot assume that because it is of a certain value at a particular date
it was of that value sixty days later.
We do not wish to be understood as saying that if there had been proof that it was agreed
between the parties that the company contemplated was to be divided into 600,000 shares of
stock the theory of the trial court as to the method of arriving at plaintiff's damage was
correct. We express no idea as to the proper theory, if there be a correct one, upon which
plaintiff can recover under the facts of the case. That question is not before us. We simply
hold that upon the record the evidence does not sustain the judgment.
It is ordered that the judgment be reversed.
A very earnest petition for a rehearing has been filed in the above-entitled case, and we
will briefly state our views thereon.
It is first insisted that the evidence shows that Richards and Degman sold their option for
$2,000, of which $1,500 was paid, leaving a balance of $500 unpaid upon the purchase price,
and that this amount is the amount of damage sustained by respondent. Conceding, for the
purpose of disposing of this petition, that the entire purchase price was paid, except $500, it
appears beyond dispute that the unpaid $500 was to have been paid in stock, by delivery to
respondent of 25,000 shares upon a designated date; hence it is clear that, had the company
been incorporated as agreed, the value of the stock as of the date would have been the
measure of damage, had it not been issued to respondent; and, had the stock been worth
$1 per share, respondent's damage would have been $25,000, which amount he would
probably have sought to recover.
damage, had it not been issued to respondent; and, had the stock been worth $1 per share,
respondent's damage would have been $25,000, which amount he would probably have
sought to recover. The company not having been organized as agreed, the question is: Does
the evidence sustain the judgment? We do not undertake to state what the measure of damage
was. We simply conclude that we cannot arbitrarily say, nor could the trial court arbitrarily
say, that it was $500; and the evidence, as we pointed out in the original opinion, does not
sustain the judgment of $300 rendered by the trial court.
Counsel for petitioner contends that in our former opinion we held that the judgment of the
court should be reversed because the reason given therefor was not the right one, and our
attention is called to several cases from foreign jurisdictions holding that if the judgment is
right, though the wrong reason is given therefor, it should be reversed. There can be no doubt
as to the rule of law that a judgment which is right will not be reversed merely because a
wrong reason is given therefor, and we need not seek authority outside of our own
jurisdiction to sustain this rule. Jumbo Mining Co. v. District Court, 28 Nev. 264, 81 Pac.
154. But we do not think we conceded that the judgment was right. In the concluding
paragraph of the opinion we held that the evidence does not sustain the judgment.
The petition for a rehearing is denied.
Ducker, J., not having been a member of the court when this case was originally disposed
of, did not participate herein.
On Costs
Respondent has appealed from the ruling of the clerk upon the cost bill filed by appellant
herein.
1. It is first contended that appellant can recover no costs, because no order was made as
to costs in the opinion reversing the judgment of the lower court. Section 5381 of the Revised
Laws provides that when this court, in reversing a judgment, makes no order as to costs,
costs shall be allowed to the party obtaining any relief.
to costs, costs shall be allowed to the party obtaining any relief. The judgment for $300
having been reversed, it follows as a matter of course that costs are recoverable by appellant.
Dixon v. Southern Pacific Co., 42 Nev. 73, 179 Pac. 382.
2. The next objection is to the ruling of the clerk upon the amount allowed appellant for
copying the transcript on appeal. Rule VI of the court fixes the amount to be allowed per folio
for typewritten copy of the transcript. The clerk, in making his ruling, inadvertently included
in his calculation, as a basis for his ruling, the original papers on file and included in the
record. We think the rule contemplates that no allowance shall be made for originals, but only
for papers actually copied. We are of the opinion that only $78.75 should be allowed for
copying the transcript on appeal.
The third item complained of is the cost of typing appellant's opening brief. This was
purely a matter of calculation, and we do not find that the clerk erred in reaching his
conclusion.
3. The last objection concerns the item for cash paid the surety company by appellant as
premiums on the appeal and stay bond; it being contended that they are not a proper item of
costs. Section 699 of the Revised Laws expressly makes such items proper elements of costs
to be collected by the party who has been compelled to incur such liability.
Except as modified as to the item mentioned relative to copying the transcript on appeal,
the ruling of the clerk is sustained.
Ducker, J., did not participate.
____________
42 Nev. 302, 302 (1918) Nelson v. Smith
[No. 2299]
J. P. NELSON and J. H. COOKE, Respondents, v. CHRIS SMITH and JAMES
SPARGUER, Appellants.
[176 Pac. 261; 178 Pac. 625]
1. Appeal and ErrorProceedingsTime for Taking Appeal.
An appeal from a judgment taken more than nineteen months after rendition of judgment will be
dismissed, under Rev. Laws, 5329.
2. Appeal and ErrorAppeal from Order Denying New TrialOrder Made and Entered.
An order refusing or granting a motion for a new trial is made and entered, within Rev. Laws, 5329,
requiring an appeal from such order to be taken within sixty days after the order has been made and
entered in the case, at the time the order is entered in the minutes of the court, and not at the date of filing
of a decision upon the merits of the motion.
3. Appeal and ErrorReviewRuling upon Conflicting Testimony.
Court's refusal to bar an attorney from appearing for plaintiffs on ground that he had been previously
hired by defendants, where based upon conflicting testimony on question of fact as to whether he was so
employed, will not be disturbed by the supreme court.
4. Mines and MineralsPublic Mineral LandsValidity of Location.
Mining claim location which is invalid under act of Congress, May 10, 1872, secs. 2, 5 (U. S. Comp. St.
1916, secs. 4615, 4620), is also invalid under Rev. Laws, 2422.
5. Mines and MineralsPublic Mineral LandsValidity of Location.
Where public mineral land is open to location at the time a claim is initiated, the location is valid, though
the land is excess ground within staked boundaries of another claim, and though persons initiating claim
had knowledge thereof.
6. Mines and MineralsPublic Mineral LandsAdverse Possession.
Every competent locator has the right to initiate a lawful claim to unoccupied public land by a peaceable
adverse entry upon it while it is in the possession of those who have no superior right to acquire title or
hold possession.
7. Mines and MineralsLocationExcessive Claim.
Generally, where a claim is excessive in length, the claim is valid if the error is innocently made, but the
excess is void.
8. PleadingInconsistent Causes of Action.
The rule that inconsistent causes of action cannot be pleaded is based upon the theory that one or the
other must be false, and that pleader ought to know which is true and which is false, and should be
compelled to choose between them.
9. PleadingInconsistent Defenses.
A party may plead inconsistent defenses provided they are not so incompatible as to render either one or
the other false.
10. PleadingCompelling ElectionInconsistent Claims.
Where there was no inconsistency in the evidence offered in support of validity of two locations pleaded
by plaintiffs, the court properly refused to compel them to elect.
11. Mines and MineralsClaim Jumping.
The location on ground, knowing it to be excess ground, within the staked boundaries of another claim
initiated prior thereto, because law governing manner of making location had not been complied with, so
that location covers the workings of the prior locators, is what in mining circles is known as claim
jumping.
12. Mines and MineralsPublic Mineral LandLocationRight of Possession.
Where there is no valid location, there can be no right of possession under it.
13. Appeal and ErrorReviewHarmless Error.
Where there are sufficient findings on issues made in the case to support the judgment, it is immaterial
that there is no finding, or an erroneous finding on some other issue, which, if made, or differently made,
would not compel any different conclusion from that reached by the findings which were actually made.
In action involving validity of location on public mineral land, an erroneous instruction as to defendants'
right to locate on the land in question does not justify a reversal where, eliminating the finding made on
such instruction and the issue to be determined thereby, plaintiffs' right to location was determined by
finding on other issue not affected by the instruction.
15. Appeal and ErrorReviewVerdict.
A verdict based upon conflicting evidence will not be disturbed by the supreme court.
ON PETITION FOR REHEARING
1. Appeal and ErrorHarmless ErrorCauses in EquityInstructions.
In equity case, verdict of jury is merely advisory, and in such cases supreme court will not review errors
assigned to instructions given to jury.
2. Appeal and ErrorMatters ReviewableRehearing.
A point not urged in supreme court upon original hearing cannot be considered on petition for rehearing.
Appeal from Eighth Judicial District Court, Mineral County; J. Emmett Walsh, Judge.
Action by J. P. Nelson and another against Chris Smith and another.
Smith and another. From judgment for plaintiffs, and from order denying new trial,
defendants appeal. Appeal from judgment dismissed, and order denying new trial affirmed.
On petition for rehearing, petition denied.
Wm. Forman and T. L. Foley, for Appellants:
There is no merit in the motion to dismiss, the appeal having been taken within the
statutory time. Respondents concede that the notice of appeal was filed and served within
sixty days after the order was made and entered in the minutes of the court. Rev. laws, 5329,
5356; Clossen v. Thomas, 164 Cal. 196, 128 Pac. 329.
The court erred in permitting certain attorneys to appear and participate in the trial for the
plaintiffs, said attorneys having been previously hired to represent the defendants. While the
payment of a fee is the most usual and most weighty item of evidence to establish the relation
of attorney and client, it is by no means indispensable. The essential feature of the
professional relationship is the fact of employment to do something in the client's behalf.
There must be an agreement, express or implied, for compensation, but whether payment is
made in part or in whole, by retainer in advance, is immaterial. 2 R. C. L., p. 954. It has been
held that the relation of attorney and client existed where a third party at the request of the
client left an abstract with an attorney for examination, although no fee was paid. Eoff v.
Irvine, 32 Am. St. Rep. 609; High on Injunctions, secs. 19, 72; 4 Cyc 920; Ann. Cas. 1912b,
212; Valentine v. Stewart, 15 Cal. 387; Hatch v. Fogarty, 40 How. Pr. 492; Wedekind v.
Tuolumne W. Co., 74 Cal. 386; Lowell v. Gorman, 57 Am. St. Rep. 662. Communications
made to an attorney under the impression by the client that the attorney was acting as such are
privileged whether the attorney understood or not that he was so acting. Aldeman v. People,
69 Am. Dec. 321; Denver Tramway v. Owens, 36 Pac. 854.
Where a mining claim is excessive in length, if the error is innocently made, the claim is
valid, but the excess is void.
excess is void. If the error is fraudulently made, the whole location is void. Costigan, Mining
Law, p. 197; Lindley on Mines, sec. 362; Snyder on Mines, secs. 397, 398.
Where a lode location is excessive, and the area to which a locator is entitled can be
determined by monuments following the calls for distances from the discovery contained in
the notice of location, a subsequent locator may measure the ground, cast off and locate the
excess. Lindley on Mines (3d Ed.), sec. 362; Atkins v. Hendree, 1 Idaho, 95; McPherson v.
Julius, 95 N. W. 428; Flynn Group v. Murphy, 109 Pac. 851; Gardener v. Stanley Con. M.
Co., 193 Fed. 517.
Under the law, a locator should not be permitted to hold an excess of ground with a single
location, and when the notice provides that his mining claim extends a certain number of feet
in a certain direction from the discovery, subsequent locators may be governed by the
statement in the notice and not by stakes that include within their boundary an excess of
surface ground. Flynn Group M. Co. v. Murphy, supra; Nicholle v. L. & C. M. Co., 109 Pac.
846; Swanson v. Koeninger, 137 Pac. 891.
The statute allows the locator certain periods of time in which to mark his boundaries and
do his work. The court cannot become a locator for the mining claimant and do for him what
he alone should do for himself. The most the court can do, where the lines are drawn
inaccurately and irregularly, is to give the miner such rights as his imperfect location warrants
under the statute. King v. Amy S. M. Co., 152 U. S. 228, 38 L. Ed. 422.
Withers & Withers, for Respondents:
The appeal should be dismissed, it not having been taken within the time prescribed by the
statute. Rev. Laws, 5329. The intention of the legislature in enacting the statute must prevail
over the literal sense. State v. Ross, 20 Nev. 61; In Re Primary Ballots, 33 Nev. 125; State v.
Nev. 125; State v. Hamilton, 33 Nev. 418; State v. Brodigan, 37 Nev. 245. An appeal not
taken in time must be dismissed. 3 C. J. 370; Weinrich v. Porteous, 12 Nev. 102; Reinhart v.
Company D, 23 Nev. 369; Central Trust Co. v. Holmes M. Co., 30 Nev. 437; Paroni v.
Simonsen, 34 Nev. 26. Appeal is purely a matter of statutory right. Gaudette v. Glissan, 11
Nev. 184; Burbank v. Rivers, 20 Nev. 81; State v. Langan, 29 Nev. 459; Hoffman v. Owens,
31 Nev. 481; Coffin v. Coffin, 163 Pac. 731. Unless the statute has been complied with, the
supreme court has no jurisdiction. State v. Preston, 30 Nev. 301; Rosenthal v. Rosenthal, 39
Nev. 74. The time for taking an appeal is jurisdictional and cannot be extended. 3 C. J., p.
1069, sec. 1077; 2 Ency. Pl. & Pr. 244; Dooling v. Moore, 20 Cal. 141; Williams v. Long,
130 Cal. 58; Lane v. Johnson, 156 Cal. 253; Lancel v. Postlethwaite, 156 Pac. 487; Camden
Iron Works v. Sater, 223 Fed. 611. An extension cannot be made indirectly by repeating the
order. 3 C. J., p. 1070, note 47.
The court did not err in permitting certain attorneys to appear for the plaintiffs. The matter
was one, not of law but of fact. The facts proven fail to sustain the objection of appellants.
There was simply an offer, which was neither expressly nor impliedly accepted. There can
be no valid executory contract unless there be a meeting of the minds of the respective parties
upon its terms and conditions; they must assent to the same thing in the same sense. Hillyer
v. Overman S. M. Co., 6 Nev. 51; Morrill v. Tehama C. M. & M. Co., 10 Nev. 125; State v.
Noyes, 25 Nev. 31; 9 Cyc. 267; 2 Thornton on Attorneys, sec. 507, p. 888. An attorney is not
disqualified because the adverse party had previously told him enough about the case to
enable him to decide whether he would take it on the terms offered him. Hicks v. Drew, 117
Cal. 305; Messenger v. Murphy, 33 Wash. 353. The courts will not assume or presume that
an attorney is guilty of unprofessional conduct. Lalance Mfg. Co. v. Haberman Mfg. Co., 93
Fed. 198.
Posting a notice does not segregate any ground or give the discoverer title to any specific
ground. Its function and purpose is to secure to the discoverer, and to all subsequent locators,
the right to make or perfect a location within the time prescribed by the statute, in accordance
with his notice, liberally construed. McNamara v. Nash, 30 Nev. 114. The statute is
permissive, not exclusive. Rev. Laws, 2422.
If the location, as afterwards monumented, departs from the calls of the original notice, it
is not invalid as to the additional ground included, except as to intervening adverse rights.
The statute does not require that the location certificate shall correspond with the notice or in
any way refer to it. No location certificate is necessary if the facts therein required to be stated
are proved aliunde. Ford v. Campbell, 29 Nev. 578; Gibson v. Hjul, 32 Nev. 370; Clark v.
Mitchell, 35 Nev. 464; Indiana Nevada M. Co. v. Gold Hills M. Co., 35 Nev. 158; Zeres v.
Vanina, 134 Fed. 615; Wailes v. Davies, 158 Fed. 667; Sturtevant v. Vogel, 197 Fed. 452.
A location is valid if there were no discovery where the notice was originally posted, but
discovery has since been made elsewhere within the boundaries. Gibson v. Hjul, supra;
Bonner v. Meikle, 82 Fed. 698; Tonopah & S. L. M. Co. v. Tonopah M. Co., 125 Fed. 414. A
location is valid if sufficient work be done on it, though not done in the discovery shaft. If a
locator has been in adverse possession of a mining claim for two years, and has made a
discovery and done sufficient work, and has monumented his claim, it is valid against all the
world. Rev. Laws, 4951.
If the essential acts have been performed before adverse rights accrue, the order in which
they were performed is immaterial. Creede v. Uinta Tunnel Co., 196 U. S. 345; Patchen v.
Keeley, 19 Nev. 415.
Where excessive area was not claimed with fraudulent intent, the universal and
well-established rule is that the validity of the location is not thereby impaired, and when the
locator's attention is called to the error he may cast off the excess where he sees fit.
may cast off the excess where he sees fit. 20 Am. & Eng. Ency. Law, 695; 27 Cyc. 561; Rose
v. Richmond M. Co., 17 Nev. 25, 59-60; Richmond M. Co. v. Rose, 114 U. S. 576; McIntosh
v. Price, 121 Fed. 716; Zimmerman v. Funchion, 161 Fed. 859; Waskey v. Hammer, 170 Fed.
31; Jones v. Wild Goose M. & T. Co., 177 Fed. 95; Stephens v. Wood, 39 Or. 441; Hanson v.
Fletcher, 10 Utah, 271; Stemwinder M. Co. v. Emma and Last Chance Co., 21 Pac. 1040.
It is the policy of the law to recompense the discoverer of a vein for his discovery. It is
recognized that prospectors and locators are usually men of little education, and notices
drawn by them are to be liberally construed, to the end that their discoveries may not be taken
from them and the benefits given to others who are not entitled to them and who are often
unworthy. Lawson v. U. S. M. Co., 207 U. S. 1, 52 L. Ed. 75; Lindley on Mines, sec. 355; 27
Cyc. 565.
A state has no power to pass any statute affecting the location or sale of the public domain
of the United States unless such authority be found in an act of Congress. The act of Congress
gives to miners the power to adopt rules and regulations, and the statute is of no higher
authority than the miners' rules. Butte City W. Co. v. Baker, 196 U. S. 119; Lindley on Mines,
secs. 46, 76, 249.
If there is a variance between the calls in the notices and the markings on the ground, the
markings control. Lindley on Mines, secs. 381, 383; 27 Cyc. 574; Weill v. Lucerne M. Co.,
11 Nev. 200; Gleason v. Martin White Co., 13 Nev. 442; Smith v. Newell, 86 Fed. 56; Green
v. Garvin, 10 Cal. App. 330; Copper Glove M. Co. v. Allman, 23 Utah, 410; Clark v.
Mitchell, 35 Nev. 464; Cullacott v. Cash Co., 8 Colo. 179; Brady v. Husby, 21 Nev. 453;
Book v. Justice M. Co., 58 Fed. 106.
There are two appeals in this case included in the one notice taken by the defendants. One
is from the judgment, and the other from the order denying the defendants' motion for a new
trial.
Upon the case being called for argument in this court, counsel for respondents, upon notice
previously given, moved the court to dismiss both appeals, upon the ground that neither had
been taken within the time required by law.
Section 5329 of the Revised Laws provides, inter alia, that an appeal may be taken from a
final judgment in an action within six months after the rendition of the judgment; that an
appeal from an order refusing or granting a new trial may be taken within sixty days after the
order has been made and entered in the case.
1. It affirmatively appears from the record that the judgment in this case was rendered on
the 25th of November, 1915, and that the appeal therefrom was taken on the 9th of July,
1917, a period of more than nineteen months after the rendition of the judgment. The motion
to dismiss the appeal from the judgment is therefore granted. Central T. Co. v. Holmes Co.,
30 Nev. 437, 97 Pac. 390; Ward v. Silver Peak, 37 Nev. 470, 143 Pac. 119.
2. It also affirmatively appears from the record that the order refusing a new trial was
made and entered in the minutes of the court on the 10th day of May, 1917. The appeal from
the said order was taken on the 9th of July, 1917, within sixty days after the entry of the order
in the minutes of the court. Clearly, the time for taking an appeal from an order refusing or
granting a motion for a new trial begins to run from the date of the entry of the order in the
minutes of the court, and not from the date of the filing of a decision upon the merits of the
motion. The motion to dismiss the appeal from the order denying a new trial is denied.
This action was commenced in the district court of Mineral County for the double purpose
of quieting the plaintiffs' title to a group of lode mining claims situate in the Bell mining
district, described in the complaint as the Royal George group, consisting of the Royal
George, Royal Georges Nos. 2, 3, 4, 5, 6, 7, 8, and the Royal George Protector, and to enjoin
defendants from perfecting or attempting to perfect a mining location upon and over the
premises, or any part thereof, and to restrain the defendants from mining or extracting
ore from the plaintiffs' discovery.
upon and over the premises, or any part thereof, and to restrain the defendants from mining or
extracting ore from the plaintiffs' discovery. It developed, however, from the subsequent
pleadings, as well as from the admission of counsel, that the real controversy in the case
relates to the possession, or right to the possession, of 262 feet of valuable mining ground
included within the exterior boundaries of the plaintiffs' alleged Royal George No. 4 and
Royal George Protector locations, and the defendants' alleged superior right thereto in virtue
of their alleged Gilt Edge Fraction lode mining claim. The issues were submitted to a jury and
a general verdict returned in favor of the plaintiffs in this language: We, the jury, find the
issues joined in this case in favor of the plaintiffs. The trial court evidently considered this
verdict, informal as it was, as binding upon the court, and adopted the verdict as a finding of
fact without any further or additional findings, and as conclusions of law the court found:
That as against the defendants the plaintiffs are the owners, in the possession, and entitled
to the possession, of all ground claimed by the defendants as their alleged Gilt Edge Fraction
lode mining claim, being the whole thereof which is in conflict with and overlaps the
plaintiffs' said Royal George No. 4 mining claim and Royal George Protector mining claim,
and that the defendants have not, nor has either of them, any right, title, or interest in or to any
ground included within the exterior boundaries of said Royal George No. 4 mining claim, or
said Royal George Protector lode mining claim, and that their alleged Gilt Edge Fraction lode
mining claim is not a valid, subsisting lode mining location made upon the unappropriated
public domain of the United States, and that the defendants acquired no rights whatever by
their asserted location of said alleged Gilt Edge Fraction lode mining claim, and that all rights
asserted by the defendants in this action adverse to the plaintiffs are wholly void and of no
effect.
And further found that the plaintiffs were entitled to the injunctive relief demanded by
their complaint, and ordered judgment and decree to be entered accordingly.
ordered judgment and decree to be entered accordingly. Before proceeding further with the
discussion we will dispose of a preliminary motion made by the appellants in the course of
the trial.
3. Upon the calling of the case for trial in the district court, one of counsel for plaintiffs
requested of the court that the name of George S. Green, Esq., be entered of record as
attorney for plaintiffs. This request was met by a motion on the part of defendants' counsel for
an order barring the said Green, or the firm of Mack & Green, of which he was then a
member, from appearing as attorney for plaintiffs, upon the ground that said George S. Green
and the said firm of Mack & Green had been hired previously to act as attorneys for the
defendants in this cause. Evidence, both oral and documentary, was adduced in support of
and against the granting of the motion. The court denied the motion. This ruling constitutes
one of the principal assignments of error relied upon by the defendants in support of their
motion for a new trial. The question being one purely of fact, and decided by the trial court
upon conflicting testimony, we are not authorized to disturb the ruling. Furthermore, we are
not prepared to say that the court abused its discretion in denying the motion.
The purely legal questions involved in this appeal relate to the validity of lode mining
claim locations under the act of Congress of May 10, 1872, c. 152, secs. 2, 5, 17, Stat. 91, 92
(U. S. Comp. St. 1916, secs. 4615, 4620), that provides, inter alia, that a mining claim may
equal, but shall not exceed, one thousand five hundred feet in length along the vein or lode.
The location must be distinctly marked on the ground, so that its boundaries can be readily
traced.
4. The briefs are devoted largely to an able and extended discussion of the effect of our
local law (Rev. Laws, 2422) upon a lode mining claim that as staked or monumented covers
more ground than called for in the notice of location posted at the point of discovery, and
includes more of the vein than allowed by the federal and state law. If the location by virtue
of which the plaintiffs claim title and right to the possession of the ground in dispute is
invalid under the federal law, it must follow that it is also invalid under the local statute.
plaintiffs claim title and right to the possession of the ground in dispute is invalid under the
federal law, it must follow that it is also invalid under the local statute. The rights of the
contestants must primarily be determined by the rules of law concerning the right of
possession of mining claims under the act of Congress. In this connection it is well to give a
connected statement of the facts concerning the locations in question:
First. Royal George No. 4Nelson, one of the plaintiffs and respondents, located this
claim on the 4th day of February, 1915. The evidence tends to show that the location, as was
all of the other locations referred to in the complaint, was monumented without the aid of a
compass or other instrument. It appears from the notice of location that the locator claimed
600 feet of the vein in a westerly direction and 900 feet in an easterly direction from the point
of discovery.
Second. Royal George ProtectorThe testimony of Nelson, the locator, tends to show
that in the month of May, 1915, he discovered a cross-vein at or near the easterly end line of
the Royal George No. 4. It also appears that at or near the point of contact of these veins
Nelson uncovered what promises to be a mine. To secure the full benefit of his discovery at
this point he located all the adjacent territory by virtue of the Royal Georges Nos. 5, 6, 7, and
8. It appears that these and the other prior locations were so marked on the ground that their
end lines served as a common end line for the entire group, except the Royal George
Protector. Nelson, according to his testimony, became fearful or apprehensive, because of the
apparently long distance from the point of the discovery on the royal George No. 4 to the
easterly end line as staked, that there might be some vacant ground between the point 900 feet
as called for by his location notice and the easterly end of the claim as monumented that
included his later discovery, and, as he says, to claim any vacant ground that might be
there, he, without amending the location of the Royal George No. 4, on May 15, 1915,
located the supposedly excess ground by posting a notice of location in the southeast corner
monument of the Royal George No.
in the southeast corner monument of the Royal George No. 4, which then served as a
common corner for Nos. 2, 4, 7, and 8, claiming by this notice 200 feet in a southerly
direction, and 1,300 feet in a northerly direction, and 300 feet on each side, and called the
claim Royal George Protector.
Third. Gilt Edge Fraction Lode ClaimIt appears the defendants (appellants), upon
reading the description contained in the location notice of the Royal George No. 4, and
stepping off the distance from the discovery point to the easterly end line as plainly marked
on the ground, were satisfied that the ground as monumented was approximately 250 or 300
feet in excess of that called for in the notice at the east end. On June 15, 1915, the defendants
located the excess ground lying between the point 900 feet, as called for by the notice, and the
easterly end line, as staked, by posting a notice of location, and stating therein that the
general course of the vein is easterly and westerly, and the size of the claim is 290 feet long
by 600 feet wide. This claim shall be known as the Gilt Edge Fraction. The evidence of the
defendants tends to show that, at the time they made their location of the Gilt Edge Fraction,
in the stake which was the common corner for the four Royal Georges named there was no
notice of the Royal George Protector, and no stakes or monuments were found that purported
to define such a location. Their evidence further tended to show that the Royal George
Protector was a fraud, fictitious, antedated, and located subsequent to the Gilt Edge Fraction,
for the purpose of defeating the validity of the latter claim.
The plaintiffs admit by their pleading and evidence that the Royal George No. 4 was
originally monumented too large. On July 2, 1915, they had the claim surveyed, and found it
to be 90 7/10 feet long from end line to end line, and 1,162 feet from the point of discovery to
the easterly end line, or 262 feet over the call of 900 feet. The surveyor, ostensibly at the
request of plaintiffs and in disregard of defendants Gilt Edge Fraction location, drew in the
westerly end line of the claim 90 7J10 feet, but did not disturb the stakes on the east end.
90 7/10 feet, but did not disturb the stakes on the east end. Whether the excess was
unoccupied public mineral land, open to location, the plaintiffs are in no position to deny,
because they claim title and right to the possession of the ground by virtue of the Royal
George Protector location, but the court saw fit to charge the jury as follows:
If you find from the evidence that, at the time the defendants located their Gilt Edge
Fraction, they knew the position of Nelson's easterly corners and of his work, they are bound
by that knowledge. If they knew that Nelson's notice called for 900 feet easterly on the Royal
George No. 4, and that his easterly monuments as placed on the ground were about 1,162 feet
distant, they are bound by the knowledge of the position of the monuments on the ground,
and the fact that the notice called for 900 feet cannot benefit the defendants or give them any
rights based upon said erroneous call of 900 feet.
If you find from the evidence that the defendants were not deceived or misled by any
false or deficient description in Nelson's notice of the Royal George No. 4, and that they
knew the easterly boundaries of the Royal George No. 4, and entered within them for the
purpose of acquiring for themselves the benefit of Nelson's discovery, labor, and expenditure,
believing that he had forfeited his rights, and not in ignorance of such rights, and that they
had knowledge that the notice of Nelson did not describe the ground actually monumented by
him, then the court instructs you that the purpose of description is to give notice, and that,
since the defendants had notice, they are not in a position to complain of technical defects
which the defendants knew to be defects or errors, and that such defects or errors of
description in no way affect the plaintiffs' rights.
5. It is obvious that the jury were told, in effect, that if they found that the defendants
entered upon the ground in the possession of plaintiffs, not in ignorance of its boundaries, but
with full knowledge thereof, they were bound by that knowledge. It is apparent that the
plaintiff's position raised "most persuasive equities" in their favor.
plaintiff's position raised most persuasive equities in their favor. It is conceded that the
defendants located the ground knowing that it was within the staked boundaries of the
plaintiffs, and that the defendants' location embraced the plaintiffs' possible mine; that, if the
location of the defendants was valid, it would deprive a prospector of his reward. By these
instructions the jury were, in effect, told they might find for plaintiffs, although they should
be satisfied that the ground was open to location at the time the defendants initiated their
claim thereto. By these instructions the door was opened for the jury to do equity between the
parties agreeably to their own feelings, regardless of whether the Gilt Edge Fraction lode was
valid and the Royal George No. 4 invalid. Brown v. Oregon King M. Co. (C. C.) 110 Fed.
728. If the ground in dispute was open to location at the time defendants initiated their claim,
it was immaterial to the validity of the Gilt Edge Fraction that the defendants knew of the
boundaries of the Royal George No. 4, or that the situs of the claim was known to them.
Walsh v. Henry, 38 Colo. 393, 88 Pac. 450; Brown v. Oregon King M. Co., supra.
In the case of Hauswirth v. Butcher, 4 Mont. 299, 1 Pac. 714, followed in the case of
Leggatt v. Stewart, 5 Mont. 107, 2 Pac. 320, the court said:
Taking the discovery as the initial point, the boundaries must be so definite and certain as
that they can be readily traced, and they must be within the limits authorized by law,
otherwise their purpose and object would be defeated. The area bounded by a location must
be within the limits of the grant. No one would be required to look outside of such limits for
the boundaries of a location. Boundaries beyond the maximum extent of a location would not
impart notice, and would be equivalent to no boundaries at all.
6. Every competent locator has the right to initiate a lawful claim to unoccupied public
land by a peaceable adverse entry upon it while it is in the possession of those who have no
superior right to acquire title or to hold the possession. Belk v. Meagher, 104 U. S. 279, 26 L.
Ed. 735; Thallman v. Thomas, 111 Fed. 279, 49 C. C. A.
26 L. Ed. 735; Thallman v. Thomas, 111 Fed. 279, 49 C. C. A. 317; Lindley on Mines, sec.
219.
We cannot escape the conclusion that by these instructions the jury were, in effect, told
that the defendants, at the time they attempted to initiate their location, were jumpers or
trespassers. To what extent the errors may have influenced the jury in finding all the issues in
the case in favor of plaintiffs it is not our province to determine.
7. By other instructions the jury were also, in effect, told that, regardless of defendants'
intervening right, the plaintiffs might cast off the excess at either end of their claim, as they
saw fit, when they discovered their innocent mistake. To uphold such instruction, a claim
1,750 feet along the vein can be shifted from one end to the other, as circumstances might
require, to cover the vested right of a third person within such 1,750 feet. The object of the
law in requiring the location to be distinctly marked on the ground is a requirement
admittedly designed to prevent floating or swinging. Gleeson v. White M. Co., 13 Nev. 462.
The general rule is that, where the claim is excessive in length, if the error is innocently made
the claim is valid, but the excess is void. Lindley on Mines, sec. 362; Snyder on Mines, secs.
397, 398; Costigan, Mining Law, 197. It follows that the ground was open to location.
Entertaining these views, it is unnecessary for us to determine whether a subsequent
locator may measure the ground of a prior locator, cast off and locate the excess by following
the calls for distances contained in the location notice from the point of discovery. This
position is supported, among others, by the following authorities: Flynn Group M. Co. v.
Murphy, 18 Idaho, 266, 109 Pac. 851, 138 Am. St. Rep. 310; Cardoner v. Stanley Co. (C. C.)
193 Fed. 517; Lindley on Mines, sec. 362.
But the question still remains: Which party as against the other has a better right to the
ground in dispute? As the ground was open to location, the defendants could as lawfully
locate it as the plaintiffs.
could as lawfully locate it as the plaintiffs. If the plaintiffs' location of their Royal George
Protector was a prior, valid, subsisting location at the time the defendants initiated their
location of the Gilt Edge Fraction, the ground was not unoccupied, unappropriated public
land. The very existence of the Royal George Protector was attacked by defendants and
bitterly contested from its inception. The evidence was conflictingin fact, in sharp conflict.
The jury were instructed as to the credibility of the witnesses. Evidently from their verdict
they believed the witnesses for the plaintiffs as against those of the defendants. The court
adopted the general verdict of the jury, and based its judgment of plaintiffs' ownership and
right of possession thereon.
8-10. At the conclusion of plaintiffs' testimony counsel for defendants made a motion to
require plaintiffs to elect whether they would stand upon their rights as asserted under the
location of the Royal George No. 4 location or the Royal George Protector location. The
motion was denied. The ruling of the court is assigned as error, upon the theory that the two
asserted claims are inconsistent. Some courts hold that inconsistent causes of action and
defenses cannot be pleaded, but that ruling is based upon the theory that one or the other must
be false, and that the pleader ought to know which is true and which is false, and that he
should be compelled to choose between them; and it has been squarely held by this court that
a party may plead inconsistent defenses, provided they are not so incompatible as to render
one or the other absolutely false. Clarke v. Lyon County, 7 Nev. 81. We think the rule is
sustained by both reason and authority, and see no reason for repudiating the rule heretofore
adopted. See, also, 31 Cyc. pp. 150-152. There is no inconsistency in the evidence offered in
support of the validity of the respective locations. The court did not err in its ruling.
11. Are the defendants entitled to a new trial? This question is more perplexing than
difficult. The defendants admit having initiated a claim to the excess ground knowing it to be
within the staked boundaries of the Royal George No.
knowing it to be within the staked boundaries of the Royal George No. 4, and by their
location covered the plaintiffs' workings thereon. They located the ground in controversy for
the reason that the law governing the manner of making locations had not been complied
with. This, in mining districts, is called claim jumping. The sympathies of the jury in such
cases are generally with the original locator. Under the attending circumstances leading up to
the defendants' location, the jury should have been plainly charged, as requested by the
defendants, that if the plaintiffs' location of the Royal George No. 4 was invalid for the
reasons assigned, the defendants could peaceably initiate a claim to the excess ground within
its staked boundaries, assuming it to be in other respects valid. Lindley on Mines, sec. 219.
12. The right of location upon mineral land of the United States is a privilege granted by
Congress, but can only be exercised within the limits of the prescribed grant. The right to
possession comes only from a valid location. Consequently, if there be no valid location (as
here admitted), there can be no possession under it. Location does not necessarily follow from
possession, but possession from location. Belk v. Meagher, supra.
13-15. Courts in the enforcement of the written law are not guided by sentiment. When
the law is plain, positive, and unequivocal in its terms, it is the bounden duty of courts to
obey its mandates, although by so doing in some cases it would result in great and manifold
injustice. Rose v. Richmond M. Co., 17 Nev. 59, 27 Pac. 1105. Reading the entire charge as
given to the jury, in connection with the court's ruling on the motion for a new trial, the
impression is irresistible that the learned trial court gave the instructions complained of to
prevent an injustice. It is impossible for us, as above stated, to determine to what extent these
errors may have influenced the court and jury in finding in favor of the plaintiffs upon the
other independent and distinct issues in the case, equally as vital and fairly tried. The general
verdict of the jury was a finding on all the issues in favor of the plaintiffs. The court adopted
this verdict as its findings of fact, and rendered judgment accordingly.
adopted this verdict as its findings of fact, and rendered judgment accordingly. The rule is
that, when there are sufficient findings on issues made in the case to support the judgment, it
is immaterial that there is no finding, or an erroneous finding, on some other issue, which, if
made, or differently made, would not compel any different conclusion from that reached by
the findings which were actually made. Wolfsen v. Smyer (Cal.) 175 Pac. 10. Upon a most
careful consideration of the entire record, it would be an arbitrary ruling upon our part to say
that the conclusion reached by the court and jury would have been different had the jury been
correctly instructed as to the issue of law raised by the conflicting locationsthe Royal
George No. 4 as originally located and the Gilt Edge Fraction. Eliminating this finding, the
other issue to be determined was: Which party as against the other had the better claim to the
premises in dispute in virtue of the Royal George Protector and the Gilt Edge Fraction? This
issue having been determined in favor of plaintiffs and against the defendants upon
conflicting testimony, we decline to disturb the verdict and finding based thereon.
The order overruling and denying the defendants' motion for a new trial is affirmed.
Several grounds are urged for a rehearing, and since they are presented with apparent
earnestness, we have deemed it advisable to briefly set forth our views in regard to them.
1. It is first contended that, since the original opinion concedes that certain instructions of
the court were erroneous and misleading, it must be presumed that plaintiffs were prejudiced
thereby. This contention would be unanswerable but for the fact that this is a suit in equity,
and that the verdict of the jury is merely advisory (State v. Murphy, 29 Nev. 253, 88 pac.
335), and that in such cases this court will not review errors assigned to instructions given to
a jury, or reverse a judgment because they were erroneous {King v. Pony G. M. Co., 2S
Mont.
judgment because they were erroneous (King v. Pony G. M. Co., 28 Mont. 74, 72 Pac. 315).
It is also insisted that the judgment is not sustained by the evidence. This question was
found adversely to appellants' contention by the trial judge, and cannot be disturbed upon this
hearing, as we clearly pointed out in the opinion heretofore filed.
2. It is strenuously asserted in the petition for rehearing that the plaintiffs never
established a valid location monument upon the Royal George Protector claim. This point
was not urged upon the lower court, nor upon this court upon the original hearing, and cannot
now be considered. Gamble v. Silver Peak, 35 Nev. 323, 133 Pac. 936.
Petition for rehearing denied.
Ducker, J., not having been a member of the court when the foregoing case was formerly
disposed of, did not participate in the consideration of the petition for rehearing.
____________
42 Nev. 321, 321 (1918) Clark Company v. Francovich
[No. 2329]
ALLEN CLARK COMPANY (a Corporation), Appellant, v. SPIRO FRANCOVICH,
Respondent. RAY J. COOL, ARTHUR E. HAMMOND, GEORGE J. CLARK, and
EDITH G. CLARK, Interveners, Respondents.
[176 Pac. 259]
1. Appeal and ErrorReviewFindingsConflicting Evidence.
The supreme court will not disturb a finding of the lower court based upon conflicting evidence.
2. PartiesPetition in Intervention.
A petition in intervention must be treated the same as a complaint.
3. PleadingLegal Conclusions.
An allegation that the said plaintiff has no right, claim, or title to the said painting or picture, and is not
entitled to the ownership or possession of the same, is a conclusion of law.
4. ReplevinOwnershipTransfers.
Deed whereby heir conveyed all the interest he may now hold or may now have in the estate was
insufficient to establish ownership in grantees of his interest in a picture which constituted part of estate,
where prior thereto he had conveyed to third party all his right, title, and interest to all property which he
had received, or which he was to receive, from the estate.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Action by Allen Clark Company against Spiro Francovich, in which Ray J. Cool and
others intervene. From a judgment for interveners and from an order denying motion for a
new trial, plaintiff appeals. Judgment reversed and cause remanded, and order vacating
judgment against defendant for costs affirmed.
O. H. Mack, for Appellant:
The court erred in allowing and ordering the interveners to file their petition and complaint
in intervention. They should have instituted an action in replevin. Third parties cannot
intervene in an action where the rights of plaintiff and defendant can be litigated fully and
completely without such intervention. Buckley v. Buckley, 9 Nev. 373; Porter v. Slephano, 55
Cal. 559; Baxter v. Day, 73 Wis. 27. The case at bar is one of law, pure and simple, and not
an equity case.
Baxter v. Day, 73 Wis. 27. The case at bar is one of law, pure and simple, and not an equity
case. At common law a third party is not entitled to intervene in an action at law, but may in
an equitable action. Am. & Eng. Ency. Law (1st Ed.), vol. 17, p. 633; Askew v. Carswell, 63
Ga. 162; Pierce v. Batten, 42 Pa. 924. Possession is primarily the gist of every replevin
action. A complaint in intervention which does not allege that at the time the complaint is
filed exclusive possession of the property is in the plaintiff is fatally defective and not entitled
to be filed. Gardner v. Brown, 22 Nev. 156; Willis v. De Witt, 3 S. D. 281; Riciotto v.
Clement, 29 Pac. 414; Fleming v. Howley, 4 Pac. 494. Interveners' complaint fails to comply
with all the provisions of the statute in relation to replevin. Gardner v. Brown, supra; Paul v.
Leutteral, 1 Cal. 317; Skinner v. Stouse, 4 Mo. 93; Leazard v. Wheeler, 22 Cal. 140;
Redinger v. Jones, 75 Pac. 997.
The court erred in overruling plaintiff's demurrer to the complaint of the interveners. Rev.
Laws, 5125; Gardner v. Brown, supra; Willis v. De Witt, supra; McCarthy v. Ackerman, 49
N. E. 153. The judgment is against the law, pleadings, and evidence in the case. Rev. Laws,
5269; Peacock v. Kirkland, 145 Pac. 281; Lamber v. McFarland, 2 Nev. 58; Brown v.
Warren, 16 Nev. 228; Paroni v. Ellison, 14 Nev. 60; Brophy v. Brophy, 15 Nev. 110; Gruber
v. Baker, 20 Nev. 485.
Defendant failed to answer within the time allowed by law. Burling v. Goodwin, 1 Nev. 341;
Evans v. Cook, 11 Nev. 69; Ewing v. Jennings, 15 Nev. 314; Rev. Laws, 5043. Defendant did
not file his notice and motion to strike out plaintiff's judgment and cost bill within the time
required by law. Rev. Laws, 5387. The plaintiff should have a judgment against defendant for
its costs and disbursements in the action.
Robert Richards, for Defendant-Respondent:
In due time defendant moved the court to vacate the judgment for costs and to strike the
cost bill of plaintiff from the files. This motion was argued and submitted and promptly
granted.
and promptly granted. In this action plaintiff cannot recover costs unless he is the prevailing
party, and therefore the court had no jurisdiction to enter such judgment for costs. Costs were
not allowable at common law, their allowance being purely statutory. Rev. Laws, 5377, 5379,
5380. In fact, defendant was entitled to costs against plaintiff. Rev. Laws, 5379.
Hoyt, Gibbons, French & Springmeyer, for Interveners:
We do not care to go into the question of the admission and exclusion of testimony. As we
view the case, it is entirely a question of construction of deeds and other instruments
introduced in evidence, all of which are in the transcript.
This is an action in claim and delivery. For convenience the parties will be referred to here
as they actually stood in the court below.
Allen Clark Company, the plaintiff, alleges in its complaint that it is the owner and entitled
to the possession of an oil painting, four by eight feet in size, situate in a certain saloon in the
city of Reno, known as the Wine House; that the defendant, Spiro Francovich, wrongfully
detains from plaintiff the possession of said property; that the alleged cause of the detention is
that parties other than the defendant claim some interest therein; that its value is $400, and
judgment is demanded for its possession or its value.
Ray J. Cool, A. E. Hammond, George J. Clark, and Edith G. Clark, before the trial of the
cause, by court order were permitted to intervene in the action. Their complaint in
intervention alleges that neither the plaintiff nor the defendant are entitled to the ownership or
possession of the painting; that prior to the 26th day of February, 1917, the estate of A. J.
Clark, deceased, was the owner and entitled to the possession of the painting; that said estate
had not been fully closed, and that all the property of said estate had not been fully
distributed; that the interveners and one Allen L.
distributed; that the interveners and one Allen L. Clark are the sole heirs of said estate; that
on the 26th day of February, 1917, Allen L. Clark conveyed, assigned, transferred, set over,
and delivered to the interveners, jointly, all the right, title, and interest he then had, jointly
with interveners, in and to all the property, real and personal, distributed to him and the
interveners as distributees of said estate, together with all interest he then had, jointly with
interveners, in any undistributed property of said estate; that thereupon the interveners duly
took possession of said painting, and still and now are the owners of and entitled to the
possession thereof; that the value of the painting is $1,500, and they demand judgment for its
possession or its value.
The defendant, Spiro Francovich, by his answer to these complaints, admits his possession
of the painting, but disclaims any interest therein other than that set up by way of
counter-claim, in substance and to the effect, that with the consent and permission of a prior
administrator of said estate, on March 27, 1915, he took possession of the painting for the
purpose of preserving the same; that he is entitled to judgment for the sum of $124 for the
care and preservation of the painting in his possession.
For reply to the complaint in intervention the plaintiff set up that Allen L. Clark, by a deed
dated the 29th of November, 1916, for a valuable consideration, sold and conveyed to
plaintiff his interest in all the property, real and personal, both in law and in equity and
inheritance, of the estate of A. J. Clark, deceased, together with the property in controversy;
that the interveners, by deed dated the 23d of December, 1916, conveyed all of their right,
title and interest in and to the painting to plaintiff's predecessors in interest, Roy J. Frisch and
C. E. Mack, and by a mesne conveyance, dated the 1st of February, 1917, it became the
owner of the painting and entitled to its possession.
The plaintiff demurred to the answer of Francovich upon the ground that it did not state a
defense. The demurrer was sustained.
demurrer was sustained. Upon the calling of the case for trial the default of Francovich for
failure to answer over was duly made and entered, and in the course of the trial, on motion of
the plaintiff, the court rendered judgment against Francovich for costs. The cause then
proceeded to judgment upon the issues joined between the plaintiff and the interveners. The
cause was tried without a jury. The court, in effect, found that all the allegations of the
complaint in intervention were true, and all the affirmative defenses of plaintiff were untrue,
and rendered judgment accordingly. The plaintiff, in due course, moved for a new trial, which
was refused. The plaintiff appeals from the order denying its motion for a new trial and from
the judgment.
The entire record is certified here in the form of a bill of exceptions, together with
seventeen pages of assignments of error.
For a clearer understanding of the conclusions reached it will be necessary, at the expense
of prolixity, to analyze the facts of the case.
A. J. Clark died intestate in October, 1913, seized and possessed of a large amount of real
and personal property, situate in Washoe County, of the appraised value of nearly $200,000
leaving as his heirs at law the interveners in this action and one Allen L. Clark. On the 29th
day of November, 1916, the estate had proceeded to the point of a final decree of distribution,
distributing to each heir his or her proportionate part of the estate. The painting in question,
however, was not included in the inventory and appraisal of the property of the deceased as
an asset of said estate. Neither is it mentioned or referred to in the decree of distribution, or in
any subsequent proceedings, unless it may be said to be affected by that particular clause of
the decree which provides: And any other property not now known or discovered which may
belong to said estate, or in which said estate may have an interest, shall be distributed to the
heirs in the same proportion. Subsequent to the entry of said decree of distribution, it
appears that Allen L. Clark conveyed all of his interest in the real and personal property of
said estate he had theretofore received, and all that he might thereafter receive, to the
plaintiff corporation.
in the real and personal property of said estate he had theretofore received, and all that he
might thereafter receive, to the plaintiff corporation.
1. For the purposes of this case, in the absence of any other evidence, it will be inferred
that the corporation was organized for the purpose of taking over Allen L. Clark's interest,
actual and contingent, in the estate of A. J. Clark, deceased. From the decree of distribution it
appears that among the assets of the said estate was a property described therein as the
Clarendon Hotel, situate in the city of Reno, which, for purposes of distribution, was valued
at $50,000. Subsequent to the decree of distribution the interveners, by a conveyance dated
the 19th of December, 1916, sold and conveyed to Roy J. Frisch and C. E. Mack their
undivided three-fourths interest in said property; also all of the personal property, consisting
of furniture, bar fixtures, barroom fixtures, barber chairs, dining-room furniture, and all other
personal property situate in the buildings on said lots belonging to the parties of the first part,
or any other personal property that may have been removed and stored elsewhere belonging to
said property, to the extent of an undivided three-fourths interest.
On the 1st of February, 1917, the said grantees conveyed the Clarendon Hotel property to
the plaintiff corporation, together with all of the personal property, consisting of furniture,
bar fixtures, and all other personal property in the buildings on the above-described lots that
belong to or are owned by the parties of the first part. The plaintiff company introduced in
evidence the latter deeds for the purpose of showing its ownership and right to the possession
of the painting in question, it being its contention that the granting clause of these two
instruments carried the painting. It is manifest from the sweeping clauses of these
conveyances that it was necessary to resort to evidence aliunde to support the contention.
