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52 Nev. 1, 1 (1929) Chartz v.

Cardelli
CHARTZ v. CARDELLI
No. 2841
August 1, 1929. 279 P. 761.
1. MortgagesGood Faith Mortgage to Secure Future Debts Is Valid.
Mortgage made in good faith for purpose of securing future debts is valid.
2. MortgagesValidity of Good Faith Mortgage to Secure Future Debts Is Not Affected by
Fact Future Advances Are To Be Made in Services, Instead of Money.
Validity of mortgage made in good faith for purpose of securing future debts is not affected by fact
that future advances are to be made in services, instead of money.
3. MortgagesWhere Mortgage Had Performed Services as Bound in Settlement of Estate
Prior to Time Second Incumbrance Attached, His Actual Notice Thereof Did Not
Remove Security for Advances and Services.
Where mortgagee was obligated by mortgage to make advances and perform services of attorney
required in settlement of estate, and services had nearly all been performed prior to date second
incumbrance attached, mortgagee's actual notice or knowledge of subsequent mortgage did not have
effect of taking from him security for advances and services he was compelled by contract to make and
perform.
4. MortgagesWhere it Is Optional with Mortgagee to Make Future Advances, Those Made
After Notice of Subsequent Incumbrance Are Not Superior Thereto.
Where it is entirely optional with mortgagee whether to make future advances or not, advances made
after notice of subsequent incumbrance are not superior thereto.
5. MortgagesJunior Incumbrancer Acquires Lien on Property as it then Is.
Junior incumbrancer acquires lien on property as it is at time the incumbrance attaches.
6. MortgagesPrior Mortgagee, Having Option to Make Advances, Cannot Knowingly
Prejudice Rights of Subsequent Incumbrancer by Adding Voluntarily to Own
Incumbrance.
As it is optional with prior mortgagee whether he will make advances, he is not allowed knowingly to
prejudice rights of subsequent incumbrancer, or defeat or impair his lien, by adding voluntarily to own
incumbrance.
7. MortgagesLien of Mortgagee for Services Performed After Notice of Subsequent
Mortgage Was Inferior Thereto, where Services Were Unnecessary Under First
Mortgage.
Where mortgagee, obligated by mortgage to make advances and perform services of attorney in
settlement of estate, after notice of subsequent mortgage of another, performed services which he was
not bound by his prior mortgage to perform, lien of second mortgage was superior
to that of first as to amount of unnecessary services.
52 Nev. 1, 2 (1929) Chartz v. Cardelli
which he was not bound by his prior mortgage to perform, lien of second mortgage was superior to that of
first as to amount of unnecessary services.
C.J.-CYC. REFERENCES
Mortgages41 C.J. sec. 362, p. 462, n. 30: sec. 428, p. 501, n. 1; sec. 467, p. 527, n. 22; sec. 468, p. 527, n.
26.
Appeal from Eighth Judicial District Court, Lyon County; Clark J. Guild, Judge.
Suit by Alfred Chartz against Carmelinda Cardelli and another, in which the named
defendant filed a cross-complaint. Decree adverse to plaintiff, and he appeals. Case
remanded for modification of judgment and decree.
John M. Chartz, for Appellant:
A mortgage may be made as well to secure future advances or indebtedness as for a
present debt or liability, and if executed in good faith it will be a valid security, in the absence
of statutory provisions to the contrary. 41 C.J., sec. 362, also note a.
In the recent case of Machado v. Bank of Italy, 228 P. 369, the Supreme Court of
California held a parol agreement to make advances binding and obligatory upon the
mortgagee, and that the advances so made took precedence over a junior mortgage where the
junior mortgagee had knowledge of the first mortgage, although the advances were made
subsequent to the execution and delivery of the second mortgage. (See paragraph 2 of the
syllabus.) See, also, Tapia v. Demartini, 77 Cal. 387; Hendon v. Morris, 110 Ala. 113; Jones
on Mortgages (8th ed.), sec. 457.
A mortgage for obligatory advances is a lien from its execution. If by the terms of the
mortgage an obligation is imposed upon the mortgagee to make the advances the mortgage
will remain security for all the advances he is required to make, although other incumbrances
may be put upon the property before they are made, and he has knowledge of such
incumbrances. Jones on Mortgages (8th ed.), sec. 454. The decisions are in substantial
agreement on this point.
52 Nev. 1, 3 (1929) Chartz v. Cardelli
are in substantial agreement on this point. The case of Capron v. Strought, 11 Nev. 304, cited
by the lower court, agrees.
Green & Lunsford, for Respondent:
This is a case of equitable cognizance; equity will recognize no right of a mortgagee to
make future advances when such advances are not made compulsory by the terms of the
recorded mortgage and of which the junior mortgagee has no notice, and to the prejudice,
impairment and destruction of a junior mortgagee's security, and especially when the senior
mortgagee has actual notice of the intervening mortgage. Fraud may exist in the concealment
of facts as well as misrepresentation of facts. 26 C.J. 1071, sec. 14.
In an early case which seems somewhat to have standardized the doctrine of mortgages to
secure future advances, Ackerman v. Hunsicker, 85 N.Y. 43, 39 Am. Rep. 621, it was held
that a mortgage to secure future advances was invalid as against a subsequent judgment.
The general principle governing the priority of liens as between one making future
advances and a second mortgagee rests upon the premise that the security under the
mortgage for future advances takes rank only from the date of the advances; and each advance
made is subject to the lien of all incumbrances that are duly recorded at the time it is made.
Brinkmeyer v. Browneller, 55 Ind. 487; Peabody v. Patton, 2 Pick. (Mass.) 517; Orvis v.
Newall, 17 Conn. 97; Schiffer and Nephew v. Fagin, 51 Ala. 335; Haines v. Beach, 3 Johns
Ch. (N.Y.) 459; Marcus v. Robinson, 74 Atl. 550; Farwell v. Lewis (Conn.), 14 Atl. 931.
The prevailing rule as to future advances, which is in accordance with common sense, is
clearly stated in 41 C.J. 527, sec. 468. See, also, 41 C.J. 581, sec. 543; note to Straeffer v.
Rodman, 146 Ky. 1, 141, S.W. 742; Merchants State Bank v. Tufts, 14 N.D. 238, 103 N.W.
760, 116 Am. St. Rep. 682; 41 C.J. 502, bottom of column 2; W.P. Fuller & Co. v. McClure
(Cal.), 191 P.
52 Nev. 1, 4 (1929) Chartz v. Cardelli
P. 1027, at 1030; 19 R.C.L. 429, sec. 211; Jones on Mortgages, vol. 1, sec. 368, p. 512.
There seems to be no dissent from the rule in the Unite States, and no respectable authority
have we found to the contrary, that where the senior mortgagee is not bound to make the
future advances and had notice of the junior mortgage, he will not be protected by a priority
for such future advances over the intermediate mortgagee. See Schmidt v. Zahrndt (Ind.), 47
N.E. 335; Omaha Coal & Lime Co. v. Suess (Neb.), 74 N.W. 620: Scheurer v. Brown, 73
N.W. 877; Union Natl. Bank v. Milburn & Stoddard Co., 73 N.W. 527 (N.D.).
A further principle is that the terms of a mortgage cannot be extended by construction so
as to include indebtedness not contemplated at the time of its execution. 19 R.C.L. 165; 19
R.C.L. 393, sec. 167.
The creditor cannot apply a payment so as to be inequitable and unjust to the debtor. (30
Cyc. 1235-1236). As a fortiori, he cannot apply the payment so that it would be inequitable to
a junior lienor. 30 Cyc. 1237, 1239, 1240, 1243, 1248.
OPINION
By the Court, Sanders, J.:
The appellant, Alfred Chartz, and the respondent, Carmelinda Cardelli, each sought a
decree for the foreclosure of their separate mortgages upon the same land. The appellant was
the first mortgagee, and the respondent the second. We shall refer to the parties here as
plaintiff and defendant. The plaintiff sued his mortgagor, Tancredi Cardelli, for the
foreclosure of his mortgage, and made Carmelinda Cardelli a party defendant, because of her
subsequent mortgage. The mortgagor defended the suit. The defendant Carmelinda Cardelli
also defended, and by way of cross-complaint sought the foreclosure of her mortgage. After a
full hearing upon the pleadings and evidence, the plaintiff was adjudged and decreed a first
mortgage lien upon the property for $3,000, the defendant a second mortgage lien thereon for
$21,000, and the plaintiff was adjudged and decreed a third mortgage lien for the sum of
$2,000 and for $435.
52 Nev. 1, 5 (1929) Chartz v. Cardelli
lien thereon for $21,000, and the plaintiff was adjudged and decreed a third mortgage lien for
the sum of $2,000 and for $435. The plaintiff appeals from that portion of the decree which
adjudged him a third lien upon the property for the sums stated.
Counsel for the defendant state in their brief that both mortgagees appeal. The record does
not support the statement. The only perfected appeal in this case is that of plaintiff, and we
shall confine our opinion to the question of whether the chancellor was wrong in holding that
the defendant, as second mortgagee, had a lien superior to that of plaintiff, as first mortgagee,
for said sums of $2,000 and $435. The pertinent facts are these:
Orlando Cardelli and Tancredi Cardelli owned and operated as tenants in common that
certain real estate known as the Cardelli Ranch, situate near Dayton, in Lyon County, Nevada.
In 1918, Orlando Cardelli died testate, seized and possessed of his undivided one-half interest
in the property, and left surviving him his widow, Carmelinda Cardelli. By his will he devised
one-third of his estate to his widow, one-third to Tancredi Cardelli, his brother, and one-third
to the children of said Tancredi Cardelli. Under his will he appointed and nominated Tancredi
Cardelli as executor, who, over the protests and objections of the widow, qualified as
executor. In the course of the administration of the estate, litigation arose between
Carmelinda Cardelli and Tancredi Cardelli. In this litigation Tancredi Cardelli was
represented by his attorney, Alfred Chartz, and Carmelinda Cardelli was represented by her
attorney, the late C.E. Mack. When the will had been admitted to probate, the executor
borrowed from Alfred Chartz, his attorney, the sum of $3,000, and to secure its payment
executed a mortgage upon his undivided one-half interest in the property in controversy.
Upon the trial of the case, the plaintiff testified that, contemporaneously with the
execution of his mortgage and as part consideration therefor, he verbally agreed to advance
his mortgagor the money required in the settlement of the estate of Orlando Cardelli,
deceased, and if, upon the closing of said estate, his mortgagor did not have sufficient
funds to pay his fees, he would accept his note therefor, which he did in the sum of
$5,000, dated on May 15, 1920, payable on or before three years from date.
52 Nev. 1, 6 (1929) Chartz v. Cardelli
settlement of the estate of Orlando Cardelli, deceased, and if, upon the closing of said estate,
his mortgagor did not have sufficient funds to pay his fees, he would accept his note therefor,
which he did in the sum of $5,000, dated on May 15, 1920, payable on or before three years
from date. The court found that this note was for legal services performed by plaintiff at the
special instance and request of his mortgagor, in the matter of the settlement of the estate of
Orlando Cardelli, deceased, and in effect found that there was a balance due upon said note of
$2,000. The court further found that between August, 1924, and August, 1926, Tancredi
Cardelli became indebted to plaintiff for services as his attorney in the sum of $435, which
services were rendered for the protection of the mortgage security and in and about the
business of his mortgagor. It was further found that prior to February 13, 1920, nearly all the
services in the matter of the settlement of the estate of Orlando Cardelli has been performed,
and that on February 13, 1920, Tancredi Cardelli and his wife executed and delivered to the
defendant, Carmelinda Cardelli, a mortgage upon the property in controversy to secure the
payment of their joint note for $21,000, and that thereafter, to wit, on May 27, 1921, Tancredi
Cardelli paid Alfred Chartz $3,000, which sum Chartz credited upon the principal of his note
for $5,000, dated May 15, 1920.
The defendant, Carmelinda Cardelli, in her answer and by way of cross-complaint,
asserted that the plaintiff should be estopped, debarred, and precluded from setting up or
claiming any lien prior or superior to that of the defendant for the reasons, first, that at the
time of the execution and delivery of her mortgage, plaintiff, as attorney for Tancredi
Cardelli, advised the defendant to accept and take a second mortgage upon the property for
the conveyance of all of her right, title, and interest therein; that the plaintiff then and there
represented to the defendant that his mortgage for $3,000 was the only existing lien or
incumbrance upon the property, which sum of $3,000 would shortly be paid, and plaintiff's
mortgage be discharged of record; that plaintiff participated in the transactions culminating
in the conveyance of defendant's interest in the property, and that plaintiff did not inform
the defendant that he claimed a lien upon the property for any indebtedness other than
that for the sum of $3,000.
52 Nev. 1, 7 (1929) Chartz v. Cardelli
in the transactions culminating in the conveyance of defendant's interest in the property, and
that plaintiff did not inform the defendant that he claimed a lien upon the property for any
indebtedness other than that for the sum of $3,000. Though the trial court held that plaintiff
was not estopped on the ground of fraud, as pleaded in the cross-complaint of Carmelinda
Cardelli, it held that he was estopped from asserting the balance of $2,000 due on the $5,000
note as a first mortgage lien, basing his holding on a ground not pleaded by the defendant,
Carmelinda. The reason given for so holding was that the indebtedness, evidenced by the
$5,000 note, was for the services performed in the matter of the estate of Orlando Cardelli,
deceased, and could have been paid out of that estate, and hence plaintiff should be estopped
from asserting it as a claim against Tancredi Cardelli of superior equity to that of Carmelinda
Cardelli. What matters it to Carmelinda? The estate was saved the $5,000. This is not
questioned. To now say that a claim, arising out of a contact entered into long prior to the
existence of the indebtedness to Carmelinda Cardelli, should be subject to a subsequent
claim, for no other reason than that given, would be inequitable.
The trial court found the fact to be that plaintiff's mortgage was given to secure an existing
debt of $3,000, payable from the mortgagor to the mortgagee, and, in addition thereto, that
the mortgage provided that it was given to secure any further advances which the mortgagee
might make to the mortgagor, and any indebtedness which might thereafter become payable
from the mortgagor to the mortgagee, and to secure all other sums then owing or which might
thereafter become owing from the mortgagor to the mortgagee.
1-3. Mortgages are but contracts, and it is the law that a mortgage made in good faith, for
the purpose of securing future debts, is valid, and that its validity is not affected by the fact
that the future advances are to be made in services, instead of money. Jones on Mortgages
(8th ed.), sec. 448. The trial court having construed plaintiff's mortgage to be one given to
secure an existing debt and any future indebtedness payable from the mortgagor to the
mortgagee, and with fraud out of the case, the matter for decision tersely is this: When
does a subsequent mortgage to secure a specific debt take precedence over a prior
mortgage given to secure a present debt and future advances?
52 Nev. 1, 8 (1929) Chartz v. Cardelli
existing debt and any future indebtedness payable from the mortgagor to the mortgagee, and
with fraud out of the case, the matter for decision tersely is this: When does a subsequent
mortgage to secure a specific debt take precedence over a prior mortgage given to secure a
present debt and future advances? The advances intended to be secured by the first mortgage
are identified by the plaintiff, as well as by the findings of fact of the trial court. According to
plaintiff's own testimony, he was obligated by his mortgage to make advances and perform
the services required in the matter of the settlement of said estate. The court having found that
the services had nearly all been performed prior to the date the defendant's second
incumbrance attached, we are of opinion that it would be manifestly unsound to hold that
plaintiff's actual notice or knowledge of the defendant's subsequent mortgage had the effect of
taking from him the security for advances and services he was compelled by his contract to
make and perform. Atkinson v. Foote, 44 Cal. App. 149, 186 P. 831; 41 C.J. 526, 527; Jones
on Mortgages, sec. 454. Both upon principle and authority, we conclude that the chancellor
was wrong in holding that the defendant, as second mortgagee, had a lien superior to that of
plaintiff's first mortgage as to the sum of $2,000.
4-7. But with respect to plaintiff's contention that he was entitled to a prior and superior
lien to that of the defendant for $435 for services performed at the special instance and
request of his mortgagor after notice of the defendant's second mortgage we are not in accord.
It may be conceded that the services performed subsequent to plaintiff's notice of the
defendant's mortgage benefited the mortgage security, and was intended to be covered by the
mortgage; but the instrument does not contain a clause making it obligatory upon the
mortgagee to act as attorney in and about the business of his mortgage. The unusual feature of
the instrument is that it is a contract between an attorney and client. As we interpret the
evidence, it was entirely optional with plaintiff whether he would perform the services or not
after the estate of Orlando Cardelli had been closed and defendant's lien had attached.
52 Nev. 1, 9 (1929) Chartz v. Cardelli
or not after the estate of Orlando Cardelli had been closed and defendant's lien had attached.
It is well settled that, where it is entirely optional with the mortgagee whether to make future
advances or not, advances made after notice of a subsequent incumbrance are not superior to
that of such subsequent incumbrance. The principle of the decisions is that such junior
incumbrancer acquires a lien upon the property as it then is, and, as it is optional with the
prior mortgagee whether he will make the advances,he is not allowed knowingly to prejudice
the rights of the subsequent incumbrancer, or defeat or impair his lien, by adding voluntarily
to his own incumbrance. Atkinson v. Foote, supra; Jones on Mortgages, sec. 453; 41 C.J. 526.
Upon principle and authority we conclude that the chancellor was right in holding that the
lien of the second mortgage was superior to that of the first, as to the sum of $435, though the
chancellor assigned a wrong reason for so holding.
For the reasons given, it is ordered that the case be remanded to the trial court, and that the
judgment and decree heretofore entered be modified, so as to constitute the balance of $2,000
due upon the $5,000 note a first lien.
____________
52 Nev. 10, 10 (1929) State v. Mills
STATE v. MILLS
No. 2866
August 15, 1929. 279 P. 759.
1. Indictment and InformationGenerally Indictment or Information Charging Offense in
Language of Statute Is Sufficient.
While common-law rule requiring statutory offense to be charged in exact language of statute defining
it has been relaxed by criminal practice act, sec. 208, as amended by Stats. 1919, c. 232, providing that
words used in statute defining public offense need not be strictly pursued, but other words conveying
same meaning may be used, generally indictment or information charging offense in language of statute is
sufficient whether offense is one which was such at common law or statutory offense.
2. Indictment and InformationIndictment or Information Charging Offense in Language of
Statute Is Not Sufficient where Statute Does Not State Essential Elements.
Where statute defining offense does not state its essential elements, indictment or information
charging offense in language of statute is not sufficient.
3. Indictment and InformationDefendant Is Entitled to Have Essential and Material Facts
Constituting Offense Charged Stated in Indictment or Information.
Under criminal practice act, sec. 200, as amended by Stats. 1919, c. 232, providing that indictment or
information must contain statement of acts constituting offense in ordinary and concise language and in
such manner as to enable person of common understanding to know what is intended, accused is entitled
to have essential and material facts constituting offense charged against him stated in indictment or
information.
4. AutomobilesInformation Charging Offense of Injuring Person by Driving Automobile
while Intoxicated Held to State Facts Sufficient to Constitute Public Offense.
Information charging offense of injuring person by driving automobile while intoxicated, defined by
Stats. 1925, c. 166, secs. 1, 3, charging operation of motor vehicle in reckless and dangerous manner,
which included language of statute, held sufficient, though not stating acts constituting driving in reckless
and dangerous manner, since particular manner constituting reckless driving is merely evidence of
ultimate facts proscribed.
5. StatutesSubject of Act Defining Offense of Injuring Another or Causing Death While
Driving or Operating Vehicle Under Influence of Intoxicating Liquor Held Embraced
Within Title.
Stats. 1925, c. 166, sec. 3, defining offense of injuring person or causing death by operation of any
vehicle while under influence of intoxicating liquor, held embraced within title of act to regulate traffic
on highway and provide punishment for violation thereof, since acts of intoxicated motor
vehicle drivers of character proscribed are certainly detrimental to traffic on
highways.
52 Nev. 10, 11 (1929) State v. Mills
violation thereof, since acts of intoxicated motor vehicle drivers of character proscribed are certainly
detrimental to traffic on highways.
C.J.-CYC. REFERENCES
Indictments and Information31 C.J. sec. 170, p. 650, n. 65; sec. 260, p. 708, n. 29; p. 709, n. 30.
Motor Vehicles42 C.J. sec. 1306, p. 1333, n. 24.
Statutes36 Cyc. p. 1035, n. 52.
Appeal from Tenth Judicial District Court, Clark County; Wm. E. Orr, Judge.
C.E. Mills was convicted of injuring a person by driving an automobile while intoxicated,
and he appeals. Affirmed.
Frame & Raffeto and T.A. Wells, for Appellant:
It will be observed from an analysis of section 3, chapter 166, p. 254, Stats. 1925, that the
gist of the offense denounced therein is the omission or commission of some act in violation
of the traffic statute, which results in the death or injury of some other person. It is essential
under the provisions of section 3 that, in addition to the fact that the driver is intoxicated, he
be guilty of some act or omission either forbidden or enjoined by law, which act or omission
contrary to law caused the injury. The fact that such act or omission was caused by the
intoxication of the driver aggravates the offense, so that that which if committed by a normal
person would only be a misdemeanor becomes a felony when committed by an intoxicated
person. In an information charging an offense under section 3 it is therefore essential to
distinctly and positively allege some act or omission prohibited or enjoined by the traffic law
which caused the injury and which was caused by the intoxication of the defendant. It is not
sufficient to use the mere designation of reckless driving or dangerous driving without
alleging the facts which make the same reckless or dangerous. It is necessary for the
prosecution in such a case to put its finger on the very act which is alleged to be a violation of
law, and the section of the law which it is alleged was violated. The statements contained in
the information in this case are merely argumentative and are conclusions either of law or
fact, and the information because of this failure is fatally defective and insufficient to
support a judgment, and the judgment should be reversed.
52 Nev. 10, 12 (1929) State v. Mills
and are conclusions either of law or fact, and the information because of this failure is
fatally defective and insufficient to support a judgment, and the judgment should be reversed.
State v. Dawson, 45 Nev. 255.
Appellant further contends that the title of the act, which is as follows: An Act to regulate
traffic on the public highways of this state, to provide punishment for violation thereof, and
other matters properly connected therewith, is not broad enough to comply with sec. 17 of
article IV of the Constitution of the State of Nevada, which provides that a law shall contain
but one general subject, and matters properly connected therewith, and that the same shall be
clearly stated in the title. No intimation is given by anything in the title of the act to indicate
that the same deal with or intends to deal with the acts of persons prohibited from driving at
all, or to deal with what is not merely a regulation but a prohibited act. We cite in support of
this contention: State v. Commissioners of Washoe County, 22 Nev. 400; State v. Hallock, 19
Nev. 384; State v. George Gibson, 30 Nev. 353. The subject of sec. 3, is neither expressed in
the title nor germane to or connected with the subject of the act, or properly connected with
the matter of regulation, and, we therefore submit, is clearly void.
M.A. Diskin, Attorney-General, Wm. J. Forman, Deputy Attorney-General, and Harley A.
Harmon, District Attorney, for Respondent.
It will be readily seen that the act or omission of which defendant was guilty in this case
was driving in a dangerous and reckless manner. Such driving is specifically prohibited by
section 1 of the act. As the statute plainly shows, the act prohibited is driving in a reckless
manner or in an other than careful and prudent manner.
The cases in this state are uniform in holding that an information or indictment, in
charging a statutory offense, may generally follow the statutory language and is then deemed
sufficient. See State v. Switzer, 38 Nev. 108; State v. McFarlin, 41 Nev. 486; State v. King,
35 Nev. 153. The one exception to this rule is stated in the case of State v. King, supra.
That exception is that, if the statute fails to set forth all of the elements necessary to
constitute the offense, an indictment or information charging the offense in the language
of the statute will be insufficient; and the case of U.S. v. Cruikshank, 23 L. Ed. 5SS, is
quoted with approval.
52 Nev. 10, 13 (1929) State v. Mills
stated in the case of State v. King, supra. That exception is that, if the statute fails to set forth
all of the elements necessary to constitute the offense, an indictment or information charging
the offense in the language of the statute will be insufficient; and the case of U.S. v.
Cruikshank, 23 L. Ed. 588, is quoted with approval.
The offense in this case is embraced within the language of the statute. The offense is
complete when a person, driving in a dangerous and reckless manner while intoxicated,
injures another person. Similar statutes are in force in other states, and indictments and
informations similar to the form used in the instant case have been construed by the highest
courts of other states. See State v. Welford, 72 Atl. 396; State v. Miller, 243 P. 73; Ex Parte
Von Perhacs, 212 P. 689; People v. Schulz, 197 N.Y.S. 889. The case of State v. Welford,
supra, is particularly on all fours with the case at bar.
Counsel for defendant urge that act, chapter 166, Stats. 1925, is unconstitutional for the
reason that the title is not broad enough to include prohibiting an intoxicated person from
operating a motor vehicle on highways; that regulation can never amount to prohibition.
Regulation of the traffic on highways necessarily involves prohibiting some acts. There could
be no regulation without some prohibition. Under the doctrine laid down in the cases of In Re
Calvo, 50 Nev. 125, and Ex Parte Ah Pah, 34 Nev. 283, it is only necessary for the subject
matter of an act to be germane to the title. Certainly the prohibiting of intoxicated persons
from driving or operating motor vehicles so as to endanger life and property is germane to the
subject of regulating traffic on the public highways of this state.
OPINION
By the Court, Ducker, C.J.:
This is an appeal from a judgment of conviction of injuring a person while driving an
automobile while intoxicated.
52 Nev. 10, 14 (1929) State v. Mills
Appellant contends that the judgment should be reversed, for the reason that the
information does not state facts sufficient to constitute a public offense.
We will examine this question. The charging part of the information is as follows: * * *
That C.E. Mills, on the 21st day of December, A.D. 1928, or thereabouts, and before the
filing of this Information, at and within the county of Clark, State of Nevada, did, then and
there, willfully, unlawfully and feloniously, while under the influence of intoxicating liquor,
and by reason of being under the influence of said intoxicating liquor, did drive and operate a
motor vehicle, to-wit: an automobile, in, along and upon a public highway in the City of Las
Vegas, County of Clark, State of Nevada, in a dangerous and reckless manner, and being,
then and there, under the influence of intoxicating liquor, and while operating and driving
said motor vehicle in a dangerous and reckless manner, did, then and there, strike and collide
with a certain motor vehicle, to-wit: an automobile, owned and operated at the time of said
collision by Mrs. George Ullom, which act and neglect of duty by said defendant, C.E. Mills,
while under the influence of intoxicating liquor, in colliding with and striking said motor
vehicle, owned and operated, then and there, by Mrs. George Ullom, did, then and there cause
great bodily injury to the said Mrs. George Ullom, and to those persons, then and there,
occupying said motor vehicle, owned and operated by Mrs. George Ullom, to-wit: Norman
Ullom, Mrs. George Ullom and Bert Nicholson.
The statute under which appellant was convicted is chapter 166, Stats. 1925, section 1 of
which provides in part as follows: It shall be unlawful for any person or persons to drive or
operate a vehicle of any kind or character in a reckless manner on any street or highway in
this state; or in any other than a careful or prudent manner.
Section 3 of said act provides: Any person or persons, while intoxicated, or under the
influence of intoxicating liquor, who drives or operates a vehicle of any kind, and who, by
reason of such intoxication or condition hereinbefore stated, does any act or neglects any
duty now or hereafter imposed by law, which act or neglect of duty causes the death of,
or bodily injury to, any person, shall be punished as for a felony."
52 Nev. 10, 15 (1929) State v. Mills
kind, and who, by reason of such intoxication or condition hereinbefore stated, does any act
or neglects any duty now or hereafter imposed by law, which act or neglect of duty causes the
death of, or bodily injury to, any person, shall be punished as for a felony.
It is to be observed that the information includes the language of the statute defining and
creating the offense. In an early case decided by this court, it was stated that the words of the
statute creating the offense, or words of similar import, should be used in the indictment.
People v. Logan 1 Nev. 110.
1. At common law it was necessary to charge a statutory offense in the exact language of the
statute defining it. This strict rule, however, has been relaxed by a provision of our criminal
practice act. State v. Anderson, 3 Nev. 254; section 208, Criminal Practice Act, as amended
by Stats. 1919, p. 417, c. 232. But ordinarily an indictment or information charging the
offense in the language of the statute is sufficient whether the offense is one which was such
at common law or a statutory offense. State v. Anderson, supra; State v. Luhano, 31 Nev.
278, 102 P. 260; State v. Switzer, 38 Nev. 108, 145 P. 925; State v. McFarlin, 41 Nev. 486,
172 P. 371; State v. King, 35 Nev. 153, 126 P. 880; State v. Raymond, 34 Nev. 198, 117 P.
17; 19 Cyc. 1393.
2. An execution to this general rule is made where the statute defining the offense does
not state its essential elements. State v. King, 35 Nev. 153, 126 P. 880; State v. Dawson, 45
Nev. 255, 201 P. 549.
3. A defendant is entitled to have the essential and material facts constituting the offense
charged against him stated in the indictment or information. State v. O'Flaherty, 7 Nev. 153;
section 200, Criminal Practice Act, as amended by Stats. 1919, at page 416, c. 232.
4. Appellant contends that the information falls within the exception stated, and is
therefore deficient. It is insisted that the particular omission in the information rendering it
fatally defective is the failure to state the act or acts of the appellant constituting the driving
of the motor car in a reckless and dangerous manner.
52 Nev. 10, 16 (1929) State v. Mills
driving of the motor car in a reckless and dangerous manner. We think the allegation in the
information that the motor vehicle was operated in a reckless and dangerous manner is a
sufficient allegation of one of the essential elements of this statutory offense. It includes the
language of the statute, to wit, in a reckless manner, and is a statement of the ultimate fact
denounced by the statute. It is a statement of the general manner of the driving which is
prohibited. The particular manner which constitutes reckless driving, whether on the wrong
side of the road or at excessive speed, is merely evidence of the ultimate fact proscribed,
which evidence need not be stated in an information or indictment. The particular manner in
which appellant was driving should have been peculiarly within his knowledge, and it is
therefore difficult to understand how he could have been misled as to his defense or otherwise
prejudiced by the lack of a more specific statement in the information.
The case of State v. Dawson, 45 Nev. 255, 201 P. 549, is cited by appellant, but that case
is readily distinguishable on the facts. In State v. Dawson, the offense sought to be charged
was an attempt to commit a crime. There was no statement of any of the essential elements
constituting the offense of an attempt. It was merely charged by its statutory designation.
Consequently the information was held to be fatally defective.
5. It is contended that section 3 of the act under which appellant was convicted is void, for
the reason that the subject contained in section 3 relating to the injury of a person by an
intoxicated driver, is not included in the title of the act, but is a different subject not properly
connected therewith. The title of the act reads as follows: An Act to regulate traffic on the
highways of this state, to provide punishment for the violation thereof, and other matters
properly connected therewith.
The subject matter of section 3 is plainly within the purview of this title. Its purpose is not
only punitive, but has to do with the regulation of traffic as well, in that it is calculated to
deter the commission of acts denounced by it.
52 Nev. 10, 17 (1929) State v. Mills
that it is calculated to deter the commission of acts denounced by it. Acts of intoxicated motor
vehicle drivers of the character prescribed by the section are certainly detrimental to traffic on
the highways of the state. Section 3 is not invalid. In Re Calvo, 50 Nev. 125, 253 P. 671.
The judgment is affirmed.
On Petition For Rehearing
September 27, 1929.
Per Curiam:
Rehearing denied.
____________
52 Nev. 17, 17 (1929) State Ex Rel. Baker v. Wichman Et Al.
STATE Ex Rel. BAKER v. WICHMAN Et Al.,
County Commissioners
No. 2868
August 29, 1929. 279 P. 937.
1. StatutesWhether Word Used in Statute Is Mandatory or Directory Depends on Intention
Gathered Therefrom if Such Intention Can Be Ascertained.
Whether word is to be construed as mandatory or directory depends on intention to be gathered from
statute, if such intention can be ascertained.
2. CountiesResolution of Board of County Commissioners, Purporting to Remove Duly
Elected Chairman of Board, Held Void.
Where pursuant to county government act, Stats. 1865, p. 257, sec. 3, as amended by Stats. 1921, p.
94, c. 54, and section 5, relating to meetings of the board of county commissioners and providing that
majority of board shall form quorum for transaction of business, and shall elect one of their number as
chairman of board, chairman was elected, resolution purporting to remove chairman was illegal and void,
since it was legislative intention that board of county commissioners should organize for period of its
existence, subject to certain contingencies.
3. Quo WarrantoQuo Warranto Was Not Proper Remedy to Restore Ousted Chairman of
Board of County Commissioners, Chairmanship Not Constituting Public Office.
Chairmanship of board of county commissioners does not constitute public office, but a mere
position, and hence quo warranto was not proper remedy for ousted chairman to pursue to restore him to
position formerly held, where resolution of board illegally removed him from chairmanship,
since chairman is not required to take oath, and no sovereign power is intrusted to
him.
52 Nev. 17, 18 (1929) State Ex Rel. Baker v. Wichman Et Al.
of board illegally removed him from chairmanship, since chairman is not required to take oath, and no
sovereign power is intrusted to him.
C.J.-CYC. REFERENCES
Counties15 C.J. sec. 101, p. 456, n. 40.
Statutes36 Cyc. p. 1157, n. 4.
Quo Warranto by the State on the relation of B.F. Baker, against John H. Wichman and
another, as majority members of the Board of County Commissioners of Mineral County, to
restore relator to the position of Chairman of the Board of County Commissioners.
Dismissed.
C.C. Ward and Cooke & Stoddard, for Respondents (on demurrer to complaint):
At the outset we assert that the office, position or employment, by whatever name it may
be called, of chairman of a board of county commissioners is not a public office within the
meaning of that term as used in Rev. Laws of Nevada, sec. 5656, relative to quo warranto. It
is not an office so far as the constitution is concerned, because no such officer or office is
mentioned in the constitution. The statute, sec. 1505, merely provides that the board shall
elect one of their number as chairman. He takes no official oath, gives no official bond, draws
no salary or other emolument, and has no duty or authority in regard to county government or
other sovereign powers of the state, other than those common to all members of the board. He
is merely the presiding officer in the meetings of the board, having some ministerial duties
incident to signing the minutes. Sec. 1505, Rev. Laws, provides that the records of each day's
proceedings shall be signed by the chairman and the clerk. We say this is a mere clerical
duty and not an exercise of power or authority bestowed by the law.
A chairman is a name given to the presiding officer of an assembly, convention,
committee, etc. 11 C.J. 226.
The great weight of authority holds the term office' to embrace the ideas of tenure,
duration, fees, or emoluments and duties. (Citing a long list of cases.) It is held by a great
many courts that to be an officer one must be charged by law with the sovereign power of
the state."
52 Nev. 17, 19 (1929) State Ex Rel. Baker v. Wichman Et Al.
held by a great many courts that to be an officer one must be charged by law with the
sovereign power of the state. State ex rel. v. Cole, 38 Nev. 215, 148 P. 551-553. See, also,
Attorney-General v. Tillinghast (Mass.), 89 N.E. 1060, 17 Ann. Cas. 449; State v. Hawkins
(Mont.), 257 P. 411-414; State ex rel. v. Christmas (Miss.), 88 So. 881.
The mere fact that by legislative enactment the board is directed to elect one of its number
as presiding officer, of itself indicates nothing as to whether such position is an office or mere
employment. On this point we quote and cite: But not all employments authorized by law
are public offices in the sense of the constitution. Patton v. Board (Cal.), 59 P. 702-704, 28
Am. St. Rep. 66.
The idea of an officer clearly embraces the idea of tenure, duration, fees or emoluments,
rights and powers, as well as that of duty. Burrill's Law Dictionary.
See, also, Georgia etc. Co. v. Gordon (Ga.), 11 S.E. 584; Cochran v. McCleary, 22 Iowa,
75; Reynolds v. Baldwin, 1 La. Ann. 162; Brewer v. Kellum (Fla.), 50 So. 581; State v.
Kiichli (Minn.), 54 N.W. 1069; 19 L.R.A. 779; Oehler v. St. Paul (Minn.), 219 N.W. 760.
Inasmuch as the board can completely and legally function without any chairman or any
presiding officer at all, we say the word shall in sec. 1505 is directory merely, and was so
intended by the legislature.
The chairman by virtue of his position as such, has no more or greater power to do
anything (except sign the minutes) than he would have if he were not chairman. Williams v.
Board (Mont.), 72 P. 775; Plumley v. Whiteside County, 164 Ill. App. 621.
That statute requires no official oath of office of chairman of the board is strongly
significant that mere requirement that a presiding officer be elected was not intended as
creating a public office. See State ex. rel. Kendall v. Cole, 38 Nev. 215, 148 P. 551;
Baltimore v. Lyman (Md.), 48 Atl. 145, 52 L.R.A. 406, 84 Am. St. Rep. 524; Throop v.
Langdon, 40 Mich. 673; Olmstead v. Mayor etc., 42 N.Y.S. 482; Collins v. Hun (N.Y.), 3
Hun. 680; Goud v. Portland (Me.), 51 Atl. 820.
52 Nev. 17, 20 (1929) State Ex Rel. Baker v. Wichman Et Al.
The Nevada constitution provides: The tenure of any office not herein provided for may
be declared by law, or when not so declared, such office shall be held during the pleasure of
the authority making the appointment. (Art 15, sec. 11.) This constitutional provision was
construed and applied in the case of Leeper v. Jamison, 32 Nev. 327, 108 P. 1. See, also, the
following California cases: Sponogle v. Curnow, 69 P. 255; Higgins v. Cole, 34 P. 678;
Briare v. Matthews, 258 P. 939; Patton v. Board, 59 P. 702, 78 Am. St. Rep. 74; People v.
Hill, 7 Cal. 97; Smith v. Brown, 59 Cal. 672.
Hence, unless sec. 1505 is construed to declare the tenure of the office of chairman of the
board of county commissioners, the demurrer should be sustained.
Thatcher & Woodburn and Green & Lunsford, for Relator:
Chairman of a board of county commissioners is a public office within the meaning of sec.
5656, Rev. Laws of Nevada. If the chairman is an officer at all, his office partakes of a public
character, and, therefore, he must be a public officer. The office of county commissioner is
created by the constitution, sec. 26 of art. 4 (Rev. Laws, sec. 284). Rev. Laws, sec. 1501,
provides the tenure of office of county commissioners. Sec. 1505, Rev. Laws, provides that:
They shall elect one of their members as chairman of the board, and the county clerk shall be
clerk thereof. The official duties of the chairman are manifold, as is shown by a mention of
part of them. Sec. 1505 provides: The record of each days' proceedings of said board shall be
signed by the chairman and the clerk. He is chairman of the rabies board (Stats. 1921, sec. 2,
p. 230). He has certain duties in regard to public roads (Rev. Laws, sec. 3023). He is
chairman of the town board of towns organized under the cities and towns acts, and signs all
bonds issued by the town (Rev. Laws, sec. 941). Under the act establishing the Mineral
County power system (Stats. 1921, p. 80) all bonds issued by the power system are required
to be signed by the chairman of the board of county commissioners.
52 Nev. 17, 21 (1929) State Ex Rel. Baker v. Wichman Et Al.
commissioners. Under the amendment (Stats. 1925, p. 59) the chairman of the board of
county commissioners becomes chairman of the board of management of the power system.
The statute of 1929, p. 103, made the chairman of the board of county commissioners general
manager of the power system with a salary not to exceed an additional thirty dollars per
month. It will be seen that in addition to being an officer under the constitution and laws of
this state, the chairman performs certain other ex officio duties incidental to his duties as
county commissioner.
County commissioners in practice exercise all of the sovereignty exercised by a county.
The chairman of the board exercises all of the duties of county commissioners as well as his
ex officio duties, and his position is one of dignity and honor from which he derives certain
emoluments.
In the case of Fuller v. Miller, 4 P. 175, 32 Kan. 130, in a proceeding in quo warranto, it
was held that a chairman of a board of county commissioners was an officer for the purposes
of such proceeding, and in the absence of a qualifying statute the chairman's tenure of office
was from the date of his election until the expiration of his term following the next
succeeding election.
In the case of Clayton v. Green (N.J.), 39 Atl. 667, the statute was held to restrict the
removal of a director of a board of chosen freeholders to cases where he was absent or
refused to act. This case is in point to the extent that it recognized a tenure, and that removal
could be had only upon the grounds specified in the statute.
The case of Prichard v. McBride (Ida.), 154 P. 624, was decided under a statute very
similar to ours, and is more squarely in point upon the question here presented as to tenure of
office of chairman of a board of county commissioners than any other case we have been able
to find. The statute did not expressly fix the tenure of office of the chairman, but, like out
statute, it did fix the tenure of office of the commissioners, and the case clearly holds that
the tenure of the office of chairman follows that of his tenure as commissioner.
52 Nev. 17, 22 (1929) State Ex Rel. Baker v. Wichman Et Al.
clearly holds that the tenure of the office of chairman follows that of his tenure as
commissioner. The opinion of the court in that case sounds very much like what was said in
the Florida case of Brewer v. Kellum, 50 So. 581, but it is urged that this case must be
distinguished because the Idaho statute provides that a chairman must be elected, while our
statute provides that a chairman shall be elected. It is said the word shall is often used in
a permissive sense, and is not always mandatory, but it is equally true that the word shall is
either directory or mandatory as the text in which it is contained by fair construction requires.
It is not apparent that the word must in the Idaho statute is any more mandatory than the
word shall in the Nevada statute, where both prescribe the duty of the board of county
commissioners to appoint a chairman.
The rule that the power to appoint generally carries with it as an incident the power to
remove does not apply when a definite term is attached to an office by law * * *. Further it
has been held that the rule is applicable only when the power to appoint is a continuing one.
Nocholson v. Thompson, 5 Rob. La. 367; Irving v. Ferguson, 118 Wash. 37, 202 P. 269;
Field v. Poe, 3 Ill. 79; Bergen v. Powell, 94 N.Y. 591.
OPINION
By the Court, Coleman, J.:
This is a proceeding in quo warranto to restore relator to the position of chairman of the
board of county commissioners of Mineral County. The petition alleges that he was elected a
member of the board of county commissioners of said county at the general election in 1926,
for the term of four years from the first Monday in January, 1927, and that the respondents
were elected members of said board at the general election in 1928, to take office on the first
Monday in January, 1929; that at the first meeting of said board, on the first Monday in
January, 1929, relator was elected chairman of said board; that at a regular meeting of said
board of county commissioners held on the 5th day of April, 1929, a resolution was
offered and adopted by a majority vote declaring the chairmanship of said board vacant,
and thereafter at the same meeting a motion was made and carried by a majority vote to
the effect that the respondent Wichman be the chairman of said board.
52 Nev. 17, 23 (1929) State Ex Rel. Baker v. Wichman Et Al.
board; that at a regular meeting of said board of county commissioners held on the 5th day of
April, 1929, a resolution was offered and adopted by a majority vote declaring the
chairmanship of said board vacant, and thereafter at the same meeting a motion was made and
carried by a majority vote to the effect that the respondent Wichman be the chairman of said
board. The reason recited for such action was the enactment of a certain statute by the
legislature of Nevada at the session in 1929 (Stats. 1929, c. 70), making the chairman of the
board of county commissioners of Mineral County the manager of the Mineral County power
system. To the petition a general demurrer was filed.
It is the contention of the relator that he was elected chairman for a term of two years; that
such chairmanship is a public office; and that the resolution removing him from said position
and the electing of the respondent Wichman was illegal, null, and void; and hence he should
be ordered restored to said position of chairman. The election and qualification of members
of the boards of county commissioners of the state, the holding of meetings of the board, and
the like, is controlled by the county government act, Stats. 1865, p. 257 Rev. Laws, sec. 1501
et seq., as amended.
Section 3 of the act as amended (Stats. 1921, p. 94, c. 54) reads: The meetings of the
board of county commissioners shall be held at the county seats of their respective counties *
* *; and provided, that the first meeting of said board in odd-numbered years shall be held on
the first Monday in January. * * *
Section 5 of the act as amended (Rev. Laws, sec. 1505), provides: A majority of the board
shall form a quorum for the transaction of business. * * * They shall elect one of their number
as chairman of the board. * * * In case the chairman shall be absent at any meeting of the
board, all documents, records, or papers requiring the signature of the board shall be signed
by the members present.
Pursuant to the election held in November, 1928, a new board of county commissioners of
Mineral County came into existence on the first Monday in January, 1929.
52 Nev. 17, 24 (1929) State Ex Rel. Baker v. Wichman Et Al.
came into existence on the first Monday in January, 1929. According to the allegations of the
petitioner, it organized by electing the relator as chairman. It is the contention of the
respondents that the provisions of section 1505, Rev. Laws, to the effect that the board shall
elect one of their members as chairman, is directory merely, and hence the board is at liberty
to remove a chairman at pleasure. This contention is based upon the use of shall, instead of
must, in the section mentioned.
1. Must has often been construed as merely directory (Words and Phrases, First,
Second, and Third Series); hence the failure to use that word means but little. As we said in
Eddy v. State Board of Embalmers, 40 Nev. 329, 163 P. 245, whether a word is to be
construed as mandatory or directory depends upon the intention to be gathered from the
statute, if such intention can be ascertained. While we think the word shall as used in the
section mentioned, should be construed as mandatory, we think it does not matter in this case
whether or not it is so construed. The history of such bodies in this state is that it has been the
uniform custom to elect a chairman at the first meeting of a new board. Orderly procedure
requires that there should be a chairman, since the board has to hear many applications,
grievances, and the like, and there must be some one to direct the proceedings. And it is clear
that it was the intention of the legislature that, upon the incoming of a new board, a chairman
should be elected. It is also clear that it was the intention that such board should organize for
the period of its existence, subject to certain contingencies, not necessary here to enumerate.
To take any other views would lead to serious consequences, for, as said in Prichard v.
McBride et al., 28 Idaho, 346, 154 P. 624, 625: A construction of the statute to the effect
that the commissioners may, at any or all of their regular meetings, make a change in the
chairmanship of the board, would result, in our judgment, in confusion and a lack of that
orderly proceeding on the part of the board in dispatching public business which is
contemplated by the statutes, and which the electors in the county have a right to
expect."
52 Nev. 17, 25 (1929) State Ex Rel. Baker v. Wichman Et Al.
which is contemplated by the statutes, and which the electors in the county have a right to
expect.
While the case of Burgan v. New Jersey Civil Service Comm., 84 N.J. Law, 219, 86 A.
929, is not identical in its facts, by analogy it strongly supports the view we have expressed.
In that case the court had under construction a question growing out of the employment of a
secretary by a county tax board. The court said:
A reading of this act makes it manifest that it compels a reorganization of the board
annually, because by force of its provisions one member of the board goes out each year and a
new member takes his place. And section 3 of the act provides: Each board shall, upon
organization, elect from among their number a president, and shall have power to employ a
secretary, and fix his compensation, which shall in no case be in excess of the amount paid to
any member of such board. * * *' The statute clearly implies the employment of a secretary by
the board, for the term of one yearthat is, during the life of the board, which is limited to
one yearor otherwise the provision for the organization of the board annually, and the
election from their number (including the new member) of a president, and with power to
employ a secretary, would be rendered senseless. We think that the term of the secretary is as
definitely fixed by law for one year, by the statute, as if the act had in express terms stated
that the term of employment of the secretary shall be one year. The logical sequence of this
view is that Mr. Smith's term was fixed by law, and was properly filled by the new board.
The case of Woolley v. Flock, 92 N.J. Law, 65, 105 A. 489, is to the same effect.
2, 3. We are clearly of the opinion that the resolution purporting to remove the relator as
chairman of the board of county commissioners was illegal, null, and void; however, we feel
that these proceedings should be dismissed, since such chairmanship does not constitute a
public office, but a mere position. In State v. Cole, 38 Nev. 215, 148 P. 551, we considered at
great length the question of what constitutes a public office.
52 Nev. 17, 26 (1929) State Ex Rel. Baker v. Wichman Et Al.
the question of what constitutes a public office. Counsel point out that the board county
commissioners is authorized by the constitution, and various sections of the statute are called
to our attention which it is claimed support such contention.
There is no doubt whatever but that a county commissioner is a public official. But it does
not follow that the chairmanship of the board constitutes an office. The act which provides
for the election of a chairman does not require that the chairman, as such, shall take an oath,
and no sovereign power is intrusted to him. In fact, none of the elements essential to the
existence of an office is expressed in the statute.
It is true that statutes subsequently enacted provide that the chairman shall perform certain
duties, but they are not incident to the existence of the position, for, if these statutes were all
repealed, the position would still exist.
For the reason given, it is ordered that this proceeding be, and it is hereby, dismissed.
____________
52 Nev. 26, 26 (1929) Lindsay v. Lindsay
LINDSAY v. LINDSAY
No. 2783
September 5, 1929. 280 P. 95.
1. JudgmentCourt Has Inherent Power to Remove Ambiguity in Judgment or Decree, or
Correct Clerical or Formal Error at Any Time.
Court has inherent power, independent of statute, to remove any ambiguity in judgment or decree, or
to correct clerical or formal error at any time.
2. DivorceDecree Providing that Husband Pay for Children's Support, Excepting Education
Costs, Held Not Ambiguous so as to Require Court to Construe Its Meaning.
Decree for divorce, providing that defendant husband pay certain sums in equal monthly installments
for support and maintenance of children to certain dates, excepting cost of their education, and providing
that plaintiff have custody of children during term of school year and that defendant have custody of them
during certain other terms, held not ambiguous as to terms for support, maintenance, and education, and
therefore forming no basis for court to construe its meaning on motion of defendant.
52 Nev. 26, 27 (1929) Lindsay v. Lindsay
3. DivorceOrder Altering Divorce Decree by Reducing Payments for Children's Support
Held Unauthorized, where Motion to Construe Decree and Order Were Not Made
Within Six Months.
Where order of court altered decree for divorce in substantial way by reducing amount which
defendant husband was required to pay wife for support and maintenance of minor children, changes
were unauthorized under rule 45 of district court, requiring notice to adverse party within six months,
where motion for construction of decree and order were not made within six months after judgment was
rendered.
4. DivorceIt Cannot Be Presumed that Court Decreeing that Husband Pay for Children's
Support, Excepting Education, Intended Support To Be Considered Part of Education
Costs.
Where decree for divorce provided that husband pay to wife certain sums for support and
maintenance of minor children, excepting costs of education, it is not to be presumed that court, in its
decree, intended support to be considered as part of cost of education, and therefore to be deducted from
payments when children were in custody of father.
C.J.-CYC. REFERENCES
Divorce19 C.J. sec. 818, p. 357, n. 34.
Judgments34 C.J. sec. 450, p. 229, n. 83; sec. 456, p. 236, n. 4.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Action by Helen Minor Lindsay against Gordon Inglis Lindsay. Decree for plaintiff. From
an order construing the decree, plaintiff appeals. Order reversed with directions.
Cooke & Stoddard, for Appellant:
The decree sought to be construed and modified was entered on March 22, 1924. The
trial court did not retain jurisdiction by providing in any manner for future adjustment or
modification of the alimony allowed plaintiff or of the sums ordered paid by defendant to
plaintiff for the support and maintenance of the two minor children. It was therefore without
jurisdiction to entertain a motion on February 2, 1927, to construe or in any manner modify it.
See District Court Rule XLV.
The general rule that a court has no power to amend a judgment after the expiration of the
term at which it was rendered, or after expiration of the statutory period of limitation, is so
well established that but few cases will be cited in relation thereto.
52 Nev. 26, 28 (1929) Lindsay v. Lindsay
of limitation, is so well established that but few cases will be cited in relation thereto. 34
C.J. 232; State v. Fourth District Court, 16 Nev. 371; Sweeney v. Sweeney (Nev.), 179 P.
638; Daniels v. Daniels, 12 Nev. 118.
In the instant case the order construing the former judgment is in effect and in fact an order
modifying the former judgment and reducing the amount formerly required to be paid by
respondent to plaintiff.
We submit that the decree entered by the trial court on March 22, 1924, is not in any way
ambiguous or obscure, and is not susceptible of any construction that can either reduce or
enlarge the amount ordered to be paid by respondent to appellant. It appears without
contradiction that after the entry of the judgment on March 22, 1924, and commencing on
April 1, 1928, the respondent, without demurrer or complaint, paid to the appellant the sum
of $416.66 each and every month up to and including the month of December, 1924, when he
reduced the amount, claiming inability to pay more.
If the judgment or the provisions of the agreement of the parties, which was incorporated
therein, was ambiguous, the construction placed on such ambiguity by the parties will be
adopted by the court. Rodee v. City of Ogdensburg, 148 N.Y.S. 826; Gamble v. Silver Peak,
34 Nev. 450; Carey v. Clark (Nev.), 161 P. 715; 13 C.J. 546, sec. 517; City Messenger Co. v.
Telegraph Co. (Ore.), 145 P. 657.
McCarran & Mashburn, for Respondent:
The order of the trial court is an order merely construing the decree as originally entered,
and is not an order modifying the decree in either its terms, substance or effect. The court
itself says that its action is a mere construction of the decree, using the following language at
the end of its order: Such is the court's construction of the decree.
Counsel for appellant have erred in their conception of the relief requested by our motion
and notice of motion, and granted by the court. In pursuing this misconception they have, we
believe, misapplied the law and cited cases and authorities which are not in point.
52 Nev. 26, 29 (1929) Lindsay v. Lindsay
and cited cases and authorities which are not in point.
The first authority cited by appellant, 34 C.J. 232, we submit itself shows that the
modifications and changes prohibited are those which go to matters of substance. And it
goes further and actually holds that such construction and such changes as are requested by
respondent and made by the district court are authorized after the expiration of the statutory
period of limitation or the expiration of the term. We are not seeking any modification of the
decree in matters of substance or in its terms; we are merely seeking to have the decree
already entered construed. This very volume of Corpus Juris, and in the section immediately
preceding the section relied upon and cited by counsel for appellant, sustains the very thing
for which respondent is contending. 34 C.J. 229-231, sec. 450. There are hundreds of cases
cited in the notes to sustain the last cited authority, cases from the courts of last resort of 43
states of the Union, including the State of Nevada, and from the United States Supreme Court
and many of the federal courts. (Note 83).
The right of a court to construe its judgment and decrees is inherent. It certainly has the
right to relieve its judgments and decrees of ambiguity. 34 C.J. p. 236, sec. 456; Sabine
Hardwood Co. v. West Lumber Co., 238 Fed. 611; Keene v. Welsh (Mont.), 21 P. 25;
Clemens v. Gregg (Cal.), 167 P. 299; O'Bryan v. Am. Inv. etc. Co. (Wash.), 96 P. 241;
Slingerland v. Slingerland (Minn.), 124 N.W. 19.
The court may even modify, upon proper showing, a decree of divorce, in so far as it
relates to the custody and support of the children, even after the expiration of the term or the
statutory period of limitation. Stewart on Marriage and Divorce, sec. 406; Keezer on
Marriage and Divorce, secs. 594 and 600; 9 R.C.L. 484, sec. 299; Beers v. Beers, 133 P. 606,
par. 1.
By a specific provision of the Nevada statute the courts of this state are given authority to
change their decrees with reference to the awarding of custody of the children when they are
satisfied that such a change is for the welfare of the children.
52 Nev. 26, 30 (1929) Lindsay v. Lindsay
is for the welfare of the children. Rev. Laws, sec. 5840. It is universally held that support of
minor children is always a mere incident to the order for their custody. Bancroft v. Bancroft
(Cal.), 173 P. 584, par. 3.
By the great and overwhelming weight of authority, the law does not require that either the
decree itself or the law reserve to the court the right to modify the decree regarding the
support of the children or the amount to be paid therefor, but even such modification may be
made in a decree where no such reservation is had. 19 C.J. 359, sec. 819, top of first column;
Lewis v. Lewis (Cal.), 163 P. 42; L.R.A. 1917f, 731.
Such changes may be made even where the children are out of the jurisdiction of the court.
Wells v. Wells (Ore.), 25 P. 266, pars. 1, 2.
A mere clerical error or mistake arising from inadvertance may be corrected by the court on
its own motion, so as to make the judgment speak the truth even after the term. In Re
Breckenridge, 34 Nev. 280, Ann. Cas. 1914b 873; Ehrhard v. Currie, 7 Nev. 222.
OPINION
By the Court, Ducker, C.J.:
On March 22, 1924, the court in the above-entitled action decreed a divorce in favor of the
plaintiff wife, appellant here, which contains the following provisions concerning the support
and custody of the minor children of the parties, to wit: That the defendant (husband) pay to
the plaintiff the additional sum of Twelve Hundred Dollars per year in equal monthly
installments for the full and entire support and maintenance of the minor child, Gordon Inglis
Lindsay, Jr., excepting therefrom the cost of his education, commencing on April 1, 1924,
and to continue until he shall become self-supporting; and that the defendant pay to the
plaintiff the additional sum of Twelve Hundred Dollars per year in equal monthly
installments for the full and entire support and maintenance of the minor child, Mary
deForrest Lindsay, excepting therefrom the cost of her education, commencing on April 1,
1924, and to continue until she shall marry; that the plaintiff be awarded the custody and
care of said minor children during the term of each school year, and defendant be
awarded the custody and care of each of said children during the summer school vacation
period and one-half of all other school vacation periods, and the defendant also be
awarded the care and custody of said children from Friday evening until Monday morning
on each alternate week during the school terms only, and when the schooling of said
children shall have been completed the care and custody of said minor children be equally
divided between plaintiff and defendant."
52 Nev. 26, 31 (1929) Lindsay v. Lindsay
Lindsay, excepting therefrom the cost of her education, commencing on April 1, 1924, and to
continue until she shall marry; that the plaintiff be awarded the custody and care of said
minor children during the term of each school year, and defendant be awarded the custody
and care of each of said children during the summer school vacation period and one-half of
all other school vacation periods, and the defendant also be awarded the care and custody of
said children from Friday evening until Monday morning on each alternate week during the
school terms only, and when the schooling of said children shall have been completed the
care and custody of said minor children be equally divided between plaintiff and defendant.
On February 2, 1927, through his attorney, defendant filed in the trial court his notice of
motion and motion for an order to construe the decree of divorce in the following particulars:
(1) As to whether said decree requires the respondent to pay all of the expenses of the
education of the children, or whether he may deduct such expenses as he may be required to
pay for their education from the $1,200 which he is required to pay each year for the support
and maintenance of each of them, and
(2) As to whether said decree requires respondent to pay appellant the sum of $1,200 per
year for the support and maintenance of each child, or whether he could deduct therefrom the
amount of expense he actually pays out each month for the support and maintenance of each
child when the children are in his custody during the vacation period of the year during that
portion of their lives when they are receiving their schooling and education and in his care
and custody thereafter as provided for in the decree.
In the motion is also contained a request for an order modifying the decreeing case the
court should construe it to require the respondent to pay the sum of $1,200 a year for the
support and maintenance of each child in addition to the expense of their education and the
expense of their support and maintenance while in his custody under the terms of the
decree, so as to provide that respondent would not be required to pay the full $100 per
month for each child during the time the children were in his custody, but would be
permitted to deduct all sums paid for their support, maintenance, and education during
such times.
52 Nev. 26, 32 (1929) Lindsay v. Lindsay
custody under the terms of the decree, so as to provide that respondent would not be required
to pay the full $100 per month for each child during the time the children were in his custody,
but would be permitted to deduct all sums paid for their support, maintenance, and education
during such times.
Affidavits and counter affidavits and documentary evidence were offered at the hearing on
the motion. The trial court overruled appellant's objections to the court entertaining
jurisdiction of the motion. After argument on the motion and consideration thereof, the court
entered an order which, omitting a statement of the portion of the decree to be construed, and
statements of the contentions of counsel, reads as follows:
If we deduct the cost of education from the amount mentioned in the decree, then it is not
a decree for Twelve Hundred Dollars per year in equal monthly installments for the full and
entire support and maintenance of the minor child. The phrase or clause excepting therefrom
the cost of his education' does not mean that the money is to be used for any other purpose
than the full and entire support and maintenance of the minor. In other words, the cost of
education is exclusive of the maintenance and support.
