Nevada Reports 1921-1922 (45 Nev.) PDF

45 Nev.
1, 1 (1921)
REPORTS OF CASES
DETERMINED BY
THE SUPREME COURT
OF THE
STATE OF NEVADA
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APRIL TERM, 1921
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45 Nev. 1, 1 (1921) Pac. Live Stoc Co. v. Ellison Ranching Co.
[No. 2448]
PACIFIC LIVE STOCK COMPANY (A Corporation), Respondent, v. ELLISON
RANCHING COMPANY (A Corporation), Et Al., Defendants; LIZZIE J. ANDERSON
DUNN, Et Al., Appellants.
[192 Pac. 262]
1. Appeal and ErrorBurden on Movant for Dismissal to Show Party Not Served Was
Adverse.
The burden is on a party moving to dismiss an appeal on ground that an adverse party was not served to
show from the record that the party not served was adverse.
2. Appeal and ErrorAdverse Party One Who Would Be Affected by Decision.
The general test for determining who are adverse parties, within the meaning of those statutes concerning
notices of appeal, is whether or not such parties would be affected by a modification or reversal of the
decision.
3. Appeal and ErrorMotion to Dismiss for Failure to Serve Adverse Party Held To Be
Decided When Case Is Presented on Merits.
Where action on a motion to dismiss an appeal on ground that adverse parties were not served with
notices of appeal necessitates careful examination of the record, and incidentally the merits of the appeal, it
will be ordered that the motion stand over, to be heard and decided when the case is presented on its merits.
Appeal from Sixth Judicial District Court, Humboldt County; E. J. L. Taber, Judge.
Action by the Pacific Live Stock Company against the Ellison Ranching Company and
others. From an adverse judgment and orders, defendant and cross-complainant Lizzie J.
Anderson Dunn and others appeal. On motions to dismiss appeals and to affirm certain
orders, without reference to the merits of the case: Ordered that respective motions stand
over to be heard when case is presented on merits. (Ducker, J., not participating.)
J. W. Dorsey and W. E. Cashman, for Appellants:
While we are convinced that these technical motions of respondent must be denied, we
have reluctantly concluded that they cannot now be passed upon. Their settlement will require
an examination of the whole record, and will involve a determination of the merits of the
appeals. Therefore, the questions at issue cannot be heard until the merits of the appeals are
formally presented by counsel.
Appellants' notice of intention to move for a new trial was made, served upon the persons,
and filed within the time and in the manner required by law. Rev. Laws, 5323. The right of
appeal is a valuable one (People v. Cadman, 57 Cal. 562), granted by the constitution. It is
remedial in character, and must therefore be liberally construed, and must always be granted
in doubtful cases. Appeal of Houghton, 42 Cal. 35; Quint v. McMullen, 103 Cal. 381; Smith
v. Duff, 39 Mont. 378.
On an appeal from an order denying a new trial, only the parties to the motion upon which
the order was made are necessary parties to the appeal. The state of the record, at the time the
notice of intention to move for a new trial could have been made, determined who should be
served as adverse parties. Rev. Laws, 5321. Only those who were parties to the motion upon
which the order of denial was based are necessary parties to the appeal. Niles v. Gonzales,
152 Cal. 90; Herriman v. Menzies, 115 Cal. 16.
It is not material to whom the notice of appeal was directed. "All that the statute
requires is that the notice be served upon the adverse parties." Douglas v. Thompson, 35
Nev. 196; Bliss v. Grayson, 24 Nev. 422
was directed. All that the statute requires is that the notice be served upon the adverse
parties. Douglas v. Thompson, 35 Nev. 196; Bliss v. Grayson, 24 Nev. 422.
While a failure to serve the adverse party with a notice of intention to move for a new trial
may be a reason for denying the motion, and may upon appeal, if such service was necessary,
be a ground for affirming or reversing the order appealed from, it does not deprive the
supreme court of jurisdiction to hear the appeal, or constitute a ground for its dismissal. In Re
Bullard, 114 Cal. 462; In Re Ryer, 110 Cal. 556; Herriman v. Menzies, supra; Whittenbrock
v. Bellner, 62 Cal. 558.
Motion to dismiss for failure to serve adverse parties cannot be entertained prior to hearing
on the merits. Estate of Young, 149 Cal. 173; McMahon v. Thompson, 14 Cal. 588; Johnson
v. Phoenix Ins. Co., 146 Cal. 571.
Whether a party is adverse is to be determined from his position on the record, considering
the pleadings and the nature of the action. Harper v. Hilderth, 99 Cal. 265; In Re Ryer, supra;
French v. McCarthy, 110 Cal. 12.
We must look to the record, and that alone, for the purpose of determining the question as
to who were adverse parties. O'Rourke v. O'Rourke, 8 Cal. App. 263. The burden is upon
the respondent moving to dismiss an appeal for want of service upon adverse party to show
from the record that the party not served was adverse in interest. Only parties who appear
from the record to be adverse need be served. Niles v. Gonzales, supra.
Edward F. Treadwell, for Respondent:
The appeal from the judgment should be dismissed because not served upon the adverse
parties, and from the order denying the motion to correct the findings because not served
upon the adverse parties and because it is not an appealable order. The appeal from the order
denying the motion for a new trial should be dismissed because not served on the adverse
parties. The motion for new trial should be affirmed without reference to the merits
because not served on the adverse parties, and because not served and filed within ten
days after notice of decision, and the order denying changes in the findings should be
affirmed without reference to the merits because not served on the adverse parties, and
because not served and filed after final judgment.
for new trial should be affirmed without reference to the merits because not served on the
adverse parties, and because not served and filed within ten days after notice of decision, and
the order denying changes in the findings should be affirmed without reference to the merits
because not served on the adverse parties, and because not served and filed after final
judgment.
All the defendants who filed answers were adverse parties and entitled to notice of motion
for new trial and notice of appeal. Defaulting defendants were also entitled to notice of
appeal. Rev. Laws, 5323, 5330; Johnson v. Phoenix Ins. Co., 146 Cal. 571, 152 Cal. 196;
Niles v. Gonzales, 152 Cal. 90, 155 Cal. 359; Herriman v. Menzies, 115 Cal. 25.
The requirement that notice of motion for new trial and notice of appeal be served upon
the adverse parties is jurisdictional. Failure to so serve is fatal to the right of review. Dick v.
Bird, 14 Nev. 161.
Adverse parties are those who, by the record, appeared to be interested in the judgment, so
that they will be affected by its reversal or modification. Terry v. Superior Court, 110 Cal.
85; Senter v. DeBernal, 38 Cal. 637. In determining who are adverse parties, the position of
the parties as plaintiffs or defendants is entirely immaterial. Nelson Bennett Co. v. Twin Falls
Land Co., 13 Idaho, 762; Butte County v. Boydstun, 68 Cal. 189; United States v. Crooks,
116 Cal. 43; Milliken v. Houghton, 75 Cal. 539.
The fact that each defendant did not file a cross-complaint against each other defendant is
entirely immaterial in determining who are adverse parties within the meaning of the statute.
Senter v. DeBernal, supra; Bliss v. Grayson, 24 Nev. 422.
By the Court, Sanders, J.:
The respondent commenced an action in the year 1907, in the district court of Humboldt
County, to quiet its title by appropriations of 100 cubic feet of water per second, with a
priority as of the year 1872, and 25 cubic feet of water per second, with a priority as of the
year 1901, in and to the water of Quin River, against numerous defendants, made up of
individuals, copartnerships, corporations, and trustees, and to enjoin the defendants, and
each of them, from interfering with its water rights.
feet of water per second, with a priority as of the year 1901, in and to the water of Quin River,
against numerous defendants, made up of individuals, copartnerships, corporations, and
trustees, and to enjoin the defendants, and each of them, from interfering with its water rights.
The appearances in the case show some of the defendants disclaimed, four defaulted, and
others answered, denying generally the rights of plaintiff, and setting up in themselves certain
water rights in and to the waters of Quin River. One of the defendants, Lizzie J. Anderson
Dunn, cross-complained against plaintiff, and also against one of the codefendants, Ellison
Ranching Company. The defendant Ellison Ranching Company cross-complained against
plaintiff, and also against a large number of the defendants, including Lizzie J. Anderson
Dunn.
The decision of the trial court was actually rendered and filed on the 6th day of January,
1919. The decision purports to establish the priorities and relative rights of plaintiff and each
answering defendant, except four specifying in detail the numbers of second-feet of water
appropriated by the parties in and to the water of Quin River and its tributaries. The defendant
Lizzie J. Anderson Dunn appeals to this court from specified parts of the decree, and from the
order denying appellants' motion for a new trial. She also appeals from an order of the district
court denying and overruling her motion to change or modify its findings. Her notices of
appeal were actually served upon the plaintiff and the defendant and cross-complainant
Ellison Ranching Company, but not upon any or either of the codefendants.
1. The respondent now moves to dismiss the several appeals, upon the ground, among
others, that the notices of appeals were not served upon the adverse parties. The burden is
upon the party moving to dismiss the appeal to show from the record that a party not served
was adverse. Niles v. Gonzales, 152 Cal. 90, 92 Pac. 74; Potrero L. Co. v. All Persons, etc.,
155 Cal. 372, 101 Pac. 12.
2. The general test of determining who are adverse parties, within the meaning of our
statute concerning notices of appeal, is whether or not such parties would be affected by a
modification or reversal of the decision. Bliss v. Grayson, 25 Nev. 329, 59 Pac. 888; Kenney
v. Parks, 120 Cal. 24, 52 Pac. 40; Mannix v. Tyron, 152 Cal. 31, 91 Pac. 983.
3. The determination of the questions whether or not the defaulting and answering
codefendants in this case are adverse parties, who should have been served with notices of the
appeals, and whether or not, as between appellants and respondent, the decree can be
reversed, or the findings as made and entered changed, without affecting the rights of the
codefendants in and to the waters of Quin River and its tributaries, as adjudicated and
determined by the decree, necessities careful examination of the record, and, we think,
incidentally, the merits of the appeals. The same is true of the motion to affirm the orders
denying appellants' motion for a new trial, and to change or modify the findings.
It is the better practice in such cases that an examination of the record should not be made
in advance of the hearing upon the merits, but may be urged at the time of such hearing. This
is the practice long established by the Supreme Court of California, whose procedure in such
cases is not unlike that of ours. Quist v. Michael, 153 Cal. 365, 95 Pac. 658.
It is ordered, therefore, that the respective motions stand over, to be renewed, heard, and
decided when the case is presented upon its merits.
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45 Nev. 7, 7 (1921) Strattan v. Raine
[No. 2427]
S. C. STRATTAN, and S. C. STRATTAN, As Adminitrator of the Estate of Mrs. S. C.
Strattan, Deceased, Appellants, v. J. P. RAINE, as Receiver of the Gold Quartz Mining
Company of Lander County, Nevada, and the Gold Quartz Mining Company of Lander
County (Intervener), Respondents.
[192 Pac. 471; 197 Pac. 694; 200 Pac. 500]
1. Appeal and ErrorAppeal not Dismissed for Failure to File Brief, where Appellant
Desires to Prosecute Appeal.
Where appellant appeared at the hearing on motion to dismiss appeal for appellant's failure to file
opening brief within required time, under supreme court rule 11, and where court is convinced that he
desires in good faith to prosecute the appeal, and cannot say with reasonable degree to certainty that his
neglect to file brief is so inexcusable as to amount to a failure to prosecute the appeal, the appeal will not
be dismissed, but appellant will be given specified period in which to file brief.
Appeal from Third Judicial District Court, Lander County: Peter Breen, Judge.
Action by S. C. Strattan and another against J. P. Raine, as receiver of the Gold Quartz
Mining Company of Lander County, Nevada, in which the Gold Quartz Mining Company of
Lander County, Nevada, intervened. From judgment rendered and from order denying motion
for new trial, plaintiffs appeal. On motion to dismiss appeal. Motion denied, with
directions. (Coleman, C. J., not participating.)
A. Grant Miller, for Appellants.
George F. Wasson, John Jensen, A. J. Maestretti; and Benjamin F. Curler (amicus
curiae), for Respondents:
The appeal should be dismissed, appellants having failed to file or serve their points and
authorities or opening brief, or any points or authorities, or any brief on appeal, and to
prosecute their said appeal within the time or in the manner allowed by law or the rules of
this court, or any order of any court, or any stipulation of the parties herein.
this court, or any order of any court, or any stipulation of the parties herein. Rules 3, 11, Sup.
Ct.
By the Court, Ducker, J.:
This case is an appeal for the judgment and order denying a motion for a new trial. On
June 30, 1920, the defendant and respondent, J. P. Raine, as receiver of the Gold Quartz
Mining Company of Lander County, Nevada, filed a motion in this court to dismiss the
appeal, and said motion was subsequently argued and submitted for consideration and
decision. The grounds of the motion are that appellants have failed to file their points and
authorities or brief as prescribed by rule 11 of the rules of the supreme court, and have failed
to prosecute the appeal. By rule 11 it is provided as follows:
Within fifteen days after the filing of the transcript on appeal in any case, the appellant
shall file and serve his points and authorities or brief; and within fifteen days after the service
of appellant's points and authorities or brief, respondent shall file and serve his points and
authorities or brief; and within fifteen days thereafter, appellant shall file and serve his points
and authorities or brief in reply, after which the case may be argued orally.
The transcript on appeal was filed in this court on the 22d day of December, 1919. By a
written stipulation between the appellants and movant, the former's time to file their opening
brief was extended to and including the 1st day of March, 1920. Appellant's time to file his
opening brief was subsequently extended by the movant to April 10, 1920, and again to May
10, 1920. No further extension of time was granted, and appellants have filed no points and
authorities or brief. The failure of an appellant to file a brief as required by the rules of this
court is ground for the affirmance of the judgment.
The latest expression of the court in this regard is found in Gardiner v. Pacific Power Co., 40
Nev. 343. 163 Pac.
163 Pac. 731, in which former decisions of the court affirming judgments on account of the
failure to prosecute appeals by omitting to file briefs are collected. In Gardiner v. Pacific
Power Company the judgment was affirmed. It appears in that case, however, that not only
was there no brief filed by appellant, but that he made no appearance at the hearing on motion
for affirmance of the judgment, and made no effort to excuse his omission in the matter of
filing a brief. And in the decisions of this court cited therein no attempt whatever was made
to excuse the failure to file a brief. But in the instant case counsel for appellant appeared at
the hearing on motion to dismiss in opposition thereto, and filed his affidavit, in which he
seeks to clear himself from any imputation of fault in not filing his opening brief. Counsel for
movant filed a counter affidavit. From these affidavits it appears that after the appeal had
been taken counsel for appellants and the counsel for movant held a conference, in which an
agreement was reached as to the basis of a settlement of the case and other litigation pending
between the parties. During this conference the first extension of time to and including March
1, 1920, for appellant to file his opening brief was given by movant. Immediately thereafter,
as appears from the affidavit of counsel for appellant, he went East for the purpose of raising
money to effectuate the settlement proposed at said conference. While he was in the East, the
other two extensions of time to April 10 and May 10, respectively, were given to him at his
request, by counsel for movant.
The opposing affidavits are widely divergent in almost all other matters recited therein
which bear upon counsel's failure to file his opening brief. They do not, as a whole, however,
furnish a satisfactory basis of fact upon which to rest a decision of such serious consequences
to a party as the dismissal of his appeal.
On the oral argument, counsel for the appellants admitted that technically he was in default
for not filing and serving his opening brief within the time allowed, but as we are
convinced that he desires in good faith to prosecute the appeal, and we cannot say with a
reasonable degree of certainty that his neglect to file his opening brief is so inexcusable
as to amount to a failure to prosecute the appeal, we are unwilling to dismiss it.
and serving his opening brief within the time allowed, but as we are convinced that he desires
in good faith to prosecute the appeal, and we cannot say with a reasonable degree of certainty
that his neglect to file his opening brief is so inexcusable as to amount to a failure to
prosecute the appeal, we are unwilling to dismiss it.
It is ordered that the motion be denied, and that counsel for appellants be, and he is hereby,
required to file and serve his opening brief in this case within fifteen days after receiving
notice of this decision.
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[No. 2427]
S. C. STRATTAN, and S. C. STRATTAN, As Administrator of the Estate of Mrs. S. C.
Strattan, Deceased, Appellants, v. J. P. RAINE, as Receiver of the Gold Quartz Mining
Company of Lander County, Nevada, Respondent, and Gold Quartz Mining Company of
Lander County, Nevada, Intervener-Respondent.
[192 Pac. 471; 197 Pac. 694; 200 Pac. 533]
1. TrialGeneral Verdict Improper in Equity Suit.
A general verdict should not be received in an equity suit.
2. TrialNo Legal Right to Have Case Resubmitted to Second Advisory Jury.
A general verdict, or special findings, as the case may be, in an equity suit, being only advisory, and
in no way binding upon the court, no litigant has a legal right to insist that an advisory jury be called in
the first instance or to except to a refusal of the court to resubmit the case to a second advisory jury.
3. Mines and MineralsForfeiture of Mining Claim for Failure to Work Must Be Clearly
Established.
Before forfeiture of a mining claim can be declared for failure to do annual assessment work, it must
be clearly established.
4. Mines and MineralsCounting Watchman's Services on Annual Labor Expenditures is
Disfavored.
While possibly under some circumstances the services of a watchman to take care of necessary
buildings on a mining claim may count as annual labor, the courts should be reluctant to accept such
services as applying on annual labor.
45 Nev. 10, 11(1921) Strattan v. Raine
5. Mines and MineralsLocation by Another Invalid where Assessment Work Is Resumed in
Good Faith.
Even if $100 worth of work was not done on a claim during a certain year, yet if work had been
resumed thereon prior to the succeeding January 26, and was being carried to completion in good faith
and reasonable diligence when another party undertook to locate the ground, such other party's location
was not valid.
6. Mines and MineralsOn Resumption of Work on Claim, Diligent Prosecution Only
Required.
The law does not contemplate that when work is resumed on a mining claim it shall be prosecuted
every hour in the day, or that a full shift shall be done every day, but simply requires that it be prosecuted
in good faith and with reasonable diligence.
On Petition for Rehearing
1. Appeal and ErrorQuestion Presented First on Petition for Rehearing Cannot Be
Considered.
A question urged for the first time on petition for rehearing cannot be considered.
2. Appeal and ErrorAppellate Court Must Abide by Conclusion of Trial Court as to Weight
of Conflicting Testimony.
When the testimony is conflicting, it is the duty of the appellate court to abide by the conclusion
reached by the trial court as to its weight and sufficiency.
Appeal from Third Judicial District Court, Lander County; Peter Breen, Judge.
Suit by S. C. Strattan, individually, and as administrator of the estate of Mrs. S. C.
Strattan, deceased, against J. P. Raine, as receiver of the Gold Quartz Mining Company of
Lander County, Nevada, in which the Mining Company intervened. From a judgment for
intervener, and an order denying a new trial, plaintiff appeals. Affirmed. Petition for
rehearing denied.
A. Grant Miller, for Appellants:
The only question for determination in the court below was that set out in the stipulation
by the parties under which the case was tried, namely, whether or not the ground in dispute
was open, unappropriated public domain at the time it was located by appellant. The
stipulation admitted every allegation of the complaint, except that the ground was open,
unappropriated public domain, and the further allegation as to the work and labor of
development subsequent to plaintiff's location of the ground.
45 Nev. 10, 12(1921) Strattan v. Raine
labor of development subsequent to plaintiff's location of the ground.
Plaintiff was entitled to a new hearing before a new advisory jury, for the reason that the
advisory jury disagreed upon all the main issues in the case. The court never made any order
dispensing with the services of an advisory jury, and there was nothing in the return of the
said jury that assisted the court in reaching a determination of the cause, or that it could adopt
as findings in the case.
The judgment and decree are contrary to law and to the evidence.
The exclusion of competent evidence upon a material issue is reversible error (25 L. R. A.,
N.S.), and such exclusion is a denial of an absolute right. 25 L. R. A. 683, note.
The right of the original claimant is terminated by the entry of a new claimant. Madison v.
Octave Oil Co., 99 Pac. 176.
There was no authorization for defendant, as receiver, to do any work or to expend any
money upon the mining ground in dispute. Work done by * * * a stranger to the title will not
inure to the benefit of the locator. Nesbitt v. Mining Co., 24 Nev. 273; Little Gunnell G. M.
Co. v. Kimber, 1 Morrison Min. Rep. 536; Fed. Case No. 8402; In Re McCormack, 40 L. Ed.
U. S. 498.
The requirement of the law that one hundred dollars worth of work shall be done upon
each claim during each current year is absolutely vital to the possessory title of the locator. 2
Lindley on Mines, p. 1531; Morgan v. Tillotson, 15 Pac. 88: Jackson v. Roby, 27 L. Ed. U. S.
990; Chambers v. Harrington, 28 L. Ed. U. S. 452; Anthony v. Jillson, 23 Pac. 419; Goldberg
v. Bruschi, 81 Pac. 23; Du Prat v. James, 4 Pac. 563; Renshaw v. Switzer, 13 Pac. 127; Rev.
Laws, 2430; McCullough v. Murphy, 125 Fed. 147; Whalen Con. G. M. Co. v. Whalen, 127
Fed. 611; Remington v. Baudit, 9 Pac. 819; Honaker v. Martin, 27 Pac. 397.
There is no foundation in law for the claim that the watchman's services may be
considered as assessment work. "The cases must be rare in which it can justly be said
that such money is expended in prospecting and developing the mine." Hough v. Hunt,
13S Cal.
watchman's services may be considered as assessment work. The cases must be rare in
which it can justly be said that such money is expended in prospecting and developing the
mine. Hough v. Hunt, 138 Cal. 142, 70 Pac. 1059, 94 Am. St. 17.
The true criterion is whether or not the alleged work directly develops the mineral-bearing
lode or is necessary thereto. Evaline G. M. Co. v. Yosemite G. M. & M. Co., 115 Pac. 946;
Stolp v. Treasury G. M. Co., 80 Pac. 817; Walton v. Wild Goose M. & T. Co., 123 Fed. 208;
Bishop v. Bailey, 41 Pac. 936; Mattingly v. Lewishon, 35 Pac. 111; Penn v. Oldhauber, 61
Pac. 649.
Abandonment is a question of intention, while in forfeiture the element of intention is not
involved. St. John v. Kidd, 26 Cal. 263. Abandonment operates instanter. Brown v. Gurney,
50 L. Ed. U. S. 717. Forfeiture is not complete until some one else enters with the intent to
relocate the property. Little Gunnell M. Co. v. Kimber, supra. Abandonment is ordinarily a
question of fact to be determined by the jury. Lockhard v. Wills, 50 Pac. 318. The facts are to
be determined by the acts and conduct of the parties. They may be specific or implied, and
may be inferred from the act or failure to act. Conn. v. Oberto, 76 Pac. 369; N. A. Explor. Co.
v. Adams, 104 Fed. 404. Abandonment may also be proved by the acts and conduct of the
parties, even against their specific declarations to the contrary. Trevaskis v. Peard, 44 Pac.
246.
Proof of forfeiture is made whenever it is shown, by a preponderance of evidence, that the
full amount of annual labor or improvement was not expended within a given year. Big Three
M. & M. Co. v. Hamilton, 107 Pac. 301; Nevada Explor. Co. v. Spriggs, 124 Pac. 770;
Copper Mt. M. & S. Co. v. Butte & Corbin Con. M. Co., 104 Pac. 540; Swanson v. Kettler,
105 Pac. 1059.
Geo. F. Wasson, John Jensen, and A. J. Maestretti, for Respondents:
To all the questions propounded, more than a majority of the advisory jury answered in
favor of the respondents.
of the advisory jury answered in favor of the respondents. Trial by a new advisory jury is not
a matter of right. Motion for a new trial was premature. A motion is premature if filed before
the verdict is rendered or before the trial is terminated, and while the records show that no
decision has been reached. Ency. Pl. & Pr., p. 862.
The burden of proving abandonment or forfeiture of a mining claim or claims rests
absolutely on the party or parties asserting the abandonment or forfeiture, proof of which
must be clear and convincing. Whalen Con. M. Co. v. Whalen, 127 Fed. 611; McCullough v.
Murphy, 125 Fed. 147.
The law does not favor forfeitures. The rule is well established that a forfeiture cannot be
established except upon clear and convincing proof of the failure of the original locator to
have work performed or improvements made to the amount required by law. The burden of
proof to establish a forfeiture rests upon him who asserts it. McCullough v. Murphy, 125 Fed.
147; Hammer v. Garfield M. & M. Co., 130 U. S. 291; Book v. Justice M. Co., 58 Fed. 160;
Justice M. Co. v. Barclay, 83 Fed. 554; 27 Cyc. 600. Forfeitures are deemed odious. They
must be made clearly apparent before courts will enforce them. Mt. Diablo M. & M. Co. v.
Callison, 5 Sawy. 439; Fee v. Durham, 121 Fed. 468; Lockhart v. Rollins, 21 Pac. 413;
Coleman v. Curtis, 30 Pac. 266; Morrison, Mining Rights (15th ed.), p. 127; Johnson v.
Young, 34 Pac. 175.
A relocator cannot take advantage of the fact that the work was not done because
prevented by his own act. Garvey v. Elder, 21 S. D. 77; Morrison, Mining Rights (15th ed.),
p. 127.
Some cases have held that if the original locator resumes before the new locator has
completed his location and done all the acts thereunder, the former holds the property.
Honaker v. Martin, 27 Pac. 397.
Where possession is wrongfully taken and withheld, the rightful owner is excused from
the necessity of doing the work.
the rightful owner is excused from the necessity of doing the work. Utah Co. v. Dockert Co.,
6 Utah, 183; Slavonian Co. v. Perasich, 7 Fed. 331; Erhardt v. Boera, 113 U. S. 1115.
The services of a watchman constitute annual labor, and may be treated as such. Morrison,
Mining Rights (15th ed.), p. 122; Lockhart v. Rollins, 21 Pac. 413; Altoona Co. v. Integral
Co., 45 Pac. 1047; Trip v. Dunphy, 28 L. P. 14. Pay of a watchman is allowed where there is
portable property needing protection. Kingsley v. New Vulture Co., 90 Pac. 438; 27 Cyc. 590,
591; 2 Lindley on Mines (3d ed.), p. 1548.
By the Court, Coleman, J.:
Prior to and during 1915, the Gold Quartz Mining Company owned a group of thirteen
mining claims, situated in the Bullion mining district, Lander County, Nevada. In February,
1914, J. P. Raine had been appointed receiver of the company. He died in November, 1915,
just as he was preparing to do the annual assessment work upon said group of claims. In
December, 1915, R. F. Raine was appointed administrator of the estate of the deceased, and J.
P. Raine, Jr., temporary receiver of the company, with instructions to do the assessment work
upon the group of claims for 1915. Upon the appointment of the temporary receiver, which
was late in December, 1915, he got together a crew of sixteen men for the purpose of doing
the annual assessment work, and the operations were immediately begun.
Mrs. Strattan boarded the men so employed until about January 24, 1916. On the morning
of January 26, claiming that the annual assessment work had not been done upon the Ajax
and the Giant, two of the claims of said group, and that they were open to location, she
entered upon the ground and located them as the Board Bill and Board Bill No. 1 mining
claims. The Gold Quartz Mining Company intervened, and from a judgment in favor of said
company as intervener, and an order denying a motion for a new trial, this appeal has been
taken.
an order denying a motion for a new trial, this appeal has been taken.
The foregoing statement presents an outline of the case. Other facts will be alluded to in
the opinion.
Before taking up the consideration of the case upon its merits, we desire to dispose of
some preliminary matters. We direct attention to paragraphs 3, 4, and 5 of rule 4 of this court.
Paragraph 3 provides that when a transcript is typewritten the first impression thereof shall be
used in making up the record on appeal. Paragraph 4 provides that the pleadings, proceedings,
and bill of exception shall be chronologically arranged in the transcript, and prefaced with an
alphabetical index specifying the folio of each separate paper, order, or proceeding, and of the
testimony of each witness. Paragraph 5 provides also that for failure to comply with the
requirements mentioned the record may, upon motion, and for good cause shown, be stricken
from the files. The transcript in this case is neither chronologically arranged nor indexed, the
entire bill of exceptions is a carbon copy, and many of the pages in the record are very
indistinct; nor does it appear that the bill of exceptions was ever settled by the trial judge.
However, since counsel for respondent have treated the record as being in compliance with
all requirements, we will not ourselves raise objections to it; but we wish to warn the
members of the bar at large; and while we are aware of the fact that counsel for appellant was
out of the state for several months, during which time the record was prepared, and that he
did not give his personal attention to supervising its preparation, these circumstances are not
sufficient excuse for its condition.
1, 2. We come now to the first contention of counsel for appellant, namely, that the court
erred in refusing to set aside the findings of the advisory jury and resubmit the case to another
advisory jury. There was no general verdict in the case. There could not have been, in view of
the fact that the jury was asked to make special findings only.
special findings only. A general verdict should not be received in an equity suit. Simpson v.
Harris, 21 Nev. 376, 31 Pac. 1009. At most, a general verdict, or special findings, as the case
may be, in an equity suit, is only advisory, and is in no way binding upon the court; hence no
litigant has a legal right to insist that an advisory jury be called in the first instance, or to
except to a refusal of the court to resubmit a case to a second advisory jury. State v. Murphy,
29 Nev. 253, 88 Pac. 335. The court having made special findings of fact and entered its
decree based thereon, appellant's rights were in every way preserved.
No memorandum of errors was filed in support of the motion for a new trial, and the only
remaining questions to be considered are whether the court erred in refusing to grant a new
trial upon the ground of newly discovered evidence, and upon the further ground of the
insufficiency of the evidence to justify the judgment.
Did the court err in refusing to grant a new trial upon the ground of newly discovered
evidence? In support of this contention, affidavits by Julius Siri, S. C. Strattan, and A. Grant
Miller were filed. The affidavits of Strattan and Miller do not pertain to any matters within
their own knowledge, except as to questions of diligence, and the like. It is claimed that the
so-called newly discovered evidence will contradict that given by W. S. Raine in behalf of
defendants as to the number of shifts of work performed by Siri upon the Ajax claim. He
testified as follows:
Q. Well, showing your work, what does your record show as to the time that Mr. Siri, if
such a party was working, and what time he put in on the Ajax? A. I overlooked that a
moment ago in the time book there. Four days in January, Julius Siri helped Bosoaglia over
on the Ajax.
Q. When did he come? A. He came here on the last of December.
Q. How much time did he work? A. One shift.
Q. You testified to shifts? A. One is marked in the books, because I kept their time; but
he worked some in January.
This is the testimony sought to be overthrown by Siri, who, in his affidavit, states on this
point:
I also worked about a day and a half on the ground known as the Ajax, prior and up to
January 5, 1916.
He also swears that he went to work on December 30, 1915, and was laid off January 24,
1916. There is no showing by the affidavit that upon a new trial Siri's testimony would
conflict with that of Raine's. So far as Siri's affidavit shows, he might have worked upon the
Ajax every day between January 5 and 24. The court did not err in refusing to grant a new
trial upon the ground urged.
The remaining question is as to whether or not the receiver forfeited his right and that of
the company to the Ajax and Giant claims by failure to do the annual assessment work for
1915 on or before December 31, 1915; or in case he had not done such annual assessment
work on or before the date mentioned, whether there had been a resumption of work upon
such claims, and, if so, whether the same was being prosecuted with reasonable diligence
when Mrs. Strattan sought to locate the ground.
3. The very purpose of the requirement by the government of $100 worth of annual labor
upon a mining claim is to encourage the development of the mineral resources of the country,
and we feel that the law should be enforced according to its spirit, with a view of producing
the results sought to be obtained by the government; but before a forfeiture can be declared it
must be clearly established. 2 Lindley on Mines (3d ed.), 645. While no verdict was rendered
by the jury which could bind either the trial court or this court on appeal, the fact is that in
answering the special questions a majority of the jurors answered that the work upon the
claims was resumed on or about December 31, 1915, with the bona fide intention of doing the
annual labor thereon for that year, and that $100 worth of work was thereafter completed
with reasonable diligence, as annual labor for such year.
year, and that $100 worth of work was thereafter completed with reasonable diligence, as
annual labor for such year. If the finding of a majority of the jury is correct, whether or not
the work was completed after the attempted location by Mrs. Strattan, the ground was not
open for location on January 26, when she sought to locate it. Though the finding of the court
is not in the language of the jury, it finds that the claims were not open to location on January
26. The court also found as a fact that $100 worth of work had been done upon each of the
claims by the receiver prior to January 26.
4. The only way this finding could be sustained as to the Giant claim would be by
counting as annual labor $60 paid out for the services of a watchman. The authorities hold
that the erection of buildings upon a mining claim, the building of a road to be used in
developing a claim, and the like, may count as annual labor, and some of the authorities hold
that the services of a watchman to take care of necessary buildings upon a mining claim may,
under certain circumstances, count as annual labor; and it may be that the services of the
watchman in this instance should count; but it certainly cannot be said that the physical
development of a mining claim can be sacrificed by the sham of employing a watchman;
otherwise the chief purpose of the statute will be defeated. Every case must stand upon its
particular facts, and the courts should be reluctant to accept the services of a watchman as
applying on annual labor. In this case we do not deem it necessary to determine whether the
services of the watchman should be considered, since we think the other facts will justify the
conclusion that there had been no forfeiture on January 26, the morning of the attempted
location by appellant.
As to the Ajax claim, there is evidence in the record, without including the services
alleged to have been rendered by a watchman, to show, as found by the court, that over $100
worth of work had been performed upon it prior to the morning of January 26, when Mrs.
it prior to the morning of January 26, when Mrs. Strattan sought to locate the ground. In
reaching this conclusion, we do not include $5 paid for powder, $5 paid for a windlass, and
$4.50 paid for a bucket. We do not think it necessary to discuss in detail the evidence as to
the work done upon the Ajax. Evidently the trial court accepted respondent's evidence as to
the work done on the Ajax as being satisfactory in every respect, and we see no reason for
questioning the correctness of its conclusion in so doing.
A different situation exists as to the Giant claim. As we have said, there were thirteen
claims in the group owned by the defendant company, and in the latter part of December the
receiver took a crew of sixteen men to the property to do the annual assessment work for
1915. The evidence warrants the conclusion that prior to the time this crew of men were put
to work upon the group of claims, in fact at least $48 worth of work had been performed upon
the Giant claim, leaving $52 worth to be done thereoneven if the $60 for watchman's
service is not counted. The blacksmith shop and some other buildings were upon the Giant
claim, and of the crew of sixteen men doing the work upon the claims in question from
December 30, 1915, to January 24, 1916, one P. R. Keller worked in the blacksmith shop,
doing what work was necessary in sharpening the tools of the men who were doing the work
upon the other claims, and, when not so engaged in sharpening tools, would do work upon the
Giant claim. He testified that he averaged for each day from January 1 to 26 two hours of
work upon the property. Counting this at the regular ratelumping it into shifts of eight
hoursthe work was worth $24, making a total of $72 worth of work done upon the Giant
claim at the time Mrs. Strattan sought to locate the ground. The undisputed evidence is that,
on the 23d or 24th of January, P. R. Keller was employed by the receiver to stay upon the
property, after all others had left, and divide his time working upon the Ajax and Giant
claims, one-half of each shift to be put in upon each of the claims; and that, in pursuance
of said employment, he moved his things upon the property, and on January 25 worked
eleven hours in all, a part of the day being put in fixing up the office which he was to
occupy, one of the windows having been knocked out and other damage done the day
before, the rest of the time being devoted to gathering upon and storing the tools used by
the men who had quit work upon the property and gone away.
upon the Ajax and Giant claims, one-half of each shift to be put in upon each of the claims;
and that, in pursuance of said employment, he moved his things upon the property, and on
January 25 worked eleven hours in all, a part of the day being put in fixing up the office
which he was to occupy, one of the windows having been knocked out and other damage
done the day before, the rest of the time being devoted to gathering upon and storing the tools
used by the men who had quit work upon the property and gone away. The evidence shows
that the work on the office was necessary to make it habitable, in view of the weather
conditions.
There was evidence by Mrs. Strattan and her husband that practically no work had been
done upon the Ajax and Giant claims by anybody during the time the crew of men were there.
Strattan was one of the crew of sixteen who had been engaged in working elsewhere at the
time it is testified the work was being done upon the two claims; and in view of the fact that
most of the work testified to as having been done was of such a nature that he could know
nothing about it unless in the mine during the working hours of the dayat least, as to the
Giant claimhis testimony deserves little consideration. Mrs. Strattan was cooking three
meals a day for seventeen or eighteen people every day during the carrying on of the
operations, and was at somewhat of a disadvantage to observe the performance of the men.
As to the credibility of the witnesses and the weight to be given their testimony, the trial court
was better situated to determine than we are. There is a conflict in the evidence, and no theory
exists upon which we can say that the court was not justified in accepting the testimony of the
defendant as to the amount of work done upon the property.
That it may not be thought that we have overlooked the testimony of Fred King and A. E.
Raleigh, we may simply say that it shows they were in no position to know what was done at
the time relative to which they testified.
testified. One of them admitted that he was not on the property for a long time, and the other
was away during the daytime.
5. Conceding for the purpose of the case that $100 worth of work was done upon the
Giant claim during the year 1915, the question is: Had work been resumed thereon prior to
January 26, 1916, and was it being carried to a completion in good faith and with reasonable
diligence at the time Mrs. Strattan undertook to locate the ground? If the question is answered
in the affirmative, the judgment must be affirmed. 2 Lindley on Mines (3d ed.), sec. 654. In
response to question 10, submitted by plaintiffs, the jury answered unanimously that the work
performed by Keller upon the Giant claim from December 31, 1915, to January 26, 1916, was
continuous.
6. The law does not contemplate that when work is resumed upon a mining claim it shall
be prosecuted every hour in the day, or that a full shift shall be done every day. It simply
requires that it be prosecuted in good faith, and with reasonable diligence. In view of the
findings of the trial jury, to the effect that after the work was resumed upon that Giant claim it
was continuous to January 26, and the finding of the trial court supporting the finding of the
jury, we see no reason for disturbing the judgment.
Perceiving no error in the judgment and order complained of, it is ordered that the
judgment be affirmed.
We see no merit in the petition for rehearing filed in this case. It does not, in fact, call for
serious consideration; for it is evident, from a perusal of the petition, that our former opinion
has not been carefully read.
The first contention made is that we fell into error in our former opinion in saying that
there was no showing in the affidavit of Siri that his testimony upon a retrial would conflict
with that of Raine. Siri did not say in his affidavit that he did not work upon the Ajax claim
four days in January, 1916, as testified to by Raine.
his affidavit that he did not work upon the Ajax claim four days in January, 1916, as testified
to by Raine. His affidavit, so far as alluding to his work upon that claim, is as quoted in our
former opinion, wherein he states that he worked a day and a half on the Ajax prior to January
5. He does not say that he did or that he did not work thereupon between January 5 and 24.
Not having said that he did not work upon that property after January 5, we cannot assume
that he would swear that he did not. Hence there is no showing that his testimony would
conflict with that of Raine. We tried to make this clear in our former opinion.
1. It is also said that, even if it appear that $100 worth of work was done upon the Ajax, it
is not shown that the claim was benefited to that extent; and hence the judgment should be
reversed. The trial court was in a better position to determine that question than we are, and
we do not feel that there is any reason why we should not sustain its finding on this point.
Furthermore, this is the first time the point has been presented to us, and it cannot be
considered when urged for the first time on petition for rehearing. Nelson v. Smith, 42 Nev.
303, 320, 176 Pac. 261, 178 Pac. 625.
It is said in the petition for rehearing that, while the court expressly stated in the opinion
that it did not include an item of $5 claimed as having been paid for a windlass on account of
annual labor on the Ajax, we did not include another item of $9 paid for a windlass. We
confess we would have been very inconsistent had we done such a thing. The fact is the $9
item was testified to as chargeable against the Giant claim, as were the other items mentioned
in the petition, and had nothing whatever to do with the Ajax. Just why the time of the court
should be taken up in putting counsel right as to testimony is beyond our understanding, but
such is now and then the case. In reaching our conclusion as to the $100 worth of work done
on the Ajax, we considered items for labor only.
Fault is found with the opinion for the reason that we did not hold that the testimony of
the plaintiffs should have been accepted, instead of that of the defendant, as to the work
done.
we did not hold that the testimony of the plaintiffs should have been accepted, instead of that
of the defendant, as to the work done. It is said in the petition:
It would seem as if respondent had been given the benefit of every doubt and respondent's
testimony has everywhere been taken as true.
2. We have often held that when the testimony is conflicting it is our duty to abide by the
conclusion reached by the trial court as to its weight and sufficiency. Dixon v. Miller, 43 Nev.
280, 184 Pac. 926. The trial court accepted the testimony of the defendants as against that of
the plaintiff, and we feel, since no good reason appears to the contrary, that we should be
bound thereby. Counsel says:
One matter which seems to have been overlooked by the court is the fact that the
evidence on the part of respondent itself shows that no tools were sharpened by Keller for use
on the Giant claim.
If counsel will read our opinion carefully, he will see that we did not say that tools were
sharpened for use on the Giant claim. We expressly stated that the tools were sharpened for
the men who were doing the work upon the other claims.
A point is also sought to be made of the fact that we stated in the original opinion that a
certain number of the jurors reached certain conclusions as to controverted facts. While we
did allude to that matter, we also said that no verdict was rendered which could bind either
the trial court or this court, further saying:
The court having made special findings, thereon, appellant's rights were in every way
preserved.
No other suggestion calling for consideration is made in the petition.
The petition for a rehearing is hereby denied.
____________
45 Nev. 25, 25 (1921) Williams Estate Co. v. Nev. Wonder Mining Co.
[No. 2444]
WILLIAMS ESTATE COMPANY (A Corporation), Respondent, v. NEVADA WONDER
MINING COMPANY (A Corporation), Appellant.
[196 Pac. 844]
1. AnimalsOwner Not Liable for Trespass on Unfenced Land.
Owners of stock may permit stock to roam at will and graze over the public ranges and the unfenced land
of private owners, and are not liable for trespass on unfenced land.
2. Mines and MineralsOwner Turning Cattle upon Public Range near Cyanide Pond Held
Not Negligent.
An owner who had annually turned cattle loose upon public range prior to the creation of a cyanide pond
in close proximity to the range was not contributorily negligent in turning cattle loose upon the range, with
knowledge of the proximity of such pond and its poisonous quality, without posting guards at the
dangerous places.
3. Mines and MineralsLandowner Required to Exercise Care to Prevent Access of Live
Stock to Cyanide Pond Near Public Range.
A mine owner creating a cyanide pond in proximity to and in open view of public range, with knowledge
of the poisonous nature of the contents and its attractions for cattle, is required to exercise reasonable care
to prevent access to it by live stock.
4. NegligenceLandowner Liable for Negligently Leaving Poisonous Substances Attracting
Trespassing Animals.
Ordinarily one is not bound to keep his uninclosed premises in safe condition to avoid liability for injury
to trespassing stock, but he is not permitted negligently to leave on his premises poisonous substances
which will attract passing animals.
5. Mines and MineralsCyanide Pond Owner Held Negligent in Not Protecting Cattle from
Drinking Solutions Escaping.
Where the solution in a mine owner's cyanide pond, in close proximity to public range and in full view of
cattle, penetrated the levee and flowed beyond a fence erected around pond to protect cattle, and on the day
the cattle were killed by drinking the solution the fence was moved back a sufficient distance, the failure to
build the fence far enough away from the levee and in not maintaining a better levee was properly found to
be negligence proximately contributing to death of cattle. (Per Ducker, J.)
6. Mines and MineralsContriburory Negligence of Herder of Cattle Attracted by Cyanide
Pond Held Question of Fact.
The negligence of herder of cattle on a public range, who intercepted cattle headed for a cyanide pond, to
which they returned after he drove them to a point one-half mile from the pond and left
them headed in an opposite direction to go for his mail, held a question of fact.
returned after he drove them to a point one-half mile from the pond and left them headed in an opposite
direction to go for his mail, held a question of fact.
7. Appeal and ErrorTrial Court's Finding on Facts Capable of Different Inferences Not
Disturbed.
Trial court's finding on undisputed facts as to contributory negligence, where reasonable men might
honestly differ as to whether there was negligence, will not be disturbed on appeal.
8. Mines and MineralsCondition of Cyanide Pond Fence after Injury to Cattle Immaterial.
A mine owner's liability for death of cattle drinking a poisonous solution escaping from an insufficiently
fenced cyanide pond, in close proximity to and in full view of cattle on public range, depends on the
condition of the fence at the time they were killed, regardless of the subsequent moving of the fence so as
to make it a sufficient protection. (Per Coleman, J.)
Appeal from Eighth Judicial District Court, Churchill County; James A. Callahan, Judge.
Action by the Williams Estate Company against the Nevada Wonder Mining Company.
From judgment for plaintiff and from order denying motion for new trial, defendant appeals.
Affirmed. Petition for rehearing denied. (Sanders, C. J., dissenting.)
Hugh Henry Brown, for Appellant:
The evidence shows, without contradiction or conflict, that plaintiff's herder was in charge
of the cattle; that he was fully cognizant of the danger to them; that he had it in his power to
resort to effective measures to protect them from the danger, but failed to do so, and that his
said failure was the sole and proximate cause of the death of the cattle.
Turning cattle loose or unattended near a dangerous agency, where plaintiff has power to
protect them from defendant's negligence, but fails to do so, will defeat recovery. Dickey v.
Railroad, 53 Pac. 347; La Riviere v. Pemberton, 48 N. W. 406; Keeney v. Railroad, 24 Pac.
233; Martin v. Stewart, 41 N. W. 538; Hindman v. Railroad, 22 Pac. 116; Milburn v.
Railroad, 86 Mo. 104.
The proximate cause was the want of ordinary care on the part of those in charge of the
sheep," and not the negligence of defendant in allowing the cyanide to escape.
on the part of those in charge of the sheep, and not the negligence of defendant in allowing
the cyanide to escape. Sierra L. & L. S. Co. v. Desert P. & M. Co., 229 Fed. 982. Animals
are not at large if they are under the control of a person having the right of control. 3 C. J.
129. Where the herder of animals is negligent at a railroad crossing, there cannot be a
recovery. Hager v. S. P. Co., 98 Cal. 309; Louisville Co. v. Stommel, 126 Ind. 35; Schoefert
v. Railroad, 62 Iowa, 624; Rheimer v. Railroad, 36 Minn. 120.
If a plaintiff ignore warning of danger, and fail to do what an ordinarily prudent man
would do under the circumstances, he is guilty of contributory negligence, and cannot
recover. B. & P. Ry. Co. v. Jones, 95 U. S. 439; Railroad v. Schumacher, 152 U. S. 81; Guild
v. Pringle, 145 Fed. 312; Frank v. Suthon, 159 Fed. 174; McConnell v. Fernley, 34 L. R. A.
609; Hart v. N. P. Co., 96 Fed. 180; Dorsam v. Kohlman, 20 L. R. A. 881.
The owner of unfenced mining property is not liable for cattle straying thereon from the
public domain and drinking cyanide water. He is under no legal liability to fence the cattle
out. Beinhorn v. Griswold, 69 Pac. 557. Where animals come upon unfenced land of another,
though no action for trespass lies, their presence is not a matter of right, and recovery cannot
be had for injuries suffered. Knight v. Abert, 6 Pa. 472; Hughes v. H. & S. J. R. R. Co., 66
Mo. 325; Turner v. Thomas, 71 Mo. 596; Calkins v. Mathews, 5 Kan. 191; McNear v. Boone,
52 Ill. App. 181.
Recovery cannot be had for cattle killed by substances used in the prosecution of lawful
business on the premises. Little Rock Co. v. Dicks, 52 Ark. 402; Kirk v. Railroad, 41 W. Va.
722; Railroad v. Phillips, 12 South. 825; Ferguson v. Miami P. Co., 9 Ohio C. C. 445.
Presumption that defendant will perform his duty will not relieve plaintiff of the obligation
of exercising ordinary care on his own part. Solen v. Railroad, 13 Nev. 106; Hutson v. S. P.
Co., 120 Cal. 701; Wabash R. R. v. Central T. Co., 23 Fed. 738.
Plaintiff cannot recover when the accident is the result of his own negligence, or when the
danger was so obvious and threatening that a reasonably prudent man would have avoided it,
if in his power to do so. The greater the risk, the greater the degree of care required on the
part of plaintiff. Konig v. Railroad, 36 Nev. 181.
One who knows of danger and negligently puts himself in its way, or who has power to avoid
it and does not do so, cannot recover. His negligence is the proximate cause. Crosman v. S. P.
Co., 44 Nev. 286; 8 U. S. Cyc. 884.
John D. Hoyt and Cooke, French & Stoddard, for Respondent:
The cattle of respondent were lawfully on the public domain. Buford v. Houtz, 133 U. S.
320; Stearns v. U. S., 152 Fed. 900. Appellant owed respondent the duty of using reasonable
care to protect the cattle known by him to be lawfully on the public domain. 1 R. C. L. 1134;
3 C. J. 151.
Failure to maintain a suitable fence and to confine the cyanide solution within it was such
a violation of duty as to make appellant liable for all damages occasioned thereby. The
principle that a stockowner assumes the risk of all damage occasioned his stock while at large
has been universally abandoned. Railroad v. Newman, 94 Ark. 458, 127 S. W. 734, 28 L. R.
A. (N.S.) 83. The same departure from the principles of the common law obtains in this state.
Rev. Laws, 2337; Chase v. Chase, 15 Nev. 259; Pyramid L. & S. Co. v. Pierce, 30 Nev. 253.
And even where the common-law rule has remained unchanged, the owner of animals is
allowed to recover where they have been attracted to their destruction. Bush v. Brainard, 1
Cow. (N. Y.) 78. One must use his own property so as not to injure that of another. 1 R. C. L.
1133; Railroad v. Harrison, 80 South. 683.
The negligence of appellant cannot be questioned. Even though no negligence be shown,
the company is liable.
liable. One who brings on his own land anything that is likely to do mischief if it escapes,
must keep it at his peril. If he does not do so, he is liable for all damages which are the natural
consequences of its escape. Fletcher v. Rylands, L. R. 4 H. L. 330; 20 R. C. L. 74-79, 435,
436.
This action was brought to recover damages for the loss of certain cattle running on the
public range, which were killed by drinking cyanide solutions. The case was tried before the
court without a jury, and judgment was rendered in favor of respondent for the value of cattle
destroyed in the amount of $860. A motion for a new trial was made, which was denied by
the court. From the judgment and order of the court denying its motion for a new trial, the
mining company appeals.
The respondent moved to strike the bill of exceptions and record on appeal upon the
ground that it was not properly certified. As we have concluded to affirm the judgment of the
lower court on the merits, we will not pass upon the motion.
The salient facts are substantially as follows:
The appellant is a mining company and is engaged in the business of mining in this state.
On March 29, 1918, and for a number of years prior thereto, this company owned and
operated a mill at the town of Wonder, in Churchill County, Nevada. The cyanide solutions
discharged from the mill flowed down a slope for a mile or so and were there collected in a
pond. The pond was situated for the most part on mining ground owned by the mining
company, but extended over onto the public domain. These cyanide solutions are highly
poisonous, and, as they resemble water, are attractive to cattle and other live stock. These
facts were known to the company, which, in order to protect stock from the danger, kept the
pond fenced with a barbed-wire fence, and posted notices about the pond warning the owners
of live stock of the vicinity of the pond and its dangerous contents.
live stock of the vicinity of the pond and its dangerous contents. It is difficult to impound
these cyanide solutions, and the company generally kept two men engaged in this work. It had
two men there employed on March 29, 1918. On this day the cyanide solutions broke through
the levee of the pond at a point close to the fence and flowed outside of the fence. The pond
was visible from the public range where stock generally ranged the greater part of the year.
The respondent is a corporation engaged in the livestock business, and it and its
predecessors in interest, on March 29, 1918, and for a long time prior thereto, had cattle
running on the public range in the vicinity of the pond. On this date fourteen head of
respondent's cattle came from the open range to where the cyanide solutions had broken
through and flowed beyond the fence line. They drank of the solutions and were killed. The
place where the cattle were killed was on the appellant's land. At this point the fence was in
good condition, but at another point about a quarter of a mile from where the cattle were
killed the fence was in such a poor condition that a person, on the day before, was able to ride
a horse over the wires, which were submerged in the mud, and drove cattle that had gotten
inside the inclosure out over the wires. After the cattle were killed, and on the same day, it
appears that respondent extended the fence back from the pond and beyond the dead cattle.
On the day the cattle were killed, one Caldwell, who was in charge of respondent's cattle,
saw a bunch of cattle headed toward the pond. He intercepted them and, driving them back a
distance of a quarter to a half a mile, turned and rode over to the town of Wonder to get his
mail. When he left them the cattle were headed away from the pond and were something like
one-half mile therefrom. After talking with a person with about fifteen minutes he rode to the
postoffice, and while he was getting his mail out of the box he was informed that the cattle
were coming over the hill.
the cattle were coming over the hill. He immediately jumped on his horse and proceeded to
where the solutions had escaped under the fence, and found the cattle dead.
According to the testimony of two witnesses who saw the cattle coming over the open
range, and saw Caldwell intercept them, as soon as he left them they turned back and
continued their journey toward the pond.
The trial court was of the opinion, expressed in its written decision, that Caldwell was not
guilty of negligence, and held that the negligence of the appellant in permitting the cyanide
solutions to escape from the pond and flow outside of the fence was the proximate cause of
the death of the cattle and consequent injury to respondent.
Appellant's main contention is thus summarized by its counsel: That the evidence shows
without contradiction or conflict that plaintiff's herder, John Caldwell, was in charge of the
cattle on March 29, 1918; that he was fully cognizant of the danger threatening the cattle; that
he had the power to protect the cattle from said danger, and that he failed and neglected to
take such measures; and that his said failure was the sole and proximate cause of the death of
the cattle.
Appellant makes certain other contentions, but the facts of this case do not bring it within
the principles recognized and applied by the authorities cited. This is a case involving the
right of cattle to run at large upon the public range of this state, and does not come within the
doctrine that a recovery for damages is barred where the owner of live stock turns them loose
unattended in the face of known danger; or where a herder of live stock drives them or
negligently allows them to go into known danger, as in the case of Sierra Land & Stock
Company v. Desert Power & Mill Company, decided in the federal court of the district of
Nevada.
1. There is no law in this state requiring the owners of cattle or horses to keep them
within inclosures.
of cattle or horses to keep them within inclosures. They may, and in the great majority of
cases do, lawfully permit their stock to roam at will and graze over the public ranges, and also
over the unfenced land of private owners. In fact, a herder of horses or cattle upon public and
other uninclosed lands is unknown to the customs of stockmen in Nevada, except in special
instances, and would be impracticable and often detrimental to the thrift of such stock. These
public ranges usually comprise large areas of territory and we may judge from the record that
the country about the town of Wonder, over which respondent customarily permitted its cattle
to range at large during the grazing season of the year, was quite extensive. It was a lawful act
for the respondent to turn its cattle loose upon the range unattended by any herder, and if the
stock, following the bent of their propensities, wandered upon the uninclosed lands of
another, the respondent would not be liable for trespass. Chase v. Chase, 15 Nev. 259.
2. Conceding, as the evidence shows, that respondent knew of the proximity of the cyanide
pond to the range and its poisonous quality, it was not contributory negligence for it to turn its
cattle loose upon the range, as it and its predecessors in interest had been accustomed
annually to do long prior to the existence of the pond. It could be held to no more care in this
respect than that exercised by careful and prudent stockmen in this state, and that cannot be
said to extend to the duty of herding cattle on the public ranges or posting guards at
dangerous places maintained by others.
3. Appellant knew that the country was the habitat of stock belonging to respondent and
other cattle owners, and of the deadly nature of the contents of the pond, and its attractions
for cattle by reason of its resemblance to water, and its situation in open view of the
surrounding range. Reasonable care and diligence was therefore imposed upon appellant to
prevent access to it by such live stock. That appellant fully realized its duty in this respect is
shown by the measures taken to perform it; namely, the fencing of the pond, the
employment of men to impound the solution and to drive cattle away, and the posting of
notices of warning in the vicinity.
duty in this respect is shown by the measures taken to perform it; namely, the fencing of the
pond, the employment of men to impound the solution and to drive cattle away, and the
posting of notices of warning in the vicinity.
4. The evidence discloses that the cattle were killed on mining ground belonging to the
appellant, at a point where the fence was close to the pond, and its counsel contends, for this
reason, that the mining company is not liable. Ordinarily one is not bound to keep his
uninclosed premises in safe condition to avoid liability for injury to trespassing stock. By
reason of the general policy of the law of this state permitting cattle and horses to run at large
on uninclosed land, he cannot maintain an action for such a trespass, except when the animals
are herded or grazed upon his land contrary to the statute in such cases, but he is under no
obligation to make it a safe pasture for stock. The owner of the land is not to be denied the
ordinary use of his property, and the owner of stock trespassing upon it must accept the
consequences of any injury that befalls them, for by permitting his stock to run at large, he is
deemed to have assumed the risk of such injury. Knight v. Abert, 6 Pa. 472; Chemical
Company v. Henry, 114 Tenn. 152. But this rule has a reasonable and well-recognized
exception, and the facts of this case bring it clearly within the principle of this exception. The
owner of land
is not permitted negligently to leave on his premises poisonous substances which will attract
passing animals, nor can he place thereon dangerous instrumentalities, as traps baited with
strong-scented meats, set so near the highway on the grounds of another that the animals of
others will be lured on to his land from the place where they rightfully are to their injury or
destruction. This results from the principle that where there is invitation, enticement,
allurement, or attraction, a person is bound, at his peril, to use reasonable care and diligence
in keeping his property in a safe condition."
in keeping his property in a safe condition. 1 R. C. L. 1133, 1134.
The pond and its feeder from the mill were situated for the most part on appellant's mining
claims, but in some parts extended onto the public domain. The contents were highly
poisonous, and resembled water. The pond covered a considerable area and from the
descriptions of it given by witnesses and furnished by the photographs in evidence, it must, at
a distance, have had the appearance of a small lake of water. It was in open view of the cattle
or other stock running upon the surrounding range. Watering places for cattle on the range
were widely separated. Withal, the pond was highly attractive to thirsty cattle on the range
and did allure them to its vicinity in search of water. The case of Beinhorn v. Griswold, 27
Mont. 79, 69 Pac. 557, 59 L. R. A. 771, 94 Am. St. Rep. 818, is relied upon by appellant as
establishing the doctrine that a mine owner is not liable for cattle straying from the public
domain onto unfenced mining property and drinking cyanide water. But there is a clear
distinction between a case where animals stray upon premises, and where they are lured there
by the appearances or conditions that appeal to their instincts and which are capable of
destruction or injury. The former is governed by the same principle that obtains where a
trespasser or bare licensee goes upon the premises of another who is bound thereby not to
wilfully or wantonly injure him or fail to exercise due to care to avoid it after his presence is
discovered in a place of danger; while the latter rests upon the same principle that is
recognized where one is brought upon the property of another by invitation, express or
implied, and which imposes upon the owner the duty of keeping his premises in a reasonably
safe condition. In the case of Beinhorn v. Griswold, supra, the cattle wandered upon the mine
and mill site of the defendant and drank the poisonous liquid contained in vats or tubs which
were not sufficiently covered. The defendant knew that the cattle were in the habit of
wandering upon his uninclosed property, and he had driven them away whenever he saw
them there.
defendant knew that the cattle were in the habit of wandering upon his uninclosed property,
and he had driven them away whenever he saw them there. There was nothing to indicate that
the vats were visible from the public domain, or were instrumental in attracting the cattle
there, either originally or at the time they drank of the cyanide water. The court stated that
there was no proof in the record justifying the application of the doctrine of enticement,
allurement, or attraction, and decided upon the principle that the death of the cattle was not
wantonly or intentionally caused. The trial court, in its written decision, correctly
distinguished it and similar cases from the instant case. The other authorities cited by
appellant as in line with Beinhorn v. Griswold, supra, do not involve the doctrine of
allurement, but merely go to the extent that the owner of uninclosed land cannot be held to
the exercise of reasonable care and diligence in keeping his premises in a safe condition for
the live stock of others coming upon it.
5. We think that the findings of the trial court to the effect that appellant did not exercise
reasonable care in maintaining a proper fence about the cyanide solution and in preventing it
from escaping from the levee and onto the lands where respondent's cattle had access to it are
sustained by the uncontradicted evidence. In a few places the fence was in a poor condition.
As previously stated, at one point about a quarter of a mile from where the cattle were killed,
on the day before, the wires of the fence were submerged in mud, and one of the witnesses
rode over them and drove cattle out of the inclosure. True, appellant's negligence here was
not the cause of the death of the cattle, but it is a circumstance bearing upon the degree of
care exercised by appellant to keep the cyanide solution in safe limits. At a place where the
cyanide solution escaped from the levee and flowed beyond the fence where it was reached by
respondent's cattle, the fence was in fair condition. It was, however, close to the levee at this
point, and the slope of the ground was such that when the solutions penetrated the levee
they easily flowed beyond the fence.
ground was such that when the solutions penetrated the levee they easily flowed beyond the
fence. It would have been easy and prudent, as the events show, for appellant to have
maintained the fence further away from the levee, for, on the same day the cattle was killed, it
was quickly moved back beyond the dead cattle. The lack of reasonable care on the part of
appellant in not maintaining a better levee at this point, and in not keeping the fence far
enough away from the levee so as to enable its employees to detect and intercept the solutions
escaping from it before the flow reached beyond the fence, was the proximate cause of the
death of the cattle.
6. Appellant seeks to hold respondent responsible for the death of the cattle by reason of
the acts of Caldwell, which, it is claimed, amount to an omission of duty sufficient to charge
respondent with contributory negligence. The facts upon which it is sought to predicate
Caldwell's negligence are undisputed. There is a statement in Caldwell's affidavit, introduced
in evidence by stipulation, in which he expressed the belief that the cattle killed were not the
same cattle he turned back from the pond, but it is entitled to no weight as against the positive
testimony of two witnesses that the cattle killed were the same cattle headed off from the
pond by Caldwell. The trial court in its opinion assumed that they were the same cattle, and
was justified by the evidence in this conclusion. Caldwell was in no sense a herder of
respondent's live stock, as assumed by appellant, nor in the sense of a vaquero moving a
bunch of cattle from one place to another, or detaining them within certain limits. He had
general charge of respondent's cattle running on its range, which covered a large area of
territory, and his time and attention could not therefore be devoted entirely to driving cattle
away from the pond and the immediate vicinity. Had he seen the cattle making for the pond
and taken no measures to prevent them from reaching it, his conduct would have been
culpable, for, knowing the deadly nature of its contents, and having the opportunity and
power to protect the cattle from danger, it would have been his duty to exercise
reasonable care and diligence to insure their safety.
been culpable, for, knowing the deadly nature of its contents, and having the opportunity and
power to protect the cattle from danger, it would have been his duty to exercise reasonable
care and diligence to insure their safety. As it was, he seems to have made an honest effort to
discharge his duty as the exigencies of the occasion imposed it upon him. He quickly
intercepted the cattle and drove them back to a point at least one-half mile from the pond and
left them headed in an opposite direction, and then went to get his mail at Wonder. The event
shows that he did not drive them far enough away to prevent their return to the pond. He
judged wrongly, but the fact does not necessarily constitute negligence. The conduct of
Caldwell must be tested by what a man of ordinary prudence would have done under the
same circumstances.
Consideration of cases decided on different facts furnishes little aid. We are referred to the
case of Sierra Land & Live Stock Company v. Desert Power & Mill Company, supra. In that
case the sheep were killed by drinking cyanide water, but it appears that they were in charge
of a herder who drove them to it after being warned repeatedly of the danger. The case of
Crosman v. Southern Pacific Co., 42 Nev. 92, 173 Pac. 223, decided by this court, is cited as
parallel in principle, but there the defendant charged with the exercise of reasonable care
displayed none whatever, but recklessly placed himself in a position of known danger. The
facts are widely variant from the instant case. Caldwell displayed diligence in discovering the
cattle going toward the pond for water and in driving them back to what he judged was a
reasonable distance from the pond.
7. We think it is quite evident that, upon the facts, reasonable men might honestly differ
as to whether Caldwell acted as a person of ordinary prudence would have acted in the same
situation. Consequently the question whether he was negligent or not was one of fact for
the trial court.
question whether he was negligent or not was one of fact for the trial court. Solen v. V. & T.
R. R. Co., 13 Nev. 106; Weck v. Reno Traction Company, 38 Nev. 285; Norfolk v. Anthony,
86 S. E. 68. As the trial court held that Caldwell was not guilty of contributory negligence,
and the question was one of fact, we would not be justified in reversing the decision.
The judgment of the lower court is affirmed.
Coleman, J., concurring:
8. I concur in the order of affirmance as embodied in the opinion of Mr. Justice Ducker,
and in all that is said by him, except as to the fence surrounding the cyanide pond. To my
mind the condition of the fence at the time the cattle were killed, and the moving of it after
the cattle had been killed, could in no way affect this case.
The sole question is: Was Caldwell guilty of negligence in failing to drive the cattle farther
off? If the facts are undisputed, and admit of but one inference, the question is one of law; if
disputed, or if capable of different inferences, it is a question of fact.
Conceding that the facts are not disputed, might reasonable persons draw opposite
inferences as to the existence or none existence of negligence on the part of Caldwell? I am of
the opinion that they might. I think the case falls squarely in the class alluded to in the
quotation by this court in Solen v. V. & T. R. R. Co., 13 Nev. 129, from Railroad v. Stout, 17
Wall. 663, as follows:
Upon the facts proven in such cases, it is a matter of judgment and discretion, of sound
inference, what is to be the deduction to be drawn from the undisputed facts. Certain facts we
may suppose to be clearly established from which one sensible impartial man would infer that
proper care had not been used, and that negligence existed; another man, equally sensible and
equally impartial, would infer that proper care had been used and that there was no
negligence.
and that there was no negligence. It is this class of cases and those akin to it that the law
commits to the decision of a jury. Twelve men of the average of the community, comprising
men of education and men of little education, men of learning and men whose learning
consists only in what they have themselves seen and heard, the merchant, the mechanic, the
farmer, the laborer; these sit together, consult, apply their separate experience of the affairs of
life to the facts proven, and draw a unanimous conclusion. This average judgment thus given
it is the great effort of the law to obtain. It is assumed that twelve men know more of the
common affairs of life than does one man; that they can draw wiser and safer conclusions
from admitted facts thus occurring than can a single judge.
Applying the rule thus stated to the facts of the case, I think the question of Caldwell's
negligence was one of fact for the trial court to determine, and that its finding is conclusive
upon us.
Sanders, C. J., dissenting:
I dissent.
I concede that where a cause is tried by the court without a jury, the same weight and
consideration is given to its findings as to a verdict; and the same rules apply as to reversing
them on appeal, on the ground of being contrary to evidence, as to a verdict of a jury. State v.
Yellow Jacket S. M. Co., 5 Nev. 415. It follows that in this class of cases, as well as in all
others, if there be substantial evidence to support the findings they cannot here be disturbed.
But those findings must themselves be based upon legal and admissible evidence. Rulofson v.
Billings, 140 Cal. 452, 74 Pac. 35.
I am of the opinion that the admission of evidence tending to show the bad repair and
condition of the fence surrounding defendant's solutions pond, and the extension of the fence
line after the injury so as to inclose the point where the cattle drank the cyanide water, was
error, and if the case on appeal depended upon the exceptions to the court's decision and
findings as being influenced by such illegal and inadmissible evidence, I should be
impelled to reverse the judgment.
water, was error, and if the case on appeal depended upon the exceptions to the court's
decision and findings as being influenced by such illegal and inadmissible evidence, I should
be impelled to reverse the judgment. 38 Cyc. pp. 1942, 1943. But it does not.
Counsel for appellant frankly admits that if the respondent's cattle had been at large, as the
phrase at large is employed in connection with cattle grazing, unattended, upon the public
domain, the Nevada Wonder Mining Company would be liable, and he states expressly, in his
brief, that this case is brought here for review for the purpose of obtaining an expression from
this court as to whether or not, under the undisputed facts, the plaintiff's conduct with regard
to the cattle, as a matter of law, directly contributed to the death of the cattle so as to bar
recovery for their value.
There are a vast variety of things which must be regarded as matters of common
knowledge; things which every adult person of ordinary experience or intelligence must be
presumed to know; things which do not require to be pleaded or to be made the subjects of
specific proof; and it is not within the province of a court or jury to find contrary to this
knowledge. Gilbert v. The Flint & P. M. Ry. Co., 51 Mich. 488. The question before us
comes within this principle.
The lower court found it to be the fact:
That there is no available water in that vicinity suitable for cattle to drink; that it was
natural for said cattle, impelled by thirst and uncontrolled and unrestrained and unattended, to
come to the said water containing said solutions upon defendant's premises and to drink the
same.
It is said that what the community as a whole knows regarding animals the court knows.
Chamberlayne on Modern Law of Evidence, sec. 767. And the latent trait of animals can be
ascertained only by symptoms and outward manifestation. Sydleman v. Beckwith, 43 Conn.
9.
The court took judicial notice of the disposition of animals impelled by thirst to come to
water. This common knowledge was used to fasten negligence upon the defendant. It follows,
therefore, that the court should have taken judicial notice of the same fact in determining the
reasonable precautions to be taken by Caldwell to prevent the cattle, impelled by thirst, from
returning to the poisonous solutions and drinking the same. We are not required to surmise or
conjecture what thirst-impelled cattle will do for water if left to follow their natural
propensities, regardless of their distance from it. No intelligent reason can be assigned for
Caldwell's leaving the cattle in their then condition and situation to follow their natural bent.
His act under the peculiar circumstances was contrary to common knowledge and common
prudence, and it was not within the province of the lower court to find contrary to such
knowledge.
The rule is firmly established that when the facts are undisputed or clearly settled, and the
course which common prudence dictated can be so clearly discerned that only one inference
can be drawn, the question of negligence is one of law. 1 Shearman & Redfield on the Law of
Negligence (6th ed.), sec. 56.
My associates, reasoning from the given state of facts, are of the opinion that Caldwell's
care and diligence with regard to the cattle is to be measured by what an ordinarily prudent
man would have done under the same circumstances, and whether he was negligent or not is a
question concerning which reasonable men might honestly differ in opinion. I am not in
accord with this position. Where one occupies a position, such as that of a cow boss,
employed to protect the interests of the live stock of his employer that roam unattended over
the public domain in the vicinity of known danger, such as that of a cyanide reduction plant,
care and diligence vary according to the exigencies which require the vigilance and attention,
conforming in amount and degree to the particular circumstances under which they are to
be exerted. Mechem on Agency {2d ed.), sec.
particular circumstances under which they are to be exerted. Mechem on Agency (2d ed.),
sec. 1279.
The cattle in question, though range cattle, came under the immediate observation and
control of Caldwell, and, being in his hands, he was bound to use the same care in regard to
them that men of ordinary prudence would exercise over their own property under the same
circumstances. Maynard v. Buck, 100 Mass. 40. The degree of care required of one intrusted
with the property of another is not less than that which is to be expected of one who deals
with his own property. He is bound to exercise that degree of care and diligence which the
nature of the undertaking and the time, place, and circumstances of the performance
ordinarily and reasonably demand. Mechem on Agency (2d ed.), sec. 1275. The peril of
leaving the cattle unattended, within reach of the cyanide water, must have been obvious to
any man of ordinary intelligence, and much more so to an experienced cow boss.
In this instance the persons charged with the duty pertaining to his general undertaking to
protect the interests of the particular and of all plaintiff's live stock from known dangers,
however caused or created, voluntarily left the cattle intrusted to his care to follow their
natural propensities, which led them to certain and sudden death. If there could be any
reasonable doubt or uncertainty about what common prudence dictated under such
circumstances, or as to what men or ordinary prudence would have done under the same
circumstances with their own property, I might find some excuse for holding Caldwell's
conduct to be proper and justifiable; but, as I view the facts, the course which common
prudence dictated is so clear that but one inference can be drawn, and that is that the death of
the cattle resulted from Caldwell's neglect or failure to exercise and observe the precautions
ordinarily pursued in relation to his particular business of protecting the interests of the cattle
in question from the known and impending danger.
I conclude that the cause should be remanded, with directions to the lower court to render
and cause to be entered judgment for the defendant.
Per Curiam:
Rehearing denied.
____________
45 Nev. 43, 43 (1921) Hostettler v. Harris
[No. 2472]
LEVI F. HOSTETLER, Respondent v. J. C. HARRIS, Sheriff of Elko County, Nevada,
Appellant.
[197 Pac. 697]
1. CourtsRuling of Federal Court Construing Federal Constitution Controlling.
Rulings of the United States Supreme Court construing the provisions of the federal constitution are
controlling upon the state courts.
2. Constitutional LawPublic LandsStatute Providing for Payment of License Fee for
Grazing Cattle Held an Unlawful Discrimination Against Citizens of Other States.
Stats. 1919, c. 214, sec. 1, requiring persons grazing cattle in the state who do not have their principal
home ranch and livestock headquarters in the state to pay a license, violates Const. U. S. art 4, sec. 2,
providing that the citizens of each state shall be entitled to all privileges and immunities of citizens in the
several states.
3. Public LandsStock May be Driven into the State to Graze.
A resident of a foreign state has a perfect right to drive his sheep into the state and graze them upon the
public lands, a right guaranteed to him by the supreme law of the land.
4. LicensesLicense Money for Pasturage Unlawfully Demanded Held Not Paid Voluntarily.
In an action to recover license money paid for grazing stock on public lands in the state under Stats.
1919, c. 214, sec. 1, under threat of arrest and prosecution, held, that the payment was not voluntary;
plaintiff having paid the same under protest, and being a resident of a foreign state.
Appeal from Fourth Judicial District Court, Elko County; E. J. L. Taber, Judge.
Action by Levi F. Hostetler against J. C. Harris, Sheriff of Elko County. From a judgement
for plaintiff and an order denying his motion for a new trial, defendant appeals.
and an order denying his motion for a new trial, defendant appeals. Affirmed.
H. U. Castle, District Attorney, for Appellant:
The decision of the lower court should be reversed. The amendatory act of the legislature
in question is constitutional. The payments made by respondent were voluntary and cannot be
recovered back.
The power of the legislature to impose taxes on persons, property, business, and
franchises is unlimited, save only by such restrictions as are found in the organic law, state or
federal, or such as are inherent in the nature of the subject itself. This power rests in the
sound discretion of the legislature. 17 R. C. L. 501.
Occupations are classified on an almost unlimited variety of grounds. A state may make
discriminations, if founded on distinctions that cannot be pronounced unreasonable and
purely arbitrary; and pursuant to this general authority, it may adjust its revenue laws and
taxing system in such a way as to favor certain industries or forms of industry. Idem, 516.
The act is not discriminatory. All persons subject to its terms are treated alike under like
circumstances and conditions; and even so, there is authority that recognizes the right of the
state under certain circumstances to classify residents and nonresidents. 6 R. C. L. 416; 12 R.
C. L. 693; De Grazier v. Stephens, 16 L. R. A. (N.S.) 1033.
It does not appear that the act is more favorable to citizens of this state than to those of
our sister states. * * * Such an act does not violate either the letter or the spirit of the federal
constitution. Ex Parte Goddard, 190 Pac. 916; Reid v. Colorado, 47 L. Ed. 108.
The money was paid voluntarily; it cannot be recovered. Money voluntarily paid under a
claim of right to the payment, and with knowledge of the facts by the person making the
payment, cannot be recovered back on the ground that the claim was illegal, or that there was
no liability to pay in the first instance, though the payer makes the payment expressly
reserving his right to litigate his claim, or under the impression that the demand was
legal."
was no liability to pay in the first instance, though the payer makes the payment expressly
reserving his right to litigate his claim, or under the impression that the demand was legal.
21 R. C. L. 141.
The payment would be voluntary if the demand could be enforced only by an action at law.
Respondent would have had his day in court if he had been charged with a misdemeanor
under the statute for failing to pay the license, and the invalidity of the law which authorized
the collection of the license would have been a perfect defense. Maxwell v. County, 12 Pac.
484; Benson v. Monroe, 7 Cush. 125; Muscatine v. Keokuk, 45 Iowa, 185; Oceanic S. N. Co.
v. Tappah, 16 Blatchf. 296; Trower v. S. F., 92 Pac. 1025; Green v. Taylor, 212 S. W. 925;
Bean v. Middleboro, 22 Ky. L. R. 415. In the case under consideration, the plaintiff paid the
money with a full knowledge of all the facts and circumstances, and well knowing that there
was no legal obligation to pay it. It must, therefore, be regarded as a voluntary payment, and
not a payment under duress. Claflin v. McDonough, 33 Mo. 412.
Turner K. Hackman, for Respondent:
The statute here complained of creates an arbitrary classification, and is, therefore, void, as
in conflict with the fourteenth amendment to the constitution of the United States. It
discriminates between persons engaged in the same industry. It is the duty of the courts to be
watchful for the constitutional rights of a citizen and against any stealthy encroachments
thereon. Boyd v. United States, 16 U. S. 616.
While it is true that the power of classification cannot be withheld from the states, it is
equally true that such classification cannot be made arbitrarily. Hayes v. Missouri, 120 U. S.
68; Railroad v. Mackey, 127 U. S. 205; Walston v. Nevin, 128 U. S. 578. While a large
discretion as to the power of the state to classify for the purposes of taxation must be
conceded, the fact that there is a limit to such discretion must be recognized.
there is a limit to such discretion must be recognized. Bell's Gap R. Co. v. Pennsylvania, 134
U. S. 232.
Arbitrary selection can never be justified by calling it classification. The equal protection
demanded by the fourteenth amendment forbids this. Yick Wo v. Hopkins, 118 U. S. 356.
Nor can it be permitted that litigants shall be debarred from the free exercise of constitutional
rights by the imposition of arbitrary, unjust and odious discrimination, perpetrated under
color of establishing peculiar rules for a particular occupation. Gulf, C. & S. F. Ry. Co. v.
Ellis, 41 L. Ed. 666.
Though the law itself be fair on its face and impartial in appearance, if it is applied and
administered by public authorities so as practically to make unjust and illegal discrimination
between persons in similar circumstances, material to their rights, denial of equal justice is
still within the prohibition of the constitution. Henderson v. Mayor, 92 U. S. 259; Chy Lung
v. Freeman, 92 U. S. 275; Buneal v. Delaware, 103 U. S. 370. The discrimination is
therefore illegal, and the public administration which enforces it is a denial of the equal
protection of the law and a violation of the fourteenth amendment to the constitution. Yick
Wo v. Hopkins, 118 U. S. 356.
Whatever policy may be the result of this current agitation can have no effect upon the
present case, as the law of Utah and its customs in this regard remain such as we have
described it to be in the general region of the northwest, and the privileges accorded by the
United States for grazing upon her public lands are subject alone to their control. Buford v.
Houtz, 33 L. Ed. 620; Hill v. District of Columbia, 7 Mackey, 481; Harvey v. Olney, 42 Ill.
336; Home T. & T. Co. v. City, 181 Pac. 100; Magnolia v. Sharman, 46 Ark. 358.
The payment was involuntary, and a recovery can be had. W. F. & Co. v. Dayton, 11 Nev.
161; Harmon v. City of Chicago, 147 U. S. 396. Taxes illegally assessed and paid may
always be recovered back, if the collector understands from the payer that the taxes are
regarded as illegal and that suit will be instituted to refund the paying of them."
and paid may always be recovered back, if the collector understands from the payer that the
taxes are regarded as illegal and that suit will be instituted to refund the paying of them.
Erskine v. Van Arsdale, 15 Wall. 75; Shoup v. Willis, 2 Idaho, 120; Winzer v. Burlington, 68
Iowa, 283; Lyon v. Receiver, 52 Mich. 276; Vicksburg v. Butler, 56 Miss. 74; Turner v.
Alpheus, 6 Nev. 67; Dunnell Mgf. Co. v. Newell, 15 R. I. 258, 2 Atl. 770.
Respondent, a citizen and resident of the State of Idaho, brought this action to recover
$952 from the defendant, as sheriff of Elko County, Nevada. The sheriff has appealed from a
judgment for said amount and from an order denying a motion for a new trial.
Respondent drove into Elko County, Nevada, from Idaho, without having first obtained a
license therefor, 1,900 head of sheep, of which he was the owner, for the purpose of grazing
them upon uninclosed public lands. Appellant threatened to arrest and prosecute him upon a
charge of misdemeanor, unless he made payment to him of a grazing license. Thereupon
respondent paid to appellant, under protest, the sum of $952 for such grazing license. Section
1, c. 214, Statutes of 1919, under and pursuant to which the sheriff acted, so far as material,
reads as follows:
It shall be unlawful for any person * * * who * * * does not have his * * * principal home
ranch and livestock headquarters in the State of Nevada, except as herein provided, to herd or
graze, or cause to be herded or grazed, upon any unenclosed lands in the State of Nevada, any
sheep or bovine cattle without having first obtained from the sheriff of a county in which such
herding or grazing, or some portion thereof is done, a valid license authorizing such herding
and grazing in the State of Nevada. Such license shall be issued by said sheriff to and in the
name of such person or corporation upon compliance by him or it with the provisions of
section 2 of this act and shall be valid only for the calendar year in which it is dated;
provided, that any person or any corporation which does not have its principal home
ranch and livestock headquarters in the State of Nevada, owing in fee simple land in the
State of Nevada, shall be exempt from any license or the payment of any license for five
{5) head of sheep for each acre so owned and three {3) head of bovine cattle for each
acre so owned."
provisions of section 2 of this act and shall be valid only for the calendar year in which it is
dated; provided, that any person or any corporation which does not have its principal home
ranch and livestock headquarters in the State of Nevada, owing in fee simple land in the State
of Nevada, shall be exempt from any license or the payment of any license for five (5) head of
sheep for each acre so owned and three (3) head of bovine cattle for each acre so owned.
Violation of the act is made a misdemeanor, punishable by a fine of not less than $1,000 or
more than $10,000.
The trial court found as a fact:
That plaintiff paid to said sheriff the sum of $952 as and for said license fee under protest
and by reason of the threat of said sheriff to arrest and prosecute said plaintiff as aforesaid.
Two questions are presented in this case: First, is the statute violative of section 2, article,
4 of the federal constitution? And, second, if the statute is void, was the payment so
involuntary as to justify its recovery?
The section of the constitution mentioned reads:
The citizens of each state shall be entitled to all privileges and immunities of citizens in
the several states.
The question is: Does the act in question discriminate against citizens of other states?
The State of Tennessee enacted a statute which provided, inter alia:
Each foreign construction company, with its chief office outside of this state, operating or
doing business in this state, directly or by agent, or by any subletting contract, * * * shall pay
a privilege license of $100.
The act also provided:
Each domestic construction company and each foreign construction company, having its
chief office in this state, doing business in this state, * * * shall pay a privilege license tax of
$250. Laws 1909, c. 479, sec. 4.
The question of the constitutionality of the act came before the supreme court of that state,
where the point was made, as here, that the act was unconstitutional because it was
discriminatory against citizens of other states. That court held that the act did not discriminate
against citizens of sister states; that the determinative feature in the statute is the having of
one's chief office in the state. Wright v. Jackson, 138 Tenn. 145, 196 S. W. 488.
The case was taken to the Supreme Court of the United States, and that court took the
opposite view and reversed the judgment of the Tennessee court. It said:
The power of a state to make reasonable and natural classifications for purposes of
taxation is clear and not questioned; but neither under form of classification nor otherwise
can any state enforce taxing laws which in their practical operation materially abridge or
impair the equality of commercial privileges secured by the federal constitution to citizens of
the several states.
Excise taxes, it is everywhere conceded, may be imposed by the states, if not in any
sense discriminating; but it should not be forgotten that the people of the several states live
under one common constitution, which was ordained to establish justice, and which, with the
laws of Congress, and the treaties made by the proper authority, is the supreme law of the
land; and that that supreme law requires equality of burden, and forbids discrimination in
state taxation when the power is applied to the citizens of the other states. Inequality of
burden, as well as the want of uniformity in commercial regulations was one of the
grievances of the citizens under the confederation: and the new constitution was adopted,
among other things, to remedy those defects in the prior system.' Ward v. Maryland, 12 Wall.
418, 431; Guy v. Baltimore, 100 U. S. 434, 439: Blake v. McClung, 172 U. S. 239, 254;
Darnell & Son Co. v. Memphis, 208 U. S. 113, 121.
As the chief office of an individual is commonly in the state of which he is a citizen,
Tennessee citizens engaged in constructing railroads in that state will ordinarily have their
chief offices therein, while citizens, of other states so engaged will not.
engaged in constructing railroads in that state will ordinarily have their chief offices therein,
while citizens, of other states so engaged will not. Practically, therefore, the statute under
consideration would produce discrimination against citizens of other states by imposing
higher charges against them than citizens of Tennessee are required to pay. We can find no
adequate basis for taxing individuals according to the location of their chief officesthe
classification, we think, is arbitrary and unreasonable. Under the federal constitution a citizen
of one state is guaranteed the right to enjoy in all other states equality of commercial
privileges with their citizens; but he cannot have his chief office in everyone of them.
Chalker v. Birmingham & N. W. Ry. Co., 249 U. S. 522, 39 Sup. Ct. 366, 63 L. Ed. 748.
The only argument which can be put forth in support of the constitutionality of the statute
here complained of is that the license is not aimed at those who are not citizens of this state,
but against those who do not have their principal home ranch and livestock headquarters in
the State of Nevada.
1, 2. Whether or not we are disposed to agree with the reasoning of the Supreme Court of
the United States as presented in the above quotation is of no consequence, since the ruling is
controlling upon us, and it seems that its viewpoint as presented in the quotation is equally as
forceful in its application to this case as it was to the case in which it stated the rule. We can
see no reason why a more favorable view should be taken in favor of the validity of an act in
a case affecting an individual who is engaged in the livestock and sheep business than would
be taken in a case affecting a construction company. To paraphrase the interpretative
language quoted from the Chalker opinion: As the principal home ranch and livestock
headquarters of an individual is commonly in the state of which he is a citizen, Nevada
citizens engaged in the livestock business in Nevada will ordinarily have their chief home
ranch and livestock headquarters therein, while citizens of other states so engaged will not.
states so engaged will not. Practically, therefore, the statute under consideration would
produce discrimination against citizens of other states by imposing a license tax upon them
while imposing none upon citizens of Nevada.
Guided by the ruling in the Chalker case, there is no escaping the conclusion that the act in
question is discriminatory against citizens of sister states, and hence is null and void. See,
also, State v. Butterfield, 17 Idaho, 441, 106 Pac. 455, 26 L. R. A. (N. S.) 1224, 134 Am. St.
Rep. 263.
Was the payment by the plaintiff, which is sought to be recovered, voluntary? Whether or
not a payment is voluntary is dependent upon the facts and circumstances of the particular
case. A payment made under a particular state of facts by one in poor health, nervous, and
excitable, might be involuntary, while the same situation would not have the slightest
tendency to overawe a person in excellent physical and mental condition. Likewise, a resident
of another state, distant from friends and business associates, and unfamiliar with local
situations and influences, in what he may assume to be a hostile community, with large
property rights demanding his attention, is more susceptible to threats of criminal prosecution
than one who is a resident of a community surrounded by acquaintances and friends, and well
knowing that he will not be the victim of an unfriendly sentiment. Likewise, an individual is
less likely to be put under duress by a demand for the payment of an unjust claim when
insisted upon by a mere citizenone who is upon an equal footing with himthan when
demanded by a public official, accompanied by threat of prosecution for the violation of that
which has the sanction of legislative and executive approval of a sovereign state, and back of
it all the power, resources, and majesty of such state.
3, 4. Such was the situation in which the plaintiff found himself. As a resident of the
sovereign State of Idaho, he had a perfect right to drive his sheep into Nevada and graze
them upon the public landsa right guaranteed to him by the supreme law of the land.
Nevada and graze them upon the public landsa right guaranteed to him by the supreme law
of the land. But when he brought his sheep into this state, the sum of $952 was demanded of
him under color of law, and he was threatened with being taken from his sheep and
prosecuted, with the possibility of having to pay a fine of $10,000 should he refuse the
demand. Was not such a situation enough, not only to arouse the anxiety but to disturb the
equanimity of respondent? We think it was. Under no circumstances can a case in which
payment is unlawfully exacted by a public official be put on a par with one unjustly exacted
by a mere citizen. Some authorities have laid it down as a rule that money unlawfully exacted
by a public official may be recovered, even though not paid under protest, and such holding is
not without strong reasoning to support it. In Stephan v. Daniels, 27 Ohio St. 527, the court
says:
In Steele v. Williams, 8 Exch. 624, it was held that money paid under an illegal demand,
colore officii can never be voluntary. It was a case of a public officer demanding greater fees
than allowed by act of parliament, which were paid without protest. Martin, B., said: As to
whether the payment was voluntary, that, in truth, has nothing to do with the case. * * * To
call it a voluntary payment is an abuse of language.'
Another case in which a recovery was allowed, although the payment was not made under
protest, is that of City of Chicago v. Waukesha Brew. Co., 97 Ill. App. 583. The court says:
Upon the trial of this cause it was admitted that the ordinance under which appellee paid
$1,500 as license fees to the city was invalid. The evidence showed that such sum was paid,
under a demand by police and collection officers sent out by the city to appellee's place of
business, and threats by such officers made to appellee that unless the fees demanded were
paid, appellee would be prosecuted, its drivers arrested and it get into trouble. And that the
officers of appellee paid the various sums demanded under the influence of such threats
and to prevent its employees from being arrested.
demanded under the influence of such threats and to prevent its employees from being
arrested. Payment under such circumstances was payment under duress.
It must be borne in mind that there is manifest distinction between demand and threats
made by a private individual not possessed of any means of enforcing such threats, and
payment to governmental authority clothed with power to enforce this demand by immediate
arrest, interruption and stoppage of the business of one to whom such threats are made.
In the present case, the parties did not meet upon equal terms. The alternative presented
to appellee was, to submit to the city's exaction or discontinue its business. It was in the
power of its officers and obliged to do as they required or cease to carry on business within
the city limits. Money paid under such circumstances, in point of law, is not paid voluntarily,
any more than that which one hands to a highwayman, under threat of personal violence.
Swift Co. v. U. S., 111 U. S. 22; United States v. Ellsworth, 101 U. S. 170.
Taxes illegally assessed and paid may always be recovered back, if the collector
understands from the payer that the taxes are regarded as illegal and that suit will be instituted
to compel the refunding of them. Erskine v. Van Arsdale, 15 Wall. 75, 21 L. Ed. 63.
To the same effect, Neumann v. City of La Crosse, 94 Wis. 103, 68 N. W. 654.
But since the payment was made under protest in the instant case, we need not consider the
correctness of the rule stated. In First Nat. Bank v. Watkins, 21 Mich. 483, it is said:
The payment in this case cannot be regarded as voluntary in any proper sense. It was
made under the threat of the immediate and effectual enforcement of the illegal warrant. The
authorities are quite uniform that where such a demand is made under color of office and the
payment is made under protest, the money may be recovered back, under all circumstances,
from the person extorting it.
person extorting it. The only question that appears to have been mooted is whether any
protest is necessary, where the entire exaction is illegal on its face. The doctrine is beyond
controversy that when the entire claim is unlawful, and the money is taken under the color of
public office, an action lies for its recovery. Steele v. Williams, 20 Eng. L. & Eq. 319; 2
Greenl. Ev., sec. 121 and notes; Morgan v. Palmer, 2 B. & C. 729; Story on Agency, sec. 307;
Barnes v. Foley, 5 Burr. 2711; Frye v. Lockwood, 4 Cow. 454; Elliott v. Swartwout, 10 Pet.
137; Bend v. Hoyt, 13 Pet. 263.
In Wolfe v. Marshall, 52 Mo. 167, the court adhered to the rule stated in Claflin v.
McDonough, 33 Mo. 412, 84 Am. Dec. 54, to the effect that to constitute duress there must
be a seizure of the property or arrest of the person, or a threat or attempt to do one or the
other.
In Rath v. Chicago, 207 Ill. App. 117, which was an action to recover money paid under
protest to prevent prosecution under a void ordinance, the court observed:
We think Harvey v. Town of Olney, 42 Ill. 336, is controlling of our decision, and while
it is true, so far as we have been able to ascertain, that this case has not been cited by the
supreme court, yet it has never been modified, distinguished against or reversed by that
tribunal in any subsequent case, and it has concededly been cited and followed in several
cases in this court. The supreme court in the Harvey case, supra, said that the town of Olney
could not after extorting a large sum of money for a pretended license by threats of
prosecution, be allowed to come into court and resist repayment by saying: Although we did
this thing, we had no right to do it, and the ordinance that we pretended was a law was really
no law, and these persons should have known better than to have paid us the money. It is
only necessary to say, that the town cannot be permitted to defend its wrong by this species of
self-stultification. A person to whom a town offers the alternative of paying for a license, or
undergoing a prosecution before the police magistrate, which would result in fine and
imprisonment, if the ordinance under which the city acts should be held valid, may
certainly pay his money under protest, without losing his rights, and cannot be required
to incur the hazard of the magistrate's decision upon the validity of the ordinance, and
possibly be driven to a writ of habeas corpus, to relieve himself from imprisonment.
magistrate, which would result in fine and imprisonment, if the ordinance under which the
city acts should be held valid, may certainly pay his money under protest, without losing his
rights, and cannot be required to incur the hazard of the magistrate's decision upon the
validity of the ordinance, and possibly be driven to a writ of habeas corpus, to relieve himself
from imprisonment. Such payment would not be voluntary.'
In Neumann v. City of La Crosse, supra, it was held that the payment of a license fee
imposed by a void ordinance, to avoid threatened arrest, was not voluntary, and might be
recovered.
In Deshong v. City of New York, 176 N. Y. 475, 68 N. E. 880, which was an action to
recover money paid to avoid threatened arrest, it was said:
Payments coerced by duress or unlawful compulsion may be recovered back. The
coercion, however, must be illegal, unjust or oppressive. One of the several and perhaps most
common instances of duress is by threats of actual imprisonment unless the required act shall
be performed. While there may be a diversity of opinion in some of the reported cases as to
what circumstances are sufficient to constitute such coercion as will enable a party paying
under protest to recover, still, under the facts of this case we think it is quite apparent that the
amount demanded of the plaintiff was paid under such circumstances as would enable him to
recover, if neither the city nor its offices had authority to charge or demand it. If the city made
the charge and demanded its payment without authority of law it was void, and the action of
its officers in enforcing it by threats of arrest and by taking unlawful possession of the
plaintiff's property was illegal and payment by him was not so far voluntary as to prevent a
recovery in this action.
From 2 Dillon, Mun. Corp. (4th ed.), sec. 942, we quote:
Money paid by a person to prevent an illegal seizure of his person or property by an
officer claiming authority to seize the same, or paid to liberate his person or property from
illegal detention by such officer, may be recovered back in an action for money had and
received, on the ground that the payment was compulsory, or by duress or extortion."
to seize the same, or paid to liberate his person or property from illegal detention by such
officer, may be recovered back in an action for money had and received, on the ground that
the payment was compulsory, or by duress or extortion.
A payment made to relieve the person from arrest or the goods from seizure is a payment
on compulsion. 2 Cooley on Taxation (3d ed.) 1505.
See, also, First Nat. Bank v. Sargeant, 65 Neb. 594, 91 N. W. 597, 59 L. R. A. 296; Dist.
of Columbia v. Chapman, 25 App. D. C. 95; Burlingame v. Hardin County, 180 Iowa, 919,
164 N. W. 115; Robertson v. Frank Brothers, 132 U. S. 17, 10 Sup. Ct. 5, 33 L. Ed. 236;
Magnolia v. Sharman, 46 Ark. 358; Douglas v. Kansas City, 147 Mo. 428, 48 S. W. 851.
The law is clear; and applying it to the facts of the case, as found by the trial court, it is our
duty to affirm the judgment.
Such is the order.
Sanders, C. J., concurring:
I concur in the affirmance of the judgment in this case solely upon the ground that a state,
as an incident of the police power, cannot abridge or impair an implied license, growing out
of a custom of over a hundred years, namely, that the public lands of the United States,
especially those in which the native grasses are adapted to the growth and fattening of
domestic animals, shall be free to the people who seek to use them, when left open and
uninclosed. Buford v. Houtz, 133 U. S. 320, 10 Sup. Ct. 305, 33 L. Ed. 618; Richards v.
Sanderson, 39 Colo. 270, 89 Pac. 769, 121 Am. St. Rep. 167; Clemmons v. Gillette, 33 Mont.