Testimony was offered and admitted to prove that at the time of the execution of the
conveyance by the interveners to Frisch and Mack of their undivided interest in the Clarendon
Hotel property it was discussed by the contracting parties and expressly understood and
agreed that the description of the personal property therein described included the oil
painting in dispute.
Hotel property it was discussed by the contracting parties and expressly understood and
agreed that the description of the personal property therein described included the oil painting
in dispute. Evidence was adduced, equally as positive, on the part of interveners to show that
such was not the fact. The court found, however, though not in express terms, that the
painting was not included or intended to be embraced by the description, and that the title to
the painting did not pass by either conveyance. This ruling is assigned as error. We decline to
disturb this finding because of the universal rule that this court will not disturb a finding of
the lower court based upon conflicting evidence.
2-4. But it does not follow, because the plaintiff failed to establish its right to the
possession of the painting through these conveyances, that the interveners are the owners and
entitled to its possession. The petition in intervention must be treated the same as a
complaint. It alleges that the said plaintiff has no right, claim, or title to the said painting or
picture, and is not entitled to the ownership or possession of the same. This allegation is
nothing more or less than a conclusion of law. The trial court's findings are in the exact
language of the complaint in intervention. It found the allegation quoted to be true. The
question to be determined is: Does the evidence support the finding? The only evidence
adduced on the part of the interveners to show that they were the owners and entitled to the
possession of the painting was the deed from Allen L. Clark to interveners, dated the 26th day
of February, 1917. This deed, among other things, recites that the grantor, Allen L. Clark,
conveys any and all right, title, and interest he may now hold jointly with the said parties of
the second part (interveners) in or to all property, real or personal, distributed to him and said
parties of the second part as distributees of the estate of A. J. Clark, deceased, together with
all interest he may now have in any undistributed property of said estate.
Because of the unusual language, now hold and now have, employed in the granting
clause quoted, and in view of what follows, some significance must be attached to these
expressions.
and in view of what follows, some significance must be attached to these expressions. It
affirmatively appears from the record that on the 29th day of November, 1916, the same
Allen L. Clark conveyed to the plaintiff company all his right, title, and interest, both in
equity and law and of inheritance, as son and heir of A. J. Clark, deceased, in and to all real
and personal property that he has heretofore received from the estate of A. J. Clark, deceased,
and all that he may hereafter receive, and be entitled to receive, as his portion of said estate.
If the painting was an undistributed asset of the estate of A. J. Clark, deceased, as
contended by the interveners, on February 26, 1917, the date of their deed, it was also such on
November 29, 1916, the date of the plaintiff's deed. If the granting clause in the deed to
interveners carried the painting, the granting clause in the deed to the plaintiff company also
carried the painting. In this situation, with nothing before us but these conveyances
unimpeached, we conclude that the interveners failed to establish their ownership and right to
the possession of the painting.
It is argued that, as the plaintiff company joined with Clark in the deed to interveners,
whatever interest it may have acquired in the painting by the deed of November 29, 1916,
passed to the interveners. The weakness of this position is that it affirmatively appears that
the plaintiff company did not convey, or purport to convey, by this instrument, any property
of any description whatever. By this deed the plaintiff company for the same consideration
released the interveners, Roy J. Frisch and C. E. Mack, from the covenants of warranty
contained in the respective conveyances hereinabove discussed.
It being conceded that the interveners had a three-fourths interest in the estate of A. J.
Clark, deceased, and that Allen L. Clark had the remaining one-fourth, we are of the opinion
that a one-fourth interest in the painting is in the plaintiff corporation, and the remaining
three-fourths in the interveners.
The judgment adjudging the interveners to be the owners and entitled to the possession
of the painting is reversed and the cause remanded.

owners and entitled to the possession of the painting is reversed and the cause remanded.
The order appealed from vacating the judgment for costs against the defendant, Spiro
Francovich, is affirmed.
____________
42 Nev. 329, 329 (1918) Pruett v. Caddigan
[No. 2340]
W. E. PRUETT, as Guardian of the Person and Estate of Charles A. Zitterbarth (a Minor),
Respondent, v. DAN CADDIGAN, as Executor of the Estate of Dan O'Keefe, Deceased,
and W. H. NOYES; and DAN CADDIGAN, as Executor of the Estate of Dan O'Keefe,
Deceased, Appellant.
[176 Pac. 787]
1. JudgmentJoint and SeveralAction Against Executor and Another.
In view of Rev. Laws, 5004, 5240, and 5241, a joint and several judgment in action on bond against the
executor of deceased surety and the surviving surety was not erroneous because against one de bonis
propriis, and against the other de bonis testatoris.
2. Executors and AdministratorsFiling of ClaimConstruction of Statute.
A claim which is to be paid at a future date, and is so contingent that it is uncertain whether or not any
demand will accrue, is not such a claim as is required to be filed within three months after the date of the
first publication of notice to creditor under Rev. Laws, 5964.
3. Executors and AdministratorsDistribution of EstateContingent Claim.
The obligation of a surety on a guardian's bond, being a subsisting one, is not a contingent claim
referred to in Rev. Laws, 6057, providing for payment into court of amount that would be payable if the
whole were established as absolute.
That the judgment as to appellant was not in the form as provided by statute was not prejudicial.
Court's refusal to strike out an irrelevant and immaterial paragraph in complaint was not prejudicial to
defendant.
Action by W. E. Pruett, as guardian of the person and estate of Charles A. Zitterbarth, a
minor, against Dan Caddigan, as executor of the estate of Dan O'Keefe, deceased, and
another.
Dan Caddigan, as executor of the estate of Dan O'Keefe, deceased, and another. Judgment for
plaintiff, and named defendant appeals. Affirmed.
Lunsford & Salisbury, for Appellant:
There was a misjoinder of parties defendant in the action, plaintiff's complaint seeking to
join the personal representative of a deceased obligor upon an alleged joint and several
obligation, as a party defendant with a surviving obligor. The common law did not sanction
such a joinder, either upon a joint obligation or upon a joint and several obligation. The great
weight of authority is that such a joinder is not permitted under the codes, except in those
states where special statutory permission exists therefor. 5 Cyc. 822; Humphreys v. Crane, 5
Cal. 173; Lawrence v. Doolan, 68 Cal. 633, 5 Pac. 484; Pomeroy, R. & R. Rights, sec. 302;
Bliss, Code Pleading, secs. 105, 107; Maples v. Geller, 1 Nev. 233.
The court erred in overruling the demurrer to plaintiff's amended complaint, and the judgment
cannot stand, because the amended complaint fails to state a cause of action. The complaint
fails to allege any presentation of the claim to the executor of the estate, or any reason for a
failure on the part of plaintiff to present his claim within the time allowed by law for the
presentation of the creditors' claims. Ellison v. Halleck, 6 Cal. 386; Eustace v. Jahns, 38 Cal.
3; Hentsch v. Porter, 10 Cal. 558; Burke v. Maguire, 98 Pac. 23. Where the statute provides
that claims must be presented for allowance and rejected before action can be commenced
thereon, all the facts necessary to show a valid presentation and rejection, with the dates on
which they severally occurred, must be alleged. Sutherland, Code Pleading, secs. 38, 3331.
The court erred in denying the motion of the executor to strike from the amended
complaint immaterial matter.
The judgment of the court is erroneous, not being in the form required by the statute. Rev.
Laws, 5974. The judgment, however, is not in proper form. It seems to be a personal
judgment against the defendant, for the collection of which an execution is awarded.
for the collection of which an execution is awarded. Such is not the proper form. The
judgment should first ascertain the amount due and adjudge the same to be a valid claim
against the estate, and then provide that the same be paid by the defendant in the due course
of administration. Rice v. Inskeep, 34 Cal. 226.
James T. Boyd, and Roy W. Stoddard, for Respondent:
While the common-law rule did not sanction a joinder of a surviving obligor with the
personal representative of a deceased obligor in an action upon a joint and several obligation,
the rule has been changed in many states, and particularly in this state, by statute. The great
weight of authority is to the effect that such joinder is now permitted, even in code states
where no special statutory permission exists therefor. Rev. Laws, 4999, 6027.
It is also a common-law rule that if the interest of obligees in a bond is joint and not
several, and all the joint obligees are indemnified, they must be joined as plaintiffs in an
action on the bond. 4 R. C. L., p. 65. This rule is not in question here, but the same principle
is involved. Deegan v. Deegan, 22 Nev. 199; 12 R. C. L., p. 1166; 18 Cyc. p. 1295; Rev.
Laws, 6155.
A claim against the estate of the deceased surety on the guardian's bond is contingent
until there has been a settlement of the guardian's accounts. Hantzch v. Massolt, 61 Minn.
361, 63 N. W. 1069. Such a claim is also contingent until the termination of the
guardianship. State v. Buck, 63 Ark. 218; Palmer v. Pollick, 26 Minn. 433; 18 Cyc. 456-459;
11 R. C. L. 205-206; Fallon v. Butler, 21 Cal. 24; Toulouse v. Burkett, 10 Pac. 30. A
contingent claim is one in which the liability depends upon some future event which may or
may not happen, and which makes it wholly uncertain whether there ever will be a liability.
Jorgensen v. Larson, 85 Minn. 134; Sargent v. Kimball, 37 Vt. 321; Green v. Dyer, 32 Me.
460.
The judgment is in full compliance with the statute.
Rev. Laws, 5974. The judgment must be that the executor or administrator pay in due course
of administration the amount ascertained to be due, and directed that the cause be remanded,
with direction to the court below to modify the judgment by adding to the same the words to
be paid in due course of administration,' and as thus modified the judgment will stand
affirmed. Moore v. Russell, 133 Cal. 297, 65 Pac. 624.
This is an action against sureties on a guardian's bond. The undisputed facts are as follows:
C. C. Paul, in 1911, was appointed guardian of the person and estate of Charles A.
Zitterbarth, a minor, and gave bond in the sum of $2,500, payable to said Zitterbarth, with W.
H. Noyes and Dan O'Keefe as sureties. The bond is several and joint in form, conditioned on
the faithful execution of the duties of his office according to law, and binding on the heirs,
executors, and administrators of the obligors. In August, 1915, O'Keefe died testate. In
September, 1915, Dan Caddigan was appointed executor of O'Keefe's estate. In September,
1915, the executor published notice to creditors in all respects as required by law, and in
April, 1916, the executor filed his final account as such. In March, 1916, Paul, by court order,
filed his first account in the matter of the guardianship. This account was rejected, and
thereafter such proceeding was had upon his second account as resulted, in June, 1916, in his
removal and judgment against him in the sum of $3,421.96, moneys of his ward found to
have been appropriated by Paul to his own use, in violation of his trust. Execution issued on
the judgment and was returned wholly unsatisfied. In August, 1916, W. E. Pruett, the
respondent, qualified as guardian of Zitterbarth, and in December, 1916, Pruett brought this
action against Noyes, the survivor, and Caddigan, the executor of the deceased, to recover a
joint and several judgment in accordance with their joint and several undertaking. Caddigan,
the executor, demurred to the complaint upon numerous grounds, principally that there is
a misjoinder of parties defendant, as a joint action cannot be maintained, in the absence
of legislative authority, against the survivor and the deceased surety, and also that the
complaint fails to allege that the claim was filed with the clerk of the court within three
months after the date of the first publication of notice to creditors of the estate of Dan
O'Keefe, deceased.
demurred to the complaint upon numerous grounds, principally that there is a misjoinder of
parties defendant, as a joint action cannot be maintained, in the absence of legislative
authority, against the survivor and the deceased surety, and also that the complaint fails to
allege that the claim was filed with the clerk of the court within three months after the date of
the first publication of notice to creditors of the estate of Dan O'Keefe, deceased. Rev. Laws,
5964.
The demurrer was overruled. Thereupon Caddigan, by his answer to the complaint, denied
generally its allegations, and set up by way of affirmative defenses, among others, the
misjoinder of parties defendant and the nonclaim statute. The court sustained the demurrer to
these defenses and granted plaintiff's motion to strike the same from the answer. The cause
was tried by the court without a jury, and the court rendered a joint and several judgment
against the defendants for the sum demanded in the complaint, $2,500, and ordered that a
copy of the judgment be filed in the matter of the estate of Dan O'Keefe, deceased, and with
the executor of said estate, and that the judgment be paid in due course of administration.
Caddigan, the executor, appeals to this court from the judgment and the order overruling and
denying his motion for a new trial.
The district court was of the opinion that Caddigan, the executor, was properly joined with
Noyes, the survivor, because he was a party in interest. Rev. Laws, 4999. By the greater
weight of authority, if the common-law rule remains unaffected by statute in case of the death
of one of the obligors, a joint action cannot be maintained against the survivor and the
representative of the deceased. 5 Cyc. 822. The question is: Does the common-law rule
prevail under our practice? If, as is argued, the joinder of the survivor with the representative
defeats the action because the same judgment cannot be rendered against both, we reply that
the same difficulty would be presented where the representative is brought in by reason of the
death occurring after the action is brought.
action is brought. If the rights of the parties could be determined when the representative is
brought in by reason of the death occurring during the pendency of the action, then they could
be determined equally as well where the death occurred before the action was commenced.
Rev. Laws, 5004; Erie County v. Baltz, 125 App. Div. 144, 109 N. Y. Supp. 308.
Furthermore, under our practice, where the undertaking is a several as well as joint
obligation, as is the case here, the court by statute is given the discretion to render a separate
judgment. Rev. Laws, 5240; Tinkum v. O'Neale, 5 Nev. 93; Evans v. Cook, 11 Nev. 72. Our
practice act also provides that the court may grant the plaintiff any relief consistent with the
case made by the complaint and embraced within the issue. Rev. Laws, 5241; Lawrence v.
Doolan, 68 Cal. 309, 5 Pac. 484, 9 Pac. 159.
1. Entertaining these views, we conclude that the reason for the common-law rule does
not prevail under our practice. The judgment is not erroneous, because against one it is de
bonis propriis, and against the other de bonis testatoris.
2. The next question presented for our determination is: Do purely contingent claims fall
within the nonclaim section of the practice act relative to the filing of claims against the
estates of deceased persons? Rev. Laws, 5964. Without going at large into the inquiry as to
what claims must be filed under this section, it is sufficient for the purposes of the point
discussed, and upon which the case was made to turn in the court below, to say that, where
the claim if payable or to be satisfied at a future date rests in contingency and it is uncertain
whether or not any demand will accrue, it is not such a claim as must be filed. Jones v.
Cooper, 2 Aikens (Vt.) 54, 16 Am. Dec. 678; Woodard v. Herbert, 24 Me. 362; Loring v.
Kendall, 1 Gray (Mass.) 314; Mann v. Everts, 64 Wis. 372, 25 N. W. 209; South Milwaukee
Co. v. Murphy, 112 Wis. 614, 88 N. W. 583, 58 L. R. A. 82; McDowell v. Brantley, 80 Ala.
178; Pinkston v. Huie, 9 Ala. 257. But it is the contention of counsel for appellant that the
term any contingent claim," as used in Rev. Laws, 6557, relative to the distribution after
final account, is too comprehensive not to include the bond in question.
contingent claim, as used in Rev. Laws, 6557, relative to the distribution after final account,
is too comprehensive not to include the bond in question. There is a distinction between a
contingent demand and a contingency, whether there will ever be a demand. Woodard v.
Herbert, supra. This distinction is borne out by the law. Rev. Laws, 6057, contemplates that
an amount shall be paid into court for the benefit of such contingent claim, equal to the
amount that would be payable thereon if the whole of it were established as absolute. Estate
of McDougald, 146 Cal. 196, 79 Pac. 875. If the bond in question is such a claim as must be
filed against the estate of the deceased surety before actual default of the principal, it could
only be of the penalty of the bond, $2,500; nothing more definite, and nothing less in amount.
In this situation, the sum of $2,500, the principal of the bond, would necessarily have to be
subtracted from the total assets of the estate of O'Keefe and paid into court to await the
happening of the contingency upon which it rests for payment. The legislature certainly could
not have intended, by making provision for the protection of contingent claims, that the assets
of an estate be tied up to await indefinitely the happening of an event that may never happen.
McDowell v. Brantley, supra. If such result is intended, it clearly defeats one of the purposes
of the nonclaim statute, namely, the speedy settlement of estates.
Since the decision in the case of Pico v. De La Guerra, 18 Cal. 428, the legislature,
purposely and unmistakably to reverse the effect of the construction placed upon the
nonclaim statute of the State of California, to the effect that a legal action could not be
maintained against an executor upon a contingent claim until after it had been presented to
the executor as a matured absolute claim, amended the law so that all claims arising upon
contract, whether due, to become due, or contingent, must be filed within the time limited in
the notice, or be barred forever. Verdier v. Roach, 96 Cal. 467, 31 Pac. 554. Whether it be
advisable for our lawmakers to amend our statute so as to require contingent claims,
whatever be the character of the contingency, to be filed, is a matter for the legislature to
consider.
claims, whatever be the character of the contingency, to be filed, is a matter for the legislature
to consider.
3. We are of the opinion that a subsisting, outstanding, unbroken obligation, such as a
guardian's bond, is not the sort of contingent claim referred to in Rev. Laws, 6057.
4. It is next objected that the judgment as to the appellant is not in form as provided by
statute. We regard this objection as being more technical than real, and therefore not
prejudicial.
5. It is also objected that the court erred in its refusal to strike a certain paragraph in the
complaint, upon the ground that the same is irrelevant and immaterial. If this be true, clearly
the appellant is not prejudiced by the ruling.
The overruling of the appellant's motion for a new trial presents substantially the same
questions as were presented on the demurrer to the complaint and the affirmative defenses of
the appellant. Having decided the main point adversely to the contention of appellant, it is
useless to continue the discussion.
The judgment is affirmed.
____________
42 Nev. 337, 337 (1918) Crumley v. Southern Pacific Co.
[No. 2260]
J. G. CRUMLEY, Respondent v. THE SOUTHERN PACIFIC COMPANY (a Corporation),
Appellant.
[177 Pac. 17]
1. CarriersPassengersRatesScheduleChange.
Change in tariff schedule takes effect upon compliance with act to regulate railroads (Stats. 1907, p. 73,
sec. 4a; Rev. Laws, 4552) providing for change upon 30 days' notice to commission, notwithstanding
failure to post notice whenever a change is made as required by subdivision b; the only effect of such
failure being liability by railroad for damages resulting therefrom under section 26.
2. CarriersSleeping-CarsPassengersEjectionLiability.
Railroad was not liable for ejecting passenger from drawing-room, where passenger not sharing room
with another holder of first-class passenger ticket had but one such ticket, contrary to tariff schedule, and
refused to vacate room or purchase another ticket.
Appeal from Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.
Action by J. G. Crumley against the Southern Pacific Company. From a judgment for
plaintiff and from order denying new trial, defendant appeals. Reversed and remanded.
Every contract for the transportation of passengers or freight within the State of Nevada
over any common carrier is governed by the terms of the railroad commission act, and the
schedules filed under section 4 of that act (Rev. Laws, 4552) became a part of the contract
made by the shipper or passenger. There is only one lawful rate of passage, and that is the one
fixed by the schedules. No act of any railroad agent can alter the terms and conditions
contained in the tariff schedules filed in accordance with the state law. American S. R. Co. v.
Railroad, 207 Fed. 33; Gulf Railway v. Hefley, 158 U. S. 98; Texas Railway v. Mugg, 202 U.
S. 242; Armour Packing Co. v. United States, 209 U. S. 56; L. & N. R. R. v. Mottley, 219 U.
S. 467; Louisville R. R. Co. v. Maxwell, 237 U. S. 94.
The posting of schedules at various railroad stations is not necessary in order to put the
rates into effect, nor is such posting a condition precedent to their effectiveness. Railway Co.
v. Cisco Oil Mill, 204 U. S. 449; Railway Co. v. Alvers Comm. Co., 223 U. S. 573; United
States v. Miller, 223 U. S. 599; Railroad v. Allen, 152 Ky. 145; 153 S. W. 198; Railroad v.
Spring River Stone Co., 169 Mo. App. 109, 154 S. W. 465.
No change shall be made in the rates * * * which have been filed and published, * * *
except after thirty days' notice to the commission and to the public of the same published as
aforesaid. Published as aforesaid does not mean posting a notice or posting the new
schedules, but merely the distribution thereof to the agents of the railroad company for the
use of the public. Virginia-Carolina P. Co. v. Atlantic Coast Line R. Co., 82 S. E. 1.
H. R. Cooke, for Respondent:
The single issue in the court below was: What is the correct interpretation to be put upon
section 2552 of the Revised Laws? A notice posted which does not in itself contain the
requisite information relative to the change of schedules is not a compliance with the statute,
which provides that such posted notice must contain the specific information. The section
requires the defendant, as an indispensable condition precedent, to print and file with the
railroad commission a schedule containing a statement of the proposed new rate, and that
copy thereof be filed with the said commission, as well as filed and kept on file in every
depot, station and office of such railroad where passengers or freights are received for
transportation. The answer of the defendant company does not allege that any notice was ever
posted as required. Changed as herein provided is an extremely significant phrase. It is
herein provided that, in order to effect a change in the rates, schedules, or classifications, a
notice shall be posted by the railroad in a conspicuous place in every depot. * * * By the
Court, Coleman, J.:
Respondent, who was plaintiff in the district court, brought a suit to recover a judgment in
the sum of $2,000, damages alleged to have been sustained by reason of the conduct of an
employee of the defendant (appellant) in ejecting him from the drawing-room of a Pullman
car which was attached to a train operated by defendant company.
Plaintiff being in Reno, and, desiring to leave for Tonopah on the night train, purchased a
first-class ticket of defendant company, which entitled him to first-class passage to Tonopah,
and at the same time purchased from defendant one ticket for the drawing-room in the
Pullman sleeping-coach attached to the train running between Reno and Tonopah, for which
he paid $7. At the time plaintiff purchased the tickets, and also when he entered the train, he
was informed that under the rules of the company he could not occupy the drawing-room
unless another person holding a first-class ticket occupied it with him, or unless he purchased
another first-class passenger ticket. He stated that he expected a friend to occupy the
drawing-room with him.
During the night, and after he had retired to his berth, no one else having appeared with a
first-class ticket to occupy the drawing-room, and plaintiff having only one first-class
passenger ticket, the conductor awoke the plaintiff and informed him that he would have to
vacate the drawing-room or pay for another first-class ticket. After considerable discussion,
and against his will, he was ejected from the drawing-room. Judgment was entered for
plaintiff. This appeal is from the judgment and from an order denying a motion for a new
trial.
The sole question for our determination is: In view of the fact that no other person
occupied the drawing-room, and of the further fact that plaintiff had only one first-class
ticket, was the defendant justified in ejecting plaintiff from the drawing-room? For a long
time the defendant had permitted a passenger holding one first-class ticket between Reno
and Tonopah to occupy the drawing-room, but on a date prior to that upon which plaintiff
was ejected as stated it attempted to change its tariff schedule so as to make it necessary
for a person who desired to occupy such drawing-room either to purchase two first-class
tickets or to procure another person holding a first-class ticket to occupy it with him.
defendant had permitted a passenger holding one first-class ticket between Reno and Tonopah
to occupy the drawing-room, but on a date prior to that upon which plaintiff was ejected as
stated it attempted to change its tariff schedule so as to make it necessary for a person who
desired to occupy such drawing-room either to purchase two first-class tickets or to procure
another person holding a first-class ticket to occupy it with him. Section 4 of an act entitled
An act to regulate railroads, etc. (Stats. 1907, p. 73; Rev. Laws, 4552), assuming that a
tariff schedule exists, provides that:
(a) No change shall thereafter be made in any schedule, including schedule of joint rates,
or in any classification, except upon thirty days' notice to the commission, and all such
changes shall be plainly indicated upon existing schedules, or by filing new schedules in lieu
thereof thirty days prior to the time the same are to take effect; provided, that the commission,
upon application of any railroad, may prescribe a less time within which a reduction may be
made. Copies of all new schedules shall be filed as hereinbefore provided in every depot,
station and office of such railroad ten days prior to the time the same are to take effect, unless
the commission shall prescribe a less time.
(b) Whenever a change is made in any existing schedule, including schedule of joint
rates, a notice shall be posted by the railroad in a conspicuous place in every depot, station
and office, stating that changes have been made in the schedule on file, specifying the class or
commodity affected and the date when the same will take effect.
(c) It shall be unlawful for any railroads to charge, demand, collect or receive a greater or
less compensation for the transportation of passengers, property, or for any service in
connection therewith, than is specified in such printed schedule, including schedules of joint
rates, as may at the time be in force, and the rates, fares and charges named therein shall be
the lawful rates, fares and charges until the same are changed as herein provided."
and charges until the same are changed as herein provided.
At a time prior to the date upon which plaintiff claims to have been ejected from the
drawing-room, the defendant filed with the railroad commission of Nevada a tariff schedule,
by the terms of which it was provided, among other things, that when a drawing-room was
occupied by one adult, two first-class tickets should be required. It is admitted that every
condition imposed by section (a) of said act had been complied with by defendant at a time
sufficiently anterior to the date of the ejectment to make the same effective so far as that
subdivision is concerned, but no notice thereof had been posted as provided by subdivision
(b) of the act, and because of this failure it is contended by plaintiff that the change in the
schedule had not become effective.
It is not questioned but that the defendant company had the sole power to change its tariff
schedule, subject to the authority imposed in the railroad commission to supervise and
regulate the same. That body accepted the schedule in question without undertaking in any
way to alter the rates therein mentioned. Defendant company having the power to change its
tariff schedule, and having complied with the provisions of paragraph (a) of section 4 of the
act in question, quoted above, does it follow that the failure to give the notice provided for in
paragraph (b) of the statute, as quoted, makes the change inoperative? In determining this
question it is necessary that we ascertain the intent of the legislature as expressed in the
statute.
1. Paragraph (b) of the act in question provides that whenever a change is made in the
tariff schedule, notice shall be given that such changes have been made, and stating the
date when the same will take effect. We do not think the giving of the notice provided for in
paragraph (b) is a condition precedent to the making of the change in the tariff schedule, or to
its taking effect. The very language of this paragraph, which is separate and distinct from
paragraph {a), contemplates that a change is already "made," and that the giving of the
notice is an independent requirement.
which is separate and distinct from paragraph (a), contemplates that a change is already
made, and that the giving of the notice is an independent requirement. The language of
paragraph (a) fixes the time when the change in the schedule shall become effective. It is
upon thirty days' notice to the railroad commission. Respondent claims that, unless we hold
that the giving of the notice required by paragraph (b) is held to be a condition precedent to
the taking effect of the change in the tariff schedule, we nullify the requirement of paragraph
(b). We think not. While it was the duty of the company to give the notice required in
paragraph (b), its failure to do so did not have the effect of invalidating the changes made by
compliance with paragraph (a), for such notice was intended merely to bring to the attention
of the public that a change in the tariff schedule had in fact been made; and, as we view it, the
only consequence which would follow a failure to give that notice would be that any person
damaged by reason of such failure might recover damages therefor, as is provided in section
26 of the act.
While the opinion in the case of Texas and Pac. Ry. Co. v. Cisco Oil Mill, 204 U. S. 449,
27 Sup. Ct. 358, 51 L. Ed. 562, is not controlling, it is nevertheless persuasive. That was a
case in which it was insisted that the change in the tariff schedule was not in force because of
the failure of the company to post the tariff schedule in two conspicuous places, as required
by the interstate commerce act (Act Feb. 4, 1887, c. 104, 24 Stat. 379). The court held:
The requirement that schedules should be posted in two public and conspicuous places
in every depot,' etc., was not made a condition precedent to the establishment and putting in
force of the tariff of rates, but was a provision based upon the existence of an established rate,
and plainly had for its object the affording of special facilities to the public for ascertaining
the rates actually in force. To hold that the clause had the far-reaching effect claimed would
be to say that it was the intention of Congress that the negligent posting by an employee of
but one instead of two copies of the schedule, or the neglect to post either, would operate
to cancel the previously established schedule, a conclusion impossible of acceptance.
While section 6 forbade an increase or reduction of rates, etc., 'which have been
established an published as aforesaid,' otherwise than as provided in the section, we
think the publication referred to was that which caused the rates to become operative;
and this deduction is fortified by the terms of section 10 of the act making it a criminal
offense for a common carrier or its agent or a shipper or his employee improperly 'to
obtain transportation for property at less than the regular rates then established and in
force on the line of transportation of such common carrier.'"
intention of Congress that the negligent posting by an employee of but one instead of two
copies of the schedule, or the neglect to post either, would operate to cancel the previously
established schedule, a conclusion impossible of acceptance. While section 6 forbade an
increase or reduction of rates, etc., which have been established an published as aforesaid,'
otherwise than as provided in the section, we think the publication referred to was that which
caused the rates to become operative; and this deduction is fortified by the terms of section 10
of the act making it a criminal offense for a common carrier or its agent or a shipper or his
employee improperly to obtain transportation for property at less than the regular rates then
established and in force on the line of transportation of such common carrier.'
We think, too, the language of the court in United States v. Miller, 223 U. S. 604, 32 Sup.
Ct. 325, 56 L. Ed. 568, is of striking application to the case at bar. It was there said that
Publication is a step in establishing rates, while posting is a duty arising out of the fact
that they have been established. Obviously, therefore, the posting is not a condition to making
a tariff legally operative.
So we say a compliance with the requirement of paragraph (a), supra, effectuates a change
in the tariff schedule, while giving notice, as required by paragraph (b), is a duty arising out
of the fact that a change has been made.
Other interesting cases in this connection are Louisville & N. R. Co. v. Allen, 152 Ky.
145, 153 S. W. 198; St. Louis S. W. Ry. v. Spring River S. Co., 169 Mo. App. 109, 154 S. W.
465.
2. Being clearly of the opinion that the company had done everything necessary to perfect
a change in its tariff schedule, as required by law, it had a right, under the circumstances, to
eject plaintiff from the drawing-room of the Pullman coach, and hence it is not liable in
damages to the plaintiff.
The plaintiff's right to recover judgment for $7, the amount paid for the drawing-room in
the Pullman car, is not discussed in the briefs, nor was it alluded to in the oral argument.
is not discussed in the briefs, nor was it alluded to in the oral argument.
We are of the opinion that the judgment and the order appealed from should be reversed,
and the case remanded.
It is so ordered.
Sanders, J., being disqualified, did not participate in the consideration of the case.
42 Nev. 345, 345 (1919)
REPORTS OF CASES
DETERMINED BY
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
JANUARY TERM, 1919
____________
42 Nev. 345, 345 (1919) Dixon v. Pruett
[Nos. 2331 and 2334]
J. B. DIXON, Respondent-Appellant, v. W. E. PRUETT, as Administrator of the Estate of
Nellie G. McCormick, Appellant-Respondent.
[177 Pac. 11]
1. Appeal and ErrorTimely AppealEstoppel to Question.
Both appeals being from the judgment as entered, appellant is in no position to urge that the time
within which an appeal may be taken, under Rev. Laws, 5329, begins to run from the date of the rendition
of judgment, and his motion to dismiss cross-appeal, taken within six months after entry of judgment, will
not be considered.
2. PleadingAffirmative Defense Amounting to Denial.
In action against administrator to charge certain assets of estate with a claim for legal services rendered
deceased, affirmative defenses pleaded by defendant held demurrable, in that they amounted to nothing
more than special denials of facts incumbent upon plaintiff to prove.
3. PleadingSpecial DefensesSufficiency on Demurrer.
Under practice act, sec. 104, the sufficiency of a defense is tested by whether the new matter constitutes a
defense, taking the complaint as true.
4. PleadingAffirmative DefenseNew Matter.
Under practice act, sec. 104, new matter constituting a defense means some facts which plaintiff is not
bound to prove, and which go in avoidance or discharge.
5. PleadingAffirmative DefenseSufficiency.
Under practice act, sec. 104, a defendant claiming affirmative relief must plead as fully as plaintiff.
6. PleadingAnswerScope.
It is not the office of an answer to raise an issue of law, where such issue should be determined on
demurrer.
7. PleadingAnswerMatters Appearing on Face of Complaint.
If the illegality of a contract sued on appears on the face of the complaint counting on it, its illegality is
left a live question, to be dealt with by the trial court without a formal plea showing its illegality.
8. Frauds, Statute ofPleading.
The statute of frauds may be relied upon as a defense under a general denial.
9. PleadingLachesHow Raised.
Defense of laches may be raised by demurrer, where it appears on the face of the complaint.
Action by J. B. Dixon against W. E. Pruett, as administrator of the estate of Nellie G.
McCormick, deceased. Judgment for plaintiff, and defendant appeals; plaintiff prosecuting a
cross-appeal. Judgment affirmed, Coleman, J., dissenting.
James T. Boyd and Ayres & Gardiner, for Appellant:
It is the settled law of this state that the time in which to appeal runs from the date the
judgment was pronounced by the court; that such pronouncement constitutes the rendition of
the judgment; that all which follows is merely ministerial, and that the failure to take an
appeal within the statutory time after the pronouncement of the judgment is jurisdictional.
Rev. Laws, 5329; Central Trust Co. v. Holmes Mining Co., 30 Nev. 437.
Oral notice of the rejection of a claim against an estate in other jurisdictions than Nevada:
Peters v. Stewart, 21 N. Y. Supp. 993; Gardner v. Pitcher, 95 N. Y. Supp. 678; Miller v.
Swing, 67 N. E. 292. Our statute does not use the word notice, but says that the holder shall
be immediately notified. Oral notice is sufficient under the term notified. Vinton v. B. &
M. Assn., 9 N. E. 177; In Re Boner, 189 Fed. 93.
A failure to allow the claim within the statutory time is a rejection by operation of law.
Boyd v. Von Neida, S3 N. W. 329; Farewell v. Richardson, S4 N. W. 552; Mann v. Redmon,
145 N. Y. 1031; Underwood v. Brown, 60 Pac.
83 N. W. 329; Farewell v. Richardson, 84 N. W. 552; Mann v. Redmon, 145 N. Y. 1031;
Underwood v. Brown, 60 Pac. 700.
A claimant can recover only upon the claim presented. Bechtel v. Chase, 106 Pac. 81;
Brooke v. Lawon, 68 Pac. 97; Etchas v. Orena, 60 Pac. 45. Was it necessary for plaintiff to
present a claim before sustaining a cause of action to enforce his alleged attorney's lien? If
this were a lien declared in writing by the decedent, and recorded like a mortgage lien, it
could be enforced without the presentation of a claim; but a lien which arises by operation of
law is not such a lien as can be sued upon without a preliminary presentation of the claim.
Brown v. Truax, 115 Pac. 597; Casey v. Ault, 29 Pac. 1048.
All the delay in the estate is that of plaintiff, who was the attorney for the executrix and for
the administrator with the will annexed. Laches are sustained with particular care where the
cause of action alleged delays the settlement of the estate. Flora v. Brown, 140 N. W. 364.
On the second cause of action, if the contract was as plaintiff stated it to be, he was
entitled to demand a conveyance of one-half of the property involved as soon as judgment
was obtained, because the time to sue ran from the date of the judgment. Barclay v.
Blackington, 59 Pac. 834.
By seeking to enforce a strict money demand without asserting the lien, a creditor waives
the lien. Merc. Realty Co. v. Stetson, 94 N. W. 859; Homer v. McCormick, 56 Pac. 1124;
Rose v. Rundell, 150 Pac. 614.
No interest in or lien upon real property can be created except by an instrument in writing.
Rev. Laws, 1069-1071. The statute of frauds is sufficiently pleaded. 20 Cyc. 315. The burden
is upon plaintiff and not upon defendant to show that there are such facts as will take the
contract out of the statute. 20 Cyc. 316b. Mere naked services capable of being measured in
money are never an act of part performance. 36 Cyc. 672; Cooper v. Colson, 58 Atl. 337;
Farrin v. Matthews, 124 Pac. 675. Defendant may set forth by answer as many defenses and
counter-claims as he may have.
and counter-claims as he may have. He may plead both a general denial and new matter, or
even inconsistent defenses. Light v. Stevens, 103 Pac. 361; Shepard v. Hermon, 107 Pac. 622;
Kimble v. Stackpole, 110 Pac. 677; Wall v. Mines, 62 Pac. 386; Banta v. Silver, 53 Pac. 935;
Cooper v. Smith, 21 N. E. 887.
J. B. Dixon (in pro. per.) and A. E. Painter, for Respondent:
The motion to dismiss is without merit. No final judgment can be considered as rendered
until such time as the judge performs all the duties required of him by the statutes. No appeal
can be taken until after the findings and judgment have been prepared by the attorney for the
successful party, presented to the judge and signed by him. If the appeal cannot be taken until
such time, it necessarily follows that the time for taking an appeal does not commence to run
until such time. Rev. Laws, 5342. The general rule, recognized by the courts of the United
States, and by most, if not all, of the states, is that no judgment or decree will be regarded as
final, within the meaning of the statutes in reference to appeals, unless all the issues of law
and of fact necessary to be determined were determined, and the case completely disposed of,
so far as the court had power to dispose of it. Freeman on Judgments (3d Ed.) sec. 34;
Schwartz v. Stock, 26 Nev. 128.
New matter provided for in our statute to be set up by answer must all be set up by way of
confession and avoidance. This is clearly settled by the authorities. Ferguson v. Rutherford, 7
Nev. 385; Horton v. Ruhling, 3 Nev. 498; McManus v. Ophir, 4 Nev. 15.
The rule is practically universal that an answer or plea in confession or avoidance must
confess the facts pleaded to, and must avoid, and the avoidance must be coextensive with, the
confession. 4 Ency. Pl. and Pr. 664-671; 1 Sutherland, Code Pl. 385; Gould on Pleading, p.
192, note; 31 Cyc. 128.
The rules of pleading at common law have not been abrogated by the codes. The essential
principles still remain.
remain. The object still is to produce proper issues of fact, so that justice may be administered
between parties litigant with regularity and certainty. Parsley v. Nicholson, 65 N. C. 207;
Sampson v. Shaffer, 3 Cal. 196; Doll v. Smith, 43 Misc. (N. Y.) 417.
A defense of the statute of limitations may be contested by demurrer when the pleadings
show that the statutory time has elapsed. Columbia v. Clause, 78 Pac. 708; Wise v. Williams,
72 Cal. 544; McCann v. Penny, 100 Cal. 547; Fullerton v. Bailey, 17 Utah, 85; Wise v.
Hogan, 77 Cal. 184.
An equitable claima claim on a mortgage or on a lienneed not be filed or presented to
the administrator before bringing suit, or as the basis of an action. Thompson v. Crockett, 19
Nev. 242; Kirman v. Powning, 25 Nev. 378; Furman v. Craine, 121 Pac. 1007; Estate of
Kibbe, 57 Cal. 407; People v. Olvera, 43 Cal. 492; Hardin v. St. Claire, 115 Cal. 460.
Mere delay alone, in the absence of any change of circumstances or condition in the
relation of the parties between themselves, or with reference to the subject-matter, will not
bar a suit for specific performance. 26 Am. & Eng. Ency. Law, 79.
1. This cause was submitted on briefs without argument. There are two appeals to be
considered. One is that of the defendant, taken on the 26th day of January, 1916, from a
judgment entered on the 17th day of August, 1917; and the other is the cross-appeal of the
plaintiff, taken on the 11th day of February, 1918, from the same judgment. The appellant
moves for the dismissal of the cross-appeal, upon the ground that it was not taken within six
months from the date of the rendition of the judgment (Rev. Laws, 5329) on July 26, 1917.
Conceding, as is argued, that the cross-appeal falls within the rule as announced in the case
of Central Trust Co. v. Holmes M. Co. (30 Nev. 437, 97 Pac. 390) that the time within which
an appeal may be taken begins to run from the date the court renders its decision and
orders judgment entered, and not from the date of the entry of the judgment, we do not
think the appellant is in position to urge the point, as both appeals are taken from the
judgment as entered on the 17th day of August, 1917.
begins to run from the date the court renders its decision and orders judgment entered, and
not from the date of the entry of the judgment, we do not think the appellant is in position to
urge the point, as both appeals are taken from the judgment as entered on the 17th day of
August, 1917. In this situation, in justice to both parties, we decline to consider the motion.
Coming to the merits of the defendant's appeal: The plaintiff, J. B. Dixon, an attorney and
counselor at this bar, brought his action in the district court of Washoe County in July, 1915,
against the defendant, W. E. Pruett, as administrator of the estate of Nellie G. McCormick,
deceased, with her will annexed, to charge certain assets of the estate in his hands for
distribution, with a claim for legal services rendered the deceased by plaintiff pursuant to oral
agreement made with deceased in 1908, wherein it was agreed that the plaintiff was to be
paid and receive a contingent fee of one-half of all property, money, or effects that might be
recovered or restored to the deceased as and for her interest in the estate of Margaret Winters,
her mother. The claim preferred by the complaint is that, pursuant to the contract of
employment, he commenced and prosecuted an action, which resulted, in 1909, in a judgment
and decree adjudging and decreeing Nellie G. McCormick to be the owner of a one-ninth
undivided, equitable interest in 1,200 acres of land described in the pleadings in said suit.
Shortly after the litigation was commenced the said Nellie G. McCormick died testate, and
her suit was continued in the name of her executrix and one Forsyth, guardian ad litem of her
minor child and devisee. The executrix, after the termination of the litigation, was removed as
such by order of court, and the defendant herein qualified as administrator of the estate of
Nellie G. McCormick, deceased, with her will annexed. The plaintiff filed a claim with the
clerk of the court against the said estate for the sum of $3,417.50. The claim as filed was not
formally rejected by the administrator or the district court, but the latter informed the plaintiff
that his claim would be rejected, and he would have to institute suit for its payment.
that his claim would be rejected, and he would have to institute suit for its payment.
Thereafter, and prior to the commencement of this action, the administrator, without the
assistance or consent of the plaintiff, compromised and settled Nellie G. McCormick's
one-ninth undivided equitable interest in the land in question, and the rents and profits
accruing therefrom, for the sum of $5,000. Of said sum, $2,933.32 was fixed as the value of
her interest in said lands, and $1,998.90 as rents and profits accruing therefrom; the
remainder being for Nellie G. McCormick's interest in the personal estate of her mother.
The complaint consists of two causes of action. The relief demanded therein is in the
alternative. First, the plaintiff demands judgment for the sum of $2,500 in lieu of his
undivided one-half (equal to a one-eighteenth) interest in the lands and the rents arising
therefrom; second, an attorney's lien for $2,500 against the said sum of $5,000 so paid and
received by the defendant; third, an attorney's lien for the value of his legal services rendered
pursuant to the contract of employment, fixed by plaintiff at $2,500; fourth, that plaintiff have
such other and further relief as the nature and circumstances of his case may require.
The defendant interposed a demurrer to the complaint, upon the ground that the same does
not state facts sufficient to constitute a cause of action. The demurrer was submitted to the
court without argument, and was overruled. Thereupon the defendant answered, and for
answer, in addition to his special denials of the allegations contained in the complaint, filled
with negative pregnants, set up fifteen affirmative defenses to the action. The plaintiff
interposed a demurrer to each of these defenses, which was sustained. The defendant
thereupon went to trial before the court, without a jury, upon the issues joined upon the
pleadings. The trial resulted in a judgment in favor of the plaintiff and against the defendant
for the sum of $1,466.66. The defendant appeals from the judgment alone.
2. The only question presented for our determination is the correctness of the court's
ruling on the demurrers to the alleged affirmative defenses. In the view we take of these
so-called affirmative defenses it is unnecessary to give them separate examination. Such
examination would extend this opinion unnecessarily, but, out of regard for the labor
expended by counsel and the exhaustive argument filed in support of his exception to said
ruling, we feel impelled to give the contentions of the appellant more than passing notice.
Because of the manner and form in which the alleged defenses are pleaded, they have
imposed upon us the necessity of a careful scrutiny, analysis, and comparison of the
allegations of the complaint and answer to ascertain whether the alleged defenses constitute
defenses to the action as the term defense is used in our statute.
Section 104 of the practice act (Rev. Laws, 5046; Stats. 1915, p. 192) provides that the
answer of the defendant shall contain, if the complaint be verified, a special denial of each
allegation of the complaint, controverted by the defendant, or a denial thereof according to his
information and belief; * * * a statement, in ordinary and concise language, of any new matter
constituting a defense or counter-claim.
3. First in an answer comes a denial or denials (if any there be), and then comes
defenses (if any there be). A defense can consist of only new matter constituting a
defense. The sufficiency of a defense is tested by whether the new matter pleaded in it
constitutes a defense to the action, taking the allegations of the complaint to be true. If it does
not stand this test, it is demurrable for insufficiency. If there be anything in a defense which
is not new matter it is of no weight there whatever. Staten Island Midland Ry. Co. v.
Hinchcliffe, 34 Misc. Rep. 49, 68 N. Y. Supp. 556; Pascekwitz v. Richards, 37 Misc. Rep.
250, 75 N. Y. Supp. 293.
4, 5. A defense can consist only of new matter; that is, matter outside of the general
issue. McManus v. Western Assur. Co., 22 Misc. Rep. 269, 48 N. Y. Supp.
820. New matter constituting a defense means some facts which the plaintiff is not bound
to prove to make his case, and which goes in avoidance or discharge. Bliss, Code Pl. sec. 339.
New matter in defense is that which, under the rules of evidence, the defendant must
affirmatively establish. 21 R. C. L. 567. Furthermore, a defendant claiming affirmative relief
under our practice must plead as fully as plaintiff. Rose v. Treadway, 4 Nev. 455, 97 Am.
Dec. 546.
6. Testing the instant defense by these well-established standards of pleading, we are of
the opinion that they do not measure up to their requirements. By a comparison of the defense
with the complaint, they amount to nothing more than special denials that go to the
sufficiency of the complaint, or to the facts incumbent upon the plaintiff to prove in the first
instance. It is not the office of an answer to raise an issue of law where such issue should be
determined on demurrer. Mandlebaum v. Russell, 4 Nev. 551; 21 R. C. L. 531. No good
reason exists for pleading affirmative defenses containing averments of facts that may be
proved under the general issue. 21 R. C. L. 570.
The defenses as pleaded relate back to the allegations found in the complaint, and point
out that the plaintiff, before the commencement of his action, failed to comply with the
nonclaim statute; that the cause of action stated in the complaint is barred by the statute of
limitations; that the contract sued on is within the statute of frauds; that it is champertous;
that the claim preferred by the complaint is stale; that the plaintiff has a remedy at law; that
the complaint does not state a cause of action.
7. It is the contention of the pleader that each of these defenses shows a meritorious
ground for defeating the action. Assuming this to be true, nevertheless the defenses, in our
view of the allegations of the complaint, are properly the subject of demurrer, or are reached
by the defendant's denials of the allegations of the complaint. On demurrer to these defenses
the question is: Does the matter pleaded constitute a counter-claim or defense?
defense?not, Is it a matter that will bar the action (if a plea in bar survives in our practice)?
We concede the general rule to be that any fact which avoids the action, and which the
plaintiff is not bound to prove in the first instance in support of it, is new matter, and must be
specially pleaded. Bliss, Code Pl. sec. 352. But if we clearly interpret the position of the
pleader, he concedes and insists that the defenses as pleaded are not in confession and
avoidance, but in bar of the action. Then it must follow that the defenses amount to nothing
more than special denials of facts incumbent upon the plaintiff to prove in the first instance.
A denial only raises an issue on the complaint. A defense is new matter that may defeat the
action though the complaint be true. If the illegality of the contract sued on appears on the
face of the pleading counting on it, its illegality is left a live question to be dealt with by the
trial court without a formal plea of facts showing its illegality. Coppell v. Hall, 7 Wall. 542,
19 L. Ed. 244; Shohoney v. Quincy Co., 231 Mo. 131, 132 S. W. 1059, Ann. Cas. 1912a,
1143.
8, 9. The statute of frauds may be relied upon as a defense under a general denial. 21 R. C.
L. 535. So also the defenses of laches may be raised by demurrer, where it appears on the face
of the complaint. 10 R. C. L. 407.
The rule is elementary that anything which may be proved under a general or special denial
is not a defense, and must not be pleaded as such, nor should it be set out at all. Kelly v.
Sammis, 25 Misc. Rep. 6, 53 N. Y. Supp. 829.
Applying these principles of pleading to the defendant's exception to the court's ruling on
the demurrer to the answer, we conclude that the exception as taken is not of such a character
as to require us to reverse the judgment.
As this disposes of the appellant's only assignment of error, we now come to the
consideration of respondent's cross-appeal.
It is the contention of the respondent that the judgment in his favor for the sum of
$1,466.66, the amount found to be the value of his undivided one-half of Nellie G.
found to be the value of his undivided one-half of Nellie G. McCormick's one-ninth interest
in the land secured for her as the result of the plaintiff's services under his contract of
employment, should be increased by adding thereto one-half of the rentals of the land in
question actually paid and received by the defendant in settlement of Nellie G. McCormick's
equitable interest in the land and rents accruing therefrom. This we decline to do, for the
reason that we are satisfied from the respondent's own showing, his acts and conduct, that he
was given full benefit of all the equities that his case merits.