In this connection we will say that if the minor child lives with the father, or with any
other person, the mother is supposed to pay for the full support and maintenance out of the
Hundred Dollars, which the decree gives for such purpose. In other words, if the minor child
lives with the father six months of the year, the mother should pay to the father, from the
Hundred Dollars per month granted to her by the decree for the boy's support and
maintenance for six months.
This reasoning applies to both of the minors. Such is the Court's construction of the
decree. Done in open Court this 18th day of April, 1927.
The appeal has been taken from this order. Appellant contends that the order is in effect a
modification of the decree, that it reduces the amount required to be paid by respondent to
appellant, and that the court was without jurisdiction to make it.
52 Nev. 26, 33 (1929) Lindsay v. Lindsay
without jurisdiction to make it. Lack of jurisdiction is claimed because of the fact that more
than six months had expired from the rendition of the decree before notice of the motion was
given as required by rule 45 of the rules of the district court. The rule reads: No judgment or
other judicial act or proceeding shall be vacated, amended, modified, or corrected by the court
or judge rendering, making or ordering the same, unless the party desiring such vacation,
amendment, modification or correction shall give notice to the adverse party of a motion
therefor, within six months after such judgment was rendered, order made, or action or
proceeding taken.
On the other hand, respondent contends that the court had jurisdiction for the reason that
the motion was not to modify the substance, effect, or terms of the decree, but to construe and
clarify it wherein it was ambiguous, and which is all the court did by its order.
We are of the opinion that the district court rule is no bar to the correction of errors or
omissions of a clerical or formal nature, or limitation of the power of the court to construe a
decree or judgment wherein it may be ambiguous, so as to make it speak the truth as to what
was actually decided. It is intended as a time limit for vacating such a proceeding or for
altering it in any substantial way.
If the order of court is merely curative of uncertainty in the decree and in no way changed
it in substance, the court was not without power to so construe it, and its action must be
sustained.
1. It is well settled that a court has inherent power independent of statute to remove any
ambiguity in a judgment or decree or to correct clerical or formal error at any time. Gagnon v.
United States, 193 U.S. 451, 24 S. Ct. 510, 48 L. Ed. 745; Kaufman v. Shain, 111 Cal. 16, 43
P. 393, 52 Am. St. Rep. 139; Sparrow v. Strong, 2 Nev. 362; Ex Parte Breckenridge, 34 Nev.
275, 118 P. 687, Ann. Cas. 1914b, 871; Keene v. Welsh, 8 Mont. 305, 21 P. 25; Sabine
Hardwood Co. v. West Lumber Co. (D.C.) 238 F. 611-615; Clemens v. Gregg et al., 34 Cal.
52 Nev. 26, 34 (1929) Lindsay v. Lindsay
App. 272, 167 P. 299; 15 Encyc. Pl. & Prac. pp. 220-225; 1 Black on Judgments (2d ed.), p.
223 et seq.; 34 C.J., pp. 229, 235, 236. All courts, says Mr. Freeman, in his work on
Judgments (5th ed. vol. 1, p. 281), have inherent power, independent of statute, to correct
clerical errors at any time, and to make the judgment entry correspond with the judgment
rendered.
2, 3. But in our opinion the decree is not ambiguous as to the terms for support,
maintenance, and education, and therefore afforded no basis for the court to construe it. The
order of the court altered the decree in a substantial way by reducing the amount which
respondent was required to pay for the support and maintenance of the minor children. As the
time limit of the rule had expired when the motion and order were made, the change in the
terms of the decree is against the plain prohibition of the rule, and therefore unauthorized.
The decree clearly requires respondent to pay to the appellant $100 per month for each of
the children for their support and maintenance for the time specified, namely, in the boy's
case until he shall become self-supporting, and as to the girl, until she shall marry. From this
amount respondent is permitted to deduct any cost he may incur for their education. The order
of the court changes these specific terms and requires the appellant to pay the respondent, out
of the $100 per month which the court gives her for each child, the cost of its support and
maintenance while in his custody during the vacation and other periods mentioned in the
decree. While it may have been quite equitable to have placed such a provision in the decree
in the first instance, its terms awarding the respondent the custody of the children during the
lesser periods of the year while they are receiving their education do not justify the reading of
such an exception into the main provisions for support and maintenance under the theory of
construing the decree.
4. The only exception is for the cost of education. Education and support are unrelated
subjects, and it is not to be presumed that the court in its decree intended support to be
considered as a part of the cost of education, and therefore to be deducted from the $100
per month when the children were in his custody.
52 Nev. 26, 35 (1929) Lindsay v. Lindsay
support to be considered as a part of the cost of education, and therefore to be deducted from
the $100 per month when the children were in his custody.
Under the view we take of the decree, it is unnecessary to discuss the evidence adduced on
the hearing of the motion in the court below.
The order appealed from is reversed, and the lower court is directed to enter an order
denying respondent's motion.
____________
52 Nev. 35, 35 (1929) McGill v. Bankers' Trust Co.
In Re McGill's Estate
McGILL v. BANKERS' TRUST CO.
No. 2818
September 9, 1929. 280 P. 321.
1. CorporationsExecutors and AdministratorsCorporation Has Implied Power to do Acts
Necessary for Exercise of Powers Expressly Granted, and Officer Thereof May Make
Required Affidavit on Appointment of Corporation as Administrator.
Corporation has implied power to do all acts which may be necessary to enable it to exercise powers
expressly conferred, and officer of corporation authorized by act regulating banking, Stats. 1911, c. 150,
sec. 5 (Rev. Laws, sec. 620), to act as administrator, may make affidavit required of administrator.
2. Executors and AdministratorsForeign Corporation May Qualify as Administrator of
Decedent's Estate in Nevada.
Foreign corporation may qualify as administrator of estate of decedent in Nevada under Rev. Laws,
sec. 620, and Comp. Laws Utah 1907, sec. 424, authorizing organization of trust companies to act as
administrators; person who may qualify being designated by Stats. 1917, c. 192.
3. CorporationsForeign Corporation May Enter Into State and Exercise Legitimate Powers
as Corporation, Except as Limited or Prohibited by Local Laws or Public Policy.
Under principles of comity, and except as otherwise provided by constitution or statute, foreign
corporation may enter into state and carry on any business not prohibited by local laws or against local
public policy.
4. Executors and AdministratorsPresumption Prevails that No Public Policy Exists Against
Qualification of Foreign Corporation as Administrator, where it Is Qualified so to Act
in State of its Domicile.
In absence of local statute authorizing corporation to act as administrator, presumption would prevail
that no public policy exists against foreign corporation qualifying as administrator
where it is qualified so to act in state of its domicile.
52 Nev. 35, 36 (1929) McGill v. Bankers' Trust Co.
exists against foreign corporation qualifying as administrator where it is qualified so to act in state of its
domicile.
5. Executors and AdministratorsForeign Trust Company Held Entitled to Administrator
Estate Of Decedent in Nevada.
Foreign corporation organized as trust company held entitled to act as administrator of estate of decedent
in Nevada under Stats. 1917, c. 192, Rev. Laws, sec. 620, and Comp. Laws Utah 1907, sec. 424,
authorizing organization of trust companies with power to administer estates, and such power of foreign
trust company is not withdrawn by Rev. Laws, sec. 662, providing that no foreign trust company shall
engage in banking business in this state without first obtaining a license.
6. Executors And AdministratorsIn Proceedings to Set Aside Appointment of
Administrator, Supreme Court Must Presume that Original Petition for Appointment and
Evidence Thereunder, Not Included in Record, Were Sufficient.
Supreme court, in application to set aside appointment of administrator, must conclusively presume that
original petition for appointment set forth full compliance with all statutory requirements, and that petition
was sustained by proof, where no copy of such petition was included in record and no showing made as to
evidence introduced thereunder.
C.J.-CYC. REFERENCES
Corporations14a C.J. sec. 2086, P. 252, n. 11; Sec. 3928, p. 1217, n. 44.
Executors And Administrators23 C.J. sec. 128, p. 1050, n. 54, 55; sec. 158, p. 1060, n. 96.
Appeal from Ninth Judicial District Court, White Pine County; William E. Orr, Acting
Judge.
Application by Neil A. McGill and another to set aside the appointment of the Bankers'
Trust Company as administrator of the estate of William N. McGill, deceased. From an order
denying the application, applicant named appeals. Affirmed.
C.A. Eddy and Philip S. Ehrlich, for Appellant:
Under the common law a corporation was not competent to act as an administrator or
executor because it could not take an oath for the due execution of the office. Fletcher Cyc.
Corps., vol. 2, sec. 937; idem, vol. 2, p. 1883, n. 41.
And that the rule prevails at the present time , see Farmers Loan and Trust Co. v. Smith,
74 Conn. 625, 51 Atl. 609; Georgetown College v. Browne, 34 Md. 450; Continental Tr. Co.
v. Peterson, 76 Nebr.
52 Nev. 35, 37 (1929) McGill v. Bankers' Trust Co.
Continental Tr. Co. v. Peterson, 76 Nebr. 411, 110 N.W. 316, 107 N.W. 786.
At the time of said appointment, sec. 5910, Rev. Laws of Nevada, as amended in 1919, did
not provide that such oath could be taken and subscribed by an officer of the corporation, as it
does as amended in 1927.
Sec. 5474, Rev. Laws, provides: The common law of England, so far as it is not
repugnant to, or in conflict with the constitution and laws of this state, shall be the rule of
decision in all courts of this state.
It is said in Clark v. Clark, 17 Nev. 128: The common law of England, as modified by
English statutes, adopted prior to the time of the declaration of American independence, is
presumed to be the law of this state, so far as it is applicable to our condition. See, also, 5
Cal. Jur. p. 254.
A corporation is not a person within the purview of the probate law, where only persons
are mentioned as being competent to be appointed executors or administrators. State v.
Duncan, Probate Judge (Mo.), 257 S.W. 784; Grunow v. Simonitsch et al. (N.D.), 130 N.W.
835; Appeal of Woodbury et al., 96 Atl. 300; Equitable Trust Co. etc. v. Plume, 103 Atl. 940;
Matter of Avery, 45 Misc. Rep. (N.Y.), 529, 92 N.Y.S. 974; Fellows v. First National Bank,
159 N.W. 335.
Appointment of foreign corporation as executor or administrator is against public policy of
the state. Matter of Avery, supra.
The right of a trust company under its charter and the laws of its creation to exercise its
chartered powers and privileges beyond the boundaries of the state of its creation cannot
confer the right upon it to exercise such powers and privileges in another state if contrary to
its laws, or against its public policy. Matter of Avery, supra.
Where the state has a general law for the organization of domestic corporations with
provisions therein specifying the terms and conditions to be complied with by foreign
corporations before they may lawfully do business within the state, and special laws and acts
for the formation and organization of domestic banks and trust companies and according
such special privileges, foreign corporations coming in to the state to do business under
such general laws are not permitted to exercise such special privileges.
52 Nev. 35, 38 (1929) McGill v. Bankers' Trust Co.
the formation and organization of domestic banks and trust companies and according such
special privileges, foreign corporations coming in to the state to do business under such
general laws are not permitted to exercise such special privileges. In Re Estate of Prime, 136
N.Y. 347, 18 L.R.A. 713; White v. Howard, 46 N.Y. 144; Fletcher Cyc. Corps. vol. 8, sec.
5886: Matter of Avery, supra; Matter of Ballis, 144 N.Y. 132.
A foreign trust company may not come into this state and carry on a trust company
business under our general corporation laws relative to foreign corporations. New York etc. v.
Secretary of State, 150 Mich. 197, 114 N.W. 82; Union Savings Assn. v. Burns, 176 P. 227;
Fletcher Cyc. Corps., sec. 5734, vol. 8; Matter of Avery, supra.
Therefore the order appoint such administrator of estate is void, as well as the letters of
administration issued thereunder. Continental Trust Co. v. Peterson, 107 N.W. 788: notes to
Giglio v. Wollard, 14 A.L.R. 616; Haug v. Primeau, 98 Mich. 91, 57 N.W. 25; Moore v.
Philbrick, 32 Me. 103: 15 C.J. 729, Excess of Jurisdiction; 15 C.J. 852; 15 Cal. Jur. 49.
Chandler & Quayle, for Respondent:
Assuming, for the sake of argument, that the Bankers' Trust Company was not eligible to
be appointed or to act as administrator, the order appointing it was not void, but at the most
was only erroneous and voidable. Lincoln Trust Company v. Gaddis and Perry, 15 Ariz. 372,
139 P. 461; Union Savings Bank and Trust Co. v. Western Union etc. Co., 79 Ohio St. 89, 86
N.E. 578, 128 Am. St. Rep. 675; note to Giglio v. Woollard, 14 A.L.R. 616.
The order and letters not being void and not having been appealed from may only be
revoked for one of the causes specified in the statute, which does not include the cause
presented by the motion involved on this appeal. The principle is well established in the
construction of statutes that where certain things are enumerated as disqualifications, then all
other things are excluded; this principle being expressed in the maxim 'expressio unius est
exclusio alterius.'" In Re Bailey's Estate, 31 Nev. 3S3
52 Nev. 35, 39 (1929) McGill v. Bankers' Trust Co.
expressio unius est exclusio alterius.' In Re Bailey's Estate, 31 Nev. 383, 103 P. 232. See,
also, Munroe v. People, 102 Ill. 406; Clark v. Patterson (1905), 214 Ill. 533, 73 N.E. 806, 105
Am. St. Rep. 127; In Re McDonald's Estate (1914), 211 N.Y. 272, 105 N.E. 407; In Re
Rhoda (Matter of Giotto), 105 App. Div. 143, 93 N.Y.S. 973; In Re Shenk's Estate, 125 Misc.
386, 211 N.Y.S. 514; Miller v. Hider, 9 Colo. App. 50, 47 P. 406; Sweeney v. Sweeney, 42
Nev. 431, 179 P. 638.
Movants were estopped by their conduct to urge the motion and had lost the right to do so
by their laches. Estate of Kirtlan, 16 Cal. 162; Estate of Keans, 56 Cal. 407; Silvar's Estate
(Cal.) 46 P. 296; In Re Infelise's Estate, 51 Mont. 18, 149 P. 365; Miller v. Hider, supra.
A foreign corporation may receive letters of administration and act as administrator under
the laws of Nevada, and hence the appointment of the Bankers' Trust Company was not even
erroneous or voidable.
On the ability of a corporation to take the administrator's oath, see Woerner on
Administration (1923 ed.), p. 788; 23 C.J. 1026; Fidelity etc. Co. v. Niven (Deringer v.
Deringer), 5 Houst. (Dela.) 416, 1 Am. St. Rep. 150 (reversing the decision of the superior
court in 5 Houst. 163); Minnesota Loan & Trust Co. v. Beebe (Minn. 1889), 41 N.W. 234, 2
L.R.A. 418; Simmons v. Campbell (Tex. Civ. App.), 213 S.W. 338; Union Bank and Trust
Co. v. Wright (Tenn.), 58 S.W. 755; Kelly v. Calhoun, 95 U.S. 710, 24 L. Ed. 544;
Killingsworth v. Portland Trust Co., 18 Ore. 351, 7 L.R.A. 638, 17 Am. St. Rep. 737, 23 P.
66; Scott etc. Co. Ltd. v. Leake (1908), 9 Cal. App. 511, 99 P. 731; Old Settlers Inv. Co. v.
White, 158 Cal. 236, 110 P. 922; American Soda Fountain Co. v. Stolzenbach, 75 N.J.L. 721,
68 Atl. 1078, 127 Am. St. Rep. 822, 16 L.R.A. (N.S.) 703; Jotter v. Charles B. Marvin Inv.
Co., 67 Colo. 555, 189 P. 22; Mulherin v. Kennedy, 120 Ga. 1080, 48 S.E. 437; In Re Roth's
Estate, 107 Misc. 598, 176 N.Y.S. 887; In Re Goddard, 94 N.Y. 544; Louisville etc. Co. v.
Herndon's Administrator, 126 Ky. 589, 104 S.W. 732, 31 Ky. L. 1059.
52 Nev. 35, 40 (1929) McGill v. Bankers' Trust Co.
The word persons in the Nevada statute relating to those entitled to administer estates of
deceased persons includes a corporation. Simons v. Campbell, supra; Louisville etc. Co. v.
Herndon's Administrator, supra; American Soda Fountain Co. v. Stolzenbach, supra; Martin
v. Atlas Estate Co. (N.J.), 65 Atl. 881. The Majority opinion in Fellows v. First National
Bank (Mich.), 159 N.W. 335, is also an emphatic authority against appellant's contention.
The word person' includes a company, partnership, association or corporation as well as a
natural person. Sec. 5475, Rev. Laws.
It is not contrary to the policy of the Nevada laws for a foreign corporation to act as
administrator, and consequently a corporation may so act in this state. 12 R.C.L. 11 (Foreign
Corporations), sec. 5; 12 R.C.L. 13, 14, sec. 6; 14a C.J. 1217-1218; 14a C.J. 1327;
Commonwealth Acceptance Corporation v. Jordan, 198 Cal. 618, 246 P. 796. If the Nevada
banking act does not, as we contend it does, affirmatively show that the Nevada legislature
contemplated that foreign trust companies might carry on their business in the State of
Nevada, the very fact that the Nevada legislature has granted to domestic trust companies the
power to act as executors and administrators shows that it is the policy of the state to permit
corporations to so act, and this policy will include foreign corporations in the absence of the
expression of a positive intention to the contrary. In Re Rawitzer's Estate, 175 Cal. 585, 166
P. 551; Fidelity etc. Co. v. Niven, supra; Fellows v. First National Bank, supra; In Re Bailey's
Estate, 31 Nev. 382, 103 P. 232.
John D. Hoyt, Amicus Curiae:
It is contended by appellant and entirely acquiesced in by this writer that a corporation
cannot be appointed executor or administrator at common law because of its inability to take
the oath of office (Thompson on Corporations, 3d ed., sec. 2233), and that such appointments
are entirely dependent upon some legislative enabling act providing the manner in which a
corporation may take the oath. It was not until the year 1927 that the legislature of this state
passed an amendment to section 5910, Rev. Laws, which appears in the session laws of
1927, p.
52 Nev. 35, 41 (1929) McGill v. Bankers' Trust Co.
legislature of this state passed an amendment to section 5910, Rev. Laws, which appears in
the session laws of 1927, p. 28, in which amendment statutory authority is given to a
domestic corporation or a banking corporation to take the oath of office as executor or
administrator through one of its officers. It is earnestly contended that prior to the adopting of
this amendment no corporation could act as executor or administrator in this state, and that
the right as it now exists is entirely confined to banking corporations and Nevada
corporations qualified to transact a trust business. In the case at bar a foreign corporation was
appointed administrator, and this in the year 1923, four years before any character of
corporation was authorized by the statute to qualify in this capacity.
We also agree with counsel for appellant in his contention that where there is a special act
for the incorporation of banks and trust companies, and general laws under which foreign
corporations may come into the state and do business, such general laws relate only to the
right of foreign corporations to transact general corporate business in this state, and do not
authorize them to come into the state for the purpose of transacting banking and trust
company business, for which a special state charter is required. Authorities on this point are
cited by appellant.
The writer feels, however, that there is a more direct prohibition against the right of a
foreign corporation to transact trust company business or to act as executor or administrator
than the general proposition hereinabove discussed. The banking act of 1911 (Rev. Laws,
secs. 616-693, inc.), in addition to being a general law for the incorporation of domestic
banks and trust companies, is a limitation of the right to transact either a banking or a trust
company business, as defined in the act, to banking corporations organized under the
provisions of that act, or national banks doing business in this state, except that banking and
trust corporations duly organized prior to the year 1911 are permitted to continue such
business as originally incorporated. This would exclude all other Nevada corporations and
all foreign corporations.
52 Nev. 35, 42 (1929) McGill v. Bankers' Trust Co.
would exclude all other Nevada corporations and all foreign corporations. Attention is called,
in this connection, particularly to the provisions of sections 619, 687 and 690, Rev. Laws.
Similarly, no corporation can transact any of the kinds of business mentioned in sec. 620,
Rev. Laws, and this includes acting as executor and administrator of an estate, unless it was
qualified as a trust company in Nevada prior to 1911, or unless it has since been incorporated
under the provisions of the banking act and not as an ordinary corporation.
For the foregoing reasons it is submitted that the appointment of Bankers' Trust Company,
a Utah corporation, as administrator of the estate of William N. McGill, deceased, was
improper.
OPINION
Per Curiam:
This is an appeal from an order refusing to declare null and void an order appointing
Bankers' Trust Company, a Utah corporation, administrator of the estate of William N.
McGill, deceased.
The deceased left surviving him a widow and two children who had attained their
majorities. Neither of them applied for letters of administration upon the estate, but they all
urged the appointment of said trust company. Said company made application to be appointed
such administrator, and in due time, after notice of the hearing on said application, there
being no objection made thereto, the court made an order appointing said trust company
administrator of said estate, on May 16, 1923. On May 23, 1927, the two sons above referred
to applied to the court for an order declaring null and void said appointment. It is from the
order denying such application that this appeal is taken by Neil A. McGill, one of the sons
mentioned.
Appellant makes four points, namely: That a corporation was not competent to act as an
administrator at common law because it could not take an oath; that a corporation is not a
person within the purview of our probate statute; that the appointment of a foreign
corporation as an administrator is contrary to public policy; and, lastly, that the
legislature having enacted a special law governing banks and trust companies, the
general law as to foreign corporations does not apply.
52 Nev. 35, 43 (1929) McGill v. Bankers' Trust Co.
probate statute; that the appointment of a foreign corporation as an administrator is contrary
to public policy; and, lastly, that the legislature having enacted a special law governing banks
and trust companies, the general law as to foreign corporations does not apply.
The legislature in 1917 amended the then existing law designating who shall be
respectively entitled to the appointment as administrator of the estate of a deceased person. It
reads:
FirstThe surviving husband or wife, or such person as he or she may request to have
appointed.
SecondThe children.
ThirdThe father, or the mother.
FourthThe brother.
FifthThe sister.
SixthThe grandchildren.
SeventhAny other of the kindred entitled to share in the distribution of the estate.
EighthThe creditors.
NinthThe public administrator.
TenthAny of the kindred not above enumerated, within the fourth degree of
consanguinity.
EleventhAny person or persons legally competent. Stats. 1917, p. 355, c. 192.
We concede, without so deciding, that at common law a corporation was not competent to
qualify as an administrator. But we do not think that such a concession is entitled to much
consideration in this matter.
Here we may say that we are not ready to concede that a corporation is not a person in
the sense in which that word is used in our probate act. It is universally held that a
corporation is an artificial person. This court so held in Ex Parte Rickey, 31 Nev. 82-99, 100
P. 134, 135 Am. St. Rep. 651, and in State ex rel. Curtis v. McCullough, 3 Nev. 216. If the
contention made is sound, certain individuals might find themselves without recourse were a
testator to leave his will with a trust company for safe-keeping, in case of his death, and the
refusal of the company to produce it, as provided in section 2 of the probate act, Rev. Laws,
sec. 5858, and similar sections.
52 Nev. 35, 44 (1929) McGill v. Bankers' Trust Co.
similar sections. In the case of Louisville & N.R. Co. v. Herndon's Adm'r, 126 Ky. 589, 104
S.W. 732, under a statute providing for the appointment of some discreet person as
administrator, it was held that person included corporation. In this connection it may be
well to observe that the statute provides that a creditor may be appointed as administrator. If
the only creditor were a trust company, could it be contended that such company could not be
appointed because it is a corporation? If not, what becomes of the main point?
1, 2. However, we do not consider it necessary to decide these points. Whatever may have
been the common law and whatever may be the correct interpretation of the probate act, it is
conceded, or must be conceded, that pursuant to legislative enactment a Nevada corporation
organized to do trust company business is competent to act as an administrator. Section 5 of
an act regulating banking provides: Any corporation organized under this act may state in its
articles of incorporation that it will carry on a trust company business * * * and such
corporation shall thereupon have power * * * to act under the order or appointment of any
court as guardian, administrator, receiver or trustee. Stats. 1911, p. 291, c. 150, Rev. Laws,
1912, sec. 620.
Thus it is seen that whatever may have been the common law, it is not contrary to the
public policy of this state for a corporation to be appointed an administrator of an estate. In
this connection it is said that the 1911 act did not authorize the taking of an oath by a
corporation which might be appointed administrator pursuant to its terms. It is settled law that
a corporation has implied powers to do all acts that may be necessary to enable it to exercise
the powers expressly conferred. Sutro Tunnel Co. v. Segregated Belcher M. Co., 19 Nev. 121,
7 P. 271; 14a C.J. 252; 25 R.C.L. 980.
In the light of the rule stated, we think an officer could make the affidavit required.
There is no doubt but that the respondent has authority in the State of Utah to qualify as an
administrator. Section 424, c. 9, Compiled Laws of Utah, 1907, expressly authorizes the
organizing of trust companies with such power, and the articles of incorporation of the
respondent as filed with the secretary of state of Nevada expressly states that the
company shall have such power.
52 Nev. 35, 45 (1929) McGill v. Bankers' Trust Co.
authorizes the organizing of trust companies with such power, and the articles of
incorporation of the respondent as filed with the secretary of state of Nevada expressly states
that the company shall have such power.
Having shown that a corporation may be organized under the laws of this state with power
to act as an administrator, our public policy is thus established. If there be no statute in
Nevada prohibiting a foreign corporation which enjoys in the state of its domicile the
privilege of acting as an administrator, under principles of comity, the respondent may enter
this state for the purpose of carrying on such business on the same basis as a Nevada
corporation.
3. The rule is stated in 14a C.J. p. 1217, as follows: Under principles of comity, and
except as otherwise provided by constitutional or statutory provisions, a corporation created
by any state or nation is permitted to enter other states, and there to exercise all legitimate
powers conferred upon it and to carry on as a corporation any business not prohibited by the
local laws or against the local public policy. The rules of comity are subject to local
modification by the law-making power. But until so modified they have the controlling force
of legal obligation, and it is the duty of the courts to observe and enforce them until the
sovereign otherwise directs. The comity involved is the comity of the state, not of the courts,
and the judiciary must be guided by the principles and policy adopted by the legislature. No
restrictions can be imposed by the courts without the sanction of the law-making power. This
comity must be presumed to exist, and does exist, until a state expresses an intention to the
contrary in some affirmative way, that is, by direct enactments on the subject, or by its public
policy deduced from the general course of legislation or the settled adjudications of its courts
of last resort. Legislative silence upon the subject is equivalent to permission.
This is the uniform rule, as is shown by a long line of cases cited in support of the text just
quoted, including the case of State ex rel.
52 Nev. 35, 46 (1929) McGill v. Bankers' Trust Co.
the case of State ex rel. Curtis v. McCullough, 3 Nev. 202.
4, 5. If there were no act in this state authorizing a corporation to act as an administrator, the
presumption would prevail that no public policy exists against a foreign corporation which is
qualified to so act in the state of its domicile to qualify as such in Nevada. American & F.
Christian Union v. Yount, 101 U.S. 352, 25 L. Ed. 888; Thompson v. Waters, 25 Mich. 224,
12 Am. Rep. 243; 8 Fletcher Encyc. Corp. par. 5740.
But it is said that the Nevada act authorizing the incorporation of banking and trust
companies prohibits foreign corporations from doing trust company business in this state,
notwithstanding the fact that the general corporation law expressly authorizes foreign
corporations to do business in Nevada.
It is said that, though this intention is not expressed in definite terms, it is apparent from a
reading of the act as a whole. We cannot agree with the contention. Section 47 of the act,
Rev. Laws, sec. 662, provides: No individual, * * * trust company, corporation, company or
other corporation, incorporated under the laws of this state, or of any other state or territory or
foreign country, doing a banking business in this state, * * * shall engage in the banking
business in this state without first obtaining from the bank examiner a license. * * *
This section referring to foreign trust and banking companies expressly contemplates their
doing business in this state, and the only inhibition placed upon them is that they shall not do
a banking business in this state until they have obtained a license. The respondent, so far as
appears, has not sought to do a banking business in this state, but only a trust company
business for the doing of which no such condition is imposed.
6. There is not a copy of the petition for the appointment of an administrator of the estate
of the deceased in the record in this matter, nor any showing as to the evidence introduced
when the application for such appointment was heard by the court; hence, in view of the
nature of this proceeding, we must conclusively presume that such petition set forth a full
compliance with all of the statutory requirements, whatever they might have been, and
that proof was introduced to sustain them.
52 Nev. 35, 47 (1929) McGill v. Bankers' Trust Co.
presume that such petition set forth a full compliance with all of the statutory requirements,
whatever they might have been, and that proof was introduced to sustain them.
Taking the view we do, it is not necessary to further consider the points discussed in the
very elaborate briefs in the matter nor to analyze and distinguish the cases cited. We deem it
proper to say, however, that we do not attach the importance to the opinion in Re Avery, 45
Misc. Rep. 529, 92 N.Y.S. 974, contended for by appellant. It is largely based upon a
construction of a statute of New York, by a surrogate judge, and has never been approved by
any higher court of the state. We do not think the point made in that case to the effect that the
corporation in question in that matter not being domiciled in New York, and hence not
subject to the jurisdiction of the courts of that state, could appeal to us for the reason that it
appears from the record in this matter that the respondent has appointed an agent in Nevada
upon whom service of process might be made, and the further reason that with us a
nonresident is not disqualified for that reason alone. In Re Bailey, 31 Nev. 382, 103 P. 232,
Ann. Cas. 1912a, 743. But the reasoning of the New York judge in that matter merely goes to
a matter of policy. We think the great weight of authority is against the conclusion reached in
that opinion. Some of the cases so holding are: Lincoln Trust Co. v. Gaddis & Perry Co., 15
Ariz. 372, 139 P. 461, Ann. Cas. 1915d, 1091; Deringer's Adm'r v. Deringer's Adm'rs, 5
Houst. (Del.) 416, 1 Am. St. Rep. 150; In Re Rawitzer's Estate, 175 Cal. 585, 166 P. 581;
Fellows v. First National Bank, 192 Mich. 640, 159 N.W. 335.
For the reason given the order appealed from is affirmed.
____________
52 Nev. 48, 48 (1929) Blankenship v. Blankenship
BLANKENSHIP v. BLANKENSHIP
No. 2838
September 13, 1929. 280 P. 97.
1. Appeal and ErrorPoint that Foreign Judgments Were Not Conclusive, Raised for First
Time in Petition for Rehearing as Grounds Therefor, Could Not Be Considered.
Point that judgments of foreign court could not be considered as conclusive or any evidence of
recriminatory defense on part of wife in divorce action, which was not advanced in brief or on oral
argument on original hearing, could not be considered as grounds for rehearing.
C.J.-CYC. REFERENCES
Appeal and Error4 C.J. sec. 2495, p. 629, n. 88.
Appeal from Second Judicial District Court, Washoe County; Geo. A. Bartlett, Judge.
On petition for rehearing. Petition denied. (For former opinion see 51 Nev. 356.)
OPINION
By the Court, Ducker, C.J.:
The petition for a rehearing is very extensive, and a large part of it is devoted to the
presentation of the point that the judgments of the California courts cannot be considered as
conclusive or any evidence of the recriminatory defense on the part of the wife, which we
held barred the respondent from a decree of divorce. The point is argued with great
earnestness and singular dexterity; but we are unable to consider it as a ground for a
rehearing, for the reason that it was not advanced in the brief of counsel for respondent on the
original hearing or in their oral argument. It is true that counsel for appellant in their opening
brief argued that findings and judgments of the California courts pleaded by appellant,
admitted in the case and found by the trial court, conclusively proved and established the
recriminatory defense set out in appellant's answer; but counsel for respondent took no
ground against this contention.
52 Nev. 48, 49 (1929) Blankenship v. Blankenship
for respondent took no ground against this contention.
In submitting this case for decision, the sole ground urged by respondent's counsel was
that this court ought to adopt the doctrine of comparative rectitude and affirm the judgment. It
is true that the trial court did not render judgment on such a theory, but it was nevertheless the
only point made by respondent on appeal. This court has repeatedly held that a point raised
for the first time on a petition for rehearing will not be considered. Beck v. Thompson, 22
Nev. 419, 41 P. 1; Kirman v. Johnson, 30 Nev. 146, 93 P. 500, 96 P. 1057; Gamble v.
Hanchett, 35 Nev. 319, 133 P. 936; Nelson v. Smith, 42 Nev. 302, 320, 176 P. 261, 178 P.
625; In Re Forney's Estate, 43 Nev. 227, 242, 184 P. 206, 186 P. 678, 24 A.L.R. 553; Pedroli
v. Scott, 47 Nev. 313, 221 P. 241, 224 P. 807, 31 A.L.R. 841. A departure from this
well-established rule is not advisable.
We have carefully considered the argument and authorities presented in support of the
claim that we were wrong in holding that the recriminatory defense of extreme cruelty
pleaded and proved by the wife operated as a bar to the husband being awarded a decree of
divorce, but we see no reason to change our original conclusion.
A great deal is said in the petition about the injustice of the rule of recrimination applied
by this court in this case, and it is characterized as lacking in common sense. This last
observation is a very bold censure of this court in view of the fact that such a large number of
the courts of this country have recognized the doctrine of recrimination, that it has come to be
called the American rule. As to the injustice of this rule, one who keeps his or her hands clean
of marital offenses will not be oppressed by it. Extreme cases are imagined, but it is not
suggested, nor does it appear from the record, that the instant case is of such a character as to
call loudly, or at all, for a relaxation of the general rule, on the ground of comparative
rectitude.
However, we are persuaded, for reasons given in the original opinion, that in this state
judicial recognition of an exception to this rule cannot be authorized except by statute.
52 Nev. 48, 50 (1929) Blankenship v. Blankenship
of an exception to this rule cannot be authorized except by statute.
The petition for rehearing is denied.
Coleman, J.: I concur.
Sanders, J., did not participate.
____________
52 Nev. 50, 50 (1929) Krehmke Et Al. v. Armstrong Et Al.
KREHMKE Et Al. v. ARMSTRONG Et Al.
No. 2843
September 16, 1929. 280 P. 321.
1. Appeal and ErrorFiling of Undertaking or Delivery to Clerk Within Five Days Is
Necessary to Perfect Appeal, Unless Undertaking Has Been Duly Waived or Deposit
Made in Lieu Thereof.
Unless undertaking on appeal has been duly waived, or a deposit made in lieu thereof, in accordance
with civil practice act, sec. 412 (Rev. Laws, sec. 5354), filing of undertaking or delivery of it to clerk for
filing within five days as required by section 404 (Rev. Laws, sec. 5346), is an essential step in perfecting
an appeal.
2. Appeal and ErrorUndertaking on Appeal Is Not Executed until Delivered to Clerk for
Filing.
Undertaking on appeal is not executed until it is delivered to clerk for filing.
3. Appeal And ErrorIt Not Appearing that Appeal Undertaking Was Filed in District Court
Within Required Five Days, Appeal Was Never Perfected, and Must Be Dismissed.
Where transcript contained an undertaking on appeal, approved by district judge, but it did not appear
to have been filed in district court within five days required by civil practice act, sec. 404 (Rev. Laws,
sec. 5346), or at all, and undertaking bore no file marks, and there was no showing that it was ever
presented to clerk for filing, appeal was never perfected, and must be dismissed.
C.J.-CYC. REFERENCES
Appeal and Error3 C.J. sec. 1251, p. 1178, n. 59; sec. 1252, p. 1178, n. 63.
Appeal from Second Judicial District Court, Washoe County; Geo. A. Bartlett, Judge.
52 Nev. 50, 51 (1929) Krehmke Et Al. v. Armstrong Et Al.
Action by A.J. Krehmke and another, copartners doing business under the firm name and
style of the Sparks Fuel Company, against M.P. Armstrong and another. From a judgment for
defendants, and an order denying a new trial, plaintiffs appeal. On motion to strike certain
papers from transcript of appeal, and to dismiss appeal. Appeal dismissed.
Talmage L. Smith and E.W. Cheney, for Appellants.
Brown & Belford and Hawkins, Mayotte & Hawkins, for Respondents.
OPINION
By the Court, Ducker, C.J.:
This case is before us on motion to strike certain papers from the volume entitled
Transcript of Appeal, and to dismiss the appeal, both from the judgment and order denying
the motion for a new trial. The motion to dismiss is laid on several grounds, but as the ground
that no undertaking on appeal was filed calls for a dismissal of the appeal from both order and
judgment, we will not discuss the other grounds or the motion to strike.
1. Unless an undertaking on appeal has been duly waived, or a deposit made in lieu
thereof, in accordance with section 412 of the civil practice act (Rev. Laws, sec. 5354), the
filing of an undertaking or a delivery of it to the clerk for filing within the five days required
by statute is an essential step in perfecting an appeal. Peran v. Monroe, 1 Nev. 484; Johnson
et al. v. Badger M. & M. Co., 12 Nev. 261; Reese Gold & Silver Min. Co. v. Rye Patch M.
Co., 15 Nev. 341; Twilegar v. Stevens, 49 Nev. 273, 244 P. 896; Jasper v. Jewkes, 50 Nev.
153, 254 P. 698.
2. An undertaking on appeal is not executed until it is delivered to the clerk for filing.
State v. Alta S.M. Co., 24 Nev. 230, 51 P. 982.
3. An undertaking on appeal, approved by the district judge, is contained in the transcript;
but it does not appear to have been filed in the district court within the five days required
by statute, or at all.
52 Nev. 50, 52 (1929) Krehmke Et Al. v. Armstrong Et Al.
not appear to have been filed in the district court within the five days required by statute, or at
all. It bears no file marks, and there is no showing that it was ever presented to the clerk for
filing. We must hold, therefore, that the appeal was never perfected, and must be dismissed.
It is so ordered.
____________
52 Nev. 52, 52 (1929) Blanding v. City of Las Vegas
BLANDING Et Al. v. CITY OF LAS VEGAS Et Al.
No. 2833
September 25, 1929. 280 P. 644.
1. Municipal CorporationsComplaint, in Action to Enjoin Vacating Portion of City Street,
Held Not to Show Special Injury Necessary to Enable Private Person to Maintain
Action.
Complaint, in action to enjoin the vacating of a portion of city street, alleging that business of
plaintiffs would be injured by reason of increased distance made necessary by change and by reason of
fact that traffic would be diverted to other streets, held insufficient to show special injury different in kind
from that sustained by general public necessary to enable private person to maintain action.
2. Municipal CorporationsProperty Owner, in Order to Maintain Action to Enjoin Vacating
Portion of City Street, Must Show Special Injury.
Showing that property owner will sustain special injury in addition to that sustained by general public
is essential, in order to enable him to maintain an action to enjoin the vacating of portion of city street.
3. Municipal CorporationsComplaint of Property Owner to Enjoin City from Vacating
Street Must State Facts Sufficient to Enable Court to Determine Danger of Special
Injury.
Complaint, in action by property owner to enjoin city from vacating a portion of street, must state
facts sufficient to enable court to determine whether there is any danger of special injury; mere fears of
contemplated injury not being sufficient.
4. Municipal CorporationsObstruction of Street or Highway, Requiring Travel by More
Circuitous Route, Is Not Special Injury Sufficient to Support Action by Individual.
Obstruction of street or highway, requiring travel by a more circuitous route, does not in itself
constitute a special injury sufficient to support an action by individual.
52 Nev. 52, 53 (1929) Blanding v. City of Las Vegas
5. Municipal CorporationsProbable Injuries to Garage and Gasoline Stations Because of
Proposed Change in Street Diverting Traffic are Not Direct and Immediate
Consequences of Acts Authorizing Action by Individual.
Probable injuries to garage and gasoline stations by reason of proposed change in street claimed such as
to divert traffic to different streets are not the direct and immediate consequences of change necessary in
order to authorize individual to maintain action, but dependent on public desire and speculation.
6. Municipal CorporationsTaxpayers Could Not Maintain Action to Enjoin City Acting
Within Charter Powers from Vacating Street Without Showing Special Injury.
Taxpayers were without right to join and maintain action to enjoin city from vacating portion of street
without showing special injury, in view of fact that action of municipality in vacating present street and
establishing proposed street was not unlawful or beyond its charter powers.
7. Municipal CorporationsThat Action of Municipality in Vacating Street Was by Order,
Instead of Ordinance, Did Not Make Act Void or Illegal.
Under Stats. 1925, c. 56, sec. 3, subd. 12, authorizing board of commissioners of city of Las Vegas to
establish, open, alter, and improve streets, alleys, and other public grounds, and to vacate the same, without
prescribing mode by which power was to be exercised, the fact that action of municipality in ordering
vacation of street was by order, instead of by ordinance, did not make act void or illegal.
8. Municipality CorporationsAllegation, in Complaint to Enjoin City from Vacating Street,
Relative to Agreement for Disposing of Portion Vacated, Held Insufficient Averment of
Fraud.
Allegation, in complaint to enjoin city from vacating portion of street, concerning agreement made by
city and its board of commissioners with owners and subdividers relative to disposition of street vacated,
held not a sufficient averment of fraud.
9. StatesActions for Redress or to Prevent Public Wrongs Must Be Prosecuted in State's
Name.
Actions for redress or prevention of public wrongs must be prosecuted in the name of state.
C.J.-CYC. REFERENCES
Municipal Corporations44 C.J. sec. 3647, p. 903, n. 7: sec. 3656, p. 906, n. 53; sec. 4565, p. 1385, n. 62.
Appeal from Tenth Judicial District Court, Clark County; Wm. E. Orr, Judge.
Action by H. Blanding and others against the city of Las Vegas and others. Judgment for
defendants, and plaintiffs appeal. Affirmed.
52 Nev. 52, 54 (1929) Blanding v. City of Las Vegas
A.A. Hinman, for Appellants:
The better opinion seems to be that to have suffered in a greater degree than the public is
to have received special and peculiar damage. 20 R.C.L. p. 462, Nuisances, sec. 77, n. 20,
1; 31 Am. Dec. 134, note. The loss of the meat by Blanding constitutes a special injury,
particularly in the making of twenty-two trips daily, which also constitutes a greater degree of
injury than that suffered by the general public.
Plaintiff Filbey will be required to travel a more circuitous route, to wit, a distance of nine
and three-fifths miles each day.
The weight of authority supports the rule that an obstruction of a street or highway,
requiring travel by a more circuitous route, constitutes a special injury sufficient to support an
action by an individual affected by such obstruction. Sloss Sheffield Co. v. Johnson, 8 L.R.A.
(N.S.) 226, and note; Husband v. Cotton, L.R.A. 1917a, 1150, and note.
And as to plaintiffs Rhoads and Smith, in the loss of customers that have already dealt
with complainants, the overwhelming weight of American authority sustains the rights of
action. 13 L.R.A. (N.S.) 253, note; 13 R.C.L. 234-5, Highways, sec. 197, n. 12, 13.
Special injury must be substantial, but it is not necessary that it be considerable. 29 Cyc.
1212; Brown v. Watson, 74 Am. Dec. (Me.) 482.
If complainant has property or business within the vicinity of the obstruction, which is
injured by reason of the interruption of convenient access to it, the right interfered with is a
private property right, and he may maintain an action for damages. Aldrich v. Minneapolis,
53 N.W. (Minn.), 1072.
Whether special injury sustained depends upon the facts in each particular case. 29 Cyc.
1213; 13 R.C.L. 229; Fogg v. Nevada etc. Ry., Co., 20 Nev. 429.
But plaintiffs, as taxpayers, may join and maintain the action without a showing of special
injury. Pitt v. Scrugham, 44 Nev. 418, 426; 13 R.C.L. 225, Highways, sec. 190, n. 14, 18;
19 R.C.L. 1163, Mun.
52 Nev. 52, 55 (1929) Blanding v. City of Las Vegas
Corps., sec. 438, n. 7; 4 Ban. Code Plead. 3463; 4 Pom. Ea. Jur. 4126, sec. 1776, n. 72; 28
Cyc. 1744; Crompton v. Zabriskie, 101 U.S. 601, 25 L. Ed. 1070; Murray v. City of
Allegheny, 136 Fed. 57; Clouse v. San Diego (Cal.), 114 P. 573; 19 R.C.L. 1164, Mun.
Corps., sec. 438, n. 8; Davenport v. Buffington, 97 Fed. 234, 46 L.R.A. 377; Spencer v.
School District, 22 Am. Rep. 268; Roberts v. Louisville (Ky.), 17 S.W. 216; 13 L.R.A. 844;
Brockman v. Creston (Ia.), 44 N.W. 822; Briggs v. Borden (Mich.), 38 N.W. 712; Cummings
v. St. Louis (Mo.), 2 S.W. 130; Hill v. Hoffman (Tenn.), 58 S.W. 929; Porter v. Johnson
(Tex.), 140 S.W. 469; O'Melviny v. Griffity, 171 P. 934; Milligan v. Miles City (Mont.),
L.R.A. 1916c, 395; Herald v. Board of Education (W. Va.), 31 L.R.A. (N.S.), 588; Perry Pub.
Lib. Asso. v. Lotsitz (Okla.), 45 L.R.A. (N. S.), 368; Nerlien v. Villate of Brooten (Minn.),
102 N.W. 867; Adams v. Brenan (Ill.), 52 N.E. 314, 42 L.R.A. 718, 69 Am. St. Rep. 222;
Schiffman v. St. Paul (Minn.), 92 N.W. 503; Tompkins v. Pallas, 95 N.Y.S. 875; Keen v.
Waycross (Ga.), 29 S.E. 42; Sugar v. Monroe (La.), 59 L.R.A. 723; Lewis v. Batemen (Utah),
73 P. 509; 29 C.J. 533; 71 A.D. 312, note; Porter v. Johnson (Tex.), 140 S.W. 469; Patterson
v. Tp. Board (Mich.), 201 N.W. 188; Branson v. I.W.W., 30 Nev. 270; 28 Cyc. 1737; 4 Ban.
Code P. 3466; 28 Cyc. 1744; McIntyre v. Board of Coms. (Colo.), 61 P. 237; State v. Des
Moines (Ia.), 65 N.W. 818, 59 Am. St. Rep. 381, 31 L.R.A. 186; Frederick v. Doughlas
County (Wis.), 71 N.W. 798; Mueller v. Eau Claire County (Wis.), 84 N.W. 430; 32 C.J. 259;
Dennison v. City of Kansas (Mo.), 8 S.W. 429.
A taxpayer may sue without showing special injury or interest when the attorney-general,
whose duty it is to appear, fails to do so. State ex rel. v. Cunningham (Wis.), 53 N.W. 35, 35
Am. St. Rep. 27, 17 L.R.A. 145; Keen v. Waycross (Ga.), 29 S.E. 42; White Eagle Co. v.
Gunderson (S.D.), 205 N.W. 614, 43 A.L.R. 397, 401, 402, 404; 32 C.J. 48.
The power to alter and vacate streets, conferred by the city charter, was not reasonably
exercised.
52 Nev. 52, 56 (1929) Blanding v. City of Las Vegas
the city charter, was not reasonably exercised. It will be noted that the charter confers a mere
grant of power without specifying the manner in which it shall be exercised. Stats. 1925, 77,
82, subd. 12. See 1 McQuillan Mun. Corp. 823, 825. An ordinance of general application
should have been enacted providing for proper petition, notice to parties affected, and an
opportunity for objections. 29 C.J. 506, 507, 509, 510, 523; McCarl v. Clark Co. (Ia.), 148
N.W. 1015; Rock Castle County v. Norton (Ky.), 225 S.W. 1079; Stats. 1911, 176, 180; Rev.
Laws, sec. 963, Stats. 1921, 36; Rev. Laws, sec. 3015, Stats. 1917, 55; Stats. 1915, 392; 1
McQuillan Mun. Corp. 831, 832; Barrow et al. v. Bradley, Mayor, et al., 227 S.W. 1017; City
of Indianapolis v. College Park Land Co. (Ind.), 118 N.E. 356: Mitchell v. St. Louis, I.M. &
S. Ry. Co. (Mo.), 92 S.W. 111; Mitchner et al. v. City Com'rs. of City of Okmulgee et al.
(Okla.), 228 P. 159; City of Delphi v. Evans (Ind.), 10 Am. Rep. 12; 1 McQuillan Mun. Corp.
822-823.
The city holds its streets in trust for the use of the public, and cannot dispose of the same
for the benefit of individuals. 19 R.C.L. 785-6, Mun. Corps., sec. 91, n. 20, 1; Marietta
Chair Co. v. Henderson (Ga.), 49 S.E. 312; Smith v. McDowell (Ill.), 22 L.R.A. 393; Van
Witsen v. Cuten (Md.), 24 L.R.A. 403; New Haven v. R.R. Co. (Conn.), 18 L.R.A. 256; 28
Cyc. 622; Huron Water Works Company v. City of Huron (S.D.), 30 L.R.A. 848; 3
McQuillan Mun. Corp. 2512-3; 3 Thomp. Real Prop., sec. 2911; Urch v. Portsmouth (N.H.),
44 Atl. 112; Southport v. Stanley (N.C.), 34 S.E. 641; 3 McQuillan Mun. Corp. 2990; Lerch
et al. v. Short, Mayor, et al. (Ia.), 185 N.W. 129; 2 Page Contrs., sec. 905, 1603-5; Bradley v.
R.R. Co., L.R.A. 1917c, 225; City of Princeton v. Poole (Ky.), 246 S.W. 819.
F.A. Stevens, for Respondents, The City of Las Vegas, Fred Hesse as Mayor, O.J. Smith as
Commissioner, W.B. Mundy as Commissioner, Fred Hesse individually, O.J. Smith
individually, W.H. Elwell individually, W.B. Mundy individually, and C.J. Hammon
individually: Appellants have at all times, from the inception of this action, mistaken the
theory of the case.
52 Nev. 52, 57 (1929) Blanding v. City of Las Vegas
Appellants have at all times, from the inception of this action, mistaken the theory of the
case. The present case raises a question as to the right of a municipality to alter a street, as
distinguished from the right to vacate a street. 1 Elliott Roads and Streets (4th ed.), 513, sec.
452, n. 1 and 2; Waller v. Syck, 146 Ky. 181, 142 S.W. 229, at p. 231.
We have in the instant case all of the elements of an alteration proceeding: An existing
street; the dedication of anew street connecting at both ends with the old street; and the
conditional vacation of the old street. The old street remainsonly its location has been
changed.
Authority is granted the city of Las Vegas to alter streets by the provisions of subdiv. 12 of
sec. 31 of the city charter, as amended by Stats. 1925, 82. Therefore, the resolution of the
board of city commissioners was equivalent to an act of the legislature altering said street.
City of Lynchburg v. Peters (Va.), 133 S.E. 674, at 681.
It was proper for the board of city commissioners to make an agreement with the
subdividers that the old road should be vacated in consideration of the dedication of the new
road, constituting an alteration of the old one. Jenkins et al. v. Riggs et al. (Md.), 59 Atl. 758,
at 762. The vacating ordinance may provide for the use which is to be made of the street, or
the portion thereof vacated. IV McQuillan Mun. Corp. (2d ed.), 284, sec. 1529, n. 86.
The proceedings in this case were not void simply because they were taken by resolution
instead of by ordinance. IV McQuillan Mun. Corp. (2d ed.), 283, sec. 1529, n. 82. Neither is
notice required. 29 C.J. 509, sec. 208, n. 71; 1 Elliott Roads and Streets (4th ed.), 516, sec.
453, n. 18.
That Blanding will suffer loss of meat by reason of the alteration of the street is a mere
conclusion of the pleader, and therefore is not a sufficient allegation. Fogg v. N.C.O.
Railway, 20 Nev. 429, at 437.
As to the plaintiff Filbey: The authorities are in conflict as to whether the necessity of
taking a longer or more circuitous route of itself constitutes special damage.
52 Nev. 52, 58 (1929) Blanding v. City of Las Vegas
as to whether the necessity of taking a longer or more circuitous route of itself constitutes
special damage. A negative answer to this question is quite generally given. 13 R.C.L.,
Highways, sec. 194, n. 15, and cases cited; Canady v. Coeur D'Alene Lb. Co. (Ida.), 120 P.
830, at 833; Hitch v. Scholle (Cal.), 181 P. 657. Being required to travel a more circuitous
route is no ground for objection to alteration proceedings. 1 Elliott Roads and Streets (4th
ed.), sec. 457, n. 30.
A careful examination of the authorities cited to show loss of business to Rhoads and
Smith to be special injury will show that in all those cases access to the plaintiff's premises
was cut off or greatly impeded. No such state of facts are made to appear with reference to the
places of business of Smith or Rhoads. Note: Loss of customers as element of damages from
obstruction of highway, 13 L.R.A. (N.S.), 253.
As to the right of taxpayers to maintain an action without showing of special injury, see
Simons v. City and County of San Francisco (Cal.), 47 P. 453. In examining the cases cited
by the plaintiffs upon this point we do not find any case where a taxpayer was allowed to
maintain a suit to enjoin the alteration of a street, the vacation of a street, or the commission
of a threatened nuisance through the obstruction of a street.
As to the right of a taxpayer to sue where the attorney-general refuses to perform his duty,
it will be seen that the object of this action is to restrain an alleged private injury. Such action
must be maintained by the individual as an individual and not as a taxpayer. An individual
cannot maintain an action to enjoin a public nuisance. 2 Elliott Roads and Streets, sec. 850-1,
n. 65, 66, citing Davis v. Spragg (W. Va.), 79 S.E. 652, 48 L.R.A. (N.S.), 173; Simons v. San
Francisco, supra. In any event the suit must be brought in the name of the state at the relation
of the taxpayer or citizen. 32 C.J. 295, sec. 474, n. 21.
There is no sufficient allegation in the amended complaint that the alteration or vacation
was made for private benefit. IV McQuillan Mun. Corp. (2d ed.), sec.
52 Nev. 52, 59 (1929) Blanding v. City of Las Vegas
sec. 1520, pp. 265-270; 13 R.C.L., Highways, sec. 62, pp. 69, 70, and cases cited; 2 Elliott
Roads and Streets (4th ed.), sec. 1183.
Finally, we submit that the case of Fogg v. N.C.O. Railway, 20 Nev. 429, is decisive of the
present case on all points.
F.R. McNamee & Leo A. McNamee, for Respondents, First State Bank of Las Vegas,
Nevada, Inc., W.E. Hawkins and Leo A. McNamee:
Even though the appellants proceed along the theory that the vacation proceedings are
void, then they would have only such rights and remedies as are afforded to plaintiffs in
actions to enjoin public nuisances, as an unlawful vacation amounts to a public nuisance. 13
R.C.L. p. 76, 77, n. 5; Cummings Realty v. Deere, 14 L.R.S. (N.S.) 822. Likewise, any
obstruction upon a street or highway is a public nuisance. 29 Cyc. 1177.
As in other cases of public nuisance, a private individual has no right of action, either at
law or in equity, because of the obstruction of a street or highway, unless he suffers some
peculiar or special damage or injury, not common to the general public. 13 R.C.L. 227, par.
192, Highways. See, also, 13 R.C.L. 75, par. 67, Highways; 20 R.C.L. 462, Nuisances,
sec. 77, n. 19; Fogg v. N.C.O. Ry., 20 Nev. 429, 23 P. 840; 29 C.J. 533, n. 89.
The weight of authority does not support the rule that an obstruction of a street or
highway, requiring travel by a more circuitous route, constitutes a special injury sufficient to
support an action by an individual affected by such obstruction, but the weight of authority is
to the contrary. Hitch v. Scholle (Cal.), 181 P. 657; Canady v. Coeur D'Alene (Ida.), 120 P.
830, syl. 7, 8; Mackey v. Aycock (Okla.), 201 P. 365; McKay v. Enid (Okla.), 109 P. 520, 30
L.R.A. (N. S.) 1021 and notes; Scrutchfield v. Choctaw & C.R.R. Co. (Okla.), 88 P. 1048, 9
L.R.A. (N.S.) 496; Stoutemeyer v. Sharp (Ark.), 21 L.R.A. (N.S.) 74: Board of Education v.
Gilleland {Mich.),
52 Nev. 52, 60 (1929) Blanding v. City of Las Vegas
Gilleland (Mich.), L.R.A. 1916e, 468; notes to 11 Ann. Cas. 287-291; notes to Re Hull, 49
A.L.R. 330.
The general rule is that one whose property does not abut on the closed section has no
right ordinarily to compensation for the closing or vacation of a street, if he still has
reasonable access to the general system of streets. See notes to Re Hull, supra; Liermann v.
Milwaukee, 13 L.R.A. (N.S.) 253, notes; Dantzer v. Indianapolis, 34 L.R.A. 769, and notes;
Cran v. Laconia (N.H.), 57 L.R.A. 282.
As to the right of plaintiffs as taxpayers to maintain the action without showing special
damage, we particularly call attention to note 14 of the same paragraph in 19 R.C.L. quoted
by appellants, at pages 1164-5, and the cases cited thereunder.
There are no decisions holding that a taxpayer may sue, without showing special injury or
interest, when the attorney-general fails to do so. The decision in State ex rel Lamb v.
Cunningham (Wis.), 53 N.W. 35, 17 L.R.A. 145, held that where the attorney-general refused
to proceed with an action in the name of the state, the court had jurisdiction to make an order
allowing the relator Lamb to proceed with the action in the name of the state. The law is
settled that such an action must be brought in the name of the state, and the state is the only
proper party plaintiff thereto. 32 C.J. 295, par. 474.
Where a municipal council is given power to legislate and statute is silent as to mode, an
enactment by the council is valid whether in form of resolution or ordinance. 19 R.C.L. 895,
n. 16.
The mere fact that private individuals are benefited by the vacation does not affect the
order of vacation, even though the vacation proceedings are had with the intention of
devoting the land to private purposes. 13 R.C.L. 68, n. 1, 5. See, also, notes to Tomlin v.
Cedar Rapids, 22 L.R.A. (N.S.) 530; Tilly v. Mitchell (Wis.), 98 N.W. 969. Nor will the
motives of the tribunal be inquired into. 13 R.C.L. 70, par. 62, Highways, n. 13; 29 C.J.
506, n. 35.
52 Nev. 52, 61 (1929) Blanding v. City of Las Vegas
The proceedings of the city commissioners complained of in this action amounted to an
alteration rather than a vacation of the street in question. And there is a distinction between
the two. See note to 26 L.R.A. 827.
Statement Of Facts.
This action was brought to enjoin the respondents from vacating a portion of a certain
street in the city of Las Vegas. Demurrers interposed to the amended complaint were
sustained by the court, and the plaintiffs in the court below, appellants here, were given ten
days to again amend the complaint. Upon their failing to amend within the time designated,
judgment was entered in favor of defendants, for their costs, and dissolving the restraining
order theretofore issued. The appeal is taken from this judgment and also from the order
sustaining the demurrers.
The amended complaint, which will hereinafter be referred to as the complaint, alleges that
that portion of the prolongation of Main Street, 286 feet south of the southeast corner of Main
and Garces Streets, in the city of Las Vegas, Clark County, Nevada, to the common corner of
sections 3 and 4, township 21 S., range 61 E., M.D.B. and M., is, and was at all times herein
mentioned, a public street about 80 feet in width in the city of Las Vegas, in common use by
the public as a street; that at a meeting held on or about the 5th day of August, 1926, the
board of county commissioners approved a certain plat of South addition to the city of Las
Vegas, which said plat was then and there presented by the defendants W.E. Hawkins and
Leo McNamee and so approved at their special instance and request, and that thereafter, to
wit, on or about the 13th day of August, 1926, said plat bearing the approval of said board,
attested by the signature of said defendant W.B. Mundy, as mayor pro tem, was filed for
record in the office of the county recorder of said Clark County; that said South addition, as
shown on said plat, adjoins that portion of the prolongation of Main Street on the easterly side
thereof; that as a part of said proceedings said board of county commissioners, at the
special instance and request of said defendants W.E. Hawkins and Leo A.