321, 83 Pac. 879, 114 Am. St. Rep. 814; Anthony Wilkinson Live Stock Co. v. McIlquam, 14
Wyo. 209, 83 Pac. 364, 3 L. R. A. (N. S.) 733; Healy v. Smith, 14 Wyo. 263, 83 Pac. 583,
116 Am. St. Rep. 1004.
It is conceded, or must be conceded, that approximately 90 per cent of the uninclosed
lands within the State of Nevada belong to the United States, which lands, from the
organization of the state, have been used as a public commons, free to all citizens alike.
mately 90 per cent of the uninclosed lands within the State of Nevada belong to the United
States, which lands, from the organization of the state, have been used as a public commons,
free to all citizens alike. I am of the opinion that this privilege cannot be monopolized by the
state. Neither can the state curtail the privilege by confining it only to those citizens who have
their home ranch and livestock headquarters within the State of Nevada, as is required by the
first sentence of section 1 of an act approved April 1, 1919, Stats. 1919, p. 389, which
provides:
Section 1. It shall be unlawful for any person or for any corporation who or which does
not have his or its principal home ranch and livestock headquarters in the State of Nevada,
except as herein provided, to herd or graze, or cause to be herded or grazed, upon any
unenclosed lands in the State of Nevada, any sheep or bovine cattle without having first
obtained from the sheriff of a county in which such herding or grazing, or some portion
thereof is done, a valid license authorizing such herding and grazing in the State of Nevada. *
* *
The practical operation, effect, and result of the particular portion of section 1 above
quoted is to make it a penal offense for a citizen of the United States engaged in grazing live
stock upon the public domain thereof to have and maintain a place or habitat thereon for
sheep and cattle regularly from year to year in the State of Nevada. Home ranch, as used in
the range country, and as employed in the statute, means a home or situs for sheep and cattle
that range at large upon the uninclosed lands in the state, or a place where such live stock are
gathered and herded and cared for regularly each year. State v. Shaw, 21 Nev. 229, 29 Pac.
321. To maintain such a home or situs for this class of property necessitates the acquirement
of some sort of title to the use of public lands of the United States or the State of Nevada. In
either case it amounts to an abridgment or impairment of the privilege accorded to all the
people to go upon and use the public range of the United States so long as it is
unappropriated and not reserved or set apart for other public purposes.
people to go upon and use the public range of the United States so long as it is unappropriated
and not reserved or set apart for other public purposes.
Conceding that a state may tax private property, such as live stock, located upon public
lands of the United States (Utah Power & Light Co. v. United States, 243 U. S. 404, 37 Sup.
Ct. 387, 61 L. Ed. 791), and that a state, as an incident to the police power, may limit or
regulate the keeping of live stock within the state (Bacon v. Walker, 204 U. S. 311, 27 Sup.
Ct. 289, 51 L. Ed. 499), it does not follow that the state may, under the guise of the police
power, abridge or impair the privilege of pasture upon the public lands of the United States
by requiring as a condition precedent that citizens must have their principal home ranch and
livestock headquarters within the state. To countenance such a regulation by a legislative
enactment places the use of the public domain for pasturage purposes at the mercy of a state
without the consent of Congress.
It is charged that the act is unconstitutional, in that it violates article 4, sec. 2, and invades
the fourteenth amendment to the constitution of the United States. It is a well-known rule of
courts never to pass upon a constitutional question unless it is clearly involved and a decision
thereon is necessary to a determination of a case. State v. Meder, 22 Nev. 264, 38 Pac. 668;
State v. Wheeler, 23 Nev. 148, 44 Pac. 430.
The fact that respondent bases his cause of action upon the claim that he is a citizen of
Idaho and the law deprives him of his right to graze his live stock equally with all citizens
upon the public lands of the United States shows clearly that the case does not involve
necessarily a constitutional question for its determination, unless it might be that a state is
without power to make rules and regulations respecting the lands of the United States. Article
4, sec. 3, Constitution of the United States.
Entertaining these views as to the purpose and intent of the law, I conclude that as it is
framed it is not legitimate legislation, in so far as it covers and includes the open and
uninclosed public lands of the United States within the State of Nevada. In arriving at this
conclusion I do not wish to be understood as expressing any opinion upon the validity of
revenue and license laws now in force relative to foreign live stock within the State of
Nevada
____________
45 Nev. 59, 59 (1921) Frame v. Harris
[No. 2473]
HERBERT S. FRAME, Respondent, v. J. C. HARRIS, Sheriff of Elko County, Nevada,
Appellant.
[197 Pac. 702]
Appeal from Fourth Judicial District Court, Elko County; E. J. L. Taber, Judge.
Action by Herbert S. Frame against J. C. Harris, Sheriff of Elko County, Nevada.
Judgment for plaintiff, and defendant appeals. Affirmed.
H. U. Castle, District Attorney, for Appellant.
Turner K. Hackman, for Respondent.
The identical question involved in this case has been decided in Hostetler v. Harris (No.
2472), 45 Nev. 43. Upon the authority of that decision, the judgment herein appealed from is
in all things affirmed.
I concur in the order, for the reasons stated in my concurring opinion in case No. 2472.
____________
45 Nev. 60, 60 (1921) Summerfield v. Hines
[No. 2464]
MARIE L. SUMMERFIELD, and SARDIS SUMMERFIELD, as Her Husband, Appellants,
v. WALKER D. HINES, as Former Director General of Railroads, and as Federal Agent,
Respondent.
[197 Pac. 690]
1. CarriersPleading Held to Allege that a Carrier's Rule was in Force at Time Contract for
Transportation was Made.
Construing the pleading with a view to substantial justice, as required by Civ. Prac. Act, sec. 123, an
allegation that a particular rule of a carrier was in force in April will not, in an action for breach of
contract in July for transportation as a passenger, be disregarded, but will be accepted as an allegation
that the rule was in force at the time the contract was made.
2. PleadingSufficiency of Complaint Determined from Facts Alleged, and Not Conclusion
of Pleader.
In determining the sufficiency of a complaint as against demurrer, the facts alleged, and not the
conclusions of the pleader, govern.
3. CarriersTicket Not a Contract, But Nature of Receipt Limited and Regulated by
Carrier's Rules.
A railroad ticket is not a contract expressing the conditions and limitations usually in a written
agreement, but is more in the nature of a receipt for fare and is limited and regulated by the carrier's rules.
4. EvidenceCourts will Take Judicial Notice of Location of Cities.
The courts will take judicial notice that Reno and San Francisco are points west of Ogden for the
purpose of interpreting a transcontinental carrier's rules.
5. CarriersComplaint by Passenger Denied Transportation Held Not to State Cause of
Action; Local Ticket.
In an action by plaintiff who held ticket from Reno to San Francisco, but who was denied admission
to a limited train, the complaint, setting forth the rules of the carrier and the circumstances and seeking
recovery on the ground of breach of contract, held not to state cause of action, the rules of the company
pleaded declaring a ticket for such transportation to be a local ticket, notwithstanding "local ticket" is
ordinarily defined in relation to railroads as traffic confined to a single road, and such rules further
requiring a local passenger to hold either a sleeping-car ticket or a permit showing that a through
passenger would share such accommodations, and the complaint not alleging plaintiff had the required
ticket or such a permit.
45 Nev. 60, 61 (1921) Summerfield v. Hines60
6. Appeal and ErrorAppellant Who Relied on Railroad Rules Cannot on Appeal Contend
that They Were Unreasonable.
On appeal from a final order sustaining a demurrer to the complaint of one who was denied admission to
a limited train, though she held ticket, the rules of the carrier which were set out cannot for the first time be
attacked as unreasonable.
Appeal from Second Judicial District Court, Washoe County; Edward F. Lunsford, Judge.
Action by Marie L. Summerfield and Sardis Summerfield, as her husband, against Walker
D. Hines, as former Director-General of Railroads and as Federal Agent. From an order
sustaining a demurrer to the complaint, plaintiffs appeal. Affirmed.
Sardis Summerfield, for Appellants:
The following common-law principle has been long firmly established: A common
carrier of passengers for hire may not, by rule or otherwise, refuse to carry passengers who
are not physically or mentally disqualified, and who tender full legal payment for carriage,
upon any regular passenger train by it operated from one regular station to another regular
stopping station, if it has suitable room and accommodations so to do. As a corollary to this
rule of law may be added the one that when there is continuing considerable demand for such
carriage it is the duty of the common carrier to provide sufficient additional facilities to meet
such demand. Pearson v. Duane, 18 L. Ed. 447; Tarbell v. C. P. Co., 34 Cal. 616; Toledo R.
Co. v. Pence, 68 Ill. 524; Richmond v. S. P. Co., 67 Pac. 949; T. & H. Co. v. Simon, 25 Pac.
148; Georgia v. Lippman, 110 Ga. 665; Elmore v. Sands, 54 N. Y. 512; Bennett v. Dutton, 10
N. H. 421; Day v. Owen, 5 Mich. 520; Bennett v. Peninsular Co., 6 C. B. 775; Hawcroft v.
Great N. Co., 8 Eng. L. & Eq. 362.
A common carrier of passengers is one who undertakes for hire to carry all persons
indifferently, who apply for passage. Thompson C. of P. 26.
It matters not that this is a common-law action. In its trial appellants are entitled to all
benefits arising as incidents of the trial that can be derived from federal legislation.
its trial appellants are entitled to all benefits arising as incidents of the trial that can be
derived from federal legislation. McElwain v. St. Louis Co., 131 S. W. 745; Pittsburg Ry. Co.
v. Mitchell, 91 N. E. 735; St. Louis Co. v. Heyser, 130 S. W. 564.
Congress has by various enactments fortified the common law against discriminatory
practice by common carriers. 3 Fed. Stats. Ann. 816.
The only excuse that can be offered by the operators of the train for their unlawful
outlawry are the regulations pleaded in the amended complaint. These are plainly
unreasonable and capricious, and without legal force and effect. They are in violation of
federal law, 6 Fed. Stats. Ann. 730. A rule of a common carrier in violation of law is
unenforceable. Robinson v. S. P. Co., 105 Cal. 526; Decuir v. Benson, 27 La. Ann. 1; 6 Cyc.
546. Rules of common carriers of passengers for hire, to be legally effective, must be
reasonable. South Fla. Co. v. Rhodes, 25 Fla. 40; Memphis Co. v. Benson , 85 Tenn. 627;
Day v. Owen, 5 Mich. 520; Baltimore Co. v. Carr, 71 Md. 135; 6 Cyc. 546.
So far as the rights of passengers and the liabilities of common carriers are concerned,
there is no appreciable difference between wrongfully refusing admittance to an intending
passenger and wrongfully ejecting a passenger. Cleveland Ry. Co. v. Kinsley, 60 N. E. 169;
Northern Ry. Co. v. O'Connor, 76 Md. 207; Baltimore Ry. Co. v. Carr, 71 Md. 135;
Dickerman v. St. Paul Co., 44 Minn. 433; 6 Cyc. 581; 10 C. J. 648.
The relation of carrier and passenger commences when a person, with the intention of
becoming a passenger, places himself in a situation to avail himself of the facilities for
transportation which the carrier offers; and in the case of a railroad carrier this relation arises
not merely when the passenger enters the train with the ticket already purchased, giving him a
contract to ride, but when he enters upon the premises of the carrier with the intention of
taking a train in due course.
Chicago Co. v. Jennings, 89 Ill. App. 335; Illinois Co. v. Treat, 75 Ill. App. 327;
Jeffersonville Co. v. Riley, 39 Ind. 568; Kansas City Co. v. Barth, 142 Mo. 535; Choate v.
Missouri Co., 67 Mo. App. 105; Exton v. Central Co., 63 N. J. L. 356.
An aggrieved passenger may recover damages without direct proof of the humiliation
suffered by him because of wrongful action by the carrier. Forrester v. S. P. Co., 36 Nev. 290;
Chicago Co. V. Chesholm, 79 Ill. 584.
The ticket in question was not a local ticket. The distance by rail from Reno to San
Francisco is two hundred and forty miles. Respondent has never classified its tickets for the
trip as local tickets. A ticket from one region to another so widely removed, and so materially
different in every prominent feature, cannot be considered as a local ticket without ascribing
to language a meaning at variance with common understanding and disregarding every
authority on philology. Local, Century Dictionary.
Brown & Belford, for Respondent:
The order sustaining the demurrer to the first cause of action should be sustained. The
facts stated do not show that plaintiff was entitled to become a passenger on the train in
question. The ticket does not constitute a contract of transportation, but is merely evidence of
the right to transportation, if such exists. A ticket from Reno to San Francisco is a local
ticket. Through tickets are those which are sold for through traffic, which is that originating
upon the line of one railroad and terminating on that of another. Schneider v. Evans, 25 Wis.
241; Lumb v. Canden, 46 N. Y. 271. Through tickets are those for a continuous transportation
over more than one line of road. McCollum v. S. P. Co., 88 Pac. 663; Knight v. Portland Ry.
Co., 56 Me. 240; 4 Elliott, Railroads, sec. 1596.
There is no presumption that a mere ticket, without a further showing, would entitle the
holder to ride on all trains run by the appellant."
a further showing, would entitle the holder to ride on all trains run by the appellant.
McCollum v. S. P. Co., supra.
Defendant had the right to make rules and regulations excluding local passengers from
transportation on limited trains. This right has been recognized in interstate commerce.
Johnson v. A. T. & S. F. R. Co., 38 I. C. C. 294. Carriers may operate limited trains and
confine their use to through passengers. S. P. Co. v. McNab, 169 S. W. 757; Campbell v.
Milwaukee Co., 170 N. W. 937; Ames v. S. P. Co., 75 Pac. 310; Ohage v. N. P. Ry. Co., 200
Fed. 128.
If the rules and regulations with respect to the kind of tickets honored on the train in
question are claimed to be discriminatory against persons or localities, application must be
made to the Interstate Commerce Commission to determine whether or not the discrimination
is of the character forbidden by the Interstate Commerce Act. Mitchell C. & C. Co. v. P. R.
Co., 230 U. S. 244; Texas & P. R. Co. v. Abilene C. O. Co., 204 U. S. 426; B. & O. R. Co. v.
U. S., 215 U. S. 481; Robinson v. B. & O. R. Co., 222 U. S. 506; Pa. R. R. Co. v. Puritan C.
Co., 237 U. S. 121; Pa. R. R. Co. v. Clark, 238 U. S. 456, 59 L. Ed. 1406.
This appeal is taken from the order of the lower court sustaining respondent's demurrer to
the first cause of action set out in the amended complaint. The demurrer to the second cause
of action was overruled by the court, and it was stipulated by counsel that the order sustaining
the demurrer to the first cause of action be made a final order. It was further stipulated that
respondent's time for answering be extended until ten days after the remittitur from the
supreme court was filed in the lower court. We are therefore concerned only with the question
raised by the demurrer to the first cause of action. The ground of the demurrer is that said first
cause of action does not state facts sufficient to constitute a cause of action.
action does not state facts sufficient to constitute a cause of action.
In the amended complaint, after stating facts to show that the respondent is a proper
necessary party, it is alleged as follows:
Paragraph IV. That at and during all of the time from January 1, 1919, to March 1, 1920,
defendant was a common carrier of passengers for hire, and as such common carrier operated
all of that certain line of railroad extending from Ogden, Utah, to Oakland pier at Oakland,
Cal., and in connection therewith and as a part thereof a certain ferryboat service from said
Oakland pier to San Francisco, Cal., and all of the motive power, rolling stock, equipment
and instrumentalities thereof and in whole constituting what was commonly known as the
Central Pacific Railroad, and previous to the said period of time operated by the Southern
Pacific Company, a corporation.
V. That on the 15th day of July, 1919, defendant did, and for a long time next prior
thereto had, and ever since has, as an interstate carrier of passengers for hire, controlled and
operated on said line of railroad a daily west-bound passenger train from Ogden, Utah, to
Oakland pier at Oakland, California, and known as train No. 1, and also as the Overland
Limited,' and that said passenger train had at said date regularly scheduled stopping stations
between Ogden, Utah, and Oakland pier at Oakland, California, as follows, to wit: Montello,
November [Nevada]; Wells, Nevada; Elko, Nevada; Carlin, Nevada, Winnemucca, Nevada;
Imlay, Nevada; Lovelock, Nevada; Hazen, Nevada; Reno, Nevada; Truckee, California; Blue
Canyon, California; Colfax, California; Sacramento, California; Port Costa, California;
Berkeley, California; Oakland at Sixteenth Street station, California; and at Alameda at Park
Street station, California; and from said Oakland pier by said ferryboat service owned and
operated by defendant as a part of said line of railroad to San Francisco, California.
VI. That on the said 15th day of July, 1919, defendant did, and for a long time next prior
thereto had, widely and generally published and circulated for the authentic use and
information of his prospective passengers upon said daily train its time-table' folder
containing under the subhead title, Ogden Route Train 2Overland LimitedTrain 1,' the
following information to its contemplated passengers:
Transportation HonoredOnly passage tickets good in sleeping cars in connection with
sleeping-car tickets; all tickets, including employees' tickets at half or higher fare stamped
Railroad Employee; annual passes issued to railroad officers and employees other than
Southern Pacific R. R. (Pacific System); annual passes issued to general officers of Southern
Pacific (Pacific System) or their families; annual passes, form Z; trip passes, form Y;
annual trip passes, form G. G.
Transportation Not HonoredTickets indorsed Employee sold at less than half fare;
tickets indorsed Charity; caretakers' or drovers' tickets; soldiers' or sailors' tickets indorsed
Furlough; tickets indorsed discharged Sailor, Soldier, Marine, Nurse; tickets indorsed
Not good on any limited train; annual passes issued to employees Southern Pacific (Pacific
System); local and local interline tickets for daylight ride between any two points west of
Ogden.'
VII. That on March 29, 1919, defendant caused to be issued, published, and circulated,
effective April 1, 1919, his official circular No. 3025, containing the following rule:
Trains, Transportation Not HonoredNos. 1 and 2 Overland Limited * * * tickets:
Local tickets between any two points west of Hazen, except that tickets from Reno and
Truckee to Berkely, Oakland, San Francisco, and beyond will be honored on train No. 1. (See
note on page 2.)
NoteLocal Passengers Accompanying through Passengers.
Passengers. Provided a passenger holding necessary through tickets and Pullman tickets
desires to be accompanied for a portion of the journey by one or more persons, who will share
the Pullman space purchased by the through passenger for his own use, an exception to the
rules may be made subject to the following conditions:
(a) If the through passenger has purchased a berth he may be accompanied without extra
Pullman charge by one local passenger only.
If the through passenger has purchased an entire section or a compartment, he may be
accompanied without extra Pullman charge by not to exceed three local passengers.
If he has purchased a drawing-room, he may be accompanied without extra Pullman
charge by not to exceed four local passengers.
Local passengers accompanying through passengers in excess of these limitations must
pay seat fare between points they travel.
(b) The accompanying passengers in all cases should hold regular first-class passage
tickets good for use in sleeping- or parlor-car and permits from passenger-traffic manager or
other proper official authorizing conductors to permit them to board the train.'
VIII. That on July 15, 1919, plaintiff Marie L. Summerfield purchased from defendant,
for the sum of $9.23 to him then paid, her right of transportation of herself and her baggage
upon said train No. 1, also known as the Overland Limited,' from Reno, Nevada, to San
Francisco, California, and then received from defendant as an evidence of her said right or
transportation a certain first-class, unlimited through ticket, which said ticket, as plaintiffs are
informed and believe, and upon such information and belief allege, is now in the possession
of the defendant, and that said ticket by its express terms did not, and does not, exclude said
plaintiff from her right of transportation upon said train, but upon the contrary did and does
include her as having a right of transportation upon said train.
train, but upon the contrary did and does include her as having a right of transportation upon
said train.
IX. That upon section 1 of said train No. 1, also known as the Overland Limited,' at
Reno, Nevada, on said July 15, 1919, a certain passenger thereon, then having a through
ticket and Pullman ticket for an entire section on said train, which said section was
unoccupied and unreserved except for himself, to wit, Henry C. Thurtell, who was an
old-time friend and acquaintance of plaintiff Marie L. Summerfield, prior to the departure of
said train offered to said plaintiff to share said section with her, and desired her to accompany
him in said section, and invited her to do so, and that she then and there accepted said offer
and invitation.
X. That with such ticket in her possession and prepared to pay defendant any further
additional legal charges as might be demanded from her by defendant, she did on the morning
of July 15, 1919, at Reno, Nevada, request from defendant and his managing representative
admittance and transportation from Reno, Nevada, to San Francisco, Cal., upon section 1 of
said passenger train No. 1, Overland Limited, at the same time exhibiting to said managing
representative of defendant said ticket and offering to pay any further charges for such
transportation, if any should be required, notwithstanding said offer and said invitation of said
Henry C. Thurtell, but was by defendant then wrongfully refused admittance to or upon said
section 1 of said train.
XI. That by reason of said wrongful refusal of defendant to admit said plaintiff Marie L.
Summerfield to and upon said train she suffered keen and long-continued mental humiliation
and distress, and that plaintiffs have been damaged thereby in the sum of $1,000, all of which
said sum remains due and unpaid from defendant to plaintiffs.
It is clear from an examination of the foregoing pleading that the action which appellants
seeks to maintain is an action for damages for the breach of a contract.
The question for determination developed by the general demurrer is: Do the facts alleged
show that a contract was entered into between Marie L. Summerfield and respondent by
virtue of which the latter engaged on the morning of July 15, 1919, to transport her from
Reno to San Francisco on train No. 1, and was she wrongfully refused admittance to said train
by respondent's agent?
1. For convenience, Marie L. Summerfield will hereafter be designated as appellant.
Preliminarily we will dispose of the objection made by counsel for respondent to a
consideration of the rule pleaded in paragraph VIII. It is alleged as effective April 1, 1919,
and inasmuch as it is not alleged to have been in effect on July 15, 1919, when the contract
was made, it is insisted that it has no place in the pleading and should be disregarded. A more
liberal view appears to us to be in accord with the purpose of the statutes relating to the
construction of pleadings. In construing a pleading for the purpose of determining its effect,
its allegations should be construed with a view to substantial justice between the parties.
Section 123, Civil Practice Act (Rev. Laws, 5065). The rule is shown to have been in effect a
short time before July 15, and whether actually in effect then is a matter exclusively within
the knowledge of respondent. The allegation could therefore in no wise mislead respondent or
affect a substantial right, and should be deemed sufficient.
2-5. Returning to consider the main question presented, it will be observed that there is
alleged in paragraph VIII a contract to carry appellant and her baggage on train No. 1 from
Reno to San Francisco, and the issuance to her of a first-class, unlimited through ticket as
evidence of her right of transporation upon said train, which ticket by its express terms
included her as having such right of transportation. The pleader has gone further and alleged
facts in paragraph VI and VII which obviously must be taken into consideration in
determining what right of transportation arose from the contract.
the contract. The contract made by the parties must be determined from the facts alleged, and
not from the conclusion of the pleader. Paragraph VI sets out a certain time-table folder
designated for the authentic use and information of prospective patrons of the road, and
alleges that on July 15, 1919, and prior thereto it was widely and generally published and
circulated by respondent. From this time-table folder it appears that only passage tickets good
in sleeping-cars in connection with sleeping-car tickets were honored on train No. 1, and that
local and local interline tickets for daylight rides between any two points west of Ogden
would not be honored.
In paragraph VII is pleaded a certain circular issued, published, and circulated by
respondent, containing a certain rule in regard to transportation on train No. 1. Appearing in
the rule under the head of Transportation Not Honored are local tickets between any two
points west of Hazen. Tickets from Reno and Truckee to Berkeley, Oakland, San Francisco,
and beyond are excepted from the operation from the rule, and reference is made to note on
page 2. It is contended that the time-table folder and circular are not pleaded as rules and
regulations of the respondent, but they cannot be given any other effect. They appertain to the
regulation of transportation on respondent's Overland Limited train, are shown to have been
issued, published, and circulated by respondent, and have been made in part the basis of
appellant's cause of action. No other purpose is apparent for pleading them than as the rules
of respondent, and to show that the appellant, by reason of the ticket purchased by her, was
one entitled under such rules to transportation on train No. 1. It is alleged that the ticket on its
face gave her that right. This is only the conclusion of the pleader. As said in Ames v.
Southern Pacific Co., 141 Cal. 728, 75 Pac. 310, 99 Am. St. Rep. 98:
A railroad ticket is not a contract expressing all the conditions and limitations usually
contained in a written agreement.
conditions and limitations usually contained in a written agreement. * * * It is more in the
nature of a receipt given by the railroad company as evidence that the passenger has paid his
fare for a certain kind of passage on the proper trains of the company, as limited and regulated
by its rules.
The authorities cited in this decision are to the same effect. Dietrich v. Pennsylvania R. R.
Co., 71 Pa. 436, 10 Am. Rep. 711; Lake Shore Ry. Co. v. Rosenzweig, 113 Pa. 536, 6 Atl.
545.
A ticket seldom expresses all the conditions of the contract between the carrier and
passenger. Ames v. S. P. Co., supra.
It is nowhere alleged that the respondent's agent violated the rules in selling her a ticket
good for carriage on train No. 1. On the contrary, as we have previously stated, the rules are
relied upon in the pleading as furnishing that right because of the ticket. The allegation in
paragraph VIII that respondent contracted to transport her on train No. 1 must be considered
in connection with the rules.
Assuming that appellant's ticket was otherwise good in sleeping-cars, it is nowhere alleged
that she had a sleeping-car ticket in accordance with the requirement in the time-table folder.
By the folder it also appears that local tickets for daylight rides between any two points west
of Ogden could not be honored on train No. 1. We may take judicial notice of the fact that
Reno and San Francisco are two points west of Ogden. Counsel's contention that San
Francisco cannot be considered a point west of Ogden because it is the terminus of the line is
extremely technical, and his contention that the ride on train No. 1 is not a daylight ride
because the train runs through about 40 miles of snowsheds in running a distance of 243
miles is of the same unsubstantial character. He contends also that a ticket from Reno to San
Francisco is not a local ticket for the reason that the word local, taken in its popular
meaning when applied to a railroad ticket, must necessarily mean a ticket between certain
intermediate points.
applied to a railroad ticket, must necessarily mean a ticket between certain intermediate
points. But the rule pleaded in paragraph VII declares a ticket between Reno and San
Francisco to be a local ticket. The rule furnished its own definition of the term local ticket.
And in the particular instance of this rule the word local as applied to a ticket between
Reno and San Francisco is not employed beyond its well-understood meaning in railroad
parlance. Webster's New International Dictionary defines local ticket in relation to railroads
as traffic confined to a single road.
In the rule pleaded in paragraph VII tickets from Reno and Truckee to Berkeley, Oakland,
San Francisco, and beyond are excepted from its general operation, that local tickets between
any two points west of Hazen will not be honored on train No. 1. But to this exception are
attached the conditions appearing in note 1, page 2. The rule refers to this note and it is
apparent from the fact that the reference immediately follows the clause making the exception
that it was intended to attach the condition contained in the note to tickets from Reno and
Truckee. Again, as pertinently inquired by the learned trial court, if this were not the clear
intent of the rule, why any reference to the note on page 2?
In paragraph IX appellant alleges compliance with the first condition, namely, an
invitation from a certain passenger on the train having a through ticket and an entire section
in a Pullman car to share such section, but fails to allege compliance with the second
condition, requiring a regular first-class ticket good for use in sleeping-or parlor-car and a
permit from the passenger-traffic manager or other proper official authorizing the conductor
to permit her to board the train. Under this rule, then, the conductor, in the absence of a
permit, was required to refuse appellant admission to the train. For this reason alone the
allegations in the pleading that the section held by the through passenger was unoccupied and
unreserved except by himself, and that appellant was prepared to pay and did offer to pay
any further legal charges for her transportation, cannot aid the pleading.
unoccupied and unreserved except by himself, and that appellant was prepared to pay and did
offer to pay any further legal charges for her transportation, cannot aid the pleading. The
conductor was bound to enforce the rules of respondent appertaining to his duties. We
conclude that the facts alleged are insufficient to show a contract to transport appellant upon
train No. 1.
6. Counsel for appellant contends that the rules are unreasonable and discriminatory, and
therefore unenforceable, and has cited a great deal of authority on its point. From the written
decision of the trial court which appears in the record, we infer that the question of the
unreasonable and discriminatory character of the rules pleaded is raised here for the first time,
as no reference is made to it in such decision. But, be that as it may, however sound this
contention may be, as a matter of law it cannot be applied in testing the sufficiency of
appellant's cause of action. The question presented is strictly one of pleading. As we have
shown, the reasonable rules and regulations appertaining to a contract of transportation on a
common carrier form a part of the contract. The rules in this case are not alleged to be
unreasonable or discriminatory, but, on the contrary, as we construe the pleading, are alleged
to show that under them respondent violated its contract with appellant. Having thus pleaded
them, she is bound by them so far as the pleading is concerned. We are aware of no rule of
pleading which permits a party to disavow allegations essential to a cause of action in order to
sustain it.
The order of the trial court sustaining the demurrer to appellant's first cause of action is
affirmed.
____________
45 Nev. 74, 74 (1921) Degiovanni v. Pub. Serv. Comm'n
[No. 2486]
CHARLES DEGIOVANNI, L. PROSOLE, JOHN PECETTI, PIETRO QUILLICI, LOUIS
GARDELLI, LASSARO CERVERI, A. PINCOLINI, S. GARAVANTA, H. BERSANI,
JOHN PROSOLE, JOHN B. PECETTI, JULIUS LOMBARDI, DOMINICK
CERFOGLIO, PETER CERFOGLIO, PICETTI LORENZO, MARTIN
AQUERRELIARE, JERRY ZOLEZZI, GANDOLFO PIETRO, CHAS. DONDERO, J.
H. SMITH, G. MARCHI, B. CAPURRO, RICK DE BERNARDI, and C. ELGES,
Petitioners, v. PUBLIC SERVICE COMMISSION OF NEVADA, and THE
STEAMBOAT CANAL AND IRRIGATION COMPANY (A Corporation),
Respondents.
[197 Pac. 582]
1. CertiorariWrit Applicable Only to Review Judicial Action.
Under Rev. Laws, 5684, the scope of a writ of certiorari extends only to review the judicial action of an
inferior tribunal, board, or officer in excess of jurisdiction.
2. Waters and WatercoursesEstablishment of Rates for Irrigation Company Not Judicial
Action.
The establishment by the Public Service Commission of rates for an irrigation company is an exercise,
not of judicial, but of legislative, power, and so certiorari does not lie to review an order establishing rates,
though claimed to be in excess of jurisdiction.
3. Water and WatercoursesRetroactive Establishment of Rate Does Not Warrant Certiorari
on Ground that It Was Judicial Action.
As the establishment of irrigation rates is a legislative action, the retroactive establishment of such rates,
though in excess of the power of the Public Service Commission, does not convert the action into judicial
action so as to make applicable certiorari.
4. CertiorariWrit Will Not Lie Merely Because There Is No Other Adequate Remedy.
Certiorari will not lie merely because there is no other adequate or speedy remedy by which to review the
proceedings, where it is otherwise not a proper case for the writ, as when the proceedings are not judicial in
their nature.
5. Waters and WatercoursesWhere the Retroactive Establishment of Rates is Invalid, such
Act May be Urged as Defense.
Where the act of the Public Service Commission in making retroactive an order establishing irrigation
rates was invalid, the want of jurisdiction and nullity of the order is a good defense pro
tanto to an action for water rates, and so affords a plain, speedy, and adequate
remedy to the landowner.
the want of jurisdiction and nullity of the order is a good defense pro tanto to an action for water rates, and
so affords a plain, speedy, and adequate remedy to the landowner.
Petition by Charles Degiovanni and others for writ of certiorari to be directed to the Public
Service Commission of Nevada and the Steamboat Canal and Irrigation company, a
corporation. Writ dismissed.
Sardis Summerfield, for Petitioners:
In fixing rates upon complaint against schedule filed by a public utility, the Public Service
Commission exercises judicial functions. In every essential particular, in disposing of rate and
regulation contests before it, it is a court of statutorily limited jurisdiction. There is no appeal
from its order. Stats. 1919, sec. 33; Garson v. Steamboat Canal Co., 43 Nev. 319.
Certiorari is the property remedy. There is no plain, speedy, and adequate remedy other than
by certiorari. 6 Cyc. 770; Keys v. Marin Co., 42 Cal. 252; Miller v. Sacramento Co., 25 Cal.
94; Emery v. Bradford, 29 Cal. 85; State v. Washoe Co., 14 Nev. 66; Merrick v. Arbela, 41
Mich. 630; Herrick v. Carpenter, 54 Iowa, 340; Shields v. Patterson, 55 N. J. L. 495; Macon
v. Shaw, 16 Ga. 172; Miller v. School Trustees, 88 Ill. 26.
Respondent exceeded its jurisdiction in making an order to operate retrospectively. This
court will not look more favorably upon an attempt to sustain an attempted retroactive order
of the Public Service Commission, a tribunal of statutory origin only, than it would in the
operation of a statute. As a general rule, a statute will not be construed to operate upon past
transactions, but in futuro only. Retrospective legislation is not favored.
Hoyt, Norcross, Thatcher, Woodburn & Henley, for Respondent:
Even if respondent acted beyond its powers, its act cannot be reviewed by certiorari. In
order to justify the issuance of the writ, the following elements must concur: The action
sought to be reviewed must be judicial in character, there must be no appeal, and in the
judgment of the court no plain, speedy, and adequate remedy.
concur: The action sought to be reviewed must be judicial in character, there must be no
appeal, and in the judgment of the court no plain, speedy, and adequate remedy. These
elements are not present in this proceeding. Respondent was not acting judicially in making
the order in controversy. It was one regulating and fixing rates, and this is a legislative and
not a judicial function. S. C. & I. Co. v. Garson, 185 Pac. 801; S. P. Co. v. Colo. F. & I. Co.,
101 Fed. 779; S. P. Co. v. Bartine, 170 Fed. 725; Esmeralda County v. District Court, 18 Nev.
438; S. P. Co. v. Campbell, 230 U. S. 537; Simpson v. Shepard, 57 L. Ed. 1511; Nebraska T.
Co. v. State, 45 L. R. A. 113; P. P. Car Co. v. Mo. Pac. Ry. Co., 29 L. Ed. 499.
The writ will not lie to review an order made in the exercise of legislative and not judicial
powers. The mere fact that there was error in judgment in the making of the order will not
justify the issuance of the writ. State v. Washoe County, 23 Nev. 247; State v. Osborn, 24
Nev. 187; Chapman v. Justice Court, 29 Nev. 154. The writ will not issue for the purpose of
correcting errors. State v. District Court, 16 Nev. 76; State v. District Court, 23 Nev. 243.
Certiorari will not lie, petitioners having a plain, speedy and adequate remedy. Stats. 1919,
sec. 33; 11 C. J. 111; State v. White Pine Co., 31 Nev. 113; State v. Washoe County, 14 Nev.
66; Lake v. Washoe County, 14 Nev. 140.
The petitioners are engaged in farming lands irrigated by waters diverted solely from the
Truckee River and delivered to them through the Steamboat Canal, owned and operated by
the Steamboat Canal and Irrigation Company, one of the respondents.
On the 27th day of February, 1920, and before the commencement of the irrigation season,
the respondent company filed with the respondent Public Service Commission of Nevada a
schedule of rates to be by it charged against petitioners and others for water for the year
1920, and thereafter at the rate of $14 an inch, one-half thereof to be payable on April 15
of each year and the other one-half on November 15 of each year.
against petitioners and others for water for the year 1920, and thereafter at the rate of $14 an
inch, one-half thereof to be payable on April 15 of each year and the other one-half on
November 15 of each year.
On March 19, 1920, the petitioners and others filed with the Public Service Commission a
protest against the rate. Thereupon the commission suspended the proposed rate, and after a
hearing of all the evidence submitted to it and a consideration thereof, on November 27,
1920, and after the irrigation season for the year 1920, had closed, made and entered the
following order:
Ordered: That the rate of fourteen ($14) dollars per inch filed with this commission by the
Steamboat Canal Company for irrigation service for the season of 1920 is hereby disapproved
and the application thereof denied, on the ground that it is unjust, unreasonable and
excessive; and, it is further ordered, that the Steamboat Canal Company shall file with this
commission a rate of $9 per inch, which is hereby found to be the just and reasonable rate to
be charged for irrigation service for the irrigation season of 1920 and each succeeding year, or
until changed or modified by the commission.
Prior to the making and entering of the foregoing order, the Steamboat Canal Company,
the predecessor in interest of the respondent, Steamboat Canal and Irrigation Company, filed
with said Public Service Commission, on the 28th day of May, 1918, a schedule of proposed
rates to be by it charged to and collected from petitioners and others for water to be delivered
by it to petitioners, of $10 per inch. The Public Service Commission, under the authority
given it by statute, suspended the proposed rates, and on June 15, 1918, petitioners and others
filed with the commission a complaint against the proposed rate of $10 and after a hearing the
commission, on December 14, 1918, ordered that the application for a rate of $10 per inch be
denied, and further ordered that the Steamboat Canal Company make a charge of $7.50 per
inch for water for irrigation purposes for the irrigation season of 191S and each successive
year, unless otherwise ordered by the commission; and providing that when prepayment
for said season of 191S, or any succeeding season should be made on or before June 1 of
that year, the charge should be $7.25 per inch for water for irrigation purposes.
purposes for the irrigation season of 1918 and each successive year, unless otherwise ordered
by the commission; and providing that when prepayment for said season of 1918, or any
succeeding season should be made on or before June 1 of that year, the charge should be
$7.25 per inch for water for irrigation purposes.
The respondent, Steamboat Canal and Irrigation Company, or its predecessor in interest,
did not file with the commission any further schedule of rates until the 27th day of February,
1920, and the order of December 14, 1918, remained unchanged until the commission made
its order of November 27, 1920.
To the petition showing the foregoing facts, the respondents filed separate demurrers, and
also moved to dismiss the proceedings.
It is contended by counsel for petitioners that the Public Service Commission in making
and entering said order of November 27, 1920, exceeded its jurisdiction in the exercise of a
judicial function in making the order retroactive so as to embrace within its operation the
irrigation season of the year 1920, which irrigation season had closed at the time of the
making and entering of said order; that petitioners have no right of appeal from said order;
that they have no plain, speedy, or adequate remedy at law. We are of the opinion that the
petition does not present a proper case for the issuance of a writ of certiorari, and that the
motions to dismiss must be granted.
1. It is the law of this state, established by statute and recognized by the decisions of this
court, that the scope of the writ of certiorari extends only to review the judicial action of an
inferior tribunal, board or officer, done in excess of its jurisdiction. Rev. Laws, 5684; In Re
Rourke, 13 Nev. 253; Esmeralda County v. District Court, 18 Nev. 438, 5 Pac. 64; State v.
Washoe County Commissioners, 23 Nev. 247, 45 Pac. 529; State v. Osborn, 24 Nev. 187, 51
Pac. 837; State v. White Pine County, 31 Nev. 113, 101 Pac. 104.
2. Consequently, then, however far the commission may have exceeded its power in
making the order of November 27, 1920, establishing the rate which the respondent
company could charge for its service, the act must have been a judicial one before the
writ can issue.
may have exceeded its power in making the order of November 27, 1920, establishing the rate
which the respondent company could charge for its service, the act must have been a judicial
one before the writ can issue. Was it of this nature? The authorities of this and other
jurisdictions are uniform in holding that the power to regulate and establish rates which a
public service corporation may lawfully charge for its service, is a legislative power. Garson
v. Steamboat Canal Co., 43 Nev. 298, 185 Pac. 801, 1119; Nebraska Tel. Co. v. State, 55
Neb. 627, 76 N. W. 171, 45 L. R. A. 113; Southern Pacific Co. v. Bartine (C. C.) 170 Fed.
725; Southern Pacific Co. v. Campbell, 230 U. S. 537, 33 Sup. Ct. 1027, 57 L. Ed. 1610; the
Minnesota Rate Cases, 230 U. S. 352, 33 Sup. Ct. 729, 57 L. Ed. 1511, 48 L. R. A. (N. S.)
1151, Ann. Cas. 1916a, 18; Prentis v. Atlantic Coast Line Co., 211 U. S. 210; 29 Sup. Ct. 67,
53 L. Ed. 150; McChord v. Louisville & Nashville Railroad Company, 183 U. S. 483, 22
Sup. Ct. 165, 46 L. Ed. 289; Chicago, etc., Railway Co. v. Wellman, 143 U. S. 339, 12 Sup.
Ct. 400, 36 L. Ed. 176; 10 Corpus Juris, 406.
The power to make rates is legislative rather than judicial. 4 R. C. L. p. 608.
The history of the legislation of the entire country, said the court in Nebraska Tel. Co. v.
State, supra, shows that the power to determine what compensation public service
corporations may demand for their services is a legislative function and not a judicial one.
3. But counsel for petitioners insist that the commission acted judicially, not in naming
the amount of the rate and its future operation, but in making its order retroactive so as to
include the irrigation season of the year 1920. We are unable to perceive how a power,
legislative in kind, becomes ipso facto judicial, because it is attempted to be exercised in
retrospect. The commission may have been mistaken as to the extent of its authority, but it
did not attempt to exercise power of a different nature than that conferred upon it by the
legislature.
by the legislature. After all is said, the commission merely fixed a rate. It was no more an act
judicial in its nature than if the legislature itself had fixed the amount of the rate and given it
retroactive operation. The power of the legislature to enact laws of retrospective operation in
certain classes of legislation is unquestioned, but it is not construed to be a judicial power in
this respect.
4. In making the order operative for the irrigation season of 1920 the commission fixed a
rate for service already rendered by the respondent company, it is true, but in doing so it did
not interpret and apply any existing laws to accomplish the result. The inquiry was as to what
should be the rule of compensation for such service, and the commission proceeded no
further than to establish such rule. We cannot declare this to be the exercise of judicial power.
If the commission exceeded its jurisdiction in attempting to make rates operative for the
irrigation season of 1920, that part of the order at least is invalid, but this alone furnishes no
ground for the issuance of the writ, even though, as petitioners contend, there is no other
plain, speedy, and adequate remedy.
Certiorari will not lie merely because there is no other adequate or speedy remedy by
which to review the proceedings, where it is otherwise not a proper case for the writ, as when
the proceedings are not judicial in their nature. 11 C. J. 101; State v. Clough, 64 Minn. 378,
67 N. W. 202.
5. However, we do not deem it improper to observe that if petitioners have no available
remedy by virtue of section 33 of the Public Utility Act of 1919 (Stats. 1919, c. 109) or in
equity, as they contend, and the order of the commission is null and void for want of
jurisdiction, they have a good defense pro tanto in an action for the collection of the rate.
Such a defense in a case of this kind where no right can be lost or injury result in the
meantime, must be held to constitute a plain, speedy, and adequate remedy. State v. Washoe
County, 14 Nev. 140
County, 14 Nev. 140; Quinchard v. Board of Trustees, 113 Cal. 664-668, 45 Pac. 856.
The application for the writ must be dismissed, and it is so ordered.
____________
45 Nev. 81, 81 (1921) Crownover v. Millar
[No. 2494]
AGNES V. CROWNOVER, Respondent, v. RITA D.
MILLAR, Appellant.
[197 Pac. 817]
1. ElectionsDistrict Court without Jurisdiction of Contest where Statement Does Not Show
Contestant Was an Elector.
Under act of March 24, 1917 (Stats. 1917, c. 197) secs. 68, 70, and despite section 72, the district
court had no jurisdiction of an election contest where the statement of grounds of contest did not allege
contestant was an elector.
2. ElectionsContest Proceedings Are Special and Summary, and Strict Observance of Statute
Is Required to Give Jurisdiction.
Statutory proceedings regarding election contests are special and summary in their nature, and
generally a strict observance of the statute, so far as regards the steps necessary to give jurisdiction, is
required, and the jurisdictional facts must appear on the face of the proceedings.
3. ElectionsContestee Did Not Waive Objection that Statement Did Not Give Jurisdiction
by Submitting Demurrer without Argument and Going to Trial.
The contestee of an election did not waive the objection taken by her demurrer that the statement did
not give the court jurisdiction in submitting it without argument, and by filing her answer, and in going to
trial on the issues made.
4. ElectionsJurisdiction of Contest Could Not Be Conferred by Proof where Statement
Defective in Omitting to Allege Contestant Was an Elector.
Where the district court before which an election was contested by a candidate never acquired any
jurisdiction on account of the statement being defective in not alleging the contestant was an elector of
the county, such jurisdiction could not be conferred by matters of proof, as by evidence of contestant's
declaration of candidacy wherein she declared she was a qualified elector, and which contestee had seen.
5. ElectionsJudgment Entered for Contestee on Reversal where Time for Instituting Contest
Has Expired.
Where the time for instituting election contest has expired when judgment for contestant is reversed on
appeal on account of the trail court's having no jurisdiction for defect in contestant's statement, no
amendment conferring jurisdiction on the court can be allowed on appeal, and judgment must be entered
for contestee.
Appeal from the Seventh Judicial District Court, Mineral County; J. Emmett Walsh, Judge.
Contest of election by Agnes B. Crownover against Rita D. Millar. From judgment for
contestant, and order denying her motion for new trial, contestee appeals. Judgment
reversed, certificate of election issued to contestant annulled, and contestee declared
entitled to hold the office. Petition for rehearing denied.
Mack & Green, for Appellant:
The complaint, affidavit, or statement of contest wholly fails to allege that contestant is a
qualified elector. Such an allegation is necessary to give the court jurisdiction. Const. Nev.,
sec. 3, art. 15, Stats. 1913, p. 31; Rev. Laws, 2766; Stats. 1917, p. 278. Only an elector may
contest an election. Stats. 1917, p. 380. Where the statute permits a contest to be instituted
by electors, the complaint or petition must allege that the contestant is an elector, at the time
the statement is filed. 20 C. J. 226; 8 Stand. Ency. Proc. 68d; 7 Ency. Pl. & Pr., 381b; 15
Cyc. 409; Minor v. Kidder, 43 Cal. 229; Adams v. McCormack, 216 Ill. 76, 74 N.E. 774;
Blanck v. Pausch, 113 Ill. 60; Materson v. Reed, 172 Ill. 37; Pearson v. Alverson, 160, Ala.
265; Gillespie v. Dion, 18 Mont. 183; Edwards v. Knight, 8 Ohio, 375; Dobson v. Bowlby,
78 Neb. 190.
The omission of jurisdictional allegations in election contest statements cannot be
remedied by amendment after the expiration of the time limited by law for commencing the
contest. 20 C. J. 235; 8 Stand. Ency. Proc.
79; 7 Ency. Pl. & Pr. 390; Pearson v. Alverson, supra; 9 R. C. L. 1169; Kindel v. Le Bert, 23
Colo. 385; Ford v. Wright, 13 Minn. 518.
A. Grant Miller, for Respondent:
The fact that respondent in her statement of contest does not set out that she is a qualified
elector is entirely immaterial. Such an allegation is not required, as the contest is by an
opposing candidate, and not by an elector merely. 3 Rev. Laws, secs. 70-72.
Appellant waived any objections to the statement of contest, by submitting her demurrer
without argument, making answer to the statement, appearing personally and by counsel, and
fully submitting herself to the jurisdiction of the court.
The name of contestant having been regularly certified as candidate, having been regularly
placed on the ballot for the general election, and she having been regularly voted for at said
election, it is now too late to raise the objections stated. The law presumes that she was
regularly upon the general election ballot; and having been declared the choice of the people,
the law will not disturb the result. Territory, ex rel. Willis, v. Janealli, 7 Ann. Cas. 837;
Dithmar v. Bunnell, 2 Ann. Cas. 560.
The provisions of the primary election law are mandatory before, but merely directory
after, election. Stackpole v. Hallahan, 28 L. R. A. 502; Simpson v. Osborn, 52 Kan. 328;
State v. Benton, 13 Mont. 306; Allen v. Glynn, 15 L. R. A. 743; Bowers v. Smith, 16 L. R. A.
754; State v. Saxon, 18 L. R. A. 721.
The statute does not say that elections shall be void because of incorrect nomination
papers. Having neglected to avail himself of the opportunity afforded by the election law to
have the matters complained of corrected before election, contestor cannot be heard to urge
them now, when to uphold them would result in the overthrow of the expressed will of a
majority of the legal voters of the county."
the overthrow of the expressed will of a majority of the legal voters of the county. Lewis v.
Boynton, 55 Pac. 732; 9 R. C. L. secs. 161, 162, pp. 1172-1175.
Agnes B. Crownover, the contestant, and Rita D. Millar, the contestee, were opposing
candidates for the office of county recorder and ex officio auditor of Mineral County, State of
Nevada, at the general election held in November, 1920. At said election contestee, by the
count of the ballots by the board of election in said Mineral County, defeated contestant by
three votes.
Thereafter and within the time allowed by statute contestant instituted this contest. A
hearing of the contest in the court below resulted in favor of contestant, Agnes B. Crownover.
The trial court found that contestant received as candidate for said office 306 legal votes, and
that her opponent, Rita D. Millar, received 304 legal votes. Judgment was accordingly entered
that Agnes B. Crownover is the duly and regularly elected county recorder and ex officio
auditor of said county, and a certificate of election issued to her for said office. From said
judgment and order denying her motion for a new trial, contestee appeals.
We are concerned at the outset with the question raised by the demurrer to the statement
by which contestant sets forth her cause of contest.
The statement was demurred to on several grounds, one of which is that it appears
therefrom that the court had no jurisdiction of the subject-matter of the controversy.
1. The demurrer is well taken on this ground and should have been sustained. The court
was without authority to hear the cause under the statutes permitting such contests. Section 68
of an act relating to elections, approved March 24, 1917 (Stats. 1917, c. 197), provides in
part:
Any elector of the proper county may contest the right of any person declared duly
elected to an office exercised in and for such county.
right of any person declared duly elected to an office exercised in and for such county. * * *
And section 70 of this act provides:
When any elector shall choose to contest the right of any person declared duly elected to
such office he shall, within forty days thereafter, file with the clerk of the district court a
written statement, setting forth specifically: FirstThe name of the party contesting such
election, and that he is a qualified elector of the district, county, or precinct (as the case may
be) in which such an election is held. SecondThe name of the person whose right to the
office is contested. ThirdThe office. FourthThe particular cause or causes of such
contest. Said statement shall be verified by the affidavit of the contesting party, that the
matters and things therein contained are true to the best of his knowledge and belief.
2. Statutory proceedings regarding election contests such as are provided for in the
foregoing sections are special and summary in their nature, and generally a strict observance
of the statute so far as regards the steps necessary to give jurisdiction is required, and the
jurisdictional facts must appear on the face of the proceedings. 9 R. C. L. 1157. It will be
observed that these sections confine the authority to institute proceedings to contest an
election to those who are electors. It is nowhere alleged in the statement that the contestant is
a qualified elector of Mineral County, in conformity with the requirement in said section 70;
and the failure to allege this statutory essential is, under well-settled principles of law, fatal to
the jurisdiction of the court. The case of Adams v. McCormick, 216 Ill. 76, 74 N. E. 774, is
directly in point. In this case a petition was filed by appellant to contest the election of the
appellee to the office of circuit clerk. A general demurrer to the petition was sustained by the
trial court. The appellate court said:
The right to contest an election is created and wholly controlled by statute.
wholly controlled by statute. Section 112 of chapter 46 [Hurd's Rev. St. 1899], entitled
Elections,' authorizes any one who is an elector in a county to contest the election of a circuit
clerk in and for such county. The right to institute such a contest is confined exclusively to an
elector of the county. [Citing former decisions of the same jurisdiction.] The petition filed by
the appellant in the case at bar did not allege that the petitioner was an elector of Shelby
County. The petition was therefore fatally defective, and the demurrer thereto was properly
sustained.
In Gillespie v. Dion, 18 Mont. 183, 44 Pac. 954, 33 L. R. A. 703, the same view is taken.
The statute under which the contest was instituted in that case provided, inter alia, that
All contests of county and township officers shall be tried in the proper county, and when
an elector shall wish to contest such election he shall file with the clerk of the board of county
commissioners, within ten days after such person shall have been declared elected, a
statement in writing, etc.
The statement filed within the statutory time by the contestant, Gillespie, to contest the
election of the contestee, Dion, did not contain an averment that he was an elector. The
appellant moved to quash the statement, alleging, as one of the grounds of the motion, that
the statement did not show that Gillespie was an elector of the county in which he was
elected. Subsequently, and after the time limited by the statute for filing a contest had
expired, contestant filed an amended notice and grounds of contest setting forth, among other
things, that he was at all times mentioned in the notice an elector citizen and resident of the
county. On the trial of the case the lower court found that neither contestant nor contestee had
a legal majority, and annulled the certificate issued to the latter.
Concerning the persons authorized by the statute to invoke its aid, the purpose of confining
the right to contest an election to an elector, and the legal effect of a failure to allege that the
proceeding is instituted by an elector, the supreme court said:
failure to allege that the proceeding is instituted by an elector, the supreme court said:
We think it plain that no one but an elector can invoke the aid of the statute cited; and,
when the statute is so invoked, the party seeking its benefit must bring himself within its
spirit and its letter. The law says an elector may contest an election for county and township
offices. This excludes all others (except, perhaps, by appropriate proceedings in quo
warranto) not electors. * * * It was the letter and policy of the law that, if the will of the
people had not been correctly pronounced, if persons declared elected had not been in fact,
electors might contest by simply following the provisions of the statute; but, on the other
hand, to avoid vexatious intermeddling by those not interested in the political affairs of the
county, the statute permits such contests to be instituted only by those qualified to vote
themselves, and does not extend the right to any others. The persons instituting such a
statutory a contest must therefore make it affirmatively appear by the statement that he is an
elector, and thus entitled to institute the proceedings to give the court jurisdiction. (The
italics are ours.)
Upon the point under discussion the court, in Gillespie v. Dion, supra, cites and discusses
Edwards v. Knight, 8 Ohio, 375. The court says:
In Edwards v. Knight, 8 Ohio, 375, Edwards produced in court a copy of a notice duly
served upon Knight that the election of Knight as prosecuting attorney would be contested by
Edwards. Pursuant to statute, the contest was docketed, when Knight moved to quash the
proceedings, assigning as cause the lack of jurisdiction in the court, and that it did not appear
from the notice that Edwards was an elector or candidate. The court of common pleas
quashed the proceedings. The supreme court said: The third objection, that Edwards shows
no right as candidate or elector to contest the seat, seems to us well taken. The candidate is
not presumed to know all the electors in his district, and he is bound to respond to none
except those who show in the notice the right to question which forms the basis of the
proceeding.
and he is bound to respond to none except those who show in the notice the right to question
which forms the basis of the proceeding. The contestor offers proof that he was an elector, but
we think the right should appear on the record. This opinion is in analogy with the settled
course of decisions in this court under the bastardy act, requiring the facts that the mother is
an unmarried woman, and resident in Ohio, to be set forth in the complaint.'
The Ohio statute permitted any candidate or elector to contest elections.
In McCrary on Elections (3d Ed.) par. 399, citing the Ohio case, the author says:
Where the statute provides that the election of a public officer may be contested by any
candidate or elector,' the person instituting such contest must aver that he is an elector or that
he was a candidate for the office in question. This must appear on the face of the record, and
it is not enough that the contestant offer proof that he is an elector. The incumbent is not
bound to answer or take notice of a complaint which does not contain this averment.
In Pearson v. Alverson, 160 Ala. 265, 49 South. 756, it was held that a petition to contest
an election which failed to allege that petitioner was a qualified voter when the election was
held was fatally defective.
The following statement of the rule is made in 20 Corpus Juris, 226:
The petition or notice must show that the contestant has such an interest in the election as
will entitle him to maintain the contest under the statutes authorizing it. Thus, when the
statutes permit a contest to be instituted by electors, the complaint or petition must allege that
the contestant is an elector at the time the statement is filed; and under some statutes it must
be alleged that he was so at the time the election was held. A mere allegation that he was a
candidate for the office has been held not sufficient.
See authorities cited to support the text.
When the statute permits a contest to be instituted by an elector only, the omission of a
contestant to show by positive averment on the face of his pleading that he is an elector is
fatal. 15 Cyc. 409.
Counsel for contestant does not call our attention to any case holding to a different rule
than that recognized by the foregoing authorities, but he contends that, by virtue of section 72
of the act relating to elections, the failure to allege that contestant is a qualified elector does
not render the statement fatally defective. We do not agree with the contention. Section 72
reads:
No statement of the cause of contest shall be rejected, nor the proceedings therein
dismissed, by any court before which such contest may be brought for trial, for want of form,
if the particular cause or causes of contest shall be alleged with such certainty as will
sufficiently advise the defendant of the particular proceedings or causes for which such
election is contested.
As plainly prescribed, this provision is intended to cure defects of form, when the
statement is otherwise sufficient to apprise the defendant of the grounds of the contest. It is
clear that it was never designed to remedy such a substantial defect as an omission to allege
that the contestant is one of the class authorized by statute to contest an election. Such an
averment in a statement is, as we believe, essential to give the court jurisdiction to hear and
determine the issue, and cannot therefore be regarded as matter relating to the form of the
statement. Section 72 was designed to remedy immaterial defects.
What we have said also disposes of the contention that the statement is sufficient because
it shows that the contest was instituted by the opposing candidate for the office. Section 70
does not, as did the statute in Ohio when the case of Edwards v. Knight, supra, cited by Mr.
McCrary in his work on Elections, was decided, provide that a contest may be instituted by
any elector or candidate, but confines the authority solely to an elector. Consequently the
averment in the statement that contestant was a regularly nominated candidate does not
satisfy the statute.
that contestant was a regularly nominated candidate does not satisfy the statute.
3. There is no merit in the contention that contestee waived the objection taken by
demurrer in submitting it without argument, and by filing her answer, and in going to trial
upon the issues made. If no demurrer had been interposed and the objection had not been
taken by answer, contestee could not be held to have waived the objection that the statement
did not give the court jurisdiction. The objection maybe raised at any time.
4. Contestant's declaration of candidacy sworn to by her and wherein she declared that she
was a qualified electro of the election precinct in which she resided was introduced in
evidence. Contestee was a witness, and testified that she went to the clerk's office after the
declaration was filed and looked over it. Upon these facts it is urged that it was established by
evidence that contestant was a qualified elector, that contestee knew it to be a fact, and that
the omission of the averment from the statement is thus obviated. This is an untenable
position. As the court never acquired any jurisdiction by reason of the defectiveness of the
statement, it could not be conferred by any matters of proof. It was necessary not only to
prove that contestant was a qualified elector of Mineral County, but to allege it as well.
5. For the reasons given, the judgment must be reversed. The time for instituting a contest
in this case has expired, and, owing to the special summary nature of the statutory procedure
governing election contests, no amendment conferring jurisdiction on the court can now be
allowed. Consequently judgment must be entered in favor of contestee. The allowance of an
amendment of this character after the time has expired in which a contest may be instituted
would be obviously against the policy of the statute. It is plainly the policy of the law that
such contests should be instituted and disposed of speedily so that the public interests may
not suffer thereby, and that no considerable portion of a term of a contested office should
expire before a final determination of the contest.
a contested office should expire before a final determination of the contest.
In securing a prompt settlement of an election contest there is a strong reason for
requiring amendments to the pleadings to be made instanter. Amendments so radical as
virtually to initiate a contest of election cannot be made to a statement which really specified
no ground at all, or failed to aver the contestant's qualifications, after the expiration of the
time allowed by statute for the commencement of the proceedings. 9 R. C. L. 1169, 1170.
(The italics are ours.)
In Pearson v. Alverson, supra, the court held that after the time allowed for the
commencing of an election contest has expired the petition cannot be amended as to any of
the statutory requirements. The court in passing upon this question said:
Election contests are special statutory proceedings, and, according to the best authorities,
which have been followed by our own court, are to be strictly construed as to those provisions
for inaugurating the contest, and which are necessary to jurisdiction. A short time limit is
fixed, because it is important that such matters should be determined as speedily as possible
for the public good. It is accordingly held that, if the petition is defective as to any of the
statutory requirements, it cannot be amended after the expiration of the time limited for
commencing the contest. To construe the law otherwise would render the time limit of the
statute ineffective. * * * The first subdivision of section 460, Code 1907, requires that the
petition or statement in writing' shall state that the party who files it was a qualified voter,
when the election was held.' The petition or statement in this case does not contain this
allegation, and the motion to amend in that particular was not made until long after the time
limit had expired. The statutes authorizing amendments to pleadings, in ordinary suits,
cannot be applied to enlarge the time so expressly limited.'
In Gillespie v. Dion, supra, the contestant omitted to aver in his statement that he was an
elector.
aver in his statement that he was an elector. The lower court after the time for filing
statements had expired permitted him to amend in this respect. The supreme court was of the
opinion that the amendment was improperly allowed, and in discussing the question said:
This omission to aver on the face of the record that contestant was or is an elector
(whether in the body of the statement or in the affidavit is, perhaps, immaterial) is therefore
fatal; and, the court never having acquired jurisdiction by the first purported statement filed
within ten days after Dion was declared elected, no amendment offered or made after the ten
days had elapsed could give it power to act. The paper filed was not one to which Dion was
obliged to give attention at all, and, the statute requiring the statement to be filed within ten
days after the date of the declaration of the election of Dion being peremptory, the time
cannot be enlarged by the court.
After further discussion of this question of jurisdiction, the court concludes as follows:
These views upon the question of jurisdiction lead to the conclusion that the court ought
to have sustained Dion's first motion to quash the proceedings for lack of jurisdiction, and
that, jurisdiction not having been obtained by a statement filed within the time limited by law
for instituting the contest, no amendment in this respect made after the lapse of the ten days
could avail the contestant.
See, also, 7 Ency. Pl. & Pr. 390; 20 C. J. 235, 236.
The foregoing authorities are in accord with the well-settled state of the law that a
statement or other paper by which an election contest is inaugurated which fails to give the
court jurisdiction cannot be amended so as to confer jurisdiction after the time prescribed by
statute for instituting a contest has expired.
The judgment of the lower court is reversed, the certificate of election issued to contestant,
Agnes B. Crownover, for the office of county recorder and ex officio auditor of said Mineral
County, annulled, and the contestee, Rita D.
officio auditor of said Mineral County, annulled, and the contestee, Rita D. Millar, declared
to be entitled to hold said office.
Per Curiam:
Rehearing denied.
____________
45 Nev. 93, 93 (1921) Ex Parte Converse
[No. 2509]
In the Matter of the Application of E. R. CON-
VERSE for a Writ of Habeas Corpus.
[198 Pac. 229]
1. CourtsJuvenile Delinquency Act Held Valid, and Not to Have Created a Court of Limited
Special Jurisdiction.
Rev. Laws, 757, making it a crime to contribute to the dependency or delinquency of a child, and
providing that the prosecution therefor shall be had in the district court, but in a juvenile department
thereof, is not void for creating a court of limited and special jurisdiction, since it does no such thing.
2. FinesWhere Party Was Given Both Jail Sentence and Fine for Contributing to Juvenile
Delinquency, a Judgment for Confinement until Payment of Fine Was Proper.
Rev. Laws, 7266, provides for the commitment of defendant, convicted of crime, to the custody of the
proper officer, and for his detention until the judgment is complied with, and section 7257 provides that,
if the judgment is that defendant pay a fine, it may also direct that he be imprisoned until the fine be
satisfied, so that on a conviction under Rev. Laws, 757, for contributing to juvenile delinquency where
defendant was given the maximum jail sentence and maximum fine, it was proper for the judgment to
provide that the defendant be confined in jail until the fine be paid, in accordance with the provisions of
section 7257.
3. FinesStatute Providing for Commitment until Payment of Fine Held Not Unconstitutional.
Rev. Laws, 7257, providing that a judgment of conviction, in which defendant is to pay a fine, may
also direct that he be imprisoned until the fine is satisfied, and specifying the extent of the imprisonment,
which shall not exceed one day for every $2 of the fine, or in that proportion, is not in violation of the
spirit or letter of the constitution, but is a statute enacted in the territorial days, and specifically continued
in force by the constitution itself.
Original Proceeding in habeas corpus by E. R.
Converse after conviction on charge of contributing to juvenile delinquency. Proceeding
dismissed, and petitioner remanded to the custody of the sheriff.
Warren & Hawkins, for Petitioner:
The juvenile court was without jurisdiction or authority to impose the further penalty of
committing defendant to jail to serve out his fine, and since by the application and the return
of the sheriff it stands admitted that petitioner has already fully served his term of
imprisonment, he now is illegally deprived of his liberty by the respondent, and should be
ordered released from custody.
The act creating a juvenile department of the district court created a court of limited and
special jurisdiction as fully as though it had given it a name distinct and separate from the
district court, and its authority, jurisdiction and powers are limited by the law creating it. It
cannot, therefore, look to the general laws for the support of its judgments. Rev. Laws,
728-764.
There is no statute expressly providing for the imposition of a jail sentence and a fine, and
confinement in jail until the fine has been paid or served out at some specified rate. A court
cannot under the guise of a fine and the collection thereof extend the term of imprisonment
to several times the maximum term provided by statute. In Re Rosenheim, 83 Cal. 388;
People v. Brown, 113 Cal. 35; Ex Parte Wadleigh, 82 Cal. 518; Ex Parte Erdmann, 88 Cal.
579; Ex Parte Green, 94 Cal. 387; Ex Parte Soto, 88 Cal. 624; People v. Kerr, 114 Pac. 584.
It was not contemplated that, when a punishment by imprisonment was imposed, thereafter
another should be added because the fine was not paid. * * * In such case the state must resort
to its execution for the collection of its fine, as in a case at law. Roberts v. Howells, 62 Pac.
892; Reese v. Olsen, 139 Pac. 941.
L. G. Wilson, District Attorney, for Respondent.
1. This is an original proceeding in habeas corpus. Petitioner was convicted upon a charge
of contributing to juvenile delinquency. He was sentenced to imprisonment for six months
and to pay a fine of $500, and for failure to pay such fine to serve a term in the county jail
equal to one day for each $2 thereof. Pursuant to such sentence, he was committed to the
county jail. The section under which petitioner was prosecuted and convicted is 757 of the
Revised Laws of 1912, which reads:
Any person who shall by an act cause, encourage, or contribute to the dependency or
delinquency of a child, as these terms with reference to children are defined by the statutes of
this state, or who shall for any cause be responsible therefor, shall be guilty of a
misdemeanor, and upon trial and conviction thereof, shall be fined in a sum not to exceed five
hundred dollars or imprisoned in the county jail for a period not exceeding six months, or by
both such fine and imprisonment. * * * All offenses under the provisions of this act shall be
prosecuted in the juvenile department of the district court of the county in which said offense
may be committed.
It is first contended that the act under which the prosecution was initiated and the
conviction obtained is void, since it created a court of limited and special jurisdiction. There
is nothing in this contention. The act did not create, nor undertake to create, a court at all. It
simply provides that the prosecution shall be had in the district court, but in the juvenile
department thereof. The act simply sought to keep the prosecutions thereunder separate and
distinct from ordinary cases, as in probate proceedings (Lucich v. Medin, 3 Nev. 93, 93 Am.
Dec. 376), and not to create a new court.
2. It is also contended that the court had no authority to order that for failure to pay the
fine imposed the petitioner be confined in the county jail until the same is served out at the
rate of one day for each $2 thereof.
is served out at the rate of one day for each $2 thereof. Our attention is directed to certain
statutory provisions which, it is said, are the only ones which pertain to this matter, and it is
urged that they do not contemplate a jail sentence and a fine, and for failure to pay the same
that it shall be served out in jail. The sections alluded to read:
A judgment that the defendant pay a fine may also direct that he be imprisoned until the
fine be satisfied, specifying the extent of the imprisonment, which shall not exceed one day
for every two dollars of the fine, or in that proportion. Rev. Laws, 7257.
If the judgment be imprisonment, or a fine and imprisonment until it is satisfied, the
defendant must forthwith be committed to the custody of the proper officer, and by him
detained until the judgment be complied with. Rev. Laws, 7266.
It was by virtue of section 7257 that the court ordered the jail sentence in case of
petitioner's failure to pay the fine. The gist of counsel's contention is summed up in the
following language contained in their brief:
Now, if the court had only fined Converse, it might be urged that, under the provisions of
section 7257, above quoted, it also could have directed that he be imprisoned until the fine be
satisfied. But nowhere is there authority for the court to inflict three penalties upon a
defendant, as was done with Converse, namely, imprisonment to the limit, fine to the limit,
and commitment in case the fine is not paid.
Our attention is directed to the ruling of the courts of California and Utah, in support of the
contention now made. Ex Parte Rosenheim, 83 Cal. 388, 23 Pac. 372; Roberts v. Howells, 22
Utah, 389, 62 Pac. 892. The California and Utah authorities are not based upon the theory that
three penalties were inflicted in the respective cases, but rather, as we understand them, that
the statutes under which the penalties were inflicted contemplated that under no theory can a
term in jail be inflicted in excess of that designated by statute for which a jail sentence as
such may be imposed.
which a jail sentence as such may be imposed. In other words, if the sentence is for the
maximum penalty which may be imposed as a jail sentence, and in addition thereto a fine is
imposed, it is held that the payment of the fine cannot be enforced by an order that the guilty
party be sentenced to a term in jail, in that it would result in the infliction of a double jail
sentence, when only one is permissible. We do not take that view of it. Nor do we take our
statute from Utah or California with the interpretation given it by the decisions of those
states, since it was enacted by our territorial legislature in 1861, long prior to said decisions,
and has ever since remained unchanged upon our statute books.
Our statute contemplates only one jail sentence, or a fine, or both, in the discretion of the
court, and authorizes the enforcement of the payment of the fine by confinement in jail at the
rate of one day for each $2 thereof. At common law the payment of a fine was enforced by
jail sentence (8 R. C. L. 270; 16 C. J. 1367), and it is evident that our legislature, in adopting
the statute providing for a jail sentence for failure to pay a fine, merely intended that the
common-law rule should be declared.
3. There is nothing in our constitution prohibiting the enactment of such a statute. In fact,
this statute was enacted in territorial days, and specifically continued in force by the
constitution itself; hence it cannot be said that it violates the spirit or letter of the constitution.
The interpretation which we put upon the statute is nothing more than that long put upon it by
the courts and officers of this state. We might with peculiar application quote the language of
the Supreme Court of the United States:
To this objection, which is of recent date, it is sufficient to observe, that practice and
acquiescence under it for a period of several years, commencing with the organization of the
judicial system, affords an irresistible answer, and has indeed fixed the construction. It is a
contemporary interpretation of the most forcible nature.
is a contemporary interpretation of the most forcible nature. This practical exposition is too
strong and obstinate to be shaken or controlled. * * * The question is at rest, and ought not
now to be disturbed. Stuart v. Laird, 1 Cranch. 308, 2 L. Ed. 115.
Corpus Juris lays down the rule as being in line with the views we have indicated. It says:
The practice and authority for directing that one ordered to pay a fine stand committed
until it is paid is now commonly authorized by statute. This is the proper means for the
collection of a fine, and is not regarded as a part of the punishment. 16 C. J., pp. 1367, 1368.
Of the courts which have had occasion to speak on this question, a great majority have
reached the same conclusion that we have; the last to fall in line being that of Idaho. State v.
Goodrich, 196 Pac. 1043. See, also, Ex Parte Londos, 54 Mont. 418, 170 Pac. 1045; State v.
Peterson, 38 Minn. 143, 36 N. W. 443; Ex Parte Dockery, 38 Tex. Cr. R. 293, 42 S. W. 599;
Irvin v. State, 52 Fla. 51, 41 South. 785, 10 Ann. Cas. 1003; Bishop, New Crim. Proc. sec.
1301; In Re Newton, 39 Neb. 757, 58 N. W. 436; In Re Beall, 26 Ohio St. 195; State v.
Merry, 20 N. D. 337, 127 N. W. 83.
For the reasons given, it is ordered that these proceedings be dismissed, and that the
petitioner be remanded to the custody of the sheriff.
____________
45 Nev. 99, 99 (1921) Shute v. Big Meadow Inv. Co.
[No. 2468]
JAMES L. SHUTE, Appellant, v. BIG MEADOW
INVESTMENT COMPANY, Respondent.
[198 Pac. 227]
1. New TrialGranted Only for Cause Good at Common Law or Enumerated in Statute.
If the trial court has inherent power to grant a new trial for causes other than those enumerated in the
statute, it must be for some cause that was good at common law.
2. New TrialGeneral Rule at Common Law.
The general rule at common law was that a new trial would be granted where an injustice had been
done.
3. Appeal and ErrorPresumed that Case Was Free from Error.
On appeal by plaintiff from an order granting a new trial for causes other than those enumerated in the
statute, it must be presumed that the case was free from error, and that the judgment was a just one, where
it does not appear that there was any irregularity or error in the proceedings or trial of the case, or that
any injustice resulted.
4. New TrialMere Loss of Reporter's Notes Not Ground For.
The mere fact that the reporter's notes were lost and a party was deprived of the use and benefit of
the reporter's notes to make up his memorandum of errors was not ground for a new trial, as the errors
may have been few and simple, and such party may have been able to prepare a proper record from other
sources.
Appeal from Sixth Judicial District Court, Pershing County; C. J. McFadden, Judge.
Action by James L. Shute against the Big Meadow Investment Company. From an order
granting a new trial after judgment in his favor, plaintiff appeals. Reversed.
R. M. Hardy and Thomas A. Brandon, for Appellant:
Respondent could have established a substantial record containing all of the objections
made by plaintiff to evidence, with the rulings and exceptions, and other matters of error, if
any, upon which it was desired to rely. The record discloses that there was no attempt to
establish such a record, but that reliance was had solely upon the fact of the destruction of the
stenographic notes, without a showing of any kind that such notes were required on the
motion for a new trial.
such notes were required on the motion for a new trial. It is an unusual practice upon motion
for a new trial to submit a transcript of the stenographer's notes, or even extracts therefrom.
This court must presume that the decision and judgment of the lower court was without
error, unless there is something in the record showing error, or some action by that court
indicating that it believed that it had erred; but the record shows that the only reason for
granting a new trial was the destruction of the stenographic notes. The statutory grounds for a
new trial are exclusive of any other ground or grounds. Scott v. Haines, 4 Nev. 426; Ogle v.
Potter, 62 Pac. 920; Townley v. Adams, 50 Pac. 551.
A mere statement or affidavit showing the destruction of the stenographer's notes, and not
showing anything further, cannot justify the granting of a new trial. 20 Cyc. 874.
M. B. Moore, for Respondent:
The granting of a new trial is a discretionary matter with the court in cases like the present,
and in this case the court exercised a proper discretion.
Proper and sufficient notice was given within the time prescribed by law. This is made a
part of the record on appeal. It cannot be said that the court, in granting a new trial, did not
have in mind errors committed during the course of the trial, or some of the other grounds
included in the notice.
On May 12, 1920, the district court rendered judgment in this case in favor of appellant.
Respondent noticed his intention to move for a new trial, assigning in said notice several
statutory grounds. Thereafter respondent filed a paper indorsed Statement in Lieu of Memo
of Errors containing the following:
Comes now the defendant above named, by its attorneys, and says: That in its notice of
intention to move for a new trial, heretofore filed in said above-entitled action, one of the
grounds named, and upon which defendant chiefly relies, is the ground as stated in
section 5320, R. L. Nevada 1912, to wit: 'Error in law occurring at the trial and excepted
to by the party making the application.' That the records in said case, and particularly the
stenographer's report of the evidence, has [have] all been destroyed, and that therefore
defendant is without any means or information with which to prepare, serve, and file, as
required by law, its memorandum of errors upon which said defendant chiefly relies on its
said 'Notice of Intention to Move for a New Trial.'"
attorneys, and says: That in its notice of intention to move for a new trial, heretofore filed in
said above-entitled action, one of the grounds named, and upon which defendant chiefly
relies, is the ground as stated in section 5320, R. L. Nevada 1912, to wit: Error in law
occurring at the trial and excepted to by the party making the application.' That the records in
said case, and particularly the stenographer's report of the evidence, has [have] all been
destroyed, and that therefore defendant is without any means or information with which to
prepare, serve, and file, as required by law, its memorandum of errors upon which said
defendant chiefly relies on its said Notice of Intention to Move for a New Trial.'
Thereafter, on motion of respondent, the court made the following order, granting a new
trial:
It is hereby ordered that the motion of the defendant heretofore made for a new trial of the
above-entitled action be, and the same is hereby, granted, and that a new trial of the issues in
the above-entitled action be had, on the grounds that the stenographic notes of the official
stenographer who reported the proceedings upon the trial of said action have been destroyed
by fire, and the defendant is therefore deprived of the use and benefit of the same, with which
to prepare, serve, and file its memo of errors herein.
The action of the trial court in awarding a new trial for this cause is assigned as error by
appellant.
In support thereof it is urged: (1) That the reason given by the court for awarding a new
trial is not included in the grounds enumerated in the statute for granting a new trial, and that
such grounds are exclusive; and (2) that no showing whatever is made that a proper record
could not have been made by respondent upon which to base its motion for a new trial,
notwithstanding the loss of the stenographer's notes.
1, 2. The latter contention is well taken, and we therefore conclude that it is not necessary
to determine whether or not the section of the Civil Practice Act prescribing grounds for a
new trial includes all the cases in which a district court may grant a new trial.
prescribing grounds for a new trial includes all the cases in which a district court may grant a
new trial. Assuming, but not deciding, that the statutory enumeration of causes for a new trial
is not exclusive, we are nevertheless of the opinion that the loss of the reporter's notes in the
instant case did not authorize the court to grant a new trial. If a trial court has inherent power
to grant a new trial for causes other than those enumerated in the statute, it must be for some
cause that was good at common law. The general rule at common law was that a new trial
would be granted where an injustice had been done. 12 Ency. Pl. & Pr. 718.
This court in Scott v. Haines, 4 Nev. 426, speaking of the authority of courts to grant a
new trial, said:
Without saying that this section embraces all cases in which a district court may grant a
new trial, it may be safely said that a verdict or other decision cannot be set aside where no
irregularity or error whatever is shown, and the verdict or decision is in accordance with and
justified by the evidence.' The court in such case has no more right to set aside a verdict or
decision than it has to render a judgment without pursuing the forms prescribed by law. Error
in some respects, or injustice in the result, alone authorizes an interference with a judgment or
decree once rendered.
3. It does not appear that there has been any irregularity or error in the proceedings or trial
of this case, or that any injustice has resulted, and, in the absence of any showing to the
contrary, it must be presumed that the case is free from error, and that the judgment is a just
one.
4. It is urged that injustice will result from the loss of the reporter's notes because, by
reason thereof, counsel for respondent is unable to prepare and present to the trial court a
memorandum of errors upon which respondent chiefly relies on its motion for a new trial. But
there has been no showing made to this effect. The errors claimed may have been few and
simple, and the information necessary to the preparation of a proper record for the lower
court and the appeal as well supplied from other sources than the reporter's notes.
record for the lower court and the appeal as well supplied from other sources than the
reporter's notes. The trail judge's recollection of what transpired at the trial as to the
objections made, rulings thereon, and exceptions taken, and the evidence necessary to
properly present the points, or counsel's own recollection or notes, so far as the record
discloses, may have been ample in this respect. It does not appear by affidavit or other
appropriate way that a sufficient record could not have been obtained from these sources. In
fact, counsel for respondent seems to have relied solely upon the point that, because they
were deprived of the use and benefit of the reporter's notes to make up their memorandum of
errors, respondent was entitled to a new trial. This, as appears by the order of the court, was
the sole ground upon which the new trial was granted. The order was not made upon the
ground that the respondent had lost the benefit of his exceptions through the loss of the
stenographer's notes, but upon the ground that it was deprived of the use and benefit of the
same.
The court in its opinion cites 20 R. C. L. 288, where the rule is stated that, it seems to be
well established as a general rule, where a party has lost the benefit of his exceptions from
causes beyond his control, a new trial is properly awarded, although it has been held
otherwise in a few jurisdictions. Conceding this to be the general rule in those states where
the statutory grounds for a new trial are not exclusive, still it does not appear in this case that
the respondent has lost the benefit of his exceptions through the destruction of the reporter's
notes. The most that has been shown is that the notes have been destroyed.
In Richardson v. State, 15 Wyo. 465, 89 Pac. 1027, 12 Ann. Cas. 1048, cited and
discussed by the trial court, in which an order denying a new trial was reversed because a
portion of the evidence, objections, and rulings of the court thereon, and exceptions, together
with the depositions of witnesses read upon the trial, had been lost by the reporter who took
down the shorthand notes of the trial and could not be duplicated, it appears that both
parties agreed that, because of the inability of the plaintiff in error to furnish the
necessary record, a new trial should be granted.
of the trial and could not be duplicated, it appears that both parties agreed that, because of the
inability of the plaintiff in error to furnish the necessary record, a new trial should be granted.
Moreover, a confession of error signed by the attorney-general, prosecuting attorney, and
special attorney who assisted the latter at the trial was filed, wherein manifest error,
prejudicial to the rights of the plaintiff in error, was admitted in the proceedings of the court.
These circumstances, together with the fact that the defendant had been convicted of the
crime of murder and sentenced to death, lead us to regard Richardson v. State as an extreme
case. Neither does it represent the weight of authority on this point. While it has been held in
other jurisdictions that the loss or destruction of the reporter's notes is ground for a new trial,
yet the weight of authority upon the principle involved, in those jurisdictions where the
statutory grounds for a new trial are not exclusive, is to the effect that where a record, papers,
or evidence necessary to a determination of a case have been lost or destroyed without the
possibility of substitution, a new trial will be granted. 20 R. C. L. 288; Bailey v. United
States, 3 Okl. Cr. 175, 104 Pac. 917, 25 L. R. A. (N. S.) 860.
As stated in the note to the last citation:
This rule presupposes that there is no means available to appellant of restoring the record.
Where such means are available, he is, of course, bound to avail himself of them.
Even though we grant, for the purposes of this decision, that the trial court was not limited
in its jurisdiction by the grounds enumerated in the statute it was without authority to order
anew trial upon the mere fact of the destruction of the reporter's notes.
The order granting a new trial is reversed.
____________
45 Nev. 105, 105 (1921) Walker v. Walker
[No. 2482]
EMILY HARTLEY WALKER, Respondent, v.
ORLANDO F. WALKER, Appellant.
[198 Pac. 433]
1. DivorceResidence for Sole Purpose of Obtaining Divorce Insufficient, Unless Bona-Fide
Intention of Remaining Appears.
Residence in the state for statutory period of six months solely for the purpose of obtaining a divorce
is not sufficient to give jurisdiction, but a bona-fide residence with the intention of remaining must
appear, and plaintiffs must bring themselves clearly and aff0irmatively within the jurisdiction of the
court.
2. DivorceIf Intention Is to Remain in State Permanently, Mere Fact of Going There to
Obtain Divorce Will Not Prevent Decree.
The mere fact that the main purpose of one in going to another state is to obtain a divorce will not
prevent a divorce there if it is his or her purpose to remain permanently.
3. DivorcePlaintiff's Residence A Question of Fact for Trial Court.
The question of plaintiff's residence in a divorce action is one of fact to be determined by the trial
court.
4. DivorceCourt's Findings as to Residence Will Not Be Disturbed on Appeal where
Supported.
Where the bona fides of plaintiff's residence in a divorce suit is attacked by a spouse charged with
cruelty, a personal element is injected into the issue of residence, and where the trial court finds upon a
substantial conflict in the evidence in favor of plaintiff, and assumes jurisdiction, its finding imports that
the residence was in good faith and such finding when supported by evidence cannot be disturbed on
appeal.
5. DivorceNo Law Prevents Change of Domicile to Obtain Divorce.
There is no rule of law which prevents one from changing his domicile in order to facilitate his
obtaining a divorce, or to secure other advantages he may think the law of the new domicile may afford
him, but the change must be a bona-fide one to be effective.
Appeal from the Tenth Judicial District Court, Clark County; Wm. E. Orr, Judge.
Suit by Emily Hartley Walker against Orlando F. Walker. From a decree for complainant,
defendant appeals. Affirmed.
Breeze & Hinman, for Appellant:
The trial court was without jurisdiction, for the reason that respondent had not been a
bona-fide resident at the time of the commencement of the action. The courts have only such
jurisdiction as has been conferred by the legislature. The law favors marriage as the most
important of the domestic relations, but allows its dissolution only under such restrictions as
the legislature may deem best for the public welfare. Worthington v. District Court, 37 Nev.
212.
Respondent was not actually, physically and corporeally present in the county during the
required period of six months. Rev. Laws, 5838; Fleming v. Fleming, 36 Nev. 135.
The intent of respondent to commence her residence was not formed within the time required,
if formed at all. Legal residence consists of fact and intention combined; both must concur;
and when one's legal residence is fixed, it requires both fact and intention to change it.
Fleming v. Fleming, supra; Presson v. Presson, 38 Nev. 203.
Respondent came to Nevada for the sole purpose of obtaining a divorce. Where there is a
substantial conflict of the evidence, the appellate court will not disturb the decision of the
court below, but if there be no substantial conflict in the evidence upon any material point,
and the verdict or decision be against such evidence, the judgment based thereon will be
reversed, and a new trial directed. 2 Hayne, N. T. & A. 1623. However, if there be no
substantial evidence upon the side of the verdict, it is the undoubted duty of the appellate
court to set it aside. Ophir M. Co. v. Carpenter, 4 Nev. 534; Dalton v. Dalton, 14 Nev. 419;
Watt v. R. R. Co., 23 Nev. 154; Moore v. Rochester W. M. Co., 42 Nev.164.
A. W. Ham and Stevens & Henderson, for Respondent:
The question of the residence of the plaintiff was one of fact to be determined by the trial
court. Blakeslee v. Blakeslee, 40 Nev. 235
Blakeslee, 40 Nev. 235; Fleming v. Fleming, 36 Nev. 135; Merritt v. Merritt, 160 Pac. 22;
Presson v. Presson, 38 Nev. 203; Aspinwall v. Aspinwall, 40 Nev. 55.
The decision of the district court cannot be disturbed. There was a substantial conflict in the
evidence as to whether or not respondent came to Nevada for the purpose of obtaining a
divorce. Where there is a substantial conflict of the evidence, the appellate court will not
disturb the decision of the court below. 2 Hayne, N. T. & A. 288; Lick v. Madden, 36 Cal.
213; Miller v. Miller, 136 Pac. 15.
It will be presumed by the appellate court that findings of facts by the court below were
correct, if there is any substantial legal evidence upon which it may be seen that the findings
of fact in question, aided by any reasonable inference, could within reason have been based.
3 Cyc. 308.
By the Court, Sanders, C. J.:
This appeal is taken by the husband from a decree of divorce granted his wife upon the
ground of extreme cruelty inflicted upon her during the coverture. We are asked to reverse the
decree upon the grounds: First, that the court was without jurisdiction of the subject-matter of
the action, for the reason that the wife came from her home in Rockford, Ill., to the State of
Nevada for the sole purpose of obtaining a divorce, and with the intention of returning when
she had accomplished her purpose; and, second, that the charges of cruelty are not sustained
by the evidence.
Referring to these questions in their order, and to the parties as they stood in the court
below, it appears that the plaintiff is a woman 58 years of age, of independent means, without
issue of the marriage, whose main purpose in leaving Illinois and establishing a residence in
Nevada was to obtain a divorce. The question for determination is, Has the plaintiff met the
residential qualifications of the Nevada statute? 1, 2.
1, 2. Residence in this state for the statutory period of six months solely for the purpose of
obtaining a divorce is not sufficient to give jurisdiction, but a bona-fide residence with the
intention of remaining must appear. Where residence is made the basis of jurisdiction, parties
who invoke the power of the court to relieve them from the marriage tie must bring
themselves clearly and affirmatively within the jurisdiction of the court. Fleming v. Fleming,
36 Nev. 135, 134 Pac. 445; Presson v. Presson, 38 Nev. 203, 147 Pac. 1081. But the mere
fact that the main purpose of one in going to another state is to obtain a divorce will not
prevent a divorce there if it is his or her purpose to remain permanently. Presson v. Presson,
supra; Andrade v. Andrade, 14 Ariz. 379, 128 Pac. 813; Gildersleeve v. Gildersleeve, 88
Conn. 689, 92 Atl. 684, Ann. Cas. 1916b, 920; Dunham v. Dunham, 162 Ill. 589, 44 N. E.
841, 35 L. R. A. 70; Albee v. Albee, 141 Ill. 550, 31 N.E. 153; Gregory v. Gregory, 76 Me.
535; Hegeman v. Fox, 31 Barb. (N. Y.) 475; In Re Hall, 61, App. Div. 266, 70 N. Y. Supp.
406; Colburn v. Colburn, 70 Mich. 647, 38 N. W. 607; Graham v. Graham, 9 N. D. 88, 81 N.
W. 44; Wallace v. Wallace, 65 N. J. Eq. 359, 54 Atl. 433; Fosdick v. Fosdick, 15 R. I. 130,
23 Atl. 140; 2 Schouler, M. D. & S. (6th ed.) sec. 1506, 14 Cyc. 587; Minor's Conflict of
Laws, sec. 90, p. 199, also section 50.
The result of these and other authorities is that, where the animus really exists to remain
permanently, the fact that the motive of the removal is to procure a divorce is immaterial.
3, 4. The question of plaintiff's residence in a divorce action (necessary to be pleaded and
proved) is one of fact to be determined by the trial court. Blakeslee v. Blakeslee, 41 Nev. 243,
168 Pac. 950. We are also of the opinion that where the bona fides of plaintiff's residence is
attacked by a spouse charged with cruelty, a personal element is injected into the issue of
residence, and where the trial court finds upon a substantial conflict in the evidence in favor
of the plaintiff and assumes jurisdiction, and refuses to find that plaintiff's residence was a
fraud upon its jurisdiction, its finding imports that the residence was in good faith, and
such finding, when supported by the testimony on behalf of the plaintiff, cannot be
disturbed on appeal.
jurisdiction, and refuses to find that plaintiff's residence was a fraud upon its jurisdiction, its
finding imports that the residence was in good faith, and such finding, when supported by the
testimony on behalf of the plaintiff, cannot be disturbed on appeal. Miller v. Miller, 37 Nev.
257, 142 Pac. 218; Gildersleeve v. Gildersleeve, supra.
The plaintiff in this action was subjected, as a witness in her own behalf, to a most able
and searching cross-examination to lay bare before the court her real animus in coming to
Nevada. It covered every period of her marital life, her every moment before leaving the State
of Illinois, and her acts and conduct and mode of living in Nevada from the time she arrived
up to the bringing of her action in the district court of Clark County, where the cause was
heard and determined. The credibility of her story was a matter for the trial judge. It seems to
have carried conviction to the mind of the court as to its verity, and satisfied the court that
plaintiff's residence in Nevada was in good faith and not merely colorable. The court was
entitled to believe it, and we cannot properly disturb the conclusion reached. We have
carefully considered, in connection with all the testimony, the point raised that plaintiff's
residence could not be bona fide, for the reason that the unmistakable indications from
surrounding circumstances are that plaintiff was moved to leave Illinois because she was
impatient of delay in throwing off and eager to be rid of her marriage ties, and that she could
more readily and speedily obtain a divorce under the six-month residence clause in the
Nevada law. These considerations are, indeed, pertinent, and cast a suspicion, and quite a
strong suspicion, upon the credibility of plaintiff's testimony, but we assume that they were
weighed by the trial court in connection with all the testimony bearing upon the point.
5. There is no rule of law which prevents one from changing his domicile in order to
facilitate his obtaining a divorce or to secure other advantages he may think that the laws of
the new domicile may afford him.
that the laws of the new domicile may afford him. He is free to change at his pleasure, but the
change must be a bona-fide one to be effective. If actual and bona fide, the change will be
accomplished. Gildersleeve v. Gildersleeve, supra, and other cases hereinabove cited.
As to the second propositionthat the charges of cruelty are not sustained by the
proofwe are of the opinion that the trial court's full and specific findings thereon are
correct.
The judgment is affirmed.
____________
45 Nev. 110, 110 (1921) Donoghue v. Tonopah Oriental Mining Co.
[No. 2467]
DAVE DONOGHUE, M. J. McVEIGH, and JAMES McGUIRE, Respondents, v.
TONOPAH ORIENTAL MINING COMPANY (a Corporation), Appellant.
[198 Pac. 553]
1. Mines and MineralsNoncompliance with Resolution of Congress as to Filing Notices to
Hold Claims without Work during War Held Not to Affect Rights.
Joint resolution of congress suspending requirements of annual assessment work on mining locations
during the years 1917 and 1918, though mandatory in terms, does not cut off the rights of defendants,
locators of mining claims, as against plaintiffs, subsequent locators overlapping defendants' prior location,
where defendants' failure to file notices of desire to hold their claims in the proper county was not pursuant
to any attempted fraud or deceit, where they had no intention, shown by competent, clear, and satisfying
proof, of abandoning their claims, where there was good faith and an open, honest effort to comply by
filing notices in the appropriate county, and where the neglect or omission to file the notices was that of
others and not attributable to the claim owners, nonresidents of the district involved.
2. StatutesResolution of Congress Susceptible of Two Interpretations Will Be Given that
Best Comporting with Reason.
Joint resolution of Congress suspending the requirements of annual assessment work on mining claims
during the years 1917 and 1918, being susceptible of two interpretations, will be given that which best
comports with reason and justice, particularly in an equitable action to quiet title involving questions
peculiarly equitable in their nature.
3. EquityEquity Neither Enforces Forfeitures nor Aids in Assertion of Legal Right Contrary
to Justice.
Equity does not enforce forfeitures nor extend its aid in the assertion of a mere legal right contrary to the
clear equity and justice of the case.
Appeal from the Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.
Action by Dave Donoghue and others against the Tonopah Oriental Mining Company, a
corporation. From judgment for plaintiffs, defendant appeals. Reversed, with directions.
Petition for rehearing denied. (Coleman, J., dissenting.)
Hugh Henry Brown and Walter Rowson, for Appellant:
The act of Congress of October 5, 1917, is a remedial act. Statutes tending to effect an
object of great public utility are remedial. 1 Fed. Stats. Ann. (2d ed.), p. 119. A remedial
statute must be liberally construed. Courts are justified in giving weight to considerations of
hardship or injustice that may arise from a particular construction, if a different construction
can be given which is consonant with acknowledged principles of justice. 1 Fed. Stats. Ann.
(2d ed.) par.74, p. 101; Becker v. Brown, 91 N. W. 178; Traudt v. Hegerman, 60 N. E. 1011;
U. S. v. Heth, 2 L. Ed. 479; McCullough v. Murphy, 125 Fed. 149.
There is no forfeiture clause in the act. Forfeitures are odious to the mining law. 2 Lindley
on Mines, sec. 624. Where either of two constructions can be given a statute, and one of them
involves a forfeiture, the other is to be preferred. 1 Fed. Stats. Ann. (2d ed.) par. 68, p. 92;
Farmers Bank v. Dearing, 91 U. S. 35; 27 Cyc. 600; Emerson v. McWhirter, 133 Cal. 510;
Argentine M. Co. v. Benedict, 55 Pac. 559; Belcher Con. G. M. Co. v. Defarrari, 62 Cal. 160;
Temescal Oil M. Co. v. Salcido, 137 Cal. 211. The courts will always give such a
construction to statutes providing for forfeitures as will be consistent with justice and the
dictates of natural reason, although contrary to the strict letter of the law."
reason, although contrary to the strict letter of the law. 19 Cyc. 1358.
W. R. Gibson, for Respondents:
Congress, in its legislative capacity, in enacting the law under consideration, adopted the
policy of notice, or statutory requirement of notice, to operate by recordation as constructive
notice, and must have intended that the rule in relation to constructive notice by record would
be adhered to in the construction of the statute. It was the intention to require of claimants
that they comply strictly with the law if they would hold their property against forfeiture
under the general mining laws. Such was clearly the purpose of Congress, which had the
authority to make any change it saw fit in the law. It is not within the province of the court to
give it such construction as will render it nugatory. Congress did not repeal the law requiring
assessment work, but provided a means to establish a record notice to all persons of an
intention to hold the mining claims, and limited the benefits of the act to every claimant of a
mining claim who desires to claim the benefits of the act.
It is a rule universally applied that a deed or other instrument affecting the title to land
must be recorded in the county where the land lies, to be effective as notice. 23 R. C. L. 180.
Where constructive notice is provided by statute, it has the same effect as actual notice, and
binds equally. 20 R. C. L. 342. Where a specified mode of giving notice is prescribed by
statute, that method is exclusive. Idem, 343.
The complaint in this action is the short form of a complaint to quiet title to real estate.