As no benefit would result from replying to respondent's argument, we shall affirm the
judgment without comment.
Coleman, J., dissenting:
I dissent, and base my action upon the order of the district court sustaining the plaintiff's
demurrer to the affirmative defense set up in the answer pleading the failure of plaintiff to
bring suit within the time prescribed by statute after he had been notified that his claim
against the estate in question had been rejected.
The demurrer to plaintiff's complaint filed by the defendant, as stated in the majority
opinion, was a general demurrer, and was not upon the ground that it appeared from the
complaint that the action was barred by the statute; nor could such a demurrer have been
sustained had it been filed, for the reason that the complaint does not allege the date of his
having been notified of the rejection of his claim, nor otherwise show that the action was not
brought within the time prescribed by the statute. The statute, providing that an action upon a
rejected claim must be filed within thirty days after notice of its rejection is given the
claimant, is in the nature of a statute of limitations, and the rules of pleading applying to
statutes of limitations generally control. It is a well-established rule that, where the complaint
does not show upon its face that the action is barred by the statute of limitations, the defense
of the statute can be raised only by answer.
be raised only by answer. 25 Cyc. 1399; 21 R. C. L. 536. The plea of the statute must be
urged upon the first opportunity, and if not so urged is waived. 25 Cyc. 1401.
I think the court erred in sustaining the demurrer to the affirmative defense mentioned, for
which reason the judgment should be reversed.
____________
42 Nev. 356, 356 (1919) State v. Moran
[No. 2349]
THE STATE OF NEVADA, Ex Rel. ALLEN CLARK COMPANY (a Corporation), Relator
and Petitioner, v. HON. THOMAS F. MORAN, as District Judge of the Second Judicial
District Court of the State of Nevada, in and for the County of Washoe; and THE
SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND
FOR THE COUNTY OF WASHOE, Respondents.
[176 Pac. 413]
1. Mechanics' LiensPersonal JudgmentJurisdiction of Court.
In view of Rev. Laws, 2226, providing that the mechanic's lien statute shall not affect the right to a
personal judgment in a mechanic's lien suit, such judgment may be rendered against one personally liable if
the complaint contains all necessary facts constituting both kinds of relief, and all the necessary allegations
of an action in assumpsit.
2. CertiorariMatters ReviewableCosts.
The action of the court in a mechanic's lien suit in affirming a judgment for costs before a justice of the
peace, even if irregular, cannot be reviewed on certiorari.
Certiorari by the State, on the relation of the Allen Clark Company, a corporation, against
Thomas F. Moran, District Judge of the Second Judicial District Court, in and for the
County of Washoe, and the Second Judicial District Court in and for the County of
Washoe. Writ dismissed.
O. H. Mack, for Petitioner:
The writ of certiorari should issue and lie, with relator's costs. The questions before the
court are: (1) Has the justice court jurisdiction over mechanics' liens under $300? (2) Did the
justice court and the district court exceed their authority and jurisdiction in entering a
personal judgment against petitioner, the lien being null and void, and the action having
been brought wholly and entirely to foreclose a mechanic's lien?
42 Nev. 356, 357 (1919) State v. Moran
court exceed their authority and jurisdiction in entering a personal judgment against
petitioner, the lien being null and void, and the action having been brought wholly and
entirely to foreclose a mechanic's lien? (3) Did the district court exceed its authority and
jurisdiction in sustaining the judgment of the justice court for costs, no cost bill having been
filed in either court in any of the actions?
If there is no complaint or lien, the court has no jurisdiction over the parties or of the
subject-matter of the action. Burling v. Goodman, 1 Nev. 314; Baum v. Reynolds, 11 Cal. 14;
Feusier v. Lammon, 6 Nev. 209. A judgment must accord with and be warranted by the
pleadings of the party in whose favor it is rendered. Frevert v. Heney, 14 Nev. 191; Marshall
v. Golden Fleece Mining Co., 16 Nev. 156.
Charles H. Burritt, for Respondents:
The writ should be dismissed. The motion to quash is in the nature of a demurrer to the
petition, and is a proper pleading at this time. 6 Cyc. 815. The motion is made and presented
in time and opportunely, to save all questions that are improperly and improvidently
attempted to be embraced in and brought under the jurisdiction of the supreme court. The
motion must be made before filing the return, which will be treated as a waiver. 6 Cyc. 316.
The only questions that can be inquired into are those relating to jurisdiction and to the
exceeding of jurisdiction, as defined in and limited by the statute authorizing the writ of
certiorari. Mere matters or irregularity may not be corrected. Rev. Laws, 5684-5690; Maynard
v. Railey, 2 Nev. 313.
The relator has been guilty of laches in the prosecution of the writ, it not having been asked
for within a reasonable time. Stand. Ency. Proc., vol. 4, p. 912. It has been observed already
that in the case at bar nearly two years were permitted to elapse after the entry of the order
complained of before application was made for the writ. An appeal to this court from a final
judgment of a district court is barred by the lapse of one year; and we are of the opinion
that, unless circumstances of an extraordinary character be shown to have intervened,
the remedy through a writ of certiorari should be held to be barred by the lapse of a like
period of time."
42 Nev. 356, 358 (1919) State v. Moran
of a district court is barred by the lapse of one year; and we are of the opinion that, unless
circumstances of an extraordinary character be shown to have intervened, the remedy through
a writ of certiorari should be held to be barred by the lapse of a like period of time. Keyes v.
Marin County, 42 Cal. 252.
The Allen Clark Company, a corporation, sued out of this court in 1917 a writ of certiorari.
Upon consideration of the case on its merits, this court discharged the writ and dismissed the
proceeding, on the ground that the tribunal whose judgment was sought to be reviewed was
not made a party defendant. State v. Pacific Wall Paper and Paint Co., 41 Nev. 501, 172 Pac.
380.
The relator who prosecuted the writ, apparently in conformity to the suggestion found in
the opinion concurring in the order of dismissal, sued out this writ in June, 1918, basing its
application for the writ on the same facts as contained in its former proceeding. 41 Nev. 501,
172 Pac. 380.
1. The main question to be determined is whether a justice court, in an action brought
primarily to enforce a mechanic's lien, exceeded its jurisdiction in rendering a judgment in
personam against the defendant in the action. Since the issuance of the writ in this case, this
court, in the case of State ex rel. Abel v. Breen, 41 Nev. 516, 173 Pac. 555, decided the
question adversely to the contention of the relator, and held that:
In view of Rev. Laws, 2226, providing that the mechanic's lien statutes shall not affect
the right to a personal judgment, in an action brought to enforce a mechanic's lien, a personal
judgment may be rendered against a person personally liable if the complaint contains all
necessary facts constituting both grounds of relief, and all the necessary allegations of an
action in assumpsit.
Upon examination of the pleadings in the justice court, we are led to the conclusion that
the complaints therein state a cause of action in assumpsit against the defendant, and
therefore the justice court, in the exercise of its original jurisdiction, was authorized to
render a judgment in personam against the defendant.
42 Nev. 356, 359 (1919) State v. Moran
therein state a cause of action in assumpsit against the defendant, and therefore the justice
court, in the exercise of its original jurisdiction, was authorized to render a judgment in
personam against the defendant. Neither did the district court, in the exercise of its derivative
jurisdiction on appeal, exceed its jurisdiction in affirming such judgment.
2. In reference to the question of costs imposed by the district court, it was a matter for the
court to consider. If the court erred in affirming the judgment for costs, it was an irregularity,
and not an excess of jurisdiction. Its action in this respect cannot be reviewed on certiorari.
State v. District Court, 16 Nev. 76; State v. District Court, 23 Nev. 246, 45 Pac. 467.
The writ must be dismissed, with costs.
It is so ordered.
Ducker, J., did not participate in the consideration of the case, it having been submitted
before he became a member of the court.
____________
42 Nev. 360, 360 (1919) Ex Parte Zwissig
[No. 2369]
In the Matter of the Application of JOHN
ZWISSIG for a Writ of Habeas Corpus
[178 Pac. 20]
1. StatutesConstruction.
In construing a statute, words shall be given their plain meaning, unless to do so would clearly violate
evident spirit of act.
2. Intoxicating LiquorsProhibition ActPossession.
Prohibition act, sec. 7, was intended to prevent a person from having intoxicating liquor upon the street
for personal or any other use other than contemplated by the act itself.
3. Criminal LawProhibition ActJurisdiction of Justice of PeaceSentence.
Under Rev. Laws, 4851, general statute limiting jurisdiction of justice of peace, and prohibition act, secs.
7, 28, in prosecution for violation of latter act, a justice cannot assess greater punishment than fine of $500
and six months' imprisonment in county jail; district court alone being authorized to impose excess fine and
imprisonment mentioned in section 7.
4. Constitutional LawStatutesUnconstitutionalityRight to Complain.
One charged with violation of prohibition act could not complain of its unconstitutionality as providing
justice of peace might assess fine in excess of limitation fixed by general statute prescribing his
jurisdiction, where the punishment fixed was actually within limitation of the general statute.
5. Intoxicating LiquorsConstitutional LawProhibitionPrivileges and
ImmunitiesFourteenth Amendment.
Prohibition act, sec, 7, held not violative of guaranties of Const. U. S. Amend. 14, sec. 1, as to abridging
privileges or immunities of citizens of the United States, due process, and equal protection.
Application of John Zwissig for a writ of habeas corpus. Writ dismissed, and petitioner
ordered remanded to the custody of the sheriff.
Lee J. Davis, Walter M. Kennedy, and J. M. Frame, for Petitioner:
The main question to be decided is as to the justice court's jurisdiction. We deny
jurisdiction because the charge does not constitute a public offense, and because the
maximum penalty exceeds the jurisdiction of the justice court. Hurd, Hab. Corp. (2d Ed.) p.
325; State ex rel. Morley v. Godfrey, 54 W. Va. 54; Judy v. Lashley, 50 W. Va. 628; Church,
Hab. Corp. sec. 351.
Section 7 of the act, copied from the West Virginia statute, has been construed in that
state.
statute, has been construed in that state. Emsweller v. Wallace, 88 S. E. 787. Under the
well-known rule of statutory construction, the decision of that state is binding upon this court.
Black, Judicial Precedents; State v. Robey, 8 Nev. 312; Hunter v. Truckee Lodge, 14 Nev. 36;
In Re Boyce, 27 Nev. 334, 65 L. R. A. 56. In the Oklahoma statute a section similar to section
7 was given the same construction in Ex Parte Wilson, 119 Pac. 596.
Section 28 of the act provides two different penalties for the same offense, thus denying
the equal protection of the law by reposing in the district attorney the right to decide which
penalty shall be imposed, in contravention of the fourteenth amendment to the constitution of
the United. States.
Leonard B. Fowler, Attorney-General, and Robert Richards, Deputy Attorney-General (A.
E. Cheney, Amicus Curiae), for Respondent:
The title of the act is sufficient under the constitution to include section 7. State v. State B.
& T. Co., 31 Nev. 356; Ex Parte Ah Pah, 34 Nev. 283; Ex Parte Ah Sam, 15 Nev. 27.
The question of jurisdiction is not serious. Section 7 of the act provides a maximum and a
minimum penalty, and section 28 provides the method of invoking jurisdiction. Ex Parte
Smith, 33 Nev. 466.
The provisions of the act do not contravene either the constitution or the Revised Laws
regulating the jurisdiction of courts. Const. Nev. art. 4, secs. 6, 8; Stats. 1919, p. 11, sec. 24.
Petitioner has cited no authorities in support of his contention relating to jurisdiction.
However, the following cases have a bearing upon the question: State v. Meek, 112 Iowa,
338; State v. Glover, 90 S. C. 166; In Re Mulholland, 97 Cal. 527.
This is an original proceeding in habeas corpus. A complaint was filed with the justice of
the peace of Reno township, charging that the petitioner did wilfully and unlawfully have in
his possession for personal use and otherwise intoxicating liquor, to wit, whisky, on a
public street within the city of Reno, county of Washoe, State of Nevada, to wit,
Commercial Row."
unlawfully have in his possession for personal use and otherwise intoxicating liquor, to wit,
whisky, on a public street within the city of Reno, county of Washoe, State of Nevada, to wit,
Commercial Row.
The section of the prohibition act under which the prosecution was instituted reads:
Sec. 7. It shall be unlawful for any person to keep or have for personal use or otherwise,
or to use, or permit another to have, keep or use, intoxicating liquors at any restaurant, store,
office building, club, place where soft drinks are sold (except a drug store may have an sell
alcohol and wine as provided by sections four and twenty-four), fruit stand, news stand,
room, or place where bowling alleys, billiard or pool tables are maintained, livery stable,
public building, park, road, street or alley. * * *
Upon arraignment before the justice of the peace, petitioner entered a plea of guilty, upon
which plea it was adjudged that he pay a fine of $100 and serve sixty days in jail, pursuant to
which he was committed to the custody of the sheriff of Washoe County. It is from this
custody he seeks to be discharged.
Upon the oral argument it was insisted by counsel for petitioner that the purpose of the
legislature in providing that it should be unlawful to keep intoxicating liquors at any
restaurant, store, office building, club, etc., was that unless the places mentioned were put
under the ban it would be easy to evade the law, but that no such reason could have
influenced the legislature in providing that it should be unlawful for any person to keep or
have intoxicating liquors in his possession upon a street for personal use, for the reason that
keeping or having liquor for personal use, upon a street, negatives the idea that it is to be used
as a means of evading the act and that the act is senseless in providing that it should be
unlawful for a person to keep or have intoxicating liquors for personal use or otherwise at
any street, since, as it is contended, the act does not prohibit the keeping of liquors for
personal use in the home, as what one may lawfully keep in the home he may lawfully
carry there upon a public street.
what one may lawfully keep in the home he may lawfully carry there upon a public street.
We do not deem it necessary to determine whether or not it is unlawful for a person to
keep intoxicating liquors in his home; but we do not wish to be understood as conceding the
correctness of the broad contention that, under all circumstances, a person may keep
intoxicating liquors in his home for his personal use.
We are in full accord with the theory of counsel as to the reason which prompted the
prohibition of the keeping of intoxicating liquors at any restaurant, store, office building,
club, etc. It was clearly for the purpose of preventing an evasion of the spirit of the
prohibition act; but we think, too, that that portion of section 7 which makes it unlawful to
have for personal use or otherwise * * * intoxicating liquors * * * at any street was
incorporated in the act for the very same reason which prompted the legislature to prohibit the
keeping or having liquors at the other places mentionedthat is, to prevent an evasion of the
act.
Experience has shown that the ingenuity of man is such that it is almost impossible to draft
a prohibition act so broad in scope that some method cannot be devised for evading it, and no
doubt it was deemed necessary to prohibit even the having of liquor for personal use upon a
street so that the real purpose of the act might be attained.
1, 2. It is a well-known rule of statutory construction that words shall be given their plain
meaning, unless to do so would clearly violate the evident spirit of the statute. The provision
of the statute making it unlawful for a person to have in his possession upon any street for
personal use intoxicating liquor is clear. No one can misunderstand the language of the
statute. For us to give the language any other meaning than that which it clearly expresses
would be in violation of every canon of statutory construction, unless from a consideration of
the entire act it appears that some other intendment should be given to it. We cannot
arbitrarily ignore plain language, but must be controlled by it, except in the instance
mentioned.
language, but must be controlled by it, except in the instance mentioned. What is the plain
purpose of the act? It is not only to suppress traffic in the concoctions, liquors, and drinks
mentioned in the act, but mainly to suppress their consumption, except where otherwise
indicated, and in case of doubt every portion of the act must be construed in the light of that
object. This being true, we think it clear that the act intended to prevent a person from having
intoxicating liquor upon the street for personal or any other use other than that contemplated
by the act itself.
3, 4. It is also urged that the justice of the peace had no jurisdiction to render the judgment
complained of, for the reason that the maximum penalty exceeds the jurisdiction of a justice
of the peace. In this contention counsel are clearly in error. It is based upon the fact that our
general statutes limit the jurisdiction of a justice of the peace to all misdemeanors punishable
by fine of not more than $500 or imprisonment not exceeding six months, or by both such
fine and imprisonment (Rev. Laws, 4851), while section 7 of the prohibition act provides that
for a violation of the section mentioned (under which petitioner was charged) one may be
fined not less than $100 nor more than $1,000 and be imprisoned in the county jail not less
than two nor more than twelve months. Section 28 of the prohibition act provides:
Justices of the peace shall have concurrent jurisdiction with the district court for the trial
of first offenses arising under this act; provided, that the district attorney or the commissioner,
or any of his deputies, shall have the right before trial to elect whether the case shall be tried
and judgment entered, or whether the justice shall hold a preliminary hearing to determine
whether the accused shall be held to the district court; provided, further, that if the defendant
shall plead guilty, the justice shall enter judgment on the charge. Justices of the peace shall
not impose a greater fine than five hundred dollars nor imprisonment in the county jail longer
than six months. * * * It will be seen from the language of the statute that a justice of
the peace and the district court have concurrent jurisdiction in certain cases, but that in
no case can the justice of the peace assess a greater punishment than a fine of $500 and
six months' imprisonment in the county jailexactly what the general statute provides
shall be the limit of the punishment which may be fixed by a justice of the peace.
It will be seen from the language of the statute that a justice of the peace and the district
court have concurrent jurisdiction in certain cases, but that in no case can the justice of the
peace assess a greater punishment than a fine of $500 and six months' imprisonment in the
county jailexactly what the general statute provides shall be the limit of the punishment
which may be fixed by a justice of the peace. It is evident that it is the purpose of the act that
the fine and imprisonment mentioned in section 7 in excess of a fine of $500 and six months,
imprisonment should be adjudged by the district court. But since the prohibition act makes a
violation of section 7 a misdemeanor, even had it provided that the justice of the peace might
assess a fine in an amount in excess of a limitation fixed by the general statute, it seems clear
that petitioner could not complain, since the punishment fixed is within the limitation
prescribed by the general statute, which counsel contend controls. It is well settled that no one
can question the constitutionality of an act or part of an act if his rights are not violated
thereby.
We do not wish to be understood as saying that the act could not have conferred upon the
justice of the peace authority to assess a greater fine than $500 or confinement in the county
jail for a greater period than six months under the authority conferred by section 8, article 6,
of our constitution.
It is insisted that section 7 of our prohibition act was taken from the West Virginia statute,
as quoted in State v. Emsweller, 78 W. Va. 214, 88 S. E. 787, and that this court is controlled
by the decision in that case, in which it was held that the complaint did not charge a crime.
The Nevada statute is similar to the West Virginia statute, but other states have similar
statutes also, and unless it can be reasonably said that this state adopted the West Virginia
statute, with the construction contended for, we are not inclined to the view that we should
accept the holding in that case if it were in point. And it should be borne in mind that there
are exceptions to the rule contended for.
to the rule contended for. Opinion of Beatty, C. J., in Hunter v. Truckee Lodge, 14 Nev. 36;
Western Terra Cotta Co. v. Board of Education, 39 Okl. 716, 136 Pac. 595, 596. But it
appears from the careful consideration of the opinion in the West Virginia case that the
decision did not turn upon the point here involved; it was not considered or discussed, though
there are some general observations which would seem to apply.
5. It is also contended that section 7 of the prohibition act in question is within the
inhibition of section 1, article 14, of the constitution of the United States. By section 23 of the
act in question, the entire act is declared to be an exercise of the police power of the state for
the protection of the public health, peace and morals. Section 1, amendment 14 to the
constitution of the United States, reads:
All person born or naturalized in the United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the state wherein they reside. No state shall make or
enforce any law that shall abridge the privileges or immunities of citizens of the United
States; nor shall any state deprive any person of life, liberty, or property, without due process
of law; nor deny to any person within its jurisdiction the equal protection of the laws.
To sustain their contention, Ex Parte Wilson, 6 Okl. Cr. 451, 119 Pac. 596, is relied upon
by counsel for the petitioner. That case sustains the position of counsel, but it is against what
we consider the better rule and the one sustained by sounder reasoning and more eminent
authority. This question was presented in the case of Ex Parte Crane, 27 Idaho, 671, 151 Pac.
1006, L. R. A. 1918a, 942. It appears from the facts in that case that Crane was arrested for
having in his possession a quantity of whisky for his own use only. Upon a preliminary
hearing he was held to answer to the district court. In default of bail he was committed to the
custody of the sheriff and sued out a writ of habeas corpus to procure his discharge. The law
under which he was arrested made it unlawful for a person to have intoxicating liquors in
his possession, except where obtained under a permit.
made it unlawful for a person to have intoxicating liquors in his possession, except where
obtained under a permit. It was urged upon the hearing, among other things, that the act was
void for reasons identical with those urged in the case at bar. The Supreme Court of Idaho
reviewed at considerable length the authorities in point, held that the position taken by
counsel was not sound, and quashed the writ. The case was taken to the Supreme Court of the
United States (Crane v. Campbell, 245 U. S. 304, 38 Sup. Ct. 98, 62 L. Ed. 304) upon a writ
of error, and that court, in a unanimous opinion, sustained the judgment of the lower court.
We quote from the decision:
It must now be regarded as settled that, on account of their well-known noxious qualities
and the extraordinary evils shown by experience commonly to be consequent upon their use,
a state has power absolutely to prohibit manufacture, gift, purchase, sale, or transportation of
intoxicating liquors within its borders without violating the guaranties of the fourteenth
amendment. Bartemeyer v. Iowa, 18 Wall. 129, 21 L. Ed. 929; Beer Co. v. Massachusetts, 97
U. S. 25, 33, 24 L. Ed. 989; Mugler v. Kansas, 123 U. S. 623, 662, 8 Sup. Ct. 273, 31 L. Ed.
205; Crowley v. Christensen, 137 U. S. 86, 91, 11 Sup. Ct. 13, 34 L. Ed. 620; Purity Extract
Co. v. Lynch, 226 U. S. 192, 201, 33 Sup. Ct. 44, 57 L. Ed. 184; Clark Distilling Co. v.
Western Md. Ry. Co., 242 U. S. 311, 320, 321, 37 Sup. Ct. 180, 61 L. Ed. 326, L. R. A.
1917b, 1218, Ann. Cas. 1917b, 845; Seaboard Air Line Ry. v. North Carolina, 245 U. S. 298,
38 Sup. Ct. 96, 62 L. Ed. 299.
As the state has the power above indicated to prohibit, it may adopt such measures as are
reasonably appropriate or needful to render exercise of that power effective. Booth v. Illinois,
184 U. S. 425, 22 Sup. Ct. 425, 46 L. Ed. 623; Silz v. Hesterberg, 211 U. S. 31, 29 Sup. Ct.
10, 53 L. Ed. 75; Murphy v. California, 225 U. S. 623, 32 Sup. Ct. 697, 56 L. Ed. 1229, 41 L.
R. A. (N. S.) 153; and Rast v. Van Deman & Lewis Co., 240 U. S. 342, 364, 36 Sup. Ct. 370,
60 L. Ed. 679, L. R. A.
U. S. 342, 364, 36 Sup. Ct. 370, 60 L. Ed. 679, L. R. A. 1917a, 421, Ann. Cas. 1917b, 455.
And, considering the notorious difficulties always attendant upon efforts to suppress traffic in
liquors, we are unable to say that the challenged inhibition of their possession was arbitrary
and unreasonable or without proper relation to the legitimate legislative purpose.
We further think it clearly follows from our numerous decisions upholding prohibition
legislation that the right to hold intoxicating liquors for personal use is not one of those
fundamental privileges of a citizen of the United States which no state may abridge. A
contrary view would be incompatible with the undoubted power to prevent manufacture, gift,
sale, purchase, or transportation of such articlesthe only feasible ways of getting them. An
assured right of possession would necessarily imply some adequate method to obtain not
subject to destruction at the will of the state.
This seems to be the last word upon the question and we do not deem it necessary to
review the authorities at length, but content ourselves with citing Delaney v. Plunkett, 146
Ga. 547, 91 S. E. 561, L. R. A. 1917d, 926, Ann. Cas. 1917e, 685; Barbour v. State, 146 Ga.
667, 92 S. E. 70; Fitch v. State (Neb.) 167 N. W. 417; State v. Brown (S. D.) 167 N. W. 400;
State v. Certain Intox. Liq. (Utah) 172 Pac. 1050; State v. Fabbri, 98 Wash. 207, 167 Pac.
133, L. R. A. 1918a, 416; City of Seattle v. Brookins, 98 Wash. 290, 167 Pac. 940.
It is also insisted that section 28 of the act violates the fourteenth amendment to the
constitution of the United States, which guarantees to individuals equal protection of the
laws, in that several persons committing the same offense may be subject to different
penalties. We do not deem it necessary to determine this question, for should we hold that the
contention is well founded the rights of petitioner are in no way violated, for the reason that
the punishment adjudged in his case was within the jurisdiction of the justice of the peace in
misdemeanor cases under the general statute, and no one has the right to urge an act as
unconstitutional unless his rights are infringed thereby.
peace in misdemeanor cases under the general statute, and no one has the right to urge an act
as unconstitutional unless his rights are infringed thereby.
It follows from what we have said that the writ must be dismissed, and petitioner
remanded to the custody of the sheriff of Washoe County.
It is so ordered.
____________
42 Nev. 369, 369 (1919) Ex Parte Donell
[No. 2368]
In the Matter of the Application of C. M. DONNELL
for a Writ of Habeas Corpus.
[178 Pac. 23]
Application of C. M. Donell for writ of habeas corpus. Proceeding dismissed, writ
discharged, and petitioner remanded to custody.
The facts in this case are identical with those in the matter of Ex Parte Zwissig, 42 Nev.
360, this day decided by the court, and upon the authority of the opinion in that case it is
ordered that the proceedings herein be dismissed, the writ discharged, and petitioner
remanded to the custody of the sheriff of Washoe County.
____________
42 Nev. 370, 370 (1919) Potter v. Los Angeles & Salt Lake Railroad Co.
[No. 2355]
ROBERT J. POTTER, Respondent, v. LOS ANGELES AND SALT LAKE RAILROAD
COMPANY ( a Corporation), Appellant.
[177 Pac. 933]
1. Appeal and ErrorMatters ReviewableRuling on Motion to Strike Matter from
Pleading.
Under Rev. Laws, 5340, the court on appeal from judgment will review court's ruling on motion to strike
certain affirmative matter pleaded in answer.
2. Master and ServantComplaintSafety Appliance Act.
In brakeman's action for injuries based on federal safety appliance act (U. S. Comp. St., secs. 8605-8612)
and federal employers' liability act (U. S. Comp. St., secs. 8657-8665), complaint held to base plaintiff's
right of recovery on railroad's negligence in having defective automatic coupler, and not on operation of
cars at an excessive speed; the allegation of speed showing necessity of jumping from car after it became
uncoupled.
3. Master and ServantInjury to BrakemanProximate CauseDefective
CouplersExcessive Speed.
In brakeman's action for injuries from use of defective coupler in violation of federal safety appliance act
(U. S. Comp. St., secs. 8605-8612), causing brakeman to jump upon uncoupling of car because of the
excessive speed, the brakeman's contributory negligence in jumping was only a concurring cause of the
injury.
4. Master and ServantInjury to BrakemanDefective CouplerContributory Negligence.
Brakeman, injured in jumping from car after the uncoupling of car because of a defective coupler used in
violation of federal safety appliance act (U. S. Comp. St., secs. 8605-8612), can recover against railroad
notwithstanding his contributory negligence in jumping from car, under federal employers' liability act, sec.
3 (U. S. Comp. St., sec. 8659).
5. Master and ServantInjury to BrakemanAssumption of RiskViolation of Federal
Safety Appliance Act.
In brakeman's action based on federal employer's liability act (U. S. Comp. St., secs. 8657-8665) for
injuries by reason of railroad's use of defective coupler in violation of federal safety appliance act (U. S.
Comp. St., secs. 8605-8612), the defense of assumption of risk held not available to railroad under federal
employers' liability act, sec. 4 (U. S. Comp. St., sec. 8660).
Appeal from Tenth Judicial District Court, Clark County; J. Emmett Walsh, Judge.
Action by Robert J. Potter against the Los Angeles and Salt Lake Railroad Company, a
corporation. Judgment for plaintiff, and defendant appeals. Affirmed.
F. R. McNamee and Leo O. McNamee, for Appellant:
It is clear from the substance of the pleas that they refer only to the second count, and are
not set up as a defense to the whole action. If a plea does not relate to every count, and does
not specify the particular counts to which it does refer, but it is clear from the substance of the
plea what count it in fact refers to, this is sufficient. 31 Cyc. 143. Motions to strike are not to
be encouraged. A motion to strike a paragraph for irregularity should be denied if any portion
of it is relevant or responsive. 31 Cyc. 615, 616. In determining whether certain matter is
irrelevant, reference can be had to that count or defense alone in which such matter appears,
and not to any other count or defense. Berry v. E. L. Moore Co., 48 S. E. 249. The fact that a
defense may have been defectively pleaded in some particulars is not ground for a motion to
strike out, but the proper method of reaching such defects is by demurrer, and a party who
defectively pleads a good defense should be allowed an opportunity to amend his pleading.
De Baker v. Railway Company, 106 Cal. 259. A defective pleading cannot be stricken out by
reason of its defects upon the ground of surplusage. * * * A demurrer would have been the
proper means to have tested the sufficiency of the answer, and the motion to strike out was
properly denied. Pacific Factor Co. v. Adler, 90 Cal. 110.
Any affirmative defense, and especially the defenses of contributory negligence and
assumption of risk, must be affirmatively pleaded by a defendant before he can introduce any
evidence on such affirmative matter at the trial of the cause. Konig v. N.-C.-O. Ry., 36 Nev.
181. Assumption of risk is still a defense to an action brought under the federal employers'
liability act, and the provisions of that act in no way take away this defense. Boldt v. Penn. R.
R. Co., 38 Sup. Ct. 139. The fact that the employee may have been guilty of contributory
negligence shall not bar a recovery, but the damages shall be diminished by the jury in
proportion to the amount of negligence attributable to such employee."
negligence attributable to such employee. In order to preclude a defendant from interposing
the defenses of assumption of risk or contributory negligence, it must appear that the
defective coupling, or other violation of the safety appliance act, contributed to the injury. Act
of March 2, 1893, c. 196, 27 U. S. Stats. L. 531; 6 Fed. Stats. Anno. 752, 753.
Edmon G. Bennett and Chas. E. Barrett, for Respondent:
No cars, either loaded or unloaded, shall be used in interstate commerce which do not
comply with the standard. Safety Appliance Act, 27 Stats. L. 531; U. S. Comp. Stats. 1913,
sec. 8606; 36 Stats. L. 298. The language of the acts of Congress makes it entirely clear that
the liability in damages to employees for failure to comply with the law springs from its being
made unlawful to use cars not equipped as requirednot from the position in which the
employee may be, or the work which he may be doing at the moment he is injured. L. & N. R.
Co. v. Layton, 243 U. S. 617; St. Louis & I. M. R. Co. v. Taylor, 210 U. S. 281; C. B. & Q.
R. Co. v. Williams, 242 U. S. 462; Texas & B. R. Co. v. Rigsby, 241 U. S. 33.
Where a statute for the safety of employees is violated, the doctrine of assumption of risk
has no application. Houston Ry. Co. v. De Walt, 87 Am. St. Rep. 891; Valley S. S. Co. v.
Waltawa, 244 U. S. 202.
The defendant company should have provided automatic couplers for its cars. Atlantic
City R. Co. v. Parker, 242 U. S. 56.
The special answers filed by the appellant were answers to a cause of action stated in two
counts of a complaint. The answer to be good should state facts sufficient to constitute a
defense to both counts of the complaint. Otherwise the answers would be insufficient. Moffatt
v. Roach, 76 Ind. 75; Farman v. Chamberlain, 76 Ind. 381; School Township v. Moore, 80
Ind. 276; City of Newark v. New Jersey, 53 Atl. 294; Copeland v. Copeland, S9 Ind. 29.
Where an answer purports to answer the entire pleading, and is bad as to any one count,
it is bad altogether on demurrer.
Copeland, 89 Ind. 29. Where an answer purports to answer the entire pleading, and is bad as
to any one count, it is bad altogether on demurrer. Greenville v. Greenville Water Co., 125
Ala. 625; Mobile Electric Co. v. Elder, 115 Ala. 138; Hoge v. Herzberg, 141 Ala. 439;
Wallace v. Bear River, 18 Cal. 461; Illinois Central v. Swift, 213 Ill. 307; Falsmouth v.
Shawhan, 107 Ind. 47; Pelty v. Christ Church, 15 Pick. 302; Foster v. Hazen, 12 Barb. 547;
Root v. Hibben, 66 Ind. 247; Estill v. Jenkins, 4 Dana, 75; Case v. Boughton, 11 Wend. 106.
The defenses attempted to be interposed are not allowed under the laws of Nevada. Stats.
1913, p. 137; Stats. 1915, p. 279; Stats. 1917, p. 437.
The second count of the complaint was based upon the acts of Congress, and the answers
stricken out could not constitute a defense. U. S. Comp. Stats. 1916, sec. 8657; U. S. Comp.
Stats. 1913, sec. 8606; La Mere v. Railway, 125 Minn. 159; Nashville R. Co. v. Henry, 158
Ky. 88; Railroad v. Brown, 144 Pac. 1075; Railway v. Layton, 243 U. S. 617; Railway v.
Moore, 243 U. S. 311.
The defendant, in violating the safety appliance act, had no defense. United States v.
Railway, 163 Fed. 517; United States v. International, 174 Fed. 638; Railway v. Taylor, 210
U. S. 281; C. B. & Q. R. Co. v. United States, 220 U. S. 559; Railway v. Williams, 242 U. S.
462.
Potter brought suit to recover damages for personal injury, and, judgment having been
rendered against the railroad company, it has appealed.
1. A motion to dismiss the appeal has been interposed by respondent, upon the ground
that, while the appeal is from the judgment, the error assigned and ruled upon is directed
solely to an order made by the court sustaining a motion to strike certain affirmative matter
pleaded in the answer. The motion must be denied. Section 5340 of the Revised Laws
expressly provides that, upon an appeal from a judgment, the court may review intermediate
orders.
The complaint contains two counts, both of which allege the corporate capacity of the
company; that it was on June 12, 1917, a common carrier by railroad, engaged in interstate
commerce, in that it was transporting passengers and freight in and between the States of
Nevada, California, and Utah; that said company, in the conduct of its business, kept and
maintained shops, yards, and a division point at Las Vegas, Nevada; that on the day
mentioned plaintiff was in the employ of the company as a brakeman, engaged in the
switching of cars which were being used in interstate commerce in the yards of said company
at the division point; that at the time of the alleged injury defendant was operating the cars at
an excessive rate of speed; and that while thus engaged in switching cars plaintiff was injured
through the negligence of the company in not having equipped and maintained in good
working order automatic couplers upon the cars so being used in interstate commerce, which
were being switched in said yards.
The first count pleaded the Nevada workmen's compensation act (Stats. 1913, c. 111), and
that defendant had rejected the same. The second count was substantially the same as the
first, but, instead of pleading the aforesaid act, pleaded the federal safety appliance act (Act
March 2, 1893, c. 196, 27 Stat. 531; U. S. Comp. St. 8605-8612), and the federal employers'
liability act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65; U. S. Comp. St. 8657-8665).
The defendant company filed an answer in which it denied the acts of negligence alleged
in both counts of the complaint, and also set up an affirmative defense of contributory
negligence on the part of the plaintiff in bar to the action, and pleaded that plaintiff had
assumed the risk.
At the time of the trial plaintiff withdrew his first cause of action.
The error assigned on this appeal pertains to an order sustaining a motion made by counsel
for plaintiff to strike from the answer the affirmative defenses of contributory negligence and
assumed risk. The motion to strike these defenses was based upon the ground that, when
a cause of action pleaded in a complaint is founded upon a violation of the federal
statutes, contributory negligence and assumed risk are not defenses and have no proper
place in the answer, and counsel for respondent contend that no error was committed by
the court in striking the said defenses.
strike these defenses was based upon the ground that, when a cause of action pleaded in a
complaint is founded upon a violation of the federal statutes, contributory negligence and
assumed risk are not defenses and have no proper place in the answer, and counsel for
respondent contend that no error was committed by the court in striking the said defenses.
Section 3 of the federal employers' liability act reads:
In all actions hereafter brought against any such common carrier by railroad under or by
virtue of any of the provisions of this act to recover damages for personal injuries to an
employee, or where such injuries have resulted in his death, the fact that the employee may
have been guilty of contributory negligence shall not bar a recovery, but the damages shall be
diminished by the jury in proportion to the amount of negligence attributable to such
employee; provided, that no such employee who may be injured or killed shall be held to
have been guilty of contributory negligence in any case where the violation by such common
carrier of any statute enacted for the safety of employees contributed to the injury or death of
such employee. U. S. Comp. St. 1916, vol. 8, p. 9423.
Section 4 of said act provides:
In any action brought against any common carrier under or by virtue of any of the
provisions of this act to recover damages for injuries to, or the death of, any of its employees,
such employee shall not be held to have assumed the risks of his employment in any case
where the violation by such common carrier of any statute enacted for the safety of employees
contributed to the injury or death of such employee. U. S. Comp. St. 1916, vol. 8, p. 9427.
Counsel for appellant concede the correctness of the general contention made by counsel
for respondent as to the rule of law, but insist that there is nothing in the act which prohibits
the making of the defenses of contributory negligence and assumed risk when the complaint
sets up, as it is asserted is the fact in the case at bar, not only a violation of the federal act, but
also alleges the negligence of the company in operating the cars mentioned in the
complaint at an excessive rate of speed, since it is no violation of a federal statute to
operate trains or cars at an excessive rate of speed.
alleges the negligence of the company in operating the cars mentioned in the complaint at an
excessive rate of speed, since it is no violation of a federal statute to operate trains or cars at
an excessive rate of speed.
2, 3. While we are inclined to the view that the general principle of law contended for by
counsel for appellant is correct, we do not think that the complaint in question brings the case
within the rule. It is clear from the complaint that plaintiff, as a basis of recovery, relies upon
the negligence of the appellant in having a defective automatic coupler upon the car which
was being switched. The allegation as to the speed of the car was, we take it, for the purpose
of showing the necessity for plaintiff's jumping from a car after it had become uncoupled, and
was not pleaded as a cause of action. Conceding, for the purpose of the case, that the plaintiff
was guilty of contributory negligence in jumping from the car, it was only one of the
concurring causes of plaintiff's injury, for the proximate cause was the defective coupler. But
for the defective coupler, the cars would have been under perfect control; they would not
have run at an excessive rate of speed, and there would have been no injury. We think the
language of the court in Otos v. Great Northern Ry. Co., 128 Minn. 283, 150 N. W. 922, is
squarely in point. The court said:
Defendant contends that the proximate cause of plaintiff's injury was, not the defective
condition of the coupling, but his violation of a rule of the employer forbidding employees
going between moving cars. It appears that there was such a rule. there is evidence that in this
yard it had, with the knowledge of the yardmaster, been more honored in its breach than in its
observance. But, whatever may be said of the propriety of plaintiff's act in going between the
cars, it was only one of the concurring causes of plaintiff's injury. The violation of the statute
was one cause of his injury. The violation of the statute was one cause of his injury. Turrittin
v. Chicago, St. P., M. & O. Ry. Co., 95 Minn. 408, 104 N. W. 226; Sprague v. Wisconsin
Cent. Ry. Co., 104 Minn. 58, 116 N. W. 104. This is all that is necessary to create liability.
The statute which abolishes contributory negligence 'would be nullified by calling plaintiff's
act the proximate cause, and then defeating him, when he could not be defeated by
calling his act contributory negligence.
contributory negligence would be nullified by calling plaintiff's act the proximate cause, and
then defeating him, when he could not be defeated by calling his act contributory negligence.
* * * It is only when the plaintiff's act is the sole causewhen defendant's act is no part of
the causationthat defendant is free from liability under the act.' Grand Trunk Western Ry.
Co. v. Lindsay, 233 U. S. 42, 47, 34 Sup. Ct. 581, 582, 58 L. Ed. 838, Ann. Cas. 1914c, 168,
quoting 201 Fed. 844, 120 C. C. A. 166.
The judgment in that case was affirmed by a unanimous court in Great Northern Ry. Co. v.
Otos, 239 U. S. 349, 36 Sup. Ct. 124, 60 L. Ed. 322, where it is said:
Under the instructions of the court, the jury must have found that the defect was the
proximate cause of the injury, as that was made a condition of the plaintiff's right to recover.
If so, the fact that the plaintiff's conduct contributed to the result was not a defense.
It will be seen that the entire question turned upon what was the proximate cause of the
injury.
4. In the case at bar, if the railroad company was negligent in failing to equip and maintain
its cars with automatic couplers in such safe condition as is required by the act of Congress,
and because thereof the cars became uncoupled, such failure was the proximate cause of the
injury, and, notwithstanding the fact that the plaintiff may have been guilty of contributory
negligence in jumping from the car, he can recover.
5. And since section 4 of said act of Congress, supra, provides that an employee shall not
be held to have assumed the risk of his employment in any case where the violation by such
common carrier of any statute enacted for the safety of employees contributes to the injury of
an employee, no error was committed in striking the defense of assumed risk.
Counsel for appellant say in their brief that, had the company admitted in its answer that
the defective coupling was the proximate cause of the injury, there might be some ground for
sustaining the motion. We do not think it matters whether or not the answer admitted the
defective coupling to have been the proximate cause of the injury.
admitted the defective coupling to have been the proximate cause of the injury. It is clear
from the complaint that such was the theory of the pleader; and in view of the denials in the
answer, if plaintiff had failed to establish that fact by his evidence, he could not have
recovered a judgment.
The court did not err in its order striking the defenses of contributory negligence and
assumed risk, and the judgment should be, and is, affirmed.
____________
42 Nev. 378, 378 (1919) Winnemucca State Bank & Trust Co. v. Corbeil
[No. 2356]
WINNEMUCCA STATE BANK AND TRUST COMPANY (a Corporation), Appellant, v. J.
D. CORBEIL, Respondent.
[178 Pac. 23]
1. PartiesRight of Pledgee to Sue in Its Own NameTrustee of Express TrustReal
Party in Interest.
The indorsement and delivery of a note, whether negotiable or non-negotiable, as collateral for the
payment of a debt, enables the pledgee, upon default of pledgor, to maintain an action thereon in its own
name, the pledgee, if not the real party in interest within practice act, sec. 44 (Rev. Laws, 4986), being at
least a trustee of an express trust, within section 45.
2. PartiesReal Party in InterestStatute.
The purpose of practice act, sec. 44 (Rev. Laws, 4986), providing that every action shall be prosecuted in
the name of the real party in interest, is, in view of sections 45, 56, 57, and 59, to relax the strict rules of
the common law, so as to enable those directly interested in the subject-matter of the litigation to maintain
the action.
3. PledgesRight of Pledgee to Sue in Its Own Name.
The general rule is that the pledgor cannot maintain an action on the collateral while the condition is not
performed, and the pledgee of a collateral, where the condition has not been performed, is held to be the
party in interest to maintain an action thereon.
4. Pledgestitle of Pledge.
In case of a note of a third party pledged as collateral security, the general property remains in the
pledgor, and a special property in the note passes to the pledgee, and whatever special interest is necessary
to enable pledgee to exercise the rights guaranteed to him or discharge the obligations imposed upon him
by contract vests in him.
5. PledgesTitle of PledgeeExpress Trusts.
Plaintiff, by taking from debtor payee defendant's note, expressly as collateral security, undertook to
account to debtor, and became the holder of the legal title under an express trust to hold the beneficial
interest or the money collected primarily for itself and secondarily for debtor.
Action by the Winnemucca State Bank and Trust Company, a corporation, against J. D.
Corbeil. Judgement for defendant, and plaintiff appeals. Reversed and remanded.
Warren & Hawkins, for Appellant:
A party with the interest of the plaintiff is a real party in interest within the meaning of the
statute, and is entitled to maintain the action. Consolidated Nat. Bank v. Heverin, 77 Cal.
263; Philbrook v. Superior Court, 43 Pac. 402; Hale v. Harris, 83 N. W. 1046. There is no
objection to the assignment of choses in action to a third person for the purpose of collection,
and in such case the legal title passes so as to entitle the assignee to sue, while the assignor
retains an equitable interest with which the debtor has no concern. Greig v. Riordan, 33 Pac.
913; Stewart v. Price, 67 Pac. 553. The real party in interest, within the meaning of the
provision of the code, is the person who will be entitled to the benefits of the action if
successfulone who is actually and substantially interested in the subject-matter. Gross v.
Heckert, 120 Wis. 314; Jackson v. McGilbray, 46 Okl. 208.
Non-negotiable promissory notes may be transferred by indorsement and delivery to the
same extent as negotiable notes. Norton v. Pistaqua Ins. Co., 111 Mass. 532; Rising v.
Teabout, 35 N. W. 499; Merchants Nat. Bank v. Gregg, 64 N. W. 1052; Brown v. Union
Bank, 62 Miss. 754; White v. Lowe, 7 Barb. 304; Shelley v. Baker, 54 S. E. 653.
Even if plaintiff were not the real party in interest, within the meaning of the statute,
defendant cannot raise the question unless he shows that he would receive some injury if
plaintiff, rather than the payee, were allowed to maintain the action.
the question unless he shows that he would receive some injury if plaintiff, rather than the
payee, were allowed to maintain the action. Herman v. Hecht, 48 Pac. 611; Sturgis v. Baker,
72 Pac. 744; Lodge v. Lewis, 72 Pac. 1008.
L. G. Campbell, for Respondent:
The indorsement of a non-negotiable instrument, in the absence of a statute providing for
such indorsement, does not pass the legal or equitable title. The legal title remains in the
payee of the note, even though the payee has pledged it. Con. Nat. Bank v. Hays, 44 Pac. 469.
The owner of the legal title is the real party in interest. Under the statute, actions must be
brought in the name of the real party in interest. The pledgee, not having the legal title, cannot
maintain the suit. O'Connor v. Irvine, 16 Pac. 236.
The test of real party in interest is whether or not a judgment for or against plaintiff will
protect defendant in the event of another claim on the same contract. 30 Cyc. 82. The action
not being brought in the name of the real party in interest, which fact appeared on the face of
the complaint, a general demurrer was the proper method of raising the question. People v.
Haggin, 57 Cal. 579.
This is an action on a promissory note.
The plaintiff, a domestic banking corporation, alleges in its complaint that the Interstate
Life Insurance Company executed and delivered to the plaintiff its promissory note for
$1,000, and delivered and left with the plaintiff, as collateral security for its payment, that
certain promissory note of the defendant in words and figures as follows, to wit:
$800.00. Winnemucca, Nevada, Nov. 5th, 1915.
Twelve months after date, without grace, I promise to pay to the order of Interstate Life
Ins. Co. at Winnemucca, Nevada, Eight hundred Dollars, in Gold Coin of the United States
of America, of the present standard value, with interest thereon, in like Gold Coin, at the
rate of 6 per cent per annum from date until paid for value received.
the United States of America, of the present standard value, with interest thereon, in like Gold
Coin, at the rate of 6 per cent per annum from date until paid for value received. Interest to be
paid semiannually and if not so paid, when whole sum of both Principal and Interest to
become immediately due and collectible, at the option of the holder of this note. And in case
suit or action is instituted to collect this note, or any portion thereof I promise and agree to
pay, in addition to the costs and disbursements provided by statute, such additional sum, in
like Gold Coin, as the Court may adjudge reasonable, for Attorney's fees to be allowed in said
suit or action.
Interest payable from issuance of license to write policies.
Due Nov. 5th, 1916.
Witness: H. Howard Dunbar. J. D. Corbeil.
That the said promissory note bears on the back thereof 20 cents in canceled United States
revenue stamps, and is indorsed on the back thereof as follows: Interstate Life Insurance Co.
A. W. Stowe, Secy. A. G. Crane, President.
It is further alleged that said note was so indorsed and delivered as security for the
payment of the covenants of the said Interstate Life Insurance Company, and to further secure
the repayment of the sum evidenced by its promissory note; that both notes are due and
unpaid, and that the plaintiff is the legal owner of the defendant's said note, as well as the
holder thereof; and demanded judgment against the defendant for the amount of the note so
pledged.
The district court sustained a general demurrer to the complaint, and ordered the action
dismissed, and rendered judgment in favor of the defendant and against the plaintiff for costs.
The plaintiff appeals.
1. The principal question presented by the demurrer is whether the indorsement and
delivery of a promissory note as collateral security for the payment of a debt enables the
pledgee, upon default of the pledgor, to maintain an action thereon in its own name.
note as collateral security for the payment of a debt enables the pledgee, upon default of the
pledgor, to maintain an action thereon in its own name.