52 Nev. 52, 62 (1929) Blanding v. City of Las Vegas
of said proceedings said board of county commissioners, at the special instance and request of
said defendants W.E. Hawkins and Leo A. McNamee, ordered that said portion of the
prolongation of Main Street (hereinafter referred to as the present street) be vacated to take
effect upon the construction of the street (hereinafter referred to as the proposed street) as
outlined in said plat, along Main Street as designated on said plat; that the recorded minutes
of said meeting relating to said approval and order of vacation are in words and figures as
follows: At this time W.E. Hawkins and Leo A. McNamee appeared before the Board and
presented for the approval of the Board the plat of the proposed South Addition to the City of
Las Vegas. After due consideration of the matter it was ordered upon motion of
Commissioner Elwell, seconded by Mayor Hesse, that Mayor Pro Tem W.B. Mundy be, and
he is hereby directed to approve said plat and the City Clerk is hereby directed to attest the
signature of the said Mayor Pro Tem, and it is further ordered that that portion of the
prolongation of Main Street commencing at 286 feet south of the southeast corner of Main
and Garces Streets, in the City of Las Vegas, Clark County, Nevada, to the common corner of
sections 3 and 4, Township 21 South, Range 61 East, M.D.B. and M. is hereby vacated, same
to take effect upon the construction of the street as outlined in the plat of the South Addition
to the City of Las Vegas, along Main Street as designated on said plat.
That on or about the 23d day of August, 1926, certain citizens, taxpayers, and owners of
real property affected by the action of said board of city commissioners filed with the clerk of
said board a petition protesting against the same; that said proposed street lies parallel to said
present street a distance of about 80 feet easterly therefrom, and as shown on said plat is
connected diagonally at the northerly and southerly ends with said present street; that the
vacation of said present street upon the construction of said proposed street would require the
traveling public to proceed by way of said diagonal connections along said proposed street
an additional distance of about 320 feet each way of travel; that the public would, in the
event of such vacation, receive no benefit whatsoever therefrom, but would suffer
inconvenience, loss of time, and greater expense by reason of said additional travel; that
property rights and values would be damaged and impaired; that the angle of said
diagonal connection at the northerly end of said present street is 45 degrees, and that the
angle of said diagonal connection at the southerly end thereof is 105 degrees; that in
traveling a southerly or westerly direction at said southerly diagonal connection, it would
be necessary to pass directly in front and across the path of approaching traffic
proceeding northerly at said last-mentioned point, whereby, of necessity, the speed of
travel would be reduced and the hazard of accident and collision would be greatly
increased, particularly in the event of a fire at a point southerly and westerly from said
present street, over which it would be necessary for members of the city fire department
to pass in approaching the location of said fire; that about 150 motor vehicles travel each
day in and upon said present street; that parallel and adjoining said present street, on the
westerly side thereof, are the railroad tracks and right of way of the Union Pacific System,
a railway corporation, over which said tracks and right of way said corporation daily
operates its trains in the course of its regular business; that plaintiffs are informed and
believe, and upon information and belief allege, that the defendant First State Bank of Las
Vegas, Nevada, Incorporated, is the holder of the legal title to the real property shown on
said plat, but that it holds the same in trust for the benefit of certain persons whose true
names are to the plaintiffs unknown and who are hereinafter referred to as the
subdividers; that prior to the order of vacation the city of Las Vegas and its said board of
city commissioners without consideration or benefit to the public, but to the serious
inconvenience, detriment, and injury to the public, agreed with the defendants First State
Bank, W.E. Hawkins and Leo A.
52 Nev. 52, 63 (1929) Blanding v. City of Las Vegas
proposed street an additional distance of about 320 feet each way of travel; that the public
would, in the event of such vacation, receive no benefit whatsoever therefrom, but would
suffer inconvenience, loss of time, and greater expense by reason of said additional travel;
that property rights and values would be damaged and impaired; that the angle of said
diagonal connection at the northerly end of said present street is 45 degrees, and that the angle
of said diagonal connection at the southerly end thereof is 105 degrees; that in traveling a
southerly or westerly direction at said southerly diagonal connection, it would be necessary to
pass directly in front and across the path of approaching traffic proceeding northerly at said
last-mentioned point, whereby, of necessity, the speed of travel would be reduced and the
hazard of accident and collision would be greatly increased, particularly in the event of a fire
at a point southerly and westerly from said present street, over which it would be necessary
for members of the city fire department to pass in approaching the location of said fire; that
about 150 motor vehicles travel each day in and upon said present street; that parallel and
adjoining said present street, on the westerly side thereof, are the railroad tracks and right of
way of the Union Pacific System, a railway corporation, over which said tracks and right of
way said corporation daily operates its trains in the course of its regular business; that
plaintiffs are informed and believe, and upon information and belief allege, that the defendant
First State Bank of Las Vegas, Nevada, Incorporated, is the holder of the legal title to the real
property shown on said plat, but that it holds the same in trust for the benefit of certain
persons whose true names are to the plaintiffs unknown and who are hereinafter referred to as
the subdividers; that prior to the order of vacation the city of Las Vegas and its said board of
city commissioners without consideration or benefit to the public, but to the serious
inconvenience, detriment, and injury to the public, agreed with the defendants First State
Bank, W.E. Hawkins and Leo A.
52 Nev. 52, 64 (1929) Blanding v. City of Las Vegas
McNamee, and said subdividers, that said present street if and when vacated, as aforesaid,
shall be added to a strip of land 80 feet in width adjoining said present street on the easterly
side thereof, and said land so combined shall be subdivided into lots, having a depth of 160
feet adjoining said proposed street on the easterly side thereof and said railroad right of way
on the westerly side thereof, as shown on said plat; that said present street as a part of said
lots shall be and become the property of said subdividers, and said lots as such be sold as
industrial sites at much higher prices, to wit, $18,000 more than could be obtained for that
portion of said lots lying between the present street and said proposed street, as shown on said
plat; and that the proceeds from said sale or sales shall be kept and retained by said
subdividers for their express use and benefit; that said order of vacation was made pursuant to
said agreement, and for no other purpose; that one or more of said lots, including a portion of
said present street, have been sold pursuant to said agreement; that said present street and said
proposed street are located in a depression below the surface of the surrounding land, so that
rainfall and flood waters flow into and upon the same; that no outlet exists for the drainage of
said waters, which remain in and upon said depression until absorbed by the underlying soil
and diffused by evaporation, frequently requiring a period of ten days or more; that said soil
is a clay loam about five feet in depth, overlying a layer of hardpan; that at all of the seasons
of the year said soil is waterlogged by water overflowing from artesian wells within a radius
of one mile therefrom, which said water permeates said soil from a depth of three feet to
eighteen inches from the surface thereof; that when said soil is overflowed and permeated by
the waters aforesaid, it becomes glutinous and viscid, so that vehicles traveling the same
become embedded and are unable to proceed without assistance; that surrounding land slopes
upward for a distance of about three-fourths of a mile, and that said waters cannot be drained
without the construction of a flume or ditch about three-fourths of a mile in length at a
cost of, to wit, $S,000; that for a period of twelve years last past said defendant the city
of Las Vegas has from time to time deposited in and upon said present street large
quantities of gravel and gypsum, to wit, 400 yards, of the value, for material and labor, to
wit, $1,200; that as said gypsum and gravel was so deposited it sank into the underlying
soil and became compact, and now constitutes a solid and substantial supporting base for
said present street, and that travel thereon can now proceed without difficulty or
interruption at all seasons of the year and without regard to the conditions aforesaid; that
the conditions obtaining with reference to said present street as aforesaid are the same
as those obtaining with reference to said proposed street, and that said proposed street,
for the reasons aforesaid, will not and cannot be placed in as permanent and substantial
condition of repair as said present street is now without a like amount of material and
labor, at a like cost, and for a like period of time; that it will be necessary to expend a like
amount of material and labor, at a like cost, to wit, $1,200, to place said proposed street
in a fit condition for travel, which cost will be paid by said defendant the city of Las
Vegas; and that thereby the taxes of plaintiffs will be increased.
52 Nev. 52, 65 (1929) Blanding v. City of Las Vegas
of a flume or ditch about three-fourths of a mile in length at a cost of, to wit, $8,000; that for
a period of twelve years last past said defendant the city of Las Vegas has from time to time
deposited in and upon said present street large quantities of gravel and gypsum, to wit, 400
yards, of the value, for material and labor, to wit, $1,200; that as said gypsum and gravel was
so deposited it sank into the underlying soil and became compact, and now constitutes a solid
and substantial supporting base for said present street, and that travel thereon can now
proceed without difficulty or interruption at all seasons of the year and without regard to the
conditions aforesaid; that the conditions obtaining with reference to said present street as
aforesaid are the same as those obtaining with reference to said proposed street, and that said
proposed street, for the reasons aforesaid, will not and cannot be placed in as permanent and
substantial condition of repair as said present street is now without a like amount of material
and labor, at a like cost, and for a like period of time; that it will be necessary to expend a like
amount of material and labor, at a like cost, to wit, $1,200, to place said proposed street in a
fit condition for travel, which cost will be paid by said defendant the city of Las Vegas; and
that thereby the taxes of plaintiffs will be increased.
It is alleged that said defendants have duly performed all the conditions on account of said
order of said board of city commissioners; that defendants have threatened, now threaten, and
will, unless restrained pursuant to said order, vacate said present street, will erect obstructions
to travel in and upon and across the same, and will require persons desiring to use the same as
a street to travel over said proposed street or other streets by longer and more circuitous
routes, and will pursuant to said agreement permit their subdividers to sell, for their own use
and benefit, the real property so vacated as aforesaid; that plaintiffs, and each of them, are
citizens, residents, and taxpayers of Las Vegas, and are owners of real and personal property
situated in said city.
52 Nev. 52, 66 (1929) Blanding v. City of Las Vegas
It is further alleged that plaintiff Blanding conducts a wholesale and retail meat business in
said city; that he resides on a highway connecting with the southerly end of said present street
about 1,300 feet westerly therefrom; that in connection with his said business he conducts a
slaughter and packing house upon the premises where he resides, and daily (except Sunday)
transports meats from his said slaughter and packing house to his retail store in the business
district of said city; that in the course of his said business he is obliged to make and does
make, to wit, 22 trips daily between his place of residence and the said retail store; that said
present street is the nearest and most accessible route between said last-mentioned points; that
said meat is of a perishable nature and will frequently in hot weather become impaired as to
preservation within a few minutes if not transported within the usual time; that to prevent the
same from becoming tainted and unfit for sale it is necessary to transport the same with the
least possible delay from said slaughter and packing house to said retail store; that if required
to travel over said proposed street the value of said meat, by reason of increased distance of
travel and decreased speed necessitated by increased risk of accident and collision aforesaid,
would be impaired, and if unduly delayed on account of any of said conditions or reasons
alleged would become unfit for use and sale.
It is further alleged that plaintiff J.L. Filbey conducts a dairy and resides on a highway
connecting with the southerly end of said present street about 4/5 of a mile westerly and about
3/5 of a mile northerly therefrom; that he has about 125 customers in said city of Las Vegas to
whom he daily delivers milk and dairy products; that in the course of his said business he is
obliged to make and does make 8 trips (a distance of about 2 2/5 miles each way) daily
between his dairy aforesaid and the business and residence portion of said city of Las Vegas,
where said deliveries are made; that said present street is the nearest and most accessible
route between his said dairy and the points last aforesaid, except certain streets shown on
"Exhibit A," which are unimproved and impassable at certain seasons of the year by
reason of the conditions alleged in paragraph XVI herein; that the next nearest route
between said dairy and the points last aforesaid is a distance of 3 3J5 miles; that for the
reasons hereinbefore in this amended complaint set forth, said proposed street will be
unsafe and unfit for travel, whereby plaintiff will be obliged to travel a much longer and
more circuitous route in the conduct of his said business, to wit, 1 1J5 miles each way, or
an additional distance of 9 3J5 miles each day; to his special injury.
52 Nev. 52, 67 (1929) Blanding v. City of Las Vegas
except certain streets shown on Exhibit A, which are unimproved and impassable at certain
seasons of the year by reason of the conditions alleged in paragraph XVI herein; that the next
nearest route between said dairy and the points last aforesaid is a distance of 3 3/5 miles; that
for the reasons hereinbefore in this amended complaint set forth, said proposed street will be
unsafe and unfit for travel, whereby plaintiff will be obliged to travel a much longer and more
circuitous route in the conduct of his said business, to wit, 1 1/5 miles each way, or an
additional distance of 9 3/5 miles each day; to his special injury.
It is further alleged that plaintiff W.S. Rhoads conducts a garage, repair and supply shop,
and oil and gasoline station, on that portion of Main Street (being a continuation northerly of
said present street) about 150 feet southerly from its intersection with Fremont Street running
easterly and westerly in said city of Las Vegas; that 5 blocks easterly from said intersection,
said Fremont Street intersects Fifth Street, running northeasterly and southwesterly in said
city; that said portion of Fremont Street and said Fifth Street running southwesterly
constitutes a portion of a Nevada state highway commonly known as the Arrowhead Trail,
which is the main traveled highway between the city of Salt Lake, Utah, and the city of Los
Angeles, Cal.; that the continuation southerly of said present street joins and intersects said
Fifth Street running southwesterly, at a point about 3/4 of a mile south of present street; that
said Main Street (including said present street and its continuation northerly and southerly as
aforesaid), from its intersection with said Fremont Street to its intersection with said Fifth
Street, constitutes a much shorter route between said last-mentioned points, and many
travelers over said Arrowhead Trail, by reason of such shorter route, pass over the same and
become customers of plaintiff at his place of business aforesaid; that for the reasons
hereinabove set forth in this complaint, said proposed street will be unsafe and unfit for
travel, whereby the travel aforesaid will be diverted by way of said Fremont and Fifth
Streets, and plaintiff will lose the patronage of his customers aforesaid; that between the
intersection of Main and Fremont Streets and the intersection of Fremont and Fifth
Streets aforesaid are located four other garages, repair and supply shops, and oil and
gasoline stations, at which travelers may obtain service and supplies so furnished by
plaintiff as aforesaid; that between said city of Los Angeles and points east of Nevada
over said Arrowhead Trail, certain corporations, firms, and individuals transport
passengers in motor busses for hire; that the drivers of said busses have heretofore
traveled and now travel over said shorter route whereby they have become and now are
customers of plaintiff as aforesaid; that said drivers heretofore have paid and now pay to
plaintiff for services performed and supplies furnished as aforesaid, to wit, $225 per
month; that said drivers have threatened and stated to plaintiff that they will, if said
present street is vacated as aforesaid, travel over Fremont and Fifth Streets, aforesaid,
cease to be customers of plaintiff and patronize one or more of said garages on Fremont
Street, to his special injury.
52 Nev. 52, 68 (1929) Blanding v. City of Las Vegas
will be diverted by way of said Fremont and Fifth Streets, and plaintiff will lose the patronage
of his customers aforesaid; that between the intersection of Main and Fremont Streets and the
intersection of Fremont and Fifth Streets aforesaid are located four other garages, repair and
supply shops, and oil and gasoline stations, at which travelers may obtain service and supplies
so furnished by plaintiff as aforesaid; that between said city of Los Angeles and points east of
Nevada over said Arrowhead Trail, certain corporations, firms, and individuals transport
passengers in motor busses for hire; that the drivers of said busses have heretofore traveled
and now travel over said shorter route whereby they have become and now are customers of
plaintiff as aforesaid; that said drivers heretofore have paid and now pay to plaintiff for
services performed and supplies furnished as aforesaid, to wit, $225 per month; that said
drivers have threatened and stated to plaintiff that they will, if said present street is vacated as
aforesaid, travel over Fremont and Fifth Streets, aforesaid, cease to be customers of plaintiff
and patronize one or more of said garages on Fremont Street, to his special injury.
It is further alleged that plaintiff J.S. Smith conducts a garage, repair and supply shop, and
oil and gasoline station on said Main Street about 500 feet southerly from said intersection of
Main and Fremont Streets; that for the reasons alleged in paragraph XXI of this amended
complaint, plaintiff has had and now has the patronage of travelers over said shorter route,
and that for the reasons aforesaid such patronage will be discontinued, to his special injury.
The prayer is for an injunction enjoining defendants from vacating said present street;
from placing any obstruction or obstructions in, upon, or across said street, or maintaining the
same; from selling said street or any part thereof; form doing any other act or thing to prevent
the free and unobstructed use of said street by the public; for a restraining order, restraining
the defendants from doing any of the acts or things as prayed for herein, until the further order
of the court; for an interlocutory injunction; for their costs; and for such other relief as
the court may deem just and proper.
52 Nev. 52, 69 (1929) Blanding v. City of Las Vegas
of the court; for an interlocutory injunction; for their costs; and for such other relief as the
court may deem just and proper.
The demurrers were sustained upon the ground that the complaint failed to state facts to
constitute a cause of action against said defendants or either of them.
OPINION
By the Court, Ducker, C.J. (after stating the facts as above):
1, 2. The ruling of the lower court was proper. The complaint does not show that
appellants will suffer any injury special to themselves or different in kind from that which
will be sustained by the general public. A showing that an injury of this kind will be sustained
is essential to enable a person to maintain an action of this character. Symons et al. v. City
and County of San Francisco et al., 115 Cal. 555, 42 P. 913, 47 P. 453; Whitsett v. Union D.
& R. Co., 10 Colo. 243, 15 P. 339; Hammond v. County Commissioners, 154 Mass. 509, 28
N.E. 902; City of Chicago et al. v. Union Building Association, 102 Ill. 379, 40 Am. Rep.
598; City of Gary v. Much, 180 Ind. 26, 101 N.E. 4; Heller v. Atchison, etc., R. Co., 28 Kan.
625; Nelson v. Swedish Evangelical Lutheran Cemetery Ass'n, 111 Minn. 149, 126 N.W.
723, 127 N.W. 626, 34 L.R.A. (N.S.) 565, 20 Ann. Cas. 790: Greene v. Goodwin Sand, etc.,
Co., 72 Misc. Rep. 192, 129 N.Y.S. 709; Zettel v. West Bend, 79 Wis. 316, 48 N.W. 379, 24
Am. St. Rep. 715.
The rule deducible from the general current of authority is stated in 13 R.C.L. at pages 75
and 76 as follows: To entitle a property owner to injunctive relief against the vacation of a
street or highway he must show that he will suffer a special or peculiar injury, and not merely
such inconvenience as is cast upon all other persons of that neighborhood.
The case at bar, in so far as the cause of action is based upon the vacation of the street and
consequent damage to the business of appellants, is identical in principle with Fogg v.
N.C.O. Railway, 20 Nev. 429
52 Nev. 52, 70 (1929) Blanding v. City of Las Vegas
damage to the business of appellants, is identical in principle with Fogg v. N.C.O. Railway,
20 Nev. 429, 23 P. 840, 842. In the latter case the action was to abate a public nuisance
alleged to consist of the maintenance of a section of railroad and railroad tracks and the
operation of trains thereon, on a street on which the plaintiff's residence abutted. Damages
therefrom were specifically alleged and an abatement of the nuisance and an injunction
prayed for. The court applied the foregoing principle, and in the course of its opinion quoted
approvingly from Wood on Nuisance, sec. 646, as follows: The courts very wisely have
unswervingly adhered to the rule that an individual, in order to be entitled to a recovery for
injuries sustained from a public nuisance, must make out a clear case of special damages to
himself, apart from the rest of the public, and of a different character, so that they cannot
fairly be said to be a part of the common injury resulting therefrom.
The question of injury to the real property belonging to appellants, such as shutting off
ingress or egress to and from the same, or otherwise injuring their property, is not made by
the complaint. Such injury could hardly be claimed for the reason that all of the places of
business of the appellants are shown by the complaint to be located some distance from the
portion of Main Street vacated by the order of the city authorities. Special injury to the
business in which each of the appellants is engaged is the principal contention.
The general averments in the complaint, such as inconvenience to the public by reason of
having to travel a greater distance over the proposed street, damage to property rights of
adjoining and adjacent owners, increased hazard of accident and collision, do not merit any
consideration. The latter are merely conclusions of law, and the former is something which
affects all the public having occasion to travel on the new street. The allegations in regard to
injury likely to obtain to the appellant Blanding's wholesale and retail meat business in the
city of Las Vegas are not, in our opinion, sufficient to constitute that special injury required
to be shown.
52 Nev. 52, 71 (1929) Blanding v. City of Las Vegas
sufficient to constitute that special injury required to be shown. The probability that his meat
would become impaired or unfit for sale, if he is required to travel over the proposed street
during hot weather, is somewhat remote under the facts stated. The increased distance is only
320 feet. This distance is inconsequential under modern modes of transportation, as is the fact
alleged that less speed would be necessitated on account of the increased risk of accident and
collision. The fact alleged that he makes 22 trips a day adds nothing to the risk of injury. This
is merely more of an inconvenience to him than to others having occasion to travel it less
frequently. While unfavorable conditions for travel over the proposed street are alleged, it
does not appear that it is impassable, or that such conditions will be permanent.
3. It is alleged that the present street is the nearest and most accessible route between
appellant Blanding's slaughter and packing house and his market in the city of Las Vegas, but
it is not alleged that there are not other routes over which he could transport his meat to the
market without risk of injury. The facts stated should be explicit and sufficient to enable the
court to determine whether there is any danger of special injury to the appellant. Mere fears of
contemplated injury are not sufficient. As stated in Fogg v. N.C.O. Railway, supra:
Injunctions ought not to be granted in cases of this character, unless the threatened use of
property or the act sought to be restrained is clearly shown to be such as leaves no doubt of its
injurious results; such results as are recognized to be substantial legal injuries. The bill must
set forth such a state of facts as leaves no room for doubt upon the question of nuisance, for,
if there is any doubt upon that point, the benefit will be given to the defendant.'
No facts from which special injury to the business of appellant Filbey can be clearly
concluded are alleged in the complaint. It appears from the complaint that appellant Filbey,
like appellant Blanding, does not reside on the present street, but on a highway connecting
therewith, where he conducts a dairy.
52 Nev. 52, 72 (1929) Blanding v. City of Las Vegas
therewith, where he conducts a dairy. It is alleged that he makes eight trips each day from the
place where he has his dairy to Las Vegas to deliver his dairy products, and on account of the
proposed street being unsafe and unfit for travel will be compelled to travel 1 1/5 miles
further each way over a more circuitous route to his special injury. It is clear that this is not
such injury as the law contemplates of which an individual may complain. It is not injury of a
different kind from that suffered by the general public. As in the case of Blanding these
allegations show merely an inconvenience of greater degree than to those who may travel that
way less frequently.
4. Counsel for appellants contend that the weight of authority establishes the rule to be
that an obstruction of a street or highway, requiring travel by a more circuitous route,
constitutes a special injury sufficient to support an action by an individual. We are of the
opinion that the weight of authority is decidedly the other way. Among the authorities
recognizing the latter view are the following: Stoutemeyer v. Sharp, 89 Ark. 175, 116 S.W.
189, 21 L.R.A. (N.S.) 74; Hitch v. Scholle, 180 Cal. 467, 181 P. 657, 658; Whitsett v. Union
Depot, etc., 10 Colo., 243, 15 P. 339; Newton v. New York, N.H. & H.R. Co., 72 Conn. 420,
44 A. 813; Canady v. Coeur D'Alene, 21 Idaho, 77, 120 P. 830; Houck v. Wachter, 34 Md.
265, 6 Am. Rep. 332; Nichols v. Inhabitants of Richmond, 162 Mass. 170, 38 N.E. 501;
Tomazewski v. Palmer Bee Co., 223 Mich. 565, 194 N.W. 571; Smith v. Boston, 7 Cush.
(Mass.) 254; Jacksonville, etc., Railroad Co. v. Thompson, 34 Fla. 346, 16 So. 282, 26
L.R.A. 410; Illinois Malleable Iron Co. v. Park Com'rs, 263 Ill. 446, 105 N.E. 336, 51 L.R.A.
(N.S.) 1203; Dantzer v. Indianapolis Union R. Co., 141 Ind. 604, 39 N.E. 223, 34 L.R.A. 769,
50 Am. St. Rep. 343; Chicago & N.W.R. Co. v. Railroad Commission, 167 Wis. 185, 167
N.W. 266; 2 Wood Nuis. (3d ed.) sec. 701; 1 High on Inj. (4th ed.) p. 785.
While there are cases holding that an enforced circuity of route from a property owner's
location to the outside world works a special peculiar injury to him, independent of an
actual injury to the premises, we are of the opinion that such cases are not in accord with
better principle.
52 Nev. 52, 73 (1929) Blanding v. City of Las Vegas
world works a special peculiar injury to him, independent of an actual injury to the premises,
we are of the opinion that such cases are not in accord with better principle. They are subject
to the criticism that the rule makes the person or municipality responsible for the nuisance
alleged subject to a multiplicity of suits for the same act, a condition which the law abhors
and seeks always to avoid. Hence the doctrine that where the obstruction complained of is
common to the public, although some may be affected to a greater degree than others, the
action for its removal must be by public prosecution.
5. The complaint states no cause of action as to appellants Rhoades and Smith. Their
garages, repair and supply shops, oil and gasoline stations are not situated on the part of Main
Street discontinued, but on Main Street some distance therefrom. The gist of their complaint
is that the discontinuance of the present street and the unfavorable conditions on the proposed
street will divert travel from the street where their respective places of business are situated,
and consequently cause the loss of the patronage of their customers to the special injury of
these appellants. It is not alleged that the proposed change in the street will make travel over
the street on which their places of business are located impassable or even difficult, but it is
alleged, in substance, that the unsafe and unfit condition of the proposed street will divert it to
another street. The injuries predicated on these allegations are too remote, contingent, and
uncertain to be called substantial legal injuries. Whether the results stated as feared will
actually happen is speculative. Even if it could be reasonably concluded that such results
would follow, the injuries to the appellants' business would not be that direct and immediate
consequence of the acts complained of which is always essential, but dependent upon the
public desire. Smith v. City of Boston, 7 Cush. (Mass.) 254.
As stated in Heller v. A., T. & S.F.R. Co., 28 Kan. 625: The benefits which come and go
from the changing currents of travel are not matters in respect to which any individual has
any vested right against the judgment of the public authorities."
52 Nev. 52, 74 (1929) Blanding v. City of Las Vegas
changing currents of travel are not matters in respect to which any individual has any vested
right against the judgment of the public authorities.
6. It is contended that appellants as taxpayers may join and maintain this action without
showing special injury. This contention is untenable. The complaint does not present a case
conferring on a taxpayer the right to sue. The rule governing such a case is correctly stated in
19 R.C.L. p. 1164, as follows: * * * Except when the act sought to be enjoined is or will
involve the assessment of a tax for an illegal purpose, a private citizen cannot maintain an
action to restrain official acts, unless he can show that he will suffer an injury differing in
kind and not merely in degree from that suffered by the public generally. A taxpayer, said
the court in Symons et al. v. City and County of San Francisco, is permitted to maintain an
action to restrain the improper diversion or use of the public funds, or to compel an official to
do some act whose omission would increase his burden as a taxpayer. In both cases the
ultimate object is the sameto escape the imposition of an increased taxation, which, except
for his right of action, would be by direction or indirection illegally thrust upon him.
The rule is also set forth in 28 Cyc. pp. 1736, 1737. It is there stated: It is well settled that
a court of equity will in a proper case enjoin illegal or unauthorized acts of a municipal
corporation, or its officers, and any resident or taxpayer who sustains a special injury different
from that of the public generally may sue to enjoin the unauthorized or illegal act. A taxpayer
cannot, however, maintain such a suit where he has not sustained or is not threatened with
any injury peculiar to himself as distinguished from the public generally, as in such case the
suit must be brought in the name of the state by the proper public officer. * * * And where it
(the act of the municipality) is prejudicial to the rights of taxpayers, as such, as involving the
levy of tax, creation of a municipal debt, or appropriation or expenditure of public funds, or
in any way tending to increase the burden of taxation, the great weight of authority is that
if such action be illegal or unauthorized, taxpayers may sue to restrain it, without
showing any special injury different from that sustained by other taxpayers, and may sue
in their own names without making the attorney-general or other public officer a party."
52 Nev. 52, 75 (1929) Blanding v. City of Las Vegas
increase the burden of taxation, the great weight of authority is that if such action be illegal or
unauthorized, taxpayers may sue to restrain it, without showing any special injury different
from that sustained by other taxpayers, and may sue in their own names without making the
attorney-general or other public officer a party.
7. The complaint does not present a case in principle conferring on appellants the right to
sue as taxpayers. As we hold, the appellants are not specially injured in regard to their special
vocations as alleged, and it does not otherwise appear that the act of the municipality vacating
the present street and establishing the proposed street is unlawful or beyond its chartered
powers. The fact that the action of the municipality was by order, instead of by an ordinance,
does not make the act void or illegal as contended by appellants. The city charter provides as
follows: The said board of commissioners shall have the power * * * to lay out, establish,
open, alter, widen, extend, grade, pave or otherwise improve streets, alleys, avenues,
sidewalks, parks and public grounds and to vacate the same. * * * Stats. of Nev. 1925, c. 56,
pp. 77, 82, sec. 3, subd. 12.
The charter does not prescribe the mode by which the power to do any of these things must
be exercised. It may be by ordinance, resolution, or order. Stats. of Nev. 1925, c. 56, pp. 77,
78, sec. 3. When a municipal council is given power to legislate in regard to a particular
subject matter, and the statute is silent as to the mode in which the power shall be exercised,
an enactment by the municipal council is valid whether it is in the form of an ordinance or
resolution. 19 R.C.L. p. 895; City of Chicago v. McKechney et al., 91 Ill. App. 442;
McQuillan, Municipal Corporations (2d ed.) p. 283, sec. 1529, note 82.
There is in substance no difference between a resolution and an order. 19 R.C.L. 895; State
v. Summers, 33 S.D. 40, 144 N.W. 730, 50 L.R.A. (N. S.) 206, Ann. Cas. 1916b, 860.
52 Nev. 52, 76 (1929) Blanding v. City of Las Vegas
There is not anything alleged in the complaint sufficient to show any misuse of power in
vacating the present street and opening the proposed street. No fraud is alleged, nor do its
allegations show any abuse of the discretionary power lodged by the charter in the city
authorities. The question of the necessity of closing a street or highway, as stated in 13
R.C.L. at pages 69, 70, as distinguished from the question of public purpose or use, belongs
exclusively to the legislative department of government. So where the power exists in a
municipality, it is for the municipal authorities to determine when it shall be exercised, and
their action in this regard will not be reviewed by the courts in the absence of fraud, or a
manifest abuse of discretion. The court cannot control or revise such decision on the ground
of inexpediency, injustice, or impropriety. Nor will it inquire into the motives of the tribunal
to which the matter is committed when there is no allegation of fraud, or unless it is manifest
that a flagrant wrong has been perpetrated upon the public and valuable rights have been
surrendered ostensibly for the public good, but really for the benefit of a private individual.
In Dillon on Municipal Corporations, vol. 111 (5th ed.) at page 1838, the author states the
rule: The exercise of the power (to vacate a street) is discretionary on the part of the
municipality; and in the absence of abuse the courts will not interfere with its exercise. See
the authorities cited in note 1 to support the foregoing statement of the rule.
The following statement of the rule is found in 3 McQuillan on Municipal Corporations, at
page 2991: Primarily the expediency of vacating a street or alley rests in the discretion of the
municipality, and the courts cannot interfere unless such discretion is clearly abused, or there
has been fraud or collusion. 2 Elliott, Roads and Streets (3d ed.), sec. 1182, p. 761. Knapp,
Stout & Co. v. St. Louis, 156 Mo. 343, 56 S.W. 1102.
8. The allegation in the complaint concerning the agreement made by the city of Las
Vegas and its board of city commissioners with the appellants the First State Bank of Las
Vegas, Hawkins, McNamee, and certain subdividers, is not sufficient averment of fraud.
52 Nev. 52, 77 (1929) Blanding v. City of Las Vegas
State Bank of Las Vegas, Hawkins, McNamee, and certain subdividers, is not sufficient
averment of fraud. There is no allegation in the complaint that the city owns the land
occupied by the present street. Nothing appearing to the contrary, it must be presumed that
the title is in the abutting owners. 3 McQuillan's Municipal Corporations, sec. 1305, and
cases cited in 74. Neither it is alleged that the city is selling or will sell the land occupied by
the present street. These considerations alone make the matter of no concern to appellants.
The mere fact that petitioners for the vacation of a street or other persons will be benefited
by such vacation is not sufficient to constitute such fraud or abuse of discretion as to
authorize a court to interfere. And the court will not ordinarily look into the motives
influencing the local authorities. 2 Elliott Roads and Streets, sec. 1183, p. 762; Albes v.
Southern R. Co., 164 Ala. 356-365, 51 So. 327; People ex rel. v. Chicago, 154 Ill. App.
578-582; Bellevue v. Bellevue Imp. Co., 65 Neb. 52, 90 N.W. 1002; Tilly v. Mitchell &
Lewis Co., 121 Wis. 1, 98 N.W. 969, 105 Am. St. Rep. 1007; 3 McQuillan, Municipal
Corporations, p. 2987.
9. We cannot agree with the claim that because the attorney-general refused to bring this
action the appellants were entitled to do so. In the first place, the complaint does not show by
sufficient allegation that the public interests have been or are about to be involved. In the
second place, actions for redress or prevention of public wrongs must be prosecuted in the
name of the state. Fogg v. N.C.O. Ry. Co., supra; 32 C.J. 295.
It is unnecessary to determine whether in any event a taxpayer on his relation in the name
of the state could bring an action to enjoin a public nuisance, when the attorney-general
refuses to do so.
The judgment of the court is affirmed.
____________
52 Nev. 78, 78 (1929) Williamson v. Williamson
WILLIAMSON v. WILLIAMSON
No. 2742
September 27, 1929. 280 P. 651.
1. DivorceAffidavit of Manager of Publisher, Without Affidavit Showing Manager Had
Knowledge of Publication, Held Insufficient Proof of Service by Publication in Divorce
Action.
Proof of service of summons by publication in action for divorce, by affidavit of manager of
publisher, without it appearing from affidavit that manager had knowledge of publication; held
insufficient, under Rev. Laws, sec. 5032, providing that service of summons by publication shall be
proved by affidavit of publisher, or other employee having knowledge thereof.
2. DivorceAllowing Amendment of Original Affidavit of Mailing of Summons,
Erroneously Stating where Copy Was Addressed, in Divorce Action, Held Proper.
Where original affidavit of mailing of summons in action for divorce was erroneous in stating that
copy was addressed to defendant at H., when copy was actually addressed to defendant at N., in
accordance with order of court, permitting original affidavit to be amended held proper.
3. DivorceEvidence Showing Defendant's Knowledge of Divorce Action, and Engaging
Attorney, Held Not Proof of Constructive Service of Summons, or Admission of
Service.
Evidence on hearing of motion to set aside default and judgment, tending to show defendant had
knowledge of pendency of action for divorce, and had engaged attorney to represent her, held not to
supply proof of constructive service of summons or admission of service, as required by Rev. Laws, sec.
5032.
4. ProcessService of Summons Gives Court Jurisdiction, and Not Proof Thereof.
Under Rev. Laws, sec. 5034, providing that from time of service of summons in a civil action court
shall be deemed to have acquired jurisdiction, service of summons gives court jurisdiction, and not proof
thereof.
5. ProcessRequired Proof of Service of Summons Must Be Furnished Before Trial Court
Can Acquire Jurisdiction Over Person of Defendant.
Before trial court is authorized to find that it has jurisdiction over person of defendant, required proof
of summons must be furnished.
6. DivorceDefault Judgment on Defective Proof of Service of Summons in Divorce Action
Although Erroneous, Is Not Void, Unless There Actually Was No Service of Summons.
Entry of default and judgment on defective proof of service of summons by publication, in action for
divorce, though erroneous, was not void, unless there was actually no service of summons as required.
52 Nev. 78, 79 (1929) Williamson v. Williamson
7. DivorcePlaintiff, Suing for Divorce, Held Entitled to Supply Statutory Proof of Service
of Summons by Publication, After Entry of Default and Judgment.
Where proof of service of summons by publication, under Rev. Laws, sec. 5032, in action for divorce,
was defective, plaintiff was entitled to supply statutory proof of publication, if it could be done, after entry
of default and judgment.
C.J.-CYC. REFERENCES
Divorce19 C.J. sec. 258, p. 104, n. 30; sec. 407, p. 161, n. 44.
Appeal from Second Judicial District Court, Washoe County: Geo. A. Bartlett, Judge.
Action for divorce by George I. Williamson against Mary Williamson. From an order
denying defendant's motion to set aside a default and judgment, defendant appeals. Reversed,
with directions.
James T. Boyd, for Appellant:
The publication of the summons and the mailing of the complaint, with the necessary
affidavits of returns showing what had been done, were the essentials in acquiring jurisdiction
over this nonresident defendant, and unless it affirmatively appeared that the law had been
strictly complied with, the court did not acquire jurisdiction of the defendant. Hence, any
judgment or decree rendered upon that showing was void, in fact a nullity; and the record as
made up affirmatively showed that the court had never acquired jurisdiction of the defendant.
Eleven months after the decree was rendered the court attempted to correct the error and to
make avoid judgment valid by permitting the return of the mailing of the summons and
complaint to be amended. This, we submit, cannot be done. The requirements being that it
must affirmatively appear at the time of the hearing that the court had acquired jurisdiction.
Where constructive service of summons is relied upon to sustain a judgment, a strict
compliance with the provisions of the statute is required. Rev. Laws, sec. 5027; Coffin v.
Bell, 22 Nev. 183; Perry v. District Court, 42 Nev. 284-291; Wildes v. Lou Dillon M. Co., 41
Nev. 364. The affidavit of publication of the summons in this case is insufficient to meet
the requirements of the statute, Rev. Laws, sec. 5032, subd. 3. Said affidavit was not
made by the publisher, his foreman or principal clerk, nor does it appear that the manager
of the publisher was an employee.
52 Nev. 78, 80 (1929) Williamson v. Williamson
The affidavit of publication of the summons in this case is insufficient to meet the
requirements of the statute, Rev. Laws, sec. 5032, subd. 3. Said affidavit was not made by the
publisher, his foreman or principal clerk, nor does it appear that the manager of the publisher
was an employee. If he was, it should have been set out in the affidavit and shown what his
knowledge of the same was.
W.L. Hacker, for Respondent:
The record on appeal shows that the appellant received the copy of the summons, annexed
to a certified copy of the complaint, many months before her default was entered and
judgment rendered against her. This service of process was based upon a valid affidavit and
order for publication of summons. It is the fact of service which gives the court jurisdiction,
not the proof of service; hence the trial court had jurisdiction of the person of the appellant at
the time it entered her default and rendered judgment in favor of the respondent. Amended
affidavits of service may be received after a judgment of divorce has been rendered, and filed
nunc pro tunc as of the date of the judgment. Herman v. Santee (Cal.), 37 P. 509, and cases
therein cited; In Re Newman's Estate, 16 P. 887; 9 R.C.L. 412, par. 211.
The authorities cited by appellant on the point that where constructive service of
summons is relied upon to sustain a judgment, a strict compliance with the provisions of our
statute is required are not in point in this case, for the reason that the facts upon which the
court based its opinions in those cases are entirely different from the facts disclosed by the
record in the case at bar. In the case of Perry v. District Court, 42 Nev. 284, the contention
was that the affidavit for order of publication of summons was fatally defective. In the case of
Wildes v. Lou Dillon M. Co., 41 Nev. 364, it was held that the affidavit for order of
publication of summons was insufficient, because it did not state certain jurisdictional facts.
And in the case of Coffin v. Bell, 22 Nev. 1S3
52 Nev. 78, 81 (1929) Williamson v. Williamson
Bell, 22 Nev. 183, it was held that the trial court never acquired jurisdiction for the reason
that the summons which was served upon Mrs. Goddard was not the summons ordered to be
published. The entire facts in the instant case show that every requirement of the statute
respecting constructive service of summons was strictly complied with, in this, that the
mailing and publication of summons was made in accordance with the directions of the court
contained in a valid affidavit for order for publication of summons, which was based upon a
valid affidavit for order of publication of summons. And appellant's contention that the
affidavit of the publication of summons is defective and insufficient is, we think, without any
merit whatever. The record discloses that the summons was published and the affidavit of
publication of summons was made in strict compliance with the provisions of sec. 5032, Rev.
Laws.
Where the service was sufficient to put the appellant on notice, judgment by default for want
of an appearance should not be set aside on account of trivial irregularities in such service.
Mere technicality will not avail to set aside a judgment. Jones v. San Francisco Sulpher
Co., 14 Nev. 172.
OPINION
By the Court, Ducker, C.J.:
This is an appeal from an order denying appellant's motion to set aside a default and
judgment in a divorce case. Appellant was defendant in the court below. Her motion was
made upon the ground that the lower court was without jurisdiction to enter a default and
render judgment. These proceedings were had upon a constructive service of summons.
The order for publication contained a requirement that a copy of the summons be sent to
the defendant by United States mail, postage thereon prepaid, to the town of North Hanover,
Mass., her last known place of residence. The affidavit of mailing of summons recited that:
"On the 11th day of June, 1924, I deposited in the post office at Reno, Nevada, a copy of
the summons attached to a certified copy of the complaint in said action, directed to Mary
Williamson, the defendant, at Hanover, Mass., the last known place of her residence, and
prepaid the postage thereon."
52 Nev. 78, 82 (1929) Williamson v. Williamson
that: On the 11th day of June, 1924, I deposited in the post office at Reno, Nevada, a copy of
the summons attached to a certified copy of the complaint in said action, directed to Mary
Williamson, the defendant, at Hanover, Mass., the last known place of her residence, and
prepaid the postage thereon. The affidavit of publication, omitting the formal parts, is as
follows: Joe McDonald, being first duly sworn, deposes and says: That he is manager of the
publisher of the Nevada State Journal, a daily newspaper published and printed and of general
circulation in the city of Reno, county of Washoe, State of Nevada; that the summons, of
which a copy is hereunto attached, was first published in said newspaper in its issue date June
13, 1924, and was published in each of the following issues thereafter: June 20, 27, July 4,
11, 18, 25the date of the last publication being in the issue of July 25, 1924.
Upon this proof of service of summons, as furnished by the foregoing affidavits, the court
entered a default on the 21st day of March, 1925. Judgment was rendered on the same day.
The motion to set aside the default and judgment was filed on January 8, 1926, and heard and
denied by the court on the 2d day of February, 1926.
The affidavit for publication of summons made by the respondent, and order for
publication, are not questioned; but appellant contends that there was no proper proof of
service of summons when the court entered default and rendered judgment, and that the
failure of proof in this regard deprived the court of jurisdiction. The particular respects in
which it is claimed that the proof fails are that the order required a copy of summons to be
mailed to the appellant at the town of North Hanover, Mass., while the affidavit of mailing
shows that it was mailed to the appellant at Hanover, Mass., and that the affidavit of
publication was made by a person not authorized by statute.
It must be admitted that the proof of service was not in compliance with the statute.
Section 5032 of the Revised Laws provides in part as follows: "3.
52 Nev. 78, 83 (1929) Williamson v. Williamson
3. In case of publication, the affidavit of the publisher, his foreman or principal clerk, or
other employee having knowledge thereof, showing the same, and an affidavit of a deposit of
a copy of the summons in the post office, if the same shall have been deposited; or
4. The written admission of the defendant.
1. It will be observed that the manager of the publisher is not one of the persons
specially authorized by the statute to make an affidavit of publication, and, if in this instance
he can be considered an employee other than those mentioned, it does not appear from the
affidavit that he had knowledge of the publication, as is required by the statute.
2. It appears, from an affidavit which the court permitted to be filed on the hearing of the
motion, that the original affidavit of mailing was erroneous, in stating that the copy of the
summons was addressed to the appellant at Hanover, Mass., and that a copy of the summons
was actually addressed to the appellant at North Hanover, Mass., in accordance with the order
of the court. Upon this showing the court permitted the original affidavit of mailing to be
amended in this respect. There was no error in this. Herman v. Santee, 103 Cal. 519, 37 P.
509; 42 Am. St. Rep. 145; Hibernia Savings & Loan Society v. Matthai, 116 Cal. 424, 48 P.
370. In Herman v. Santee, supra, it was held, under a statute like ours, that from the time of
service of summons the court acquired jurisdiction of the parties to the action, and not error
for the court after judgment to allow an amended affidavit showing that the appellant was
regularly served with a copy of the summons and complaint, to be filed nunc pro tunc as of
the date of judgment.
The objection that the affidavit of publication was not made by a person authorized by the
statute to make it was not made in the court below. Consequently no opportunity was given to
supply the proof of publication required by the statute, if it could have been supplied.
3-6. On the hearing of the motion to set aside the default and judgment, there was
evidence tending to show that appellant had knowledge of the pendency of the action, and
had engaged her present attorney to represent her in the action.
52 Nev. 78, 84 (1929) Williamson v. Williamson
show that appellant had knowledge of the pendency of the action, and had engaged her
present attorney to represent her in the action. But this evidence does not supply the proof of
constructive service of the summons, or an admission of service, as required by the statute. It
is true, as respondent contends, it is the service of summons that gives jurisdiction, and not
the proof thereof. Section 5034, Rev. Laws, Nev.; Herman v. Santee, 103 Cal. 519, 37 P.509,
42 Am. St. Rep. 145. But it is also true that the required proof of service must be furnished
before a trial court is authorized to find that it has jurisdiction over the person of the
defendant. The entry of default and judgment on the defective proof was therefore error, but
the judgment is not void, unless there was actually no service of summons as required by the
statute.
7. We think that respondent is entitled to supply the statutory proof of publication, if it
can be done, as was done as to the proof of mailing. The law in this respect is correctly stated
by Mr. Freeman in his work on Judgments as follows: * * * if a summons has been
published in the manner required by law, but the proof of publication found in the files of the
court is defective, the court may, on the fact of due publication being shown, permit an
affidavit to be filed showing the facts, and when so filed it will support the judgment as if
filed before its entry. 1 Freeman on Judgments (5th ed.), sec. 193. This statement of the law
is supported by the weight of authority.
The order denying the motion to set aside the default judgment should be reversed.
It is so ordered, and a rehearing of the motion directed in accordance with this opinion.
On Petition for Rehearing
February 4, 1930.
Per Curiam:
Rehearing denied.
____________
52 Nev. 85, 85 (1929) Orleans Mining Co. v. Le Champ Mining Co.
ORLEANS HORNSILVER MINING CO. v. LE CHAMP
D'OR FRENCH GOLD MINING CO., LTD., Et Al.
No. 2876
October 7, 1929. 280 P. 887.
1. Appeal and ErrorIt Is Bad Practice to File Motion to Strike Motion for Diminution of
Record Which Goes to Merits of Such Motion.
Filing motion to strike motion for diminution of record filed under provisions of supreme court rule 7,
which goes to merits of motion for diminution of record, is bad practice.
2. Appeal and ErrorAppeal to Supreme Court Is Perfected by Giving Notice of Appeal and
By Giving of an Undertaking.
Appeal to supreme court is perfected by giving notice of appeal and by giving of an undertaking,
although notice and undertaking are not in record as required by Stats. 1915, c. 142, sec. 11.
3. Appeal and ErrorNotwithstanding Perfecting of Appeal to Supreme Court, Trial Court
Retains Jurisdiction for Certain Purposes.
Trial court retains jurisdiction for certain purposes, although appeal to supreme court has been
perfected.
4. Appeal and ErrorCertificate of Clerk of Trial Court Is Not Essential when Original Bill
of Exceptions Constitutes Transcript.
When original bill of exceptions constitutes transcript, it is not essential that bill of exceptions be
certified by clerk of trial court.
5. Appeal and ErrorFailure to Embrace in Record Notice of Appeal and Undertaking Is Not
Jurisdictional.
Failure to embrace in record notice of appeal and undertaking was not jurisdictional, since they serve
their purpose in perfecting appeal.
6. Appeal and ErrorObtaining Extension of Time for Filing of Answering Brief Waived
Objections to Appeal which Did Not go to Jurisdiction of Court.
All objections to appeal which did not go to jurisdiction of court were waived by obtaining extension
of time for filing of answering brief.
7. Appeal and ErrorCases before Supreme Court Should Be Disposed of on their Merits
Wherever Possible.
Cases before supreme court should be disposed of on merits wherever possible, since Rev. Laws, sec.
5358, provides that appeal should not be dismissed except for substantial errors, and Stats. 1923, c. 97,
sec. 2, provides that no appeal should be dismissed for any defect in appellate proceeding until appellant
has been given opportunity to amend such defect.
8. Appeal And ErrorStatute Providing that No Appeal Should Be Dismissed for Defect
until Appellant has Opportunity to Correct Such Defect Is Liberally Construed.
Stats. 1923, c. 97, sec. 2, providing that no appeal should be dismissed for any defect in
appellate proceedings until appellant has been given opportunity to amend or
correct such defect, is liberally construed.
52 Nev. 85, 86 (1929) Orleans Mining Co. v. Le Champ Mining Co.
dismissed for any defect in appellate proceedings until appellant has been given
opportunity to amend or correct such defect, is liberally construed.
C.J.-CYC. REFERENCES
Appeal and Error3 C.J. sec. 1366, p. 1253, n. 30; sec. 1369, p. 1258, n. 48; 4 C.J. sec.
1617, p. 41, n. 29; sec. 1618, p. 43, n. 51; sec. 2155, p. 441, n. 34; sec. 2262, p. 502, n. 57;
sec. 2380, p. 565, n. 52; p. 573, n. 51.
Appeal from Seventh Judicial District Court, Esmeralda County: Frank T. Dunn, Judge.
Action by the Orleans Hornsilver Mining Company against the Le Champ D'Or French
Gold Mining Company, Limited, and others. From the judgment, plaintiff appeals. On motion
for diminution of the record. Motion granted.
Harwood & Diskin, for Appellant:
In the case of Botsford v. Van Riper, 32 Nev. 214, the identical motion that we are making
here was made. It will be noted that in that case, under subdivision marked 3, p. 223, the
supreme court ordered the clerk of the lower court to send up the notice of appeal and
undertaking on appeal. See, also, Christensen v. Floriston Pulp and Paper Co., 29 Nev 552;
American Sodium Co. v. Shelley, 50 Nev. 416, 51 Nev. 26; In Re Cook's Estate, 34 Nev. 217.
We submit that Stats. 1923, chap 97, sec. 2, is sufficiently broad in its provisions to include
therein a sanction for the proposed correction of the record. This statute has been liberally
construed by our supreme court in the case of Reinhart Co. v. Oklahoma Gold Mining Co., 48
Nev. 32; Shirk v. Palmer, 48 Nev. 449; Johns-Manville, Inc. v. Lander County, 48 Nev. 244;
Mellan v. Messenger, 48 Nev. 235.
The supreme court of this state, in the case of Tonopah Water Co. v. Belmont Development
Co., 49 Nev. 172, held that Stats. 1915, p. 166, and sec. 11 thereof, repealed sec. 414 of the
civil practice act, which provides that certain papers must be transmitted to the supreme court
on appeal, and also provides that if the appellants fails to furnish the requisite papers the
appeal may be dismissed.
52 Nev. 85, 87 (1929) Orleans Mining Co. v. Le Champ Mining Co.
appellants fails to furnish the requisite papers the appeal may be dismissed.
The Supreme Court of Nevada, in the case of Holmes v. Iowa Mining Co., 23 Nev. 23,
held that where the original papers were sent up in lieu of copies the appeal should be
dismissed. In dismissing the case, however, the court stated: This is a defect that doubtless
could have been remedied, but although the motion was made more than two months ago, and
thereby the appellant's attention particularly called to the matter, no attempt has been made to
do so.
John F. Kunz, for Respondents:
It is not within the province of the court to make an order to amend and correct the record
on appeal where the proposed amendment to cure the defect is jurisdictional.
The entire record on appeal as perfected must be filed in this court within the time
provided by rule 2 of the supreme court rules. The Statutes of 1923, p. 166, sec. 11, provides
what shall constitute the record, namely, the original bill of exceptions, the original notice of
appeal, and the original undertaking on appeal, annexed to a copy of the judgment roll, all
certified by the clerk. This certificate is jurisdictional and cannot be amended.
The motion, as shown by the affidavit of counsel for the appellant in support thereof,
admits the lack of said certification and the failure to file in this court with the record on
appeal the original notice of appeal and undertaking. This, then, is an amendment seeking to
confer jurisdiction.
Our statute provides that an appeal shall be perfected in the manner provided by the
statute, and not otherwise. Rev. Laws, sec. 5325. This court has repeatedly held that failure to
take such steps as are provided by the statute pertaining to appellant procedure are
jurisdictional.
Rule 7 of this court provides only for correcting the transcript from the court below, where
omissions of substance occur, which, in the interest of justice, should have been in the
record.
52 Nev. 85, 88 (1929) Orleans Mining Co. v. Le Champ Mining Co.
substance occur, which, in the interest of justice, should have been in the record. It does not
give relief for failure of certification of the record, or to file in this court what should have
been filed. On suggestion of diminution of the record, jurisdictional defects sought to be
remedied will not be corrected under rule 8, or under sec. 2, Stats. 1923, p. 165. Kirman v.
Johnson, 30 Nev. 146; Shirk v. Palmer, 48 Nev. 449; Featherman v. Granite County (Mont.),
72 P. 972; Cornell v. Matthews (Mont.), 72 P. 975; Hale v. Belgrade (Mont.), 240 P. 371;
State v. Kacar, 240 P. 365; McMahon v. Hamilton (Cal.), 260 P. 793; Tasker v. Warmer, 261
P. 474; Seney v. Pickwick Stages, 263 P. 299; Lynch v. Coe, 264 P. 747; Northrop v.
Jenieson (Colo.), 56 P. 187; Gripton v. Jones (Kans.), 53 P. 789; Greer v. Cohn (Okla.), 263
P. 136; Eveland v. Campbell, 264 P. 910; O'Neal v. O'Neal, 8 Ga. 439.
OPINION
Per Curiam:
This case is before the court on a motion for a diminution of the record in pursuance of
rule 7 of this court.
Counsel for respondent, prior to the hearing of the motion mentioned, made a motion to
strike the motion for a diminution of the record. Both motions were argued and submitted
together.
Respondent's motion is based upon the following ground, namely: That more than six
months had elapsed between the rendition of the judgment before the motion of appellant was
made, and that more than 60 days had elapsed since the date of the order denying the motion
for a new trial, and more than 30 days had expired since the settlement of the bill of
exceptions.
In support of respondent's motion it is said: The original bill of exceptions is not certified
by the clerk of the trial court; that neither the original notice of appeal nor the undertaking on
appeal have been filed as a part of the record on appeal; and that no certified copy of the
order denying the motion for a new trial nor a certified copy of the minute entry were
ever filed in this court.
52 Nev. 85, 89 (1929) Orleans Mining Co. v. Le Champ Mining Co.
copy of the order denying the motion for a new trial nor a certified copy of the minute entry
were ever filed in this court.
1. Let us first say that the filing of the counter motion, going as it does to the merits of
appellant's motion, is bad practice. Buehler v. Buehler, 38 Nev. 500, 151 P. 44. We will
confine out attention to the merits of appellant's motion.
Rule 7 of this court provides: For the purpose of correcting any error or defect in the
transcript from the court below, either party may suggest the same, in writing, to this court,
and upon good cause shown, obtain an order that the proper clerk certify to the whole or a
part of the record as may be required, or may produce the same duly certified, without such
order.
In support of the application an affidavit was filed showing the existence of the original
document.
Counsel for respondents, notwithstanding the rule, insists that these documents cannot be
produced, since, as contended, this court is without jurisdiction as the motion was not made
within the time in which a perfected transcript maybe filed. In support of his contention he
relies upon section 11, c. 142, Stats. 1915, p. 166, which reads: The original bills of
exceptions herein provided for, together with a notice of appeal and the undertaking on
appeal, shall be annexed to a copy of the judgment roll, certified by the clerk or by the parties,
if the appeal be from the judgment; if the appeal be from an order, such original bill shall be
annexed to such order, and the same shall be and become the record on appeal when filed in
the supreme court. * * *
2, 3. It has been repeatedly held by this court that an appeal is perfected by the giving of a
notice of appeal and by the giving of an undertaking, and, notwithstanding the perfecting of
an appeal, that the trial court retains jurisdiction for certain purposes. American Sodium Co.
v. Shelley et al., 51 Nev. 26, 267 P. 497. Pursuant to this well-established rule and the
undisputed affidavit in support of the motion for a diminution of the record, that the appeal
was perfected cannot be doubted.
52 Nev. 85, 90 (1929) Orleans Mining Co. v. Le Champ Mining Co.
of the record, that the appeal was perfected cannot be doubted. The only question remaining
to be decided is: Has this court acquired such jurisdiction as to warrant it in making the order
for a diminution of the record?
Rule 2 of this court reads: The transcript of the record on appeal shall be filed within
thirty days after the appeal has been perfected, and the bill of exceptions, if there be one, has
been settled.
Counsel for respondents in his motion to strike states that the bill of exceptions was settled
June 24, 1929. He is in error as to the date, but there was filed in this court on June 8, 1929, a
bill of exceptions, certified to by the stenographer as to the testimony and other proceedings,
and stipulated to by counsel on May 24, 1929, as provided by section 1, Stats. 1923, p. 163, c.
97, which bears a certificate of the clerk of the trial court, under seal, to the effect that no
objections have been filed in my office to the allowance or settlement of the foregoing bill of
exceptions.
The bill of exceptions contains the complaint, the answers of respective defendants, the
reply, the evidence taken on the trial, notice of motion for new trial, motion for a new trial,
the proceedings on the motion for a new trial, including the order of court denying the
motion, memorandum of errors, and other documents.
This bill of exceptions, from a casual observation, appears to contain all of the material
necessary to enable us to consider the record in disposing of alleged errors appearing both
upon the judgment roll and the ruling in denying the motion for a new trial.
Pursuant to chapter 88, Stats. 1927, it is not necessary to bring to this court a separate copy
of the judgment roll when documents which constitute the judgment roll are embraced in the
bill of exceptions.
4. Our attention is not directed to any provision of law requiring a certificate when the
original bill of exceptions constitutes the transcript, nor do we know of any.
5. In our opinion the failure to embrace in the record in this case the notice of appeal and
the undertaking is not jurisdictional.
52 Nev. 85, 91 (1929) Orleans Mining Co. v. Le Champ Mining Co.
not jurisdictional. They served their purposes in perfecting the appeal, and the only reason for
providing for their being sent up with the record is to show that the appeal was duly
perfected.
6. In due time counsel for appellant filed their opening brief. Thereafter counsel for
respondents obtained stipulations extending the time for the filing of an answering brief. This
constituted a waiver of all objections which do not go to the jurisdiction of the court.
Botsford v. Van Riper, 32 Nev. 214, 106 P. 440.
7, 8. It is the policy of the law that cases should be disposed of in this court on their
merits, where possible, as is manifest from a consideration of section 5358, Rev. Laws, and
of section 2, c. 97, Stats. 1923. The last-named section provides that no appeal shall be
dismissed for any defect or informality in the appellate proceedings until the appellant has
been given an opportunity, upon such terms as maybe just, to amend or correct such defect.
This provision is liberally construed. Shirk v. Palmer, 48 Nev. 449, 232 P. 1083, 236 P. 678,
239 P. 1000.
Our attention has been directed to decisions from other jurisdictions. We do not think they
control.
Taking the view expressed, the motion for a diminution of the record should be granted.
It is so ordered.
____________
52 Nev. 92, 92 (1930) Orleans Mining Co. v. Le Champ Mining Co.
ORLEANS HORNSILVER MINING CO. v. LE CHAMP
D'OR FRENCH GOLD MINING CO., LTD., Et Al.
No. 2876
February 5, 1930. 284 P. 307.
1. Mines And MineralsAgreement Between Lessee of Mining Property and Third Person
Transferring Lessee's Interest Held to Constitute Assignment and Not Sublease.
Agreement by lessee of mining property agreeing to assign, sell, transfer, and convey all right, title,
interest, property, claim, or demand whatsoever, of lessee in lease so that third person may acquire same
title to mining claim and property as lessee had, held assignment and not sublease, especially where
parties themselves for long time construed agreement as assignment.