This action, however, was brought to determine an adverse claim to a certain piece of mining
ground situate in the Tonopah mining district, Nye County, Nevada, segregated from the
public domain by conflicting lode mining locations {that of the plaintiffs overlapping the
prior location of the defendant).
from the public domain by conflicting lode mining locations (that of the plaintiffs
overlapping the prior location of the defendant).
The case differs from ordinary actions of this character in that the record shows, and it is
conceded to be the fact, that plaintiffs base their right to locate the ground, primarily, upon
the assumption that the failure and neglect of defendant's predecessors in interest to comply
literally with the proviso contained in a joint resolution of Congress caused the ground to
revert to the public domain and rendered it subject to relocation. The resolution referred to
was approved on October 5, 1917, by the Sixty-Fifth Congress. It is entitled:
Joint resolution to suspend the requirements of annual assessment work on mining claims
during the years nineteen hundred and seventeen and nineteen hundred and eighteen. U. S.
Stats. L. 1917-19, p. 343.
The resolution reads as follows:
Resolved by the Senate and House of Representatives of the United States of America in
Congress assembled: That in order that labor may be most effectively used in raising and
producing those things needed in the prosecution of the present war with Germany, that the
provision of section twenty-three hundred and twenty-four of the Revised Statutes of the
United States which requires on each mining claim located, and until a patent has been issued
therefor, not less than $100 worth of labor to be performed or improvements to be made
during each year, be, and the same is hereby, suspended during the years nineteen hundred
and seventeen and nineteen hundred and eighteen: Provided, that every claimant of any such
mining claim in order to obtain the benefits of this resolution shall file or cause to be filed in
the office where the location notice or certificate is recorded on or before December
thirty-first, of each of the years nineteen hundred and seventeen and nineteen hundred and
eighteen, a notice of his desire to hold said mining claim under this resolution: Provided
further, that this resolution shall not apply to oil placer locations or claims.
claim under this resolution: Provided further, that this resolution shall not apply to oil placer
locations or claims. * * *
In the case at bar it is conceded that the claim owners had no idea or intention of
abandoning their mining ground prior or subsequent to the 31st day of December, 1918; but,
on the contrary, the testimony shows, and it is not disputed, that the owners in 1917 filed for
record in the recorder's office of Nye County (where the certificate of location was recorded
in 1915) their notice of desire to hold their claims under the resolution of Congress for both
years 1917 and 1918, apparently believing that the one notice would answer for both years. In
this, under a ruling of the Department of Justice, they were mistaken, and it became necessary
for them, in order to obtain the benefits of the resolution, to file a like notice for the year
1918. They attribute their failure to file the notice in the recorder's office of Nye County for
the year 1918, as they had done in 1917, to the following facts and circumstances:
The claim in dispute is one of a group consisting of four contiguous claims, known
generally as the Homestake Group. The history of the ground covered by the group dates
from the formation of the Tonopah mining district. The group in 1917 was owned in common
by three persons, all of whom were absent from the State of Nevada in 1918. One of the
owners died in that year. The dividing line between Nye and Esmeralda Counties cut through
the group, leaving the claims partly in Nye and partly in Esmeralda County. The exact
location of the true line between these counties was a matter of doubt, speculation, and
uncertainty until after the year 1913, when the legislature enacted a law authorizing the
officials of these counties to reestablish it. Assuming that this was done, nevertheless much of
the testimony in the case shows that the dividing line, in so far as it affects the ground
covered by the group, was still a matter of doubt. But one claim of the group here in
controversy is in Nye County.
group here in controversy is in Nye County. Much testimony was offered by the defendant to
show that the owners of the group and others were in doubt as to how the dividing line as
established affected the group and other mining ground in its vicinity.
The proof shows that in 1918 one of the owners lived at Los Angeles and the other at
Sacramento, Calif. Each wrote urgent letters, one to his friend in Tonopah and the other to his
father-in-law, also residing there, to do all that was necessary and required to be done to hold
their claims under the resolution of Congress for the year 1918. The friend of the owner living
in Sacramento prepared the required notice and presented it to the recorder of Nye County for
filing, in the month of December, 1918. He was informed by the recorder that the proper
place for filing the notice was in the recorder's office of Esmeralda County, at Goldfield,
Nevada. Thereupon he caused the notice to be filed in the recorder's office in said county, on
or about the 27th day of December, 1918. Relying on the representation of the recorder of
Nye County as being official and correct, he gave no further consideration to the matter,
believing, of course, that he had complied, for and on behalf of his friend, with the
requirement of the resolution of Congress.
The other owner, living in Los Angeles, wrote his father-in-law on the 10th of December,
1918, to do for him all that was necessary and required to be done under the resolution to
hold his claims, stating therein that he did not want to give them up. This was followed by
another communication, of December 20, 1918, in which he inclosed a formal notice of
desire to hold the claims in accordance with the resolution of Congress, not knowing of the
steps taken by his coowner to hold the ground, and instructed his father-in-law to file the
notice in Tonopah, Nye County. The father-in-law was of the same opinion as the county
recorder of Nye County that Goldfield was the proper place for the recordation of the notice,
basing his opinion upon his own experience, with the uncertainty of the whereabouts of
the true dividing line between Nye and Esmeralda Counties as it passed through the
Homestake Group and other mining locations in that vicinity; and it was his opinion also
that as the property consisted of a group of claims the notice required could as well be
filed in either county, and therefore he caused the notice to be filed in Esmeralda County.
recordation of the notice, basing his opinion upon his own experience, with the uncertainty of
the whereabouts of the true dividing line between Nye and Esmeralda Counties as it passed
through the Homestake Group and other mining locations in that vicinity; and it was his
opinion also that as the property consisted of a group of claims the notice required could as
well be filed in either county, and therefore he caused the notice to be filed in Esmeralda
County.
The trial court, in arriving at its ultimate conclusion, disregarded all defendant's evidence,
and decided that the failure of defendant's grantors to literally comply with the proviso
operated as a forfeiture of the ground; that plaintiffs having entered upon the ground and
made a valid location the forfeiture was completed, and rendered a decree confirming and
quieting title in plaintiffs. The defendant appeals.
We do not think it was the intention of Congress that the proviso should be interpreted so
as to result in injustice, oppression, or absurd consequences. The particular situation, as
disclosed by the above statement of facts, made the question of the interpretation of the
proviso one to be influenced and controlled by the broad and important inquiry whether it was
the intention of Congress to declare a forfeiture where the claim owner honestly and in good
faith endeavored to comply with the terms of the proviso, but failed for the reasons above
stated.
It is not a question of construction of the proviso, but one of interpretation as to whether or
not Congress intended that its terms should be so inflexible as not to permit of exceptions.
We think the meaning and effect of a public resolution of this character is to be determined
under broad rules of liberal interpretation, especially as it appears upon the face of the
resolution that it was approved when the government was confronted with imminent
exigencies, emergencies, and perils. It is true that every claim owner was not engaged directly
in helping to win the war with Germany, which was the moving cause of the resolution.
But Congress evidently assumed that every able-bodied citizen, or person who had declared
his intention to become such, holding mining ground under the government's conditional
grant, stood ready in return for its favor to bend his energies and lend his substance to the aid
of the government in its time of need. But it is insisted that this public purpose yields to the
strict letter of the proviso, which when interpreted literally shows that the assessment work
was suspended for the benefit of the individual claim owners, and that a claim owner who had
failed to file or cause to be filed his notice of desire to hold lost his claim, and had no
standing in a court of law or equity. We are not construing the proviso; it needs no
construction. We are endeavoring to find the intention of Congress where a claimant failed
and neglected, without fault of his own, but through an honest mistake, attributable to others,
to cause to be filed in the proper recorder's office his notice of desire to hold his ground.
1. If the proviso is solely for the benefit of the individual claim owner, we are not in
accord with an interpretation that nullifies its beneficent purposes. We think that reflection
inevitably leads to the conclusion that exceptions, which are present and concurring in this
case, arise from a failure to comply literally with the terms of the proviso. First, there is no
fraud or deceit; second, no intention, shown by competent, clear, and satisfying proof, to
abandon the claims; third, there is good faith, and an open and honest effort to comply; and,
fourth, excusable negligence or omission of others to file the notice, not attributable to the
claim owner.
This interpretation is supported, in a measure, by that of the Interior Department in a case
arising under the Suspensory Act of 1893 (28 U. S. Stat. 6). The act of 1893, suspending the
assessment work for that year, came before the department in Cain et al. v. Addenda Mining
Co., 24 Land Dec. 18. The owner was permitted to hold the ground under the resolution,
though the company had not filed any declaration of intention whatever.
whatever. It is true that it was in a contest which involved fraud of the worst kind, still the
ruling indicates that each case arising between claim owners and third parties for failure to
comply with the resolution is to be controlled and decided upon its own particular facts and
circumstances.
2, 3. It is true, from the situation developed from the trial of this case, that the
representatives of the true owners of the ground in dispute, though acting in good faith, upon
their own showing, could have taken the precaution, being in doubt, to file the notice in both
Nye and Esmeralda Counties; but their omission so to do, under the particular circumstances,
should not be visited upon the owners. In arriving at this conclusion, we are mindful that it is
not the province of courts to concern themselves with the injustice and inconvenience or
hardships of a law where its meaning is plain. Such a matter is addressed to Congress. But
where it is clear that a strict and literal interpretation of a public resolution, concerning land
in which the government has a proprietary interest, will result in manifest injustice, we may
scrutinize it closely to see if it will not admit of some other interpretation. We take it that
Congress is presumed to have intended an interpretation which would avoid results of this
character. We freely admit that the language of the proviso is susceptible of the interpretation
that it is mandatory in terms, but we are of the opinion that its resulting effect is doubtful and
susceptible of two interpretations, and under the well-settled rule we give it that interpretation
which best comports with reason and justice. State v. Dovey, 19 Nev. 396, 12 Pac. 911; State
v. Kruttschnitt, 4 Nev. 178. See, also, 11 Ency. U. S. Sup. Ct. Rep. p. 151. It must be
understood that this is an equitable action to quiet title that involves questions peculiarly
equitable in their nature. Equity neither enforces forfeitures nor extends its aid in the assertion
of a mere legal right contrary to the clear equity and justice of the case.
equity and justice of the case. Jones v. G. I. Co., 101 U. S. 622, 25 L. Ed. 1030; Defanti v.
Allen Clark Co., 45 Nev. 120; 198 Pac. 549.
Entertaining the view that the facts in this case are such as in equity show the defendant to
have the better right to the possession of the ground, it is the order that the judgment of the
lower court be reversed, with directions to render and cause to be entered a decree in favor of
the defendant, in accordance with the prayer of its affirmative defense, without further
proceedings.
It being conceded that our conclusion is decisive of the case, we do not discuss other
important and interesting questions.
It has been suggested that the case involves a federal question. We will pass upon that,
should occasion arise, at the proper time.
Per Curiam:
Rehearing denied.
____________
45 Nev. 120, 120 (1921) Defanti v. Allen Clark Co.
[No. 2459]
A. DEFANTI, Respondent, v. ALLEN CLARK COM-
PANY (a Corporation), Appellant.
[198 Pac. 549]
1. CorporationsSpecial Meeting of Directors in Absence of Some Directors Not Notified
Illegal and Action Invalid unless Ratified.
Except in cases where it is impossible or impracticable to give notice, a special meeting of the
directors of a corporation held in the absence of some of the directors and without any notice to them is
illegal, and the action taken at such meeting, though by a majority of the directors, is invalid, unless
subsequently ratified.
2. CorporationsMortgage Authorized at Special Meeting Attended by Only Two or Three
Directors Invalid where No Notice Given Third.
A corporate mortgage authorized by two of the three directors at a special meeting of the board of
directors of the corporation, of which no notice was given its third member, is an invalid act.
3. CorporationsBurden on Corporation to Show Invalidity of Mortgage Duly Executed.
In suit to foreclose a corporation's mortgage, where the mortgage itself, signed by the president and
secretary of the corporation, with its seal affixed, was introduced in evidence, the burden was on the
corporation to show its invalidity.
4. CorporationsIn Suit to Foreclose Unauthorized Mortgage, Held that it Would Be
Unconscionable to Permit Defendant to Shield Itself under its Corporate Entity.
In suit to foreclose a corporation's mortgage authorized at a directors' meeting at which only two of
the three directors were present, the other not having been notified, in view of the fact that the evidence
did not convince the court that the money borrowed on the mortgage was not applied with the knowledge
and acquiescence of the corporation, and the fact that opportunity for the mortgagee to obtain other
security is lost, it would be unconscionable to permit defendant to shield itself under its corporate entity,
and decree of foreclosure will be affirmed, though the mortgage was unauthorized.
5. CorporationsAllowance of Attorney's Fee, on Foreclosure Not Unauthorized when
Resolution Authorizing Mortgage Was Silent in Relation Thereto.
Where the resolution of directors authorizing a mortgage was silent as to attorneys' fees, in suit to
foreclose the mortgage which provided for attorneys' fees, executed pursuant to such resolution, the court
is not authorized to allow such fees.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Action by A. Defanti against the Allen Clark Company, a corporation. From judgment for
plaintiff, defendant appeals. Judgment modified, and as modified affirmed. Petition for
rehearing denied.
Hoyt, Norcross, Thatcher, Woodburn & Henley, and John D. Hoyt, for Appellant:
Stockholders of a corporation are entitled to have their directors sit as a board, and are not
bound otherwise, in the absence of ratification or estoppel. Edwards v. Carson W. Co., 21
Nev. 469; Hillyer v. Overman Co., 6 Nev. 51; Yellow Jacket Co. v. Stevenson, 5 Nev. 224;
City v. Bank, 36 L. Ed. 390.
Officers having no authority to bind a company to a contract by directly executing it
themselves, cannot do so by representing that they have been duly authorized. Hillyer v.
Overman Co., supra.
No ratification or estoppel could exist in the case at bar, as the corporation had no
knowledge whatever of the unauthorized transaction until almost immediately before the
institution to suit. To effect a ratification, a party must act with knowledge of all material
facts. Notice must be received by some one other than the actual wrongdoers. 2 C. J. 495;
Edwards v. Carson W. Co., supra; Yellow Jacket Co. v. Stevenson, supra.
After acquiring knowledge of an unauthorized act, a principal is entitled to a reasonable
time within which to repudiate the transaction. 2 C. J. 496; Union Co. v. Bank, 24 Fed. 648.
Even the applying of a portion of the benefits to a debt of the corporation does not constitute
ratification; and in many cases, where the principal does not acquire knowledge of the
transaction until after the money has been spent, he is not even bound to return the benefits.
Leggett v. N. J. Mfg. Co., 23 Am. Dec. 728; Duke v. Markham, 10 S. E. 1017; Foote v.
Cothing, 15 L. R. A. (N.S.) 693.
The principal is not estopped to deny the validity of an obligation where the party dealing
with his agents knows, or is charged with knowledge, that they are acting without authority.
The elements of estoppel, in such a case, are clearly wanting. 2 C. J. 465; Hawley v. Curley,
74 Ill. 309; Kieor v. Klinsich, 42 N. E. 447; Clearwater v. Bagley, 133 N. W. 91.
The attorney's fee is admittedly unjust and inequitable, and this court, regardless of any
other consideration, has authority to diminish the amount. 19 R. C. L. 469; 27 Cyc. 1785.
J. H. Daly, for Respondent.
This action was brought by a mortgagee to foreclose a mortgage executed by the
vice-president and the secretary of the Allen Clark Company, a corporation formed under the
laws of this state, with its seal affixed, to secure the payment of a promissory note payable to
the mortgagee, respondent herein, for the sum of $3,500. The defense pleaded and relied upon
at the trial by the corporation appellant to defeat the mortgage was, in short, that the debt is
valid, but the mortgage given to secure it is not. The ground of this claim is that Allen L.
Clark, a director in the company, had no notice of the special meeting of the directors at
which a majority of its board passed and adopted a resolution authorizing the vice-president
and secretary of the corporation, in the absence of Allen L. Clark, its president, from the state,
to give its note for the sum of $3,500 to the plaintiff or to some other person who would loan
to the company that amount of money and to execute its mortgage to secure its payment. The
mortgage recites the preamble of the resolution, and the resolution recites the purposes for
which the money was to be applied, namely, to the payment of the sum of $2,500 due upon
the purchase price of certain real estate contracted for by the corporation and other debts. It is
not denied that the money was borrowed and loaned in most perfect good faith for the uses
and benefits of the company; in fact, the corporation in its answer to the complaint
expresses its willingness that plaintiff may have judgment as in an action for money
loaned for the sum of $2,500, with accrued interest, amounting to the sum of $300, and
for any additional amount of the principal sum borrowed shown to have been actually
used for the benefit of the company.
and loaned in most perfect good faith for the uses and benefits of the company; in fact, the
corporation in its answer to the complaint expresses its willingness that plaintiff may have
judgment as in an action for money loaned for the sum of $2,500, with accrued interest,
amounting to the sum of $300, and for any additional amount of the principal sum borrowed
shown to have been actually used for the benefit of the company. It is not denied that the
plaintiff mortgagee knew when he accepted the security that Allen L. Clark, a director of the
company and its president, was absent from the State of Nevada, and had no notice of the
special meeting at which the mortgage was authorized. In this situation the corporation
contends that the only judgment that could legally have been rendered was for a money
judgment. The trial court decided against these contentions, and made a general finding to the
effect that the money was loaned in good faith for the benefit of the corporation, and that the
latter had received adequate benefits fro the full sum borrowed, and rendered its decree of
foreclosure, together with a judgment for attorney's fees in the use of $608. The corporation
appeals.
The appellant makes the same contention in this court as it did in the lower court, namely,
that conceding the company received the benefits of the money, the mortgage being invalid
for the reasons stated, the decree of foreclosure must be reversed and a judgment ordered in
favor of the plaintiff and against the defendant for the sum of $2,800. We are of the opinion
that the evidence tends to show that the company actually received adequate benefits from the
full amount borrowed. At any rate, there is nothing in the record to convince us to the
contrary.
1. Passing to the legal question involved, as to the validity of the mortgage, we concede
that, except in cases where it is impossible or impracticable to give notice, a special meeting
of the directors of a corporation held in the absence of some of the directors, and without any
notice to them, is illegal, and the action at such a meeting, although by a majority of the
directors, is invalid, unless subsequently ratified.
such a meeting, although by a majority of the directors, is invalid, unless subsequently
ratified. 3 Fletcher, Cyc. Corp. sec. 1868.
The general corporation law of this state provides, inter alia, that a majority of the whole
number of trustees or directors shall form a board for the transaction of business, and that
every decision of a majority of the persons duly assembled as a board shall be valid as a
corporate act, subject to the provisions of the by-laws and of the laws of this state. Rev. Laws,
1127. The question as to when the trustees or directors shall be considered as duly assembled
is not settled by the statute. This seems to have been left by the lawmakers to the corporation
itself to be covered by its by-laws.
2. It is provided in the by-laws of the Allen Clark Company that notice of a special
meeting of its directors (composed of three members) shall be given to each director by mail
or in person. Without reviewing the familiar reasons for the necessity of such a regulation for
the proper conduct of the business and affairs of a corporation, it must be conceded that a
mortgage authorized at a special meeting of the board of directors, of which no notice was
given its third member, is an invalid act.
But it is not denied that it was within the power of the Allen Clark Company to execute the
mortgage. In the case of Edwards v. Carson Water Co., 21 Nev. 496, 31 Pac. 381, the court
quotes with approval from the case of Dexter Horton & Co. v. Long, 2 Wash. 435, 27 Pac.
271, 26 Am. St. Rep. 867, the syllabus of which case is (and we think it expresses correctly
what the case decides) that
Where a mortgage by a corporation was not authorized by its trustees, but was executed
by its president and secretary, who were two of its three trustees, and the corporation received
the benefits of the mortgage, the defects in its original execution will be regarded as cured by
ratification.
The Washington court, cited authorities, bases its conclusion upon the doctrine that where
money has been obtained by a corporation upon its securities, which were unauthorized in the
first instance, and the money was applied for the benefit of the company with the knowledge
and acquiescence of the stockholders, the company and the shareholders are estopped to
defeat the mortgage. This doctrine is recognized (with limitations) by this court in the case of
Yellow Jacket S. M. Co. v. Stevenson, 5 Nev. 224. In the case of Jones v. G. & I. Co., 101 U.
S. 622, 25 L. Ed. 1030, the court sanctioned and applied this doctrine to corporations upon
the principle that equity neither enforces forfeitures nor lends its aid to the assurance of a
mere legal right contrary to the equity and justice of the case.
3. Appellant asserts, however, that it had no knowledge of the existence of the mortgage
until a few days prior to the bringing of this action for its foreclosure, and consequently had
no time within which to repudiate the transaction, and that therefore the doctrine of receipt of
benefits, acquiescence, and ratification cannot be charged against it, and has no place in this
case. To support this position we are directed to the testimony of Allen L. Clark, the director
who had no notice of the special meeting at which the purported mortgage was authorized,
and its president. In this the appellant is unfortunate. It would have been in a much better
position if it had relied upon the invalidity of the mortgage to defeat foreclosure, and had
stopped there. But we assume that as the mortgage is signed by the president and secretary of
the corporation, with its seal affixed, when introduced in evidence the burden was upon the
corporation to show its invalidity; and since the corporation concedes that at least $2,800 of
the sum borrowed was actually applied for the benefit of the corporation, the only defense
open to it defeat the foreclosure was to repudiate the mortgage through Allen L. Clark, its
president, upon the assumption that it had no knowledge of its execution.
no knowledge of its execution. As we interpret the record, it is evident that the trial court
disbelieved Clark's testimony in toto, and we confess that in view of his particular relation to
the corporation and the character of his testimony, we are not impressed with its sincerity or
verity.
With what might be considered stupidity, he testified that the corporation was organized
by himself and wife, with a subscribed capital stock of 10,000 shares, of the par value of
$......, but that he did not know for what purpose the corporation was formed. He states, in
effect, in the course of his examination, that he and his wife just formed it; that she attended
to its affairs and business when there was anything to be done; and that he was absent from
Nevada from July, 1918, to May, 1919.
The evidence shows that Allen L. Clark, the husband, owned 1,000 shares, his wife Emily
8,999, and W. J. Luke 1 share, of the capital stock of the corporation. These three persons
constitute all of its shareholders and compose its directorate. Allen L. Clark is its president,
W. J. Luke its vice-president, and Emily Clark, in her lifetime, was its secretary and treasurer.
Luke is conceded to be only a nominal officer and shareholder. The mortgage was executed in
September, 1918. Emily Clark died in May, 1919, shortly after her husband had returned to
Nevada. This suit was commenced in October, 1919. In the interim between May and
October, 1919, Allen L. Clark, the president of the company, had access to its corporate
books, although there is evidence tending to show that they were in the hands of third parties.
However, there is nothing in the record to show that he might not have obtained possession
and control of them upon demand.
The mortgage was placed of record in the recorder's office of Washoe County shortly after
it was delivered. The loan was personally negotiated by Emily Clark, wife of Allen L. Clark,
to protect the property of the corporation from being sacrificed, as well as to pay other
existing obligations.
other existing obligations. The evidence tends to show that the property of the corporation,
after the death of Emily Clark, was threatened with litigation. During all of this time Allen L.
Clark, its president, remained perfectly silent until his solicitors set up to defense of the
invalidity of the mortgage and no knowledge on the part of the corporation of its execution.
The questions propounded to him to elicit evidence to show lack of knowledge by the
shareholders of the corporation were so leading as to put the answers thereto in his mouth,
and we are in doubt as to whether or not the witness knew of the purport or purpose of the
questions. It is true he testified that he had no knowledge of the transaction. It is not
reasonable to believe this testimony, for no business man would be so indifferent to his own
interests or to those of the corporation, under the circumstances, as to disclaim such
knowledge.
Furthermore, the evidence tends to show that the trial court may have been warranted in
drawing the inference that notice to Allen L. Clark of the special meeting, which was at the
time urgent, would have been a mere matter of form and would have accomplished nothing.
4. The evidence not being such as to convince us that the money borrowed upon its
security was not applied with the knowledge and acquiescence of the corporation, we are of
the opinion that to permit the company to shield itself under its corporate entity, under the
facts of this case, and now disaffirm the mortgage, when every opportunity for its mortgagee
to obtain any other security is lost, would be unconscionable. Entertaining this view, we
conclude to affirm the decree of foreclosure, even though the mortgage was unauthorized.
5. It is urged that the court erred in adjudging and decreeing that in addition to the costs of
suit defendant be taxed an attorney's fee of $608. Counsel insists that such a sum is
unreasonable, and that the judgment should be modified. Whether or not the sum allowed is
reasonable we do not stop to inquire, for the reason that we are clearly of the opinion that
the court was not authorized to allow attorney's fees for any sum.
that we are clearly of the opinion that the court was not authorized to allow attorney's fees for
any sum. The terms of the resolution authorizing the mortgage should be as broad as the
mortgage itself, which is not the case here. It affirmatively appears upon the face of the
resolution that it is silent as to attorney's fees. The officers were authorized only to borrow
$3,500, give the company's note, and secure it by mortgage. The note and mortgage go
beyond this authorization. The note provides for a reasonable attorney's fee, and the mortgage
for an attorney's fee of 15 per cent of the amount collected. The lower court allowed plaintiff's
attorney a fee of $80 for negotiating the loan, and the 15 per cent as aforesaid.
In an action for the foreclosure of a mortgage against a corporation, the plaintiff is not
entitled to recover counsel fees if the resolution of the corporation authorizing the execution
of the mortgage does not provide that the payment of counsel fees shall be secured by it.
Shallard v. Eel River Nav. Co., 70 Cal. 144, 111 Pac. 590. And where the resolution did not
expressly authorize the officer to contract to pay attorney's fees in case of suit, such a
provision in a note is invalid. Thomas v. Wentworth Hotel Co., 16 Cal. App. 403, 117 Pac.
1041, 1046.
We conclude to modify the judgment by striking therefrom the attorney's fees, amounting
to the total sum of $608, and permit the decree of foreclosure to stand.
The judgment as thus modified is affirmed.
I concur in the order.
Conceding that the meeting at which the execution of the note and mortgage was
authorized was not duly called, and that for that reason the mortgage was voidable, I am
strongly of the opinion that the corporation should be estopped from attacking the validity of
the mortgage, under the circumstances of the case. It received the money upon the strength of
the mortgage, and cannot retain the same and be heard to say that the mortgage is not
binding.
and cannot retain the same and be heard to say that the mortgage is not binding. This is the
general rule as to ultra vires contracts (10 Cyc. 1156; Wisconsin L. Co. v. G. & W. Tel. Co.,
127 Iowa, 350, 101 N. W. 742, 69 L. R. A. 968, 109 Am. St. Rep. 387; Wayte v. Red Cross
Pro. Society [C. C.] 166 Fed. 372), and the process of reasoning leading to the result in those
cases, which is equally applicable here, as well as good morals, impel a like conclusion under
the facts of this case.
Furthermore, I am of the opinion that the trial court was justified, under the evidence, in
concluding that the transaction was ratified by Allen L. Clark. Of course, in doing so, it must
have totally disregarded the positive testimony of Clark to the effect that he knew nothing
about the mortgage in question until a demand for the payment of the interest a few days
before the foreclosure proceedings were instituted. His testimony, as a whole, does not
commend itself to the court. Though having been away from Reno for some months, he
returned a few days before the death of Emily Clark, his then wife, who, so far as appears, left
him as the owner of all of the stock in the company, except one share, which was held by Mr.
Luke simply to qualify him as a director and officer of the company. Mr. Clark is certainly the
only surviving officer of the company who had any material interest in its affairs, yet he
testified that he had not looked into its condition enough to learn of the mortgage in question;
and this, too, in the face of the fact that soon after the death of the wife he obtained from the
bank the canceled checks of the company, some of which were upon a part of the borrowed
money. It is quite remarkable that he should manifest sufficient interest in the status of the
company to get the canceled checks, but not to prosecute an investigation as to all of its
transactions during his absence. But while he testified flatly that he knew nothing of the
mortgage in question until payment of the interest was demanded, his evidence as to the
conversations which took place when the interest was demanded, does not indicate any
surprise at learning of the existence of the mortgage, but, to my mind, indicates that he
knew of its existence.
demanded, does not indicate any surprise at learning of the existence of the mortgage, but, to
my mind, indicates that he knew of its existence. He said:
Well, he asked me if I could pay the interest, and I told him I couldn't pay it all, but could
pay him half of it now, and , if he would wait a few days until rent was paid, I could pay him
the other part of it. He couldn't do it, he said. I told him to go and see my lawyer about it,
then, and he didn't go.
This testimony was given on direct examination. It is true that thereafter, in reply to a
suggestive question by his counsel, he did state that he told the party demanding the interest
that he knew nothing about the mortgage prior thereto. But in view of the character of the
examination, and of all the circumstances, the trail court had a right to reject so much of his
testimony as it saw fit.
While it is not a matter of which we can take judicial notice, I think it perfectly proper for
me to call attention to certain improbable evidence given by Mr. Clark. Evidently for the
purpose of bolstering upon his contention that he did not know of the existence of the
mortgage in question, he testified that he thought the indebtedness which was discharged by
the money borrowed from respondent had been paid out of $3,500 received as insurance
money on the Ralston-street property. The fact is that only $1,00 was received from that
insurance, and it had not been paid when he gave the testimony alluded to, as it was necessary
to bring suit to recover it, which was finally disposed of on February 28 last. See Clark v.
London Assur. Corp., 44 Nev. 359. In view of the fact that this witness has been a party to, or
has given testimony in, several suits which have come to this court within the last three years
(Allen Clark Co. v. Francovich, 42 Nev. 321, 176 Pac. 259; Allen Clark Co. v. Moran, 42
Nev. 356, 176 Pac. 413; Clark v. Clark, 44 Nev. 67; Clark v. London Assur. Corp., supra, and
the instant case), it may be, of course, that he has become somewhat confused as to facts, but
it might stand him in hand to be more guarded in giving testimony.
it might stand him in hand to be more guarded in giving testimony.
Per Curiam:
Rehearing denied.
____________
45 Nev. 131, 131 (1921) Buck v. Boerlin
[No. 2513]
J. HOLMAN BUCK, Petitioner, v. HENRY BOERLIN, B. F. BAKER, and J. H.
WICHMAN, as Members of the Board of County Commissioners of Mineral County,
Nevada, Respondents.
[198 Pac. 556]
1. StatutesAct Authorizing County to Issue Bonds to Purchase, Extend, and Equip a Power
and Telephone Line Held Not Unconstitutional.
Stats. 1920-21, c. 45, providing for issuance of bonds by Mineral County for the purchase of a power and
telephone line and for extension and equipment thereof, is not in violation of Const. art. 4, sec. 20,
providing that the legislature shall not pass local or special laws regulating county business, and sections 21
and 25, requiring that the system of county and township government shall be uniform, and that in all cases
where a general law can be made applicable all laws shall be general and uniform, so that the board of
county commissioners cannot be prohibited from proceeding under such act.
Original Proceeding in prohibition by J. Holman Buck against Henry Boerlin and others,
as members of the Board of County Commissioners of Mineral County, Nevada. Proceedings
dismissed.
Ryland G. Taylor, for Petitioner:
The act of the legislature of 1921 (Stats. 1921, c. 45), authorizing Mineral County to issue
bonds for the construction of an electrical power and telephone line, is unconstitutional, being
violative of the provisions of the constitution which declare that there shall be a uniform
system of county and township government, that local or special laws regulating county and
township business shall not be passed, and that all laws shall be general and of uniform
operation throughout the state."
general and of uniform operation throughout the state. Const. Nev., art. 4, secs. 20, 21, 25.
J. H. White, District Attorney (Hugh H. Brown and Walter Rowson, of counsel), for
Respondents:
Under the constitution, the legislature, commencing with its first session, by means of
special and local acts, has passed a multitude of bills relating to individual counties, covering
a very wide range of subjects, although there is no specific authority contained in the
constitution for so doing. Where the validity of such statutes has been questioned, their
constitutionality has been upheld by this court. Gibson v. Mason, 5 Nev. 284; State v. Irwin, 5
Nev. 111, Evans v. Job, 8 Nev. 322; Hess v. Pegg, 7 Nev. 22; Pershing Co. v. Humboldt Co.,
43 Nev. 78.
The legislature is negatively authorized to pass special laws relating to corporations for
municipal purposes. It exercised such power in the creation of Mineral County, and in the
passage of the act in question. Const. Nev., art. 8, sec. 1.
The act declares its purpose to be the operation of a public utility. This is a beneficial use,
for the public benefit. Dayton S. M. Co. v. Seawell, 11 Nev. 398; Daggett v. Colgan, 14 L. R.
A. 77; Cooley, Const. Lim. 154; People v. Salem, 20 Mich. 452.
While the statute may be special and local, it in no way conflicts with the constitutional
provisions cited by petitioner. It provides for a public utility, which is in no wise connected
with a scheme of county government, as that term is ordinarily understood. Hess v. Pegg, 7
Nev. 22; Board v. State, 69 N. E. 442.
All presumptions are in favor of the validity of an act of the legislature. The courts will
declare them unconstitutional only in cases of clear and unquestioned violation of the
fundamental law. State v. Board, 21 Nev. 235; State v. Brodigan, 37 Nev. 492; V. L. & S. Co.
v. District Court, 42 Nev. 1; Sharpless v. Phila., 21 Pa. 47; Speer v. Blairsville, 50 Pa. 150.
Courts will not declare an act void on the ground that it is contrary to the spirit and policy of
the constitution, unless it is at variance with an express or clearly implied provision therein.
State v. Atherton, 19 Nev. 335. A statute should, if it reasonably can, be so construed as to
avoid any conflict with the constitution. State v. Woodbury, 17 Nev. 356.
The legislature has authority to pass any act, either general or special, not expressly inhibited
by the letter or the clear implication of the organic law. Dayton M. Co. v. Seawell, 11 Nev.
398; State v. Atherton, supra; State v. Arrington, 18 Nev. 412; Ritter v. Douglass, 32 Nev.
413.
Pursuant to the act approved March 4, 1921 (Stats. 1920-21, p. 80) providing for the
issuance of bonds by Mineral County in the amount of $150,000 for the purchase of a power
and telephone line, and for the extension in and equipment thereof, the board of county
commissioners of that county, at a regular meeting, duly authorized the issuance and sale of
bonds for the purpose designated in the act mentioned. This is an original proceeding in
prohibition to restrain said board from consummating the purchase and extension of said lines
upon the ground that the board is without jurisdiction to authorize the issuance and sale of
said bonds, for the reason that the said act is unconstitutional, null, and void. It is contended
that the act is violative of article 4, section 20, of our constitution, which provides that the
legislature shall not pass local or special laws regulating county business, and of sections 21
and 25 of the same article, requiring that the system of county and township government shall
be uniform, and that in all cases when a general law can be made applicable all laws shall be
general and of uniform operation throughout the state.
It is not urged that the purpose sought to be accomplished by the act is not a public one.
We think there is no merit in either of the views urged upon us.
is no merit in either of the views urged upon us. In fact, it is well settled in this state to the
contrary. In State v. Lytton, 31 Nev. 67, 99 Pac. 855, substantially the same questions were
disposed of, the court there holding that an act of a similar character was not violative of
either of the sections mentioned. The only difference between that case and the one at bar is
that the act there in question authorized the sale of bonds for the building of a new courthouse
and jail, while in this case the act authorizes the sale of bonds for the raising of money for the
acquiring, extending, and equipping of power and telephone lines. In both cases the act
authorizes the sale of bonds for a public purpose.
The legislature has, during the last few years, authorized several counties to sell bonds for
the improvement of highways and other public purposes. If the act in question is void, no
good reason can be urged why other acts authorizing the sale by a county of bonds for a
public purpose should not be void. This court, in the case mentioned, and previous ones, has
settled the questions before us, and the welfare of the state demands that they be deemed
settled for all time, whether settled right or wrong.
For the reasons given, we are of the opinion that there is no merit in either of the points
urged upon us, and it is ordered that this proceeding be, and the same is hereby, dismissed.
____________
45 Nev. 135, 135 (1921)
REPORTS OF CASES
DETERMINED BY
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
JULY TERM, 1921
____________
45 Nev. 135, 135 (1921) Edwards v. City of Reno
[No. 2481]
W. F. EDWARDS, Appellant, v. CITY OF RENO (A Municipal Corporation), and H. E.
STEWART, W. J. PICKEREL, GEORGE F. SMITH, R. J. FRISCH, S. E. ROSS, C. H.
DUBORG, and C. C. BRIDGMAN, as the Mayor and City Council Thereof,
Respondents.
[198 Pac. 1090]
1. PleadingDemurrer Held Not to Admit Infirmities in Improvement Proceedings.
In a suit against a city and its officers to annul a contract for paving and restrain defendants from
consummating the contract or incurring expenses in which it was alleged that the acceptance of bids and
awarding of the contract constituted a material and substantial departure from the terms of the estimates,
maps, diagrams, notice, and advertisement for bids, and was made without notice or hearing except an ex
parte hearing, a demurrer to the complaint did not admit as true the infirmities alleged.
2. Appeal and ErrorMoot Character of Question May Be Shown at Any Time.
The fact that there is no controversy between parties to the record may be shown at any time before the
decision of the case, though the questions involved had become moot before the judgment appealed from
was rendered, and the point was not raised in the lower court.
3. Appeal and ErrorMoot Questions Not Decided.
Appellate courts do not give opinions on moot questions or abstract propositions.
4. Appeal and ErrorAppeal Dismissed when Tax Sought To Be Enjoined Paid under
Protest.
Treating a suit against a city and its officers to vacate a paving contract and restrain defendants from
consummating the contract as analogous to an action to enjoin the collection of an illegal assessment or tax,
an appeal by plaintiffs will be dismissed, where the contract has been fully performed pending the action,
and plaintiffs have paid the assessment in full, though under protest.
Action by W. F. Edwards against the City of Reno and others. From a judgment dismissing
the action on demurrer, plaintiff appeals. Motion to dismiss appeal granted. Petition for
rehearing denied.
Augustus Tilden, for Appellant:
The question before the court is as to whether or not appellant paid under compulsion.
Peyser v. Mayor, 70 N. Y. 497; Purcell v. Mayor, 85 N. Y. 330. The general rule is that
money paid under an illegal assessment cannot be recovered without first setting the
assessment aside. 28 Cyc. 1207.
The city charter itself contemplates the repayment of illegal assessments, and expressly
provides for the refund or reapplication of the money paid, after any court of competent
jurisdiction shall adjudge such assessments to be illegal and this without provision for
protest, unless such provision be implied. Reno Charter, 1920 ed., p. 19.
LeRoy F. Pike, City Attorney, and Harwood & Tippett, for Respondents:
The appeal should be dismissed. An appellate court will not consider moot questions. 4 C.
J. 575; Pacific L. Co. v. Mason Valley M. Co., 39 Nev. 105; Wedekind v. Bell, 26 Nev. 395;
2 R. C. L. par. 145.
Where the acts sought to be enjoined are performed pending an appeal from the order, the
proceedings in error will be dismissed. 4 C. J. 584; Holter v. Wagoner, 142 N. W. 175;
Barber Asphalt P. Co. v. Hamilton, 141 Pac. 199; Carr v. Montesano, 136 Pac. 363; Weibke
v. Ft. Wayne, 115 N. E. 355; Cruse v. Slagle, 99 Atl. 669; Thompson v. Vold, 165 N. W.
1076.
Wagoner, 142 N. W. 175; Barber Asphalt P. Co. v. Hamilton, 141 Pac. 199; Carr v.
Montesano, 136 Pac. 363; Weibke v. Ft. Wayne, 115 N. E. 355; Cruse v. Slagle, 99 Atl. 669;
Thompson v. Vold, 165 N. W. 1076.
The appellate court will not retain the case to determine an incidental question of costs.
When the sought-for remedy of injunction failed, all other incidental matters went down with
it. Weibke v. Ft. Wayne, supra; Holter v. Wagoner, supra.
Appellant can never recover his taxes, because they were not paid under duress. A mere
protest, under any circumstances disclosed, is not an involuntary payment; and under the
express provisions of the city charter the property is bound whether the assessment was legal
or illegal. Dillon, Mun. Corp, vol. 4, secs. 1617, 1618, 1624; Lamborn v. Dickinson County,
97 U. S. 181; Railroad v. Dodge County, 98 U. S. 541; Palo Marys L. Co. v. Los Angeles
County, 80 Pac. 931; Reno Charter, Stats. 1915, p. 263; Bank v. Americus, 45 Am. Rep. 476;
Radich v. Hutchins, 95 U. S. 2110.
It appears from the complaint in the court below that the city of Reno, in January, 1920,
passed and adopted Ordinance No. 264, entitled:
An ordinance declaring the determination of the city council of the city of Reno to make
certain improvements in the various wards in the city of Reno, by constructing, grading and
paving, with concrete, bitumen or asphaltum certain streets and alleys and portions of streets
in said city; and constructing granite header stone along certain streets; describing definitely
the location of said improvements; providing that the costs and expense thereof shall be paid
entirely by special assessment, upon and against the lots and premises abutting or fronting on
said improvements in accordance with their number of feet frontage, except where, by the
charter of the city of Reno, certain portions thereof are required to be paid from the general
fund of said city of Reno; providing for the issuance of special assessment bonds for the
payment thereof, and other matters relating thereto."
fund of said city of Reno; providing for the issuance of special assessment bonds for the
payment thereof, and other matters relating thereto.
Pursuant to its charter and Ordinance No. 264, it passed and adopted Ordinance No. 265,
entitled:
An ordinance empowering, authorizing, and directing the city assessor of the city of
Reno, county of Washoe, State of Nevada, to levy a special assessment to defray the costs of
making certain improvements in the various wards in the city of Reno, by constructing,
grading, and paving with concrete, bitumen or asphaltum, certain streets, and alleys, and
portions of streets, in the said city, and constructing granite header stone along certain streets,
according to the plans and estimates of cost thereof on file in the office of the city clerk of the
city of Reno, describing definitely the location of said improvements, stating the amounts of
said assessment and designating the lots, lands, and premises to be assessed, stating that the
same shall be assessed according to frontage, providing for the issuance of special assessment
bonds for the payment thereof, and other matters relating thereto.
Pursuant to the terms of Ordinance No. 264, and our statute law (Rev. Laws, 1530), the
city council of Reno caused to be published a notice, dated January 31, 1920, entitled:
Notice to Bidders for Street Paving in the City of Reno.
Notice is hereby given that the city council of the city of Reno, Nevada, will receive
sealed bids up to 8 o'clock p.m., March 8, 1920, said bids to be filed with the city clerk of the
city of Reno, and to be for the following work:
Bid No. 1400,000 square feet of cement concrete pavement.
Bid No. 2635,000 square feet of cement concrete pavement.
Bid No. 3115,000 square feet of sheet asphalt pavement.
Bid No. 4235,000 square feet of bitulithic pavement on a cement concrete base.
Bid No. 5145,000 square feet of bitulithic pavement on a rock macadam base.
Bid No. 690,000 square feet of bitulithic pavement on a concrete base.
For specifications and locations of proposed work, bidders shall apply to the office of the
city engineer of the city of Reno.
Bidders may bid on any one or all of the above bids.
The city council reserves the right to accept or reject any and all bids.
Thereafter divers bids, based on estimates, plats, diagrams, proceedings, ordinances, and
notice to bidders, were received by said city council. On the 27th day of February, 1920, said
council, without previous notice or advertisement or published notice, caused to be prepared
and mailed, or otherwise privately delivered to each of said bidders, a letter, in words and
figures following, to wit:
Dear Sir: Am sending you today under separate cover Specifications Form of Contract,'
etc., of the proposed work for street improvement for the city of Reno.
The city of Reno is asking for the following bids, to be received up to 8 o'clock p.m.
Monday, March 8, 1920, in addition to those advertised for:
635,000 sq. ft. of bitulitic or asphaltic concrete pavement, 1 1/2 inches thick on a 3
1/2-inch asphaltic concrete base.
310,000 sq. ft. of bitulitic or asphaltic concrete pavement, 1 1/2 inches thick on a rock
macadam base.
310,000 sq. ft. bitulitic or asphaltic concrete pavement, 1 1/2 inches thick on a 3 1/2-inch
asphaltic concrete base.
On all asphalt pavement, the contractor to furnish all materials.
Yours very truly,
Harry Chism, City Engineer.
Thereafter, on the 9th day of March, 1920, the city council rejected all bids as provided for
the performance of said improvements in the area specified with concrete, and accepted a
bid and let a contract for the performance of said work or improvements with bitulithic
concrete.
W. F. Edwards and A. P. Laffranchino, for the benefit of themselves and all others
similarly affected, brought their action against the city of Reno, its mayor and city council,
seeking to have the contract let or about to be let for the paving of its streets and alleys with
bitulithic concrete vacated and annulled, and praying that defendants be restrained from
consummating the contract, and, if the same has been entered into, from proceeding or
incurring or paying any expense thereunder until the further order of the court, and that said
restraining order, after hearing, be made permanent, and that a mandatory injunction issue,
requiring defendants to proceed to entertain bids for the performance of said work or
improvements as provided in the ordinances, estimates, maps, diagrams, and notice to the
public, inviting objections and suggestions, and the advertisement for bids. The gravamen of
the complaint is that the acceptance of the bid or bids, and awarding the contract for bitulithic
concrete, constitutes a material and substantial departure from the terms of the estimates,
maps, diagrams, notice, and advertisement for bids, and that such departure is unfair to and a
fraud upon the owners of property to be benefited by said improvements, and was made
without notice to or hearing given said owners, and without any hearing had as to the
respective merits of said materials, except an ex parte hearing granted to the proponents of
said material called bitulithic concrete, a patented article, bearing a patented name.
Defendant interposed a demurrer to the complaint, which was sustained. Thereafter an
amended complaint was filed and served, which was also demurred to, and the demurrer
was sustained.
to, and the demurrer was sustained. The plaintiff declined to further amend, and judgment
was entered, dismissing the action. The plaintiff, Edwards, appeals from the judgment on the
judgment roll alone. Upon the filing of his appeal, respondents, upon notice previously given,
moved the court to dismiss the appeal upon the grounds, in short, that between the date of the
commencement of the action and the final judgment of dismissal the record presents only a
moot question. In support of the motion are the affidavits of the assistant city engineer and
the city clerk of Reno. The affidavit of said clerk, among other things, states that a contract
had been entered into between the city of Reno and the Clark & Henery Construction
Company, a corporation, for the grading and paving with bitulithic concrete and bitulithic
material covering the streets and alleys referred to in the ordinances, resolutions, and
proceedings set forth in appellant's amended complaint, on March 10, 1920; that pursuant to
the ordinances and proceedings of said city council, an assessment was levied upon the
property abutting upon said streets and alleys, amounting to the sum of $136,071.96, and that
the property owners so assessed have paid all of such assessment, except the sum of
$34,626.21, which latter sum is a lien upon the property so assessed; that bonds of the city of
Reno were issued and sold to pay for the paving of street intersections and to cover the
assessment not paid in cash by the property owners (and not paid out of the general fund of
the city) in the sum of $24,626.98; that W. F. Edwards paid the amount so assessed against
his property in full in cash on the 22d day of April, 1920; that the entire contract has been
performed and completed, and the streets and alleys have been graded and paved, as
contemplated by the ordinances, resolutions, and proceedings, and that all of the money,
amounting to the total sum of $160,698.94, has been paid, except the sum of $500, withheld
by the city as a guaranty fund for the replacing of any faulty pavement or defects, etc.
pavement or defects, etc. The affidavit of the assistant city engineer contains the statement
that the contract in question had been fully executed, performed, and completed on November
23, 1920, and the work required thereby was finally accepted and approved by affiant on
November 23, 1920.
In opposition to the motion to dismiss, appellant caused to be filed an affidavit containing
the statement that in April, 1920, the city treasurer of respondent issued to appellant two
certain bills or demands for the sums due upon the assessments involved in this action and
appeal, aggregating $326.50, upon the face of which is printed a statement to the effect that if
the amount therein mentioned was not paid on or before the 22d day of April, 1920, the
amount could not be paid except in ten annual installments, with interest on deferred
payments at the rate of 7 per cent per annum; that affiant, upon instructions from appellant,
paid the amount under protest on the 22d day of April, 1920, and upon the receipts for said
payments so made is written the words, Paid under protest, which bills or demands and
receipts are exhibited with the affidavit.
1. It is urged by brief, and was argued orally by the appellant's counsel, that the demurrer
to the complaint admits as true the specifications of the divers infirmities in the assailed
assessment, and that to sustain the motion to dismiss would impose a lien upon the holdings
of all those nonpaying property owners in the sum of $24,426.98, based upon an admittedly
illegal and void assessment. We do not understand that the demurrer carries with it such an
admission or concession, or is to be so construed.
2. It is also urged in opposition to the motion to dismiss that the opinion of the court
below was rendered in October, 1920, nearly six months after the payment under protest of
the amount assessed against appellant's property, and that the point now urged for dismissal
was as available then as now, yet it was not raised in the court below, and, had it been
urged in the court below, appellant would have had his legitimate opportunity to amend.
the court below, and, had it been urged in the court below, appellant would have had his
legitimate opportunity to amend. In support of this position our attention is directed to this
court's denouncement of the practice of reserving a material point with the object of barring
an adversary of an opportunity to amend. Commending, as we do, its disapproval of such
practice as being contrary to the spirit of the code (Treadway v. Wilder, 8 Nev. 92; Cal. Tel.
Co. v. Patterson, 1 Nev. 150), we do not think counsel's conduct has any bearing upon the
question here presented. The fact that there is no controversy between parties to the record
ought, in the interest of a pure administration of justice, to be allowed to be shown at any
time before the decision of the case. Little v. Bowers, 134 U. S. 558, 10 Sup. Ct. 620, 33 L.
Ed. 1016.
3. Appellate courts do not give opinions on moot questions or abstract propositions. Pac.
Live Stock Co. v. Mason Valley M. Co., 39 Nev. 105, 153 Pac. 431. This court has gone so
far as to hold that, where parties to an appeal settle the controversy, the appeal will be
dismissed, though the case has been argued and submitted. Wedekind v. Bell, 26 Nev. 395,
69 Pac. 614, 99 Am. St. Rep. 704.
4. It is further urged that, appellant having paid the assessment under protest, no moot
question is presented, and appellant's rights in the premises still rest upon the legal
sufficiency of his cause of action. Treating the case and relief sought as a proceeding
analogous to that of an action to enjoin the collection of an illegal assessment or tax, upon
reason and authority we are of the opinion that, the contract sought to be canceled having
been fully performed and the appellant having paid the assessment in full, even though under
protest, we should sustain the motion. The rule is well established that:
When an appeal is taken from an order dissolving or denying a preliminary injunction, or
dismissing the bill, and, pending the appeal, the act sought to be restrained has been
accomplished, that fact, upon being brought to the attention of the reviewing court by
motion, supported by affidavit, affords sufficient ground for dismissing the appeal, the
dismissal being without prejudice * * * So, upon an appeal from a decree dismissing a bill
brought to enjoin the collection of taxes, the payment of such taxes pending the appeal
affords good reason for dismissing the appeal." High on Injunctions {4th ed.), sec.
and, pending the appeal, the act sought to be restrained has been accomplished, that fact,
upon being brought to the attention of the reviewing court by motion, supported by affidavit,
affords sufficient ground for dismissing the appeal, the dismissal being without prejudice * *
* So, upon an appeal from a decree dismissing a bill brought to enjoin the collection of taxes,
the payment of such taxes pending the appeal affords good reason for dismissing the appeal.
High on Injunctions (4th ed.), sec. 1701a.
In Singer Manufacturing Co. v. Wright, 141 U. S. 696, 12 Sup. Ct. 103, 35 L. Ed. 906, the
court said:
We are relieved from a consideration of the interesting questions presented as to the
validity of the legislation of Georgia, levying a license tax upon dealers in sewing machines.
* * * The taxes being paid, the further prosecution of this suit to enjoin their collection would
present only a moot question, upon which we have neither the right nor the inclination to
express an opinion. * * * The payment of the taxes was, it is true, made under protest, the
complainant declaring at the time that they were illegal, and that it was not liable for them;
that the payment was made under compulsion of the writ; and that it intended to demand, sue
for, and recover back the amounts paid. If this enforced collection and protest were sufficient
to preserve to the complainant the right to proceed for the restitution of the money, upon
proof of the illegality of the taxes, such redress must be sought in an action at law. It does not
continue in existence the equitable remedy by injunction, which was sought in the present
suit. The equitable ground for the relief prayed ceased with the payment of the taxes.
See, also, San Mateo v. Southern Pacific Ry. Co., 116 U. S. 138, 6 Sup. Ct. 317, 29 L. Ed.
589; Tomboy Gold Mines Co. v. Brown, 74 Fed. 12, 20 C. C. A. 264.
The action in the case at bar having been dismissed, and, during its pendency, the act
sought to be restrained having been performed, that fact, upon being brought to the attention
of this court by motion, supported by affidavit, affords sufficient ground for dismissing
the appeal.
the attention of this court by motion, supported by affidavit, affords sufficient ground for
dismissing the appeal.
The motion to dismiss the appeal is granted.
Per Curiam:
Rehearing denied.
____________
45 Nev. 145, 145 (1921) In Re Hegarty's Estate
[No. 2491]
In the Matter of the Estate of DENIS HEGARTY,
Deceased.
[199 Pac. 81]
1. WillsCourt without Jurisdiction to Make Order of Probate unless Statutory Notice Given.
Under Rev. Laws, 5866, 5871, unless notice of hearing for probate of a will was published for the ten
days required, the court had no jurisdiction to make the order for probate.
2. TimeNotice of Hearing for Probate Insufficient to Give Jurisdiction.
In view of Rev. Laws, 5482, under section 5866, where the time of hearing on probate of a will was
fixed in the notice for February 9, and the first publication of the notice was made January 31, and the
last February 7, the required ten days' notice of hearing was not given, and the court had no jurisdiction to
make order for probate.
3. TimeStatute Requiring Publication Once a Week for Number of Weeks Complied With
when Required Number of Publications Made.
A statute requiring publication of notice once a week for a given number of weeks is complied with
when the required number of publications had been made.
4. Appeal and ErrorObjections in Brief Not Discussed by Counsel Deemed Waived.
Objections incorporated in a brief but not discussed by counsel are deemed to have been waived.
Proceeding for probate of the will of Denis Hegarty, deceased, by Catherine Coleman,
executrix and sole legatee, wherein James Hegarty and others petition for revocation of order
of probate.
revocation of order of probate. From an order revoking the order of probate, the executrix and
proponent appeals. Order affirmed.
Moore & McIntosh, for Appellant:
The statute (Rev. Laws, 5866) was complied with. The purpose of the advertisement in a
newspaper is merely to give notice. The object of the publication, so far as it can be, is
accomplished. State v. Yellow Jacket S. M. Co., 5 Nev. 415; Decker v. Myles, 4 Colo. 558;
Stebbins v. Anthony, 5 Colo. 348; Sheldon v. Wright, 7 Barb. 39; Bachelor v. Bachelor, 1
Mass. 255; Pearson v. Bradley, 48 Ill. 250; Barrows v. National Rubber Co., 12 R. I. 173;
Herrick v. Graves, 16 Wis. 157; Hollister v. Vanderlin, 30 Atl. 1002.
Custom and usage control in the interpretation and construction of the statute. Many wills
have been admitted to probate on notices published either less than ten days prior to the date
fixed for the hearing, or more than twenty days prior thereto. The courts will not disturb an
interpretation or application of a statute or rule of court that has continued to be made in such
manner that property rights have settled and titles vested. Hollister v. Vanderlin, supra; Davis
v. Huston, 16 N. W. 820; Turner v. McCrea, 1 Nott & M. 11.
H. V. Morehouse, and A. A. Smith, for Respondents:
The court had no jurisdiction to proceed, the notice not having been published for the
statutory time. Rev. Laws, 5866; Estate of Charlebois, 12 Pac. 775. Where jurisdiction
depends upon the publication of notice, and the trial of the cause is proceeded with before
such publication is complete, the court acts without jurisdiction and its orders are void.
Carter v. Frahm, 141 N. W. 370; Beckett v. Selover, 7 Cal. 215. The statute prescribing the
notice must be strictly observed to give the court jurisdiction. Freeman on Judgments, sec.
611; Boswell v. Otis, 9 How. (U. S.) 336; Bunting's Estate, S4 Pac.
84 Pac. 109; Windsor v. McVeigh, 93 U. S. 274; McDonald v. Catz, 31 Cal. 167; Whitwell v.
Parbier, 7 Cal. 64.
The question of a want of jurisdiction can be raised at any time and in any manner. 12
Ency. Pl. & Pr. 190. Want of jurisdiction appearing, the court will, of its own motion, dismiss
the proceeding, set aside the decree, and order re-probate of the will. Evans v. Christian, 4 Or.
375; Railroad v. Church, 2 Pac. 218; Sanford v. Edwards, 61 Am. St. Rep. 482.
This is an appeal from an order of the district court vacating an order theretofore made by
said court admitting a certain instrument in writing, purporting to be the last will and
testament of Denis Hegarty, to probate, and appointing one Catherine Coleman, a sister of the
deceased, and the sole devisee and legatee and executrix therein named, as the executrix of
said purported last will and testament.
The order vacating the order of admission to probate was made upon petition of James
Hegarty, Daniel Hegarty, Margaret Hegarty, Annie Hegarty, Ellen Hegarty, and Mary
Hegarty, brothers and sisters of the deceased. It appears from the record that on the 28th day
of January, 1920, said Catherine Coleman filed her petition for the probate of said instrument
in writing as the last will and testament of the deceased, and for her appointment as executrix;
that thereafter and on the same date the clerk of the court made and signed a notice as
follows:
Notice is hereby given that Catherine Coleman, having filed in the court a document
purporting to be the last will and testament of Denis Hegarty, deceased, and a petition praying
that the same be admitted to probate, the hearing thereof has been fixed by said court for
Monday, the 9th day of February, 1920, at 1:30 o'clock p.m. of said day, at the courthouse, in
the city of Reno, county of Washoe, and all persons interested in the said estate, are notified
then and there to appear and show cause, if any they have, why said will should not be
admitted to probate and said petitioner appointed executrix thereof."
estate, are notified then and there to appear and show cause, if any they have, why said will
should not be admitted to probate and said petitioner appointed executrix thereof.
This notice was published in a weekly newspaper printed and published in the county
where said court was held, the first publication being made on January 31, 1920, and the last
publication on February 7, 1920, as shown by the affidavit of the principal clerk of said paper.
Thereafter, on the 10th day of February, 1920, the court, having taken the proof, admitted said
will to probate and appointed Catherine Coleman executrix thereof.
On the 10th day of July, 1920, James Hegarty, Daniel Hegarty, Margaret Hegarty, Annie
Hegarty, Ellen Hegarty, and Mary Hegarty served and filed their petition for a revocation of
the order made on the 10th day of February, 1920, admitting to probate the purported will of
the deceased and appointing Catherine Coleman as executrix, alleging as grounds therefor
that said Denis Hegarty was not of sound and disposing mind at the time he executed said
purported last will and testament, and was unduly influenced by said Catherine Coleman to
sign the same.
Catherine Coleman filed an answer to said petition for revocation. It appears from the
written decision of the trial court, incorporated in the record, that the issue raised by the
petition and answer came on for trial before a jury on the 3d day of December, 1920.
Whereupon counsel for the contestants of the will made an oral motion that the order
admitting the will to probate be vacated and set aside, and during the argument raised the
question of the jurisdiction of the court in admitting the will to probate on the ground that,
under the provisions of section 5866, ten days' notice had not been given. Thereafter, on the
20th day of December, 1920, the district court entered an order vacating the order admitting
the will to probate. From this order said Catherine Coleman appeals to this court.
It appears from the written decision of the court that this order was made upon the ground
that the court, in admitting the will to probate, was without jurisdiction, for the reason that
only nine days' notice of the hearing of the petition for probate was given, whereas the statute
requires not less than ten. The statute in relation to the notice of hearing of probate of wills
provides as follows:
All petitions for the probate of a will, and for the issuance of letters, shall be signed by
the party petitioning, or the attorney for such petitioners, and filed with the clerk of the court
who shall publish a notice in some newspaper, if there is one printed in the county, if not,
then by posting such notice in three public places in the county stating in such notice the
filing of such petition, the object, and designating a time for proving such will, which shall
not be less than ten nor more than twenty days. Rev. Laws, 5866.
1. Counsel for appellant contends that the court erred in vacating the order. We are unable
to agree with this contention. Unless notice for the probate of the will was published for the
time required by the statute, the court had no jurisdiction to make the order. This conclusion
is apparent from the several statutes pertaining to notice of the probate of wills, which with
great particularity prescribe the method of giving notice to heirs and persons interested. It also
appears from the provisions of the section immediately following, which reads:
At the time appointed, or at any other time to which the hearing may be continued, upon
proof being made by affidavit or otherwise, to the satisfaction of the court, that notice has
been given as required by the preceding sections, the court shall proceed to hear the testimony
in proof of the will. All witnesses who appear and are sworn shall testify orally. Rev. Laws,
5871.
This section plainly makes proof of notice an essential requisite to the authority of the
court to hear testimony in proof of the will. Jurisdiction of the subject-matter in the probate
of wills is given by law to the district court, and it is obvious that jurisdiction of the
persons interested in such probate proceedings can be obtained only by a strict
compliance with statutory methods.
in the probate of wills is given by law to the district court, and it is obvious that jurisdiction
of the persons interested in such probate proceedings can be obtained only by a strict
compliance with statutory methods. This construction is in accord with ample and
well-reasoned authority. Relative to the notice required of the hearing of the probate of a will,
a very eminent authority says:
The conclusiveness of the decree, as before stated, depends upon whether proper
jurisdiction to enter it has been obtained and proper notice given to all interested parties. The
statutory requirements concerning notice must be strictly complied with, and defective notice
cannot be cured nor rendered secure from collateral attack by a mere recital in the order that
proper notice was given, though, if the record is silent upon the subject, due service will be
presumed. But appearance voluntarily or upon defective service is a wavier of insufficient
notice. Until, however, there has been proper notice given, and proof of such notice, the court
is without jurisdiction to make any order whatever respecting the validity or invalidity of the
will. 1 Abbott's Probate Law, p. 348.
Upon the same subject the court in In Re Charlebois, 6 Mont. 373, 12 Pac. 775, said:
The court is authorized to hear the testimony in proof of the will after proof of notice of
the hearing has been given. But there is no authority to hear the testimony before proof of
notice. Notice, as provided by the law, gives jurisdiction. The probate court is of limited
jurisdiction. It has its life and being in the statutes. It possesses such authority as is conferred.
Jurisdiction comes to it by observing the law. The hearing for the admission of a will to
probate is in the nature of an action, and the order thereon is in the nature of a judgment. The
heirs at law have the right to be heard. They have the right to be present at the hearing; and if
they are not notified thereof, and an order is made without giving them an opportunity to be
heard, or to contest the admission of the will to probate, they would stand in very much
the same position as if a judgment had been rendered against them without bringing
them into court, and giving them an opportunity to answer or defend.
contest the admission of the will to probate, they would stand in very much the same position
as if a judgment had been rendered against them without bringing them into court, and giving
them an opportunity to answer or defend. No lapse of time would validate such a judgment. It
would be dead at its birth, and lapse of time could not bring it to life. It could be attacked
anywhere or in any form of proceeding.
In this case the statute required notice of the hearing of a petition for the probate of a will
to be published at least three times, upon three different days of publication when published
in a weekly newspaper; and, notice of the hearing being published only twice in a weekly
paper, the order of the court admitting a will to probate was declared void.
In Curtis v. Underwood, 101 Cal. 661, 36 Pac. 110, Heminway v. Reynolds, 98 Wis. 501,
74 N. W. 351, and Floto v. Floto, 213 Ill. 438, 72 N. E. 1092, the same rule is declared:
Notice in such a case (application to probate a will) is commonly required by statute to
confer jurisdiction upon the court. 40 Cyc. 1263.
See, also, Carter v. Frahm, 31 S. D. 379, 141 N. W. 370.
2. But it is insisted that the notice given by the clerk in this case was a sufficient
compliance with the statute to clothe the court with jurisdiction to admit the will to probate.
In this respect it is contended that in the absence of an express clause in section 5866,
requiring that the clerk publish the notice for so many days, or so many weeks, or so many
times during a definite period, one publication of the notice between the date which the notice
bears and the date therein fixed for the hearing, would satisfy the requirements of the section.
If this contention were admitted, then a publication on the day prior to the day designated for
the hearing would be permissible and the manifest purpose of the statute, to require not less
than ten days' notice of the hearing, utterly frustrated. We observe nothing uncertain in the
section as to the character of the notice required and the time for which it shall be given.
the notice required and the time for which it shall be given. It requires the clerk to publish a
notice in some newspaper, if there be one printed in the county; if not, to post it in three
public places in the county not less than ten days nor more than twenty days prior to the time
designated in the notice for proving the will. True, the section does not provide in express
terms that the publication or posting shall be prior to the time designated for the hearing, but
such is the plain and reasonable intendment. Any other intention on the part of the legislature
in this respect would amount to an absurdity, and the law does not countenance absurdities.
The date of the notice or the number of publications is immaterial. As will be observed, the
record discloses that the notice was not published ten days before the time designated in the
notice for proving the will. The time of the hearing was fixed in the notice for Monday, the
9th day of February, 1920, at 1:30 p.m. and the first publication thereof was made on January
31, 1920, while the last was made on February 7, 1920. Section 5482 of the Revised Laws
provides in part:
The time in which any act is to be done, as provided in this act, shall be computed by
excluding the first day, and including the last. * * *
When the time is thus computed it is seen that the notice of the time for proving the will
was published only nine days before the date designated. A notice published for a time less
than is required by the statute is as fatal to the jurisdiction of the court as the failure to give
any notice at all. In Re Charlebois, supra.
Counsel for appellant contend that, because two publications of the notice were made
between its date and the date of the hearing, the case of the State of Nevada v. Yellow Jacket
S. M. Co., 5 Nev. 415, is in point, and conclusive of their contention. In the Yellow Jacket
case the statute construed required the notice to be published once a week for three weeks. It
was held that it was not necessary to publish the notice for twenty-one days before the
election advertised, but that, as the notice was published once a week for three
successive weeks, the statute was satisfied, although the notice was only advertised for
seventeen days prior to the election.
twenty-one days before the election advertised, but that, as the notice was published once a
week for three successive weeks, the statute was satisfied, although the notice was only
advertised for seventeen days prior to the election. As the court said:
The purpose of the advertisement is to give notice to the legal voters of the school
district. When there have been three insertions of such notice upon three successive weeks the
object of the publication, so far as it can be, is accomplished. The statute certainly requires
but three publications of the notice; why then is not its full purpose accomplished upon the
expiration of the third day of publication?
It must be readily seen that the purpose of section 5866 in requiring publication for not
less than ten days cannot be accomplished unless the requirement is complied with. As
previously stated, the number of publications of the notice required by this section is
immaterial; the time of the publication prior to the time designated in the notice for proving
the will is the essential thing.
3. This court, in the Yellow Jacket case, adhered to the generally recognized rule that a
statute requiring publication once a week for a given number of weeks is complied with when
the required number of publications has been made. The statute there construed, and the one
under consideration in the instant case, are so essentially different in their requirements
concerning the publication of notice that the ruling in the former case is not at all in point. We
conclude that the court was without jurisdiction to make the order admitting the will to
probate, and that consequently the order was void.
4. A number of objections interposed in the court below pertaining to the authority of the
court to vacate the order admitting the will to probate are incorporated in the brief filed by
counsel for appellant; but, as counsel have not discussed these objections, we must deem
them waived.
The order of the district court setting aside the order admitting to probate the will of
Denis Hegarty, deceased, and appointing Catherine Coleman executrix thereof, is
affirmed.
order admitting to probate the will of Denis Hegarty, deceased, and appointing Catherine
Coleman executrix thereof, is affirmed.
____________
45 Nev. 154, 154 (1921) State v. Neven
[No. 2522]
THE STATE OF NEVADA, Respondent, v. JAMES
H. NEVEN, Petitioner.
[199 Pac. 83]
1. Criminal LawDetermination of Application for Certificate of Probable Cause for Appeal
Should Be Made by Single Justice.
As the statute provides that a certificate of probable cause for appeal from a conviction of crime may
issue on the direction of one of the justices of the supreme court, such application should not be
entertained by the court.
2. Criminal LawCertificate of Probable Cause for Appeal Should Issue when the Matter is
Debatable.
Under Rev. Laws, 7294, declaring that an appeal from a judgment of conviction shall stay execution
of the judgment upon the filing of a certificate of the judge of the court in which conviction was had, or
of a justice of the supreme court, that there was probable cause for the appeal, but not otherwise, one
convicted is entitled to such certificate if there is room for an honest difference of opinion as to the
existence of prejudicial error in the proceedings leading up to the conviction, and this is so regardless of
how the judge or justice may consider the questions raised should be ultimately decided; hence, a
certificate will be granted where it appeared that the appeal was not merely frivolous, for the purpose of
the statute is to prevent incarceration in the penitentiary of one not a hardened criminal.
3. Criminal LawOn Petition for Certificate of Probable Cause for Appeal, Question of Bail
Will Not Be Determined.
On petition to a justice of the supreme court for a certificate of probable cause for appeal from a
conviction of crime, the question of bail will not be determined.
Original Proceeding. James H. Neven, having been convicted of manslaughter, applied for
a certificate of probable cause for appeal. Certificate granted.
Moore & McIntosh, for Petitioner.
45 Nev. 154, 155 (1921) State v. Neven
L. D. Summerfield, District Attorney, for Respondent:
If the record on its face shows that the petitioner was not prejudiced, the writ and the order
for bail should be denied. He was found guilty of manslaughter, the lowest form of verdict
under the indictment, and the jury recommended to the court leniency in the fixing of the term
of imprisonment. 17 C.J. 330. It is apparent from the fact that the jury recommended
defendant to the mercy of the court that it was not, in rendering its verdict, actuated by
passion or prejudice against defendant. People v. Lopez, 197 Pac. 144.
The conditions precedent to the issuance of a writ of probable cause have been definitely
fixed by this court. It is essential that there be probable cause for appeal. State v. McFarlin, 41
Nev. 105.
A certificate of probable cause and bail were requested of the court below and denied. The
court was thoroughly familiar with the record and must be accorded proper recognition by
this court. State v. Smith, 33 Nev. 435, 111 Pac. 929.
Under our statutes no bail can be granted in this case. Stats. 1919, p. 468; Rev. Laws,
7314; Ex Parte Voll, 41 Cal. 29.
Sanders, C. J. (in chambers):
This is an application to this court for a certificate of probable cause for an appeal from a
judgment of the district court of Washoe County upon a conviction for manslaughter.
J. H. Neven was accused by an information filed by the district attorney of Washoe County
of the crime of murder, and upon trial thereon was convicted of manslaughter and sentenced
to imprisonment in the penitentiary of this state for a period of not less than five nor more
than eight years. On the day that judgment was pronounced against him, the defendant moved
the court for a new trial upon all of the statutory grounds, which motion was denied; and I
assume from the record that he was committed to the custody of the sheriff of Washoe
County, in March, 1921, to be transported to the state prison at Carson City, where he is
now confined.
45 Nev. 154, 156 (1921) State v. Neven
he was committed to the custody of the sheriff of Washoe County, in March, 1921, to be
transported to the state prison at Carson City, where he is now confined. Upon the
pronouncement of judgment of conviction, he immediately gave notice of appeal to this court
from the order denying and overruling his motion for a new trial, and from the judgment, and
also applied to the trial judge for a certificate of probable cause staying execution of the
judgment pending appeal, which was refused. Thereafter the defendant presented to this court
an application, in the form of a petition, representing that he had been found guilty of
manslaughter by the verdict of a jury; the denial of his motion for a new trial; that he had
been sentenced, as above stated, and had appealed from the order denying his motion for a
new trial, and from the judgment of conviction. He alleges in his petition that his appeal is
being prosecuted with diligence, and in good faith, with the full expectation that the
judgment, upon hearing of his appeal, will be reversed, and a new trial awarded, and that
there is probable cause for the appeal. A transcript of the testimony of the witnesses and the
record of the proceedings in the lower court is referred to in the petition, and made a part
thereof by proper averments. He concludes his petition with the prayer that this court make an
order staying execution of the sentence and judgment pending the appeal, that a certificate of
probable cause for the appeal issue, and that the petitioner be admitted to bail in such
reasonable amount as this court may fix pending appeal.
1. Upon presentation of the petition to me, as Chief Justice of the Supreme Court of
Nevada, counsel for petitioner represented that the transcript of the testimony and
proceedings in the lower court were quite voluminous, and the application for a certificate of
probable cause had been delayed on account of their inability to have it properly transcribed
and certified as required by the Criminal Practice Act on appeal, and requested that a day be
fixed for the hearing of the petition.
45 Nev. 154, 157 (1921) State v. Neven
requested that a day be fixed for the hearing of the petition. Pursuant to this request a time
and place for hearing was fixed, and counsel were directed to notify the district attorney of
Washoe County. On the day fixed for the hearing of the petition, which was strenuously
opposed by the district attorney, a majority of the members of this court were in doubt as to
whether the court, under the particular provisions of the statute under which the proceeding
herein is predicated, could assume jurisdiction as a court to take cognizance of the subject,
and it was understood that the members of the court should sit en banc for the purpose of
hearing the application only, and thereafter determine whether they should participate as a
court in the conclusions reached on the petition. Upon conference, a majority of the court do
not desire to commit themselves to the practice of entertaining applications to the court in
matters of this sort, when the statute provides that a certificate of probable cause may issue on
the direction of one of the justices. In conformity with this conclusion, the duty devolves
upon me, as chief justice, to dispose of the petition.
2, 3. There is no rule, and there has been no uniform practice, with reference to
proceedings in cases arising under section 444 of the Criminal Practice Act (Rev. Laws,
7294), on which this application is based, which reads as follows:
An appeal to the supreme court from a judgment of conviction shall stay the execution of
the judgment upon filing with the clerk of the court in which the conviction shall have been
had a certificate of the judge of such court, or of a justice of the supreme court, that in his
opinion there is probable cause for the appeal, but not otherwise.
In the case of State v. McFarlin, 41 Nev. 105, 167 Pac. 1011, application was made to the
chief justice for a certificate of probable cause, and for an order for bail pending appeal. The
case being one apparently of first impression, the chief justice took pains to embody his
views in an opinion covering his interpretation of the section of the Criminal Practice Act
as above quoted, and other sections of the Criminal Practice Act relative to the question
of bail after conviction.
45 Nev. 154, 158 (1921) State v. Neven
his views in an opinion covering his interpretation of the section of the Criminal Practice Act
as above quoted, and other sections of the Criminal Practice Act relative to the question of
bail after conviction. While I might be in accord with some of the general statements
contained in the opinion as to the influences that should move a justice of this court to issue a
certificate of probable cause, I do not go to the extent of holding that, under the provisions of
the statute, such justice is authorized to order that the applicant or petitioner be admitted to
bail. He is not concerned with the question of bail on an application for a certificate of
probable cause. Neither do I think that in matters of this kind any formal statement in writing
should be made of the grounds of the decision in case the application is granted or refused;
but for the benefit of future applications I may be permitted to state my opinion as to when a
certificate of probable cause should issue.
The statute (Rev. Laws, 7294) clearly points out that a criminal appeal, except in capital
cases, does not stay execution of the judgment unless a certificate is filed with the clerk of the
court by the trial judge, or a justice of the supreme court, that in his opinion there is probable
cause for the appeal. Probable cause for the appeal, as used in the statute, means only that
there is presented a case that is debatable; a case that is not clearly and palpably frivolous and
vexatious; a case upon which there may be an honest difference of opinion. In Re Adams, 81
Cal. 163, 22 Pac. 547. Probable cause for the appeal is not the equivalent of probable
cause for reversal of the judgment. When, therefore, there is probable cause for the appeal,
the applicant is clearly entitled to the certificate as matter of right, and there is probable cause
whenever there is room for an honest difference of opinion as to the existence of any
prejudicial error in the proceedings leading to the conviction. In all such cases it is the duty of
the trial judge to grant the certificates, notwithstanding his own opinion that the record is free
from error.
45 Nev. 154, 159 (1921) State v. Neven
from error. People v. Gallanar, 144 Cal. 656, 79 Pac. 378. No trial judge and no member of
this court, whatever his individual opinion may be as to the validity and regularity of the
conviction, is authorized to refuse a certificate of probable cause and state of execution
pending appeal, unless the case is so clear as to admit of no rational doubt or serious
discussion. In Re Adams, supra. Both such judges are required to give the prisoner the benefit
of every doubt, exercising their discretion liberally whenever a case is presented upon which
candid minds might rationally differ. In Re Adams, supra.
I conceive that the primary purpose of injecting the provision under review into our
Criminal Practice Act was to stay the execution of the judgment to prevent one not a
hardened criminal from being incarcerated in the penitentiary to suffer the ignominy, stigma,
and disgrace of a convict pending the exercise of his constitutional right of appeal. The
privilege is of inestimable value, and it ought never to be denied, as above stated, except in a
case in which it is certain no error can be found. In Re Adams, supra.
Whether or not, in the case as here presented, I might be of the opinion that the rulings of
the trial court ought to be affirmed in this court is not involved. No trial court, or justice of
this court, to whom application for probable cause is made, is authorized merely to take into
consideration his own opinion, when no judge could fail, on a mere inspection of the record,
and without argument, to pronounce the appeal frivolous. In Re Adams, supra.
In this case the bill of exceptions presents several questions which I am not prepared to say
are wholly without merit, and therefore I shall grant the certificate prayed for, intimating no
opinion of what stand I shall take on the merits of the appeal. As to the question of bail, I am
not concerned. It is a matter for a court of competent jurisdiction, on proper application, to
consider and determine.
The clerk is ordered to issue the certificate, and to file the records in this proceeding,
together with this opinion and order.
45 Nev. 154, 160 (1921) State v. Neven
file the records in this proceeding, together with this opinion and order.
____________
45 Nev. 160, 160 (1921) Robertson v. C.O.D. Garage Co.
[No. 2478]
J. C. ROBERTSON, Appellant, v. C.O.D. GARAGE
COMPANY (a Corporation), Respondent.
[199 Pac. 356]
1. SalesOne who Wrongfully Takes Goods Cannot Convey Title, Even to Innocent
Purchaser.
One who wrongfully takes goods without the owner's consent acquires no title thereby, and can
convey none; so, as against even an innocent purchaser for value, the owner may pursue his property and
retake it wherever found.
2. Principal and AgentAuthority Can Be Implied Only from the Nature and Needs of the
Business, Etc.
Authority of an agent can be implied only from the nature and needs of the business or the conduct of
the principal, and it cannot be implied from mere argument or the convenience or propriety of the
possession of such power by the agent.
3. Principal and AgentAgent Directed to Keep Open Place of Business Held to Have No
Authority to Sell Automobiles.
Where plaintiff during his absence engaged an agent to keep open his place of business, but did not
authorize him to make sales, that fact did not give the agent implied authority to take out an automobile
and sell it for much less than its real value, and one purchasing from such agent, who required the check
to be made out in his own name, cannot hold the car as against plaintiff on the theory of implied
authority, for the sale cannot be deemed in the ordinary course of business.
4. Principal and AgentPrincipal Not Liable for Agent's Individual Frauds.
While the principal is liable within defined limits for frauds perpetrated in his name by his agent, the
principal cannot be made liable for individual frauds perpetrated by the agent on his own account; so,
where one engaged by plaintiff merely to keep open his automobile sales agency wrongfully took a car
and sold it for his own benefit, plaintiff cannot be held liable.
5. Appeal and ErrorWhere Case Was Tried on Theory of Authority of Agent, Estoppel
Cannot Be Invoked on Appeal.
Where plaintiff's agent, who was merely authorized to keep open plaintiff's automobile sales agency,
wrongfully took an automobile therefrom, and sold it for much less than its value, and departed with the
money, plaintiff cannot, where judgment in a claim-and-delivery action was rendered against him on the
theory of authority, express or implied, be defeated on appeal on the theory of estoppel, for the case should
be disposed of on the same theory as below.
6. Principal and AgentStatement That Plaintiff Trusted Agent Will Not Establish
Authority.
Where plaintiff left an agent to keep his place of business open, and such agent wrongfully took
therefrom an automobile and sold it for much less than its actual value, a statement by plaintiff that he
trusted the agent and that he had previously sold an automobile will not establish the agent's authority to
make the sale.
7. EstoppelThough Plaintiff Left Agent to Keep Open Business, He May Recover Property
Wrongfully Sold by Agent, Despite Claim He Placed It within Agent's Power to Make Sale.
Where plaintiff left a third person to keep open his automobile agency during his temporary absence, and
such person without authority sold an automobile for very much less than its value, and appropriated the
proceeds, plaintiff cannot be defeated, in an action of claim and delivery against the purchaser, on the
theory that, where one of two innocent persons must suffer, that one must bear the loss by whose act the
loss was made possible, for plaintiff was in no sense responsible for the dishonesty of his agent.
Appeal from First Judicial District Court, Douglas County; Frank P. Langan, Judge.
Action by J. C. Robertson against the C. O. D. Garage Company. From a judgment for
defendant, plaintiff appeals. Reversed and remanded.
Moore & McIntosh, for Appellant:
Embezzlement by servant or agent entitles principal to recover. Rev. Laws, 6650-6654;
Stats. 1915, p. 202; 31 Cyc. 1605-1607; Menardi v. Walker, 32 Nev. 169.
Plaintiff may recover the property or its value. 31 Cyc. 1607 (2); Velsian v. Lewis, 16 Pac.
631. It was the duty of defendant to ascertain the authority of the seller. Springer v. Bank,
Ann. Cas. 1917a, 520.
The principal cannot be bound by representations made after the transaction. Harris v.
Flume Co., 25 Pac. 758.
Agency cannot be shown by mere acts and declarations of the alleged agent. Defendant
cannot rely upon the estoppel of plaintiff to deny the agent's authority, if it relied wholly upon
the alleged declarations of the agent, and made no further inquiry. Bank v. Bertoli, Ann. Cas.
1917b, 590; 31 Cyc. 1244, 1652(c).
An agent is not a mere servant or caretaker, but one whose employment corresponds to
that of some known kind of commercial representative, such as a factor. Levi v. Booth, 42
Am. Rep. 332; Turner v. Cross, 15 L. R. A. 262; Rodgers v. Peckham, 120 Cal. 238. A
principal who merely entrusts another with possession and control of property necessary to
the transaction of business is not estopped from asserting his title. 31 Cyc. 1235(1). Simply
entrusting possession of property to an agent (even though he be such in fact) confers no
authority on him to sell the same. Kohler v. Hays, 41 Cal. 455.
Title to property cannot be acquired, unless the alleged agent have some evidence of
authority to sell, other than bare possession. 31 Cyc. 1352 (2), 1605(e); Velsian v. Lewis,
supra.
As to payment to agent, in order to bind principal, collection must be made by one who is
not only agent but who has been clothed with authority to make collection; payer must show
that the person paid is authorized to receive payment; and payment to one whose agency is
known, but whose authority to receive payment is not known, will not preclude the principal
from recovery from debtor, when agent has failed to account to the principal. 31 Cyc. 1352,
1363, 1603; Dutcher v. Beckwith, 92 Am. Dec. 232; Lester v. Snyder, 55 Pac. 613.
Platt & Sanford, for Respondent:
Having been entrusted with plaintiff's business, the agent became general agent for the
conduct of the same.
Wilson v. Monechas, 20 Pac. 468; 21 R. C. L. 819-907. Private understandings or
arrangements did not alter the situation, so far as third parties are concerned. 1 Mechem on
Agency, secs. 241, 247. The agent being clothed with an apparent ownership and authority to
sell, defendant is protected in his purchase, even though the former subsequently embezzled
the purchase money, or the plaintiff failed to receive the proceeds through said agent's fraud
or misconduct. 35 Cyc. 363. The secret and undisclosed understanding between the agent and
principal was not binding upon the purchaser. 1 Mechem on Agency, secs. 712, 730; Webster
v. Wray, 17 Neb. 579; Van Duzer v. Howe, 21 N. Y. 531; Redlich v. Doll, 54 N. Y. 234;
Carrard v. Hadden, 67 Pac. 82; Midland S. & L. Co. v. Sutton, 120 Pac. 1010; Pacific B. Co.
v. Dugger, 67 Pac. 32; Browning v. McNear, 111 Pac. 541; Silver Mt. M. Co. v. Anderson,
117 Pac. 173.
Authority is not dependent upon proof of a conscious intention to confer it. It need not be
expressly conferred, but is often presumed from acts and conduct of the principal. Mechem
on Agency, secs. 241, 247. The authority of the agent is to be gathered from all of the facts
and circumstances in evidence. 21 R. C. L. 819, 856; Jones on Evidence, sec. 256; Nicholas
v. Title Co., 154 Pac. 391. The principal is bound by the apparent authority of the agent.
Bradstreet Co. v. Gill, 72 Tex. 115; 35 Cyc. 363. Where the dealing or course of conduct of
the principal is such as to reasonably warrant the presumption that a person was his agent and
authorized to act in that capacity, such authority will be conclusively presumed to have been
given, so far as necessary to protect innocent third parties. Secret and undisclosed
understandings between principal and agent are not binding on third parties. Mechem on
Agency, secs. 246, 712, 730; Midland S. & L. Co. v. Sutton, 120 Pac. 1010; Pacific B. Co. v.
Dugger, 67 Pac. 32; Silver M. Co. v. Anderson, 117 Pac. 173; Browning v. McNear, 111 Pac.
541.
Failure to promptly repudiate acts is equivalent to an adoption and ratification. 21 R. C. L.
930. Where defense is based upon nonagency, testimony that principal treated with third party
as agent in a prior transaction is admissible. Wigmore on Evidence, sec. 377.
Agent authorized to sell and deliver goods is impliedly authorized to receive payment.
Authority may be inferred from conduct of parties. Mechem on Agency, sec. 865; 21 R. C. L.
867; Bull v. Duncan, 59 Pac. 42.
This is an action under the statute of claim and delivery brought by the owner to recover
the possession of an Overland automobile, alleged to have been stolen from him and from his
place of business in the city of Reno, Nevada, on or about the 18th day of May, 1919. The
defendant denied plaintiff's ownership and the theft of the automobile, disclaimed any
knowledge of plaintiff's business, asserted that it purchased the automobile from the owner
thereof in the ordinary course of trade for a valuable consideration, and demanded judgment
that it be adjudged the owner and entitled to its possession. Referring to the parties as they
stood in the court below, appellant as plaintiff, and respondent as defendant, and to the
automobile in dispute as demonstrator car, the facts, in brief, are as follows:
The plaintiff was the agent, within the meaning of the automobile trade, of the
Willys-Knight Automobile Company for the sale of its cars in certain counties of Nevada,
including Minden, Douglas County, with his place of business in Reno. The defendant was a
general dealer in automobiles, and was the sales agent of the Ford, Chevrolet, and Buick cars,
and operated, in connection with its business, a garage at Minden, Nevada, under the name
and style of C. O. D. Garage Company, a corporation.
During the month of May, 1919, plaintiff desired to attend a convention of automobile
dealers in San Francisco, and having no person in his employ to leave in charge of his place
of business, and desiring it to be kept open during his absence, one P. B. Zeigler, an
acquaintance of several months' standing, and a person who had spent much time in and
about plaintiff's place of business, and in whom plaintiff necessarily placed confidence
and trust, volunteered, for plaintiff's accommodation, to keep his place of business open
for him during his absence in attendance upon said convention.
charge of his place of business, and desiring it to be kept open during his absence, one P. B.
Zeigler, an acquaintance of several months' standing, and a person who had spent much time
in and about plaintiff's place of business, and in whom plaintiff necessarily placed confidence
and trust, volunteered, for plaintiff's accommodation, to keep his place of business open for
him during his absence in attendance upon said convention. With this understanding, plaintiff
departed for San Francisco, leaving said Zeigler in charge of his office. Plaintiff was the
owner of, and had in his place of business for sale, four or five Overland cars, one of which
had been used by him for several months as a demonstrator car, that bore a dealer's
certificate license. The sale price of the demonstrator car, new, was $1,050. Its then sale
value, in plaintiff's judgment, was $950. Plaintiff was absent two days longer than he had
expected and was away from his office four or five days. He testified that before he left for
San Francisco he had no understanding or agreement with said Zeigler about the sale of any
cars, or of the car in dispute, to defendant or to any other person, and that Zeigler had no
authority to sell any cars to defendant, or to any one else; that Zeigler was merely left in
charge of plaintiff's place of business, to keep the same open during his absence, and for
plaintiff's convenience and accommodation, and for that purpose only.
It appears that Zeigler, during plaintiff's absence, took the demonstrator car from the
place of business and, in company with two gentlemen, drove into Douglas County, passing
through the town of Minden, a distance of over fifty miles from the city of Reno, where he
met with an accident to the car and was compelled to have it towed into Minden and placed in
defendant's garage for repairs. It was admitted on the trial that to repair the damage would
cost about $35 or $40. Two days thereafter Zeigler returned to Minden with another of
plaintiff's cars, and, while in defendant's garage and in defendant's presence, removed the
license certificate plate from the damaged car and placed it upon the new car, and on the
next day {Sunday) sold the damaged car to defendant for the sum of $600.
plate from the damaged car and placed it upon the new car, and on the next day (Sunday) sold
the damaged car to defendant for the sum of $600. The car was paid for by defendant's check,
made payable to P. B. Zeigler, at his request, on the bank in Minden, which was indorsed and
cashed by Zeigler at the bank on the same day. The evidence tends to show that in the
transaction Zeigler represented himself to be the agent of plaintiff. Zeigler returned to Reno
with the new car. On plaintiff's return from San Francisco he found his place of business
closed, and Zeigler gone therefrom, and his demonstrator car missing. Upon inquiry and
search, he learned that Zeigler had disposed of his demonstrator car to defendant and
decamped with the money received therefor, leaving no trace of his whereabouts. Plaintiff
thereupon obtained a warrant for his arrest, which, so far as the record shows, has never been
executed. Within four or five days thereafter plaintiff went to Minden and made demand upon
the defendant for the return of his car, which was refused, and thereafter brought this action in
the district court of Douglas County to recover the possession of the car.
The defendant's evidence consists mainly of an endeavor to establish the relation of a
general agency between Zeigler and plaintiff and Zeigler's authority to dispose of the car. It
tends to show that plaintiff had admitted in a conversation with C. O. Dangberg, defendant's
president, at a time about ten days after the transaction, that he had trusted Zeigler, and that
he was selling cars for him, and had sold one at Verdi, Nevada, and had received $40
commission on the sale. This is about all the evidence tending directly to establish the
relationship of the parties.
The case was tried before the court without a jury. The court's finding is to the effect that
plaintiff was the owner of the automobile (describing it); that defendant was engaged in the
automobile business; that the car was purchased by it in the ordinary course of trade for a
valuable consideration from plaintiff through his authorized agent; that the same is lawfully
in its possession, and it is the owner thereof, and rendered judgment accordingly.
authorized agent; that the same is lawfully in its possession, and it is the owner thereof, and
rendered judgment accordingly. The plaintiff appeals from the judgment, and from an order
denying him a new trial.
In a case of this kind the issue is whether the defendant has lawful possession of the car.
The plaintiff contends that defendant's possession is unlawful (or tortious, to use the
convertible word). The court was of the opinion that it was lawful, because the car was
purchased from the true owner, through his authorized agent, in the ordinary course of trade.
We are here concerned with the correctness or incorrectness of the court's finding, rather than
the correctness of plaintiff's position. We interpret the finding of the court to mean that
Zeigler was plaintiff's agent, and had actual authority, either expressed or implied, to dispose
of the car in the manner in which he did, to receive the money, and to pass title to the car.
1. It must be conceded that one who wrongfully takes goods without the owner's consent
acquires no title thereby, and can convey none, by any sale or transfer he may make. So when
such a taker sells the goods, even to an innocent purchaser for value, the owner may pursue
his property and retake it wherever found. Wells on Replevin, sec. 309, p. 290. Conceding ,
then, for the purposes of this case, P. B. Zeigler to have been plaintiff's agent, if he took the
car wrongfully or in violation of his trust, without plaintiff's consent, and sold it, the
defendant acquired no title.
This principle is carried into our Crimes and Punishments Act (Rev. Laws, 6653), wherein
it is provided that any agent, manager, or clerk of any person with whom property shall have
been intrusted, who shall use or appropriate such property in any manner or for any other
purpose than that for which the same was intrusted, shall be guilty of embezzlement, and
shall be punished in the manner prescribed by law for the stealing or larceny of property. The
lower court excluded and ignored all facts and inferences legally deducible therefrom
tending to show that the car in controversy was taken under circumstances that might
convict the taker of embezzlement.
therefrom tending to show that the car in controversy was taken under circumstances that
might convict the taker of embezzlement. The court was evidently satisfied that, upon
plaintiff's own showing, he, having left Zeigler in control of his business, impliedly intended
to and did confer upon him full power and authority as his manager, representative, or agent
to make sale, not only of the car in dispute, but of all or any of plaintiff's cars left in his
possession and under his control. There is no evidence of an expressed intention on the part
of plaintiff to authorize Zeigler to dispose of and receive money for any of his cars. If such
was his intention, it is to be implied form the fact or circumstance that Zeigler was left in
charge of his business. The question, therefore, is whether or not the facts and circumstances
warrant the inference that there was an implied intention on the part of plaintiff to authorize
Zeigler to dispose of and receive the money for the car in question, constructively under his
control and in his possession.
2. Zeigler's authority, if implied at all, can only be implied, as stated, from the facts.
Implied authority is not to be created by mere presumption, or any abstract considerations,
however potent, that it would be expedient or convenient that the authority should exist. It
must find its source in the act or acquiescence of the principal, either express or implied. It is
generally conceded that implied powers and authority of an agent (constantly used
synonymously) depend largely upon the circumstances in each case, and upon what is
necessary or reasonable to enable him to effect the purpose of his agency. In other words,
authority must be implied from the nature and needs of the business or the conduct of its
principal, and it cannot be implied from mere argument or the convenience or propriety of the
possession of such power by the agent. 2 Corpus Juris, sec. 218, p. 577.
3. Coming, then, to the facts of this case, we are constrained to take the view that the
learned trial judge, in deciding in opposition to plaintiff's direct and positive evidence,
namely, that he did not intend to and did not clothe Zeigler with authority to make sales
of his cars during his absence, was induced to do so from plaintiff's act in leaving Zeigler
in charge of his business.
in deciding in opposition to plaintiff's direct and positive evidence, namely, that he did not
intend to and did not clothe Zeigler with authority to make sales of his cars during his
absence, was induced to do so from plaintiff's act in leaving Zeigler in charge of his business.
We do not think this fact warrants such inference, and shall hold that the evidence does not
support the finding that the car was purchased from plaintiff through his authorized agent in
the ordinary course of trade. Dealing with an agent in the ordinary course of trade means, we
take it, the usual, proper, and necessary things to be done in carrying out the business in its
usual and accustomed way, and which the principal could and would usually do in like cases.
Under the facts of this case, we decline to take judicial notice that the sale of the car in
controversy was made in the ordinary course of trade of the automobile business as conducted
by plaintiff. We are of the opinion that where a person is left in charge of an automobile
business, with the specified and extremely limited authority to keep the place of business
open for the owner's accommodation for a temporary period, said person is not thereby
authorized to act as an agent, with authority to sell a car or cars to a rival dealer, or to any
other person, for a price of $350 less than the market value for his own benefit. This act,
taken in conjunction with Zeigler's conduct, was a circumstance that should have put a
reasonably prudent person on inquiry as to the source and extent of his authority.
4. We are further of the opinion that under the particular facts and circumstances Zeigler
was not the plaintiff's authorized agent to dispose of cars and receive the money therefor. He
was left in charge of plaintiff's business for the particular purpose of keeping the same open,
and not as his manager or salesman. Leaving Zeigler in charge does not warrant the inference
that it was necessary, proper, and usual for Zeigler to close up plaintiff's business, take a
particular car therefrom, and dispose of it in the manner stated, receive the money
therefor, and decamp, leaving no trace of his whereabouts.
dispose of it in the manner stated, receive the money therefor, and decamp, leaving no trace
of his whereabouts. While the law, within certain well-defined limits, will make the principal
liable for frauds perpetrated in its name by the agent, it has never been held that the principal
could be made liable for the individual frauds of an agent, perpetrated on his own account.
Sioux City Nursery & Seed Co. v. Magnes, 5 Colo. App. 176, 38 Pac. 330.