Section 44 of our practice act (Rev. Laws, 4986) provides that every action shall be
prosecuted in the name of the real party in interest, except as otherwise provided in this act.
It is the contention of the respondent that the complaint shows the legal title to the note in
question to be in the payee, and it is the real party in interest, and the only party entitled to
prosecute the action.
Doubtless the object of section 44 of the practice act, says the Supreme Court of the
United States, in construing a similar provision in the New York practice act, was to change
the common-law rule that an action must be brought in the name of the party who has the
legal right, and to substitute for it the rule in equity, but with considerable enlargement. Chew
v. Brumagen, 13 Wall. 497, 20 L. Ed. 663.
2. The purpose of the statute is to relax the strict rules of the common law so as to enable
those directly interested in the subject-matter of the litigation to maintain the action. 20 R. C.
L. 665. This is manifest not only in the language of the statute, but in the construction which
has been given to it by every state that has adopted the new system of procedure. Had there
been nothing more than the requirement of the statute, that every action be brought in the
name of the real party in interest, it might be that the precise rule in equity as to parties might
have been intended; but this cannot be, in view of the other sections of our practice act. Thus
section 56 enacts that all persons having an interest in the subject-matter may be joined as
plaintiffs. Chew v. Brumagen, supra. Section 57 enacts that any person may be a defendant
who has or claims an interest in the controversy adverse to the plaintiffs, or who is a
necessary party to a complete determination and settlement of the question involved therein.
Section 59 enacts that those united in interest must be joined as plaintiffs or defendants,
unless the consent of one who should have been joined as plaintiff cannot be obtained,
when he may be made a defendant.
as plaintiffs or defendants, unless the consent of one who should have been joined as plaintiff
cannot be obtained, when he may be made a defendant. Section 45 enables a trustee of an
express trust to sue in his own name without joining those who have a beneficial interest.
Under the code system, the beneficial claimant or, in the language of the code, the real party
in interest is the proper party plaintiff, and when the plaintiff has an equitable or beneficial
interest in the subject-matter of the litigation he may support an action in his own name.
Overholt v. Dietz, 43 Or. 199, 72 Pac. 695; Van Santvoord, Pl. 74.
3. The general rule is that the pledgor cannot maintain an action on the collateral while the
condition is not performed, and the pledgee of a collateral, where the condition has not been
performed, is held to be the party in interest to maintain an action thereon. Bibb v. Hall, 101
Ala. 79, 14 South. 98; Marine Bank v. Vail, 19 N. Y. Super. Ct. 421; Williams v. Norton, 3
Kan. 295; Best v. Rocky Mtn. Natl. Bank, 37 Colo. 149, 85 Pac. 1124, 7 L. R. A. (N. S.)
1036; Wheeler v. Newbould, 16 N. Y. 396; note 23, 64 L. R. A. 617.
The transaction stated in the complaint is conceded to be in the nature of a pledge, and the
rights and liabilities of the parties are to be determined by the law applicable to the pledgee of
property of this character.
4. It is a well-settled rule of law relating to this class of bailments that the general property
in the pawn remains in the pledgor, and a special property therein passes to the pledgee, and
whatever special interest or interests in the estate in the pawn is necessary to enable the
pledgee to exercise the rights guaranteed to him or discharge the obligation imposed upon
him by the contract vests in him. The contract or pledge exists in law as well as equity, and
that by operation of law the pledgee takes, not a lien only, which is merely a right to retain
until the debt, in respect to which the lien was created, has been satisfied, but a propertyan
ownership in the property pledged. White v. Phelps, 14 Minn.
27 (Gil. 21), 100 Am. Dec. 190; Story on Bailments, sec. 93.
The purpose of the pledge in this case was that the pledgee might reimburse himself for his
debt when it becomes due and remains unpaid. This can only be done by converting the
pledge into money. This, then, he has a right to do in a bona-fide manner, and the contract
assigns him such a property in the pledge as will enable him to do it. Whether it is a note or
goods and chattels makes no differencethe property passes. White v. Phelps, supra.
Applying these principles to the cause of action stated in the complaint, it is not easy to see
why, if the plaintiff is not the real party in interest, it was not at least a trustee of an express
trust. The indorsement and delivery of the note, though expressly stated to be for a collateral
security, gave plaintiff the entire legal interest in the note. The indorsement and delivery of
the note enabled the plaintiff to employ the entire note for the payment of its debt. The right
of the insurance company are not concurrent with those of the plaintiff. They are subordinate.
The insurance company has nothing to get from the note until the plaintiff's claim be entirely
satisfied. By its indorsement and delivery of the note it substituted the plaintiff in its place to
demand and receive payment of the note. Surely it had no right to demand anything from the
plaintiff. How, then, had it any real interest in the note at the commencement of the action? It
is true it had an interest in what the plaintiff might collect, but that is a different thing from an
interest in the note itself.
5. And the plaintiff, by taking the note expressly as a collateral security, undertook to
account to the insurance company for the property assigned. It became the holder of the legal
title under an express trust to hold the beneficial interest or the money collected primarily for
itself, and secondarily for the indorser. Chew v. Brumagen, supra.
The right of the plaintiff to maintain this action arises from its alleged interest in the
subject of the action, the note, and in obtaining the relief demanded.
from its alleged interest in the subject of the action, the note, and in obtaining the relief
demanded. This court has had occasion to hold that the pledgee of a negotiable note as
collateral security may maintain a suit in his own name as the real party in interest. Haydon v.
Nicoletti, 18 Nev. 290, 3 Pac. 473. But from this it cannot be successfully urged that a party
holding a non-negotiable note, having the indorsement and delivery by the payee to him of
the note, cannot maintain an action for its payment. Rising v. Teabout, 73 Iowa, 419, 35 N.
W. 499; Norton v. P. I. Co., 111 Mass. 532; Brown v. Richardson, 14 N. Y. Super Ct. 402;
Prindle v. Caruthers, 15 N. Y. 425; 7 Cyc. 813.
Entertaining these views, we are clearly of the opinion that, whether the note declared on
be negotiable or non-negotiable, the complaint states a cause of action. The judgment,
therefore, must be reversed, and the cause remanded for further proceedings.
Ducker, J., did not participate in the consideration of this case.
____________
42 Nev. 386, 386 (1919) State v. Park
[No. 2322]
STATE OF NEVADA, Appellant, v. THOMAS S.
PARK, Respondent.
[178 Pac. 389]
1. Constitutional LawClass Legislation.
Stats. 1915, c. 135, amending act of March 17, 1911, by adding thereto section 375 1/2, providing that it
shall be unlawful for any person to have in his possession any hide from which the ears have been removed,
or the brand obliterated, cannot be declared invalid by the supreme court, for the reason that it is unjust and
oppressive, in that the owner and thief are placed in the same class.
2. Constitutional LawWisdom and Expediency of StatuteLegislative Question.
The justice, wisdom, and expediency of laws are within the exclusive province of the legislature.
3. Criminal LawDefining OffensesPower of Legislature.
Acting within constitutional bounds, the legislature is clothed with unlimited and absolute power to
define statutory offenses and prescribe punishment for their violation, and may penalize acts which before
were innocent.
4. Criminal LawPolice Power.
The legislature may, in the exercise of the police power when public interests demand it, define and
declare public offenses the effect of which restricts or regulates the use and enjoyment of private property.
5. Constitutional LawPolice PowerPersonal and Property Rights.
A statute enacted for the prevention of a public offense which the legislature deems essential to declare to
promote the public good must be reasonably adapted to attain that end without unnecessarily invading
personal or property rights.
6. Constitutional LawDue Process of Law.
or the brand obliterated, deprives a person of his property without due process of law against the guaranties
of section 1, article 14, of the federal constitution, and section 8, article 1, of the state constitution.
7. AnimalsObliterating BrandsOffense.
or the brand obliterated, is an unnecessary invasion of property rights, and therefore an unreasonable
exertion of the police power.
42 Nev. 386, 387 (1919) State v. Park
Thomas S. Park was charged with having in his possession a hide of a heifer, from which
hide the ears had been removed. From an order sustaining demurrer to information, the State
appeals. Affirmed.
Geo. B. Thatcher, Attorney-General; Edw. T. Patrick, Deputy Attorney-General, Wm.
McKnight, Deputy Attorney-General, E. P. Carville, District Attorney, and C. A. Cantwell,
Deputy District Attorney, for Appellant:
The legislature has the power to define what acts shall constitute criminal offenses, what
penalty shall be inflicted upon offenders, and generally to enact all laws deemed expedient for
the protection of public and private rights and the punishment of public wrongs, the
expediency of making any such enactments being a matter of which the legislature is the
proper judge. So long as its enactments do not infringe constitutional rights and privileges,
express or necessarily implied, its will is absolute. It may, acting within these limits, make
acts criminal which before were innocent. This in its nature is a legislative power which, by
the constitution of each state, is all but universally committed to the discretion of the
legislative body. 8 R. C. L. 57.
Rights of property, like all other social and conventional rights, are subject to regulation
under the police power, and such reasonable limitations may be imposed as will prevent
injury to others. Commonwealth v. Alger, 7 Cush. 53.
Because the economic conditions of a country, due to the rapid strides toward a more
complete and perfect civilization, are constantly changing, it would seem that it has been and
is impossible to define police power in so many words. 8 Cyc. 863.
Curler & Castle, for Respondent:
There are limitations to the police power, and it is necessary to the validity of police
regulations that they should not violate any provision of the federal or state constitution;
interfere with the exclusive jurisdiction of Congress; unlawfully discriminate against
individuals or classes; be unreasonable; invade private rights of liberty or property
unnecessarily, or be unrelated to some one or more of the objects for the preservation of
which this power may be exercised, but proper and adapted to that purpose. Am. & Eng.
42 Nev. 386, 388 (1919) State v. Park
Congress; unlawfully discriminate against individuals or classes; be unreasonable; invade
private rights of liberty or property unnecessarily, or be unrelated to some one or more of the
objects for the preservation of which this power may be exercised, but proper and adapted to
that purpose. Am. & Eng. Ency. Law (2d Ed.) 935; State v. Redmon, 14 L. R. A. 229.
The constitutional guaranty that no person shall be deprived of his property without due
process of law may be violated without the physical taking of property for public or private
use; * * * and hence any law which destroys it or its value, or takes away any of its essential
attributes, deprives the owner of his property. In Re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636.
The right of property is a fundamental right, * * * the protection of which is one of the most
important objects of government. * * * It refers * * * to the right to acquire and possess the
absolute and unqualified title to every species of property recognized by law. * * * Within it
are included the right to acquire, hold, enjoy, manage, and dispose of property, as well as the
right to make contracts both in reference thereto and generally. 6 R. C. L. 261.
That there is a limit to the police power which the courts must, when called upon in a
judicial proceeding, ascertain and declare, is as well settled as the existence of the power
itself. * * * If, therefore, a statute purporting to have been enacted to protect the public health,
the public morals, or the public safety, has no real or substantial relation to those objects, or is
a palpable invasion of rights secured by the fundamental law, it is the duty of the courts so to
adjudge and thereby give effect to the constitution. State v. Williams, 146 N. C. 618.
The statute under discussion does not in some plain, appreciable and appropriate manner
tend toward the accomplishment of the object for which the power is exercised. But, under
the pretense of prescribing a police regulation, the state cannot be permitted to encroach
upon any of the rights of the citizens which the constitution intended to secure against
abridgement."
42 Nev. 386, 389 (1919) State v. Park
encroach upon any of the rights of the citizens which the constitution intended to secure
against abridgement. In Re Jacobs, supra; Watertown v. Mayo, 109 Mass. 315. The courts
have always distinguished the ordinary pursuits and callings in life from those which are
inherently wrong and harmful. State v. Williams, 17 L. R. A. 299.
So, a police regulation, correctly speaking, is no more legitimate than a law in any other
field if it in fact violates any principle entrenched in the constitution. State v. Redmon,
supra; Marymont v. Nevada State Banking Board, 111 Pac. 295; 6 R. C. L. 258, par. 243.
By the Court, Ducker, J.:
An information was filed against the respondent by the district attorney of Elko County
under section 375 1/2 of an act of the legislature of this state, entitled An act to amend an act
entitled An act concerning crimes and punishments, and repealing certain acts relating
thereto,' approved March 17, 1911, and adding another section thereto, to be numbered 375
1/2, approved March 15, 1915. Stats. 1915, p. 155.
The act, which consists solely of said section 375 1/2, reads:
It shall be unlawful for any person to have in his possession any hide of any cow, bull,
steer, calf or heifer, from which hide the ears have been removed * * * or the brand
obliterated, defaced, or disfigured so that same cannot be readily recognized, and any person
having such hide in his possession shall be deemed guilty of a felony, and upon conviction
thereof shall be punished by imprisonment in the state prison for any term not less than one
year nor more than five years.
The information charges that the defendant, on the 3d day of June, A. D. 1917, or
thereabouts, and before the filing of this information, at the county of Elko, State of Nevada,
did then and there wilfully, unlawfully and feloniously have in his possession a hide of a
heifer, from which said hide the ears had been removed, all of which is contrary to the
statute in such cases made and provided and against the peace and dignity of the State of
Nevada.
42 Nev. 386, 390 (1919) State v. Park
which is contrary to the statute in such cases made and provided and against the peace and
dignity of the State of Nevada.
A demurrer was interposed to the information upon the grounds:
First, that the facts stated in said information do not constitute a public offense; and
Second, that the facts stated in said information do not constitute a public offense in this,
that the act of the legislature, entitled An act to amend an act entitled An act concerning
crimes and punishments, and repealing certain acts relating thereto,' approved March 17,
1911, and adding another section thereto, to be numbered 375 1/2, is unconstitutional and
void.
The district court sustained this demurrer and made an order allowing the respondent to go
without bail and releasing the sureties on his bail bond from further liability.
From this order sustaining the demurrer, the state appeals. The constitutionality of the act
of the legislature under which the information is drawn is thus before this court for
determination.
Respondent insists that this act comes in conflict with section 1 of the fourteenth
amendment to the constitution of the United States, which provides that
No state shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any state deprive any person of life, liberty, or
property without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
He asserts that the statute goes beyond the legitimate bounds of the police power of the
state. He contends that the law is invalid in this respect, because it unnecessarily restricts the
use of property in hides of live stock in this state to such an extent as to destroy its value for
any practical use, and therefore deprives him of his property without due process of law.
There is no ground for dissent from the conclusion that in this enactment the evil sought
to be reached is the larceny of cattle.
42 Nev. 386, 391 (1919) State v. Park
that in this enactment the evil sought to be reached is the larceny of cattle. Its purpose is
obvious from the wording of the statute and the conditions prevailing in this state. The
business of raising cattle is one of the principal industries of the state, and has to do with
property of a kind commonly subject to the crime of larceny. Its value, the ease with which it
can be moved from one locality to another, and its identity, destroyed by killing and skinning
the animal, or by changing, mutilating, or removing the marks and brands, furnish the
inducement for thieves. Particularly is the larceny of cattle a common crime in Nevada,
where, as in other grazing states, large numbers of stock wander over the wide expanses of
range lands, unkept by herdsmen, and often unseen by the owner or his agents for long
periods of time during the grazing season of the year.
These range conditions create favorable opportunities for the theft of cattle, as detection is
difficult and often impossible, and the loss to stockmen is increased by the resultant acts of
larceny.
When a stolen animal is killed it loses all marks of identity as soon as the hide bearing the
earmarks and brand is removed. The legislature, recognizing these conditions and the
difficulty that generally follows in proving identity and ownership, passed the enactment
under consideration for the purpose of supplementing the law of larceny of cattle.
That the statute is extremely drastic in its provisions cannot be denied. Acts theretofore
generally innocent and properly and usefully exercised over property in hides of cattle have
been declared to be a felony, and punishment prescribed. The mere possession of the hide of
any cow, etc., with the ears or brand removed or changed as described in the statute, property
inherently harmless and a valuable product of the cattle-raising business, is made a felony.
There are no exceptions made or guilty intent required. The owner and the thief are placed in
the same class by possession of the proscribed hide.
42 Nev. 386, 392 (1919) State v. Park
1. While we may consider the statute unjust and oppressive in these respects, we may not,
for such reasons, declare it invalid.
2-4. The justice, wisdom, and expediency of laws are within the exclusive province of the
legislature of the people acting in a representative capacity. Acting within constitutional
bounds the legislature is clothed with unlimited and absolute power to define statutory
offenses and prescribe punishment for their violation, and in the exercise thereof may
penalize acts which before were innocent. In the exercise of the police power it may likewise,
when the public interests demand it, define and declare public offenses, the effect of which
restricts or regulates the use and enjoyment of private property.
This power properly exercised does not violate any of the personal or property rights
guaranteed by the federal and state constitutions upon the recognized principle that an
implied obligation rests upon every property holder to use it without injury to the rights of the
community or to the equal property rights of others. Mugler v. Kansas, 123 U. S. 623, 8 Sup.
Ct. 273, 31 L. Ed. 205; Commonwealth v. Alger, 7 Cush. (Mass.) 53.
5. But a statute enacted for the prevention of a public offense which the legislature deems
essential to declare to promote the public good must be reasonably adapted to attain that end
without unnecessarily invading personal or property rights, before it can be held a valid
exercise of the police power. The statement of a rule which has been sanctioned by the weight
of authority, and which appeals to us as a clear and logical expression of the elements to be
weighed in reaching a correct conclusion as to the limits of the police power, is stated in 22
Am. & Eng. Ency. Law (2d Ed.) p. 938:
In order that a statute or ordinance may be sustained as an exercise of the police power,
the courts must be able to see that the enactment has for its object the prevention of some
offense or manifest evil, or the prevention of the public health, safety, morals, or general
welfare, and that there is some clear, real, and substantial connection between the
assumed purpose of the enactment and the actual provisions thereof, and that the latter
do in some plain, appreciable, and appropriate manner tend towards the accomplishment
of the object for which the power is exercised."
42 Nev. 386, 393 (1919) State v. Park
welfare, and that there is some clear, real, and substantial connection between the assumed
purpose of the enactment and the actual provisions thereof, and that the latter do in some
plain, appreciable, and appropriate manner tend towards the accomplishment of the object for
which the power is exercised.
The purpose of the enactment may be conceded to be the prevention of the larceny of
cattle, and there is a plain substantial relation between its provisions and the object sought to
be attained. But the effectiveness of the actthat is, the extent to which its provisions are
designed to accomplish its purposewhen closely scanned is doubtful. And while the court
may not substitute its judgment for the very extensive discretion of the lawmaking body in
this regard, except in cases where it is plainly apparent that an act is noneffective, we may
weigh this doubtful element in connection with the interdiction which, we believe, the act
lays upon the use and enjoyment of private property.
Counsel insists that the provisions of the act will put an end to the killing of cattle in this
state and the subsequent mutilation of hides to prevent identification by forcing thieves either
to preserve the evidence of their larceny or force them to do entirely away with the hides thus
furnishing evidence of their guilt. But it seems quite as reasonable to conclude that the act,
instead of causing larcenies of this character to be abandoned or diminished to any great
extent, would persuade the thief to choose the lesser of the three incriminating circumstances
stated, and destroy the hide.
A thief as a rule does not intentionally retain evidence of the crime in his possession,
unless it be the property for which the crime is committed or means for its commission.
Especially is he less liable to do so when such possession is in itself a felony as this act
provides.
Cattle are stolen for the value of the carcass, and not for the hides, which sometimes
contain marks of identification other than the artificial ones of earmarks and brands.
42 Nev. 386, 394 (1919) State v. Park
brands. Consequently the more effectively the latter are destroyed the less is the risk of
detection. The possession of a slaughtered animal without the hide may or may not be some
evidence of guilt, depending entirely on other circumstances, but, even so, this is an element
of risk always present in larcenies of this kind when such method of destroying evidence is
pursued, and is not likely to be avoided because other methods are made felonious.
6. Does this statute deprive a person of his property without due process of law against the
guaranties of section 1, article 14, of the federal constitution, and section 8, article 1, of the
constitution of this state? We are of the opinion that it does. True, the statute under
consideration does not work an active appropriation of hides from the owner, but it limits
their use to an extent that destroys their value.
The inception of private property was in its use, and its value may be said to end there.
We acquire property for its use and enjoyment, and if these are denied us it is barren of an
essential attribute. Property can be as effectually destroyed by legislation limiting or
prohibiting its use as by annihilating the substance or structure of the thing itself. 6 Ruling
Case Law, pp. 196, 197, and cases there cited.
Hides of cattle constitute property and are a valuable product of the cattle-raising business,
which is one of the principal industries in this state. Rawhide is used in a variety of ways by
stockmen and others in making bridle-reins and lariats, and in making and repairing various
kinds of ranch equipment. Aside from the uses mentioned and which are sometimes crude, it
is true, but by no means obsolete in this state, it is used for covering saddle trees, and, when
converted into leather, for fully equipping the saddle. When converted into leather by the art
of tanning its uses are many and diversified, and the manufacture of leather is a very
important industry of the country.
42 Nev. 386, 395 (1919) State v. Park
It is clear from the restrictions laid upon hides of the animals mentioned in the statute that
they cannot be utilized for any of these purposes in this state without violating its provisions
and subjecting the possessor to the penalty of a felony. And it is difficult to perceive how they
can be used to obtain any benefit from the product, except by shipping it out of the state, for
to devote the hide to any other use whatever would necessarily involve the removal of the
ears and mutilation of the brand.
7. This appears to us to be an unnecessary invasion of property rights, and therefore an
unreasonable exertion of the police power. It is not a regulation of the use of property but a
restriction that virtually amounts to a prohibition of its use without effecting proportionate
ends conducive to the public welfare. Admittedly the number of hides mutilated for the
purpose of evading detection for the crime of larceny are comparatively small to the great
volume of hides legitimately taken from cattle and from which the ears and brands are
removed or the latter obliterated that the hide may be converted into articles of trade and used
in various other ways. The instances where hides are mutilated are occasional and secret,
while the necessity for doing so to devote them to useful purposes in fashioning and
manufacturing articles of merchandise is general and universal. But because hides may be
disfigured occasionally, to destroy evidence of larceny of cattle, the statute entirely prohibits
the use of hides in this state. To prevent a few from illegal practices the many are deprived of
the use of property.
The case at bar must be distinguished from those in which the property proscribed is
harmful in its nature or tendency, such as intoxicating liquors, opium, and the like, the use of
which on account of their recognized noxious qualities may be entirely prohibited. The
preservation of the public health and public morals is vitally essential to the health and vigor
of the body politic, and by the law of self-preservation embodied in the police power it
may destroy anything which tends to undermine them.
42 Nev. 386, 396 (1919) State v. Park
by the law of self-preservation embodied in the police power it may destroy anything which
tends to undermine them.
Counsel for appellant cite the case of State v. Brooken, 19 N. M. 404, 143 Pac. 479, L. R.
A. 1915b, 213, Ann. Cas. 1916d, 136. In this case the court held constitutional a statute
which makes it a misdemeanor to hold under herd or otherwise interfere with the freedom of
calves of neat cattle which are less than seven months old, except such young animals be
accompanied by their mothers. The court held that the statute did not violate the state
constitution securing to all persons the rights of acquiring, possessing, and protecting
property. The court said:
The act neither denies the right to acquire, possess, nor protect property. It simply
provides regulations which, under the peculiar conditions prevailing in this state, must be
held reasonable for the exercise and enjoyment of the constitutional guaranties in this regard.
By the New Mexico statute the owner of calves is not deprived of his property, nor is its
use of salability affected in an appreciable way. He is simply required not to hold calves from
their mothers until after they have reached a certain age. This is a reasonable regulation under
the conditions existing in that state conducive to the larceny of young calves.
The case is easily distinguished from the case before us, wherein the statute considered
prevents hides of cattle from being handled in this state at any time in a manner clearly
necessary to derive any benefit from them, except such as may be obtained by sending them
out of the state.
If the New Mexico statute required hides taken from cattle to be kept intact in some
conspicuous place for a certain time, as was provided by a former statute of Nevada repealed
by the legislature of 1913, the case of State v. Brooken would be more in point, but it has no
application in this case.
42 Nev. 386, 397 (1919) State v. Park
We conclude that the act of the legislature of this state, entitled An act to amend an act
entitled An act concerning crimes and punishments, and repealing certain acts relating
thereto,' approved March 17, 1911, and adding another section thereto, to be numbered 375
1/2, approved March 15, 1915, is unconstitutional and void.
The order of the district court sustaining the demurrer to the information is affirmed.
____________
42 Nev. 397, 397 (1919) State v. Reno Brewing Co.
[No. 2367]
STATE OF NEVADA, Ex Rel. GEO. B. THATCHER, Attorney-General, Respondent, v.
THE RENO BREWING COMPANY (Incorporated), Appellant.
[178 Pac. 902]
1. StatutesGiving Effect to All PartsPresumption.
The presumption is that the framers of an act intended to give force and effect not only to the main
legislative intent, but also to its several parts, words, clauses, and sentences.
2. StatutesForce and Effect of All Parts of StatutePresumption.
The presumption that the framers of an act intended not only to give effect to the main legislative intent,
but also to its several parts, words, clauses, and sentences, is removed only when it appears that effect
cannot be given to the paramount purpose unless particular words or clauses are rejected or without
limiting or expanding their literal import.
3. Intoxicating LiquorsRestricting or Enlarging Meaning of Statute.
The sentence, and all malt or brewed drinks, whether intoxicating or not, shall be deemed malt liquors
within the meaning of this act, in prohibition law, sec. 1, cannot be adjudged out of the act, or restricted or
enlarged in its plain signification, unless, after exhausting every legitimate method of construction, it is
found irreconcilable with the scope and purpose of the act or void for constitutional reasons.
4. Intoxicating LiquorsMalt Liquor.
Sierra Beverage, containing malt and one-tenth per cent alcohol, is, whether intoxicating or not, a
liquor, within prohibition law, sec. 1, providing that all malt or brewed drinks, whether intoxicating or not,
shall be deemed malt liquors within the meaning of this act.
5. Intoxicating LiquorsExpress Mention and Implied Exclusion.
The phrase, any other intoxicating drink, mixture or preparation of like nature, which follows the
specific enumeration of certain named liquors in prohibition law, sec. 1, instead of limiting the class of
liquor enumerated, described another merely by their intoxicating quality.
6. Intoxicating LiquorsStatuteConstruction.
The phrase, any other intoxicating drink, mixture or preparation of like nature, which follows the
specific enumeration of certain named liquors in prohibition law, sec. 1, is not controlled or qualified by
the last clause of said section with reference to beverages containing one-half per cent alcohol being
spirituous liquors.
7. Intoxicating LiquorsStatuteConstitutionality.
Prohibition law, sec. 1, providing that all malt or brewed drinks, whether intoxicating or not, shall be
deemed malt liquors within the meaning of this act, does not contravene the state or federal constitution.
8. Intoxicating LiquorsSuppressing Nonintoxicating Liquors.
The power exercised through appropriate legislation by the legislature, or people acting in a legislative
capacity, to suppress nonintoxicating liquors, is established beyond question, such power being incidental
to the power to entirely prohibit traffic in, and consumption of, intoxicating liquors.
9. Intoxicating LiquorsCommon NuisanceInjunctionLiquors.
The term intoxicating liquors, as used in prohibition law, sec. 14, making place where such liquors are
manufactured, stored, sold, etc., public nuisances, is, when said section is considered together with sections
6 and 17, to be taken as used interchangeably with the word liquors in section 1, and district court had
jurisdiction to enjoin defendant brewing company from manufacturing and selling Sierra Beverage,
although said beverage is not intoxicating.
Action by the State, on relation of Geo. B. Thatcher, Attorney-General, against the Reno
Brewing Company, Incorporated. From an order granting an injunction pendente lite,
defendant appeals. Order of Supreme Court modifying injunction vacated and set aside,
and injunction as originally granted continued in full force and effect.
James T. Boyd, and Harlan L. Heward, for Appellant:
Before the injunction was issued by the lower court, it should have clearly appeared from
the complaint that the liquor complained of as being manufactured was an intoxicating
liquor; and if it did not so appear, the court was without jurisdiction or power to issue the
injunction, and the same should be set aside.
the liquor complained of as being manufactured was an intoxicating liquor; and if it did not
so appear, the court was without jurisdiction or power to issue the injunction, and the same
should be set aside.
The beverage in question contains one-tenth of one per cent of alcohol by volume, and it is
not an intoxicating liquor. The existence of a right violated is a prerequisite to the granting
of an injunction. Where it is clear that the complainant does not have the right that he claims,
he is not entitled to an injunction, either temporary or perpetual, to prevent a violation of such
supposed right. 22 Cyc. 749. Unless the malt liquor contains alcohol, it is not a malt liquor.
The mere fact that a liquid contains malt does not bring it within any definition of the words
malt liquor,' which can be found in any recognized dictionary, text-book, or definition given
by any court. State v. Hemrich, 161 Pac. 81. * * * It seems to me that the quantity of
alcohol in this drink is too negligible to be classed as an alcoholic drink. Fuller v. Jackson,
30 L. R. A. 1078.
The statute should be given a construction that will carry out the intention of the
legislature. The court should look to the evil that was intended to be remedied, and give such
a fair and just interpretation to the statute as will effect the purpose of the enactment. The title
of the act may be used very properly in arriving at the intention or spirit of the act. A fair
interpretation would be that it was an effort on the part of the legislature to prohibit the sale,
gift or barter of liquors which the court would take judicial notice of as being intoxicating, or
which might be shown as a matter of fact to be intoxicating. This seems obvious from the use
of the words and other intoxicating drinks, mixtures, or preparations. I do not think the
legislature can prohibit the sale or use of any article whose sale or use involves no danger to
the general public. * * * The food, the drink, the life of the individual * * * can be abridged
or changed by the majority speaking through the legislature only when the public safety, the
public health, or the public protection requires it.
the public health, or the public protection requires it. * * * But the legislature never intended
such a sweeping prohibition. The use of intoxicating liquors as a beverage was the evil, and
the statute must be read in the light thereof. Intoxicating Liquor Cases, 37 Am. Rep. 284.
The act specifies the quantity of alcohol that is considered deleterious, and prohibits the
sale of certain liquors on account of their alcoholic content. An interpretation that would
stretch the prohibition any farther would go beyond the spirit of the act and the legislative
intent as expressed therein. It is not believed that the law, or lawmakers or electors, intended
to permit the sale of one kind of liquor which contained less than one per cent alcohol, and to
permit the sale of another and equally harmless liquor (malt) which contained no greater
quantity of alcohol. * * * A statute should receive such consideration, if possible, without
doing violence to its terms, as will render its provisions consistent and in harmony with each
other, and at the same time give effect to the real purpose and intent of the enactment,
People v. Strickler, 25 Cal. App. 67; City of Bowling Green v. McMullen, 122 S. W. 823.
L. B. Fowler, Attorney-General, and Geo. B. Thatcher, for Respondent.
Brown & Belford, Amici Curiae:
The prohibition act is to be regarded as an exercise of the police power of the state. It is to
be liberally construed, so that its purposes may be attained and effectively accomplished. The
regulation of the liquor traffic has always been within the recognized power of the state as a
means of promoting the public health, safety, and welfare. Section 23 of the act expressly
recognizes this and provides its own rule of interpretation. Such a statutory declaration is not
uncommon, and it removes the act from the strict construction that is applied to penal
statutes.
is applied to penal statutes. State v. Hemrich, 161 Pac. 81.
The police power of the state over the liquor traffic and its incidents is plenary; it extends
to its complete and absolute prohibition. Its exercise does not contravene any of the
guaranties of the state or federal constitution. Purity Extract Co. v. Lynch 226 U. S. 192, 57
L. Ed. 187; Eiger v. Garrity, 38 Sup. Ct. Rep. 300; In Re Crane, 151 Pac. 1006; Clark Dist.
Co. v. Western Maryland Co., 242 U. S. 311; State v. Hemrich, supra.
The right to prohibit the sale, manufacture or use of intoxicating liquors includes the right
to employ such means, methods, or agencies as have any reasonable relation to the main or
dominating purpose of the act. Purity Extract Co. v. Lynch, supra; Freund, Police Power, sec.
220.
The so-called near-beers have been recognized by the courts as one of the most obvious
means that could be adopted to facilitate the evasion and violation of the prohibitory laws. Ex
Parte Lockman, 110 Pac. 255; State v. Danneberg, 66 S. E. 301; Brown v. State, 152 Pac.
580.
If the liquor comes within the definition of the prohibited beverages, as set forth by the
legislature, the fact that it is nonintoxicating may not exempt it from the act. 23 Cyc. 57, 58;
People v. Kinhey, 83 N. W. 147; State v. Intoxicating Liquors, 41 N. W. 6; State v.
O'Connell, 58 Atl. 60; Fuller v. Jackson City, 52 South. 876; Douglas v. State, 52 N. E. 238;
State v. Frederickson, 63 Atl. 535; Pennell v. State, 123 N. W. 115; Ex Parte Lockman, supra.
Medicinal preparations, cooking essences, and the like, have a distinctive meaning that has
been recognized by the courts as exempting them from the operation of the prohibitory laws.
23 Cyc. 58; Freund, Police Power, sec. 221.
The expression any other intoxicating drink is not intended to limit the class which
precedes it, but to add another class of liquors, not specifically enumerated, to the
prohibition of the act.
another class of liquors, not specifically enumerated, to the prohibition of the act. State v.
Hemrich, supra.
Arthur F. Lasher, Amicus Curiae:
A statute prohibiting the sale of malt liquors should be construed to prohibit the sale of
nonintoxicating liquors, and the amount of alcohol contained in said malt liquors is
immaterial. State v. Lebrecque, 97 Atl. 747; State v. York, 74 N. H. 125; Moss v. State, 4
Okl. Crim. 247; Etter v. State, 4 Okl. Crim. 237; Bradshaw v. State, 76 Ark. 562; Siebert v.
State, 121 Ark. 258; Purity Co. v. Lynch, 56 South. 316; Reyfelt v. State, 73 Miss. 415;
Edwards v. City, 95 Miss. 148; Fuller v. City of Jackson, 97 Miss. 237; Sawyer v. Botti, 27 L.
R. A. 1007; State v. Stickle, 151 Iowa, 303; Berner v. McHenry, 169 Iowa, 483; Feibelman v.
State, 130 Ala. 122; Dinkins v. State, 149 Ala. 49; Lambie v. State, 151 Ala. 86; State v.
Frederickson, 101 Me. 37; Luther v. State, 120 N. W. 125; People v. Nordine, 201 Ill. App.
70.
This is an appeal from an order of the district court granting an injunction pendente lite,
enjoining the appellant, the Reno Brewing Company, from keeping or maintaining a building
or buildings at or in the vicinity of 990 East Fourth Street, in Reno, Nevada, for the
manufacturing, storing, selling, vending, or giving away or furnishing a malt or brewed drink
commonly called Sierra Beverage, or any other beverage or malt or brewed drink of like
kind or character.
The action was instituted in the district court on the relation of Geo. B. Thatcher, the then
attorney-general of Nevada, under sections 14 and 17 of the prohibition law of this state,
which reads:
Sec. 14. All houses, buildings, club rooms and places of every description, including drug
stores, where intoxicating liquors are manufactured, stored, sold or vended, given away, or
furnished contrary to law (including those in which clubs, orders or associations sell, barter,
give away, distribute or dispense intoxicating liquors to their members, by any means or
device whatever, as provided in section six of this act) shall be held, taken and deemed
common and public nuisances.
their members, by any means or device whatever, as provided in section six of this act) shall
be held, taken and deemed common and public nuisances. And any person who shall
maintain, or shall aid or abet, or knowingly be associated with others in maintaining such
common and public nuisance, shall be guilty of a misdemeanor, and upon conviction thereof
shall be punished by a fine of not less than one hundred nor more than one thousand dollars,
and by imprisonment in the county jail not less than thirty days nor more than twelve months
for each offense, and judgment shall be given that such house, building or other place, or any
room therein, be abated or closed up as a place for the sale or keeping of such liquors contrary
to law, as the court may determine.
Sec. 17. The commissioner, his agents and deputies, and the attorney-general, prosecuting
attorney, or any citizen of the county where such a nuisance as is defined in section fourteen
of this act exists, or is kept or maintained, may maintain a suit in equity in the name of the
state to abate and perpetually enjoin the same, and courts of equity shall have jurisdiction
thereof. The injunction shall be granted as the commencement of the action and no bond shall
be required. * * *
Section 1 of said act provides as follows:
Section 1. The word liquors' as used in this act shall be construed to embrace all malt,
vinous or spirituous liquors, wine, porter, ale, beer or any other intoxicating drink, mixture or
preparation of like nature; and all malt or brewed drinks, whether intoxicating or not, shall be
deemed malt liquors within the meaning of this act; and all liquids, mixtures or preparations,
whether patented or not, which will produce intoxication, and all beverages containing so
much as one-half of one per centum of alcohol by volume, shall be deemed spirituous liquors,
and all shall be embraced in the word liquors,' as hereinafter used in this act.
In paragraph 3 of the complaint it is alleged that
Said defendant owns, operates, and maintains buildings within said city of Reno, county
of Washoe, state aforesaid, and at 990 East Fourth Street, where it manufactures, stores,
and threatens to sell or vend, give away or furnish, contrary to law, certain malt or
brewed drink, under the name of 'Sierra Beverage,' containing approximately one-tenth
{1J10) of one percent {1%) alcohol; and that said drink is what is commonly known and
called 'near-beer'; that the manufacture and storing of said liquor is contrary to and in
violation of sections 1 and 14, respectively, of that certain initiative act adopted by the
people of the State of Nevada at the last general election, entitled 'An act to prohibit the
manufacture, sale, keeping for sale, and gift, of malt, vinous and spirituous liquors, and
other intoxicating drinks, mixtures or preparations; making the superintendent of the
Nevada state police ex officio commissioner of prohibition, and defining his duties; and
providing for the enforcement of this act, and prescribing penalties for the violation
thereof.'"
aforesaid, and at 990 East Fourth Street, where it manufactures, stores, and threatens to sell or
vend, give away or furnish, contrary to law, certain malt or brewed drink, under the name of
Sierra Beverage,' containing approximately one-tenth (1/10) of one percent (1%) alcohol;
and that said drink is what is commonly known and called near-beer'; that the manufacture
and storing of said liquor is contrary to and in violation of sections 1 and 14, respectively, of
that certain initiative act adopted by the people of the State of Nevada at the last general
election, entitled An act to prohibit the manufacture, sale, keeping for sale, and gift, of malt,
vinous and spirituous liquors, and other intoxicating drinks, mixtures or preparations; making
the superintendent of the Nevada state police ex officio commissioner of prohibition, and
defining his duties; and providing for the enforcement of this act, and prescribing penalties
for the violation thereof.'
The manufacture or sale, etc., of malt liquors is prohibited by the act as indicated in the
title. By section 1 The word liquors' as used in this act shall be construed to embrace all
malt * * * liquors, * * * and all malt or brewed drinks, whether intoxicating or not, shall be
deemed malt liquors. * * *
The manufacture or sale of liquors is prohibited in the two succeeding sections. The
prohibition is complete whether the clause in section 1, and all shall be embraced in the
word liquors,' a hereinafter used in this act, was intended to include the entire classification
of liquors in this section or not, or refers only to spirituous liquors.
Appellant contends that Sierra Beverage is not a liquor within the meaning of section 1,
and not prohibited by the provisions of the act, for the reason that it is nonintoxicating and
contains only about one-tenth of 1 per centum of alcohol.
In support of this contention it was urged in the oral argument and in the briefs that the
manifest purpose of the act is to prohibit the manufacture, sale, and gift only of beverages
or drinks that will produce intoxication, and such as the courts will take judicial notice of
as intoxicating, and that class of beverages included in the last clause of section 1 which
contain "so much as one-half of one per centum of alcohol by volume."
of the act is to prohibit the manufacture, sale, and gift only of beverages or drinks that will
produce intoxication, and such as the courts will take judicial notice of as intoxicating, and
that class of beverages included in the last clause of section 1 which contain so much as
one-half of one per centum of alcohol by volume.
To give the act the construction claimed by appellant we must ignore as meaningless the
clause in section 1, and all malt or brewed drinks, whether intoxicating or not, shall be
deemed malt liquors within the meaning of this act.
1. The presumption is that the framers intended to give force and effect, not only to the
main legislative intent of the act but also to its several parts, words, clauses, and sentences,
and chose appropriate language to express their intention.
2. This presumption is removed only when it appears, from a construction of a statute as a
whole, effect cannot be given to the paramount purpose unless particular words or clauses are
rejected, or without limiting or expanding their literal import.
3. In the application of this principle the sentence, and all malt or brewed drinks, whether
intoxicating or not, shall be deemed malt liquors within the meaning of this act, cannot be
adjudged out of the act, or restricted or enlarged in its plain signification, unless, after
exhausting every legitimate method of construction, it is found irreconcilable with the scope
and purposes of the act, or void for constitutional reasons.
As pointed out in State v. Hemrich, 93 Wash. 439, 161 Pac. 79, L. R. A. 1917b, 962, the
definitions of the term malt liquor, as given in the standard dictionaries and by all law
lexicographers, include the elements of malt and alcohol without regard to the proportions of
these constituents. There is almost the same uniformity in the definitions of the courts which
have attempted to define the term.
They recognize the presence of malt and alcohol as essential elements of malt liquor, or,
as in State v. Hemrich, supra, such properties including malt that will generate alcohol.
4. It is alleged in the complaint and admitted by appellant that "Sierra Beverage"
contains malt and alcohol, and thus it is brought squarely within the meaning of these
definitions as a malt liquor.
essential elements of malt liquor, or, as in State v. Hemrich, supra, such properties including
malt that will generate alcohol.
4. It is alleged in the complaint and admitted by appellant that Sierra Beverage contains
malt and alcohol, and thus it is brought squarely within the meaning of these definitions as a
malt liquor. Whether it is intoxicating or not is made immaterial by the language of section 1,
declaring malt and brewed drinks to be malt liquors, unless it was not intended to give this
clause its apparent effect.
The title of the act purports to prohibit the manufacture, sale, keeping for sale, and gift of
malt, vinous, and spirituous liquors, and in the first part of section 1 liquors prohibited by the
act are construed to embrace all malt, vinous, or spirituous liquors, wine, porter, ale, beer or
any other intoxicating drink, mixture, or preparation.
5. It is urged that the general phrase in the title and in section 1 as to other intoxicating
drinks, which follows specific enumeration of liquors, shows an intent to prohibit only such
liquors as the courts will judicially notice as intoxicating, and liquors which might be shown
to be in fact intoxicating drink, We think that the phrase, any other intoxicating drink,
mixture or preparation of like nature, which follows the specific enumeration of all malt,
vinous, or spirituous liquors, wine, porter, ale, or beer, instead of limiting this class, describes
another class merely by their intoxicating quality. In this conclusion we are sustained by
ample authority construing similar construction of language. See State v. Hemrich 93 Wash.
439, 161 Pac. 79, L. R. A. 1917b, 962, and cases cited.
The prohibition law is a late enactment in this state, and apparently framed with extreme
care to prevent evasions and to enforce its primary object. Doubtless, due regard was paid to
the prohibition laws of other states and the decisions of the courts upon them in framing the
measure.
An extensive view of the earlier as well as the later decisions construing prohibition
statutes which forbid the sale of a certain class of liquors reveals a conflict of authority on
the question of whether nonintoxicating liquors of that class are included.
decisions construing prohibition statutes which forbid the sale of a certain class of liquors
reveals a conflict of authority on the question of whether nonintoxicating liquors of that class
are included. The weight of authority is on the side of their prohibition, but still there is a
conflict. Suppose the clause we are considering were not in our prohibition law. Under this
posture of the cases there would be room for different constructions. What set of words, then,
could be more designed to eliminate this question than the language, all malt or brewed
drinks, whether intoxicating or not, shall be deemed malt liquors within the meaning of this
act? It performs the function of clarifying any doubtful construction of the preceding
language in the statute as to malt liquors.
6. It is not controlled or qualified in its meaning by the last clause in section 1, and all
beverages containing so much as one-half of one per centum of alcohol, etc., for it is
apparent that this language defines spirituous liquors, whether such beverages are intoxicating
or not, provided they contain the stated per centum of alcohol. There is no conflict whatever
between the two clauses. They relate to distinct classes of forbidden liquor, namely, malt
liquor and spirituous liquor. This plain inclusion of nonintoxicating malt liquor is not
inconsistent with any part of the act, nor with its spirit and purpose. The ultimate object of the
prohibition law is to prevent drunkenness and its consequent evils. To effect this end, traffic
in liquors included in that term in section 1 are prohibited. While nonintoxicating malt liquor
is in itself harmless, except in so far as it may create an appetite for intoxicating drinks, yet,
as stated in Purity Extract and Tonic Co. v. Lynch, 226 U. S. 192, 33 Sup. Ct. 44, 57 L. Ed.
184, the legislation of other states, and the decisions of the courts in its construction, show
that the opinion is extensively held that a general prohibition of the sale of malt liquors,
whether intoxicating or not, is a very necessary means to the suppression of trade in
intoxicants.
7. We believe that this opinion so extensively held is the reason for the inclusion of
the clause, "and all malt or brewed drinks, whether intoxicating or not, shall be deemed
malt liquors within the meaning of this act," in the prohibition law of this state, and was
inserted to prevent evasions of the act.
is the reason for the inclusion of the clause, and all malt or brewed drinks, whether
intoxicating or not, shall be deemed malt liquors within the meaning of this act, in the
prohibition law of this state, and was inserted to prevent evasions of the act. That
nonintoxicating beverages other than the one proscribed may also be used for the purposes of
evasion is a subject for legislative discretion, and their omission from the statute makes no
ground for an argument that the one plainly included was not intended. The clause
complained of does not contravene the state or the federal constitution.
8. The power exercised through appropriate legislation, by the legislature or people acting
in a legislative capacity, to suppress nonintoxicating liquors, is now so generally recognized
by the courts as to be beyond question. Purity Extract and Tonic Co. v. Lynch, 226 U. S. 192,
33 Sup. Ct. 44, 57 L. Ed. 184; Purity Extract and Tonic Co. v. Lynch, 100 Miss. 650, 56
South. 316; Kunsberg v. State, 147 Ga. 591, 95 S. E. 12; State v. Hemrich, 93 Wash. 439,
161 Pac. 79, L. R. A. 1917b, 962; State v. Frederickson, 101 Me. 37, 63 Atl. 535, 6 L. R. A.
(N. S.) 186, 115 Am. St. Rep. 295, 8 Ann. Cas. 48; Pennell v. State, 141 Wis. 35, 123 N. W.
116.
It is incidental to the power to entirely prohibit traffic in, and consumption of, intoxicating
liquors, for the reason that the right to enact such legislation necessarily carries with it the
power to adopt all means, having any reasonable relation thereto, that the legislative body
may deem necessary to enforce the dominant purpose of a prohibition measure. The conceded
power of the state to preserve the welfare, health, and morals of the people by forbidding the
use of intoxicating liquors, would be only a barren scepter in its gripe, without the power to
prohibit the use of all nonintoxicating liquors which may be generally and conveniently used
to render prohibitory laws nugatory by evasion.
In Purity Extract and Tonic Co. v. Lynch, 226 U. S. 192, 33 Sup. Ct. 44, 57 L. Ed. 184, the
court said: "The statute establishes its own category.
The statute establishes its own category. The question in this court is whether the
legislature had power to establish it. The existence of this power, as the authorities we have
cited abundantly demonstrate, is not to be denied because some innocent articles or
transactions may be found within the proscribed class. The inquiry must be whether,
considering the end in view, the statute passes the bounds of reason, and assumes the
character of a merely arbitrary fiat. That the opinion is extensively held that a general
prohibition of the sale of malt liquors, whether intoxicating or not, is a necessary means to the
suppression of trade in intoxicants, sufficiently appears from the legislation of other states
and the decision of the courts in its construction. [Citing cases.] We cannot say that there is
no basis for this wide-spread conviction. The state, within the limits we have stated, must
decide upon the measures that are needful for the protection of its people, and, having regard
to the artifices which are used to promote the sale of intoxicants under the guise of innocent
beverages, it would constitute an unwarrantable departure from accepted principle to hold
that the prohibition of the sale of all malt liquors, including the beverage in question, was
beyond its reserved power.
It follows from what we have said that the Sierra Beverage, which, as its name signifies,
is a beverage, and contains alcohol and malt, is prohibited by the statute.
9. Appellant insists that the lower court had no jurisdiction to enjoin it from the
manufacture or sale of Sierra Beverage for the reason that it was neither alleged in the
complaint nor proven that the Beverage is an intoxicating liquor.