2. Mines And MineralsAssignment of Lessee's Interest in Mining Property Held to Require
Assignee to Perform All Conditions Imposed Upon Lessee by Original Lease.
Agreement between lessee of mining property and third person transferring lessee's interest in like
manner as lessee was entitled under lease held to require third person to perform all conditions imposed
by lease upon lessee, including requirement that lessee perform 60 shifts of work per month.
3. ContractsWriting Referred to in Contract for Particular and Specified Purpose Becomes
Part of Contract for Such Specified Purpose Only.
Though writings made part of contract by annexation or references will be so construed, where
reference to another writing is made for particular and specified purpose, such other writing becomes part
for such specified purpose only.
4. Mines and MineralsMining Lease and Option Not Having Been Made Part of
Assignment for Particular and Specified Purpose, Court Must Assume Such Was Not
Intention of Parties.
Where it did not appear that lease of mining property and option was made part of agreement between
lessee and assignee for particular and specified purpose, court must assume that such was not intention of
parties.
5. PleadingApplication to Amend Complaint, Nine Months After Taking Testimony, to
Allege Agreement Between Lessee and Plaintiff's Assignor Was Sublease Instead of
Sale, Held Properly Denied.
In action of tort to recover damages resulting from conspiracy, culminating in forfeiture of bond and
lease upon certain mining property, application to amend complaint when case came up for trial, nine
months after taking testimony, so as to allege sublease to plaintiff's assignor instead of sale, held properly
denied.
52 Nev. 92, 93 (1930) Orleans Mining Co. v. Le Champ Mining Co.
6. ContractsContract Should Be Construed so as to Give Effect to Intention Of Parties.
Contract should be construed so as to give effect to intention of parties.
C.J.-CYC. REFERENCES
Contracts13 C.J. sec. 482, p. 521, n. 18; sec. 488, p. 531, n. 67.
Mines and Minerals40 C.J. sec. 651, p. 1041, n. 44; sec. 653, p. 1043, n. 65.
Appeal from Seventh Judicial District Court, Esmeralda County; Frank T. Dunn, Judge.
Action by the Orleans Hornsilver Mining Company against the Le Champ D'Or French Gold
Mining Company, Ltd., and others. From a judgment for defendants and an order denying a
new trial, plaintiff appeals. Affirmed. (See, also, 52 Nev. 85.)
Harwood & Diskin, for Appellant:
The supreme court of this state has construed sec. 5081, Rev. Laws, 1912, as authorizing
the amendment of a complaint to conform to the proof. Miller v. Thompson, 40 Nev. 39;
Ramezzano v. Avansino, 44 Nev. 67. The Supreme Court of California, in the case of Drew
v. Hicks, 35 P. 563, held that it was an abuse of discretion for the lower court to deny
defendant the right to amend the answer to conform to the proof. See, also, Pratt-Gilbert
Company v. Renaud, 213 P. 400; Ray v. American Photo Player Co., 189 P. 130; Watson v.
Watson, 203 P. 714; Straw v. Temple, 159 P. 44.
The authorities are uniform upon the question that where in a written contract reference is
made to another document, such reference will be construed only for the purpose of
identifying the subject matter, and the terms and conditions of the instrument will not be
construed as being binding on the parties. Wallace v. Oregon Engineering and Construction
Co., 174 P. 156; Johnson v. Grand Fraternity, 255 Fed. 933; Cruthers v. Donohoe (Ind.), 84
Atl. 322, at 323.
The agreement of July, 1921, is complete within itself, because new stipulations and
grounds for forfeitures are recited therein. The instrument contains all the essentials
necessary for a lease and option to purchase.
52 Nev. 92, 94 (1930) Orleans Mining Co. v. Le Champ Mining Co.
essentials necessary for a lease and option to purchase. The parties, the premises, the terms
and conditions are fully set forth. Bradley v. Metropolitan Music Co. (Minn.), 95 N.W. 458.
It is important to consider, in view of the law, these provisions of the agreement of July
18, 1921. It will be noted that Dunfee was the party who had the right to reenter and take
possession in the event of forfeiture; it will be noted that appellant agreed to surrender
possession to Dunfee on default: and, lastly, that in the event of default and forfeiture that
Dunfee was to have a new lease for the full term, or four years. This constituted a reversion of
the estate in favor of Dunfee for a full period of four years after the default of D'Arcy or his
assignee. We submit that the authorities hold, with great uniformity, that where these several
specific provisions are contained in a lease, the courts construe, by reason thereof, that the
same constitutes a sublease and not an assignment, because the sublessor has a reversion in
the estate and right of reentry. The leading cases on this question are Davis v. Vidal, 151
S.W. 290, and Dunlap v. Bullard, 131 Mass. 161. We also desire to call the court's attention
to the following statement of law contained in Thompson on Real Property, vol. II, sec. 1372,
p. 493: Where the lessee sublets for the whole of the unexpired term, reserving a power of
reentry, or if the subtenant covenants to surrender to him at the end of the term, a sublease
and not an assignment results.
John F. Kunz, for Respondents:
An immaterial variance between the allegations and proof adduced will be disregarded,
and furnishes no ground for reversal. 31 Cyc. 702.
There is no variance if the proof sustains a portion of the allegations of the pleadings. 31
Cyc. 701.
The allegations in the complaint are not denied, and, therefore, stand admitted. Admitted
testimony cannot vary an admission of the pleadings. Manning v. Bowman, 26 Nev. 451, 69
P. 995.
52 Nev. 92, 95 (1930) Orleans Mining Co. v. Le Champ Mining Co.
Respondents contend that defendant's exhibit D was made a part and portion of plaintiff's
exhibit 6 by the provisions of the latter, and that the intention of the parties, as shown by the
evidence, coupled with the admissions of the pleadings, is the final and governing factor in
construing the status of the said instruments. Kendis v. Cohn (Cal.), 265 P. 844, 851;
Shnitman v. Husted (Cal. App.), 279 P. 194.
OPINION
By the Court, Coleman, J.:
This is an action in tort to recover judgment in the sum of $127,575, damages alleged to
have been sustained as the result of a conspiracy, culminating, as alleged, in the forfeiture of a
bond and lease upon certain mining property.
Judgment was rendered in favor of the defendants. A motion for a new trial was made and
denied. The plaintiff has appealed.
We will refer to the corporate parties as plaintiff and defendant company, and to
individuals, where necessary, by their respective names.
On January 1, 1921, defendant company, through E. Carter Edwards, its attorney in fact,
executed and delivered to defendant Dunfee a lease upon certain mining property for the term
of four years, together with an option to purchase within said period. The lease provided,
among other things, that Dunfee should perform 60 shifts of work per month upon said
property during the life of the lease, and for failure to do so that the lease and option held by
him might be forfeited by defendant company. In due time Dunfee took possession of the
property and proceeded to work the same.
A few months thereafter an agreement was entered into between Dunfee and A.I. D'Arcy,
whereby Dunfee agreed to sell all of his interest in the said lease and option to D'Arcy for
$40,000, $15,000 cash and the balance in installments evidenced by promissory notes,
D'Arcy assuming and agreeing to pay to the defendant company for the property the
amount named in the option to Dunfee, to which agreement defendant company became
a party by reason of its written approval.
52 Nev. 92, 96 (1930) Orleans Mining Co. v. Le Champ Mining Co.
balance in installments evidenced by promissory notes, D'Arcy assuming and agreeing to pay
to the defendant company for the property the amount named in the option to Dunfee, to
which agreement defendant company became a party by reason of its written approval.
Pursuant to this agreement D'Arcy organized the plaintiff company, which took over his
contract and thereafter entered into possession of the property and began to operate the same.
Three years or more thereafter, the plaintiff not being in active operation and development
of the property, the defendant company served written notice upon it that unless it resumed
work and performed 60 shifts of labor per month upon the property the lease and option
would be declared forfeited and possession taken by it. Plaintiff having failed to resume work
and do the 60 shifts required, within the time required, defendant company took possession of
the property.
Numerous other details are presented in the record, but we do not deem it necessary to
state them.
Many errors are assigned and argued in plaintiff's opening brief, but it is necessary to
determine but one of them in view of the following statement in its reply brief: We admit
that if the stipulation contained in the Defendant's Exhibit D requiring Dunfee to perform
sixty shifts were binding on appellant, that the lease might be lawfully cancelled.
We do not think the question seriously debatable.
1. In considering this question it is urged by plaintiff that the agreement between Dunfee
and D'Arcy (exhibit D) is a sublease and not an assignment of Dunfee's interest, and hence
plaintiff was not obligated to do the 60 shifts monthly; plaintiff conceding, as we understand,
that it if be an assignment, plaintiff was obligated to do the work.
While we think a sublessee might obligate himself to do the work required in a lease or
forfeit his interest, we will dispose of the question presented.
The agreement between Dunfee and D'Arcy recites that whereas D'Arcy "is desirous of
purchasing all of the right, title and interest of said J.W. Dunfee in said lease and option,
and thereby acquire title to the mining claims and mining property * * * in A.I. D'Arcy, in
like manner as J.W. Dunfee is entitled under said lease and option to acquire title therein
* * * the party of the first part {Dunfee) hereby agrees to assign, sell, transfer, and
convey to the party of the second part {D'Arcy) all the right, title, interest, property, claim
or demand whatever, of the party of the first part, of, in or to, that certain lease and
option * * * said lease and option is hereby referred to and made a part hereof.
52 Nev. 92, 97 (1930) Orleans Mining Co. v. Le Champ Mining Co.
that whereas D'Arcy is desirous of purchasing all of the right, title and interest of said J.W.
Dunfee in said lease and option, and thereby acquire title to the mining claims and mining
property * * * in A.I. D'Arcy, in like manner as J.W. Dunfee is entitled under said lease and
option to acquire title therein * * * the party of the first part (Dunfee) hereby agrees to assign,
sell, transfer, and convey to the party of the second part (D'Arcy) all the right, title, interest,
property, claim or demand whatever, of the party of the first part, of, in or to, that certain
lease and option * * * said lease and option is hereby referred to and made a part hereof. * * *
When the full payment of $40,000.00 shall be paid to J.W. Dunfee, according to the terms,
and upon the payments in this agreement provided, the assignment, sale, transfer, and
conveyance of all the right, title and interest of J.W. Dunfee, of, in, and to, shall become and
be fully vested in said A.I. D'Arcy. * * *
In the lease and option from the defendant company to Dunfee it is provided that time
shall be of the essence of the contract and that for failure to comply with its terms said lease
and option may be forfeited.
We think it clearly appears from the agreement between Dunfee and D'Arcy that it was an
assignment of the lease and option held by Dunfee. We say this because the agreement has all
of the earmarks of an agreement of sale and none of a sublease. Giving the language of the
agreement its usual and popularly accepted meaning, there is not a word in it to signify a
sublease, but every word indicates a sale. In fact, if we were extremely desirous of holding the
agreement a sublease, we can find nothing in it upon which to base such a conclusion. A
sublease on mining property provides for the payment of royalties on the ore shipped. In the
instant case the agreement does not provide for the payment of royalties to Dunfee, but does
provide that from the ores shipped, after payment of royalties to defendant company, the
balance of said net returns to J.W. Dunfee, party of the first herein to be applied on the
next payment or payments coming due hereunder."
52 Nev. 92, 98 (1930) Orleans Mining Co. v. Le Champ Mining Co.
to J.W. Dunfee, party of the first herein to be applied on the next payment or payments
coming due hereunder.
2. But we think, whether the agreement between Dunfee and D'Arcy be an agreement of
sale or a sublease, it was obligatory upon plaintiff company to perform the 60 shifts.
Pursuant to the terms of the agreement, plaintiff was put into the exclusive possession of
the property and of all of the machinery, tools, and appliances used in the operation of the
property; furthermore, by the very terms of the agreement with Dunfee it is recited that
D'Arcy is desirous of acquiring title to the property in like manner as J.W. Dunfee is entitled
under said lease and option to acquire title therein. Is not this conclusive upon the point that
it thereby obligated itself to perform all of the conditions imposed upon Dunfee as a condition
precedent to acquiring title? We can imagine no other interpretation to be put upon this
language.
Counsel for respondent asserts that Dunfee and D'Arcy, in providing in their agreement
that said lease and option is hereby referred to and made a part hereof (referring to the lease
and option held by Dunfee), expressly imposed upon D'Arcy the obligation of performing the
60 shifts. As to this contention counsel for plaintiff contend that this reference was for the
purpose of description, and hence it did not become obligatory on plaintiff to perform the 60
shifts, and in this connection our attention is called to the case of Wallace v. Oregon
Engineering and Construction Co., 90 Or. 31, 174 P. 156, 157, 175 P. 445, and other cases of
similar import.
3. In the case mentioned it is said: A reference in a subcontract to the general contact for
a particular purpose makes it a part of the subcontract only for the purpose specified.
There can be no doubt of the correctness of this statement.
The general rule is stated in 13 C.J. 530, as follows: Writings which are made a part of
the contract by annexation or reference will be so construed; but where the reference to
another writing is made for a particular and specified purpose, such other writing
becomes a part for such specified purpose only."
52 Nev. 92, 99 (1930) Orleans Mining Co. v. Le Champ Mining Co.
annexation or reference will be so construed; but where the reference to another writing is
made for a particular and specified purpose, such other writing becomes a part for such
specified purpose only.
4. In the instant case it does not appear that the lease and option was made a part of the
agreement between Dunfee and D'Arcy for a particular and specific purpose, and hence we
must assume that such was not the intention.
But if the question were a doubtful one, it would be our duty to resolve it in favor of the
defendants, for the reason that the plaintiff itself construed the agreement between Dunfee
and D'Arcy as an assignment until nine months had elapsed after the testimony had been
taken in this case, as had the defendants.
5. In the complaint in this action plaintiff alleged a sale from Dunfee to D'Arcy of his
interest in the lease and option. At the conclusion of the taking of testimony in the case it was
continued for argument, and upon the argument nine months later plaintiff sought to amend
its complaint to allege that the agreement between Dunfee and D'Arcy was a sublease, instead
of a sale. The court rightly denied the application.
6. Some time after the plaintiff had entered into possession of the property under the
agreement in question, and while it was developing into the same, a suit in equity was
instituted in the federal court against the defendant company, Dunfee, and plaintiff, in which
it was alleged that the defendant Dunfee held his lease and option as a trustee for the plaintiff
in that suit, and praying that such be decreed to be the fact. Shortly after the institution of that
suit, defendant company gave written notice to plaintiff to the effect that during the pendency
of the suit in the federal court, mentioned, it need not prosecute work upon the property in
question. Thereafter the plaintiff sought and received from defendant company an agreement
relieving it temporarily of the necessity of prosecuting the work upon the property. Every
contract should be construed so as to give effect to the intention of the parties. In the instant
case both construed the contract as imposing upon plaintiff the duty of doing the work,
and this, too, before any thought of litigation.
52 Nev. 92, 100 (1930) Orleans Mining Co. v. Le Champ Mining Co.
case both construed the contract as imposing upon plaintiff the duty of doing the work, and
this, too, before any thought of litigation. Who is more capable of determining their
intentions?
While what we have said must result in an affirmance of the judgment and order appealed
from, we may add that we have carefully considered the evidence and are of the opinion that
the findings and judgment are amply sustained.
For the reasons given, it is ordered that the said order and judgment be affirmed.
On Petition For Rehearing
By the Court, Coleman, J.:
Counsel have presented a petition for rehearing, in which it is said that through their
failure to make clear their points the court failed to grasp their contentions, and hence reached
an erroneous conclusion.
Learned counsel are very considerate in assuming responsibility, but we may say that they
can never be justly charged with such shortcomings. We may say, too, that though we did not
discuss all of the points and law presented in the original briefs we think we grasped the force
of the points urged, and of the law stated in support thereof.
We did not deem it necessary in our original opinion to consider all of the points urged in
the opening brief of appellant, because of the concession made in its reply brief to the effect
that if the stipulations contained in defendants' exhibit D requiring Dunfee to perform sixty
shifts were binding on appellant that the lease might be lawfully canceled. In fact, we would
probably have taken that position had there been no such concession.
Counsel say in their petition:
* * * We could not be obligated under defendants' exhibit D until such time as we
acquired Dunfee's interest in defendants' exhibit D, and this interest could not be acquired by
us under the terms of the contract until we paid Dunfee $40,000.00. We submit this statement
is plain and not difficult to comprehend. In plaintiff's exhibit 6, we agreed to mine and
develop the property and nothing more.
52 Nev. 92, 101 (1930) Orleans Mining Co. v. Le Champ Mining Co.
plaintiff's exhibit 6, we agreed to mine and develop the property and nothing more. Therefore
until such time as we connected ourselves with Dunfee's title to defendants' exhibit D, our
contract was that we should mine and develop. We were not obligated to perform the sixty
shifts until we stepped into Dunfee's shoes and acquired, by paying him $40,000.00, his lease
and option which he had and held from the French Company.
We do not think this contention difficult to grasp, and it is equally easily answered. In fact,
had we made our position clear in our original opinion, we doubt if it would have been again
challenged.
Bearing in mind that plaintiff's exhibit 6 is the original contract (lease and option) between
Dunfee and defendant corporation, and that it imposed upon Dunfee the performance of sixty
shifts per month, coupled with the condition that for failure to comply with such condition
that the company (lessor and optioner), at its option, might declare such contract, and the
rights of Dunfee thereunder, forfeited in case of failure to perform the sixty shifts, it would
seem that no one could strenuously urge that had Dunfee continued to hold the lease and
option, but failed to do the sixty shifts monthly, his rights could not have been cut off by the
defendant company. Holding as we did that the plaintiff was an assignee of Dunfee's interest
in the lease and option, and as such took exclusive possession of the propertyconsidering
itself as such assignee during the entire life of the lease and option, and until nine months
after the testimony in this case was takenit was certainly charged with the duty of
complying with the terms, not only of exhibit D but of exhibit 6 as well, as we sought to show
in the original opinion.
The plaintiff knew that someone had to do the work. It was notified to do it, and that for
failure to comply its rights would be cut off. There is no intimation that it then took the
position that it was not charged with the burden of doing the work. It does not appear that it
demanded of Dunfee that he perform it. Every circumstance in connection with the case tends
to show that the plaintiff understood that it must do the work.
52 Nev. 92, 102 (1930) Orleans Mining Co. v. Le Champ Mining Co.
that the plaintiff understood that it must do the work. On what theory did it seek and receive
permission of defendant company on one or more occasions to temporarily cease operations?
Again we say we do not think the question seriously debatable.
The petition is denied.
____________
52 Nev. 102, 102 (1930) Garred v. Garred
GARRED v. GARRED
No. 2852
November 4, 1929. 281 P. 603.
1. Appeal And ErrorPortion of Transcript of Record Containing Testimony Not Embraced
in Properly Settled Bill of Exceptions Will Be Stricken.
In absence of bill of exceptions in record embracing all testimony of case, and settled as required by
Stats. 1923, c. 97, as amended by Stats. 1927, c. 88, motion to strike from files and records all of
transcript of record on appeal, except certified copy of judgment roll, certified copy of minute order,
notice of appeal, and undertaking on appeal, will be granted.
C.J.-CYC. REFERENCES
Appeal and Error4 C.J. sec. 2267, p. 506, n. 85.
Appeal from Third Judicial District Court, Eureka County; W.R. Reynolds, Judge.
Action by U.A. Garred against Elizabeth H. Garred. From an adverse judgment and an
order denying a new trial, defendant appeals. On plaintiff's motion to strike a portion of the
transcript of record. Motion granted.
R.R. Gill, of Ely, for Appellant.
Edgar Eather, of Eureka, and Thatcher & Woodburn, of Reno, for Respondent.
OPINION
By the Court, Coleman, J.:
A motion was made in this case to strike from the files and records of this court all of the
Transcript of Record on Appeal," consisting of three volumes, except the certified copy of
the judgment roll, certified copy of the minute order, notice of appeal, and undertaking on
appeal.
52 Nev. 102, 103 (1930) Garred v. Garred
Record on Appeal, consisting of three volumes, except the certified copy of the judgment
roll, certified copy of the minute order, notice of appeal, and undertaking on appeal.
The motion to strike is made upon the ground that such other portions of the Transcript of
Record on Appeal are not embraced in a duly authenticated bill of exceptions.
The motion was orally argued and thereafter an opinion was written, wherein we held that
no bill of exceptions, duly settled, was embraced in the record in this case. While our
conclusion on that point was right, we inadvertently ordered the affirmance of the judgment
instead of making an order based on the motion made; hence we entered an order vacating the
order of affirmance, and directed that the case stand submitted on the motion to strike and the
arguments thereon.
What is designated as volume 2 of Transcript of Record on Appeal, certified to by the
clerk of the trial court as being a full, true, and correct copy of a document entitled
Transcript of Testimony, is on file.
Volume 3 of Transcript of Record on Appeal appears from the certificate of the clerk to
be a copy of a certain deposition taken in the case.
All testimony in a case must be embraced in a bill of exceptions, settled as provided by
statute. There is no bill of exceptions in the record. The law as to the proper manner of
settling a bill of exceptions is covered by Stats. 1923, c. 97, as amended by Stats. 1927, c. 88,
and the cases cited in our former opinion.
For the reasons given, the motion to strike is granted.
On Petition For Rehearing
January 6, 1930.
Per Curiam:
Rehearing denied.
____________
52 Nev. 104, 104 (1930) Dunseath v. Nevada Industrial Commission
DUNSEATH v. NEVADA INDUSTRIAL
COMMISSION
No. 2872
December 2, 1929. 282 P. 879.
1. Master and ServantProvision Making Compensation Payable Under Act Exempt and
Preventing Assignment Thereof Applies to Enlarged Judgment for Compensation
Awarded by Court.
Nevada industrial insurance act (Stats. 1913, c. 111) sec. 28, as amended by Stats. 1915, c. 190, sec.
10, providing that compensation payable under act shall not be assignable, and shall be exempt from
attachment, garnishment, and execution prior to issuance and delivery of warrant therefor, held
applicable, not only to original award made by commission, but to judgment entered by district court
allowing increased compensation.
2. Master and ServantAgreement of Injured Workman to Pay Attorney Part of
Compensation Award for Recoverying Enlarged Compensation In District Court Held
Ineffectual.
Agreement between injured workman and his attorney for payment to attorney of certain sum for fees
out of compensation award for securing enlarged compensation in district court held ineffectual under
Nevada industrial insurance act (Stats. 1913, c. 111), sec. 28, as amended by Stats. 1915, c. 190, sec. 10,
providing that compensation payable under act shall not be assignable, and such agreement gave attorney
no claim on increased compensation awarded by district court.
3. Master and ServantContract for Payment of Compensation Award Under Act to Another
Than Claimant Is Ineffectual.
Contract of claimant to pay award of compensation to another is of no force or effect because
violative of Nevada industrial insurance act (Stats. 1913, c. 111), sec. 28, as amended by Stats. 1915, c.
190, sec. 10, providing that compensation shall not be assignable, and shall be exempt.
4. Constitutional LawStatute Prohibiting Assignment of Compensation to Another Than
Claimant Held Not to Impair Obligation of Contract Entered into Subsequent to
Passage of Act.
Nevada industrial insurance act (Stats. 1913, c. 111), sec. 28, as amended by Stats. 1915, c. 190, sec.
10, providing that compensation payable under act shall not be assignable to another than claimant, held
not to violate Const. Nev. art. 1, sec. 15; Const. U.S. art. 1, sec. 10, as impairing obligation of
contract, with respect to contract entered into subsequent to passage of law; impair in this connection
meaning in some way to weaken or diminish power which court had when contract was made to enforce it
or to give remedy by damages.
52 Nev. 104, 105 (1930) Dunseath v. Nevada Industrial Commission
5. Master and ServantStatute Making Compensation Payable Under Act Nonassignable and
Exempt Held Within Legislature's Police Power.
Nevada industrial insurance act (Stats. 1913, c. 111), sec. 28, as amended by Stats. 1915, c. 190, sec. 10,
making compensation payable under act nonassignable, and exempt from attachment, garnishment, and
execution, held within police power of legislature.
C.J.-CYC. REFERENCES
Workmen's Compensation ActsC.J. sec. 7, p. 15, n. 11.
Appeal from First Judicial District Court, Ormsby County; G.A. Ballard, Judge.
Action by Harry Dunseath against the Nevada Industrial Commission. Judgment for
defendant, and plaintiff appeals. Affirmed. (Sanders, J., dissenting.)
Harry Dunseath, for Appellant:
Does public policy require and the Nevada industrial insurance act by specific provision
provide that no claimant for compensation shall contract with an attorney to represent the
former in an action at law for the recovery of compensation after a claim has been finally
rejected by the Nevada industrial commission? We think the answer is no, for the following
reasons:
When once the Nevada industrial commission has rejected a claim, finally and in toto, the
claimant has concluded so far as the Nevada industrial commission is concerned. State v.
Nevada Industrial Commission, 40 Nev. 220. This case settles two points. First, that a
rejected claim concludes the claimant before the commission, and, second, that the Nevda
industrial commission will undoubtedly be called upon to make rejections. It also settles the
point that there is no appeal from the final decision of the Nevada industrial commission, and,
further, the act itself offers the claimant no recourse to the courts. He cannot ascertain from
the act what course to pursue. Throughout the whole law, section 38 makes the one and only
mention of recourse to the courts. This section authorizes only the Nevada industrial
commission to prosecute and defend.
52 Nev. 104, 106 (1930) Dunseath v. Nevada Industrial Commission
defend. No procedure is provided for and a claimant's rights are not mentioned. Hence, in the
first case that arose under the act, our supreme court, in the case of State v. Nevada Industrial
Commission, 40 Nev. 225, laid down the method of procedure for dissatisfied claimant. This
settles the further point that the claimant may have recourse to the courts. His only problem,
then, is to obtain counsel to represent him. If he is without funds, as injured workmen usually
are, he will probably try to enlist the services of an attorney upon a contingent basis and, if
successful, enter into an agreement with the attorney; and the case being presented to the
courts is finally adjudicated. If a judgment is obtained and the claimant refuses to keep his
agreement with the attorney, as in the case at bar, the attorney, finding the law silent on this
point, there being no mention whatever of legal procedure in such a case in the Nevada
industrial insurance act, also takes refuge in the general law and, relying upon section 5376,
Rev. Laws, files a lien upon the judgment and pursues the proceeds in the hands of the
judgment debtor, the Nevada industrial commission. Before the passage of the Nevada
industrial insurance act no one would have questioned the validity of a contract such as the
one under consideration.
The writer fails to find an instance where in other states the lien has been denied in a
workman's compensation case where the attorney was entitled to a fee. A digest of such cases
may be found in 3d Dec. Digest, vol. 19, Master and Servant, pages 1248 et seq., Key No.
420.
It will be noted that by the repeal of sec. 37 in 1917, the Nevada industrial commission
was, in effect, subrogated to all the rights and responsibilities of every employer coming
under the act, where an injury to a workman is concerned. Does the law imply that an
employer, by placing himself under the provisions of the act, ipso facto, bars an injured
workman from making a contract with an attorney to represent him in an action to recover for
an injury; that by this simple expedient the workman may not sue the employer, for the
latter is now exempt, nor may the workman make a valid contract with an attorney to
represent him in an action against the one to whom the responsibility has been
transferred?
52 Nev. 104, 107 (1930) Dunseath v. Nevada Industrial Commission
expedient the workman may not sue the employer, for the latter is now exempt, nor may the
workman make a valid contract with an attorney to represent him in an action against the one
to whom the responsibility has been transferred? Section 28 of the Nevada industrial
insurance act, if thus construed, is a violation of section 15, article 1 of the Constitution of
Nevada and of sec. 10, article 1 of the United States Constitution, in that it impairs the
obligation of contracts. 12 C.J. 1056.
M.A. Diskin, for Respondent:
We submit that the contention of appellant is fallacious for the reason that the Supreme
Court of Nevada in the case of State v. Nevada Industrial Commission, 40 Nev., at p. 226, in
speaking of the judgment of the court in a case of this character, stated: If a claim is finally
rejected in toto, that is the end of it so far as the commission is concerned unless a judgment
is obtained against the commission * * * in which event the judgment will have the force of
an allowed claim.
There can be no question but that under section 28 of the Nevada industrial insurance act
all assignments of compensation are prohibited, and further that the right to collect
compensation shall not pass to any other person by operation of law. In enacting section 28
the legislature was exercising its prerogative under the police power of the state, to the end
that the amount of compensation due should remain as a fund for the exclusive use of
claimant in order that such claimant may not become a public charge. As to the reasons which
prompted the legislatures of the several states to enact this law, see Cunningham v.
Northwestern Improvement Company (Mont.), 119 P. 559: Schneider's Workman's
Compensation Laws, vol. 1, sec. 3, p.5.
We submit that section 28 of the act is constitutional. A similar provision in the act of
Michigan was held by the court in the case of Mackin v. Detroit-Timkin Axle Company, 153
N.W. at p. 55, to be constitutional.
The Supreme Court of California in the case of Pacific Electric Railway Company v.
Commonwealth Bonding and Casualty Insurance Company, 204 P.
52 Nev. 104, 108 (1930) Dunseath v. Nevada Industrial Commission
and Casualty Insurance Company, 204 P. 262, held that an assignment by claimant of
compensation payable under the law was invalid as being contrary to public policy.
Appellant insists that Nevada is the only state where the legislature has failed to provide
for an attorney's lien. This argument is, we believe, sufficiently answered by the opinion of
the lower court where it held that this argument of appellant furnishes conclusive proof that
under the Nevada law no attorney's lien is authorized. Under the existing law claimant had a
perfect right to enter into a contract and thereby becomes obligated to pay appellant attorney
fees, but he could not, under the law, use the compensation money for this purpose.
The Supreme Court of the United States in several cases has held, even where a statute is
enacted after the contract is executed and such statute affects the obligations of the parties,
that it cannot be construed as impairing the obligations of the contract. Capital Trust
Company v. Calhoun, 250 U.S. 208; Calhoun v. Massee, 253 U.S. 170; Nutt v. Knut, 200
U.S. 12; Powell v. Jennings, 48 N.C. 547. See, also, Yeiser v. Dysart, 69 L. Ed. 775.
In the case of Brearley School v. Ward, 94 N.E. 1001, the court held, concerning the
statement to impair the obligations of contract, that to impair is in some way to weaken or
diminish the power which the courts had when the contact was made to enforce it. We
submit, therefore, that under the facts no obligation of contract is impaired, but on the
contrary the contract, at the time it was entered into, was invalid because its provisions were
in direct violation of section 28.
OPINION
By the Court, Ducker, C.J.:
Appellant brought this action in the court below against the Nevada industrial commission
to compel the commission to pay him the sum of $600 out of an award to an injured
workman.
52 Nev. 104, 109 (1930) Dunseath v. Nevada Industrial Commission
award to an injured workman. It is alleged in the complaint that said amount is the agreed
compensation for appellant's services as an attorney for securing for said workman an
enlarged compensation in an action instituted in the district court against the commission.
Respondent filed a demurrer to the complaint, and as grounds of demurrer alleged that the
complaint did not state facts sufficient to constitute a cause of action, and further that the
contract sued upon was in direct violation of the specific provisions of the statutes of Nevada
and contrary to public policy.
The demurrer was sustained by the court and judgment entered thereon. The judgment is
based upon the conclusion of the court that the contract for compensation of the attorney out
of the moneys of the award is void under the provisions of section 28 of the Nevada industrial
insurance act (Stats. 1913, c. 111), as amended by Stats. 1915 at page 291, c. 190, sec. 10.
The section in part reads:
Compensation payable under this act, whether determined or due, or not, shall not, prior
to the issuance and delivery of the warrant therefor, be assignable; shall be exempt from
attachment, garnishment, and execution, and shall not pass to any other person by operation
of law.
1. Appellant contends that the provisions of this section are not applicable in a case like
this where an enlarged compensation has been awarded by a court, but are applicable only to
an original award made by the commission. We do not agree with this contention. The terms
of the section are clearly against it. The exemptions and prohibitions found in the section
apply to all compensation payable under the act.
If the district court had jurisdiction of the action for an enlarged compensation, how can it
be said that the claim rejected by the commission and finally awarded by the court is not
compensation payable under the act. Counsel virtually conceded jurisdiction by instituting
that action, and such jurisdiction has not been questioned by counsel in any of the cases of
that character coming to this court.
52 Nev. 104, 110 (1930) Dunseath v. Nevada Industrial Commission
coming to this court. It has been held by this court that, after a claim for compensation had
been rejected by the commission, a judgment might be obtained against it in a court of
competent jurisdiction. State v. Nevada Industrial Commission, 40 Nev. 220, 161 P. 516,
518. In this regard the court said:
If a claim is finally rejected in toto, that is the end of it so far as the commission is
concerned, unless a judgment is obtained against the commission in a court of competent
jurisdiction, in which event the judgment will have the force of an allowed claim. Should the
commission refuse to pay such final judgment, mandamus would be an appropriate remedy.
As such a judgment has the force of an allowed claim and it is the duty of the commission
to pay it, the compensation awarded by the judgment comes clearly within the scope of
section 28.
2, 3. Counsel for appellant calls our attention to Richey v. Ziegler, 89 Cal. App. 35, 264 P.
293. It is claimed that the case is directly in point and in accord with his contention. While
counsel did not discuss the case, we think the statement he must rely on to the effect that the
defendants could not invoke the defense of the invalidity of the assignment is inconsistent
with the purpose of section 28 of our act. This section clearly expresses the intention of the
legislature that the award shall be paid only to the claimant. A contract to the contrary is of no
force and effect. Pacific Electric Ry. Co. v. Commonwealth Bonding & Casualty Ins. Co. et
al., 55 Cal. App. 704, 204 P. 262.
4. It is further contended that said section is in violation of section 15, article 1, of the
Constitution of Nevada, and of section 10, article 1, of the Constitution of the United States.
This contention is likewise untenable.
To impair, within the meaning of the constitutional inhibition, is in some way to weaken
or diminish the power which the courts had when the contract was made to enforce it, if
enforcible specifically, or to give remedy by damages for failure to perform it. Miller on
Const. of U.S. p. 541; quoted in Brearley School v. Ward, 201 N.Y. 35S, 367, 94 N.E. 1001,
Ann.
52 Nev. 104, 111 (1930) Dunseath v. Nevada Industrial Commission
on Const. of U.S. p. 541; quoted in Brearley School v. Ward, 201 N.Y. 358, 367, 94 N.E.
1001, Ann. Cas. 1912b, 251. Mr. Justice Miller, in his treatise on the Constitution of the
United States, at page 531, speaking of the meaning of this constitutional inhibition, also
says:
What is meant is that after the contract has been made no state shall make a law which
impairs its force, and it does not mean anything more than that.
The section assailed by appellant was enacted long prior to the contract in question.
Consequently, under the elementary rule stated above the obligation of this contract could not
be impaired by it. 6 R.C.L. p. 326, par. 315, and cases cited in notes, 14, 15, 16, and 17.
5. In appellant's closing brief are found objections on other constitutional grounds, but we
think they are without merit. Lynch and appellant were not prohibited by the section from
contracting for the payment of an attorney fee to the latter, but from agreeing that it should be
paid out of the award. We are satisfied that the provisions of the section in this regard are
within the police power of the legislature. Appellant denounces the statute as unjust, but this
consideration was for the legislature.
The judgment of the lower court should be affirmed.
It is so ordered.
Coleman, J.: I concur in the opinion of the Chief Justice, and in the order affirming the
judgment.
It nowhere appears that the plaintiff has subjected his claim against Lynch to a judgment,
nor is he a party to this action, but, assuming that neither is essential, and that the plaintiff has
a just claim against Lynch, such a state of facts will not affect the situation so far as the
defendant is concerned.
Lynch's right of recovery is pursuant to the industrial insurance act, and every one claiming
through, under, or by it is limited in his rights to its terms. This act expressly negatives the
idea that any one can obtain an interest in a claim existing pursuant to its provisions other
than the injured party.
52 Nev. 104, 112 (1930) Dunseath v. Nevada Industrial Commission
its provisions other than the injured party. The statute authorizing the award to a claimant on
certain conditions being a special act, those conditions must control, notwithstanding the
general law as to attorney's liens. State v. Beard, 21 Nev. 218, 29 P. 531; 36 Cyc. 1087.
While section 5376, Rev. Laws, provides for attorney's liens, it expressly excepts those
cases restrained by law. As I have pointed out, there can be no claim asserted under the
special act; hence there is nothing constituting a basis for a lien.
Sanders, J., dissenting.
The briefs concede the facts admitted by the demurrer to the complaint to be substantially
as follows: Harry Dunseath, hereafter called the plaintiff, is an attorney at law residing in
Reno. The Nevada industrial commission, hereafter called the defendant, has offices in
Carson City. The Tonopah Extension Mining Company is a corporation engaged in mining at
Tonopah, Nye County. Travis H. Lynch at the times mentioned was in the employ of said
corporation, in what capacity the record does not show. Both the corporation and Lynch had
accepted the terms of the statute known as the Nevada Industrial Insurance Act, hereafter
called the act. In 1917 Travis H. Lynch was accidentally injured in the course of his
employment. The character of his injury is not shown. In August, 1917, the defendant
awarded Lynch compensation for total disability for a period of one year. Thereafter the
commission determined that Lynch was totally disabled, and awarded him what it considered
to be, under the law, an amount which represented the total amount of compensation that the
law authorized.
Lynch contended before the commission that he was entitled to the compensation allowed
under the law for permanent total disability. This contention was denied and refused by the
commission, and Lynch was informed that his compensation would cease at the time
specified in the award. Lynch was not represented by the plaintiff, or any attorney, in the
proceedings before the commission.
52 Nev. 104, 113 (1930) Dunseath v. Nevada Industrial Commission
the plaintiff, or any attorney, in the proceedings before the commission. In June, 1917, and
after he was informed that his compensation would cease at a specified time, Lynch consulted
and employed the plaintiff to prosecute an action against the commission in the district court
in and for Nye County to recover the sum of $50 per month for life as compensation payable
under the act for permanent total disability.
Lynch entered into an agreement with the plaintiff whereby he agreed to pay plaintiff as
full compensation for his services $600 out of the amount recovered in the action. The action
was instituted, and upon issues joined, upon an agreed statement of facts, Lynch had
judgment against the commission for the sum of $50 per month, payable each and every
month during his life, beginning on July 15, 1928. The commission paid Lynch on account of
the judgment the sum of $350. In February, 1929, a controversy arose between Lynch and the
plaintiff over the fee agreed to be paid plaintiff. Lynch refused to carry out his agreement with
plaintiff. Thereupon, on February 28, 1929, the plaintiff filed a declaration of attorney's lien
in said court and cause upon the judgment recovered in favor of his client, Lynch, for the sum
of $600. In March, 1929, plaintiff commenced this suit in the district court of the First
judicial district in and for Ormsby County, at Carson City, to impose his alleged lien upon the
proceeds of the judgment recovered in favor of his client in the hands of the defendant. The
defendant demurred to the complaint upon the general ground that it did not state facts
sufficient to constitute a cause of action, and upon the special ground that the contract of
employment set up and made a part of the complaint was one in direct violation of the
specific provisions contained in the statute creating the Nevada industrial insurance
commission and that the contract was contrary to public policy. The plaintiff appeals from the
decision sustaining the demurrer.
Our statute, section 5376, Revised Laws, provides that the compensation of an attorney for
his services is governed by agreement, expressed or implied, which is not restrained by
law.
52 Nev. 104, 114 (1930) Dunseath v. Nevada Industrial Commission
is governed by agreement, expressed or implied, which is not restrained by law. If then the
agreement which constitutes the basis for an equitable lien against the funds in the hands of
the defendant is not one restrained by law, then, under the same section of the statute, the
complainant is entitled to a lien upon the proceeds of the judgment in the hands of the
commission.
The learned attorney-general, who is ex officio attorney for the commission, insists in
argument that the agreement constituting the equitable lien or assignment of $600 of the
amount recovered in favor of Lynch is prohibited by the terms of section 28 of the statute
creating the commission. The contention is based upon the assumption that, however
meritorious the consideration of the agreement in question may be, the prohibition of the
statute against assignments of compensation and exempting it from the payment of debts
controls. The controversy between Lynch and the commission, as to the amount of
compensation, was submitted to a court of competent jurisdiction for determination and
decision upon an agreed statement of facts. Lynch had judgment. Should the commission
refuse to pay the judgment, mandamus would be a proper remedy to enforce it. State v.
Nevada Industrial Insurance Commission, 40 Nev. 220, 161 P. 516. This being so, the
defense interposed by the demurrer to the complaint, that the agreement constituting the
equitable lien or assignment was prohibited by the terms of section 28 of the act, is not
available to the defendant in this suit. Sanborn v. Maxwell, 18 App. D.C. 245.
It is my opinion that, where an injured workman has been denied and refused the
compensation payable under the act, and the workman is forced to resort to his remedy at law
in a court of competent jurisdiction to obtain that which the law allows, it is competent for the
claimant to employ an attorney and agree to pay him for his services a fair, just, and
reasonable fee contingent upon the success of the litigation. The services rendered by the
plaintiff in this case were undoubtedly legitimate and not obnoxious to any rule of public
policy.
52 Nev. 104, 115 (1930) Dunseath v. Nevada Industrial Commission
undoubtedly legitimate and not obnoxious to any rule of public policy. The plaintiff's services
consisted of the recovery of the amount his client was entitled to under the act, and the
agreement between the attorney and client, as alleged in the complaint, is at least sufficient
foundation for the enforcement of the equitable lien upon the fund in the hands of the
defendant and within the jurisdiction of the court.
For the reasons given, the order sustaining the demurrer should be reversed, with costs,
and the cause remanded for further proceedings.
On Petition For Rehearing
April 29, 1930.
Per Curiam:
Rehearing denied.
Sanders, J.: I dissent.
____________
52 Nev. 115, 115 (1930) State v. Phipps
STATE v. PHIPPS
No. 2840
December 19, 1929. 282 P. 1024.
1. WitnessesWillful False Swearing Upon Material Matter Is Necessary to Discredit
Witness Because of Contradictory Statements.
Before witness can be discredited as to any portion of his testimony because of contradictory
statements, he must willfully swear falsely upon material matter.
2. Criminal LawWhere Question Arises Whether Witness Is Discredited Because of
Contradictory Statements, Trial Court Should Usually Instruct Jury on Such Question.
Where question arises in criminal prosecution as to whether contradictory statements of witness are
sufficient to discredit him, trial court should usually instruct jury on such question.
3. WitnessesCodefendant's Testimony in Prosecution for Larceny of Mining Property, if
False, that He Did Not Write Matters in Location Notice Signed by Him, Held Not to
Discredit His Testimony.
In prosecution for larceny of property situated on mining claim, where prosecution contended
relocation of claim by defendants was manufactured scheme and subterfuge to enable
defendants under guise of law to steal property, codefendant's testimony, if false,
that he only signed relocation notice and did not write words of notice on nature of
claim and location, held not of such material matter justifying jury in discrediting
his testimony.
52 Nev. 115, 116 (1930) State v. Phipps
defendants was manufactured scheme and subterfuge to enable defendants under guise of law to steal
property, codefendant's testimony, if false, that he only signed relocation notice and did not write words of
notice on nature of claim and location, held not of such material matter justifying jury in discrediting his
testimony.
4. WitnessesEvidence in Larceny Prosecution Held to Show Codefendant Did Not
Willfully Testify Falsely Justifying Jury in Discrediting His Testimony.
In prosecution for larceny of mining property, evidence held to show that codefendant did not willfully
testify falsely regarding relocation notice signed by him justifying jury in discrediting his testimony.
5. LarcenyEvidence in Prosecution for Larceny of Mining Property Held Not to Show
Codefendant's Intent to Take, Steal, or Carry Away Personal Property.
In prosecution for larceny of mining property, evidence held not to show codefendant's intent to take,
steal or carry away personal property as charged in information.
6. Criminal LawWhere Jury in Larceny Prosecution Found Against Defense that Property
Was Taken Under Claim of Right, Supreme Court Could Not Disturb Verdict of Guilty.
Where jury in prosecution for larceny of mining property found against defense that property was taken
under claim of right upon theory that defendants honestly believed that claim was open to location, and
property thereon became theirs by virtue thereof, supreme court was in no position to disturb verdict of
guilty.
7. Criminal LawInstruction Defining Petty Larceny Substantially in Language of Statute,
but Not Stating Felonious Intent Was Required, Held Not Error.
In prosecution for larceny of mining property, instruction defining petty larceny substantially in language
of statute, but failing to state that jury must find taking to have been with felonious intent, held not error.
C.J.-CYC. REFERENCES
Criminal Law16 C.J. sec. 2362, p. 968, n. 4; sec. 2438, p. 1012, n. 39; 17 C.J. sec. 3594, p. 264, n. 89.
Larceny36 C.J. sec. 497, p. 912, n. 42.
Witnesses40 Cyc. p. 2588, n. 55; p. 2687, n. 93; p. 2699, n. 38.
Appeal from Eighth Judicial District Court, Lyon County; Clark J. Guild, Judge.
A.S. Phipps and others were convicted of petty larceny, and they appeal. Reversed as to
defendant Phipps, and affirmed as to defendants Boarth and Kalember.
52 Nev. 115, 117 (1930) State v. Phipps
Wm. M. Kearney and N.W. Willis, for Appellants:
We find from an examination of the authorities that to convict a man of larceny in any
degree it must be shown that the four elements which go to make up larceny must be present,
and in addition we find that to convict one of any crime there must be a joinder of act with
felonious intent, and that these two elements must occur and be present simultaneously.
When we apply this to the facts at bar, we find that not only are the four elements constituting
larceny absent, but that there is no union of act and felonious intent.
The four essential elements that must be found concurring to constitute the crime of
larceny are set out in 36 C.J. 747-761. On page 747 it is stated: To constitute larceny the first
essential is that the thing which is the subject of the crime should be taken from the
possession of the owner into the possession of the thief and be carried away by him, for until
this is done there is no larceny. Applying this element to the undisputed facts shows first of
all that as to defendant Phipps the proof fails at once, for there is no showing and no attempt
to show any carrying away or asportation as to him. In fact the contrary is clearly shown and
remains uncontradicted. His sole connection with the alleged offense is the fact that his name
was on the location blank filled out after he had signed it some time prior to the filing of the
location on the claim, and much prior to the carrying away complained of. As for the
defendants Boarth and Kalember, we find an act of carrying away which is freely admitted by
them, but the taking by them does not fulfill this first essential, in that it was not a taking
from the possession of the owner into the possession of the thief, for J.L. McMahon was no
longer the owner at the time of taking, according to the second essential found on pages 756
and 757 of 36 C.J., having abandoned the property.
The third element of larceny set forth in 36 C.J.
52 Nev. 115, 118 (1930) State v. Phipps
p. 759, is one with which we are not greatly concerned, save only as it is suggested by
inference from the facts showing abandonment of the claim by the complaining witness.
The fourth and last essential of larceny, set out at page 760 of 36 C.J., is one that is of
greatest importance. We find this doctrine well supported in New York in the case of People
v. Pitt, 142 N.Y.S., at p. 875. In the case at bar we find the defendants Boarth and Kalember
taking the property under no criminal intent, but with the sole purpose and intent of taking
that which they in good faith thought belonged to them, under their relocation of an
abandoned mining claim. Where, then, is there any evidence of that element which the New
York court states to be the very essence of the crime of larceny? See, also, People v.
Eastman, 19 P. 267; Miller v. Territory (Ariz.), 80 P. at 322; State v. Bailey (W. Va.), 60 S.
E. at p. 786; Territory v. Dowdy (Ariz.), 124 P. 895; 36 C.J. 764; People v. Devine, 30 P.
379; 36 C.J. 913, 914; sections 6268 and 6271, Rev. Laws of Nevada. Nowhere do we find in
the evidence any elements which would take defendants from the protection granted them by
sec 6268, Rev. Laws. On the contrary, the undisputed testimony shows the bona fide claim of
right in defendants, which, if unfounded, would at the most amount to a mistake of fact.
Likewise, there is nowhere the requisite set out in sec. 6271, for no showing is made of any
union of act and intention.
In the only attempt the court makes in its instructions to define the crime of larceny, the
definition given is most inadequate, so much so, in fact, as to be erroneous in the extreme,
since none of the elements of the crime are set out, and since under the definition of petit
larceny in particular there is no mention whatsoever of a felonious intent. The fact that this
definition is a restatement of the statutory definition is inadequate. As in pleading, it is often
error to plead the exact terms of a statute, word for word. The rule is stated in 36 C.J. 930.
52 Nev. 115, 119 (1930) State v. Phipps
M.A. Diskin, Attorney-General, Wm. J. Forman, Deputy Attorney-General, and John R.
Ross, District Attorney, for Respondent:
The mere claim of right at the time of trial would not negative, necessarily, a felonious
intent; that would be question for the jury alone. State v. Eubank, 74 P.380; People v.
Hillhouse, 45 N.W. 485; Territory v. Dowdy, 124 P. 894; State v. Claybaugh, 122 S.W. 319.
Instruction No. 26 informed the jury specifically concerning this question of intent in this
case. The instruction pointed out that if defendants' claim of right was bona fide, there could
be no criminal intent and, therefore, no conviction; but if, on the other hand, the defendants'
claim was not in good faith, but they had a criminal intent in taking the property, then they
could be found guilty.
Appellant objects to instruction No. 4 on the ground that it does not instruct the jury as to
the necessary element of intent. The instruction is but a combination of the statutory
definitions of grand and petit larceny (secs. 6638 and 6639, vol. 2, Rev. Laws). The portion of
the instruction dealing with grand larceny does specifically bring to the jury the necessity of
intent, and we believe that the instruction as given is not open to objection. An instruction
defining the crime in the language of the statute is sufficient. Since an instruction must be
read in connection with other portions of the charge, an insufficient definition is not fatally
defective if the omitted elements are supplied by other instructions. People v. Ruiz, 144 Cal.
251, 77 P. 907; State v. Lynch, 86 Kans. 528, 121 P. 351; People v. Fortch, 110 P. 823; State
v. Tracey, 35 Mont. 552, 90 P. 791.
Perhaps appellant has in mind that in the portion of the instruction defining petit larceny
the court omits the word feloniously. It will be noted that the statute does not make use of
the word, and it is our belief that the omission of feloniously does not of itself open the
latter part of the instruction or objection, but that the word "steal" sufficiently imports the
necessary intent.
52 Nev. 115, 120 (1930) State v. Phipps
the word steal sufficiently imports the necessary intent. People v. Tomlinson, 102 Cal. 19,
36 P. 506; Barnes v. State, 40 Neb. 545, 59 N. W. 125.
OPINION
By the Court, Sanders, J.:
Appellants, hereafter called defendants, were tried upon an information charging them
with the crime of grand larceny, but were convicted of the crime of petty larceny, alleged to
have been committed in the manner following, to wit: That said defendants on the 12th day
of July, A.D. 1927, or thereabouts, and before the filing of this information, at and within the
County of Lyon, State of Nevada, did commit the crime of grand larceny in the manner
following: that the said A.S. Phipps, Frank Boarth, George Kalember, did on or about the
12th day of July, A.D. 1927, at Mason Pass, Lyon County, Nevada, wilfully, unlawfully,
maliciously and feloniously steal, take and carry away, from the Hilltop Mining Claim, situate
in the Mason Pass Mining District, certain personal property then and there belonging to and
being owned by one J.L. McMahon, to wit: one 12' x 12' wooden cabin, 400 feet of 8 pound
rails, one car truck, twenty-two pieces of steel, blacksmith tools, 100 feet of ladder skidways;
all of which was then and there the property of J.L. McMahon, and all of which was then and
there of a value greater than fifty dollars.
The defendants appealed from the judgment pronounced against them upon a verdict of the
jury finding them guilty of petty larceny, and from an order denying and overruling their
motion for new trial.
The record discloses: That the prosecuting witness, J.L. McMahon, for a long time prior to
and at the time of the alleged commission of the offense charged, was the owner and in
constructive possession of the Hilltop lode mining claim and the personal property thereon.
That prior to and at the time of the commission of the offense defendants George Kalember
and Frank Boarth were in the possession and occupancy of a group of mining claims under
lease, called the Blue Bird Nos.
52 Nev. 115, 121 (1930) State v. Phipps
were in the possession and occupancy of a group of mining claims under lease, called the
Blue Bird Nos. 1, 2, and 3, and were engaged in mining thereon. Prior to and at the time of
the alleged commission of the offense the defendant A. S. Phipps was engaged in the business
of funeral director and undertaker in the town of Yerington.
The testimony shows that the defendant George Kalember, a miner and prospector, feeling
himself obligated to Phipps for past favors shown him, proposed to Phipps that, should he in
the course of his business as prospector make a discovery worthy of location, he would locate
Phipps in on the location. To this end Phipps supplied Kalember with a number of blank
notices of locations and signed his name in blank thereon. Thereafter the defendants Boarth
and Kalember, while engaged in mining upon the Blue Bird group of claims, made a
discovery upon what they considered to be an abandoned mining location called the Hilltop
lode mining claim, situate about a mile distant from the Blue Bird group. Before posting a
notice of location thereon Kalember communicated with Phipps and requested him to search
the records and find out whether any certificates of annual labor, as required by law, had been
placed upon the records in the recorder's office in Lyon County, at Yerington, by McMahon
or his agent or agents. Finding no such certificate upon the record Phipps communicated the
fact to Kalember. Thereupon Kalember and Boarth went upon the Hilltop claim, destroyed
the notice of location posted thereon by McMahon, and posted a notice of relocation signed
by A.S. Phipps and Frank Boarth, and witnessed by George Kalember. The reason assigned
for Kalember's name not appearing upon the notice as locator was that he was an alien.
The testimony discloses that the notice as posted was partly filled in in the handwriting of
the defendant Phipps. The notice was one of those which Phipps had furnished Kalember.
After posting the notice the defendants Boarth and Kalember returned to the Blue Bird group,
and several days thereafter returned to the Hilltop claim, relocated by them as the
Comstock shaft, and removed therefrom the personal property described in the
information, and placed it upon one of the Blue Bird group of claims upon which they
were mining.
52 Nev. 115, 122 (1930) State v. Phipps
Bird group, and several days thereafter returned to the Hilltop claim, relocated by them as the
Comstock shaft, and removed therefrom the personal property described in the information,
and placed it upon one of the Blue Bird group of claims upon which they were mining.
Upon the trial the defendants Boarth and Kalember defended upon the ground that they
openly and under claim of right removed the property from the Hilltop claim and
appropriated it to their own use in operating their lease upon the Blue Bird group.
Upon the trial the defendant Phipps defended upon the grounds that he was not present at
the time of the removal of the property by his codefendants; that he knew nothing of its
removal, had no part therein and that it was removed without his knowledge or consent; that
he had no knowledge of its removal until the controversy arose over its removaL; that he had
no interest in the Blue Bird group or in the lease of his codefendants, and was not in any way
connected with them in mining the ground.
Upon the trial the theory of the state was that the relocation of the Hilltop lode mining
claim by the defendants was a manufactured scheme and subterfuge to enable defendants,
under the guise of law, to take, steal, and carry away the property of another, and thus
establish an alibi should they at any time be charged with its theft.
There was no evidence proving or tending to prove the guilt of the defendant Phipps,
either as principal or accessory. The state, however, insists that the fact that the relocation
notice as posed upon the ground had been partially filled out in the handwriting of the
defendant Phipps and signed by him, and the further fact that Phipps made conflicting
statements respecting the notice of relocation was sufficient evidence to connect him as an
accessory before the fact with the commission of the offense as charged.
1, 2. The contention is without merit. It is a well-recognized rule of law that, before a
witness can be discredited as to any portion of his testimony because of contradictory
statements, he must willfully swear falsely upon material matter, Underhill on Criminal
Evidence {2d ed.), sec.
52 Nev. 115, 123 (1930) State v. Phipps
of contradictory statements, he must willfully swear falsely upon material matter, Underhill
on Criminal Evidence (2d ed.), sec. 241, and it is usual for trial courts to so instruct the jury
where such a question is involved.
In this case the defendant Phipps must not only have testified falsely, but he must have
done so willfully, and such willful false testimony must have been as to a material fact. The
matter concerning which it is alleged Phipps testified falsely is as to the notice of location
posted upon the Hilltop claim. He testified that the only writing he placed upon it was his
signature; that he wrote his name on some blanks to be used in case of a discovery of mineral
ground by Kalember, subject to location under the state and federal laws. The state introduced
expert testimony to show that certain other matter in the body of the notice in question was
written by the same person who wrote defendant Phipp's name at the bottom of the notice.
The additional matters are the words quartz and located about six miles north and four
miles west from the Yerington Depot, followed by compass directions N.E. and S.W.
3, 4. Assuming that Phipps willfully testified falsely, and that he did write the words
stated in the notice, it is not such a material matter as would justify the jury in discrediting his
testimony. It did not matter whether the claim was in a westerly, northerly, southerly, or
easterly direction from the Yerington depot, nor was it material that the word quartz be in
the location certificate. Furthermore, it is manifest that Phipps did not willfully testify falsely
as to this matter, for the reason that he had repeatedly stated before and after his arrest that he
knew about the general direction of the claim before it was located; that he had examined the
records to ascertain if the annual labor on the Hilltop claim, a former location of the ground,
had been performed.
5. We are clearly of opinion that there was no evidence proving or tending to prove an act
of guilty intent, on the part of defendant Phipps, to take, steal, or carry away the personal
property on the Hilltop claim as charged in the information.
52 Nev. 115, 124 (1930) State v. Phipps
on the part of defendant Phipps, to take, steal, or carry away the personal property on the
Hilltop claim as charged in the information.
6. But as to Kalember and Boarth, the sole question presented to the jury was whether or
not they removed and carried away the personal property from the Hilltop claim under a claim
of right, or with larcenous intent. The jury having found against their defense that the
property was taken under a claim of right upon the theory that they honestly believed that the
claim was open to location and the property thereon became theirs by virtue thereof, we are in
no position to disturb the verdict of the jury as to their guilt.
7. It is strongly insisted in argument on behalf of the defendants that the court erred in
charging the jury as to petty larceny, in that it failed to state that the jury must find the taking
to have been with felonious intent. The instruction was substantially in the language of the
statute defining petty larceny. This was sufficient, and no error was committed in this respect.
The judgment of conviction of the defendant Phipps is reversed, and, as against defendants
Boarth and Kalember, is affirmed.
____________
52 Nev. 125, 125 (1930) Leech Et Al. v. Armstrong Et Al.
LEECH Et Al. v. ARMSTRONG Et Al.
No. 2862 and No. 2862a
January 3, 1930. 283 P. 396.
1. New TrialParty Appealing Before Moving for New Trial Does Not Waive Right to
Move Therefor on Grounds Not Enumerated in Statute.
Under Rev. Laws, sec. 5328, party appealing without first moving for new trial waives right to move
therefor on ground that evidence is insufficient to justify verdict, court's decision, or finding, or for errors
in rulings on evidence or instructions, but does not waive right to move for new trial on other grounds not
designated in such act.
2. HighwaysStatutory Condition that Contractors Shall Not Let Subcontracts Without
Highway Department's Written Approval May Be Waived Even by State.
Provision of highway act (Stats. 1917, c. 169), sec. 17, that contractor shall not let subcontract
without highway department's written approval, being incorporated therein for benefit of state, is a
condition which even state may waive, in absence of provision that subcontract not so approved shall be
void; such act pertaining to department of state in business, not in government.
3. HighwaysSubcontract, Let Without Highway Department's Written Approval, Held Not
Void, so as to Entitle Subcontractor to Recover on Quantum Meruit after Forfeiture of
Contract for Nonperformance.
Subcontract, let by crushed rock contractor without highway department's written approval, contrary
to highway act (Stats. 1917, c. 169), sec.17, and provision of original contract incorporated in
subcontract, held not void, so as to entitle subcontractor to recover on quantum meruit for rock delivered
before forfeiture of contract by highway department for failure to make further deliveries, since highway
department knew of and accepted rock delivered pursuant to original contract and subcontract.