5. Counsel for the respondent argues that plaintiff having conferred upon Zeigler
ostensible authority to dispose of the car, and defendant believing he had such authority, and
that its belief was generated by the conduct of plaintiff, we should affirm the judgment, for
the reason that to permit plaintiff, as against defendant, under the circumstances, to deny
Zeigler's authority, would be to sanction a fraud. The difficulty with this position is that both
counsel and the court took the position that Zeigler was plaintiff's authorized agent, action
with an authority actually conferred, either expressly or impliedly. We are therefore precluded
from taking an opposite view, and trying the case here upon a theory different from that upon
which it was tried in the lower court. The court, by its finding that defendant purchased the
car though plaintiff's authorize agent, excluded from consideration principles which govern
an unauthorized act of an agent, and eliminated, as we think, the doctrine of agency by
estoppel from the case. If Zeigler was plaintiff's authorized agent, it was immaterial whether
defendant knew of the authority and acted on the faith of it or not, because the act of the agent
is the act of the principal. Holmes v. Tyner (Tex. Civ. App.) 179 S. W. 892. As the doctrine
of agency be estoppel did not enter into the court's finding, we decline to inject it here for the
first time on appeal.
6. It is urged that the admission or declaration of plaintiff, made shortly after the
transaction, to the effect that he trusted Zeigler, and that he {Zeigler) was selling cars for
him, and had sold one at Verdi, established the fact of agency.
effect that he trusted Zeigler, and that he (Zeigler) was selling cars for him, and had sold
one at Verdi, established the fact of agency. This declaration or admission by no means
conclusively proved the extent of Zeigler's authority, which is the bone of contention in this
case. That Zeigler perpetrated a fraud, in no wise authorized or sanctioned by plaintiff, is
indisputed. In the particular act so done by Zeigler he was not in fact the agent of the plaintiff,
for no one can be the agent of another in the doing of an act which is in no wise authorized by
him, or which may indeed have been done against his expressed wish. Dougherty v. Wells,
Fargo & Co., 7 Nev. 368.
7. But it is finally insisted that the case comes within the alleged maxim, which Mr. Mechem
says contains only half a truth, that:
Where one of two innocent persons must suffer by the act of a third, that one should bear
the loss by whose act the loss was made possible, or who enabled the wrongful act to be
committed, or who first reposed trust and confidence in the wrongdoer.
The difficulty with the application of the alleged maxim to this case is that the result of
plaintiff's negligence or omission in leaving Zeigler in charge of his place of business was not
one reasonably to be apprehended and guarded against. He reposed confidence and trust in
Zeigler. That a previously honest agent will commit a crime is not, for example, ordinarily an
act reasonably to be so anticipated. Mechem on Agency (2d ed.) sec. 1986. The plaintiff was
equally as innocent of Zeigler's dishonesty as the defendant. Zeigler's misconduct was not
caused by plaintiff's act. Hence the law of this state is that any agent, manager, or clerk of any
person with whom property shall have been intrusted, who shall use or appropriate such
property in any manner or for any other purpose than that for which the same was intrusted,
shall be guilty of embezzlement, and the owner may retake it from any person in whose
possession it may be found.
Entertaining the view that the evidence does not support the finding on which the
judgment is based, we reverse the judgment, and remand the cause for new trial.
Ducker, J.: I concur in the order.
I concur in the order of reversal. In my opinion, the evidence shows that Zeigler, if an
agent at all, was one with special and exceedingly limited authority confined solely with
keeping open appellant's place of business and answering inquiries during his absence.
Perhaps he had the privilege of working up a prospective customer; but, if a sale resulted, it
would be concluded by appellant, and all the details connected therewith would be arranged
by him.
There is nothing in the conduct of Zeigler which could have justified the conclusion by the
respondent that he was an agent with authority to make a sale. On the other hand, the
circumstances of the case were, in my opinion, such as to put respondent on notice as to the
real situation. Zeigler's selling the car for a sum ridiculously less than the regular selling
price, even though it had been used to a limited extent, his insisting upon the check being
made to him personally, and his conduct generally, could but arouse the suspicion of a
reasonably prudent person, to say nothing of one engaged in the garage and automobile
business, as was respondent; and this, too, during the absence of appellant.
A party dealing with an agent of this class acts at his own peril, and is bound to inquire
into the nature and extent of the authority actually conferred. Sioux City N. Co. v. Magnes, 5
Colo. App. 176, 38 Pac. 332.
____________
45 Nev. 173, 173 (1921) Ex Parte Rankin
[No. 2502]
In the Matter of the Application of ISAAC
RANKIN for a Writ of Habeas Corpus.
[199 Pac. 474]
1. Habeas CorpusUse of Illegal Evidence at Preliminary Hearing Not Ground for Discharge.
Whether or not an information may be dismissed on the ground that it was obtained by the use of
evidence acquired by means of an illegal search warrant, the use of such illegal evidence is not sufficient
to warrant the discharge of accused on a writ of habeas corpus.
2. Criminal LawDismissal of Misdemeanor Information for Purpose of Filing Amended
Information Does Not Bar Subsequent Prosecution.
Where the record shows that the original information was expressly dismissed without prejudice for
the purpose of allowing the filing of a new information for the same offense based on the same
preliminary proceedings, there was no dismissal of the prosecution within Rev. Laws, 7398, 7399, Stats.
1919, 437, which would be a bar to another prosecution for the same misdemeanor under section 7401.
3. Criminal LawIntoxicating LiquorsInitiative Prohibition Act Is Constitutional, and
District Court Has Jurisdiction.
The Initiative Prohibition Act is constitutional, and the district court has jurisdiction in all cases of its
violation.
Original Proceeding. Application for writ of habeas corpus by Isaac Rankin. Proceeding
dismissed, and petitioner remanded to custody.
J. G. Thompson, for Petitioner:
The search warrant was illegal. Such a warrant must be based on probable cause and
supported by affidavit. Rev. Laws, 7417. Nor was it valid under the prohibition act. Stats.
1919, p. 1, sec. 9. Where affiant makes affidavit as to facts, they must be stated; mere belief is
not sufficient. Lippman v. People, 175 Ill. 112. Where formalities are required, they must be
strictly complied with. Commonwealth v. Hinds, 145 Mass. 182; State v. Brennan, 25 Conn.
278. To lay the foundation for a search warrant, the oath must state that the property is
concealed in some designated place.
Haworth v. Howell, 102 Iowa, 545; State v. Certain Liquors, 64 Iowa, 300; Const. Nev. art. 1,
sec. 18.
A search warrant must specify particularly the place to be searched, and general warrants
to search unnamed places are illegal at common law, as well as under the provisions of
federal and state courts. Lennon v. Britten, 145 Ill. 243; Johnson v. Comstock, 14 Hun, 238;
State v. Liquors, 44 Vt. 208; Lowry v. Gridley, 30 Conn. 450; State v. Robinson, 33 Me. 564.
The description should not be such as to leave any discretion to the officer as to the place to
be searched. State v. Liquors, supra; Hume v. Taber, 1 R. I. 464; Gruman v. Raymond, 6
Am. Dec. 200; Sanford v. Nicholls, 13 Mass. 286.
When a misdemeanor charge is dismissed, another prosecution for the same offense is
barred. An order for the dismissal of the action, as provided in this chapter, shall be a bar to
another prosecution for the same offense if it be a misdemeanor. Rev. Laws, 7401.
Frank T. Dunn, District Attorney, and Ryland G. Taylor, Deputy District Attorney, for
Respondent:
The petition does not state facts sufficient for the granting of the writ. It does not state in
what the alleged illegality of the imprisonment consists. Ex Parte Allen, 12 Nev. 87; Ex Parte
Deny, 10 Nev. 212; State v. Dobson, 36 S. W. 238; Ex Parte Cuddy, 22 L. Ed. 154.
For the purpose of discharging petitioner, the court will not on habeas corpus consider the
sufficiency of the facts relied upon as evidencing former jeopardy, since that is a matter
which should be specially pleaded in the court having jurisdiction of the second or last
prosecution. Ex Parte Maxwell, 11 Nev. 429; Steiner v. Merton, 32 Pac. 1063; Pitner v. State,
44 Tex. 578; In Re Meughan, 21 Pac. 1088; State v. Sistrunk, 35 South. 39; Ex Parte Barnett,
10 S. W. 492; In Re Miller, 51 Pac. 922.
It is not the province of this court upon habeas corpus to pass upon mere errors or
irregularities of the trial court. If petitioner feels himself aggrieved, his remedy is by appeal.
Ex Parte Smith, 2 Nev. 238; Ex Parte Winston, 9 Nev. 71; Ex Parte Maxwell, supra; Ex Parte
Gafford, 25 Nev. 101; Ex Parte Davis, 33 Nev. 309; Ex Parte Breckenridge, 34 Nev. 275: In
Re Crane, 40 Nev. 339.
The filing of the second information was legal and proper. It purpose was merely to amend. 3
Rev. Laws, p. 3400; Ex Parte Hironymus, 38 Nev. 194. The provisions of section 7401, Rev.
Laws, do not apply.
The petitioner seeks his discharge upon habeas corpus. In brief, he shows the following
facts:
The district attorney of Nye County filed an information against petitioner, charging him
with having violated section 3, Stats. 1919, c. 1, p. 1, known as the Initiative Prohibition
Act. Petitioner moved to quash said information, upon the ground that the warrant of
commitment of the justice of the peace of Tonopah township was not founded upon legal or
competent evidence, but upon evidence procured solely by and through an illegal blanket
search warrant issued by the judge of the district court of said county. He also interposed a
demurrer to the information, upon the grounds that said Prohibition Act is unconstitutional, in
that its title is not sufficiently broad to cover and to include the offense charged, and that said
act has been superseded by the Eighteenth Amendment to the Constitution of the United
States.
The motion to quash having been denied and the demurrer overruled, on the date finally
fixed for taking the petitioner's plea, the district attorney moved the court for leave to dismiss
the information without prejudice, which leave was granted, and another information was
filed, charging the same offense, to which the petitioner was asked to plead.
the petitioner was asked to plead. Before the date fixed for plea to the second information the
petitioner obtained this writ of habeas corpus. The return to the writ shows the proceedings
that actually took place relative to the leave granted the district attorney to file what he
denominates an amended information, which for clearness we set out in its entirety:
District AttorneyI would like to ask the court for permission to make an order without
prejudice, setting aside the information as filed in this case, and grant me permission to file
new information on the ground that the former one, I think, is not proper in form.
The CourtI can grant the order setting aside the present information, but cannot grant
an order for the new information until you are ready.
District AttorneyI have the information ready for you.
The CourtThe present information will be dismissed without prejudice.
District AttorneyI would like permission to file a new information in relation to the
same offense only in a different form from what the first one was, charging the same
offenseon the same proceedings in the justice's court and the same facts.
The CourtPermission is granted to file the information.
Mr. ThompsonWe take an exception, if your honor please.
The CourtThe bond is fixed in the sum of $1,000, qualification to be by 5 o'clock this
afternoon. Proceed with the arraignment.
Clerk reads the arraignment to the defendant. Is Isaac Rankin your true name?'
DefendantYes.
Mr. ThompsonI would like until the 18th to plead in this matter.
District AttorneyNo objection.
The CourtThis matter is continued for plea until April 18 at 10 o'clock a.m., being
Monday.
1. Counsel for petitioner strongly urges that, notwithstanding the court's ruling adversely
to his contention on his motion to quash for lack of competent evidence to warrant his
commitment, the question may be inquired into and reviewed on this proceeding. His point is,
as we understand it, that the evidence on which he was held to answer was obtained by and
through an illegal search warrant, and that therefore the district court should have set aside
the information filed against him. Not conceding this to be one of the grounds for setting
aside an indictment or information, we are of the opinion that the fact that the evidence on
which it is grounded was obtained by and through an illegal source, if such be the fact, is not
sufficient to warrant his discharge on habeas corpus.
2. It is next insisted that the leave given the district attorney to dismiss the information
without prejudice is tantamount to and was in effect a dismissal of the action, and the offense
charged being that of a misdemeanor, the order of dismissal is a bar to another prosecution
for the same offense. Rev. Laws, 7401. If the court had directed the action to be dismissed
within the meaning and contemplation of dismissal of actions, as provided in chapter 43 of
the Criminal Practice Act, we should unhesitatingly perpetuate the writ. But there was no
order of dismissal of the action within the meaning of any provisions of that chapter, or at all.
On the contrary, the transcript of the proceedings above set out shows clearly that the order
was explicitly made for the purpose of amending the information, with no thought or idea of
dismissing the action. We are unable to hold, therefore, that the order given is equivalent to
an order which the statute contemplates should be made to dismiss a prosecution. Rev. Laws,
73987399; Stats. 1919, 437. It follows that the prosecution is not at an end, and the
petitioner is therefore not entitled to this discharge upon this ground.
3. Recent decisions are decisive of the constitutionality of the Initiative Prohibition Act
and the jurisdiction of district courts in all cases of its violation. Ex Parte Zwissig, 42 Nev.
360
Parte Zwissig, 42 Nev. 360, 178 Pac. 20; Ex Parte Cerfoglio, 44 Nev. 343, 195 Pac. 96; Ex
Parte McGee, 44 Nev. 23, 189 Pac. 622; Ex Parte Arascada, 44 Nev. 30, 189 Pac. 619.
The proceeding is dismissed, and it is ordered that the petitioner surrender himself into the
custody of the sheriff of Nye County, from which he was released on bail pending the hearing
on this proceeding, and that upon his so surrendering himself his bail be exonerated.
____________
45 Nev. 178, 178 (1921) Bralis v. Flanges
[No. 2430]
G. BRALIS, Respondent, v. ALEX FLANGES, GUST FLANGES, ALEX SARRIS, and
ANGELAS KANELOS, Doing Business under the Name of Mothers' Baking Company,
Appellants.
[199 Pac. 475]
1. Appeal and ErrorFinding Sustained by Substantial Evidence Not Disturbed.
In an action against members of a partnership to recover money paid to a third person at their request,
where there was substantial evidence to sustain the finding for plaintiff both as to the advancement of the
money and the partnership character of the transaction, it cannot be disturbed.
2. Appeal and ErrorIn Action against Partnership, Question of Want of Authority of Partners
Not Considered when Not Raised Below.
In an action against the members of a partnership for money paid to a third person at the request of two of
the partners, where the case was tried on the theory that none of the partners ever had any such transaction
with plaintiff as was alleged by him, and the question of want of authority in the partners to bind the
partnership was not raised, it will not be considered when raised for the first time in the supreme court.
Appeal from Ninth Judicial District Court, White Pine County; C. J. McFadden, Judge.
Action by G. Bralis against Alex Flanges and others, doing business as the Mothers'
Baking Company. From a judgment for plaintiff and an order denying a new trial, defendants
appeal. Affirmed.
Charles A. Whiteley, for Appellants:
To hold one liable in an action for money paid, payment must have been made to his use,
and at his request, either express or implied, and the complaint must so allege. 27 Cyc. 841;
Huguet v. Owen, 1 Nev. 464.
Partnerships are not bound by every contract of purchase made by an individual member. If
purchases are not within the apparent scope of the firm's business, the partnership will not be
liable. 30 Cyc. 492; Story on Partnerships, secs. 110, 113; Western State Co. v. Walker, 2
Iowa, 504; 20 R. C. L. 884.
J. M. Lockhart, for Respondent:
The trial court having found, as a fact, under the evidence submitted, that the transaction
did take place, and that it was copartnership transaction, the finding will not be disturbed on
appeal. The appellate court will not disturb a finding based upon conflicting evidence. Roney
v. Buckland, 4 Nev. 45.
Contracts not binding must be clearly outside the scope of the partnership business. Western
State Co. v. Walker, 2 Iowa, 504.
An indebtedness incurred in a firm name is legally presumed to be for a partnership
purpose, and the burden of proof is upon the partnership to establish the contrary. Davis v.
Cook, 14 Nev. 265; Holdeman & Grubb v. Bank of Middleton, 70 Am. Dec. 142; Hamilton
v. Sumner, 54 Am. Dec. 574; Carrier v. Cameron, 31 Mich. 373; Bank v. Grignon, 65 Pac.
365; Rich v. Davis, 4 Cal. 22.
Plaintiff was dealing with the two active working members of the firm, and had the right
to rely upon their word and promise.
This is an action for money paid at defendant's request. The parties will be referred to as
they stood in the lower court.
On the 15th of December, 1918, at Ely, White Pine County, Nevada, defendants were
doing business as copartners under the name of Mothers' Baking Company. It is alleged in the
amended complaint that on that date at said place plaintiff, at the special instance and request
of defendants, as such copartners, advanced and paid from and out of his own personal funds
to one J. O. McIntosh, then and there doing business in said Ely under the name of Olympic
Liquor Company, the sum of $474; the defendants promised as such copartners to pay the
same to plaintiff; that plaintiff has demanded payment of said sum, but the same has not been
paid. The answer to the amended complaint denies that plaintiff advanced and paid the sum
of $474 to said J. O. McIntosh at the special instance and request of defendants as such
copartners, and that defendants promised to pay the same.
The case was tried before the court without a jury, and judgment rendered in favor of
plaintiff in the sum of $474 and costs. A motion for a new trial was denied by the court, From
the judgment and order denying the motion for a new trial this appeal is taken.
Defendants claim that the evidence is insufficient to support the decision. There is a sharp
conflict in the testimony of the witnesses. Plaintiff, testifying in his own behalf, said that on
the morning of the 15th of December, in the defendants' shop, two of the partners, Alex
Flanges and Gust Flanges, asked him if he would loan them some money to buy whisky; that
he asked them how much they wanted, and they said they did not know. Plaintiff said he
might loan them some if they did not want too much. Alex said he would call a meeting of
the partners and would see plaintiff later about it. He saw Alex that night at his cabin, and the
latter sent plaintiff down to the bakery after Gust, who got the company automobile and
brought plaintiff back to the cabin. The three went over to the Olympic and talked to Mr.
McIntosh, the proprietor, and the whisky was purchased by the two partners. Plaintiff wrote
out and signed a check payable to the Olympic, and gave it to Alex, who gave it to
McIntosh.
wrote out and signed a check payable to the Olympic, and gave it to Alex, who gave it to
McIntosh. Plaintiff and the two partners then loaded the whisky into the automobile, took it
down to the Mothers' bakery shop, and left it just outside the door. McIntosh gave the sales
slip for the goods bought to Gust Flanges, who in turn gave it to plaintiff. Plaintiff was
bookkeeper for defendants at the time of the transaction. He did not enter his account on their
books, because Alex Flanges would not let him. The latter said he did not want any entries for
liquor to show on their books. The check was introduced in evidence. The foregoing
constitutes substantially the testimony of the plaintiff as to the transaction.
A. Kapatanikies, a witness for plaintiff, testified that in March of the year 1919 he heard
Alex Flanges say that the company owed plaintiff some money and that they would fix it
later.
S. P. Lightheart, a witness for plaintiff, testified that he worked as a baker at the Mothers'
bakery, and that while working there Alex Flanges told him that the company owed plaintiff
over $400; that plaintiff was going away and they wanted to pay him.
Grover Stoltz testified that he formerly worked for McIntosh at the Olympic bar. He knew
plaintiff and Gust and Alex Flanges. On the night of the 15th of December he saw them at the
Olympic talking to McIntosh. He remembered that they took some whiskey away. He helped
them load it into the car.
Gust Flanges testified that he remembered the occasion of the moving of some whiskey
from the Olympic on the night of the 15th of December; that plaintiff came down to his room
about 11 o'clock and asked him to help move it. They went up to the Olympic and plaintiff
asked him for permission to take the whisky to the bakery, but he refused. They loaded the
whisky in the company's car and took it down the alley and left it in a barn. He denied all the
other statements made by plaintiff.
Alex Flanges denied the entire transaction.
Angelas Kanelos testified that he never told Gust or Alex to get any whisky for the bakery,
or to get any money, and never discussed any such transaction with his partners. He
remembered the circumstances of plaintiff coming to the bakery for Gust Flanges.
Alex Sarris disclaimed any knowledge of the transaction.
Upon this evidence the trial court found that on the 15th day of December, 1918, at Ely, in
said county, at the special instance and request of the defendants, as copartners, the plaintiff
advanced and paid from and out of his own personal funds to one J. O. McIntosh the sum of
$474, the said J. O. McIntosh then and there doing business in the said Ely under the name of
the Olympic Liquor Company.
1. As there is substantial evidence to sustain the finding both as to the advancement of the
money and the partnership character of the transaction, we cannot disturb it. Whether or not
Alex and Gust Flanges were acting for the partnership in getting plaintiff to pay McIntosh
$474 for the whisky was a question of fact for the trial court, and, on the evidence presented,
its finding in this respect cannot be questioned. Roney v. Buckland, 4 Nev. 45.
2. The claim is also made that the partnership is not liable because Gust Flanges and Alex
Flanges, or either of them, as the case may be, were not acting within the scope of the
partnership business in inducing the plaintiff to advance money to buy whisky for the
copartners.
The record shows that they tried their case in the court below upon the theory that none of
the copartners ever had any such transaction with plaintiff as he alleged and which his
evidence tend strongly to establish. The question of want of authority was not raised in the
court below. As it is raised for the first time in this court, we will not consider it. This is a
well-settled rule of practice in this and other courts. McLeod v. Lee, 17 Nev. 103-120
v. Lee, 17 Nev. 103-120, 28 Pac. 124; Furnace Co. et al. v. Wilmer, 41 Colo. 313, 92 Pac.
703; Steel Rail Supply Co. v. Baltimore & L. Ry. Co., 130 Fed. 434, 64 C. C. A. 635.
There is no merit in the suggestion that the amended complaint does not state facts
sufficient to constitute a cause of action.
The judgment is affirmed.
____________
45 Nev. 183, 183 (1921) State v. Willberg
[No. 2490]
THE STATE OF NEVADA, Respondent, v.
FRED WILLBERG, Appellant.
[200 Pac. 475]
1. Criminal LawNo Reversal for Misdirection of Jury, Except in Case of Prejudice.
Under Rev. Laws, 7469, no judgment shall be set aside or new trial granted in any case on the ground
of misdirection of the jury, unless, in the opinion of the court, after an examination of the entire case, it
shall appear that the error complained of has resulted in a miscarriage of justice, or has actually
prejudiced defendant in respect of a substantial right.
2. Criminal LawLaw of Each Degree of Offense Suggested in Evidence Should Be Given
to Jury.
Where there are different degrees of an offense, the law should be given to the jury of each degree
which the evidence tends to prove; otherwise, of any degree which it does not tend to prove.
3. HomicideCharge Defining Voluntary Manslaughter Not Prejudicial.
In a prosecution for murder, where the court charged that defendant could be found guilty of murder
in the first degree, or of manslaughter, the inclusion in the charge of a definition of voluntary, as well as
involuntary, manslaughter, being merely explanatory of the offense of manslaughter, was not prejudicial
to defendant.
4. Criminal LawWitnessesJury Cannot Consider Immaterial Fact that Witness at Trial
Did Not Testify at Examination.
At a preliminary examination the state is not required to introduce any more evidence than is
necessary to give the committing magistrate reasonable grounds to believe a public offense has been
committed, and that the person charged therewith committed it, so that the fact that a witness on trial
did not testify at the preliminary examination of defendant is an immaterial matter,
which the jury are not to consider.
trial did not testify at the preliminary examination of defendant is an immaterial matter, which the jury are
not to consider.
5. Criminal LawInstruction in Murder Case Not Erroneous as Assuming Truth of Disputed
Fact.
In a prosecution for murder, where defendant claimed an accidental killing while trying to intimidate
deceased into giving up his money, which he charged she had stolen from him, instruction that no person
has a right, by the use of intimidation, etc., forcibly to take from the possession of another, against his will,
personal property, whether he claims such property is his own or not, being an abstract legal proposition,
without attempt to apply it to the facts, was not objectionable as assuming a material and disputed fact in
the case to be true.
6. Criminal LawRefusal of Instructions Applying Principles to Both Sides' Theories of
Case Erroneous.
It is error in a criminal case to refuse instructions both for the state and defendant applying abstract legal
principles to both the state's and defendant's theory of the case.
7. HomicideDefendant Entitled to a Charge Meeting His Theory that Killing Was
Involuntary Manslaughter.
In a prosecution for murder, the defense being that the killing was accidental, while defendant was trying
to intimidate deceased into giving up money she had stolen from him, where the court charged for the state
that no person has a right by the use of intimidation, etc., forcibly to take his property from the possession
of another against such other's will, etc., it was erroneous to refuse to give an instruction offered by
defendant to meet his theory that the homicide was, under the evidence, if an offense, involuntary
manslaughter, though the charge as given by the court covered the statute law concerning involuntary
manslaughter.
8. HomicideRefusal of Instruction on Involuntary Manslaughter Not Prejudicial.
In a prosecution for murder, the refusal of defendant's requested instruction, offered to meet his theory of
the case that the homicide was, under the evidence, if an offense, involuntary manslaughter, held not so
prejudicial to defendant as to have resulted in a miscarriage of justice, especially in view of instructions
embodying the full and comprehensive language of the statute concerning involuntary manslaughter.
9. Criminal LawRequested Instructions Properly Refused, where Covered by Charge
Given.
Requested instructions may be refused, on the ground that they are covered in substance by instructions
already given.
10. Criminal LawDisposition of Motion for New Trial Discretionary.
Whether motion for new trial shall or shall not be granted on the ground of newly discovered evidence is
a proposition addressed to the sound discretion of the trial court, and denial of such
motion on such ground will not be reversed unless it clearly appears the court abused
its discretion.
addressed to the sound discretion of the trial court, and denial of such motion on such ground will not be
reversed unless it clearly appears the court abused its discretion.
11. Criminal LawNewly Discovered Impeaching Evidence Not Ground for New Trial.
It is the general rule, subject to rare exceptions, that, where the sole object of newly discovered evidence,
is to impeach an adverse witness, it is insufficient as a basis for granting new trial.
Fred Willberg was convicted of murder, and from the judgment, and order denying his
motion for new trial, he appeals. Affirmed.
Forman & McKnight, for Appellant:
The court erred in giving instructions as to voluntary manslaughter, there being no
evidence in support thereof (Territory v. Archuleta, 16 N. M. 219; State v. Crosby, 191 Pac.
1079); and in its instruction emphasizing the testimony of a witness who had not testified at
the preliminary examination. An instruction is erroneous and properly refused, * * * which
singles out or emphasizes particular testimony or particular parts of the evidence and gives
undue prominence thereto. 16 C. J. 1038, sec. 2479. The instruction as to intimidation of
deceased by appellant was erroneous. The facts were disputed; many of them had no support
whatever in the evidence. An instruction which assumes as true facts in dispute, or that are
not admitted, is erroneous. Const. Nev., art. 6, sec. 12; State v. Buralli, 27 Nev. 41. It is not
unlawful to take, or attempt to take, one's own property from the possession of a person not
holding it under process of law. Bonnard v. State, 25 Tex. 862. An instruction that is
confusing and misleading is objectionable. 16 C. J. 1036.
The court should have given a complete instruction as to the crime of murder. It is the duty
of the court to explain the technical meaning of the terms used in the statute, and set forth
accurately the essential elements of the crime. 21 Cyc. 1031, 1035. It was error for the court
to refuse to give the instruction as to murder requested by the defense. Wharton's Law of
Homicide, 36S; Sackett's Instructions {2d ed.), p.
for the court to refuse to give the instruction as to murder requested by the defense. Wharton's
Law of Homicide, 368; Sackett's Instructions (2d ed.), p. 685.
The court should have given defendant's proposed instruction as to involuntary
manslaughter. State v. Kelly, 1 Nev. 225; State v. Benham, 23 Iowa, 154, 92 Am. Dec. 417;
McDaniel v. State, 156 Ala. 40; Ford v. State, 71 Neb. 246; Austin v. State, 110 Ga. 748, 21
Cyc. 764.
It was error to refuse a new trial on the ground of newly discovered evidence. State v.
Mounkes, 91 Kan. 665; Pettibone v. New Mexico, 201 Fed. 489; 20 R. C. L. 299. Where it
appears from competent and satisfactory evidence that a witness for the prosecution has
deliberately perjured himself, and that without his testimony defendant would not have been
convicted, a new trial should be granted. 16 C. J. 1189, 1190. Where there was no reason to
suspect certain testimony to be perjured, and no laches is shown, the courts will generally
grant a new trial if, after the trial, evidence of its perjured character is discovered, and it is as
to a material issue, or the verdict is based principally on such testimony. 20 R. C. L. 299.
L. B. Fowler, Attorney-General; Robert Richards, Deputy Attorney-General, and Frank T.
Dunn, District Attorney, for Respondent:
The judgment of the district court should be affirmed. The instructions were full, complete
and ample. The giving of an instruction on a lesser offense was advantageous to the appellant,
and he therefore cannot complain. It has even been held proper for the court to refuse
instructions if they are given in substance in its charge, and the judgment will not be reversed
for such refusal when it appears from the record that the law in the case had been laid down
properly and fairly by the trial judge. State v. Buralli, 27 Nev. 41; State v. Ward, 19 Nev.
297. The court gave instructions on every point actually involved in the case.
every point actually involved in the case. State v. Cardelli, 19 Nev. 319.
The prohibition against charging juries in respect to matters of fact was only intended to
prevent judges from saying in regard to any fact in regard to which there was any evidence
introduced that it was or was not established. State v. Anderson, 4 Nev. 265. The
instructions of the court did not assume any state of facts, but simply enunciated correct
principles of law. Bonnard v. State, 25 Tex. App. 173.
The denial of the new trial was proper. Evidence which will tend only to impeach a
witness is not sufficient to warrant a new trial. It is well settled that a new trial will not be
granted to enable the defendant to procure evidence to contradict or impeach a witness.
Spalding v. State, 162 Ind. 297; State v. Leuth, 128 Iowa, 189; State v. Lackey, 72 Kan. 95;
State v. Lucas, 147 Mo. 70; Smiley v. Oklahoma, 15 Okla. 314; State v. Gardner, 33 Or. 149;
State v. Hill, 39 Or. 95. When based on newly discovered evidence, the motion for a new trial
is particularly not favored. State v. Matkins, 45 Mont. 58.
The record discloses that Fred Willberg was informed against by the district attorney of
Nye County for the murder of Dixie Miller, by shooting her with a revolver, in a resort known
as Blake's Cabaret, in the town of Tonopah, Nye County, Nevada, on the 25th day of August,
1920. He was tried and convicted of murder in the first degree. The jury, as they are
privileged to do in capital cases, by their verdict fixed the punishment at confinement in the
state prison for life. A motion for a new trial was overruled. The court pronounced judgment
and sentence in accordance with the verdict. The defendant appeals from the order denying
him a new trial, and also from said judgment. The case has been submitted for decision on
briefs.
Following the opening brief of counsel for defendant, it is first insisted that the motion for
a new trial should have been granted for the reason that the jury was misdirected on material
points of law, in the following particulars:
(1) That the court, of its own motion, included in its charge to the jury an instruction
covering voluntary manslaughter, when there was absolutely no evidence in the case to
support the instruction.
(2) That one instruction, given at the request of the state, was designed to single out, and
had that effect, a particular witness for the state, one W. D. Foster, whose testimony was quite
damaging to defendant, giving his testimony verity and undue prominence over that of other
witnesses.
(3) That the court, by one of its instructions, assumed a material and disputed fact in issue
to be true.
(4) That the court erred in rejecting five instructions requested by the defendant, on the
ground that their subject-matter had been in substance covered by other instructions.
1. It must be understood, and never overlooked, that it is the statute law of this state (Rev.
Laws, 7469) that no judgment shall be set aside or new trial granted in any case on the ground
of misdirection of the jury, unless in the opinion of the court after an examination of the
entire case, it shall appear that the error complained of has resulted in a miscarriage of justice,
or has actually prejudiced the defendant, in respect to a substantial right. The reason for this
provision is that, since the law gives no redress for a wrong not resulting in injury, a party
who has suffered nothing from an omission of a charge, an incorrect one, or other error
relating thereto, will not be afterward heard to complain whether he objected at the time or
not. 2 Bishop's New Crim. Proc. (2d ed.) sec. 980, subd. 7, p. 823. The law is designed to
inhibit courts from setting aside judgments or granting new trials where, upon an examination
of the entire case, the verdict is manifestly right, or where it appears that no other verdict
could have been properly returned by the jury under instructions entirely correct.
manifestly right, or where it appears that no other verdict could have been properly returned
by the jury under instructions entirely correct. 14 R. C. L. sec. 74, p. 815.
2. Coming to a discussion of the first objection to the instructions, it must be conceded
that, where there are different degrees of an offense, the law should be given of each degree
which the evidence tends to prove; otherwise of any degree which it does not. 2 Bishop's New
Crim. Proc. (2d ed.) sec. 980, subd. 2, p. 820.
3. In this case the court instructed the jury that the defendant could be convicted of murder
in the first degree or of manslaughter. It then by its charge defined manslaughter, both
voluntary and involuntary, in the language of the statute. There is evidence in the case tending
to reduce the charge from murder in the first degree to involuntary manslaughter. The court
having charged that the defendant could be found guilty of murder in the first degree or
manslaughter, the inclusion in the charge of the definition of voluntary manslaughter was
merely explanatory of the offense of manslaughter, and was not harmful.
An alleged witness to the homicide was called by the state in rebuttal. His version of the
killing varied but slightly from that of two other eye-witnesses who had testified in behalf of
the state. His testimony was quite damaging to the defendant. It appears that upon
cross-examination the witness stated that he had not testified at the preliminary examination
of the defendant. The question and answer were not objected to by the state; but when the
court came to charge the jury, it instructed as follows, at the request of the state, over the
objection of the defendant:
At a preliminary examination the state is not required to introduce any more evidence
than is necessary to give the committing magistrate reasonable grounds to believe that a
public offense has been committed, and that the person charged thereof committed it.
it. Therefore, if any witness has testified at the trial of the case who did not testify at the
preliminary examination of the defendant, it is an immaterial matter, which you are not to
consider in your consideration of his testimony at the present trial.
4. This instruction is a correct statement of the law. Whether or not it was actually used
for the illegal purpose of singling out and bolstering up the testimony of a particular witness
is not properly before us.
It is next contended that the giving, at the request of the state, of the instruction following
was prejudicial error:
No person has a right, by the use of intimidation, force, and threats, to forcibly take form
the possession of another, and against his will, personal property, whether they claim such
property is their own or not; and a person guilty of killing another in the perpetration of such
an act is guilty of a public offense.
5. The defense of the accused, and his only defense, was that the homicide was accidental
and unintentional. His version of the killing tends to show that he exhibited the revolver to
the deceased for the purpose of intimidating, threatening, and coercing her into giving up to
him the sum of $30 of his money, which he had prior to and at the time of the homicide
accused the deceased of having stolen from him while he was asleep on a chair in Blake's
Cabaret several hours before the killing. He claimed that when the deceased observed the
revolver, loosely held in one of his hands, she immediately seized it, and in the struggle for its
possession it was twice discharged. He testified that he had not examined the revolver to see
if it was loaded; that it was not aimed; that he had no intention of killing the woman, and that
the homicide was purely an accident and unintentional. The jury, however, took an opposite
view of the killing, and found the defendant guilty of deliberate murder. The instruction was
manifestly intended to assert an abstract legal proposition, without attempting to apply it to
the facts, leaving it to the jury to make the application to the facts as found by them.
without attempting to apply it to the facts, leaving it to the jury to make the application to the
facts as found by them. As such, it is not open to the objection that it assumes a material and
disputed fact in the case to be true. 14 R. C. L. sec. 12, p. 740.
6-8. It is usual in criminal cases to give instructions both for the state and the defendant
which apply abstract legal principles to both the state's and the defendant's theory of the case.
To refuse instructions of this character is error. State v. Hennessy, 29 Nev. 344, 345, 90 Pac.
221, 13 Ann. Cas. 1122. The concluding portion of the instruction is not susceptible of the
interpretation that it assumes as true that the defendant killed the deceased in cold blood in
the commission of a public offense. It is earnestly insisted that, as the court gave this
instruction at the request of the state, it manifestly erred in refusing to give an instruction
offered by the defendant to meet his theory of the case, that the homicide was, under the
evidence, if an offense, involuntary manslaughter. Upon the authority of State v. Hennessy,
supra, the refusal of such instruction was error. The only reason assigned for its rejection was
that involuntary manslaughter had been sufficiently covered by other instructions. There is no
doubt that the charge given by the court fairly and fully covered the statute law concerning
involuntary manslaughter; but, nevertheless, the defendant was entitled to have the law
declared in reference to the facts which he contends the evidence reasonably tends to show,
and to an instruction defining the law as applicable to his defense, when there was complete
evidence reasonably tending to substantiate it. State v. Hennessy, supra; 14 R. C. L., sec. 58,
p. 800. Yet, upon an examination of the entire case, the rejection of the instruction could not
have resulted in a miscarriage of justice, especially in view of the instructions embodying the
full and comprehensive language of the statute concerning involuntary manslaughter, and
leaving it to the jury to apply it to the facts as found by them.
9. The other instructions requested by the defendant were properly refused, on the ground
that they were covered, in substance, by instructions already given.
10, 11. It is earnestly urged, in the last place, that the court erred in its refusal to grant the
defendant a new trial on the ground of newly discovered evidence tending to show that one of
the alleged witnesses to the homicide (W. D. Foster) could not have been present at the
killing, and that he deliberately perjured himself. Whether a motion for a new trial shall or
shall not be granted upon the ground of newly discovered evidence is a proposition which is
addressed to the sound discretion of the trial court, and the denial of a new trial on that
ground will not be reversed unless it clearly appears that the court abused its discretion,
which is not the case here. People v. Bones, 35 Cal. App. 438, 170 Pac. 166; People v. Loui
Tung, 90 Cal. 377, 27 Pac. 295; People v. Tallmadge, 114 Cal. 427, 46 Pac. 282. And
furthermore, it is the general rule, subject to rare exceptions, that where the sole object of the
newly discovered evidence, as in this case, is to impeach an adverse witness, it is insufficient
as a basis for granting a new trial. People v. Lim Foon, 29 Cal. App. 283, 155 Pac. 477;
People v. Goldenson, 76 Cal. 328, 19 Pac. 161; People v. Anthony, 56 Cal. 399; 3 Wharton's
Crim. Proc. (10th ed.) sec. 1810; 2 Bishop, supra, sec. 1279, p. 1118. The motion for a new
trial on the ground of newly discovered evidence in the case is certainly not entitled to any
exemption from the general rule.
There being no error in refusing to grant defendant a new trial upon the ground of newly
discovered evidence, and being of the opinion that the misdirection of the jury did not result
in a miscarriage of justice, and that the defendant was not actually prejudiced in respect to a
substantial right, the judgment and order appealed from must be affirmed; and it is so
ordered.
____________
45 Nev. 193, 193 (1921) Mariner v. Milisich
[No. 2497]
J. D. MARINER, Respondent, v. STEVE MILISICH,
Appellant.
[200 Pac. 478]
1. JudgmentDemurrer Not Answer Necessary for Relief Not Demanded in Complaint.
Demurrer to the complaint is not an answer, in the absence of which Civil Practice Act, sec. 299,
provides that the relief granted to plaintiff shall not exceed that which he shall have demanded in his
complaint.
2. JudgmentDemand for Relief by Which Relief Is Limited in Absence of Answer Refers
to Prayer of Complaint.
Demand for relief in complaint, by which relief granted to plaintiff in absence of answer is limited
by Civil Practice Act. sec. 299, and which section 96, subd. 3, provides that the complaint shall contain,
refers to the prayer of the complaint, as distinguished from the statement of facts, and other parts thereof;
so that the mere inclusion in the complaint of the agreement providing for retention by plaintiff of title to
the piano sold as security for judgment for the price, and the allowance of an attorney's fee in case of
action, does not authorize such relief.
3. JudgmentPrayer for Costs Does Not Include Attorney's Fee Relative to Relief in Absence
of Answer.
Attorney's fees provided for by an agreement in case of action thereon for its breach are special
damages, and not costs, where not made so by statute; so prayer of complaint for costs will not, under
Civil Practice Act, sec. 299, allow granting of attorney's fees where there is no answer.
4. Appeal and ErrorFailure to Object Not a Consent to Relief Not Prayed For.
Though defendant's counsel was present at the trial without an answer being filed after demurrer to
the complaint was overruled, his failure to except to the allowance of an attorney's fee was not a consent
therefore, so as to estop defendant to object to such allowance, because there was no prayer therefor, as
required by Civil Practice Act, sec. 299.
Action by J. D. Mariner against Steve Milisich. Judgment for plaintiff, and defendant
appeals. Modified and affirmed. Petition for rehearing denied. (Sanders, C. J., dissenting
in part.)
Mack & Green, for Appellant:
The judgment should be modified so as to make it conform to the prayer of the complaint.
There was no demand for an attorney's fee, nor for a decree that title should vest in plaintiff
until all balances due on the piano should be paid. Rev. Laws, 5038, 5236, 5241. The demand
for relief, which is the prayer of the complaint, must be measured and determined by the
defendant as the amount or thing prayed for, otherwise the complaint to which no answer is
filed is a snare and seductive delusion of the defendant. Burling v. Goodman, 1 Nev. 316;
Peran v. Monroe, 1 Nev. 487; Hastings v. Burning M. Co., 2 Nev. 95; Mitchell v. Mitchell,
28 Nev. 111. In Mitchell v. Mitchell, 28 Nev. 123, we have already had occasion to construe
the fore part of section 150, and to hold that upon default the court had no power to enter
judgment for more than the relief demanded in the complaint. Gulling v. Washoe County
Bank, 29 Nev. 228; Brooks v. Forington, 117 Cal. 219; Brown v. Caldwell, 13 Cal. App. 29;
Stackee v. Bell, 125 Cal. 309; Ellis v. Rademacher, 125 Cal. 456; 23 Cyc. 795; 14 Stand.
Proc. 904; 6 Ency. Pl. & Pr. 110.
O. H. Mack, for Respondent:
An issue arises upon a demurrer to the complaint, or an answer as to some part thereof. A
demurrer is an answer within the meaning of the statute. Rev. Laws, 5196; Oliphant v.
Whitney, 34 Cal. 25.
Where there is an answer, the right to recover depends not upon the prayer, but upon the
scope of the pleading and the issues made, or which might have been made under it. Johnson
v. Polhemus, 33 Pac. 908: Rankin v. Newman, 40 Pac. 1024. This is so, notwithstanding code
provisions making the prayer a part of the complaint. Donavan v. McDevitt, 92 Pac. 49.
By failure to file an answer after the overruling of his demurrer, defendant consented to the
allowance of an attorney's fee.
an attorney's fee. The facts of the complaint, and not the prayer, settle the relief to be granted.
Rollins v. Forbes, 10 Cal. 299; People v. Morrill, 26 Cal. 336; Althof v. Conheim, 38 Cal.
234; Stewart v. Hutchison, 29 How. Pr. 181. The entire omission of any prayer would not
subject the complaint or petition to demurrer. Fox v. Graves, 46 Neb. 812.
In this action appellant gave a note in payment for a piano, and the note forms part of an
instrument in writing wherein it was agreed, among other things, that respondent should hold
title to the piano until all sums agreed to be paid and any judgment therefor were paid. It was
also agreed, in case action was brought on the agreement, or for the recovery of the piano,
that appellant pay a reasonable attorney fee.
A copy of the note and the agreements is attached to the complaint and made a part
thereof. The prayer of the complaint is as follows:
Wherefore plaintiff prays judgment against said defendant in the sum of $750, together
with all accrued interest thereon from date thereof said note until paid, and for costs and
disbursements of this action.
Appellant interposed a demurrer to the complaint, which was overruled, and, on default of
an answer, judgment was rendered against appellant for the balance due on the promissory
note, to wit, $750, with interest, and the further sum of $100 as an attorney fee, and cost and
disbursement of the action. It was also adjudged that respondent hold title to the piano until
all sums of money mentioned in the judgment were paid. The appeal is from the judgment.
Appellant contends that, inasmuch as respondent demanded a money judgment only, the
court had no authority to incorporate in its judgment a provision that he hold title to the piano
as security for the judgment. He also contends that, as an attorney fee was not included in the
prayer of the complaint, the judgment, in so far as it awards an attorney fee, is invalid.
Appellant asks for a modification of the judgment in these respects.
1. The points are well taken. The judgment, on the facts of this case, is controlled by the
rule prescribed by section 299 of the Civil Practice Act (Rev. Laws, 5241). In this respect it
reads:
The relief granted to the plaintiff, if there be no answer, shall not exceed that which he
shall have demanded in his complaint; but in any other case the court may grant him any
relief consistent with the case made by the complaint and embraced within the issue.
There was no answer in this case, and default was taken and judgment rendered by reason
thereof. True, a demurrer was interposed, but the word answer as used in the section is not
employed in a sense that can be held to include within its meaning a demurrer. This is
apparent from the wording of the statute. Again, the statute is taken from the California code,
and this construction has been placed upon the word answer by the supreme court of that
state.
In the case of Buena Vista F. & V. Co. v. Tuohy, 107 Cal. 243, 40 Pac. 386, the demurrers
filed by the defendants were sustained, and plaintiff declined to amend. Final judgment was
entered in favor of defendants. Discussing the case with reference to section 580 of the Code
of Civil Procedure, which is identical in language with that part of section 299 quoted, the
California court said:
In cases where an answer is filed the court may, under section 580 of the Code of Civil
Procedure, grant any relief consistent with the case made by the complaint and embraced
within the issue.' But, we are not now dealing with such a case. Non constat, that any answer
will ever be interposed here, and the question arises as to the sufficiency of the complaint
standing alone and confronted by a demurrera case in which the demand of the complaint
limits the relief. * * *
2. A demand for relief, as employed in the practice act, refers to the prayer of the
complaint, as distinguished from the statement of facts and other parts thereof.
guished from the statement of facts and other parts thereof.
Section 96 of the Civil Practice Act, prescribing what the complaint shall contain, after
enumerating the other parts, including a statement of the facts constituting the cause of action,
concludes, by subdivision 3, as follows:
A demand for the relief which the plaintiff claims. If the recovery of money or damages
be demanded, the amount thereof shall be stated.
The policy of this section is that the party instituting an action shall not only allege the
specific facts constituting his cause of action, but shall state the specific relief to which he
considers himself entitled. The purpose of subdivision 3 is to inform the defendant of the
precise nature of the demand in order that he may be prepared to meet it. And the purpose of
the first clause of said section 299, in cases where there is no answer, is to limit the relief
granted to what the defendant is led to anticipate from the demand made in the complaint.
The rule announced by this section is beyond doubt a fair and reasonable one.
As said by the court in Burling v. Goodman, 1 Nev. 316, in reference to a judgment taken
by default:
The defendant by his default admits the justice of the claim, and thus consents that
judgment be taken against him for what is prayed for in the first instance. Whereas, if a
greater sum or a different relief were demanded, he may appear and contest the claim as
unjust and unreasonable.
Counsel for respondent cites Marshall v. Golden Fleece M. Co., 16 Nev. 156, and quotes
from the syllabus as follows:
In such case defendants cannot complain because the relief granted exceeded the demand
in the petition, if that which was granted was consistent with the case made, and was
embraced within the issue.
The case is not in point, for there was an answer to the complaint, and upon the trial it was
treated as an answer to the petition for intervention, and was so considered on appeal.
answer to the petition for intervention, and was so considered on appeal. If we correctly
understand counsel's position, he contends that, because a copy of the agreements entered
into, wherein provision is made for an attorney fee, and for the retention of the title to the
piano by respondent until the purchase price and other sums agreed on were paid, was
attached to and made a part of the complaint, and appellant having filed a demurrer and
obtained time to answer, respondent was entitled to such relief as comes within the scope of
the complaint. As previously stated, a demurrer is not an answer within the meaning of said
section 299. If appellant had filed an answer, the contention of counsel for respondent would
be correct; for then, under the second part of the section, respondent would have been entitled
to any relief consistent with the case made by the complaint and embraced within the issue.
But, as no answer was filed, he was limited by the mandatory terms of the first part of said
section to the relief demanded in the prayer of the complaint. Buena Vista F. & V. Co. v.
Tuohy, supra; Brooks v. Forington, 117 Cal. 219, 48 Pac. 1073.
As the retention of title to the piano by the respondent as security for the judgment, and the
award of an attorney fee therein, constitute a part of the relief granted, and were not included
in the prayer of the complaint, the judgment is so far invalid.
3. It was suggested on the oral argument that, as costs were demanded, the attorney fee
was properly included in the judgment as costs. An attorney fee awarded in civil action is not,
in law, a part of the costs of the action, except where expressly made so by statute, which is
not the case here. The compensation of an attorney and counselor for his services is governed
by agreement, express or implied, which is not restrained by law. Rev. Laws, 5376; Dixon v.
Second Judicial District Court of Nevada, in and for Washoe County, 190 Pac. 352. When
provided for by the terms of the contract, and recoverable on its breach, an attorney fee is
in the nature of special damages, and must be expressly alleged.
of the contract, and recoverable on its breach, an attorney fee is in the nature of special
damages, and must be expressly alleged.
Being matter of purely special or exceptional recovery, as said in Brooks v. Forington,
supra, and the defendant being entitled to look solely to the prayer in determining whether he
will defend against the relief sought in the action, if such special relief is not therein
specifically demanded, it is to be deemed waived.
4. Counsel for respondent asserts, in his brief, that appellant was represented at the trial;
that the allowance of an attorney fee was consented to; that he took no exceptions to the
allowance of $100 as an attorney fee; that he is therefore estopped from objecting to it. The
record shows that counsel for appellant was present in court when the court heard the
evidence and entered judgment in the sum of $750, with interest, and for the further sum of
$100 as attorney's fees. It does not appear from the record that counsel for appellant
consented to the allowance of an attorney fee in the judgment. His failure to take an exception
cannot be considered as such consent, nor are we prepared to say that appellant would be
estopped if he had consented.
Entertaining these views, we are of the opinion that the judgment of the lower court must
be modified by striking out the provision for an attorney fee of $100, and the provision that
the respondent shall hold the title to the piano described in said contract until all sums of
money are paid, and any judgment therefor is paid in full.
It is so ordered, and the judgment as modified will stand.
In the view I take of this record, it is not apparent to me that any injustice has been done
the appellant by the judgment against him for an attorney's fee of $100, deemed and found by
the court to be a reasonable allowance pursuant to the terms of the contract sued on.
The defendant, upon the overruling of his demurrer to the complaint, failed to answer, and,
upon application of plaintiff, his default was noted in the minutes of the court, but no
judgment by default was entered. The court set the case for trial, the purpose of which setting
was to judicially determine upon a trial the amount for which final judgment was to be
rendered. On the day fixed for trial plaintiff and defendant appeared by their counsel and the
action proceeded to judgment in the same manner as if an answer had been filed raising an
issue for trial, or as upon an issue confessed. The court heard the evidence, made findings,
and upon its findings of fact and conclusions of law rendered judgment for the amount of the
principal sum demanded in the complaint, and in addition thereto an attorney's fee, as above
stated.
If the defendant had not appeared at all, or had taken proper exceptions to the proceedings
for the assessment of damages, he might now be heard to complain that the judgment
rendered was for a sum greater than that demanded in the complaint; but having appeared and
voluntarily proceeded with the trial of the only question to be judicially determinedthe
assessment of damageswithout protest, objection, or taking any exceptions, he must now be
held to have confessed the cause of action and plaintiff's right to an attorney's fees as incident
thereto. This being the true situation, the appellant is in no position to urge upon this appeal
for the first time that he was entrapped, ensnared, and deceived by the prayer of the
complaint. Except for this contention the appeal is totally without merit. The only purpose of
defendant's appearance was to see that the court did not do the very thing it did do. The
defendant having had his day in court, if he was dissatisfied with the assessment he should
have moved the court for its correction, and if he desired a review of his objections they
should be brought here by a proper bill of exceptions. 13 Cyc. 229.
Counsel for defendant are evidently of the opinion that, the defendant having failed to
answer, the court was without jurisdiction to render a judgment for an amount in excess
of that demanded in the complaint.
that, the defendant having failed to answer, the court was without jurisdiction to render a
judgment for an amount in excess of that demanded in the complaint. In this they are
mistaken. The rule of the statute that the relief granted to the plaintiff, if there be no answer,
shall not exceed that which he shall have demanded in his complaint is simply a rule of
procedure, intended for the protection of defendants who do not answer, and not a limitation
upon the jurisdiction of the court. Harrison v. Union Trust Co., 144 N. Y. 326, 39 N. E. 353.
By asking that the judgment be modified, appellant necessarily assumes that the departure
from the prayer of the complaint was merely an irregularity that did not go to the jurisdiction.
Chase v. Christianson, 41 Cal. 253. I am of the opinion that whatever of irregularity there
may have been in the proceedings to ascertain the amount of the judgment to be rendered was
waived by the action of the defendant himself (McClurg v. Hurst, 37 Mo. 144), and that no
injustice has been done him by the allowance of an attorney's fee. The judgment, therefore, in
this respect should be affirmed.
I am, however, clearly, of the opinion that the judgment, in so far as it directs that the title
to the piano shall remain in the plaintiff until the judgment is paid, does not correctly
pronounce the law of the case. The provisions in the contract that title to the piano should
remain in plaintiff until paid for was a condition solely for plaintiff's security, which he could
waive if he chose. Yori v. Cohn, 26 Nev. 228, 65 Pac. 945, 67 Pac. 212. The plaintiff, by
bringing his action for the balance due on the purchase price of the piano, voluntarily waived
the condition. By such election he treated the transaction as an absolute sale, and immediately
upon filing of the complaint title to the instrument vested in the defendant as completely as
though the defendant had made full payment therefor. Waltz v. Silveria, 25 Cal. App. 720,
145 Pac. 169; George J. Birkel Co. v. Nast, 20 Cal. App. 651, 129 Pac. 945; Elsoma v.
Moore, 11 Cal. App. 377, 105 Pac. 271. See Ann. Cas. 1917d, 464, note.
It is my opinion that the order should be to affirm the judgment as to an attorney's fee, and
that it should be modified with respect to the direction therein that title to the piano remain in
plaintiff until the judgment is paid.
Per Curiam:
Rehearing denied.
____________
45 Nev. 202, 202 (1921) Ford v. Brown
[No. 2378]
J. F. FORD, Respondent, v. R. FRED BROWN,
Appellant.
[200 Pac. 522]
1. TrialFinding in Special Verdict Held Conclusion of Law.
Finding of a jury that the instructions of a principal to his broker to sell stock amounted to a
revocation of former instructions to the broker is a conclusion of the law, and beyond the province of the
jury, returning a special verdict in view of Civil Practice Act, sec. 279, providing that a special verdict
shall present conclusions of fact as established by the evidence, and that those conclusions shall be so
presented that nothing shall remain to the court but to draw from them conclusions of law.
2. TrialSpecial Verdict Finding Facts Not Put in Issue Held Void; Special Verdict.
Where a revocation of instructions of a principal to his broker was not put in issue by pleadings, a
finding in a special verdict concerning the revocation of instructions is inoperative and void, though
evidence of facts claimed to show revocation was admitted without objection, as a special verdict is a
special finding by the jury on each material issue of the case.
3. EstoppelFindings Held Not to Show Equitable Estoppel where Reliance on
Misrepresentations or Silence is Not Found.
Where the broker did not exercise proper diligence in selling stock when so instructed by is principal,
and there is no finding that the broker relied upon misrepresentations or silence of his principal, the
findings do not show an equitable estoppel.
4. EstoppelReliance on Act or Conduct Essential to Estoppel in Pais.
Essential element of an estoppel in pais is that the party relying thereon was influenced by the acts
or silence of the other to act as he would not otherwise have done, to his prejudice.
45 Nev. 202, 203 (1921) Ford v. Brown
5. TrialConclusions in Special Verdict Properly Disregarded.
In an action against a stockbroker for failure to sell stock according to instructions, the court properly
disregarded conclusions of the jury contained in a special verdict that both parties were at fault, and that
therefore plaintiff was precluded from recovering full damages, and defendant was liable for the costs.
Action by J. F. Ford against R. Fred Brown. From judgment for plaintiff, and from an
order denying a new trial, defendant appeals. Affirmed.
Hugh Henry Brown, for Appellant:
The selling order, upon which the whole action is grounded, was revoked. The special
finding of the jury on the revocation of the selling order controls, precludes any general
finding or judgment in favor of plaintiff, and was controlling upon the trial court. The alleged
contingency upon which the selling order was conditioned never happened.
The finding of revocation of the selling order was conclusively proven by documentary
evidence. It could not be revived unless by some later affirmative act of plaintiff, which the
jury found had not taken place. An agent's authority may be revoked by the principal
subsequently granting an inconsistent power to him. 2 C. J. 538. An authority to sell is
subject to revocation at any time before a sale is made. 9 C. J. 520.
The special finding of revocation of the selling order is legally hostile to any recovery by
plaintiff. No general finding in favor of plaintiff can stand in the face of a special finding.
Where a special finding of facts is inconsistent with the general verdict, the former controls
the latter and courts must give judgment accordingly. Rev. Laws, 5222; Crosman v. S. P.
Co., 173 Pac. 225; Abbot, Civil Jury Trial (3d ed.), 820, 838.
The special findings of the jury constitute an estoppel which runs against plaintiff and
precludes recovery.
45 Nev. 202, 204 (1921) Ford v. Brown
The vital principle if that one who by his conduct leads another to do what he would not
otherwise have done shall not subject such person to loss or injury by disappointing the
expectation upon which he acted. Such a change of position is sternly forbidden. It involves
fraud and falsehood and the law abhors both. 5 U. S. Cyc. 938; 10 R. C. L. 689, 694; 9 C. J.
532; Ankeny v. Young Brothers, 100 Pac. 736; Guold v. Trask, 10 N. Y. S. 619. Every
consideration of right and justice required the defendant to assert its rights promptly as soon
as the default became an established fact. Pokegama Lumber Co. v. Klamath Lumber Co.,
96 Fed. 34; Leather Bank v. Morgan, 29 L. Ed. 817; Zell v. Cockran, 60 Atl. 699.
Milton M. Detch, for Respondent:
Under no circumstances can appellant prevail, having failed, refused and neglected to
carry out respondent's instructions to dispose of stock. A serious attempt has been made by
appellant to inject into the case legal problems of the rule of revocation and the doctrine of
estoppel. The verdict of the jury nowhere refers to revocation. The doctrine of estoppel is not
applicable, as there was no finding by the jury upon which the doctrine could be predicated.
This appeal is taken from a judgment in the court below in favor of respondent, and from
an order denying appellant's motion for a new trial.
During the times mentioned in the amended complaint, appellant was a stockholder doing
business as such in the town of Tonopah. It is alleged by the respondent that, on the 3d day of
August, 1917, at said town, under his direction, the appellant purchased for him on margin
5,000 shares of the capital stock of the Manhattan Morning Glory Mining Company, for
which he agreed to pay 16 cents a share, and the commission of the appellant amounting to
$10; and that, under and by virtue of his contact as to purchasing said stock on margin, he
deposited with the appellant the sum of $410; that subsequently, and on or about the
12th day of October, 1917, the respondent directed appellant, that, if the Manhattan
Morning Glory Mining Company was unsuccessful in the matter of a hearing on an order
to show cause why a certain restraining order, which had theretofore been issued in the
case then pending in the district court, should not be dissolved, or remain in force and
effect, then the appellant was to immediately sell said stock at the market price.
45 Nev. 202, 205 (1921) Ford v. Brown
and by virtue of his contact as to purchasing said stock on margin, he deposited with the
appellant the sum of $410; that subsequently, and on or about the 12th day of October, 1917,
the respondent directed appellant, that, if the Manhattan Morning Glory Mining Company
was unsuccessful in the matter of a hearing on an order to show cause why a certain
restraining order, which had theretofore been issued in the case then pending in the district
court, should not be dissolved, or remain in force and effect, then the appellant was to
immediately sell said stock at the market price. It is further alleged, in substance, that, on the
evening of the 19th day of October, 1917, a decision was rendered in said cause in favor of
the White Caps Mining Company and against said Manhattan Morning Glory Mining
Company, and that knowledge of such decision was, within a short time after its rendition,
and on the 19th day of October, 1917, conveyed to appellant; that on the 20th day of October,
1917, the market price of said Manhattan Morning Glory Mining Company was quoted on the
San Francisco stock exchange at 19 cents per share, and on said day thousands of shares of
said stock were disposed of at said price; that appellant failed, neglected, and refused to sell
said stock on said day, and did not dispose of said stock; and then, without notice to
respondent until the 17th day of December, 1917, when he sold 2,000 shares of said stock at
10 cents per share, and 3,000 shares at 9 cents per share, and after deducting commissions
and war tax, credited respondent's account with $459, and tendered to him the sum of $29.80,
the amount claimed by appellant to be due respondent on the sale of said stock. Damages in
the sum of $491 is alleged, and judgment prayed for in that amount.
The purchase of the stock on margin by appellant, as a stockholder, as alleged in the
complaint, is admitted in the answer. It is also admitted that appellant did not sell any part of
the respondent's stock on October 20, 1917, but denied that there was any refusal, neglect or
failure in that respect.
45 Nev. 202, 206 (1921) Ford v. Brown
neglect or failure in that respect. It is also admitted that the stock was sold by appellant at the
times and at the prices alleged in the complaint; but denied that said sale or sales were
without notice to respondent. It is denied therein that respondent directed appellant to sell the
stock on the contingency alleged in the complaint; and that any such contingency ever
happened, or that appellant received or had any knowledge thereof. It is also denied that
appellant failed to follow any selling instructions given to him by the respondent. For a
further and separate answer and defense it is alleged:
III. That some time during the early part of October, 1917, and more than a week prior to
the ruling upon an order to show cause, made and entered by the above-entitled court on
October 19, 1917, in the case of White Caps Mining Company v. Manhattan Morning Glory
Mining Company, the plaintiff ordered the defendant to sell said 5,000 shares of stock at the
market if the White Caps Mining Company won said case against the Manhattan Morning
Glory Mining Company; that defendant made no entry of said selling order upon the books of
the defendant for the following reasons, to wit: First, that the winning or losing of the case of
White Caps Mining Company v. Manhattan Morning Glory Mining Company was a matter
that could not possibly be determined until the trial of said cause upon its merits, and that said
trial and determination necessarily were at least several weeks remote, the said case not yet
having been set for trial, and the said case being of such a nature that it would, and thereafter
did, require and consume at least four weeks in the trial thereof; and, second, that it is the
custom of brokers, and a custom of their trade and business, not to accept selling orders for a
longer period than the last business day of a current calendar week, or to hold selling orders
to be effective or operative for a longer period than the last business day of any current
calendar week; that said custom is a reasonable custom, intended for the protection both of
brokers and their clients, and is a long-established, continuous, and universal custom of the
said brokerage business, and that plaintiff knew of said custom.
45 Nev. 202, 207 (1921) Ford v. Brown
long-established, continuous, and universal custom of the said brokerage business, and that
plaintiff knew of said custom.
IV. That on October 20, 1917, the day following the ruling and order of the
above-entitled court, in said case of White Caps Mining Company v. Manhattan Morning
Glory Mining Company, upon an order to show cause, with reference to injunctive process
then and there under consideration, the plaintiff was in the defendant's place of business, in
Tonopah, Nevada, reading the ruling and order of said court, as reported in the Tonopah
Daily Times of said last-named date, and the plaintiff was then and there watching and
reading the stock boards which showed sundry sales of the stock of Manhattan Morning
Glory Mining Company made on the San Francisco Stock Exchange on October 20, 1917;
that the market price of said last-named stock opened on October 20, 1917, at 19 cents, and
thereafter declined to lower prices; that the plaintiff did then and there, toward the closing of
the trading period on said 20th day of October, 1917, give to the defendant an order to sell
5,000 shares of Manhattan Morning Glory Mining Company stock at 16 cents per share; that
the defendant then and there used his best efforts in that behalf, and promptly sent a
telegraphic selling order to the defendant's correspondents on the San Francisco Stock
Exchange to sell said 5,000 shares at 16 cents per share, but that it proved to be impossible to
make such sale at 16 cents, the defendant and his correspondents being unable to get a
purchaser at said last-named figure; that the stock of the Manhattan Morning Glory Mining
Company declined steadily in price on October 20, 1917, from 19 cents per share to 15 cents
per share, 10,000 shares thereof selling at 15 cents, and the market closing at 14 cents bid.
That thereafter, to wit, on November 16, 1917, the plaintiff gave to the defendant an order
to sell said 5,000 shares of stock at 15 cents per share; that the defendant then and there used
his best endeavors to effect such sale in that behalf, and did promptly, on said date, send a
telegraphic selling order to the defendant's correspondents on the San Francisco Stock
Exchange to sell said 5,000 shares of stock at 15 cents per share, but that the market
price on said 16th day of November, 1917, was 14 cents, and that no shares were sold on
said date at 15 cents, and that the price of said stock so continued for the balance of said
calendar week at 14 cents per share, S,500 shares selling on the 16th, and 22,000 shares
selling on the 17th, and 12,000 shares selling on the 1Sth, all at 14 cents per share.
45 Nev. 202, 208 (1921) Ford v. Brown
effect such sale in that behalf, and did promptly, on said date, send a telegraphic selling order
to the defendant's correspondents on the San Francisco Stock Exchange to sell said 5,000
shares of stock at 15 cents per share, but that the market price on said 16th day of November,
1917, was 14 cents, and that no shares were sold on said date at 15 cents, and that the price of
said stock so continued for the balance of said calendar week at 14 cents per share, 8,500
shares selling on the 16th, and 22,000 shares selling on the 17th, and 12,000 shares selling on
the 18th, all at 14 cents per share.
That defendant finally sold said 5,000 shares of stock at times and at prices as alleged in
said complaint, but that before selling said stock, or any of it, the defendant personally
notified the plaintiff that, by reason of the depreciation in the market price of said stock, it
was necessary for the plaintiff to pay to the defendant an additional sum of money in order to
cover and protect said margin contract, or that, in the event of the plaintiff's failure so to do, it
would be necessary for the defendant to sell said stock; that the plaintiff then and there told
the defendant that the plaintiff could not or would not put up or pay to the defendant any
more money on account of said margin contract, and that said stock would have to be sold as
last hereinabove alleged.
The case was tried before a jury, which returned the following special verdict:
That the plaintiff is entitled to the sum of $29.80, being the amount admitted by the
defendant to be due the plaintiff on account of the Morning Glory stock transaction.
That the plaintiff directed the defendant to sell his Morning Glory stock under the
conditions as alleged in the complaint, and that the defendant neglected to carry out his (the
plaintiff's) instructions; but that the plaintiff repudiated the said instructions by his subsequent
order, on the 15th of October, 1917, given to the defendant, as shown by the evidence, to sell
the said stock at 20 cents, and that thereafter the original order to sell said mining stock
under the conditions as alleged in the complaint was of no further force and effect.
45 Nev. 202, 209 (1921) Ford v. Brown
said mining stock under the conditions as alleged in the complaint was of no further force and
effect.
That thereafter the defendant, according to the evidence, made an effort in good faith to
inform the plaintiff that the condition or happening had taken place under which the said
stock was to be sold, but that he failed to make known to his client, the plaintiff, the reason
for not selling the stock after the said event had occurred because of the previous order given
him by the plaintiff to sell the said stock on October 15 at 20 cents.
That on the said date of October 20 after plaintiff had become informed of his knowledge
that the order to sell had not been placed in accordance with his original instructions, the
plaintiff did not exercise sufficient regard for his own rights and interest by giving the
defendant absolute instructions to sell the said stock at the price then obtainable, namely, 15
cents, or more or less.
That thereafter, although the said stock was eventually sold at a loss to the plaintiff at the
price of 10 cents and 9 cents, as shown by the evidence, in accordance with the notice duly
given by the defendant to the plaintiff that the market price of the said stock had reached the
point where a further payment was required from the plaintiff to protect his marginal contract,
the plaintiff had continued to show a lack of interest, by his silence or otherwise, as to his loss
entailed by the selling of the said stock at the said prices of 10 cents and 9 cents per share.
That by virtue of the plaintiff's acquiescence in this loss as suffered by him in having the
said stock sold by the defendant, at the prices of 10 cents and 9 cents, instead of having said
stock sold at 19 cents or higher, we believe from the evidence that there was a mutual
disregard on the part of both defendant and his client, the plaintiff, to observe strictly the rules
and regulations necessary to the full performance of the contract, express or implied, which
existed between them.
45 Nev. 202, 210 (1921) Ford v. Brown
We therefore find that the plaintiff is liable in part for his failure to exercise at all times
the necessary care and vigilance to protect his interests, and that the defendant is liable in part
for his failure to give specific notice or instructions at all times as to the rules and regulations
of his business governing the transactions in this case. In view of such finding, we hold that
the respective parties in this action are equally, or at least in part, responsible for the failure
on the part of the other for the full performance of the contract, and that full damages, as
prayed for in the complaint, cannot in justice be awarded in favor of the plaintiff, but that the
defendant should be held liable for the costs in this case, and that, in view of these
conclusions as to the facts which we have found, the matter of levying the said costs upon the
defendant in this action be left to the discretion of the court in accordance with the law in the
case.
Upon this verdict the court rendered judgment in favor of respondent for the sum of $491,
with legal interest, together with his costs, amounting to $152.25.
The appellant does not question the sufficiency of the verdict of the jury as a special
verdict. When the verdict was rendered, his counsel expressly accepted the verdict and
withdrew a request previously made by him for answers to interrogations. He concedes that
by this special verdict the jury found upon all the issues necessary to a final determination of
the cause and the entry of judgment thereon. He contends, however, that the court erred in
making findings and rendering judgment in favor of respondent, and that the special verdict
warrants a judgment in favor of appellant.
1. On the main issue made by the pleadings, namely, as to whether respondent directed
appellant to sell his stock at once if the Manhattan Morning Glory Mining Company was
unsuccessful in the matter of the hearing of the restraining order as alleged in the amendment
to the amended complaint, or in the event the White Caps Mining Company won the case,
the jury found in favor of respondent.
45 Nev. 202, 211 (1921) Ford v. Brown
Mining Company won the case, the jury found in favor of respondent. It also found that
appellant neglected to carry out his instructions. These findings standing alone would, in this
case, clearly warrant the judgment in favor of respondent. But appellant contends the
subsequent statement in the special verdict, that the plaintiff repudiated the said instructions
by his subsequent order on the 15th of October, 1917, given to the defendant to sell the said
stock at 20 cents, and that thereafter the original order to sell said stock under the conditions
as alleged in the complaint was of no further force and effect, destroys the foregoing
findings, and amounts to a revocation of the instruction given October 12. The only finding of
fact in this statement is that, on the 15th of October, and subsequent to the instructions given
to sell immediately in the event of an adverse ruling on the restraining order, respondent
ordered appellant to sell said stock at 20 cents. Whether respondent's action in this respect
amounted to a revocation of his former instructions is a conclusion of law, which the jury had
no right to draw.
The duty of drawing conclusions of law from the facts found in a special verdict, is upon
the court. This is elementary law, embraced within the provisions of section 279 of the Civil
Practice Act (Rev. Laws, 5221). In part it reads:
A special verdict is that by which the jury finds the facts only, leaving the judgment to the
court. The special verdict shall present the conclusions of fact, as established by the evidence,
and not the evidence to prove them; and those conclusions of fact shall be so presented as that
nothing shall remain to the court but to draw from them conclusions of law.
See Knickerbocker & N. S. M. Co. v. Hall, 3 Nev. 194.
2. It is not necessary for us to determine whether the fact of the order of October 15, when
stripped of the conclusions of law drawn from it by the jury, amounts in law to a revocation
of the instructions given to appellant by respondent on the 12th day of the same month.
45 Nev. 202, 212 (1921) Ford v. Brown
to appellant by respondent on the 12th day of the same month. It is not alleged in the answer,
nor are any facts alleged therein showing that a revocation was pleaded or intended to be
pleaded. The answer was drawn on different theories, as will be observed by reference to it in
the statement of facts preceding this opinion. True, as counsel for appellant contends,
evidence was admitted without objection showing that a subsequent order to sell at 20 cents
was made, but this cannot aid the finding. Evidence outside the issues cannot be made the
basis of a judgment. A special verdict is a special finding by the jury on each material issue of
the case. Paxter v. Chicago & N. W. R. Co., 104 Wis. 307, 80 N. W. 644. If a special verdict
finds facts not put in issue by the pleadings, it is so far inoperative and void. The jury can find
only facts which have been submitted to them by the pleadings.
3-5. Appellant further contends that the jury found facts which constitute an estoppel. We
do not think so. The estoppel claimed by appellant is an estoppel in pais, or equitable
estoppel. An essential element of such an estoppel is that the party relying upon it was
influenced by the acts or silence of the other to act as he would not otherwise have done, to
his prejudice. There is no estoppel in pais when such is not the case. Sharon v. Minnock, 6
Nev. 377, 399. Such fact was not found by the jury in its special verdict. The jury found that
both parties were at fault, and concluded that the respondent was therefore precluded from
receiving the full amount of damages, and that the appellant was liable for the cost of the
action. The trial court properly disregarded these conclusions. The jury found that respondent
did not exercise sufficient regard for his own rights and interests by giving the appellant
absolute instructions to sell the said stock at the price obtainable, namely, 15 cents, or more
or less, after he had been informed on October 20, 1917, that the order to sell had not been
placed in accordance with his original instructions.
45 Nev. 202, 213 (1921) Ford v. Brown
The jury also found that thereafter, although the stock was eventually sold at a loss to
respondent at the price of 10 cents and 9 cents, in accordance with the notice duly given by
the appellant to respondent, that the market price of said stock had reached the point where a
further payment was required from the respondent to protect his marginal contract, he
continued to show a lack of interest, by his silence or otherwise, as to his loss entailed by the
selling of the stock.
There are also findings in the verdict that respondent acquiesced in the loss suffered by
him; that there was mutual disregard between the parties; and that respondent did not observe
strictly the rules and regulations necessary to the full performance of the contract.
But nowhere is it found that appellant was misled to his prejudice by respondent's conduct,
or that it influenced appellant in any manner whatever. So far as the verdict goes, appellant
may have acted in precisely the same way if respondent had notified him that he intended to
hold him for a claim for damages for his failure to sell in accordance with the instructions of
October 12. On this account we conclude that the estoppel claimed by appellant cannot be
drawn from the special verdict.
Appellant also contends that the contingency upon which he was to sell the stock never
happened. The jury found that the contingency did happen, and the evidence is sufficient to
support this finding.
The judgment must be affirmed.
It is so ordered.
____________
45 Nev. 214, 214 (1921) State v. Rothrock
[No. 2483]
THE STATE OF NEVADA, Respondent, v. DONALD
A. ROTHROCK, Appellant.
[200 Pac. 525]
1. Indictment and InformationObjection to Indictment Waived by Not Raising It as
Prescribed.
Under Rev. Laws, 7090, 7091, defendant, charged with embezzlement, waived the objection that the
names of many of the witnesses examined before the grand jury were not indorsed on the indictment by
not raising such objection by motion to set aside the indictment at the time prescribed by statute.
2. Grand JuryIndictment Not Vitiated by Publication of Vote on Question of Its Finding.
Indictment for embezzlement was not vitiated, under Rev. Laws, 6374, 7012, 7013, 7031, because a
newspaper of general circulation in the county published the vote on the question of the finding of such
indictment, the grand jury having made a report of the proceedings before it, including its action on the
charges against defendant, wherein it voted unanimously to indict him; the report being a matter of public
record.
3. Criminal LawInstruction that Certain Acts Might Be Considered Prima-Facie Evidence
of Guilt Not Prejudicial Error.
Under the statute authorizing the jury to consider certain acts as prima-facie evidence of the guilt of
one charged with crime, in a prosecution for embezzlement, the trial court committed no prejudicial error
in giving instructions that certain acts covered by the statute might be considered by the jury as
prima-facie evidence of defendant's guilt; such statutes being valid.
4. EmbezzlementCorporation's Treasurer, who Filled in Blank Check for More than
Authorized and Appropriated the Proceeds, Guilty of Embezzlement, and Not Larceny.
The secretary and treasurer of a corporation, who received a blank check from its president, with
instructions to fill in the check and pay the company's debt of $12, but instead filled in the check for
$400, using $64 of the proceeds to pay two debts of the company, and appropriating the rest, was guilty
of embezzlement, and not of larceny of a check.
5. Criminal LawInstruction Dealing with Weight To Be Given Testimony of Particular
Witness Properly Refused.
In a prosecution for embezzlement, the trial court properly refused to give an instruction dealing with
the weight to be given the testimony of a particular witness. A general instruction, applying to all
witnesses alike, is the correct practice.
6. Criminal LawTelegram Admissible after Answering Telegram Admitted.
In a prosecution of a corporation's treasurer for embezzlement of the proceeds of a blank check given him
by the president and filled in by him for more than authorized, a telegram, sent jointly by defendant and
others, and tending to negative the theory of flight because disclosing defendant's whereabouts, held
admissible in evidence as against the objection of lack of authenticity, after the answering telegram had
been admitted in evidence.
7. Criminal LawExclusion of Telegram, Negativing Flight, Prejudicial.
In the prosecution of a corporation's treasurer for embezzlement of the proceeds of a blank check given
him by the president and filled in by him for more than authorized, the exclusion of a telegram sent jointly
by defendant and others, tending to negative the theory of defendant's flight, because disclosing his
whereabouts, held prejudicial error.
8. EmbezzlementInstruction Specifying Facts of Offense Proper.
In a prosecution for embezzlement of the proceeds of a blank check filled out by defendant treasurer for
more than authorized, instruction that it must appear from the evidence that defendant appropriated the
money in question as alleged in the indictment, or $50 or more of it, to his own use, with intent to steal,
etc., held proper.
Appeal from Second Judicial District Court, Washoe County; C. J. McFadden, Judge.
Donald A. Rothrock was convicted of embezzlement, and from the judgment, and an order
denying his motion for a new trial, he appeals. Judgment reversed, and case remanded for
further proceedings. Petition for rehearing denied.
W. D. Jones, Geo. B. Thatcher, Eugene L. Williams, J. M. Frame, James T. Boyd, and
Edward T. Patrick, for Appellant:
Not having been found according to law, the indictment should have been, on defendant's
motion, set aside. The names of many witnesses before the grand jury were not indorsed on
the indictment. Rev. Laws, 7045; State v. Hamilton, 13 Nev. 388; Rev. Laws, 7012, 7013,
7031. Irreparable injury was done appellant by the overruling of his motion, and compelling
him to go to trial.
overruling of his motion, and compelling him to go to trial. State v. Hamilton, supra; State v.
Benney, 64 Me. 284; 1 Greenleaf on Evidence, sec. 252.
Appellant did not appropriate any part of the money, as charged in the indictment. It is
necessary to prove that he had * * * fraudulently converted to his own use the money alleged
to have been embezzled. People v. Wyman, 102 Cal. 555; Stallings v. State, 63 S. W. 127;
State v. Marco, 50 Pac. 799; State v. Weber, 31 Nev. 387; People v. Parkhurst, 12 N. W. 894;
People v. Gallagher, 33 Pac. 893; McAleer v. State, 64 N. W. 358.
There was fatal error in respect to the variance between the allegation of the indictment
and the proof admitted. Proof of the embezzlement or larceny of a check will not support a
charge of embezzlement or larceny of money. People v. Mesores, 116 Pac. 679; State v.
Hanley, 70 Conn. 265; Carr v. State, 104 Ala. 43; State v. Mispagel, 207 Mo. 557; Lancaster
v. State, 9 Tex. App. 393; State v. Harcombe, 48 Utah, 89; State v. Castleton, 255 Mo. 201; 7
Ency. Pl. & Pr. 451. Where an offense charged and that proven are essentially different in
their ingredients the variance is fatal, because in criminal proceedings it is necessary that the
defendant be fully apprised of the specific charge which he is to answer. 22 Ency. Pl. & Pr.
568; Huntsman v. State, 12 Tex. App. 619; People v. Dumar, 106 N. Y. 502; Commonwealth
v. Simpson, 50 Mass. 138; State v. Finnegan, 127 Iowa, 286; 2 Wharton, Crim. Law, 1314;
Ex Parte Dela, 25 Nev. 352.
The motives and intent of appellant were not fraudulent. It was prejudicial error to exclude
the telegram offered by defendant. Any evidence tending to throw light upon the question of
either motive or intent is admissible. 1 Greenleaf on Evidence, secs. 108, 110; People v.
Gallaud, 55 Mich. 628; People v. Hurst, 62 Mich. 276; State v. Summers, 141 N. C. 841;
State v. Eastman, 62 Kan. 353; State v. Pittarn, 32 Wash. 137; Robinson v. State, 77 Am. St.
Rep. 392; People v. Treadwell, 69 Cal. 226; People v. Gray, 66 Cal. 271.
There is no evidence of a felonious conversion, nor is there any evidence that a demand
was ever made upon the defendant for the money, which he refused to comply with. State v.
Weber, 31 Nev. 385; People v. Royce, 37 Pac. 630; 39 Pac. 524; People v. Wyman, supra;
People v. Page, 116 Cal. 386; Kribs v. People, 82 Ill. 425; People v. Pollack, 4 N. Y. S. 297;
Robinson v. State, 35 S. E. 57; Fitzgerald v. State, 14 Atl. 746; State v. Reynolds, 47 Atl.
644; State v. Hunnicut, 34 Ark. 562; State v. Flourney, 16 South. 938; Blake v. State, 160
Pac. 30.
It was error to instruct the jury that certain facts should be prima-facie evidence of guilt of
embezzlement. State v. Pappas, 39 Nev. 40; Kirk v. Territory, 10 Okla. 803; Abbott's
Criminal Brief, sec. 785; People v. Baker, 96 N. Y. 340; People v. Plath, 100 N. Y. 590;
Cummings v. Missouri, 4 Wall. 328; State v. Beswick, 13 R. I. 211; Wynehamer v. People,
13 N. Y. 446; People v. Lyon, 27 Hun, 180.
L. B. Fowler, Attorney-General; Robert Richards, Deputy Attorney-General; L. D.
Summerfield, District Attorney, and W. M. Kearney, Assistant District Attorney, for
Respondent:
Documentary evidence does not fall within the meaning of a witness, under the statute.
Rev. Laws, 7045; 1 Greenleaf on Evidence, secs. 98, 328; Bouvier's Law Dict. 3475. Even if
it were necessary to list the documentary evidence upon an indictment, the objections in the
case at bar come too late. By going to trial, and objecting only after the documents were
offered in evidence, defendant waived his rights, if any he had, in this respect. People v.
Lopez, 26 Cal. 113.
There was no error in the refusal of the court to set aside the indictment on the ground that
the grand jury had made public the vote in finding the indictment. Commonwealth v. Meade,
12 Gray, 167; People v. Young, 31 Cal. 564.
Whether or not there has been a conversion to one's own use in a particular instance
depends upon the intent of the taker.
own use in a particular instance depends upon the intent of the taker. This, as in other
criminal cases, is to be determined by the jury from the attending facts and circumstances.
State v. Baumhager, 28 Minn. 226; 20 C. J. 433, 9 R. C. L. 1279. It is not necessary for the
state to show what becomes of the money after it is embezzled. 9 R. C. L. 1276; Eggleston
v. State, 129 Ala. 80.
If the check or other evidence of indebtedness was merely the means by which the money
alleged to have been embezzled was procured, there is no variance. 20 C. J. 478; People v.
Crane, 34 Cal. App. 599; State v. Brooks, 85 Iowa, 366; Richburger v. State, 90 Miss. 806;
State v. McCawley, 180 S. W. 869; Territory v. Hale, 13 N. M. 181; State v. Chapin, 74 Or.
346; Powell v. State, 198 S. W. 317; State v. Hopkins, 56 Vt. 250; Prinslow v. State, 140
Wis. 131.
A telegram, like a letter, is not admissible in the absence of proof of its authenticity,
either in proof of the handwriting, where the original message is offered, or by other evidence
of its genuineness. 22 C. J. 907. It is necessary that the identity of the sender be established
before a telegram is admitted in evidence. There was no evidence of authorship by the
insured, or that she was the sender of the message. Ikenberry v. Insurance Co., 134 Minn.
432.
There was no necessity for a demand for an accounting. It is only when other evidence to
prove a fraudulent conversion is not available that the proof of a demand is necessary. 9 R.
C. L. 1276. There is no statute requiring a demand as a condition precedent to a prosecution
for embezzlement. State v. Weber, 31 Nev. 385.
No demand is required where the accused has resorted to flight. People v. Fisher, 16 Cal.
App. 271; Kossakowski v. People, 117 Ill. 563; Agar v. State, 176 Ind. 234; People v. Carter,
122 Mich. 668; State v. Knowles, 185 Mo. 141; State v. Reynolds, 65 N. J. L. 424.
Neither an intention to make good the amount embezzled, at the time of the conversion,
nor an actual replacement of the amount after conversion, will constitute a defense. 20 C. J.
437, 455; 9 R. C. L. 1298; State v. Trolson, 21 Nev. 419.
There was no error in the instructions. The whole charge must be taken together and
considered as an entirety. If anything essential, omitted from an instruction or portion of the
charge, be found in another instruction, the omission will not be fatal. State v. Pritchard, 15
Nev. 74; Solen v. Railway Co., 13 Nev. 106; Allison v. Hagen, 12 Nev. 38; State v.
Raymond, 11 Nev. 98; State v. Donovan, 10 Nev. 36; Caples v. Railway Co., 6 Nev. 265.
The statutory provisions making certain facts prima-facie evidence of the existence of the
main fact are not unconstitutional. 8 R. C. L. 177. The legislature * * * may declare what
shall be prima-facie evidence, and may regulate the burden of proof. It is within the province
of the legislature to prescribe rules of evidence. State v. Thomas, 144 Ala. 77; Wooten v.
State, 24 Fla. 335; Meadowcroft v. People, 163 Ill. 56; State v. Beach, 147 Ind. 74;
Commonwealth v. Anselvich, 186 Mass. 376; People v. Cannon, 139 N. Y. 32; State v.
Barrett, 138 N. C. 630. The law presumes that such was defendant's intention, and throws
upon him the burden of showing facts in mitigation, justification, or excuse. State v. Pappas,
39 Nev. 40.
It was for the jury to determine, as a matter of fact, whether or not there was a flight on the
part of appellant. Bird v. U. S., 187 U. S. 186; Campbell v. U. S., 221 Fed. 186; Ware v.
State, 12 Ala. 101; People v. Easton, 148 Cal. 50; Hudson v. State, 101 Ga. 520; State v.
Matheson, 120 Iowa, 440; State v. Harrington, 86 U. S. 713; State v. Stentz, 33 Wash. 444.
There must be an end to the giving of instructions, and the tendency of courts is to give too
many. State v. Ward, 19 Nev. 297. The crime of embezzlement was clearly established
and by evidence more ample than that adduced in most of the adjudicated cases on the
subject.
The crime of embezzlement was clearly established and by evidence more ample than that
adduced in most of the adjudicated cases on the subject. No error was committed by the lower
court, at least of the character necessary to reverse the judgment. No judgment shall be set
aside, or new trial granted, * * * unless * * *it shall appear that the error complained of has
resulted in a miscarriage of justice, or has actually prejudiced the defendant in respect to a
substantial right. Rev. Laws, 7469.
The defendant was indicted upon a charge of embezzlement, and, having been convicted at
the trial, appeals from the order denying his motion for a new trial, and from the judgment.
The charging part of the indictment is in the following language:
That said defendant, on the 28th day of May, A. D. 1920, or thereabouts, and before the
finding of this indictment, at and within the county of Washoe, State of Nevada, committed
the crime of embezzlement. That at the time and place aforesaid the above-named defendant
was secretary and treasurer of Greek Hills Trimetal Company, Inc., a corporation then and
there organized and existing under and by virtue of the laws of the State of Nevada, and by
reason of his being secretary and treasurer of said Greek Hills Trimetal Company, Inc., was
then and there intrusted with and had given unto his possession by said Greek Hills Trimetal
Company, Inc., the owner thereof, four hundred ($400) dollars, lawful money of the United
States of America, for the sole and only purpose of holding and keeping the said four hundred
($400) dollars in his possession, as said secretary and treasurer of said Greek Hills Trimetal
Company, Inc., and expending the same, as said secretary and treasurer of said Greek Hills
Trimetal Company, Inc., in payment of claims against the said Greek Hills Trimetal
Company, Inc., when duly and regularly authorized and allowed by said Greek Hills
Trimetal Company, Inc., and that said defendant did then and there, while intrusted by
said Greek Hills Trimetal Company, Inc., as secretary and treasurer of said Greek Hills
Trimetal Company, Inc., with the said four hundred {$400) dollars as aforesaid, and while
in the possession thereof as aforesaid, for the uses and purposes aforesaid, wilfully,
unlawfully, fraudulently, and feloniously convert the said four hundred {$400) dollars,
lawful money of the United States of America, to his own use, with the intent then and
there to steal the same and to defraud the said Greek Hills Trimetal Company, Inc., the
owner thereof, of the same."
and regularly authorized and allowed by said Greek Hills Trimetal Company, Inc., and that
said defendant did then and there, while intrusted by said Greek Hills Trimetal Company,
Inc., as secretary and treasurer of said Greek Hills Trimetal Company, Inc., with the said four
hundred ($400) dollars as aforesaid, and while in the possession thereof as aforesaid, for the
uses and purposes aforesaid, wilfully, unlawfully, fraudulently, and feloniously convert the
said four hundred ($400) dollars, lawful money of the United States of America, to his own
use, with the intent then and there to steal the same and to defraud the said Greek Hills
Trimetal Company, Inc., the owner thereof, of the same.
It is admitted that the defendant was the treasurer of the company mentioned on May 28,
1920, and that on that day he had in his possession a blank check of said company, duly
signed by the president, with instructions to ascertain the amount of a certain indebtedness of
the company, which was $12, to fill in the amount of said indebtedness as the sum for which
said check should be made payable, to sign the same as treasurer, and then to pay said
indebtedness, but that instead of doing as instructed he made the check payable to himself for
$400, got the money thereon, and paid two claims against the company, aggregating $64.
Further details will appear in the opinion.
1. The first contention made in behalf of the defendant is that the names of many of the
witnesses who were examined before the grand jury were not indorsed upon the indictment,
as required by section 7045, Revised Laws 1912. Section 7090 of the Revised Laws provides
that such an objection must be made by motion to set aside the indictment. This was not
done. Section 7091 provides where such objection is not made in the manner mentioned, a
defendant is precluded from thereafter urging the point. People v. Lopez, 26 Cal. 113. The
defendant waived the point by not raising it at the time prescribed by the statute.
2. It is next contended that the trial court erred in refusing to set aside the indictment
upon the ground that the grand jury which returned it caused to be published in a daily
newspaper, of general circulation in the county in which the defendant was indicted, the
vote upon the question of the finding of said indictment.
refusing to set aside the indictment upon the ground that the grand jury which returned it
caused to be published in a daily newspaper, of general circulation in the county in which the
defendant was indicted, the vote upon the question of the finding of said indictment. In
support of this contention our attention is directed to sections 6374, 7012, 7013, and 7031 of
the Revised Laws. The facts are that the grand jury made a report of the proceedings had
before it, among which was its action upon the charges against this defendant, wherein it
voted unanimously to indict him. This report was a matter of public record in the clerk's
office, and the newspaper published it. The provisions of our statutes relative to keeping
secret the proceedings before the grand jury were not enacted for the benefit of those who
were investigated and indicted by the grand jury, but for the protection of the public. This
idea is clearly set forth by the Supreme Court of Massachusetts in Commonwealth v. Mead,
12 Gray, 167, 71 Am. Dec. 741, where it is said:
The reasons on which the sanction of secrecy which the common law gives to
proceedings before grand juries is founded are said in the books to be threefold. One is that
the utmost freedom of disclosure of alleged crimes and offenses by prosecutors may be
secured. A second is that perjury and subornation of perjury may be prevented by withholding
the knowledge of facts testified to before the grand jury, which, if known, it would be for the
interest of the accused or their confederates to attempt to disprove by procuring false
testimony. The third is to conceal the fact that an indictment is found against a party, in order
to avoid the danger that he may escape and elude arrest upon it, before the presentment is
made. * * * But when these purposes are accomplished, the necessity and expediency of
retaining the seal of secrecy are at an end. Cessante ratione, cessat regula.'
Dwelling upon the same question, it is said by the Supreme Court of California in People
v. Young, 31 Cal.
Supreme Court of California in People v. Young, 31 Cal. 564:
If the witnesses violated the obligation of secrecy imposed by them by the two hundred
and seventeenth section, the defendant could not take advantage of it. The obligation is due
and owing to the public, and not to the witness, and therefore its violation cannot be an
occasion of offense to him.
We fully approve of the views expressed in the opinions mentioned.
3. It is contended that the court committed prejudicial error in giving two instructions to
the effect that certain facts might be considered by the jury as prima-facie evidence of the
guilt of the defendant. These instructions were given pursuant to statute, authorizing the jury
to consider certain acts as prima-facie evidence of the guilt of one charged with crime. In
support of the contention, our attention is directed to the case of State v. Beswick, 13 R. I.
211, 43 Am. Rep. 26, and State v. Liquors and Vessels, 80 Me. 57, 12 Atl. 794. These
decisions sustain the contention, but we are of the opinion that the contrary rule is supported
by both the great weight of authority and by sound reasoning. In R. C. L., vol. 8, p. 177, it is
said:
In many jurisdictions, statutes have been enacted which provide that when certain facts
have been proved they shall be prima-facie evidence of the existence of the main fact in
question. The validity of such acts has been questioned many times, but usually they have
been held to be a proper exercise of legislative power. * * * The inference of the existence of
the main fact because of the existence of the fact actually proved, must not be merely and
purely arbitrary, or wholly unreasonable, unnatural, or extraordinary. But so long as the
legislature, in prescribing rules of evidence, in either civil or criminal cases, leaves a party
fair opportunity to make his defense and to submit all the facts to the jury, to be weighed on
evidence legitimately bearing upon them, it is difficult to perceive how its acts can be
assailed upon constitutional grounds."
weighed on evidence legitimately bearing upon them, it is difficult to perceive how its acts
can be assailed upon constitutional grounds.
The same rule is stated in 12 C. J. 823, in the following language:
Likewise, the legislature has power to give to evidence greater effect than it possesses at
common law, and in both civil and criminal proceedings it may declare what shall be
prima-facie evidence, and may regulate the burden of proof.
See, also, State v. Thomas, 144 Ala. 77, 40 South. 271, 2 L. R. A. (N. S.) 1011, 113 Am.
St. Rep. 17, 6 Ann. Cas. 747; Wooten v. State, 24 Fla. 335, 5 South. 39, 1 L. R. A. 819;
Meadowcroft v. People, 163 Ill. 56, 45 N. E. 991, 35 L. R. A. 176, 54 Am. St. Rep. 447; State
v. Beach, 147 Ind. 74, 43 N. E. 949, 46 N. E. 145, 36 L. R. A. 179; Commonwealth v.
Anselvich, 186 Mass. 376, 71 N. E. 790, 104 Am. St. Rep. 590: People v. Cannon, 139 N. Y.
32, 34 N. E. 759, 36 Am. St. Rep. 668; State v. Barrett, 138 N. C. 630, 50 S. E. 506, 1 L. R.
A. (N. S.) 626.
While this question has never been before us in a criminal case, it was presented in Garson
v. Steamboat Canal Co., 43 Nev. 298, 185 Pac. 801, 1119, where we held that no one has a
vested right in a rule of evidence, and that the legislature has the undoubted right to prescribe
such rules of evidence as may best promote justice. There is nothing in the case of State v.
Pappas, 39 Nev. 40, 152 Pac. 571, in conflict with the view stated.
4. It is said that there is a variance between the offense charged and the proof, in that the
defendant committed larceny of a check and not embezzlement of money, if he committed
any crime. We are not prepared to approve the contention. The blank check came into the
hands of the defendant because of his position as secretary and treasurer of the company, and
it was through the signing of the check in his official capacity that he was enabled to get the
$400. The money, when it got into his possession, was clearly the property of the company.
the company. Upon no theory could it be said to have been the property of the defendant. A
person occupying a position of confidence and trust cannot use that position for the purpose
of obtaining possession of money, and after succeeding deny that he obtained it because
thereof. We think the question was settled by this court in Ex Parte Ricord, 11 Nev. 287,
which grew out of an embezzlement charge against a clerk in a railroad office, who, having
been permitted to make collections of certain demands due the railroad, collected others
which he embezzled. It was urged in his behalf that he was not guilty of embezzlement, for
the reason that he had no authority to collect the money embezzled. The court brushed the
contention aside with the observation that it did not lie in his mouth to say that he had no
authority to collect the money. A case identical to the one at bar, except that the misuse of the
money was not controverted therein, is that of People v. Gallagher, 100 Cal. 466, 35 Pac. 80,
in which the court said:
Bishop, in his work on Criminal Law, in commenting upon Rex v. Snowley, 4 Car. & P.