The contention is based on section 14, wherein the places which shall be deemed common
and public nuisances are designated as those where intoxicating liquors are manufactured,
stored, sold, including those places where the same are dispensed to members of clubs or
associations mentioned in section 6.
clubs or associations mentioned in section 6. The effect of section 1 is to place all liquors
therein mentioned, whether intoxicating or not, in the category of intoxicating liquors for the
purpose of the act.
In some of the succeeding sections the word liquors is used, and in others the term
intoxicating liquors; but it seems clear that in each instance reference is made to all of the
liquors included in section 1, for otherwise the traffic in spirituous liquor containing so much
as one half of 1 per centum of alcohol by volume could not be prevented.
Our conclusion in this regard is strengthened when section 14 is considered together with
sections 6 and 17.
In section 6 the places banned, and made subject to actions for abatement as nuisances by
virtue of section 14, are places where, in the language of the section, liquors are dispensed to
members of clubs and association. The word intoxicating is not found in this section, and it
is likewise omitted in section 17. In the second paragraph of this section provision is made for
the judgment that shall be ordered when the court finds the material allegations of the
complaint true in a case of this kind. It provides, in effect, that the judgment of abatement
shall prohibit liquors from being sold, bartered, given away, distributed, dispensed or stored
in the house or place found to be a common and public nuisance. If it were intended, as
appellant insists, that only intoxicating liquors were meant in section 14, then it would seem
most reasonable to conclude that provision would have been made for the judgment to follow
the finding in this regard.
A consideration of the entire act, and its scope and purpose, convinces us that the term
intoxicating liquors, as used in section 14, is to be taken as used interchangeably with the
word liquors, in section 1, and that the district court had jurisdiction to grant the injunction.
The order of the district court granting the injunction is affirmed.
The order of this court modifying the injunction is vacated and set aside, and the
injunction as originally granted is continued in full force and effect.
____________
42 Nev. 411, 411 (1919) Bradley v. Nevada-California-Oregon Railway
[No. 2324]
F. DEAN BRADLEY, Doing Business Under the Name and Style of Bradley Engineering
Company, Appellant, v. NEVADA-CALIFORNIA-OREGON RAILWAY (a
Corporation), Respondent.
[178 Pac. 906]
1. CorporationsOfficersApparent Authority.
Where an agent is clothed with a title implying general powers as vice-president, general manager, or
superintendent of a corporation, the business public and courts may fairly presume he is what the
corporation holds him out as being.
2. RailroadsContractsValidityApparent Authority of Officers.
Railroad's contract for construction of fences along right of way, entered into by its vice-president, was
valid, though contract was unauthorized by board of directors, the vice-president, as the managing agent of
railroad, having apparent authority to bind railroad, notwithstanding Rev. Laws, 3520 (Stats. 1865, p. 427),
providing for management of railroad by board of directors.
3. DamagesBreach of ContractPrevention of Performance.
Where breach consists in preventing performance of contract without fault of other party, latter is entitled
to compensation for what he has already expended toward performance, less materials in hand, and all
profits that he would have realized by performing the whole contract.
4. ContractsBreach.
A party who commits the first breach of a contract cannot maintain an action against the other for a
subsequent failure to perform.
5. ContractsFencing ContractBreach.
Railroad, contracting for building specified length of fence on its right of way within specified time, by
notifying contractor to discontinue work, preventing continued performance of contract, and leading
contractor to disband crew, breached the contract, notwithstanding its direction to contractor to resume
work four months later.
6. DamagesPleadingBreach of Fencing ContractLoss of Profits.
In action against railroad for breach of fencing contract, plaintiff held entitled, under allegation of general
damages, to recover loss of profits resulting from railroad's refusal to permit him to complete performance.
Action by F. Dean Bradley, doing business under the name and style of the Bradley
Engineering Company, against the Nevada-California-Oregon Railway. From judgment for
defendant, and from order denying new trial, plaintiff appeals. Reversed and remanded.
Hoyt, Gibbons, French & Springmeyer, for Appellant:
Boards of directors always delegate the power to make ordinary contracts to general
managers or superintendents, and such was the case with the respondent company. Even if it
be true that the contract was not binding in the first instance because not made by the board of
directors, it is, nevertheless, enforceable because respondent company accepted and retained
the benefits of the contract, recognized and acquiesced in its validity, and impliedly ratified it.
After having gone so far, the company is estopped to say that the contract was not made by
the board of directors. As to ratification and estoppel, there is no difference between the
rights of a railroad corporation, any other private corporation, and an individual. Marshall,
Priv. Corp., secs. 714-716.
There was a breach of contract by respondent when it notified appellant to cease work.
There being a breach at that time, respondent could not later claim the contract was still in
force. It is elementary law that as soon as respondent committed a breach of contract by
stopping the fencing and declaring its intention not to go on with the contract, the right of
action accrued to appellant. 9 Cyc. 698. A cause of action for breach by a railroad company of
a contract for the construction of a section of its road accrues immediately on the breach, and
suit may be brought at once, and witnesses may estimate the cost of labor and material at
that date in determining the profits which the contractor would have made if the contract
had been completed.
breach, and suit may be brought at once, and witnesses may estimate the cost of labor and
material at that date in determining the profits which the contractor would have made if the
contract had been completed. Waco R. Co. v. Shirley, 45 Tex. 355.
It was the duty of the trial court to give judgment to plaintiff for the damages sustained.
The profit lost to appellant by the refusal of the company to allow him to proceed with the
work is a proper element of damages. Profits means the gain which the contractor would
have made if he had been permitted to complete the work; that is, profits are the difference
between the cost of doing the work and the price to be paid for it. Phila. R. Co. v. Howard, 14
L. Ed. 173; Waco R. Co. v. Shirley, supra; 13 Cyc. 159. The profits which the contractor
would have realized by the completion of the contract are the measure of damages. Where a
part of the work is completed, and it is shown that such part is of substantially the same
character as the rest, the cost of the work completed is competent evidence to fix the profits
which the contractor would have made on the rest of the work. Tenn. R. Co. v. Danforth, 112
Ala. 80; Danforth v. Tenn. R. Co., 99 Ala. 331; Smith v. O'Donnell, 8 Lea, 468; Morey v.
King, 49 Vt. 304; O'Connor v. Smith, 84 Tex. 232; Porter v. Burkett, 65 Tex. 386; Hammond
v. Beeson, 112 Mo. 190; Singer Mfg. Co. v. Potts, 61 N. W. 23.
James Glynn, for Respondent:
The contract claimed to have been breached is not that of the defendant company.
Contracts with a railroad company can be made only by and with its board of directors. Rev.
Laws, 3520; Temple v. Dodge, 32 S. W. 514. The directors cannot delegate their own
discretion. Bliss v. Kaweah C. & I. Co., 65 Cal. 502. Generally, one who makes a special
contract with the manager of a corporation is bound to take notice of limitations upon his
authority. Taylor, Priv. Corp., secs.
secs. 195, 253; Purdy, Priv. Corp., vol. 2, secs. 801, 860. Where a statute requires corporate
contracts to be executed in a certain way, a contract not so executed cannot be enforced.
Cook on Corporations, vol. 2, pp. 1732, 1824.
When charter of corporation prescribes the mode of contracting, it must be strictly
pursued. Every person who enters into a contract with a corporation is bound at his peril to
take notice of the legal limits of its capacity. Reese on Ultra Vires, secs. 53, 61, 69. Neither
the general manager nor the superintendent had the right to enter into any contract without
authority from the board of directors or ratification by said board.
The alleged contract was not in any manner ratified by respondent. Ratification must be
express and with full knowledge of the transaction. Yellow Jacket S. M. Co. v. Stevenson, 5
Nev. 229. Full or partial payment of a claim against a corporation on contract will not ratify
a contract executed without authority. Clarke v. Lyon County, 7 Nev. 80; Hillyer v.
Overman M. Co., 6 Nev. 61; Rankin v. New England and Nevada Silver M. Co., 4 Nev. 78;
Billings v. Morrow, 7 Cal. 171.
The alleged contract was not breached by respondent. It must appear in an action for a
breach of a contract prior to the time stipulated for its performance that there has been a clear
repudiation of the contract by the other party thereto, either by some act rendering
performance impossible or by express declaration refusing to perform. Joyce on Damages,
vol. 2, sec. 1275; Oliver v. Brady, 28 Am. & Eng. Ann. Cas. 376, 31 Atl. 727; 9 Cyc. 637; 6
R. C. L., sec. 311, p. 926.
Loss of profits are special damages and must be specially pleaded. Anderson, Law Dict.
307; Joyce on Damages, vol. 1, sec. 81; 13 Cyc. 179; 5 Ency. Pl. & Pr., 719, 741, 742.
Recovery is allowed only where damages can be proved with some degree of certainty. They
should be counted upon specially. Thompson on Negligence, vol. 6, sec. 7610; Moore v.
Taylor, 42 Hun, 45; Singer Mfg. Co. v. Potts, 61 N. W. 23.
This is an action against a railroad corporation organized under the general laws of the
state to recover for the alleged breach of a written contract, whereby the plaintiff was
employed by one T. F. Dunaway, the agent and vice-president of the defendant corporation,
to build certain fences, sections, or portions of fence, along its right of way, as the defendant
or its agents should designate, between Madeline and Cameron, Calif.; the fences in the
aggregate to be not less than forty miles in length. It appears that the defendant's agents,
before the commencement of the work, designated sixty miles of fences in length as that to be
built in accordance with the terms and specifications of the contract. It is the contention of the
plaintiff that while it was actively engaged in the construction of the fences, and had built
approximately thirty miles thereof, defendant required and compelled plaintiff to discontinue
the construction work, and failed, neglected, and refused to continue with the work for more
than six months after the plaintiff had commenced work, this being the time stated in the
contract for its completion, to the plaintiff's damage in the sum of $1,800.
The defense to the action rests upon two grounds: First, that Dunaway, neither as agent nor
as vice-president of the defendant, nor otherwise, had any power or authority to make and
enter into the alleged contract; that the contract was made and entered into without the
knowledge, authority, or consent of the defendant's board of directors; was never in any
manner ratified or adopted by said board, and that the contract was null and void as to the
defendant; and, second, that the plaintiff breached the contract, and was fully paid by
defendant for all work or labor performed under the contract, and sustained no damage
whatsoever.
The case was tried by the court without a jury. The court made findings of fact and
conclusions of law, and upon these judgment was entered for the defendant. The plaintiff
appeals from the judgment, as well as from the order of the court denying the plaintiff a
new trial.
from the order of the court denying the plaintiff a new trial.
The proof tends to show that Dunaway, agent and vice-president of the defendant, and
Cox, its general manager, who succeeded Dunaway as agent, directed plaintiff in the
performance of the contract. There was, however, no evidence of Dunaway's authority to
make the contract, or that of Cox to ratify it, except such as the title to their offices implies.
The district court decided, and in effect found, that under section 3520 of the Revised Laws
(Stats. 1865, p. 427) the contract in question was not such as could be made by the
defendant's employees, and that to be binding upon the defendant it should have been made
and entered into by and with its board of directors or ratified by said board.
1, 2. While section 3520 commits the management of railroad corporations to a board of
directors, and authorizes it to make and execute contracts to carry out the objects and
purposes of the corporation, it also empowers its board to appoint officers and agents and the
prescribe their duties. Where an agent is clothed with a title implying general powers, as
vice-president, general manager, or superintendent, of a corporation, the business public and
courts may fairly presume he is what the corporation holds him out as being. An agent
having the authority, and charged with the power to direct, has a general and discretionary
power within the scope of his agency. This rule is settled. In Sacalaris v. E. & P. R. Co., 18
Nev. 155, 1 Pac. 835, 51 Am. Rep. 737, this court considered the reason and justice of the
rule and its application to cases which we consider to be of the nature of that now in hand,
and cited and reviewed many authorities in its support. Without repeating that discussion
here, we content ourselves with a reference to the opinion in that case, and with the following
statement of the rule from Elliott on Railroads (2d Ed.) sec. 213:
As between the corporation and third persons, where the agent's power is not limited by
the charter or by positive law, the corporation will generally be held bound by his acts
performed within the scope of his apparent authority; and this is true, not only of his
contracts but of all his other acts and omissions."
positive law, the corporation will generally be held bound by his acts performed within the
scope of his apparent authority; and this is true, not only of his contracts but of all his other
acts and omissions.
Although railroad corporations are not required by statute to fence their property, it is not
unfair to presume that a necessity existed for inclosing defendant's property at the points
designated by its agents. In fact, from the testimony of its general manager, we are led to
believe that an emergency existed for fencing at least a few miles of its road between the
points designated, for the immediate protection of its property and that of the public. Upon
whom, we may inquire, more than the managing agent of the company, would the duty of
making a contract similar to the one in suit properly rest? It was doubtless this consideration
that led the court in the Sacalaris case, supra, to the conclusion that the defendant's president
and manager was the officer who, in the ordinary course of business, would be expected to
employ the plaintiff, and that the plaintiff had the right to presume that the officer was so
authorized (citing authorities).
As we reach the conclusion that the managing agents of the defendant acted within the
scope of their apparent authority, and thus bound their principal, it is unnecessary for us to
discuss the question as to the ratification by the defendant of the contract, or to cite
authorities upon that point.
The trial court was also of the opinion that, conceding the contract in question to be in all
respects regular and binding, the plaintiff failed to establish its breach, and also found that its
failure to comply with the request of the defendant to build two miles of fence in December,
1914, as requested, constituted a breach of the contract. This question must be determined,
not only by the terms of the contract itself, but from the subsequent acts and conduct of the
parties; and we may also look to the circumstances of the case in order to see whether the
plaintiff, after having partially performed the contract, was relieved from future
performance by the conduct of the defendant, and whether the plaintiff might accept it as
a reason for not performing on its part. L. S.
was relieved from future performance by the conduct of the defendant, and whether the
plaintiff might accept it as a reason for not performing on its part. L. S. & M. R. Co. v.
Richards, 152 Ill. 93, 38 N. E. 773, 30 L. R. A. 33.
The contract, among other things, provides:
Material: The owner agrees to furnish, at its own expense, to the contractor, all the posts,
wires, wire netting, staples and stays, and any other material that may be required in the
construction of these fences; and it is agreed that said material shall be delivered by the owner
and distributed along its track at the points needed for use in erecting said fences. * * *
Time: The work shall be commenced as soon as possible after the delivery of the
material, which the owner agrees to deliver as soon as the weather permits, and shall be
completed in less than six months after it is begun.
Delays: Should the contractor be delayed in the progress or completion of the work by
any act or neglect of the owner, or by any damage caused by fires or floods, or any other
cause for which the contractor is not responsible, then the time herein fixed for the
completion of the work shall be extended for a period equivalent to the time lost in such
delay.
The plaintiff commenced the construction of the fences on May 22, 1914, and actively
continued construction until on or about August 14, 1914, when the general manager of the
defendant wrote plaintiff as follows:
Reno, Nevada, August 13, 1914.
Gentlemen: This is to advise you that as soon as you finish building at Cameron that we
will stop work of fence building for the present and will advise you when we are ready to
commence work again.
Yours truly,
R. N. Cox, General Manager.
Upon receipt of the letter plaintiff disbanded its crew of twelve men, then engaged in the
work, and brought its outfit to Reno, F. D. Bradley, now the sole owner of the plaintiff
company (formerly a partnership), wrote the manager that he considered it unfair to stop
him at that time, when he had a crew organized, which he had been at considerable
expense in organizing, and that he was ready and willing to carry out his part of the
contract within six months.
the manager that he considered it unfair to stop him at that time, when he had a crew
organized, which he had been at considerable expense in organizing, and that he was ready
and willing to carry out his part of the contract within six months. Bradley's testimony tends
to show that he also notified the defendant that he would hold it for damages in the amount
that was coming for the uncompleted contract.
Nothing further was done by either of the parties with reference to the subject-matter of
the contract until December 19, 1914, when Cox, the general manager, wrote plaintiff, stating
that the defendant had been killing considerable stock just south of Horse Lake, and that it
was anxious to have about two miles of fence built at that point, and this is to ask you to
commence work before January 5, 1915; also stating that this request is made by us per
your contract with this company, dated December 1, 1913. Thereafter, on January 7, 1915,
the manager gave written notice to plaintiff stating that, inasmuch as it had failed and
neglected to comply with its request of December 19, 1914, the company hereby declares the
said contract terminated, canceled and at an end, and upon receipt of this notice you will
cease all further work and operations under said contract. Thereafter, on August 3, 1915, the
plaintiff commenced this action.
The contract is clearly an entire indivisible, executory agreement, whereby the contractor
(plaintiff) obligated itself to build for the owner (defendant) a specified length of fence along
its right of way, within a specified time, for so much per panel. The owner obligated itself to
supply all materials necessary for the performance of the work. These were mutual
interdependent covenants that go to the substance of the contract. The furnishing of the
material was necessary to the performance of any work at all. It has been frequently decided
that a contractor may treat the contract as rescinded where he has been prevented from
completing it by reason of the default of the party to supply material for the work as required
by the contract.
for the work as required by the contract. McConnell v. Corona City Water Co., 149 Cal. 60,
85 Pac. 929, 8 L. R. A. (N. S.) 1171. See authorities cited in note, Valente v. Weinberg, 13 L.
R. A. (N. S.) 450.
3. If the breach consists in preventing the performance of the contract without fault of the
other party, who is willing and able to perform, the damage of the latter consists in two
distinct items, namely: First, what he has already expended toward performance (less
materials in hand); and, second, the profits that he would realize by performing the whole
contract. United States v. Behan, 110 U. S. 344, 4 Sup. Ct. 81, 28 L. Ed. 168; Masterton v.
Brooklyn, 7 Hill (N. Y.) 69, 42 Am. Dec. 38. We are not here concerned with the first
element of damage, as it affirmatively appears from the defendant's answer that the contractor
was fully paid for the work it had performed; but these payments did not cover the second
element of damage, to wit, the profits in the work which remained to be performed.
On August 13, 1913, the owner gave the contractor explicit directions to discontinue work,
stating therein that it would be notified when to resume. There is nothing in the record to
indicate that from that day to this the contractor received any notice to resume work, unless it
be considered that the request in December to build two miles of fence, without any mention
whatsoever as to the remainder, constitutes notice. The letter to discontinue the work
certainly gave the contractor to understand that he need not resume work until notified so to
do. He was at liberty to take the owner at its word, and to act accordingly. Baca v. Barrier, 2
N. M. 137. On receipt of the letter the contractor disbanded its crew then engaged in the
work, and nearly four months elapsed before the contractor was notified as above stated. This
letter, at the time it was written, may or may not have been intended as a rescission of the
contract, but, when read in conjunction with the subsequent acts and conduct of the
defendant, we are impressed that the contractor was justified in construing it as an
expression of the defendant's intent not to supply the materials, except at such times as
its convenience might dictate, or at all.
it as an expression of the defendant's intent not to supply the materials, except at such times
as its convenience might dictate, or at all.
But the district court was of the opinion that the clause in the contract respecting delays,
when read in connection with the entire instrument, indicates that both parties contemplated
that delays resulting from the act or neglect of the owner should be construed as extending the
time for the performance, and not as a breach, of the contract. We do not subscribe to this
view. Conceding that the contractor would be given the full six months to complete the
contract if delayed by the acts or neglect of the owner, it does not follow that the owner was
privileged to so act as to nullify the contract, destroy its mutual covenants, deprive the
contractor of his interest in the value of the contract, and thus convert it into a continuing,
severable agreement, whereby the owner could dictate to the contractor when to begin, when
to cease work, and to build a section or portion of fence at such times as the owner should
choose.
It would be absurd to contend as a principle of law that the owner, without the consent of
the contractor, was at liberty to thus suit its own convenience as to the performance of the
contract on its part, and keep the contractor with its crew and outfit waiting indefinitely for
materials, and still hold him to his contract; and it would be unreasonable to hold that the
contractor should keep itself in readiness at all times to build any particular portion of fence
that the owner should designate, without reference to the remainder.
4, 5. If there is anything well settled, it is that the party who commits the first breach of
the contract cannot maintain an action against the other for a subsequent failure to perform.
Loudenback v. Tennessee Phosphate Co., 121 Fed. 298, 58 C. C. A. 220, 61 L. R. A. 407.
The defendant has not kept its contract, and shows no excuse for its breach. It is therefore in
no position to demand that the plaintiff should go on and perform or answer for its refusal
to recognize the contract as in force.
perform or answer for its refusal to recognize the contract as in force.
6. Entertaining these views as to the validity and breach of the contract, the next inquiry
is: Did the court commit prejudicial error in permitting plaintiff to introduce evidence, over
the objections of the defendant, tending to prove loss of profits as its sole damage? The
complaint alleges general damages. It is the contention of the defendant that loss of profits is
special damage, and under the rule must be specially pleaded. We do not question the rule,
but doubt its application in a case like this. The amount which would have been received if
the contract had been kept is the measure of damages if the contract is broken, and this means
the value of the contract, including the profits and advantages which are its direct results and
fruits. 8 R. C. L. 452. And in case of contracts like this the loss is, among other things, the
difference between the cost of doing the work and the price to be paid for it. This difference,
we apprehend from the evidence, was the inducement and real consideration which caused
the contractor to enter into the contract, and to deprive him of it, when the owner put an end
to the work without his fault, would be unjust. Hinckley Co. v. P. B. & S. Co., 121 U. S. 275,
7 Sup. Ct. 875, 30 L. Ed. 970.
Mr. Sutherland, in his work on Damages, vol. 1, 4th ed. sec. 66, says:
Where a party has contracted to perform labor from which a profit is to spring as a direct
result of the work done at a contract price, and is prevented from earning this profit by the
wrongful act of another party, his loss is a direct and natural result which the law will
presume to follow the breach of the contract; and he is entitled to recover it without special
allegations in his declaration. This he will be entitled to establish by showing how much less
than the contract price it will cost to do the work or perform the contract.
We do not wish to be understood as commending the complaint as a model pleading. It is
subject to the criticism of having been carelessly or hurriedly drafted.
criticism of having been carelessly or hurriedly drafted. It might have properly contained a
separate count as to loss of profits; yet, under the particular facts and circumstances, the
defendant was not taken by surprise by the introduction of the testimony, and was not
prejudiced.
Entertaining the views hereinabove expressed, the judgment in this case must be reversed,
and the cause remanded.
It is so ordered.
____________
42 Nev. 423, 423 (1919) Berney v. Highway Department
[No. 2384]
E. S. BERNEY, Petitioner, v. W. B. ALEXANDER, GEORGE K. EDLER, and JAMES M.
LEONARD, Directors of Department of Highways, and C. C. COTTRELL, State
Highway Engineer, together Constituting the Department of Highways, Respondents.
[178 Pac. 978]
1. StatesMember of LegislatureQualification as Contractor.
Rev. Laws, 2827, making it unlawful for any member of the legislature to become a contractor under any
contract authorized by the legislature of which he is a member, does not prohibit a member of the
legislature from entering into a contract for the construction of highways, which contract grew out of a
legislative enactment passed by a former legislature of which he was not a member.
Original proceeding in mandamus by E. S. Berney against W. B. Alexander and others, to
compel the execution of a contract for highway construction. Peremptory writ issued.
Hoyt, Gibbons, French & Henley, for Petitioner:
Section 2827 of the Revised Laws is plain and unambiguous. Its purpose is to prevent a
public official from participating in the profits of a public contract, but it cannot be seriously
or successfully contended that the statute can prevent a member of the state legislature of
1919 from being a contractor for work authorized by a preceding legislature.
statute can prevent a member of the state legislature of 1919 from being a contractor for work
authorized by a preceding legislature.
The highway act of 1917 was amended by the legislature of 1919, but not in regard to the
route covered by the contract in controversy. The amendment left the original highway act
practically unaffected. Where an act is amended, those portions unchanged by the amendment
are deemed unaffected by the amendment, and to have been continuously in force from the
date of the enactment of the original act. The effect of an amendment to a statute made by
enacting that the act is hereby amended so as to read as follows,' and then incorporating the
changes or additions with that portion of the former act that is retained, is not that the
portions of the amended act which are merely copied from the original act are to be
considered as having been repealed and again reenacted. The part which remains unchanged
is to be considered as having continued to be the law from the time of its first enactment.
Holbrook v. Nichol, 36 Ill. 167; Kamerick v. Castleman, 21 Mo. App. 590; Parsons v. Circuit
Judge, 37 Mich. 290; Walker v. State, 7 Tex. App. 256, Suth. St. Const. sec. 134. State v.
Horton, 21 Nev. 304.
L. B. Fowler, Attorney-General, and Robert Richards, Deputy Attorney-General, for
Respondents:
The section of the statute in question in this proceeding is not ambiguous or uncertain in
any particular. Its grammatical meaning is plain. The phrase by or for the alderman or
common council, board of trustees, or board of county commissioners of which he is a
member is an independent phrase completing a classification. By no construction can the
words which are a part of the phrase, to wit, of which he is a member, be made to qualify
the preceding phrase, namely, or by or for the state or any department thereof, or the
legislature or either branch thereof. If it be otherwise held, then the phrase "of which he is
a member" must relate back to the word "state," for there is no sound reason why, if this
phrase qualifies a part of the preceding phrase, it does not apply to every class therein
enumerated.
held, then the phrase of which he is a member must relate back to the word state, for
there is no sound reason why, if this phrase qualifies a part of the preceding phrase, it does
not apply to every class therein enumerated. The true grammatical construction of the section
is that each of the phrases is independent in itself, enumerating the classes that do not qualify
the classes enumerated in the other phrase. Declaring clearly what it means, the section
requires no interpretation. Ruggles v. Illinois, 108 U. S. 506; Commissioners v. Brewster, 42
N. J. Law, 129; Endlich, Interp. Stats. 34; Lewis, Sutherland, Stat. Constr., vol. 2, sec. 367.
If there is a possibility, no matter how remote, as distinguished from a probability, that the
award of the contract, or the consummation thereof, could influence the official conduct of
the legislator toward the department with which he proposes to contract, the section in
question is operative and becomes a steadfast rule, from which there can be no deviation. 13
C. J. 435, et seq. It is immaterial whether or not the contractor had any direct part in his
official capacity in the letting of the contract. Capron v. Hitchcock, 98 Cal. 427. Nor is the
question whether or not the contract is an advantageous one for the public to be considered.
Smith v. Albany, 61 N. Y. 44; People v. Township Board, 11 Mich. 222; Grand Island v.
West, 45 N. W. 242; Noble v. Dawson, 177 Ind. 19. The law will not permit public servants
to place themselves in a situation where they may be tempted to do wrong, and this it
accomplishes by holding all such employments, whether made directly or indirectly, utterly
void. Waymire v. Powell, 338; In Re Question Submitted, 108 Me. 552.
This is an original proceeding in mandamus.
The petition alleges that the respondents are and constitute the department of highways of
the State of Nevada, and as such are charged with the duty of executing all contracts for the
construction of state highways within this state for which they have advertised for and
accepted bids in accordance with law; that prior to the filing of the petition said
department of highways determined that a certain portion of state highway, route 4, be
built in Nye County, and as by law provided resolved to let the contract for the
construction thereof, and in pursuance thereof advertised for bids for the building of a
certain portion of said route 4; that in accordance with law petitioner made a bid for the
performance of said work, and accompanied such bid by a certified check for 5 per cent of
the amount of said bid; that the bid of petitioner was thereafter duly accepted by the
respondents and the said department of highways, and the contract for the performance
of said work was duly awarded to petitioner by respondents and said department of
highways in the manner provided by law; that thereafter, and within ten days after notice
of said award, petitioner signed, executed, and delivered to respondents and said
department of highways, together with a bond as required by law, a contract for the
performance of said work, which was accompanied by plans and specifications, which
contract had been prepared by respondents for execution by petitioner, with a request
that the said contract be executed by respondents; that respondents refused to execute
the same, for the reason that petitioner is a member of the present legislature of the
State of Nevada.
executing all contracts for the construction of state highways within this state for which they
have advertised for and accepted bids in accordance with law; that prior to the filing of the
petition said department of highways determined that a certain portion of state highway, route
4, be built in Nye County, and as by law provided resolved to let the contract for the
construction thereof, and in pursuance thereof advertised for bids for the building of a certain
portion of said route 4; that in accordance with law petitioner made a bid for the performance
of said work, and accompanied such bid by a certified check for 5 per cent of the amount of
said bid; that the bid of petitioner was thereafter duly accepted by the respondents and the
said department of highways, and the contract for the performance of said work was duly
awarded to petitioner by respondents and said department of highways in the manner
provided by law; that thereafter, and within ten days after notice of said award, petitioner
signed, executed, and delivered to respondents and said department of highways, together
with a bond as required by law, a contract for the performance of said work, which was
accompanied by plans and specifications, which contract had been prepared by respondents
for execution by petitioner, with a request that the said contract be executed by respondents;
that respondents refused to execute the same, for the reason that petitioner is a member of the
present legislature of the State of Nevada. The petition further shows that the petitioner has
no plain, speedy, or adequate remedy at law.
To the petition an answer was filed, wherein it is admitted that petitioner has no plain,
speedy, or adequate remedy at law, and as a defense pleads section 2827 of the Revised Laws
of 1912, which reads:
It shall not be lawful for any officer of state, or member of the legislature, alderman, or
member of the common council of any city in this state, or for the trustees of any city, town,
or village, or for any county commissioners of any county, to become a contractor under
any contract or order for supplies, or any other kind of contract authorized by or for the
state, or any department thereof, or the legislature, or either branch thereof, or by or for
the aldermen or common council, board of trustees, or board of county commissioners of
which he is a member, or to be in any manner interested, directly or indirectly, as
principal, in any kind of contract so authorized."
commissioners of any county, to become a contractor under any contract or order for supplies,
or any other kind of contract authorized by or for the state, or any department thereof, or the
legislature, or either branch thereof, or by or for the aldermen or common council, board of
trustees, or board of county commissioners of which he is a member, or to be in any manner
interested, directly or indirectly, as principal, in any kind of contract so authorized.
The section pleaded in the answer as a defense to the proceeding, when stripped of all
matter not pertinent to this proceeding, and relating to legislators only, reads:
It shall not be lawful for any * * * member of the legislature * * * to become a contractor
under any contract * * * authorized by * * * the legislature * * * of which he is a member. * *
*
There is no need to take into consideration any part of the statute in question relating to
any other person than a legislator, because the alleged disqualification of petitioner to enter
into the contract in question is dependent solely upon his being a member of the legislature.
The statute in question, when divested of all matter save that pertaining solely to a
legislator, is so clear and unambiguous that there is no room for construction. It says in plain
language that no member of the legislature shall become a contractor under any contract
authorized by the legislature of which he is a member. The contract in question grows out
of a legislative enactment passed at a session of the legislature of 1917, of which petitioner
was not a member. There is nothing in the statute prohibiting a member of one legislature
from becoming a contractor under a contract authorized by a previous legislature, of which he
was not a member, as in the instant case. To argue the matter is to cloud rather than to clarify
the statute. Every statute must be construed in the light of its purpose. State v. Brodigan, 37
Nev. 488, 143 Pac. 306; Colburn v. Wilson, 24 Idaho, 94, 132 Pac. 579. What is the purpose
of the statute? Clearly its purpose is to prevent a legislator from benefiting from an act of
the legislature of which he is a member, in order that no temptation may exist as an
inducement for his voting for a bill which may result in his personal gain rather than in
the welfare of the state.
Clearly its purpose is to prevent a legislator from benefiting from an act of the legislature of
which he is a member, in order that no temptation may exist as an inducement for his voting
for a bill which may result in his personal gain rather than in the welfare of the state. This
being the plain purpose of the act, it needs no argument to show that it could not have been
the intention of the legislature, in enacting the statute quoted, to preclude a member of one
session of the legislature from becoming a contractor under a contract authorized by a
legislature of which he was not a member.
This conclusion is so clearly the correct one that it seems useless to give reasons therefor;
in fact, the statute seems so plain that we do not see how we can make it plainer. It would
seem as useless to argue that when an apple becomes detached from the stem which holds it
to the tree it will fall to the ground; that water runs down hill, or that the sun radiates light
and heat, as to undertake to demonstrate further that the statute in question in no way affects
the contract under consideration. It is said, in Ruggles v. Illinois, 108 U. S 526, 2 Sup. Ct.
832, 27 L. Ed. 812:
But Vattel's first general maxim of interpretation is that It is not allowable to interpret
what has no need of interpretation,' and he continues: When a deed is worded in clear and
precise termswhen its meaning is evident and leads to no absurd conclusionthere can be
no reason for refusing to admit the meaning which such deed naturally presents. To go
elsewhere in search of conjectures, in order to restrict or extend it, is but to elude it.' Vattel,
Law of Nations, 244. Here the words are plain and interpret themselves.
See, also, Commissioners v. Brewster, 42 N. J. Law, 129; Endlich, Interp. Statutes, 24; 2
Lewis, Sutherland, Stat. Const. sec. 367.
It is claimed, however, that there have been bills introduced during the present session of
the legislature affecting the department of highways, but nowhere is it contended that any
such proposed acts would affect in the slightest degree the contract in question; nor is it
contended that any act could be passed by the present session of the legislature which
would benefit petitioner because of such contract.
contended that any such proposed acts would affect in the slightest degree the contract in
question; nor is it contended that any act could be passed by the present session of the
legislature which would benefit petitioner because of such contract. If such a situation should
arise, no doubt there would be some remedy in behalf of the state.
Entertaining these views, it follows that a peremptory writ of mandamus should issue, and
it is ordered accordingly.
Sanders, J., being indisposed, did not participate in the consideration of this case.
____________
42 Nev. 431, 431 (1919)
REPORTS OF CASES
DETERMINED BY
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
APRIL TERM, 1919
____________
42 Nev. 431, 431 (1919) Sweeney v. Sweeney
[No. 2359]
MABEL VIOLA SWEENEY, Respondent, v. JAMES G. SWEENEY, Defendant; GEORGE
A. BARTLETT, NELLIE W. LAMMON, and LOUISE SANFORD, as Executors of the
Last Will and Testament of James G. Sweeney, Deceased, Substituted as Defendants,
Appellants.
[179 Pac. 638]
1. PleadingAdmissionProceeding to Modify Divorce Judgment.
Allegation of plaintiff, a divorced wife, suing executors of a deceased husband's will to alter judgment to
make alimony awarded lien on husband's estate, that no provision was made and no specific property of
husband set aside by original decree to secure monthly alimony payments, was admission on part of wife
that judgment rendered in connection with decree, standing alone, could not be construed as charge on
husband's estate.
2. JudgmentAlterationVacationStatute.
Since terms of court are abolished, a judgment can be set aside or amended only as provided by Rev.
Laws, 5084, except for fraud, etc.
3. DivorceJudgment for AlimonyAlteration After Term.
A decree of divorce a vinculo matrimonii is final, and the jurisdiction of the court over the parties after
the expiration of the term is at an end, and as there can be no grant of alimony after such a divorce, there
can be no change in the award of alimony, unless the right is reserved in the decree or given by statute.
4. DivorceJudgment for Support of ChildrenAlteration.
Final judgment of divorce providing for support of children of marriage cannot, after term, when court
has lost jurisdiction of parties, be changed as to such provisions, unless right is reserved by the decree or
given by statute.
5. JudgmentRevivalDifferent Cause of Action.
Despite Rev. Laws, 5843, where a divorce decree provides for installment payments of alimony and for
support of child, former wife cannot nearly three years after judgment, and after husband's death, revive
cause, and, under guise of making his representatives parties defendant, retry issue of alimony and child
support and recover judgment for lump sum instead of monthly payments, and declare it a prior lien on the
husband's estate, a judgment entirely different from original judgment.
6. StipulationsClaim Against EstateStatutory Procedure.
Stipulation, between parties to proceeding by divorced wife against deceased husband's executors to
modify original judgment of divorce as to payment of sums for alimony and child support, that proceeding
should be determined and considered as suit against estate of husband on claim that had been rejected, will
not be given effect, where to do so would be to nullify express mandate of statute with reference to
adjudication of claims against estates of deceased persons; claim in fact having been neither approved nor
rejected.
Appeal from First Judicial District Court, Ormsby County; Frank P. Langan, Judge.
Proceedings by Mabel Viola Sweeney against George A. Bartlett and others, as executors
of the last will and testament of James G. Sweeney, deceased, substituted as defendants for
deceased. From order and judgment for petitioner, defendants appeal. Reversed.
H. V. Morehouse, for Appellants:
The court had no jurisdiction to entertain the motion made herein, nor to take any steps
thereunder, because the divorce decree was and is final, and not subject to appeal, motion for
new trial, or modification. Kapp v. District Court, 32 Nev. 264. We think the authorities
generally sustain the proposition that a decree for alimony in a case of divorce a vinculo,
made without reserve, although payable in installments, is final, and cannot be changed after
the enrollment of the decree. Mayer v. Mayer, 154 Mich. 386; Sampson v. Sampson, 16 Atl.
711; Livingston v. Livingston, 93 Am. St. Rep.
600; Kamp v. Kamp, 59 N. Y. 212; Erkenbrack v. Erkenbrack, 96 N. Y. 456. A judgment is
final that disposes of the issues presented in the case, determines the costs, and leaves nothing
for the future consideration of the court. Perkins v. Mining Co., 10 Nev. 405. The rule is that
a judgment of a court of competent jurisdiction is conclusive between the same parties and
for the same cause, either in the same or any other court. Heyden v. Boothe, 9 Ky. 353;
Parker v. Struat, 39 Mo. App. 616; Goldston v. Hoyt, 1 Johns. Ch. 543; Peay v. Duncan, 20
Ark. 85; Wingate v. Haywood, 40 N. H. 437; Aldering v. Allison, 127 Am. St. Rep. 363;
Hilton v. Stewart, 128 Am. St. Rep. 48; Hudson v. Wright, 137 Am. St. Rep. 55; Stradley v.
Bath, 139 Am. St. Rep. 993.
An order in this proceeding to establish a claim against the estate cannot be sustained.
Rev. Laws, 5974. The executors can be sued only upon some claim or cause of action that
could have been brought during the lifetime of decedent. Rev. Laws, 6022. Schwartz v.
Stock, 26 Nev. 153; 18 Cyc. 880; Myer v. Cole, 2 Johns. N. Y. 349. In the absence of a
statute, the probate court has no jurisdiction to adjudicate disputed claims to an estate. Estate
of Singleton, 26 Nev. 106. Proceedings in the administration of estates are purely statutory.
Smith v. Westerfield, 26 Pac. 206; Maddock v. Russell, 42 Pac. 139. In such an action he
can recover only upon the claim so presented and rejected, and is not entitled to recover
against the executor for any other cause of action. Litchenberg v. McGlynn, 38 Pac. 541;
Brooks v. Lawson, 68 Pac. 97.
The decree does not provide any lien, neither does the law as to divorce; the decree does
not make, intend to make, nor attempt to make the alimony a lien. Rev. Laws, 5274; Scott v.
Scott, 103 Pac. 1005. The award of alimony being in the nature of a provision by the husband
for the support of the wife, it ceases upon the death of the husband. Wilson v. Hinman, 75 N.
E. 236; Casteel v. Casteel, 38 Ark. 477; Brown v. Brown, 38 Ark. 324; Kurtz v. Kurtz, 38
Ark. 119; Bowman v. Washington, 24 Ark.
Washington, 24 Ark. 522; Smith v. Smith, 1 Root (Conn.) 349; Wren v. Mass., 6 Ill. 560;
Craig v. Craig, 163 Ill. 176; Knapp v. Knapp, 134 Mass. 353; Wagner v. Wagner, 132 Mich.
343; Fieled v. Field, 15 Abb. N. Cas. 343; Johns v. Johns, 55 N. Y. Supp. 533; Nary v.
Braley, 41 Vt. 180; McCurley v. McCurley, 60 Md. 185; 14 Cyc. 788.
When the judgment was given, made and entered in the original proceeding, the court
made no reservation of any kind. The record shows there was no motion for new trial, nor any
appeal taken. The judgment then became final. But to continue the full and complete
jurisdiction of the district court over the term at which judgment is rendered, some order must
be made or some proceeding taken in accordance with the statute. State v. First Nat. Bank, 4
Nev. 358; State v. Smith, 16 Nev. 371. It is well settled, upon the soundest policy, that after
the adjournment of a term a court loses all control over its decrees and judgments rendered at
such term, unless its jurisdiction is saved by some proper proceeding instituted within the
time allowed by law. Daniels v. Daniels, 12 Nev. 118; Clark v. Strauss, 11 Nev. 76; Castro
v. Richardson, 25 Cal. 49; Exchange Bank v. Ford, 3 Pac. 449; Jones v. Sulphur Co., 14 Nev.
174; Vantilburg v. Black, 3 Mont. 469.
Norcross, Thatcher & Woodburn, for Respondent:
Divorce cases are not to be governed by the ordinary rules which apply to civil cases. The
object of all civil actions is the obtaining of a judgment that will be final. This is both
necessary and proper in order that property rights, title to property and rights to property may
be finally and definitely settled. A divorce proceeding, however, is one in which the state has
an interest; it deals with a status, and should always be open to modification, change or
alteration in the interest of justice. It is the policy of the law in divorce proceedings to protect
the parties, and the children, issue of the marriage. Stats. 1915, p. 324.
The present worth of the judgment in the divorce proceeding was found and established by
the court in order that the estate could be wound up. The order reducing it to its present worth
was within the power and jurisdiction of the court, especially in the probate proceedings, for a
suit upon a rejected claim is but a part of the estate proceedings. Creyts v. Creyts, 106 N. W.
111.
Alimony previously allowed does not terminate on the death of the husband. Lake v.
Bender, 18 Nev. 361; O'Hagan v. Executor, 4 Iowa, 509. Whether or not the divorced wife
and minor children, or any of them, are entitled to have the payment of alimony or money for
their support continue after the death of the deceased, depends on the nature and terms of the
decree allowing the same. Murphy v. Moyle, 17 Utah, 113. Under the statute, the court has
power to enter a decree for alimony which will survive the death of the husband. Stone v.
Bayley, 75 Wash. 184; Ex Parte Hart, 24 Cal. 254.
This proceeding was begun on the 13th day of October, 1917, by petition and motion of
Mabel Viola Sweeney, entitled in the divorce action of Mabel Viola Sweeney, plaintiff,
against James G. Sweeney, defendant, to have the judgment for absolute divorce rendered
therein on the 30th day of December, 1914, modified, altered, and amended so as to make the
alimony awarded the plaintiff and for the support of the minor child of the marriage a lien
upon the estate of the defendant, who died on the 7th day of July, 1917, superior to creditors
and the devisees under the last will and testament of the defendant, and, further, to have the
present value of the judgment ascertained and determined, and, when ascertained and
determined, adjudged and decreed to be a lawful claim against the estate of the defendant in
the hands of his executors, as a judgment made and found on the date of the original decree,
to wit, December 30, 1914.
The decree of divorce, among other things, provides as follows:
It is further ordered, adjudged, and decreed that defendant pay to plaintiff, beginning with
the date of this decree, payable in advance, the sum of $25 per month each and every month
for the support, care, maintenance and education of said minor child, Alice Louise Sweeney,
until she attains her majority, and in like manner and time pay to the plaintiff the further sum
of $50 each and every month, until the plaintiff may again marry, as alimony for her support.
The petitioner sets up in her petition her marriage, her decree of divorce, the death of the
defendant, his last will and testament, the value of the testator's estate, approximately
$30,000, the probate of his will devising all of his property to his executors, except a bequest
of $2,000 to his daughter, Alice Louise Sweeney, the issuance of letters testamentary to the
executors (appellants), and the publication of notice to creditors. She further alleges that no
provision was made in the divorce judgment to secure the sums ordered to be paid to plaintiff
by the defendant for the support of said daughter, a minor child of the marriage whose
custody, by the terms of the decree, was awarded to plaintiff, and, further, that no provision
was made in the said decree to secure the alimony awarded plaintiff. And upon information
and belief she alleges that the executors of the estate of James G. Sweeney will refuse to
continue payment of said sums and will decline and refuse to set apart any part or portion of
the estate of the defendant to secure the continued payment of said sums, or either of them,
and, being without remedy, she demands that the executors of the last will and testament of
James G. Sweeney be substituted as defendants for their testator in the divorce suit, and that
the judgment for divorce be modified, altered, and amended in conformity to the prayer of her
petition.
The district court, upon a hearing of the motion, substituted the executors as defendants for
their testator in the divorce suit, and by its order found the present value of the judgment in
said action to be $10,022.13, of which sum $1,214.13 {says the order of the court) is for
the care, custody, and support of the minor child, Alice Louise Sweeney, and $S,S0S, is for
the support and maintenance of the plaintiff in said action, taking into consideration the
life expectancy of said Alice Louise Sweeney, the life expectancy of plaintiff, Mabel Viola
Sweeney, and taking into consideration the chances of the remarriage of the plaintiff,
Mabel Viola Sweeney.
present value of the judgment in said action to be $10,022.13, of which sum $1,214.13 (says
the order of the court) is for the care, custody, and support of the minor child, Alice Louise
Sweeney, and $8,808, is for the support and maintenance of the plaintiff in said action, taking
into consideration the life expectancy of said Alice Louise Sweeney, the life expectancy of
plaintiff, Mabel Viola Sweeney, and taking into consideration the chances of the remarriage
of the plaintiff, Mabel Viola Sweeney. And by its order adjudged and decreed the value of the
judgment, so ascertained and determined, to be paid Mabel Viola Sweeney in lieu of and in
place of the monthly sums as provided in said decree of divorce, and further ordered,
adjudged, and decreed that the lump sum be and is made a lien upon the property and assets
of the estate of James G. Sweeney, deceased, as a judgment made and found on the date of
the original decree, to wit, December 30, 1914, and further ordered, adjudged, and decreed
that said judgment be approved as an approved and allowed claim against said estate and paid
in the due course of its administration and settlement.
A certified copy of the judgment for divorce was, within the time required by law,
presented to the representatives of the estate of James G. Sweeney, deceased, as a claim
against his estate, which was neither approved nor rejected. It appears that thereafter the
attorneys for the respective parties entered into a written stipulation, in part as follows:
That the above-entitled proceedings be heard and determined, and that in all respects said
proceedings be considered as a suit and action against the estate of James G. Sweeney upon
said claim as though the same had been rejected, and that both proceedings be in effect
determined together.
The appellants appeal to this court from the said order and judgment by separate notices of
appeal, and by their assignments of error, sixteen in number, raise the question of the
jurisdiction, power, and authority of the court below under the statute, the general law, and in
the circumstances of this case, to make said order and render such judgment.
the circumstances of this case, to make said order and render such judgment.
1, 2. The movant and petitioner (the plaintiff in the divorce suit) alleges in her petition
that no provision was made and no specific property of the defendant was set aside by the
original decree for the purpose of securing the monthly sums adjudged and decreed to be paid
plaintiff by the defendant. We regard this as an admission on the part of the plaintiff
(petitioner) that the judgment rendered in connection with the decree for divorce, standing
alone, could not be construed as a charge upon the estate of the defendant; otherwise there
would have been no necessity for the procedure adopted to modify, alter, and amend the
judgment. Undoubtedly the rule is that a judgment cannot be set aside, altered, or amended
after the term of court at which it was rendered. State v. First National Bank of Nevada, 4
Nev. 358; Daniels v. Daniels, 12 Nev. 118; Lang Syne M. Co. v. Ross, 20 Nev. 136, 18 Pac.
358, 19 Am. St. Rep. 337; 15 Ency. Pl. & Pr. 216. Now that terms of court are abolished
(State v. Jackman, 31 Nev. 511, 104 Pac. 13), a judgment can be set aside or amended only as
provided by statute (Rev. Laws, 5084), except for fraud or other instances not material here.
It is the contention of the respondent that the rule of the statute does not apply to a
judgment rendered in connection with a decree of divorce, and the appellants are precluded
by their stipulation from raising the question of the court's jurisdiction to alter and amend the
final judgment in the divorce suit.
3-5. There is nothing peculiarly applicable to a divorce proceeding which gives a court
jurisdiction to amend or alter a final judgment. A decree a vinculo is final, and the
jurisdiction of the court over the parties is after the expiration of the term at an end; and just
as there can be no grant of alimony after such a divorce, so there can be no change in the
award of alimony, unless the right to make such a change is reserved by the court in its
decree, as it may be, or is given by statute, as it often is.
it often is. Stewart on Marriage and Divorce, secs. 366, 376. But where there is no such
statute (and we have none), and where the decree does not reserve the right to the court (as it
does not here) to alter the decree for alimony, no such authority exists. Howell v. Howell, 104
Cal. 45, 37 Pac. 771, 43 Am. St. Rep. 70; Egan v. Egan, 90 Cal. 15, 27 Pac. 22; Ruge v.