4. HighwaysHighway Act Held Not Amended so as to Invalidate Subcontract for Crushed
Rock Because Not Approved in Writing by Highway Department.
Stats. 1919, c. 168, and 1921, c. 129, sec. 2, held not amendments of highway act (Stats. 1917, c.
169), so as to invalidate subcontract for delivery of crushed rock because not approved in writing by
highway department, as required by section 17; such acts providing solely for preferences to certain
classes of persons on public works.
5. HighwaysCrushed Rock Contractor Could Recover from Subcontractors Difference
Between What He Would Have Received and Would Have Paid Subcontractors Had
They Fully Performed Contract.
Crushed rock contractor held entitled to recover damages from subcontractors, failing to deliver all
rock called for, in amount of difference between what contractor would have received
from highway department and what he would have paid subcontractors had they
fully performed contract, whether it was one of sale under uniform sales act {Stats.
52 Nev. 125, 126 (1930) Leech Et Al. v. Armstrong Et Al.
amount of difference between what contractor would have received from highway department and what
he would have paid subcontractors had they fully performed contract, whether it was one of sale under
uniform sales act (Stats. 1915, c. 159), sec. 67, or a contract for work and labor.
C.J.-CYC. REFERENCES
Highways29 C.J. sec. 308, p. 583, n. 55; sec. 347, p. 608, n. 85.
New Trial48 C.J. sec. 590, p.468, n. 60.
Appeal from Second Judicial District Court, Washoe County; Geo. A. Bartlett, Judge.
Action by Dan H. Leech and another against M.P. Armstrong and another, in which
defendant Armstrong filed a counterclaim. From a judgment for defendants and
counterclaimant and an order denying plaintiff's motion for a new trial, all the parties appeal.
Affirmed in part, and ordered amended in part.
Clyde D. Souter, for Plaintiffs:
The subcontract of May 14, 1923, between Armstrong and Leech and Mackie, by its very
terms, did not become a valid and binding obligation upon Leech and Mackie until the
written permission and approval of the state highway engineer should be obtained; this was a
condition precedent, the performance of which was necessary to vitalize said contract;
therefore said contract was not a matter of defense; could not have been the contract under
which the work and materials supplied by Leech and Mackie were supplied and furnished.
The attempted contract of May 14, 1923, being a subcontract, was authorized by section
17 of the highway act, but said contract was not in the form prescribed by section 16 of said
act, and therefore was not, and never became a legal and binding contractual obligation upon
the plaintiffs, Leech and Mackie, and no rights of defense or otherwise could therefore arise
thereunder.
The language of section 17 that no contractor shall let any subcontract except upon the
written permission and approval of the department of highways is not in affirmative
language and such as would naturally be chosen to prescribe directions for an ordinary
and proper discharge of business, but on the contrary is couched in negative and
prohibitive language, expressive of a condition precedent and appropriate to the creation
of a limitation on existing rights.
52 Nev. 125, 127 (1930) Leech Et Al. v. Armstrong Et Al.
affirmative language and such as would naturally be chosen to prescribe directions for an
ordinary and proper discharge of business, but on the contrary is couched in negative and
prohibitive language, expressive of a condition precedent and appropriate to the creation of a
limitation on existing rights. Lewis' Sutherland Statutory Constructions, vol. II (2d ed.), 1142;
idem. p. 1135; Jasper v. Jewkes, 50 Nev. 153; Walser v. Moran, 42 Nev. 111; Wilcox v.
Brazos (Conn.), 50 Atl. 722; Appeal of Spencer, 61 Atl. 1010; Cotton v. Brien, 6 Robinson's
Reps. (La.) 115, at 117; Spruill v. Davenport (N.C.), 100 S.E. 527; State v. Thompson (N.D.),
131 N.W. 231, at 236 and 237; Fitzmaurice v. Willis (N.D.), 127 N.W. 95; In Re
McQuiston's Adoption, 86 Atl. 205; Hurford v. City of Omaha, 4 Neb. 336, at 351; Holt v.
Green, 73 Pa. St. Rep. 198, at 200; 36 Cyc. p. 1157 (sec. VII, A, 8, a).
It is a well-settled doctrine of the courts that sanction will be given to a cause of action
proceeding as for quantum meruit aside from the contract and independent thereof where the
contract is merely malum prohibitum, not malum in se nor involving moral turpitude, and
where the statute imposes no penalty for its infraction, and that this is upon the principle that
the courts will always try to do justice between the parties where they can do so consistently
with adherence to law. Hill Co. v. Shaw, etc. Co., 225 Fed. 475, 477, 140 C.C.A. 523; United
States Title Guaranty Co. v. Brown, 166 App. Div. 688, 152 N.Y.S. 470, affirmed in 217
N.Y. 628.
Brown & Belford, for Defendants:
It is apparent from the plain wording of the statute (sec. 5328, Rev. Laws) that where, as in
this case, an appellant appeals from the judgment without first moving for a new trial, the
right to move for a new trial is waived. It is accordingly submitted that this court can
consider only the judgment roll in the appeal of plaintiffs, and cannot consider such other
matters as under the statute can be heard only upon an appeal from an order denying a motion
for a new trial.
52 Nev. 125, 128 (1930) Leech Et Al. v. Armstrong Et Al.
As to plaintiffs' contention that the subcontract did not comply with the terms of section 16
of the highway act, a mere reading of this section is sufficient to show that it does not include
subcontracts, and includes only such contracts as are made by the highway department.
It is submitted, first, that the clause in section 17 of the highway act that no contractor
shall let any subcontract except upon the written permission and approval of the department
of highways does not have the effect of rendering such a subcontract void and illegal, and
that it merely gives to the state the right to refuse to recognize the subcontract; and, second,
that Armstrong's contact is not such a contract as is contemplated by section 17. In enacting
this section of the law, the legislature is dealing with the state in business, and not in
government. It is not dealing with questions of public policy, but merely regulating a
commercial dealing of the state.
Counsel states that all contracts made contrary to the law are illegal and void. But there are
many cases holding that contracts made in contravention of similar statutes as the one in the
case at bar are valid and enforceable. See Way v. Pac. Lumber Co. (Wash), 133 P. 595;
Schuyler National Bank v. Gadsden, 191 U.S. 451, 48 L. Ed. 258; York v. Conde (N.Y.), 42
N.E. 193; Westerlund v. Mining Co. (C.C.A.), 203 Fed. 599; Union National Bank v.
Matthews, 8 Ot. 621, 25 L. Ed. 188; Bath Co. v. Claffy (N.Y.), 45 N.E. 390; Re Longacre
Power Co. (N.Y.), 80 N. E. 1101.
Under the rule of law as laid down by the above cases, it is submitted that the subcontract,
if within the purview of section 17, which we deny, was void only at the election of the state,
and that it was valid and binding upon appellants.
Whatever the view of the court as to the true construction of section 17, it is apparent that
Armstrong's contract was not a contract for improvements, construction, or maintenance of
highways, and therefore not within the purview of that section.
52 Nev. 125, 129 (1930) Leech Et Al. v. Armstrong Et Al.
OPINION
By the Court, Coleman, J.:
Leech and Mackie instituted this action to recover judgment in the sum of $10,318.15, a
balance alleged to be due from the defendant Armstrong for work and labor performed.
This litigation grew out of this state of facts: On October 10, 1922, the highway
department of the State of Nevada, hereinafter referred to as the highway department, entered
into a contract with Armstrong, designated contract 65, whereby it was agreed: * * * The
party of the first part (highway department) hereby purchases of and from the party of the
second part (Armstrong), and the party of the second part hereby sells and agrees to deliver to
the party of the first part * * * the quantities of crushed rock as set forth in the following
schedule: * * * It is agreed that the material to be secured from the proposed quarry site
leased by the department at Vista meets the specifications and is satisfactory as to quality.
The contract contains provisions for the erection by Armstrong at or near Vista siding, in
Washoe County, of a crushing plant of sufficient capacity to crush 300 tons per day, and that
Armstrong should load such crushed rock on board cars for a certain sum per ton.
The contract further provides that, in case of the failure of Armstrong to deliver crushed
rock at the rate and in quantities provided for, the highway department might declare the
contract forfeited. It also contains a provision against subletting except with the written
consent of the highway department.
Armstrong erected his crushing plant and for a time delivered crushed rock. He then
entered into a subcontract with the plaintiffs whereby they agreed to deliver the crushed rock
at a price per ton considerably less than that to be paid Armstrong.
The contract between plaintiffs and Armstrong, by its terms, incorporated into it all of
the provisions of the contract between Armstrong and the highway department.
52 Nev. 125, 130 (1930) Leech Et Al. v. Armstrong Et Al.
terms, incorporated into it all of the provisions of the contract between Armstrong and the
highway department.
The defendant bonding company was made a party because of the fact that it was surety on
Armstrong's bond.
Pursuant to said subcontract, the plaintiffs took possession of the crusher and outfit, and
for a time operated it and delivered the crushed rock on board the cars as provided in the
original contract. Later, failing to make delivery as provided in said contract, the highway
department declared the contract forfeited.
The plaintiffs instituted this action to recover for the alleged value of the work and labor
performed in crushing and delivering the rock that was delivered, rather than on the contact
between them and Armstrong. Armstrong filed an answer denying all liability and pleaded a
counterclaim based upon the contract, alleging damage as a result of the failure of the
plaintiff to make delivery of the rock as agreed, and also sought to recover for money paid out
on behalf of plaintiffs.
The defense of the bonding company is substantially the same as that of Armstrong.
From a judgment against the plaintiffs and in favor of Armstrong on his counterclaim in
the sum of $1,970.18, all of the parties have appealed. Further details will be stated herein.
1. Armstrong has moved to dismiss the appeal of plaintiffs from the order denying their
motion for a new trial, on the ground that such appeal was not taken until after the appeal
from the judgment was taken. In support of the motion, reliance is had upon Rev. Laws, sec.
5328, which reads:
Where the appeal is based upon the ground that the evidence is insufficient to justify the
verdict or decision of the court, or to support the findings, or upon alleged errors in ruling
upon the evidence, or upon instructions claimed to be erroneous, a motion for a new trial
must be made and determined before the appeal is taken. In all other cases the party aggrieved
may appeal with or without first moving for a new trial; but by appealing without first
moving for a new trial, the right to move for a new trial is waived."
52 Nev. 125, 131 (1930) Leech Et Al. v. Armstrong Et Al.
without first moving for a new trial; but by appealing without first moving for a new trial, the
right to move for a new trial is waived.
It will be observed that this section provides that certain appeals cannot be taken until after
a motion for a new trial is made and determined. The section then provides: In all other
cases the party aggrieved may appeal with or without first moving for a new trial; but by
appealing without first moving for a new trial, the right to move for a new trial is waived.
We are of the opinion that it was the intention of the legislature that the waiver provided
for contemplated only those cases not mentioned in the first sentence of the section, but all
other cases. In other words, a party is given the option in certain cases to appeal without
making a motion for a new trial. If he appeals without first making a motion for a new trial,
he waives the right to do so upon the grounds enumerated in the first sentence of the section,
but does not waive the right to make a motion for a new trial on one or more of the grounds
not designated in the first sentence.
For the reasons given, the motion is denied.
2, 3. In considering this case on its merits, we must consider certain portions of the
highway act (Stats. 1917, c. 169). Section 14 of this act, as amended (Stats. 1921, p. 6, c. 8),
provides that, under certain conditions, the highway engineer may advertise for bids for the
performance of certain work in improving of a highway. The section also provides that the
successful bidder shall be required to furnish a bond, conditioned that the work shall be
performed in accordance with the terms of the contract, and conditioned as in this act
provided.
Section 17 of the act provides that no contractor shall let any subcontract except upon the
written permission and approval of the highway department.
It is the contention of the plaintiffs that, in view of the inhibition in the original contract
between Armstrong and the highway department against subcontracting without written
approval, and the making of said original contract a portion of the subcontract, and the
failure to procure written approval to such subcontract, said subcontract was void ab
initio, and hence plaintiffs can recover upon the quantum meruit.
52 Nev. 125, 132 (1930) Leech Et Al. v. Armstrong Et Al.
without written approval, and the making of said original contract a portion of the
subcontract, and the failure to procure written approval to such subcontract, said subcontract
was void ab initio, and hence plaintiffs can recover upon the quantum meruit.
The learned trial judge rejected the contention of plaintiffs, and in so doing we think he
was clearly right.
The provision in question was incorporated in the statute for the benefit of the state. The
statute does not provide that a subcontract not so approved in writing shall be void. In this
situation we think it is a condition which even the state may waive. In the instant case the
highway department knew of the subcontract and accepted the crushed rock loaded upon the
cars in pursuance of the terms of the contract and subcontract mentioned.
The highway act pertains to a department of the state in business and not in government.
While the state of facts are not identical, we think the reasoning of the court in Way v. Pacific
L. & T. Co., 74 Wash. 332, 133 P. 595, 49 L.R.A. (N.S.) 147, applies with equal force to the
situation in hand. That was a case which grew out of a statute of Washington prohibiting the
sale of insurance at less than the schedule rate and penalizing a company or agent violating it
by revoking his license, and where insurance had been sold at less than the schedule rate. The
court said:
When a statute is * * * a regulation of a traffic or business, and not to prohibit it
altogether, whether a contract which violates the statute shall be treated as wholly void will
depend on the intention expressed in the particular statute. Unless the contrary intention is
manifest, the contract will be valid.
In speaking of a similar statute, the Supreme Court of the United States said, in refusing to
declare void an assignment prohibited by statute:
Those mischiefs, as laid down in that opinion, and others referred to, are mainly two:
First. The danger that the rights of the government might be embarrassed by having to
deal with several persons instead of one, and by the introduction of a party who was a
stranger to the original transaction.
52 Nev. 125, 133 (1930) Leech Et Al. v. Armstrong Et Al.
several persons instead of one, and by the introduction of a party who was a stranger to the
original transaction.
Second. That, by a transfer of such a claim against the government to one or more
persons not originally interested in it, the way might be conveniently opened to such improper
influences in prosecuting the claim before the departments, the courts, or the Congress, as
desperate cases, when the reward is contingent on success, so often suggest.
Both these considerations, as well as a careful examination of the statute, leave no doubt
that its sole purpose was to protect the government and not the parties to the assignment.
Goodman v. Niblack, 102 U.S. 556, 559, 26 L. Ed. 229.
A similar question was raised in a case in which it was urged that, since a national bank
was prohibited from making a loan on real estate, the bank should be enjoined from
foreclosing the mortgage. The Supreme Court of the United States, in disposing of the
question, said:
The court, while assuming that the statute, by clear implication forbade the bank from
making a loan on real estate, refused to restrain the bank from enforcing the deed of trust. The
decision went upon these grounds: That the bank parted with its money in good faith; that the
question as to the violation of its charter by taking title to real estate for purposes
unauthorized by law could be raised only by the government in a direct proceeding for that
purpose; and that it was not open to the plaintiff in that suit, who had contracted with the
bank, to raise any such question in order to defeat the collection of the amount loaned. If any
doubt existed as to the scope of the decision in that case, it was removed by National Bank v.
Whitney, 103 U.S. 99, 26 L. Ed. 443, where it was held that the right of a national bank to
enforce a mortgage of real estate taken by it to secure indebtedness then existing, as well as
future advances, could not be questioned by the debtor, and that a disregard by the bank of the
provisions of the act of Congress upon that subject only laid the association open to
proceedings by the government for exercising powers not conferred by law."
52 Nev. 125, 134 (1930) Leech Et Al. v. Armstrong Et Al.
provisions of the act of Congress upon that subject only laid the association open to
proceedings by the government for exercising powers not conferred by law. Schuyler
National Bank v. Gadsden, 191 U.S. 451, 24 S. Ct. 129, 131, 48 L. Ed. 258.
The Court of Appeals in New York reached the same conclusion concerning a statute
which declared that assignments under certain conditions shall be absolutely void. The
court says:
In our opinion, a just construction of the statute does not invalidate the transfer of
Witherby & Gaffney to the plaintiffs, nor will the objects of the statute be defeated by the
construction that such a transfer, made in the legitimate and usual course of business, in good
faith, to secure an honest debt, while it may be disregarded by the government, is good as
between the parties, so far as to enable the transferee, after the government has paid over the
money to the claimant, to enforce as against him, or those who take with notice, the interest
or lien given by the assignment. The fact that the government may refuse to recognize any
transfer or assignment, in connection with the general principle of law which avoids all
agreements contrary to public policy, will be a sufficient discouragement to illegitimate
transactions, or, at all events, it is all the law can justly interpose, having due regard to the
exigencies of business and the protection of innocent parties. The Supreme Court of
Massachusetts in Jernegan v. Osborn, 155 Mass. 207, 29 N.E. 520, reached substantially the
same conclusion as that to which we have arrived. York v. Conde, 147 N.Y. 486, 42 N.E.
193, 196.
One of these rules is that an act declared to be void by statute which is malum in se or
against public policy is utterly void and incapable of ratification, but an act or contract so
declared void, which is neither wrong in itself nor against public policy, but which has been
declared void for the protection or benefit of a certain party, or class of parties, is voidable
only and is capable of ratification by the acts or silence of the beneficiary or beneficiaries.
52 Nev. 125, 135 (1930) Leech Et Al. v. Armstrong Et Al.
or beneficiaries. A conveyance in fraud of creditors was declared to be utterly void, frustrate,
and of none effect,' by the statute of 13 Eliz. c. 5, and has been uniformly declared to be void
by the statutes of the states. But such a conveyance is universally held to be voidable only, to
be valid until avoided, to be voidable by the creditors alone, and to be capable of ratification
by them. (Citing authorities.) A gift of goods declared by statute to be void as to creditors is
voidable only, may be avoided by them alone, and is susceptible to ratification. Snow v.
Lang, 2 Allen (Mass.), 18. And a preference of a creditor within 60 days of insolvency
declared to be void as to creditors by statute is voidable only, is capable of ratification by the
creditors, is valid until avoided by them, and may be avoided by them alone. Westerlund v.
Mining Co. (C.C.A.), 203 F. 599, 611.
In discussing the prohibition of the federal statute against national banks holding real
estate as security, the United States Supreme Court says:
The statute does not declare such a security void. It is silent upon the subject. If Congress
so meant, it would have been easy to say so; and it is hardly to be believed that this would not
have been done, instead of leaving the question to be settled by the uncertain result of
litigation and judicial decision. Union National Bank v. Matthews, 98 U.S. 621, 627, 25 L.
Ed. 188.
In discussing the validity of a lease from one lighting company to another, which was
prohibited by statute, the New York Court of Appeals says:
We think the demands of public policy are fully satisfied by holding that, as to the public,
the lease was void, but that, as between the parties, and so long as the occupation under the
lease continued, the lessee was bound to pay the rent, and that its recovery may be enforced
by action on the covenant. Bath Co. v. Claffy, 151 N.Y. 24, 45 N.E. 390, 393, 36 L.R.A.
664.
The Supreme Judicial Court of Massachusetts, in considering the same question in
Bowditch v. New England M.L.I. Co., 141 Mass. 292, 4 N.E. 798, 801, 55 Am. Rep. 474,
said: "The Revised Statutes of the United States respecting national banks, provide that a
bank shall not lend to any one person, corporation, or firm a sum exceeding one-tenth
part of the capital stock actually paid in, and that national banks shall not take real estate
as collateral security except for debts previously contracted; and it has been repeatedly
held that contracts made in contravention of the statute were not void.
52 Nev. 125, 136 (1930) Leech Et Al. v. Armstrong Et Al.
The Revised Statutes of the United States respecting national banks, provide that a bank
shall not lend to any one person, corporation, or firm a sum exceeding one-tenth part of the
capital stock actually paid in, and that national banks shall not take real estate as collateral
security except for debts previously contracted; and it has been repeatedly held that contracts
made in contravention of the statute were not void. Gold Min. Co. v. National Bank, 96 U.S.
640 [24 L. Ed. 648]; National Bank v. Matthews, 98 U.S. 621 [25 L. Ed. 188]; National Bank
v. Whitney, 103 U.S. 99 [26 L. Ed. 443]; Reynolds v. [Crawfordsville] National Bank, 112
U.S. 405, 5 S. Ct. 213 [28 L. Ed. 733].
When the officers of a savings bank invest its funds in a manner forbidden by statute,
such illegal action of the officers does not impair the validity of the investment. Holden v.
Upton, 134 Mass. 180.
Many other cases might be cited in which it has been held that contracts made in
violation of the provisions of statutes are not void, upon the ground that the statutes are
intended merely to be directory to the officers or persons to whom they are addressed, and not
to be conditions precedent to the validity of contracts made in reference to them. Each statute
must be judged by itself as a whole, regard being had, not only to its language, but to the
objects and purposes for which it was enacted. If the statute does not declare a contract made
in violation of it to be void, and if it is not necessary to hold the contract void in order to
accomplish the purpose of the statute, the inference is that it was intended to be directory, and
not prohibitory of the contract.
See, also, In Re Long Acre E.L. & P. Co., 188 N.Y. 361, 80 N.E. 1101; Potts v. Benedict,
156 Cal. 322, 104 P. 432, 25 L.R.A. (N.S.) 609; Chilson v. Cavanagh, 61 Okl. 98, 160 P. 601,
L.R.A. 1918d, 1044.
4. It is urged by counsel for the defendants that section 17 of the highway act is not
involved, since that section pertains only to contracts for improvements, construction, or
maintenance, while the contract in question was one calling for neither, but for the delivery
of rock. While there seems to be some force to this contention, we do not find it necessary
to determine the point, in view of the conclusion expressed, unless we should hold, as
contended by plaintiffs, that section 2, c.
52 Nev. 125, 137 (1930) Leech Et Al. v. Armstrong Et Al.
this contention, we do not find it necessary to determine the point, in view of the conclusion
expressed, unless we should hold, as contended by plaintiffs, that section 2, c. 129, Stats.
1921, is an amendment of the highway act and by its terms declares contracts of the character
in question to be void because of the failure of the approval of the subcontract in writing by
the highway department.
This contention is lacking in merit. Upon a careful inspection of the title of the original
(Stats. 1919, c. 168) and amendatory acts (Stats. 1921, c. 129), we find that neither purport to
amend the highway act, but provides solely for the giving of preference to certain classes of
persons in public position and on public works.
Taking these views, we feel that the rights of the parties must be determined pursuant to
the terms of the contract in question, and that on no theory could the plaintiffs maintain a
cause of action on the quantum meruit for work and labor performed.
5. We are now confronted with the question raised by the defendant Armstrong in his
appeal, wherein he contends that the trial court should have given judgment in his favor for
damages sustained by him for failure of the plaintiffs to deliver all of the crushed rock called
for under the contract and subcontract, in addition to the judgment in his favor for money
paid, laid out, and expended by him on behalf of the plaintiffs. The amount thus claimed by
Armstrong is the difference between what he would have received from the highway
department and what he would have paid the plaintiffs had they fully performed according to
the terms of the contract.
Armstrong contends that the agreement in question was one of sale pursuant to section 67
of the uniform sales act (Stats. 1915, p. 194, c. 159), and hence the law of sales controls in
determining the measure of his damage, citing Williston on Sales (2d ed.), sec. 559b.
If the contract in question were one of sale, the contention would probably be well
founded. While we do not deem it necessary to determine, and do not determine, the question,
but, in view of the fact that we are referred to no authorities bearing upon the question, we
direct attention to Parsons v. Loucks, 4S N.Y. 17, S Am.
52 Nev. 125, 138 (1930) Leech Et Al. v. Armstrong Et Al.
referred to no authorities bearing upon the question, we direct attention to Parsons v. Loucks,
48 N.Y. 17, 8 Am. Rep. 517, and the cases cited therein; Gilbert v. Copeland, 22 Ga. App.
753, 97 S.E. 251; Associated Newspapers v. Phillips (C.C.A.), 294 F. 845; Marshall v.
Louisiana, etc., 144 La. 828, 81 So. 331; Smith v. New York Cent. R.R. Co., 43 N.Y. (4
Keyes) 180; and Cooke v. Millard, 65 N.Y. 352, 22 Am. Rep. 619.
But counsel for Armstrong says, if it be a contract for work and labor instead of for a sale,
the same measure of damages controls. In this contention we think counsel are correct.
Mr. Sutherland, in his work on Damages, lays down the rule as follows: Where a party
has contracted to perform labor from which a profit is to spring as a direct result of the work
done at a contact price, and is prevented from earning this profit by the wrongful act of
another party, his loss is a direct and natural result which the law will presume to follow the
breach of the contract; and he is entitled to recover it without special allegations in his
declaration. This he will be entitled to establish by showing how much less than the contract
price it will cost to do the work or perform the contract. Vol. 1 (4th ed.), sec. 66.
This was accepted as the correct rule by this court in Bradley v. N.C.O. Ry. Co., 42 Nev.
411, 178 P. 906.
While counsel for plaintiffs has urged certain rules of statutory construction which we
have not considered, what we have said disposes of the case.
Taking these views, it is ordered that the judgment and order appealed from by the plaintiff
be affirmed, and that the trial court amend the judgment and order appealed from by the
defendant Armstrong, denying him damages, to conform to the views herein expressed.
On Petition For Rehearing
May 1, 1930. 287 P. 174.
By the Court, Coleman, J.:
Counsel for Leach and Mackie has presented a petition in which several points are urged
as grounds for a rehearing, but we deem it necessary to consider but two of them.
52 Nev. 125, 139 (1930) Leech Et Al. v. Armstrong Et Al.
rehearing, but we deem it necessary to consider but two of them.
It is said that the rule as to the measure of damage laid down does not apply to the facts
presented. The lower court found from the evidence as follows: That at all times from and
after the time when the plaintiffs took possession of the crushing plant and rock quarry under
their said contract with the defendant Armstrong, of May 14, 1923, it was impossible for the
defendant M.P. Armstrong to procure rock of the kind and character required by said Contract
No. 65 between the defendant Armstrong and the State of Nevada, and to deliver the same to
the State of Nevada, Department of Highways, on cars at Vista Siding, Nevada, for a sum less
than $1.46 1/2 per ton of crushed rock, except such rock as was delivered to defendant
Armstrong by plaintiffs under the terms of the said contract or agreement of May 14, 1923.
We think the evidence not only sustains this finding, but that no other finding could be
made from the evidence. Under this finding of fact the rule stated controls.
Counsel seems to construe our opinion as holding that the Statute of 1919, c. 168, as
amended (Stats. 1921, c. 129), does not apply to contracts pertaining to construction of
highways.
We never intended so to hold. All that we intended to hold was that the statute in question
does not amend section 17 of the highway act (Stats. 1917, c. 169, sec. 17) so as to produce
the results contended for by the plaintiffs. Our opinion must be construed solely in the light of
the situation presented and of the contentions made. After a careful consideration of the
points urged in the petition, we are convinced that it is without merit.
It is ordered that the petition for a rehearing be denied, and that a remittitur issue instanter.
____________
52 Nev. 140, 140 (1930) Lovelock Lands v. Lovelock Land & Development Co.
LOVELOCK LANDS, Inc., v. LOVELOCK LAND
AND DEVELOPMENT CO.
No. 2830
January 3, 1930. 283 P. 403.
1. Witnesses-Permitting Testimony Concerning Transactions with Persons Since Deceased
who Represented Defendant Corporation Held Error.
Permitting testimony to be given by witness concerning transaction with persons since deceased who
represented defendant corporation held error under Rev. Laws, sec. 5419, providing that no person shall
be allowed to testify where other party to transaction is dead, as against contention that corporation which
deceased persons represented was party to transaction, and not the deceased persons.
2. New TrialDenial of New Trial Without Hearing or Consideration of Motion on Merits
by Judge Succeeding Judge Who Rendered Judgment and Reassigned Case to Him
Held Error.
Denial of motion for new trial without hearing or considering motion on merits by judge to whom
case was reassigned by predecessor judge, rendering judgment, held error, since, as successor of his
predecessor, judge denying motion could exercise same powers in acting on every case remaining
undecided on docket as fully as predecessor could have done.
C.J.-CYC. REFERENCES
New Trial46 C.J. sec. 249, p. 289, n. 2.
Witnesses40 Cyc. p. 2307, n. 58.
Appeal from Second Judicial District Court, Washoe County; Geo. A. Bartlett and J.M.
McNamara, Judges.
Action by Lovelock Lands, Inc., against Lovelock Land and Development Company. From
an adverse judgment, and an order denying a motion for a new trial, defendant appeals.
Reversed, and new trial granted.
Hawkins, Mayotte & Hawkins, for Appellant:
Sec. 5419, Rev. Laws of Nevada, provides: No person shall be allowed to testify when
the other party to the transaction is dead. Wooster claimed certain transactions with Lee,
who, while living, was secretary of defendant company, but dead at the time Wooster was
testifying. Wooster also claimed certain other transactions with Noteware, also an officer of
defendant corporation, and also dead when Wooster was testifying.
52 Nev. 140, 141 (1930) Lovelock Lands v. Lovelock Land & Development Co.
transactions with Noteware, also an officer of defendant corporation, and also dead when
Wooster was testifying. Due and timely and continuous objection and exception to this
testimony of Wooster concerning transactions with Lee and Noteware, both dead at the time
of the trial, was made. Wooster was a person. Were Lee and Noteware the other parties to the
transaction? Undoubtedly they were. Bright v. Virginia & Gold Hill Water Co., 254 Fed.
175-177; Vesey v. Benton, 13 Nev. 284; Carrol v. United Rys. (Mo. App.), 137 S.W. 303.
That it was the duty of the trial court to enter upon an examination and investigation of
defendant's motions for modifications of findings of fact, etc., and defendant's motion for new
trial, to determine same upon their merits, and to pass upon the evidence and to determine
whether or not the evidence was sufficient to justify or maintain the decision, must be
manifest. In view of the decision of this court in the case of Goldfield Mohawk Mining Co. v.
Frances-Mohawk Mining and Leasing Co., 33 Nev. 491, we consider the matter settled
adverse to the position taken by the trial court in the instant case.
Booth B. Goodman and Cooke & Stoddard, for Respondent:
The position of the appellant concerning testimony of Wooster regarding conversations
with Lee and Noteware is contrary to the rule as laid down by this court in the case of Burgess
v. Helm, 24 Nev. 242. In addition to this, the matter need not be considered, for the reason
that the same facts have been proven by other evidence of entirely different character.
Appellant claims error in the lower court by reason of the fact that Judge Bartlett declined
to examine into the evidence, oral and documentary, and determine therefrom whether the
evidence was sufficient to support the decision of Judge McNamara, and cites in support of
his contention the case of Goldfield Mohawk Mining Co. v. Frances-Mohawk Mining &
Leasing Co., 33 Nev. 491, 112 P. 43. But in that case a far different situation existed from
what exists in the instant case.
52 Nev. 140, 142 (1930) Lovelock Lands v. Lovelock Land & Development Co.
situation existed from what exists in the instant case. Judge Somers had presided at the trial,
saw and heard the witnesses, and was therefore in a position to weight the evidence and pass
upon the credibility of the witnesses who testified. So, also, in the following cases: Tennessee
C. & R. Co. v. Roddy (Tenn.), 5 S.W. 286: Nashville etc. Co. v. Neely (Tenn.), 53 S.W. 167;
Cherokee etc. Co. v. Stoop (Kan.), 43 P. 766; People v. Knutte (Cal.), 44 P. 166; Green v.
Soule (Cal.), 78 P. 337; Railroad Co. v. Kunkel, 17 Kan. 172.
OPINION
By the Court, Sanders, J.:
The defendant in this case has appealed from an adverse judgment and from an order
denying a motion for a new trial. Many errors are assigned, but, as we view the record, we
need dispose of but two.
We will first dispose of the contention that the trial judge erred in permitting testimony to
be given by one Wooster concerning transactions with F.M. Lee and W.C. Noteware, who
represented the defendant company, since both of said witnesses are dead.
Section 5419, Rev. Laws, provides: No person shall be allowed to testify; 1. When the
other party to the transaction is dead.
It is the theory of the plaintiff that neither Lee nor Noteware were parties to the transaction
but that the corporation which they represented was the party to the transaction; hence the
inhibition of the statute does not apply in this case.
1. We are not in accord with the view contended for by the plaintiff. This question was
squarely disposed of by Judge Farrington in Bright v. Virginia & Gold Hill Water Co. (D. C.),
254 F. 175, adversely to the contention of plaintiff. The conclusion reached by Judge
Farrington was affirmed in the same case by the Circuit Court of Appeals (270 F. 410), in
both of which opinions the statute law of Nevada on the point was considered at some
length.
52 Nev. 140, 143 (1930) Lovelock Lands v. Lovelock Land & Development Co.
at some length. Without going into the question, we may say that the conclusions reached in
those opinions are sound and express our views on the point involved.
But it is said that even so there is sufficient other evidence in the record to justify the
judgment, and hence we must affirm it. However that might be, had the trial court based its
findings and conclusions on such evidence alone, we think, in view of the situation, that the
question involved is of such nature as to demand a finding by a trial court solely upon
competent evidence, and hence feel that because of the error the judgment and order appealed
from should be reversed.
This suit was instituted in the district court, department No. 2, of Washoe County. The
presiding judge of that department, Hon. George A. Bartlett, assigned the case to Hon. J. M.
McNamara, judge of the Fourth judicial district, for trial. Judge McNamara, after the trial of
the case, rendered judgment in favor of the plaintiff in the case, and, as he was shortly to
retire from the bench, reassigned the case to Judge Bartlett for further disposition. In due time
a motion for a new trial was filed, which came up for hearing. Judge Bartlett denied the
motion for a new trial without hearing or considering the same upon its merits. In so doing he
stated that he had no legal right, authority, or jurisdiction to hear or consider the same upon
its merits.
In support of the error assigned counsel rely upon the case of Goldfield Mohawk Mining
Co. v. Frances Mohawk M. & L. Co., 33 Nev. 491, 112 P. 42. We do not think this case is in
point. All that it decides is that it is the duty of the trial judge to determine whether or not the
evidence in the case was sufficient to sustain the verdict of a jury. Such is not the question
before us.
2. We think, however, that the learned trial judge was in error. In Life & Fire Ins. Co. v.
Wilson's Heirs, 8 Pet. 291, 303, 8 L. Ed. 949, the court in passing upon the question said:
But the district judge is mistaken in supposing that no one but the judge who renders the
judgment can grant a new trial.
52 Nev. 140, 144 (1930) Lovelock Lands v. Lovelock Land & Development Co.
can grant a new trial. He, as the successor of his predecessor, can exercise the same powers,
and has a right to act on every case that remains undecided upon the docket, as fully as his
predecessor could have done. The court remains the same, and the charge of the incumbents
cannot and ought not, in any respect, to injure the rights of litigant parties.
Other authorities so holding are: Camelin v. Smith, 53 Colo. 574, 128 P. 1125; People v.
McConnell, 155 Ill. 192, 40 N.E. 608; Reynolds v. Reynolds, 44 Minn. 132, 46 N.W. 236;
Wilson v. California Cent. R. Co., 94 Cal. 166, 29 P. 861, 17 L.R.A. 685; Goos v. Fred Krug
Brew. Co., 60 Neb. 783, 84 N.W. 258; Southall v. Evans, 114 Va. 461, 76 S.E. 929, 43
L.R.A. (N.S.) 468, Ann. Cas. 1914b, 1229; Adams v. Wallace, 94 Okl. 95, 221 P. 16; Bass v.
Swingley, 42 Kan. 729, 22 P. 714; Manufacturers' Mut. Fire Ins. Co. v. Circuit Judge of
Gratiot County, 79 Mich. 241, 44 N.W. 604; Ohms v. State, 49 Wis. 415, 5 N.W. 827.
It is ordered that the judgment and order be reversed, and that a new trial be granted.
____________
52 Nev. 145, 145 (1930) Talbot v. Nevada Fire Insurance Co.
TALBOT v. NEVADA FIRE INSURANCE CO.
No. 2850
January 3, 1930. 283 P. 405.
1. CorporationsClaim of Corporate Officer for Services Rendered Not Incident to Duties as
Officer Should be Scanned Critically.
Since officer of corporation occupies fiduciary relationship, his dealings with corporation should be
scanned critically when he asserts a claim for services based on proposition that services rendered were
not incident to his duties as officer.
2. CorporationsOfficer Present when Stockholders Moved to Employ Him Because of His
Past Services Without Compensation Held Estopped from Bringing Action on Implied
Contract for Such Services.
Where officer of corporation was present at annual meeting of stockholders when motion was adopted
to effect that, in view of past services rendered by such officer without compensation, he should be
employed at salary of $300 per month with commission on profits for succeeding 12 months, and allowed
privilege of practicing law, officer held estopped from bringing action for such services rendered without
compensation on implied contract.
3. InsuranceWhere Officer of Insurance Company Was To Receive Commission on Profits,
Losses Suffered Thereafter on Policies Written Within Year Could Not Be Considered
in Determining Profits.
Where contract provided that officer should be paid as compensation a certain salary and in addition
commission on profits which might be made by company for succeeding 12 months, profits and losses
were to be figured on fiscal year and not for losses suffered thereafter on policies written during year,
since contract clear and unambiguous cannot be distorted into meaning anything other than is implied by
language used.
4. ContractsUnambiguous Contract Cannot Be Distorted Into Meaning Anything Other
Than What Language Implies.
Contract which is clear and unambiguous cannot be distorted into meaning anything other than that
which is implied by language used.
5. InsuranceWhere Commission Was To Be Paid on Profits of Insurance Company,
Expense of Reinsurance Held Deductible from Gross Profits to Ascertain Basis for
Figuring Commissions.
Where contract provided that officer of insurance company was to receive certain commission on
profits which company made during year, expense of reinsurance held deductible from gross income to
ascertain net profits as basis to figure amount of commissions.
C.J.-CYC. REFERENCES
Contracts13 C.J. sec. 485, p. 525, n. 34.
52 Nev. 145, 146 (1930) Talbot v. Nevada Fire Insurance Co.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Action by G.F. Talbot against the Nevada Fire Insurance Company. Judgment for plaintiff,
and defendant appeals. Reversed, with directions.
Price & Hawkins, C.M. Hawkins, and R.Z. Hawkins, for Appellant:
Since an officer of a corporation occupies a fiduciary relationship, his dealings with the
corporation should be scanned critically when he asserts a claim for services based on the
proposition that the services rendered were not incident to his duties as such officer.
Where an officer of a corporation was present at an annual meeting of stockholders when a
motion was adopted to the effect that, in view of past services rendered by such officer
without compensation, he should be employed at a salary of $300 per month with a
commission on the profits for the succeeding twelve months and allowed the privilege of
practicing law, such officer is estopped from bringing an action on implied contract for such
services formerly rendered without compensation.
We insist that it cannot be determined what the net profit of an insurance business is for a
given year unless and without deducting from the income of that year the expenses of
operation plus policy losses upon policies written during the year, and that the only true way
to determine this is to follow the policies through to their ultimate conclusion and consider
their history. Ins. Princ. & Practices, Riegel & Loman, p. 245, c. XVII. It is, therefore, true
that until the insurer has afforded the insured protection for the full extent for which the
premium is paid, then the full amount of the premium is not the property of the company, but
is and remains a trust fund belonging to the policy holder who paid it; it must be carried on
the books of the company as a liability, and cannot be considered profit until the record of
each individual policy is sought out and traced.
It is such a well-known fact as to be, in our judgment, within judicial knowledge that a
small fire insurance company of necessity and as a matter of good business must reinsure
if it has substantial policy risks.
52 Nev. 145, 147 (1930) Talbot v. Nevada Fire Insurance Co.
within judicial knowledge that a small fire insurance company of necessity and as a matter of
good business must reinsure if it has substantial policy risks.
Sardis Summerfield, for Respondent:
In the contract sued upon in the second cause of action, the expressions that for one year
next following this date, and during the year this contract is in force clearly were intended
to limit the business of the company to be considered, in determining the amount of
commission, to the particular year in question.
A fire insurance business, like any other business, must necessarily be regarded, so far as
profits are concerned, on a yearly basis. Amounts which may be carried as a Reserve, or as
Undivided Profits are simply matters of bookkeeping, and, while the same may affect
questions like that of dividends for a particular year, they would not, and should not, be
regarded as affecting the compensation of an employee entitled to a percentage of the actual
profits for a given year.
OPINION
By the Court, Coleman, J.:
This action was instituted to recover on two separate counts. The first count is on an
alleged implied contract for services rendered, and the second count on an express contract.
The first cause of action grew out of this situation: The plaintiff was one of the organizers
of the Nevada Fire Insurance Company, which was incorporated in 1911, but, as $100,000
had to be raised before it could commence business, it did not enter upon its business career
until March 1, 1914, shortly prior to which time an experienced insurance man had been
employed as underwriting manager. Plaintiff's claim for services on this cause of action is
based on the proposition that the services rendered were such as were not incident to his
duties as president of the company. The nature of the services was soliciting insurance,
arranging loans, and examining abstracts of title to property upon which loans were
made, and writing letters to interest persons in the company as stockholders.
52 Nev. 145, 148 (1930) Talbot v. Nevada Fire Insurance Co.
of the services was soliciting insurance, arranging loans, and examining abstracts of title to
property upon which loans were made, and writing letters to interest persons in the company
as stockholders.
These alleged services were rendered in 1914, and he never mentioned to any one the fact
that he expected remuneration, until about 1918. At the annual meeting of stockholders held
on March 2, 1915, at which plaintiff was present and when he was contemplating relaxing his
active interest in the company, one of the stockholders made a motion to the effect that, in
view of past services of the president without compensation, he be employed for a year at a
monthly salary of $300 and commissions. At the annual meeting of the company, held on
March 5, 1918, the claim of plaintiff, which is the basis of the first cause of action, was
presented and unanimously rejected.
Three points are urged upon our consideration as to the first cause of action, namely: That
the evidence shows no implied contract; that the services rendered were within the scope of
the duties of the president of the company; and, thirdly, that the plaintiff should be estopped.
1. We do not deem it necessary to decide any of these questions except the one last
mentioned; however, we may observe that in view of the fact that an officer of a corporation
occupies a fiduciary relationship (McCourt v. Singers [C.C.A.], 145 F. 103, 7 Ann. Cas. 287;
Hayden v. Green, 66 Kan. 204, 71 P. 236), his dealings with the corporation should be
scanned critically when he asserts a claim such as the one in question. Nor would it be out of
place to say in this connection that it is the usual custom for the borrower to pay the expense
of ascertaining the status of the title to property on which a loan is made, as well as all other
expenses incident to making the loan.
2. It is clear to our minds that the plaintiff should be estopped from asserting the claim set
forth in the first cause of action. He was present when the motion was made and adopted to
the effect that, in view of the past services rendered by the president without
compensation," he be voted a salary of $300 per month, commission on the profits for the
succeeding 12 months, and allowed the privilege of practicing law.
52 Nev. 145, 149 (1930) Talbot v. Nevada Fire Insurance Co.
the past services rendered by the president without compensation, he be voted a salary of
$300 per month, commission on the profits for the succeeding 12 months, and allowed the
privilege of practicing law. If he had an intention at that time to make a claim for past
services, it was his duty to make it known then. The motion was based upon the ground that
he had rendered services without compensation, and it is very evident from the tone of the
meeting, as appears from the minutes, that the contract would not have been made if he had
intimated that he expected compensation for past services. It seems that the plaintiff was the
active instrumentality in organizing the company, and was vitally interested in its success. On
two or more occasions he sent letters to stockholders informing them that the incorporators
had received no promotion stock, fees, or commissions, and that it was being managed with
strict economy.
We can reach no other conclusion than that stated.
3. The second cause of action is to recover for commissions earned under the contract of
March 2, 1915. The contract provides that for the services to be rendered by the plaintiff he
shall be paid as compensation by the company a salary of $300 per month, and in addition
thereto five per cent (5%) of any profit which may be made by the company from its
investments, underwriting or other business, during the year this contract is in force.
The defendant claims there was no proof of profits; hence the judgment in favor of
plaintiff on this cause of action is erroneous.
4. The contract is clear and unambiguous and cannot be distorted into meaning anything
other than what is implied by the language used; that is, that the commission should be paid
on the basis of profits made during the year. Profits and losses are figured for a fiscal year,
and it is evident that the same theory moved the parties in entering into the agreement in
question, and not losses suffered thereafter on policies written during the year in question.
Accepting this as the only reasonable and correct interpretation of the contract, this
contention of defendant must be rejected.
52 Nev. 145, 150 (1930) Talbot v. Nevada Fire Insurance Co.
reasonable and correct interpretation of the contract, this contention of defendant must be
rejected.
5. It is contended by the plaintiff that the expense of reinsurance is not an item to be
deducted from the gross income to ascertain the net profits as a basis to figure the amount of
commissions earned by the plaintiff. We cannot agree with this contention. The expense of
reinsurance was a precautionary measure to protect the defendant in its infancy from
disastrous consequences, and was a sound business precaution and a legitimate expense to be
charged in ascertaining net profits.
It is ordered that the judgment and order appealed from be, and the same are hereby,
reversed, with directions to grant a new trial.
On Petition For Rehearing
April 5, 1930. 286 P. 1118.
By the Court, Coleman, J.:
Counsel for plaintiff has filed a petition for a rehearing, in which it is contended that
plaintiff testified that at the meeting at which the motion was made he be paid $300 a month
in view of past services rendered without compensation, a quorum could not be kept in
session long enough to take up anything about compensation for past services, and hence
contends there was no contract.
We do not so interpret the testimony. Plaintiff tendered his resignation as president. He
had theretofore not been receiving compensation. As an inducement for his remaining as
president, the motion was made and adopted. The testimony referred to reads: * * * I
declined to serve further. Some of them * * * asked if I could not devote part of my time to
the company, so that led to some discussion and negotiations there and resulted in an
agreement that I give at least half of my time for one year to the company, and resulted in this
contract. * * * I had it distinctly in mind that I was not expecting to ask any compensation
for future services because I tended to resign, which I did, until they made inducements
to me to be president, and I could not keep the quorum in session long enough to take up
a number of matters and policies of the company, and anything about compensation for
past services I had rendered and other things, so that meeting resulted in this contract
which has been introduced here."
52 Nev. 145, 151 (1930) Talbot v. Nevada Fire Insurance Co.
any compensation for future services because I tended to resign, which I did, until they made
inducements to me to be president, and I could not keep the quorum in session long enough to
take up a number of matters and policies of the company, and anything about compensation
for past services I had rendered and other things, so that meeting resulted in this contract
which has been introduced here.
From this testimony no other conclusion can be reached but that a contract was entered
into, according to plaintiff's own interpretation. At any rate, the motion was adopted, with the
condition stated, and the plaintiff must have accepted it, for he remained in office and drew
the $300 monthly salary, and sues to recover the commission. It seems to us that plaintiff is in
a poor position to now assert that the matter of past services was not covered by the
agreement.
Counsel seems to be in doubt as to the effect of what we said in reference to the second
cause of action. As to that cause of action, we simply sought to lay down a basis or measure
of plaintiff's recovery, and left it to the lower court, upon retrial, to fix the amount to which
plaintiff is entitled, if anything.
The petition is denied.
____________
52 Nev. 152, 152 (1930) Silverman v. Silverman
SILVERMAN v. SILVERMAN
No. 2846
January 4, 1930. 283 P. 593.
1. DivorceAnswer and Cross-Complaint of Wife Sued for Divorce, Pleading Former
Foreign Decree Granting Wife a Divorce, Held Sufficient Plea of Res Judicata.
Where affirmative defense of wife sued for divorce showed that court of Ohio, having jurisdiction in
former action for divorce by husband in which defendant was served with process, denied husband
divorce and wife was granted divorce by judgment determining that allegations of plaintiff's petition
charging defendant with marital delinquencies were untrue, answer and cross-complaint of defendant wife
pleading those matters held sufficient to constitute plea of res judicata.
2. PleadingPrayer in Answer Cannot Affect Sufficiency of Matter Pleaded.
Prayer in answer cannot affect sufficiency of matter pleaded.
3. DivorceThat Foreign Divorce Suit Was Based on Extreme Cruelty and Gross Neglect of
Duty Did Not Disclose Different Cause of Action From Suit Founded on Willful
Desertion Precluding Former Decree from Operating as Res Judicata.
That suit for divorce in foreign state was based on extreme cruelty and gross neglect of duty, whereas
instant suit was founded on willful desertion, held not to disclose that a different cause of action was
involved so as to prevent the decree of the foreign state denying divorce from operating as res judicata in
the instant suit.
4. JudgmentTest of Identity of Cause of Action as Regards Former Adjudication Is Identity
of Facts Essential to Maintenance.
The true test of identity of causes of action, as that term is used in connection with the plea of
former adjudication, is the identity of the facts essential to their maintenance.
5. JudgmentIdentity of Causes of Action, as Regards Plea of Res Judicata, May Appear
from Evidence and Pleadings.
The identity of the causes of action, as regards plea of res judicata, may appear from evidence in two
cases as well as from the pleadings in cases.
6. JudgmentWhen Same Evidence Supports Present and Former Cause of Action, Two
Causes of Action are Identical as Regards Plea of Res Judicata.
When the same evidence supports both present and former cause of action, the two causes of action
are identical as regards plea of res judicata.
7. JudgmentDifferent Form of Action Between Same Parties or Privies Does Not Avoid
Plea of Res Judicata.
One cannot by varying the form of an action escape the operation of the principle that one and the
same cause of action shall not be twice adjudicated upon merits between same parties
or their privies.
52 Nev. 152, 153 (1930) Silverman v. Silverman
action shall not be twice adjudicated upon merits between same parties or their privies.
C.J.-CYC. REFERENCES
Divorce19 C.J. sec. 824, p. 362, n. 55.
Judgments34 C.J. sec. 1226, p. 805, n. 14; sec. 1228, p. 808, n. 38; sec. 1232, p. 813, n. 66; sec. 1518, p.
1074, n. 40; p. 1075, n. 44.
Appeal from Second Judicial District Court, Washoe County; George A. Bartlett, Judge.
Action for divorce by Morris Silverman against Jennie Silverman, in which the defendant
filed a cross-complaint. Decree adverse to defendant, her motion for a new trial was denied,
and she appeals. Reversed.
Ayres & Gardiner, for Appellant:
It matters not what you call a cause of action, but what are the facts alleged. State v.
Anderson, 3 Nev. 254; Vickers v. Vickers, 45 Nev. 280.
A fact * * * determined by a court of competent jurisdiction * * * cannot be further litigated
* * * in the same or a different cause of action. Vickers v. Vickers, supra, citing Oklahoma
v. Texas, 256 U.S. 70, Harding v. Harding, 198 U.S. 317, and other cases; Edward v. Jones,
49 Nev. 342, 351, 352.
The allegation of desertion, in the complaint in the Nevada action, is only a conclusion of
law. Smythe v. Smythe (Ore.), Ann. Cas. 1913d, 1097; 19 C.J. p. 112, sec. 279.
It was contended in the lower court that the judgment of the Ohio court was not final for
three reasons: (1) That the cross-petition did not pray for divorce, and in accordance therewith
a judgment was rendered only for separate maintenance; (2) the petition was dismissed; and
(3) the petition in error destroyed the finality of the judgment. The first reason is untenable
and has been decided to the contrary in Vickers v. Vickers, supra. The second reason asserted
has also been decided to the contrary by this court in Danforth v. Danforth, 40 Nev. 400. The
third reason is contrary to all the evidence concerning the law of Ohio and is contrary to the
law of Nevada.
52 Nev. 152, 154 (1930) Silverman v. Silverman
contrary to the law of Nevada. A stay of execution does not vacate the judgment. Levering
v. National Bank, 87 Ohio St. Rep. 117, 100 N.E. 322, Ann. Cas. 1913e, 917; N.Y.C.C. v.
Francis, 143 N.E. 187; Charles v. Frawley, 72 N.E. 294-5; Rogers v. Hatch, 8 Nev. 35; Cain
v. Williams, 16 Nev. 430; Young v. Brehi, 19 Nev. 383; Brooks v. Nevada N.S., 24 Nev.
321.
The law generally throughout the various states is to the same effect. 2 Freeman on
Judgments, 1525-29.
The judgment of the Ohio court found that plaintiff treated defendant with acts of extreme
cruelty, which would be sufficient for a divorce in this state.
A judgment in a prior suit between the same parties although upon a different cause of
action may be used as evidence of any fact actually in issue and determined by said judgment,
and as such evidence is conclusive. Cromwell v. County of Sac., 94 U.S. 361, 24 L. Ed. 195;
Southern Pacific Co. v. United States, 168 U.S. 1; 42 L. Ed. 355; Hartford Life Ins. Co. v.
Ibe, 237 U.S. 662; 59 L. Ed. 1165; Sherman v. Dilly, 3 Nev. 21; McLeod v. Lee, 17 Nev. 103;
Vickers v. Vickers, 43 Nev. 274; Edwards v. Jones, 49 Nev. 342; 34 C.J. 1066, sec. 1507;
Swank v. Railway Co. (Minn.), 63 N.W. 1088, at 1089; Lytle v. Railway Co. (Minn.), 77
N.W. 975; Bonanza Con. Min. Co. v. Golden Head Mine Co. (Utah), 80 P. 736, at 738; Bank
v. Davis, 184 P. 275, at 278; Re Clark's Estate (Cal.), 212 P. 622, at 625, par. 6; Roche v.
McDonald, 48 Sup. Ct. Rep. 142; Carson Investment Co. v. Anaconda Copper Co., 26 Fed.
(2d series) 651; 34 C.J. 805, and n. 14.
Judgment on the merits is the only judgment known to Nevada courts except judgment of
nonsuit. Rev. Laws, sec. 5237, Stats. 1925, p. 31; Burns v. Rodefer, 15 Nev. 59. What
judgment should we pray for? Dilatory pleas are not known to Nevada jurisprudence. McKim
v. District Court, 33 Nev. 44.
It is not necessary in an answer setting up an affirmative defense to give such defense a name.
31 Cyc. 60, n. 67: 31 Cyc. 49, n. 69; Vickers v. Vickers, 45 Nev. 274, at 279 and 280. There
is not a decision any place that holds that it is necessary to allege conclusions of law, and
particularly to allege the effect of a former judgment or any other plea.
52 Nev. 152, 155 (1930) Silverman v. Silverman
that holds that it is necessary to allege conclusions of law, and particularly to allege the effect
of a former judgment or any other plea. This is not necessary even in criminal indictments.
State v. Anderson, 3 Nev. 256.
Samuel Platt, for Respondent:
An adverse finding against respondent in Ohio upon a cause of action entirely different
from that pleaded in Nevada was not a bar to this action. Sweet v. Sweet, 49 Nev. 254, 243 P.
817.
It is held in numerous cases that the party pleading a former judgment as a bar to the
present action must assume the burden of proving, if the fact does not appear from the record,
that the subject matter or cause of action in the former suit was identical with that now in suit.
23 Cyc. 1534. Sweet v. Sweet, ibid.
In the present action the record shows that the subject matter or cause of action in the
former suit was not identical with that now in suit. Hence, the point of appeal is not
sustained.
It is obvious that there is no identity between a cause of action for a divorce for cruelty
and a cause of action for divorce for desertion. They form separate and distinct issues,
governed and controlled by different rules of evidence, and each constitutes a separate and
distinct statutory ground for divorce under the laws of both Connecticut and Nevada. Sweet
v. Sweet, ibid.
In the case of Sweet v. Sweet this honorable court held in effect that because the cause of
action was different the plaintiff had a perfect right to testify to similar facts as in the prior
case by way of establishing a cause of action which had never theretofore been adjudicated.
Assuming, for the sake of argument, that the decision in Ohio was a final decision, it was
only a decision upon the issues as joined in Ohio or were available there, and was not a final
decision upon the issues joined in Nevada. The Nevada issues were not determined in Ohio.
52 Nev. 152, 156 (1930) Silverman v. Silverman
In the prayer for relief, the defendant especially asked the trial court to determine the
present case upon the merits. How may it be successfully contended that a defendant may ask
for a consideration of a case on the merits and then, in the same breath, rely upon a dilatory
plea? Certainly a prayer for judgment on the merits contemplates a determination based upon
the facts disclosed from the independent issues joined in a given case. Such a prayer must
manifestly constitute a waiver of a plea of res adjudicata or plea in abatement or plea in bar or
any other kindred plea.
There is nothing in the answer to show that the Ohio judgment is pleaded as res judicata,
as a plea in bar, abatement or estoppel. It is not only necessary that such pleas be particularly
and unequivocally pleaded for the accurate information of the court, but for the opposing
litigant as well. A mere recital of pleadings and a judgment does not necessarily disclose the
purpose for which they were alleged. There is nothing by way of direct allegation that the
pleadings and judgment in the Ohio case were pleaded in this case to establish the
adjudication of any particular fact or fact. The form and requisites of such a plea are set out in
34 C.J. 1059 and 1970.
OPINION
Sanders, J.:
In the year 1909, Morris Silverman and Jennie Silverman intermarried in the city of
Cleveland, Cuyahoga County, State of Ohio, which city was the marital domicile of the
parties during all the time they lived together as man and wife. In the year 1926, Morris
Silverman filed in the court of common pleas, within and for Cuyahoga County, in said state,
his petition for divorce from his wife, Jennie Silverman, upon the ground of extreme
cruelty and upon the further ground of gross neglect of duty. In substance, his petition
charged as a first cause of action that the defendant was guilty of extreme cruelty, in that, to
wit, ever since their marriage the defendant exhibited an uncontrollable temper, would go
into a rage, slap and otherwise assault plaintiff, would call plaintiff vile and indecent
names, and more particularly, in July, 1925, the defendant flew into a rage and dragged
plaintiff bodily out of his store, called him vile and obscene names in the presence of their
children and other divers persons; that in February, 1925, the defendant drew a revolver
and threatened to shoot plaintiff; threatened to obtain acid and blind the plaintiff; that
ever since their marriage plaintiff had been in constant fear of his life and bodily harm
and that he was obliged to lock his bedroom at night for fear that the defendant would
carry out her threats to kill or injure him; that the defendant constantly demanded that
plaintiff leave their home under threat to kill or do him bodily harm; that on the 5th day of
June, 1926, after the defendant had returned from another city and found plaintiff at their
home, she threatened to kill him unless he left the home immediately, and that pursuant
to said threats the plaintiff was obliged to leave; that while their children were of tender
age the defendant would curse and swear at plaintiff, in their home, and in the presence
of said children call plaintiff vile and obscene names.
52 Nev. 152, 157 (1930) Silverman v. Silverman
defendant exhibited an uncontrollable temper, would go into a rage, slap and otherwise
assault plaintiff, would call plaintiff vile and indecent names, and more particularly, in July,
1925, the defendant flew into a rage and dragged plaintiff bodily out of his store, called him
vile and obscene names in the presence of their children and other divers persons; that in
February, 1925, the defendant drew a revolver and threatened to shoot plaintiff; threatened to
obtain acid and blind the plaintiff; that ever since their marriage plaintiff had been in constant
fear of his life and bodily harm and that he was obliged to lock his bedroom at night for fear
that the defendant would carry out her threats to kill or injure him; that the defendant
constantly demanded that plaintiff leave their home under threat to kill or do him bodily
harm; that on the 5th day of June, 1926, after the defendant had returned from another city
and found plaintiff at their home, she threatened to kill him unless he left the home
immediately, and that pursuant to said threats the plaintiff was obliged to leave; that while
their children were of tender age the defendant would curse and swear at plaintiff, in their
home, and in the presence of said children call plaintiff vile and obscene names.
For a second cause of action, it was alleged that the defendant was guilty of gross neglect
of duty, in that on occasions when the plaintiff would come home late for his dinner, the
defendant would refuse to serve plaintiff, and when plaintiff remonstrated with her for her
neglect, the defendant would throw dishes and other utensils at him, and plaintiff was forced
to cook his own dinner and wash the dishes so used; that ever since their marriage the
defendant refused to make the bed of plaintiff and would refuse to do any household duties
for plaintiff whatsoever.
The petition alleged that plaintiff was the owner of an undivided interest in certain real
estate situate in the city of Cleveland, described in the petition; that the defendant had a
dower interest therein. Wherefore, plaintiff prayed that he be divorced from the defendant;
that the marriage contract existing between the parties be declared null and void and
both parties relieved therefrom; that he be awarded the described real estate, free and
clear from any and all claims of the defendant, dower and otherwise, and for such other
and further relief as may be deemed just and equitable.