390, uses the following language: That when in reason, whenever a man claims to be a
servant while getting into his possession by force of his claim the property to be embezzled,
he should be held to be such on his trial for embezzlement. Why should not the rule of
estoppel known throughout the entire civil department of our jurisdiction apply in the
criminal? If it is applied here, then it settles the question; for by it, when a man has received a
thing from another under a claim of agency, he cannot turn around and tell the principal,
asking for the thing, Sir, I was not your agent in taking it, but a deceiver and a scoundrel.'
Bishop, Crim. Law (3d ed.) sec. 367. In the seventh edition of the same work, like language,
with some additions, is used at section 364 of volume 2. In Ex Parte Hedley, 31 Cal. 109, a
case involving the same question, and in many respects similar to the one at bar, this court
quoted, with marked approval, the foregoing extract from Bishop, and in an opinion regarded
as conclusive of the question here held that if an agent obtains the money of his principal
in the capacity of agent, but in a manner not authorized, and converts the same to his
own use, with intent, etc., it is money received 'in the course of his employment' as
agent."
See, also, Smith v. State, 53 Tex. Cr. R.
regarded as conclusive of the question here held that if an agent obtains the money of his
principal in the capacity of agent, but in a manner not authorized, and converts the same to
his own use, with intent, etc., it is money received in the course of his employment' as
agent.
See, also, Smith v. State, 53 Tex. Cr. R. 117, 109 S. W. 118, 17 L. R. A. (N. S.) 531, and
note, 15 Ann. Cas. 435.
It is contended that the court erred in refusing to give a requested instruction to the effect
that if the defendant properly accounted for the money he should be found not guilty. We
fail to see any force in this contention. Whether the defendant properly accounted for the
money was not a question of fact, but a question of law. The fact is that he deposited the
money to the company's account about June 30, after his return, and after the crime had been
committed, if any was committed. If he had committed a crime his remorse, repentance and
restoration of the money could not wipe it out. 20 C. J. 455; 9 R. C. L. 1298.
5. It is urged that the court erred in refusing to give an instruction dealing with the weight
to be given the testimony of a particular witness. A general instruction was given, informing
the jury as to the rule whereby they were to arrive at an estimate of the credibility of the
various witnesses who testified in the case. It is unwise for the court to single out a particular
witness, and give an instruction as to the tests to be applied by the jury in determining the
weight to be given his evidence. To give a general instruction applying to all witnesses alike
is the correct practice. The court did not err in refusing to give the particular instruction.
6. It is contended that the court erred in refusing to admit in evidence a telegram from
Omaha, Neb., of date June 5, sent to Connelly jointly by Mr. Young, manager of the
company, one Davies, in some way connected with it, and the defendant. This telegram was
offered in evidence after Connelly had admitted on the witness stand that he had received it.
stand that he had received it. An objection was made by the state to its admission, upon the
ground of lack of authenticity. Upon the record as it then stood, we are not prepared to say
that the court erred; but thereafter a telegram of June 6, signed by Connelly, directed to the
senders of the telegram of June 5, and in reply thereto was offered in evidence. After this
telegram had been admitted in evidence, the defendant renewed his offer of the telegram of
June 5, which offer was again rejected by the court. We are of the opinion that the court erred
in its ruling upon this last offer. Connelly having acted upon the telegram of June 5 as
genuine, there was no occasion for showing its authenticity. 22 C. J. 908. The court having
erred, we must determine whether the error was prejudicial. Whether or not there is evidence
in the case upon which to base an instruction as to flight is doubtful. But, assuming that there
is, unless flight is shown so clearly that it cannot be said that by any possibility could the
defendant have been prejudiced, it is our duty to reverse the judgment, unless his guilt is so
satisfactorily shown that it can be said that the jury could have reached no other conclusion.
The evidence shows that the defendant, though authorized to fill out the check for only
$12, on May 28 filled it out for $400, payable to himself, and procured that amount on it,
paying therefrom two claims against the company, aggregating $64. It is also shown that on
June 2 the president of the company made an appointment with the defendant to meet him the
next day to draw checks upon the company's bank account to pay the men who had been
employed upon the property of the company. That night the defendant was married, and some
time during the night, or the following day, left Reno, and was next heard from at Omaha,
Neb., from which place the telegram of June 5 was sent, which was followed on the two
following days by letters signed by Young, Davies, and the defendant.
In determining whether or not such a strong showing of flight was made out as to justify us
in saying that the defendant was not prejudiced by the rejection of the offer of the telegram,
we are justified in considering the evidence in support of the proof of the crime charged; for,
if the evidence of that is questionable, we must assume that the ruling was prejudicial. In
considering this question, we must also keep in mind that it was the theory of the defense that
the defendant went away on business. Connelly, the president of the company, testified that
after the defendant had gone away he examined the bank account and found it several
hundred dollars short. Neither he nor any other witness testified that the defendant had been
directed to pay out for the company the balance of the $400, or that a demand had been made
therefor. The state having alleged that the defendant had come into possession of the $400
lawfully, and having urged that he should be estopped from saying that he had not, it would
seem that the state should be estopped from relying upon any evidence to the contrary to
make out or sustain its case. Having held that the defendant is so estopped, we must also hold
that no evidence of the shortage of the bank account can be considered by us in determining
whether the defendant was guilty of embezzlement. For the purposes of this case, the
defendant came into the possession of the money rightfully, and the shortage of the bank
account is more than immaterial.
Let us assume that the check did not enter into the case at all. Suppose $400 in cash had
been deposited with the defendant by the company, to be paid out when directed; that he paid
out in fact on behalf of the company $64; that he had not been directed to pay out any further
sum; that no demand had been made upon him for the balance; that he had failed to keep an
appointment to draw checks upon the bank account of the company to pay its debts, but
instead had left for Omaha, or some unstated destinationcould it be said that there would
be any evidence whatsoever upon which to base an instruction on flight?
that there would be any evidence whatsoever upon which to base an instruction on flight? We
think not.
The condition of the bank account being immaterial, the failure of the defendant to keep
the appointment to sign the checks cannot be attributed, in law, to its shortage. The question
is, then: What evidence is there in the record to show embezzlement? The money having been
deposited with defendant for an indefinite time for a special purpose, and he not having been
directed to use it for the purpose deposited, and no demand having been made upon him
therefor, there must have been some evidence of his use of the money in a manner prohibited
by the statute. There is no direct evidence of that fact, and a reliance to sustain that contention
must rest largely upon the circumstance to which we have alluded, namely, the failure to keep
the appointment. But, assuming that facts as recited did justify submitting the question to a
jury, can we say that the defendant was not prejudiced by the court's rejecting the telegram
offered in evidence?
7. Flight must follow the commission of a crime. Flight signifies something more than a
mere going away. It embodies the idea of going away with a consciousness of guilt, for the
purpose of avoiding arrest. 16 C. J. 551, 552. In determining whether or not such was the
purpose of the defendant, in view of the fact that it was the theory of the defense that he had
gone away on account of business, he was entitled to have the jury consider the telegram of
June 5, disclosing his whereabouts. The jury might have been convinced that the defendant's
disclosure of his whereabouts by telegram so soon after going away indicated that he had no
thought of concealing himself for the purpose of avoiding arrest. Under all the circumstances,
the defendant was entitled to have the jury consider the telegram in question, and the refusal
of the court to admit it in evidence was prejudicial error, warranting a reversal of the
judgment. In this connection, the query arises, in view of the fact that it was the theory of
the defense that the defendant went away on business, as to whether the court should
not have covered that theory in its instruction.
in view of the fact that it was the theory of the defense that the defendant went away on
business, as to whether the court should not have covered that theory in its instruction. State
v. Marshall, 115 Mo. 383, 22 S. W. 452.
8. It is also asserted that the court erred in instructing the jury as follows:
The court instructs the jury that it must appear from the evidence that the defendant
appropriated the money in question, as alleged in the indictment, or $50 or more of it, to his
own use, with the intent to steal the same and to defraud the Greek Hills Trimetal Company
thereof, and those facts must be proved beyond a reasonable doubt. Therefore, if you believe
from the evidence, beyond a reasonable doubt, that the defendant, Donald A. Rothrock, was
entrusted with and had given into his possession, the sum of money alleged in the indictment,
and that it was so entrusted to him and given into his possession, as the secretary and
treasurer of the Greek Hills Trimetal Company, for the sole and only purpose of holding and
keeping the same, as said secretary and treasurer, in payment of claims against the said Greek
Hills Trimetal Company when duly and regularly authorized and allowed, and that, instead of
holding and keeping and expending the same as he should have done, he appropriated it, or
$50 or more of it, to his own use, with the intent to steal the same and to defraud the Greek
Hills Trimetal Company thereof, that fact would constitute the crime of embezzlement as
defined by the statute, and you should convict the defendant. The offense of embezzlement
consist of two things: The act of taking money, and the intention with which it is taken.
It is said that this instruction fails to cover a material element of embezzlement, namely, a
conversion of the money with a fraudulent intent, and that the concluding sentence is
contradictory of the rest of the instruction, and hence tended to confuse the jury, and
constituted reversible error, under the rule laid down in State v. Scott, 37 Nev. 420
reversible error, under the rule laid down in State v. Scott, 37 Nev. 420, 142 Pac. 1053. We
simply wish to say that, if the first contention is good, there can be nothing to the second; but,
if the first contention is without merit, we think the second is equally so. There may be a
taking of property with the intention of appropriation it to the taker's own use. On the other
hand, there may be an embezzlement without the element of intent entering into it. State v.
Trolson, 21 Nev. 419, 32 Pac. 930.
Some other questions are discussed in the brief of appellant, but we think they are
substantially disposed of by what we have said.
For the reasons pointed out, it is ordered that the judgment be reversed, and the case
remanded for such further proceedings as may be deemed proper.
Ducker, J.: I concur in the order.
This is an issue upon a plea of not guilty, interposed by appellant, an attorney at law, to an
indictment charging him, as secretary and treasurer of a domestic corporation, with the crime
of embezzlement, as declared by what I shall designate as the first clause of section 388 of the
Crimes and Punishments Act (Rev. Laws, 6653), entitled Embezzlement by Bailee or Other
PersonBailee Defined. As the case is the first to reach this court for the violation of the
provisions of that section in its condensed form, I shall treat the case as a precedent. The
section reads as follows:
Any bailee of any money, goods or property, who shall convert the same to his own use,
with the intent to steal the same or to defraud the owner or owners thereof and any agent,
manager or clerk of any person, corporation, association or partnership, or any person, with
whom any money, property or effects shall have been deposited or entrusted, who shall use or
appropriate such money, property or effects or any part thereof in any manner or for any
other purpose than that for which the same was deposited or entrusted, shall be guilty of
embezzlement, and shall be punished in the manner prescribed by law for the stealing or
larceny of property of the kind and name of the money, goods, property or effects so
taken, converted, stolen, used or appropriated.
manner or for any other purpose than that for which the same was deposited or entrusted,
shall be guilty of embezzlement, and shall be punished in the manner prescribed by law for the
stealing or larceny of property of the kind and name of the money, goods, property or effects
so taken, converted, stolen, used or appropriated. The term bailee,' as used in this section,
shall be construed to include and mean all persons with whom any money, goods, or property
has been deposited, and all persons to whom any goods or property has been loaned or hired,
and all persons to whom any goods or property shall be delivered, for any purpose
whatsoever, and all persons who shall, either as agent, collector, or servant, be empowered,
authorized, or entrusted to carry, collect, or receive any money, goods or property of another;
and any use of said money, goods, or property by any bailee thereof, other than that for which
the same was borrowed, hired, deposited, carried, received, or collected, shall be prima-facie
evidence of conversion and of intent to steal the same and defraud the owner or owners
thereof.
The history of that portion of the section relative to bailee antedates the organization of
the state (Stats. 1861, p. 70), and has undergone two amendmentsone to include conversion
by bailee with intent to steal or to defraud, to define the term bailee, and to declare
conversion by a bailee to be prima-facie evidence of intent to steal and defraud (Stats. 1875,
p. 99); the other, with respect to punishment (Stats. 1879, p. 123). In 1887, to further define
and punish the crime of embezzlement, a supplemental act was adopted to include persons
other than bailees (Stats. 1887, p. 81). The commissioners appointed in 1912 to revise our
criminal law saw fit to loosely, and without discrimination, throw the act of 1887 into the
section concerning embezzlement by bailee, by the transposition of terms and the use of
conjunctive words. The italicized portion of the section as quoted embraces the offense
declared by the act of 1887.
The first question to arise is whether the section in its present condensed form declares but
one offense, or two separate and distinct offenses. It is my opinion that, while the offenses
relate to the same acts, they differ as to the relations in which the persons stand who commit
them. A defendant indicted as bailee cannot be convicted of the offense of embezzlement by
an agent or any persons standing in that relation, though the offenses are of the same grade
and the punishment the same, because of the apparent different relations of the persons and
the different elements of the offenses. I am of the opinion that the lawmakers in 1887
considered that the crime of conversion by bailee, notwithstanding the large signification of
the term bailee as defined, was not sufficiently comprehensive to include that class of
persons, criminally inclined, standing in the relation of agentor any person intrusted with
money, goods, property, or effects for a particular purposehence the necessity for the act of
1887. I assume that the compilers of the law in 1912 found their authority for combining the
two offenses in the principle that where offenses are of the same family of crimes or the same
species they may be united, and by joining embezzlement by bailee with that of
embezzlement by any agent or any person it was intended to make it possible to accuse one of
the violation of the several phases of the offense in a single indictment or information; but I
do not apprehend that it was intended by the compilers to confound the offenses. It is
permissible, under the section in its present form, to include in one indictment or information
the several elements of the offenses or characters as distinguished by the statute, provided the
different means or ways of committing the act are charged in several separate and distinct
counts. I do not think that by the combining of the offenses it was intended to dispense with
the rule that, when a statute specifies distinct offenses, different elements, and several classes
of persons, the indictment for its violation must be so framed as to bring the person clearly
within the class specified and the phase of the offense alleged to have been committed {1
Wharton's Crim. Proc., 10th ed., sec.
as to bring the person clearly within the class specified and the phase of the offense alleged to
have been committed (1 Wharton's Crim. Proc., 10th ed., sec. 584, p. 740; 8 Standard Ency.
p. 220), or that the pleader could, in framing the indictment, overlook the elementary rule
that, when an indictment is founded on a statute, all the facts and circumstances which
constitute the offense must be laid in the indictment, and it must state all the ingredients
which enter into the offense, whether set down in the statute in terms or interpreted into it (2
Bishop's New Crim. Proc., 2d ed., sec. 612, p. 478).
It will be observed that officers of private corporations are nowhere in terms specified in
the section. It was considered by the court in State v. Weber, 31 Nev. 385, 103 Pac. 411, that
such officers fall within the term any person, as used in the act of 1887. It is surprising that
such a large class should not have been at least named. For the sake of clearness, the
compilers should have at least segregated officers of corporations, public or private, in a class
by themselves, as has been done in all the other states, and thereby relieve the law of any
confusion as to this class of persons.
Coming to the case at bar, I interpret the indictment to mean that the $400 alleged to have
been intrusted to the defendant was a mere naked bailment (a depositum), which the
defendant held wholly and exclusively for the benefit of the bailor (the corporation). By its
averments, he was in the lawful receipt of the money; it was given into his possession by
virtue of his office for a particular purpose, to be expended by him in a particular manner. It
is averred that while so intrusted, and the money so in his custody, he converted the particular
sum of money to his own use, coupled with intent to steal and defraud the corporation, its
owner. Though the defendant is not named as bailee, the indictment sets forth facts which
clearly show that the money, at the time it is alleged to have been converted, was held by him
in that capacity.
by him in that capacity. It is true it appears that the defendant converted the money in his
capacity as secretary and treasurer of the corporation, but this is merely descriptive of the
relation. The jury in this case returned this verdict:
We, the jury, find the defendant above named, Donald A. Rothrock, guilty as charged.
The clause guilty as charged refers, of course, to the indictment for the facts which are
specially found in the verdict, and the finding is not to be aided by reference to other facts
upon which there was no finding; neither does it supply material omissions in the indictment.
I shall not recapitulate nor comment upon the evidence. But, upon a most careful study of
the record, the facts, in my judgment, bring the defendant within that phase of the statute that
makes any person guilty of embezzlement who shall use or appropriate money, goods,
property, or effects intrusted to him for any other purpose than that for which the same was
deposited or intrusted. State v. Weber, supra. The offense certainly had its inception in the
defendant's culpable act in filling in a blank check under color of his office, which had been
previously signed by him as treasurer and countersigned by the president of the corporation,
in conformity to the law of the corporation. The funds of the company, under resolutions of
its board, were deposited in its name in the Farmers and Merchants National Bank of Reno,
Nevada. In order to safeguard its funds, it was resolved by the board that all checks and drafts
drawn against the funds of the company should be signed by its treasurer and countersigned
by its president. It appears, as stated, that the defendant had in his possession a check thus
signed, which at the time of its delivery to him was intended to be filled in by him to meet an
obligation of the company for the small sum of $12. But, without the knowledge or consent of
the president, defendant filled in the check to himself as payee for the sum of $400, and
withdrew that sum of money from the bank.
payee for the sum of $400, and withdrew that sum of money from the bank. This act,
unexplained, constituted a complete offense, under the second clause of the
sectionembezzlement by any person other than baileein that the funds of the company,
though deposited in bank in its name, were in a restricted and limited sense under the care
and control of the defendant, not, however, as bailee as the term is used in the statute.
The evidence for the state consists mainly in detailing before the jury the animus furandi
of the defendant in the withdrawal of the money from the bank for the sole purpose of
appropriating it to his own use, with intent to steal and defraud. The jury was instructed that
the offense of embezzlement consists of two thingsthe act of taking money, and the intent
with which it is taken. If this be the law of the case, the money was taken unlawfully. The
intent to steal and defraud was conceived when the accused filled in the check for $400, and
the conversion took place when he withdrew the money from the bank. The legal effect of all
this evidence was to prove one charge for the purpose of sustaining some other charge. The
defendant may unquestionably be guilty of some offense, but he cannot be convicted of one
crime by proof of another, though of the same family. Ex Parte Rickey, 31 Nev. 94, 100 Pac.
134, 135 Am. St. Rep. 651.
The drafter of the indictment might have safely and sufficiently charged the defendant with
the misuse and misappropriation of the money intrusted to him as an officer of the
corporation in the language of the statute, by the use of a count to meet this phase of the
evidence, but in this he failed. According to the indictment, the defendant received the money
first bona fide, and then fraudulently converted it, with intent to steal and defraud. This is the
crime expressed. Undoubtedly the material distinctions made by the statute escaped the
observation of the pleader, court, and jury.
observation of the pleader, court, and jury. From the proof they may have assumed that the
appropriation of the money by means of the fraudulent check, with the animus furandi, might
be considered as competent evidence to establish the crime as laid in the indictment.
I do not wish to be understood as holding or saying that proof of one offense under the
statute disproves the other. If it did, the offenses would be repugnant, and could not be joined
in one indictment. They are not repugnant. State v. Trolson, 21 Nev. 429, 32 Pac. 930. But
what I do say is that evidence of a distinct offense, such as that of embezzlement by an officer
of a corporation, does not establish the offense of embezzlement by a bailee. I cannot say that,
with the evidence of defendant's fraudulent or felonious taking of the money from the bank
eliminated from the case, the jury would have rendered the verdict it did.
It is suggested that the proof shows an actual embezzlement, involving one and the same
transaction, and, the evidence having gone to the jury without objection, to grant a new trial
would countenance a defeat of justice by sacrificing substance to form. The difficulty with the
state's position throughout is that it interprets the term any person, as used in the section, to
be a convertible term which applies to all classes of personsbailees, agents, or any
personwho appropriate to their own use the property of another, with or without intent to
steal or defraud. This is true under the general definition of embezzlement, and under some
statutes such a general charge in an indictment would be sufficient; but not under a statute
like ours, which does not define the offense, but simply declares who and under what
circumstances the persons specified may be found guilty. I have repeatedly pointed out that
under the indictment there was such a delivery of the $400 as to divest the owner of its
possession and vest it in the accused. If the prosecution, to convict the defendant, intended to
rely upon evidence of the fraudulent appropriation of the money in the first instance, the
indictment should have contained a count to meet the evidence.
rely upon evidence of the fraudulent appropriation of the money in the first instance, the
indictment should have contained a count to meet the evidence.
It is proper that I should state that I am in accord with the disposition made by Justice
Coleman of the alleged irregularities complained of up to the trial. I assent to the order
granting a new trial solely for the reason that, upon my construction of the statute, my
interpretation of the indictment and the evidence, no intelligent judgment can be rendered
upon the verdict finding the defendant guilty as charged.
Per Curiam:
Rehearing denied.
____________
45 Nev. 238, 238 (1921) State v. Cecchettini
[No. 2505]
THE STATE OF NEVADA, Respondent, v. C. CECCHETTINI and A. MATTEUCCI,
Appellants.
[199 Pac. 1004; 201 Pac. 547]
1. Criminal LawJudgment Affirmed for Failure to Seasonably File Brief, Notwithstanding
Filing after Motion.
Under supreme court rule 11, requiring appellant in any case to file his points and authorities or brief
in fifteen days after filing transcript, and providing that failure of either party to file them in the
prescribed time shall be deemed a waiver by him of the right to orally argue the case, and Rev. Laws,
7299, providing that judgment of affirmance may be granted without argument if appellant fails to
appear, appellant, by filing a brief, after being in default, and after notice of motion to affirm for that
reason, is not saved from an affirmance; though an application and a showing of good cause the supreme
court might relieve him of his default.
On Petition For Rehearing
1. Criminal LawMotion to Dismiss Appeal Waived, if Not Made at Time of Hearing.
On appeal, where there was no formal motion to dismiss, but the matter argued and submitted as
though such a motion had been made, the objection that there was no motion was waived.
2. Criminal LawBriefs and Points and Authorities Necessary.
Contention that briefs and points and authorities are unnecessary when transcript of entire trial is
made the bill of exceptions is without merit, as attorneys must point alleged errors of the trial court; the
reviewing court not being required to comb the record.
Appeal from the Eighth Judicial District Court, Churchill County; E. J. L. Taber, Judge.
C. Cecchettini and another were convicted of a misdemeanor, denied a new trial, and they
appeal. Heard on motion to affirm for default in filing brief. Affirmed. Petition for
rehearing denied.
McCarran & Mashburn, for Appellants:
There is no necessity for brief or points and authorities where the transcript of the entire
trial is made the bill of exceptions. The rule does not refer to errors assigned on the ground of
the failure of the evidence produced at the trial to support the verdict where it is filed in toto
and made the basis of the bill of exceptions. Rule 11, Supreme Court.
No motion to dismiss was filed or served. The respondent waived all right to move for
judgment of affirmance or for dismissal, because they accepted service of appellants' brief
and points and authorities without objection, and before notice was given of the date on
which respondents would be heard. Meade Publishing Co. v. Irwin, 111 N. W. 636; 3 C. J.
1444.
In regard to affirmance of judgment, the language of the statute is discretionary. Rev.
Laws, 7299.
George J. Kenny, District Attorney (A. L. Haight, of counsel), for Respondent:
By resisting the motion on its merits, respondents waived any irregularities there may have
been in the proceedings. 28 Cyc. 7, 9, 10.
No statute or rule of court requires the motion to be reduced to writing and filed. In the
absence of statutory provisions or rules of court requiring it, a motion need not be reduced
to writing; it may be made orally in open court."
need not be reduced to writing; it may be made orally in open court. 28 Cyc. 4, 6; Herlich v.
McDonald, 80 Cal. 472; People v. Ah Sam, 41 Cal. 645; Wallace v. Lewis, 9 Mont. 399.
It is the duty of attorneys to file briefs or points and authorities. This burden cannot be
thrust upon the court. 3 C. J. 1407. Failure to do so in time is default. 3 C. J. 1438, 1444; 17
C. J. 186.
Notice of motion was filed and served before counsel for appellants filed and served their
points and authorities. Their right to file a brief was therefore cut off by the notice of motion
for judgment of affirmance.
The appellants were convicted of a misdemeanor in the Eighth judicial district court. From
an order denying a motion for a new trial, and from the judgment, an appeal has been taken.
The transcript on appeal was filed in this court on April 19, 1921.
A motion has been made, argued, and submitted to affirm the order and judgment for
failure of appellants to prosecute their appeal. Rule 11, par. 1, of this court provides that
within fifteen days after the filing of a transcript on appeal in any case the appellant shall file
and serve his points and authorities or brief. Paragraph 3 of said rule provides that a failure of
either party to file points and authorities or brief within the time prescribed shall be deemed a
waiver by such party of the right to orally argue the case. Section 7299 of the Revised Laws
of 1912 provides that
Judgment of affirmance may be granted without argument, if the appellant fail to appear.
On May 11, 1921, appellants obtained an order extending the time for filing their opening
brief to June 15. On that date a similar order was entered, extending the time until June 25,
when a further extension was granted to June 30. On July 5, after the time had lapsed, an
order was obtained extending the time for the filing of the brief to July 10.
of the brief to July 10. No further order was granted or applied for; and on July 28, no brief
being on file, counsel for the state filed a notice of motion to affirm the order and judgment
appealed from. Thereafter, and without leave of court, counsel for appellants, on July 29,
filed with the clerk of the court a brief in behalf of appellants. Had counsel failed to file the
brief on July 29, there being no other brief on file, our duty to affirm the judgment would be
clear, under the section of the statutes to which we have alluded. This court has had that
statute under consideration in two cases. In the first (State v. Myatt, 10 Nev. 163), the court
said:
When the appellant fails to appear, we will not grope in darkness in search of some
fancied error, in order to show that the judgment is not sustained by the facts nor supported
by the law.
And in State v. Chin Wah, 12 Nev. 118, the court disposed of the case in the following
words:
This is an appeal from a judgment convicting the defendant of a felony. The time allowed
the appellant to argue his case having expired without any appearance on his part, the
judgment is affirmed in obedience to the provisions of the statute. Comp. Laws, 2109.
Does the fact that counsel for appellants filed a brief after the time allowed therefor and
after the notice of motion to affirm the judgment had been served and filed change the
situation? This is the sole question for our determination. Rules relative to the procedure in
civil as well as in criminal cases before this court are essential. They are as necessary as are
statutes or rules governing the practice in nisi prius courts. Without them no progress could
be made in the disposition of the business of the court, except by applying to the court after
every move for an order directing the course of procedure, which would be intolerable, as
well as cumbersome. The rules which have been adopted are recognized by the court and the
bar as applicable to criminal as well as to civil cases. In fact, counsel for appellants, in
applying for orders extending the time for the filing of the brief, so construed the rule.
in applying for orders extending the time for the filing of the brief, so construed the rule. If
the rule has any force or meaning, it must be subject to a similar construction as is our statute
designating the time within which to plead. If such is not the correct interpretation, then the
rule might as well be dispensed with as a thing meaning nothing and serving no purpose.
Counsel generally are liberal in extending the time for the filing of briefs, when
circumstances will permit, and this court is more than generous in that regard, as has been
shown in this case; but when a right under the rule is insisted upon, it is our plain duty to
enforce it. Under the circumstances of this case, we think the right of appellants to file a brief
was cut off by the notice of motion for judgment of affirmance. Such construction must be
given the rule, or else there can be no such thing as expediting the disposition of matters on
appeal in this court, as counsel might not only be very dilatory, but might trifle with the court
and resort to tactics merely for the purpose of delay and annoyance. A brief might be prepared
and held in readiness for filing, but be withheld until a motion to dismiss is made, and then
rushed in. We cannot countenance a construction of our rule which would make such a
practice possible, especially in view of the ease with which extensions may be obtained upon
a showing a good cause.
If authority is needed to sustain our conclusion, we invite attention to the case of McCabe
v. Healey, 139 Cal. 30, 72 Pac. 359, wherein the identical question here presented was
involved, the court saying:
The right of the respondent to have the appeal dismissed must be determined by the facts
as they existed at the time the notice of the motion was given, and is not destroyed by the
subsequent filing of points and authorities on the part of appellant.
See, also, Leatherman v. Orange County, 148 Ind. 282, 47 N. E. 458; 3 C. J. 1439, note 3.
While the cases mentioned are civil cases, that can make no difference in the
construction of a rule of court applicable alike to both civil and criminal proceedings.
make no difference in the construction of a rule of court applicable alike to both civil and
criminal proceedings.
We do not desire to be understood as indicating that upon a showing of good cause we
might not relieve the appellants of their default. Such, it has been said, would be the proper
practice. People v. Busby, 113 Cal. 181, 45 Pac. 191. But there is not application for relief
based upon such grounds.
Notwithstanding the views expressed, we have given the errors assigned such examination
as is justified under the circumstances disclosed, and fail to perceive any prejudicial error in
the record. State v. Jorme, 34 Nev. 307, 122 Pac. 483.
For the reasons given, the order and judgment are affirmed.
A petition for rehearing has been filed herein.
1. It is first contended that no motion to dismiss was made. The exact fact is that notice of
motion was served upon counsel for appellants, and at the time stated therein counsel for the
state and for appellants appeared. No formal motion was made, but the matter was argued and
submitted as though such a motion had been made. Such is the usual practice. The objection
now urged does not go to the merits of the matter argued upon the hearing. Counsel cannot
now contend that there was no motion. If they had desired to urge this point, they should have
done so at the time of the hearing. They did not do so, and cannot now complain of their
oversight. They waived the point now made by failing to raise it upon the hearing and by
participating in the argument. 28 Cyc. 7, 9, 10.
2. It is said, also, that neither briefs nor points and authorities are necessary when the
transcript of the entire trial is made the bill of exceptions. This is, indeed, a startling
contention. What are attorneys for, if not to point out the alleged errors of the trial court? This
court, in State v. Milosovich, 42 Nev. 273
This court, in State v. Milosovich, 42 Nev. 273, 175 Pac. 139, held that it would not comb the
record to ascertain the matter urged as reversible error. If we were right in the view then
expressed, as we think we were, we know of no sound reason for now holding substantially to
the contrary.
It is contended, further, that our position, to the effect that the judgment should be
affirmed for lack of appearance, is not supported by the cases cited in our opinion, for the
reason that no appearance whatever was made by the appellant in those cases, while
appearance was made in the instant case. Prior to service of notice of motion to dismiss, the
only appearance in this case was to ask for further time. This is not an appearance such as is
contemplated by the statute. The appearance contemplated by the statute is one wherein it is
sought to point out some error committed by the trial court. Prior to the time the right to do so
had been cut off, nothing of that nature was done in this case.
Our attention is directed to what is termed the discretionary language of the statute (Rev.
Laws, 7299), providing that judgment of affirmance may be granted without argument if
appellant fail to appear. There is nothing in said statute to sustain the petition for rehearing.
Counsel for appellant obtained several extensions of time in which to file their brief. On the
day the last extension was granted they appeared in open court and asked for ten days further
time. They were granted five days, whereupon they assured the court that the brief would be
filed within the time allowed by the court. They failed to comply with the assurance given the
court; in fact, no brief had been filed twenty-three days thereafter, when the state moved to
affirm the judgment.
We do not deem further consideration of the petition necessary. We cannot see that the
court was not justified in the order heretofore entered in the case.
The petition is denied.
____________
45 Nev. 245, 245 (1921)
REPORTS OF CASES
DETERMINED BY
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
OCTOBER TERM, 1921
____________
45 Nev. 245, 245 (1921) Bottini v. Mongolo
[No. 2496]
GIOVANNI BOTTINI, Respondent, v. LOUIS MONGOLO, JOHN GOTALLI, ANTONIO
SEMENZA, DOMENICO DAPOLI, JOHN AVANSINO, L. M. CHRISTIANSON,
JOHN MURRAY, JAMES LYON, BENJAMIN BARBASH, LOUIS COHN; MARY
SILVEY (Now Known as Dora Silvey) and Her Husband, JOHN A. SILVEY;
MARTINUS JENSEN, FRITZ NIEBUHR, PAUL S. GREELEY, ALESIO CAPURRO;
AUGUST PETERSON, and ANNA M. PETERSON, His Wife; HERBERT
FLEISHACKER, AGGIE HALL SCHEELINE, HARRY HALL SCHEELINE, and
AGGIE HALL SCHEELINE and HARRY HALL SCHEELINE, Joint Executors of the
Estate of Moritz Scheeline, Deceased, Appellants.
[197 Pac. 702]
1. Appeal and ErrorAppeal Will Be Dismissed, where Transcript Was Not Filed within the
Time Required.
Supreme court rule 2 provides that a transcript of the record on appeal shall be filed
within thirty days after the appeal has been perfected and the statement settled, while rule
3 provides that if the transcript be not filed within the time prescribed by rule 2, the
appeal may be dismissed on motion without notice, so that, where the transcript was
not filed within thirty days after the appeal, and appellants were not entitled to have
their bill of exceptions settled by the court, the appeal must be dismissed.
motion without notice, so that, where the transcript was not filed within thirty days after
the appeal, and appellants were not entitled to have their bill of exceptions settled by the
court, the appeal must be dismissed.
2. Appeal and ErrorThirty-Day Limit for Filing Transcript Runs from Date of Settlement of
Bill of Exceptions.
Under supreme court rules 2, 3, providing for dismissal of appeal upon failure to file
transcript within thirty days after perfecting the appeal, the time for filing the transcript
of record would not begin to run until such settlement, but would run from a proper
adjudication, denying appellant's right to settlement of bill of exceptions.
3. Exceptions, Bill ofTo Excuse Failure to File Bill on Ground that Notice of Final Order
Denying New Trial Was Not Given Proper Showing as to Want of Knowledge Must Be
Made.
Stats. 1915, c. 142, sec. 7, provides that bills of exceptions may be presented, served,
and filed within twenty days after a motion for new trial has been determined, and
section 10 as amended by Stats. 1919, c. 40, the time may be enlarged by order or
stipulation, and where there was no extension and more than twenty days had elapsed
since determination of motion for new trial, where defendants' counsel were not in court
at such final determination, verbal statements, made in argument to this court, are an
insufficient showing of their lack of knowledge to show error in refusal of lower court to
settle the bill of exceptions.
4. Appeal and ErrorPresumed that Appellant Had Knowledge of Order Refusing New Trial
which Started Time for Filing Bill of Exceptions.
Where time for filing transcript depended on settlement of bill of exceptions and bill
was not filed in time if order denying new trial was known to appellant on motion to
dismiss appeal for failure to file transcript, it will be presumed, in absence of contrary
showing, that appellant had knowledge of the order denying new trial.
5. Exceptions, Bill ofFacts Held to Show that Appellant Had Knowledge of Motion for
New Trial which Started Time to File Bill.
Where counsel for appellant received information direct from the court that their
motion for new trial was in part denied, and would be denied in toto if respondent within
ten days thereafter filed his written consent to the modification of the judgment by
striking therefrom the damages awarded, and within the time limited by court order they
were informed by service of the copy of such written consent that it had been made in
accordance with the order, and would be filed, appellant's counsel were placed on inquiry
as to the status of their motion, and the means of knowledge were at hand by inquiry of
the court clerk or inspection of the court's minutes, so that they are not entitled to
settlement of bill of exceptions after the expiration of the statutory limit of twenty
days after final ruling on motion for new trial.
minutes, so that they are not entitled to settlement of bill of exceptions after the
expiration of the statutory limit of twenty days after final ruling on motion for new trial.
Action by Giovanni Bottini against Louis Mongolo and others. Judgment for plaintiff, and
order entered denying a new trial, and the defendants appeal, and plaintiff moves to dismiss
appeal. Appeal dismissed.
Mack & Green and A. F. Lasher, for Appellants.
Huskey & Kuklinski, for Respondent.
This is a motion upon behalf of respondent to dismiss an appeal from the judgment and
order of the court denying appellants' motion for a new trial. The ground of the motion is that
no transcript of the record on appeal has been filed within thirty days after the appeal had
been perfected. It is also stated in the notice of motion to dismiss that the time for the
settlement of the bill of exceptions has long since expired, and that such time for filing the
transcript of record has not been extended, either by stipulation of counsel or by order of
court.
It appears from the certificate of the clerk of the district court, filed by the respondent in
support of this motion, that on October 25, 1920, the court made the following order:
The court, being fully advised in the premises, orders that the motion for a new trial on
the injunctive relief sought is denied, but that, unless the plaintiff within ten days hereafter,
file in this court his written agreement and consent that the judgment and decree may be
modified by striking therefrom the damages awarded to him in the sum of $1,000, a new trial
will be granted on the question of damages.
On November 3, 1920, the court made this order: "It appearing from the files and
records in this case that the plaintiff's consent to the modification of the judgment in the
above-entitled case has been filed, therefore it is ordered that the motion for a new trial
be denied."
It appearing from the files and records in this case that the plaintiff's consent to the
modification of the judgment in the above-entitled case has been filed, therefore it is ordered
that the motion for a new trial be denied.
It also appears from the certificate that on December 9, 1920, a notice of appeal from the
judgment and from the order denying the defendants' motion for a new trial was filed and
served upon plaintiff's attorneys, and on the same day an undertaking on appeal was filed;
that a bill of exceptions was filed on December 27, 1920; and on January 3, 1921, objections
to the certification and settlement of the bill of exceptions were filed on the ground that the
same was not presented in the time provided by statute, and that such time was neither
extended by stipulation of counsel nor by order of court; that defendants have not requested
the clerk to certify a correct transcript of the record. It also appears from a certified copy of
the order of the court filed in this court on the hearing of the motion to dismiss on February
23, 1921, as follows:
Motion and objections were argued by respective counsel, and the court, being fully
advised in the premises, ordered that plaintiff's objection, that the court is without
jurisdiction, be, and the same is hereby, sustained, and the court for reasons stated declines to
take any action on the bill of exceptions.
1. It is admitted that counsel for appellants were in court on October 25, 1920, when the
court denied the motion for a new trial as to the injunctive relief obtained by respondent, and
ordered that, unless respondent within ten days filed his consent to a modification of the
judgment, striking the damages awarded, a new trial would be granted on the question of
damages, and that they were not in court on November 3, 1920, when, on the filing of the
consent to a modification, the court denied the motion for a new trial. It is also admitted that a
copy of the consent to such modification was served on counsel for appellants. Further than is
stated above, appellants' counsel received no notice of either of the orders of the trail
court denying a new trial.
stated above, appellants' counsel received no notice of either of the orders of the trail court
denying a new trial. They contend that they were entitled to notice of the order made on
November 3, 1920, before the time to prepare, serve, and file the bill of exceptions could
begin to run.
The rules of the supreme court which respondent invokes in support of his motion to
dismiss are rule 2, which reads:
The transcript of the record on appeal shall be filed within thirty (30) days after the
appeal has been perfected and the statement settled, if there be one.
and rule 3, which in part provides:
If the transcript of the record be not filed within the time prescribed by rule 2, the appeal
may be dismissed on motion without notice.
2. As stated, the appeal was perfected on December 9, 1920. In conformity with the rule,
the appeal should be dismissed, unless appellants are entitled to have their bill of exceptions
settled by the court. If it is their right to have the bill of exceptions settled, the time for filing
the transcript of record on appeal would not begin to move until such settlement. Was the
court in error in declining to settle the bill of exceptions?
3. Section 7 of the Statutes of 1915, relating to bills of exceptions, on page 165, provides
in part:
Bills of exceptions provided for in section 2 of this act may be prepared, served and filed
within twenty (20) days after a motion for a new trial has been determined, etc.
By section 10 of the act as amended in 1919 (Stats. 1919, c. 40) the several times specified
therein may be enlarged by order or stipulation. The record discloses that the time for
appellants to file their bill of exceptions has not been extended. Counsel for appellants
contend that the court erred in declining to settle their bill of exceptions, notwithstanding
more than twenty days had expired after their motion for a new trial had been denied, for the
reason that they had no notice of it.
been denied, for the reason that they had no notice of it. While admitting that they were in
court on October 25, 1920, when a new trial was denied as to injunctive relief, they claim that
the order of which they were entitled to notice was the order of November 3, 1920, finally
denying the motion for a new trial on the question of damages; and, as they were not present
then, neither their presence in court on October 25, nor the service on them of respondent's
consent to the modification of the judgment, can operate to charge them with the knowledge
of the fact that their motion for a new trial had been denied. No showing has been made by
counsel for appellants as to their lack of knowledge that their motion for a new trial had been
finally denied. The verbal statements to that effect, made on the argument in this court, do not
constitute a sufficient showing as to this fact.
4, 5. In the face of the motion to dismiss involving the charges of laches as to the filing of
a bill of exceptions, counsel should have made it appear of record in some affirmative way, if
such was the fact, that they were without any knowledge of the denial of their motion for a
new trial for more than twenty days after the order had been entered. In the absence of such a
showing, it ought to be presumed that knowledge of the entry of the order had been imparted
to them. We think, however, that the facts were sufficient to charge appellants' counsel with
the duty of inquiry which would have led them to know that their motion for a new trial had
been denied in toto on November 3, 1920. In 20 R. C. L. at page 346, there is a clear
statement of the rule which is applicable to the facts in this case:
Whatever puts a person fairly on inquiry is sufficient notice, where the means of
knowledge are at hand; and if he omits to inquire, he is then chargeable with all the facts
which by a proper inquiry, he might have ascertained. This, in effect, means that notice of
facts which would lead an ordinarily prudent man to make an examination which, if made,
would disclose the existence of other facts, is sufficient notice of such other facts."
existence of other facts, is sufficient notice of such other facts.
The rule was applied in Burbank v. Rivers, 20 Nev. 159, and is thus stated:
Information which makes it the duty of a party to make inquiry, and shows where it may
be made, is notice of all facts to which such inquiry would naturally lead. The law necessarily
imputes to the litigant knowledge of a fact which the exercise of ordinary prudence and
diligence must have apprised him.
On October 25, 1920, appellants' counsel were in court. At that time they received
information direct from the court that their motion for a new trial was in part denied, and that
it would be denied in toto if respondent, within ten days thereafter, filed his written consent to
the modification of the judgment by striking therefrom the damages awarded. Within the time
limited by the order of the court they were informed by the service of a copy of such written
consent that it had been made in accordance with the order of the court, and would be filed.
These facts were fairly calculated to put appellants' counsel on inquiry as to the status of their
motion for a new trial. Their natural tendency was to suggest to counsel the expediency of
keeping informed in regard to the minutes of the court. The means of knowledge were at
hand. An inquiry of the clerk of the court or an inspection of the minutes of the court would
have revealed the fact to which the facts in their knowledge clearly pointed. As the appellants
are not entitled to have their bill of exceptions settled, and having filed no transcript of the
record on appeal within the time required by rule 2 of the rules of the supreme court, it is
ordered that their appeal be, and the same is hereby, dismissed.
____________
[No. 2498]
GIOVANNI BOTTINI, Respondent, v. LOUIS MONGOLO, JOHN GOTALLI, ANTONIO
SEMENZA, DOMENICO DAPOLI, JOHN AVASINO, L.M. CHRISTIANSON, JOHN
MURRAY, JAMES LYON, BENJAMIN BARBASH, LOUIS COHN; MARY SILVEY
(Now Known as Dora Silvey) and Her Husband, JOHN A. SILVEY; MARTINUS
JENSEN, FRITZ NIEBUHR, PAUL S. GREELEY, ALESIO CAPURRO; AUGUST
PETERSON, and ANNA M. PETERSON, His Wife; HERBERT FLEISHACKER,
AGGIE HALL SCHEELINE, HARRY HALL SCHEELINE, and AGGIE HALL
SCHEELINE and HARRY HALL SCHEELINE, Joint Executors of the Estate of Moritz
Scheeline, Deceased, Appellants.
[197 Pac. 702; 200 Pac. 451]
1. Appeal and ErrorSupreme Court's Opinion as to Propriety of Refusal to Settle Bill of
Exceptions, Law of Case on Appeal from Order Refusing to Settle Proposed Bill of
Exceptions.
Supreme Court's opinion, on dismissal of appeal from the judgment and the order denying a new trial, as
to propriety of lower court's refusal to settle proposed bill of exceptions, is the law of the case on appeal
from the order of refusal to settle the proposed bill of exceptions.
Action by Giovanni Bottini against Louis Mongolo and others. From an order refusing to
settle a proposed bill of exceptions, defendants appeal. Appeal dismissed. Petition for
rehearing denied.
McCarran & Mashburn, for Appellants:
There is no analogy between the questions raised in the previous appeal and those in the
present one. Where an order denying a new trial is conditional, and provides that if a party do
a thing motion will be granted, but if not it will be denied, and an order is later made after
the party moves, the last order is the one from which time to appeal begins to run.
after the party moves, the last order is the one from which time to appeal begins to run.
Swanson v. Andrus, 87 N. W. 363; Bank of Mobile v. Hall, 41 Am. Dec. 41;
Goldfield-Mohawk v. Leasing Co., 31 Nev. 350.
An erroneous decision by a court of review, or by a nisi prius court, will not constitute a basis
upon which the law of the case will be determined in a subsequent appeal. Rutherford v.
Lafferty, 7 Ark. 402; Hastings v. Foxworthy, 45 Neb. 676; Worrall v. Munn, 53 N. Y. 185;
Cluff v. Day, 141 N. Y. 580; Kempner v. Ruddleston, 37 S. W. 1066; Railroad v. Faber, 77
Tex. 153.
Where the question decided in a former appeal had not been submitted therein, the same
may be properly reviewed on a second appeal. Green v. Springfield, 130 Ill. 520; Adamson v.
Sundby, 51 Minn. 460; Wheeler v. Bolton, 92 Cal. 159; People v. Thompson, 46 Pac. 912;
Sharon v. Sharon, 79 Cal. 633; Mahan v. Wood, 44 Cal. 462.
Huskey & Kuklinski, for Respondent:
Refusal to settle a bill of exceptions is not an appealable order; exclusive remedy is
mandamus. Brode v. Goslin, 158 Cal. 699; Tibbets v. Riverside B. Co., 97 Cal. 258; Railroad
v. Read, 110 Ark. 296; State v. Dupree, 81 N. E. 678; Priddy v. Hayes, 204 Mo. 358; State v.
Moran, 37 Nev. 404; Floyd and Guthrie v. District Court, 36 Nev. 349; State v. District
Court, 13 Mont. 370; Griffin v. Howell, 38 Utah, 357.
Writ of mandate, however, should not issue. A mandamus will not be ordered to compel
a justice to settle a bill of exceptions in a particular manner, where there is a dispute as to the
incidents of the trial. His determination as to what occurred upon the trial is conclusive on
such an application. People v. Pearson, 3 Ill. 189. A judge * * * who has exercised his
discretion in refusing to settle a bill of exceptions not presented to him within the time
prescribed by law, owing to the mistake or excusable neglect of appellant's attorneys, cannot
be compelled so to do by writ of mandate, conceding that he has the power to relieve
against such mistake.
conceding that he has the power to relieve against such mistake. * * * Stonesifer v.
Armstrong, 86 Cal. 594; Hicks v. Marten, 101 Cal. 651.
In deciding the motion to dismiss in the previous appeal, the court necessarily had to pass
on the order refusing to settle the bill of exceptions. The record showed that the time for the
presentation of the bill of exceptions had expired; and without a showing made by appellants
in the manner provided by the legislature, the trial court had no right to settle the bill of
exceptions. The court cannot allow and sign a bill of exceptions after the statutory period
unless the time is extended as provided by statute. Wardnock Ins. Agency v. Peterson R. E.
Co., 35 Utah, 542; 8 Dec. Digest, 1569. It is the province of the trial judge to settle a
question of fact as to whether a bill of exceptions was filed within the statutory period, and
the exercise of his discretion will not be disturbed where the evidence is conflicting.
Kawalsky v. Kerrigan, 134 Cal. 590; 3 Cyc. 344; 4 C. J. 841.
This appeal is taken from an order of refusal of the trial judge to settle a proposed bill of
exceptions prepared, served and filed after a motion for a new trial had been determined, and
after an appeal from the judgment and order denying a new trial had been perfected.
On the 12th day of May, 1921, this court made and caused to be entered its order
dismissing the appeals taken from the judgment and order denying a new trial in this action.
Bottini v. Mongolo, 45 Nev. 245, 197 Pac. 702. In passing upon the motion to dismiss the
appeals it became necessary for the court to review and to consider the order now appealed
from. Our conclusion upon the former appeals with reference to the order of refusal of the
trial judge to settle the bill of exceptions was that appellants were not entitled, under the
particular facts, to have their bill of exceptions settled.
settled. It is conceded, or must be conceded, that no other or different question is presented
for determination by this appeal. The result is that our opinion upon the motion to dismiss the
former appeals becomes the law of the case and is binding upon this appeal. Had counsel
been dissatisfied with the reasoning and the conclusion reached, they should have petitioned
for a rehearing. This they did not do. The objection, therefore, of respondent to the
consideration of this appeal must be sustained, and the appeal is dismissed.
Per Curiam:
Rehearing denied.
____________
45 Nev. 255, 255 (1921) State v. Dawson
[No. 2506]
THE STATE OF NEVADA, Respondent, v. G. R.
DAWSON, Appellant.
[201 Pac. 549]
1. RapeInformation for Attempted Rape Held Insufficient.
Information charging that defendant did attempt to carnally and unlawfully know a designated female
held insufficient to charge an attempt to commit rape under Stats. 1919, c. 234, in that it failed to aver an
overt act toward the commission of the offense under Rev. Laws, 6291, defining an attempt to commit a
crime as an act done with intent to commit the crime.
G. R. Dawson was convicted of attempted rape, and he appeals. Reversed.
Frame, Morgan & Raffetto, for Appellant:
The information is fatally defective. There are three essential elements in an attempt to
commit a crime, namely, the intent to commit the particular crime, the doing of some act
toward its commission, and the failure to consummate it. Rev. Laws, 6291; State v.
Thompson, 31 Nev. 209; 16 C. J. 111-118. Each of these elements must be alleged in an
information. The information in this case fails to state any of them.
this case fails to state any of them. The charge of attempt to have carnal knowledge is
merely argumentative. An overt act and the intent must be alleged, otherwise the information
is substantially defective, and the judgment must be reversed. The law in this regard is well
settled. State v. Lung, 21 Nev. 209; State v. Zichfeld, 23 Nev. 315; State v. Rodriguez, 31
Nev. 343; Herrick v. Territory, 99 Pac. 1096; Bond v. State, 152 Pac. 809; Williams v. State,
136 Pac. 599; Hogan v. State, 50 Fla. 86; State v. Frazier, 53 Kan. 87; State v. Russell, 64
Kan. 798; Thompson v. People, 96 Ill. 158; Kinningham v. State, 119 Ind. 332; State v.
Wilson, 30 Conn. 500; State v. Doran, 99 Me. 329; 33 Cyc. 1446, 22 Cyc. 363; 1 Wharton,
Crim. Law (11th ed.), p. 298; 1 Wharton, Crim. Prac. (10th ed.), p. 249, 2 Idem, 1613-1616.
L. B. Fowler, Attorney-General; Robert Richards, Deputy Attorney-General, and L. D.
Summerfield, District Attorney, for Respondent:
The information correctly charges the offense in the language of the statute, and is
therefore sufficient. The statute defines an attempt to commit a crime. Rev. Laws, 6291.
When an offense is charged in the words of the statute it is sufficient, and carries with it the
necessary elements as embodied in the statute itself. 22 Cyc. 363; State v. Evans, 27 Utah, 12;
Jackson v. State, 91 Ala. 55; People v. Bush, 4 Hill, 133; State v. Montgomery, 7 Baxt. 161.
If the charge is merely argumentative, there was no error, because the point was not
presented in the lower court. No demurrer was ever filed to the sufficiency of an information.
The statutes provide how and when objections to the sufficiency of an information must be
made. Rev. Laws, 7097, 7098, 7105; State v. Harrington, 9 Nev. 91; State v. Derst, 10 Nev.
443; State v. Lovelace, 29 Nev. 43; State v. Hughes, 31 Nev. 270; State v. Raymond, 34 Nev.
198; 14 R. C. L. 202; State v. Longstreth, 19 N. D. 268.
Appellant was charged, tried, and convicted upon the following information:
L. D. Summerfield, district attorney within and for the county of Washoe, State of
Nevada, in the name and by the authority of the State of Nevada, informs the above-entitled
court that G. R. Dawson, the defendant above named, has committed a felony, to wit,
attempted rape, in the manner following:
That said defendant on the 19th day of September, A. D. 1920, or thereabouts, and before
the filing of this information, at and within the county of Washoe, State of Nevada, did then
and there, he, the said defendant, being then and there a male person over the age of 16 years,
wilfully, unlawfully, and feloniously attempt to have carnal knowledge of a female child, to
wit, one Mabelle Lockridge, said female child then and there being under the age of 18 years,
to wit, of the age of 10 years. * * *
From the judgment of imprisonment in the state prison for the term of not less than three
years nor more than twenty years, and also for an order denying to him a new trial, the
appellant appeals. The assignment of error relied upon for the reversal of the judgment is
stated as follows:
The court erred in rendering judgment against the defendant, for the reason that the
information did not state facts sufficient to constitute a public offense, and particularly that of
an attempt to commit rape, and the court therefore was without jurisdiction to enter judgment
and pronounce sentence in said cause.
Any person of the age of 16 years or upwards who shall have carnal knowledge of any
female child under the age of 18 years, either with or without her consent, shall be adjudged
guilty of the crime of rape. Stats. 1919, p. 439.
Section 6291 of the Revised Laws provides in part as follows:
An act done with intent to commit a crime, and tending but failing to accomplish it, is
an attempt to commit that crime; and every person who attempts to commit a crime,
unless otherwise prescribed by statute, shall be punished as follows.
tending but failing to accomplish it, is an attempt to commit that crime; and every person who
attempts to commit a crime, unless otherwise prescribed by statute, shall be punished as
follows. * * *
The question presented for our determination is whether an information (or indictment)
grounded upon section 6291, Revised Laws, which merely avers that the defendant did
attempt to carnally and unlawfully know a designated female, is so defective that no judgment
could properly be rendered upon it. It is manifest that the offense of an attempt to commit a
crime as defined by the statue is composed of two elements: First, the intent to commit a
crime; second, a direct act done toward its commission, and tending, but failing, to
accomplish it.
In the early case (1867) of State v. Brannan, 3 Nev. 238, it was held that an indictment
which merely states that the defendants did attempt to commit the crime of grand larceny was
so defective that no judgment could be rendered upon it. In the case of State v. Lung, 21 Nev.
210, 28 Pac. 235, 37 Am. St. Rep. 505, it was held that an indictment for an attempt at rape
must aver the necessary facts and elements of the offense with such particularity that the court
may determine whether or not they constitute an offense. In the case of State v. Pierpont, 38
Nev. 173, 147 Pac. 214, an indictment for an attempt at rape was upheld against an attack
upon the ground that it did not sufficiently charge an overt act toward the commission of the
offense. In its opinion the court quotes section 6291 of the Revised Laws, upon which the
indictment was founded, and cites with approval, and in support of its conclusion, the case of
Glover v. Commonwealth, 86 Va. 382, 10 S. E. 420, and 33 Cyc. 1431. While there is some
little discord in the authorities, this court is committed to the rule that in a case of an attempt
at rape an overt act toward the commission of the offense must be charged and proved.
It is urged by counsel for the state that, conceding the information to be defective in the
respect pointed out, the sufficiency of the information not having been raised by demurrer it
cannot now be taken advantage of for the first time on appeal. If the defect be one of form,
upon reason and authority, we should hold with the prosecution on this proposition, but if
such defect be one of substance, upon reason and authority, we must hold that it can be raised
for the first time on appeal, and is not waived by a failure in the district court to make the
point on demurrer. State v. Trolson, 21 Nev. 419, 32 Pac. 930.
In view of the authorities above cited, and the greater weight of authority in general, we
are of the opinion that the failure of the information before us to aver any overt act toward the
commission of the offense charged is a defect of substance, and not of form. Hogan v. State,
50 Fla. 86, 39 South. 464, 7 Ann. Cas. 139; Williams v. State, 10 Okl. Cr. 336, 136 Pac. 599;
Bond v. State, 12 Okl. Cr. 160, 152 Pac. 809; Glover v. Commonwealth, supra.
It is finally insisted by the state that, since the statute in express terms designates the
elements of the offense, and the information charges the offense in the words of the statute, it
is sufficient. But the information does not charge the offense in the language of the statute,
defining the offense of an attempt to commit a crime. It merely alleges the statutory
designation of such an offense, to wit, attempt to carnally know, which, in our opinion,
even under the most liberal construction that obtains under our law, is not sufficient to advise
the defendant of the accusation against him.
The judgment is reversed.
____________
45 Nev. 260, 260 (1921) Mexican Dam & Ditch Co. v. Schultz
[No. 2508]
MEXICAN DAM AND DITCH COMPANY (a Corporation), Respondent, v. JOSEPH
SCHULTZ, ANTONE SCHULTZ, and J. R. SCHULTZ (Doing Business under the Firm
Name of Schultz Brothers), Appellants.
[201 Pac. 548]
1. Appeal and ErrorIn Absence of Statement or Bill of Exceptions, Order Denying Motion
for New Trial Must Be Affirmed.
Though application for new trial, unless made under Rev. Laws, 5320, subds. 1, 2, 3, or 4, supported by
affidavit as required by section 5321, must be made on the minutes without statement or bill of exceptions,
and the court in such case may refer to the pleadings, evidence, etc., and under Civ. Prac. Act, sec. 414, on
appeal from an order denying the application, appellant need only furnish the court with certified copies of
the notice of appeal, the order appealed from, the papers used on the hearing in the court below, and a
statement, if any, where the transcript contains no settled or agreed statement or bill of exceptions, there is
nothing to be reviewed, in the absence of a judgment roll, whether or not Stats. 1915, c. 143, 3 Rev. Laws,
p. 3342, requiring inclusion in the transcript of a bill of exceptions including errors based on grounds urged
for new trial, an amendment to which (Stats. 1919, c. 40) requires that assignments of error be based on
bills of exceptions, is mandatory or violative of Const. art. 4, sec. 17, as embracing more than one
subject.
Appeal from First Judicial District Court, Ormsby County; Mark R. Averill, Judge.
Action by Mexican Dam and Ditch Company against Joseph Schultz and others, doing
business under the name of Schultz Brothers. Judgment for plaintiff. From an order denying a
new trial, defendants appeal. Affirmed. Petition for rehearing denied.
H. V. Morehouse and Wm. McKnight, for Appellant:
The motion to dismiss the appeal should be denied. The record is perfect. If the
assignments of error are not sufficiently specific, this court will not dismiss the appeal, but
will simply require that they be made so, the law as to the time, filing and service of
assignment of errors having been compiled with. "An appeal shall not be dismissed for an
irregularity not affecting the jurisdiction of the court to hear and determine the appeal, or
affecting the substantial rights of the parties." Rev. Laws, 535S.
of errors having been compiled with. An appeal shall not be dismissed for an irregularity not
affecting the jurisdiction of the court to hear and determine the appeal, or affecting the
substantial rights of the parties. Rev. Laws, 5358.
Under the express provision of the statute (Practice Act, sec. 414), as the papers used on
the hearing in the court below constitute the record upon which the motion for new trial was
heard and determined, no bill of exceptions is necessary, because there can be here reviewed
just what the lower court acted upon; and the legislature, in not repealing section 414 of the
Practice Act, intended to leave the law as it had been interpreted before the passage of the
statute of 1915, and intended to bring upon the record by a bill of exceptions only that which
was not already of record.
W. M. Kearney and W. E. Baldy, for Respondent:
Defendants failed to file a memorandum of exceptions or errors within the statutory time, or
at all. Rev. Laws, 5322. Hence no errors whatsoever can be relied upon. Rev. Laws, 5331. In
the preparation of the record on appeal neither the court nor counsel for plaintiff were
consulted for the purpose of settling any bill of exceptions or record on appeal, as required by
statute. Act of 1915, 3 Rev. Laws, p. 3342. The time for serving and filing an assignment of
errors does not run from the date of certification of the record on appeal, but from the date of
the appeal. Assignment of errors is founded upon the bill of exceptions. * * * Assignment of
errors is made an essential part of our practice on appeal. Coffin v. Coffin, 40 Nev. 345, 163
Pac. 731; Gardner v. Pacific Power Co., 40 Nev. 343; Werner v. Babcock, 116 Pac. 357;
Howard v. Richards, 2 Nev. 133; Corbett v. Job, 5 Nev. 205; Imperial M. Co. v. Barstow, 5
Nev. 253; Bowker v. Goodwin, 7 Nev. 137; Alderson v. Gilmore, 13 Nev. 85; Boyd v.
Anderson, 18 Nev. 349; Jones v. Adams, 19 Nev. S0. "Where the method of appeal is
prescribed by statute, it must be followed, and the assumption that a ceremony is useless
will not justify a departure therefrom." Gill v. G. C. M. Co., 176 Pac.
Jones v. Adams, 19 Nev. 80. Where the method of appeal is prescribed by statute, it must be
followed, and the assumption that a ceremony is useless will not justify a departure
therefrom. Gill v. G. C. M. Co., 176 Pac. 784. Papers not made a part of the statement on
motion for new trial, nor otherwise identified as provided by statute, cannot be considered
upon the appeal. Beck v. Thompson, 22 Nev. 109; Rosenthal v. Rosenthal, 39 Nev. 74; State
v. Preston, 30 Nev. 307; Utah-Idaho Sugar Co. v. Lewis, 187 Pac. 590; Rogness v. Northern
Pac. Ry. Co., 196 Pac. 989; Mills v. Brady, 196 Pac. 776.
This is an appeal from an order denying to the defendants, Schultz Bros., a new trial in an
action brought against them by the Mexican Dam and Ditch Company in the district court of
Ormsby County.
As the case comes to us upon the motions of the ditch company to dismiss the appeal and
to strike from the files appellants' assignments of errors, it would serve no useful purpose to
make a statement of the several issues raised by the voluminous pleadings.
The motions to dismiss the appeal and to strike the purported assignments of errors are
that the transcript on appeal contains no bill of exceptions including errors based upon any
ground urged for a new trial, as required by the Civil Practice Act, as amended by the statute
of 1915 (Stats. 1915, p. 164, 3 Rev. Laws, p. 3342), that the purported assignments of errors
are not based upon any bills of exceptions, and that said assignments are not in conformity
with the requirements of said act as amended with respect to assignments of error. Stats.
1919, p. 55.
The answer of appellants to the motion to dismiss is: First, that the statute of 1915 is
merely an optional method of appeal from an order denying a motion for a new trial, which
may or may not be followed in bringing up the record on appeal from such order; second,
that the statute of 1915, with respect to appeals from orders granting or overruling
motions for new trial, is useless legislation, and violative of section 17, article 4, of the
constitution, which provides that each law enacted by the legislature shall embrace but
one subject; third, that on an appeal from an order all that is required of the appellant is
to furnish this court with copies of the notice of appeal, the order appealed from, and the
papers used on the hearing of the order in the court below, certified by the clerk to be
correct.
that the statute of 1915, with respect to appeals from orders granting or overruling motions
for new trial, is useless legislation, and violative of section 17, article 4, of the constitution,
which provides that each law enacted by the legislature shall embrace but one subject; third,
that on an appeal from an order all that is required of the appellant is to furnish this court with
copies of the notice of appeal, the order appealed from, and the papers used on the hearing of
the order in the court below, certified by the clerk to be correct.
Since counsel for appellants, by their first and second positions, concede and admit that
the appellants have ignored and made no effort whatever to comply with the requirements of
the act of 1915, with respect to the preparation, service and filing of bills of exception after
entry of the order, it is unnecessary for us to consider and discuss whether or not the
requirements of the act of 1915 concerning bills of exception is mandatory or directory, or
whether or not it is violative of section 17, article 4, of the constitution.
Passing, then, to a consideration of the third position, without a further statement of it, it is
conceded that the application for a new trial was made upon the insufficiency of the evidence
to justify the decision, that it is against law, and for errors in law occurring at the trial and
excepted to by the defendants. Rev. Laws, 5320.
There is appended to the transcript on appeal the certificate of the clerk, which recites that
the transcript, from page 1 to 750, is and contains full, true, and correct copies of the
pleadings, orders, documentary evidence, and a copy of the stenographic report of the
testimony and the record of the proceedings on the trialall declared by the certificate of the
clerk to have been presented to, used and referred to by the trial judge in passing upon the
motion.
It is provided in section 5321 of the Revised Laws that when the application for a new trial
is made upon subdivisions 1, 2, 3, or 4 of section 5320 it must be supported by affidavit. In
all other cases it must be made upon the minutes of the court without statement or bill of
exceptions.
upon the minutes of the court without statement or bill of exceptions. The trial court is
expressly privileged by the provisions contained in section 5321, in passing upon an
application made upon the minutes of the court, to refer to the pleadings and orders of the
court; and, also, reference may be had to the depositions, documentary evidence, stenographic
notes or report of the testimony and the records of the court.
Section 414 of the Civil Practice Act provides (Rev. Laws, 5356), among other things, that
on an appeal from an order the appellant shall furnish the court with a copy of the notice of
appeal, the order appealed from, and a copy of the papers used on the hearing in the court
below, and a statement if there be one, such copies to be certified by the clerk of the court to
be correct.
It is the contention of counsel for appellants that no statement or bill of exceptions is now
required in order that the lower court may decide a motion for a new trial, and that the
appellants having furnished this court with copies of the papers used on the hearing of the
motion, certified by the clerk to be correct, the appeal from the order must be considered
upon its merits, and cannot be dismissed. If we clearly interpret the position of counsel, it is
their contention that when the papers used on the motion are certified, as directed by section
414, and the trial court is privileged to refer to the pleadings, records, documentary evidence
and stenographic report of the testimony, these papers can be used in the supreme court upon
the certification of the clerk, without being embodied in a statement on appeal or bill of
exceptions. Prior to the supplementary and amendatory act of 1915, and subsequent to the
adoption of the practice act approved March 17, 1911, the court, in the case of Ward v.
Pittsburg Silver Peak G. M. Co., 39 Nev. 80, 148 Pac. 345, 153 Pac. 434, 154 Pac. 74, ruled
adversely to the contention of appellants, and expressly held that upon an appeal from an
order denying a motion for a new trial, when the transcript on appeal contains no statement
and no bill of exceptions, there is nothing before this court for review.
on appeal contains no statement and no bill of exceptions, there is nothing before this court
for review. This conclusion is but a reaffirmance of the rule stated in the case of State v.
Eberhart Co., 6 Nev. 186, which declares that where the transcript contains no settled or
agreed statement, either on motion for new trial or on appeal, nor any bill of exceptions, there
is nothing which can be reviewed. This rule is based upon the repeated holdings of this court
that, in the absence of a statement on appeal or bill of exceptions, the court is confined to a
consideration of the judgment roll alone. As the appeal in this case is taken from the order,
there is not judgment roll to be considered.
In the case of Smith v. Wells Estate Co., 29 Nev. 414, 91 Pac. 315, it is pointed out that
the practice act distinguishes between the methods of certification of statements and of
transcripts on appeal.
Without going into the question of whether or not the copies of the papers purporting to
have been used on the hearing of the motion are properly authenticated, so as to entitle them
to be considered as a part of the record on appeal, we are of the opinion that from the
beginning of our judicial history the rule of practice has been as above stated in State v.
Eberhart Co., supra, and in Irwin v. Samson, 10 Nev. 282.
The failure of appellants to bring upon the errors based upon any ground for new trial by a
statement or bill of exceptions has deprived them of the right to have their case considered
upon its merits. This is to be regretted. As has been frequently stated, it is always a source of
regret to a court to decide a point of practice so as to affect substantial rights, but when the
point is made the only thing for the court to do is to adhere to the law.
The order denying to the defendants a new trial is affirmed.
____________
45 Nev. 266, 266 (1921) State v. Cohen
[No. 2525]
THE STATE OF NEVADA, Respondent, v. SAMUEL
COHEN, Appellant.
[201 Pac. 1027]
1. Criminal LawOne Who Served Sentence Cannot Prosecute Appeal.
Where one was sentenced to jail and perfected appeal, but failed to obtain a stay of execution pending
the appeal under Rev. Law, 7294, and obtained a writ of habeas corpus after serving one month, and was
released upon the ground that the remainder of his sentence was void, he cannot further prosecute the
appeal to have the stigma removed from his good name.
Samuel Cohen was convicted of wife-and-child desertion, and appeals. Appeal dismissed.
H. V. Morehouse, for Appellant:
Appellant is entitled to have his appeal determined. Courts are provided to do justice, to
protect the innocent, preserve the character of individuals, and not to permit any injustice or
wrong to a citizen by summarily and arbitrarily avoiding the performance of a judicial duty.
The party aggrieved may appeal in all criminal cases. Rev. Laws, 7286; People v. Logan, 1
Nev. 110. Appeal may be taken from an order refusing a new trial. Rev. Laws, 7251.
There are existing facts and rights to be determined. A moot case is one which seeks to
determine an abstract question which does not rest upon existing facts or rights. Pac. L. Co.
v. Mason V. M. Co., 39 Nev. 111. The points urged on the appeal could not be passed on
under the writ of habeas corpus. A writ of habeas corpus cannot be used to perform the
functions of an appeal or writ of error. Ex Parte Davis, 33 Nev. 309; Esmeralda County v.
Wildes, 36 Nev. 535; Eureka Bank Cases, 35 Nev. 102.
An appeal is a matter of right and is remedial. In doubtful cases, therefore, where the
substantial interests of the parties are affected, doubt should be resolved in favor of the
right, and the appeal should be entertained."
45 Nev. 266, 267 (1921) State v. Cohen
doubtful cases, therefore, where the substantial interests of the parties are affected, doubt
should be resolved in favor of the right, and the appeal should be entertained. Hayne, New
Trial and Appeal, sec. 272. If the subject-matter of the appeal has not been settled,
compromised or waived, there is no moot question. White Crest Co. v. Sims, 69 Pac. 1094;
Wood v. City, 62 pac. 139; McSorley v. Lindsay, 113 Pac. 267.
We should be slow to suppose that the legislature meant to take away the right to undo
the disgrace and legal discredit of a conviction * * * merely because a wrongly convicted
person has paid his fine or served his term. Commonwealth v. Fleckner, 44 N. E. 1053; Page
v. People, 99 Ill. 418; Barthelmy v. People, 2 Hill (N. Y.) 248; Johnson v. State, 172 Ala.
424; 12 Cyc. 807, 808. Of far more importance, however, is the defendant's right to be
relieved of the odium and disgrace of a conviction. People v. Marks, 120 N. Y. S. 106; Roby
v. State, 71 N. W. 1046.
L. D. Summerfield, District Attorney, and Harlan L. Heward, Assistant District Attorney,
for Respondent:
The appeal should be dismissed, all points presented for determination being no moot
questions. The judgment has been completely satisfied, and there is nothing on which this
court's decision could operate. Appellant waived his right to a stay of execution by failure to
apply for a certificate of probable cause. When an order appealed from is of such a nature
that its execution has left nothing upon which a judgment can operate, the appeal will be
dismissed, unless such right was specially reserved. State v. Pray, 30 Nev. 206; Mills v.
Green, 159 U. S. 651. An appeal or writ of error will be dismissed where before the appeal
or writ of error has been determined, defendant fully complies with the judgment and
sentence of the trial court. 17 C. J. 193; Trapp v. State, 186 Pac. 737; Kitchens v. State, 61
S. E. 736; Ex Parte Stedham, 20S S. W. 930; Harris v. Lang, 27 App. D. C.
45 Nev. 266, 268 (1921) State v. Cohen
State, 61 S. E. 736; Ex Parte Stedham, 208 S. W. 930; Harris v. Lang, 27 App. D. C. 84;
U. S. v. Mills, 11 App. D. C. 510; Tabor v. Hipp, 70 S. E. 886.
This is a motion to dismiss the appeal which came on to be heard in advance of a hearing
on the merits, by stipulation of the parties. Appellant was found guilty by a jury in the Second
judicial district court, in and for Washoe County, upon a charge of wife-and-child desertion;
said wife and children being in necessitous circumstances. He was thereafter, on the 27th day
of June, 1921, sentenced to be punished by imprisonment in the county jail for a term of not
less than one month, nor more than twelve months, and remanded to the custody of the sheriff
for the execution of sentence. Appellant in due time made a motion for a new trial and moved
in arrest of judgment. From the judgment and order denying a motion for a new trial this
appeal is taken.
It appears from the certificate of the clerk of the court in which the conviction was had,
annexed to the notice of motion to dismiss the appeal, that no application for a certificate of
probable cause to stay the execution of judgment was ever made.
After appellant had served one month of his imprisonment, and on the 26th day of July,
1921, he applied to the court in which judgment was rendered for a writ of habeas corpus. It
was alleged that the illegality of his confinement consisted in this:
That no definite period of time was fixed for the punishment and imprisonment of the
said Samuel Cohen under said sentence, and that there is no law in this state authorizing or
empowering the aforesaid district court to pronounce an indeterminate sentence in a case of
misdemeanor against the said Samuel Cohen, and that the said offense for which he was
prosecuted was and is a misdemeanor, and that he, the said Samuel Cohen, has now served
the said period of one month, fixed in the said sentence and judgment of the court, and is
entitled to his discharge from custody, for the reason that the remainder of said sentence
over and above the said one month is illegal and void, and that the said confinement and
restraint and deprivation of liberty of the said Samuel Cohen by the sheriff is now illegal,
and he, the said Samuel Cohen is entitled to his discharge from custody."
45 Nev. 266, 269 (1921) State v. Cohen
Cohen, has now served the said period of one month, fixed in the said sentence and judgment
of the court, and is entitled to his discharge from custody, for the reason that the remainder of
said sentence over and above the said one month is illegal and void, and that the said
confinement and restraint and deprivation of liberty of the said Samuel Cohen by the sheriff is
now illegal, and he, the said Samuel Cohen is entitled to his discharge from custody.
The writ was granted and the petitioner released from custody on said 26th day of July,
1921.
Upon these facts counsel for the state urges that all questions presented on the appeal have
become moot questions, and insists that it should be dismissed.
Appellant contends, and the affidavit of his counsel sets forth, that the appellant's guilt or
innocence, the jury's disregard of the instructions of the court, as well as the disregard of its
own instructions by the court, are questions involved in the motion for a new trial and in
arrest of judgment; that these questions are presented by a duly settled bill of exceptions; and
that, as the appeal from the order denying the motion for a new trial herein is a distinct and
separate appeal from the judgment, the said questions are squarely before the court on appeal,
and affect the substantial rights of this appellant, and also the State of Nevada, and are
therefore not moot questions. While we are unable to perceive why the fact that these
questions are brought before this court on an appeal from the order denying a new trail has
any bearing on the motion before us, it is plain that their determination could have no
practical result in the case.
Assuming that a decision on the merits would result favorable to appellant, the most that
could be determined is that the evidence was insufficient to establish his guilt of the offense
charged, or at least that he was illegally convicted by reason of erroneous instructions.
45 Nev. 266, 270 (1921) State v. Cohen
A reversal of the case by this court on any or all of the errors claimed could afford him no
relief from the judgment. He has satisfied that by the term of imprisonment served, and has
been discharged from custody. Consequently the controversy between the state and appellant
involved in this appeal has been terminated as effectually as though a verdict of not guilty had
been rendered. There is nothing material to be accomplishednothing on which the
judgment of this court can act effectively and work an advantage to the appellant. People v.
Leavitt, 41 Mich. 470, 2 N. W. 812.
While there are cases to the contrary, the weight of authority is to the effect that an appeal
or writ of error will be dismissed when there has been a voluntary payment by the defendant
of the fine imposed. Brown v. Atlanta, 123 Ga. 497, 51 S. E. 507; State v. Westfall, 37 Iowa,
575; State v. Conkling, 54 Kan. 108, 37 Pac. 992, 45 Am. St. Rep. 270; Eustler v. Com., 154
Ky. 35; People v. Leavitt, 41 Mich. 470, 2 N. W. 812; Washington v. Cleveland, 49 Or. 12,
88 Pac. 305, 124 Am. St. Rep. 1013; Commonwealth v. Gipner, 118 Pa. 379, 12 Atl. 306;
Batesburg v. Mitchell, 58 S. C. 564, 37 S. E. 36; Payne v. State, 12 Tex. App. 160; Madsen v.
Kenner, 4 Utah, 3, 4 Pac. 992; State v. Pray, 30 Nev. 207, 94 Pac. 218; 17 C. J. 193.
In the case of Trapp v. State (Okl. Cr. App.) 186 Pac. 737, an appeal was taken from a
judgment of conviction. It was dismissed on motion of the attorney-general. The court stated
as one of its reasons for the dismissal:
That each defendant having been committed to jail under said judgment, they have long
since served their respective terms of imprisonment, any legal question involved in this
pretended appeal is moot.
There can be no real distinction which might call for the application of a different rule, in a
case where a fine has been imposed and one where the term of imprisonment adjudged has
been served. This was pointed out in State v. Westfall et al., supra, in which the court said:
45 Nev. 266, 271 (1921) State v. Cohen
pointed out in State v. Westfall et al., supra, in which the court said:
By voluntarily paying a fine imposed upon them, they [appellants] stand in the same
relation to the law as they would have done if they had served their period of imprisonment.
All that can be said for them is that they have paid money in mistake of their legal rights. If
the money need not have been paid, they have clearly made a mistake of law. If, upon this
appeal, the judgment should be reversed, they could not recover it, and hence they could
derive no benefit from the appeal. The judgment of the court, upon appeal, would determine a
mere abstraction.
An appeal was dismissed by this court in the case of State v. Pray, supra, on the following
facts: Pray and his codefendant, Langdon, were convicted of a felony, and appealed from the
judgment and order denying their motion for a new trial. The former paid his fine under
protest, and attempted by stipulation of his counsel with the district attorney to reserve the
right of appeal. The attempted reservation was declared void by the court. In the course of its
opinion upon this phase of the case, the court said that it fell within a class of cases referred
to in 2 Cyc. 648, 649:
Where an order appealed from is of such a nature that its execution has left nothing upon
which a judgment of reversal can operate, the appeal will be dismissed, unless such right was
specially reserved
and pointed out that upon a reversal of the case no effective relief could be granted for the
reason that neither this court nor the trial court had power to direct that the fine paid by Pray
be restored to him. As previously stated, there can be no distinction between the voluntary
payment of a fine and serving a term of imprisonment. Both satisfy the judgment of the lower
court and leave nothing upon which a decision on appeal could operate. Counsel for appellant
would distinguish the Pray case, and referring to the summary of the briefs preceding the
opinion, urges that, as it appears a fine was imposed instead of a sentence of
imprisonment, at the request of the defendant, and the appeal taken after the payment of
the fine, it was deemed waived by the appellate court.
45 Nev. 266, 272 (1921) State v. Cohen
of the briefs preceding the opinion, urges that, as it appears a fine was imposed instead of a
sentence of imprisonment, at the request of the defendant, and the appeal taken after the
payment of the fine, it was deemed waived by the appellate court. Whereas, in the instant
case, he insists there could be no waiver of appeal, for the reason that the appeal was
perfected and pending before appellant was released on habeas corpus. The opinion in the
Pray case speaks for itself, but, be that as it may, the effect is the same in either instance. The
voluntary payment of a fine or serving a term of imprisonment in a criminal action operates
as a final disposition of the case, and precludes the defendant from prosecuting an appeal or
proceeding further with an appeal already commenced.
If this appeal should be maintained, the appellant can derive no benefit in point of law
from the judgment of this court. It is insisted that the conviction is erroneous for the reasons
given, and casts a stigma upon appellant's good name, which he is entitled to have removed
by a judgment of reversal. We agree with counsel for appellant, and the poet and authorities
he quotes, and are also mindful of the scriptural assurances that a good name is better than
riches. Its loss or impairment is a melancholy disaster to any one who values it. But we do
not perceive how we can revive a dead judgment for the purpose of quieting title to a good
reputation. Appellant's opportunity to relieve himself of any odium that may have attached to
his name on account of his conviction was lost by his failure to avail himself of the procedure
provided for staying execution of judgment, pending an appeal. See Rev. Laws, 7294.
The authorities cited and quoted by appellant (Com. v. Fleckner, 167 Mass. 13, 44 N. E.
1053; Barthelmy v. People, 2 Hill [N. Y.] 248; People v. Marks [Gen. Sess.] 120 N. Y. Supp.
1106; Roby v. State, 96 Wis. 667, 71 N. W. 1046), in which the right to maintain an appeal,
notwithstanding the payment of the fine imposed, on account of the disgrace attaching to
the defendant's good name by reason of the conviction, belong to a class of cases which
form the minority rule.
45 Nev. 266, 273 (1921) State v. Cohen
notwithstanding the payment of the fine imposed, on account of the disgrace attaching to the
defendant's good name by reason of the conviction, belong to a class of cases which form the
minority rule. See note Ann. Cas. 1913e, p. 300. The doctrine advanced was not recognized
in State v. Pray, and we cannot sanction it.
A defendant who has taken an appeal in a criminal action is entitled to a reversal only
when there is prejudicial error in the record, and an existing judgment upon which the
decision of this court can operate.
Appellant served one month of the sentence imposed, and applied for a writ of habeas
corpus to be released from further imprisonment, upon the ground that the remainder of his
sentence was void. His petition was granted, and he was discharged from custody. He cannot
now be heard to contend that the judgment has not been satisfied.
The appeal is dismissed.
____________
45 Nev. 274, 274 (1921) Vickers v. Vickers
[No. 2488]
ROBERT E. VICKERS, Appellant, v. VICTORIA T.
VICKERS, Respondent.
[199 Pac. 76, 79; 202 Pac. 31]
1. Husband and WifeWife, if at Fault, Not Entitled to Separate Maintenance; Desertion.
Under Stats. 1913, c. 97, as to separate maintenance, a wife can obtain separate maintenance only if
she is not at fault, for if she were at fault she would have no ground of divorce nor could she show
desertion, since desertion consists in the voluntary separation of one spouse from the other without the
latter's consent and without justification.
2. DivorceReply Held Not to Present Issue.
Where the answer in a divorce action pleaded res judicata, and stated the facts relied on for such
defense, a reply admitting the facts, but denying their effect as res judicata, held to present no triable
issue of fact.
3. JudgmentPrior Decision, in Other State in Suit for Separate Maintenance, that Wife Was
Not Guilty of Cruelty, Held Res Judicata in Divorce Suit.
In husband's suit for divorce for cruelty, a prior decision, in a suit in another state by the wife for
separate maintenance, that the wife was not guilty of cruelty, was res judicata as to the issue of cruelty,
where the identical matters were relied on in both suits to establish the wife's cruelty.
1. Appeal and ErrorMatters Urged First Time on Petition for Rehearing Not Considered.
Matters will not be considered by the supreme court where urged for the first time on petition for
rehearing.
2. JudgmentIssue Cannot Be Further Litigated in Subsequent Suit Between Same Parties
Involving Different Cause of Action.
A question of fact, distinctly put in issue and determined by a court of competent jurisdiction as a
ground of recovery or defense, is conclusively settled by the final judgment or decree therein, so that it
cannot be further litigated in a subsequent suit between the same parties or their privies, where a proper
plea is interposed, whether the second suit be for the same or a different cause of action.
3. JudgmentMeaning of Cause of Action.
The term cause of action means merely an averment of facts sufficient to justify a court in rendering
a judgment.
Divorce suit by Robert E. Vickers against Victoria T. Vickers. From a judgment for
defendant, plaintiff appeals. Affirmed. Petition for rehearing denied.
H. V. Morehouse, James Glynn, and Platt & Sanford, for Apellant:
It was erroneous to grant the motion for judgment on the pleadings. The judgment should
be vacated. Under the pleadings, res judicata is no defense to the action. Judgment on the
pleadings cannot be granted when they raise an issue to be tried, or which requires any
evidence. Phoenix v. Bijelich, 30 Nev. 269; Walling v. Brown, 72 Pac. 960; Idaho Placer M.
Co. v. Green, 96 Pac. 161; 11 Ency. Pl. & Pr. 1046.
Exhibits referred to in pleadings, or on which the action or pleading is founded, form no
part of the pleading or record. Fitch v. Cornell, Fed. Cas. No. 4834; Oh Chow v. Hastell, Fed.
Cas. No. 10469; Hooker v. Gallagher, 6 Fla. 351; Pearsons v. Lee, 2 Ill. 193; Thompson v.
Kimball, 55 Ill. App. 249; Blackwell v. Reid, 41 Miss. 102; Wharton v. Wilson, 60 Ind. 591;
Jones v. Levi, 72 Ind. 586.
The judgment pleaded in the answer is not before the court, and it is not res judicata,
because the causes of action are not the same, nor is any issue in the two actions the same.
The true test is identity of issues. 23 Cyc. 1300; Black on Judgments, secs. 506, 610, 623.
In all cases it should appear that the first judgment determined the actual question at issue
between the parties, and that the precise question was raised and determined in the second
suit. 15 R. C. L. 450; Bank v. SchooL District, 25 Fed. 629; Cromwell v. County of Sac, 94
U. S. 351; Hooper v. Hooper, 80 S. E. 64.
An action for maintenance is independent of an action for divorce. Fahey v. Fahey, 96 Pac.
251; Popejoy v. Popejoy, 55 Pac. 1083; Hanscom v. Hanscom, 39 Pac. 885; Dye v. Dye, 48
Pac. 313. This is so, whether the suit is one in equity or under a statute.
the suit is one in equity or under a statute. State v. Superior Court, 104 Pac. 771; Almond v.
Almond, 4 Rand. (Va.) 662; Earl v. Earl, 27 Neb. 277.
Cheney, Downer, Price & Hawkins, for Respondent:
Authenticated copy of the West Virginia judgment was properly considered by the district
court as a part of the answer. Objection to the answer, because exhibit was not attached,
should have been made by preliminary motion or demurrer. 8 Stand. Ency. Proc. 804-806. In
the absence of statutory rule to the contrary, an exhibit which is referred to and filed, although
not attached to the pleading, constitutes a part of it. Straus v. A. P. Co., 201 Fed. 306;
Sutherland v. Sutherland, 71 N. W. 424; Thompson v. Recht, 63 N. E. 569; Peterson v. Allen,
12 Iowa, 366; Wall v. Galvin, 80 Ind. 447; Carper v. Kitt, 71 Ind. 24; Wishard v. McNeil, 42
N. W. 578.
The reply raised no issue of fact, and a motion for judgment on the pleadings was proper.
Kelly v. Kreiss, 9 Pac. 129; Hubenthal v. Railway Co., 86 Pac. 955; 14 Stand. Ency. Proc.
943; Peterson v. Wade, 115 Fed. 770; Gaffeny v. St. Paul Ry. Co., 35 N. W. 728; Bird v.
Rowell, 167 S. W. 1172; Peterson v. City, 120 Pac. 231; State v. Quantic, 94 Pac. 491.
The facts are what constitute the estoppel, rather than the conclusion which the pleader
draws from the facts. Spokane v. Costello, 106 Pac. 764; Anderson v. Insurance Co., 76 Pac.
109; Seng v. Payne, 128 N. W. 626; Stillman v. Barney, 4 Vt. 331. Proof of admitted facts is
wholly unnecessary. Frances Mohawk v. McKay, 37 Nev. 191; Boydstun v. Jacobs, 38 Nev.
176; Bernard v. Metropolis, 40 Nev. 89.
Judgment of the West Virginia court in the maintenance suit is a bar to this action. Full faith
and credit must be given to the judicial proceedings of other states. U. S. Stats., sec. 1, art. 1;
U. S. Rev. Stats., sec. 905; 15 R. C. L., secs. 403, 404. This provision is applicable to divorce
cases. Harding v. Harding, 198 U. S. 317; Haddock v. Haddock, 201 U. S. 562; Thompson v.
Thompson, 226 U. S. 552; Forsythe v. Hammond, 166 U. S. 506; S. P. Co. v. U. S., 16S U. S.
4S.
Haddock v. Haddock, 201 U. S. 562; Thompson v. Thompson, 226 U. S. 552; Forsythe v.
Hammond, 166 U. S. 506; S. P. Co. v. U. S., 168 U. S. 48.
The estoppel extends to every material allegation or statement which, having been made
on one side and denied on the other, was at issue in the cause, and was determined in the
course of the proceedings. The parties have had their day in court and have been heard upon
these questions. They cannot reopen the subject and try the same questions over again. There
must be an end to litigation. McLeod v. Lee, 17 Nev. 103; Aurora City v. West, 7 Wall. 103.
This is an action to obtain an absolute divorce. The complaint charges the defendant with
cruelty. The answer denies the acts of cruelty alleged, and sets up in bar a plea of res
adjudicata. To this plea plaintiff (Dr. Vickers) filed a reply in which it is admitted that in a
suit for separate maintenance brought by this defendant in the circuit court of Cabell County,
W. Va., this plaintiff appeared and pleaded, setting up in his answer, among other things, the
same facts contained in his complaint in the present action. The reply admits that said
separate maintenance suit was heard and determined by the circuit court of Cabell County, W.
Va., and that on the 15th day of April, 1920, the said court entered a decree awarding the
defendant (Mrs. Vickers) $250 monthly for her support and maintenance. It contains also the
following:
Plaintiff denies that the matters and things, or either, or any, alleged in plaintiff's said
petition, or otherwise, or at all, are res adjudicata, for the reason that the same matters and
things, or either, or any, have been pleaded by the said plaintiff in the said suit for
maintenance brought by this defendant in the circuit court of said Cabell County, which court
was a court of competent jurisdiction, having jurisdiction both of the person of the said
plaintiff and of the subject-matter and decided before the institution of the plaintiff's said
suit in this court, or for any other reason.
decided before the institution of the plaintiff's said suit in this court, or for any other reason.
Plaintiff denies that said adjudication on the 15th day of April, 1920, or any other
adjudication, or judgment, or decision, or opinion, of the said court, or any other court, set out
in defendant's answer, or otherwise, is a bar to the suit of the said plaintiff in this court.
Upon the filing of this reply, defendant moved the court to enter a judgment in her favor
upon the pleadings, which motion was granted. The appeal herein is from the judgment thus
entered.
The matter has been presented on behalf of appellant a great length, several briefs having
been filed, aggregating over sixty typewritten pages. We do not deem it necessary or
advisable to follow counsel's line of argument in disposing of the case. As we view the
record, we are not confronted with any complex problem necessitating protracted discussion.
Counsel say that, notwithstanding the fact that in the separate maintenance suit brought by
Mrs. Vickers in West Virginia, Dr. Vickers pleaded the same matter in his answer as is now
pleaded in his complaint in the suit at bar, that the decree in the separate maintenance suit is
not a bar to this proceeding, for the reason that it was not necessary for the court to determine
in the separate maintenance suit the question of Mrs. Vicker's cruelty, since it was the duty of
Dr. Vickers to support his wife, whether or not she was guilty of cruelty. Such is not the law,
either in Nevada or West Virginia. Counsel for appellant cite many English authorities, and
some American, wherein it is held that it is the duty of the husband to support the wife when
he lives separate and apart from her, as Dr. Vickers was at the time the separate maintenance
suit was instituted, even though she is at fault.
1. It is clear that there was a conflict of authority on the question in England, the
ecclesiastical courts holding to the rule contended for by appellant, while the equity courts
mainly took the contrary view; but in this country the weight of authority and the
best-reasoned cases are in line with the rule existing in West Virginia.
equity courts mainly took the contrary view; but in this country the weight of authority and
the best-reasoned cases are in line with the rule existing in West Virginia. One of the very
earliest cases in this country adopting that rule was Purcell v. Purcell, 4 Hen. & M. (Va.) 507.
The authorities sustaining this view are collated in a note to Lang v. Lang, 38 L. R. A. (N. S.)
950. However, we are not driven to the necessity of determining what the rule was in
England, or what it should be in this state, in disposing of the question, for we must be
controlled either by the law of West Virginia or by the statute of Nevada. In West Virginia the
question has been settled by the highest court. It was held in the case of Kittle v. Kittle (W.
Va.) 102 S. E. 799, that if the wife were at fault she would not be entitled to separate
maintenance. Hence it follows that since the West Virginia court awarded Mrs. Vickers $250
a month as separate maintenance, it must have found that she was not guilty of cruelty. But if
we must be controlled by the law of this state, the same result must follow. By statute it is
provided:
When the wife has any cause of action for divorce against her husband, or when she has
been deserted by him and such desertion has continued for the space of ninety days, she may,
without applying for a divorce, maintain in the district court, an action against her husband
for permanent support and maintenance of herself or of herself and her child or children.
Stats. 1913, c. 97, p. 120.
It is clear from our statute that the wife can obtain separate maintenance only in case she is
not at fault, for if she were at fault she would have no ground for divorce; neither could she
recover on the ground of desertion, if at fault, since desertion consists in the voluntary
separation of one spouse from the other without the latter's consent and without justification.
14 Cyc. 611; Luper v. Luper, 61 Or. 418, 96 Pac. 1101.
2. Further, it is said that judgment should not have been entered on the pleadings, since
a reply was in fact filed.
been entered on the pleadings, since a reply was in fact filed. This contention would be sound
did the reply deny a material allegation of the answer. Whether or not a so-called reply raises
an issue depends entirely upon the substance of the document filed and not upon its form or
designation. The document designated a reply in this case is all right in form, but is
woefully lacking in substance to present a triable issue of fact. It admits the allegation of the
answer as to the matter pleaded in the complaint being res adjudicata; hence there is no issue
to try, and nothing left for the court to do but to enter judgment in accordance with the fact
pleaded in the answer and admitted in the reply.
It is said, however, in one of the briefs, that to successfully set up the plea of res adjudicata
the answer must also allege the purpose for which it is pleaded, as was done in this casethat
is, in bar or otherwise, as the case may beand that a denial that such was the purpose of the
party so alleging it raises an issue. Supplementing this contention, it is said:
Therefore, when plaintiff denied the allegations or the bar or estoppel, that is, the legal
effect of the judgment such denial raised an issue to be tried and passed upon, and the court
could not pass upon that issue until the judgment was offered in evidence as an evidentiary
fact.
As we understand the contention made, it amounts to this: That the reply in this case
admits that the same facts were in issue, but denies the legal effect of the decree of the court,
and that hence an issue was raised which should be tried. This contention seems too devoid of
merit to demand a second thought. When the plea of res adjudicata is presented, it is for the
court to determine the legal effect of the reply. The legal effect of a pleading may be tested
either upon demurrer or in an appropriate instance by a motion for judgment on the pleadings.
3. t is also said that the plea of res adjudicata cannot be sustained in this action, for the
reason that the suit was brought to obtain a divorce, whereas the action in West Virginia
was for separate maintenance.
cannot be sustained in this action, for the reason that the suit was brought to obtain a divorce,
whereas the action in West Virginia was for separate maintenance. There is not merit in this
contention. The fact is that the matter relied upon in this proceeding as a ground for divorce
was adjudicated in the separate maintenance suit in West Virginia, and the court there
determined that Mrs. Vickers was not guilty of the charge of cruelty. Its finding was an
adjudication of the identical matter relied upon here. It matters not the character of the
proceeding in which issues are adjudicated, but whether they have in fact been adjudicated
between the same parties or their privies. The Supreme Court of the United States, in a recent
opinion in State of Oklahoma v. State of Texas, 256 U. S. 70, 41 Sup. Ct. 420, 65 L. Ed. 475,
said:
The general principle, applied in numerous decisions of this court, and definitely accepted
in Southern Pacific R. Co. v. United States, 168 U. S. 1, 48, 49, 18 Sup. Ct. Rep. 18, 42 L.
Ed. 355, 376, 377, is, that a question of fact or of law, distinctly put in issue and directly
determined by a court of competent jurisdiction as a ground of recovery or defense in a suit or
action between parties sui juris, is conclusively settled by the final judgment or decree therein
so that it cannot be further litigated in a subsequent suit between the same parties or their
privies whether the second suit be for the same or a different cause of action. As was declared
by Mr. Justice Harlan, speaking for the court in the case cited: * * * This general rule is
demanded by the very object for which civil courts have been established, which is to secure
the peace and repose of society by the settlement of matters capable of judicial determination.
Its enforcement is essential to the maintenance of social order; for, the aid of judicial tribunals
would not be invoked for the vindication of rights of person and property, if, as between
parties and their privies, conclusiveness did not attend the judgments of such tribunals in
respect of all matters properly put in issue and actually determined by them.'"
the judgments of such tribunals in respect of all matters properly put in issue and actually
determined by them.'
See, also, Sherman v. Dilley, 3 Nev. 21.