Ruge, 97 Wash. 51, 165 Pac. 1063, L. R. A. 1917f, 721; Kamp v. Kamp, 59 N. Y. 212. The
same is true as to provisions in a final judgment of divorce for the support of children of the
marriage. The cases cited by respondent in this connection are based upon a particular statute
or upon the terms and conditions of the decree. Granting that by our statute (Rev. Laws,
5843) courts upon the dissolution of a marriage are vested with almost unlimited authority
and power to make such provision for the support of the wife and children as shall be deemed
to be just and equitable, and upon such terms and conditions as it may deem necessary for
such purpose, we do not apprehend that it could be successfully urged that the power thus
conferred is so omnipotent as to empower a court, nearly three years after a final judgment in
a divorce suit, to receive the cause, resurrect a dead defendant, and, under the guise of making
his representatives parties defendant, retry an issue incident to the original action and render a
judgment therein entirely different in form and effect of this proceeding, and such is the
ultimate effect of the court's order and judgment. If we countenance such practice, when
would divorce litigation ever end?
6. But it is insisted by counsel for respondent that the appellants are precluded by their
stipulation from raising the question of the court's jurisdiction to modify, alter, and amend the
judgment in the divorce suit, and this court by virtue of the stipulation is authorized to
consider this as an action against the executors of the estate of James G. Sweeney, deceased,
to have the judgment in the divorce suit adjudged and decreed to be a lawful claim against
his estate as a judgment with the priority of a lien as of the date of the original decree.
claim against his estate as a judgment with the priority of a lien as of the date of the original
decree. This we decline to do: First, because to sanction the stipulation would be to nullify
the express mandate of the statute with reference to the adjudication of claims against the
estates of deceased persons and permit litigants to stipulate jurisdiction to suit their own
conveniencewhich can never be done. (Hastings v. Burning Moscow, 2 Nev. 93; Phillips v.
Welch, 11 Nev. 187); second, because it affirmatively appears from the petition that the
original decree makes no provision that the sums payable to the wife are a charge upon any
specific property of the defendant, and the prayer of her petition is that the judgment be so
altered and amended as to make the same a lien. The stipulation falls by its own weight.
Our conclusion is that the judgment rendered in connection with the decree of divorce, in
legal construction, is not a charge upon the estate of James G. Sweeney, deceased, and the
court below had no jurisdiction to make the order and judgment appealed from.
The order is annulled, and the judgment is reversed.
Coleman, C. J.: I concur.
Ducker, J., did not participate in the consideration of this case.
____________
42 Nev. 441, 441 (1919) Wright v. Starr
[No. 2344]
CATHRYN L. WRIGHT, Appellant, v. C. T. STARR,
Respondent.
[179 Pac. 877]
1. Assault and BatteryRecovery of DamagesPrecluded by Consent to Assault.
A recovery of damages may not be had in a civil action for ordinary assault and battery by one who has
consented to or participated in the acts causing the injury.
2. Assault and BatteryCivil ActionLack of ConsentPleading.
Lack of consent being an essential element of a civil action for damages for assault and battery, it is
unnecessary that defendant affirmatively plead consent in justification of the acts charged in the complaint
and denied in the answer.
3. Appeal and ErrorHarmless ErrorCross-Examination.
In civil action for assault and battery, exclusion, on cross-examination of defendant, of question as to
statement made by him, held cured by admission of testimony of one who heard the statement.
Action by Cathryn L. Wright against C. T. Starr. Verdict for defendant. From order
denying a motion for new trial, plaintiff appeals. Order affirmed.
H. V. Morehouse and James T. Boyd, for Appellant:
The instruction of the court as to consent being a defense or justification of an assault and
battery was error. McNeil v. Mulling, 79 Pac. 168. The fighting being unlawful, the consent
of the plaintiff to fight, if proved, would be no bar to his action. Bell v. Hansley, 3 Jones, 131;
Morris v. Miller, 131 Am. St. Rep. 636; Adams v. Waggoner, 5 Am. St. Rep. 230; Willey v.
Carpenter, 15 L. R. A. 853; Stout v. Wren, 9 Am. Dec. 653; Shay v. Thompson, 48 Am. St.
Rep. 538.
The answer is only a denial; no justification is pleaded. The only issue before the court,
therefore, was whether or not defendant assaulted, beat, and bruised the plaintiff. Under a
general denial, the defendant cannot introduce evidence tending to prove a justification of the
assault. Ency. Pl. & Pr., vol. 2, p. 862. Under a mere general denial, the defendant cannot
introduce evidence to prove a justification of the assault."
general denial, the defendant cannot introduce evidence to prove a justification of the
assault. Konigsberger v. Harvey, 7 Pac. 114; Neilsen v. Hovander, 105 Pac. 172; 3 Cyc.
1084; Hathaway v. Hatchard, 35 N. E. 857; Blake v. Damon, 103 Mass. 199; Boles v.
Pinkerton, 7 Dana, 453; Allen v. Bear Creek, 115 Pac. 673; Harris v. O. S. L. Co., 117 Pac.
700; Burger v. T. M. Co., 120 Pac. 519. A defense not pleaded cannot be made the basis of a
decree. Pac. Ry. Co. v. Astoria, 99 Pac. 1044.
The court erred in sustaining the objection of the defendant to the question asked
defendant on cross-examination. It is the absolute right of a cross-examining party to lay a
foundation for impeaching a witness, by interrogating him as to whether or not he had made
contrary declarations on a former occasion, and the exclusion of questions for this purpose is
error for which a new trial will be granted. Thompson on Trials, vol. 1, sec. 490; State v.
Pemberton, 104 Pac. 556; McFarlain v. State, 41 Tex. 23; Pruett v. Brockman, 46 Ind. 56;
Larkin v. Saltair B. Co., 83 Pac. 686; Denver R. R. Co. v. Mitchell, 94 Pac. 289; Reno Mill
Co. v. Westerfield, 26 Nev. 332; People v. Howard, 76 Pac. 1116; Schneider v. Market St. R.
Co., 66 Pac. 734. It is permissible to attack the credibility of a witness by showing that at
other times and places he has made statements which are inconsistent with or contradictory to
the testimony which he has given. 40 Cyc. 2687.
Hoyt, Gibbons, French & Henley, for Respondent:
The contention of the appellant that consent is not a defense to an action of this kind is
untenable. If the party alleging to have been wronged consented to the acts done and
performed, there can be no invasion of the rights of that party, and no assault or battery can
result. In cases where life and limb are exposed to no serious injury in the common course of
things, consent is a good defense to the action, provided there is no breach of the peace. 5 C.
J. 629; Courtney v. Clinton, 4S N. E. 799; Goldnamer v. O'Brien, 33 S. W. S31; O'Brien v.
Cunard S. S. Co., 13 L. R. A.
Clinton, 48 N. E. 799; Goldnamer v. O'Brien, 33 S. W. 831; O'Brien v. Cunard S. S. Co., 13
L. R. A. 329; Smith v. Simon, 37 N. W. 548; Gibeline v. Smith, 80 S. W. 961; Pillow v.
Bushnell, 5 Barb. 156; State v. Pickett, 11 Nev. 255. An assault implies force upon one side,
and repulsion, or at least want of assault, on the other. An assault upon a consenting party
would therefore be a legal absurdity. Wait, Act. & Def., sec. 11, p. 344.
The question of consent being affirmatively pleaded is directly involved in the foregoing,
and the authorities cited are applicable. The consent upon which the defense of the defendant
in this action is based is not pleaded as justification. The lack of consent to the perpetration of
the acts alleged in the complaint is one of the essential elements of the cause of action of the
plaintiff, and if there was consent on the part of the plaintiff to the commission of the acts
alleged in the complaint, there was no assault.
If the court erred in sustaining the objection of defendant to the question asked defendant
upon cross-examination, plaintiff was not damaged thereby.
This is an action for damages alleged to be the result of an assault and battery. The
complaint, in substance, alleges that respondent assaulted appellant by grabbing and pressing
her throat and neck with his hands, and by grabbing and taking hold of her left wrist, and
pressing her wrist watch into the flesh, and by grabbing and twisting her right hand, and by
tearing her clothes from her person, by all of which she was hurt, wounded, and bruised, and
caused physical suffering, etc. All these allegations are denied in the answer.
The alleged assault occurred in a room occupied by the appellant, at which respondent,
who is a dentist by profession, had called. Appellant's testimony tended to establish the
allegations of the complaint. Respondent contradicted her testimony in this regard, and
testified that he merely kissed her with her consent. He also stated that he sought to kiss her
good-bye, at which she demurred and he desisted.
stated that he sought to kiss her good-bye, at which she demurred and he desisted.
The verdict of the jury was in favor of respondent, and from the order denying a motion
for a new trial, appellant brings this appeal.
Error is assigned in giving the following instruction to the jury:
The gist of this action is the commission of the acts alleged and lack of consent thereto by
the plaintiff, and you are instructed that, if you believe from the evidence that plaintiff
consented to or was willing that defendant do the acts alleged in the complaint to have been
committed by him, then your verdict should be for the defendant. If the plaintiff consented to
or acquiesced in such acts, or if she was willing that defendant do them, then she is not
entitled to recover damages from defendant.
1. One of the objections to the instruction is that consent of the party assailed is no
defense in an action for assault and battery. In a criminal prosecution for assault and battery,
consent to a beating is no defense; the reason being that a wrong is committed against the
public peace. The state punishes a person for fighting.
There are three parties here; one being the state, which, for its own good, does not suffer
the others to deal on a basis of contract with the public peace. The rule is therefore clear and
unquestionable that consent to an assault is no justification. Cooley on Torts.
The learned author extends this rule to civil actions upon the ground that a consent which
the law forbids cannot be accepted as a legal protection. This doctrine is the basis of the
authorities cited by appellant to sustain her contention and of others we have examined, in
which the same contention is sustained.
On the other hand, the author, in Bishop, Non-Cont. Law, par. 196, says that
Rape, one of the most aggravated batteries, is, if the woman consents, neither rape nor
even an assault, and that the execution of any unlawful contract places it past annulment,
and leaves no right of action in either party against the other.
it past annulment, and leaves no right of action in either party against the other. So that,
though a mutual beating by consenting parties is wrong against the public, because a breach
of the peace, it is not such as between themselves, since neither can complain of that to which
he has consented. Such is the distinct and inevitable deduction of the reasoning of the law;
applicable, however, in all its consequences, only where the beating was not in excess of the
consent. But we have American cases in which the judges have overlooked the distinction
between the civil and criminal remedy, and so have held that one may maintain his civil suit
for a battery to which he consented and in which he participated. Decisions like these,
proceeding on a misapprehension, and overlooking established law not brought to the notice
of the judges, should not be followed in future cases.
We think the true rule is stated by the learned author last quoted. To permit a recovery of
damages in a civil action for an assault, by one who has consented to or participated in the
acts causing the injury, is to countenance a principle that one may profit by his own wronga
theory obnoxious to both law and equity. It is a general rule of law that no person can
maintain an action for a wrong where he has consented to the act which occasions his loss
(Broom's Leg. Max. 268; Wait, Act. & Def. 344), and we perceive no real reason why a civil
action for damages in an ordinary case of assault and battery is an exception to the rule.
If the defendant is guilty of no wrong against the plaintiff, except a wrong invited and
procured by the plaintiff for the purpose of making it the foundation of an action, it would be
most unjust that the procurer of the wrongful act should be permitted to profit by it. 1
Jaggard on Torts, 199.
The state is not interested in damage suits for assault and battery, except in so far as its
laws intend equal justice to all. As it is wrong to make an assault, it is equally wrong to
consent to it. Neither the party who is injured, and who seeks to make a mutual wrong the
basis of an action, nor his coviolator of the law, can derive aid from the state by reason of
their unlawful encounter.
basis of an action, nor his coviolator of the law, can derive aid from the state by reason of
their unlawful encounter. Both are punishable, for their consent, illegally given, violates the
criminal law, and in this the state is an interested party. The contention that one may maintain
an action for damages for an assault to which consent is given furnishes an anomaly which
cannot be justified by reason or sound authority. Let us apply it to the case at bar. If
appellant's version of the acts complained of is correct, what was the purpose of the assault?
Clearly a rapeone of the most aggravated batteries. But if she had consented to such an
intention she would have no redress, either civilly or in a criminal action. Yet for the minor
degree of the assault, even though consent were given, if her contention is allowed,
respondent is liable to a criminal prosecution and a civil action for damages.
We do not wish to be understood as holding that damages may not be recovered for
injuries inflicted in an assault and battery, where the beating is excessively disproportionate
to the consent, given or implied, or where the party injured is exposed to loss of life or great
bodily harm. No such case is before us. But we do hold that, in an ordinary assault and battery
in the common course of things, consent precludes a right of action for injuries received.
Bishop, Non-Cont. Law, par. 196; Pillow v. Bushnell, 5 Barb. (N. Y.) 156; Christopherson v.
Bare, 63 Eng. Com. L. Rep. 477; Hegarty v. Shine, 14 Ir. C. C. L. 145; O'Brien v. Cunard
Steamship Co., 154 Mass. 272, 28 N. E. 266, 13 L. R. A. 329; Goldnamer v. Sallie O'Brien,
98 Ky. 569, 33 S. W. 831, 36 L. R. A. 715, 56 Am. St. Rep. 378; Nicholls v. Colwell, 113 Ill.
App. 219.
2. It is contended that the instruction is erroneous because no issue is made by the
pleadings on the question of consent. The answer consisting of denials only, appellant insists
that, because consent is not affirmatively pleaded as a justification, it is not available as a
defense.
Lack of consent is an essential element of the offense of assault and battery. It is true the
law punishes for an assault in a criminal action, even if consent is given the assailant; but this
is because consent to a battery is illegal as against the state, on account of the breach of public
peace involved. One is forbidden to consent to an assault, but lack of consent is no less an
element of the offense.
An assault implies force upon one side, and repulsion, or at least want of assent, upon the
other. An assault upon a consenting party would therefore be a legal absurdity. Wait, Act. &
Def. p. 344.
A battery is defined by Bishop to be
Any unlawful beating, or other wrongful physical violence or constraint, inflicted upon a
human being without his consent.
This court, in the case of State v. Pickett, 11 Nev. 255, 21 Am. Rep. 754, distinctly
recognized that lack of consent is an essential ingredient of an assault. Holding that there is
no such crime as assault with intent to commit rape upon a consenting female, the court in its
discussion said:
An assault is a necessary ingredient of every rape, or attempted rape. But it is not a
necessary ingredient of the crime of carnally knowing a child under the age of 12 years, with
or without her consent. * * * It is obvious that here are two crimes differing essentially in
their nature, though called by the same name. To one force and resistance are essential
ingredients, while to the other they are not essential; they may be present or absent without
affecting the criminality of the fact of carnal knowledge. As an assault implies force and
resistance, the crime last defined may be committed, or at least attempted, without an assault,
if there is actual consent on the part of the female.
As want of consent is a necessary element of an assault, when considered from the
standpoint of criminality, it, of course, follows that, when the acts constituting the assault are
made the basis of a civil action, lack of consent to their commission is an essential element in
the cause of action.
element in the cause of action. Under this view it was unnecessary to affirmatively plead
consent in justification of the acts charged in the complaint, which were denied in the answer.
In support of their contention that consent, to be available as a defense in an action of this
kind, must be affirmatively pleaded, counsel for appellant have cited a line of cases which are
inapplicable to the case at bar. They hold generally that, where a party seeks to justify the acts
charged on the ground of self-defense, such defense must be specially pleaded; or, as in
Neilsen v. Hovander, 56 Wash. 93, 105 Pac. 172, 21 Ann. Cas. 113, where, under a general
denial, the defendants sought to justify the assault by proving that the person assaulted was
interfering with their going over a public highway. Consent to the commission of the acts
alleged as an assault was not involved in any of these cases. The assault was admitted, and
the defendant in each case attempted to show by new matter why the assault was not
wrongful. In this case, if the respondent's version of the acts charged as assault and battery is
true, and the jury, by returning a verdict in his favor, must have accepted his statement of the
acts as true, then there was no assault because the appellant consented to what was done. An
essential element of the offense was lacking.
3. Error is assigned in the ruling of the court in sustaining defendant's objection to the
following question propounded to the defendant, who was a witness in his own behalf:
And saw plaintiff, and that you were in such a condition that you don't know what you
did, but that you were very sorry that you had gone as far as you did, and that you would not
have done what you did, had you been at yourself and not under the influence of liquor; that
you drank, and when you did so lost your mind and your capacity to remember what you had
done. Now, did you have any such conversation, and did you make any such statement to W.
M. Gardiner and Mr. Judd? Appellant contends that the court committed reversible error
in sustaining the objection to the question, for the reason that its purpose was to show an
inconsistent statement on a material matter, made by respondent a few days after the
alleged assault, and affecting his credibility as a witness.
Appellant contends that the court committed reversible error in sustaining the objection to
the question, for the reason that its purpose was to show an inconsistent statement on a
material matter, made by respondent a few days after the alleged assault, and affecting his
credibility as a witness.
The question to which the objection was taken and sustained, is incomplete; but, taken in
connection with preceding questions in the record, it was in substance a question asked to
elicit testimony to the effect that, several days after the alleged assault, at the office of
William Gardiner, an attorney, in the presence of one Mr. Judd, the respondent made the
statement that, when the acts complained of by appellant occurred, he was under the influence
of liquor, and when in that condition he lost his mind and capacity to remember what he had
done. The purpose of the question was also to lay the proper foundation for impeachment in
case the assumed inconsistent statement was denied by respondent. By previous questions the
attention of the witness had been properly called to the time and place of the statement and
persons present. We think it sufficient to say that, if the ruling was error, it was subsequently
cured by the admission of the testimony of Mr. Gardiner, who was called as a witness by
appellant. Mr. Gardiner testified that respondent, in the presence of himself and Mr. Judd on
the occasion referred to in the question, stated that at the time of the alleged assault he did not
know what he was doing. This was in substance the testimony which the question, asked of
respondent on cross-examination and ruled against by the court, was designed to elicit. The
impeaching testimony sought by appellant was thus received by the jury, and the credibility
of the respondent as successfully attacked as though he had answered the question and denied
the statement attributed to him.
The order of the district court denying the motion for a new trial is affirmed.
____________
42 Nev. 450, 450 (1919) Clark v. Turner
[No. 2354]
ZOE CLARK, Appellant, v. C. C. TURNER and
HANS KRAUSPE, Respondents.
[180 Pac. 908]
1. Appeal and ErrorTime of TakingDismissal.
Where appellant failed to file and serve her notice of appeal within six months after rendition of
judgment, as required by Stats. 1913, c. 91 (Rev. Laws, 5329), a motion for dismissal of the appeal must be
sustained.
Appeal from Eighth Judicial District Court, Lyon County; T. C. Hart, Judge.
Action by Zoe Clark against C. C. Turner and Hans Krauspe. Judgment for defendants,
and plaintiff appeals. Appeal dismissed.
J. M. Frame, for Appellant.
Waggoner & Guild, for Respondents.
This is an appeal from a judgment alone. The respondents move to dismiss the appeal,
upon the ground that the appeal was not taken within six months after the rendition of the
judgment. Stats. 1913, p. 113; Rev. Laws, 5329.
The record shows that the judgment was rendered on November 27, 1916; that a notice of
appeal, dated May 27, 1917, was filed on June 8, 1917; that another notice of appeal from the
same judgment was filed and served on January 9, 1918.
The appellant having failed to file and serve her notice of appeal within the time required
by law, the motion is sustained. Lambert v. Moore, 1 Nev. 344; Peran v. Monroe, 1 Nev. 484;
Lyon Co. v. Washoe Co., 8 Nev. 177; Johnson v. Badger M. & M. Co., 12 Nev. 262; Central
T. Co. v. Holmes Co., 30 Nev. 437, 97 Pac. 390; Ward v. Silver Peak, 37 Nev. 470, 143 Pac.
119; Nelson v. Smith, 42 Nev. 302, 176 Pac. 261.
____________
42 Nev. 451, 451 (1919) McCone v. Eccles
[No. 2357]
A. J. McCONE, Respondent, v. DAVID C. ECCLES,
Appellant.
[181 Pac. 134]
1. Limitation of ActionsNonresident DefendantPersonal Property Within State.
In action to recover personal property, where defendant was a nonresident and rarely visited the state, the
plea of the statute of limitations was not available, though property was situated in state.
2. SalesPassing of TitleCompliance with Conditions.
Where buyers enter into contract whereby title is to pass upon compliance with certain conditions
imposed by seller, the conditions must be fully complied with before title passes.
3. Appeal and ErrorReviewFindings.
Findings of the trial court are reluctantly disturbed, and will not be interfered with where there is
substantial evidence to sustain them.
4. ContractsQualified Acceptance.
Where the terms of a letter of proposal are accepted with certain qualifications, contract is not complete
until terms imposed by letter of acceptance are agreed to.
5. SalesOffer and acceptanceRevocation of Offer.
Seller, having offered to transfer title upon receipt of buyer's notes for unpaid purchase price, has the
right to revoke such offer at any time prior to receiving such notes.
6. SalesPassing of TitleAgreement to Transfer Title.
Seller's offer to transfer title upon receipt of buyer's notes for unpaid purchase price did not ripen into a
complete contract until receipt by seller of buyer's notes.
Action by A. J. McCone against David C. Eccles. From judgment for plaintiff and from
order denying new trial, defendant appeals. Affirmed.
James Dysart and Boyd, DeVine, Eccles & Woolley, for Appellant:
The plaintiff in a replevin suit must not allege, but must prove, by a preponderance of the
evidence, that he is entitled to the immediate possession of the property at the time the action
is commenced. Kipp v. Silverman, 64 Pac. 884; Gallick v. Bordeaux, 78 Pac. 583; Strong v.
Morgan, 67 Pac. 448; Frank v. Symons, 88 Pac. 561.
The assignment of the contract was the best evidence. Plaintiff should have been
compelled to rely upon same in support of his claim of ownership. Towdey v. Ellis, 22 Cal.
650; Price v. Wolfer, 52 Pac. 759; Barnett v. Williams, 7 Kan. 341; Crary v. Campbell, 24
Cal. 634.
The offer to accept notes in payment of the balance due under the contract, having been
accepted, it was too late to attempt to withdraw the offer. 6 R. C. L. 605, 612.
Plaintiff's right to recover was barred by the statute of limitations. Rev. Laws, 4967. The
burden was upon plaintiff to prove, by a preponderance of the evidence, that the action was
not so barred. Adams v. Coon, 129 Pac. 851; McGehee v. Alexander, 127 Pac. 480; Vaughn
v. Gatlin, 120 Pac. 273; Doe v. Hyland, 3 Pac. 388; Leavitt v. Shook, 83 Pac. 391; Shelby v.
Shaner, 115 Pac. 785; Schwartz v. Stock, 26 Nev. 153.
The notes having been accepted, they took the place of the title-retaining contract. Linder
Hardware Co. v. Pacific Sugar Co., 118 Pac. 785; Stanley v. McElrath, 22 Pac. 673; Sutter v.
Moore, 70 Pac. 746; Garr, Scott & Co. v. Rogers, 148 Pac. 161; 29 Cyc. 1130; Bandmen v.
Finn, 12 L. R. A. 1134. Where an offer is made by mail, the contract is complete the moment
the party to whom the offer is made deposits the letter of acceptance in the postoffice, and it
then becomes a binding contract, even though the letter of acceptance may never reach the
party making the offer. 6 R. C. L. 603, 604; Weaver v. Burr, 3 L. R. A. 95. An offer by letter
may be accepted by telegram. 6 R. C. L. 615. In order to make a withdrawal effective, it must
be brought to the knowledge of the other party before acceptance. Sherwin v. National C. R.
Co., 38 Pac. 392; Bailey v. Leishman, 89 Pac. 78; Turner v. McCormick, 67 L. R. A. 853;
Cartensen & Anson Co. v. Wright, 138 Pac. 830; Sergist v. Crabtree, 33 L. Ed. 125.
Carey Van Fleet and J. M. McNamara, for Respondent:
Appellant was not a bona-fide purchaser, because the sale was conditional and the contract
title-retaining.
35 Cyc. 680; Cardinal v. Edwards, 5 Nev. 41; Van Allen v. Francis, 56 Pac. 340; Maxwell v.
Tufts, 45 Pac. 980.
There is no question here of any completed contract to take the notes in payment. The
agreement did not amount to a novation, and there was no consideration for it. 20 Cyc. 1130,
1135, 1138; Elliott on Contracts, vol. 1, pp. 57, 440, 441; Bates v. Starr, 21 Am. Dec. 568.
The offer may, however, be so worded that it may be inferred therefrom that the
confirmation of the contract is to depend on the actual receipt of the acceptance. 6 R. C. L.
sec. 35. The letters demanded an actual receipt of the notes, and there was still necessary the
execution of a conveyance or a receipt. Haas v. Meyers, 53 Am. Rep. 634. A contract is not
closed while any mutual act between the parties remains to be done to give either the right to
carry it into effect. Navajo County v. Dolson, 126 Pac. 153; Seamans v. The Knapp Stout
Co., 61 N. W. 757; Elliott on Contracts, vol. 1, 52, 53; Kolb v. Dunlevie, 60 S. E. 388; Camp
v. McLin, 52 South. 927.
When appellant took over the property he took over also the contract. Robbins v.
Milwaukee M. I. Co., 173 Pac. 635. The rights under the contract had not been waived.
Dillon v. Grutt, 38 Nev. 46.
The action was not barred by the statute of limitations. To make the statute a bar, defendant
must have been within the state for the full time limited by the statute after the cause of action
accrued against him. Wood on Limitations, sec. 245; Shinn on Replevin, sec. 298.
Defendant's possession of the property does not take the case out of the statutory exception.
Rev. Laws, 4975; Robinson v. Imperial M. Co., 5 Nev. 44; Todman v. Purdy, 5 Nev. 238; 25
Cyc. 1235.
On October 25, 1916, the respondent commenced this action in claim and delivery to
recover the possession of certain specific personal property. To the complaint an answer was
filed denying ownership of the property in the plaintiff, and pleading title thereto in
defendant.
Defendant also pleaded the statute of limitations. This is an appeal from a judgment in favor
of plaintiff, and from an order denying a motion for a new trial.
The facts are these: On June 1, 1912, the Nevada Engineering Works, a corporation
(hereafter designated the company), entered into a written contract of sale with one George H.
Davis of the property in question for the sum of $4,040, one-third payable upon the execution
of the contract, one-third upon the delivery of the property, and the balance when the mill was
erected upon certain mining property owned by the said Davis. It was further agreed that the
title to the property was to remain in the company until the full purchase price was paid. The
sum of $948 on account of the purchase price of the property was never paid. Prior to the
institution of this suit the company, in writing, assigned its claim to the plaintiff. On
September 7, 1912, negotiations were opened by Davis with the company, with a view on his
part of executing his notes for the balance due, and taking title to the property. One
September 13, 1912, the company wrote to Davis as follows:
Dear Mr. Davis: We are enclosing herewith two notes for you to sign, with statements
attached, showing the accounts settled by each. This is in accordance with your letter of
September 7th.
The first note is for $958.48, due October 10, 1912, and covers the balance due on the
contract for the stamp-mill machinery, allowing you credit for your two cash payments of
$1,346.66 each, and for the freight paid by you on the battery guides from San Francisco,
$36.75, and on the oil engine, $331.45.
The second note is for $1,052.69, due November 10, 1912, and covers the balance due on
your account for supplies furnished as per our statement attached.
We hope you will find both notes in order, and upon their return, properly executed, will
attend to the matter of a bill of sale. * * *
This letter was received by Davis at Salt Lake City, Utah, on September 15.
Utah, on September 15. He executed the notes and mailed them to the company at Reno. As
to the foregoing facts, it may be said there is no dispute. On the 17th of September, 1912, the
company sent a telegram to Davis at Salt Lake City as follows:
Will allow extension on your notes, but will not relinquish ownership of machinery,
and on the same day sent a letter of like purport to him. It is contended that the company did
not receive the notes, properly executed, until four days thereafter.
1. The first question which we will consider is the alleged error of the trial court in
overruling the plea of the statute of limitations. It appears from the evidence in the record that
the defendant was, at all times mentioned in the case, a resident of the State of Utah, and
rarely came to Nevada between the date of the transfer of the property to him and the
commencement of the suit. This question was under consideration by this court in Robinson
v. Imperial Silver Mining Company, 5 Nev. 44, and in Todman v. Purdy, 5 Nev. 238,
resulting in laying down a rule adverse to the contention of counsel for appellant. It is insisted
that, since the question involved in this case relates to personal property which was at all
times within the state, the rule established in the cases mentioned does not apply. In the case
first mentioned the question affected realty, and the court dealt with the point here raised at
some length, giving it careful and painstaking consideration. It is not insisted here that the
reasoning of the court in that case is not sound; it is rather contended that this case does not
fall within the rule there laid down, since the proposition of possession of personalty was not
discussed. There is no force in this contention. The court did discuss the question with
reference to the applicability of the statute to realty when the defense was sought to be made
by a foreign corporation, and what was said as to realty applies with equal force to personal
property, because in that case, as well as in the case at bar, the property in question was
within the jurisdiction of the court, and could have been reached by the process of the court
at any time prior to the institution of the suit.
could have been reached by the process of the court at any time prior to the institution of the
suit.
2. The next question which we will consider is the contention that the title to the property
in question passed from the company to Davis before he transferred his interest to Eccles, and
prior to plaintiff's assignment from the company. This contention grows out of the
correspondence between the parties relative to the acceptance of notes by the company in
settlement of Davis's indebtedness. The letter written by Davis to the company on September
7, 1912, we are unable to find in the record, but we think the fair inference to be drawn from
the letter of September 13 is that the title should not pass until the notes, properly executed by
Davis, were received by the company. If this is true, it would seem that the company had the
legal right to withdraw its offer at any time prior to its receipt of the notes properly executed.
This it did by the letter and telegram of September 17, in which it was stated that the
company would refuse to accept the notes in payment of the indebtedness and transfer the
title which it then had. We think it is the law that, when parties seek to enter into a contract to
procure the transfer of title to property in the manner by which Davis sought to procure the
transfer to him of the title to the property in question, it cannot be said that the title passes
until after all of the conditions which have been imposed by the party from whom the title is
to pass are complied with. The condition imposed by the company in this instance was the
receipt by it, properly executed, of the notes in question. These notes it received four days
after it had written Davis that it would not relinquish title to the property.
3. In this connection two points are urged by counsel for appellant. It is first asserted that
the telegram sent by the company to Davis, in which it is said, Will allow extension on your
notes, but will not relinquish ownership of machinery, shows that the notes were already
received by the company at the time the telegram was sent.
sent. The trial court found to the contrary, and we cannot say that it was not justified in so
finding. Findings of the trial court are reluctantly disturbed, and where there is substantial
evidence to sustain a finding, as in the case here, there can be no justification for interfering
with it.
4-6. It is further contended in this connection that the contract between the parties was
consummated, and that the title passed to Davis, upon the execution by him of the notes and
the mailing of the same to the company, in reliance upon the general rule laid down in 6 R. C.
L. at page 605. There can be no doubt as to the correctness of the general rule of law
contended for by counsel, but we cannot agree that it applies to the facts of this case. The
general rule is based upon an offer or proposal being made in one letter and of the unqualified
acceptance of such offer in a letter in reply thereto. On the other hand, it is an equally
well-established rule that, where the terms of a letter of proposal are not accepted without
qualification, but the offer is accepted with certain qualifications, no contract is complete
until the terms proposed in the second letter are agreed to. This rule is based upon the idea
that there is a lack of mutuality upon to that time. 6 R. C. L. p. 608. Upon the same theory,
the contract in the case at bar could not be complete until the terms imposed by the company,
namely, that the title should not pass until receipt of the notes, properly executed, had been
complied with. This was a condition imposed by the company and accepted by Davis without
protest, so far as the record shows. The contract could not be complete until the company
received the notes, and it had the right to revoke its offer at any time before the negotiations
had ripened into a perfect contract. As to the correctness of these views there can be no doubt.
The company could impose such reasonable conditions (and possibly unreasonable ones) as it
might see fit; and, in view of the fact that mail is sometimes lost in transit, we think it not an
unreasonable condition which was imposed by the company prior to the passing of the title.
the company prior to the passing of the title. Nor are we without authority to sustain this
view. In Wald's Pollock on Contracts (Williston, 3d Ed.), on page 41, it is said:
The practical conclusion seems to be that every prudent man who makes an offer of any
importance by letter should expressly make it conditional on his actual receipt of an
acceptance within some definite time. It would be impossible to contend that a man so doing
could be bound by an acceptance which either wholly miscarried or arrived later than the
specified time.
Denio, J., in Vassar v. Camp, 11 N. Y. at page 451, says:
The defendants' counsel, however, maintains that, by a fair construction of the
proposition made by the defendants in their letter of the 30th of August, it was made a
condition that the contract should not become operative until the plaintiffs' assent had actually
come to the knowledge of the defendants. Notwithstanding the rule of law which I have
considered as settled by the judgment of the Court of Errors, I do not doubt but that a party
proposing to contract may make it a condition that no bargain shall arise or be consummated
until the affirmative answer of the other party shall be actually received by the party
proposing.
Gray, C. J., in Lewis v. Browning, 130 Mass. 173, lays down the rule as follows:
But this case does not require a consideration of the general question; for, in any view,
the person making the offer may always, if he chooses, make the formation of the contract
which he proposes dependent upon the actual communication to himself of the acceptance.
Thesiger, L. J., in Household Ins. Co. v. Grant, 4 Ex. D. 223; Pollock on Con. (2d Ed.) 17;
Leake on Con. 39, note. And in the case at bar the letter written in the plaintiff's behalf by her
husband as her agent on July 8, 1878, in California, and addressed to the defendant at Boston,
appears to us clearly to manifest such an intention. After proposing the terms of an agreement
for a new lease, he says: If you agree to this plan, and will telegraph me on receipt of this, I
will forward power of attorney to Mr.
this plan, and will telegraph me on receipt of this, I will forward power of attorney to Mr.
Ware,' the plaintiff's attorney in Boston. Telegraph me Yes or No. If No, I will go on
at once to Boston with my wife, and between us we will try to recover our lost ground. If I do
not hear from you by the 18th or 20th, I shall conclude No.' Taking the whole letter
together, the offer is made dependent upon an actual communication to the plaintiff of the
defendant's acceptance on or before the 20th of July, and does not discharge the old lease, nor
bind the plaintiff to execute a new one, unless the acceptance reaches California within that
time. Assuming, therefore, that the defendant's delivery of a dispatch at the telegraph office
had the same effect as the mailing of a letter, he has no ground of exception to the ruling at
the trial.
See, also, 6 R. C. L. p. 615; 9 Cyc. 296; 13 C. J. 302.
In Morrill v. Tehama M. & M. Co., 10 Nev. 125, it was held that, in order to make a valid
contract, an offer must be accepted according to its terms. The facts in the instant case are
substantially the same as those in the case of Lewis v. Browning, supra. In that case a power
of attorney was to be executed upon the receipt of a telegram, while in the case at bar the deal
was to be consummated upon the receipt of notes properly executed. When Davis signed the
notes and mailed them, it must be presumed that he accepted the offer of the company as
embodied in its letter, according to its terms, and hence it cannot be said that a contract could
have been in force until the notes were received, duly executed; and, the offer having been
withdrawn before they were received, no contract was in fact consummated.
While there are several other errors discussed in the briefs, we think they are disposed of
by what has been said, or else turn upon questions of fact concerning which it may be said
that there is sufficient evidence in the record to justify our refusal to disturb the findings of
the court.
____________
42 Nev. 460, 460 (1919) Phillips v. Phillips
[No. 2366]
RUTH PHILLIPS, Respondent, v. PLINY H.
PHILLIPS, Appellant.
[180 Pac. 907]
1. DivorceHarmless ErrorOrders.
On order to show cause why defendant should not be punished as for contempt for failure to pay alimony,
an order directing him to pay certain alimony, which was futile as a process either for the enforcement of
the original order or for the execution of its own mandate, will not be vacated, even though the court did
not have jurisdiction in first place to award alimony.
2. DivorceAbility to Pay AlimonyQuestion of Fact.
Whether or not a divorced husband is able to pay alimony is a matter left entirely with the lower court.
Appeal from Second Judicial District Court, Washoe County; George A. Bartlett, Judge.
Action by Ruth Phillips against Pliny H. Phillips for divorce. Judgment for plaintiff. On
order to show cause why defendant should not be punished for contempt for his misconduct
in failing to pay alimony. From an order directing him to pay alimony, defendant appeals.
Affirmed.
H. V. Morehouse and H. W. Huskey, for Appellant:
An order is no part of the judgment, but, when set out in the judgment, it is a part of the
judgment. Rev. Laws, 5362. Nonpayment of alimony is made a contempt only by the
disobedience or resistance of any lawful writ, order, rule or process issued by the court or
judge at chambers. Rev. Laws, 5394. An order is any direction of a court or judge made or
entered in writing, and not included in a judgment. Rev. Laws, 5362; 15 Pl. & Pr. 316;
Berryhill v. Smith, 51 Iowa, 127; Loring v. Illsley, 1 Cal. 24.
The statute relating to contempts and punishments must be strictly construed, and no
interpretation should be given it beyond its obvious meaning. Ex Parte Sweeney, 18 Nev. 74.
The statute concerning contempts is a penal statute, and must be strictly construed in favor
of those accused of violating its prohibition. Maxwell v. Rives, 11 Nev. 213. No motion for
new trial was made herein nor appeal taken.
No motion for new trial was made herein nor appeal taken. There was no reservation in the
judgment, and it therefore became final. To continue the full and complete jurisdiction of the
district court over the term at which judgment is rendered, some order must be made or some
proceeding taken in accordance with the statute. State v. Bank, 4 Nev. 358; State v. Smith,
16 Nev. 371; Daniels v. Daniels, 12 Nev. 118; Clark v. Strauss, 11 Nev. 76. We have
repeatedly held that after the adjournment of the term the court loses all control over cases
decided, unless its jurisdiction is saved by some motion or proceeding at the time. Castro v.
Richardson, 25 Cal. 49; Exchange Bank v. Ford, 3 Pac. 449; Jones v. Sulphur Co., 14 Nev.
174; Vantilburg v. Black, 3 Mont. 469.
In civil contempts the facts set up in the affidavit must be such that when established they
would constitute a contempt. 9 Cyc. 6; Wyatt v. People, 28 Pac. 961; Batchelder v. Moore, 42
Cal. 412; Overland v. Supreme Court, 63 Pac. 372; Phillips v. Welch, 12 Nev. 164.
An execution is the proper process for the enforcement of the judgment. Van Cleave v.
Bucher, 21 Pac. 954; Hall v. Harrington, 44 Pac. 365.
Our divorce law is purely statutory. The statute is the measure of the power of the court. If
the statute grants no power, the court has none. Our statute authorizes the court to make
orders for temporary alimony only. Rev. Laws, 5843; Danforth v. Danforth, 40 Nev. 445;
Worthington v. District Court, 37 Nev. 234. The statute nowhere authorizes any decree
granting permanent alimony. Weber v. Weber, 17 pac. 866; Huffman v. Huffman, 114 Am.
St. Rep. 943; 2 Bishop, Mar. & Div., sec. 1039; Stewart, Mar. & Div., sec. 364; Brenger v.
Brenger, 135 Am. St. Rep. 1050. Alimony and counsel fees cannot be decreed except in
cases specified in the statues. Kelley v. Kelley, 42 Am. St. Rep. 389; Maslen v. Anderson,
163 Mich. 477; Perkins v. Perkins, 16 Mich. 162; Bialy v. Bialy, 167 Mich. 559; Stack v.
Grimon, 143 S. W. 450; Graham v. Graham, 136 N. W. 162.
To justify any act or proceeding in a case of divorce, whether * * * or to the mode of
enforcing the judgment or decree, authority therefor must be found in the statute. Barker v.
Dayton, 28 Wis. 367; Wallace v. Wallace, 72 Atl. 1033; Chapman v. Chapman, 192 S. W.
448.
If then the court below exercised power not conferred by the organic laws of the territory,
and not inherent in the court, the judgment is void, and may be taken advantage of anywhere
or before any court. Kenyon v. Kenyon, 24 Pac. 829; Murray v. A. S. Co., 70 Fed. 341;
Moore v. Town, 32 Fed. 498; Furgerson v. Jones, 11 Am. St. Rep. 808. The order herein
should be annulled, vacated, and set aside. Lutz v. District Court, 29 Nev. 152. The court
cannot read into the statute something beyond the manifest intention of the legislature
gathered from its language. Tiedemann v. Tiedemann, 36 Nev. 502. Violation of an order
which the court has no power to make is not contempt. State v. District Court, 53 Pac. 272;
Leopold v. People, 30 N. E. 348; Brown v. Moore, 61 Cal. 432; People v. O'Neill, 47 Cal.
109; Whitney v. Bank, 15 South. 33; Cline v. Langan, 31 Nev. 239. The judgment being void,
it may be attacked at any time, as being in excess of the jurisdiction of the court. People v.
Liscomb, 32 Pac. 197; Miskimins v. Shaver, 58 Pac. 411; Russell v. Shurtleff, 89 Am. St.
Rep. 218.
The defendant purges himself of contempt, even where the court has jurisdiction, when he
shows he has no money or property. Lutz v. District Court, supra; O'Callaghan v.
O'Callaghan, 69 Ill. 552; Ex Parte Silvia, 123 Cal. 293; Pinckard v. Pinckard, 23 Ga. 286;
Deen v. Bloomer, 61 N. E. 131; Nixon v. Nixon, 37 Pac. 839; Holcomb v. Holcomb, 102 Pac.
653.
L. D. Summerfield, for Respondent:
No motion for a new trial having been made, the insufficiency of the evidence cannot be
considered. Whitmore v. Shiverick, 3 Nev. 288; Cooper v. Insurance Co., 7 Nev. 116; James
v. Goodenough, 7 Nev. 324; Conley v. Chedic, 7 Nev. 336; Burbank v. Rivers, 20 Nev. 81.
The order entered by the lower court after the hearing had in the contempt proceedings
initiated on the affidavit of plaintiff was not a "verdict," as the conclusion was reached by
the court without a jury.
The order entered by the lower court after the hearing had in the contempt proceedings
initiated on the affidavit of plaintiff was not a verdict, as the conclusion was reached by the
court without a jury. It was, however, a decision. Rev. Laws, 5328; Burbank v. Rivers, 20
Nev. 81. Such a judgment or decree cannot be assailed unless it be shown that the court was
without authority to render it. * * * 14 Cyc. 794.
Upon receiving a divorce on account of defendant's misconduct, she is entitled to a
support from his property during her life, or so long as she shall remain unmarried. Lake v.
Bender, 7 Pac. 74. Inasmuch as there was no reservation in the decree of power to modify
the alimony and support and maintenance, it definitely fixed the obligation of the defendant,
and entitled plaintiff to recover the amount thereby established to be due and owing to her in
the courts of this state. Tiedemann v. Tiedemann, 158 N. Y. Supp. 851.
Although there is some authority to the contrary, it has been generally held that the ability
to comply, of one charged with contempt for disobedience of an order, need not be alleged in
the initiatory affidavit or complaint. 13 C. J. 661; In Re McCarthy, 154 Cal. 534; Galley v.
Galley, 33 Ohio Cir. Ct. 161; Andrew v. Andrew, 62 Vt. 495; Curtis v. Gordon, 62 Vt. 340;
In Re Meggett, 105 Wis. 291. The affidavit need set up only the disobedience of the court
order. Nowhere in the contempt statute is there support for the rule that plaintiff must set up
ability as a jurisdictional fact in the affidavit. Rev. Laws, 5396, 5403. 5404. The question
whether or not the petitioner was able to comply with the order was one of fact, to be
determined by the court making the order, upon evidence. Ex Parte Cottrell, 59 Cal. 417.
In most jurisdictions the statutes defining or enumerating specific acts which constitute
contempt are merely declaratory of the common law. 13 C. J. 8. Disobedience or resistance
of, or an attempt to prevent the execution of a lawful order, judgment, decree, or mandate of a
court is such an interference with or attempt to obstruct the due administration of justice as
to constitute a contempt.
to obstruct the due administration of justice as to constitute a contempt. 13 C. J. 9.
A decree for alimony will necessarily conform to the requirements of the practice in the
particular jurisdiction. It may be rendered separately or as a part of the decree of divorce. 14
Cyc. 782. The right to enforce payment of permanent alimony by contempt proceedings
belongs inherently to a court having jurisdiction in divorce suits, or is conferred upon them by
statute as a necessary incident to the exercise of such jurisdiction. 14 Cyc. 799. The
judgment is not attacked on the ground of fraud or mistake. The court has absolutely no
jurisdiction to change its decree, but possesses only the right to enforce obedience to it. Ruge
v. Ruge, 165 Pac. 1063.
Appellant failed to establish his inability to comply with the order. The burden is upon a
husband alleging inability to show that fact. 14 Cyc. 801. A defendant cannot be
imprisoned for contempt in failing to pay money awarded as alimony which he is unable to
pay, unless it appear that his inability was occasioned by his own act for the purpose of
avoiding payment.
This is primarily and essentially a contempt proceeding, initiated upon the affidavit of the
plaintiff in a divorce action, setting forth the failure of the defendant therein to pay alimony
awarded the plaintiff in connection with an absolute divorce.
Upon the presentation and filing of the affidavit entitled in the cause, the court below
made an order commanding the defendant to show cause why he should not be punished as
for contempt for his misconduct in failing to comply with the order of the court as set forth in
the affidavit, or such other order or orders as the court may deem meet and just to make in
the premises.
For answer to the show-cause order the defendant set up certain legal defenses in bar of the
proceeding and his inability to comply with the order.
Upon a full hearing the court made its findings of fact and conclusions of law, and upon
these findings caused to be entered an order, which is as follows:
It being satisfactorily shown to the court that the defendant has failed to obey the order of
this court, entered herein on the 17th day of September, 1913, providing for the payment of
fifty ($50.00) dollars per month to the plaintiff, Ruth Phillips, on the 15th day of each and
every month until such time as the plaintiff shall die or remarry; and on the hearing on the
order to show cause,' had in this court, it having been shown that the defendant is indebted to
the plaintiff in the sum of twenty-five hundred and seventy-five ($2,575.00) dollars under
said order, and said matter having been submitted on Saturday, November 30, 1918, and the
court being fully advised in the premises, now orders that said defendant be, and he is, hereby
ordered to pay to the plaintiff, forthwith, the sum of five hundred ($500.00) dollars, to be
credited on said total, the balance due thereon to be paid plaintiff by defendant at the rate of
fifteen ($15.00) dollars per month, on the 15th day of each and every month, at the time the
fifty ($50.00) dollars per month is paid as in said order of September 13, 1913, provided,
until said balance of twenty hundred and seventy-five ($2,075.00) dollars on the arrears shall
be fully paid and discharged; the fifty ($50.00) dollars per month alimony to continue as in
said original order provided.
From this order the defendant appeals.
While numerous errors are assigned and discussed, we take it that the appellant's main
objection to the order is that the court should have released him from the payment of any sum
or sums whatever as alimony, past or future, upon the ground and for the reason that the court
in the divorce action was without jurisdiction, power, or authority to award the plaintiff
alimony in connection with her decree of absolute divorce. In the view we take of this
proceeding and the order, it is unnecessary for us to express any opinion upon this question;
but we have a strong impression that this and other courts, whose statute is not unlike that
of ours, are committed against this proposition.
and other courts, whose statute is not unlike that of ours, are committed against this
proposition. Lake v. Bender, 18 Nev. 361, 4 Pac. 711, 7 Pac. 74, followed and construed in
Tiedemann v. Tiedemann, 172 App. Div. 819, 158 N. Y. Supp. 851, and Id., 36 Nev. 494,
137 Pac. 824, and followed in Powell v. Campbell, 20 Nev. 238, 20 Pac. 158, 2 L. R. A. 615,
19 Am. St. Rep. 350, on the point that the object of the statute regulating divorce was to
provide support for the wife and minor children Ex Parte Spencer, 83 Cal. 460, 23 Pac. 395,
17 Am. St. Rep. 266; In Re Cave, 26 Wash. 213, 66 Pac. 426, 90 Am. St. Rep. 736.
1. Our objection to the order is the form in which it is entered, but we do not regard this as
being so material as to justify its being vacated. It is futile as a process either for the
enforcement of the original order or for the execution of its own mandates. It leaves the
respondent to pursue such methods for its enforcement, in case the appellant should disobey
its direction, as she may be advised.
2. It is insisted that the evidence does not support the finding that the appellant is able to
comply with the order. This is a matter left entirely with the lower court, and we decline to
disturb its finding in this respect.
The order is affirmed.
____________
42 Nev. 467, 467 (1919) State v. Sella
[No. 2351]
STATE OF NEVADA, Respondent, v. ADOLFO
SELLA, Appellant.