52 Nev. 152, 158 (1930) Silverman v. Silverman
that the marriage contract existing between the parties be declared null and void and both
parties relieved therefrom; that he be awarded the described real estate, free and clear from
any and all claims of the defendant, dower and otherwise, and for such other and further relief
as may be deemed just and equitable.
In response to summons, the defendant answered the petition. She admitted the residence
of plaintiff in the city of Cleveland, State of Ohio, for more than one year preceding the filing
of his petition; that plaintiff and defendant were married at the time alleged in the petition;
that two children were born of said marriage whose names and ages were correctly stated in
the petition. She admitted that plaintiff was the owner of the premises described in the
petition, but admitted no further. She denied each and every and all and singular the
allegations and averments contained in plaintiff's petition except such as were specifically
admitted to be true. By way of cross-petition and for cause of action against the plaintiff, the
defendant set up her residence; the marriage of the parties; that two children were born to
them as the issue of their marriage, namely, Saul, then 17 years of age, and Ralph, then 7
years of age. She alleged that she had at all times conducted herself towards the plaintiff as a
good and faithful wife, but that the plaintiff had been guilty of gross neglect of duty towards
her, in this, to wit: That for more than three years preceding the filing of his petition for
divorce he had absented himself from home almost every evening until the early hours of the
following morning; that he had refused and neglected the companionship of the defendant;
that he had refused and neglected to come home for meals except on rare occasions; that for
about three years he had been infatuated with another woman, whose name she alleged would
in due season be disclosed to the court and in whose company he spent more time than in the
company of the defendant and their children; that ever since about the 5th day of June, 1926,
plaintiff and defendant had been separated by reason of the fact that the defendant demanded
of the plaintiff that he give up the woman with whom he had become infatuated or else
leave the defendant; and that in response to said demand the plaintiff chose to give up
the defendant rather than the other woman.
52 Nev. 152, 159 (1930) Silverman v. Silverman
demanded of the plaintiff that he give up the woman with whom he had become infatuated or
else leave the defendant; and that in response to said demand the plaintiff chose to give up the
defendant rather than the other woman. She alleged that plaintiff was the owner of real and
personal property of the value of $150,000, and that for about three years last past, and since
he had become infatuated with the other woman, as aforesaid, the plaintiff had been disposing
of his real estate and property by transferring the same to other persons and by making
investments in the names of other persons so as to place same beyond the reach of the
defendant and beyond the reach of the court, in the event of filing of a petition by the
defendant for alimony against him. Wherefore, it was prayed that plaintiff's petition for
divorce be dismissed; that defendant be awarded alimony during the pendency of the case and
that on the final hearing thereof, she be awarded permanent alimony for the support of herself
and the above-named two children; that she be awarded the custody of said children; that she
be awarded reasonable counsel fees to enable her to properly defend the plaintiff's claim and
to prosecute her cross-petition; that the plaintiff be required to disclose the extent and value
of his property and the names of the persons to whom he had transferred it; and for such other
and further relief as in law and equity she may be entitled. The plaintiff in his answer to the
defendant's cross-petition denied each and every allegation contained therein, not specifically
admitted. He prayed that the defendant's cross-petition be dismissed and for judgment as
demanded in his petition.
Subsequently, the defendant filed in said court and cause a supplemental cross-petition
and, with leave of court, made Lydia Woldman and Albert A. Woldman, husband and wife,
and one Rose Borstein, defendants in the action, and for cause of action against them alleged
that plaintiff was the owner of certain real estate (described), and for a long time prior to the
filing of his action for divorce and during all of said time he had been secreting property, both
real and personal, for the purpose of placing the same beyond the reach of the court, well
knowing that the defendant would file a cross-petition for alimony, and that in
furtherance of said design, plaintiff in the years 1925 and 1926 caused certain real estate
to be conveyed to the defendant Lydia Woldman by warranty deed, without
consideration; that the plaintiff owned other real estate, but that for the reasons
aforesaid he took title thereto in the name of the defendant Rose Borstein, who had no
equitable interest in the property and who held the same for the purpose of enabling
plaintiff to conceal his ownership thereof and to place such property beyond the reach of
the court in the event of judgment for alimony which the court might render in this action.
52 Nev. 152, 160 (1930) Silverman v. Silverman
for the purpose of placing the same beyond the reach of the court, well knowing that the
defendant would file a cross-petition for alimony, and that in furtherance of said design,
plaintiff in the years 1925 and 1926 caused certain real estate to be conveyed to the defendant
Lydia Woldman by warranty deed, without consideration; that the plaintiff owned other real
estate, but that for the reasons aforesaid he took title thereto in the name of the defendant
Rose Borstein, who had no equitable interest in the property and who held the same for the
purpose of enabling plaintiff to conceal his ownership thereof and to place such property
beyond the reach of the court in the event of judgment for alimony which the court might
render in this action. Wherefore, she prayed for injunctive relief against said defendants; that
they be ordered to reconvey the premises to the plaintiff and that the same be subjected to any
order for alimony that may be made in the action; and for such other relief as in justice and
equity the court might deem just and proper. Lydia and Albert A. Woldman filed their joint
answer, and Rose Borstein filed her separate answer. Upon issues made, the cause came on to
be heard on November 5, 1927, upon the pleadings, the evidence, and the arguments of
counsel, and upon consideration thereof said court of common pleas found, among other
things, that the defendant, Jennie Silverman, was not guilty of gross neglect of duty and
extreme cruelty, as set forth in plaintiff's petition, and that plaintiff was not entitled to a
divorce. His prayer for divorce and that the defendant, Jennie Silverman, be barred of her
right of dower in plaintiff's property was denied, and plaintiff's petition for divorce was
dismissed. It was recited in the decree that: Coming, now, to consider the cross-petition and
the supplemental cross-petition of the defendant, Jennie Silverman, the court finds that the
allegations of said cross-petition are true; that the plaintiff has been guilty of gross neglect of
duty towards the defendant, Jennie Silverman, and that she is entitled to alimony for the
support of herself and said minor child, Ralph Silverman."
52 Nev. 152, 161 (1930) Silverman v. Silverman
Ralph Silverman. The court further found that plaintiff was the owner of an undivided
one-third interest in certain real estate situate in the city of Cleveland, described in the decree;
it was adjudged, ordered, and decreed that the defendants Lydia Woldman and her husband,
Albert A. Woldman, convey by good and sufficient deed to the plaintiff said premises. It was
further ordered that plaintiff pay to the defendant the sum of $150 per month in installments
of $75 each on the 1st and 15th day of each month until the further order of the court; said
sum to be for the support of herself and for said minor child, Ralph Silverman. It was further
ordered that the defendant pay the expenses of keeping their son Saul in college until the
further order of the court. It was further ordered that the defendant have the custody of the
child Ralph Silverman, but that plaintiff shall have the right to see him at all reasonable
times. It was further ordered that the defendant have a lien on all the real estate of the plaintiff
as security for the payment of any and all of the installments provided for in the decree, and it
was further ordered that plaintiff pay to the defendant's attorneys the sum of $350 and the
further sum of $102 to reimburse them for stenographic services, including the taking of
depositions in the action.
Thereafter, the plaintiff filed his petition in error in said court of common pleas for
reversal of the decree of dismissal of plaintiff's petition and the granting of the relief prayed
in the defendant's cross-petition.
Thereafter, Morris Silverman left the state of Ohio, and on August 28, 1927, came to
Reno, Washoe County, Nevada, where he resided for a period of three months. On November
29, 1927, he filed in the Second judicial district court of the State of Nevada in and for the
county of Washoe, a complaint against Jennie Silverman for a divorce. In substance, the
complaint alleged that plaintiff was a resident of the city of Reno, Washoe County, Nevada,
and had been physically and corporeally present within said city, county, and state each and
every day for said period of time, to wit, three months.
52 Nev. 152, 162 (1930) Silverman v. Silverman
months. The complaint set up the marriage of the parties in the city of Cleveland, Ohio, on
the 6th day of February, 1909, and alleged that two minor sons were born of their marriage, to
wit, Saul and Ralph Silverman. The complaint alleged as follows: That said defendant,
willfully and against the will and consent of plaintiff, deserted and abandoned plaintiff, and
for more than one year last past immediately and continuously preceding the filing of the
complaint herein, and continued to desert and abandon plaintiff, against his will and consent.
That ever since the said marriage the defendant began and continued of and towards the
plaintiff a course of extreme cruel and inhuman treatment, which continued unremittingly all
the time the parties lived together and which ultimately forced the plaintiff to leave the house
and home of the parties, to leave the defendant, and to cease further to live with her.
Following these general allegations, the complaint charged: That in July, 1925, the
defendant gave vent to an unusual outburst of temper and in a rage dragged the plaintiff out of
a store, called him vile and obscene names in the presence of the children of the parties and
other persons; that in February, 1925, the defendant drew a revolver and threatened to shoot
the plaintiff; that upon other occasions the defendant threatened to obtain acid and blind the
plaintiff, and that for a period of more than eight months, in order to be free from the threats
and outbursts of temper and assaults of defendant, the plaintiff had to keep the doors of his
room locked; that time and again defendant literally chased him out of the house, and because
of defendant's threats and actual assaults plaintiff had been in constant fear of his life; that on
may 5, 1926, after the defendant had returned from another city and found the plaintiff at the
house and home of the parties, the defendant threatened to kill the plaintiff unless he left the
home immediately; that following said threat the plaintiff did leave the house and home of the
parties and left the defendant and has never since lived with her; that the defendant
employed detectives to follow the plaintiff and repeatedly accused him of having illicit
relations with other women; that because of the acts of extreme cruelty inflicted by the
defendant upon the plaintiff, he was ultimately driven from the house and home of the
parties and driven from further living with or cohabitating with the defendant; that all
said acts and things alleged in the complaint occurred for more than one year
immediately preceding the filing of the complaint, and that said acts were willfully and
premeditatedly committed by the defendant against the plaintiff's will and consent; and
that each and all of said acts, singly and in their entirety, made the married life of the
plaintiff unbearable and unendurable, forced the plaintiff to leave the defendant and
abandon further marital relations and associations with her, and constituted a willful
desertion of the plaintiff upon the part of the defendant and without plaintiff's consent for
a continuous period of more than one year immediately and continuously last past.
52 Nev. 152, 163 (1930) Silverman v. Silverman
defendant employed detectives to follow the plaintiff and repeatedly accused him of having
illicit relations with other women; that because of the acts of extreme cruelty inflicted by the
defendant upon the plaintiff, he was ultimately driven from the house and home of the parties
and driven from further living with or cohabitating with the defendant; that all said acts and
things alleged in the complaint occurred for more than one year immediately preceding the
filing of the complaint, and that said acts were willfully and premeditatedly committed by the
defendant against the plaintiff's will and consent; and that each and all of said acts, singly and
in their entirety, made the married life of the plaintiff unbearable and unendurable, forced the
plaintiff to leave the defendant and abandon further marital relations and associations with
her, and constituted a willful desertion of the plaintiff upon the part of the defendant and
without plaintiff's consent for a continuous period of more than one year immediately and
continuously last past. Wherefore, the plaintiff prayed a decree dissolving the bonds of
matrimony existing between the parties and that each be permitted to resume the status of
unmarried persons.
The defendant appeared and filed a demurrer to the plaintiff's complaint upon the ground
that it did not state facts sufficient to constitute a cause of action, which was overruled.
Thereafter, on January 23, 1928, the defendant, Jennie Silverman, filed her answer to the
complaint in which she denied that the plaintiff was a bona fide resident of Washoe County.
She admitted the marriage and that two sons were born thereof, but denied each and every
allegation contained in the complaint charging her with cruelty and marital misconduct.
Further answering the complaint and in separate paragraphs, the defendant sets up the
pleadings and the decree of the court of common pleas within and for Cuyahoga County,
State of Ohio, and alleged that said decree was a final adjudication and determination of said
cause in the State of Ohio. She prayed judgment on the merits and that it be adjudged and
decreed that the issues between the parties in this case had been adjudicated by said court
of common pleas and that the judgment of said court was binding and that the relief
given by said court of common pleas, so far as it relates to the custody of the children of
the parties and the support of the defendant and said children, be affirmed and judgment
be given in this case to the same extent and in the amount as in said court of common
pleas and for separate maintenance to the same extent and in the same amount as
ordered by said court of common pleas and to all further and proper orders for general
relief.
52 Nev. 152, 164 (1930) Silverman v. Silverman
the issues between the parties in this case had been adjudicated by said court of common
pleas and that the judgment of said court was binding and that the relief given by said court of
common pleas, so far as it relates to the custody of the children of the parties and the support
of the defendant and said children, be affirmed and judgment be given in this case to the same
extent and in the amount as in said court of common pleas and for separate maintenance to
the same extent and in the same amount as ordered by said court of common pleas and to all
further and proper orders for general relief.
Plaintiff filed his reply to the defendant's answer and cross-complaint, so called. In his
answer he put the defendant upon proof as to and with respect to the proceedings and the
decree entered in the court of common pleas within and for Cuyahoga County, State of Ohio,
and prayed for the relief demanded in his complaint.
The case was tried without a jury. After a full hearing upon the pleadings and evidence, the
court made findings of fact to the effect that the parties intermarried on February 9, 1909; that
they were residents of the city of Cleveland, Ohio, during all the time they lived together as
man and wife; that the plaintiff at the time of the commencement of this action was a resident
of the city of Reno, county of Washoe, State of Nevada, for the period of three months prior
to the date of suit; that all and singular the allegations and charges contained in the plaintiff's
complaint were true; that the Ohio court was one of competent jurisdiction over the subject
matter and of the parties; that the allegations contained in the defendant's first affirmative
defense, respecting the proceedings and the decree of the court of common pleas within and
for Cuyahoga County, State of Ohio, were true; that the averment contained in the defendant's
second affirmative defense, to the effect that in the Ohio court plaintiff as his cause of action
therein alleged facts identical with those alleged in the present complaint, was not true; that
the allegations contained in the defendant's third affirmative defense, respecting the Ohio
decree in favor of the wife upon her cross petition for alimony, were not true; that the
defendant's second and third defenses were not specially pleaded by way of
recrimination, bar, estoppel, or res adjudicata; that the defendant's alleged defenses were
not established.
52 Nev. 152, 165 (1930) Silverman v. Silverman
the Ohio decree in favor of the wife upon her cross petition for alimony, were not true; that
the defendant's second and third defenses were not specially pleaded by way of recrimination,
bar, estoppel, or res adjudicata; that the defendant's alleged defenses were not established.
Upon these findings of fact and the conclusions of law adduced therefrom, it was adjudged,
ordered, and decreed that the plaintiff be divorced from the defendant and that the plaintiff
pay to the defendant the sum of $150 per month, in installments of $75 each, for the support
of herself and their son Ralph Silverman until the further order of the court; that the
defendant have the custody of said son with the right to plaintiff to visit him at all reasonable
times until the further order of the court; that the plaintiff pay the expenses of their son Saul
Silverman in college until the further order of the court. The defendant filed a motion for new
trial, which was denied; thereupon, she perfected her appeal from the judgment and from said
order.
We shall refer to the parties in both courts as the husband and the wife, respectively. We
shall refer to the common pleas court within and for Cuyahoga County as the Ohio court, and
to the court below as the Nevada court.
A prolix statement has been made of the Ohio litigation in order to bring into prominence
the question of its extraterritorial effect upon the Nevada litigation.
Counsel for the husband insists that the Ohio decree was not conclusive in Nevada as to
the issue of the constructive desertion by the wife of the husband in Ohio, for the following
reasons:
First. That the Ohio decree was not properly pleaded, either as a defense, an estoppel, a bar
or res adjudicata. This contention is untenable. It is manifest from her pleadings that the wife
sought to rely upon the Ohio judgment legalizing her separation from her husband and
awarding her separate maintenance for the support of herself and children, and denying to the
husband a divorce upon the ground of cruelty as a defense. The record discloses that upon the
trial the proceedings in the Ohio litigation duly certified were identified and admitted in
evidence, and that the trial court found the record to be as alleged in the wife's answer.
52 Nev. 152, 166 (1930) Silverman v. Silverman
the Ohio litigation duly certified were identified and admitted in evidence, and that the trial
court found the record to be as alleged in the wife's answer. We are therefore of the opinion
that the Ohio decree was sufficiently pleaded and considered. Gulling v. Washoe County
Bank, 29 Nev. 257, 89 P. 25; Douglas v. Douglas, 156 Tenn. 655, 4 S.W. (2d) 359; Kelly v.
Kelly, 118 Va. 376, 87 S.E. 567.
It is contended on behalf of the husband in the second place that the Ohio decree was not
final, hence the doctrine of estoppel or res adjudicata has no application. The record discloses
that, after the judgment was rendered in the Ohio court against the husband and in favor of
the wife upon her cross-petition for separate maintenance, the husband filed his petition in
error as provided in Ohio General Code, sec. 12259, to review and reverse the judgment
rendered against the husband and in favor of the wife. It is held in Ohio that a petition in error
under section 12259, General Code, is a separate and independent proceeding in error,
essentially different from a statutory appeal, and is not a continuation and transplanting of the
original action in the reviewing court. The distinction is clearly drawn between a proceeding
in error and a statutory appeal in the case of Levering v. National Bank, 87 Ohio St. 117, 100
N.E. 322, 43 L.R.A. (N.S.) 611, Ann. Cas. 1913e, 917. In Rogers v. Hatch, 8 Nev. 35, it is
held, in substance, that if the original appeal is in the nature of a writ in error, it does not
vacate or suspend the judgment appealed from. It was accordingly held in the Ohio case cited
that, under the laws and practice of that state, the petition in error does not impair the effect
of the judgment as a final determination of the rights of the parties in the Ohio litigation.
It is insisted in argument on behalf of the husband that the wife waived her right to rely
upon the Ohio decree by defending upon the merits. This contention is also untenable.
Harding v. Harding, 198 U.S. 317, 25 S. Ct. 679, 49 L. Ed. 1066; Kelly v. Kelly, supra.
If is also insisted on behalf of the husband in the fourth place that the issues in the Ohio
case and the Nevada case are not identical, neither in point of time or facts.
52 Nev. 152, 167 (1930) Silverman v. Silverman
fourth place that the issues in the Ohio case and the Nevada case are not identical, neither in
point of time or facts. Hence the defense or plea of res adjudicata, attempted to be established
by the Ohio litigation, has no application to the husband's cause of action for divorce in
Nevada upon the ground of constructive desertion. In support of this contention, counsel
for the husband seem to rely solely upon the case of Sweet v. Sweet, 49 Nev. 254, 243 P. 817.
The conclusive answer to this contention is that in Sweet v. Sweet there was not present a
foreign decree adjudging the wife's separation from her husband without fault on her part, and
therefore was not a willful desertion of the husband by the wife, which is the precise issue in
the husband's action for divorce in Nevada. We are clearly of the opinion that the issue
presented in this action for divorce was identical was that decided in the Ohio litigation for
separate maintenance because of the husband's gross neglect of duty, which necessarily
involved the determination of the question of whether or not the wife was guilty of desertion
as charged in the complaint in the Nevada court.
In Vickers v. Vickers, 45 Nev. 274, 199 P. 76, 202 P. 31, Justice Coleman, the writer of
the opinion, reviews the cases of Harding v. Harding, supra, and Kelly v. Kelly, supra, which
hold that where the wife separated from the husband and obtained a judgment in a court of
competent jurisdiction over the subject matter and of the parties, she had left her husband for
a justifiable cause, and thereafter in another state the husband brought suit for divorce on the
ground of willful desertion, it was error to give him a decree as prayed, since that would deny
full faith and credit to the court of the first state.
The case at bar cannot be distinguished in principle from the cases of Harding v. Harding
and Kelly v. Kelly. It is manifest, from the proceedings in the Ohio court, that the issue of
willful desertion, presented in the case at bar, is identical with the issue of the wife's
separation from her husband without fault, presented in her maintenance suit, upon her
cross-petition in the husband's action for divorce upon the ground of "intolerable cruelty."
52 Nev. 152, 168 (1930) Silverman v. Silverman
maintenance suit, upon her cross-petition in the husband's action for divorce upon the ground
of intolerable cruelty. The decree of the Ohio court, in legal effect, established that the
separation of the wife from the husband was lawful, and therefore conclusively operated to
prevent the same separation from constituting a willful desertion by the wife of the husband
as charged in the complaint in this action. This being the case, it follows that the Nevada
court, in granting the husband a divorce upon the ground of constructive desertion failed to
give to the decree of the Ohio court the due faith and credit to which it was entitled, and
thereby violated the Constitution of the United States. Harding v. Harding, supra.
The judgment appealed from must therefore be reversed, and the cause remanded for such
further proceedings as the parties may be advised.
It is so ordered.
Coleman, J.:
The defendant, in addition to denying the allegations of desertion alleged in the complaint,
undertook to plead, as an affirmative defense, former adjudication. It is strenuously argued
that no such defense was pleaded by the defendant: First, because the so-called affirmative
plea does not plead certain essential facts, and, secondly, because the plea does not show that
the same cause of action was involved in the Ohio suit, as is involved in this one, in that, as
said, the cause of action in the Ohio suit brought by the plaintiff was founded on extreme
cruelty and gross neglect of duty, whereas plaintiff's present suit is founded on willful
desertion.
The affirmative defense shows: (1) That the plaintiff in July, 1926, commenced a suit in
the court of common pleas in and for Cuyahoga County, Ohio, to obtain a divorce from the
defendant; (2) that said court was at the time of the institution of said suit a court of general
jurisdiction in said state, having a clerk and a seal, with jurisdiction in causes for divorce; (3)
that the plaintiff alleged as his cause of action in said suit facts identical with those alleged
in the complaint in the instant suit; {4) that the defendant was served with process in said
suit on September 23, 1926; {5) that the defendant appeared therein and filed her answer
and cross-petition, wherein she denied each and every allegation contained in said
petition of plaintiff charging her with marital offenses; {6) that thereafter said cause
came on regularly for trial on November 5, 1927, and that thereafter and on December 15,
1927, the said court rendered judgment against plaintiff and in favor of the defendant,
wherein it was determined that each and every of the allegations of the plaintiff's petition
charging the defendant with marital delinquencies were untrue; {7) that said decree is a
final adjudication and determination of said suit.
52 Nev. 152, 169 (1930) Silverman v. Silverman
alleged as his cause of action in said suit facts identical with those alleged in the complaint in
the instant suit; (4) that the defendant was served with process in said suit on September 23,
1926; (5) that the defendant appeared therein and filed her answer and cross-petition, wherein
she denied each and every allegation contained in said petition of plaintiff charging her with
marital offenses; (6) that thereafter said cause came on regularly for trial on November 5,
1927, and that thereafter and on December 15, 1927, the said court rendered judgment against
plaintiff and in favor of the defendant, wherein it was determined that each and every of the
allegations of the plaintiff's petition charging the defendant with marital delinquencies were
untrue; (7) that said decree is a final adjudication and determination of said suit.
1. We think the answer and cross-complaint of defendant pleaded all that is necessary to
constitute the plea of res adjudicata.
2. Respondent seems to take the position that because of certain matter contained in the
prayer of defendant's answer the affirmative defense should not be considered as sufficient.
We have often held that the prayer can in no way affect the sufficiency of the matter pleaded;
furthermore, the matter goes to the defense on the merits, which is proper. Kelly v. Kelly, 118
Va. 376, 87 S.E. 567.
3. The writer is unable to agree with the contention of respondent that a different cause
of action is involved in the instant case from that adjudicated in the Ohio court, merely
because the suit in the Ohio court was based on extreme cruelty and gross neglect of
duty, whereas this suit is founded on willful desertion.
4, 5. The true test of the identity of causes of action, as that term is used in connection
with the plea of former adjudication, is the identity of the facts essential to their maintenance.
The identity of the causes of action may appear from evidence in the two cases as well as
from the pleadings.
52 Nev. 152, 170 (1930) Silverman v. Silverman
6. The authorities agree that when the same evidence supports both the present and the
former cause of action, the two causes of action are identical. This view was expressed in the
early English case of Kitchen v. Campbell (1772), 3 Wils. 304, the court saying: You shall
not bring the same cause of action twice to a final determination; nemo debet bis vexari, upon
this we found our judgment: and what is meant by the same cause of action is when the same
evidence will support both actions, although the actions may happen to be grounded on
different writs; this is the test to know whether a final determination in a former action is a
bar or not to a subsequent action; and it runs through all the cases in the books, both in real
and personal actions.
A long list of cases is cited in support of this view in 34 C.J. p. 805, note 14. See, also, 15
Stand. Ency. Proc. p. 504.
7. It is a well-established rule that one cannot by varying the form of an action escape the
operation of the principle that one and the same cause of action shall not be twice adjudicated
upon the merits between the same parties or their privies. 2 Black on Judgments, sec. 729; 34
C.J. 881, sec. 1289.
The judgment and order are reversed.
Ducker, C.J.: I concur in the views expressed by Justice Coleman.
____________
52 Nev. 171, 171 (1930) In Re Cowles
In Re COWLES
No. 2879
January 9, 1930. 283 P. 400.
1. StatesCapitol Commissioners Had Authority to Execute Lease of Nevada Building
Under Statute.
Capitol commissioners held to have authority to execute lease of Nevada building to city of Reno
under Stats. 1929, c. 215.
2. StatesBoard of Control Was Unauthorized to Promise Boards of County Commissioners
that County Exhibits in Nevada Building Would Become Permanent.
Board of control held not authorized either by Laws 1925, c. 40, or Laws 1927, c. 142, to promise
boards of county commissioners that county exhibits installed in Nevada building would become
permanent, since state may at all times exercise right of control and disposition of its property, and what
one legislature may enact in this respect may be deemed unwise and inexpedient by subsequent
legislature, or rendered undesirable by unforeseen or altered conditions.
3. ProhibitionPoint Alleged But Not Argued on Hearing Is Deemed Waived.
Where point alleged in petition for writ of prohibition is not argued on hearing, it must be deemed
waived.
4. ProhibitionProhibition Is Not Proper Remedy to Arrest Proceedings of Board of Capitol
Commissioners Executing Lease of Nevada Building.
Prohibition is not proper remedy to arrest proceedings by board of capitol commissioners respecting
lease of Nevada building, since board, in executing lease under legislative authority, exercised purely
ministerial functions, and, under Const. art. 6, sec. 4, writ of prohibition is authorized only to restrain
exercise of judicial functions, Rev. Laws, sec. 5708, having been held beyond scope of constitutional
grant of jurisdiction.
C.J.-CYC. REFERENCES
States36 Cyc. p. 865, n. 3; p. 872, n. 93.
Application by R.H. Cowles for a writ of prohibition against the Board of Capitol
Commissioners of the State and others. Petition and proceedings dismissed.
A.J. Maestretti and James T. Boyd, for Petitioner.
M.A. Diskin, Attorney-General, and Wm. Forman, Jr., Deputy Attorney-General, for
Respondents.
OPINION
By the Court, Ducker, C.J.:
This is an original proceeding in prohibition.
The amended petition, which will be hereinafter referred to as the petition, alleges, inter
alia, that the petitioner, R.H. Cowles, is a citizen of the United States, and of the State of
Nevada, residing at Reno, Washoe County, Nevada, and a taxpayer in said county and
elsewhere in said state.
52 Nev. 171, 172 (1930) In Re Cowles
referred to as the petition, alleges, inter alia, that the petitioner, R.H. Cowles, is a citizen of
the United States, and of the State of Nevada, residing at Reno, Washoe County, Nevada, and
a taxpayer in said county and elsewhere in said state. It is further alleged that the legislature
of the State of Nevada in 1925 passed an act (Laws 1925, c. 40) entitled, An act authorizing
the construction and equipment of a Nevada building in the city of Reno, and the collection of
exhibits to be placed therein; authorizing a bond issue and a tax levy for same; and other
matters properly relating thereto, and among other provisions said act provides that there
shall be erected within said city of Reno a building to be used for certain specific purposes set
out in said act, and said act provides for a commission to be designated as the Nevada
building commission to construct and equip said building; that the legislature in 1927 passed
an act (Laws 1927, c. 142) to provide for the control, use, and supervision of said building,
and providing that said building should be controlled and generally supervised by a board
consisting of the governor, secretary of state, and state inspector of mines, which board is
designated as the Nevada state building board; that said acts of the legislature of 1925 and
1927 provide and designate the uses for which said building was constructed and equipped,
and other matters properly applicable thereto; that, pursuant to said acts, the said board
proceeded to carry out the duties imposed upon it, and among other things installed in said
building the exhibits of the Nevada state historical society, and invited the county
commissioners of the various counties of the State of Nevada to prepare and install in said
building exhibits pertaining to the industry and history of said counties, and said building
board, in order to secure cooperation from the county commissioners of the various counties
of the state, did promise to the various boards of county commissioners in this state, in
writing, that any exhibit installed should have definite detailed space in said building, and
that said exhibits should thereafter become permanent; that pursuant to said invitations and
promises to the various county commissioners in this state the said commissioners did
arrange with said state building board for definite space for installing exhibits pertaining
to the industry and history of the various counties, and, following such arrangements and
allotment of space, the various boards of county commissioners of this state did, at great
expense, prepare, provide, and cause to be installed in the allotted space in said building
elaborate exhibits pertaining to the industry, products, and history of the various counties
of this state, which said exhibits constitute a valuable asset, and which exhibits will
continue to be of great value to the state of Nevada, if permanently maintained as
provided by said acts of the legislature.
52 Nev. 171, 173 (1930) In Re Cowles
pursuant to said invitations and promises to the various county commissioners in this state the
said commissioners did arrange with said state building board for definite space for installing
exhibits pertaining to the industry and history of the various counties, and, following such
arrangements and allotment of space, the various boards of county commissioners of this state
did, at great expense, prepare, provide, and cause to be installed in the allotted space in said
building elaborate exhibits pertaining to the industry, products, and history of the various
counties of this state, which said exhibits constitute a valuable asset, and which exhibits will
continue to be of great value to the state of Nevada, if permanently maintained as provided by
said acts of the legislature.
The petition further alleges that the legislature of 1929 passed an act (Laws 1929, c. 215)
entitled An act authorizing and directing the board of capitol commissioners of the State of
Nevada to lease to the city of Reno for a period of ninety-nine years the Nevada state building
situated in the city of Reno, subject to certain conditions and reservations, and other matters
relating thereto, which said act of the legislature attempted to give authority to said board of
capitol commissioners to lease the said Nevada state building to the city of Reno for a period
of 99 years, and contains the further provision that the city of Reno might lease said Nevada
state building to the county of Washoe, or to the Washoe County library, or to any other
public or quasi public institution maintained by the city of Reno, or the county of Washoe, for
public purposes only; that, pursuant to the passage of said act, the said board of capitol
commissioners did made and execute to the city of Reno a lease as provided by the terms of
the said act of the legislature of 1929, and that thereafter the city of Reno did make and
execute its lease to the county of Washoe for the period of 99 years.
The petition further alleges that it is the intention of the last named lessee to rearrange,
change, move, disturb, and otherwise interfere with said exhibits, and to remove them
from the space allotted to the various counties of this state by the board of control of said
building; that such allotment had been accepted by Washoe County and other counties of
the state, and large and valuable amounts of furniture, fixtures, and exhibits had been
placed therein by Washoe County and other counties of this state, and for which Washoe
County and the taxpayers thereof had expended large sums of money; that the
threatened removal is in violation of the agreement existing between the board of control
of said building and the county of Washoe and other counties of this state, to the great
injury and damage, loss of furniture, fixtures and exhibits, and the irreparable destruction
of the same for the purposes for which they were installed.
52 Nev. 171, 174 (1930) In Re Cowles
disturb, and otherwise interfere with said exhibits, and to remove them from the space
allotted to the various counties of this state by the board of control of said building; that such
allotment had been accepted by Washoe County and other counties of the state, and large and
valuable amounts of furniture, fixtures, and exhibits had been placed therein by Washoe
County and other counties of this state, and for which Washoe County and the taxpayers
thereof had expended large sums of money; that the threatened removal is in violation of the
agreement existing between the board of control of said building and the county of Washoe
and other counties of this state, to the great injury and damage, loss of furniture, fixtures and
exhibits, and the irreparable destruction of the same for the purposes for which they were
installed.
The petition further alleges that it is the intention of the said board of capitol
commissioners, in cooperation with the board of county commissioners of Washoe County, to
carry said lease into effect, and that the said board of capitol commissioners has no authority
to make or execute such lease, and has no right or authority to deliver the control of said
building or any of its contents to any person, or to violate the terms and conditions of the
agreement under which the space in said building has been allotted to said Washoe County
and to various other counties of this state, and under which said agreement the space has been
accepted, the furniture and fixtures installed, and the exhibits placed therein; that the rights of
Washoe county and other counties of this state to the space allotted them are vested rights.
The petition further alleges that, if said capitol commissioners proceed to carry out the
provisions of the act of the legislature of 1929, the exhibits of said counties and the property
of the Nevada state historical society will be damaged, lost, and destroyed, to the great
damage of the history of the State of Nevada, the sentiment of the people of the state
connected therewith; and the purposes and intention of the legislature which provided for
the erection and maintenance of such building, with the approval and good will of the
people of the State of Nevada, will be frustrated, and the purposes of said act will be
perverted and nullified; that the upkeep and maintenance of said building, as provided for
by the terms of said proposed lease, will entail and impose upon the taxable property of
Washoe County, for the period of said lease, an enormous and unnecessary continuing
burden of taxation upon the property of the petitioner, to his great unjust and irreparable
injury, as well as a like injury, to every other taxpayer in Washoe county; that petitioner,
as a taxpayer and citizen of the State of Nevada, has a beneficial interest in this petition,
and that he has no other plain, speedy, or adequate remedy either at law or in equity.
52 Nev. 171, 175 (1930) In Re Cowles
legislature which provided for the erection and maintenance of such building, with the
approval and good will of the people of the State of Nevada, will be frustrated, and the
purposes of said act will be perverted and nullified; that the upkeep and maintenance of said
building, as provided for by the terms of said proposed lease, will entail and impose upon the
taxable property of Washoe County, for the period of said lease, an enormous and
unnecessary continuing burden of taxation upon the property of the petitioner, to his great
unjust and irreparable injury, as well as a like injury, to every other taxpayer in Washoe
county; that petitioner, as a taxpayer and citizen of the State of Nevada, has a beneficial
interest in this petition, and that he has no other plain, speedy, or adequate remedy either at
law or in equity. The petition further alleges that said act of the legislature of the State of
Nevada, authorizing said lease, is invalid, null, and void, for the reason that the history of the
enactment of said act, on file in the office of the secretary of state of Nevada, discloses the
fact that said act passed the legislature in an irregular and unlawful manner.
To the alternative writ issued upon the filing and presentation of the foregoing petition the
respondents filed a motion to quash and a demurrer. The matter was duly heard. Later upon
due consideration an order was made dismissing the petition and proceedings; the consent of
counsel for the parties having been given that an order might be made in advance of the
written opinion.
1, 2. We find the several objections of the petitioner to the authority of the capitol
commissioners to execute the lease in question to be without merit. The statute under which it
is alleged that they acted gave them such authority. Stats. 1929, pp. 411 and 412. It also
authorized the city of Reno to execute the lease which it is alleged was executed to the county
of Washoe. The principal objection which counsel for petitioner urges against the law is that
it is violative of the agreement heretofore stated, made in writing by the board created by the
act of 1927 for the control of said building, with the various boards of county
commissioners of this state.
52 Nev. 171, 176 (1930) In Re Cowles
the various boards of county commissioners of this state. It is claimed that it is
unconstitutional in this respect, in that it violates the obligations of the contracts with various
counties under which these counties acted in placing their exhibits in the spaced allotted for
that purpose, and under which they acquired a vested right to have the same remain there
permanently. The board of control was not authorized either by the act of 1925 or 1927 to
enter into the contracts alleged. It is true it is declared in the act of 1925 to be the primary
object for the construction and equipment of the building to provide suitable quarters for a
continuous exhibit of state and county resources and relics collected by the Nevada state
historical society, but this purpose alone is not sufficient to bind future legislatures. The state,
acting within constitutional limitations, may at all times exercise the right of control and
disposition of its property. 36 Cyc. p. 870. What one legislature may enact in this respect may
be deemed by a subsequent legislature unwise or inexpedient, or rendered undesirable by
unforeseen or altered conditions, and changed accordingly. This must be so for the orderly
transaction of governmental business.
The provision for maintaining suitable quarters in the building for a continuous exhibit of
county resources cannot be considered as authority for the state officials constituting the
board of control to enter into the contract alleged. As they were not by law vested with any
powers of a contractual nature in this respect, the agreement alleged, if actually made, was
void. It follows then that the law of 1929 works no impairment as claimed.
3. What we have held as to the claim of a contract with the counties applies also to the
claim of a contract between the donor of the building site and the state. The building
commission created by the act of 1925 was not vested with authority to enter into a contract
with the donor. Moreover, it is not alleged in the petition for the writ that there was any such
contract. It is alleged in the petition that the act of 1929 is null and void because enacted by
the legislature in an irregular and unlawful manner.
52 Nev. 171, 177 (1930) In Re Cowles
void because enacted by the legislature in an irregular and unlawful manner. No argument on
this point was presented on the hearing; consequently it must be deemed waived.
4. We have considered and determined this matter on the merits with reluctance, and only
on account of the public nature of the case; for we are satisfied that the contention of counsel
for respondents that prohibition will not issue to arrest proceedings of a ministerial character
is well taken.
It must be admitted that the board of capitol commissioners in executing the lease under
legislative authority exercised purely ministerial functions. This is expressly permitted by
section 5708 of the Rev. Laws, but it has been held by this court that the statute in this regard
is beyond the scope of the constitutional grant of jurisdiction to the supreme court to issue
writs of prohibition. O'Brien v. Commissioners, 41 Nev. 90, 167 P. 1007. As pointed out in
the foregoing opinion, the writ of prohibition at common law was authorized only to restrain
the exercise of judicial functions, and it was the opinion of the majority of the court that the
framers of the state constitution by article 6, section 4 thereof, conferring jurisdiction upon
the supreme court to issue writs of prohibition, intended to confer the right to issue the writ as
it had been exercised at common law.
Section 5708 of the Rev. Laws it was held could not enlarge the writ so as to reach
proceedings not of a judicial character. In this regard, O'Brien v. Commissioners is in accord
with the great weight of authority. Stein v. Morrison, 9 Idaho, 426, 75 P. 246; Farmers' Union
v. Thresher, 62 Cal. 407; State ex rel. Scharnikow v. Hogan, 24 Mont. 379, 62 P. 493, 51
L.R.A. 958; State v. Durand, 36 Utah, 93, 104 p. 760.
For the foregoing reasons, the petition and proceedings were dismissed.
____________
52 Nev. 178, 178 (1930) Bank v. Milisich
STOCKGROWERS AND RANCHERS BANK OF
RENO v. MILISICH Et Ux.
No. 2767
January 16, 1930. 283 P. 913.
1. Husband and WifeEvidence Sustained Finding of Gift of Community Property by
Husband to Wife.
Evidence, in suit to subject to payment of judgment against husband certain notes held by wife, held
to sustain finding of gift of community property by husband to wife as her separate property.
2. GiftsGift Inter Vivos Requires Delivery Placing Gift Under Exclusive Dominion and
Control of Donee.
An essential element of a gift inter vivos is that there is delivery placing gift under exclusive
dominion and control of donee.
3. Husband and WifeGift from Husband to Wife May Be Made by Understanding that
Excess of Allowance Should Become Wife's Separate Property.
Gift from husband to wife may be made in accordance with understanding that excess of money
turned over to wife for household expenses during current month should become her separate property.
C.J.-CYC. REFERENCES
Gifts28 C.J. sec. 21, p. 630, n. 66; sec. 23, p. 634, n. 94.
Husband and Wife31 C.J. sec. 1191, p. 101, n. 21.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Suit by the Stockgrowers and Ranchers Bank of Reno Against Steve B. Milisich and wife.
From a judgment for defendants, and an order denying a motion for new trial, plaintiff
appeals. Affirmed. (Sanders, J., dissenting.)
Cooke & Stoddard, for Appellant:
It is a well-established rule that where a creditor attacks a conveyance from a husband to a
wife during marriage, and shows a nominal consideration recited in the conveyance, or
insolvency of the husband, or a declaration of the husband that he was the owner of the
property after the conveyance, that the burden of proof is upon the wife to show by clear and
satisfactory proof that there was not only a valuable but also an adequate consideration
given by her.
52 Nev. 178, 179 (1930) Bank v. Milisich
adequate consideration given by her. 27 C.J. 790-792, sec. 717-718, and authorities cited; 12
R.C.L. 668, sec. 174, and authorities cited; Liebenthal v. Price (Wash.), 35 P. 1078; Wright v.
Craig (Ore.), 66 P. 807; Dill v. Carver (Wash.), 126 P. 86; Patterson v. Bowes (Wash.), 139
P. 225; First National Bank v. Swan (Wyo.), 23 P. 743; Helm v. Brewster (Colo.), 93 P.
1104; Boles v. Drake (Wash.), 68 P. 961; Stirling v. Wagner (Wyo.), 31 P. 1032; Kelley v.
Atkins (Colo.), 59 P. 841; Williams v. Harris (S.D.), 46 Am. St. Rep. 758; Security State
Bank v. McIntyre (Mont.), 228 P. 618; Hart-Parr Co. v. Schafer (Mont.), 236 P. 675;
Southwick v. Moore (Cal.), 215 P. 704.
The burden of proof shifted to the defendants, husband and wife, in this case to show by
clear and satisfactory proof that Steve Milisich was not insolvent on July 13, 1920, the date of
the assignment; that the wife paid to the husband an adequate and valuable consideration for
the assignment of the O'Sullivan notes and mortgages representing $19,000 principal and
$1,000 accrued interest; and that the transaction was a bona fide one. This they utterly failed
to do.
It is the settled law in this State, and we think in all community property states, that
property or money, once a part of the community, will be presumed to remain such until
shown by clear, certain and convincing proof to have been transmuted into separate property
as against creditors. Laws v. Ross (Nev.), 194 P. 467; Barrett v. Franke (Nev.), 208 P.
435-437; Bekins v. Dieterle (Cal.), 91 P. 174; Lanigan v. Miles (Wash.), 172 P. 897.
Green & Lunsford, for Respondents:
The question of fraudulent intent is one of fact, and a finding of the existence of such
intent cannot be based solely upon the lack of a valuable consideration. Rev. Laws of Nevada,
sec. 1086; Simpson v. Harris, 21 Nev. 365, 31 P. 1009; Holman v. Martin, 12 Ind. 553;
Barker v. Lynch (Wis.), 44 N.W. 862; Woodworth v. Sweet, 51 N.Y. 8 (6 Sickels 5) Fraud is
never presumed.
52 Nev. 178, 180 (1930) Bank v. Milisich
Nevada Mining & Exp. Co. v. Rae, 47 Nev. 173; Gruber v. Baker, 20 Nev. 453.
When the wife shows that she purchased personalty from her husband out of her separate
estate and creditors attack the validity of the transfer from husband to wife, the burden is on
the creditors to prove fraud. 30 C.J. p. 684, middle of column 2.
Under the married women property acts there is no presumption of fraud arising from the
fact of a conveyance to the wife. Vansickle v. Wells Fargo & Co., Cir. Ct. Dist. Nevada, 105
Fed. 16; Guthrie v. Hill (Ky.), 127 S.W. 767; Koopman v. Mansolf (Mont.), 149 P. 491.
A creditor attacking a conveyance as fraudulent must first show a fraudulent intent of the
grantor. The burden then shifts to the purchaser to show a valuable consideration, and this
shown, the burden again shifts to the plaintiff, who must show the vendee's knowledge of the
fraudulent intent of the grantor. Commercial National Bank v. Roberts, 194 P. 751; Ross v.
Wellman (Cal.), 36 P. 402; Jones v. Simpson, 116 U.S. 609, 6 Sup. Ct. 538, 29 L. Ed. 742.
Corpus Juris states a minority rule, which is well supported by authority, to the effect that
the burden of proof as to consideration rests upon the creditors who attack a transfer from
husband to wife, and not upon the wife. 27 C.J. p. 795, sec. 719, Fraudulent Conveyances.
A husband may make a valid gift to his wife, and the subject of the gift, whether belonging
to the community or to his separate estate, becomes the separate property of the wife. 13
R.C.L. p. 1382, sec. 430; 31 C.J. p. 101, sec. 1191, Husband and Wife; Rev. Laws of Nev.
sec. 2173; Rev. Laws of Nev. sec. 2155.
OPINION
By the Court, Ducker, C.J.:
Being unable to concur in the tentative opinion drafted by the member of the court to
whom this case was originally assigned, the writer is confronted with the necessity of
writing his views.
52 Nev. 178, 181 (1930) Bank v. Milisich
the necessity of writing his views. This is a suit in equity to subject to the payment of a
judgment obtained against Steve B. Milisich two certain notes held by Thora J. Milisich, his
wife. From a judgment in favor of the defendants, and an order denying a motion for a new
trial, the plaintiff has appealed.
The respondents were intermarried in 1907. From the time of their intermarriage until
December, 1918, Steve B. Milisich was engaged in conducting a saloon in Reno, Nevada,
during which time, according to his testimony, his profits were about $80,000. From
December, 1918, to July, 1919, he conducted a soft drink business, and from the last-named
date to June, 1920, he was out of business entirely. Both of the respondents testified that not
long after their marriage Steve would turn over to Thora money for the household expenses
during the current month, with the understanding that any excess over and above such
expenses should become her separate property; that pursuant to such understanding she
deposited such savings in savings bank and open accounts over a period of years, purchasing
from time to time bonds, and making other investments. Steve testified that on occasions he
deposited money to Thora's account, and that such deposits were intended as gifts from him.
On May 10, 1918, the respondents loaned to Dennis O'Sullivan and wife $14,000, which
indebtedness was evidenced by a note which was secured by a mortgage. On February 18,
1919, the respondents loaned the O'Sullivans $5,000, evidenced by a note and secured by a
second mortgage.
Late in 1919 Steve began to figure on going into business again and interested Frank J.
Byington. Together they incorporated the Nevada Confectionery Company, and in the latter
part of June, 1920, the company began business. Prior to incorporation, Steve and Byington
obligated themselves in a large sum for fixtures, equipment, etc., for the business. Among
their obligations were notes aggregating $7,800, payable to the plaintiff. While so indebted,
and on July 13, 1920, Steve by an instrument in writing sold, transferred, and assigned to
the respondent Thora Milisich, his wife, all of his right and title in the two O'Sullivan notes
and the mortgages securing the same.
52 Nev. 178, 182 (1930) Bank v. Milisich
1920, Steve by an instrument in writing sold, transferred, and assigned to the respondent
Thora Milisich, his wife, all of his right and title in the two O'Sullivan notes and the
mortgages securing the same. Thereafter Steve assumed this entire obligation and Byington
was released. The respondent testified that the consideration for such assignment was moneys
advanced by Thora out of her separate property aforementioned.
This action is to set aside such conveyance by Steve and to subject the O'Sullivan
indebtedness to the payment of the obligation originally due it from Steve and Byington, and
which Steve assumed. The jury impaneled at the request of respondents answered a number
of special interrogations all favorably to them, and these answers were adopted by the court
and incorporated in its findings.
The main contentions of the appellant are that the O'Sullivan notes and mortgages are the
community property of the respondents; that the assignment was made without adequate
consideration and with intent to defraud appellant. A question largely determinative of the
case is whether the evidence is sufficient to establish that the moneys claimed by respondents
to have been paid by Thora to Steve as a consideration for the assignment of the O'Sullivan
notes and mortgages was her separate property.
Admittedly all of the money made by Steve in his saloon and soft drink business during
the period mentioned was originally community property. The jury and the court found that
between the date of the marriage of respondents, on October 19, 1907, and the month of July,
1919, Milisich gave to his wife various sums of money, aggregating in amount between
$35,000 and $40,000, with the intention and understanding of the husband and the wife that
the sums were gifts, and should be and become the separate property and funds of the wife,
and that the same did thereby become the separate property of the wife. It was out of these
moneys, or investments made therefrom, or both, that the respondents claim the
consideration for the assignment was made.
52 Nev. 178, 183 (1930) Bank v. Milisich
consideration for the assignment was made. It is unquestionably the law that a husband may
make the wife a gift of community funds which will thereby become her separate property.
As stated in Bailey v. Littell, 24 Nev. 304, 53 P. 308, 310: There is nothing in our statutes
prohibiting the husband from giving to his wife any property he may have, or in which he
may have an interest, when such property is not subject to the claims of his creditors.
1. We have carefully considered all of the evidence, and are of opinion that it is sufficient
to support the foregoing finding. The testimony of the husband and wife as to the various
transactions claimed as gifts during the years Steve was engaged in the saloon business is
positive and undisputed. He was solvent all the time and was making money. As previously
stated, he testified that his profits amounted to $80,000. He owed no debts, and did not
become indebted until after he engaged in business with Byington in 1920. So a motive to
place his property beyond the reach of existing creditors cannot be charged against the bona
fides of the gift transactions. Moreover, there is no evidence tending to show that creditors
could be reasonably apprehended. A plausible reason for giving the money to his wife is
assigned, namely, the desire to make further provision for his wife and two daughters above
what Steve was able, on account of his business, to provide in life insurance. He testified:
The best I could get was $5,000 on account of being in the liquor business.
It is true we have repeatedly held that the evidence necessary to show a transmutation of
community property into separate property must be of a clear and convincing character, but
the evidence of the respondents in this case appears to us to be of that force. There is nothing
in our law, nor can any sound reason be assigned, why the testimony of a husband and wife
may not have that probative effect. While it must be conceded that such testimony is of a
character easily to be fabricated, yet in the absence of something tangible to impute to it
suspicion, it cannot be deemed unreliable on the former account alone.
52 Nev. 178, 184 (1930) Bank v. Milisich
tangible to impute to it suspicion, it cannot be deemed unreliable on the former account alone.
The facility with which fraud may be consummated under pretense of gifts between husband
and wife is merely to be kept in mind in weighing the evidence bearing on such an issue.
2. But it is not entirely accurate to say that the testimony of respondents stands alone in
support of the gift transactions. That is true as to the intent to give. However, their testimony
is corroborated by the several savings bank accounts introduced in evidence, in showing such
delivery as placed the moneys under her exclusive dominion and control, an essential element
of a gift inter vivos. 28 C.J. p. 630 et seq.; Simpson v. Harris, 21 Nev. 353, 31 P. 1009.
There is nothing in the cases of Laws v. Ross, 44 Nev. 405, 194 P. 465; Barrett v. Franke,
46 Nev. 170, 208 P. 435, or Milisich v. Hillhouse, 48 Nev. 166, 228 P. 307, opposed to the
views we have expressed. In the latter case we stated that the plaintiff could not overthrow
the presumption that the car in question was community property by the mere naked
statement that the car was a gift; nor that the money and the car, which were given as
consideration for the car in question, were gifts, but it was necessary to present facts from
which the conclusion could be reached that they were not community property. In this case
there is something more than a bare statement of such a conclusion. The manner of making
the various gifts, the time in a general way, as well as the reason for making them, were
detailed in the testimony of the respondents, which testimony was supplemented by the
several savings bank accounts.
In Laws v. Ross it was pointed out by the court that the evidence fell far short of that
required by the rule to show an intention to transmute community into separate property. In
Barrett v. Franke we said that the opinion of either spouse as to whether property is separate
or community is of no weight in determining its character in these respects. This is true; but
in this case the conclusion as to the separate character of the moneys mentioned does not
rest on the opinions of the respondents, but on the facts which we believe were of
sufficient weight to justify the judgment of the court.
52 Nev. 178, 185 (1930) Bank v. Milisich
case the conclusion as to the separate character of the moneys mentioned does not rest on the
opinions of the respondents, but on the facts which we believe were of sufficient weight to
justify the judgment of the court.
The Washington case, Jones v. Duke, 151 Wash. 108, 275 P. 72, as well as the case cited
therein, Abbott v. Whetherby, 6 Wash. 507, 33 P. 1070, 36 Am. St. Rep. 176, are easily to be
distinguished on the facts from the case at bar. In both of these Washington cases the wives
saved money out of the money given to them for household expenses, and the property in
question was purchased with funds thus saved; but in neither of the cases was there any
testimony, as there is in the instant case, that such surplus was given to the wife. In the case
of Abbott v. Whetherby, the only testimony on the point was given by the wife. When asked
how she obtained the money which she claimed to have paid for the land, she replied: I
obtained it this way: He would give me money for the house, and whatever was over was
mine. He gave me money to purchase things. I used to spend part of what he gave me, and
then the rest of it was mine; and, doing that, I very soon accumulated money. The simple
fact in that case is that the wife, because she had saved the money given her by her husband to
run the house, regarded her savings as separate property.
3. In the case before us, as previously pointed out, both respondents testified that it was
the understanding that the excess of money, over what was turned over to the wife for
household expenses during the current month, should become her separate property. Gifts
from husband to wife may be made in this way. Kelley v. Kelley (Sup.), 164 N.Y.S. 172.
The contention that the assignment of the O'Sullivan notes and mortgages against
appellant is void, because made with intent to defraud, was also resolved against appellant by
the finding of the court. The court found that the answers of the jury that Thora paid Steve a
valuable consideration of $8,000 or more for the assignment, and that the same was not made
for the purpose of defrauding appellant, or any other of Steve's creditors, were supported
by the evidence.
52 Nev. 178, 186 (1930) Bank v. Milisich
of defrauding appellant, or any other of Steve's creditors, were supported by the evidence.
Appellant contends that, under all the circumstances bearing upon the assignment, the
burden of proof was on the respondents to show that it was an honest transaction and for a
valuable consideration. Be that as it may, we are of the opinion that the evidence was
sufficient to justify the court in finding as it did on these questions.
We have examined the other contentions made by appellant, and find them untenable. The
judgment should be affirmed.
It is so ordered.
Coleman, J. (concurring):
In concur in the affirmance of the judgment and order appealed from, but with great
reluctance. As an individual I believe the judgment is wrong, so far as the weight of the
evidence is concerned, but as an official I cannot justify that view, the jury and trial court
having passed upon its sufficiency.
Steve Milisich testified that during the time he was running the Buffet he cleared about
$80,000, of which he gave his wife between $35,000 and $40,000, yet within a few months
after he quit that business his wife was paying the household expenses and advancing money
to him. In this situation the natural question is: Did he clear $80,000, as claimed, and, if not,
what was the real motive in placing a large portion of his property in his wife's name?
Sanders, J. (dissenting):
My earnest study of this voluminous record, devoted largely to a transcription of the
testimony of defendants and respondents, and my tentative drafts of several preliminary
opinions for approval by the judges in conference, is labor lost.
The case was before us at an earlier stage upon appeal from a decree granting plaintiff the
relief prayed. S. & R. Bank v. Milisich, 48 Nev. 373, 233 P. 41. It is now before us upon
appeal from a decree denying plaintiff the relief prayed.
52 Nev. 178, 187 (1930) Bank v. Milisich
is now before us upon appeal from a decree denying plaintiff the relief prayed. The reversed
position of the parties, upon this appeal, may be accounted for by the fact that the judge, who
presided upon the former trial, without the assistance of a jury, was influenced to recede from
his former decision by the findings of a jury, impaneled in this case as advisory to the court,
all in favor of the defendants.
The case for clearness may be divided into two parts. Part 1 concerns the dealings between
the spouses with respect to their common property, when the husband was engaged in a
mercantile business under the trade name Grand Buffet, from the time of their marriage, in
1907, up to July, 1919, during which time the wife attended to the duties of the home and had
no opportunity for obtaining money, except from her husband. Part 2 concerns the dealings
between the spouses with respect to their common property, when the husband was engaged
in a mercantile business under the tradename Silver Pheasant, or corporate name Nevada
Confectionery Company, from January 1, 1920, up to May 15, 1921, when and on which
date the company was placed in the hands of a receiver upon the complaint or petition of its
general creditors. Part 1 contains the story of the acquisition of the securities in controversy;
part 2 the story of their assignment, made the subject of this suit.
The indebtedness of the defendant husband to the plaintiff bank, and for which
indebtedness plaintiff recovered judgment against the husband for $7,300, accrued while he
was engaged in said confectionery business. While so indebted to plaintiff and others in an
amount of about $25,000, Steve Milisich, the husband, on, to wit, July 13, 1920, assigned and
transferred to his wife, Thora Milisich, all his right, title, and interest in the O'Sullivan notes
and mortgages, the only property in controversy, for the stated consideration of $10, love
and affection.
Upon the trial the plaintiff contended, and now insists, that the O'Sullivan notes and
mortgages are community property; that their assignment from the husband to the wife
was entirely voluntary, and made for the purpose of hindering, delaying, and defrauding
the creditors of the husband, including the plaintiff.
52 Nev. 178, 188 (1930) Bank v. Milisich
property; that their assignment from the husband to the wife was entirely voluntary, and made
for the purpose of hindering, delaying, and defrauding the creditors of the husband, including
the plaintiff. On the other hand, the husband and wife contended, and now insist, that the
assignment of said securities was made in good faith and for the valuable consideration of
approximately $10,000 of the wife's moneysher separate propertyacquired by her
through a system or plan adopted by the husband while conducting the Grand Buffet,
whereby he, from the time of their marriage, in 1907, and up to November, 1918, gave his
wife out of the profits of the business as they accrued sundry and divers sums of money as her
separate property, aggregating between $35,000 and $40,000.
Whether the moneys thus set apart to the wife by the husband from the profits of his
community business as they accrued were gifts, intended as gifts, and understood to be gifts,
and, in contemplation of law, her separate estate, is not a material question. We are called
upon to deal with the question of whether as against the claims of existing creditors of the
husband, the assignment of the O'Sullivan notes and mortgages, the only property in
controversy, was fraudulent.
The testimony of the husband and wife, when studied in the light of the circumstances,
fails to establish, with that convincing force the law requires, to transmute community
property into separate property. According to her own testimony, the wife took from her
savings accounts, which constituted all of her gift moneys, and gave sundry and divers sums
therefrom to her husband while he was engaged in the confectionery business. Her counsel
insist that the record shows that, prior and subsequent to the date of the assignment, the
husband received from his wife as much as $9,789, which moneys were used by the husband
in his confectionery business. There is nothing in the record to show that the wife, in her
dealings with her husband while engaged in the confectionery business, dealt with him at
arm's length or as a creditor.
52 Nev. 178, 189 (1930) Bank v. Milisich
him at arm's length or as a creditor. The confectionery business was as much a community
business as the husband's prior so-called liquor business.
The proof shows that at the time of the assignment, aside from his interest in the
O'Sullivan notes and mortgages, the husband had no property, other than his stock interest
in the Nevada Confectionery Company, which had no market value. While engaged in the
confectionery business, the wife gave her husband, from her savings account, prior and
subsequent to the assignment of the O'Sullivan notes and mortgages, approximately $9,789 in
sundry and divers amounts, when required by him in his business and to meet his individual
obligations. From the time the husband went out of business in July, 1919, the wife supported
the family from her savings, and the husband contributed nothing to their support. The wife
was in no sense a business woman. She was at all times under the influence of her husband.
The proof shows that, when the husband was engaged in the confectionery business, the
frequency with which he called upon her for money for his business and individual needs
brought from her a protest that he would take from her all the money she had saved. Where
property, which has been given by the husband, originally belonged to the communityas is
the case herea later donation by the wife to the husband restores it to that status. Cousin v.
St. Tammany Bank, 146 La. 393, 83 So. 685.
The court below did not find that the relationship of debtor and creditor existed between
the spouses when the husband was engaged in the confectionery business, but did find that
the moneys paid for the purchase of the husband's interest in the securities were gift
moneysthe wife's separate property. What was his interest? In two of its findings of fact the
court found that $7,000 of the $14,000 note was money advanced by the wife from her
savings, and that $7,000 was community funds; that $1,000 of the $5,000 note was advanced
from the wife's savings, and the balance of $4,000 was a gift from the husband to the wife;
and that the note for $5,000 was inadvertently made payable to the husband and wife.