In this connection, we may call attention to two interesting decisions, namely, Harding v.
Harding, 198 U. S. 317, 25 Sup. Ct. 679, 49 L. Ed. 1066, and Kelly v. Kelly, 118 Va. 376, 87
S. E. 567. In the former case, the wife, on February 3, 1890, brought in Illinois an action for
separate maintenance, alleging that without her fault, and in consequence of the cruel
treatment of her husband, and on account of his misconduct in other respects, she was
compelled to live separate and apart from him. The answer of the husband denied all charges
of misconduct on his part, and alleged that it was through her own fault that the wife resided
separate and apart from him. Other facts stated in the opinion are not material here.
Ultimately the court entered a decree, wherein it was adjudged that the allegations of the
wife's complaint were true, and she was awarded separate maintenance money. Thereafter the
husband established his residence in California, where he brought a suit for divorce, alleging
that on or about the month of February, 1890, his wife had deserted him without cause. The
wife filed an answer in which she denied the charges of desertion and set up the Illinois
decree as res adjudicata. The California courts held that the Illinois decree was not res
adjudicata, but on appeal the Supreme Court of the United States reversed the judgment. The
court, after discussing several points and reviewing numerous decisions, says:
We are brought to consider the final question, which is: Was the decree in favor of the
wife for separate maintenance entered in the Illinois case conclusive upon the husband in the
courts of California of the issue of wilful desertion? That the issue of wilful desertion present
in the divorce action was identical with the issue of absence without fault, presented in the
Illinois maintenance suit, is manifest. The separation asserted by the wife in her bill for
separate maintenance to have been without her fault was averred to have taken place on
February 1, 1S90, and such separation was stated by the husband in his answer to the bill
to have been an abandonment and desertion of him.
the wife in her bill for separate maintenance to have been without her fault was averred to
have taken place on February 1, 1890, and such separation was stated by the husband in his
answer to the bill to have been an abandonment and desertion of him. The wilful desertion
charged in the complaint in this action for divorce was averred to have been committed on or
about the month of February, 1890, and to have been continuous thereafter.' And the identity
between the two is further demonstrated by the circumstance that the evidence taken in the
Illinois case bearing upon the cause for the separation was used upon the trial in this case.
The question in each suit, therefore, was whether the one separation and living apart was by
reason of the fault of the wife. From the standpoint of a decree in favor of the wife in the suit
for separate maintenance the issues raised and determined were absolutely identical.
The Kelly case, supra, is one from which it appears that the wife brought suit in
Massachusetts, alleging nonsupport and cruelty, praying for an order restraining her husband
from interfering with her personal liberty, and that he be required to provide for her support.
Due service of process having been made upon the husband, the Massachusetts court, on
December 1, 1902, entered an order reciting that the wife was living apart from her husband
for justifiable causes, directing that he pay a monthly sum for her support, and enjoining him
from interfering with her personal liberty. The husband complied with the order until 1913.
During 1910 the husband established his residence in Virginia. After establishing his
residence in Virginia, Kelly wrote a formal letter to his wife requesting her to come to his
house and resume marital relations with him, which evoked no reply. Thereafter the husband
instituted a suit for divorce a vinculo matrimonii, upon the ground of desertion. The wife
filed an answer denying the charges of desertion and setting up the order of the Massachusetts
court. After commenting upon the Harding case, supra, the court says:
commenting upon the Harding case, supra, the court says:
We do not think the case at bar can be distinguished in principle from the case of Harding
v. Harding. In both cases the alleged desertion by the wife rested upon the original separation,
which the Illinois court, in the one case, and the Massachusetts court, in the other, had held to
be justifiable. It is true that in the instant case the two letters from Joseph Kelly to his wife
were relied upon the convert the original separation into a desertion, but we think the bare
recital of the letters and their contents, together with the circumstances under which they were
written, sufficiently disposes of them. All the other evidence in the case, so far as it bears at
all upon the separation and alleged desertion, relates back to a time prior to the Massachusetts
decree, and cannot be given any consideration without denying to that decree the faith and
credit to which it is entitled.
For the reasons given the judgment is affirmed.
A lengthy petition for a rehearing has been filed in this case. We thought the views
heretofore expressed so well established as to be preclusive of a petition for a rehearing.
However, it may serve a good purpose to elaborate somewhat upon the main point originally
presented.
1. At the outset we may state that, while counsel insist upon some of their original
contentions, they now argue from a different view-point than formerly that the trial court was
without jurisdiction to enter judgment on the pleadings. As to such matters, we need simply
say that it is a well-established rule in this jurisdiction that they will not be considered when
urged for the first time in a petition for a rehearing.
2. We come now to the assertion that our conclusion as to the application of the plea of
res adjudicata is not well founded.
well founded. To the answer filed in this case, setting up the plea of res adjudicata, as we
formerly pointed out, a reply was filed, wherein it was admitted that the same facts and
allegations of cruelty in the complaint in this suit as a ground for a divorce were contained in
the answer in the separate maintenance suit in West Virginia, wherein the court entered a
decree in favor of the plaintiff in that proceeding, and against the plaintiff (Dr. Vickers) in
this suit. Hence it appears beyond question that the identical issuecrueltywas involved in
the West Virginia proceeding as is involved in this one, and growing out of the same state of
facts. Why should this issue be retried in the Nevada courts? If it can be retried here, might it
not be retired in as many of the forty-eight states of the Union as permit a divorce on the
ground of cruelty? Learned counsel have argued, more at length than with perspicuity, in an
effort to show wherein we erred. In our former opinion we quoted from a recent decision of
the Supreme Court of the United States, holding to the effect that a question of fact distinctly
put in issue and determined by a court of competent jurisdiction as a ground of recovery or
defense is conclusively settled by the final judgment or decree therein, so that it cannot be
further litigated in a subsequent suit between the same parties or their privies, whether the
second suit be for the same or a different cause of action. This seems to be a wholesome rule,
enunciated by a distinguished tribunal, and in keeping with long-recognized and
well-established principles.
While the doctrine of res adjudicata is an ancient one, and recognized by practically all
systems of jurisprudence, the authorities of this country hark back to the Duchess of
Kingston's Case (11 State Trails, 261; Smith's Leading Cases, 573) for guidance. What seems
to be recognized as the leading case in this country is that of Cromwell v. County of Sac, 94
U. S. 351, 24 L. Ed. 195. While we do not think the opinion of Mr. Justice Field in that case
needs any interpretation, if there be any doubt as to just what that learned justice meant,
we need look only to his opinion in Russell v. Place, 94 U. S. 606, 24 L. Ed. 214, where he
said:
there be any doubt as to just what that learned justice meant, we need look only to his opinion
in Russell v. Place, 94 U. S. 606, 24 L. Ed. 214, where he said:
It is undoubtedly settled law that a judgment of a court of competent jurisdiction, upon a
question directly involved in one suit, is conclusive as to that question in another suit between
the same parties.
Some years later the same learned tribunal, speaking through Mr. Justice Harlan, Mr.
Justice Field and all of the other justices concurring, in Southern Pacific Co. v. United States,
168 U. S. 1, 18 Sup. Ct. 18, 42 L. Ed. 355, used this language:
The general principle announced in numerous cases is that a right, question, or fact
distinctly put in issue and directly determined by a court of competent jurisdiction, as a
ground of recovery, cannot be disputed in a subsequent suit between the same parties or their
privies.
Following up the decision mentioned was the one in State of Oklahoma v. Texas, from
which we quoted in our former opinion. It would seem that there can be no doubt, from a
consideration of all of these opinions, as to just what the Supreme Court of the United States
meant to hold. It says as plainly as the English language can express it that an issue of fact
directly determined by a court of competent jurisdiction cannot be again tried, where a proper
plea is interposed, between the same parties or their privies. Such is the well-established rule.
23 Cyc. 1215.
3. Counsel frequently allude to the term cause of action, but nowhere endeavor to
enlighten the court as to their understanding it. We understand it to mean merely an averment
of facts sufficient to justify a court in rendering a judgment. It is said in the petition:
Now when the defendant pleads the West Virginia judgment as a bar, she pleads that this
cause of action, to wit, divorce, was heard, tried, and determined, and we know it was not.
The language quoted epitomizes all that is said upon the point. Yes; we know the question
of divorce was in no way involved in the West Virginia proceeding; no one ever contended
that it was. In that suit Mrs. Vickers sought separate maintenance, on the ground that Dr.
Vickers had abandoned her. He defended on the ground of cruelty, averring in his answer
numerous alleged facts going to constitute cruelty as a justification for his conduct. Cruelty
was the issue upon which Dr. Vickers relied in that suit as a ground of defense. In a sense,
there were two issues in the West Virginia suitthe alleged abandonment of Mrs. Vickers by
Dr. Vickers and the alleged cruelty of Mrs. Vickers. If Dr. Vickers had succeeded in
establishing the issue growing out of his charge of cruelty as a ground of defense, Mrs.
Vickers could not have recovered, as there then could have been no abandonment. The
contention of the petitioner, as set forth in the above quotation, is too flimsy to call forth
serious consideration.
In this action for a divorce, instituted by Dr. Vickers wherein he relies upon cruelty as a
ground therefor, and pleads the identical facts, as he admits in his reply, to sustain the same
as were adjudicated in the West Virginia suit, the judgment on the pleadings was properly
entered.
We do not deem it necessary to supplement what was said in our former opinion upon the
other points considered.
It is ordered that the petition for a rehearing be denied.
____________
[No. 2492]
ROBERT E. VICKERS, Appellant, v. VICTORIA T.
VICKERS, Respondent.
[199 Pac. 79; 202 Pac. 32]
1. MotionsJudge May Rule on Effect of Former Decree on Motion for Judgment on
Pleadings, Though Once Considered on Motion to Dismiss.
In a divorce suit where one district judge expressly refused to determine the force of the decree of
another state court upon motion to dismiss, another district judge, upon a later motion for judgment on
the pleadings, was not deprived of jurisdiction to determine the question by district court rule 11, par. 4;
providing that no motion once heard and disposed of shall be renewed in the same cause nor shall the
same matters therein embraced, except on leave of court granted upon motion and notice to the adverse
parties.
2. JudgmentObjection of Prior Determination by Another Judge Cannot Be Raised on
Motion to Vacate Judgment on Pleadings.
The objection that a question, presented upon motion for judgment on the pleadings, had been
previously determined by another judge upon denial of a motion to dismiss and thereby foreclosed under
district court rule 11, par. 4, should have been made when the motion for judgment on the pleadings was
made, and could not be raised on motion to vacate the judgment on the pleadings on the ground that the
court had no jurisdiction to enter it because the same matter had been heard and determined by the other
judge who denied the motion to dismiss.
1. JudgmentAdjudication of an Issue Does Not Deprive Court of Jurisdiction to Again
Adjudicate It.
The mere fact that an issue has been once adjudicated does not oust the same or any other court of
jurisdiction to hear and determine it again, since the defense of former adjudication is new matter which
must be pleaded if an opportunity is afforded to do so, or, if no opportunity is afforded, must be
presented by way of competent evidence when the issue is in process of adjudication a second time; and
if the defense is not so presented, the court has jurisdiction to enter a binding judgment not open to attack
by way of a motion to set it aside on the ground of former adjudication.
2. JudgmentAnswer Held to Sufficiently Plead Former Adjudication.
In divorce suit on ground of cruelty, answer alleging that plaintiff defended a previous action against
him by defendant for separate maintenance on the ground of cruelty, and alleged in answer in such action
the same matters to constitute cruelty as were alleged in his complaint in the divorce
action, and that defendant had been given decree in her former action, held to raise
issue as to former adjudication, notwithstanding failure to incorporate in the
answer the pleadings, proceedings, and decree in the former action.
constitute cruelty as were alleged in his complaint in the divorce action, and that defendant had been given
decree in her former action, held to raise issue as to former adjudication, notwithstanding failure to
incorporate in the answer the pleadings, proceedings, and decree in the former action.
Appeal from Second Judicial District Court, Washoe County: Edward F. Lunsford, Judge.
Divorce suit by Robert E. Vickers against Victoria T. Vickers. From order refusing to set
aside judgment for defendant, plaintiff appeals. Affirmed. Petition for rehearing denied.
H. V. Morehouse, James Glynn, and Platt & Sanford, for Appellant:
The trial court is without jurisdiction to pass upon an order previously made by a court of
coordinate jurisdiction, if such order affect a substantial right. Silver & Co. v. Waterman, 111
N. Y. S. 456; Heischober v. Polishook, 136 N. Y. S. 567; Sloan v. Beard, 110 N. Y. S. 1;
Blaustein v. Lyon, 132 N. Y. S. 387. The identical facts were before the court by the renewed
motion as when the motion was originally made. It is immaterial whether the renewed motion
was urged after additional pleadings had been filed, or were made upon new papers. The test
is as to whether the facts themselves have been changed. The new matter which will alone
justify renewal of a motion without leave must be something which has happened, or for the
first time come to the knowledge of the party moving, since the decision of the former
motion. 14 Ency. Pl. & Pr., p. 182. The new motion is the same as the old motion if the
relief demanded is the same; and it is not made upon new facts merely because made on new
papers. Goldenberg v. Adler, 123 N. Y. S. 387.
Cheney, Downer, Price & Hawkins, for Respondent.
This is an appeal from an order entered after judgment on the pleadings in favor of the
defendant. The respondent in this case brought a separate maintenance suit {see Vickers v.
Vickers [No.
suit (see Vickers v. Vickers [No. 2488] 45 Nev. 272, in the circuit court of West Virginia,
alleging as a ground therefor desertion. To the complaint in that action Dr. Vickers, the
appellant, filed an answer denying the matter alleged in the complaint, and charged the
plaintiff, Mrs. Vickers, with cruelty. The case having been heard and submitted, the court
entered a decree in favor of Mrs. Vickers for separate maintenance.
Subsequent to the institution of this action in the district court of Washoe County by Dr.
Vickers, Mrs. Vickers filed what she termed a special appearance, wherein she moved to
quash the summons issued in this suit, to quash the service thereof, to stay all proceedings, to
strike the complaint from the files, and to dismiss the action. As one of the grounds in support
of the motion to dismiss, it was charged that the cause of action relied upon and alleged in the
complaint was cruelty, consisting of the identical facts pleaded by Dr. Vickers in his answers
in the separate-maintenance suit in West Virginia. The motion to dismiss came on for hearing
before Hon. Thomas F. Moran, in department No. 1 of the district court of Washoe County,
and after a full hearing he filed a written opinion in which he held that the motion to dismiss
should be denied, and an order was entered accordingly.
Thereafter Mrs. Vickers filed her answer to the complaint, and, after denying the
allegations of cruelty, pleaded the proceedings in the separate-maintenance suit and the
decree therein as a bar to this action. A reply was filed to said answer. Upon the filing of the
reply a motion for a judgment on the pleadings was filed by counsel for defendant. This
motion was heard by Judge Lunsford, in department No. 2 of said court, and upon
consideration sustained, and judgment was entered by the court in favor of the defendant.
After judgment on the pleadings had been entered, the plaintiff moved to set it aside upon the
ground that the court had no jurisdiction to enter it, for the reason that the same matter had
been heard and determined by Judge Moran, who, as stated, denied the motion.
Moran, who, as stated, denied the motion. It is from the order of Judge Lunsford thus made
that this appeal is taken.
To sustain the contention urged upon the lower court and here, paragraph 4 of rule 11 of
the district court is invoked. It reads:
No motion once heard and disposed of shall be renewed in the same cause, nor shall the
same matters therein embraced be reheard, unless by leave of the court granted upon motion
therefor, after notice of such motion to the adverse parties.
Judge Moran, in passing upon the motion to dismiss the action, as shown by his written
opinion, expressly refused to pass upon the force and effect of the decree entered in the
separate maintenance suit in West Virginia, awarding Mrs. Vickers separate maintenance,
which was the basis for the judgment on the pleadings which was entered by Judge Lunsford.
Just why Judge Moran refused to consider the judgment of the West Virginia court in
determining the motion to dismiss, we do not know, as he did not state his reason for not
doing so; but he no doubt entertained the view that the only way in which a party can avail
himself of a former adjudication is by way of a plea, and not by a motion to dismiss, as was
held in Hax v. Leis, 1 Colo. 187. The practice of taking advantage of a former adjudication,
on motion, has been expressly condemned. Coffee v. Groover, 20 Fla. 64; Majors v. Majors,
58 Miss. 806.
1, 2. But it appears that, when the motion for judgment on the pleadings was presented, it
was not then insisted that the question involved had been previously urged upon Judge Moran
and determined by him. From a failure so to do, we may infer that the appellant did not then
consider that the identical question had been determined by Judge Moran. But, be this as it
may, Judge Moran having expressly refused to determine the force of the decree of the West
Virginia court upon the motion to dismiss, the contention now made is utterly without merit.
is utterly without merit. State v. Board, 12 Nev. 17. On the other hand, had he considered and
determined it, as it is now contended he did, we are clearly of the opinion that by failure to
raise the objection at the time the motion for judgment on the pleadings was heard, appellant
waived any right he may have had so to do (Schudel v. Helbing, 26 Cal. App. 410, 147 Pac.
89), and therefore was not entitled to raise the point on motion to vacate the judgment.
The order appealed from is affirmed.
I concur.
If I clearly interpret the position of counsel for appellant on this branch of his appeal, it is
their contention that the ruling of the judge presiding in department No. 1 of the lower court
on respondent's motion to quash or dismiss the action, being predicated entirely upon the
records, proceedings, orders, and judgment of the West Virginia courts expressly referred to
and made a part of the motions, was so conclusive as to furnish a bar to another and further
discussion of the questions, and therefore the judge presiding in department No. 2 was
without jurisdiction, power, or authority to entertain the motion to render judgment on the
pleadings involving the same subject-matter as the motions to quash or dismiss. There is no
doubt that upon reason and policy judges in different departments of the same court,
established solely for the convenient dispatch of business, cannot rightfully examine and
reverse each other's decisions on questions based on the same state of facts. To permit such
clashing and intrusive interference of judges of concurrent jurisdiction would be disastrous to
the regular, orderly, and convenient administration of justice. But I cannot assent to the
proposition that the decision of the motions to quash or dismiss ousted the judge presiding in
department No. 2 of jurisdiction to entertain and dispose of the motion for judgment on the
pleadings upon the principle of res adjudicata or comity. Upon authority it seems to me that
the decision of the judge in department No.
seems to me that the decision of the judge in department No. 1 was not decisive of the
question raised by the motion for judgment on the pleadings. The motions to quash the
summons, its service, and to dismiss the action were summary in their nature, and the
decision thereon had no quality of a judgment or final order. Where the decision is rendered
on a mere motion or a summary application, the parties are at liberty to raise the main issue
again in any other form they choose. Bigelow on Estoppel, par. 3, p. 52. The Supreme Court
of the United States, speaking to the subject in Denny v. Bennett, 128 U. S. 489, 9 Sup. Ct.
134, 32 L. Ed. 491, affirming Bennett v. Denny, 33 Minn. 530, 24 N. W. 193, approves this
statement of the practice:
It was merely a decision of a motion or summary application, which is not to be regarded
in the light of res adjudicata, or as so far conclusive upon the parties as to prevent their
drawing the same matters in question again in the more regular form of an action.
Aided by the opinion of the judge in department No. 1, it is clear that his ruling on the
motions was not predicated upon any decision of the respondent's right to plead as a bar to the
action a judgment in personam rendered in her suit for maintenance in the circuit court of
Cabell County, W. Va., wherein her alleged cruelties (set up as grounds for divorce in the
present action) were directly put in issue and necessary to be passed upon in rendering
judgment in favor of the wife.
Counsel have filed a very earnest petition for a rehearing. It is said that it is presented in
the best of good faith, and that we did not formerly pass upon some of the questions urged in
the original brief. We are satisfied of the good faith of counsel, and commend them for the
concise and perspicuous manner in which their contentions are presented. It may be that our
former opinion did not squarely dispose of the questions urged, though we think it did in
substance.
though we think it did in substance. However, we take pleasure in giving serious
consideration to the petition, and will again restate our views.
The first point presented is that the motion passed upon by Judge Moran is identical with
that determined by Judge Lunsford, and hence the order of the former on the motion is res
adjudicata, and therefore Judge Lunsford had no jurisdiction to consider and determine the
same. We do not deem it necessary to decide whether the two motions are identical. We
desire to say, however, that at least five motions were presented to Judge Moran, viz: (1) To
quash the summons in the action; (2) to quash the service of summons; (3) to stay all
proceedings; (4) to strike the complaint from the files; and (5) to dismiss the action at the cost
of the plaintiff.
To sustain one or more of these motions, affidavits and certified copies of the pleadings
and proceedings in the West Virginia suit were offered in evidence. Judge Moran wrote a
forty-three-page opinion, wherein he expressly declined to pass upon the force and effect of
the West Virginia decree, and in the concluding paragraph of his decision embodied the
following order:
For the reasons stated the motion is denied. * * * It is so ordered.
1. If we were going to determine the contention that Judge Moran's order is res adjudicata,
we would have to inquire just what he determined. Counsel for appellant say that we cannot
look to his opinion to ascertain what was determined; that we must confine ourselves to a
consideration of the order only. But we do not deem it necessary or advisable to determine
whether the identical question is raised by the motions heard by Judge Moran and the motion
for judgment on the pleadings determined by Judge Lunsford. If they are not identical, the
contention is without foundation; if they are, it was the duty of appellant to present the issue
of res adjudicata to Judge Lunsford upon the hearing of the motion for judgment on the
pleadings.
the motion for judgment on the pleadings. The mere fact that an issue has been once
adjudicated does not oust the same or any other court of jurisdiction to hear and determine it
again. This is elementary. In the code states the defense of former adjudication is new matter,
which must be pleaded if an opportunity is afforded to do so (9 Ency. Pl. & Pr. 617; State v.
Board, 12 Nev. 17); and if no such opportunity is afforded, such defense must be presented by
way of competent evidence, when the issue is in process of adjudication the second time; and
if this is not done, the court has jurisdiction to enter a binding judgment thereuponone that
will not be open to attack by way of a motion to set it aside on the ground of former
adjudication, for want of jurisdiction to enter it. Any other rule would lead to intolerable
evils. If this were not the law, there would be no necessity, in any case, to plead former
adjudication, since the judgment, being void for want of jurisdiction, could be set aside at any
time.
What we have said should dispose of the contention that Judge Lunsford had not
jurisdiction in the matter.
2. It is said that the West Virginia judgment was never properly before the district court,
for the reason that it cannot be successfully urged that the decree in that court disposed of the
identical matter contained in the complaint in this action, since the pleadings, proceedings,
and decree in the West Virginia suit were not incorporated in or made a part of the answer in
this suit. Without deciding whether the pleadings, proceedings and decree were made a part
of the answer in this case, we may say that it was not necessary that they should have been.
The West Virginia suit was one brought by Mrs. Vickers for separate maintenance, on the
ground of her abandonment by Dr. Vickers. The answer in this case alleges that in that action
Dr. Vickers, the plaintiff herein, filed an answer wherein he defended upon the ground of
cruelty, alleging the same matters to constitute cruelty as are alleged by him to constitute
cruelty as a ground for his divorce in this action, and that, upon the trial of the issue
raised by the pleadings in the West Virginia action, the court entered a decree in favor of
Mrs.
constitute cruelty as a ground for his divorce in this action, and that, upon the trial of the issue
raised by the pleadings in the West Virginia action, the court entered a decree in favor of Mrs.
Vickers, awarding her $250 a month as separate maintenance. To the answer thus averring
former adjudication, Dr. Vickers filed a reply, wherein he admitted that the same facts and
allegations had been adjudicated in the West Virginia suit, and that in that action a decree
had been entered in favor of Mrs. Vickers, awarding her $250 a month separate maintenance.
From the answer and reply it thus appeared that the same issue of cruelty relied upon by the
plaintiff had been adjudicated in favor of Mrs. Vickers. As were pointed out in Vickers v.
Vickers (No. 2488) 45 Nev. 272, under the law of West Virginia there could have been no
decree in her favor if she had been in fault. In view of this state of the pleadings, it was not
necessary that the pleadings, proceedings, and decree in the West Virginia suit be
incorporated in or made a part of the answer in this case.
We think we have fairly disposed of the question presented in the petition for a rehearing.
It is ordered that the petition be denied.
____________
45 Nev. 297, 297 (1921) State v. Green
[No. 2487]
THE STATE OF NEVADA, Respondent, v. THOMAS
J. GREEN, Appellant.
[202 Pac. 368]
1. Criminal LawInstructions Should Be so Unequivocal that Jury Can Have No Doubt of
Significance.
Instructions should be so unequivocal that a jury laymen can experience no doubt as to their
significance.
2. LarcenyInstruction that Possession Must Be Actual, Recent, and Unexplained,
Improperly Refused.
In a prosecution for larceny, where the evidence showed that the stolen property was found in
defendant's cabin about four months after the theft, during a greater portion of which time the cabin was
insecurely fastened, so that any one might have entered and placed the property therein, and defendant
testified he did not steal the property and did not know it was in his cabin, the court erred in refusing to
instruct that, before defendant could be convicted because of his possession of such property, three
conditions must coexist, namely: (1) The possession must be actual; (2) recent after the theft; and (3)
unexplainedand that, if defendant made a reasonable and satisfactory explanation of his possession, no
inference of guilt can be drawn therefrom; defendant by his plea of not guilty having put in issue every
element of the offense charged.
3. LarcenyWhether Defendant's Possession of Stolen Property Is Recent Is for Jury.
In a prosecution for larceny, whether defendant's possession of the stolen property is recent after the
theft is for the jury.
4. Criminal LawRefusal of Instruction as to Defendant's Possession of Stolen Goods Held
Error Though Included in Instruction Given.
In a prosecution for larceny, the court's refusal to instruct that defendant's possession of the stolen
property must have been actual, recent after the theft, and unexplained, and that, if defendant made a
reasonable and satisfactory explanation thereof, no inference of guilt can be drawn therefrom, was
prejudicial error, though the point as to satisfactory explanation was included in an instruction given;
such fact not obviating the necessity of instructing as to recent possession.
Appeal from Third Judicial District Court, Lander County; Peter Breen, Judge.
Thomas J. Green was convicted of grand larceny, and he appeals. Reversed.
45 Nev. 297, 298 (1921) State v. Green
Frame, Morgan & Raffetto, for Appellant:
The judgment should be reversed for error in giving and refusing certain instructions, and
because of the insufficiency of the evidence to support the verdict. The assumption by the
court in his charge in a criminal case that any material fact upon which there is any conflict is
proved is error. State v. Duffy, 6 Nev. 138; People v. Bonds, 1 Nev. 33; State v. Hawkins, 7
Nev. 459; State v. Tickel, 13 Nev. 511; State v. Warren, 18 Nev. 459; Allen v. U. S., 3 Okla.
Crim. 61; People v. White, 251 Ill. 75; State v. Scott, 37 Nev. 431. To warrant a conviction of
larceny, possession of stolen property must be recent, exclusive, unexplained, and actual and
personal. Each of these elements must be determined by the jury; they cannot be assumed by
the court, or stated by him as a presumption of law. Smith v. State, 196 Pac. 420; State v.
Gray, 23 Nev. 301; State v. Drew, 179 Mo. 315; People v. Hurley, 60 Cal. 74; 17 R. C. L. 73,
74; State v. Mandich, 24 Nev. 336; State v. Bryan, 19 Nev. 365; State v. Walters, 34 Pac.
938; Roberts v. State, 70 Pac. 803; People v. Cline, 16 Pac. 391; Van Straaten v. People, 56
Pac. 905.
L. B. Fowler, Attorney-General, and Robert Richards, Deputy Attorney-General, for
Respondent:
The evidence fully justified the verdict. The court gave a general instruction on the point
of the possession of the stolen property, in no way invading the province of the jury to
determine whether or not certain facts had been proven. In prosecutions for larceny the fact
that the stolen property is, recently after the theft, found in the possession of the defendant,
can always be given in evidence against him. The strength of the presumption which it raises
against the accused depends upon all the circumstances surrounding the case, and is for the
jury to determine. State v. Mandich, 24 Nev. 336. The jury is not requested to accept
defendant's explanation, or the testimony of his witnesses, as to possession of stolen
property."
45 Nev. 297, 299 (1921) State v. Green
explanation, or the testimony of his witnesses, as to possession of stolen property. State v.
Hiteman, 198 Pac. 769.
This is an appeal from a conviction of grand larceny. Appellant lived in a cabin about three
miles from the residence of the owner of the stolen property. The case against appellant rests
almost entirely upon the fact that the stolen property was found in his cabin about four
months after it had been stolen. In September, when the property was stolen, appellant lived
upon a small ranch, which he owned, and operated a line of traps covering a territory
extending from twelve to fourteen miles from his cabin. In December he left his cabin and
went to live temporarily with another man, about three miles from his own place. On January
9 this property was found in a cellar under the floor of his cabin. He testified that he did not
steal the property, and did not know how it had got into the cabin cellar. He also testified that,
prior to moving in the month of December, and while trapping, he stayed a good deal at two
camps along his line of traps, and that he did not stay at his own cabin more than two night
during a week, and further that, prior to moving, the door to his cabin was generally so closed
that any one could go in, and that about a week before his arrest he fastened the door by
putting a chain through it and through the casing of the door, securing the two ends of the
chain with a lock. His testimony as to the time of putting on the chain, and as to the method
of fastening the door prior thereto, is not contradicted by the state.
Three grounds are relied upon for a reversal of the judgment: First, that the court erred in
instructing the jury; second, that it erred in not giving a certain requested instruction; and,
third, that the evidence does not justify the verdict.
45 Nev. 297, 300 (1921) State v. Green
The instruction given by the court, and now complained of, reads as follows:
The jury is instructed that, in prosecutions for larceny, the fact that the stolen property is,
recently after the theft, found in the possession of defendant, can always be given in evidence
against him. The strength of the presumption which it raises against the accused depends
upon all the circumstances surrounding the case, and is for the jury to determine.
1. It is asserted that by this instruction the court trenched upon the province of the jury, in
that by the terms thereof it assumed that the defendant was in the possession of the stolen
property. We do not deem it necessary to decide the force of this contention, in view of the
fact that the judgment must be reversed because of the failure of the court to give a certain
requested instruction, and in view of the further fact that upon another trial the court can so
frame its instructions as to obviate this question arising again. Instructions should be so
unequivocal that a jury of laymen can experience no doubt as to their significance.
2. We are now to consider whether the court erred in refusing to give the requested
instruction referred to. Though far from being a model in form, it may be fairly said to state
that, before a defendant who is charged with the larceny of property, and in whose possession
it is alleged to have been found, can be convicted, three conditions must coexist, namely: (1)
The possession must be actual; (2) it must be recent after the theft; and (3) it must be
unexplained; and if the defendant makes an explanation of his possession that is reasonable,
and consistent with innocence, and satisfactory to the jury, no inference of guilt can be drawn
from such possession.
In view of the nature of the case as made by the state, and the theory and evidence of the
defense, this instruction should have been given. The testimony on the part of the state is to
the effect that the property in question was found in the defendant's cabin, about four
months after it had been stolen, during a greater portion of which time the
uncontradicted evidence tends to show the cabin was insecurely fastened, and any one
might have entered it and placed the property therein.
45 Nev. 297, 301 (1921) State v. Green
question was found in the defendant's cabin, about four months after it had been stolen,
during a greater portion of which time the uncontradicted evidence tends to show the cabin
was insecurely fastened, and any one might have entered it and placed the property therein.
Defendant testified that he did not steal the property and did not know it was in his cabin. By
his plea of not guilty he put in issue every element of the offense charged, and which it was
necessary to prove to establish a case against him, and it was the duty of the court to instruct,
when so requested, that the essential elements of the crime must be proven before a
conviction could be had.
3. The court did not in any other instruction charge the jury that, when a person is found
in possession of stolen property and is charged with the larceny thereof, before there can be a
conviction, the possession must be recent after the theft. Every text-writer upon the subject
lays down the rule that before there can be a conviction of larceny, where the property stolen
is found in the possession of the defendant, the possession must be recent after the theft. Such
is the rule in this state. State v. En, 10 Nev. 277. See, also, Bishop, New Crim. Proc. sec. 742;
17 R. C. L. 73; 25 Cyc. 133; 18 Am. & Eng. Ency. Law, 488. Whether such possession is
recent is a question for the determination of the jury. State v. Mandich, 24 Nev. 341, 54 Pac.
516.
4. As to the third point covered by the requested instruction, while good law, we think it
was included in an instruction given by the court; but this fact did not obviate the necessity of
instructing as to recent possession of the property; and the instruction as a whole, stating the
law as it does, should have been given, and the refusal to give it was prejudicial error.
We do not think it necessary to pass upon the contention that the evidence is insufficient to
sustain the judgment. We question, however, if any significance should be attached to the fact
that the defendant paid the bills and spent the money testified to, in view of the entire
record.
45 Nev. 297, 302 (1921) State v. Green
and spent the money testified to, in view of the entire record. He had been earning $90 a
month, in a locality where he had little opportunity to spend money, and had not spend any,
so far as appears, until a just a few days prior to his arrest, and, so far as the evidence shows,
no great amount then. We may say, too, that it is quite a coincidence that the most active
person in this prosecution is one who does not seem to have manifested any interest in it until
after he had learned that he had been suspected of the crime. If we were to consider the facts,
naturally we would be led to inquire into the motive prompting his activity at so late a day.
For the reason given, the judgment is reversed.
____________
45 Nev. 303, 303 (1922)
REPORTS OF CASES
DETERMINED BY
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
JANUARY TERM, 1922
____________
45 Nev. 303, 303 (1922) Ex Parte Wanatabe
[No. 2536]
In the Matter of the Application of H. WANA-
TABE for a Writ of Habeas Corpus.
[202 Pac. 1117]
1. Moot Question.
When a question presented for determination has become moot, the court will not pass upon it.
Original Proceeding by H. Wanatabe for a writ of habeas corpus. Writ dismissed.
M. B. Moore, for Petitioner.
L. D. Summerfield, District Attorney, and Harlan L. Heward, Assistant District Attorney,
for Respondent.
This is an original proceeding in habeas corpus. The petition and return show that
petitioner was held to the district court of the Second judicial district in and for the county of
Washoe, by the justice of the peace of Reno township acting as committing magistrate in said
county, on a charge of having narcotic drugs in his possession, and was confined in the
county jail of said county by the sheriff thereof, pursuant to the commitment issued by said
committing magistrate.
45 Nev. 303, 304 (1922) Ex Parte Watanabe
commitment issued by said committing magistrate. On the hearing of the return to the writ in
this court it was urged that petitioner was unlawfully confined in said county jail, because the
magistrate had no jurisdiction to make the order holding him to answer. It was contended that
there was no legal evidence before the magistrate upon which he could find that there was
sufficient cause to believe the petitioner guilty of the offense charged. The case was orally
argued in this court and submitted for consideration and decision. It has been recently brought
to our attention that, since the submission of the case to his court, petitioner has entered a
plea of guilty in said justice's court to the charge of having an opium pipe in his possession;
that he was fined therefor, and subsequently, on motion of the state's attorney, the information
filed against him, pursuant to the order holding him to answer, was dismissed by order of the
district court, and the petitioner discharged from the custody of the sheriff. The petitioner
having been released from the imprisonment which he alleged in his petition was illegal, the
question presented for determination has become, therefore, a moot question, and we decline
to pass upon it.
The writ is dismissed.
____________
45 Nev. 305, 305 (1922) Carville v. McBride
[No. 2510]
ED. CARVILLE, Appellant, v. J. A. McBRIDE, Mayor of the City of Elko; F. T. BRENNEN,
J. H. KEYSER, W. R. MAYER, and W. W. BOOHER, Supervisors of said City, and the
said City of Elko and the Board of Supervisors Thereof, Respondents.
[202 Pac. 802]
1. ElectionsCity Charter Construed to Require Electors to be Taxpayers.
Under section 77, Elko City Charter (Stats. 1917, p. 171), defining taxpayer to be a person whose name
appears on the official tax roll for the current or year preceding that in which the elector offers to vote, and
giving the power to judges and officers of election, and making it their duty, in all special elections on
bonds or franchises to require each elector to show by affidavit that the possesses the qualifications
prescribed, the words qualifications prescribed deal with persons offering to vote, and a voter at an
election to issue bonds to purchase a municipal water plant must be a taxpayer.
2. ElectionsAre Not Void Because of the Exclusion of Qualified Voters Without Proof that
Result Was Thereby Changed.
An election will not be held void because legal voters who offered to vote were excluded, unless it is
shown that a sufficient number to have changed the result were excluded.
3. ElectionsProvision in City Charter That Electors Must Be Taxpayers Held
Constitutional.
A provision in Elko City Charter, sec. 77 (Stats. 1917, p. 171), that electors in special elections on bonds
and franchises must be taxpayers, the qualification is for voting on questions involved in the proprietary or
quasi private rights conferred on the city for the private benefit of itself and its inhabitants, and is not in
conflict with Const. art. 2, sec. 1, providing that all citizens of the United States over the age of 21
years, and not otherwise disqualified, and who have actually resided in the state for six months and in the
district or county thirty days, shall be entitled to vote for all officers and on all questions at elections.
4. ElectionsConstitutional Provision as to Qualification of Electors Applies in City Electors
to all Officers and Questions of Governmental Nature, as Distinguished from those of a
Proprietary Character.
Const. art. 2, sec. 1, providing that all citizens of the United States over 21 years of age, and not
otherwise disqualified, and who actually resided in the state for six months and in the district or
county thirty days, next preceding any election, shall be entitled to vote for all
officers and on all questions submitted to the electors at such elections, applies in
city elections to all officers and questions of governmental nature, as distinguished
from those of a proprietary character.
months and in the district or county thirty days, next preceding any election, shall be entitled to vote for all
officers and on all questions submitted to the electors at such elections, applies in city elections to all
officers and questions of governmental nature, as distinguished from those of a proprietary character.
5. Municipal CorporationsOrdinance Passed as Emergency Measure Is Not Rendered
Invalid by Failure to Recite in the Preamble the Facts Constituting Emergency.
Under a city charter providing that no ordinance should be passed as an emergency measure unless
reasons for passing it as such are expressed in the preamble, an ordinance is not rendered invalid by failure
to recite in the preamble the facts constituting the emergency.
6. Municipal CorporationsCity Charter Held Not to Require an Ordinance Authorizing a
Bond Issue to Give Terms, Amount, Rate of Interest, Etc.
Under Elko City Charter, c. 2, par. 5, sec. 30 (Stats. 1917, p. 147), providing, in case of election to issue
bonds, the board shall issue a proclamation setting forth the public utility to be acquired or established, * *
* the terms, amount, rate of interest, and time within which redeemable, and on what fund, it is not
necessary that the ordinance authorizing the bond issue shall give the terms, amount, rate of interest, etc.
Appeal from Fourth Judicial District Court, Elko County; James A. Callahan, Judge.
Suit by Ed. Carville against J. A. McBride, Mayor of the City of Elko, T. F. Brennen and
others, Supervisors of the City of Elko, and the City of Elko and the Board of Supervisors
thereof. From judgment sustaining defendants' demurrer to the complaint, and for defendants
upon the merits, and denying a motion for a new trial, plaintiff appeals. Affirmed.
Hoyt, Norcross, Thatcher, Woodburn & Henley and E. P. Carville, for Appellant:
As it deprived qualified electors of the right to vote, the election was a nullity. Provisions
as to the time, place and legal qualifications of electors are of the substance of the election.
Hughes v. City, 182 Pac. 511. The constitutional right of suffrage is not to be taken away
upon any doubtful construction of the statute. Statutes relating to the franchise and elections
should be construed liberally in favor of the voters."
be construed liberally in favor of the voters. Lynip v. Buckner, 22 Nev. 439; Peters v.
Sisson, 169 N. Y. S. 940; Maclean v. Brodigan, 172 Pac. 375; State v. Christ, 179 Pac. 629;
Bradley v. Cox, 197 S. W. 88; Rice v. Board, 112 Atl. 523.
The charter, if it be construed to permit none but taxpayers to vote at a bond election, is
unconstitutional. Const. Nev., art. 2, sec. 1. It is beyond the power of the legislature to change
the qualifications of electors as defined by the constitution. State v. Findley, 20 Nev. 198;
State ex rel. Boyle v. Board of Examiners, 21 Nev. 67; State v. Ruhe, 24 Nev. 251; In Re
Walker River Irrigation District, 39 Pac. 274.
The ordinance was declared to be an emergency ordinance; but no facts were recited
showing an emergency as defined by law, and the ordinance was therefore prematurely
passed, and is invalid. Samuels v. City, 211 S. W. 566.
The bonds proposed by the ordinance are not responsive to the question submitted at the
election. The election ballot fails to give the term of the bond, merely stating the amount and
the rate of interest. The term of the bond and the time of redemption are not disclosed. Hallet
v. City, 83 Pac. 1062.
Milton B. Badt and James Dysart, for Respondents:
Voters at special bond elections must be taxpayers. The charter so provides, and defines the
term taxpayer. Stats. 1917, p. 171. In construing statutes it should be the purpose of the
courts to carry into effect the purpose and intent of the legislature. Of two admissible
constructions, the courts are never justified in adopting one which defeats the manifest object
of the statute involved. Wilkinson v. LaComb, 196 Pac. 836. It is the duty of the courts to
keep that intention, once it is ascertained, steadily in view, and to endeavor to apply the law
where it was intended to apply, and to except those cases where it is not. Lynip v. Buckner,
22 Nev. 426. Property qualifications imposed upon voters in municipal bond elections are
not in contravention of the constitutional definition of the elective franchise. "A municipal
corporation, such as a city, has a two-fold character; one function being governmental, in
which it is the agent of the state, the other proprietary or private, for the purpose of
providing local necessities and conveniences for the community." Board v. Peterson, 12S
Pac.
Property qualifications imposed upon voters in municipal bond elections are not in
contravention of the constitutional definition of the elective franchise. A municipal
corporation, such as a city, has a two-fold character; one function being governmental, in
which it is the agent of the state, the other proprietary or private, for the purpose of providing
local necessities and conveniences for the community. Board v. Peterson, 128 Pac. 837; 1
Dillon, Mun. Corp. (5th ed.) secs. 22, 24; 15 Cyc. 296; 20 C. J. 76; 19 R. C. L. 1170; Hannah
v. Young, 84 Md. 179; Spitzer v. Fulton, 127 N Y. 285; Mayor v. Shattuck 34 Pac. 947; In Re
Walker Irr. Dist., 195 Pac. 327; State ex rel. Lamar v. Dillon, 22 L. R. A. 124; State v.
Rosenstock, 11 Nev. 128; Riter v. Douglas, 32 Nev. 400.
The ordinance was not improperly passed as an emergency ordinance. Stats. 1917, pp. 139,
144; Langdon v. City, 193 Pac. 1, 8.
The ballot sufficiently set forth the proposition to be voted for. Mere irregularities do not
invalidate an election. 1 Dillon, Mun. Corp. (5th ed.) 642. The general rule with reference to
the submission of propositions is that where the ballot is free from ambiguity, neither a lack
of absolute precision nor the use of surplusage will vitiate the election. 20 C. J. 150.
Appellant having been plaintiff in the court below, the parties will be referred to in this
opinion as plaintiff and defendants.
On August 20, 1920, W. T. Smith, the owner of the Elko water-works, offered to sell the
same to the city of Elko for the sum of $150,000. On September 30, 1920, a petition, signed
by the necessary number of property owners, was filed with the board of supervisors of the
city, praying that the board negotiate for the purchase of said water system. Thereafter the
mayor and board of supervisors took action leading to the acquisition of said water-works,
and for the issuance and sale of the bonds of said city in the sum of $1S0,000, the
proceeds of which were to be used in the payment of the water-works and in improving
the same.
acquisition of said water-works, and for the issuance and sale of the bonds of said city in the
sum of $180,000, the proceeds of which were to be used in the payment of the water-works
and in improving the same.
At a regular meeting of the board of supervisors, held on November 3, a petition was filed
by 20 per cent of the qualified electors of the city of Elko as shown by the last preceding
registration list, and representing more than 10 per cent of the taxable property in the city, as
shown by the last preceding tax list or assessment roll, asking for a special election upon the
question as to whether or not the proposed ordinance should become a law. The clerk of the
board certified to the sufficiency of the petition and the signatures thereto attached. Upon
information and belief the city board accepted the petition, and resolved to call an election on
the proposition for the 4th of January, 1921. This date was later changed by resolution of the
board to the 11th day of January, 1921, On which date the election was held. At such election
a majority of 25 votes was cast in favor of the issuance and sale of the bonds. Thereafter the
board of supervisors declared the ordinance an emergency ordinance, and passed the same.
Prior to the election, the county clerk, acting as the registry officer for the city election,
registered for the election only those electors within the city of Elko who were qualified
taxpayers, and whose names appeared upon the tax roll for the year 1920 or 1921. No person
was permitted to register or vote at the election except qualified electors who were taxpayers
within the city, and whose names appeared upon the tax rolls thereof for the year 1920 and
1921.
This action was commenced in the Fourth judicial district court, in and for the county of
Elko, by plaintiff, on behalf of himself and all other persons similarly situated, to obtain an
injunction restraining the defendants from proceedings to acquire a certain public utility
known as the Elko Water - Works, and from issuing bonds for the purpose of purchasing
said water-works for the city of Elko and enlarging and maintaining the same.
bonds for the purpose of purchasing said water-works for the city of Elko and enlarging and
maintaining the same.
The defendants filed both a demurrer and answer to the complaint, and the case was heard
upon both the demurrer and the merits at the same time. The court sustained the demurrer,
and also made findings of fact, and decided the case upon the merits in favor of the
defendants. A motion for a new trial having been denied, plaintiff appealed, and urges four
propositions as reasons for reversal of the judgment.
The city of Elko was incorporated by a special act of the legislature (Stats. 1917, c. 84),
and its authority to issue bonds exists in pursuance thereof.
1. The first contention made is that the election is void, for the reason that qualified
electors were deprived of the right to vote thereat. To sustain this position it is said that to
have been a qualified elector at said election one did not have to be a taxpayer and have his
name appear upon the tax roll. The determination of this question turns upon the construction
of section 77 of the charter of the city of Elko (Stats. 1917, p.171), which reads:
Taxpayers' DefinedA taxpayer,' within the meaning of this charter, shall be construed
to be and include all persons whose names appear on the official tax roll for the current or the
year preceding that in which the elector offers to vote. The judges or officers of election shall
have power, and it is hereby made their duty in all cases of special elections on bonds or
franchises, to require of each person offering to vote thereat to show by the affidavit of such
person that he possesses the qualifications prescribed; provided, that such judges or election
officials may require further proofs for, as well as against, the right of any person to vote,
when such right is challenged by a duly qualified elector.
What is the purpose of that portion of section 77 defining a taxpayer, if the term
qualifications prescribed," as used in the last sentence, does not refer to the
qualifications mentioned in the preceding sentence?
scribed, as used in the last sentence, does not refer to the qualifications mentioned in the
preceding sentence? Counsel for appellant say that this question is easily answered; that its
purpose was to fix the qualifications of a taxpayer, because section 6, chapter 2, of the charter
(Stats. 1917, p. 132) provides that the mayor and each of the four supervisors of the city, in
addition to other qualifications, shall be property owners and taxpayers in the city. We are
satisfied that such could not have been the intention of the legislature. Pursuant to section 6,
to qualify candidates for mayor and supervisors they shall be for at least two years
immediately preceding their election residents of the city of Elko, qualified voters who are
property owners and taxpayers.
Under section 77 it is essential that one offer to vote to determine the year in which his
name must appear on the tax roll. If the view urged by counsel in behalf of plaintiff be
correct, it is necessary that the mayor and supervisors offer to vote at the election at which
they are chosen; otherwise they are not taxpayers, and hence not qualified to hold office. If
through sickness, or other unavoidable cause, the officers mentioned, or any of them, fail to
offer to vote at the election at which they are chosen, they would be liable to be ousted from
office, if plaintiff's contention is sound, notwithstanding they had in fact been owners of
extensive property interests in the city for years, upon which they had annually paid taxes,
and were otherwise qualified. This we say would be the logical result of the contention
presented in the circumstances mentioned.
That the interpretation contended for might lead to absurd results is obvious. This of itself
is sufficient to warrant the court in looking with disfavor upon the suggested interpretation, if
a logical one can be found. The sentence of section 77, alluding to qualifications
prescribed, deals with person offering to vote, just as does the preceding sentence of the
section; and to construe the words "qualifications prescribed" as applying to those
qualifications in the sentence immediately preceding would not only be reasonable, but
natural, in view of the fact that those qualifications appear in the same section of the act.
construe the words qualifications prescribed as applying to those qualifications in the
sentence immediately preceding would not only be reasonable, but natural, in view of the fact
that those qualifications appear in the same section of the act. In fact, if the words
qualifications prescribed do not refer to the qualifications mentioned in the sentence
immediately preceding, it is impossible to ascertain to what they do refer. Hence, not only by
a process of exclusion, but by one of inclusion, as well, we are inevitably led to the view that
the only logical solution of the question is to hold that the words qualifications prescribed,
refer to those mentioned in section 77.
2. But we do not deem it necessary to confine ourselves to the view expressed in reaching
the conclusion that the judgment should be affirmed. This court, in State v. Ruhe, 24 Nev.
251-260, 52 Pac. 276, quoted approvingly the following:
In the American and English Encyclopedia of Law, vol. 6, p. 289, it is said: If a registry
is had under an unconstitutional law and an election held upon the basis of such registry,
there can be little, if any, doubt that the election will be held valid unless it is shown that a
sufficient number of legal voters to have changed the result were prevented by such law from
casting their ballot.'
It does not appear from the pleadings, or from the findings of the trial court, that a
sufficient number of legal voters, not being taxpayers, offered to vote and were denied that
privilege because they were not taxpayers to change the result of the election.
Though the same principle is not involved as in those cases wherein the rule is asserted
that one who is not affected by a statute cannot question its constitutionality (State v. Beck,
25 Nev. 69, 56 Pac. 1008), the same line of reasoning sustains the principle we have invoked.
In the one case a person cannot attack the constitutionality of a law when his rights are not
affected by it, whether it be constitutional or unconstitutional; in the other, though his
primary right to vote may have been denied, such denial resulting in no injury to him,
since it does not appear that the result of the election would have been different had no
one been denied the right to vote upon the ground that he was not a taxpayer, the court
will not do the absurd thing of declaring the law unconstitutional.
it be constitutional or unconstitutional; in the other, though his primary right to vote may have
been denied, such denial resulting in no injury to him, since it does not appear that the result
of the election would have been different had no one been denied the right to vote upon the
ground that he was not a taxpayer, the court will not do the absurd thing of declaring the law
unconstitutional.
3, 4. It is next urged that, if by section 77 of the act it was sought to require that one be a
taxpayer to qualify him as a voter at an election held to pass upon the question of issuing
bonds, such section is in derogation of section 1, article 2, of the Constitution of Nevada. By
this section it is provided that all citizens of the United States over the age of 21 years, and
not otherwise disqualified, and who have actually resided in this state for a period of six
months and in the district or county thirty days next preceding any election, shall be entitled
to vote for all officers and upon all questions submitted to the electors at such elections. It is
insisted that this section of the constitution guarantees to persons in the city of Elko, who on
the date of the election in question possessed the qualifications mentioned, the right to vote at
said election, whether or not they be taxpayers; particular stress being laid upon the provision
that such persons shall be entitled to vote upon all questions.
We think the contention not well founded. It ignores the well-recognized distinction
between the governmental, or public, and the proprietary, or business, powers of a
municipality, and erroneously seeks to apply to the exercise of the latter a rule which is only
applicable to the exercise of the former. It is generally conceded that a city has two classes of
power: The one legislative, public, governmental, in the exercise of which it is a sovereignty
and governs its people; the other proprietary, quasi private, conferred upon it not for the
purpose of governing its people, but for the private advantage of the inhabitants of the city
and of the city itself as a legal entity.
advantage of the inhabitants of the city and of the city itself as a legal entity. In the discharge
of the functions of the former class, it is governed by the rule contended for by plaintiff; but
in the discharge of the functions of the latter it is controlled by no such rule, for the obvious
reason that it is acting and contracting for the private benefit of the city itself and its
inhabitants, and it may exercise the business powers conferred upon it in the same way, and
in their exercise be governed by the same rules, that govern a private individual or
corporation. This idea is tersely expressed by the Supreme Court of Oregon in Board of
Directors v. Peterson, 64 Or. 52, 128 Pac. 839, as follows:
A municipal corporation, such as a city, has a two-fold character; one function being
governmental, in which it is the agent of the state, the other proprietary, or private, for the
purpose of providing local necessities and conveniences for the community.
The rule which we have stated is well recognized, approved by the text-writers, and
supported by the over-whelming weight of authority. It is said:
In the United States, at least, the institution of municipal corporations is based upon the
idea of local self-government by popular representation. Municipal corporations are of a
twofold character: The one public as regards the state at large in so far as they are its agents in
government; the other private in so far as they are to provide local necessities and
conveniences for their own communities. * * * In it proprietary character the theory is that the
powers are not conferred chiefly from considerations connected with the government of the
state at large, but for the private advantage of the compact community which is incorporated
as a distinct legal personality or corporate individual. With reference to the former class of
powers, the municipality represents the general government, and its rights and responsibilities
are determined accordingly. As to the latter class, the corporation's rights and liabilities are
governed by the same rules which control those of private corporations or individuals."
private corporations or individuals. 20 Am. & Eng. Ency. Law (2d ed.) 1131.
See, also, 15 Cyc. 296; 28 Cyc. 125; 20 C. J. 76.
That brilliant author, Judge Dillon, who, not only by his judicial utterances, but as well by
his contributions to the legal classics of the land, has made an enduring place for himself as
one whose utterances are not only persuasive, but most convincing, says:
It assists to an understanding of the extent of legislative power over municipal
corporations proper (incorporated towns and cities) to observe that these, as ordinarily
constituted, possess according to the adjudications a double character: The one governmental,
legislative, or public; the other, in a sense, proprietary or private. The distinction between
these, though sometimes, indeed very often, difficult to trace, is highly important, and is
frequently referred to, particularly in the cases relating to the property and to the implied or
common-law liability of municipal corporations for the negligence of their servants, agents,
or officers in the execution of corporate duties and powers. On this distinction, indeed, rests
the doctrine of such implied liability. In its governmental or public character, the corporation
is made, by the state, one of its instruments, or the local depository of certain limited and
prescribed political powers, to be exercised for the public good on behalf of the state rather
than for itself. In this respect it is assimilated, in its nature and functions, to a county
corporation, which, as we have seen, is purely part of the governmental machinery of the
sovereignty which creates it. Over all its civil, political, or governmental powers, the
authority of the legislature is, in the nature of things, supreme, and without limitation, unless
the limitation is found in the constitution of the particular state. But, in its proprietary or
private character, the theory is that the powers are supposed not to be conferred, primarily or
chiefly, from considerations connected with the government of the state at large, but for the
private advantage of the compact community which is incorporated as a distinct legal
personality or corporate individual; and as to such powers, and to property acquired
thereunder, and contracts made with reference thereto, the corporation is to be regarded
quo ad hoc as a private corporation, or at least not public in the sense that the power of
the legislature over it or the rights represented by it, is omnipotent."
is incorporated as a distinct legal personality or corporate individual; and as to such powers,
and to property acquired thereunder, and contracts made with reference thereto, the
corporation is to be regarded quo ad hoc as a private corporation, or at least not public in the
sense that the power of the legislature over it or the rights represented by it, is omnipotent. 1
Dillon, Mun. Corp. (5th ed.) sec. 109.
In keeping with the views indicated, it has been held that the constitutional provision in
question has reference to all officers and questions of a governmental nature, as distinguished
from those of a proprietary character. This view was adopted by this court in In Re Walker
River Irr. Dist., 44 Nev. 321, 195 Pac. 327, wherein it is said:
By the weight of authority, the term all officers' and questions submitted to the electors
at such election, as used in section 1, article 2, has reference to the election of all officers
provided for in the constitution.
The view thus enunciated is in keeping, not only with the soundest reasoning, but with the
great weight of authority. This question is considered at length in Mayor of Valverde v.
Shattuck, 19 Colo. 104, 34 Pac. 947, 41 Am. St. Rep. 208, where the conclusions which we
have reached find support.
See, also, Spitzer v. Fulton, 172 N. Y. 285, 64 N. E. 957, 92 Am. St. Rep. 736; Hannah v.
Young, 84 Md. 179, 35 Atl. 674, 34 L. R. A. 55, 57 Am. St. Rep. 396.
It would seem useless to pursue this inquiry further, for the reason, as stated in response to
the first objection to the statute, that it does not appear from the pleadings, the findings, or
otherwise, that a sufficient number of legal voters, not being taxpayers, offered to vote at the
election in question, and were denied that privilege upon the ground that they were not
taxpayers, to change the result of the election. State v. Ruhe, supra.
5. It is said, too, that the ordinance is void since no facts are recited constituting an
emergency as defined by law. The charter of the city of Elko provides: "No ordinance shall
be passed as an emergency measure unless reasons for passing it as such are expressed
in the preamble."
No ordinance shall be passed as an emergency measure unless reasons for passing it as
such are expressed in the preamble.
Plaintiff, to sustain his contention, relies simply upon the authority of Samuels v. City of
Clinton, 184 Ky. 97, 211 S. W. 567, 568. We may say, in the first place, that the charter of the
city of Elko does not require that facts be recited in the preamble, but that the reasons
moving the board of supervisors to act be recited. There is a wide distinction between the
requirement of the recital of facts and of reasons. While no facts were recited in the
preamble, there is nothing to require it. On the other hand, the preamble does recite the
reasons moving the board of supervisors to act as it did, and it is not asserted that the reasons
given are not good reasons. Furthermore, in the case relied upon by plaintiff, the court looked
into the facts, and did determine that an emergency did exist for the purchase of the
water-works. We do not pretend to determine whether the court had authority to inquire into
the sufficiency of the reasons moving the board of supervisors to declare an emergency
existing for the passage of the ordinance, for, in any event, we are bound to hold against the
plaintiff in this case, for the reason that the trial court expressly found that the ordinance was
an emergency measure, and that sufficient circumstances did exist to justify the passage and
adoption of said ordinance as an emergency measure. It is not contended before us that this
finding is not sustained by the evidence. We are satisfied that the contention on this point is
utterly without foundation.
6. It is likewise said that the election is void for the reason that the charter of the city
provides that the ordinance authorizing a bond issue shall give the terms, amount, rate of
interest, and time within which redeemable and on what fund. We do not so read the charter.
Looking to paragraph 5, section 30, chapter 2, of the charter (Stats. 1917, p. 147), we find its
reads:
The board shall issue a proclamation which shall set forth briefly the public utility
proposed to be acquired or established, * * * the proposed bonded indebtedness to be
incurred therefor; the terms, amount, rate of interest, and time within which redeemable
and on what fund."
set forth briefly the public utility proposed to be acquired or established, * * * the proposed
bonded indebtedness to be incurred therefor; the terms, amount, rate of interest, and time
within which redeemable and on what fund.
It will be seen that there is a wide difference between what the statute in fact requires and
what it is contended it requires. This should dispose of this ground for reversal; but we may
say that the trial court expressly found that the board of supervisors had complied with the
section of the charter mentioned and issued a proclamation in compliance therewith. This
finding is not attacked here.
For the reasons given, the judgment is affirmed.
____________
45 Nev. 318, 318 (1922) In Re Parrott's Estate
[No. 2512]
In the Matter of the Estate of MATT A. PARROTT,
Deceased.
[203 Pac. 258]
1. Appeal and ErrorErrors Against Respondent Considered if Appellant's Complaint
Would Not Support Judgment for Him.
Though the appellant court will not ordinarily consider errors committed against respondent, it will do
so if the complaint is so defective that it would not support any judgment in appellant's favor.
2. BastardsTo Recover Estate Notwithstanding Omission from Will, Illegitimate Child
Must Allege Facts Establishing Legitimation.
Before a testator's illegitimate child may recover his entire estate under Rev. Laws, 6216,
notwithstanding her omission from the will, she must allege sufficient facts to establish her status as his
adopted child, under section 5833.
3. BastardsObjection to Distribution of Estate among Beneficiaries of Will Held Sufficient
to Support Claim Objector Was Testator's Legitimated Child.
An objection by testator's illegitimate child to a petition for distribution of his estate among the
beneficiaries of his will alleging that testator publicly acknowledged her, contributed food, clothing, etc.,
and sent her to school, held sufficient to bring her within the purview of Rev. Laws, 5833, relative to the
legitimation of an illegitimate child.
4. PleadingIn Determining Whether Illegitimate Child Was Intentionally Omitted from
Will, Court Cannot Consider Facts Admitted by Demurrer, Relevant Only to Child's
Legitimation.
In considering a demurrer to an objection by testator's legally adopted illegitimate daughter to the
distribution of his estate among the beneficiaries of his will, from which she was omitted, the court cannot
consider, in determining whether objector was intentionally omitted from the will within Rev. Laws, 6216,
facts stated in the objection as to the circumstances surrounding objector's parentage, as indicating that
testator purposely omitted her from the will, such facts being relevant only to establish her status as a
legitimate child, and the demurrer admitting the truth only of well-pleaded facts.
5. Descent and DistributionTo Overthrow Presumption that Child's Omission Was
Unintentional Contrary Intent Must Be Expressed or so Strongly Implied as to Render
Any Other Conclusion Unreasonable.
Before the presumption arising from Rev. Laws, 6216, entitling a child unintentionally omitted from its
parent's will to the same share in his estate as if he had died intestate, that such omission was unintentional,
can be overthrown and the contrary intention established, the intention to omit must be expressed in the
will or implied in language so strong as to render any other conclusion unreasonable.
6. CourtsOne Case, Unless Similar in All Respects, No Authority on Questions of Mere
Construction of Will.
On questions of mere construction of will one case, unless in all respects similar to that under discussion,
cannot be regarded as an authority.
7. Descent and DistributionWill Held Not to Sufficiently Indicate Testator's Intention to
Omit Child.
Though every word or phrase of a will should be given effect and harmonize with the rest, if possible,
without destroying the general intention, a will wherein testator declared he had never been married and
had no children and disposed of all his property in detail to others held not to indicate with sufficient
certainty that he intentionally omitted an illegitimate child from its provisions to bar her right, under Rev.
Laws, 6216, to the entire estate; the scheme of distribution being consistent with the statutory presumption
that she was unintentionally omitted, though testator was of sound and disposing mind and under no
restraint or undue influence.
8. Descent and DistributionExtrinsic Evidence Admissible to Show whether Child Was
Intentionally Omitted from Will.
Under laws such as Rev. Laws, 6216, providing that a child omitted from a will shall be entitled to the
same share in testator's estate as if he had died intestate, unless such omission was
intentional, extrinsic evidence is admissible to show whether such child was
intentionally omitted.
in testator's estate as if he had died intestate, unless such omission was intentional, extrinsic evidence is
admissible to show whether such child was intentionally omitted.
Appeal from Second Judicial District Court, Washoe County; James A. Callahan, Judge.
In the matter of the estate of Matt A. Parrott, deceased. Objection by Lucy Peggy Parrott
Arzaga to a petition for distribution of the estate among the beneficiaries under the will. From
a judgment dismissing the objection, objector appeals. Reversed and remanded. Petition
for rehearing denied. (Sanders, C. J., dissenting.)
W. D. Jones and N. J. Barry, for Appellant:
Questions decided against respondents cannot be taken advantage of by them on an appeal
by the party in whose favor the ruling was made. No error against respondents in the trial
court can be considered on appellant's appeal. Coyle v. Lamb, 123 Cal. 264; County v. Bank,
127 Cal. 245; Benson v. Bunting, 141 Cal. 462.
The sole question for determination is whether or not testator intentionally omitted
appellant from the provisions of his will. An illegitimate child who comes within the statute
occupies the same position as a child born in wedlock. Rev. Laws, 5833; Estate of Wardell,
57 Cal. 484; Wolf v. Gall, 32 Cal. App. 295.
Was appellant the child of decedent, acknowledged by him as such, and did he
intentionally omit her from the provisions of his will? An illegitimate child who comes
within the statute occupies the same position as a child born in lawful wedlock. Rev. Laws,
5833; Estate of Wardell, 57 Cal. 484; Wolf v. Gall, 32 Cal. App. 295. For the purposes of the
demurrer, it is admitted that appellant was the daughter of the decedent, duly acknowledged
as such. It is a universal rule that a demurrer is an admission of the truth of all of the facts
properly averred in the complaint demurred to.
21 R. C. L. 70; 31 Cyc. 333; Levy v. Ryland, 32 Nev. 460. Appellant was unintentionally
omitted from the provisions of the will. The general presumption is that the omission was
unintentional. 2 Alexander on Wills, sec. 636. The burden of proof being on those who
oppose the claim of the omitted child (14 Cyc. 60), the intention must be determined from
the language of the will. In Re Stevens, 83 Cal. 329.
The question is not as to the disposition that testator made of his property, but as to
whether he had appellant in mind and purposely omitted her from the provisions of his will.
Rev. Laws, 6216; Carpenter v. Snow, 72 Am. St. Rep. 576. It is an easy matter to put the
question beyond a doubt by naming the children * * * with a nominal legacy, or none at all,
from which it will appear that these persons are in the mind of the testator, and therefore the
omission to leave them anything must have been intentional. In Re Stevens, supra.
Testator is presumed to have known the law, and the legal presumption is that he meant
the consequences of his act. Luris v. Radnitzer, 57 Am. St. Rep. 160; Estate of Salmon, 107
Cal. 614; Estate of Stevens, 83 Cal. 322; Bush v. Lindsay, 44 Cal. 121; Luris v. Radnitzer,
supra; Stebbins v. Stebbins, 34 Am. St. Rep. 345; Hargidene v. Plute, 27 Mo. 423; Gage v.
Gage, 29 N. H. 523; Bower v. Bower, 31 Pac. 598; Estate of Ross, 140 Cal. 282;
Hollingsworth's Appeal, 51 Pa. St. 518. The mention of a child unprovided for should be
more than a mere meaningless reference; it should evince an intent on the part of the testator
that the child in question should take no benefit under the will. 2 Alexander on Wills, sec.
636.
If it is to be determined from the will alone, whether or not the will omits the child is a
question of law, and may be determined on demurrer; but, where extrinsic evidence is
introduced, the question whether or not the testator intentionally omitted the child from the
provision of the will becomes a question of fact, and must be determined by a jury on a
trial of the cause.
vision of the will becomes a question of fact, and must be determined by a jury on a trial of
the cause. Woodvine v. Dean, 29 N. E. 882; Carpenter v. Snow, 72 Am. St. Rep. 576.
Hoyt, Norcross, Thatcher, Woodburn & Henley, S. H. Rosenthal, H. V. Morehouse, and
John S. Orr, for Respondents:
This court must decide whether or not testator adopted petitioner as his child, and whether
or not he intentionally omitted her from the provisions of his will.
A child shall have the same share in the estate as though the testator had died intestate,
unless it shall be apparent from the will that it was his intention to make no provision for
such child. Rev. Laws, 6216. The only object of the statute is to protect the children against
omission or oversight. * * * The statute affords no protection if provision is not made for
them. The inference follows that no provision was intended. Payne v. Payne, 18 Cal. 291;
Terry v. Foster, 1 Mass. 146; Wild v. Brown, 2 Mass. 570; Wilder v. Goss, 14 Mass. 357;
Coulam v. Doull, 133 U. S. 216; Gerish v. Gerish, 8 Or. 351; Estate of Callaghan, 51 Pac.
860; Woods v. Drake, 37 S. W. 109; Boman v. Boman, 47 Fed. 849; Allison v. Allison, 44 S.
E. 904.
Parol testimony is admissible to ascertain whether or not the omission of a child from a
will is intentional or unintentional. Coulam v. Doull, supra; Estate of Motts, 51 L. R. A. (N.
S.) 645; Peterson's Estate, 140 Pac. 237. It conclusively appears from the will and from the
surrounding circumstances that appellant was intentionally omitted from the will. The
cardinal rule of interpretation of a will is to ascertain the intention of the testator. Estate of
Hartung, 39 Nev. 200; 40 Cyc. 1382, 1394; Stewart v. Jones, 131 Am. St. Rep. 608; Estate of
Murphy, 137 Am. St. Rep. 115.
In the interpretation of wills courts will look to the whole instrument. Bacon v.
Michaels, 105 Pac. 1082.
By disposing of his entire estate to others testator showed his intent to omit petitioner from
any inheritance. That a testator may disinherit his heirs, by giving his estate to somebody
else, cannot be doubted. Baisseau v. Aldridges, 27 Am. St. Rep. 595; Addington v. Wilson,
5 Ind. 137; McMichael v. Pye, 75 Ga. 192; Wright v. Hicks, 12 Ga. 156; Stennett v. Hall, 37
N. W. 332; Hoeb v. Hoeb, 61 N. W. 932.
If not in contravention of some established rule of law or of public policy, the intention of
the testator must be ascertained and given effect. 40 Cyc. 1386; Estate of Hartung, 39 Nev.
200; Carver v. Wright, 109 Atl. 896; Rewis v. Rewis, 84 South. 93; Insurance Co. v.
Dearborn, 109 Atl. 816; In Re Blodgett's Estate, 163 N. W. 907.
It is only when the language actually used by the testator will admit of no other reasonable
construction that the court will declare it invalid or illegal. 40 Cyc. 1407; In Re Heywood's
Estate, 82 Pac. 755; Husin v. Ellis, 93 N. E. 362; Clark v. Mack, 126 N. W. 632.
Every word or phrase should be given effect and harmonize with the rest of the will, if
possible to do so without destroying the general intention. 40 Cyc. 1408; Mittel v. Karl, 8 L.
R. A. 655; Winter v. Dibble, 95 N. E. 1093; Walker v. Walker, 118 N. E. 1015; Burton v.
Burton, 102 S. E. 282; Meins v. Meins, 123 N. E. 554; Porter v. Tracey, 162 N. W. 800;
Harrington v. Cooper, 189 S. W. 667; Porter v. Union Trust Co., 108 N. E. 117.
The presumption is that the testator intended to dispose of his entire estate, and not to die
intestate, and the will should be so construed, unless this presumption is clearly repealed by
the provisions of the will or by evidence to the contrary. 40 Cyc. 1409; Wilmes v. Tierney,
174 N. W. 271; Federson v. Matthiesen, 170 N. E. 385.
The true construction of the will is that the testator intended to exclude from any
substantial share in his estate any one not named in his will, whether a child or otherwise. In
Re Miner's Estate, 180 Pac. 535. Appellant was in the mind of the testator, who
intentionally omitted her from his will.
lant was in the mind of the testator, who intentionally omitted her from his will. Coulam v.
Doull, 133 U. S. 216.
Clear and unambiguous disposition of property to certain persons is recognized as a factor
of the utmost importance in determining whether or not a testator intentionally omitted others
from the provisions of his will. Coulam v. Doull, supra.
The court will not consider the words, I do hereby declare that I have never been married
and that I have no children, as surplusage and permit the will to fail. It is clear they were
placed in the will for the purpose of disavowing the paternity of appellant, and of excluding
her from participation in the estate of the testator. In Re Heywood's Estate, 82 Pac. 755; Clark
v. Mack, 126 N. W. 632. If it appear that the testator intended to omit appellant from his will,
she is not the sense of the statute a pretermitted child. Osborn v. Bank, 4 N. E. 791; Hawhe v.
Railroad, 46 N. E. 240; Peet v. Peet, 82 N. E. 376; Leonard v. Enochs, 17 S. W. 437; Brown
v. Brown, 108 N. W. 180; Woods v. Drale, 37 S. W. 109; Smith v. Smith, 54 Atl. 1014;
Smith v. Sheehan, 39 Atl. 332; Reaves v. Hager, 50 S. W. 760; Shackelford v. Washburn, 60
South. 318; In Re Lindsay's Estate, 18 Pac. 113.
Appellant claims to be a daughter of the deceased, Matt A. Parrott, and an Indian woman,
and that she is entitled to the sole distribution of his estate. She filed her objection to a
petition for distribution by the executors of the estate, praying that the major portion of the
estate be distributed in equal shares to the Rebecca Lodge No. 7 of Reno, Washoe County,
Nevada, Mercy Wagstaff, a sister of the deceased, the children and grandchildren of Mrs.
Jane Goodman, a deceased sister of said Matt A. Parrott, and to the children of another
deceased sister, Helen Bateman, in accordance with the terms of the last will and testament
of the deceased, Matt A.
terms of the last will and testament of the deceased, Matt A. Parrott. The objection reads:
That the said Lucy Peggy Parrott Arzaga is the daughter of the said Matt A. Parrott,
deceased, and a Washoe Indian woman named Peggy; that said Lucy Peggy Parrott Arzaga
was born in the Indian camp just below the old county hospital on the south side of the
Truckee River, in the eastern part of the city of Reno, county of Washoe, State of Nevada,
about forty years ago, and is now, and for some years prior hereto has been continuously, and
in fact during almost the entire period of her life, has been a resident of the county of
Washoe, State of Nevada.
That said Matt A. Parrott, in the county of Washoe, State of Nevada, and elsewhere,
many times, publicly acknowledged that he was the father of the said Lucy Peggy Parrott
Arzaga, and from the time of the birth of said Lucy Peggy Parrott Arzaga contributed food
and clothing and sustenance and maintenance to the said Lucy Peggy Parrot Arzaga, and sent
the said Lucy Peggy Parrott Arzaga to the Stewart Indian School near the city of Carson, in
the State of Nevada, as the child of the said Matt A. Parrott and paid the expense of the said
Lucy Peggy Parrott Arzaga at said school and her support and maintenance during the time
she attended said school, and on many and divers occasions in the State of Nevada publicly
admitted to divers and sundry persons that he was the father of said Lucy Peggy Parrott
Arzaga, and that she, the said Lucy Peggy Parrott Arzaga, was his child, and that he intended
to raise, maintain, educate, and support the said Lucy Peggy Parrott Arzaga, all with the
consent of the mother of said Lucy Peggy Parrott Arzaga and before the said Lucy Peggy
Parrott Arzaga had reached the age of 12 years.
That the said Matt A. Parrott died in the city of Reno, county of Washoe, State of
Nevada, on the 22d day of November, 1919, and left estate therein as particularly set forth
and described in said petition for distribution, and that the said Matt A.
distribution, and that the said Matt A. Parrott was at the time of his death, and for more than
fifty years prior thereto had been, a resident of the county of Washoe, State of Nevada.
That the said Matt A. Parrott left a will and testament, dated October 24, 1919, a true
copy of which said will and testament is hereto attached, marked Exhibit A, and made a part
hereof, and that said will and testament was, by an order of the above-entitled court, duly and
regularly admitted to probate in the above-entitled court on the 11th day of December, 1919.
That the said Matt A. Parrott omitted in said will to provided for or to make any provision
concerning the said Lucy Peggy Parrott Arzaga, and that it does not appear from the will or
otherwise that such omission was intentional.
Said Lucy Peggy Parrott Arzaga further alleges that the said Matt A. Parrott left no
surviving wife or child, or children other than the said Lucy Peggy Parrott Arzaga, and that
there are no relatives, heirs, or persons whomsoever who are entitled to take the property of
the said estate in preference to the said Lucy Peggy Parrott Arzaga.
That the said Lucy Peggy Parrott Arzaga is a married woman, the wife of one Manuel
Arzaga, but that the said Arzaga, husband of said Lucy Peggy Parrott Arzaga, has no right,
title, interest, or claim of, in or to the property of the said Matt A. Parrott, deceased,and that
this proceeding concerns the sole and separate property of the said Lucy Peggy Parrott
Arzaga.
Wherefore said Lucy Peggy Parrott Arzaga prays that after the payment of all of the
expenses of the administration and all of the just debts of estate of the said Matt A. Parrott,
deceased, all of the rest, remainder, and residue of said estate be distributed to the said Lucy
Peggy Parrott Arzaga, and for such other and further relief as to the court may seem meet and
proper in the premises.
The copy of the will, so far as its contents have any bearing upon the questions to be
determined on appeal, contains in paragraph 2 the following declaration:
I do hereby declare that I have never been married and that I have no children.
After several minor devises are declared, the will concludes:
6. I hereby direct that all of the rest, remainder and residue of my estate, real, personal
and mixed, of every nature, kind and description wherever situate and however held, which is
or may be subject to my testamentary disposition at the time of my death, shall be divided
into four equal parts, and I hereby give, devise and bequeath one of said parts of my residuary
estate to Nevada Rebecca Lodge No. 7 of the city of Reno, county of Washoe, State of
Nevada; one of said parts to my sister, Mrs. Jane Goodman of Wayne County, New York; one
of said parts to my sister Mrs. Ellen or Helen Bateman of Bedfordshire, England; and one of
said parts to my sister Mercy Wagstaff of Colmworth, Bedfordshire, England.
7. I hereby declare that I have not heard directly from any of my said sisters for several
years, and it is my will, in the event that any of my said sisters shall be deceased at the date
hereof or at the date of my death, that the portion of my estate which is hereby devised to
such sister, or sisters, shall be distributed to the lineal descendants of such sister, or sisters,
per stirpes and not per capita; but if any of my sisters shall have died without lineal
descendants, or in the event my executors shall be unable to ascertain the whereabouts of any
of my sisters, or if dead, their lineal descendants within two years from the date of my death,
it is my will that the share of any such sister, or sisters, shall be divided equally between my
other sisters or their lineal descendants per stirpes and not per capita.
8. I hereby nominate, constitute and appoint H. H.
Kennedy and Lee Hawcroft, both of Reno, Washoe County, Nevada, as executors of this my
last will and testament.
The objection was demurred to by all of the devisees entitled to receive the major portion
of the estate under the terms of the will, and a demurrer to the amended objection was filed
by the executors. Motions to make the objection more specific and certain were also made.
By stipulation of the attorneys of the various parties the demurrer and the motion to make
more definite and certain of the executors, directed to the amended objection, were
considered as the demurrer and motion of all of the devisees above mentioned.
Collectively and in substance the demurrers are on the ground that the amended objection
does not state facts sufficient to establish any right in the said Lucy Peggy Parrot Arzaga to
receive any part or portion of said estate, in that it shows upon its face that her omission from
the will was intentional, and contains no facts upon which it can be ascertained by the court
that said Matt A. Parrott at any time publicly acknowledged said Lucy Peggy Parrott Arzaga
as his daughter. It is unnecessary to state specifically the other objections raised.
The trial court sustained the demurrers on the ground that the amended objection was
insufficient to show an unintentional omission of the said Lucy from the will, and overruled
the demurrers and motions in other respects. The amended objection was dismissed, and from
the order of dismissal said Lucy Peggy Parrott Arzaga appeals.
For convenience, the devisees and executors opposing appellant's claim will be referred to
as respondents.
This appeal presents two questions for determination, namely: Are the facts stated in
appellant's objection sufficient to show her adoption by the testator, Matt A. Parrott? and, Did
he intentionally omit her from the provision of his will?
1. As to the first question, counsel for appellant contends that it cannot be considered on
this appeal.
tends that it cannot be considered on this appeal. Ordinarily the appellate court will not
consider any errors that may have been committed against a respondent. Maher v. Swift, 14
Nev. 324; Moresi v. Swift, 15 Nev. 215; Dennis v. Caughlin, 22 Nev. 447, 41 Pac. 768, 29 L.
R.A. 731, 58 Am. St. Rep. 761. It will look only to errors assigned by the appellant.
2. The rule is otherwise, however, if the complaint (or, as in this case, the objection) is so
defective that it would not support any judgment in favor of appellant. South San Bernardino
Land and Improvement Co. v. San Bernardino National Bank, 127 Cal. 245, 59 Pac. 609.
Before appellant would be entitled to any judgment in this case, she must by a proper
pleading allege sufficient facts to establish her status as an adopted child of the testator, by
force of section 5833. The section reads as follows:
The father of an illegitimate child, by publicly acknowledging it as his own, or receiving
it as such, with the consent of his wife, if he is married, into his family, or otherwise treating
it as his legitimate child, thereby adopts it as such; and such child shall, thereupon and
thenceforth, be deemed, for all purposes, legitimate from the time of its birth.
3. We have therefore considered the question presented by respondents, and hold that her
objection contains a sufficient averment of fact to bring her within the purview of the
foregoing statute.
4. Was the appellant intentionally omitted from the will by the testator? The statutory
provision involved is as follows:
When any testator shall omit to provide in his or her will for any of his or her children, or
for the issue of any deceased child, unless it shall appear that such omission was intentional,
such child, or the issue of such child, shall have the same share in the estate of the testator as
if he or she had died intestate. Section 6216, Revised Laws of Nevada.
We cannot accept respondents' contention that, in determining the question before us,
we may take into consideration certain facts in the objection admitted to be true by their
demurrers.
determining the question before us, we may take into consideration certain facts in the
objection admitted to be true by their demurrers. These are the circumstances surrounding
appellant's parentage, from which, taken in connection with the provisions of the will,
counsel infer that the testator was moved to purposely omit her from his will, on account of
the disgrace which her acknowledgement would bring upon his good name. They contend
that, as evidence dehors the will is admissible to determine the question involved here, these
admitted facts must be given the same force and effect by this court.
If we were to conclude, which we cannot, that on the hearing of the demurrers the district
court could have received and considered evidence aliunde, and perforce could have taken
into consideration facts admitted in the objection, it is clear that the court would have been
otherwise precluded from considering the circumstances of appellant's birth. Why? Because
these facts are stated in the objection in connection with testator's conduct towards her and
declaration of paternity only to establish her status as a legitimated child, which, together
with the allegations showing her omission from the will, put in operation the statute under
which she claims the estate, notwithstanding the will. They would necessarily be irrelevant
for any other purpose, and a demurrer admits the truth only of well-pleaded facts. In the
present condition of the case we must draw our conclusions solely from the provisions of the
will.
5. It appears from the will that the appellant was omitted from it and the estate devised to
the persons named in it. The statute which she has invoked by showing that she is the natural
and adopted child of the deceased raises the presumption that her omission from the will was
unintentional. Before this presumption can be overthrown and the contrary intention
established in point of law, it must appear from the face of the will that the intention to omit
appellant is expressed therein or implied in language so strong as to render any other
conclusion unreasonable.
therein or implied in language so strong as to render any other conclusion unreasonable. If the
import of the language of the will is not plain enough to warrant such conclusion, the
presumption raised by the law must prevail on this appeal, and the judgment of dismissal be
reversed.
6. The large number of cases cited by counsel on either side and those we have
investigated of our own accord are of little value when applied here. While it may have
escaped our research, we have not been able to find a case where the language of the will is
the same as the language upon which the question must turn in this case. On questions of
mere construction, one case, unless in all respects similar to the case under discussion, cannot
be regarded as an authority. In Re Stevens, 83 Cal. 330, 23 Pac. 379, 17 Am. St. Rep. 252.
We may refer to In Re Stevens, supra, however, for support of the rule we adopt as to the
extent to which the intention to omit from the will must appear from its language. The
California court held, under a statute the same as ours, that the naming of a grandchild in a
will with a legacy did not disclose an intention to omit his mother, who was not mentioned.
Upon the point urged, that the will itself showed upon its face that the omission of the mother
was intentional, the court said:
As to this contention, we think that the significance of the decision of this court in
Garraud's estate is that it must appear on the face of the will, and it must then appear from
words which indicate such intention directly, or by implication equally as strong. Any other
rule would lead to guesses or to inferences merely conjectural, which would be too
unsubstantial to base a judgment on. We do not think we can say with any reasonable
certainty that the words used in the will indicate that Mrs. Hubbard was in the mind of the
testator when he wrote his will, and that he intentionally omitted to mention her. We think
that the correct rule is that the words of the will must show, as above pointed out, that the
testator had the person omitted in his mind, and, having her so in his mind, had omitted
to make any mention of her."
pointed out, that the testator had the person omitted in his mind, and, having her so in his
mind, had omitted to make any mention of her.
7. We are not able to say with the degree of certainty required by the rule we employ that
the words of the will indicate that the testator intentionally omitted the appellant from its
provisions. The only language in the will which can be said to favor such construction is that
contained in paragraph 2:
We see nothing else in the will that can be used as a legitimate inference in this respect.
The learned trial court, in a concise and able written decision, which we find in the record,
places stress upon the particular and complete plan of distributing all of the property pursued
by the testator, and the effect upon this plan if it was not intended by the clause in paragraph
2 to disinherit appellant. We do not attempt to summarize the reasoning of the court for fear
of misstating it. The following, we think, taken from the opinion, will disclose it correctly.
The court, after stating that it appeared from the objection that the deceased left no wife or
child other than the said Lucy, continued:
Bearing this fact in mind, the conclusion then becomes likewise irresistible that at the
time deceased made his will, and inserted said clause in it, and then disposed of all his
property with considerable detail to others, he had the said Lucy in mind and intended by said
clause to disinherit her. Any other construction would render his whole will a nullity except
for the purpose of naming his executors, for, if her contention be true, the others named in the
will would inherit nothing. If such be not the true construction of the will, the court would be
forced to take the extremely improbable view that a normal man of sound and disposing
mind, and not under restraint or undue influence, stating in his will that he had never been
married and had no children, and with considerable particularity disposing of all of a large
and valuable estate, not to a wife or children, but to others, who would take nothing if
Lucy be a pretermitted child, did, through a mere oversight, perform such an important
transaction entirely uselessly except for the nomination of his executors.
disposing of all of a large and valuable estate, not to a wife or children, but to others, who
would take nothing if Lucy be a pretermitted child, did, through a mere oversight, perform
such an important transaction entirely uselessly except for the nomination of his executors. At
least the court would be forced to the position of saying that the question is so doubtful that
extrinsic evidence should be received going to the intention of the testator at the time he
made his will.
We think the scheme of distribution can have no bearing upon the question. It evidences
nothing more than the interest of the testator to so dispose of his property. It is entirely
consistent with the presumption raised by the statute that appellant was unintentionally
omitted from the will. The same disposition would doubtless have been made if appellant had
been forgotten by the testator, or if he had believed her dead, or for any reason did not have
her in mind when he executed his will. How can we indulge an inference that, because he did
not forget his sisters in making his will, he did not forget his child? In other words, his intent
to dispose of his property in the manner in which he did in no wise tends to prove that he did
not forget his daughter, or through some misapprehension omit her from his will, which
considerations constitute the basis for the interposition of the statute.
The only object of the statute is to protect the children against omission or oversight,
which not infrequently arises from sickness, old age, or other infirmity, or the peculiar
circumstances under which the will is executed. Payne v. Payne, 18 Cal. 291-302; Coulam v.
Doull, 133 U. S. 216-233, 10 Sup. Ct. 253, 33 L. Ed. 596.
Counsel for respondents have cited Coulam v. Doull, supra, as authority for their
contention that extrinsic evidence is admissible under the statute upon the question involved,
and they claim also that in this decision and in the case it affirmed, Coulam v. Doull, 4 Utah,
267, 9 Pac. 568, the disposition of the property in the will was recognized as a factor
bearing upon the question of whether the omission from the will was intentional.
recognized as a factor bearing upon the question of whether the omission from the will was
intentional. We have read the case with attention, but do not understand that either court
considered the clauses in the will bestowing on the wife all of the property of the testator as
evidence tending to show an intentional omission of the children. The clauses of a will
disposing of property to persons named might be so worded as to furnish evidence of an
intention to omit a child from the testator's bounty, but the mere disposition of property to
others, as in this case, can bear no such inference.
That the testator was of sound and disposing mind, and not under restraint or undue
influence, we must assume, as the learned trial court did, but the utmost effect that we can
give this condition is that he was competent to make a will and did so freely and voluntarily,
and it has no tendency to show his state of mind concerning appellant. We cannot perceive
how the matters which were regarded by the trial court as elements for consideration add any
force to the clause in paragraph 2 of the will.
Counsel for respondents contend that the declaration in paragraph 2 of the will discloses
an intention to omit appellant. They argue that, as the clause, I have never been married, by
necessary implication, negatives the parentage of legitimate children, the clause, that I have
no children, must have been put in the will for the purpose of disavowing the parentage of
illegitimate children, and with the intention of omitting appellant from the will. Any other
construction, they insist, will result in treating the latter clause as surplusage, and thus do
violence to the rule that every word or phrase should be given effect, and harmonize with the
rest of the will, if possible to do so without destroying the general intention. Giving full force
and effect to the rule, we are carried no further than to conclude that testator intended to
include illegitimate children in his declaration as to children. We cannot go further and
declare with the certainty required that the testator, when he disclaimed the parentage of
any children, legitimate or illegitimate, had appellant in his mind and intentionally
omitted her from the provisions of his will.
with the certainty required that the testator, when he disclaimed the parentage of any children,
legitimate or illegitimate, had appellant in his mind and intentionally omitted her from the
provisions of his will. There is too much doubt involved in such a construction. When the
testator said, I have no children, and it appears that he had a child, how can it follow as a
conclusive deduction of reasoning that he did not forget his child?
Stress is placed by counsel for respondents upon the rule that the intention of the testator
must be ascertained, if possible, and given effect. The intention of the testator as to the
disposition of his property is expressed in clear and unambiguous language. He intended to
dispose of his property as detailed in his will, but it is not possible to give effect to this
intention by reason of the statute concerning pretermitted children in the absence of language
in the will indicating clearly and unequivocally the intent to omit appellant from its
provisions.
8. It is urged that under a statute the same or similar to section 6216 evidence extrinsic is
admissible to show whether a child or the issue of any deceased child was intentionally
omitted from a will. While the question is not before us, we deem it advisable to state that the
weight of authority supports this contention. See Coulam v. Doull, supra; In Re Peterson's
Estate v. Eustance, 49 Mont. 96, 140 Pac. 237, Ann. Cas. 1916a, 716, and note on pages 718,
719.
The judgment of dismissal is reversed, and the case remanded.
I concur in the foregoing opinion. It is said that the use by the testator of the sentence, I
do hereby declare that I have never been married and have no children, is proof positive of
the fact that he had his child in mind. This is the premise from which it is argued that the
judgment must be affirmed. If we accept the above premise as correct, affirmance of the
judgment must inevitably follow.
premise as correct, affirmance of the judgment must inevitably follow. But I think it
erroneous to assume any such premise. The only inference to be drawn from the sentence
quoted is that the testator had the general subject of children in mind. It may be that he had
the general subject of children in mind, and at the same time have forgotten that he had this
particular child. If such can possibly have been the fact, how can we say that it appears from
the face of the will that he did or that he did not forget her? The language of the will is not
ambiguous; it is clear, definite, and certain; so devoid of ambiguity that it is not subject to
construction. Testator sought to state two propositions: (1) That he had never been married;
and (2) that he had no children. What can be clearer and more free from doubt? But simply
because he made the two unambiguous statements can we say that it clearly appears from the
face of the will itself that he had appellant in mind? Might we not as well assume, in the face
of the admitted fact that the statement of testator that he had no children was not true, that he
had in reality forgotten the existence of the child? Is it not as fair and reasonable to draw this
inference as to draw the inference that he had the child in mind and intentionally failed to
provide for her? If this be so, while there is no ambiguity in the language of the will, to use
the words of Fuller, C. J., in Coulam v. Doull, 133 U. S. 216, 10 Sup. Ct. 253, 33 L. Ed. 596,
an ambiguity may be said to have been created by operation of the statute, as to whether the
claimant was intentionally omitted. This being the situation, there is only one way in which
the intention of the testator can be ascertained, and that is by a consideration of all the facts
and circumstances surrounding the testator which can throw any light upon the question: Did
the testator have the claimant in mind at the time he made the will?
This view is not in conflict with the rule declared by the Supreme Court of Missouri in
Beck v. Metz, 25 Mo. 70, and adhered to in subsequent decisions (Pounds v. Dale, 4S Mo.
Dale, 48 Mo. 270), wherein it was held that an allusion in a will to our child or children
was sufficient to show that the testator had his children in mind, and that a failure to provide
for them was intentional. The distinguishing feature between the two cases is that in the
Missouri case the testator expressly alluded to his children, showing that he had not forgotten
them, whereas in the instant case the testator states that he had no children, while the fact is
that he did have a child.
If I am correct that an ambiguity exists, it follows that testimony may be heard to show the
real intention of the party. As sagely said by Chief Justice Fuller in Coulam v. Doull, 133
U. S. 216, 10 Sup. Ct. 253, 33 L. Ed. 596:
If it must appear upon the face of the will that the omission was intentional, the words
inserted in the statute were superfluous, for, if it did so appear, the child could not take,
notwithstanding the provision that in case of omission it should take, inasmuch as the latter
provision was only inserted to give the omitted child a share, not against the intention of the
testator, but because of the presumption of an oversight.
I am aware that in opposition to this view it will be said that the Supreme Court of
California has held that oral testimony cannot be considered in arriving at the intention of the
party, and that, as our statute was taken from California, we should follow the rule there laid
down. In the first place, our statute was enacted in 1862, prior to its construction by the
California court. Furthermore, as pointed out by my associate, the great weight of authority is
contrary to that construction.
I dissent.
This proceeding is grounded upon a petition, improperly called objection to petition for
distribution of an estate, filed in a probate proceeding on the part of Lucy Peggy Parrott
Arzaga, a half-breed Indian woman, the object of which is to establish her status as the
legally adopted illegitimate daughter of Matt A.
object of which is to establish her status as the legally adopted illegitimate daughter of Matt
A. Parrott, deceased, and to obtain a decree adjudging her to be a pretermitted child of said
deceased, who died testate in said county, and entitled to take the entire property of his estate
as if the testator had died intestate.
Upon the filing of her petition, the executors and beneficiaries named in the will (which
had been admitted to probate) interposed their defense to the petition by demurrer, and for
grounds of demurrer alleged that the will of the deceased, appended to, exhibited with, and
made a part of the petition, shows upon its face that the omission of the testator to provide for
the petitioner was intentional. The court sustained the demurrer and rendered judgment of
dismissal of the proceeding. The petitioner brings the case to this court upon appeal from said
judgment.
In the state of the pleading, the defense to the proceeding was properly interposed by
demurrer. Where the facts constituting a defense affirmatively appear on the face of the
petition, the defense may be interposed by demurrer without the necessity of a plea or answer.
21 R. C. L. 505.
The petition is so framed as to raise the single inquiry of whether the testator died intestate
as to appellant. By reason of the statute in regard to pretermitted children (Rev. Laws, 6216),
both sides on this appeal seem to concede that, if there is any provision in the will to show
that appellant was present to the mind of the testator when he wrote, or caused to be written,
his will, the statute affords no protection if provision is not made for her. In Re Callaghan,
119 Cal. 573, 51 Pac. 860, 39 L. R. A. 689. It must, however, be understood that because of
the policy of the law heirs cannot be disinherited upon mere conjecture, and when the testator
intends to disinherit them he must indicate that intention clearly, either by express words or
by necessary implication, imputing, not natural necessity, but so strong a probability that an
invention to the contrary cannot be supposed.
strong a probability that an invention to the contrary cannot be supposed. Lynes v. Townsend,
33 N. Y. 561; 40 Cyc. 1412; 28 R. C. L., par. 190, p. 229. Where, however, the intention to
disinherit an heir is expressed in plain language, or by necessary implication, it must be
carried into effect. 40 Cyc. 1412. It is true the purpose of construction, as applied to wills, is
to discover the intention of the testator. That intention, however, is not that which existed in
the mind of the testator, but that which is expressed by the language of the will. 28 R.C. L.,
par. 174, p. 215. Applying these principles to the will in hand, what is the result? By the first
clause the testator directed his executors to pay all his just debts and funeral expenses. The
second clause, which has given rise to this controversy, is in the following words:
By the remaining clauses the testator makes complete disposition of his whole estate,
which is said to be of the value of $50,000.
My associates are of the opinion that, looking to the will itself, the question of whether
appellant's omission from the will was intentional or unintentional is so much involved in
doubt that it cannot be judicially decided. I am impressed that they are driven to this
conclusion by the arguments of counsel on both sides that clause 2 of the will, standing alone,
unexplained and unqualified, does or does not show that appellant's omission was
unintentional. As their opinions indicate that the case will have to be tried de novo, I shall,
out of fairness to the parties, do no more than express my reasons for sustaining the will.
It is a well-known canon applicable to the construction of wills:
That merely negative words are not sufficient to exclude the title of the heir or next of
kin. There must be an actual, valid and effectual gift, to some other definite object."
definite object. Lynes v. Townsend, supra; Rauchfuss v. Rauchfuss, 2 Dem. (N. Y.) 273;
Hitchcock v. Hitchcock, 35 Pa. 393; 2 Williams on Executors, p. 838.