[168 Pac. 278; 180 Pac. 980]
1. JuryDrawing of Panel in Courtroom.
The drawing of the panel of jurors in the courtroom, instead of the office of the county clerk, as provided
for by Rev. Laws, 4930, was not error; such statute being merely directory.
2. Criminal LawAppealPresumptionsArgument.
Where record does not purport to contain all the evidence given at the trial, appellate court will not
presume that the district attorney discussed matters not covered by the evidence.
Adolfo Sella was convicted of murder in the second degree, and from judgment of
conviction and from order denying new trial, he appeals. Affirmed.
J. M. Frame, for Appellant:
The drawing of the panel of jurors should have been conducted in the office of the county
clerk. Rev. Laws, 4930. The statute makes the drawing of a jury a public act, to enable
persons who may so desire to be present. The drawing of the panel in an unexpected place,
and not the one designated by law, is equivalent to a drawing behind closed doors, where no
person who might choose to be present would be permitted to inspect the drawing. The trial
court therefore committed prejudicial error in denying the appellant's challenge to the panel.
It was prejudicial and reversible error for the district attorney to state in his argument that
appellant had been convicted of the same crime by another jury. Equally with the court, the
district attorney, as the representative of law and justice, should be fair and impartial. He
should remember that it is not his sole duty to convict, and that to use his official position to
obtain a verdict by illegitimate and unfair means is to bring his office and the courts into
distrust. People v. Lee Chuck, 20 Pac. 723. We think the jury would be sure to get the
impression that the judge thought the defendant guilty.
42 Nev. 467, 468 (1919) State v. Sella
sure to get the impression that the judge thought the defendant guilty. Still more objectionable
was the conduct of the prosecuting attorney. People v. Bowers, 21 Pac. 752. Prosecutors
too often forget that they are a part of the machinery of the court, and that they occupy an
official position. State v. Irwin, 71 Pac. 611. But, still, the rights of the defendant cannot be
ignored or overlooked. State v. Balch, 2 Pac. 612; People v. Devine, 30 Pac.379; People v.
Wells, 34 Pac. 1078; People v. Davenport, 110 Pac. 322. And it has been uniformly held that
it is reversible error for the district attorney in his argument to refer to a former verdict of
conviction for the same offense. State v. Clouser, 72 Iowa, 302; State v. Leabo, 69 Mo. 247;
Brantley v. State, 59 S. W. 892; Hatch v. State, 8 Tex. App. 416. The courts have held this to
be true whether the reference be either direct or indirect. House v. State, 9 Tex. App. 567.
L. B. Fowler, Attorney-General, Robert Richards, Deputy Attorney-General, and Thomas
E. Powell, District Attorney, for Respondent:
The brief of appellant consists of assertions and theories that are not substantiated by the
record. The court must confine itself to the record before it. The contention of appellant that
fatal error was committed in that the names of the regular panel of trial jurors was drawn in
the courtroom instead of the office of the county clerk is without merit. No attempt was made
to show that the persons whose names were drawn were selected for the purpose of depriving
appellant of a fair and impartial trial. The manner in which the jury panel shall be drawn is
regulated in the different jurisdictions by statutory provisions, which are in most respects
merely directory. * * * 24 Cyc. 218. Where the statute requires the drawing to be in the
clerk's office, it is a sufficient compliance where the drawing is in an adjoining room opening
into and constituting a part of the main office. 24 Cyc. 221; State v. Green, 43 La.
42 Nev. 467, 469 (1919) State v. Sella
43 La. Ann. 402; State v. Jackson, 66 S. W. 938; State v. Barlow, 71 N. E. 726.
The argument of the prosecuting attorney was improper, but as it was a fact which must
have been known from the record, we should not reverse the case on that ground, especially
in view of the remarks of the learned circuit judge in this connection. People v. Yund, 128
N. W. 742; State v. Stewart, 211 Fed. 41. Comments of the district attorney based upon
evidence placed in the record by the defendant are not prejudicial, even though such
comments would be reversible error if such evidence had not been put in the record by the
defendant. State v. Mircovich, 35 Nev. 485; State v. Kind, 35 Nev. 153.
The district attorney, upon being interrupted, after having made the statement that the
defendant had once been convicted and sent to the penitentiary, immediately desisted, and the
court forthwith instructed the jury to disregard the remarks. In such a case, even though the
fact of the former conviction had not been put in evidence by the defendant, the remarks of
the district attorney will not constitute reversible error. Brewer v. Commonwealth, 12 S. W.
672; Kirk v. State, 37 S. W. 440; People v. Greenwall, 22 N. E. 180; People v. Mancuso, 137
Pac. 278.
Appellant was convicted of the crime of murder in the second degree. From the judgment,
and from an order denying a motion for a new trial, he appeals.
1. Only two grounds are urged as a basis for the reversal of the judgment and order. The
first alleged error pertains to the manner in which the panel from which the trial jury was
selected was drawn. Section 4930 of the Revised Laws provides that the regular panel of trial
jurors shall be drawn in the office of the county clerk. The record shows that when the case
was called for trial the attorney for the defendant orally interposed a challenge to the panel of
jurors, upon the ground that said panel had not been drawn in the clerk's office, but in the
courtroom, of which the clerk's office is not a part.
42 Nev. 467, 470 (1919) State v. Sella
said panel had not been drawn in the clerk's office, but in the courtroom, of which the clerk's
office is not a part. The challenge was denied by the court. We are of the opinion that the
provision of the statute relative to the drawing of the panel in the clerk's office is merely
directory. State v. Barlow, 70 Ohio St. 363, 71 N. E. 726; State v. Jackson, 167 Mo. 291, 66
S. W. 938; State v. Barnes, 54 Wash. 493, 103 Pac. 792, 23 L. R. A. (N. S.) 932; State v.
Washington, 82 S. C. 341, 64 S. E. 386.
The idea that the statute is merely directory in providing that the drawing of the jury panel
shall be held in the clerk's office is reinforced by the fact that it is nowhere required that
notice of the time and place of the drawing shall be given. So far as the statute provides, the
drawing may take place immediately after the entry of the order directing that it be made. In
the case at bar it is not even intimated that the defendant was in the least prejudiced by the
fact that the drawing of the panel took place in the courtroom. In these circumstances for us to
hold that such error was committed as would justify a reversal of the judgment would justly
subject us to contempt and ridicule. The Supreme Court of Washington, in considering
alleged irregularities in the selection of the panel of jurors, said:
While they should be observed as closely as practicable, so that a competent, impartial
and honest jury may be secured, it does not follow that an inadvertent failure to comply with
every directory provision will vitiate a panel, unless it is made manifest that some omission
prejudicial to the appellant has occurred. The manner in which the jury panel shall be drawn
is regulated in the different jurisdictions by statutory provisions, which are in most respects
merely directory, but which as to their material provisions, designed for securing a fair and
impartial jury, must be substantially complied with. * * * The most important requirement is
that the panel shall be drawn and not arbitrarily selected, and any act of this character on the
part of the clerk or other officers is ground for challenge to the array.' 24 Cyc.
42 Nev. 467, 471 (1919) State v. Sella
to the array.' 24 Cyc. 218, 219, and cases cited. In some of the states there are decisions to
the effect that statutes which prescribe the powers and duties of jury commissioners and
corresponding officers to whom is intrusted the selection or drawing of suitable persons as
jurors, and which prescribe the time and manner of exercising such powers and performing
such duties, are mandatory, and that strict adherence to the statutory requirements is essential
to support the regularity and validity of the proceedings. But, notwithstanding these decisions,
the great weight of authority is to the effect that the mere fact that officers intrusted with the
several duties prescribed failed to conform precisely to such requirements will not invalidate
their action, unless it appears, or may be reasonably inferred from the circumstances, that the
complaining party has been prejudiced, or that injury has been sustained by reason of neglect
or omissions charged. In brief, courts will not sustain a palpable disregard of essential
statutory provisions, nor overlook material departures therefrom; but, if there is a substantial
compliance with the statutes, mere irregularities in the procedure, or mere informalities on the
part of the officers charged with the selection and drawing, will be deemed unimportant.' 12
Ency. Pl. & Pr. 276-278. State v. Barnes, supra.
2. The second alleged error relied upon by appellant is that the district attorney in his
opening address commented upon the fact that appellant had been convicted of the offense
charged upon a previous trial. There does not purport to be in the record a bill of exceptions
which contains all of the evidence given at the trial, and the brief of the district attorney
quotes statements which, it is claimed, were made by the defendant upon direct examination,
showing that he had been convicted upon a previous trial of the case. There is no denial of
this statement of the district attorney; and, while we cannot consider the briefs in ascertaining
what the testimony on the point was, the failure to deny this statement is significant. The
record not purporting to contain all of the evidence given at the trial, this court will not
presume that the district attorney discussed matters not covered by the evidence.
42 Nev. 467, 472 (1919) State v. Sella
contain all of the evidence given at the trial, this court will not presume that the district
attorney discussed matters not covered by the evidence.
No error appearing, it is ordered that the judgment and order appealed from be affirmed.
Ducker, J., did not participate, having presided at the trial in the district court.
____________
42 Nev. 472, 472 (1919) Ex Parte Ming
[No. 2379]
In the Matter of Application of FRANK MING
for a Writ of Habeas Corpus.
[181 Pac. 319]
1. Constitutional LawAmendment of ConstitutionEntry in House and Senate Journals.
Under Const. art. 16, sec. 1, requiring that proposed constitutional amendments shall be entered on
the respective journals of the senate and assembly, a proposed constitutional amendment need not be
entered on the journal in full, it being sufficient if it be entered by an identifying reference.
2. Constitutional LawStatutesConstructionMeaning of Words.
When a word is used in a statute or constitution, it is supposed that it is used in its ordinary sense, unless
the contrary is indicated.
3. Habeas CorpusMatters ReviewableMoot Questions.
Where petitioner was arrested for violating the initiative prohibition act, and the district attorney elected
to have the justice hold a preliminary hearing to bind over, on an original application for writ of habeas
corpus to the supreme court, such court will not pass upon the objection that the proceedings were void as
conferring upon the district court jurisdiction of a misdemeanor until a court without jurisdiction proceeds
to exercise it, since until such time the question is moot.
Original application by Frank Ming for a writ of habeas corpus. Writ discharged,
petitioner remanded, and proceedings dismissed.
42 Nev. 472, 473 (1919) Ex Parte Ming
McCarran, Miller & Mashburn, for Petitioner:
Proposed amendments to the constitution must be entered on the journals of the respective
houses of the legislature. Const. Nev., sec. 1, art. 16; State ex rel. Stevenson v. Tufly, 19 Nev.
391; Koehler v. Hill, 60 Iowa, 543; Cooley, Const. Lim. 183; Collier v. Frierson, 24 Ala. 108;
State v. Davis, 20 Nev. 227. No argument has been made that the amendments could be
valid if not published as required by the constitution and doubtless under the decisions,
particularly of this court (State v. Tufly, 19 Nev. 391; State v. Davis, 20 Nev. 221) they
would not be. State v. Grey, 21 Nev. 227.
If there are conclusions of the court, authoritatively announced in that case, we ought to
adhere to them, unless they are manifestly unsound; for in no class of cases coming before us
ought we to so carefully guard against vacillation and uncertainty as in cases which involve a
construction of the fundamental law of the state, especially if the rule of construction
announced has stood for many years unquestioned in this court, and may be presumed to have
been the rule in accordance with which intervening legislative action, including the
submission of the amendment under consideration, has been taken. State ex rel. Bailey v.
Brookhart, 84 N. W. 1064. The constitution can be amended in but two ways, either by a
constitutional convention properly convened, or according to the manner provided in the
instrument itself. Kadderly v. City of Portland, 74 Pac. 710. A legislature * * * must
comply strictly with all the requirements thereof. Idem. Where the mode by which an
amendment to be made to the constitution is clearly pointed out by the constitution itself,
such mode is a substantial and essential part of the instrument. It is to be regarded by the
legislature as exclusive and as not permitting any other mode or form to be observed. State
v. Tooker, 15 Mont. 8, 37 Pac. 84. Our duty in expounding the supreme law compels us to
decide that the proposed amendment never was proposed as required, and, therefore, never
ought to have been submitted.
42 Nev. 472, 474 (1919) Ex Parte Ming
submitted. It was a nullity before it reached the people, and was not animated by them,
because their own solemn commands empowering its proposal, and specifying the mode
thereof, had been entirely ignored by the proponent. Durfee v. Harper, 56 Pac. 582; In Re
Convention, 14 R. I. 649; State v. McBride, 4 Mo. 303; State v. Mason, 43 La. Ann. 590;
Collier v. Frierson, 24 Ala. 100; Answer of the Judges, 6 Cush. 573; Paving Co. v. Hilton, 69
Cal. 479; Koehler v. Hill, 60 Iowa, 543; Russie v. Brazzell, 128 Mo. 93; Miller v. Johnson,
92 Ky. 589; Cooley, Const. Lim. 44; Jameson, Const. Conv. 564. The fundamental law of
the state prescribes the limitations under which the electors of the state may change the same,
and, unless such course is pursued, the mere fact that a majority of the electors are in favor of
a change, and have so expressed themselves, does not work a change. Such a course would be
revolutionary and the constitution of the state would become a mere matter of form. McBee
v. Brady, 100 Pac. 97; State v. Powell, 77 Miss. 543; North Carolina v. McIver, 72 N. C. 76.
The provisions of the organic law as to amendments are mandatory. State v. Winnett, 15
Am. & Eng. Ann. Cas. 786; State ex rel. Oven v. Donald, 151 N. W. 333; State v. Marcus,
152 N. W. 419.
The district attorney has no jurisdiction to hear and determine the offense, and hence the
justice court has no jurisdiction to hold a preliminary examination with a view to certifying
the case to the district court. The prohibition law in this respect is unconstitutional, in that it
confers judicial powers upon the district attorney, and empowers him to fix the jurisdiction of
the several courts. Moore v. Orr, 30 Nev. 458; Green v. Superior Court, 78 Cal. 556; State v.
Meyers, 11 Mont. 556.
J. M. McNamara Amicus Curiae:
Is it sufficient, in order to comply with section 1, article 16 of the constitution of Nevada,
to enter upon the journals of the legislature a resolution proposing a constitutional
amendment by title, article, and section, or is it necessary that such resolution be entered in
extenso upon the journals of either house?
42 Nev. 472, 475 (1919) Ex Parte Ming
or is it necessary that such resolution be entered in extenso upon the journals of either house?
A reference by title, article, and section is not sufficient. The resolution, in order to comply
with the mandates of the constitution, must be entered in full. We conclude that amendments
to the constitution can be made only in the mode provided by the instrument itself. A
proposed amendment, if agreed to by a majority of each house of the legislature, must be
entered upon the journals, so that no doubt may arise as to its provisions. * * * These
provisions * * * are exclusive and controlling. State v. Tufly, 19 Nev. 391; State v. Davis,
20 Pac. 894.
The resolution under consideration was dead. Any subsequent action by either the
legislature or the people voting upon the amendment served no purpose; it never could breath
life into that which was already dead, and which, in fact, never had any legal existence.
Koehler v. Hill, 60 Iowa, 543; State v. Marcus, 152 N. W. 419; 6 R. C. L. 29; People v.
Sours, 31 Colo. 369; Oakland Paving Co. v. Thompkins, 12 Pac. 801.
The provisions of the constitution providing ways and means for its amendment are
mandatory. Koehler v. Hill, supra; Cooley, Const. Lim. 78.
The word entered refers directly to amendment or amendments. To inscribe, to
enroll, to enter with particulars of the account. Webster's New Int. Dict.; Century Dict. To
cause to be put down upon the record. Bouvier. The language is so clear that any attempt to
construe it only serves to cloud and mystify its provisions.
The court should not take into consideration in a case of this nature those things that are
not in the record, any more than in a case of any other kind. Whatever may be the fate of
other constitutional amendments is no concern of the court here. If the legislature may
disregard the letter of the fundamental law, in its most material particulars, and the court may
ingeniously bend its provisions to say that it means one thing when, in its letter, it means
another, * * * there is great danger of its failing to fully accomplish its purpose of the
people in the beginning."
42 Nev. 472, 476 (1919) Ex Parte Ming
danger of its failing to fully accomplish its purpose of the people in the beginning. State v.
Marcus, supra.
The provisions of a constitution granting to the legislature the authority to adopt
resolutions proposing amendments to a state constitution are grants of authority, and the
legislature, without an express provision in the constitution, has no such authority inherent as
is possessed in the enactment of statutes. We have sought to maintain the supremacy of the
constitution at whatever hazard. It is for the protection of minorities that constitutions are
framed. Sometimes constitutions must be interposed for the protection of minorities even
against themselves. Constitutions are adopted in times of public repose, when sober reason
holds her citadel, and are designed to check the surging passions in times of popular
excitement; but if courts could be coerced by popular majorities into a disregard of their
provisions, constitutions would become mere ropes and sand,' and there would be an end of
social security and of constitutional freedom. * * * The constitution is the palladium of
republican freedom. Young men coming forward upon the stage of political action must be
educated to venerate it. Those already upon the stage must be taught to obey it. Whatever
interest may be advanced or may suffer, whoever or whatever may be voted up or voted
down,' no sacrilegious hand must be laid upon the constitution. Koehler v. Hill, supra.
L. B. Fowler, Attorney-General, and Robert Richards, Deputy Attorney-General, for
Respondent:
The constitutional amendment that is attacked in this proceeding was duly entered upon
the journals of both houses of the legislature in such a manner as to be unmistakably
identified. Such entering was in full compliance with the constitution's requirement, which
provides that amendments to the constitution must be entered in the journals of the respective
houses of the legislature. The journals are used merely to determine whether or not a majority
vote of each house has been recorded in favor of such amendments. The strict rule has been
adopted that an act passed by the legislature, and which becomes a law, cannot be
attacked by the use of the journals of the legislature to prove that the necessary vote was
not given in its favor in one or both houses.
42 Nev. 472, 477 (1919) Ex Parte Ming
has been adopted that an act passed by the legislature, and which becomes a law, cannot be
attacked by the use of the journals of the legislature to prove that the necessary vote was not
given in its favor in one or both houses. The enrolled bill is final. Behind this no person is
allowed to go. State v. Swift, 10 Nev. 176. It is not necessary that amendments be spread in
full upon the journals. Constitutional Prohibitory Amendment, 24 Kan. 700; People v.
Strother, 67 Cal. 624; Oakland Paving Co. v. Hilton, 69 Cal. 479, 72 Cal. 5; State v. Herreid,
10 S. D. 109. * * * Then it becomes a valid part of the organic law, notwithstanding the fact
that the legislature may have failed to have such proposed amendment entered at length upon
the journals of the two respective houses. West v. State, 50 Fla. 154; Cudihee v. Phelps, 76
Wash. 314; Worman v. Hagan, 78 Md. 152; Gottstein v. Lister, 88 Wash. 462. In the event of
a conflict between the journals and the enrolled resolution, the latter, properly authenticated,
is to prevail. Smith v. Lucers, 168 Pac. 709.
L. D. Summerfield, District Attorney of Washoe County, for Respondent:
The application presents but two questions for determination, namely, the validity of the
initiative act, and the sufficiency of the complaint. No other question can be here considered.
If the act is valid and the complaint sufficient, the petitioner must be remanded. This court
has already decided that the justice court has jurisdiction of the offense charged. Even if it
were held that the election of the district attorney was void, petitioner would not be entitled to
be released. The justice court should then proceed to trial. In Re Zwissig, 42 Nev. 360. The
proper proceeding to raise questions relating to the election by the district attorney would
prohibition, on the ground that the justice is about to exceed his jurisdiction in holding a
preliminary examination. 21 Cyc. 287.
The prevailing view at this time in regard to constitutional provisions similar to section 1,
article 16, of the constitution of Nevada, is that it is not essential that a constitutional
amendment be entered in full on the journals of the legislature, but that compliance is
had with the constitutional provision when there is an identifying reference to the
amendment on such journals.
42 Nev. 472, 478 (1919) Ex Parte Ming
constitution of Nevada, is that it is not essential that a constitutional amendment be entered in
full on the journals of the legislature, but that compliance is had with the constitutional
provision when there is an identifying reference to the amendment on such journals.
Prohibitory Amendment Cases, 24 Kan. 700; Oakland Paving Co. v. Tompkins, 72 Cal. 5;
Thomason v. Ashworth, 67 Cal. 624; West v. State, 50 Fla. 154, 624; Worman v. Hagan, 78
Md. 152; In Re Senate File, 25 Neb. 864; State v. Herreid, 10 S. D. 109; Gottstein v. Lister,
88 Wash. 462; Cudihee v. Phelps, 76 Wash. 314; State v. Marcus, 160 Wis. 354.
S. W. Belford, Amicus Curiae:
Since the adoption of the initiative and referendum amendment to the constitution of the
state no question of its validity has ever been raised, until the institution of these proceedings.
Under it several laws have been enacted of vital importance to the people. It is questionable
whether any other matter has ever been presented to this court which so affects our whole
structure of government, and it is the right of the court and its solemn duty to consider the
serious consequences that would follow a decision in favor of the petitioner. Frequent
exercises of power, uniform and long acquiescence of the people in it, constitute a
fundamental law, as binding as though it had been formulated expressly in the constitution.
State v. Grey, 21 Nev. 227; Worthington v. District Court, 37 Nev. 212. The rule must be
regarded as established in this state that the court will consider other matters in cases of this
kind, among which are: (1) recognition of the legality of the statute or amendment by the
various departments of the state government; (2) acquiescence therein by the people; (3)
exercise of power under it; (4) legislative construction; (5) public effects of its decisions.
Where an amendment has been acted upon and recognized by all departments of the state
government and by the people, where rights have been acquired and exercised upon
assumption of its validity, this court should refuse to disturb the enactment, particularly
when by so doing other matters of vital importance would be threatened and disturbed.
42 Nev. 472, 479 (1919) Ex Parte Ming
assumption of its validity, this court should refuse to disturb the enactment, particularly when
by so doing other matters of vital importance would be threatened and disturbed. Secombe v.
Kittleson, 12 N. W. 519; Continental Improvement Co. v. Phelps, 11 N. W. 168; Field v.
Clark, 12 Sup. Ct. 497.
It was primarily the duty of the legislature to interpret the requirements of section 1, article
16, of the constitution. The legislature, in the first instance, must interpret its own powers and
duties; and if such legislative interpretation does not clearly, and beyond all doubt, violate the
constitution, the courts will sustain the legislative construction. State v. Grey, supra; Mining
Co. v. Seawell, 11 Nev. 399; Endlich, Interp. Stats., sec. 527; Cooley, Const. Lim. 82; People
v. La Salle Co., 100 Ill. 495; Stuart v. Laird, 1 Cranch, 299; Rogers v. Goodwin, 2 Mass. 475;
Bingham v. Miller, 17 Ohio, 445; 8 Cyc. 738. Here we have a legislative construction of the
constitution which should not and cannot be ignored. Koehler v. Hill, 14 N. W. 745. In
construing the requirement of the constitution that an amendment be entered on the
journals, it was the judgment of the legislature that an identifying reference was a compliance
with the provision. The case of State v. Tufly, 19 Nev. 391, is not controlling in the question
at bar. In that proceeding it was disclosed that no entry was made upon the journals of either
house. Where there is no entry of the proposed amendment, the omission is fatal; where
there is an entry by identifying reference or otherwise, the amendment is valid, and there has
been a compliance with the constitution.
The court should refuse to go behind the enrolled and published resolution; and unless the
resolution carries its death wound on its face, it should not be disturbed. State v. Swift, 10
Nev. 176. The enrolled bill is conclusively presumed to be the best evidence. State v. Beck,
25 Nev. 68; State v. Nye, 23 Nev. 99; State v. Glenn, 18 Nev. 34; Sherman v. Storey, 30 Cal.
253; Yolo County v. Colgan, 64 Pac. 403.
42 Nev. 472, 480 (1919) Ex Parte Ming
This is an original proceeding in habeas corpus.
A complaint was filed in the justice court of Reno township charging petitioner with
having violated the initiative prohibition statute which was adopted by a vote of the people at
the general election in November, 1918 (Stats. 1919, p. 1). After the arrest of the petitioner,
the district attorney of Washoe County, pursuant to section 28 of the statute, filed with the
justice of the peace an election to have that officer hold a preliminary hearing in said case.
Two grounds are strenuously urged for the issuance of the writ in this proceeding. The first
is that the amendment to our constitution providing for the enactment of laws upon the
initiative of the people was not properly adopted; the second that the statute, wherein it
authorizes the district attorney to elect to have a justice of the peace hold a preliminary
hearing, attempts to confer upon both the justice of the peace and the district court
jurisdiction of a misdemeanor, and is therefore in violation of the constitutional rights of
petitioner.
The main question in this case is as to whether or not the amendment to our constitution
providing for the enactment of laws by submitting proposed statutes to the people by an
initiative petition was adopted as provided by our constitution. Section 1, article 16, which
provides the method of amending our constitution, reads as follows:
Any amendment or amendments to this Constitution may be proposed in the Senate or
Assembly; and if the same shall be agreed to by a Majority of all the members elected to each
of the two houses, such proposed amendment or amendments shall be entered on their
respective journals, with the Yeas and Nays taken thereon, and referred to the Legislature
then next to be chosen, and shall be published for three months next preceding the time of
making such choice. And if in the Legislature next chosen as aforesaid, such proposed
amendment or amendments shall be agreed to by a majority of all the members elected to
each house, then it shall be the duty of the Legislature to submit such proposed
amendment or amendments to the people, in such manner and at such time as the
Legislature shall prescribe, and if the people shall approve and ratify such amendment or
amendments by a majority of the electors qualified to vote for members of the Legislature
voting thereon, such amendment or amendments shall become a part of the
Constitution."
42 Nev. 472, 481 (1919) Ex Parte Ming
members elected to each house, then it shall be the duty of the Legislature to submit such
proposed amendment or amendments to the people, in such manner and at such time as the
Legislature shall prescribe, and if the people shall approve and ratify such amendment or
amendments by a majority of the electors qualified to vote for members of the Legislature
voting thereon, such amendment or amendments shall become a part of the Constitution.
It is conceded by petitioner that all requirements of this section relating to amendments
were complied with, except as to entering the amendment upon the journal. The Journal of
the Assembly of 1908-1909, at page 79, shows:
Motions and Resolutions. By Mr. Brooks: Assembly Joint and Concurrent Resolution No.
7, proposing to amend section 1 of article IV of the Constitution of Nevada, pertaining to the
initiative and referendum, and other legislative authority, and power connected therewith. On
motion of Mr. Brooks, duly seconded, rules suspended, reading so far had considered first
reading, rules further suspended, resolution read second time by title, and referred to
Committee on Judiciary.
The resolution was thereafter adopted, the journal (page 143) showing that it was
designated thereupon as Assembly Joint and Concurrent Resolution No. 7. After the
adoption in the assembly it went to the senate. The journal of that body shows:
Introduction and First Reading. * * * Assembly Joint and Concurrent Resolution No. 7,
proposing to amend section one of article four of the Constitution of Nevada, pertaining to
the initiative and referendum, and other legislative authority and power connected therewith.
Senator Tallman moved that the rules be suspended, reading so far had considered first
reading, rules further suspended, bill be read second time by title, and referred to Committee
on Judiciary. Carried. * * *
42 Nev. 472, 482 (1919) Ex Parte Ming
Reports of Committees. Mr. President: Your Committee on Judiciary have had Assembly
Bill No. 107 under consideration and beg leave to report on the same with the
recommendation that it be referred to Committee on Education.
Also, Assembly Joint and Concurrent Resolutions Nos. 7 and 8, and beg leave to report
the same by introducing substitutes, and recommend that the substitutes do pass. Clay
Tallman, Chairman. * * *
Introduction and First Reading. Senate Substitute for Assembly Joint and Concurrent
Resolution No. 7, proposing to amend article nineteen of the Constitution by adding to said
article section three, relating to the initiative and referendum and the powers thereby
conferred upon the qualified electors.
Senator Tallman moved that the rules be suspended, reading so far had considered first
reading, rules further suspended, resolution be read second time by title, and referred to
Committee on Judiciary. Carried.
Thereafter all references to the resolution, as appears from the journal, were to Senate
Substitute for Assembly Joint and Concurrent Resolution No. 7, and as such it was adopted
by both houses of the legislature. The question is: Do the statements contained in the journals
constitute such an entry as the constitution contemplates?
At the very threshold of the consideration of this question we are confronted with the case
of State v. Tufly, 19 Nev. 391, 12 Pac. 835, 3 Am. St. Rep. 895, which counsel for petitioner
contend is decisive of this matter. We are unable to see that the case mentioned decides the
point which is now under consideration. The court there says:
No entry of the proposed amendment was made upon the journal of either house, and the
question presented is whether or not this omission was fatal to the adoption of the
amendment.
In this connection, we wish to call attention to certain language which we find in the work
entitled The Revision and Amendment of State Constitutions {Dodd), commenting on the
Tufly case, where it is said, at page 14S:
42 Nev. 472, 483 (1919) Ex Parte Ming
(Dodd), commenting on the Tufly case, where it is said, at page 148:
* * * In Nevada, where an entry upon the journal was required, no entry whatever was
made, and the proposed amendment was held invalid because of failure to comply with a
specific constitutional requirement.
In a note to the text above quoted we find the following:
* * * An examination of the journals shows no entry of any sort which can be identified
as that of the amendment under consideration.
The enrolled resolution which was attacked shows that it passed February 28, 1883, and
after a most exhaustive examination of the journals we fail to find in them any allusion
whatever to the passage or adoption of the resolution, nor does counsel for petitioner point
out in his brief where any allusion to its adoption or passage appears therein. Thus it is seen
that not even an attempt was made to enter in the journal the proposed amendment involved
in the Tufly case.
In that case it was evidently a conceded fact that no entry had been made upon the journal
of the proposed amendment. Not so in this matter. The real question here is: Was an entry
made: If we find that no entry was made upon the journal, the Tufly case would be an
authority sustaining counsel's contention. It is true that in that case some expressions are
found which seem to sustain the contention urged for it; but, as they are not based upon facts
involved in the case, they are mere dicta, and the case cannot aid us in the least in
determining the question before us. The law laid down in the Tufly case cannot be
questioned.
The case of Koehler v. Hill, 60 Iowa, 543, 14 N. W. 738, 15 N. W. 609, is the only
authority cited in the Tufly case which can be said to sustain the contention that, when a vote
is had upon a proposed amendment in the legislative bodies, it must be entered in full upon
the journals, and it is even conceded in that opinion that to enter on the journal does not
necessarily mean spreading the same at length thereon; while the quotations from Judge
Cooley are merely to the effect that the constitutional requirements are mandatory.
42 Nev. 472, 484 (1919) Ex Parte Ming
that the constitutional requirements are mandatory. Nowhere in the language quoted from him
is it held that to enter the proposed amendment upon the journal means that the same must
be spread at length thereon. Nor is such the holding in the case of Collier v. Frierson, 24 Ala.
108, referred to therein. The question involved in this proceeding was not before the court in
that case. For the reasons given, we do not thing we should be influenced by the Tufly case.
But learned counsel for petitioner strenuously urges that the provision of the constitution
to the effect that a proposed amendment to the constitution, when adopted by either branch of
the legislature, must be entered at length upon the journal of the body so adopting such
amendment, is sustained by the weight of authority, and in support of this assertion, in
addition to the authorities already mentioned by us, calls our attention to the following cases:
Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3; Kadderly v. City of Portland, 44 Or.
118, 74 Pac. 710; State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L. R. A. 560; Durfee v.
Harper, 22 Mont. 354, 56 Pac. 582; McBee v. Brady, 15 Idaho, 761, 100 Pac. 97; Nesbit v.
People, 19 Colo. 441, 36 Pac. 221; People v. Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St.
Rep. 34; People v. Loomis, 135 Mich. 556, 98 N. W. 262, 3 Ann. Cas. 751; State v. Marcus,
160 Wis. 354, 152 N. W. 419.
We will consider these cases in the order in which they have been named. The case of
Oakland Paving Co. v. Hilton did not determine the question here involved. The opinion by
Thornton, J., which lays down the rule invoked, was concurred in by only one justice, the
other justices concurring in the order only.
The case of Kadderly v. City of Portland is no authority sustaining the contention which it
is cited to support. It is said in the opinion:
There is no question but that all the forms prescribed by the constitution were strictly and
accurately observed. * * *
The contention is that case was that the legislature of 1S99 had no authority to propose
the amendment.
42 Nev. 472, 485 (1919) Ex Parte Ming
1899 had no authority to propose the amendment. The question involved in this case was not
under consideration.
As to the Colorado and Montana cases, learned counsel for petitioner concede that there is
a slight difference between the constitutional provisions of those states and that of Nevada
relative to the method of proposing amendments to the constitution. We think the difference
is very pronounced. The constitution of Nevada provides that the proposed amendment shall
be entered upon the journal, while the constitutions of the states mentioned provide that the
proposed amendment shall be entered in full. This is such a marked difference that we feel
it would be a waste of time to dwell upon the lack of applicability of the opinions from those
states.
As to the case of McBee v. Brady, 15 Idaho, 761, it need only be said that the question as
to what constituted an entry upon the journal (which is the point here involved) was not even
considered. The court held that the method provided by the constitution for its amendment
must be followed, but it did not go into or determine the question of what was necessary to
constitute an entry of an amendment upon the journal. Thus it will be seen that the case is not
an authority sustaining the contention.
As to the case of People v. Loomis, the court expressly declined to pass upon the question
here involved, saying:
But it is unnecessary to determine the question, as we think that the journal of each house
shows the resolution in full as passed by it.
It may be said that when originally considered the court, in State v. Marcus, 160 Wis. 354,
adopted the view that is contended for by petitioner. However, upon rehearing the original
opinion was reversed and the opposite rule held to be the correct one. Marshall, J., who wrote
the original opinion, filed an opinion vigorously dissenting from the prevailing opinion filed
on rehearing, in which he said that an entry by mere number or number and title is not
sufficient nor is an entry in extenso necessary."
42 Nev. 472, 486 (1919) Ex Parte Ming
entry in extenso necessary. Thus it will be seen that upon rehearing he conceded that the
proposed amendment did not have to be spread in full upon the journal. But Timlin, J., who
participated in the consideration of the case upon both hearings, in his opinion upon rehearing
says:
When the first decision in this case was approved unanimously by this court, and filed,
the opinion of the court was written by Justice Marshall, with a concurring opinion by Chief
Justice Winslow. I think it is nowhere expressly stated in either of these opinions that the
word entered,' found in article 12 of the constitution, could be satisfied only by a verbatim
record or a record in extenso of the proposed amendment.
This disposes of the authorities relied upon by the petitioner, and we think from an
analysis of them that it is fair to say that the views urged by petitioner are sustained by the
decisions from the court of last resort of the State of Iowa only; and there was a dissenting
opinion in the first of those cases.
We will now consider the authorities that hold that the proposed amendment does not have
to be entered in full upon the journal, but that an identifying reference is all that is necessary.
The Supreme Court of California, in Oakland Paving Co. v. Tompkins, 72 Cal. 5, 12 Pac.
801, 1 Am. St. Rep. 17, speaking through Temple, J., said:
The only question submitted is whether the constitutional amendment No. 1, ratified by
the electors at the general election in 1884, being an amendment to section 19, article 11, was
proposed by the legislature as required by section 1, article 18, of the constitution. That
section provides that amendments may be proposed in the senate and assembly, and, if
two-thirds of all the members elected to each of the two houses shall vote in favor thereof,
such proposed amendment or amendments shall be entered in the journals with the yeas and
nays taken thereon,' etc. The objection is that the proposed amendment was not entered in the
journal of either house, as required by the constitution.
42 Nev. 472, 487 (1919) Ex Parte Ming
required by the constitution. It was not copied into the journal, but there was entered an
identifying reference, such as is always entered in regard to legislative bills; that is, it was
proposed as a senate bill and was referred to by title and number. The yeas and nays were
entered as directed. It is agreed that the amendment thus proposed was submitted to the
people and received a very large majority of the votes cast. * * * All admit that the
constitutional requirement must be strictly performed. But it does not follow from this that
the language of the instrument must be understood literally. The same rules of construction
must be applied, to ascertain what its requirements are, as though it were not mandatory and
prohibitory. And we think, when an act commanded or authorized may be done in different
ways, either of which would be a strict compliance with the terms of the instrument
understood in some common and popular sense, either mode may be pursued, unless some
reason is discoverable for holding that one of such modes only will answer. If, for instance,
the direction to enter the amendment in the journal is complied with, in some usual and
popular sense of the language, either by copying the amendment into the journal or by placing
upon the journal an identifying reference only, either will do unless the context shows a
different intention. Now, the word enter' primarily means to go in, or to come in, but has
many derivative meanings, and is often employed in elliptical expressions, and is quite apt to
be so used that the literal or most obvious meaning cannot be attributed to it. We read, for
instance, in the laws of Congress that citizens may enter at the land office a tract of land, and
the expression is repeated in different forms many times. We are often told that a certain
horse has been entered for a race or an animal has been entered at a fair. What is really done
in each instance is to make a record of certain important facts for preservation or notice. And
such is certainly a very ordinary meaning of the word enter,' when used in this derivative
sense; that is, to register the essential facts concerning the thing said to be entered.
42 Nev. 472, 488 (1919) Ex Parte Ming
register the essential facts concerning the thing said to be entered. And we think it may be
fully admitted that the most natural and obvious meaning of the word when employed in this
derivative sense is to copy, without greatly affecting the argument. We find near the title-page
of nearly every book printed that it has been entered in the office of the librarian of Congress.
What is really left with the librarian is the title-page of the proposed book, and this constitutes
the entry, although after it is printed the author is now required to present a copy of the book
for the congressional library. We sometimes read that a certain play of Shakespeare was
entered at Stationers' Hall. We find that the entry really made was a brief identifying
reference, preliminary to obtaining license to print. Such instances of the use of the word, and
of the phrase in which it occurs, might be multiplied indefinitely, but these are enough to
show that this usage is quite common. Now, if we substitute in all these and like cases the
word copy' or the phrase enter at large' for the word enter,' we are conscious at once that a
great change has been made. Indeed, the mere fact that the qualifying words at large,' at
length,' in full,' do so often accompany the word enter' is proof that all feel that it is not a
synonym of the word copy.' * * * This is sufficient to uphold the amendment, unless we can
see from the context that something else was meant. We perceive no such intent. The evident
purpose of the entire provision doubtless was to preserve a record of the vote. As a majority
controls the journals, it may have been apprehended that it might be made to appear that the
proposal was duly passed, although lacking the requisite majority, and so it was required that
the yeas and nays be entered. But, however this may be, the principal thing is the record of the
yeas and nays, and this purpose is accomplished as perfectly by the entry made as it would be
by any other. As to preserving the identity of the amendment proposed, there is no greater
difficulty in this matter than with reference to bills.
42 Nev. 472, 489 (1919) Ex Parte Ming
This view was adhered to in an opinion by Thornton, J., in Thomason v. Ashworth, 73
Cal. 73, 14 Pac. 615.
Mr. Justice Brewer, than whom few, if any, have brought greater learning, ability, and
wisdom to the Supreme Court of the United States, in Prohibitory Amendment Cases, 24
Kan. 700, in considering the identical question now presented for our consideration, said:
The constitution provides that the proposed amendments, together with the yeas and
nays, shall be entered on the journal.' Art. 14, sec. 1. Is the failure to enter this amendment at
length on the journals fatal? It is well said by counsel that no change can be made in the
fundamental law, except in the manner prescribed by that law. * * * In other words,
proceedings under a constitution to change that constitution must be in accord with the
manner prescribed by that constitution. But this only brings us to the real question in this
case: Is a proposition to amend the constitution in the nature of a criminal proceeding, in
which the opponents of change stand as defendants in a criminal action, entitled to avail
themselves of any technical error, or mere verbal mistake; or is it rather a civil proceeding, in
which those omissions and errors which work no wrong to substantial rights are to be
disregarded? Unhesitatingly we affirm the latter.
The decision just mentioned was considered and quoted from at length by Maxwell, J.,
long and able and honored member of the Supreme Court of Nebraska, in Senate File No. 31,
25 Neb. 864, 41 N. W. 981. The court, in a unanimous opinion, concurred in the views
expressed by Brewer, J., in the Kansas case.
In Cudihee v. Phelps, 76 Wash. 314, 136 Pac. 367, the Supreme Court of Washington, in
an opinion by Parker, J., and unanimously concurred in, quoted with approval the language of
the Supreme Court of California which we have quoted from Oakland Paving Co. v.
Tompkins, supra. The same question was again before the court in Gottstein v. Lister, 88
Wash. 462, 153 Pac. 595, Ann. Cas. 1917d, 1008, the court adhering to the views formerly
expressed.
42 Nev. 472, 490 (1919) Ex Parte Ming
The Supreme Court of South Dakota, in State ex rel. Adams v. Herreid et al., 10 S. D. 109,
72 N. W. 93, in considering this question, said:
The conflict in the adjudications results from a diversity of opinion regarding the
meaning of the phrase enter on their journals,' as used in the several state constitutions in
reference to proposed amendments. The decisions cannot be reconciled. Perhaps it is proper
to conclude that there is a slight preponderance of authority in favor of the identifying
reference theory. This conflict existed in 1885, when our constitution was framed. It should
be presumed that the members of the constitutional convention exercised the utmost care in
selecting appropriate language to express the results of their deliberations. What the
convention intended should be the method of amending the instrument then prepared should
govern the legislature, and control this court in determining whether any alteration therein has
been effected. In ascertaining what meaning the convention intended should be given the
phrase in question, it would seem proper to presume that the convention was acquainted with
the constructions which had been placed upon the same language, when used in the same
connection, by the courts of the other states, and to presume that, had it been intended to
restrict the legislature to one of these constructions, all doubt would have been removed by
employing the words entered at large.' Not having added the words at large,' it is reasonable
to infer that it was intended to allow the legislature the liberty of adopting either method of
entry. In any event, language was employed which courts of the highest respectability have
held to warrant either an entry in full or by an identifying reference. Under the modern
methods of conducting legislative business, and preserving bills and joint resolutions, the
action of the two houses and the contents of proposed amendments can be as safely and as
surely preserved by one manner of entry as the other. The legislature having adopted a
construction sustained by, perhaps, the greater weight of authorityone which does not
defeat any object intended to be secured by the constitutionsuch action on its part is
entitled to consideration by this court in ascertaining what interpretation shall be given to
the language under discussion."
42 Nev. 472, 491 (1919) Ex Parte Ming
perhaps, the greater weight of authorityone which does not defeat any object intended to be
secured by the constitutionsuch action on its part is entitled to consideration by this court in
ascertaining what interpretation shall be given to the language under discussion.
The constitution of Maryland provides, as does ours, that a proposed amendment shall be
entered on the journal. The supreme court of that state, in Worman v. Hagan, 78 Md. 152, 27
Atl. 616, 21 L. R. A. 716, in passing upon the sufficiency of the entry of a proposed
amendment which read, An act to amend section 1 of article 7 of the constitution of this
state, said:
We find that the legislature, by the act of 1890, c. 255, proposed an amendment to section
1 of article 7, and that the act was passed by three-fifths of all the members elected to each
house. It was stated on the journal of each house that An act to amend section 1 of article 7,
of the constitution of this state' was passed, and the yeas and nays are set forth, being more
than three-fifths of all the members elected to each house. The requirements of the
constitution were in all respects observed, unless it is necessary, as maintained by the
appellants, that the act should be set out verbatim on the journals. Each house had the bill in
its possession when it passed it, and the bill was fully and clearly identified by its title. There
would have been no greater certainty if every word of it had been recited. We must give a
reasonable construction to the words of the constitution. There was but one bill with this title.
The entries on the journals of the two houses that this bill had been passed by the yeas and
nays, which were stated, described their legislative action as distinctly as it could be
expressed. The yeas and nays were associated as closely as possible with the enactment
contained in the billthat is to say, with the proposed amendment. It was not in the power of
any person to mistake the meaning of the entry.
1. We have reviewed every case that has been called to our attention, or which we have
been able to find, throwing any light upon the question under consideration, and we are of
the opinion that the authorities, when carefully analyzed, will be found to be opposed to
the view urged in behalf of petitioner, except in the cases from the State of Iowa, and the
first case in that state on the subject was by a divided court.
42 Nev. 472, 492 (1919) Ex Parte Ming
throwing any light upon the question under consideration, and we are of the opinion that the
authorities, when carefully analyzed, will be found to be opposed to the view urged in behalf
of petitioner, except in the cases from the State of Iowa, and the first case in that state on the
subject was by a divided court. In view of the holding by the great majority of the courts, it
would seem that we would not hesitate in reaching the conclusion that the entry in the journal
in question is a sufficient compliance with the constitutional requirements.
2. It is the contention that the constitutional convention intended that proposed
amendments should be spread in full, at large, in extenso, upon the journal, so that no doubt
might arise as to the provisions. This, in our opinion, is the only reason that can be urged to
sustain the contention; yet, in view of another section of the constitution, we do not think
there is any reason why we should hold that the constitutional convention so intended, but
there are persuasive reasons to justify our taking the contrary view. We think it a fair
presumption that the men comprising the constitutional convention were among the most
learned, experienced and careful men of the then territory. Appreciating the great importance
of the choice of the language which should be used, every word was carefully weighed. Hours
were spent by our constitutional convention, in some instances, in considering the propriety
of using a particular word. When a word is used in a statute or constitution, it is supposed it is
used in its ordinary sense, unless the contrary is indicated.
A careful investigation fails to show that the constitutional convention used the word
entered, in the connection in which it is now considered, in any other sense than that
ordinarily given it; and that the convention did not mean, when it provided that when a
proposed amendment should be entered upon the journal, it should be spread thereupon in
full, at large, in extenso, is, we think, amply justified from consideration of other sections of
the constitution.
42 Nev. 472, 493 (1919) Ex Parte Ming
sections of the constitution. Section 18 of article 4 provides that all bills or joint resolutions
passed by each house shall be signed by the presiding officers of the respective houses, and
by the secretary of the senate and clerk of the assembly; and section 20 of article 5 provides:
The secretary of state shall keep a true record of the official acts of the legislative and
executive departments of the government, and shall, when required, lay the same * * * before
either branch of the legislature.
Thus we see that ample provision was made for the preserving of the joint resolutions
which might be adopted, in the identical language in which adopted. This seems to
conclusively show the lack of necessity of spreading joint resolutions at large upon the
journals, and hence the probable reason why the constitution does not provide for the entering
in full of proposed amendments thereupon. In this connection, we think the language of this
court in a unanimous opinion in the case of State of Nevada v. Swift, 10 Nev. 185, wherein
the constitutional provisions mentioned were under consideration, is conclusive. The court
said:
Obviously, then, the journals have no greater intrinsic value as evidence than the enrolled
bill, which, in compliance with the above-quoted provision of the constitution, is signed and
attested by the very same officers who sign the journals.
While we do not deem it necessary, in the light of what has been said, to present further
reasons for sustaining the sufficiency of the journal entry questioned in this proceeding, it
may, nevertheless, be of interest, as well as of value, to call attention to a rule of law laid
down by Hawley, C. J., one of our distinguished predecessors. The language to which we
allude will be found in the opinion in the case of State v. Glenn, 18 Nev. 35, and reads as
follows:
The constitution does not deal in details. In construing the provision in question, we must
consider the modes of thought which gave expression to the language used, in connection
with the usage and custom pertaining to the duty of the officer named in the constitution,
in order to determine what was meant.
42 Nev. 472, 494 (1919) Ex Parte Ming
used, in connection with the usage and custom pertaining to the duty of the officer named in
the constitution, in order to determine what was meant. The intention of those who framed
the instrument must govern, and that intention may be gathered from the subject-matter, the
effects and consequences, or from the reason and spirit of the law. Even where the language
admits of two senses, each conformable to common usage, that sense should be adopted
which, without departing from the literal import of the words, best harmonizes with the object
which the framers of the instrument had in view. Perhaps the safest rule of interpretation,
after all, will be found to be to look to the nature and objects of the particular powers, duties,
and rights with all the lights and aids of contemporary history, and give to the words of each
just such operation and force, consistent with their legitimate meaning, as may fairly secure
and attain the ends proposed.' 1 Story, Const. sec. 405a. This rule is subject to some
qualifications, which it is here unnecessary to discuss. Id. sec. 406. * * *
We glean from this history that the coordinate departments of the state government,
including among its numbers several persons who were members of the constitutional
convention, have for the past nineteen years construed the provision of the constitution as
giving the authority to the assistant clerk of the assembly and the assistant secretary of the
senate to sign the bills and joint resolutions which passed the respective houses. The people
of this state have acquiesced in that construction, and it has received the apparent sanction of
the courts, although it has never before, to our knowledge, been called in question. Property
and other rights have vested, and ought not to be overthrown unless it is manifest that the
construction given by the other departments is absolutely erroneous. Even in such cases
courts of great ability have hesitated, and, in some extreme cases, refused, to declare the law
unconstitutional. But, from the views we have expressed, it will be observed that we do not
consider the construction, as given by the other departments, erroneous.