52 Nev. 178, 190 (1930) Bank v. Milisich
the husband to the wife; and that the note for $5,000 was inadvertently made payable to the
husband and wife. In a subsequent finding of fact it was found, in short, that the wife paid
$8,000, or more, as consideration for the assignment to her of the securities. If this be so, the
wife is placed in the questionable position of having paid for the assignment as much as
$9,789 for her husband's equity in one-half of the $14,000 note. This is significant.
I am satisfied, as the trial court upon the former hearing of the case was convinced, that the
assignment of the O'Sullivan notes and mortgages, under the circumstances, was made to
make themselves safe, and to prevent the securities from being taken from them for the
husband's present and future indebtedness, incurred by the Nevada Confectionery Company,
which became insolvent within a year after the Silver Pheasant was open for business in
June, 1920.
I shall not debate with my associates the question of whether the testimony of the
defendants established the fact of gifts by the husband to the wife of community funds while
he was engaged in the liquor business, but in this connection I may say that, as I view their
testimony, the setting apart by the husband to the wife, of a portion of the profits of his
community business, as they from time to time accrued, was just as consistent with the theory
that they were placed in the wife's hands for safe-keeping, or for their joint benefit, or for the
benefit of the wife and children, in case they survived the donor, as with the theory that they
were gifts. It is well settled that the intention of the donor to make a gift inter vivos must not
only be clear and unmistakable, but the intention must be inconsistent with any other theory.
28 C.J. 627.
I am clearly of the opinion that the court erred in dismissing the action against the
defendant husband. The testimony of the defendants, when studied in the light of the
circumstances disclosed by this record, convinces me that the fraud in the assignment from
the husband to the wife of the securities in controversy is so palpable and plain that to
uphold the judgment would be against law and justice.
52 Nev. 178, 191 (1930) Bank v. Milisich
the husband to the wife of the securities in controversy is so palpable and plain that to uphold
the judgment would be against law and justice. Entertaining these views, I dissent from the
opinion of the majority, with the hope that it will strengthen, rather than weaken, as an
authority, the question decided.
____________
52 Nev. 191, 191 (1930) Gerlach Live Stock Co. v. Laxalt
GERLACH LIVE STOCK CO. Et Al. v. LAXALT
No. 2792
February 5, 1930. 284 P. 310.
1. TrespassIn Action for Willful Trespass, Exemplary Damages May Be Allowed in
Addition to Compensation.
In action for willfull trespass, exemplary damages may be allowed for purposes of example and
punishment, in addition to compensation.
2. AnimalsWhere Defendant's Sheep Trespassed on Plaintiffs' Land, Driving Plaintiffs'
Cattle from Lands, Value of Hay Fed to Cattle Constituted Special Damages,
Required To Be Pleaded.
Where defendant's sheep trespassed on plaintiffs' land, and drove plaintiffs' cattle from land, so that it
was necessary to feed cattle hay, value of hay constituted special damages, required to be pleaded for
recovery in action of trespass; special damages being those which are actual, but not necessary,
consequences of act complained of.
3. AnimalsWhere Defendant's Sheep Trespassed on Plaintiffs' Land Driving Cattle Off
Land, Value of Hay Fed Cattle, Not Being Pleaded, Was Inadmissible, in Action of
Trespass.
Where defendant's sheep trespassed on plaintiffs' land, and drove cattle off land, making it necessary
for plaintiffs to feed cattle hay, evidence of value of hay fed to cattle was inadmissible, in action for
trespass, because it constituted special damages, which were not pleaded.
4. AnimalsEvidence of Value of Hay Fed Plaintiff's Cattle Could Not Be Used as Basis of
Finding of Value of Pasturage Destroyed by Defendant's Sheep.
Evidence of value of hay fed plaintiff's cattle could not be used as basis of finding of value of
pasturage destroyed and consumed by defendant's sheep, trespassing on plaintiffs' land
5. TrespassWhere Failure to Recover Actual Damages Is Due to Defect in Pleadings, or
Verdict, Exemplary Damages May Be Recovered.
Where failure to recover actual damages for trespass is due solely to defect in pleadings, or in verdict,
exemplary damages may be recovered.
52 Nev. 191, 192 (1930) Gerlach Live Stock Co. v. Laxalt
6. AnimalsWhere Proof Showed Herders of Defendant's Sheep, Over Repeated Protests of
Plaintiffs' Agents, Continued to Herd Sheep on Plaintiffs' Land, Plaintiffs Were Entitled
to Exemplary Damages.
Where proof showed that defendant's herders, in charge of defendant's sheep, over repeated protests
of plaintiffs' agent or superintendent, continued to herd sheep on plaintiffs' land, and that at time of
trespass plaintiffs' agent notified defendant's herders that sheep were being herded and grazed on
plaintiffs' land, and that he ordered parties in charge of sheep to remove them, and they refused to do so
and continued to depasture land, trespasses were willfully and wantonly committed, and plaintiffs were
entitled to recover exemplary damages.
C.J.-CYC. REFERENCES
Animals3 C.J. sec. 473, p. 149, n. 62; sec. 476, p. 149, n. 69, 70.
Damages17 C.J. sec. 270, p. 974, n. 26.
Trespass38 Cyc. p. 1143, n. 26.
Appeal from Second Judicial District Court, Washoe County; Geo. A. Bartlett, Judge.
Action by Gerlach Live Stock Company and another, copartners associated under the firm
name and style of Gerlach & Waltz, against Peter Laxalt. From a judgment for plaintiffs, and
from an order denying and overruling a motion for a new trial, defendant appeals. Affirmed
conditionally. (Ducker, C.J., dissenting.)
Wm. M. Kearney, for Appellant:
The pleadings in this case are framed for general damages only, cause by alleged
depasturing of land. What was said by this court in Pyramid L. & L.S. Co. v. Pierce, 30 Nev.
237, with relation to special damages is applicable here. In that case and in Jensen v. Pradere,
30 Nev. 466, the court fixed the method of establishing damages as the reasonable value of
the lands for pasture purposes. See, also, Risse et ux. v. Collins et al., 87 P. 1006.
On the question of the necessity of alleging special damages we find the rule laid down in
17 C.J. at pp. 1002-4. Perhaps no other rule is supported by a greater line of authority.
Compare the complaint in this action with the decision of the lower court, wherein he
clearly bases his decision upon matters which are purely the subject of special
allegations.
52 Nev. 191, 193 (1930) Gerlach Live Stock Co. v. Laxalt
this action with the decision of the lower court, wherein he clearly bases his decision upon
matters which are purely the subject of special allegations. The proper measure of damages in
cases for destruction of pasture, grass or hay is well settled. In a multitude of cases it has been
held to be the value of such crop at the time and place of destruction. Cleary v. Shand, 161 P.
453; Pacific Livestock Co. v. Murray (Ore.), 76 P. 1079; Candler v. Washoe Lake & Galena
Creek Co., 28 Nev. 151; Watt v. Nevada Central R.R. Co., 23 Nev. 154; Malmstrom v.
Peoples Ditch Co., 32 Nev. 261; Brockbank v. Reorganized Silver King Divide Min. Co.
(Nev.), 237 P. 379; Missouri, etc. R. Co. v. Couch (Tex.), 122 S.W. 67.
In order that there may be a recovery of exemplary damages, there must be present in the
circumstances some element of malice, fraud, or gross negligence. Scott v. Donald, 165 U.S.
58, 41 L. Ed. 632; The Amiable Nancy, 4 L. Ed. 456.
Where an injury to property is involved in an action exemplary damages will not ordinarily
be allowed. There must be the aggravated elements of malice, fraud, or gross negligence in
such a degree that the party injured cannot be adequately compensated for the insult, so to
speak. West Chicago, etc. R. Co. v. Morrison, 43 N.E. 393; Valtz v. Blackmar, 64 N.Y. 440.
A number of cases hold that exemplary damages are not recoverable where the injuries
complained of are connected with real property.
There must be a purpose or intent to oppress another before exemplary damages can be
awarded. Inman v. Ball, 22 N.W. 666.
Defendant Laxalt was not present at any time when trespass is claimed, and cannot be held
responsible in exemplary damages. Lake Shore R. Co. v. Prentice, 147 U.S. 101, 37 L. Ed.
97; Western Union v. Cashman, 132 Fed. 805; Palo Alto Bank v. Pac. Postal Tel. Co., 103
Fed. 841; Constantine v. Rowland, 124 N.W. 189; Craven v. Bloomingdale, 64 N.E. 169.
52 Nev. 191, 194 (1930) Gerlach Live Stock Co. v. Laxalt
John S. Sinai, for Respondents:
There is plenty of testimony in this case to support a judgment of $1,800 general damages.
A correct judgment, based upon erroneous reasoning, will not be reversed, Scott v. Haines, 4
Nev. 862; Thomas v. Sullivan, 13 Nev. 242. A judgment will not be reversed where there is
substantial evidence to support it. Jensen v. Pradere, 39 Nev. 466.
Even if the lower court did rely upon the alleged special damage evidence in computing the
amount, and this amount approximated the same amount to be obtained from the testimony
given in the general damage evidence, then there would be no ground for reversal.
Justice demands that exemplary damages be imposed upon the malicious and wanton one
who disregards the rights of his fellowmen. Forrester v. S.P. Co., 36 Nev. 284 Vest v. Allen,
30 Ill. 30, 81 Am. Dec. 338; 38 Cyc. 1145-1146. Even the isolated case cited by counsel, The
Amiable Nancy, 4 Law. Ed. 456, supports the theory of exemplary damages where there has
been malicious and wanton disregard of the rights of others.
The evidence is conclusive that the defendant not only was conversant with the country
into which he had sent his sheep, but that he had a map of it which he carried with him, and
that his employees and agents were defiant of the rights of others, and so expressed
themselves forcibly.
OPINION
By the Court, Sanders, J.:
Plaintiffs, respondents herein, sued defendant appellant to recover both actual and
exemplary damages for alleged trespasses by defendant's sheep upon certain uninclosed
quarter sections of mountain lands in townships 36 and 37, according to government survey,
in Washoe County, in the rightful possession of plaintiffs and used as a range for the grazing
of plaintiffs' cattle during the grazing season of the year 1924.
52 Nev. 191, 195 (1930) Gerlach Live Stock Co. v. Laxalt
during the grazing season of the year 1924. The action was tried to the court, a jury being
waived by stipulation. Plaintiffs had judgment for $1,800 actual damages and for $1,000
exemplary damages. The defendant appeals from the judgment, and from an order denying
and overruling his motion for a new trial.
The complaint places the legal title to the trespassed area in the Gerlach Live Stock
Company, a corporation, and places the right of possession and the possession thereof in
plaintiffs under a partnership agreement between the Gerlach Live Stock Company and
Edward P. Waltz, as copartners engaged in the livestock business. The complaint, as one
cause of action, complains of 12 complete and distinct acts of trespass, occurring on and
between October 15, 1924, and November 28, 1924. The damages claimed are alleged to
have been occasioned by the willful, malicious, wrongful, and unlawful herding and grazing
of 4,400 head of sheep, divided into two bands, of 2,200 each, upon the lands in question,
whereby the grasses, herbage, and browse growing thereon and the waters flowing thereon
were destroyed and polluted, and that by reason of defendant's trespasses plaintiffs' cattle
were driven off their accustomed range onto lands whereon there was but little or no water,
and but little and inferior pasturage, and that as a result plaintiffs' cattle became emaciated,
poor, and deteriorated in value, to the plaintiffs' injury and damage.
The complaint also alleges that, at the time of each act of trespass, plaintiffs' representative
and employee notified the defendant's herders in charge of the sheep that they were being
herded and grazed upon plaintiffs' lands, and ordered the herders to drive the sheep therefrom
and to cease depasturing the same and polluting the waters thereon. It is alleged that the
herders refused to remove the sheep and continued to depasture the land. It is also alleged that
during the month of November, 1924, plaintiff Edward P. Waltz informed the defendant
personally that his sheep were being herded upon plaintiffs' lands, and that the defendant
promised to remove the sheep, which promise he failed to keep.
52 Nev. 191, 196 (1930) Gerlach Live Stock Co. v. Laxalt
promised to remove the sheep, which promise he failed to keep. Plaintiffs demanded
judgment for general damages in the sum of $2,500, and exemplary damages for the sum of
$5,000.
The above and other allegations of the complaint were denied by the answer of the
defendant, and for further defense the defendant alleged that he had no knowledge of the
trespasses complained of, and that in November, 1924, the plaintiff Waltz represented to him
that he was damaged in the sum of $250, and that the defendant said to the plaintiff Waltz
that, when he became satisfied that the sheep were being herded and grazed upon plaintiffs'
land, he would pay him the sum of $250, as demanded, in order to avoid litigation.
After an extended trial the court rendered its decision in writing, in which it was directed
that plaintiff have judgment against the defendant for the sum of $1,800 actual damages and
for the sum of $1,000 exemplary damages, and denied the defendant a new trial. Defendant
appellant makes numerous assignments of error, which we shall consider in the following
groups: First, the admission of evidence which defendant claims shows special damages, the
same not having been pleaded; second, the insufficiency of the evidence to support the
judgment.
A number of statutes, both early and late, exist in this state, which purport to regulate the
driving, herding, and grazing of live stock, particularly sheep, upon the lands and possessory
claims of other persons. These statutes make the owner or agent of the owner violating the
provisions of the acts liable for damages, and in one instance liable for actual and exemplary
damages. Stats. 1917, p. 124, c. 81. The plaintiffs in this case, however, do not seek to
recover damages for the violation of any statute, but seem to predicate their cause of action
upon the common-law principle that, where there is a willful trespass, the trespasser will be
liable for compensation, as damages, for all loss actually sustained as a direct result of the
trespass, and, if the trespass is committed willfully, wantonly, or maliciously, exemplary
damages may be recovered.
52 Nev. 191, 197 (1930) Gerlach Live Stock Co. v. Laxalt
or maliciously, exemplary damages may be recovered. 3 C.J. 149.
1. In this, as in any other case of tort, exemplary damages may be allowed for the purpose
of example and punishment, in addition to the compensation. 1 Sutherland on Damages, 721,
722. It is clear from the allegations of the complaint in this case that the defendant, on the
dates specified therein, herded and grazed his sheep upon plaintiffs' lands, whereby the
grasses, herbage, and browse growing thereon were eaten up and destroyed by the defendant's
sheep, and, as a direct result of the destruction of the grasses, herbage, and browse, plaintiffs'
cattle were driven off their range onto lands where there was no water, or but little water, and
but little pasture of inferior quality, whereby the cattle, thus deprived of the pasturage which
they would have consumed, became emaciated, poor, and deteriorated in value, to plaintiffs'
injury and damage.
The record discloses that the trespassed area consisted of about 960 acres of uninclosed,
disconnected tracts of mountain land, scattered through a much larger area of public lands of
the United States, in townships 36 and 37, and uninclosed privately owned lands of others,
upon which public lands plaintiffs' and defendant's cattle and sheep, in common with those of
other persons, had the legal privilege to pasture and graze, and it appears from the evidence
that persons other than the defendant herded and grazed their cattle and sheep upon the area
in question during the grazing season of 1924.
At the time of the acts complained of the defendant was a resident of California, engaged
in the sheep industry, and herded and grazed his sheep upon the public domain surrounding
the trespassed area in Washoe County, Nevada. It appears that the plaintiffs and others owned
extensive tracts of cultivated land situated some miles distant and below the upper or
mountain land. It appears to have been the habit of plaintiffs to turn loose their cattle at their
so-called ranches at the beginning of the grazing season, knowing and expecting, from the
situation and character of the country and the habits of cattle, that they would drift and
range toward the upper or mountain lands, and would graze upon the area in question,
including the lands of plaintiffs, whereon there was water which had its source in springs
situated in the several canyons on plaintiffs' land, which springs, the evidence tends to
show, was the only source of supply of water available to the live stock of plaintiffs and
others privileged to graze their live stock upon the area in question.
52 Nev. 191, 198 (1930) Gerlach Live Stock Co. v. Laxalt
habits of cattle, that they would drift and range toward the upper or mountain lands, and
would graze upon the area in question, including the lands of plaintiffs, whereon there was
water which had its source in springs situated in the several canyons on plaintiffs' land, which
springs, the evidence tends to show, was the only source of supply of water available to the
live stock of plaintiffs and others privileged to graze their live stock upon the area in
question.
It appears that the grazing season for the year 1924 extended from early spring until on or
about the 1st of October. It also appears that on October 15, 1924, plaintiffs' manager or
foreman, one William Parsons, discovered a band of sheep, in charge of defendant's herders,
on what he considered to be plaintiffs' land, at or near one of the springs of plaintiffs. Parsons
testified that he informed the herder and camp tender in charge of the sheep that they were
being herded upon plaintiffs' land, and ordered them to remove the sheep therefrom, which
they refused to do. He also testified that at the time an altercation arose between him and the
herder, in which the herder threatened his life and assaulted him with rocks, but there was no
battery. Upon the trial one of this herder's companions, when asked the question where the
herder was who made the assault, replied that he was in the crazy house. The men in charge
of the sheep were illiterate foreigners, and the herder who committed the assault shortly
thereafter became demented and was confined in an asylum.
Within a few days thereafter Parsons returned to the scene and again ordered the herder to
remove the sheep, which he refused to do. And thereafter he notified the herder in charge of
the other band of sheep that they were being herded upon plaintiffs' land, and ordered him to
remove the sheep, which he refused to do. The proof also shows that in November, 1924,
plaintiff Waltz orally told the defendant, at the town of Gerlach, in Washoe County, of the
acts of trespass committed and continued to be committed upon plaintiffs' lands by his
herders, and that the defendant promised to remove the sheep, which he did not do.
52 Nev. 191, 199 (1930) Gerlach Live Stock Co. v. Laxalt
plaintiffs' lands by his herders, and that the defendant promised to remove the sheep, which
he did not do.
It appears that at the time of the alleged trespasses plaintiffs had prior thereto turned loose
about 700 head of cattle from their ranches to drift and graze upon the area in question during
the grazing season of 1924. It is conceded that the grazing season that year was extremely dry,
but according to the evidence of plaintiffs there was sufficient pasturage upon the area in
question to sustain plaintiffs' cattle for a period of about 60 days. According to the testimony
of the witness Parsons, 500 head of plaintiffs' cattle drifted and ranged back toward one of
plaintiffs' ranches, called the Bear ranch. He also testified that they arrived at the ranch in a
poor and weakened condition, and to sustain them it became necessary to turn the cattle upon
the hay fields, where they were kept for about 30 days, and that when they had depastured the
fields they were fed hay for a period of about 30 days.
The testimony of Parsons and the other witnesses in the case on behalf of plaintiffs, as well
as defendant, took a very wide range. The record discloses that the parties were given by the
trial judge almost unlimited latitude in the introduction of evidence. In fairness to the trial
court, it is proper that we quote a portion of his decision upon the merits of the case, bearing
upon the question of actual damages. It reads as follows:
The only question the court has found difficulty in determining is the usual one of just
what the actual damage has amounted to; and after considering all of the testimony
thoughtfully, the court believes that the testimony of Parsons comes closer to fixing this
damage than that of the other witnesses, although there is not a great deal of difference in the
amount when all of the testimony is considered. Parsons testified that 500 head of cattle
grazed upon the area trespassed upon by defendant's sheep, the cattle, of course, having been
driven therefrom; that it was necessary to feed the 500 head of cattle from 10 to 12 pounds of
hay per day each, and that hay was at the time worth from $12 to $14 per ton.
52 Nev. 191, 200 (1930) Gerlach Live Stock Co. v. Laxalt
each, and that hay was at the time worth from $12 to $14 per ton. This would fix the actual
damage at approximately $1,800, which was at the expense of plaintiffs, and necessarily
incurred by reason of the trespasses alleged.
The record discloses that upon the trial of the case counsel for defendant objected
continuously to the introduction of any testimony upon the question of the price and amount
of hay fed plaintiffs' cattle, upon the ground that it was not within the issues, and that the
market value of the hay constituted special damages, and, not having been pleaded, the
testimony of the witness Parsons and others, made the basis of the court's estimate of actual
damages, was inadmissible and prejudicial.
2. We are in accord with the contention that the value of the hay constituted special
damages. Special, as distinguished from general, damages are those which are the actual, but
not the necessary, consequence of the act complained of. Brockbank v. Mining Co., 49 Nev.
80, 237 P. 377; 17 C.J. 715. It will be observed from the complaint that it is alleged, in
substance, that, as the result of the alleged trespasses by the defendant's sheep on plaintiffs'
land, the grass, herbage, and browse thereon was consumed and destroyed, and the waters
flowing thereon were polluted, and that, by reason thereof, plaintiffs' cattle were driven off
their accustomed range onto land where there was but little or no water, and where there was
pasture of inferior quality, whereby plaintiffs' cattle became emaciated, poor, and decreased
in value, to plaintiffs' injury and damages. There is nothing in this allegation of the complaint
to apprise defendant that, by reason of plaintiffs' cattle being driven off the land onto other
land, where there was little or no water and pasture of inferior quality, it was necessary to
feed them hay to sustain them.
3. We are of opinion that the amount and market value of the hay, upon which the court
measured the plaintiffs' actual damages, constituted special damages, and, not having been
pleaded, the evidence of the value of the hay was inadmissible and prejudicial. Pyramid Land
& Stock Co. v.
52 Nev. 191, 201 (1930) Gerlach Live Stock Co. v. Laxalt
Land & Stock Co. v. Pierce, 30 Nev. 237, 95 P. 210; Lessman v. Anschustigui, 37 Idaho, 127,
215 P. 460.
4. It is insisted in argument that, even though the court was in error in deciding and
holding that the market value of the hay fed plaintiffs' 500 head of cattle was a legitimate
measure by which plaintiffs' actual damages could be estimated, nevertheless there was
sufficient evidence to support the finding that the $1,800 was the value of the grass, herbage,
and browse consumed and destroyed by the defendant's sheep. The conclusive answer to this
contention is that the evidence of the value of the hay, upon which the finding mentioned
could only have been predicated, does not show the value of the pasturage destroy and
consumed by the defendant's sheep. Boggs v. Seawell, 35 Idaho, 132, 205 P. 262.
5, 6. It does not follow that, because of our opinion that the evidence as to the amount and
market value of the hay constituted special damages and, not having been specially pleaded,
was inadmissible and prejudicial, plaintiffs, under the circumstances, are not entitled to
recover exemplary damages. Where the failure to recover actual damages is due solely to
defect in the pleadings, or in the verdict, exemplary damages may be recovered. Favorite v.
Cottrill, 62 Mo. App. 119; Courtney v. Kneib, 131 Mo. App. 204, 110 S.W. 665. The proof
shows that the defendant's herders and camp tenders in charge of the defendant's sheep, over
the repeated protests of plaintiffs' agent or superintendent, continued to herd the sheep upon
plaintiffs' land; that at the time of the trespasses complained of the plaintiffs' agent or
superintendent notified the defendant's herders and camp tenders that the sheep were being
herded and grazed upon plaintiffs' land; that he ordered the parties in charge of the sheep to
remove the sheep, and they refused to do so, and continued, after said protests and orders, to
depasture the land. Under these circumstances, the trespasses were willfully and wantonly
committed. Consequently plaintiffs are entitled to recover exemplary damages.
52 Nev. 191, 202 (1930) Gerlach Live Stock Co. v. Laxalt
Cosgriff v. Miller, 10 Wyo. 190, 68 P. 206, 98 Am. St. Rep. 977; 1 Sedgwick on Damages
(9th ed.), sec. 363; 3 C.J. 149.
Upon consideration of all of the testimony, it is ordered that, in case plaintiffs file with the
clerk of the court below, within 15 days after receipt of copy hereof, a written statement to the
effect that the judgment appealed from be modified, so as to strike out that portion of the
judgment awarding plaintiffs $1,800 as actual damages, the judgment be affirmed. And, on
failure so to do, it is ordered that the judgment be reversed in all things, with costs.
Coleman, J.: I concur.
Ducker, C.J., dissenting:
I am of the opinion that the judgment should be affirmed in all respects, and therefore
dissent from the foregoing order.
____________
52 Nev. 202, 202 (1930) Camino Et Al. v. Lewis
CAMINO Et Al. v. LEWIS, Justice of the Peace
No. 2885
February 17, 1930. 284 P. 766.
1. Justices of the PeaceObjection for Want of Jurisdiction Over Subject Matter Can Be
Raised Only by Demurrer or Answer and Not by Motion.
Objection for want of jurisdiction of justice of the peace over subject matter can only be raised by
demurrer or answer in accordance with practice prescribed by civil practice act, sec. 793 (Rev. Laws, sec.
5736), and not by motion.
2. Justices of the PeaceJustice Court Did Not Exceed Jurisdiction in Entering Default for
Failure to Answer, Regardless of Motion to Dismiss for Lack of Jurisdiction.
Where defendant, served with summons pursuant to complaint in justice court, did not answer, but
filed a document styled as motion to dismiss for want of jurisdiction, the court did not exceed its
jurisdiction in entering default for failure to answer within time prescribe by law.
3. Justices of the PeacePowers Conferred on Justice Court by Statute Must Be Strictly
Pursued.
Justice courts have peculiar and limited jurisdiction, and power conferred upon them by statute must
be strictly pursued.
52 Nev. 202, 203 (1930) Camino Et Al. v. Lewis
4. Justices of the PeaceDefault Did Not Establish Amount of Damages, which Must Be
Assessed Under Statute.
Default of defendants, served with summons pursuant to complaint filed in justice court, though
establishing plaintiff's right of action for damages, did not establish the amount of damages, which must
be ascertained and assessed upon lawful evidence in accordance with civil practive act, sec. 812 (Rev.
Laws, sec. 5754), before court is authorized to render judgment.
5. Justices of the PeaceDefault Judgment in Justice Court, Without Proof of Amount of
Damages, Was in Excess of Jurisdiction as to Certiorari.
Judgment of justice court on default of defendants, without any proof of amount of damages was, as
respected right to certiorari, in excess of jurisdiction, since damages, under civil practice act, sec. 812
(Rev. Laws, sec. 5754), must be ascertained and assessed upon lawful evidence before court is authorized
to render judgment.
C.J.-CYC. REFERENCES
Justices of the Peace35 C.J. sec. 57, p. 488, n. 27; sec. 236, p. 625, n. 12; sec. 291, p. 662, n. 25; sec. 622,
p. 862, n. 40.
Original certiorari by Mike Camino and another against F.C. Lewis, Justice of the Peace in
and for Eureka Township, Eureka County. Judgment of the justice annulled.
Howard E. Browne, for Relators:
Respondent never required jurisdiction either over the defendants nor the subject matter of
the action. Our statutes specifically cover the venue or place of trial of actions before justices
of the peace. Sec. 5715, Rev. Laws, 1912. There is no allegation in the complaint that
defendants reside in Eureka township, nor any allegation as to where defendants reside, nor is
there any allegation that the land on which defendants' sheep are alleged to have trespassed is
in Eureka township. The complaint totally fails to allege sufficient facts to give the justice's
court of Eureka township jurisdiction to try the cause of action. The return on the summons
does not supply or remedy the defects of the complaint; it shows the same to have been
served on defendant Camino at Austin, Lander County. From the earliest decisions of this
honorable court it has been stated as the rule of law that nothing is presumed in favor of the
jurisdiction of inferior courts, and that it must appear from what is set forth in the record
that the court had jurisdiction.
52 Nev. 202, 204 (1930) Camino Et Al. v. Lewis
favor of the jurisdiction of inferior courts, and that it must appear from what is set forth in
the record that the court had jurisdiction. Mallett v. Uncle Sam Mining Co., 1-2 Nev. 156, at
162-163; McDonald v. Prescott & Clark, 1-2 Nev. at 630; Little v. Currie, 5 Nev. 90; Roy v.
Whitford, 9 Nev. 370; Victor Mill & Mining Co. v. J. Ct. Township 18, Esmeralda Co., 18
Nev. 21, at 23; Wong Kee v. Lillis, 37 Nev. 5; State ex rel. Abel v. Breen, 41 Nev. 516; State
ex rel. Jones v. Conner, 43 Nev. 95; State ex rel. Martin v. Justice Court, 44 Nev. 140; State
ex rel. Thatcher v. Justice Court, 46 Nev. 133; Ex Rel. Levy & Zentner Co. v. Justice Court,
48 Nev. 425.
Respondent erred in entering default and judgment subsequent to the filing of defendants'
special appearance and motion, instead of certifying the action to the district court because of
questions of boundaries to land being involved. Sec. 8, art. VI, Constitution of Nevada, sec.
323 Rev. Laws; sec. 5721 Rev. Laws, 1912; Fitchett v. Henley, 31 Nev. 326; Brancroft v.
Pike, 33 Nev. 80; Tull v. Anderson, 15 Nev. 426; In Re Dixon, 40 Nev. 228; Tobin v.
Gartiez, 44 Nev. 179.
The respondent exceeded his jurisdiction in ordering that judgment be entered against said
defendants in accordance with the prayer of plaintiff's complaint on file in said justice's court,
on application of the attorney for plaintiff. It does not appear from the copy of the judgment
that any evidence whatsoever was submitted to substantiate plaintiff's claim for damages as
alleged in the complaint, as required by subdivision 2 of sec. 5754, Rev. Laws, 1912. Fitchett
v. Henley, 31 Nev. 326, at 340-341; Forsyth v. Chambers, J.P., 30 Nev. 337.
Sec. 5754 of the justice court practice act compares with sec. 5236 of the district court
practice act. The only Nevada decision discovered wherein either of these two sections has
been discussed is that of Ballard v. Purcell, 1 Nev. 342, 1-2 Nev. 290, at 292. See, also, Ruth
v. Smith (Colo.), 68 P. 278; Crossman v. Vivienda Water Co. (Cal.), 69 P. 220; St. Louis &
S.F.R. Co. v. Zumwalt {Okla.),
52 Nev. 202, 205 (1930) Camino Et Al. v. Lewis
Zumwalt (Okla.), 120 P. 640; Hurd v. Ford (Utah), 276 P. 908; Schroeder v. Wittram, 6 P.
737; 6 Enc. of Pleading and Practice, 112, 114, 132.
Edgar Eather, for Respondent:
All the forms of pleadings in civil actions, and the rules by which the sufficiency of the
pleadings shall be determined, shall be those prescribed in this act. Rev. Laws, 1912, sec.
5036. The only pleadings on the part of the plaintiff and the defendant are those fixed by
statute. Stats. 1929, p. 9. The code requires the defendants either to demur or answer, and in
their answer they are allowed to set up as many defenses as they may have. It is well settled in
states having a code procedure like ours that the defendant only has two pleadings, a
demurrer to the complaint and an answer. McKim v. District Court, 33 Nev. 52; Sutherland
on Code Pleadings, vol. 1, sec. 459.
The document styled a motion is not a part of our code procedure and does not tender an
issue between the parties, plaintiff and defendants, as to whether or not the court had
jurisdiction; this could only be raised by demurrer or answer. Symons-Kraussman Co. v.
Reno W.L. Co., 32 Nev. 241.
A justice of the peace cannot certify a case to the district court on the ground that title to real
estate is involved unless it appears by the verified answer or on plaintiff's own showing that
such title is involved. State ex rel. Launiza v. Justice Court, 29 Nev. 191, 198.
In this case we do not contend that the answer must be verified, but we do contend that an
answer or a demurrer should have been filed, instead of a motion.
OPINION
By the Court, Sanders, J.:
This is an original proceeding in certiorari. The facts in brief are these:
On July 12, 1929, Martin Ferguson filed his verified complaint in the justice's court of
Eureka township for Eureka County against Mike Camino and John Yturbide to recover
judgment for $200 actual damages, $100 exemplary damages, and, in addition thereto,
the sum of $200 attorneys' fees, for an alleged trespass by defendants' sheep upon the
land of plaintiff, situate in Eureka County, whereby the grass, herbage, and browse
thereon was consumed and destroyed.
52 Nev. 202, 206 (1930) Camino Et Al. v. Lewis
complaint in the justice's court of Eureka township for Eureka County against Mike Camino
and John Yturbide to recover judgment for $200 actual damages, $100 exemplary damages,
and, in addition thereto, the sum of $200 attorneys' fees, for an alleged trespass by defendants'
sheep upon the land of plaintiff, situate in Eureka County, whereby the grass, herbage, and
browse thereon was consumed and destroyed. Summons was duly issued and served
personally upon the defendant Camino in Lander County by the sheriff of that county. On
July 27, 1929, the defendants appeared specially and filed a motion to dismiss the action upon
the ground that the court had no jurisdiction over the persons of defendants and of the subject
matter, in that the summons was served upon defendants in Lander County and that the land
upon which the defendants' sheep are alleged to have trespassed is situate in Lander County
and not Eureka County. The motion to dismiss was not set for hearing, and, while pending
and undisposed of, on, to wit, August 7, 1929, on motion of the attorney for plaintiff,
defendants' default for failure to appear and answer the complaint within the time prescribed
by law was entered. On the same day, on motion of said attorney, the following judgment was
entered:
In this action the defendant, Mike Camino, and John Yturbide, having been served with
process, and having failed to appear and answer the plaintiff's complaint filed herein, and the
legal time for answering having expired, and no answer or demurrer having been filed, the
default of said defendants, Mike Camino, and John Yturbide, in the premises having been
duly entered according to law;
Now, at this day, on application of Edgar Eather, attorney for said plaintiff, it is hereby
ordered that judgment be entered herein against the said defendants, in accordance with the
prayer of said plaintiff's complaint on file herein.
Wherefore, by reason of the law and the premises aforesaid, it is ordered, adjudged, and
decreed, that Martin Ferguson, plaintiff, do have and recover of and from the said
defendants, Mike Camino and John Yturbide, the sum of $300.00 in U.S. lawful money,
with interest thereon at the rate of 7 per cent annum from the date hereof until paid;
together with attorneys fee in the sum of $200.00, and his costs and disbursements
incurred in said action, amounting to the sum of $7.00."
52 Nev. 202, 207 (1930) Camino Et Al. v. Lewis
Martin Ferguson, plaintiff, do have and recover of and from the said defendants, Mike
Camino and John Yturbide, the sum of $300.00 in U.S. lawful money, with interest thereon at
the rate of 7 per cent annum from the date hereof until paid; together with attorneys fee in the
sum of $200.00, and his costs and disbursements incurred in said action, amounting to the
sum of $7.00.
On August 29, 1929, Howard E. Browne, attorney for defendants, filed in this court an
affidavit praying a writ of certiorari to review the record and proceedings leading up to and
including said judgment, and praying that it be annulled. The matter is now before us upon
the affidavit and return made to the writ.
It is insisted in argument that the court had no jurisdiction over the persons of defendants,
for the reason that the summons was served upon them in Lander County. The conclusive
answer to this contention is that the statute which specifies the actions and proceedings over
which justices' courts shall have jurisdiction provides that the summons may be served
outside of the county in which the action is brought. Stats. 1913, p. 359.
1, 2. It is contended that the respondent court was without jurisdiction over the subject
matter, in that and for the reason that it appears from the motion to dismiss that the land upon
which the trespass complained of was committed is situate in Lander County and not Eureka
County. It is evident that the attorney for defendants was mistaken in considering the motion
to be a proper pleading to oust the court of jurisdiction of the subject matter of the action. As
section 793 of our civil practice act (Revised Laws, sec. 5736) prescribes the pleadings on the
part of plaintiff and of defendant injustice court cases, it is needless to add that the objection
for want of jurisdiction over the subject matter could only be raised by demurrer or answer.
The document styled a motion for the purpose it was intended to serve had no legal
standing. Therefore the respondent court did not exceed its jurisdiction in entering
defendants' default for failure to answer the complaint within the time prescribed by law.
52 Nev. 202, 208 (1930) Camino Et Al. v. Lewis
jurisdiction in entering defendants' default for failure to answer the complaint within the time
prescribed by law. Symons-Kraussman Co. v. Liquor Co., 32 Nev. 241, 107 P. 96.
It is contended that the respondent court exceeded its jurisdiction in rendering judgment
for damages, without offer of any proof as to the amount of the damages. The question most
troublesome is whether the error is one which may be taken advantage of by certiorari.
3. Justices' courts have peculiar and limited jurisdiction. The powers conferred upon them
by a statute must be strictly pursued. Jones v. Justice's Court, 97 Cal. 523, 32 P. 575. They
must proceed in the mode provided by the statute. Hillyer's Justices' Code (2d ed.), p. 76.
Section 812 of the civil practice act (Revised Laws, sec. 5754) provides as follows:
If the defendant fails to appear, and to answer or demur within the time specified in the
summons, then, upon proof of service of summons, the following proceedings must be had:
1. If the action is based upon a contract, and is for the recovery of money, or damages
only, the court must render judgment in favor of the plaintiff for the sum specified in the
summons.
2. In all other actions the court must hear the evidence offered by the plaintiff and must
render judgment in his favor for such sum (not exceeding the amount stated in the summons)
as appears by such evidence to be just.
By the enactment of subdivision 2 of the section quoted, it is manifest that it was the
intention of the legislature to prohibit justices of the peace from rendering judgment by
default for unliquidated damages without proof of the amount of the damages. When the
default judgment is taken, the statute makes it the imperative duty of plaintiff to offer
evidence, and the justice to render judgment for such damages as the evidence shows to be
just.
52 Nev. 202, 209 (1930) Camino Et Al. v. Lewis
4, 5. In this case the judgment seems to have been based upon an erroneous notion that, by
failure to answer the complaint within the time prescribed by law, the defendants admitted its
averments. The default of the defendants established the plaintiff's right of action, but by no
means the amount of the damages. Hevener v. Kerr, 4 N.J. Law, 58. These must be
ascertained and assessed upon lawful evidence before the court is authorized to render
judgment. It appearing from the return to the writ that the respondent court, in violation of the
statute, rendered judgment without any proof of damages, it follows that the judgment as
entered must be annulled.
In order that there may be no misunderstanding, we repeat that the act of the respondent
court in entering the default of defendants for failure to answer the complaint was not in
excess of jurisdiction, but that the judgment for damages without any proof as to the amount
of damages was in excess of jurisdiction, and for this reason only the judgment is annulled.
It is so ordered.
Ducker, C.J.: I concur in the order.
Coleman, J.:
There is but one serious question in this case, and that is whether the justice of the peace
had jurisdiction to render the judgment in question without taking testimony. He clearly had
jurisdiction of the subject matter and of the parties. The defendants were in default for failure
to answer. Higley v. Pollock, 21 Nev. 198, 27 P. 895; McKim v. District Court, 33 Nev. 44,
110 P. 5. At common law, in an action for damages, where a defendant is in default it was the
practice to sue out a writ of inquiry to have the damages determined. 1 Tidd's Pr. 569, 573; 3
Chitty's Pr. 671, 673.
In case of a default, something is admitted to be due, but not the amount demanded, and
the onus of proof as to the amount of damages is upon the plaintiff.
The first statutory provision in this state providing the procedure in a justice's court
relative to defaults was section 550 of "An act to regulate proceedings in civil cases in the
courts of justice of this state, and to repeal all other acts in relation thereto," approved
March S, 1S69, c.
52 Nev. 202, 210 (1930) Camino Et Al. v. Lewis
was section 550 of An act to regulate proceedings in civil cases in the courts of justice of
this state, and to repeal all other acts in relation thereto, approved March 8, 1869, c. 112,
being section 3645, Cutting's Comp. Laws. This section provided: When the defendant fails
to appear and answer, judgment shall be given for the plaintiff as follows: First. * * *
SecondIn other cases, the justice shall hear the evidence of the plaintiff, and render
judgment for such sum only as shall appear by the evidence to be just. * * *
The section mentioned has been amended so as to require that the justice must hear the
evidence. Rev. Laws, sec. 5754.
Prior to the amendment, it may be that it was discretionary with the justice of the peace to
hear the evidence, but the amendment indicates an entirely different intention on the part of
the legislature.
There is no rule more widely recognized than that a substantial change in the language of a
statute indicates a change in the legislative intent. This court, in speaking of a legislative
change in a statute, said: * * * We are bound to presume that it was done ex industria, for
the purpose of effecting the change which is effected in the law. * * * Crane & Co. v.
Gloster, 13 Nev. 279; 36 Cyc. 1080.
What could have been the intention of the legislature in making the change pointed out,
except to make the taking of testimony a condition precedent to the entry of a judgment?
None. The word must is generally construed to be mandatory, and, in view of the situation
presented, it can be given no other construction in this matter.
This court has often held that a court may have jurisdiction of the parties and of the subject
matter but be without jurisdiction to render the particular judgment. In Re Estate of Foley, 24
Nev. 197, 51 P. 834, 52 P. 649; Ex Parte Dela, 25 Nev. 346, 60 P. 217, 83 Am. St. Rep. 603;
In Re Forney's Estate, 44 Nev. 279, 194 P. 331.
In Windsor v. McVeigh, 93 U.S. 274, 282, 23 L. Ed.
52 Nev. 202, 211 (1930) Camino Et Al. v. Lewis
914, it is said: Though the court may possess jurisdiction of a cause, of the subject matter,
and of the parties, it is still limited in its modes of procedure, and in the extent and character
of its judgments. It must act judicially in all things, and cannot then transcend the power
conferred by the law.
This doctrine was approved by this court in Estate of Foley, supra.
Not only was the respondent restricted by the statute mentioned to the course of procedure
therein pointed out, but, pursuant to a long line of decisions of this court, commencing with
Mallett v. Uncle Sam, etc., Co., 1 Nev. 188, 90 Am. Dec. 484, and culminating in Levy & J.
Zentner Co. v. Justice Court, 48 Nev. 425, 233 P. 40, his authority is limited and must be
strictly adhered to.
The following cases, by analogy, support the conclusion reached: McKinney v. Brown,
130 Pa. St. 365, 18 A. 642; Barney v. Fahs, 10 Pa. Co. Ct. Rep. 424; Kaiser & Brother v.
Brown, 98 Ga. 19, 25 S.E. 925.
The respondent not having proceeded as required by statute, his judgment is void.
The contention that the justice of the peace was without jurisdiction because the suit was
not brought in the proper township is without merit. Section 5715, par. 3, Rev. Laws,
provides that to recover for injury to property the action must be instituted in the township in
which the injury was committed. So far as appears from the record of the justice of the peace,
to which alone we must look (11 C.J. 199), this was done.
Judgment annulled.
____________
52 Nev. 212, 212 (1930) Norton v. District Court
NORTON v. THIRD JUDICIAL DISTRICT COURT
in and for Lander County, Et Al.
No. 2889
February 17, 1930. 284 P. 768.
1. Justices of the PeaceGiving Single Bond Covering Twice Amount of Justice Judgment
and $100 for Costs on Appeal held to Confer Jurisdiction on District Court.
On plaintiff's appeal from judgment for costs amounting to $30.50 in action brought before justice of
peace, giving single bond in sum of $161, including twice amount of judgment and $100 for costs on
appeal, under Rev. Laws, sec. 5792, as amended by Stats. 1925, c. 189, held to confer jurisdiction of
appeal on district court; plaintiff not being required to file separate bond covering twice amount of
judgment, including costs.
C.J.-CYC. REFERENCES
Justices of the Peace35 C.J. sec. 454, p. 766, n. 76.
Original proceeding in prohibition by R.E. Norton to restrain the Third Judicial District
Court of the State of Nevada, in and for the County of Lander, and W.R. Reynolds, Judge
thereof, from proceeding with the trial on the merits of a case appealed from a Justice of the
Peace, wherein F.L. Stevens was plaintiff and petitioner was defendant. Proceedings
dismissed.
C.E. Robins, for Petitioner:
Our position is that the paper called a bond did not purport to stand for or be bound for
the costs on appeal. It was given simply to stay proceedings, and undertook to pay the
judgment of the lower court with the costs incident to that judgment, if the appeal was
withdrawn or dismissed; or to pay the amount of any judgment that might be recovered in the
district court, with the costs incident to that judgment. See Duffy v. Greenebaum (Cal.), 12 P.
74; Duffy v. Greenebaum (on rehearing), 13 P. 323; Perkins v. Cooper (Cal.), 25 P. 411.
The decisions of the supreme court of this state and the upper courts of California and
Idaho upon a statute exactly as ours once was may be helpful in pointing out a reason why our
statute, in 1912, was amended, and also in aiding us to an interpretation of our present
statute.
52 Nev. 212, 213 (1930) Norton v. District Court
statute. See McConky v. Superior Court, 56 Cal. 83; Ward v. Superior Court, 58 Cal. 519;
Edwards v. Superior Court (Cal.), 115 P. 649; Jones v. Superior Court (Cal.) 91 P. 505;
Wilson v. Doyle (Ida.), 85 P. 928; Libby v. Spokane Valley (Ida.), 98 P. 716.
Our legislature, in 1912 (sec. 5792, Rev. Laws), cleared the matter up very definitely when
it stated in plain terms that: If a stay of proceedings is claimed the appellant must file an
additional undertaking, etc., which, in effect, lines the law of this state up with the decisions
of California and Idaho, where they construed the word or into the word and, thereby
requiring two separate bonds.
The same identical question, and with a bond before it very similar in terms with the bond
now before us, was decided in the case of Weiser River Fruit Co. v. Feltham (Ida.), 175 P.
848. See, also, Hill v. Cassidy (Mont.), 60 P. 811, under a statute very similar to ours.
Sec. 5792, Rev. Laws of 1912, amending sec. 3679, Compiled Laws of Nevada,
1860-1900, provides as follows: An appeal from a justice's court where no stay of
proceedings is claimed is not effectual for any purpose unless an undertaking is filed * * * in
the sum of one hundred dollars. By virtue of the amendment, the one hundred dollar
undertaking on appeal is required only where no stay of proceedings is claimed.
With respect to a stay bond, provisions for which are found beginning with the second
sentence of the statute, the words the appellant must file an additional undertaking, which
were not a part of the old statute, are not used in the sense that another instrument must be
filed, but carried the meaning that the undertaking must be in an additional sum such as will
equal double the amount of the judgment, and all costs, appealed from, together with the
other requirements of a stay bond. If the undertaking is worded so that it covers the costs on
appeal, in addition to the necessary requirements as a stay bond, it will be sufficient to perfect
the appeal under the provisions of sec.
52 Nev. 212, 214 (1930) Norton v. District Court
sec. 5792. The statute was undoubtedly amended for the purpose of simplifying the procedure
in an appeal from the justice's court, and no effect can be given the amendment except by
holding that the undertaking on appeal in the sum of one hundred dollars is not now required.
If it can be determined from the face of the undertaking that it is the intention of the
principals to guarantee payment of the costs on appeal, then it certainly is sufficient beyond
any doubt. Jones v. Superior Court of Kearn County, 91 P. 505; State v. Brown, 30 Nev. 495.
The case of Duffy v. Greenebaum, 12 P. 74, and 13 P. 323, is not in point, for the reason that
sec. 5792 of our Revised Laws of 1912 has changed the law entirely from the section of our
statute that was in effect, which was almost identical with the California statute interpreted by
that decision.
OPINION
By the Court, Coleman, J.:
This is an original proceeding in prohibition to restrain the respondent court from
proceeding with the trial on the merits of a case appealed from a justice of the peace.,
In the fall of 1928 F.L. Stevens instituted an action in the justice's court of Argenta
township, Lander County, Nevada, against R.E. Norton, this petitioner. Upon the trial the
justice of the peace entered judgment against plaintiff, dismissing the action and rendered
judgment for the defendant for costs amounting to $30.50. Thereafter the plaintiff, Stevens,
gave notice of an appeal from the judgment, and executed a bond in the sum of $161.
After reciting the action of the justice of the peace, the bond is conditioned as follows:
Now, therefore, we, the undersigned, United States Fidelity and Guaranty Company, of
Baltimore, Maryland, do hereby undertake and promise, and do hereby acknowledge
ourselves bound in the sum of $161.00, that the appellant will pay the amount of the
judgment appealed from, and all costs, if the appeal be withdrawn or dismissed, and that
he will pay the amount of any judgment, and all costs, that may be recovered against him
in the action in the said District Court."
52 Nev. 212, 215 (1930) Norton v. District Court
undertake and promise, and do hereby acknowledge ourselves bound in the sum of $161.00,
that the appellant will pay the amount of the judgment appealed from, and all costs, if the
appeal be withdrawn or dismissed, and that he will pay the amount of any judgment, and all
costs, that may be recovered against him in the action in the said District Court.
Subsequent to the filing of the transcript with the clerk of the respondent court, the
defendant made a motion to dismiss the appeal on the ground that no such bonds were given
as conferred jurisdiction upon the district court. This motion was denied, and the court
threatened, as alleged, to proceed to try the case unless prohibited from so doing by the
judgment of this court.
The statute authorizing the giving of bond on appeal from a judgment of a justice of the
peace is section 5792, Rev. Laws, as amended by Stats. 1925, p. 333, which reads in part as
follows: An appeal from a justice's court where no stay of proceedings is claimed is not
effectual for any purpose unless an undertaking is filed, with two or more sureties, in the sum
of one hundred dollars, for the payment of the costs on the appeal. If a stay of proceedings is
claimed, the appellant must file an additional undertaking, in a sum equal to twice the amount
of the judgment, including costs, when the judgment is for the payment of money; or twice
the value of the property, including costs, when the judgment is for the recovery of specific
personal property, and which must be conditioned, when the action is for the recovery of
money, that the appellant will pay the amount of the judgment appealed from, and all costs, if
the appeal is withdrawn or dismissed, or the amount of any judgment and all costs that may
be recovered against him in the action in the district court.
It is the contention of petitioner that it was necessary for the plaintiff in the case
mentioned, in taking his appeal, to confer jurisdiction upon the district court to try the case to
give not only the one hundred dollar bond mentioned in the first sentence of the section
quoted, but an additional bonda separate and distinct documentas contemplated by
the second sentence in the section.
52 Nev. 212, 216 (1930) Norton v. District Court
section quoted, but an additional bonda separate and distinct documentas contemplated
by the second sentence in the section.
We cannot agree with this contention. Upon the giving of a bond in the sum of one
hundred dollars to cover costs on appeal, the district court acquired jurisdiction. The only
question is: Does the bond in question cover the costs on appeal? We think it does. In fact,
the question is not a new one in this court. In State v. Brown, 30 Nev. 495, 98 P. 871, though
a somewhat different situation was presented, the court held that the words all costs in the
obligation was such a compliance with the statute as to constitute the obligation a cost bond,
and that the district court acquired jurisdiction. We think that the decision was right, and that
it is controlling in this case.
Proceedings dismissed.
____________
52 Nev. 216, 216 (1930) State v. Scott
STATE Ex Rel. MATZDORF Et Al. v. SCOTT Et Al.
No. 2875
February 28, 1930. 285 P. 511.
1. Municipal CorporationsRecall Statute Applicable to City of Las Vegas Held Sufficient
Basis for Action to Compel City Clerk to Call and City Commissioners to Provide for
Election for Recall of Mayor.
Recall provisions of Const. art. 2, sec. 9, amended in 1912 (see Laws 1913, pp. 626, 627); Stats.
1913, c. 258, secs. 1-3, 8, applicable to city of Las Vegas, held sufficient on which to base cause of
action to compel city clerk to call and city commissioners to provide for election for recall of city mayor
and to give court jurisdiction of subject matter of proceedings.
2. Municipal CorporationsPetition for Recall of Mayor of Las Vegas from Office Held
Properly Filed with City Clerk.
In view of Stats. 1911, c. 132, subc. 2, secs. 3, 13; Stats. 1913, c. 284, subc. 3, sec. 8; Absent Voters
Act (Stats. 1921, c. 90, as amended), sec. 16 as added by Stats. 1925, c. 36, sec. 2; General Incorporation
Act, sec. 35, par. 2 (Rev. Laws, sec. 801, par. 2); and Stats. 1923, c. 68, petition for recall of mayor of
city of Las Vegas, filed under Const. art. 2, sec. 9, amended in 1912 (see Laws 1913, pp. 626, 627);
Stats. 1913, c. 258, secs. 1-3, 8, held properly filed with city clerk.
52 Nev. 216, 217 (1930) State v. Scott
3. Municipal CorporationsWithdrawals of Voters Who Signed Petition for Recall of City
Mayor after Petition Had Been Filed with City Clerk Held Ineffective.
Where, after petition for recall of city mayor had been filed with city clerk under Const. art. 2, sec.
9, amended in 1912 (see laws 1913, pp. 626, 627); Stats. 1913, c. 258, secs. 1-3, 8, voters who signed
petition withdrew their signatures, withdrawals held ineffective.
4. OfficersActs for Recall of Officer Should Be Liberally Construed.
Acts for recall of public officer, such as Stats. 1913, c. 258, secs. 1-3, 8, should be liberally construed
with view to promote purpose for which they were enacted.
5. Municipal CorporationsAllegations that at Last Preceding Election 1,511 Qualified
Voters Voted for Justice of Supreme Court and that 25 Per Cent Filed Petition for
Recall of Mayor Held Sufficient.
Allegations, in action to compel city clerk and commissioners to provide for election for recall of
mayor, that at last preceding election 1,511 qualified electors voted for justice of supreme court in city,
and that 25 per cent filed their petition for recall, held sufficient to comply with requirements of Const.
art. 2, sec. 9, amended in 1912 (see Laws 1913, pp. 626, 627).
6. MandamusMandamus Held Proper Remedy to Compel City Clerk to Call and City
Commissioners to Provide for Election for Recall of Mayor.
Mandamus is proper remedy by which to compel city clerk to perform his duty to call special election
and city commissioners to perform their duty to provide for such election for recall of city mayor under
provisions of Const. art. 2, sec. 9, amended in 1912 (see Laws 1913, pp. 626, 627); Stats. 1913, c.
258, secs. 1-3, 8, where petitions were filed in accordance therewith, since duty of respondents is plain
and they have no discretion in the matter.
7. PartiesObjections of Misjoinder of Parties Respondents Raised by Demurrer Held
Waived by Answer.
Objections raised by demurrer that there was misjoinder of parties respondents in action to compel
city clerk to call and city commissioners to provide for election for recall of mayor held waived by
answer.
C.J.-CYC. REFERENCES
Mandamus38 C.J. sec. 289, p. 704, n. 29; sec. 575, p. 8761, n. 31.
Municipal Corporations42 C.J. sec. 1108, p. 669, n. 36; p. 670, n. 48; sec. 1121, p. 674, n. 13.
Officers46 C.J. sec. 197, p. 1003, n. 28.
Parties47 C.J. sec. 426, p. 221, n. 30.
Appeal from Tenth Judicial District Court, Clark County, H.W. Edwards, Judge.
52 Nev. 216, 218 (1930) State v. Scott
Proceedings in mandamus by the State, on the relation of F.E. Matzdorf and others, against
William L. Scott, Clerk of the City of Las Vegas, J.F. Hesse, Mayor, and others, constituting
the Board of Commissioners of the City of Las Vegas. From a judgment for relators, and an
order directing writ of mandate to issue to respondents commanding Clerk to call special
election and other respondents to prepare therefor, respondents appeal. Affirmed.
F.A. Stevens, City Attorney of Las Vegas, and Stevens, Henderson & Noland, for
Respondents:
The recall provisions applicable to the city of Las Vegas are insufficient upon which to
base a cause of action for any relief thereunder or to give the court jurisdiction of the subject
matter of the proceeding.
The provisions of sec. 9 or article II of the Constitution of the State of Nevada,
supplemented by chapter 258 of the 1913 Session Laws, were in operation as to recall
elections in the city of Las Vegas. Said constitutional provision was not and was not intended
to be fully self-executing, the last sentence thereof reading as follows: Such additional
legislation as may aid the operation of this section shall be provided by law. Chapter 258 of
the 1913 Session Laws was passed in aid of such constitutional provision.
The constitution and statute referred to both require:
(a) That a petition as therein required be filed.
(b) When such petition is filed and the officer sought to be recalled does not resign within
five days after the petition is filed, a special election shall be called or ordered.
(c) That the petition shall be filed with a designated officer.
There are no adequate provisions for the carrying into effect the recall mandate of the
constitution of this state in the city of Las Vegas. With what officer must the petition be filed
and how can a special recall election be held? Our contention is that there was no officer in
the city of Las Vegas with whom the petition for recall could be filed, nor were there any
provisions in the charter providing for special city elections, except in subdivision 5 of sec.
52 Nev. 216, 219 (1930) State v. Scott
could be filed, nor were there any provisions in the charter providing for special city
elections, except in subdivision 5 of sec. 31 of chapter II thereof, as amended in 1927 (Stats.
1927, pp. 236 to 238, incl.). The special elections provided for in the charter refer either to
the acquisition of public utilities by the city or the issuance of sewerage bonds.
There was nothing in the general election laws of the State of Nevada which would assist
in supplying the omissions in the constitution, in the said act of 1913 in aid of the recall
provisions in the constitution, nor in the charter of the city of Las Vegas, nor to specify with
what officer the petition for recall shall be filed, nor how the special election may be ordered,
called, noticed, provided for, held or conducted.
In the absence of an order for or calling of the special election no valid election can be
held. 20 C.J. pp. 95 and 96, sec. 79, and particularly note 22.
The failure to give notice or issue proclamation of a special election will render it a
nullity. 20 C.J. p. 97, sec. 82, and particularly note 38.
A provision as to the officer with whom the petition shall be filed is mandatory, and
failure to comply therewith renders the election void. 20 C.J. p. 95, sec. 78, n. 14, citing State
v. Dillard, 73 Ore. 13, 144 P. 127.
Where the election is only to be called and the time and place fixed by some authority
named in the statute after the happening of some condition precedent, it is essential to the
validity of such an election that it be called and ordered by the very agency designated by law,
and none other. 20 C.J. p. 96, notes 18 and 19.
Our contention is that the language of the constitution is plain and has a definite meaning,
and that resort to rules of construction is unnecessary. 12 C.J. pp. 703-4; Wren v. Dixson
(Nev.), 161 P. 722; State v. Doron, 5 Nev. 399; State v. Irwin, 5 Nev. 111.
Mandamus will not lie where there is no power or authority or duty to call an election. 38 C.J.
722, notes 80 and 81; State v. Brodigan, 37 Nev. 37.
The duties which will be enforced by mandamus must be such as are clearly and
peremptorily enjoined by law.
52 Nev. 216, 220 (1930) State v. Scott
must be such as are clearly and peremptorily enjoined by law. 30 C.J. 600, n. 84; State v.
Brodigan, supra.
A mere moral duty cannot be enforced. 38 C.J. 602, n. 90.
The writ will not issue in any case where the duty or power is doubtful. 38 C.J. 691, sec.
261.
Demurrer is the proper pleading to raise objections to the sufficiency of a complaint or
affidavit in mandamus proceedings. Flannigan v. Burritt (Nev.), 173 P. 352.
Party with whom petition was required to be filed was vested with the exercise of
discretion and judgment in acting on the petitions. State v. Hall (N.D.), 186 N.W. 284; 43
C.J. 672, sec. 1115.
The exercise of such discretion and judgment includes the right to determine the
insufficiency of the petition by reason of the withdrawal of names by such number of the
petitioners as to leave the remaining number insufficient.
Unless the statutes otherwise provide, the signers of recall petitions may withdraw at any
time before final action on the petition. 43 C.J. 674, sec. 1121, notes 9 and 10; 2 McQuillan
Mun. Corp. (2d ed.) p. 353, sec. 584, n. 68; Hay v. Dorn, 93 Kan. 392, 144 P. 235; Rominger
v. Nellor (Wash.), 167 P. 57; State v. Lane (W. Va.), 110 N.E. 180.
The lower court erred in overruling the demurrers of respondents to the complaint of the
relators, and in rendering its judgment in favor of the relators, for the reason that sec. 9 of art.
II of the Constitution of the State of Nevada is wholly inoperative, for the reason that it is
impossible to ascertain who voted for justice of the supreme court at the preceding election in
the city of Las Vegas.