There is not doubt that clause 2 is a negative expression, containing negative language,
and that the testator made an actual, valid, and effectual gift of all his property to other
definite objects. The language of the clause imports that it was inserted upon great
deliberation, after meditation and reflection upon the subject of who and what were the
objects and subjects of the testator's bounty. We are not concerned with the motive behind the
clause. To ascertain its meaning and legal effect, it must be interpreted in connection with the
context, and interpreted so as to receive some meaning and to be given some effect, rather
than to be inoperative. It is not a capricious declaration, and is not, as is unwisely suggested, a
pharisaical declaration to exalt the testator's virtue in life, or to shield his good name after
death from his meretricious relation with an Indian woman, nor is it to be interpreted as a
libel upon his own progeny.
The testator, being an unmarried man when he declared in his will that he had no children,
could not possibly have had in mind any but illegitimate children. A bachelor cannot be the
progenitor of any other class of children. As the appellant has brought herself within the class
intended, and she being the only child reputed to the testator who fills the description of
children intended by him, it furnishes strong evidence of the state of the testator's mind
toward her, his only child, when he deliberately wrote into his will I do hereby declare that I
have never been married and that I have no children. In this situation, it is a mental or
psychological impossibility for the testator to have negatived in his will the paternity of his
own child without that child being brought to his recollection. As soon as he wrote the clause,
he immediately proceeded to make an actual, valid, and effectual gift of all his property to
others. My conclusion, therefore, is that it is not merely to be presumed, but is inevitably
implied, from the very act of inserting clause 2, supplemented by the disposition of his
whole estate to others, that the testator designed by its negative language to exclude
Lucy Peggy Parrott Arzaga from his will, and, in my opinion, the will should stand.
that it is not merely to be presumed, but is inevitably implied, from the very act of inserting
clause 2, supplemented by the disposition of his whole estate to others, that the testator
designed by its negative language to exclude Lucy Peggy Parrott Arzaga from his will, and, in
my opinion, the will should stand. But, as my associates have taken a different view of the
subject, the judgment must be reversed.
Per Curiam:
Rehearing denied.
___________
45 Nev. 341, 341 (1922) Rickey v. Douglas Milling & Power Co.
[No. 2507]
DORA DEAN RICKEY, FRANCES VIVIAN RICKEY, CELIA EVALINA RICKEY,
MILDRED GENEVIEVE THOMAS, and DORA DEAN RICKEY, as Guardian Ad
Litem of Verona Angelica Rickey, a Minor, Respondents, v. DOUGLAS MILLING
AND POWER COMPANY (a Corporation), Appellant.
[204 Pac. 504; 205 Pac. 328]
1. Appeal and ErrorJudgment Roll and Transcript of Trial Proceedings Not Sufficient
Statement Unless Settled Under Old Practice.
A purported statement on appeal, consisting of two volumes, one containing the judgment roll and other
papers, which was certified by the clerk, and the other containing the proceedings at the trial certified by
the reporter, cannot be considered a statement on appeal, since neither has been settled nor agreed upon as
required by the old practice concerning statements on appeal.
2. Exceptions, Bill ofMust Be Settled by Judge or by Stipulation.
A volume containing a transcript of the proceedings had at the trail, certified by the reporter, cannot be
considered as a bill of exceptions where it was not settled or allowed by the judge or the court, or by
stipulation of the parties as required by law.
3. Exceptions, Bill ofPurported Bill Not Containing Evidence, and Not Certified Held,
Insufficient.
Documents designated bills of exceptions, signed and verified by the attorneys for appellant, and
purporting to contain objections and exceptions at the trial, but not containing the evidence, and not settled
or approved by the trial judge or court, or by stipulation of the parties, did not form a bill of exceptions.
4. Appeal and ErrorDenial of New Trial Not Reviewable without Bill of Exceptions.
Where there is no bill of exceptions in the record, an order denying a motion for new trial cannot be
reviewed on the merits, and an appeal from such order will be dismissed.
1. Appeal and ErrorDismissal for Want of Proper Certificate to Bill of Exceptions Is Not
Technical.
The dismissal of an appeal and affirmance of the judgment below because the bill of exceptions was not
authenticated by a certificate of the trial court or judge or by a stipulation of the parties, as required by act
of March 16, 1915 (Stats. 1915, c. 142), sec. 5, is not based upon a technicality, but was due to failure to
comply with mandatory provision of law.
2. Appeal and ErrorGeneral Allegations in Petition for Rehearing that Decision Violated
Constitutional Provisions Can Be Disregarded.
General allegations in the petition for rehearing that the decision of the supreme court deprives appellant
of its property, without due process at law, that it is contrary to the law of the land and to the United States
Constitution, without pointing out wherein the decision would have the effect alleged, can be ignored on
account of their generality.
3. Appeal and ErrorBrief Cannot Be Filed on Petition for Rehearing.
Under supreme court rule 15 no brief can be filed in support of a petition for rehearing, nor is any
argument, except such as may be contained in the petition and reply thereto, permissible.
4. Appeal and ErrorRehearing Cannot Be Granted on Contention Not Urged in Original
Hearing.
A point which was not urged at the original hearing in the supreme court either in the brief or in the oral
argument does not entitle the appellant to a rehearing.
5. Appeal and ErrorLegislature Can Regulate Mode of Exercising Constitutional Right of
Appeal.
The constitutional right of appeal, based upon the provisions conferring appellant jurisdiction on the
supreme court, may be regulated by the legislature as to the time and manner of taking on appeal, so long
as the regulations do not unreasonably restrict the right.
6. Exceptions, Bill ofAct Regulating Allowance of Bill of Exceptions Does Not
Unreasonably Restrict Right of Appeal.
The statute requiring a bill of exceptions to be allowed by the court in which the action was tried, or by
the judge, or by agreement of the parties, is not an unreasonable restriction of the right of appeal, but is a
salutary requirement, calculated to acquaint the appellate court with the true status of the controverted
questions.
Appeal from First Judicial District Court, Douglas County: Frank P. Langan, Judge.
Action by Dora Dean Rickey and others against the Douglas Milling and Power Company.
Judgment for the plaintiffs, and defendant appeals from the judgment, and from an order
denying its motion for new trial. Appeal from the order denying the motion for new trial
dismissed, and judgment affirmed. Petition for rehearing denied.
Geo. A. Montrose and A. Grant Miller, for Appellant:
All papers and documents in the case are before the court. They are contained in two
volumes. One consists of the judgment roll, bills of exception filed in the court below, and
decision on motion for a new trial; the other contains the duly certified transcript of the
official reporter. There is also on file the assignment of errors. All things necessary have been
done in the perfection of the appeal.
The fundamental principles of justice require that every citizen be heard in the courts of
law upon the merits of his controversy. All statutes regulating procedure should be interpreted
from that view-point. State v. Haight, 91 N. W. 93; State v. Stimpson, 62 Atl. 14; Holden v.
Hardy, 169 U. S. 366: Twining v. New Jersey, 211 U. S. 78.
The people have never delegated to either the state or the federal government the power to
deprive a person of his property without due process of law. Paulsen v. Portland, 19 Pac. 450;
State v. Haight, supra; Ulman v. Baltimore, 28 Atl. 141. Not everything that passes under the
form of statutory enactment can be considered the law of the land.
the law of the land. Martin v. Dick, 24 Am. Rep. 661. A state cannot make everything due
process of law which by its own legislation it declares to be such. Burdect v. People, 36 N.
W. 948.
The act of 1915 (Stats. 1915, p. 164) did not in terms repeal the method formerly in
practice of taking an appeal. In determining the intent of the legislature no implication should
be drawn that is contrary to the principles of fundamental justice.
We find, however, a transcript of the whole testimony and all of the proceedings at the
trail, with the exceptions taken at the trial, duly certified by the trial judge. This constitutes a
sufficient bill of exceptions to bring the testimony before this court. Stark v. Commission,
204 Pac. 151.
Platt & Sanford, for Respondents:
The bill of exceptions and the statement on appeal, not being in accordance with the
statute, should be stricken from the files and the appeal dismissed. Stats. 1915, p. 164. The
act specifies with much particularity how and when exceptions may be taken, how they may
become a part of the record, how to be prepared and served, and what may be included
therein to be reviewable on appeal from the judgment or order denying the motion for a new
trial.
* * * This court has repeatedly held that, where the method of appeal is prescribed by the
statute, it must be followed. Gill v. Goldfield Con. M. Co., 176 Pac. 784.
The memorandum of errors filed in the lower court before the submission of the motion
for new trial may not serve the function of a bill of exceptions. Ward v. Silver Peak, 39 Nev.
89.
The failure of appellants to bring up the errors based upon any ground for new trial by a
statement or bill of exceptions has deprived them of the right to have their case considered
upon its merits. Mexican D. & D. Co. v. Schultz, 201 Pac. 548.
This is an appeal from a judgment and from an order denying a motion for a new trial.
Respondents moved to dismiss the appeal from the order, upon the grounds set out in their
notice of motion. Briefly stated, these grounds are as follows: That there is on file in this
cause no statement on appeal or bill of exceptions properly settled, allowed, approved, or
certified to be correct by the judge of the court in which the action was tried or by the court,
as required by law. Respondents also moved to strike the purported statement on appeal and
bill of exceptions, on the same grounds.
1. What appellant contends is as sufficient record in this case upon which its appeal from
the judgment and order denying its motion for a new trial can be maintained consists of two
volumes, labeled, respectively, Statement on Appeal. Volume 1 is certified by the clerk of
the court in which the action was tried, and contains the judgment roll and other papers.
Volume 2 is a transcript of the proceedings had and of the testimony given at the trial,
certified by the reporter pro tempore of the court to be a full, true, and correct statement of the
testimony given and proceedings had in said court upon the trial of the action. The
designation of volumes 1 and 2 as statement on appeal is a misnomer, for neither has been
settled nor agreed upon as required by the old practice concerning statements on appeal.
2. Volume 2 cannot be considered as a bill of exceptions, because it has not been settled
and allowed by the judge or court, or by stipulation of the parties, as required by law.
3. In addition to the judgment roll, and other papers which have no bearing upon the
motion before us, volume 1 contains three documents, denominated, respectively, Bill of
Exceptions and Supplemental Bill of Exceptions. These are signed by the attorneys for the
appellant, and purport to contain objections made by counsel for appellant, rulings of the
court thereon.
and the exceptions taken to such rulings. They are sworn to by one of the attorneys for
appellant. None of these so-called bills of exceptions purports to contain the evidence
adduced at the trial, nor has any of them been settled or approved by the trial judge or the
court or by stipulation of the parties.
4. As there is no bill of exceptions in the record on appeal, this case is controlled by the
decision in Mexican Dam and Ditch Co. v. Schultz, 45 Nev. 260, 201 Pac. 548. We there
held, on an appeal from an order denying a motion for a new trial, that the failure of
appellants to bring up the errors based upon any grounds for a new trial by a statement or bill
of exceptions deprived them of the right to have their case considered upon the merits.
On the authority of this holding, therefore, the motion to dismiss the appeal from the order
denying the motion for a new trial is granted.
As to the appeal from the judgment, we perceive no error in the judgment roll, and the
judgment is affirmed.
1. Appellant has filed a petition for rehearing. In the petition it has seen fit to lay stress on
the contention that the decision of this court dismissing the appeal and affirming the
judgment is based upon a technicality. No assertion could be more contrary to the fact.
Appellant's loss of a hearing on the merits was not due to the application of any technical rule
of procedure, but to the failure of its counsel to comply with a plain, mandatory provision of
law, whereby the errors claimed to have been committed by the court below could be
reviewed by this court.
By force of statute a bill of exceptions is the only means whereby error not appearing upon
the face of the judgment roll can be reviewed by the appellate court. A bill exceptions
becomes such only when it is settled and allowed by the judge, or court, or by stipulation of
the parties.
stipulation of the parties. Under the old practice, as we pointed out in the original opinion, the
statutory rule for authenticating a statement on appeal was the same. None of the papers
appearing in the transcript on appeal in this case, and claimed to be bills of exceptions, was
settled or allowed by the trial judge, or court, or by stipulation of the parties. This appears
from the record itself, and from the admission of counsel, who claims that no such settlement
and allowance is necessary. The claim is groundless, and to allow it would be subversive of
our legal system of bringing errors to this court on appeal.
By an act of the legislature approved March 16, 1915 (Stats. 1915, c. 142), a bill of
exceptions may be prepared as to any decision, ruling, or order made during three different
stages of an action or special proceeding. Section 1, as amended by the legislature of 1919
(Stats. 1919, c. 237), provides for a bill of exceptions as to errors claimed to have been
committed after the filing of the complaint and before trail. Section 2 provides for a bill of
exceptions as to errors alleged to have been made from the time the action or special
proceeding is called for trial, to and including the entering of final judgment. Section 6
provides for bills of exceptions after final judgment. In each case the statute requires that the
bill of exceptions shall be settled and allowed by the judge, or court, or by stipulation of the
parties. The act of 1915 permits any party at his option to submit the transcription of the
proceedings to the court for allowance and settlement as a bill of exceptions. In this regard
section 5 of the act provides:
Sec. 5. In all cases where an official reporter is appointed by the court, under authority of
law, or by agreement of the parties, a transcription of the shorthand report of the proceedings
in any action or special proceeding, when certified by said reporter to be a full, true and
correct transcription of such proceedings, may, at the option of any party, be submitted to the
court for allowance and settlement, as the bill of exceptions required under the provisions of
this act, and the court or judge shall thereupon attach the certificate as herein provided,
whereupon such bill of exceptions shall be and become a part of the record."
required under the provisions of this act, and the court or judge shall thereupon attach the
certificate as herein provided, whereupon such bill of exceptions shall be and become a part
of the record.
The certificate required is mentioned in section 1 of the acta certificate to the effect
that such bill of exceptions is correct and has been settled and allowed.
Counsel for appellant did not comply with these provisions of the statute. In volume 2 they
simply present a transcription of the proceedings and testimony certified to by the reporter,
and maintain that that is sufficient. That it is not sufficient is shown by the provision of the
statute to which we have referred.
2-5. It is set forth in general terms in the petition for rehearing that the decision of this
court deprives appellant of its property without due process of law; that it is contrary to the
law of the land, and contrary to the provisions of the United States Constitution. These are
mere allegations, and we should be justified in ignoring them on account of their generality. It
is not pointed out in the petition wherein the decision of this court would have the effect
alleged. True, counsel for appellant request the privilege of filing a brief upon the allegations
made, but this request must be denied for the reason that such practice is prohibited by rule 15
of this court. No argument except such as may be contained in the petition and reply thereto is
permissible on a petition for rehearing. We feel justified in assuming, however, that appellant
intended to assert that the decision of the court had the effect alleged, in that it deprived
appellant of the right of appeal guaranteed by the constitution. This point must have been
overlooked on the original hearing, for it was not urged, either in counsels' brief or in the oral
argument, and for this reason a rehearing could not be granted, even though there was merit
in the contention. Beck v. Thompson, 22 Nev. 419, 41 Pac. 1; Brandon v. West, 29 Nev. 135,
85 Pac. 449, 88 Pac. 140; Nelson v. Smith, 42 Nev. 312, 176 Pac.
Nev. 312, 176 Pac. 261, 178 Pac. 625; In Re Forney's Estate, 43 Nev. 242, 184 Pac. 206, 186
Pac. 678. The point is without any merit, however, and we will briefly indicate our views
upon it. The question is strictly analogous to the one determined by this court in Coffin v.
Coffin, 40 Nev. 345. A motion to dismiss the appeal in that case was granted for failure to
serve and file an assignment of errors as required by section 13 of said act of 1915. Upon the
point made by appellant, that to sustain the motion would be to deprive him of his
constitutional right of appeal, this court said:
It is true that the constitution gives the right of appeal, and the legislature, under the
pretense of prescribing forms, cannot deprive parties of substantial rights. * * * But it is
equally true that the constitutional right of appeal is to be enjoyed and exercised subject to the
regulations of law and practices of the court.
6. Our constitution merely confers appellate jurisdiction upon the supreme court. It does
not prescribe the mode by which an appeal to it may be taken. The legislature, therefore, has
full power to prescribe such regulations as to the time and manner of taking an appeal as may
not unreasonably restrict the right. It cannot be said that a legislative enactment requiring a
bill of exceptions to be settled and allowed by the court in which the action was tried, or the
judge, or by agreement of the parties, is an unreasonable restriction of the right of appeal. On
the other hand, it must be conceded to be a wise and salutary requirement, fully calculated to
acquaint the appellate court with the true status of the controverted questions as they arose in
the court below.
The petition for rehearing is denied.
____________
45 Nev. 350, 350 (1922) Golden v. McKim
[No. 2092]
JAMES GOLDEN, Appellant, v. H. A. McKIM,
Respondent.
[204 Pac. 602]
1. Appeal and ErrorStatute Held Not to Provide For Retention of Jurisdiction by Supreme
Court until Filing of Remittitur with Clerk of Lower Court.
Rev. Laws, 5361, providing that party to whom costs are awarded by appellant court may have an
execution therefor on filing a remittitur with the clerk of the court below, does not provide for retention
by supreme court of jurisdiction until a remittitur is filed with the clerk of the lower court; the sole
purpose of the statute being to fix the conditions upon which an execution may be demanded by one who
recovers costs in the supreme court.
2. CourtsRule of Supreme Court Has Same Force as Statute.
A rule of the supreme court has the same force and effect as a statute.
3. RecordsClerk of Lower Court Presumed to Have Filed Remittitur Received.
Clerk of lower court, having received remittitur without objection or protest, will be presumed to have
received it for filing, and to in fact have filed it.
4. RecordsDocument Is Filed when Deposited with and Received by Proper Officer for
Filing, with Payment of Necessary Fee if Demanded.
The placing of a document in a proper receptacle, with a file number or other notation of it having
been filed, is not a condition precedent to the filing thereof, but the document is filed when it is deposited
with and received by the proper officer for filing, and the necessary fee is paid, if demanded; the placing
of document in proper receptacle with a file number or other notation being merely evidence of its having
been filed.
5. RecordsDuplicate Remittitur or New Remittitur Nunc Pro Tunc Not Issued where
Remittitur Was Filed with Clerk of Lower Court, but Has Been Lost.
Where remittitur was filed with clerk of lower court, but could not be found among the records and
files of the court, a duplicate original remittitur or a new remittitur nunc pro tunc will not be issued by the
supreme court.
Application for order directing clerk to issue duplicate original remittitur or a new
remittitur nunc pro tunc. Application denied. (Sanders, C. J., not participating.)
J. B. Dixon, for Appellant:
The issuing of a remittitur does not divest the supreme court of jurisdiction of the cause. It
must be delivered to the clerk of the lower court, by him received for filing, and it must be
regularly filed and entered in the record book of his office. The lower court does not reacquire
jurisdiction of the cause until the remittitur has been regularly filed and entered in the court
records. Burkle v. Luce, 1 N. Y. 239; Martin v. Wilson, 1 N. Y. 240; Hosack v. Rogers, 7
Paige, 108; Judson v. Gray, 17 How. Pr. 289; Grogan v. Ruckle, 1 Cal. 193; Mateer v.
Brown, 1 Cal. 231; Roland v. Kreyenhagen, 24 Cal. 52; 2 Hayne, sec. 293.
A paper is filed when it is delivered to the proper officer and by him received for filing.
Papers left in the clerk's office and not accepted by him as part of the record are not filed as
required by law. 15 C. J. 973.
The power to order the restoration of a lost or destroyed record is vested exclusively in
the court whose record it is, and therefore the application must be made to that court. 19
Am. & Eng. Ency. Law, 560.
Courts have inherent power to restore their lost and destroyed records. 13 Ency. Pl. & Pr.
372, 15 C. J.406, 34 Cyc. 607, 8 Am. & Eng. Ency. Law, 28, 19 Am. & Eng. Ency. Law, 559,
17 Ency. Pl. & Pr. 914.
This is an application for an order directing the clerk of this court to issue a duplicate
original remittitur or a new remittitur, nunc pro tunc. The application is based upon the
ground that the original remittitur has been lost, and cannot be found among the records and
files of the trial court, and for the further reason that it was never filed with the clerk of said
court.
The files of this court show that a remittitur issued herein on the 14th day of April, 1916;
that the clerk mailed the same to the clerk of the trial court, and thereafter received a receipt
therefor from the clerk of said trial court.
thereafter received a receipt therefor from the clerk of said trial court.
This is a case in which the respondent recovered a judgment in the trial court, which was
reversed on appeal to this court, the opinion having been filed June 22, 1914 (37 Nev. 205,
141 Pac. 676). A duly verified cost bill was filed with the clerk of this court on July 2, 1914,
wherein appellant claims cost in the sum of $416.12. The nature of the present application
presupposes the proper issuance of the remittitur on April 14, 1916.
Counsel for appellant contends that this court still has jurisdiction of the case, and hence
should order the clerk to issue another remittitur. To sustain this contention our attention is
directed to section 5361 of Revised Laws of 1912, which reads:
Whenever costs are awarded to a party by an appellate court, such party may have an
execution for the same on filing a remittitur with the clerk of the court below. * * *
1. It is appellant's theory that this court does not lose jurisdiction until a remittitur is filed
with the clerk of the lower court, and it is said that the statute just quoted sustains this view.
We do not take this view of the statute. The sole purpose of the statute in question is to fix the
conditions upon which an execution may be demanded by one who recovers costs in this
court. This does not seem to be debatable. But, if counsel's contention be correct, we think the
showing made justifies the conclusion that the remittitur which was issued was in fact filed
with the clerk of the lower court. Section 5360 of the Revised Laws reads:
When judgment is rendered upon the appeal, it shall be certified by the clerk of the
supreme court to the clerk with whom the judgment roll is filed or the order appealed from is
entered. In cases of appeal from the judgment, the clerk with whom the roll is filed shall
attach the certificate to the judgment roll and enter a minute of the judgment of the
supreme court on the docket against the original entry.
attach the certificate to the judgment roll and enter a minute of the judgment of the supreme
court on the docket against the original entry. In cases of appeal from an order, the clerk shall
enter at length, in the records of the court, the certificate received, and minute against the
entry of the order appealed from a reference to the certificate, with a brief statement that the
order has been affirmed, reversed, or modified, as the case may be, by the supreme court on
appeal.
Rule 16 of this court reads:
Where a judgment is reversed or modified, a certified copy of the opinion in the case
shall be transmitted, with the remittitur, to the court below.
2-4. This statute and the rule, which has the same force and effect as a statute, make it the
duty of the clerk to transmit a remittitur to the clerk of the lower court after final disposition
of a case appealed, and the statute mentioned imposes upon the clerk of the lower court
certain duties upon receiving such a remittitur. The clerk of the lower court actually received
the remittitur in this case, transmitted a receipt therefor to the clerk of this court, and, so far as
appears, actually placed thereupon his indorsement of its having been filed. As to this,
however, there is no showing one way or the other; but, having received it without objection
or protest, we are justified in presuming that he received it for filing, and in fact did file it.
The fact that it was afterwards mislaid or lost does not alter the situation. The placing of a
document in a proper receptacle, with a file number or other notation of it having been filed,
is not a condition precedent to the filing thereof. Such acts are only evidence of its having
been filed. A document is filed when it is deposited with and received by the proper officer
for filing, and the necessary fee is paid, if demanded. Hook v. Fenner, 18 Colo. 283, 32 Pac.
614, 36 Am. St. Rep. 277; Hilts v. Hilts, 43 Or. 162, 72 Pac. 697; Wilkinson v. Elliott, 43
Kan. 50, 23 Pac. 614, 19 Am. St. Rep.
Am. St. Rep. 158; Manhattan Co. v. Laimbeer, 108 N. Y. 578, 15 N. E. 712; Beebe v.
Morrell, 76 Mich. 114, 42 N. W. 1119, 15 Am. St. Rep. 288; 19 Cyc. 529.
It is said in 25 C. J. at page 1124:
The word filed' has a well-defined meaning, signifying delivery to the proper officer and
by him received to be kept on file.
5. When the conditions we have mentioned have been complied with, all has been done
that can be done by one desiring to file a document. The act of placing a file number upon it,
marking it filed, placing it in a proper receptacle, recording it, or doing whatever else may be
necessary, devolves upon the public official. He is elected and paid for performing the duties
of the office, and is presumed to do his duty. When a person desiring to have a document
filed has done all that he can do to accomplish that purpose, and the officer actually accepts
the document for filing, it would be contrary to public policy to hold that it is not filed. To do
so would be to put a premium on carelessness, to say the least. It is clear that, when the clerk
of this court made out the remittitur, and transmitted it to the clerk of the lower court, he did
all that he could do, and it is evident that, when the clerk of the lower court receipted for it, he
did so with the purpose and intention of making disposition of it as required by law. This, we
think, disposes of the contention made. We do not deem it our duty to point out a remedy. For
the reason given, the application should be denied.
We do not wish to be understood as holding that before this court loses jurisdiction the
remittitur must be actually filed. There is respectable authority to the contrary. Fischer v.
Lukens, 41 Cal. App. 360, 182 Pac. 967. We do not find it necessary to determine the point.
Incidentally, we think it well to call attention to the fact that the records and files show that
the opinion reversing the judgment in this case was filed on June 22, 1914. The cost bill was
not filed until July 2, 1914, whereas rule 7, as it then read, provided that it be filed and
served within five days after the decision of a case.
and served within five days after the decision of a case. Furthermore, there is no proof that a
copy of the cost bill was ever served.
Application denied.
Sanders, C. J., not participating.
____________
45 Nev. 355, 355 (1922) Goldsworthy v. Johnson
[No. 2451]
W. E. GOLDSWORTHY, Appellant, v. D. S.
JOHNSON, Respondent.
[204 Pac. 505]
1. Appeal and ErrorCorrect Judgment Not Reversed for Erroneous Reason.
If the judgment is right on any theory, it will not be reversed, though the trial judge rendered it on an
erroneous theory.
2. Husband and WifeWords Allow and Appropriate to Her Own Use Need No
Construction.
In Rev. Laws, 2169, providing that, when the husband has allowed the wife to appropriate to her own
use her earnings, they are her separate property, the words allows and appropriate to her own use are
to be given their everyday ordinary meaning which a layman would attach to them, and call for no
construction or interpretation.
3. Husband and WifeEvidence Held to Show Wife Appropriated Earnings to Her Own Use.
Evidence that a wife went to another city when her husband was unemployed and there obtained
employment, and that after paying her living expenses she deposited the surplus of her earnings in her
name in a savings account and subsequently used it for the purchase of Liberty bonds, held to show that
the wife had appropriated her earnings to her own use.
4. Husband and WifeHusband Allows Wife to Appropriate Earnings by Not Exercising
Control Over Them.
Since Rev. Laws, 2160, gives the husband the entire management and control of the community
property, the fact that the husband failed to exercise the active control and management thereby vested in
him over the earnings of his wife, permitting her to use them as she chose without objection or question,
shows he allowed her to appropriate them to her own use so that they became her separate property,
under Rev. Laws, 2169.
5. GiftsEssentials of Gift Causa Mortis Stated.
The essentials of a gift causa mortis are that it be made in anticipation of the near approach of death, by
an actual or symbolical delivery by the donor, or at his express request, of personal property to the donee,
or to some one in his behalf, subject to the right in the donor, implied by law, to revoke the gift in case of
his recovery.
6. GiftLaw Does Not Look with Disfavor on Gifts Causa Mortis.
Though gifts causa mortis are closely scrutinized because of the ease with which fraud may be
perpetrated, and must be established by clear, convincing, and satisfactory proof, the courts regard such
gifts when so established with as much favor as they do a bequest or a devise under a will.
7. GiftsSymbolical Delivery Sustains Gift Causa Mortis.
The rule that constructive or symbolical delivery is sufficient to sustain a gift causa mortis is well
recognized in this country.
8. GiftsEvidence Held to Show Gift Was in Contemplation of Death.
Evidence that the claimed gift causa mortis was made, when the alleged donor was afflicted with a
cancer, from which she dies within three days, and that several days prior to her death the donor had sent
for friends in the belief that she was going to die, held to show the gift was made in contemplation of death,
or at least to sustain the finding of the trial court to that effect.
9. GiftsWritten Declaration of Gift and Order to Bank to Deliver Bond Held Sufficient
Delivery.
Where a woman in contemplation of death signed and delivered to the donee a written declaration that
she desired the donee to have her Liberty bonds in payment for services rendered by him, and likewise
gave him an order on the bank which held the bonds to deliver them to the donee, which order was written
on the back of a receipt given by the bank for the purchase price of the bonds, there was a delivery
sufficient to sustain the gift, since it was as effective a delivery as the donor was physically capable of
making.
10. TrialConclusion Not Objected to May Be Considered.
Where a witness was permitted to state her construction of the donor's language without objection on that
ground, the trial court was justified in considering such evidence, particularly when it was against the
witness's interest, because the bond which she testified was given to defendant had been previously
bequeathed to witness.
11. GiftsDeath Before Actual Possession under Symbolical Delivery Does Not Defeat Gift.
Where bonds were given by a dying woman by the execution of a written statement to that effect and of
an order on the bank in which the bonds were held for their delivery to the donee, the gift was
perfected at the time of such delivery, subject only to the condition that the donor did
not recover, and is not defeated by the fact that the donee did not take actual
possession of the bonds under the order until after the donor's death.
the donee, the gift was perfected at the time of such delivery, subject only to the condition that the donor
did not recover, and is not defeated by the fact that the donee did not take actual possession of the bonds
under the order until after the donor's death.
12. WitnessesLegatee Held Not Party to Subsequent Gift of Property to Another.
One to whom bonds had been bequeathed by their owner is not a party to a subsequent transaction
whereby the bonds were given to another so as to render her incompetent to testify that the donor had
stated she had given the bonds to the other, especially since such testimony was apparently against the
interest of the witness.
13. GiftsWritten Statement of Gift Held Not to Show Intended Sale.
An instrument executed by the owner of bonds stating that it was her desire that a person named therein
should have the bonds in payment for the services rendered by him, accompanied by an order for delivery
of the bonds to him, is not ineffective as a gift causa mortis because it shows a sale, and not a gift, was
intended.
Action by W. E. Goldsworthy against D. S. Johnson. Judgment for defendant, and plaintiff
appeals. Affirmed.
Cooke, French & Stoddard, for Appellant:
The court erred in permitting respondent to testify as to the donor's physical condition, and
as to what she had told him about it three days before her death. No person shall be allowed
to testify: 1. When the other party to the transaction is dead. Rev. Laws, 5419. The alleged
gift causa mortis was clearly a transaction. The statute plainly prohibited respondent from
testifying. Reinhart v. Echave, 185 Pac. 1070; Forsyth v. Heward, 170 Pac. 21; Gage v.
Phillips, 21 Nev. 146; Torp v. Clemons, 142 Pac. 1115; Roney v. Buckland, 4 Nev. 44.
Testimony of a donee claiming under an alleged gift causa mortis as to what donor said not
admissible. Hecht v. Schaffer, 85 Pac. 1056. Gifts causa mortis cannot be proved by mere
hearsaydeclarations of the alleged donee."
alleged donee. 20 Cyc. 1245, 1248; 40 Cyc. 2299, 2314, 2317, 2321, 2322, 2323.
It is essential to the validity of a gift causa mortis that it be under apprehension of death
from some existing disease or other impending peril. 20 Cyc. 1235; In Re Gordon's Estate,
40 Nev. 300; Taylor v. Harmorsin, 53 N. E. 584; N. W. Co. v. Collamore, 62 Atl. 652; Zeller
v. Gordan, 38 Pac. 640.
The earnings of the deceased were community property just as were the earnings of her
husband, and as such appellant had the absolute power of disposal thereof, * * * as of his
own separate property. Crow v. Van Sickle, 6 Nev. 146; 21 Cyc. 1659. The wife's interest in
community property is in the nature of a mere expectancy, and in any event possesses none of
the attributes of an estate, either in law or equity. In Re Williams Estate, 161 Pac. 741;
Packard v. Aravanus, 17 Cal. 525; Sadler v. Niesz, 31 Pac. 630; 21 Cyc. 1659. The wife has
no right of disposal of community property (21 Cyc. 1668; Tyron v. Sutton, 13 Cal. 490;
Coleman v. Vollmer, 31 S. W. 413), the surviving husband taking all of said property (Rev.
Laws, 2164; In Re Clarke, 17 Nev. 124; 21 Cyc. 1703).
Because of the unlimited trust and confidence between husband and wife, the mere deposit
in a bank by the wife, in her own name, of community moneys, consisting wholly or mainly
of her earnings, with the knowledge of the husband, affords no ground for presuming a gift to
the wife. McDermott's Appeal, 51 Am. Rep. 526; Bachman v. Killinger, 55 Pac. 418; 1
Bishop, Married Women, sec. 742; Cox v. Jones, 45 N. Y. 557.
The presumption is against gifts, strong evidence being required to establish them. There
must be a preponderance of clear, explicit and convincing evidence in support of every
element needed to constitute a valid gift. 20 Cyc. 1223, 1246. Gifts causa mortis are against
the policy of the law, and are to be regarded with great scrutiny because of the opportunities
for fraud.
scrutiny because of the opportunities for fraud. Albro v. Albro, 65 S. W. 592; Chambers v.
McCreery, 106 Fed. 364; Monahan v. Monahan, 70 L. R. A. 936.
The death of the donor revoked any authority for the delivery of the bonds. 2 C. J. 546,
secs. 179, 181; Duckworth v. Orr, 36 S. E. 150; Trubey v. Pease, 16 Ann. Cas. 370. The
banking corporation was not a trustee for respondent; no trust was contemplated by deceased;
an imperfect gift cannot be converted into a trust. Trubey v. Pease, supra.
A gift causa mortis is made by a person who is at the time under expectation of imminent
death, but the donor may revoke it before he dies. The gift takes place absolutely, if
unrevoked, only upon the death of the donor. 20 Cyc. 1228; Noble v. Garden, 79 Pac. 834.
There was no delivery, the order for the bonds being a mere direction for their delivery.
Pullen v. Bank, 71 Pac. 83; Woods v. Sturges, 77 South. 186. Delivery is an indispensable
requisite, without which the gift fails, regardless of consequences. Liebes v. Battman, 54
Pac. 179; Allen v. Allen, 74 Am. St. Rep. 442. In order to effect a gift inter vivos or causa
mortis there must be a parting by the donor with all present and future legal power and
dominion over the property. Edwards v. Bank, 190 Pac. 59; Meyer v. Meyer, 64 South. 420;
12 R. C. L. 959.
Deceased did not intend to make a gift, but to make payment for services. Knight v. Tripp,
54 Pac. 267. There was a contemplated sale, rather than a gift. Hart v. Ketchum, 53 Pac. 931;
Daniel v. Smith, 17 Pac. 683. A transaction indicating an intent to sell cannot establish an
intent to give. 20 Cyc. 1231; Beaver v. Beaver, 15 Am. St. Rep. 531. The writing must
disclose a clear intention to pass a present title, and not a mere promise to give at some future
time. 12 R. C. L. 958, 959. Where constructive delivery is relied on, there must be
unequivocal evidence of donor's intent. Waite v. Grubb, 73 Pac. 206.
The delivery of written instruments does not constitute symbolical delivery. Comaita v. Kyle,
19 Nev. 38.
Hugh Henry Brown and Walter Rowson, for Respondent:
Gifts causa mortis are closely scrutinized by the courts, but the law does not disapprove of
such gifts; they are scrutinized to prevent fraud. 12 R. C. L. 956. If they are satisfactorily
proved, it is the duty of the court to give effect to them. Sharpe v. Sharpe, 90 S. E. 34.
Where there is no doubt about the facts, it would be a legal wrong and gross injustice to
refuse to act upon them fairly and without hesitation. Ellis v. Secor, 19 Am. Rep. 178.
The wife may, without the consent of her husband, convey, charge, incumber, or
otherwise in any manner dispose of her separate property. Rev. Laws, 2163. The bonds were
the separate property of the wife. If the funds were separate property, the bonds were such. 21
Cyc. 1642. The wife's earnings may become her separate property by the husband's waiver of
his rights thereto, and this waiver of his marital rights may be presumed from his conduct.
21 Cyc. 1396.
The earnings and accumulations of the wife, * * * while she is living separate and apart
from her husband, are the separate property of the wife. Rev. laws, 2168.
The several legal elements necessary to constitute a valid gift causa mortis are sufficiently
proven. 12 R. C. L. 963; Williams v. Guile, 6 L. R. A. 367.
Delivery of the bonds was proven. It was a symbolical delivery; it could not be otherwise.
Such a delivery is good. When a writing evidences a clear intention to give, slight
circumstances as to delivery have been held sufficient. 12 R. C. L. 957-960; Ellis v. Secor,
supra; Devol v. Dye, 24 N. E. 246; Hogan v. Sullivan, 114 Iowa, 456; Sessions v. Moseley, 4
Cush. 87; Emery v. Clough, 63 N. H. 552; Walker v. Foster, 30 Can. S. C. 299.
The power of the bank to deliver the bonds was not revoked by the death of the donor.
There was no conditional delivery; the order to deliver was absolute. A gift causa mortis is
operative to transfer the title and vest it in the donee at once. Death does not revoke the power
to deliver, where the instruction is unconditioned. Caylor v. Caylor, 52 N. E. 465; Ruggles v.
Lawson, 13 Johns. 285; Hathaway v. Payne, 34 N. Y. 92; Michener v. Dale, 23 Pa. 59.
Intent of the donor to make a gift causa mortis is proven. Ellis v. Secor, supra.
The appellant having been the plaintiff below, the parties will be referred to in this opinion
as plaintiff and defendant.
The plaintiff is the surviving husband of Margaret L. Goldsworthy, who died on May 9,
1918. They were married on December 25, 1910. Upon their marriage they took up their
residence at the Mercury mine at Ione, in Nye County, where the plaintiff held a position as
superintendent of that property. They continued to reside together at the place mentioned until
1913 (prior to which time the mine closed down and the plaintiff lost his position), when it
was decided that the wife should seek employment elsewhere. She went to Tonopah, where
she soon secured employment, leaving the plaintiff at their home at the mine. She remained at
Tonopah for some months, during which time she earned about $900. She opened an
individual account with two San Francisco banks, and placed all of her earnings during the
period mentioned in those accounts. Later she put some of them in a postal-savings account at
Tonopah, the balance being in savings account in San Francisco. In 1917 she used the money
so earned in the purchase of Liberty bonds, which were held for her by the Tonopah Banking
Corporation. Prior to the purchase of the bonds the Mercury mine resumed operations, and
the plaintiff procured his old position.
tions, and the plaintiff procured his old position. Mrs. Goldsworthy thereupon returned home.
In the fall of 1917 she was taken seriously ill, and it was deemed advisable that she be
removed to a hospital in Reno. while it seems that she never fully recovered, she returned
home, where she died.
On May 6, 1918, three days prior to her death, she wrote, signed, and delivered to the
defendant two instruments, as follows:
It is my wish that D. S. Johnson have the Liberty bonds to have and to be used as he may
deem best in payment of services rendered me.
Margaret L. Goldsworthy.
Tonopah Banking Corp.: Please deliver to D. S. Johnson $1,000 bonds called for by this
receipt.
Margaret L. Goldsworthy.
The latter instrument was written upon the back of a receipt executed by the Tonopah
Banking Corporation for money paid by the deceased on account of the bonds.
This is an action to recover the bonds; plaintiff claiming the same as community property.
The defense to the action is that the conduct of the deceased amounted to a donatio causa
mortis. The lower court ordered judgment in favor of the defendant; hence this appeal.
The first contention we are called upon to determine is whether the Liberty bonds were the
separate property of Mrs. Goldsworthy at the time she executed the instruments quoted. The
determination of this question involves the correct application of section 2169 of the Revised
Laws of 1912 to the facts, since, generally speaking, all property acquired through the
earnings of either spouse is community property. The section mentioned reads:
When the husband has allowed the wife to appropriate to her own use her earnings, the
same, with the issues and profits thereof, is deemed a gift from him to her, and is, with such
issues and profits, her separate property.
1. The question is: Did the plaintiff allow the deceased to appropriate to her own use
her earnings? If he did, we must construe the same as being her separate property. In this
connection it is strenuously insisted that the trial judge based his conclusion upon an
erroneous theory, and that therefore we must reverse the judgment. Assuming it to be true that
the lower court was in error in the reasons given in its opinion for the judgment rendered, we
would not be justified in reversing the judgment if a proper application of the law to the facts
demands its affirmance. If the judgment is right upon any theory, even though it be upon one
never thought of by the trial court, and is sustained by the findings and evidence, it is our duty
to affirm it, for in so doing we do not have to lend approval to the mental processes of the
trial court. We must determine whether the deceased appropriated her earnings to her own
use, and, if so, whether it was by allowance of her husband.
This is a case of first impression in this court, and no authority has been called to our
attention in which a similar state of facts, applicable to a statute like ours, has been
considered; hence we must pioneer in reaching a conclusion.
2. Much is said as to the proper meaning to be given to the word allow and the phrase
to appropriate to her own use of the statute in question. The arrival at a proper conception
of the intention of the legislature in adopting this section of our statute should be our sole
aim. In view of the fact that under our statute, generally speaking, all property acquired by the
husband and wife during coverture is community property, we must determine whether the
facts and circumstances of this case bring it within the exception contemplated by the statute
quoted. We think the words allow and appropriate should be given their ordinary
meaning, the meaning which the layman would attach to them in everyday use. They need no
interpretation; there is no room for construction. The only question is: What was the real
attitude of the parties toward the earnings of Mrs.
was the real attitude of the parties toward the earnings of Mrs. Goldsworthy? This is the test
to be applied in reaching a conclusion in this case, and there is no occasion for a finespun
interpretation of simple words. Lawyers and courts too often complicate that which is plain.
There is no sense in attributing to a legislature in enacting general statutes affecting the
domestic and financial affairs of husband and wife any hidden or mysterious intention in the
use of common words. With these ideas in mind and with the further thought to guide us that
the utterances, or lack of utterances, and the conduct of the parties coeval with the period
during which the money was being earned, and their subsequent conduct, are the surest
guides in ascertaining their intentions, let us inquire whether the earnings of the deceased
were appropriated to her own use, and, if they were, whether such appropriation was pursuant
to the allowance of the plaintiff.
The deceased left Ione with the avowed purpose of earning money. That she did earn
several hundred dollars within a few months thereafter, with the knowledge and consent of
her husband, is not denied; that she never turned over to her husband one dollar of the money
so earned is not questioned; that her husband repaid to her $50 which she had paid to a
merchant to apply upon the indebtedness of about $75 contracted by the plaintiff during her
absence is admitted; that she kept the money so earned, except as paid out for her individual
use, during her absence in an interest-bearing account in savings banks to her personal credit,
though there was a joint community account, is without doubt; that she invested the same
early in 1917 in Liberty bonds is admitted; and that the plaintiff made no inquiries as to what
she was doing with her earnings or in the least, by word or action, manifested the slightest
interest in the same, is conceded. In the light of this situation, did the deceased appropriate
her earnings to her own use, and did the plaintiff allow her to do so? 3.
3. The act of which the section in question is a part is entitled An act defining rights of
husband and wife (Rev. laws, 2160), section 6 of which provides that the husband has the
entire management and control of the community property. By this section an active duty is
imposed upon the husband as to the community property. He is not only presumed to know
the law, but, if we may draw an inference from the testimony of the plaintiff, we would be
justified in saying that as a matter of fact the plaintiff actually knew his rights as to the
earnings of his wife. Notwithstanding this, he never manifested the least interest as to what
disposition she was making of her earnings. Naturally he has his explanation. He testified that
he considered that he and his wife were partners, and hence that he still retained his interest.
By not turning over her earnings to the management and control of her husband, and by
diverting them to other channels, keeping them under her own dominion and control, in her
private interest-bearing savings-bank accounts, and by using them from time to time in
whatever manner she saw fit for her own use and benefit, was in our opinion an
appropriation.
4. The statute imposing an active duty upon the husband to control and manage the
earnings in question, failure to assume that obligation, permitting his wife to exercise her own
pleasure in the matter, without objection or question, was certainly an allowance of her doing
so, so far as he was concerned. To allow her to appropriate her earnings required no express
assent; his conduct in acquiescing was enough. Where an active duty is imposed, failure to
assert one's rights over a period of more than three years, in the face of the situation here
presented, certainly justified the conclusion that he assented.
This conclusion is not only based upon sound reasoning, but by analogy the rule of
emancipation of a child by its parent amply sustains our position. The earnings of the wife
are a part of the community property, of which the husband has the sole management
and control.
the wife are a part of the community property, of which the husband has the sole management
and control. The father is entitled to receive the earnings of a minor child, to use them as he
may choose, but this right, which is as definite, certain, and positive as is a husband's right to
receive, manage and control his wife's earnings, may be forfeited by emancipating the child,
which may be manifested by a failure to assert his right to receive its earnings and by
acquiescing for a sufficient length of time in a course of conduct on the part of the child
which shows his intention to emancipate it. What may constitute an emancipation depends
upon the peculiar facts and circumstances of each particular case. No case can be a definite
guide to a court in another case. And such is the fact in ascertaining whether a husband
allows his wife to appropriate her earnings to her own use. In Flynn v. Baisley, 35 Or. 268,
57 Pac. 908, 45 L. R. A. 64, 76 Am. St. Rep. 495, which was a suit to subject certain property
conveyed by Baisley to his two sons to the payment of a debt of the father, it was claimed that
the property was conveyed to the sons in consideration of certain moneys earned by them
during their minority, which earnings in fact belonged to the father, and hence there was no
consideration for the transfer. The court in deciding the point said that whether the money
paid by the sons to the father belonged to the father depended upon whether he had in good
faith emancipated the sons. There is not in the case cited a detailed statement of the facts and
circumstances tending to show emancipation, but it does appear that the father permitted his
sons to earn money and to retain control of the same, one of the boys having acquired a bank
account of $500. The court held that the circumstances of the case showed an emancipation.
In Cloud v. Hamilton, 11 Humph. (Tenn.) 104, 53 Am. Dec. 778, it was held that, while
the father was entitled to the custody of his son and to receive his earnings, such rights might
be waived, as might appear by express agreement or be implied from facts and
circumstances.
agreement or be implied from facts and circumstances. The court in Burdsall v. Wagoner, 4
Colo. 261, after reciting the facts, sums up as follows:
While it is clear that as a rule the father is entitled to the earnings of his son during
minority, yet it is equally clear that this right may be relinquished, and where such minor son
contracts on his own account for his services, and the father knows of it and makes no
objection, there is an implied assent that the son shall be entitled to his earnings. Morse v.
Welton, 6 Conn. 551; Whiting v. Earle, 3 Pick. 201; Nightengale v. Worthington, 15 Mass.
273.
The rule is stated as follows in 20 R. C. L. p. 609:
An implied emancipation results when the parent, without any express agreement,
impliedly consents by his acts and conduct that the child may have his own time and the
control of his earnings, or such consent is inferred from or shown by circumstances.
Without reviewing or quoting from other authorities, we cite the following as sustaining
the general rule: Note to Culberson v. Alabama Const. Co., 9 Ann. Cas. 507; Rounds Bros. v.
McDaniel, 133 Ky. 669, 118 S. W. 956, 134 Am. St. Rep. 482, 19 Ann. Cas. 326, and note
330.
The next question is: Was there a valid gift causa mortis? In this connection we will
dispose of the assertion that the death of the deceased before the delivery of the bonds
revoked the authority of the bank to make delivery. We do not intend to follow counsel for
appellant in their line of argument because they do not go directly to the question involved,
but take a circuitous route, across which many obstacles to a clear comprehension of the real
question are thrown.
5. The respondent relying upon a gift causa mortis, we need only to determine if under the
law and the evidence the finding of the trail court to the effect that there was such a gift is
justified. The essentials of a gift causa mortis are few and simple. As a rule, such a gift is
made under circumstances and conditions which preclude a more formal transaction.
a gift is made under circumstances and conditions which preclude a more formal transaction.
The essentials are that it be made in anticipation of the near approach of death, by an actual or
symbolical delivery, by the donor, or at his express request, of personal property, to the
donee, or to some one in his behalf, subject to the right in the donor, implied by the law, to
revoke the gift in case of his recovery.
Gifts causa mortis seem to be of very ancient origin. They are clearly sanctioned by the
Roman civil law having been borrowed, as some commentators say, from the Greeks, in
proof of which it is said that an instance of a perfect gift causa mortis is related in the
Odyssey (book 17, v. 78), where Telemachus makes presents to Piraeus if he be slain, and
another by Hercules in the Aleceses of Euripides (v. 1020). While these may have been
typical of gifts causa mortis, whether they were inspired and sustained by the jurisprudence of
their time does not seem clear. That such gifts, however, found justification in the Roman
law, as stated, is shown by no less an authority than Justinian, as is seen by the following
quotation from a translation by Walker:
A gift causa mortis is one made in expectation of death; when a person gives upon
condition that, if any fatality happen to him, the receiver shall keep the article, but that if the
donor should survive, or if he should change his mind, or if the donee should die first, then
the donor shall have it back again. These gifts causa mortis are in all respects put upon the
same footing as legacies. For since there was a difference of opinion amongst lawyers
whether such a donation ought to be equivalent to a gift or to a legacy, possessing as it did
some of the characteristics of each, so that some of them classed it with one and some with
the other, a constitution was issued by us ordaining that it should be classified with legacies
in almost all respects, and should be solemnized in the manner which our constitution laid
down. To put it briefly, a gift causa mortis is when a person wishes that he himself should
have the gift in preference to the donee, but that the donee should have it in preference
to the heir."
when a person wishes that he himself should have the gift in preference to the donee, but that
the donee should have it in preference to the heir. Walker's Just. p. 119.
See, also, Cooper's Just. (3d ed.) p. 100; Sandars Just. (13th ed.) p. 147, note.
6. It matters not much to us what the rule was under the Grecian and Roman
jurisprudence, and we call attention to the fact that such gifts seem to have been sanctioned
by those systems to show the lack of foundation for the frequent assertion that they are not
favored. Because of the ease with which fraud may be perpetrated, they are closely
scrutinized and must be established by clear, convincing, and satisfactory proof, but when so
established the courts regard them with as much favor as they do a bequest or devise under a
will. Blackstone, in book II, c. 32, of his great work, in discussing the rights of things, after a
consideration of what he terms formal legacies, says:
Besides these formal legacies, contained in a man's will and testament, there is also
permitted another deathbed disposition of property which is called a donation causa mortis.
And that is when a person in his last sickness, apprehending his dissolution near, delivers or
causes to be delivered to another the possession of any personal goods (under which have
been included bonds and bills drawn by the deceased upon his banker) to keep in case of his
decease. This gift, if the donor dies, needs not the assent of his executor; yet it shall not
prevail against creditors, and is accompanied with this implied truth, that, if the donor lives,
the property thereof shall revert to himself, being only given in contemplation of death, or
causa mortis. This method of donation might have subsisted in a state of nature, being always
accompanied with delivery of actual possession. * * *
The first case which came before the courts of England in which an alleged donation causa
mortis was involved was that of Jones v. Selby {Finch's Prec. in chapter 300), decided in
1710, wherein the contents of a trunk were involved.
was that of Jones v. Selby (Finch's Prec. in chapter 300), decided in 1710, wherein the
contents of a trunk were involved. The facts of that case show that there was no delivery of
the trunk, but merely of the key to it. Lord Hardwicke, in Ward v. Turner, 2 Ves. Sr. 431,
interpreted the decision in Jones v. Selby as sustaining a symbolic delivery, but a careful
reading of the opinion seems to indicate that the judgment was reversed for other grounds,
and that the question of symbolic delivery was not considered. But we confess that Lord
Hardwicke was better situated to arrive at a correct interpretation of the opinion than we are.
That learned jurist, however, in Ward v. Turner, supra, expresses his disapproval of a
symbolic delivery, yet he seems to have recognized the force of such a delivery, for he says:
The only case wherein such a symbol seems to be held good is Jones v. Selby; but I am of
opinion that amounted to the same thing as delivery of possession of the tally, provided it was
in the trunk at the time.
In speaking of Lord Hardwicke's attitude on symbolic delivery, Kent says:
Symbolical delivery is very much disclaimed by Lord Hardwicke in this case, and yet he
admits it to be good when it is tantamount to actual delivery; and in Smith v. Smith, it was
ruled that the delivery of the key of a room containing furniture was such a delivery of
possession of the furniture as to render the gift causa mortis valid. C. J. Gibbs said that was a
confused case; but the efficacy of delivery, by means of the key, was not a questionable fact.
Kent's Comm. (14th ed.) p. 730.
While it may be that there is some confusion among the early English authorities as to
whether or not there could be a symbolic delivery, the great weight of authority in this
country clearly sustains such a delivery; the main point of divergence apparently being
whether or not the facts of a particular case justify a holding that there was a symbolic
delivery. For instance, it was held in Ridden v. Thrall, 125 N. Y. 572, 26 N. E. 627, 11 L. R.
A.
L. R. A. 684, 21 Am. St. Rep. 758, that a donation causa mortis might be made of deposits in
bank by mere delivery to the donee of the bank-book showing the deposits, the court saying:
The gift was consummated by the delivery of the books, and no other formality was
needed to constitute the actual delivery of the bank deposit needful to vest the possession and
title in the donee. In savings banks in this state such deposit books are issued as evidence of
the indebtedness of the banks. Withdrawals of deposits are entered in the same books, so that
the deposit book always, with the addition of any interest, shows the actual state of the
accounts between the depositor and the bank and the whole indebtedness of the bank. It
answers the same purpose in the case of a savings bank that is answered by a certificate of
deposit in the case of other banks. The decisions are not entirely harmonious as to the
sufficiency of the mere delivery of such deposit books to constitute a valid gift, either inter
vivos or causa mortis. But the general rule in England and in this country, and particularly in
this state, is that any delivery of property which transfers to the donee either the legal or
equitable title is sufficient to effectuate a gift; and hence it has been held that the mere
delivery of nonnegotiable notes, bonds, mortgages, or certificates of stock is sufficient to
effectuate a gift.
On the other hand, in Thomas's Admr. v. Lewis, 89 Va. 1, 15 S. E. 389, 18 L. R. A. 170,
while the court held that the delivery of the possession of a savings-bank pass-book did not
consummate a donation causa mortis, it did expressly recognize that there might be a
symbolic delivery, in saying:
Delivery is essential; it may be either actual, by manual tradition of the subject of the gift,
or constructive, by delivery of the means of obtaining possession. Constructive delivery is
always sufficient when actual, manual delivery is either impracticable or inconvenient.
In Stephenson's Admr. v. King, 81 Ky. 425, 50 Am. Rep. 173, it was held that the delivery
to the donee of a key to a desk in which was a letter from the donor's agent containing a
statement that he held a note and bond belonging to the donor, accompanied by words of gift,
constituted a good symbolic delivery of the note and bond.
The decision which seems to go further than any other which has come to our attention to
sustain an alleged constructive delivery is that of McKenzie v. Steeves, 98 Wash. 17, 167
Pac. 50. This was a case of a gift of an automobile. It seems that there was neither an actual
delivery of the automobile nor a writing, order, or other document directing its delivery to the
donee. In fact, the gift seems to have been based entirely upon the statement of the donor,
who was then on the verge of dissolution in a hospital, in the following words: I give you my
automobile, May. The opinion says that the donee took and had charge of the automobile
for several days, but it nowhere appears from the opinion when or under what circumstances
she took charge of it.
7. In calling attention to these cases, we do not desire to be understood as approving or
disapproving any of them, but merely as pointing out that the rule of constructive or
symbolical delivery is well recognized in this country, which fact is clearly shown by
reference to all the text-writers, digests, annotators, and other authorities. See Am. & Eng.
Ency. Law (2d ed.) 1059; 20 Cyc. 1233; 12 R. C. L. 961.
8. Thus we are brought to inquire whether the facts of this case justified the finding that
there was a constructive or symbolical delivery of the bonds. Before proceeding further, we
think we may say there can be no serious question but that the evidence shows that the donor
executed the instruments in question in the immediate anticipation of the near approach of
death. She was afflicted at the time with a cancer, and died within three days. The testimony
of Mrs. Keough shows that she and another lady were sent for by the deceased several
days prior to her death, in the belief that she was going to die.
shows that she and another lady were sent for by the deceased several days prior to her death,
in the belief that she was going to die. Even if it were a doubtful question, we would not be
justified in overthrowing the finding of the trial court to the effect that the transaction took
place in anticipation of death.
9. At the time the instruments were executed the bonds were in the possession of the
Tonopah Banking Corporation, at Tonopah, Nevada, a day's journey from the place where the
donor was confined to her bed. it was physically impossible for her to deliver the bonds. She
did the next best thing; she gave an order to the bank, written on the back of the receipt which
it had given her for the money paid for the bonds, for their delivery to the donee, and
simultaneously executed and delivered to the donee the writing wherein she said: It is my
wish that D. S. Johnson have the Liberty bonds. * * * Supplementing these writings, the
donor said to Mrs. Keough that she had given the bonds to defendant.
10. As to this last statement, counsel for defendant contend that such is Mrs. Keough's
construction of the donor's language. This is true, but the testimony was not objected to at the
trial; hence we think the trial court was justified in considering it, particularly in view of the
fact that the deceased had theretofore bequeathed the bonds to the witness; and in the
conversation related by Mrs. Keough the donor informed Mrs. Keough that she had changed
her mind and given the bonds to defendant, requesting Mrs. Keough to make no trouble over
them. It is not pointed out what more the donor could have done to effectuate a perfect
donation causa mortis, and we are at a loss to conceive what further means could have been
resorted to to consummate that purpose. To our minds, the court was amply justified in its
finding that there was a gift causa mortis.
11. It is said that the fact that the instruments in writing set out herein were not presented
to the bank prior to the death of Mrs.
prior to the death of Mrs. Goldsworthy defeated the attempted gift. We think not. The gift
was complete when the instruments were delivered, subject to revocation in case of recovery.
All of the authorities contemplate that in case of a symbolical delivery the gift is complete,
subject to the condition mentioned, at the moment of the gift and symbolical delivery. To
hold otherwise would in effect nullify the holding that a symbolical delivery is equivalent to
actual delivery, and put it in the power of designing and unscrupulous persons to defeat the
intention of the donor.
12. Before proceeding further, we wish to dispose of the contention that the trial court
erred in receiving the testimony of Mrs. Keough. The objection is based upon the claim that
she was a party to the transaction between Mrs. Goldsworthy and the defendant, and that our
statute precludes the giving of evidence by a surviving party to a transaction when the other
party is dead. Clearly the statute in question has no application to the situation before us. The
object of the statute is to prevent one interested party from giving testimony when the other
party's mouth is sealed by death. In the first place, Mrs. Keough is not a party to the
transaction between Mrs. Goldsworthy and the defendant, and, though she is said to be a
beneficiary under a will executed about the time of the transaction in question, so far as
appears it would be to her benefit to see the defendant defeated in this action. From whatever
angle we view the situation, we must hold that there is no justification for the objection,
whether from that of being a party to the transaction or that of one who would be benefited by
testifying in behalf of defendant.
13. We come now to the contention that Mrs. Goldsworthy had no intention of making a
gift. It is said that she intended only to make a bill of sale of the bonds in question. This
attitude is based upon the language in the writing quotedthat defendant should have the
bonds in payment of services rendered me. We do not think we would be justified, in the
circumstances, in sustaining this contention.
not think we would be justified, in the circumstances, in sustaining this contention. We take it
that, while no consideration is necessary to sustain a gift causa mortis, we cannot close our
eyes to the fact that it is probable that every gift causa mortis is based upon some
consideration. Perhaps it would be more accurate to say that such a gift is prompted because
of some sentimental reason moving the donor. This sentiment may be founded upon the love
and affection of a husband for a wife, a father for his child, a lover for one whom he had
hoped to make his bride, an appreciative person for acts of kindness, or in token of the high
esteem entertained by the donor for the doneeall honorable and worthy sentiments. Indeed
it would be a strange thing for one in anticipation of the near approach of death to make a gift
without being moved to do so because of some one of the reasons which we have
enumerated. In the particular instance, in view of all the circumstances, we think the trial
court was justified in taking the view that the words in payment of services rendered me did
not import a sale, any more than would the words in token of my deep appreciation of the
many kindnesses shown me, or if the words as evidence of the esteem in which he is held
because of the services rendered me. True it is that the consideration of a sale may be an
existing indebtedness, but there is nothing in this case to indicate that there was an existing
indebtedness, or that the donor or the donee considered that any indebtedness existed, unless
it be the words which we have quoted; but we must construe those words in connection with
the other words of the writing, and in the light of the other testimony. The other words of the
writing do not indicate a sale, but rather a gift. We can imagine that it might be said that they
were the words of a woman inexperienced in such matters, who knew nothing of the use of
technical words of transfer of personal property. So might we say of the use of the words in
payment of services rendered."
services rendered. In view of the entire testimony, we would not be justified in overthrowing
the findings of the trial court to the effect that the transaction amounted to a gift to defendant,
and not a sale.
For the reasons given, the judgment is affirmed.
____________
45 Nev. 376, 376 (1922) Studebaker Co. v. Witcher
[No. 2400]
STUDEBAKER BROTHERS COMPANY OF UTAH (a Corporation), Respondent, v. A. B.
WITCHER, A. JURICH, GEORGE A. McDONALD, and BARTLEY SMITHSON,
Appellants.
[204 Pac. 502]
1. CostsSupreme Court's Order Modifying Original Judgment Held a Decision within
Court Rule as to Filing of Cost Bill.
Supreme court's final order, modifying its original judgment, held a decision within court rule requiring
cost bill to be filed within five days after the publication or notice of the decision of the cause; the
decision within such statute being the final judgment ultimately disposing of the case.
2. CostsModification of Judgment in Replevin as to Amount To Be Paid in Lieu of Return
of Goods Entitles Defendants to Costs on Appeal.
Where judgment in replevin required defendants to return automobile or pay specified amount,
modification of judgment on appeal as to the amount required to be paid in lieu of the return of the
automobile afforded defendants relief entitling them to costs, though the judgment was satisfied by the
bondsmen of one of the defendants.
Appeal, by defendants, from clerk's ruling on objection to cost bill. Reversed, with
directions.
A. Jurich, for Appellants:
Appellants having secured the relief of a modification of the judgment, they are entitled to
their costs. In the event no order is made by the court relative to the costs, * * * the party
obtaining any relief shall have his costs. Rev. Laws, 5381.
Chandler & Quayle, for Respondent:
The so-called cost bill was not filed within five days after the decision of the cause. Rule
6, Supreme Court. The purpose of the rule is to have the cost bill promptly filed. The whole
appeal on the question of costs is disposed of by the fact that the cost bill was not filed in
time.
The separate appellants obtained no relief on their appeal.
This is an appeal, pursuant to supreme court rule 6, from a ruling of the clerk upon an
objection to a cost bill.
Appellant in this matter was also an appellant to this court from an adverse judgment
rendered in the district court of White Pine County (see 44 Nev. 468, 199 Pac. 477), wherein
the court expressed its adherence to certain principles of law enunciated in the case of
Studebaker v. Witcher et al., No. 2399 (44 Nev. 442, 195 Pac. 334), from which it followed
that the money judgment against appellants should have been modified, but through
inadvertance we failed to so order. Thereafter a petition for a rehearing was filed, which was
denied (44 Nev. 468, 201 Pac. 322), though leave was granted appellants to apply for a
modification of the judgment order. Within the time allowed, appellants made a showing
justifying a modification of the original order, whereby the district court was directed to
modify its money judgment against the appellants in the sum of $150. Within five days after
the receipt of notice of the entry by this court of the order of modification of its former order,
the appellants filed with the clerk their cost bill, to which respondent filed its objections.
Before the filing of the cost bill, and on the day following the entry of the order modifying the
judgment, a remittitur was issued. In apt time, respondent filed objections to the cost bill.
Three grounds are urged in support of the objections: First, that the cost bill was not filed
within five days after the decision of said cause; secondly, that the remittitur had been already
issued and filed with the clerk of the trial court before the cost bill was filed; and, third, that
appellants obtained no relief on the appeal entitling them to costs.
Paragraph 2, rule 6, as printed in 3 Revised Laws, provides that a cost bill must be filed
within five days after the publication or notice of the decision of the cause. Personal service
of a copy of the opinion is equivalent to publication. Rule 15.
It is not intimated that the cost bill was not filed within five days from receipt of notice of
the order modifying the original judgment. It is contended, however, that the order of
modification was not a decision. What we shall say in this connection must be considered as
applying solely to the immediate situation in hand.
1. The word decision, as used in the rule mentioned, certainly was intended to apply to
the judgment of the court. It could mean nothing else; and we are equally as well satisfied that
it must be construed to apply also to the final judgmentthat is, the judgment which
ultimately disposes of the case. If such were not the fact, a party in whose favor a judgment is
rendered modifying a judgment appealed from, where no order is made to the contrary, would
be entitled to recover his costs, even though a rehearing be granted and upon final
determination the judgment appealed from be affirmed.
We know such was not the intention of the rule, and no one has had the temerity to so
contend. Why should a different conclusion be reached upon this matter? It is true that a
petition for a rehearing was denied, but in denying it the court held in abeyance the question
of a modification of the former judgment order, and upon the filing of an application to
modify the same, to which no objection was interposed, the court entered an order in
modification thereof. It is not suggested that the court did not have jurisdiction to make said
order, nor is there any intimation that for any reason it should not have been made.
any intimation that for any reason it should not have been made. We are of the opinion that to
hold that the final order mentioned was not a decision, in the sense contemplated by the rule,
would violate not only the spirit of the rule, but would result in a supertechnical interpretation
which could not be justified by good morals or by any other standard. Entertaining these
views, the court, of its own motion, when the matter was brought to its attention, recalled the
remittitur.
2. It is also said that appellants obtained no relief by the entry of the order of modification
herein. Two view-points are presented for our consideration in support of this contention:
First, that the judgment appealed from was in the alternative, requiring the return of the
automobile in question or the payment of money, and that there is no showing that appellants
had or would satisfy the judgment in money; and, secondly, that as a matter of fact the
judgment was satisfied by the bondsmen of appellant Witcher before the decision was
rendered on this appeal.
The last suggestion is, of course, not based upon anything in the record; but we cannot
refrain from saying that appellants were driven to the necessity of appealing, so far as
appears, to protect themselves. Had they not appealed, Witcher, the main defendant, having
done so, execution might have been issued as against them. Furthermore, had respondent
brought to the attention of the court the fact that the judgment had been settled by the
bondsmen of Witcher, it may be that this appeal would have been dismissed upon the ground
that the questions involved had become moot. It is too late now to say that the judgment was
settled prior to the rendition of the decision herein. It is too bad that the parties could not have
seen their way clear to so stipulate as to have obviated the necessity of prosecuting this
particular appeal pending the disposition of the Witcher appeal, saving counsel and court
considerable labor.
As to the first contention, all we need to say is that the money judgment having been
modified, we think appellants are entitled to their costs.
the money judgment having been modified, we think appellants are entitled to their costs.
Dixon v. S. P. Co., 42 Nev. 73, 91, 172 Pac. 368, 177 Pac. 14, L. R. A. 1918d, 960. So far as
the court knows, the judgment has been settled as modified.
It is ordered that the ruling of the clerk be reversed, that the tax costs in favor of appellants
in the amount claimed in their cost bill, and that a remittitur issue accordingly.
____________
45 Nev. 380, 380 (1922) Rahis v. McLeod
[No. 2403]
GUST RAHIS, Respondent, v. NEIL McLEOD,
Sheriff of Lyon County, Appellant.
[204 Pac. 501]
1. ReplevinNonconflicting Evidence Held to Justify Finding for Plaintiff.
In an action against the sheriff for possession of an automobile and damages for the detention,
evidence including a showing without conflict that plaintiff had a purchase contract on the car and had
the right to complete purchase when it was seized, and the bill of sale was made and delivered after
seizure, held to justify a finding for plaintiff.
2. ReplevinParty Purchasing Automobile on Contract and Having Right of Possession Held
Entitled to Sue for Recovery.
If plaintiff, seeking to recover an automobile seized by the sheriff as the property of another, had
merely a contract for purchase from still another party with the right of possession, until such right was
forfeited for noncompliance with the terms of the sale, it would be ample to sustain the action as against
the defendant, in view of the further fact that prior to the bringing of the action the party to whom
plaintiff had loaned or leased the automobile and for whose debt it was seized had failed to comply with
the terms of his agreement, and his right to possession had been forfeited.
3. ReplevinDamages for Detention Date from Right to Possession.
Where plaintiff was seeking recovery of an automobile and damages for its detention from a county
sheriff who had seized it for the debt of one whom plaintiff was permitting to use it in a jitney business,
and the user had violated his agreement, held, that plaintiff could recover damages for its detention only
from the time he had declared the contract with the user forfeited.
Appeal from the Eighth Judicial District Court, Lyon County: T. C. Hart, Judge.
Action by Gust Rahis against Neil McLeod, Sheriff of Lyon County. From a judgment for
plaintiff and an order denying a new trial, the defendant appeals. Affirmed.
J. Andrew Guttery, for Appellant:
Replevin is strictly a proceeding at law; it cannot be invoked as an equitable suit for the
rescission or cancellation of a contract. 34 Cyc. 354; Fredericks v. Tracy, 98 Cal. 658;
Thompson v. Peck, 73 Pac. 843.
The lessor of personal property cannot maintain trespass or trover for the injury done to
the property by a stranger during the term of the lease, and while the lessee is in actual
possession of the property. Triscony v. Orr, 49 Cal. 612; Larney v. Mooney, 50 Cal. 610.
It being primarily a possessory action, replevin cannot be sustained for the purpose of
trying the right to property. 34 Cyc. 354; Jenkins v. Ontario, 74 Pac. 466; La Vio v. Crosby,
74 Pac. 220.
In an action for the recovery of specific personal property, it is necessary for the plaintiff to
show that he is entitled to the immediate possession. Hilger v. Edwards, 5 Nev. 85.
Milton B. Badt and James Dysart, for Respondent:
The authorities cited by appellant are not repugnant to the right of plaintiff to recover. By
this action (replevin) the law intends to give a complete remedy to the party entitled to
possession, not only as to the property itself, but also in respect to damages which are the
natural result of the wrongful act. * * * The respondent was entitled to a judgment for the
return, * * * together with such damages as were necessary. * * * If a return could not be had,
she was entitled to judgment for the value, * * * together with such damages as were
necessary, with the value, to indemnify her for all certain, actual losses sustained."
her for all certain, actual losses sustained. Buckley v. Buckley, 12 Nev. 423.
Respondent, plaintiff in the district court, instituted this action to recover the possession of
a certain automobile and damages for the detention thereof. From a judgment in his favor and
an order denying a motion for a new trial, the defendant has appealed.
On June 10, 1918, the defendant levied upon the automobile under an execution against
one Haniotis, it being then used by him in the jitney business at Yerington, Nevada. This
action was commenced on July 15, 1918, and on the same day, having given bond, plaintiff
replevined the car and thereafter retained possession of it.
On the part of the plaintiff the undisputed evidence is that some time in March, 1918, he
entered into negotiations at Elko, Nevada, with one Kilgore for the purchase of the
automobile, paying in cash therefore the sum of $250, and agreeing to pay the balance at
some subsequent time; that on June 5, 1918, Kilgore executed and delivered to plaintiff a bill
of sale for the car; and that some time in April, 1918, plaintiff rented the car to Haniotis, the
execution debtor, for a period of six months, at a daily rental of $5, with the understanding
that Haniotis was to take it to Yerington and there use it in the jitney business.
The only evidence on the part of the defendant is the proof of levy under the execution
against Haniotis.
The court found that the plaintiff was the owner and entitled to the possession of the car,
and that the sheriff was in possession of the car under the execution for a period of
thirty-seven days, and assessed plaintiff's damage at $185, being at the rate of $5 per day, the
contract price between plaintiff and Haniotis.
1, 2. Appellant's theory is that the evidence fails to show that the respondent was in fact
the owner of the car, but that Kilgore was the real owner, with the right in the plaintiff to
complete the purchase, and that the bill of sale was executed merely to lay the foundation
for this action.
in the plaintiff to complete the purchase, and that the bill of sale was executed merely to lay
the foundation for this action. We think the evidence amply justified the finding of the court.
There is no conflict in the evidence, and we do not deem it necessary to review it. In any
event, if plaintiff had merely a contract of purchase from Kilgore, with the right of possession
until such right was forfeited for noncompliance with the terms of sale, such right would be
ample to sustain this action as against the defendant, in view of the fact that for some time
prior to the bringing of the action Haniotis had failed to comply with the terms of his
agreement with plaintiff, and his right to the possession of the car was declared forfeited on
July 15, the day upon which the action was instituted.
Under the contract between plaintiff and Haniotis, the latter was entitled to the possession
of the car and liable to plaintiff for the daily rental thereof. The right so acquired by Haniotis
remained in full force and effect until it was declared forfeited, which was on the day this
action was instituted. The defendant took the car, not from the plaintiff, but from Haniotis,
who was rightly in possession of it at that time, and who was entitled to the possession of it
until July 15. Hence no right of the plaintiff was invaded or infringed by the defendant until
the very day the car was replevined, which was immediately after the right of possession of
Haniotis was terminated. The car being the property of the plaintiff, and the right of Haniotis
to possession of it having been canceled before this action was brought, the plaintiff was
entitled to judgment for the possession of the car.
3. But there could have been no liability on the part of the defendant for making the levy
or holding the car pursuant thereto until the right of Haniotis to its possession had been
canceled and knowledge thereof brought to defendant's attention. It is unquestionably the law
that, where an office holds an execution against a person, he may levy upon personal property
in the possession of such execution debtor who is the apparent owner thereof, where the
officer has no actual knowledge that another person is the true owner.
possession of such execution debtor who is the apparent owner thereof, where the officer has
no actual knowledge that another person is the true owner. 35 Cyc. 1656. Public policy would
justify no other rule. This being the law, no liability in the instant case on the part of appellant
could have accrued until the right of Haniotis to the possession of the car was forfeited and
appellant notified thereof. This view is not only sustained by sound reasoning, but by analogy
finds support in the rule stated in Triscony v. Orr, 49 Cal. 612, as follows:
It is well settled that a person having neither the possession nor the right to the possession
of personal chattels cannot maintain trespass or trover for an injury done to the property.
In the instant case the plaintiff did not have the possession of the car, nor the right to the
possession thereof, until on July 15 he declared the lease held by Haniotis forfeited.
For the reasons given, it is ordered that the trial court modify its judgment in accordance
with the views expressed, and that, as so modified, the judgment appealed from be affirmed;
appellant to recover his costs on this appeal.
____________
45 Nev. 385, 385 (1922) In Re Forsyth's Estate
[No. 2524]
In the Matter of the Estate of JANE FORSYTH, Deceased, ALEXANDER C. FORSYTH,
DIXON & MILLER, WAINWRIGHT AUTO COMPANY, RUTH MACKEY, and
HOWARD McKISSICK, Appellants.
[204 Pac. 887]
1. JudgmentsDecree for Specific Performance to Convey Realty Held Joint as to all
Defendants.
In a suit by an adopted son for specific performance of an agreement of his foster parents to leave him
their property, a decree of specific performance as to the whole property against all of the defendants
including two defendants who had defaulted, was joint as to all of the defendants.
2. Appeal and ErrorDecision Reversing Case as to Defaulting and Nonappealing
Defendants Must Be Objected to, if Considered Erroneous.
In a suit for specific performance of a contract to leave plaintiff all the property belonging to deceased
persons, in which two defendants defaulted, and after a joint judgment against defendants, including those
who defaulted, an appeal was taken in which the judgment was reversed, and no modification was asked by
plaintiff as to the interest represented by defendants, who defaulted and who failed to appeal, plaintiff is
precluded, after the retrial and judgment in favor of defendants, from raising by petition to the court the
question of his rights as to the share of the defaulting and the nonappealing defendants, regardless of Rev.
Laws, 5239 and 5240, providing that a judgment may be entered against one or more of several defendants,
when no judgment could be rendered against all.
3. JudgmentStatutes Authorizing Judgment against One Defendant Construed to Prevent
Dismissal as to All Defendants when One Was Liable.
The purpose of Rev. Laws, 5239, 5240, providing that judgment may be given for or against one or more
of several defendants, when no judgment could be rendered against all, was to prevent dismissal as to all
when it appeared that one was liable.
4. StatutesLegislation Construed in Light of Purpose To Be Accomplished.
All legislation must be construed in the light of the purpose sought to be accomplished.
In the Matter of the Estate of Jane Forsyth, Deceased. In a suit by Alexander C. Forsyth for
specific performance of a contract by Jane Forsyth and her husband, both deceased, to leave
him their property, against J. H. Heward, executor of Jane Forsyth, deceased, and others, a
decree for Alexander C. Forsyth was reversed on appeal, both as to appealing defendants and
as to defendants who defaulted and who failed to appeal. Alexander C. Forsyth filed a
petition asking to be allowed the share of the defaulting and nonappealing defendants. From
an order approving the final account of the administrator, and from the decree of distribution
denying the petition of Alexander C. Forsyth and others for the share of the defaulting and
nonappealing defendants, they appeal. Appeal dismissed.
J. B. Dixon, for Appellants:
The duties and rights of the executor or administrator extend only to the preservation of
the estate and its distribution in the manner ordered by the probate court. The executor or
administrator cannot represent either side of a contest between heirs, devisees, or legatees.
Roach v. Coffey, 73 Cal. 281; Estate of Jessup, 80 Cal. 625; Goldtree v. Thompson, 82 Cal.
420; Estate of Healey, 137 Cal. 474; Estate of Sutro, 138 Cal. 81; Hayne, New Trial and
Appeal, 1072.
The judgment and decree remained in full force as to the defaulting defendants. This
court has no jurisdiction over the other parties or over the judgment in so far as it affects
them. Dick v. Bird, 14 Nev. 161. An appeal by or against a party to a judgment is absolutely
necessary to give this court jurisdiction to make any order that will be binding upon such
party, or that will affect his rights or liabilities under the judgment from which other parties to
the action have appealed. Randall v. Hunter, 69 Cal. 80; Guiterrez v. Hebbard, 106 Cal. 167;
U. S. Inv. Corp. v. Hospital, 40 Or. 523; Home S. & L. Assn. v. Burton, 20 Wash. 688;
Morgan v. Good, 94 U. S. 599: Masterson v. Herndon, 10 Wall. 416; 3 C. J. 1005; 2 Ency.
Pl. & Pr.
94 U. S. 599: Masterson v. Herndon, 10 Wall. 416; 3 C. J. 1005; 2 Ency. Pl. & Pr. 157, 184,
185, 188.
James T. Boyd and Harlan L. Heward, for Respondent:
This appeal should be dismissed and the decree of distribution sustained, appellants not
being parties aggrieved or in interest. In the former appeal two of the heirs were not joined.
Forsyth v. Heward, 41 Nev. 305. It is not necessary for individual heirs to appeal, the
executor representing all. 11 R. C. L. 161. Claimants have no separate judgment against the
defaulting defendants. Judgment was entered without proof or any findings of fact. It was
error to enter judgment in that manner. Ballard v. Purcell, 1 Nev. 342. To be entitled to
judgment by default, plaintiff must prove his case before getting a final judgment. Dowden
v. Walrus Mfg. Co., 205 S. W. 258; Bullion M. Co. v. Croesus G. & S. M. Co., 3 Nev. 336.
The decision in Forsyth v. Heward was not a reversal as to enumerate defendants, but was a
clear and sweeping reversal of the judgment and order appealed from. 4 C. J. 1204, 1206. The
judgment was a joint judgment. If Forsyth failed to make a case, his whole case failed, not a
part of it only. 1 Black on Judgments, sec. 209. It is a general rule that, in the absence of any
statute to the contrary, an entire judgment, jointly binding on several, if reversed as to one,
must be reversed as to all. 3 Cyc. 448. The judgment * * * affects the parties who did not
appeal to the same extent as to those who did. In Re Union Trust Co., 114 N. E. 1048; In Re
Schaefer's Estate, 182 N. Y. S. 732; Bullion M. Co. v. Croesus G. & S. M. Co., supra.
This is an appeal from an order approving the final account of the administrator of the
estate, and from the decree of distribution. The administrator moves to dismiss the appeal,
upon the ground that appellants have no interest in the estate, are not aggrieved parties,
and have no right to complain or to be heard.
dismiss the appeal, upon the ground that appellants have no interest in the estate, are not
aggrieved parties, and have no right to complain or to be heard.
The appellants base their claim to an interest in the estate upon assignments of one
Alexander C. Forsyth, who, it is said, was entitled to said estate because of an alleged
contract of adoption by said Jane Forsyth and her husband, and of an agreement that upon
their death he should inherit their property. Some years after the making of the alleged
agreements the husband of Jane Forsyth died, leaving all of his property to his wife. In 1913
Jane Forsyth died, leaving a will, and bequeathing and devising all of her property to certain
designated persons, and naming J. H. Heward executor of her estate. The will was admitted to
probate, and Heward qualified as such executor. Thereafter a suit was brought by Alexander
C. Forsyth, as plaintiff, against J. H. Heward, as executor of the estate of Jane Forsyth, and
against the beneficiaries under the will, to compel the specific performance of the said
agreements.
The defendant executor, and all of the other defendants except two, appeared and filed an
answer to the complaint in that action, denying the allegations as to the making of the alleged
contracts. In due time, the default of the nonappearing defendants was entered. Upon the trial
of the case the court entered a judgment and decree in favor of the plaintiff and against all of
the defendants, including those who had defaulted. The court in that case found as a fact that
Jane Forsyth and her husband
promised and agreed to adopt the plaintiff as their own, give him their own name, and that
on their death he, the said plaintiff, should become entitled to and inherit and have all of the
property of which they or either of them might be possessed at the time of their deaths.
Upon said finding the court decreed as follows:
And it is ordered, adjudged, and decreed that the said contracts or agreements so made by
the said John F.
F. Forsyth and Jane Forsyth be, and they hereby are, specifically enforced in favor of the
plaintiff, Alexander C. Forsyth. And it is further ordered and decreed that all and singular the
property owned or possessed by the said Jane Forsyth, or to which she was entitled at the time
of her death, real, personal, and mixed, be distributed to the said Alexander C. Forsyth,
plaintiff in this action. It is further ordered, adjudged, and decreed that all of the property,
real, personal, and mixed, owned or possessed by the said Jane Forsyth, at the time of her
death, be, and hereby is, vested forthwith in the plaintiff, the said Alexander C. Forsyth.
After said judgment and decree had been rendered, the appearing defendants filed a motion
for a new trial, which being denied, they appealed, and this court, upon consideration thereof,
reversed the judgment and order appealed from in its entirety. Thereafter the appellants in this
matter filed, in the matter of the estate of Jane Forsyth, a petition asking that the shares of the
two nonappearing defendants in the suit just mentioned, and whose default had been entered,
and against whom a judgment had been entered in the trial court, and who had not appealed,
be distributed to them. The court, being of the opinion that appellants had no interest in the
estate, denied their petition and distributed the estate as directed by the will, from which order
this appeal has been taken.
In his brief and oral argument, counsel for appellants (of whom he is one) says that this
court had no authority to reverse the judgment and order in the specific performance suit as to
the nonappearing parties, that the judgment of the trial court as to them is in full force and
effect, and that their share of the estate should have been distributed to the appellants.
Before disposing of this point, we simply wish to allude briefly to the contention of
counsel for appellants that the executor could not, and did not, by his appeal, bring the entire
case to this court, so as to confer upon it authority to reverse the judgment of the lower court
as to the nonappearing defendants.
court as to the nonappearing defendants. It seems to us that counsel occupies a rather
anomalous position. He made the executor of one of the parties defendant in the action for
specific performance. He not only invited him to defend the action, but forced him in. He
stood by and saw him defend in the district court, observed his performance in appealing to
this court, without protest or objection, and after a final judgment is rendered in favor of the
defendants he comes forward and says, in substance, that the executor could play no part in
the proceeding. A copy of the complaint in the action is not in the record before us, and we
cannot ascertain just what relief was asked against the executor. We assume that counsel for
appellants knew the law when that suit was brought as well as he does now, and we are
justified in assuming that he sought relief against the executor, and not merely to have the
rights of conflicting claimants to the estate determined. So far as we can tell, in the complaint
in that action the plaintiff sought to have the estate set aside to the plaintiff under a contract,
discharged of the debts of the estate and of the expense of administration. In fact, in view of
counsel's position now, such must have been his theory at that time to have warranted the
making of the executor a party defendant. Let this be as it may, we do not think the question
is a vital one, and we will not pursue it further.
We come now to consider the force and effect of the order of reversal in the specific
performance suit, the history of which is detailed in the opinion of Forsyth v. Heward, 41
Nev. 305, 170 Pac. 21. This court held that no contract such as alleged in the complaint had
been established by the evidence, by which ruling the very foundation for the judgment in the
lower court against the nonappealing as well as the appealing defendants was wiped out, and
hence it was proper that the same be reversed as an entirety. Appellants now base their claim
upon a mere naked legal right.
1. We are of the opinion that the judgment and decree as rendered in the district court was
joint as to all of the defendants. We do not see how it could very well have been otherwise, at
least as to the real estate. The plaintiff did not obtain judgment for any specific lot, tract, or
portion thereof against each of the defendants, but obtained judgment for the whole against
all of the defendants. If a possessory action had been instituted by the plaintiff upon the
judgment and decree as rendered, it must necessarily have been against all of the defendants,
for the judgment in the possessory action must have followed the judgment upon which it was
based, and the writ or order to the sheriff to dispossess the defendants must have followed the
judgment.
2. The judgment being, as it seems, a joint one, the query is: Should the order of reversal
have been as to all of the defendantsthose in default as well as the others? Authorities
sustaining the affirmative view are: In Re Union Trust Co., 219 N. Y. 537, 114 N. E. 1048; In
Re Schafer's Estate, 182 N. Y. Supp. 732; 1 Black on Judgments, sec. 209; 3 Cyc. 448. Such
was accepted as the rule in Nevada. Keller v. Blasdel, 1 Nev. 491-493. In Bullion M. Co. v.
Croesus G. & S. M. Co., 3 Nev. 336, wherein an application was made to modify a former
order reversing a judgment as an entirety, so as to make the reversal as to the appellant only,
the court said:
If such several judgments had been entered up against the several companies claiming
distinct portions of the property sued for, and only a joint judgment for costs against all the
defendants, then we are inclined to think that it might have been very proper to reverse that
portion of the judgment which related to the property specially claimed by the appellant * * *
and left the other portions of the judgment standing. But the judgment for the property being
jointly against all, the reversal as to one necessarily reverses it as to all. (Italics ours.)
But it is said that the rule thus enunciated was overthrown in Wood v. Olney, 7
Nev.109-115. The court did not have under consideration in that case a state of facts similar
to those involved in the former case, and did not allude to it, nor seek to overrule it. True, the
court says:
* * * The position that the judgment, being joint, must be reversed in toto, if not good as
an entirety, is untenable.
It is clear that this language, used in connection with the state of facts with which it was
dealing, is sound; but whether it can be interpreted as overthrowing the holding in the
Bullion-Croesus case, involving a joint judgment as to realty, is questionable. We are not so
sure but that the language quoted should be construed in the light of the rule that a decision is
an authority only for what is actually decided under the particular facts of the case. Jensen v.
Pradere, 39 Nev. 466, 159 Pac. 54.
3. Counsel for appellants does not invite our attention specifically to sections 5239 and
5240 of the Revised Laws of 1912, but from the general tenor of his argument we take it that
he possibly had in mind the general theory based upon that line of legislation. The query
arises whether it was the intention of the legislature to overthrow the well-known and general
rule to the effect that, where several persons are joined as defendants, one or more of whom
made default, and the others defend successfully upon a ground not personal to themselves,
but which goes to destroy the very basis of the action, their success in maintaining such
defense inures to the benefit of all. This rule is clearly put in Adderton v. Collier, 32 Mo. 507,
which was a case in which there were four defendants, two of whom defaulted. Said the
court:
The defense made by Mary and Sarah, which resulted in a verdict and judgment for them,
was not based upon any ground personal to themselves, but was equally available by the
other defendants, and was such as showed that the plaintiff had no cause of action.
showed that the plaintiff had no cause of action. And it is the settled law in such cases that,
after verdict and judgment for the defendant who pleads, the plaintiff cannot take judgment
against the defendants in default, for the reason that upon the whole record it appears the
plaintiff had no right of action. (Italics ours.)
The Supreme Court of Iowa, in considering this point in Morrison v. Stoner, 7 Iowa, 493,
says:
* * * If the one pleads a matter which goes to the validity of the contract, or which is a
defense for both, in its nature, on the whole or a part, and succeeds, the books hold that the
other, even though in default, takes the benefit of it. * * * We do not think that sections 1815
and 1816, or 1681 and 1682 of the code, militate with this law. (Italics ours.)
Section 1815 is the same as our section 5239, Revised Laws, above referred to, and the
other sections are similar to sections of our code. And in the very recent case of Bank v.
Jordan, 139 Iowa, 499-508, 117 N. W. 758, 761, the same court says:
* * * Where the proffered defense goes to the merits of the case or to the substance of the
contract sued upon, it may be pleaded by all of the defendants, or, if pleaded by one of them,
it inures to the benefit of all. (Italics ours.)
The Supreme Court of Appeals of Virginia, in Steptoe v. Read, 19 Grat. 1, in construing a
provision of the code of that state, similar to section 5239 of our Revised Laws, says:
The construction of this provision of the code has not been settled by this court. It would
seem however, to be clear that it applies only to cases in which some of the defendants are
discharged upon grounds of defense merely personal, and that where the ground of defense
goes to the foundation of the entire contract, the case remains as at common law. (Italics
ours.)
The same court in Harrison v. Wallton's Exr., 95 Va. 721, 30 S. E. 372, 41 L. R. A. 703,
64 Am. St. Rep. 830, adheres to the views thus expressed.
adheres to the views thus expressed. Other authorities sustaining this view are: Stapp v.
Davis, 78 Ind. 128; Miller v. Longacre, 26 Ohio St. 296, 297; Bowman v. Noyes, 12 N. H.
306; Sheldon v. Quinlen, 5 Hill (N. Y.) 441; State v. Williams, 17 Ark. 375; 23 Cyc. 808; 11
Ency. Pl. & Pr. 1074.
4. The purpose of the provisions of the code authorizing a judgment against one or more
of several defendants, when no judgment could be rendered against all, was simply to prevent
dismissal as to all when it appeared that one was liable. All legislation must be construed in
the light of the purpose sought to be accomplished. Escalle v. Mark, 43 Nev. 172, 183 Pac.
387, 5 A. L. R. 1512. While we have given some consideration to the foregoing suggested
points, because of their seeming importance, we do not deem it necessary or advisable to
decide them, and we leave them for the future consideration of the bar of the state.
We now pass to a feature of the matter which to our minds must control the court upon
this appeal. As stated, the joint judgment against all of the defendants was reversed as an
entirety. No application was made in that appeal to modify the judgment. The case was retried
in the district court, where a judgment favorable to the defendants was rendered, from which
no appeal was taken. Thereafter Alexander C. Forsyth and his assignees filed their petition in
the estate matter, setting forth the original judgment as to the non-appealing defendants, and
asking that two-sixths of the estate be distributed to them. The court denied the application.
We are of the opinion that the present appeal must be dismissed. Even if our former
judgment was erroneous, it was rendered in the exercise of jurisdiction; and, had the
respondent in that case been dissatisfied with the judgment, upon the phase now urged, an
application should have been made to modify the judgment, instead of awaiting the result of a
retrial, and then bringing the alleged error to the attention of the court in the manner now
sought to be done.
the court in the manner now sought to be done. In the Bullion-Croesus case, supra, an
application was made to modify the judgment as to the nonappealing defendants, after several
terms of the court had expired. In the concluding paragraph of the opinion, the court said:
There is no doubt but that, if there was error in the proceedings of the court below, as we
have decided, this court had the power and discretion to reverse the entire judgment as to all
the parties, rather than to modify it or only give judgment for a partial reversal. Then having
decided to reverse the judgment in whole, and not as to one of the defendants only, it is too
late now to ask for a modification of that judgment.
The appeal must be dismissed, for the reason stated; and it is so ordered.
____________
45 Nev. 395, 395 (1922) Page v. Sutton
[No. 2499]
M. M. PAGE, Appellant, v. THOMAS SUTTON,
Respondent.
[204 Pac. 881; 207 Pac. 1102]
1. Appeal and ErrorAdmission of Note of Defendant's Partner to Pay His Share of Broker's
Commission Sued for Held Not Prejudicial.
In action by a broker for a commission, where plaintiff gave oral testimony that defendant's partner
had given him a note to pay the partner's share of the commission, the admission of the note in evidence
was not prejudicial.
2. New TrialEffect of Note Established by Party Cannot Be Attacked by Him on Motion
for New Trial.
Where defendant's cross-examination established the existence of a note of defendant's partner to pay
the partner's share of a broker's commission, defendant may not question the execution of the note on
motion for a new trial.
3. Appeal and ErrorGiving Letter to Jury with Exhibits Held Not Prejudicial.
Where a broker suing for a commission testified on cross-examination that defendant's partner had
given him a note to pay the partner's share of the commission, giving to the jury by mistake a letter from
the partner to the broker acknowledging indebtedness for making the sale and the execution of the note,
in view of affidavits by the nine jurors who returned the verdict that the jury was not influenced by the
letter, was not prejudicial.
45 Nev. 395, 396 (1922) Page v. Sutton
4. BrokersBroker Held Entitled to a Commission for Sale of Mining Property which Was
Transferred to Corporation Organized by Seller and Stock Sold to Purchaser.
Where defendant agreed to pay plaintiff, a broker, a commission for selling mining property, and
defendant and others organized a corporation which took over the property, and thereafter the stock
therein, instead of the property, was sold for the same price to a purchaser with his associates whom
plaintiff had interested in the property, plaintiff was entitled to the agreed commission.
1. Appeal and ErrorNo Review of Question Presented for First Time on Petition for
Rehearing.
A question presented for the first time on petition for rehearing will not be considered.
Appeal from Sixth Judicial District Court, Pershing County; James A. Callahan, Judge.
Action by M. M. Page against Thomas Sutton. Verdict for plaintiff. From an order
granting a new trial, plaintiff appeals. Order reversed. Petition for rehearing denied.
Robins, Elkins & Van Fleet, for Appellant:
The admission of the promissory note was not error, it being an admission by persons
beneficially interested in the result of the case. 22 C. J. 333; 16 Cyc. 984. Declarations
against interest of a party beneficially interested in the result of a litigation are always
admissible. Kinnane v. Conroy, 101 Pac. 223.
The reading of the letter by the jury was not harmful nor prejudicial. The affidavits of the
jury show that it did not affect the result, they being all in support of the verdict. That the
paper in question reached the jury * * * will not justify a reversal, at least unless it be made to
appear that the jury were improperly influenced by it. Leonard v. Schall, 146 N. W. 1104. It
seems to be the rule that the affidavits of jurors may be used to support the verdict when
assailed, especially so when the affidavits relate to extrinsic matters, such as did not enter into
or form a part of the deliberations of the jury."
45 Nev. 395, 397 (1922) Page v. Sutton
the jury. Birmingham Ry. Co. v. Mason, 6 Am. & Eng. Ann. Cas. 929. Where a paper which
should not properly be with the jury during their deliberations has been sent to the jury room
through inadvertence or accident, and not through connivance or design of the prevailing
party, the verdict will not generally be set aside on that account. 16 R. C. L., sec. 113; 6 Am.
& Eng. Ann. Cas. 931; Tover v. Judd, 62 N. H. 292; Maynard v. Fellows, 43 N. H. 259;
Alcott v. Boston Co., 65 Mass. 93; Commonwealth v. Fisher, 134 Am. St. Rep. 1027; 1915b
Ann. Cas. 736; Higgins v. Los Angeles G. & E. Co., 159 Cal. 651; Swendson v. Pacific
Electric Ry., 166 Pac. 21; People v. Pyle, 185 Pac. 1019.
It makes no difference whether the purchase of the mining property was made through
stock in a corporation or directly; it was all part of the same transaction, which resulted in the
respondent accomplishing the object sought when he employed appellant. Tucker, Lynch &
Coldwell v. Hawley, 23 Cal. App. 463.
Booth B. Goodman, for Respondent:
A new trial was properly granted. A judge who tries a case should set aside the verdict
where there is a clear preponderance of evidence against it. Philpotts v. Blasdel, 8 Nev. 61.
The verdict is contrary to the evidence; the contract sued upon is secondary, and within the
statute of frauds. The promissory note was improperly admitted, and the possession of the
letter by the jury was prejudicial, which was not cured by the affidavits of the jurymen. It is a
general rule that such affidavits are not admissible to impeach the verdict. State v.