42 Nev. 472, 495 (1919) Ex Parte Ming
We believe it is correct; still, if it is not free from doubtand that, it seems to us, is the most
that can be saidit is clearly our duty to give some weight to the construction, which has
been deliberately given by the legislative and executive departments. Evans v. Job, 8 Nev.
338. Great deference is certainly due to a legislative exposition of a constitutional provision,
and especially when it is made almost contemporaneously with such provision, and may be
supposed to result from the same views of policy and modes of reasoning which prevailed
among the framers of the instrument expounded.' People v. Green, 2 Wend. (N. Y.) 275.
See, also, 6 R. C. L. 63.
The force of this language will be readily realized, in view of the fact that at an early
period in the history of this state a proposed constitutional amendment was adopted, and the
journal entry thereof was not in full, but was in the nature of an identifying reference only.
See Journal of the Assembly, 1879, Ninth Session, at page 301, relative to Senate Joint
Resolution No. 28, and Senate Journal of the same session, at page 221, relative to the same
resolution.
It is urged by the learned attorney-general that the courts should not hold the amendment
to the constitution in question invalid, for the reason that, if we were to do so, it would
necessarily follow that many important laws upon the statute books would be affected
thereby, among which he enumerates the act providing for the prosecution of felonies by
information, the law conferring the right of suffrage upon the women of the state, certain laws
relative to taxation, and laws pertaining to bonds for highway improvements. Respectable
authority exists sustaining the contention made, but, in view of the conclusions we have
reached, we do not deem it necessary to pass upon this point, and for the same reason we do
not think that we need to review other points urged upon us in behalf of respondent.
3. We come now to the second contention made in behalf of petitioner. After setting forth
the fact that the district attorney had elected to have the justice of the peace hold a
preliminary hearing, and that the justice made an order directing that a preliminary
hearing be had upon the charge, the petition alleges "that said proceedings, election, and
order, and the whole thereof, are contrary to law and void," for the reason that the justice
of the peace has no jurisdiction to proceed with a preliminary hearing upon the ground
that the district court has no jurisdiction in misdemeanor cases.
42 Nev. 472, 496 (1919) Ex Parte Ming
the peace hold a preliminary hearing, and that the justice made an order directing that a
preliminary hearing be had upon the charge, the petition alleges that said proceedings,
election, and order, and the whole thereof, are contrary to law and void, for the reason that
the justice of the peace has no jurisdiction to proceed with a preliminary hearing upon the
ground that the district court has no jurisdiction in misdemeanor cases. To sustain the
contention, our attention is invited to the case of Moore v. Orr, 30 Nev. 458, 98 Pac. 398. We
have no doubt but that the court reached the correct conclusion in that case; and should the
justice of the peace go through the formality of holding a preliminary hearing, and at the
conclusion thereof order that the petitioner be held to answer to the district court, we are not
prepared to say that jurisdiction would be acquired by the district court to proceed with the
trial. On the other hand, if the contention of petitioner to the effect that the election of the
district attorney and the order of the justice that a preliminary be held are null and void, such
action stands, in legal effect, as though it had never been taken, and the justice of the peace
has complete jurisdiction to proceed to trial upon the merits. Thus, assuming the contention
of learned counsel for petitioner to be correct as to the law, for us to undertake to pass upon
the legal question until a court which is without jurisdiction proceeds to exercise jurisdiction
would be to pass upon a moot questionsomething courts invariably refuse to do. Pacific
Live Stock Co. v. Mason Valley Mines Co., 39 Nev. 105, 153 Pac. 431.
It follows from what we have said that the writ heretofore issued herein must be
discharged, the petitioner remanded, and these proceedings dismissed.
It is so ordered.
____________
42 Nev. 497, 497 (1919) Miller v. Walser
[No. 2360]
C. N. MILLER, Appellant, v. MARK WALSER and
FRANK MARGRAVE, Respondents.
[181 Pac. 437]
1. Appeal and ErrorMatters ReviewableAssignments of Error.
Where the appeal is upon the judgment roll alone, no assignment of errors is necessary.
2. Appeal and ErrorMatters ReviewableBill of Exceptions.
On an appeal from the judgment roll alone, where the judgment roll shows that a demurrer to the
complaint was presented to the court, and discloses a ruling thereon, an order sustaining a demurrer is
deemed to have been excepted to, under Stats. 1915, c. 208, and alleged error in so ruling is not required to
be presented by bill of exceptions.
3. Appeal and ErrorMatters ReviewableSufficiency of TranscriptPresumptions.
Where a judgment roll contains a demurrer to the complaint, and an amended complaint is in the record,
it will be inferred that the demurrer was sustained, and that the original complaint was superseded by the
amended complaint, and the absence of the original complaint from the transcript is a mere technical
omission, which could have been cured on suggestion of diminution of the record under supreme court rule
8, and could not have prejudiced the rights of respondent.
4. Appeal and ErrorWaiver of Right to Dismissal of Appeal.
An objection that transcript of record was not filed within thirty days after the appeal had been perfected,
in compliance with supreme court rule 2, was waived, where, after the transcript was filed, counsel for the
parties entered into stipulations in which additional time to serve and file points and authorities was given
to counsel for respondent, especially where the respondent failed to timely move for dismissal.
5. Joint AdventuresConstruction of Agreement.
Where parties agreed to use their joint efforts to acquire mining property in equal interest and to convey
the title thereto to a corporation to be formed by them for the purpose of taking over the property, the
acquirement of the claims being the primary purpose of the agreement, there was a contract of joint
adventure, consummated when the minds of the parties met and they made mutual promises to contribute
certain money and services.
6. Joint AdventuresConsiderationMutual Promises.
A contract of joint adventure is sufficiently supported by a consideration growing out of the mutual
promises of the parties.
7. Joint AdventuresMutual Duty of MembersCharacter of Relation.
Where several parties entered into an agreement to acquire mining property in equal interest and to
convey the title thereto to a corporation to be formed by them for the purpose of taking over the claims, one
party to furnish certain amount of money and another to examine the claims and ascertain as to whether or
not they had any value, the relation created laid upon the one examining the claims a strict duty to deal
fairly with the other members, and to give the other members a chance to perform upon having discovered
that the claims were of great value, and he could not foreclose their rights to share in the property and
profits by advancing the necessary money himself.
8. Joint AdventuresAdvances.
Where an agreement was entered into to acquire mining claims in equal interest, one party to furnish
money and another party to contribute his services and experience in inspecting the claims, money
advanced by the one inspecting the claims to purchase the same, not giving the person who was to
contribute the money a chance to participate, will be considered in the nature of a loan to the joint
adventure, and for the benefit of all the joint adventurers.
9. Joint AdventuresContractsEnforcement in Equity.
One member to a contract of joint adventure may sue the other at law for a breach of the contract, or he
may bring suit in equity for an accounting.
10. TrustsImplied TrustBreach of Duty by Joint Adventurer.
Where several persons entered into an agreement to acquire mining property in equal interests, one party
to contribute experience and service in inspecting the mining property, a corporation to be formed if he
approved the mining property, and the person inspecting the property, in violation of his agreement,
withheld from the one agreeing to furnish the money the fact that property was of great value, appropriating
the interest of such person by advancing the purchase price himself, an implied trust resulted as effectually
as if the absent member had actually furnished the consideration to purchase the property.
11. Limitation of ActionsStatute ApplicableBreach of Contract.
Action, by one claiming to be member of joint adventure, to establish his interest in the property acquired
by the adventure and for an accounting, was founded upon the agreement creating the trust relation
between the parties, and therefore governed by the four-year statute of limitation (Rev. Laws, 4970), and
not by the three-year statute applicable to actions based on fraud; an allegation in the complaint, that
plaintiff was prevented from complying with his agreement to contribute to the adventure by the
concealment by defendants of information, not changing the character of the action
to one of fraud, but being a mere excuse for nonperformance by plaintiff.
to the adventure by the concealment by defendants of information, not changing the character of the action
to one of fraud, but being a mere excuse for nonperformance by plaintiff.
12. Limitation of ActionsContracts of Joint AdventureViolationAccrual of Cause of
Action.
An action by a party to a contract of joint adventure for a division of property and an accounting of
profits accrued upon breach of the contract by the other members.
13. TrustsImplied TrustFrauds, Statute of.
Where an implied trust is effectuated by breach of contract, contract on which it was based,
notwithstanding it was made for the purpose of acquiring an estate or interest in land, need not be in
writing.
14. EquityLachesPrejudice from Delay.
Strictly speaking, laches implies more than mere lapse of time in asserting a right, requiring some actual
or presumable change of circumstances rendering it inequitable to grant relief.
15. EquityLachesPrejudiceNature.
Some of the circumstances, in addition to the lapse of time, which will in equity constitute laches, are
destruction of the muniments of title, the death or removal of the parties, the number of innocent purchasers
who may be affected, radical changes in the condition or value of the property, and its speculative
character.
16. EquityLachesLoss of Evidence.
Any circumstances tending to obscure the truth of a matter, as a loss of witnesses through the efflux of
time, may prompt a court of equity to apply the doctrine of laches.
17. EquityLachesPrejudice.
If it appears that an adverse party has lost any advantage which he might have retained if plaintiff's claim
had been asserted with reasonable promptness, or is exposed to any injury through inexcusable delay, a
court of equity will not interfere to grant relief to the dilatory claimant.
18. PleadingDemurrerAdmissions.
On demurrer to the complaint, allegations in the complaint are to be taken as true.
19. Joint AdventuresAction Between MembersLachesAdvances in Value.
Mere fact that mining property has advanced considerably in value should not bar recovery, under the
doctrine of laches, by a member of a contract of joint adventure, where the plaintiff was prevented from
contributing his share through the fraud and concealment of the other members, and is seeking an
accounting.
20. EquityLachesDelay Short of Period of Limitations.
Where the statute of limitations has not run, strong circumstances must exist to require the application of
the doctrine of laches.
21. PleadingLachesDemurrer to Complaint.
On demurrer to complaint, on ground that it shows that plaintiff was guilty of laches, it must appear from
averments in complaint that plaintiff was guilty of laches.
Appeal from First Judicial District Court, Washoe County; R. C. Stoddard, Judge.
Action by C. N. Miller against Mark Walser and Frank Margrave. Judgment for the
defendants, and plaintiff appeals. Reversed and remanded, Sanders, J., dissenting.
William Woodburn, for Appellant:
By entering into a stipulation extending the time to file their brief, respondents recognized
the appeal, and thereby waived any right they had to move for a dismissal. Henningsen v. T.
& G. R. Co., 32 Nev. 51. We think, also, that the point raised by counsel for appellant that
the respondents, by entering into numerous stipulations heretofore referred to, which reserved
no right to object or except to the sufficiency of the record, waived the right to move to
dismiss, or to strike upon any grounds that were not jurisdictional. Botsford v. Van Riper, 32
Nev. 225.
Respondent should note in his brief any objections to the transcript, or the same will not be
regarded. Rule 8, Sup. Ct. The transcript does not contain the original complaint. It
discloses, however, that a demurrer was interposed to the original complaint and sustained by
the court. The original complaint, therefore, became functus officio, and was superseded by
the amended complaint. The amended complaint * * * entirely supersedes the original
complaint. McFadden v. Ellsworth M. & M. Co., 8 Nev. 60.
If the transcript was delayed for several days in filing, respondents have waived their right to
have the case dismissed, not having moved promptly for a dismissal.
A motion to strike and a motion to dismiss are not parts of the judgment roll. Mook v.
City, 58 Pac. 826.
The statutes of Nevada and California are identical as to what constitutes the judgment roll.
Rev. Laws, 5273; Kerr, C. C. P. 670. When allegations of a complaint are of sufficient
importance that a desire is evidenced by a motion to make them more specific and certain, the
moving party is thereafter estopped to have the same matters stricken. 31 Cyc. 640; Banks v.
Ocean Nat. Bank, 53 How. Pr. 51. Irrelevant, redundant and immaterial matters may be
stricken from a pleading (Rev. Laws, 5067), but matters, terms, conclusions are, under the
strictest interpretation, to be considered only as allegations of both law and fact. Grinde v.
Milwaukee R. R. Co., 42 Iowa, 377; Clark v. Chicago R. R. Co., 28 Minn. 71; Allen v.
O'Donald, 23 Fed. 576.
Delay in itself does not constitute laches. There must be, in addition to the delay, some
facts or circumstances arising by virtue thereof which make it unjust or inequitable to permit
claimant to assert his demand; some injury caused to the party against whom the demand is
claimed, in order to constitute laches. Two circumstances, always important in such cases,
are the length of the delay and the nature of the acts done during the interval, which might
affect either party and cause a balance of justice or injustice in taking the one course or the
other, so far as relates to the remedy. Chase v. Chase, 37 Atl. 804; Galliher v. Cadwell 36 L.
Ed. 738; Townsend v. Vandewater, 40 L. Ed. 383; Penn. M. L. I. Co. v. Austin, 42 L. Ed.
626; Just v. Idaho C. & I. Co., 102 Pac. 381; Stewart v. Finkelstone, 92 N. E. 39; 10 R. C. L.,
sec. 143. There are no facts stated in the complaint to show that respondents have been
injured in any way by the delay. The facts stated must, for the purpose of this hearing, be
taken as true. Lang Syne M. Co. v. Ross, 20 Nev. 140. This court will not anticipate what
facts may be alleged by respondents in their answer. Idem.
There is no fact alleged in the complaint showing that appellant waited until the property
proved to be of great value before instituting his action.
great value before instituting his action. In acquiring the property in violation of their
agreement with the appellant, respondents committed a fraud, in utter disregard of the rights
of appellant. Gamble v. Silver Peak, 34 Nev. 425. The property was of great value at the time
of entering into the original agreement. Ripley v. Seligman, 50 N. W. 143.
The allegations of the complaint established a trust fund in favor of appellant and against
respondents; it showed, also, that a fraud had been perpetrated upon appellant, and any delay
on his part in instituting the action was immaterial. A joint adventure having been
established, respondents will be deemed to be holding appellant's proportion of the stock as a
trust for the use and benefit of appellant. It is no defense that appellant did not contribute the
amount of money agreed upon. Botsford v. Van Riper, 33 Nev. 156. A trust fund having been
established by allegations of the complaint, the delay in instituting the suit is immaterial.
McIntire v. Pryor, 43 L. Ed. 606.
The complaint contains no allegations which show that by reason of the delay testimony
has been lost or any of the facts have become obscured. The action is not barred by the statute
of limitations. Rev. Laws, 4967. The stock was held in trust for appellant, who has four years
after the repudiation of the trust in which to commence his action. Rev. Laws, 4970; White v.
Sheldon, 4 Nev. 265. The respondents could not be injured by the silence or delay of
appellant. Naddo v. Bardon, 51 Fed. 493; Bogan v. Morg. Co., 63 Fed. 192; Kelley v.
Boettcher, 85 Fed. 55.
The consideration for the contract was founded in the mutual promises of the parties. A
sufficient consideration is afforded to it by the mutual promises of the respective parties.
Kind v. Barnes, 16 N. E. 332; Alderton v. Williams, 102 N. W. 753; 23 Cyc. 454. Equity will
not permit respondents to deprive appellant of his share in the adventure. Lind v. Webber, 36
Nev.
630. The fact that the appellant had no interest in or control of the property is not essential
to the raising of the trust. Hornsilver Cases, 35 Nev. 447.
The allegations of fraud and concealment in the complaint are not so stated as to constitute
the foundation of appellant's claim, but simply as a matter of excuse for the failure on the part
of the appellant to perform the contract. Kenney v. Parks, 70 Pac. 557; 9 Cyc. 723.
The statute of frauds is not applicable. * * * The case comes within the class of judicial
exceptions created by equity to prevent the use of the statutes of fraud in support of
inequitable and fraudulent schemes. Hendricks v. Morgan, 167 Fed. 108; Shea v. Nilima,
133 Fed. 213; Botsford v. Van Riper, supra; Hornsilver Cases, supra; Levy v. Ryland, 32
Nev. 460.
Cheney, Downey, Price & Hawkins, for Respondents:
The appeal should be dismissed, it not having been filed within thirty days after being
perfected. Rules 1, 2, and 3, Sup. Ct. The rules of court have the same force and effect as
though they were incorporated in the statutory provisions. Beco v. Tonopah Ex. M. Co., 37
Nev. 203; Collins v. Goodwin, 32 Nev. 342; Skaggs v. Bridgman, 39 Nev. 310.
Interwoven with alleged facts, the amended complaint is made up of statements, conclusions
of law, assertions and argumentative matter. They cannot be considered in determining
whether or not the amended complaint states facts sufficient to constitute a cause of action,
and should have been stricken out on the defendants' motion. Rev. Laws, 5038; Standard
Ency. Proc., p. 205, et seq. The different allegations in a pleading should be consistent with
one another, and if inconsistent or repugnant averments appear they may be stricken out on
motion. But if the allegations are so utterly repugnant as to destroy one another, so that no
cause of action or defense remains, a general demurrer will lie against the pleading. 31 Cyc.
75. The allegations in the amended complaint not only do not show facts sufficient to
warrant the court in declaring a constructive trust, but it affirmatively appears therefrom
that there was no constructive trust.
allegations in the amended complaint not only do not show facts sufficient to warrant the
court in declaring a constructive trust, but it affirmatively appears therefrom that there was no
constructive trust. Perry on Trusts, vol. 1, 2d ed., sec. 166, p. 187; 39 Cyc. 169; Ency. Evid.,
vol 13, p. 154. Under the facts set forth in the amended complaint, there was not stated a
legally enforcible agreement. Botsford v. Van Riper, 33 Nev. 156. Plaintiff would have no
right to participate in the profits of an enterprise to which he had contributed nothing, and
could claim no interest in the property acquired by the defendants at their own expense and
for their own use, nor in the earnings thereof. Powell v. Maguire, 43 Cal. 11; Prince v. Lamb,
60 Pac. 689; Hyer v. Richmond T. Co., 168 U. S. 471; Mann v. Bowen, 11 S. E. 862; Hawley
v. Tesch, 59 N. W. 670.
The facts stated in the amended complaint show that the cause of action, if any ever
existed in favor of plaintiff, is barred by the statute of limitations. Rev. Laws, 4967. The
statute runs from the time when by the use of reasonable diligence the fraud could have been
discovered. 25 Cyc. 1186, 1190; 19 Am. & Eng. Cas. 110-113; Lang Syne M. Co. v. Ross,
20 Nev. 137; Naddo v. Bardon, 51 Fed. 493; Hansen v. Hansen, 111 N. W. 368.
The alleged agreement, the foundation of plaintiff's alleged cause of action, was an oral
agreement to acquire an estate or interest in lands, and it is therefore void under the statute of
frauds. Rev. Laws, 1059.
The facts stated in the amended complaint show that plaintiff's action, if any ever existed,
is barred under the doctrine of laches. Naddo v. Bardon, 51 Fed. 493; Gamble v. Silver Peak,
34 Nev. 427; Johnston v. Standard M. Co., 148 U. S. 360. The knowledge of the facts and
circumstances necessary to warrant the imputation of laches is such as might have been
acquired by the exercise of due diligence. Ignorance that is the effect of inexcusable
negligence is no excuse for laches, and therefore, when the essential facts might be learned
by due diligence, ignorance thereof will afford no excuse. Am. & Eng.
therefore, when the essential facts might be learned by due diligence, ignorance thereof will
afford no excuse. Am. & Eng. Cas. 110, 113; Lang Syne M. Co. v. Ross, 20 Nev. 126, 137;
25 Cyc. 1186, 1190.
In this action the district court sustained respondents' demurrer to the amended complaint.
Appellant refused to amend and elected to stand upon the amended complaint. The court
entered judgment dismissing the amended complaint and denying the relief sought by
appellant in this action. From the judgment and order sustaining the demurrer, this appeal is
taken.
The respondents ask that the appeal be dismissed upon the grounds: First, that the
transcript of the record was not filed within thirty days after the appeal had been perfected, in
pursuance of rule 2 of the rules of the supreme court. Second, that a complete transcript of the
record on appeal or a complete transcript of the judgment roll has not been filed in this court.
Third, that no bill of exceptions has been filed in the action. Fourth, that appellant has not
assigned, served or filed any assignment of errors, as prescribed by law.
1, 2. As the appeal is upon the judgment roll alone, no assignment of errors is necessary.
Talbot v. Mack, 41 Nev. 245. The same is true as to a bill of exceptions. The judgment roll
shows that the demurrer to the amended complaint was presented to the court, and discloses
the ruling thereon. The order sustaining the demurrer is deemed to have been excepted to.
Stats. 1915, p. 321.
The alleged error, thus appearing upon the face of the judgment roll, is not required to be
incorporated in a bill of exceptions.
3. The objection presented by the motion to dismiss on the second ground, namely, an
incomplete transcript of the record, must be disregarded. This objection is taken to the
omission of the original complaint from the judgment roll, which constitutes the record on
appeal.
judgment roll, which constitutes the record on appeal. The judgment roll contains the
demurrer to the complaint. That it was sustained by the court may be inferred for the amended
complaint in the record. The original complaint was therefore superseded by the amended
pleading, and the absence of the former from the transcript of the record is a mere technical
omission, which cannot affect the rights of respondents, and could have been cured on
suggestion of diminution of the record, as prescribed by rule 8 of this court. Rule 8 reads:
Exceptions or objections to the transcript, statement, the undertaking on appeal, notice of
appeal, or to its service or proof of service, or any technical exception or objection to the
record affecting the right of appellant to be heard on the points of error assigned, which might
be cured on suggestion of diminution of the record, must be taken at the first term after the
transcript is filed, and must be noted in the written or printed points of the respondent and
filed at least one day before the argument, or they will not be regarded.
No exception or objection to the transcript on this ground has been noted in respondents'
brief as required by said rule 8. For the reasons given, the objection will be disregarded.
Kirman v. Johnson, 30 Nev. 150.
4. By the first ground of the motion to dismiss the appeal, it is objected that the transcript of
the record was not filed within thirty days after the appeal had been perfected in compliance
with rule 2 of the supreme court, which reads:
The transcript of the record on appeal shall be filed within thirty days after the appeal has
been perfected, and the statement settled, if there be one.
It appears from the record that the appeal from the judgment on demurrer was perfected on
August 24, 1918, and that the transcript on appeal was filed on October 7, 1918. Notice of
motion to dismiss the appeal was filed on November 30, 1918, and served on counsel for
appellant on the preceding day. After the transcript on appeal was filed, counsel for the
parties herein entered into two stipulations, one of date of October 21, 191S, and the
other of date of November 12, 191S, in which additional time to serve and file points and
authorities was given to counsel for respondents.
appeal was filed, counsel for the parties herein entered into two stipulations, one of date of
October 21, 1918, and the other of date of November 12, 1918, in which additional time to
serve and file points and authorities was given to counsel for respondents.
It is contended by appellant that the effect of these stipulations, and respondents' failure to
promptly move for a dismissal under said rule 8, operate as a waiver of the motion to dismiss
the appeal. We think the contention must be admitted. As the extension of time given in the
stipulations was for the benefit of counsel for respondents, it may be presumed that they were
entered into at their request. By entering into these stipulations, which were made for their
accommodation, and by reserving no objection therein as to the time when the transcript on
appeal was filed, they recognized the appeal, and their failure to timely move for a dismissal
under the rule is an additional reason why a waiver of the objection should be enforced
against respondents. The right to move to dismiss an appeal may be waived upon any grounds
that are not jurisdictional. Botsford v. Van Riper, 32 Nev. 225, 106 Pac. 440; Henningsen v.
T. & G. R. R. Co., 32 Nev. 51, 104 Pac. 223. The motion to dismiss the appeal is denied.
We will consider the appeal on its merits. In substance, it is alleged in the amended
complaint (which will hereinafter be alluded to as the complaint) that on or about the 16th
day of April, 1913, one R. L. Ray had an option to purchase certain mining claims known as
Packard No. 1, Packard No. 2, and Packard Fraction, situated in the Rochester mining district,
county of Humboldt, Nevada, and represented to appellant and respondents that the said
claims were of value; that on the same day all of these parties entered into an oral agreement
and joint adventure, promising to use their joint efforts to acquire said claims, and share an
equal interest therein, and to thereafter organize a corporation to take over the mining claims
and to share equally in the stock issued by said corporation in payment for said claims; that it
was agreed that Ray was to contribute to the joint adventure his right to purchase the
claims, Margrave his services, knowledge, and experience as a mining engineer, Walser
his legal services required to be rendered to the adventure, and appellant the sum of
$2,500; that, before appellant was to contribute the said sum, Margrave was to examine
the claims, and if, in his opinion, the same were of value and as represented by Ray,
Margrave and Walser were to immediately notify appellant at Reno, Nevada, to that
effect; and that the appellant, upon being so notified, was to contribute said sum of
$2,500.
claims; that it was agreed that Ray was to contribute to the joint adventure his right to
purchase the claims, Margrave his services, knowledge, and experience as a mining engineer,
Walser his legal services required to be rendered to the adventure, and appellant the sum of
$2,500; that, before appellant was to contribute the said sum, Margrave was to examine the
claims, and if, in his opinion, the same were of value and as represented by Ray, Margrave
and Walser were to immediately notify appellant at Reno, Nevada, to that effect; and that the
appellant, upon being so notified, was to contribute said sum of $2,500.
It is further alleged that on or about the 17th day of April, 1913, Margrave made an
examination of the said mining claims, and, finding them to be of great value and as
represented by Ray, informed Walser of the facts; that Walser and Margrave failed, refused,
and neglected to notify appellant of these facts or that Margrave had approved the claims, but,
on the contrary, suppressed, concealed, and withheld from appellant this information, thus
preventing him from complying with the terms of the agreement as to his contribution to said
joint adventure of said sum of $2,500; that appellant, at all times mentioned in the complaint,
has been and still is ready and willing to do or perform all things by him to be done or
performed under the terms of the agreement.
It is alleged that on or about the 18th day of April, 1913, Margrave made the first payment
on the mining claims for and on behalf of the joint adventure composed of himself, Walser,
Ray, and appellant, and that thereafter, on or about July 11, 1913, respondents and Ray
obtained title to said mining claims for and on behalf of the members of said joint adventure
and enterprise, and for the use, benefit, and in trust, share and share alike, for all of the
members thereof; that on or about the date last aforesaid, Ray and respondents, for and on
behalf of themselves and appellant, organized the Nevada Packard Mines Company, for the
purpose of taking over the claims in pursuance of the agreement and joint adventure, and
conveyed them to the company, and subsequent to the organization of said company
caused to be issued to Ray, Walser, and Margrave, in consideration of the transfer,
750,000 shares of the capital stock of said company, one-fourth thereof to Ray and
three-fourths thereof to respondents; that, under the terms of said agreement and joint
adventure, Ray, appellant, and respondents were each entitled to one-fourth of said
stock, to wit, 1S7,500 shares; that respondents failed to issue, or cause to be issued and
delivered, to appellant said 1S7,500 shares of stock, but had the same issued and
delivered to themselves in equal parts, and have ever since refused and do now refuse to
deliver the same to appellant; that the same is of the reasonable value of $93,750.
and joint adventure, and conveyed them to the company, and subsequent to the organization
of said company caused to be issued to Ray, Walser, and Margrave, in consideration of the
transfer, 750,000 shares of the capital stock of said company, one-fourth thereof to Ray and
three-fourths thereof to respondents; that, under the terms of said agreement and joint
adventure, Ray, appellant, and respondents were each entitled to one-fourth of said stock, to
wit, 187,500 shares; that respondents failed to issue, or cause to be issued and delivered, to
appellant said 187,500 shares of stock, but had the same issued and delivered to themselves
in equal parts, and have ever since refused and do now refuse to deliver the same to appellant;
that the same is of the reasonable value of $93,750.
It is further alleged that respondents have received large sums of money, the exact amount
of which is unknown to appellant, as dividends, profits, and emoluments upon said 187,500
shares of stock, and that an accounting will be necessary to determine the amount thereof. In
the prayer of the complaint, appellant asks to be declared the owner of the 187,500 shares of
stock, and that respondents hold the same in trust for him; that they be required to deliver the
same to him, and, in case such delivery cannot be made, that he have judgment against them
for $93,750, the value thereof; that an accounting be had of the profits or dividends, etc.,
received by them on account of said 187,500 shares of stock, and that appellant have
judgment for the same; that restraining order be made and a receiver appointed.
The lower court sustained respondents' demurrer to the amended complaint, holding that it
appeared therefrom that appellant had been guilty of laches in instituting his action. This
appeal is taken by the appellant, Miller, but by the discussion of counsel for respondents, in
their brief and in the oral argument in this court, we are confronted with a proposition
resembling a cross-appeal from the order and judgment sustaining respondent's demurrer.
They insist that the court erred in that part of the decision holding that the complaint stated
a cause of action, if it had not been defeated by the laches of appellant appearing on the
face of the complaint.
part of the decision holding that the complaint stated a cause of action, if it had not been
defeated by the laches of appellant appearing on the face of the complaint. We will consider
this phase of the case first.
5, 6. Counsel contend (1) that no enforceable agreement, from which a resulting trust
arises, is stated in the complaint; secondly, that, conceding such an agreement to be stated,
the cause of action is barred by the statute of limitation and is within the statute of frauds. We
are of the opinion that the district court did not err in ruling on these questions. A joint
adventure is established by the allegations of the complaint. It appears therefrom that the
parties agreed to use their joint efforts to acquire the mining property in equal interest and to
convey the title thereto to a corporation to be formed by them for the purpose of taking over
the claims. The acquirement of the claims was the primary purpose of the agreement, and it is
founded upon a consideration consisting of the mutual promises of the parties. A contract of
joint adventure is sufficiently supported by a consideration growing out of the mutual
promises of the parties. 23 Cyc. 454; King v. Barnes, 109 N. Y. 285, 16 N. E. 332; Botsford
v. Van Riper, 33 Nev. 190, 110 Pac. 705.
The mutual promises, which formed the consideration of the agreement, and upon which
the parties acted in pursuance of the enterprise to obtain title to the property, were, as stated
in the complaint, the appellant's promise to contribute $2,500, Margrave his services,
knowledge, and experience as a mining engineer, Walser his legal services, and Ray his right
to purchase the group of claims. The complaint, therefore, states the agreement of the parties;
the consideration upon which it was based; the thing that was to be done in pursuance
thereofnamely, the acquisition of the claims and the interest of each in the subject-matter of
the contract. No further averment is required to invest the arrangement alleged with all the
elements of a joint adventure.
But it is asserted by counsel for respondents that the averments of the complaint at most
show only a contemplated joint adventure which was never launched, so far as appellant was
concerned, for the reason that he did nothing to help the enterprise along and contributed no
money for that purpose. We take another view. The joint adventure was consummated when
the minds of the parties met and their mutual promises were exchanged. Appellant's
agreement to contribute $2,500 and his readiness to fulfil this covenant were the financial
factors of the compact, that had as much to do with the acquirement of the claims as Ray's
option or Margrave's action in going upon the claims to ascertain their value. The option and
the knowledge which Margrave acquired of the value of the claims would have been
unavailing without the means to secure them.
7. Appellant's promise to supply the means was an assurance of financial support arising
out of the agreement, and which Margrave carried with him when he went upon the ground,
and it cannot be assumed that he would have gone without such assurance. The purported
value of the claims, as represented by Ray, and the desire to acquire them, brought the parties
together in an agreement that charged Margrave with the duty of investigating the mining
claims. When he found them to be of value sufficient in his judgment to warrant the venture,
he was in duty bound to report to the appellant to enable him to comply with his part of the
agreement. The relationship created by the agreement of joint adventure, being fiduciary in its
character, laid upon him a strict duty to deal fairly with his correlates with reference to any
part of the subject-matter of the agreement intrusted to his supervision. If he had complied
with his covenant in this respect, and had informed appellant of the value of the claims, as he
did Walser, and appellant had then failed to contribute money in pursuance of his promise,
then there would have been a failure of consideration on his part, which would have excluded
him from participating in the enterprise. But under the terms of the agreement, as alleged
in the complaint, he could not be foreclosed of his right to share in the property and
profits of the enterprise without having an opportunity to furnish the money, simply
because Walser and Margrave failed to keep their covenants with him.
under the terms of the agreement, as alleged in the complaint, he could not be foreclosed of
his right to share in the property and profits of the enterprise without having an opportunity to
furnish the money, simply because Walser and Margrave failed to keep their covenants with
him.
It appears from the averments of the complaint that appellant was at all times ready to keep
his part of the agreement and contribute the $2,500, but that he was prevented for so doing by
the action of Walser and Margrave. A good and sufficient reason is therefore shown why
appellant has not carried out his part of the joint adventure, which relieves him from any
breach of the contract, by failure of consideration on his part. This court, in Botsford v. Van
Riper, cited supra, has had occasion to emphasize the nature of a trust relationship created by
similar facts, in the following language:
We further find that the law is well established that the relation between joint adventurers
is fiduciary in its character, and the utmost good faith is required of the trustee to whom the
deal or property may be intrusted and that such trustee will be held strictly to account to his
coadventurers, and that he will not be permitted by reason of the possession of the property or
profits, whichever the case may be, to enjoy an unfair advantage, or have any greater rights in
the property by reason of the fact that he is in possession of the property or profits as trustee,
than his coadventurers are entitled to. The mere fact that he is intrusted with the rights of his
coadventurers imposes upon him the sacred duty of guarding their rights equally with his own
and he is required to account strictly to his coadventurers, and, if he is recreant to his trust,
any rights they may be denied are recoverable.
8. We know of no equitable principle arising from the facts stated that could justify
Margrave, or Walser and Margrave, as the case may be, in canceling the agreement with
appellant after it was discovered that the property concerning which they had entered into the
agreement, was valuable.
was valuable. That they, or either of them, furnished the money to secure title to the property,
could not work a forfeiture of his right. Appellant had not declined to furnish the money, for
he had not been informed that any money was required of him to purchase or secure title to
the property. Money advanced by them for such purpose would be in the nature of a loan to
the joint adventure and for the benefit of all the joint adventurers.
Money advanced by one party to a joint adventure is held to be a loan to the venture, for
which the party is entitled to be reimbursed out of the proceeds of the venture; but, by reason
of the advancing of such money, it does not entitle the party so advancing to any superior
right as against his coadventurers. Botsford v. Van Riper and cases cited, reaffirmed in Lind
v. Webber 36 Nev. 623.
Counsel for respondents cited Powell v. Maguire, 43 Cal. 11, and Hyer v. Richmond Traction
Co., 168 U. S. 471, to support their contention that an enforceable agreement is not stated in
the complaint. It was held in these cases that an agreement to enter into a partnership cannot
be enforced in a suit in equity, and that a party will be confined to an action at law for a
breach of the contract. In Mann v. Bowen, 85 Ga. 616, cited in support of the same
contention, the court adhered to the rule that an action at law lies for the breach of a contract
to form a partnership.
9. We do not question the rule stated in the cases cited, but it is a rule that is inapplicable
to the case at bar, in which the complaint discloses a joint adventure. The principal distinction
between a partnership and joint adventure is that, in most jurisdictions, where any is regarded
as existing, one party may sue the other at law for a breach of the contract; but this right will
not preclude a suit in equity for an accounting. 23 Cyc. 453-461. The distinction is recognized
by this court in Botsford v. Van Riper, supra, and reaffirmed in Lind v. Webber, 36 Nev. 623,
wherein the court said:
It is also well settled in law that one party to a joint adventure may sue the other at law
for the breach of the contract, or share of the profits or losses, or a contribution for
advances made in excess of his share, but the remedy at law does not preclude a suit in
equity for an accounting.
adventure may sue the other at law for the breach of the contract, or share of the profits or
losses, or a contribution for advances made in excess of his share, but the remedy at law does
not preclude a suit in equity for an accounting. In this state, under our code of procedure, the
district court in proper cases may administer both legal and equitable relief.
In Prince v. Lamb (Cal.) 60 Pac. 689, also cited by counsel for respondents, specific
performance of an alleged grub-stake agreement was refused upon the statutory grounds of
inadequacy of consideration and the unreasonableness of the contract. In the case before us
there was no failure of consideration on the part of appellant, or question of its adequacy.
10. A joint adventure is clearly alleged in the complaint in which the appellant had
obligated himself to furnish the purchase price of the claims upon receiving information
Margrave had agreed to give if he found the claims to be of a sufficient value, and
respondent's violation of their agreement in withholding this information, and appropriating
appellant's stock, worked an implied trust as effectually as if appellant had actually furnished
the consideration to purchase the property.
11. Respondents insist that this action is founded upon the fraud alleged in the complaint
and is therefore barred by the three-year limitation of the statute in actions for relief on the
ground of fraud.
We think that they are mistaken in this contention. That clause of the statute applies to
actions which have their inception in fraud and under no circumstances could be applied to a
case like the one under consideration, which would not be maintainable at all were it not for
the fiduciary relationship created by the contract. Fraud is not the basis of the action. It is
founded upon the agreement which created the trust relation.
True, it is alleged in the complaint that Walser and Margrave failed, refused, and neglected
to notify appellant that the property was of great value and as represented by Ray, and had
been approved by Margrave, and that he and Walser suppressed, concealed, and withheld
from appellant this information and thus prevented him from complying with the terms of
the agreement and to his contribution to the joint adventure; but it is plain, from a
consideration of the entire complaint, that this allegation was made to show why
appellant had not contributed the sum of $2,500, as stipulated in the oral agreement, and
not as the ground of action.
from appellant this information and thus prevented him from complying with the terms of the
agreement and to his contribution to the joint adventure; but it is plain, from a consideration
of the entire complaint, that this allegation was made to show why appellant had not
contributed the sum of $2,500, as stipulated in the oral agreement, and not as the ground of
action. It is a mere incident and not the gravamen of the action. 19 Am. & Eng. Ency. Law
(2d Ed.) p. 247.
The cause of action would be complete without the allegation of fraud if it had been
alleged that appellant had contributed the money. His excuse for nonperformance, while
involving fraud on the part of Walser and Margrave, is, in effect, equivalent to an allegation
of the actual performance of his covenant. 9 Cyc. 724.
The case of Lang Syne M. Co. v. Ross, 20 Nev. 127, cited by the respondents to sustain
their contention that the statute of three-year limitation applies in this case, is not in point. An
examination of the facts of the case reveals that the cause of action alleged had its inception
in fraud. In the case of Kelley v. Boettcher, 85 Fed. 55, also referred to, false representations
were made to the complainants to induce them to make the conveyance. The cause of action
was based on fraud and grew out of no contractual relations.
12. In the case at bar, the cause of action accrued upon respondents' breach of duty in
preventing appellant from performing his contract, and excluding him from his share of the
stock of the corporation, and was commenced within less than four years from its accrual. We
think it is maintainable by reason of section 4970 of the Revised Laws of Nevada, which
provides:
An action for relief, not hereinbefore provided for, must be commenced within four years
after the cause of action shall have accrued.
White v. Sheldon, 4 Nev. 280, seems to be closely in point. In that case (without going
into a detail of the facts) a trust relation was created by reason of a parol agreement. The court
held that the cause of action accrued when the defendant, who had succeeded one Johnson
as trustee at request of plaintiff, the cestui que trust, conveyed the trust property to
another party.
accrued when the defendant, who had succeeded one Johnson as trustee at request of plaintiff,
the cestui que trust, conveyed the trust property to another party. In applying the statute of
limitations, the court said:
Thus a period of less than four years elapsed between the conveyance by Sheldon and the
bringing of this action, and the plaintiff's right would not be barred by a lapse of time short of
four years, for this form of action is governed by the eighteenth section of the statute of
limitations. None of the other sections * * * seem to cover cases of this kind.
The section referred to is section 4970 of the Revised Laws.
It is true, in White v. Sheldon the element of fraud did not enter into the transaction, but
neither did it enter into the transaction under consideration, except to excuse the
nonperformance on the part of appellant by reason of the respondents' alleged breach of duty
in withholding information as to the value of the claims, and in appropriating appellant's
interests in the stock of the corporation. While the facts in the case at bar are somewhat
different from White v. Sheldon, the principle involved is the same, and the same statute of
limitations applies. In each case it was the understanding between the parties which gave the
right of action, and a breach of duty, imposed by agreement, which caused it to accrue.
13. Under our view of the action stated in the complaint, the contention that the oral
agreement alleged is within the statute of frauds, for the reason that it was to acquire an estate
or interest in lands, cannot be upheld. It is well established that where an implied trust is
effectuated, the contract on which it was based, notwithstanding it was made for the purpose
of acquiring an estate or interest in lands, need not be in writing. Levy v. Ryland 32 Nev. 460;
Hornsilver Cases 35 Nev. 447, 464.
The trial court sustained the demurrer to the complaint, and it appears from the written
opinion of the court that the laches of the appellant in instituting the action, apparent
from the allegations of the complaint, was the ground of the ruling.
court that the laches of the appellant in instituting the action, apparent from the allegations of
the complaint, was the ground of the ruling.
As we read the opinion, the court held that, because a period of nearly four years had
elapsed from the time the appellant, if he had acted with ordinary prudence, should have
discovered that respondents intended to disregard his rights, he was guilty of laches, and
therefore debarred from maintaining this action. This was error, and, as there is no averment
in the complaint sufficient to make the ruling right, though the reasons given for it are wrong,
the decision of the trial court, sustaining the demurrer and entering judgment thereon, must be
reversed.
14. Strictly speaking, laches implies more than mere lapse of time in asserting a right; it
requires some actual or presumable change of circumstances rendering it inequitable to grant
relief. 16 Cyc. 152. Notwithstanding some courts have applied this doctrine without any
intervening element of estoppel, where an unreasonable length of time has elapsed, the rule
that lapse of time alone will not constitute laches may be said to be well settled. Something
must occur in the meantime in relation to the property or parties, to make it inequitable to
enforce the late demand.
Chief Justice Fuller, in delivering the opinion of the court in O'Brien v. Wheelock, 184 U.
S. 493, said:
The doctrine of courts of equity to withhold relief from those who have delayed the
assertion of their claims for an unreasonable length of time is thoroughly settled. Its
application depends on the circumstances of the particular case. It is not a mere matter of the
lapse of time, but of change of situation during neglectful repose, rendering it inequitable to
afford relief.
And again in 10 Ruling Case Law, 396:
While statements are to be found in some of the cases intimating that unreasonable delay,
and mere lapse of time, independently of any statute of limitations, constitute a defense in a
court of equity, the generally accepted doctrine appears to be that laches is not, like
limitation, a mere matter of time, but is principally a question of the inequity of
permitting a claim to be enforced; this inequity being founded on some change in the
condition or relation of the property or parties."
accepted doctrine appears to be that laches is not, like limitation, a mere matter of time, but is
principally a question of the inequity of permitting a claim to be enforced; this inequity being
founded on some change in the condition or relation of the property or parties.
Mere lapse of time, not extending beyond the period fixed in the statute of limitations for
the commencement of the suit, constitutes no bar to the action. Lang Syne M. Co. v. Ross,
20 Nev. 140, 19 Am. St. Rep. 337.
It is unprofitable to collect and cite authorities to sustain a doctrine so generally recognized
by the courts.
15. Some of the circumstances, in addition to the lapse of time, which will in equity
constitute laches, are:
The destruction of the muniments of title, the death or removal of parties, the number of
innocent purchasers who may be affected, radical changes in the condition and value of the
property, and its speculative character. Kelley v. Boettcher, 85 Fed. 55, 29 C. C. A. 14.
16, 17. Any circumstances tending to obscure the truth of the matter, as the loss of
witnesses through efflux of time, may prompt a court of equity to apply the doctrine of laches.
In fact, if it appears that the adverse party has lost any advantage he might have retained if the
claim had been asserted with reasonable promptness, or exposed to any injury through
inexcusable delay, a court of equity will not interfere to give relief to the dilatory claimant.
Every case must depend upon its own peculiar circumstances.
18. To invoke a doctrine of laches in this action sufficient averments must appear in the
complaint to warrant it. A case must be made out from the complaint, and for the purposes of
this decision its allegations are to be taken as true. We concur with the learned trial judge in
his conclusion that, if appellant had acted as an ordinarily prudent person, he could have
learned in July, 1913, of the incorporation of the Nevada Packard Mines Company, and other
facts which would have at least put him upon his inquiry.
Under the facts stated in the complaint, knowledge of the fact that respondents had
denied his rights in the property, is imputed to him in July, 1913, when respondents
organized the corporation and caused the capital stock of the company to be issued to
themselves in consideration of the transfer of the claims to the company.
of the fact that respondents had denied his rights in the property, is imputed to him in July,
1913, when respondents organized the corporation and caused the capital stock of the
company to be issued to themselves in consideration of the transfer of the claims to the
company. There then appears from the complaint a lapse of time of about three years and nine
months from the time the appellant is chargeable with knowledge that Walser and Margrave
had violated their agreement, until he commenced this action on April 13, 1917, during which
he asserted no claim.
19. Aside from this lapse of time, what other element partaking of the nature of estoppel
affirmatively appears from the complaint? Respondents contend that there was an enormous
increase in the value of the property from mining claims that could have been purchased in
April, 1913, for the sum of less than $2,500, to capital stock of the company, one-fourth of
which was worth $93,750. This is hardly a conservative statement of what the complaint
shows as to the increase in value of the property. It fairly appears from the allegations of the
complaint that the parties expected to purchase the claims for $2,500. It is also alleged that
Margrave found the claims to be of great value. But, conceding that the property had
advanced considerably in value, even under the rule that the doctrine of laches is peculiarly
applicable in cases involving mining transactions, this fact alone will not bar a recovery.
If property has been acquired by fraud, or in utter disregard of the rights of others, and
such property subsequently becomes of great value, the person defrauded would not for that
reason alone be debarred from recovering possession, even though he reaped an increment
entirely disproportionate to any efforts put forth by himself. Gamble v. Hanchett, 34 Nev.
351, 126 Pac. 111.
But they say that appellant awaited the event for nearly four years, and, when he found that
the property had increased enormously in value, now seeks to come in and share an
unearned increment and deprive the respondents of the fruits of their energy and
enterprise.
in and share an unearned increment and deprive the respondents of the fruits of their energy
and enterprise. Whatever may be the actual facts of the case, it does not affirmatively appear,
from the averments of the complaint, that appellant was lying in wait for favorable
developments of the property to begin this action, and we cannot import such an allegation
into the complaint by way of inference from other facts stated therein. As stated by the court
in Lang Syne M. Co. v. Ross, supra:
It does not affirmatively appear upon the face of the complaint in this action that, at the
time of the discovery of the fraud, the plaintiff considered that the property was worthless;
that it kept silent, waiting for the defendant, Ross, to develop the mine; and that then, after
the value of the mine had been established by his labor, expense, and hazard, the plaintiff
commenced this action to rob him of the fruits of his industry and enterprise.' It may be that,
upon issues of fact and proofs made upon the trial, such a state of facts may be presented. But
our decision upon the questions * * * raised by the demurrer must be governed solely by the
sufficiency of the allegations of the complaint. We have no right to anticipate what the
evidence will be.
Aside from the increase in the value of the mining property, the amount of which, whether
great or small, is uncertain, no other element partaking of the nature of estoppel is presented
by the pleading. Whether the increase in value is due to unusual efforts and expenditures on
the part of the plaintiff, or in a large measure as the natural result of a rich mine, is entirely
speculative, so far as the complaint is concerned.
No loss of evidence, rights of innocent purchasers, change in relation to the parties or
property, or great expenditures in the improvements thereof, or the like circumstances, which,
in conjunction with the lapse of time, often constitute laches, appear in the complaint, and, as
observed in the foregoing case, we have no right now to anticipate the appearance of any in
the pleadings or proof.
now to anticipate the appearance of any in the pleadings or proof.
20, 21. Besides, the statute of limitations has not run, and by reason thereof strong
circumstances must exist to require the application of the doctrine of laches. The burden is on
the respondents to show from suitable averments in the complaint that such circumstances
exist. Kelley v. Boettcher, 85 Fed. 55, 29 C. C. A. 14.
The judgment of the district court is reversed, and the cause remanded. A reasonable time
will be designated by the district court for the respondents to answer the complaint.
Coleman, C. J.: I concur.
Sanders, J., dissenting:
The agreement in question is made the subject of the action, and its violation the cause.
The respondents are trustees ex maleficio. Pom. Contracts, p. 207; Bispham, Prs. of Eq. sec.
92; 2 Pom. Eq. Jur. secs. 1053-1055; 1 Story's Eq. Jur. 187; Perry, Trusts, sec. 106. Therefore
subdivision 4 of section 4967 of the Revised Laws covers the case made by the complaint.
The judgment upon this ground should be affirmed.
____________

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