Crutchley, 19 Nev. 368. The general rule is that it is prejudicial error and a ground for
reversal to permit the jury to take with them to the jury room papers, not in evidence, which
would tend to influence the verdict; and it makes no difference that the papers were given to
the jury by mistake. 38 Cyc. 1834; Birmingham Ry. Co. v. Mason, 6 Ann. Cas. 932; Ellcot
v. Luengene, 39 N. Y. S.
45 Nev. 395, 398 (1922) Page v. Sutton
v. Luengene, 39 N. Y. S. 850; Rich v. Hayes, 54 Atl. 724. The stock of the corporation and
the property owned by it are not substantially the same. It is now universally held that shares
of stock in a corporation are personal property, and by statute in this state are expressly made
so. Page v. Walser, 43 Nev. 427. Plaintiff proved a contract concerning the physical property,
and it matters not that the corporation later owned the identical property; its transfer divested
title in the subject-matter of the contract. There is no evidence that respondent ever agreed to
pay a commission on the sale of shares of stock. 5 Fletcher, Ency. Corp. 5614, 5626.
Plaintiff was not entitled to a commission. To entitle a broker to commission upon a sale
or transaction which is actually consummated, he must show that his efforts and services
were the primary, proximate, and procuring cause thereof. 4 R. C. L. 297; Earp v. Cummins,
54 Pac. 394.
This action was instituted by appellant to recover a judgment for commissions alleged to
have been earned as a broker in procuring a purchaser for certain mining property situated
near Mill City in Pershing County. The complaint contains two counts, one upon a contract
and the other upon a quantum meruit for the value of services rendered.
Appellant contends that respondent represented that he was the owner of or controlled a
group of mining claims near Mill City, Pershing County, Nevada, which he was desirous of
selling, and that it was agreed between them that plaintiff should use his best endeavors to
procure a purchaser therefor, and that in the event of his success the defendant would pay
plaintiff a commission of 10 per cent upon the selling price; that plaintiff thereafter found a
purchaser for said property, for the sum of $125,000; and that one Farreta, one of the
defendant's coowners in the property, settled with the plaintiff by giving him a note for
$1,715.40, which is 10 per cent of the amount received by said Farreta for his interest.
45 Nev. 395, 399 (1922) Page v. Sutton
$1,715.40, which is 10 per cent of the amount received by said Farreta for his interest.
Judgment is demanded in the sum of $10,714.60, the difference between $12,500 (10 per cent
of $125,000) and the amount settled for by Farreta. The jury returned a verdict in favor of the
plaintiff for the sum demanded. The court granted defendant's motion for a new trial, and this
appeal is taken from that order.
Several grounds were assigned in support of the motion for a new trial, but the court based
its order upon two grounds only: First, for error in admitting in evidence the note executed by
Farreta; and, second, because a letter written by Farreta, though not in evidence, was through
mistake handed to the jury with exhibits in the case.
We think the court erred in granting the motion for a new trial, and in disposing of this
matter we will first consider the position taken by the court wherein it held that error was
committed in admitting in evidence the note executed by Farreta in payment for his share of
the commission alleged to have been earned by the plaintiff as being the procuring cause of
the sale. The evidence shows that the plaintiff was a man who had been engaged in mining
for about thirty-seven years, and who had been instrumental in selling several mines; that in
the fall of 1917 he was induced by a daughter residing near Mill City to go there that he might
become acquainted with the mineral resources of the section, with a view of making a sale of
some of the properties there located; that he was put in charge of the work carried on by the
defendant upon his property, and near the first of 1918, being threatened with pleurisy,
decided to go to his home in San Francisco until his health should be restored; and that the
defendant took him from the mines to the railroad station at Imlay. The plaintiff testified that
on the way to Imlay he broached to the defendant the subject of selling the property in
question, and that the defendant then told him that he controlled the property, though there
were some small interests held by others, and that he would be willing to sell, and would
allow the plaintiff 10 per cent commission if he found a satisfactory purchaser.
45 Nev. 395, 400 (1922) Page v. Sutton
interests held by others, and that he would be willing to sell, and would allow the plaintiff 10
per cent commission if he found a satisfactory purchaser.
The undisputed evidence shows that in the latter part of January or early in February after
plaintiff had recovered sufficiently to enable him to leave the house, he saw Mr. E. S.
Shanklin, a mining engineer, whose assistance he solicited in finding a purchaser for the
property, after which he returned to the property; that Mr. Shanklin agreed to assist in finding
a purchaser, and pursuant thereto interviewed Mr. Wm. J. Loring, a mining man of San
Francisco, and acquainted him with the Sutton property; that as a consequence of
investigations and negotiations with Mr. Loring he (Shanklin) made a trip to inspect the Mill
City property, and immediately tied up several properties (not including the Sutton property),
and telegraphed and wrote Loring to come up and inspect the country; that Loring arrived at
the Sutton property about March 5, and in company with plaintiff, Shanklin, and others, spent
two or three days in looking over it and other properties; that on March 19, 1918, Loring
wrote a letter to Shanklin, wherein he outlined a plan of organizing a company to take over
various mining properties at Mill City, and specifically alluded to the Sutton group, the
property which it is alleged plaintiff was instrumental in selling. After Loring had inspected
the properties, he went to Lovelock, where he met the defendant. Thereafter a company was
organized by the defendant and others which took on the Sutton group, and some time
subsequently thereto Loring and his associates purchased the stock in the company so
organized for the sum of $125,000.
As stated, the foregoing facts are not disputed, except that the defendant denies having
employed or authorized the plaintiff to find a purchaser for the Sutton group. The defense
made, in addition to this denial, is that the sale which was made was brought about by one
Segerstrom, rather than by the plaintiff.
45 Nev. 395, 401 (1922) Page v. Sutton
the sale which was made was brought about by one Segerstrom, rather than by the plaintiff.
The only question for the jury to determine was as to whether or not the contract of
employment as alleged was shown, or, in case it did not so find, whether plaintiff rendered
services in finding a purchaser for the property, of which the defendant had availed himself.
There is no dispute as to the value of the services, if it be found that they were rendered.
We may say here that the affidavits of ten of the members of the jury were filed and
considered upon the motion for a new trial, no one of which tends to show that the jury was
in the least influenced by the letter in question, while none of them emphatically state that
they were not influenced by it. Of course, it is a well-known rule that a juror cannot be heard
to impeach his own verdict; but we do not think the rule applies in this situation, as the
affidavits did not tend to impeach it. Southern Nevada G. & S. M. Co. v. Holmes M. Co., 27
Nev. 107, 73 Pac. 759, 103 Am. St. Rep. 759.
1. Let us inquire whether the court did, in fact, err in admitting in evidence the Farreta
note; and if so, whether the defendant was prejudiced thereby. The fact is that the plaintiff, in
response to questions propounded by counsel for defendant, gave oral testimony to the effect
that he had received a note from Mr. Farreta for his share of the commission. We quote from
plaintiff's cross-examination:
Q. How do you know that yourself? A. Because I heard it through Mr. Farreta; he told me
himself that when Mr. Loring bought he put his pro rata toward the debts they owed.
Q. Then you did have a talk with Mr. Farreta about this sale? A. That was the time when
Mr. Farreta was in San Francisco and gave me the note, promissory note for $1,715. He told
me he had no money to pay me, but he had agreed with Mr. Sutton to pay me the
commission, and asked me if I would accept his note.
45 Nev. 395, 402 (1922) Page v. Sutton
Q. And isn't it a fact that a the time you accepted the note you said you merely wanted the
note to use in the case against Mr. Sutton and would return it to him? A. I made no such
remark.
Q. Did Mr. Farreta pay the note? A. I understand since I cam here that Mr. Farreta gave
me a judgment for the note. I am not a lawyer, so I do not understand just what that means.
This witness also testified:
A. Because at our meeting in San Francisco on Post Street, Mr. Farreta said that Mr.
Sutton did say to them that he gave me a contract that he would pay me a commission, and
that it was satisfactory to him, that he would pay it; that is why I demanded the money
afterwards separately from Mr. Farreta.
2. There is much more testimony by this witness, brought out by counsel for defendant,
relative to the note. In fact, as said by counsel for appellant, he seemed loath to abandon this
line of inquiry. The execution of the note stands unquestioned and overwhelmingly
established by the defendant himself. He could not on the motion for a new trial question its
execution. By his own efforts he had shown its existence.
The existence of the note having been overwhelmingly established by the testimony
brought out by counsel for the defendant, and that it had been executed for Farreta's share of
the commission alleged to have been earned by the plaintiff, pursuant to an understanding
with Sutton himself, we cannot see how it can be said that the note, which was but
cumulative evidence of what had been proven by undisputed testimony upon the inquiry of
counsel for defendant, could have prejudiced the defendant. The learned trial judge, in his
written opinion, dwells upon the fact that counsel for the plaintiff, in the closing argument,
maintained in substance that since Farreta had performed his portion of the obligation
flowing from the contract, there was no reason why the defendant should not be compelled
to pay the remainder of the obligation."
45 Nev. 395, 403 (1922) Page v. Sutton
no reason why the defendant should not be compelled to pay the remainder of the obligation.
No doubt counsel made most of this, but it was a fact shown by counsel for defendant on
cross-examination, and remained undisputed. The same argument could have been urged with
as much force, in view of such oral testimony, had the note not been introduced in evidence.
The existence of the note having been overwhelmingly shown, without question, it would be
going too far, in view of the entire record, to assume that the mere ocular evidence of such
undisputed fact could have prejudiced the defendant.
3. We come now to consider the second ground upon which the court based its action in
granting a motion for a new trial, namely, the fact that the Farreta letter was, through a
mistake, handed to the jury along with the exhibits. This letter is nothing more than an
acknowledgment by Mr. Farreta of his indebtedness to the plaintiff for his share of the
commission upon the sale, and of the execution of the note referred to. The learned trial
judge, in his written opinion, says:
The nine jurors who found the verdict made affidavits to the effect that during all their
deliberations, the balloting stood nine to two, nine to three, or eight to four in favor of the
plaintiff, and that the verdict was not influenced by the letter; but it appears that during such
balloting, the amount of the verdict was not considered until after the decisive ballot was
taken.
It appears that the idea which influenced the court in considering this question was solely
the amount of damages which should have been assessed by the jury. It may be that this
position would be sound but for the fact that there was never a controversy as to the amount
of the verdict; the real question was whether there should be a verdict in any amount, since
the defendant denied all liability. Under all of the testimony, it is clear that if there should
have been a verdict in any amount, that named by the jury was the correct sum.
45 Nev. 395, 404 (1922) Page v. Sutton
in any amount, that named by the jury was the correct sum. In view of the fact that the letter
was simply a written statement of the undisputed oral testimony given by the plaintiff on
cross-examination, the letter could not have been prejudicial.
4. Coming now to the contention that Mr. Segerstrom was the procuring cause of the sale,
we wish to say that there is nothing in the evidence to warrant the suggestion; it is a mere
subterfuge. Mr. Loring, in his letter of March 19, 1918, to Mr. Shanklin, informed the latter
that Segerstrom was interested with him in his negotiations for the Mill City property;
whereas, Segerstrom contends that in May, 1918, he negotiated with the defendant and his
associates for the sale of their interests in the company then owning the Sutton properties.
Conceding that a company was organized after Mr. Page had been employed to procure a
purchaser for the property, and that the property was in fact transferred to the corporation and
the stock in the company sold to Loring instead of the property itself, to hold that the plaintiff
could not recover because of this fact would be to put a premium on chicanery. To approve
such a theory would enable a seller of property through an agent to defeat a claim for
commission in every instance. All the principal would have to do would be to organize a
corporation to take over the property and then transfer the stock. No such transaction can be
looked upon with tolerance by a court of justice.
We have examined the record with a view of ascertaining whether any of the grounds
assigned as a basis for a new trial, and which were not specifically considered by the trial
court, have merit in them, and find none. We are of the opinion that the order appealed from
should be reversed, and that judgment should be rendered upon the verdict returned by the
jury.
It is so ordered.
45 Nev. 395, 405 (1922) Page v. Sutton
The petition for rehearing must be denied. It is contended that in February, 1918, and
before Loring visited Mill City, Sutton sold an interest in the property to W. C. Pitt, and
hence the plaintiff is not entitled to commission thereon. This point was not urged in the
briefs, nor, so far as we remember, or as appears from our notes or the notes of the official
reporter, was it presented upon the oral argument. In view of the entire record in the case, we
think there is no merit in the contention; but, in any event, we cannot consider it when
presented for the first time on petition for rehearing. Nelson v. Smith, 42 Nev. 302, 176 Pac.
261, 178 Pac. 625; In Re Forney's Estate, 43 Nev. 227, 184 Pac. 206, 186 Pac. 678.
As to the other matters urged in the petition, we are entirely satisfied with what we said in
our former opinion.
For the reasons given, the petition is denied.
____________
45 Nev. 406, 406 (1922) Corcoran v. Dodge
[No. 2517]
MAY L. CORCORAN, Appellant, v. E. R. DODGE and N. J. BARRY, Doing Business as
Attorneys at Law, Under the Name and Style of Dodge & Barry, and NEVADA
STEAMBOAT SPRINGS COMPANY (a Corporation), Respondents.
[204 Pac. 879]
1. Appeal and ErrorBill of Exceptions Should Be Indorsed as Such.
Under Stats. 1915, c. 142, substituting bills of exceptions for the statement on appeal, a bill of exceptions
should be indorsed as such.
2. Appeal and ErrorBill of Exceptions Certified to by Official Stenographer Cannot Be
Considered.
Under Stats. 1915, c. 142, providing that a bill of exceptions must be settled by stipulation of counsel or
by the trial court, a bill of exceptions, certified to by the official stenographer as being a correct transcript
of the evidence, has no place in the record, and cannot be considered on appeal.
Appeal from Second Judicial District Court, Washoe County; Frank P. Langan, Judge.
Action by May L. Corcoran against E. R. Dodge and others. From judgment for defendant,
plaintiff appeals. Affirmed. Petition for rehearing denied.
A. Grant Miller, for Appellant:
The general policy of the courts has been to permit a hearing on the merits of every cause
where it could be reasonably done. The record is complete and the assignment of errors was
properly and seasonably made, so that all of the subject-matter is before the court. In criminal
cases, mere delay in filing a brief will not deprive the accused of their right of appeal. The
same rule has been many times applied in civil cases. State v. Williams, 39 L. R. A. 821;
Buehner v. Creamery P.M. Co., 100 N. W. 345. Respondents have not suffered in any
manner, nor have they been prejudiced in the case. Schultz v. Ford, 109 N. W. 614; Oliver v.
Wilson, 75 Am. St. Rep.
Am. St. Rep. 784; Iowa City v. Glassman, 40 L. R. A. (N. S.) 852.
Dodge & Barry, for Respondents:
The appeal should be dismissed, appellant having failed to serve and file points and
authorities or brief within the time limited (Rule 11, Supreme Court), and there being on file
no bills of exceptions, properly settled and allowed, and signed or certified by the trial court
(Stats. 1915, c. 142).
An appeal will be dismissed for failure to file a brief within time. Goodhue v. Shedd, 17
Nev. 140; State v. Myatt, 10 Nev. 163; Mathewson v. Boyle, 20 Nev. 88; Linnville v. Clark,
30 Nev. 113.
Filing a brief after a motion has been made to dismiss the appeal for failure to file a brief is
no answer to the motion. Shane v. People's L. Co., 98 Cal. 120 Welch v. Kinny, 47 Cal. 414;
Page v. Latham, 60 Cal. 606; Heinlen v. Railroad, 65 Cal. 304; Smith v. San Francisco, 7
Pac. 37.
Filing transcript on same day after filed motion to dismiss is no answer to the motion.
Chapman v. Bank, 88 Cal. 420. There is no difference between the failure to file a transcript
and the failure to file a brief within the required time. Erving v. Napa Valley B. Co., 16 Cal.
App. 41; Hamaker v. Keating, 158 Cal. 109.
Where the transcript on appeal from an order denying a new trial contains no statement
settled and agreed upon, the order will be affirmed. Headley v. Crow, 22 Cal. 265; Cosgrove
v. Johnson, 30 Cal. 511; Mix v. Railroad, 86 Cal. 235.
The bill of exceptions cannot be considered unless it is signed by the judge. Harely v.
Young, 4 Cal. 284: Gee v. Terrie, 55 Cal. 381. When neither agreed to by the parties nor
signed by the judge, a statement used on motion for a new trial cannot be used as the
statement on appeal. Fee v. Starr, 13 Cal. 170; Kavanaugh v. Maus, 28 Cal. 261; Martin v.
Vanderhoot, 7 Pac. 307.
1. In the lower court judgment was rendered in favor of the defendants. The plaintiff made
a motion for a new trial, which was denied. An appeal was taken from that order. In apt time
respondents made a motion in this court to dismiss the appeal, for the reason that no bill of
exceptions is made a part of the record. There was filed with the clerk of the court what
purports to be two volumes comprising the record in the case. Volume 1 consists of the
record properthat is, the judgment roll. Volume 2 is indorsed Statement and Bill of
Exceptions on Appeal. Right here let us say that prior to the act of 1915 (Stats. 1915, p. 164)
the Statement on Appeal served the identical purpose now served by a bill of exceptions;
but as was said in the case of Gill v. Goldfield Con. M. Co., 43 Nev. 1, 176 Pac. 784, 184
Pac. 309, the Statement on Appeal was abolished, and bills of exceptions substituted
therefor. In that case we did not say, nor did we intend to say, nor do we now wish to be
understood as holding, that if the testimony taken on the trial of a case is transcribed and
approved as being all of the testimony in the case, as provided in the act of 1915, we would
not consider it, even though indorsed Statement on Appeal. That is yet an open question;
but, whatever might be our holding, to avoid confusion, attorneys should endeavor to
conform to the spirit of the act, and indorse as such what purports to be a bill of exceptions.
2. That which may in fact be all of the evidence in the case, certified to by the official
reporter as being a full, accurate, and complete transcript of the testimony as taken at the trial,
does not in fact become a bill of exceptions. There never was a time in the history of this
state, or of any other state, so far as we are aware, when the testimony taken in the trial of a
case could be considered by a court of final resort, except when settled and approved as being
a full, complete, and correct transcript thereof, either by the trial judge or court or by
stipulation of the parties. And the reason for this seems too obvious to call for any
comment.
seems too obvious to call for any comment. Should the preparation of such a document be left
to the complaining party alone? May he present his individual bill of exceptions, and leave it
to the other party to present a different one? Or in case it be a triangular proceeding, or one in
which several parties are joined, may there be as many bills of exceptions as there are parties
claiming conflicting interests? The inquiry suggests its own answer. Authority must be lodged
somewhere to settle a bill of exceptions for there can be only one. This authority is lodged by
the statute of 1915 primarily in the parties, and finally in the trial judge or in the court. There
can be no bill of exceptions until it has been approved in one of the ways indicated by the
statute. The so-called Statement and Bill of Exceptions on Appeal in this case is certified to
by the official reporter as being a correct transcript of the evidence, but it is not settled as a
bill of exceptions, or as anything else, by the parties, the trial judge, or the court. Hence it has
no place in the record, and cannot be considered by this court for any purpose whatsoever.
It is true, as said by counsel for appellant in his brief, that it is the general policy of the
courts to permit a hearing on the merits when it can be reasonably done. Such is the
oft-repeated sentiment of this court, but by such expression it was never contemplated that it
could be reasonably done when the evidence taken in the trial of a case is not presented in a
bill of exceptions authenticated as provided by statute. To countenance for one moment any
other practice would be to throw open wide the door for the practice of imposition upon this
court, and leave, instead of a plain, simple method of presenting the evidence in a case,
confusion and chaos.
The ideas which we have expressed are in accord with the theory and practice of the legal
profession generally and the universal rulings of this court. In fact, until recently, we have
never heard it even intimated that the oral testimony taken in a case could be made a part
of the record except by stipulation of counsel for approval of the trial judge or court.
oral testimony taken in a case could be made a part of the record except by stipulation of
counsel for approval of the trial judge or court. The point in question was determined in the
very recent case of Mexican D. & D. Co. v. Schultz, 45 Nev. 260, 201 Pac. 548, and the
views therein expressed, so far as applicable, have been adhered to in the case of Rickey v.
Douglas M. & P. Co., 45 Nev. 341, 204 Pac. 504, just decided.
A clear exposition of the rule, as practically universally recognized, as shown by the
citations, is stated in 4 C. J. 180, as follows:
Rulings and decision of the lower court, the correctness of which cannot be determined
from the record proper, must be made a part of the transcript by a bill of exceptions, case,
statement of facts, or other mode prescribed by the statute, in order to secure their review by
the appellate court; and, unless such rulings of the lower court of the correctness of which
cannot be determined from the record proper are thus made a part of the record on appeal, the
appellant court will consider only those errors that are shown by the judgment roll or record
proper, such as the sufficiency of the pleadings and findings of fact to support the verdict or
judgment.
No error appearing in the record proper, it is ordered that the judgment be affirmed.
Per Curiam:
Rehearing denied.
____________
45 Nev. 411, 411 (1922) Parks v. Western Union Tel. Co.
[No. 2476]
STERLING PARKS, Appellant, v. THE WESTERN UNION TELEGRAPH COMPANY (a
Corporation), Respondent.
[197 Pac. 580; 204 Pac. 884]
1. PleadingJudgment Cannot Be Rendered on Pleadings where Issue Presented Was
Undetermined, though New Matter In Answer Was Not Replied To.
Notwithstanding Practice Act, sec. 115, as amended by Stats. 1915, c. 158, declares that when an answer
contains new matter constituting defense or counterclaim, plaintiff shall serve and file a reply, etc.,
judgment in an action against telegraph company for negligent failure to deliver an interstate telegraphic
message cannot be rendered on the pleadings because plaintiff failed to reply to new matter in the answer
setting up that the message was an unrepeated message, and that it was accepted on condition that
defendant should be liable for mistakes or delays only to the amount received for transmission, where the
complaint alleged that the sender informed defendant that it desired prompt transmission and delivery
regardless of expense, etc., and such averment was traversed, for that left an issue of fact to be disposed of.
2. CommerceValidity of Stipulation Restricting Liability for Interstate Message Federal
Question.
Whether a stipulation restricting the liability of telegraph company for transmission of an interstate
message is valid depends on federal law.
3. PleadingNew Matter in Answer is Matter in Confession and Avoidance or Discharge.
New matter set up in an answer is either in confession and avoidance or discharge.
4. Appeal and ErrorTelegraph Company's Liability under Contingency Will Not Be
Determined.
Where the trial court improperly rendered judgment for defendant telegraph company on the pleadings,
notwithstanding the issue whether the message was received under direction to transmit it with diligence
regardless of expense, etc., was undetermined, the question whether recovery can be had on an independent
contract for delay of an interstate message received under such circumstances where the only consideration
was the regular rate for unrepeated messages will not be determined.
On Rehearing
1. Appeal and ErrorRehearing Not Granted as Matter of Right.
Rehearings are not granted as a matter of right, and are not allowed for the purpose of reargument, unless
there is reasonable probability that the court may have arrived at an erroneous conclusion, or
overlooked some important question which was necessary to be determined in order
to arrive at a full and proper understanding of the case.
an erroneous conclusion, or overlooked some important question which was necessary to be determined in
order to arrive at a full and proper understanding of the case.
2. PleadingContract Incident to Acceptance of Message for Delivery Presumptively within
Knowledge of Telegraph Company, and Not To Be Denied on Information and Belief.
Where a telegraph company admitted in its answer accepting a message for delivery, the making of a
contract at that time was certainly presumptively within its knowledge, and it could not deny the contract
alleged in the complaint upon information and belief.
3. PleadingPlea in Confession and Avoidance Implies that but for the Avoidance the
Action May Be Maintained.
Where an answer seeks to avoid the complaint by new matter, it must confess directly or by implication
that, but for the avoidance contained in it, the action may be maintained, but denials and avoidances are not
necessarily inconsistent, and a defendant cannot be required, as a condition of averring new matter, to
admit facts alleged so as to preclude him from denying them on trial.
4. PleadingDefense or Demurrer, Only Contingent or Hypothetical, Insufficient upon
which to Base Judgment on Pleadings.
A defense or demurrer, which is not positive, but only contingent or hypothetical, is insufficient in law
upon which to base a judgment on the pleadings.
5. PleadingMere Statement of Inconsistent Facts in Answer Nothing More than Denial of
Allegations.
A mere statement of facts in an answer by way of defense, which is inconsistent with the facts alleged in
the complaint, is, in effect, nothing more than a denial of the allegations of the complaint.
Appeal from Second Judicial District Court, Washoe County; J. Emmett Walsh, Judge.
Action by Sterling Parks against the Western Union Telegraph Company, a corporation.
From an order overruling plaintiff's demurrers to affirmative defenses in the answer, and from
a judgment on the pleadings, plaintiff appeals. Reversed. On rehearing, former opinion
adhered to.
Sardis Summerfield, for Appellant:
The sole question to be decided is whether an oral contract for the delivery of an interstate
telegraphic message, made at the time of the delivery of the message to the telegraph
company, is sufficient to sustain an action for actual damages sustained by the addressee
by reason of the negligent failure of the telegraph company to deliver the message,
notwithstanding the fact that it was written on a telegram blank containing classifications
of messages and conditions purporting to limit the company's liability to named amounts,
and the further fact that the company's classified rates and limitations of liability had
been filed with and approved by the United States Interstate Commerce Commission.
to the telegraph company, is sufficient to sustain an action for actual damages sustained by
the addressee by reason of the negligent failure of the telegraph company to deliver the
message, notwithstanding the fact that it was written on a telegram blank containing
classifications of messages and conditions purporting to limit the company's liability to
named amounts, and the further fact that the company's classified rates and limitations of
liability had been filed with and approved by the United States Interstate Commerce
Commission.
The contract for the delivery of the message was an oral contract, insuring the prompt
delivery of the message as pleaded, and such contract was the exclusive and only one pleaded
in the complaint. It was, if proven, sufficient to sustain a judgment for actual damages
resulting from its negligent breach by the telegraph company. We do not believe that there
should have been a written contract of insurance. A contract to insure specially the
correctness in the transmission of a message must be made in writing; but there is no
regulation which requires a written contract to insure the delivery of an unrepeated message.
We think a fair implication is that an oral contract may be made between the sender of a
message and the telegraph company, whereby the company, for a consideration paid, may
insure the prompt transmission and delivery of a message. W. U. T. Co. v. Lange, 248 Fed.
663. The Supreme Court of the United States reversed the aforesaid case, but only upon the
measure of damages, expressly leaving the decision unreversed upon the subject of the
validity of an oral contract for the prompt delivery of a message. In our view of the case it is
unnecessary to consider the correctness of the decision of the Circuit Court of Appeals as to
the binding obligation of the oral contract made with the agent of the telegraph company, or
the question of the negligence of the company in the transmission and delivery of the
message. W. U. T. Co. v. Brown, Adv. Sheets No. 15, L. Co-Op. Ed., June 15, 1920, p. 452.
The effect of the negligence of a telegraph company in altering the name of the addressee
to whom a message has been directed, and by reason of such negligence failing to deliver the
message, has been passed upon by appellate courts. Hill v. W. U. T. Co., 113 N. W. 819;
Postal Co. v. Sunset Co., 114 S. W. 114; 45 Century Digest, sec. 76. These decisions do not
differ in principle from W. U. T. Co. v. Lange, supra.
The question of whether the alleged oral contract, insuring the prompt delivery of the
message, was the contract in fact made by the sender of the message and the telegraph
company, should be tried upon merit.
Brown & Belford, for Respondent:
The decision of the lower court, overruling plaintiff's demurrers to defendant's affirmative
defenses, and the judgment of said court based thereon, should be affirmed.
There is no oral contract pleaded, and no agreement or obligation assumed by the
defendant with reference to the transmission and delivery of the message, other than that
implied by its acceptance of the message upon the so-called telegram blank. The only
agreement or obligation of the company was to perform its duties as a common carrier of
telegrams. 37 Cyc. 1665, 1666, 1671; Barnes v. W. U. T. Co., 24 Nev. 139.
The limitation contained in the contract printed on the back of the message is valid and fixes
the extent of defendant's liability for the nondelivery of the message. Primrose v. W. U. T.
Co., 154 U. S. 1; Interstate Commerce Act, secs. 1, 3, 15.
The provisions of the amended interstate commerce act constitute a complete and specific
regulation by Congress of interstate commerce by telegraph. Clay Co. P. Co. v. W. U. T. Co.,
44 Int. Com. Rep. 670. In this case there is a recognition of the reasonableness of and an
approval of the contract contained in the ordinary telegraph blanks with reference to the
limitation of liability on unrepeated messages, and the ruling of the Interstate Commerce
Commission has received the sanction of the Supreme Court of the United States in Postal
Co. v. Warren-Goodwin L. Co., 40 Sup. Ct. 69.
of liability on unrepeated messages, and the ruling of the Interstate Commerce Commission
has received the sanction of the Supreme Court of the United States in Postal Co. v.
Warren-Goodwin L. Co., 40 Sup. Ct. 69.
Where there is an unrepeated message, any special promise to a particular sender of a
message to assume a different liability than is regularly and ordinarily assumed by telegraph
companies in the case of unrepeated messages would constitute a violation of section 3 of the
interstate commerce act and be unenforceable. Railroad v. Stennard, 162 Pac. 1176.
This is an appeal from an order overruling plaintiff's demurrers to defendant's two alleged
affirmative and separate partial defenses to the cause of action set out in the complaint, and
an appeal from a judgment on the pleadings.
The plaintiff brought his action against the Western Union Telegraph Company to recover
a money judgment for the sum of $3,000 as damages for its negligent failure to deliver an
interstate telegraphic message written upon one of the defendant's blank forms furnished the
sender. The plaintiff alleges that by reason of the negligence and carelessness of the
defendant he lost a lucrative position, or employment, and was damaged in the sum stated.
The defendant demurred to the complaint, upon the ground that it did not state facts sufficient
to constitute a cause of action. The demurrer was overruled. The defendant thereupon
answered, and, after denying the allegations of the complaint, set up two alleged affirmative
partial defenses, but one of which, in view of the judgment, it is necessary to consider. The
defense was:
Further answering said complaint, and for a separate and partial defense, plaintiff
[defendant] alleges:
(1) That, if there ever was delivered to this plaintiff [defendant] a message such as that
referred to and described in paragraph VI of the complaint, such message was delivered to
and accepted by the defendant subject to the terms of a certain contract in writing, a copy
of which is annexed hereto and made a part of this answer, and marked 'Exhibit A,' and
which is hereto referred to and made a part hereof, as if set forth at length herein.
described in paragraph VI of the complaint, such message was delivered to and accepted by
the defendant subject to the terms of a certain contract in writing, a copy of which is annexed
hereto and made a part of this answer, and marked Exhibit A,' and which is hereto referred to
and made a part hereof, as if set forth at length herein.
(2) That, as more fully appears from said Exhibit A hereto annexed, it was a term and
condition of the said contract, subject to which, and subject to which only, such message was
accepted by the defendant, that the defendant should not be liable for mistakes or delays in
the transmission or delivery, or for nondelivery of any unrepeated message, beyond the
amount received for sending the same; and that the said message was an unrepeated message,
and defendant was not directed or requested to repeat the same, and all that the defendant
received in exchange for its obligation in respect to said message was the sum of $1.28,
which was defendant's ordinary and reasonable charge for the transmission of such a message,
without repetition, from the point of origin to the point of destination named therein,
including its delivery at destination.
The plaintiff interposed a demurrer to this alleged defense, upon the ground that it did not
state facts sufficient to constitute a defense. The court overruled the demurrer, and caused to
be entered this judgment:
The plaintiff having demurred to the first and second separate and partial defense in the
defendant's answer, and said demurrers having been duly argued, and after due consideration
the said demurrers having been overruled, and the court having made and entered an order
overruling the same, the plaintiff thereupon refused to reply to the affirmative matters
contained in defendant's answer, and waived further time to reply, and thereupon the default
of the plaintiff for want of reply is entered, and the defendant moves the court for judgment
upon the pleadings, which said motion is granted.
Whereupon, by reason of the law and the premises, it is by the court ordered, adjudged,
and decreed that the plaintiff, Sterling Parks, do have and recover from the Western Union
Telegraph Company, a corporation, defendant, the sum of $1.33 (being the sum of $1.28,
together with interest thereon from the 3d day of February, 1920, to date, amounting to $.05),
together with interest on $1.28 thereof, at the rate of 7 per cent per annum from date hereof
until paid.
1. It is obvious that the judgment is based upon a failure of the plaintiff to file and serve a
reply after the overruling of his demurrer. Section 115 of the Practice Act, as amended (Stats.
1915, p. 192) provides:
When the answer contains new matter, constituting a defense, or a counterclaim, the
plaintiff shall, within ten days after service of such answer or within ten days after notice of
the overruling of the demurrer thereto, serve and file a reply.
The trial court evidently took the position that the alleged affirmative defense was new
matter, constituting a full and complete defense to the plaintiff's cause of action; and that, the
plaintiff having failed to serve and file a reply upon notice of the overruling of his demurrer,
the defendant was entitled to judgment on the pleadings. It thus appears that the judgment
upon the pleadings was for the failure of the plaintiff to serve a reply to so-called new matter
constituting a defense. We are of the opinion that such judgment cannot be made to serve the
purpose of an appeal from an order overruling a demurrer. We therefore shall consider in this
opinion only the appeal from the judgment upon the pleadings.
This narrows the question for determination to this proposition: Was the district court, in
the present state of the pleadings, authorized to render judgment upon the pleadings? Our
conclusion upon this proposition is, in brief, as follows: The complainant charges paragraph
VI of the complaint:
That thereupon the said C. E. Adams, on the 3d day of February, 1920, delivered to
defendant at its office at San Francisco, Cal., a message, a true copy of which is hereunto
attached, marked 'Exhibit A,' and is hereby specifically made a part of this complaint, at
the same time informing defendant that the desired a prompt transmission and delivery of
said message to an address therein named regardless of expense, and that thereupon
defendant agreed for and in consideration of the sum of $1.2S, which said sum was then
and there paid by the said C. E. Adams to defendant, to promptly transmit and deliver to
an addressee therein named said message, provided such addressee could be by it found
by the exercise of reasonable diligence."
of February, 1920, delivered to defendant at its office at San Francisco, Cal., a message, a true
copy of which is hereunto attached, marked Exhibit A,' and is hereby specifically made a
part of this complaint, at the same time informing defendant that the desired a prompt
transmission and delivery of said message to an address therein named regardless of expense,
and that thereupon defendant agreed for and in consideration of the sum of $1.28, which said
sum was then and there paid by the said C. E. Adams to defendant, to promptly transmit and
deliver to an addressee therein named said message, provided such addressee could be by it
found by the exercise of reasonable diligence.
Paragraph IV of the answer, corresponding to paragraph VI of the complaint, is as follows:
Defendant admits that on the 3d day of February, 1920, the said C. E. Adams delivered at
its office in San Francisco, Cal., a message, a true copy of which is attached to the complaint
and marked Exhibit A. Except as herein specifically admitted, defendant, upon information
and belief, denies each and all of the matters and allegations contained in paragraph VI of the
complaint.
It is clear that paragraph IV of the answer constitutes a denial of the facts alleged in
paragraph VI of the complaint, and thus tenders an issue independent of the new matter (if
there be new matter) set up as an affirmative defense to the facts alleged in paragraph VI of
the complaint. This being true, the court was not authorized to give judgment for the
defendant on motion, because of the want of a reply to new matter (if there be such)
contained in the defense, for the reason that there still remained an issue of fact which was
still to be disposed of. Comstock v. Hallock, 2 Edm. Sel. Cas. (N. Y.) 69.
2. We are further of the opinion that the alleged partial affirmative defense, as above set
out, amounts to this: That the telegram sued on (if received at all for transmission) contained
an express condition limiting the defendant's liability; and that the telegram {if received
at all for transmission) was delivered upon such limitation; and that the contract pleaded
as an affirmative defense is governed by the federal law; and that, by virtue of that law,
defendant's liability was limited by the terms and conditions of the contract.
transmission) contained an express condition limiting the defendant's liability; and that the
telegram (if received at all for transmission) was delivered upon such limitation; and that the
contract pleaded as an affirmative defense is governed by the federal law; and that, by virtue
of that law, defendant's liability was limited by the terms and conditions of the contract.
There is no doubt that the alleged defense, as above quoted, was intended to serve the purpose
of a plea in confession and avoidance. Great pains are taken not to confess anything and to
still preserve intact the benefit of the defendant's denial to the cause of action stated in
paragraph VI of the complaint.
3. New matter is matter in confession and avoidance or discharge. Ferguson v.
Rutherford, 7 Nev. 385; Dixon v. Pruett, 42 Nev. 345, 177 Pac. 11.
4. As long, therefore, as the issue raised by the defendant's denial of the plaintiff's cause of
action remained undisposed of, it is idle to claim that the court was authorized to render
judgment upon the pleadings. We appreciate the fact that counsel for appellant has labored
arduously to draw from this court an admission or expression that, as a matter of law, the
plaintiff can recover upon an independent contract for the transmission and delivery of a
special interstate message made with the defendant's agent at the time of its acceptance for
transmission were the only consideration for the agreement was the regular rate charged for
an unrepeated message. We decline to pass upon this question, for the reason that it is not
involved in the question of the court's authority to render judgment on the pleadings.
Entertaining the views that the court was not authorized to render judgment upon the
pleadings, in the face of the outstanding and undetermined issue made by the complaint and
answer, we conclude that the judgment must be reversed.
It is so ordered.
On Rehearing
1. Rehearings are not granted as matter of right, and are not allowed for the purpose of
reargument, unless there is reasonable probability that the court may have arrived at an
erroneous conclusion, or overlooked some important question, which was necessary to be
determined in order to arrive at a full and proper understanding of the case. State v.
Woodbury, 17 Nev. 353, 30 Pac. 1006.
The judgment herein was reversed upon a question of pleading and practice, not heretofore
adjudicated by this court, and not embraced in the briefs or pointed out on the oral argument.
The question involved is of general importance, and serious doubt exists as to the correctness
of the decision. We have therefore listened, not without profit, to a reargument of the entire
case by counsel for respondent, counsel for appellant not having availed himself of the
privilege. In his reply, however, to the petition for reargument, he expresses a passive interest
in the question of pleading decided, and reiterates that he made an earnest effort to draw a
clean-cut expression of the court's opinion upon a much-involved question, which may be
stated as follows:
In an action brought to recover unliquidated damages from a telegraph company for its
alleged gross negligence in failing to transmit and deliver an interstate, unrepeated message,
written upon one of the company's usual blank forms, when at the time of its delivery and
acceptance the sender informed the defendant that he desired its prompt transmission and
delivery regardless of expense, and at the time the defendant orally agreed, for and in
consideration of the sum of $1.28, which sum was then and there paid, to promptly transmit
and deliver the message to the addressee therein, provided he could be found by the exercise
of reasonable diligence, can the addressee, in an action brought by him to recover $3,000 as
damages for the injury sustained for the failure of the defendant to perform its oral
contract with the sender, recover as damages any more than the tariff for such a message
as filed by the defendant with the Interstate Commerce Commission pursuant to an act of
Congress of June 1S, 1910, which extends the act to regulate commerce to include
telegraph companies {U. S. Stats.
$3,000 as damages for the injury sustained for the failure of the defendant to perform its oral
contract with the sender, recover as damages any more than the tariff for such a message as
filed by the defendant with the Interstate Commerce Commission pursuant to an act of
Congress of June 18, 1910, which extends the act to regulate commerce to include telegraph
companies (U. S. Stats. 36, p. 539; 544 U. S. Comp. St. sec. 8563); it being understood that
its tariff for such unrepeated message is $1.28? The court declined to answer the question,
much to the surprise, disappointment, and dissatisfaction of the parties. The procedure
adopted to bring the question before us invited the result.
I shall not recapitulate the pleadings, as they are sufficiently set out in the original opinion,
which must, however, be kept in mind, and at all times thoroughly understood.
The complaint in the action gives the impression of being a studied effort on the part of the
complainant to bring his case within the rules laid down by certain decisions and without the
rules laid down in others. It is unusual in this: The cause of action is founded on an oral
contract, made by the sender of a telegraphic dispatch with the agent of the defendant
company residing in San Francisco, whereby the agent agreed (as counsel say guaranteed),
for the consideration of the sum of $1.28, then paid, to promptly transmit and deliver to the
addressee the dispatch, made a part of the complaint. It is made to appear that the message
was urgent and important. Mackay v. Western Union Telegraph Co., 16 Nev. 222. The
complaint, however, does not contain any allegation that the price paid was the usual charge
for such a message (37 Cyc. 1722), thus leaving it to be inferred that there was something in
the transaction to distinguish it form the delivery and acceptance of a message to be
transmitted in the ordinary course of the defendant's business; in other words, that the
defendant, in view of the understanding between the parties, for the consideration paid,
insured the prompt transmission and delivery of the message.
for the consideration paid, insured the prompt transmission and delivery of the message.
Western Union Telegraph Co. v Lange, 248 Fed. 663, 160 C. C. A. 556.
2. The denials contained in the answer are purely hypothetical in their nature. The answer
admits the delivery of the message to the defendant, and states:
Except as herein specifically admitted, defendant, upon information and belief, denies
each and all of the matters and allegations contained in paragraph 6 of the complaint.
It admits the delivery of the message, but denies, upon its information and belief, the
contract incident to its delivery. Why or how the defendant could deny the contract upon
information and belief and yet admit positively the delivery of the message is inexplicable.
The making of the contract was certainly presumptively within the knowledge of the
defendant. In Curtis v. Richards, 9 Cal. 33, quoted with approval in Pom. Rem., sec. 641, it is
held that if the facts alleged are presumptively within the knowledge of the defendant, he
must deny positively, and a denial of information or belief will be treated as an evasion.
Cases may, and do frequently, arise, as where the facts are not within the personal
knowledge of the defendant, in which he may answer according to his information and belief.
To make a defendant admit something positively, which he does not know to be the fact,
would be an injustice. Hence the rule laid down in Brown v. Ryckman, 12 How. Prac. 313, is
cited frequently, that a defendant may often be in the position, under the present system of
pleading, of having no other than a hypothetical form of placing his defense before the court.
Such, however, is not the case here. We mention this to accentuate what immediately follows.
The defense comes along and starts off with this language:
Further answering said complaint, and for a separate and partial defense, plaintiff
[defendant] alleges: "{1) That, if there ever was delivered to this plaintiff [defendant] a
message such as that referred to and described in paragraph 6 of the complaint, such
message was delivered to and accepted by the defendant subject to the terms of a certain
contract in writing.
(1) That, if there ever was delivered to this plaintiff [defendant] a message such as that
referred to and described in paragraph 6 of the complaint, such message was delivered to and
accepted by the defendant subject to the terms of a certain contract in writing. * * *
3. This being the true status of the pleadings, we took the position in our original opinion
that the defense was intended to serve the purpose of a plea in confession and avoidance, and
we do not understand counsel upon reargument to say that it is not. We had thought no rule to
be better established than that where an answer seeks to avoid the complaint by new matter it
must confess directly or by implication that, but for the avoidance contained in it, the action
could be maintained. Testing the defense by this standard, we held it to be defective. In so
doing we did not lay down the rule that denials and defenses of confession and avoidance are
necessarily inconsistent, or that a defendant cannot be required as a condition of averring new
matter to admit facts alleged so as to preclude him from denying them on the trial. Such was
not the rule before the code, and it is not the rule now.
In Stroock Plush Co. v. Talcott, 129 App. Div. 14, 113 N. Y. Supp. 214, the court says:
The rule that contingent or hypothetical pleading is not allowed, and is not good, is too
ancient, and has been to often reiterated to need discussion. It suffices to refer to the recent
text-books where the cases are collected and the rule statedif that be deemed necessary. 6
Ency. Pl. & Pr. p. 270; Phillips on Code Pl. secs. 240, 357; Maxwell on Code Pleading, p.
395; Bliss on Code Pl. sec. 340. The few cases which are sometimes cited as contrary to the
rule are really not so when you come to analyze them attentively.
In the case of Saleeby v. Central R. R. of New Jersey, 40 Misc. Rep. 269, 81 N. Y. Supp.
903, it is held that a plea in confession and avoidance, in an action against a railroad company
for the loss of a passenger's baggage, which states that, if the passenger's baggage was
received, it was on an express condition {contained on the ticket sold the passenger)
limiting the defendant's liability, was defective in that it confessed nothing and admitted
only hypothetically.
which states that, if the passenger's baggage was received, it was on an express condition
(contained on the ticket sold the passenger) limiting the defendant's liability, was defective in
that it confessed nothing and admitted only hypothetically. So in the case at bar, the defense
confessed nothing, and the allegations which should be admissions are hypothetical in their
nature; that is to say, the defense states that if there ever was delivered to the defendant such a
message as described in the complaint, it was delivered and accepted in accordance with the
express condition contained in a contract printed on the back of the blank form on which the
message was written. It is made clear in the opinion that, because of the defense being a
hypothetical defense, the facts stated in the complaint were left open and undetermined, and
the court was not authorized to render judgment on the pleadings.
The case of Corn v. Levy, 97 App. Div. 48, 89 N. Y. Supp. 658, discusses exhaustively the
authorities in that state, the parent of code pleading, upon the question of whether or not a
hypothetical defense is bad on demurrer. The case, however, deals with the liability of an
irregular indorser of a promissory note, payable to a third party, where the defense was that if
the note was indorsed by the defendant's testator it was indorsed under circumstances which
showed a diversion of the note. The court, after reviewing the conflicting opinions upon the
subject of hypothetical defenses, concluded that the particular defense did not controvert any
material allegation in the complaint, and regarded it as mere surplusage or redundant matter.
Later the same court, in Stroock Plush Co. v. Talcott, supra, which was an action to recover
damages for the breach of a contact, held that a defense to the action, beginning with the
words that if, as alleged in the complaint herein, a contract was entered into, * * * followed
by a statement to the effect that if the contract was made the facts then alleged would be a
defense and a counterclaim, was bad, because of its contingent or hypothetical nature.
claim, was bad, because of its contingent or hypothetical nature.
The defense in this case is a partial defense. I interpret it to be intended as a defense to the
issuable fact of the amount of the recovery. The defendant cannot segregate in one breath the
delivery and acceptance of the message and in another deny that it made the contract for its
prompt transmission and delivery for the agreed consideration. The covenants were mutual.
The inference is irresistible that the object and purpose of the defense was not to confess the
complaint, either expressly or by implication, but to leave the injury alleged to have been
sustained by reason of the breach of the contract upon which the cause of action is founded an
open and undetermined issue of fact. Therefore no judgment could properly or legally be
rendered upon the pleadings. Itzkowitz v. Independent Western Star Order (Mun. Ct. N. Y.)
161 N. Y. Supp. 837; Gaston v. Wolf (Sup.) 162 N. Y. Supp. 274; Elevator Automatic Signal
Co. v. Bok (Sup.) 159 N. Y. Supp. 13.
It is pointed out on reargument that if the decision is permitted to stand the courts of this
state will, upon it as an authority, refuse to grant judgment upon the pleadings where there is
an admitted good defense, coupled with a denial which the admission of new matter has made
immaterial. Counsel fail to convince that there is anything in the opinion to warrant or justify
this criticism, unless it be assumed, as they insist, that the new matter set up as a plea in
confession and avoidance constitutes a complete defense to the action. The opinion holds and
decides to the contrary, and no convincing argument is presented to show that the court is in
error as to this conclusion.
4. It is urged that the plaintiff's demurrer admits the facts stated in the defense, and that
therefore the judgment in favor of the plaintiff, upon the defendant's motion, is binding on the
plaintiff, and, further, that the defense is not objected to as being contingent or hypothetical.
hypothetical. The pleadings on both sides in this case seem to be about as complex as could
possibly be drawn, and the procedure as much mixed and confused as it could possibly be
madeall attributable to the fact that both litigants seek to use their pleadings to enable them
to have determined before trial, upon the merits of the opposed questions of fact raised by the
pleadings, whether or not, if the plaintiff should succeed in establishing his case, he would be
entitled to recover the full amount of damages as demanded, and, if the defendant should
succeed in establishing its defense, whether, as a matter of law, the plaintiff would be entitled
to recover any more than the regular tariff for an unrepeated interstate message, in accordance
with the tariff filed by the defendant company with, and approved by, the Interstate
Commerce Commission. I am of the opinion that the exigencies of the situation in which the
parties have found themselves by their own pleadings do not warrant a court in conforming
the rules of pleading to the convenience of the parties. My ultimate conclusion is that a
defense or demurrer which is not positive, but only contingent or hypothetical, is insufficient
in law upon which to base a judgment on the pleadings.
Whether or not the appellant should, in the face of the sweeping decision of the Supreme
Court of the United States in Western Union Telegraph Co. v. Esteve Brothers & Co., 256
U. S. 566, 41 Sup. Ct. 584, 65 L. Ed. 1094, continue this litigation is for him to decide, and
not for this court, in the present condition of the record.
Entertaining these views, the judgment is again reversed.
Ducker, J., and Coleman, J., concurring:
5. We concur in the order of reversal. The so-called affirmative defense falls within the
class controlled by the rule that a mere statement of facts in an answer by way of defense,
which is inconsistent with the facts alleged in the complaint, is, in effect, nothing more than a
denial of the allegations of the complaint.
The logic of the opinion of the court in Wade v. Stever, 166 N. Y. 251, 59 N. E. 825,
seems unanswerable. See, also, Bliss, Code Pl. (2d ed.) 333; Sylvis v. Sylvis, 11 Colo. 318,
17 Pac. 912; Goddard v. Fulton, 21 Cal. 430; Mott v. Baxter, 29 Colo. 418, 68 Pac. 220.
____________
45 Nev. 427, 427 (1922) Hunter v. Sutton
[No. 2463]
HARRY H. HUNTER, JR., Respondent, v. THOMAS
SUTTON, Appellant.
[195 Pac. 342]
1. New TrialNotice of Decision Starting Running of Ten-Day Period for Moving, Need Not
Be in Writing.
The notice of decision, as contemplated and required by Rev. Laws, 5323, providing that a person
intending to move for a new trial should serve notice of his intention to do so within ten days after
receiving notice of the decision, need not be in writing.
Appeal from Sixth Judicial District Court, Pershing County; Mark R. Averill, Judge.
Action by Harry H. Hunter, Jr., against Thomas Sutton. From an order sustaining plaintiff's
objection to the hearing of defendant's motion for new trial, defendant appeals. Affirmed.
Petition for rehearing denied. (Ducker, J., dissenting.)
Booth B. Goodman, for Appellant:
Notice of intention to move for anew trial must be filed and served within ten days after
notice of decision. Notice was filed in time, for the reason that no notice of the decision was
served before the filing of the notice of intention. The notice contemplated by statute is a
written notice, and no knowledge is sufficient in lieu thereof. The word written does not
appear in the statute, but the rule is well settled that, when a notice in any legal proceeding is
required and authorized by statute, a formal written notice is understood. 39 Cyc. 1118;
Pearson v. Lovejoy, 35 How. Pr. 193; Gilbert v. Turnpike Co.,
Co., 3 Johns. 107; Miner v. Clark, 15 Wend. 425; Mason v. Kellogg, 38 Mich. 132; Biagi v.
Howes, 6 Pac. 100; Carpenter v. Thurston, 30 Cal. 125; Roussin v. Stewart, 33 Cal. 210;
Sawyer v. San Francisco, 50 Cal. 375; Fry v. Bennett, 16 How. Pr. 402; Everett v. Jones, 91
Pac. 360; Gray v. Winder, 20 Pac. 48; Gardner v. State, 67 Pac. 4; State v. Murphy, 19 Nev.
89. Delivery to the judgment debtor of a satisfaction of the judgment upon payment thereof
is not such notice. Maurin v. Carnes, 83 N. W. 417.
R. M. Hardy and Cooke, French & Stoddard, for Respondent:
Appellant received actual notice in writing of the decision of the district court, and failed
to serve his notice of intention to move for a new trial within ten days thereafter. Objection
was made to the hearing of the motion for a new trial on that ground. The objection was
sound, and was properly sustained.
Even oral notice would have been sufficient. The statute requires notice only; it need not
be in writing. Formerly the statute required written notice. Cutting's Comp. Laws, sec. 3292.
The later enactment provides for such service within ten days after notice of the decision of
the court or referee. Rev. Laws, 5323. It is obvious that the legislature intended to modify
the strict rule of the former practice and require the losing party to move promptly after
receiving actual notice; in other words, to recognize the substance rather than the form.
The order sustaining the objection to the hearing of the motion for a new trial should be
affirmed. White v. Superior Court, 14 Pac. 87; Davis v. Hurgren, 57 Pac. 685; Clark v.
Strouse, 11 Nev. 75.
This is an appeal from an order of the court below sustaining respondent's objection to the
hearing of appellant's motion for a new trial, which said objection is based solely upon the
ground that the notice of intention to move for a new trial was not filed within the time
prescribed by section 5323 of the Revised Laws.
is based solely upon the ground that the notice of intention to move for a new trial was not
filed within the time prescribed by section 5323 of the Revised Laws.
Appellant contends that the notice of intention to move for anew trial was filed within the
time as prescribed by the statute for the reason that no notice of the decision of the court was
served upon appellant before the filing of his notice of intention to move for a new trial. It is
the contention of counsel for appellant that the notice of decision, as contemplated and
required by section 5323 of the Revised Laws, is written notice. In other words, it is their
contention that, notwithstanding appellant had knowledge of the court's decision, he had the
right to wait for a notice in writing of the decision from the adverse party before giving notice
to his intention to move for a new trial.
In an opinion filed contemporaneously herewith, in the case of Studebaker Bros. Co. of
Utah, v. A. B. Witcher, A. Jurich, George A. McDonald, and Bartley Smithson (No. 2399) 45
Nev. 376, the majority of this court is not in accord with appellant's position. For the reasons
stated in the concurring opinion therein, we affirm the order of the lower court sustaining
respondent's objection to the appellant's motion for a new trial.
It is so ordered.
Ducker, J., dissenting:
I dissent.
As my reasons for holding that the statute involved means written notice are set forth in
the case of Studebaker Bros. Co. of Utah v. A. B. Witcher et al., filed on this date, it is
unnecessary to fully restate them.
The case of Cal. Imp. Co. v. Baroteau, 116 Cal. 136, 47 Pac. 1018, cited in the concurring
opinion in Studebaker v. Witcher et al., supra, does not change my views. In Cal. Imp. Co. v.
Baroteau the question of waiver was involved and decided by the court. Upon this point it
was said:
But where, as in the case at bar, a party makes a formal written motion to set aside
findings, reciting in his motion that the court had filed the same, he will not be heard to
say that he had no notice of such findings."
formal written motion to set aside findings, reciting in his motion that the court had filed the
same, he will not be heard to say that he had no notice of such findings.
In my opinion the case is therefore of little weight as against the settled rule that, where a
notice is required or authorized by statute in any legal proceedings, the notice must be in
writing. There is nothing in the statute to indicate that the word notice was not employed in
this technical legal sense.
Per Curiam:
Rehearing denied.
____________
[No. 2463]
HARRY H. HUNTER, JR., Respondent, v. THOMAS
SUTTON, Appellant.
[195 Pac. 342; 205 Pac. 785]
1. Appeal and ErrorOpinion of Trial Judge No Part of Judgment Roll.
The opinion of the trial judge is no part of the judgment roll and can only be used to aid the supreme
court in the proper determination of the appeal. (Per Sanders, C. J.)
2. Appeal and ErrorOn Appeal on Judgment Roll Difference in Findings Reconciled and
Presumed Justified by Evidence.
Upon an appeal upon the judgment roll alone, it is the duty of the court to reconcile all differences in
findings, and it must presume that they sustain the judgment and are justified by the evidence. (Per
Sanders, C. J.)
3. DamagesMotive for Breach Immaterial.
Generally speaking, the motive of a defendant in breaching a contract cannot be inquired into, and the
measure of the damages is the same whether it be wilful or malicious. (Per Sanders, C. J.)
4. Vendor and PurchaserOption to Purchase Defined.
An option to purchase is a contract supported by a consideration by which one party sells to another
the right, at the election of the latter, to purchase certain described property for the price and upon the
terms and conditions of the option contract. (Per Sanders, C. J.)
5. Mines and MineralsOption Contract to Purchase Land Held Not Mutual.
A contract giving parties the option to go on land and extract minerals and to pay for the land out of ore
extracted, but not requiring them to take the land, even after electing to assume the contract, held without
mutuality, notwithstanding that they were ready and able to complete the contract. (Per Sanders, C. J.)
6. JudgmentFindings Held Not to Support Judgment for Damages for Breach of Contract.
Where plaintiff averred that rescission of contract was illegal, which was material, and that, by reason of
the defendant's attempted revocation and rescission, he had been damaged in a certain sum, and the court
found that the contract was for a valuable consideration and that an attempt to revoke was absolutely null
and void, a judgment for damages for breach of the contract was not sustained. (Per Sanders, C. J.)
7. BrokersBroker Held Not Entitled to Commission or Damages, on Refusal to Allow Him
to Exercise Option to Purchase, where Contract with Owner Was Not Mutual.
Where an agent was authorized to sell mining land, and was also given an option to become a purchaser,
and the two contracts were considered as one, he was not entitled to a commission or damages by reason of
the owner's refusal to permit him to enter on his election to assume the option contract, where such contract
was not mutual in that the land was not to be conveyed until paid for out of ore extracted, and he had a
right to withdraw any time without liability. (Per Sanders, C. J.)
8. Specific PerformanceVendor and PurchaserOptions Given for Valuable Consideration
Irrevocable and Capable of Specific Performance.
Options to purchase land given for valuable consideration are irrevocable and are capable of specific
performance. (Per Coleman, J.)
9. BrokersBroker Selling to Syndicate of which He Is a Member not Entitled to Collect
Commission, unless Principal. Knowing of His Interest, Agreed to Compensate Him.
Where broker procures a sale to a syndicate of which he is a member, he cannot collect a commission
unless his principal, knowing his interest in the syndicate, specially undertook and agreed to compensate
him. (Per Coleman, J.)
Appeal from Sixth Judicial District Court, Humboldt County; Mark R. Averill, Judge.
Action by Harry H. Hunter, Jr., against Thomas Sutton. Judgment for plaintiff, and
defendant appeals. Reversed.
Booth B. Goodman (Moore & McIntosh, of counsel), for Appellant:
The complaint does not state a cause of action. It cannot be ascertained therefrom whether
the suit is brought on the theory of obtaining damages for the loss of probable profits or for
commissions earned by a broker, or for both.
Where a case is submitted on two theories, one of which is erroneous, and it is impossible
to determine on which theory the court or jury acted, the judgment must be reversed. King v.
Post, 21 Pac. 38.
Contract to give another, for a certain time, exclusive privilege to sell land, at an agreed
price, best endeavors to sell to be used, is not an option to buy the land. Faraday C. & C. Co.
v. Owens, 80 S. W. 1171.
The contracts are void, unilateral contracts, of no force or effect, there being complete lack
of mutuality, and they being without consideration. There can be no action on a contract
where the agreements are all on one side. U. & S. R. Co. v. Eerhoff, 21 Wend. 139. There
can be no contract without mutuality. Fenley S. & L. Co. v. Kurz, 34 Mich. 89; Burg v.
Harper, 4 Gill & J. 467; Morrill v. Tehama Con. M. & M. Co., 10 Nev. 125; Stiles v.
McClellan, 6 Colo. 89; Durant v. Comegys, 28 Pac. 425; 39 Cyc. 1206; Rude v. Levy, 96
Pac. 560; Smith v. Bateman, 53 Pac. 457.
Nominal consideration is insufficient. Velie Motor Co. v. Kopmeier M. Co., 194 Fed. 324;
Rude v. Levy, 96 Pac. 560; Berry v. Frisbie, 86 S. W. 558; Murphy v. Reed, 125 Ky. 585;
Kellebrew v. Murray, 151 Ky. 345; Stamper v. Combs, 176 S. W. 178; Great West Oil Co. v.
Carpenter, 43 Tex. Civ. 229. A consideration of one dollar will not support a promise to pay
more than one thousand dollars. Sheppard v. Rhodes, 7 R. I. 470; Rohwer v. Burrell, 42
Utah, 510; 1 Page on Contracts, 1128.
A promise is too vague and uncertain to amount to a consideration for the promise of the
other party. 13 C. J. 329.
A promise made conditional upon the will of the promisor is generally of no value. 13
C. J. 634.
There are no findings to support the judgment. Those filed are purely argumentative, few
of them being upon issues made by the pleadings. Lockhart v. Mack, 2 Nev. 294.
The plaintiff's reply did not deny the affirmative defense of failure of consideration, which is
therefore deemed admitted. 21 R. C. L. 561.
Sale of real estate being involved, a binding contract, signed by the prospective purchaser,
is necessary, in addition to such prospective purchaser being ready, able and willing.
Mattingly v. Pennie, 39 Pac. 200; Wilson v. Mason, 42 N. E. 134; Gilliland v. Jaynes, 129
Pac. 8.
A broker employed to sell is not entitled to compensation for procuring a purchaser who
takes no option on the property. Ward v. Zborowski, 63 N. Y. S. 219; Tousy v. Etzel, 34 Pac.
291; Lawrence v. Pederson, 74 Pac. 1011; Dwyer v. Raborn, 33 Pac. 350; Warnekroo v.
Bowman, 128 Pac. 49; Christensen v. Duborg, 150 Pac. 306; 4 R. C. L. 315.
After a broker has had a reasonable time to find a purchaser, the principal may revoke his
authority without incurring any liability. Collier v. Johnson, 67 S. W. 830. Where a broker
employed to procure a purchaser is discharged before procuring a purchaser under the terms
authorized, such broker is not entitled to any consideration. Cadigan v. Crabtree, 88 Am. St.
Rep. 397.
Purchase by a real-estate agent of property in his hands for sale, without the knowledge of
his principal, is sufficient to avoid the transaction, even though there be no fraud or injury to
the principal. Butler v. Agnew, 99 Pac. 396; 12 C. J. 692. The vital principle of the law of
agency is said to be good faith, and this prohibits one from acting as the agent of opposing
parties. Madden v. Cheshire, 77 Kan. 415; 12 C. J. 692, 2 C. J. 712; Dull v. Royal Ins. Co.,
159 Mich. 671; Webb v. Paxton, 36 Minn. 532; Ferguson v. Gooch, 94 Va. 1.
The fact that, unknown to the principal, a member of a firm of brokers employed to sell
land belonging to the syndicate to which the land is sold, bars the firm from recovering a
commission for the sale, although the price received by the principal was fair and all that he
demanded. An agent cannot recover a commission for a sale to himself, in the absence of a
special agreement therefor. Hammond v. Bookwalter, 12 Ind. App. 177; Gardner v. Ogden,
22 N. Y. 327.
R. M. Hardy and Cooke, French & Stoddard, for Respondent:
There is nothing indefinite about the complaint. The decision of the trial court is likewise
plainthat the measure of damages was the amount of commissions that should have been
paid for making the sale. All the allegations of the complaint make a complete, definite and
certain statement of a cause of action.
When respondent had performed his part of the contract, and consummation of the deal
was prevented by appellant, the commissions became immediately payable. 4 R. C. L. 315.
In order to entitle a broker under such a contract to receive commission when no sale has
actually been consummated, it is incumbent on him to prove that he found a purchaser ready,
willing and able to purchase the property on the terms fixed. Mattingly v. Pennie, 39 Pac.
200.
If the agent is the purchaser, his interests are not in conflict with those of the seller when
the contract in all its terms and conditions has already been made by the seller, and there is no
discretion left to the agent. 2 C. J. 713; German Ins. Co. v. School District, 80 Fed. 367.
The rule that an option contract based on a consideration is a binding enforceable contract
is now recognized and enforced in every jurisdiction. James on Option Contracts, secs. 301,
303. Clearly under the rule, a promise in the agreement binding on the optionee to perform
some act, the performance of which will be a real benefit to the optionor or a real detriment
to the optionee, furnishes sufficient consideration for the agreement."
a real benefit to the optionor or a real detriment to the optionee, furnishes sufficient
consideration for the agreement. Idem, sec. 314.
The consideration was adequate. At law, in the absence of fraud or mistake, the slightest
consideration is sufficient to support the most onerous contract obligation. James on Option
Contracts, secs. 324, 325, 327, 328.
This appeal is from a judgment upon the judgment roll alone, in an action brought to
recover damages for the alleged breach of several agreements, evidenced in writing, and
made the basis of the cause of action. The action was tried by the court without a jury. The
court decided the facts to be as stated in the complaint, and directed findings of fact and
conclusions of law to be prepared in accordance with its opinion filed, in so far as the opinion
passes upon the facts. Upon the findings and conclusions thus prepared and approved, the
court rendered judgment in favor of the plaintiff and against the defendant for the full amount
of damages demanded, to wit, $9,000, and for $380.50 costs. By reason of the decision upon
the former appeal herein, 45 Nev. 427, 195 Pac. 342, the defendant now brings the case here
upon appeal from the judgment.
According to the complaint and Exhibit A, made a part thereof, Thomas Sutton, defendant
in the court below, appellant here, on the 30th day of June, 1917, in consideration of the sum
of $1, to him in hand paid, and for the further consideration of the promises, covenants, and
agreements to be kept and performed, granted to Harry H. Hunter, Jr., the plaintiff and
respondent, what the parties concede to be an option to purchase eighteen lode mining claims,
valuable for their veins of tungsten ore, situate in Humboldt County make the sum of
seventy-five thousand dollars ($75,000) paid from the net returns resulting from the milling
of the ore taken from the property, according to the following percentages:
the ore taken from the property, according to the following percentages:
During the six months from the beginning of operations which shall not be later than
September 1, 1917, to March 1, 1918, 25 per cent. From March 1, 1918, to September 1,
1918, 33 1/3 per cent. On or after September 1, 1918, until such time as the balance necessary
to make the sum of seventy-five thousand dollars ($75,000) has been paid, 50 per cent.
Time is made of the essence of the agreement, and it contains forfeiture clauses and a
provision for a deed when the full purchase price has been paid and the conditions performed,
reserving title in the optionor until the full purchase price of $75,000 has been paid in the
manner provided in the contract. No time is specified in the agreement as to how long the
privilege to extract ore to pay the purchase price shall extend, except as may be inferred from
the nature, circumstances, and conditions of the contract.
According to the complaint and Exhibit B, made a part thereof, the parties, on the same
date, to wit, the 30th day of June, 1917, entered into the following agreement:
Know all men by these presents: That whereas, Thomas Sutton, the first party has this day
made an agreement with Harry H. Hunter, Jr., the second party, for the sale and transfer of
eighteen lode mining claims, situated near Mill City, Humboldt County, Nevada, to the said
second party, on the understanding that the said second party is going to endeavor to sell the
said mining claims to other parties, for the purpose of making a commission on the
transaction, the purchase price agreed to be paid by the second party to the first party being
seventy-five thousand dollars, now therefore, it is hereby agreed that the first party shall pay
to the second party, in the event of his effecting such sale to other parties, twelve per centum
(12%) on the purchase price so paid, as the payments are made to the first party or his agent,
said per centum to be paid and accepted as and for the agent's commission on the
transaction.
his agent, said per centum to be paid and accepted as and for the agent's commission on the
transaction.
In witness whereof, the parties hereto have hereunto set their hands, the 30th day of June,
1917.
Thos. Sutton.
H. H. Hunter, Jr.
It is alleged in the complaint that on the 31st day of July, 1917, the defendant entered into
an agreement with the plaintiff and one J. T. Goodin, amendatory and supplemental to the
contract, Exhibit A, and made a part of the complaint as Exhibit C, whereby Hunter and
Goodin obligated themselves to work and develop the mining ground at the rate of at least
1,200 one-man miner's shifts in each and every year, beginning September 1, 1917; the work
to be done in a minerlike fashion and for the purpose of developing the property as a
workable mine, and that any failure to perform the work or to sell ore should operate as a
forfeiture of the contract of June 30, 1917, which, by the supplemental agreement, is in all
other respects ratified and confirmed.
It is alleged that the time to begin work upon the property was, for a valuable
consideration, extended from September 1, 1917, to September 10, 1917, which extension
was indorsed upon the cover of the original contract. It is averred that on September 7, 1917,
the defendant served upon the plaintiff and Goodin notice, in writing, of his absolute
cancelation and rescission of Exhibits A and C, and verbally notified said parties of the
rescission and cancelation, which was accompanied by a threat that if they entered upon the
premises they would be ejected by force, if necessary. The notice is made a part of the
complaint as Exhibit D.
It is alleged that plaintiff, acting under and in pursuance to his agreement, performed
services in obtaining and did obtain purchasers of the rights conferred and granted by the
agreements, Exhibits A and C; that these purchasers were obtained prior to the breach and
cancelation of said agreements, and before the time provided therein to begin work on the
property had expired, and that said purchasers so obtained were ready, willing, and able
to take and assume said contracts, and all rights thereunder, on the terms therein
provided.
provided therein to begin work on the property had expired, and that said purchasers so
obtained were ready, willing, and able to take and assume said contracts, and all rights
thereunder, on the terms therein provided. It is averred that plaintiff paid money to the
defendant, and expended money in good faith, in the course of his acts performed under his
agreements and in his attempt to fulfil his contract, and that the defendant wholly failed and
refused to perform his agreements; that his breach thereof was not caused by plaintiff, and
that his cancelation and rescission of his contracts was against plaintiff's will, requests, and
protests, and was illegal and unlawful; and that, by reason of the cancelation and rescission of
said agreements, or the attempted cancelation thereof, plaintiff was damaged in the sum of
$9,000, and demands judgment against the defendant for that amount.
Upon the overruling of the demurrer to the complaint, the defendant for answer alleged his
admission of the contracts, exhibited with, and made a part of the complaint, and in this
connection alleged, in substance, that the original contract, Exhibit A, was made to run to
plaintiff as the representative of the H. M. Byllesby Company, and the agreement, Exhibit B,
was entered into with the understanding that in the event said company failed to accept the
offer left open by the contract, both agreements should be at an end; that said company did
refuse and decline to consider the offer, and that, at the time this action was brought, said
agreements were of no force or effect. The answer admits contract, Exhibit C, and for a
separate defense the defendant alleges that the contracts, Exhibit A and Exhibit C, were
without consideration and of no force or effect. It is averred generally that plaintiff failed and
refused to comply with his agreements, and that, for the reasons stated in the defendant's
notice of revocation of the contracts, made a part of the complaint, he canceled and rescinded
the same, and that, at the time of the commencement of this action, they were of no force or
effect.
The reply consists of specific demands and a demurrer to the defense, upon the ground that
it does not state facts sufficient to constitute a defense. The demurrer is disposed of in the
findings. It appears that the action was filed on September 9, 1917, and set for trial on the
19th day of July, 1918, and that, on the day before the time set for trial, the plaintiff was
allowed, upon motion, to amend his complaint by adding thereto a clause, in substance, and
to the effect, that, since the revocation of the contracts, the defendant had disposed of his
interest in the property, and since said date had extracted valuable ore therefrom, and that the
mining claims were of great value.
1. The findings follow closely the averments of the complaint, and, they contain specific
findings negativing the facts alleged in the answer of the defendant; they also seem to reflect
the opinion of the trial court upon the evidence, the weight of the testimony, and its views as
to the law applicable thereto. It is well settled that the opinion of the trial judge is no part of
the judgment roll, and that it can only be used to aid this court in the proper determination of
the appeal. But as both sides refer to the opinion of the court, and use it as a key to assist in
finding some theory upon which to reverse or to affirm the judgment, they not having had
anything to do with the formation of the pleading, the opinion is likewise here used to assist
in determining the principle on which the damages were assessed.
The prominent features of the findings and the conclusions of law may be summarized, in
brief, as follows: The contract, Exhibit A, was procured for the benefit of the H. M. Byllesby
Company, dealers in tungsten ore, who, because of the condition of the money market,
refused to consider the contract, which fact was communicated to the defendant, who shortly
thereafter became very much dissatisfied with the contract and expressed his dissatisfaction,
and because thereof the contract was altered and amended so as to run jointly to the plaintiff
and J. T. Goodin, but it did not change the contract except in the particulars that said
parties obligated themselves to perform 1,200 shifts of work on the property during each
year, and, in the event of their failure to do the work or to sell the ore, the contract was to
be at an end.
the contract except in the particulars that said parties obligated themselves to perform 1,200
shifts of work on the property during each year, and, in the event of their failure to do the
work or to sell the ore, the contract was to be at an end.
After the alteration and amendment of the contract, the time in which the parties had to
begin work upon the property was extended to September 10, 1917, and plaintiff formed what
is called the First Syndicate, to take over the property under the terms and conditions of the
contracts. The defendant objected to doing business with one of the parties, and the plaintiff
thereafter formed what is called the Second Syndicate, which was acceptable to the
defendant, who knew of its plan and purpose to comply with the terms and conditions of the
contracts. This syndicate was composed of plaintiff and Goodin and two others.
Thereafter the defendant, on the 7th day of September, 1917, revoked and canceled the
contracts, Exhibit A and Exhibit C, and the revocation thereof was without just cause or
excuse, done for the defendant's own gain, and he profited greatly thereby, in that he
afterwards extracted from the mining claims ore of the value of $116,000, and sold the
property in September, 1918, for the sum of $375,000.
The court finds that the plaintiff was not restricted to the Byllesby Company alone in the
performance of his agency agreement in his endeavor to sell the property, but that he might
dispose of it to others, and that the agency agreement was not affected by the refusal of said
company to accept the contract, or in any way whatsoever, and that the plaintiff obtained
purchasers (the Second Syndicate), prior to the revocation, ready, willing, and able to take
and assume the contracts and comply with the terms and conditions thereof.
The conclusions of law are that the contracts were not without consideration; that the
revocation thereof was null and void; that the defendant's act in prohibiting plaintiff and his
cooptionee Goodin from entering upon the property with a threat to eject them by force
was an illegal act; and that the plaintiff had been damaged in the sum of $9,000.
plaintiff and his cooptionee Goodin from entering upon the property with a threat to eject
them by force was an illegal act; and that the plaintiff had been damaged in the sum of
$9,000.
2. Counsel for the respective parties approach the consideration of the judgment from
different angles, and there is such a wide divergence between them as to the principles on
which the damages were assessed, and as to the theory on which the case was tried, that their
argument furnishes but little assistance in determining the merits of the appeal. But it is the
duty of this court to reconcile all differences in the findings, and it must presume that they
sustain the judgment and that they are justified by the evidence. The difficulty and confusion
in the case may be attributed to the fact that the gravamen of the complaint is that the
defendant, by his wrongful cancelation, or attempted cancelation and revocation of the
several agreements upon which the cause of action is grounded, and the wrong or injury done
entitles plaintiff to be recompensed in damages for the consequences immediately flowing
from the wrong or injury, these consequences being that the plaintiff and Goodin were
prevented from exercising the privilege of extracting ore from the property, and the plaintiff,
as agent, by the revocation of the contract, was cut off and deprived of his commission, and
his legal rights under the agreements being thus violated, he was entitled to be compensated
in damages for their violation. Yet the case was apparently tried (at least it is so argued here)
upon the theory that it was an ordinary action to recover damages for the breach of a single
and indivisible contract whereby the plaintiff was in the first instance constituted the
defendant's agent to sell the mining ground, and subsequently was given an option become a
purchaser of the property placed in his hands for sale.
The findings show that the contract was breached, and that plaintiff elected to stand on the
breach. They tend to show that plaintiff occupied the dual status of a purchaser and
agent; and, in estimating the damage for the breach of both features of the contract, the
court considered plaintiff's rights both as a purchaser and as an agent.
tend to show that plaintiff occupied the dual status of a purchaser and agent; and, in
estimating the damage for the breach of both features of the contract, the court considered
plaintiff's rights both as a purchaser and as an agent. It is inferable from the findings, read in
the light of the court's exhaustive opinion, that the defendant's act in rescinding his binding
agreements was not only hurtful, but wrongful, and was done for his own gain, and in
consequence thereof the defendant had made it impossible for plaintiff to reap any profits
from the exercise of the privileges afforded by the contract, or to be remunerated for his
services in obtaining himself, his cooptionee, and two others, ready, willing and able to take
and assume the contracts and comply with their provisions; and the wrongful revocation of
the contracts being for the defendant's own gain, the court manifestly took into consideration
his motive for breaching the contracts.
3. If the contract be a single and indivisible one, the motive for its breach was immaterial
and could not enter into the award and assessment of damages, for the reason that, speaking
generally, the motive of a defendant in breaching a contract cannot be inquired into, and the
measure of the damages is the same whether it be wilful or malicious. 8 R. C. L. 452, 453,
sec. 22. But it is manifest from the opinion of the court, read in connection with its findings,
that the motive and perfidy of the defendant influenced the court throughout its deliberations.
4. Both the trial court, and counsel in this court, treat the contracts, Exhibit A and Exhibit
B, as one and as being an option to purchase. This, in a certain sense, is true. The option
feature, in the first instance, granted the optionees the right to elect to accept an offer binding
on the vendor alone; but, when the parties elected to take and assume the contract, the
material question is: What was their status and their rights under it? It is manifest that the
contract was an executory, unilateral agreement, whereby the parties were granted the
privilege of entering into the possession of the property on a day certain, and paying the
purchase price of $75,000 out of mineral to be produced, which was a thing not in esse,
but forming a part of the earth.
agreement, whereby the parties were granted the privilege of entering into the possession of
the property on a day certain, and paying the purchase price of $75,000 out of mineral to be
produced, which was a thing not in esse, but forming a part of the earth. The contract contains
no provision by which the production of the ore could be compelled, and there was no
obligation on the part of the vendor to convey until the purchase price had been thus paid and
the conditions named performed. It gave the prospective purchasers the privilege of extracting
ore. It conferred upon them no interest in the property; its covenants did not run with the land.
It did not create an equitable title, but might ripen into such when the purchase price had been
paid and the conditions performed. An option to purchase is defined to be a contract,
supported by a consideration, by which one party (the optionor) sells to another (the optionee)
the right, at the election of the latter, to purchase certain described property for the price and
upon the terms and conditions of the option contract. James on Option Contracts, sec. 101.
5. Eliminating the confused phraseology of the contract, it appears from an observation of
its terms that its option feature was confined to the privilege of extracting ore, but in its
essence the contract was an executory, unilateral agreement. Upon the parties' election to
assume the contract, they were not purchasers in the sense of vendees. They had the right to
withdraw from the contract at any time, without any liability. The vendor was bound, but the
prospective purchasers were not. They, as above stated, were not bound to produce ore,
neither was there anything in the contract to compel them to do so. The contract was not
mutual. It is evident that, as a matter of law, their readiness and ability to complete the
contract or its revocation could not convert it, an unenforceable contract, into a binding and
effective contract of sale; yet the judgment is grounded upon the theory that it did.
Furthermore, it is alleged in the complaint that the revocation of the contract, or its
attempted rescission and revocation, was illegal; and the court finds, as a conclusion of law,
that the contract was for a valuable consideration, and its revocation was absolutely null and
void. If this be a correct conclusion of law, it is in effect a holding that, though the contract
was breached, nevertheless the breach was null and void and of no legal effect whatsoever.
Hence I am unable to understand how, if the contract was never rightfully or legally revoked,
the court could, as a matter of law, award plaintiff damages of $9,000 for its breach, when in
law it was not revoked.
6. But it is suggested that the decisions of this court are to the effect that the provision in
the statue, requiring the facts found and the conclusions of law to be separately stated, is
directory, and it is held in California that an erroneous conclusion of law constitutes no cause
for reversal if the judgment was right. Spencer v. Duncan, 107 Cal. 423, 40 Pac. 549. In the
case at bar, however, the plaintiff avers that the rescission of the contract was illegal, which
was a material averment, and that by reason of the defendant's attempted revocation and
rescission thereof he had been damaged in the sum specified. The findings being in conflict
and inconsistent on material points, the judgment cannot stand. Estep v. Armstrong, 91 Cal.
659, 27 Pac. 1091; Learned v. Castle, 78 Cal. 454, 18 Pac. 872, 21 Pac. 11; Southmayd v.
Berry, 2 Cal. Unrep. 322, 3 Pac. 893.
7. But it is argued that the judgment must be affirmed upon a well-recognized rule of law
that controls the relation between principal and agent, namely, that when an optionee is ready
and willing to exercise the option, but is prevented by the refusal of the owner to comply with
his agreement, the agent is entitled to his compensation. 4 R. C. L. 315, sec. 53. It has been
the endeavor to make it clear that the case at bar does not fall within this rule, for the reason
that the contract, upon which the plaintiff claims a commission was not one by which the
parties were mutually bound.
upon which the plaintiff claims a commission was not one by which the parties were mutually
bound. The optionees were merely granted the personal privilege of exploiting the property to
extract ore or not, as they pleased; they were at liberty to withdraw from the contract at any
time without liability. In this situation, I am clearly of the opinion that, upon the revocation of
such a contingent, uncertain, and speculative contract, the plaintiff could not recover any
commission. If, upon the election of the optionees to assume to complete the contract, they
acquired an interest in the property, this position might be untenable. Paul v. Cragnaz, 25
Nev. 293, 59 Pac. 857, 60 Pac. 983, 47 L. R. A. 540.
It is argued that, if the defendant by his revocation had not made it impossible for the
proposed purchasers to complete the contract, the agreed commission would have been paid.
A sufficient answer to this argument is that it makes the contingent and conditional elements
of the contract more apparent and material. The parties may have expected that the property
would produce ore of such quality as to eventually consummate the contract within a
reasonable time; but, nevertheless, plaintiff's commission was dependent upon a contingency
that might never happen, and he brought his action before it did happen. The result of the
judgment is that, in so far as the breach of the agency agreement is concerned, it places
plaintiff in a better position with respect to his compensation than he would have been in if
the contract had not been broken. In no case can this be done. 8 R. C. L. 434, sec. 9.
Referring again to the statement above made, that the contract was not one by which the
parties were mutually bound, due consideration has been given that line of authorities holding
that the doctrine of mutuality is modified in actions for the specific performance of option
contracts. Consideration has also been given the rule that, unless there is an agreement to the
contrary, a broker is entitled to his compensation when he has performed the service he was
employed to perform, whether the contract upon which he claims his commission fails of
consummation by some fault of the principal or not.
performed the service he was employed to perform, whether the contract upon which he
claims his commission fails of consummation by some fault of the principal or not.
Entertaining the view that the findings and conclusions do not support the judgment, it is
unnecessary to follow counsel in their able discussion of the question raised by appellant, that
the contract is violative of the common-law rule against perpetuities.
The judgment is reversed.
I concur in the order of reversal, but upon a somewhat different theory from that of my
esteemed associate.
Brushing aside superfluities, the facts are that the plaintiff obtained from defendant an
option upon a group of mining claims, with the privilege of purchasing them for $75,000, to
be paid out of the net proceeds of the ore shipped from the development. At the same time, he
obtained an agreement reciting the execution of the option, with the understanding that the
plaintiff was going to endeavor to sell the said mining claims to other parties, for the
purpose of making a commission on the transaction, wherein it was agreed that, in the event
of plaintiff's effecting such a sale to other parties for the sum of $75,000, he should receive
a commission of 12 per cent. The option agreement was later modified so as to have it run to
the plaintiff and J. T. Goodin, with the further provision that the optionees should do 1,200
shifts of work upon the property per annum, and that such work should begin not later than
September 10, 1917. On September 7, 1917, the defendant notified Goodwin and associates
that he had elected to declare the option forfeited, and that, if they entered upon the property
to do any work thereon, they would be forcibly ejected. The foregoing are undisputed facts.
The complaint alleges: "FifthThat plaintiff, acting under and in pursuance to said
agreements hereinbefore mentioned, performed services in obtaining and did obtain
purchasers of the rights conferred and granted by said agreement, hereinbefore referred
to and marked Exhibit A, and by the agreement hereinafter referred to and marked Exhibit
C, and of the mining claims, leases and options therein mentioned and described and
thereby agreed to be sold and assigned to plaintiff.
FifthThat plaintiff, acting under and in pursuance to said agreements hereinbefore
mentioned, performed services in obtaining and did obtain purchasers of the rights conferred
and granted by said agreement, hereinbefore referred to and marked Exhibit A, and by the
agreement hereinafter referred to and marked Exhibit C, and of the mining claims, leases and
options therein mentioned and described and thereby agreed to be sold and assigned to
plaintiff. And the purchasers so obtained were obtained by plaintiff prior to the breach and
cancelation of said contracts by the defendant, as hereinafter alleged, and before the time
provided in said contract had expired; and said purchasers so obtained were ready, willing
and able to take and assume said contracts and all rights thereunder on the terms therein
provided.
Paragraph 12 of the complaint alleges that, because of the said cancelation and rescission,
the plaintiff had been damaged in the sum of $9,000. An answer was filed denying the
material allegations of the complaint, except as to the undisputed facts stated.
After the trail the court made findings of fact favorable to the plaintiff, and entered
judgment accordingly for $9,000. This appeal is from the judgment alone; hence we have not
the evidence before us.
In reply to the charge made by counsel for appellant, in their opening brief, that the record
as made by the plaintiff is uncertain and confusing, and that it is impossible to ascertain
therefrom the plaintiff's theory of the case, counsel for respondent say:
Respondent's position is that he, having fully complied with all the terms of the
agreement and being prevented by appellant from going ahead and consummating the deal,
that he became immediately entitled to the commission which would eventually have been
paid to him, and which he had already earned under the terms of the contract.
From the view-point thus stated, the findings will be considered and the law applied. The
court found the undisputed facts to be as above stated; that the option was given for a
valuable consideration; that the plaintiff had spent time and money in endeavoring to find
a purchaser, and that, after several fruitless attempts, he organized what was known as
the "Second Syndicate," composed of himself and four others.
undisputed facts to be as above stated; that the option was given for a valuable consideration;
that the plaintiff had spent time and money in endeavoring to find a purchaser, and that, after
several fruitless attempts, he organized what was known as the Second Syndicate,
composed of himself and four others. The court further found:
That the plaintiff, acting under and in pursuance of the written agreements hereinbefore
designated as Exhibit A, Exhibit B, and Exhibit C, performed services in obtaining, and did
obtain, purchasers of the property, premises, rights, and privileges conferred and granted to
him by said written agreements and of the mining claims, leases, and options therein
mentioned and described and thereby agreed to be sold and assigned to the plaintiff prior to
September 1, 1917. That the purchasers so obtained were men forming the association
hereinbefore designated as the Second Syndicate, and they were ready, willing, and able to
take and assume said written agreements and all rights thereunder on the terms therein
provided, and they were ready, willing and able to purchase and take over the property and
premises of the defendant which he had agreed to sell and convey to the plaintiff, and upon
the terms and conditions provided in the written agreement made by the plaintiff and the
defendant.
Also:
That the plaintiff expended time, effort, and money and paid money to the defendant in
good faith in the course of his acts performed under and by virtue of the written agreements
made and entered into by and between him and the defendant, and in the course of his
attempts to fulfil said contract in the respects by him to be fulfilled.
That said syndicate arranged to provide money to take over the premises * * * and to
work and handle the same, to the extent of $4,500. That they likewise arranged for an
additional credit in the sum of $4,000.
The court also found that the defendant declared the option forfeited, and notified Goodin and
others that he would forcibly eject them if they sought to enter upon the property.
Paragraph 5 of the complaint amounts to nothing more than an allegation that the plaintiff
had found persons willing, ready, and able to assume his rights under the option agreement,
and the finding of the court is in accord with this interpretation of the allegation mentioned.
Assuming that the option was given for a valuable consideration, or because of work done or
money expended in pursuance of its terms, either by the plaintiff or by the Second
Syndicate, as found by the court, the cancelation thereof by the defendant, if an infringement
upon the rights of the members of said syndicate, would afford grounds for a cause of action
by the Second Syndicate. Respondent relies upon the rule stated in 4 R. C. L. 315, as
follows:
While, as above shown, according to the great weight of authority the mere procuring of
one to take an option does not entitle the broker to commission if the optionee elects not to
exercise the same, yet it is apparently well settled that the broker is entitled to his commission
if the option is actually exercised or the optionee is willing to exercise it, but is prevented
from doing so by the refusal of the owner to comply with his part of the agreement.
8. It is not understood that counsel for appellant disputes the correctness of the rule stated.
But it is, no doubt, well established that options given for a valuable consideration are
irrevocable. Such a contract is capable of specific performance.
The privilege given in options to the holder either to enforce or cancel the contract does
not prevent him from obtaining the specific performance of the contract, provided the option
itself is founded on sufficient valuable consideration. 25 R. C. L. 235, 236.
In Schroeder v. Gemeinder, 10 Nev. 364, it is held: "A court of equity, in actions for the
specific performance of optional contracts and covenants to lease or convey lands, will
enforce the covenant, although the remedy is not mutual, provided it is shown to have
been made upon a fair consideration, and where it forms part of a contract, lease, or
agreement that may be the true consideration for it."
A court of equity, in actions for the specific performance of optional contracts and
covenants to lease or convey lands, will enforce the covenant, although the remedy is not
mutual, provided it is shown to have been made upon a fair consideration, and where it forms
part of a contract, lease, or agreement that may be the true consideration for it.
This, it is believed, is sound doctrine. If an optional contract will support an action for
specific performance, the wrongful forfeiture of the contract by the optionor should be a
ground for a cause of action. In House v. Jackson, 24 Or. 89, 32 Pac. 1027, it was held that an
optionee, for a valuable consideration, was actually seized of the estate, and, as a
consequence, might sell the same before a conveyance had been executed to him,
notwithstanding an election to complete the purchase rested entirely with the purchaser.
However, in determining this case, it is not necessary for us to go the length to which the
Oregon court seems to have gone.
9. If the rule stated in Schroeder v. Gemeinder, supra, is soundand it seems to beit
would naturally follow as an inevitable consequence that if by canceling the option in the
instant case the Second Syndicate was prevented from working the property and paying
therefor, the plaintiff was, through the wrongful act of the defendant, prevented form
receiving his commission; unless it be that the plaintiff, being a member of the Second
Syndicate, could not recover a commission, compensation for his services or damages, as the
case might be, upon any theory. And we think such is the rule. In Hammond v. Bookwalter,
12 Ind. App. 177, 39 N. E. 872, quoting from the syllabus, it is said:
If one employ a firm of real-estate brokers to procure a purchaser for certain real estate,
and the brokers procure a sale thereof to a syndicate of which one of the brokers is a member,
the brokers cannot collect commission for such a sale unless it is made to appear that the
principal, knowing the interest of one of such brokers {his agent) in the syndicate
purchasing the property, specially undertook and agreed to compensate them for making
the sale."
such brokers (his agent) in the syndicate purchasing the property, specially undertook and
agreed to compensate them for making the sale.
Sustaining this rule are the following cases: Stewart v. Mather, 32 Wis. 344; Sterling E. &
C. Co. v. Miller, 164 Wis. 196, 159 N. W. 732; Finnerty v. Fritz, 5 Colo. 174; Christianson v.
Mille Lacs L. & L. Co., 113 Minn. 120, 129 N. W. 150, 31 L. R. A. (N. S.) 536, Ann. Cas.
1912a, 200.
The commission agreement, providing as it does that it is given for the purpose of
effecting a sale to other parties, makes the rule of exceptional force in the instant case.
The plaintiff being a member of the Second Syndicate, the judgment should be reversed.
Ducker, J., not participating.
____________
45 Nev. 453, 453 (1922) Memorial to Adolphus Leigh Fitzgerald
PROCEEDINGS
IN THE
SUPREME COURT OF THE STATE OF NEVADA
____________
Friday, September 9, 1921.
PresentHon. J. A. Sanders, Chief Justice;
Hon, E. A. Ducker, Associate Justice;
Hon. B. w. Coleman, Associate Justice,
and the Officers of the Court.
Hon Sardis Summerfield, chairman of the committee previously appointed to prepare a
memorial to the late Hon. A. L. Fitzerald, presented and read the following:
To the Honorable, the Chief Justice and Associate Justices of the Supreme Court of the State
of Nevada:
MEMORIAL
____________
ADOLPHUS LEIGH FITZGERALD
Honorable Adolphus Leigh Fitzgerald, former Chief Justice of the Supreme Court of
Nevada, died at the home of his son in the city of Boston on the 31st day of August, 1921.
Judge Fitzerald was a native of the State of North Carolina, born October 24, 1840. He
was graduated from the University of North Carolina with the degree of Bachelor of Arts in
1861, and with the Master's degree the following year. The Civil War was then at its height
and he cast his lot with the State of his nativity, enlisting as a private in a cavalry regiment,
and saw active service in the sanguinary battles of the Wilderness, Petersburg, and the Siege
of Richmond.
Wilderness, Petersburg, and the Siege of Richmond. Like the late Chief Justice of the United
States, he lived to be a conspicuous figure in a reunited Nation, to which his devotion and
loyalty was unbounded, and to receive the highest honors in the gift of the people of the
Battle-Born State, which came into existence in order that the cause of the great conflict
should forever be abolished.
Upon the conclusion of the War, Judge Fitzgerald moved to the State of California, where
he was soon after called to the chair of Latin and Greek in the Pacific Methodist College at
Vacaville, which position he resigned to accept that of Deputy Superintendent of Public
Instruction of the State of California, later accepting the presidency of the college of which he
had been a professor. During his five years as President of the Pacific Methodist College he
read law and was admitted to practice in the State of California in January, 1878. The same
year he moved to Nevada, locating in the then prosperous mining town of Eureka, and was
admitted to the bar of this court. He practiced his profession until 1887, then he was elected
Judge of the District Court of Nevada, and was reelected in 1896. At that time, and until
1896, the State comprised but one district with three Judges, his associates being Hon.
Richard Rising and Hon. R. R. Bigelow. In 1894 he was elected Judge of the Third District,
comprising the counties of Eureka, Lander and Humboldt and was twice thereafter reelected
to the same position. In 1900 he was elected a Justice of the Supreme Court of the State of
Nevada, voluntarily retiring as its Chief Justice in January, 1907. His judicial career covered a
period of twenty years. His service on the district bench covered the time of greatest
depression in the State of his adoption. His entry of service on the supreme bench was
coincident with the revival of the mining industry of Nevada and the beginning of its rapid
growth in agricultural and kindred pursuits. His career as a Judge is conspicuous for judicial
learning and conscientious devotion to public duty.
and conscientious devotion to public duty. His opinions as Justice and Chief Justice of the
Supreme Court are reported in Volumes 26 to 29, inclusive, of Nevada Reports. Couched in
the language of one versed in the classics, his opinions will stand as monuments to his ability
and integrity more lasting than chiseled marble.
Judge Fitzgerald was married in 1869 to Nancy McCoy, who died in 1882. From this
union two sons and a daughter were born, who survive their distinguished father. In 1884 he
was married to Mrs. Chappel, who died during his incumbency of the Supreme Court.
Judge Fitzgerald's activities were not limited to the narrow confines of his profession. He
took a deep interest in matters of civic welfare, both state and national. He was a profound
student of finance and one of the foremost advocates of bimetalism in America, to which
subject he devoted his gifted pen.
A genial and lovable man, and the finest type of the southern gentleman, he was,
nevertheless a man of strong and unyielding convictions as was evidenced by the fact that he
declined a renomination to this Court which was equivalent to an election, rather than to
endorse a political policy with which he was not in entire accord.
His work in and devotion to a great fraternal order was so conspicuous as to be deserving
of mention in the briefest account of his life's work. A devotee of Masonry for more than half
a century, and a member of all its branches, he was the dean of the Supreme Council of
Scottish Rite Masons of the 33d degree for the southern jurisdiction of the United States and
for many years it almoner.
Though the span of his life exceeded four-score years, to him it was vouchsafed to retain
his faculties to the end. For three-score years he was an active participant in the changing
conditions of a great Nation. He died in the fullness of years, with the respect and veneration
due to the faithful public servant and the upright and honorable citizen who gave a life of
service to his fellow men.
due to the faithful public servant and the upright and honorable citizen who gave a life of
service to his fellow men.
It is the recommendation of your committee that this memorial be spread upon the minutes
of this Court and that a duly engrossed copy be forwarded to the children of the decedent.
Very respectfully,
Sardis Summerfield,
G. F. Talbot,
Frank H. Norcross,
P. A. Mc Carran
John S. Orr,
Committee.
The Chief Justice:
Let the record show the report of the committee. The memorial will be entered in full on
the minutes of the Court and published in the next volume of the Nevada Reports, and the
Clerk is directed to forward copies to the members of the family of the deceased, as well as to
the Secretary of the Nevada Bar Association.
The Court will now adjourn out of respect to the memory of the deceased ex-Chief Justice.
__________

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