A.A. Hinman, for Relators:
A constitutional provision that every public officer is subject to recall is self-executing,
where it states a complete method of procedure for effecting a recall and indicates an
intention that it shall be operative immediately. 12 C.J. p. 735, n. 47.
52 Nev. 216, 221 (1930) State v. Scott
Where a constitution sets forth a complete modus operandi for the recall and its
provisions are absolute and not conditional, the effectiveness of the system does not depend
upon legislative action, even if it is provided that additional legislation as may aid the
operation of the constitution on the subject of the recall may be enacted. 22 R.C.L. p. 577,
Public Officers, sec. 290, n. 11.
Section 9 of article II of the Nevada constitution was adopted from the constitution of
Oregon in identical terms in so far as they affect the questions in the case at bar. The supreme
court of the latter State, in State ex rel. Clark v. Harris, 147 Pac. 109, Ann. Cas. 1916a,
1156-7, construing the provisions of the Oregon constitution, holds that a complete modus
operandi is therein set forth and that nothing whatever is omitted that is necessary to effect
the recall. The decision in that case completely answers the contentions of the appellants in
the case at bar.
An act providing for recall should be liberally construed with a view to promote the
purpose for which it was enacted. 43 C.J. p. 670, n. 48.
In expounding a constitutional provision, such constructions should be employed as will
prevent any clause, sentence or word from being superfluous, void or insignificant. Youngs
v. Hall, 9 Nev. 212, 222.
In this case a mandatory duty rests upon the clerk to call and the board of commissioners
to provide the details of an election, and they are not relieved of that duty by their failure to
act.
The principle is well stated in State ex rel. Flagg v. Board of Trustees of Lady Bryan
Mining Co., 4 Nev. 400. See, also, State ex rel. Sears v. Wright, et al., 10 Nev. 167; State v.
Davis (W. Va.), 85 S.E. 779.
The city clerk of the city of Las Vegas is sufficiently designated by law as the proper
officer with whom petitions for recall shall be filed. The officers in charge of the first election
after the incorporation of the city were the board of county commissioners and the county
clerk. The officers in charge of subsequent elections were to be the board of city
commissioners {by express provision) and the city clerk {by implication).
52 Nev. 216, 222 (1930) State v. Scott
the board of city commissioners (by express provision) and the city clerk (by implication).
Any other conclusion is impossible. What other officer than the city clerk could have been
intended to assume the duties of the county clerk? Certainly no clause in the charter can be
construed to designate any other officer. By act of March 5, 1923 (Stats. 1923, p. 80), section
5 of chapter II of the charter was amended so as to make the county clerk ex officio city clerk,
which is evidence of the intent to require similar duties on his part as an election officer in
relation to each office so held by him.
Attention is also directed to the language of sec. 3 of the charter, providing that otherwise
subsequent elections and the manner of holding the same shall be governed by the laws of
the State of Nevada governing general elections.
Mandamus is a proper remedy. 22 R.C.L. p. 578, Public Officers, sec. 291, n. 19, 20; 50
L.R.A. (N.S.) 227 and note; Ann. Cas. 1916a, 1165 and note.
There was not a misjoinder of parties defendant. 5 Ban. C. Pr. and Rem. p. 5168, n. 11,
and p. 5169, n. 17; 18 R.C.L. pp. 140-1, Mandamus, sec. 56, n. 17, citing Labette County v.
U.S., 112 U.S. 217, 28 L. Ed. 698.
If the officer or board has power to act upon the filing of petitions for a recall, and is not
charged with further duties before such action can be taken, jurisdiction has attached and
cannot thereafter be impaired or defeated by the attempted withdrawal of some of the
petitioners. Sim v. Rosholt (N.D.), 11 L.R.A. (N.S.) 372; Siebert v. Lovell (Iowa), 61 N.W.
197; Gerber v. Commissioners (Minn.), 94 N.W. 886; Hay v. Dorn (Kan.), 144 P. 235;
Rominger v. Nellor (Wash.), 167 P. 57. State ex rel. v. Lane (W. Va.), 110 S.E. 180; Locher
v. Walsh (Cal.), 121 P. 712; Laam v. McLarren (Cal.), 153 P. 985; Beecham v. Burns (Cal.),
168 P. 1058; Williams v. Gill (Cal.), 223 P. 559; Doyle v. Jordan (Cal.), 252 P. 577; Ralto v.
Trustees (Cal.), 243 P. 466; Hartsock v. Merritt (Cal.), 269 P. 757; Conn v. Richmond (Cal.),
121 P. 714; Lail v. People (Colo.), 226 P. 300.
A complete answer to the claim that petitioners might withdraw their names after the
petitions were filed is contained in the decision of the Supreme Court of Arkansas in
Boardwell v. Dills, 66 S.W. 646.
52 Nev. 216, 223 (1930) State v. Scott
withdraw their names after the petitions were filed is contained in the decision of the
Supreme Court of Arkansas in Boardwell v. Dills, 66 S.W. 646.
OPINION
By the Court, Ducker, C.J.:
This is a proceeding in mandamus instituted in the lower court to compel William L. Scott,
as city clerk of the city of Las Vegas, to call a special recall election in and for said city to
determine whether or not J.F. Hesse, who is mayor of said city, should be recalled from
office, and to compel the commissioners of the city to provide for the election. As the
foregoing officers were designated as respondents in the lower court, they will be so
designated in this opinion, except were referred to as such officers.
The trial court awarded judgment for relators and ordered a writ of mandate to issue
directed to said respondents commanding said clerk to call such a special election and the
other respondents to prepare therefor. This appeal is from the judgment, from an order
overruling demurrers to an original complaint, and from an order granting relators' motion to
strike portions of the answers and sustaining the general demurrers of relators to the answers.
The amended complaint shows, among other matters, that, at the last election preceding the
19th day of December, 1928, fifteen hundred and eleven qualified electors voted for justice of
the supreme court in said city of Las Vegas; that on the date last mentioned, for hundred and
twenty-five of said qualified electors filed their petitions with said clerk demanding the recall
by the people of said J.F. Hesse, as mayor of said city; that said petitions consisting of eleven
copies are identical in form with the original except for the signature; that said petitions
contained the residence of each signer thereto and set forth the reason in less than two
hundred words why the recall was demanded; that the original and each copy of said
petition was verified by one of the signers thereof before a notary public; that the
statements contained in the petitions are true; that said mayor has not offered his
resignation since the filing of the petitions; and that the clerk has not called a special
election, and the other officers have not provided for such an election.
52 Nev. 216, 224 (1930) State v. Scott
that the original and each copy of said petition was verified by one of the signers thereof
before a notary public; that the statements contained in the petitions are true; that said mayor
has not offered his resignation since the filing of the petitions; and that the clerk has not
called a special election, and the other officers have not provided for such an election.
The answers admit all the allegations of the amended complaint, except that it is denied
that more than four hundred and nineteen of the qualified electors who voted for justice of the
supreme court at the preceding election in said city filed such petitions with the clerk. As a
further and separate defense it is alleged in each answer in substance that, between the 27th
day of December, 1928, and the 7th day of January, 1929, both days inclusive, ninety-six of
the persons who had theretofore signed said recall petitions withdrew their names therefrom,
and that between the 26th day of December, 1928, and the 2d day of January, 1929, both
dates inclusive, four of the persons who had theretofore signed said recall petitions, other
than the ninety-six mentioned, withdrew their names therefrom. The manner in which it is
claimed said withdrawals were effected is set out in detail in said answers. It is also alleged in
the further and separate answers that the clerk took and made final action upon said recall
petitions on the 8th day of January, 1929.
Motions to strike certain portions of the further and separate answers of respondents were
granted and general demurrers thereto were sustained.
1, 2. Respondents contend that the recall provisions applicable to the city of Las Vegas are
insufficient upon which to base a cause of action for any relief thereunder, or to give the court
jurisdiction of the subject matter of the proceedings. We do not agree with this contention.
The admitted allegations of the complaint gave the court such jurisdiction and were sufficient
to entitle relators to the relief demanded and awarded by the court. By the provisions of
section 9, article 2, of the constitution approved and ratified by the people at the general
election of 1912, every public officer of this state is made subject to recall from office by
the qualified electors of the state, or the county, district, or municipality from which he is
elected.
52 Nev. 216, 225 (1930) State v. Scott
general election of 1912, every public officer of this state is made subject to recall from office
by the qualified electors of the state, or the county, district, or municipality from which he is
elected. See Stats. 1913, pp. 626, 627. Section 9 of the article also provides, among other
things, the manner in which a recall election may be put in operation. It also provides as
follows: Such additional legislation as may aid the operation of this section shall be
provided by law.
Pursuant to this section of the constitution, the legislature passed an act (Stats. 1913, c.
258) consisting of eleven sections providing for the recall of public officers. This act, so far
as its provisions are applicable to the questions before us, reads:
Section 1. Every public officer in the State of Nevada is subject, as in this act provided,
to recall from office, by the qualified electors of the state or of the county, district or
municipality from which he was elected.
Sec. 2. For the purpose of recalling any public officer there shall be first filed with the
officer with whom the petition for nomination to such office is required by law to be filed, a
petition, signed by the qualified electors who voted in the state, or in the county, district or
municipality electing such officer, equal in number to twenty-five per cent of the votes cast in
said state, or in the county, district or municipality for the office of justice of the supreme
court, at the last preceding election; said petition shall also contain the residence of the signer,
and set forth in not to exceed two hundred words, the reason why said recall is demanded.
Sec. 3. Such petition shall consist of any number of copies thereof, identical in form with
the original, except for the signatures; every such copy shall be verified by at least one of the
signers thereof, who shall make oath before any officer authorized by law to administer oaths,
that the statements and signatures contained in the petition are true. Upon filing such petition
the officer with whom the same shall be filed, shall not sooner than ten days nor more than
twenty days thereafter issue a call for a special election to be held within twenty days
after the issuance of the call therefor, in the state, or in the county, district or
municipality electing such officer, to determine whether the people shall recall such
officer; provided, however, that if such officer shall offer his resignation within five days
after the filing of the petition aforesaid, such resignation shall be accepted, and the
vacancy thereby caused shall be filled in the manner provided by law; if such officer shall
not resign he shall continue to perform the duties of his office until the result of said
special election shall be finally declared.
52 Nev. 216, 226 (1930) State v. Scott
filed, shall not sooner than ten days nor more than twenty days thereafter issue a call for a
special election to be held within twenty days after the issuance of the call therefor, in the
state, or in the county, district or municipality electing such officer, to determine whether the
people shall recall such officer; provided, however, that if such officer shall offer his
resignation within five days after the filing of the petition aforesaid, such resignation shall be
accepted, and the vacancy thereby caused shall be filled in the manner provided by law; if
such officer shall not resign he shall continue to perform the duties of his office until the
result of said special election shall be finally declared.
* * * * * * * * * *
Sec. 8. No petition for the recall of any public officer shall be circulated or filed against
any such officer until he has actually held his office six months, save and except, that it may
be filed against a senator or assemblyman in the legislature at any time after ten days from the
beginning of the first session after his election. * * *
* * * * * * * * * *
Sec. 11. The general election laws of this state, so far as applicable, shall apply to all
elections held under this act.
Except in some minor details, the foregoing provisions of the statute are the same as the
provisions of said section 9, article 2, of the constitution. Both provide a complete method for
setting in operation an election for the recall of public officers by the qualified electors of the
state or political subdivision thereof mentioned. The amended complaint in this case
conforms to the requirements of the statute.
A specific objection made by respondents why a recall election in this case cannot be had
is that neither by any provision of the constitution nor statute has any officer been designated
with whom a recall petition may be filed against an officer of the city of Las Vegas. The
amended complaint alleges that the petitions were filed with the city clerk of the city of Las
Vegas.
52 Nev. 216, 227 (1930) State v. Scott
Vegas. The requirements of the constitution and of the statute as to the officer with whom
recall petitions shall be filed are substantially the same. The statute of 1913, as we have seen,
provides in this respect that a recall petition shall be filed with the officer with whom the
petition for nomination to such office is required by law to be filed. Section 2.
While there is no specific provision of law designating the city clerk of the city of Las
Vegas as the officer with whom the petition for nomination of a candidate for the office of
mayor of Las Vegas shall be filed, there is a general provision which does. Section 8 of An
Act relating to elections and removals from office, approved March 31, 1913, provides in
part as follows:
All nomination papers provided for by this act shall be filed as follows: * * * 3. For city
officers, in the office of the city clerk or secretary of the legislative body of such city or
municipality. Stats. 1913, p. 514.
This disposes of respondents' contention in this regard; but it is also reasonably inferable
from the city charter and legislation bearing upon municipal matters that the city clerk is the
officer intended. There is nothing in the charter provisions or any amendments thereto to
indicate that any other city officer is intended, and it would be unreasonable to assume that
the legislature, having provided for the election of a mayor and city commissioners, intended
there should be no officer of the city with whom a nominating petition should be filed. The
act providing for the incorporation of the town of Las Vegas made the county clerk of Clark
County, in which Las Vegas is situated, the officer with whom petitions for nominations for
the first city election should be filed. Stats. 1911, c. 132, pp. 145-147. By this act the entire
modus operandi of the first election was placed in charge of the county clerk and board of
county commissioners of the county, and subsequent elections were, by the act, expressly
placed under the control of the board of city commissioners. Section 3, subchapter 2, of
chapter 132 of Stats. 1911, p. 148. As the city clerk is the clerk of the board of city
commissioners, it is fair to assume that it was intended that he should discharge similar
duties in regard to elections as were imposed upon the county clerk in the first instance.
52 Nev. 216, 228 (1930) State v. Scott
clerk of the board of city commissioners, it is fair to assume that it was intended that he
should discharge similar duties in regard to elections as were imposed upon the county clerk
in the first instance. Force is given to this conclusion by section 13 of the act, which provided
for the recall of the holder of any elective office by the qualified electors of the city and
designated the city clerk as the officer with whom the petition for the recall of an incumbent,
and the election of his successor should be filed. It is unlikely that the legislature intended
that a petition for the recall of an incumbent and the election of his successor should be filed
with the clerk, and that a petition of a candidate for an office at a general election in the city
should be filed with some other officer. Section 13 has been repealed, and obviously because
it was deemed that the amendment to the state constitution and statute of 1913 made ample
provision for the recall of public officers, including municipal officers. Stats. 1923, pp. 80-82.
By the said act of 1923 the county clerk of Clark County was made ex officio city clerk of
the city of Las Vegas. This, in our opinion, is a further token of the legislative intent that the
city clerk should exercise the duties in regard to elections imposed upon the county clerk by
the original act of incorporation. Candidates for county offices are required to file their
petitions for nomination with the county clerk, and it has been the legislative policy to impose
upon city clerks duties in regard to city elections similar to those required of county clerks in
elections held in counties. This policy is reflected in a new section added to the absent voters
act (Stats. 1921, c. 90, as amended) by the legislature of 1925. The section reads: Section 16.
The provisions of this act are hereby extended to include all municipal elections, and
whenever in this act any duty is imposed upon, or any reference made to, the county clerk in
connection with general, special or primary elections, all such duties shall be performed by,
and all such references shall be construed to mean, the city clerk, whenever such duties or
such references relate to municipal elections."
52 Nev. 216, 229 (1930) State v. Scott
such duties or such references relate to municipal elections. Stats. 1925, c. 36, p. 39.
Furthermore, evidence of such a policy is found in paragraph 2 of section 35 of the general
incorporation act, Rev. Laws of Nev. p. 249, whereby the city clerk is designated as an officer
with whom city election returns shall be filed and who shall have charge of the same and who
shall issue certificates of election to the persons entitled thereto. See, also, Stats. 1913, c. 284,
p. 514, heretofore cited. For the reasons given we hold that the petitions were filed with the
officer required by law.
3. It is insisted that the withdrawals from the petitions, after they were filed, of the one
hundred signatures as alleged in the answers, were legally effected, which left the petitions
without the required number of signers and thereby deprived the clerk of authority to call an
election. We cannot agree with this view. We are aware of cases of this and analogous
character recognizing the right of withdrawal from a petition after it has been filed, if
exercised before final action is taken thereon by the officer or board to whom it is addressed.
But these have generally been governed by provisions of law differing from our constitutional
provisions providing for the recall and aiding statute. In so far as it has been held under
similar provisions that a petitioner may withdraw from the petition after it has been filed, we
cannot agree with the ruling. Neither the recall amendment nor the statute enacted pursuant
thereto make any provision for such a contingency. They provide only for a petition with
certain requirements. The clerk is given no authority to consider or determine matters outside
of the petition. His discretion is limited to ascertaining if the petition on its face is such as the
law requires.
Admittedly in this case petitions containing the legal requirements and signed by a
sufficient number of the qualified electors of the city were filed with the clerk. As nothing
further has been prescribed by the constitution or statute as a condition precedent to the
calling of an election by the clerk, his power and duty to act in conformity with the mandate
of the law attached when the petitions were filed.
52 Nev. 216, 230 (1930) State v. Scott
in conformity with the mandate of the law attached when the petitions were filed.
The correct rule as to when jurisdiction attaches under such a state of facts is stated in
Seibert v. Lovell, 92 Iowa, 507, 61 N.W. 197, 199, cited and quoted from in the opinion of
the lower court on this question. The court in this case said: We hold, then, that the question
of jurisdiction is to be determined from the petition as it was when filed, and without regard
to the subsequent acts of the petitioners. * * * So far as affecting the jurisdiction which had
already attached was concerned, the protests and remonstrances were of no effect. * * * It
must be remembered that jurisdiction did not attach as of the date when the board acted, but
as of the date when the legal petition was filed. The power to act having been conferred upon
the board by virtue of a legal petition, it could not be impaired or taken away by the protests,
remonstrances, or attempted withdrawals of some of the petitioners. (The italics are ours.)
The following cases are also in accord with our views: Beecham v. Burns, 34 Cal. App.
754, 168 P. 1058; Gerber v. Board of Com'rs., 89 Minn. 351, 94 N.W. 886; Bordwell v. Dills,
70 Ark. 175, 66 S.W. 646, 647.
We approve the reasoning of the court in Bordwell v. Dills, supra, and think that it is
applicable here. The court said: Before the filing with the clerk * * * the petition is in the
power of the signers. Each signer may control his signature. It is not yet a petition in which
the public is interested. * * * But when the petition has been filed. * * * The public has now
become interested in it. The jurisdiction of the subject matter has now attached. In the
absence of something in the statute permitting it, no individual signer, nor, indeed, all the
signers, could thereafter withdraw or erase their names from the petition. * * * He who
voluntarily sets on foot a proceeding for the enforcement of a salutary police regulation in any
community should not be permitted to capriciously undo his work. He should not be allowed
to play fast and loose with the interests of society.
52 Nev. 216, 231 (1930) State v. Scott
allowed to play fast and loose with the interests of society. The law makes no provision for
protests and remonstrances, for signing and countersigning. It only provides for the petition.
4. So, in the case before us, no provision has been made for withdrawals, nor is there
anything in the constitution or aiding statute from which such a right can be implied. The
withdrawals were therefore ineffectual. This conclusion becomes more imperative by reason
of the rule that an act for recall should be liberally construed with a view to promote the
purpose for which it was enacted. 43 C.J. 670.
5. Respondents claim that section 9 of article 2 of the Constitution of the State of Nevada
is wholly inoperative, for the reason that it is impossible to ascertain who voted for justice of
the supreme court in the preceding election in the city of Las Vegas. For the purposes of this
case we need not determine whether respondents' contention is correct or not. If correct, then
respondents by their pleadings admitted the impossible. It is alleged in the amended
complaint that at the last preceding election fifteen hundred and eleven qualified electors
voted for justice of the supreme court in said city; and that 25 per cent of these filed their
petition, etc. The demurrers to the compliant and the amended complaint admitted these
allegations, and they were not denied in the answer to the amended complaint. These
allegations satisfied the constitutional requirements. The amended complaint was therefore
not defective in this regard. Counsel's contention that there is no allegation in the amended
complaint that the vote of the electors signing the petitions was cast at an election for justice
of the supreme court is supertechnical.
6. Mandamus is the proper remedy. The duty of the clerk to call a special election is plain,
and the duty of the city commissioners to provide for such an election equally manifest. They
have no discretion in the matter. Mau v. Liddle, 15 Nev. 271-275; State v. Brodigan, 44 Nev.
212, 192 P. 263.
52 Nev. 216, 232 (1930) State v. Scott
7. The objections raised by demurrer that there was a misjoinder of parties respondents
was waived when they answered. Bliss on Code Pleadings, sec. 417. All the contentions made
by respondents have been considered and found to be without merit.
For the reasons given an order was heretofore made affirming the judgment and orders
appealed from.
____________
52 Nev. 232, 232 (1930) State v. Scott
STATE Ex Rel. MATZDORF Et Al. v. SCOTT Et Al.
No. 2875
March 29, 1930. 286 P. 119.
1. StatutesRule that, When Statute Is Revised or Statute Is Framed from Another, Parts
Omitted Are Considered Annulled, Must Be Taken in Connection with Legislature's
Intent as to Entire Act.
In construing statute, general rule that, when statute is revised, or one act framed from another, parts
omitted are to be considered as annulled, must be taken, however, in connection with intention of
legislature as to entire act.
2. StatutesIf it Is Plain that Legislature Intended Later Act to Embrace Whole Subject,
Portion of Earlier Act Not Included Is Considered Discarded.
Where it is plain that it is legislative intent in later act to embrace whole subject, then portion of
earlier act involving same subject matter which is not included in later act is considered as discarded.
3. StatutesStatute Should Be Construed to Avoid Absurd Results.
In considering statute, it should be construed so as to avoid absurd results.
4. ElectionsAct Relating to Elections Held Not, by Omitting Provision of Earlier Act
Requiring Filing of Nomination Papers for City Officers, to Repeal by Implication Such
Omitted Provision.
Stats. 1915, c. 285, relating to elections and omitting provisions of Stats. 1913, c. 284, subc. 3, sec. 8,
requiring that all nomination papers for city officers should be filed in office of city clerk or secretary of
legislative body or city or municipality, held not to repeal by implication said omitted provision, since
to so construe statute would create situation whereby incorporated city would be
left without adequate method for holding elections of officers.
52 Nev. 232, 233 (1930) State v. Scott
since to so construe statute would create situation whereby incorporated city would be left without
adequate method for holding elections of officers.
5. StatutesRepeals by Implication Are Not Favored, and Should Be Declared Only in Cases
Free from Doubt.
Law does not favor repeals of statutes by implication, and repeals by implication should not be
declared except in cases free from doubt.
C.J.-CYC. REFERENCES
Statutes36 Cyc. p. 1071, n. 25; p. 1078, n. 43; p. 1081, n. 53; p. 1107, n. 36.
On petition for rehearing. Petition denied.
F.A. Stevens, City Attorney, and Stevens, Henderson & Nolan, for Respondents:
We earnestly call the court's attention to the fact that subdivision 3 of section 8, Stats.
1913, was repealed by implication, in that such portion was omitted in an act approved March
29, 1915, entitled An Act relating to elections, Stats. 1915, pp. 463-507. Gill v. Goldfield
Consol. Mines Co., 43 Nev. 1, 176 P. 784, at 786; 1 Lewis' Sutherland Statutory Construction
(2d ed.), sec. 269, pp. 516-519; Thorpe v. Schooling, 7 Nev. 15; State v. Rogers, 10 Nev.
250; Eureka Bank Cases, 35 Nev. 80, subdiv. 22 of the syllabus on page 85, and discussion
on pages 143-145 in the opinion; State v. Lee, 28 Nev. 389, 82 P. 229; Southern Pac. Co. v.
Bartine et al., 170 Fed. 725, at pp. 740-741.
A.A. Hinman, for Relators:
The petition does not sufficiently state the grounds upon which the decision of the court is
assailed. 9 Ban. Pr., 9559, n. 15; Rickey v. Douglas etc. Co., 45 Nev. 341, 348.
The petition is nothing more than a supplemental brief and a reargument of points covered
in appellants' opening brief. State v. Woodbury, 17 Nev. 337, 352; Pershing Co. v. District
Court, 43 Nev. 78, 88; Parks v. Western Union etc. Co., 45 Nev. 411, 420.
The questions presented by the petition were fully argued and considered by the court in
the former hearing.
52 Nev. 232, 234 (1930) State v. Scott
hearing. Chapman v. Justice Court, 29 Nev. 154, 162; Golden v. Murphy, 31 Nev. 395, 431;
Gamble v. Silver Peak Mines, 35 Nev. 319, 326.
OPINION
By the Court, Ducker, C.J.:
In our former opinion we held that the petitions for recall in this case were properly filed
with the city clerk of Las Vegas by virtue of a part of section 8 of An Act relating to
elections and removals from office, approved March 31, 1913, which reads as follows: All
nomination papers provided for by this act shall be filed as follows. * * * 3. For city officers,
in the office of the city clerk or secretary of the legislative body of such city or municipality.
Stats. 1913, p. 514, c. 284, subc. 3.
In their petition for rehearing respondents contend very earnestly that the provision stated
has been repealed. It is insisted that the act of the legislature entitled, An Act relating to
elections, approved March 29, 1915 (Stats. 1915, p. 463, c. 285), is a complete revision of
said act of 1913, and that, as the provision for filing nomination papers for city officers was
omitted from the act of 1915, a repeal by implication was effected. In support of this
contention counsel quotes from Gill v. Goldfield Consol. Mines Co., 43 Nev. 1, 176 P. 784,
786, 184 P. 309, where this court said: When a statute is revised, or one act framed from
another, some part being omitted, the parts omitted are not revived by construction, but are to
be considered as annulled.
1, 2. That is a statement of the general rule. The rule must be taken, however, in
connection with the intention of the legislature as to the entire act. If it is plain that it is the
legislative intent in the later act to embrace the whole subject, then what is not included in
the later act must be held to have been discarded. 1 Lewis' Sutherland, Statutory
Construction, sec. 270. We do not think that any such intention is manifested in the act of
1915 as to the provision challenged.
52 Nev. 232, 235 (1930) State v. Scott
is manifested in the act of 1915 as to the provision challenged.
3, 4. A statute should be construed so as to avoid absurd results. Escalle v. Mark, 43 Nev.
172, 183 P. 387, 5 A.L.R. 1512. It would charge the legislature with an absurdity to hold that
it was intended by the omission of the provisions in question from the act of 1915 to annul it
and create a situation whereby an incorporated city might be left without an adequate method
for holding an election for city officers.
5. Repeals by implication are not favored, and should not be declared, except in cases free
from doubt.
The petition for rehearing is denied.
____________
52 Nev. 235, 235 (1930) State v. White
STATE v. WHITE
No. 2857
March 5, 1930. 285 P. 503.
1. HomicideEvidence Held Sufficient to Sustain Conviction for First Degree Murder.
In prosecution for murder, in which state introduced circumstantial evidence tending to show that
defendant had driven away with deceased in automobile, had shot him, and had then burned deceased's
body by setting fire to defendant's cabin, evidence held sufficient to sustain conviction for first degree
murder.
2. Criminal LawSupreme Court May Not Disturb Verdict as Contrary to Evidence, Where
There is Substantial Evidence to Support It.
Supreme court is without jurisdiction to disturb a verdict in a criminal case on the ground that it is
contrary to the evidence, where there is substantial evidence to support it.
3. HomicideCorpus Delicti May Be Proved by Circumstantial Evidence in Murder
Prosecution.
Corpus delicti, in prosecution for murder, may be established by circumstantial evidence.
4. Criminal LawCircumstantial Evidence, if it Excludes Every Other Reasonable
Hypothesis Except Guilt, Will Support Verdict of Guilty.
Circumstantial evidence will support verdict of guilty, if it is sufficient to exclude every other
reasonable hypothesis then that of guilt.
52 Nev. 235, 236 (1930) State v. White
5. HomicideEvidence of Scheme Between Defendant, Deceased, and Complaining Witness
for Use of Marked Cards and of Money Won by this Means, though Tending to Prove
Another Crime, Held Admissible in Murder Prosecution as Showing Motive.
In prosecution for murder, evidence of fraudulent scheme entered into between defendant, deceased,
and complaining witness for use of marked cards in card game, and of winnings and division of money,
held admissible for purpose of showing motive for homicide, where parties had won considerable money
in this way, and testimony was not rendered inadmissible by fact that it tended to show defendant's
commission of another offense prohibited by Rev. Laws, sec. 6463.
6. Criminal LawEvidence Showing Motive is Admissible, though Tending to Show
Defendant's Commission of Another Offense.
Evidence to show motive prompting commission of crime is admissible, even though it shows, or
tends to show, the commission of another offense by the defendant.
7. HomicideState Relying on Circumstantial Evidence in Murder Prosecution Could Show
Deceased was Last Seen in Company with Defendant.
In prosecution for murder, in which state relied on circumstantial evidence, it was permissible for the
state to show by any competent evidence that deceased was last seen in company with defendant.
8. HomicideStatement of Deceased Made on Last Evening that He Was Seen that He Was
Going to Meet Defendant Held Competent in Murder Prosecution.
In prosecution for murder, declaration of deceased to complaining witness, made on last evening that
deceased was seen, that he was going to meet defendant, or wanted to see defendant, held competent on
question whether deceased met defendant before his death, as verbal act from which the state of mind or
intention could be inferred.
9. Criminal LawPerson's Declarations as to His Mental Condition, Under Circumstances
Not Indicating Premeditation, Are Admissible.
Declarations of a person as to his present mental condition, made under circumstances excluding
suspicion that statements could be result of premeditation, are admissible, in evidence as verbal acts.
10. HomicideIn Murder Prosecution, Exclusion of Testimony that Witness Had His Car In
Soak, and, After Deceased's Disappearance, Had Automobile Back Again, Was
Proper, Where There Was No Evidence Directly Connecting Witness with Killing.
In prosecution for murder, in which there was testimony to the effect that deceased had a large
amount of money on his person, and that this fact was known by defendant, refusal to admit in evidence
testimony that, shortly before the killing, complaining witness had declared that he had his car in soak
for $1,000, and had to make some money to get it out, and that shortly after the disappearance of
deceased the car was returned, held not error, where there was no evidence directly
connecting complaining witness with killing.
52 Nev. 235, 237 (1930) State v. White
returned, held not error, where there was no evidence directly connecting complaining witness with
killing.
11. Criminal LawEvidence of Another's Guilt of Crime Charged to Defendant, To Be
Competent, Must Directly Connect Other with Corpus Delicti.
Evidence tending to show that another person is guilty of crime with which defendant is charged, to
be competent, must be such as directly connects the other with the corpus delicti.
12. Criminal LawIn Murder Prosecution Failure to Limit Jury's Consideration of
Testimony as to Conspiracy Between Defendant, Deceased, and Complaining Witness
in Use of Marked Cards Was Not Error, where No Such Instruction Was Requested.
In prosecution for murder, in which the state introduced testimony of conspiracy between defendant,
deceased, and complaining witness to win money by use of marked cards, which practice would amount
to felony under Rev. Laws, sec. 6463, failure of trial court to limit purpose for which jury could consider
this testimony was not error, where no such instruction was requested by defendant.
13. Criminal LawTestimony of Expert Identifying Hairs Found on Clothing of Deceased
with Hair Found Where Defendant Was Seen after Deceased's Disappearance, Held
Competent.
In prosecution for murder, testimony that certain hairs found on clothing of deceased were identical
with hair in one of stains of blood found near powder house, where defendant was seen shortly after time
of deceased's disappearance, held admissible, where witness qualified as expert on that subject; doubt as
to whether hairs found on deceased's clothing came from his head affecting weight rather than
competency of opinion of witness.
14. Criminal LawRefusal to Strike Testimony of Experienced Consulting Criminologist
that Bones Found Were Human Bones Held Not Abuse of Discretion, though Witness
Stated on Cross-Examination that He Had No Professional Knowledge of Anatomy.
In prosecution for murder, in which state sought to show that deceased had been killed and his body
burned by defendant setting fire to cabin, opinion of consulting criminologist, who had followed this
profession for eighteen or nineteen years, and had come to know something of anatomy by reason of is
work, that the bones found in the room were human bones, was not required to be stricken because of fact
that the witness stated on cross-examination that he had no professional knowledge of anatomy; there
being no abuse of discretion on part of trial court.
15. Criminal LawFact that Witness Disclaims Being Expert Does Not Render His Opinion
Inadmissible, Providing Witness Had Sufficient Knowledge to Give Opinion.
Mere fact that a witness disclaims being an expert as to a particular subject about which he testifies
will not of itself render his opinion inadmissible, but the question always is whether he has
sufficient knowledge to enable him to give an opinion.
52 Nev. 235, 238 (1930) State v. White
whether he has sufficient knowledge to enable him to give an opinion.
16. Criminal LawWhether Witness Has Sufficient Knowledge to Give Opinion on
Particular Matter Is Question Addressed to Trial Court's Sound Discretion.
Question whether witness has sufficient knowledge to enable him to give an opinion as to matter
concerning which he is questioned is always addressed to sound discretion of trial court.
17. Criminal LawSufficient Foundation Was Laid for Testimony as to Bloodstain in
Defendant's Automobile, in Murder Prosecution, where there Was Testimony that Car
Was in Continuous Custody in Private Garage.
In prosecution for murder, sufficient foundation was laid for testimony as to witness' discovery of
bloodstain on metal strip under back door of defendant's automobile, where car had been left in private
garage by defendant, and continuous custody of the car in the garage was shown from that time until
discovery of the bloodstain.
18. Criminal LawPrima Facie Showing that Condition of Thing Has Remained Unchanged
Affords Sufficient Foundation for Introduction of Evidence.
Where sufficient testimony is introduced to justify prima facie inference that condition of thing has
remained unchanged, sufficient foundation is laid for introduction of the thing in evidence or of testimony
concerning it, and circumstances which tend to show that the proof of unchanged condition is not
conclusive go merely to the weight of the evidence.
C.J.-CYC. REFERENCES
Criminal Law16 C.J. sec. 1085, p. 560, n. 43; sec. 1139, p. 590, n. 25; sec. 1222, p. 618, n. 18; sec. 1225,
p. 619, n. 36; sec. 1273, p. 641, n. 26; sec. 1532, p. 748, n. 54; p. 749, n. 55; sec. 1537, p. 750, n. 84; sec. 1568,
p. 765, n. 60; sec. 2500, p. 1059, n. 38; 17 C.J. sec. 3593, p. 255, n. 55.
Homicide30 C.J. sec. 378, p. 161, n. 68; sec. 388, p. 168, n. 24; sec. 413, p. 187, n. 45; sec. 427, p. 199, n.
25; sec. 529, p. 285, n. 42; sec. 559, p. 312, n. 42.
Appeal from Fourth Judicial District Court, Elko County; L.O. Hawkins, Judge.
R.H. White, sometimes known as Bob White, was convicted of first degree murder, and he
appeals. Affirmed.
H.U. Castle and Cantwell & Springmeyer, for Appellant:
The verdict found by the jury is contrary to law and the evidence. We have in mind the
rule that a criminal case will not be reversed for insufficiency of the evidence if there is
substantial evidence to support the verdict.
52 Nev. 235, 239 (1930) State v. White
if there is substantial evidence to support the verdict. State v. Whitaker, 39 Nev. 159, 154 P.
927. But we think the court will recognize the converse of this rule and, where there is no
substantial evidence to support the verdict of a jury, the judgment entered thereon will be set
aside on appeal. State v. Graves (N. Mex.), 157 P. 160; State v. McGee (N. Mex.), 170 P.
739.
We have failed to discover any evidence of any act or circumstance which, directly or
indirectly, connects the appellant with the killing of Lavell, in case the court finds that Lavell
was killed. The defendant could have done all the things the state claims he did and still could
be absolutely innocent of the crime charged.
The trial court erred in not permitting the defendant to show certain acts of the witness
Connis and introduce testimony of certain statements alleged to have been made by Connis,
the purpose of this evidence and testimony being to show that a third party committed the
crime. State v. Russell, 220 P. 552, at 554.
The trial court erred in overruling the objections of the defendant to, and admitting in
evidence, the testimony of the witness Connis to the effect that the defendant, Lavell and
Connis entered into an agreement to use the marked cards in gambling games and did so use
them, and in denying defendant's motion to strike from the record such testimony. The result
of admitting this evidence would be to charge the defendant with committing the crime of
swindling under sec. 6463, Rev. Laws of Nevada, which is a felony. Evidence of other
crimes can generally be considered only when it tends to establish motive, intent, absence of
mistake or accident, a common plan or scheme, or identity. State v. McFarlin (Nev.), 172 P.
371; 8 R.C.L. pp. 198, 199, 200, 206; 16 C.J. 586; Boyd v. United States (U.S.), 35 L. Ed.
1077, at 1080; State v. Vaughn, 22 Nev. 285, at pp. 302-303; State v. Hyde (Mo.), 136 S.W.
316, Ann Cas. 1912d, 191, at 197; Thompson v. State (Ariz.), 187 P. 579, at 581; Thompson
v. Commonwealth (Ky.), 239 S.W. 776, at 777; State v. Rodriquez, 31 Nev. 342; State v.
Irwin (Ida.), 71 P. 608, at 611; People v. Crosby {Cal.),
52 Nev. 235, 240 (1930) State v. White
(Cal.), 120 P. 411, at 444; State v. Jones (Mont.), 139 P. 441, at 446.
There was no other evidence offered or admitted regarding the marked cards than that of
Connis, an admitted accomplice to the alleged conspiracy who shared in the division of the
winnings. The evidence of other offenses must be such that a jury would be authorized to find
the defendant guilty of these other offenses. Baxter v. State (Ohio), 110 N.E. 456, at 458. And
the appellant could not have been found guilty of a felony, to wit, the preparation of and the
use of marked cards in gambling games, when the only evidence against him was that of an
accomplice. Sec. 7180, Rev. Laws of Nevada.
Appellant maintains that the conversations alleged to have been held between Lavell and
Connis were not a part of the res gestae and would therefore come under the rule as stated in
13 R.C.L. 921, par. 224.
The court erred in refusing to admit the evidence of witnesses that they heard Connis say
he had his car in soak in Reno for $1,000, and in not permitting the defendant, on
cross-examination of the witness Connis, to elicit testimony that, shortly prior to and at the
time of the alleged homicide, the said Connis had his car in soak in Reno for that amount.
Synon v. People (Ill.), 50 N.E. 508, at 514; Hines v. Commonwealth (Va.), 117 S.E. 843, at
846; Karnes v. Commonwealth (Va.), 99 S.E. 562, 4 A.L.R. 1509, at 1513-1514; Leonard v.
Territory (Wash. T.), 7 P. 872, at 878.
The court erred in the giving of instructions Nos. 13, 21, 22, 28 and 30, wherein the court
instructs the jury that the jury shall reach its conclusion after a consideration of all of the
evidence in the case, and, after this repeated admonition to consider all the evidence, puts the
evidence as to other offenses on a parity with the other evidence given in the case. There was
no instruction given limiting the purpose for which the jury could consider the testimony of
the witness Connis that a conspiracy had existed between the defendant, the said Connis and
Lavell to commit a felony, to wit, the preparation of and the use of marked cards in
gambling games, and which offense was not charged in the information on which
defendant was being tried.
52 Nev. 235, 241 (1930) State v. White
Connis and Lavell to commit a felony, to wit, the preparation of and the use of marked cards
in gambling games, and which offense was not charged in the information on which
defendant was being tried. Baxter v. State (Ohio), 110 N.E. 456, at 457-458; State v.
McFarlin (Nev.), 172 P. 371.
The court erred in overruling the objections of the defendant to and admitting in evidence
the testimony of the witness Heinrich to the effect that certain hairs found on the clothing of
Lavell were identical to a hair found near the powder house. It was not shown that any of the
hairs came from Lavell's head; in other words, were not property identified. 16 C.J. 619, par.
1226; State v. Guffy (S. Dak.), 210 N.W. 980, at 981.
The court erred in refusing to strike the testimony of the witness Heinrich that articles
presented to him were human bones and naming them as particular bones of a human body,
when, on cross-examination, he admitted he had not the expert knowledge such as would
qualify him in identifying the several articles as human bones. Before the opinion of a
witness can be received as that of an expert, it must be shown that he is qualified as such. 16
C.J. 748, n. 54.
The state should not have been permitted to introduce evidence as to the blood stain under
the right rear door of appellant's car, because no proper, or any, foundation had been laid. The
car had passed through many hands and was examined by several people, and it was not
shown there was any stain on the metal strip until a month later than the crime was alleged to
have been committed. State v. Ilgenfritz (Mo.), 173 S.W. 1041, Ann. Cas. 1017c, 366;
Abernathy v. State (Ala.), 29 So. 844, at 845; People v. Smith (Cal.), 203 P. 816.
J.L. Clark, District Attorney, M.A. Diskin, Attorney-General, Wm. J. Forman, Deputy
Attorney-General, J.M. McNamara and Ioannis A. Lougaris, for Respondent:
Appellant's objection to the admission of the testimony relative to the marked-card
agreement was not sufficient, in that it does not appear in any place in the record that
appellant objected to the admissibility of the evidence on the ground that it tended to
prove another and separate crime or that it would prejudice the minds of the jurors
against appellant.
52 Nev. 235, 242 (1930) State v. White
sufficient, in that it does not appear in any place in the record that appellant objected to the
admissibility of the evidence on the ground that it tended to prove another and separate crime
or that it would prejudice the minds of the jurors against appellant. State v. Jones, 5-6-7 Nev.
1036, at 1042; State v. Lawrence, 28 Nev. 440; 3 C.J. pp. 892-893, sec. 800; 46 C.J. p. 132,
sec. 85, and authorities cited in notes 90, 91 and 92.
Assuming, for the sake of argument alone, that the testimony with reference to the
marked-card episode was incompetent, irrelevant and immaterial, the State contends that
appellant waived his objection to the admission of said testimony by not renewing his motion
to strike at the conclusion of the State's case, and in that after the last motion was made
counsel for appellant cross-examined witness Connis relative thereto. Menardi v. Whacker,
32 Nev. 169, at 712; Armstrong v. Atlantic Coast Line R. Co., 48 A.L.R. 482, at 484 and 487;
People v. Durant (Cal.), 48 P. 75; State v. Cannon, 27 S.E. 526, at 529; State v. Dahlquist,
115 N.W., at 83.
The testimony of the witness Connis with reference to the marked-card agreement was
offered by the state for the purpose of showing motive, and such evidence is competent and
legal evidence in homicide cases. 30 C.J. 187, sec. 413; 30 C.J. 179,180 and 181, sec. 406,
and authorities cited; 16 C.J. 601, sec. 1165; Underhill's Criminal Evidence (3d ed.), sec. 154,
pp. 203, 207, sec. 503, p. 716; 8 R.C.L. sec. 197, p. 203; Wharton's Criminal Evidence, vol. I
(10th ed.), sec. 28, p. 145, sec. 893, p. 1681, sec. 895, p. 1682, sec. 896, p. 1684, sec. 897, pp.
1685-1686; 8 C.J. sec. 174, p. 71; 16 C.J. sec. 1139, pp. 590-591; State v. Larkin, 11 Nev.
314, at 328; State v. Monahan, 50 Nev. 27; State v. McFarlane, 41 Nev. 486; State v. King
(Kan.), 206 P. 883, at 884 and 888; State v. DeWeese (Utah), 172 P. at 296; People v.
Simons, 145 P. 145; State v. Douglas, 26 Nev. 196, at 204; State v. Tranmer, 39 Nev. 142;
State v. District Court, 42 Nev. 218. Declarations of a person as to his present mental
condition, made under circumstances excluding suspicion that statements could be result
of premeditation, are admissible in evidence as verbal acts.
52 Nev. 235, 243 (1930) State v. White
Declarations of a person as to his present mental condition, made under circumstances
excluding suspicion that statements could be result of premeditation, are admissible in
evidence as verbal acts. 8 Cal. Jur. sec. 188, pp. 90 and 91; 16 C.J. sec. 1273, p. 641; State v.
Pearce (Kan.), 124 P. 814, at 815 and 816; State v. Mortensen (Utah), 73 P. 562, at pp. 568
and 569.
It is the state's contention that the court did not err in sustaining the objections to the
testimony of witnesses Stoker and Jewett, offered by the defendant, to the effect that to these
witnesses Connis declared shortly before the alleged homicide that he had his car in soak for
$1,000 in Reno, for the reason that it was no part of the transaction, therefore incompetent
and immaterial. State v. Russell (Nev.), 220 P. 552, at 554; Irvin v. State (Okla.), 146 P. 453
at 464; State v. Louie Moon, 117 P. 727, at 757; 16 C.J. 641, sec. 1275; 8 R.C.L. sec. 178, pp.
185 and 186.
In view of the fact that appellant did not ask for further instructions with reference to the
marked-card testimony, he thereby waived his right to such instructions. State v. Smith, 10
Nev. 106; State v. Davis, 14 Nev. 407; State v. St. Clair, 16 Nev. 207.
The court did not err in overruling the objections of the defendant to and admitting in
evidence the testimony of a qualified expert criminologist to the effect that in the opinion of
the witness certain alleged human hair was identical with an alleged human hair said to have
been found near the powder house. Miller v. State (Ark.), 128 S.W. 353 at 355; Williams v.
State (Tex), 132 S.W. 345.
The refusal of the court to strike the testimony of the witness Heinrich, an experienced
consulting criminologist, that bones found were human bones was not abuse of its discretion,
though the witness stated on cross-examination that he had no professional knowledge of
anatomy. It was not for the witness, neither was it for counsel nor for the jury to say as to
whether or not the witness had qualified as an expert, but this question was to be determined
and passed upon solely by the trial court. Underhill's Criminal Evidence {3d ed.), sec.
52 Nev. 235, 244 (1930) State v. White
trial court. Underhill's Criminal Evidence (3d ed.), sec. 189, p. 265, n. 60.
Sufficient foundation was laid for testimony as to bloodstain in defendant's automobile,
where it is established prima facie that the automobile was in the same condition as when
taken from the possession of the defendant. 16 C.J. p. 619, sec. 1225, n. 36; Underhill's
Criminal Evidence (3d ed.), sec. 101, p. 106, n. 13; Higgins v. Commonwealth (Ky.), 134
S.W. 1135, at 1138; State v. Schwenk (Kan.), 167 P. 743, at 744; State v. Whitbeck (Iowa),
123 N.W. 982, at 984; People v. Szafcsur (Cal.), 119 P. 1083, at 1086.
Counsel for appellant contends that there is not sufficient evidence to warrant the verdict
or the judgment. It is the rule of this court that it will not reverse the judgment for insufficient
evidence if there is any substantial evidence in the case tending to provide the defendant
guilty. We contend that the verdict and judgment was and is consistent with the evidence
adduced, that appellant had a fair and impartial trial and that the evidence is amply sufficient
to support the verdict and judgment.
OPINION
By the court, Ducker, C.J.:
The appellant was convicted in the district court of Elko County of the crime of murder of
the first degree. The jury did not exercise their discretion to fix the punishment, and the court
imposed the penalty of death. This appeal is from the judgment and order denying appellant's
motion for a new trial. As it was argued most earnestly that neither the corpus delicti nor
appellant's guilt were proved sufficiently to warrant the verdict, a statement of the case is
deemed advisable.
In the month of February, 1928, in the city of Elko, Mike Connis and Louis Lavell, who
were then associated together in gambling, entered into a gambling scheme with appellant.
The scheme was proposed by appellant.
52 Nev. 235, 245 (1930) State v. White
By the terms of this arrangement Connis and Lavell were to furnish marked cards to be used
in gambling games in the Commercial Hotel in Elko. Appellant was to get the marked cards
into the games. Connis and Lavell were to play and give appellant twenty-five per cent of the
winnings. The scheme was carried out accordingly, and the parties divided more than $2,000
as the result of the winnings. The parties met in the country to divide the spoils. Connis and
Lavell occupied adjoining rooms in the hotel, and the cards were marked by them in the
latter's room. On the evening of May 4, 1928, Lavell played in the game in the hotel and won
$680. On the evening of May 6, 1928, Connis and Lavell were together in the lobby of the
Commerical Hotel. Lavell then had on his person $1,050 or $1,100 in paper money in
denominations of one hundred, twenty and five dollar bills. He had in his possession a
diamond ring. He wore a stickpin in his necktie, and carried a watch. On the night before he
had in his possession a loose diamond valued at $325 or $350. He usually carried this
diamond in his trouser pocket, wrapped up in cotton and tissue paper. He was wearing a blue
suit and a light hat. Lavell was in the habit of carrying large sums of money on his person,
and this habit was known to appellant. Between the hours of 10:30 and 11 o'clock Sunday
evening May 6, 1928, he left the lobby of the hotel, going through the front door. As he was
leaving, he said, I want to see Bob. The appellant was then standing in front of the hotel.
He was seen at this time talking to the appellant for a few minutes, and then to get into a car
with him and ride away. Lavell was never seen again.
A building called the Hesson powder house is situated in a small ravine abut one and
one-half miles easterly from Elko and about a quarter of a mile north of the Victory highway.
Appellant was seen in a car coming from near this powder house between 4 and 6 o'clock on
the afternoon of May 6, 1928. On the same evening at 11 o'clock, or 7 or 8 minutes thereafter,
appellant was seen at this powder house sitting behind the wheel of a car, and, when the
persons who saw him drive by his car, appellant drove away and into Elko at a rapid gait.
52 Nev. 235, 246 (1930) State v. White
wheel of a car, and, when the persons who saw him drive by his car, appellant drove away
and into Elko at a rapid gait.
On the day of May 6, 1928, the appellant had a rug or mat on the floor of his car between
the seats. On the following day there was no rug or mat in the car, and appellant told the
witness who asked him where it was that he had taken it out because he was hauling whisky
and did not want it cut up with the kegs. There was a gun, a piece of canvas, and a laprobe in
the car on the afternoon of that day, and in the forenoon of the same day a witness saw two
square five-gallon cans, a piece of canvas three or four feet square, and a gun in the car. This
witness thought the gun was a 16-gauge, single barrel shotgun. The witness had seen the gun
in the car before quite often. On the afternoon of May 6, 1928, appellant was seen unloading
at his home a couple of boxes, which had red labels on them, and which, to the witness,
looked like cases in which gasoline can are carried. Appellant bought a case of gasoline on
Saturday, May 5, 1928. This case was placed in the back of his car. The witness thought
appellant said he was going to return some of the gas he had borrowed in the country.
Immediately afterwards he said he was going out in the country; that gasoline was pretty high,
and he was going to carry some with him. Appellant tried to buy a flash light in the Victory
garage in Elko on the night of May 6, 1928, between the hours of 10:30 and 11 o'clock, and
was told that he might get one at the Mayer garage. Between twenty minutes to 11 and 11 of
the same evening, or about that time, appellant borrowed a flashlight at the Mayer garage in
Elko.
On the evening of Tuesday, May 8, 1928, somewhere between the hours of 1:30 and 2, or
about that time, appellant came to the Mayer hotel in Elko and engaged a room. At this time
he made an engagement with the clerk of the hotel to go fishing with him and Mr. Mayer, the
manager of the hotel, on the next day and to take his (appellant's) car for the expedition. The
clerk took him to his room.
52 Nev. 235, 247 (1930) State v. White
him to his room. He saw appellant next morning when he came down from his room, and told
him that he had a flat tire on his car. Early on the morning of the 8th appellant came into the
hotel and told Mr. Mayer that he could not go fishing; that he was going to Currie to look at
some horses. About 8:30 that evening appellant telephoned to the clerk of the Mayer hotel,
and told him that he would not want the room that night, as he was going to stay home.
Monday evening, May 7th, at about 6:30 or 7 o'clock, Connis saw appellant come into the
Commercial Hotel, and the following conversation took place.
Q. State the conversation. A. When he came in he says, Hello, Mike,' I says, Hello, Bob,
where's Louis?' He says, I didn't see Louis.' I says, You didn't see himyou was with him
last night.' He says, No, I didn't see him.' So I says, My God, there is something terrible
happened. * * *'
Q. Did you have any further conversation? A. Yes, sir, I says, the minute I asked him if
he saw Louis and he says no, and I told him he is with Louis, something terrible happened to
him, and I turned around to tell Red. I said, My God, Louis is a dead man by now,' and of
course I saw Mr. White. He turned kind of pale and was kind of nervous.
Q. Did he reply to that. Did he make any reply? A. No, sir.
Connis saw appellant at the Mayer garage in Elko the next morning at about ten minutes
past 7 o'clock. In reply to a question concerning this meeting, Connis said, Well, before we
got about ten feet he spoke to us. He says, Good morning, boys.' I said, Good morning,
Bob.' He says, Did you find out anything about Louis yet?' I says, No, you ought to know
better than we do because you was with him Sunday night.' He says, No, I didn't was with
him.' I said You were outside of the Commercial Hotel between 10:30 and 11 o'clock Sunday
night.' He says, Yes, I was, but,' he says, I left him and went home and stayed all night and
the time I got in home,' he says, my wife asked me what time it was and on account of my
watch was stopped I can't tell the time and I called up central and central told me it was
about 11 o'clock.'"
52 Nev. 235, 248 (1930) State v. White
and on account of my watch was stopped I can't tell the time and I called up central and
central told me it was about 11 o'clock.'
Ed. Kendricks, deputy sheriff of Elko County, saw appellant Monday night, May 7, 1928,
in his Packard car in front of the Mayer Hotel around 10:30 or 11 o'clock. He did not see him
later that evening, but saw his car parked in front of the Mayer Hotel around 3 o'clock or 3:30
the next morning, and observed the condition of the car at the time. There was a flat tire on
the rear left wheel, and the car was very dusty. When Kendricks saw the car earlier in the
evening, it did not seem to be very dusty. There was a great difference in the appearance of
dust on the car at 3 o'clock and when the witness saw it at about 11 o'clock.
Two or three years prior to the disappearance of Lavell, appellant and his wife occupied a
cabin situated in Secret Valley about thirty-six miles southeast of Elko. The place on which
the cabin was situated was known as the Ryan Place, and the cabin as the Ryan Cabin.
Some time during the Monday night, May 7, 1928, this cabin was completely destroyed by
fire. The road from Elko to the Ryan cabin at this time was described as good. On the
morning of Tuesday May 8, 1928, at about 5 o'clock appellant was seen at the Mayer garage.
He had a tire repaired, bought some gasoline, and said he was going to Cobre to look at some
horses.
At about 7:30 or 8 o'clock Tuesday morning, May 8, 1928, appellant was seen by Morley
Murphy and John McKissick at the 71 mail post, which is about five miles from the Ryan
cabin in the direction of Elko. Appellant was in a Packard sedan, and overtook them at this
point where they stopped on account of a flat tire. He was driving fast. He loaned them his
jack to jack up their car, and told them he was going to Currie to see about some horses. At
this time Murphy did not know that the Ryan cabin was burned, and there was no
conversation about it. Murphy and McKissick continued on their journey, and arrived at the
Ryan place a few minutes afterwards, and found that the Ryan cabin had been burned.
52 Nev. 235, 249 (1930) State v. White
been burned. They saw appellant there. When they arrived, he was the only person there, and
was down by an old cabin about one hundred and fifty feet from the ruins. W.B. Wright met
appellant on the Halleck Secret Pass road about a quarter of a mile south of the Ft. Halleck
lane. Appellant was in his car. He told the witness he was going to Odgers. Witness thought
the time about 8:30 in the morning. About twenty minutes later Wright saw appellant at the
Ryan ranch, and also saw Murphy and McKissick there. In the ruins made by the fire were
seen at the time three or four cans which the witness Wright described as empty gasoline
cans or honey cans or oil cans. They were square five-gallon cans with the tops in them. The
cans were burned and charred by the fire. He also observed a hoe lying about five feet from
the ruins. The hoe had black stains on the metal part. These stains extended up the handle
about a third of the way. Concerning the hoe, the witness Wright further testified: I picked
up the hoe and I said, It's a cinch some one has been here since the fire because this hoe has
been in the fire.' No remark was made immediately, and I again said, How do you suppose
this hoe got there? Certainly a person wouldn't attempt to fight a fire with a hoe.' Mr.
Murphy spoke up and said, Yes, Bob, what do you think of that?' Then Mr. White
responded, I threw that out there a few minutes ago; I was raking over all this old harness.'
During the time these persons were there with appellant, he seemed to one of them to be
watchful of their movements. One of the witnesses, Mr. Wright, described appellant's
appearance at that time as though he had been working or making a long drive, or possibly
drinking, or had been up all night, I make that statement on the basis of his eyes, rather a gone
expression, and bloodshot.
Thereafter, on the same day between 11 and 12 o'clock, appellant met Wilbur Gardner
several miles beyond the Ryan Ranch, and asked Gardner if he has heard of the fire. He told
him he had better stop and look at it as he went by.
52 Nev. 235, 250 (1930) State v. White
look at it as he went by. He also told Gardner that Morley Murphy had told him about the fire.
Shortly afterwards near the same place he met Elton Cooley. Cooley was unable to remember
who it was appellant said told him about the fire, but that it was either Wright or Murphy.
While hunting rabbits on the afternoon of May 8, 1928, a man by the name of Emerson
Elliot found a hat in a small gulch about 20 feet from the Hesson powder house. There were a
few bloodstains within a foot or so of the hat. The hat was cut and torn. Elliot left the hat
where he found it, and notified the sheriff. The sheriff and Elliott immediately returned to the
place, and the former took the hat into his possession. It was the opinion of the sheriff, who
had had experience in firearms extending over a period of eighteen years, that the rent in the
brim of the hat was caused from the charge of a shotgun fired from a close distance. Besides
the tear in the hat, there were a few little holes made by shot, and there were powder marks on
the hat. The hat was identified at the trial of the case, and the witness Connis testified that it
was the same kind of hat worn by Lavell on the night of his disappearance. Several
bloodstains were observed on the ground near the hat. Portions of these bloodstains were
tested by a witness who qualified as an expert, and found to be human blood. A human head
hair was discovered in one of these bloodstains. This head hair was submitted for
examination and comparison with a number of other hairs taken from the wearing apparel of
Louis Lavell found in his room shortly after is disappearance to Professor Heinrich, an expert
criminolgist, who testified that they were identical; that these head hairs came from the same
head. It was the opinion of Heinrich that the charge of shot which caused the rent in the hat
found at the powder house came from slightly above and in front of the wearer of the hat,
with the muzzle of the gun held at a distance of approximately not over one yard or less than
one foot from him. It was his opinion that a person was wearing the hat when the rent was
made in it.
52 Nev. 235, 251 (1930) State v. White
that a person was wearing the hat when the rent was made in it.
On the morning of May 9, 1928, Sheriff Harris and one of his deputies went to the Ryan
place, and made a search in the ruins of the burned cabin. They found some bones, a belt
buckle with the letters L.O.U.I.S. engraved on it, a pocketknife, the remains of a metallic
pencil, couple of spectacle cases with the remains of spectacles inside, a cuff button, and the
top of a tobacco sack. J.L. Clark went to the scene of the fire on June 2, 1928, in company
with witness Heinrich. They found in the ashes a stickpin and knot of a knit necktie. The belt
buckle, pocketknife, spectacle cases and contents, the cuff button, the top of tobacco sack,
and stickpin were all identified by Connis as the same kind worn or carried by Lavell on the
night of his disappearance. The former testified that the latter wore a knit necktie and carried
a metallic pencil. The bones found in the ruins were determined by experts to be human
bones, detailed as portions of a skull, the lower jaw, kneecap, leg bone, two of the bones of
the forearm, and a number of teeth. Two shot were sticking to the inner surface of one portion
of the skull. The platinum bridge was positively identified by a dentist as one he had made
and placed in the mouth of Lavell thirteen years before. He testified that it was the only
platinum bridge he had made. The jawbone was identified as the one on which the bridge was
placed. The platinum bridge was also identified by another dentist as having been seen by
him in Lavell's mouth on an occasion when he cleaned the latter's teeth. He testified that it
was the only platinum bridge he had ever seen in a patient's mouth.
On the afternoon of the 7th of May appellant's wife left Elko on the train bound for
Ireland. She was charged with complicity in the murder of Lavell, and arrested in New York
City and brought back to Elko. When arrested, she had in her possession two one hundred
dollar bills, four fifty dollar bills and five twenty dollar bills. She was later released from the
charge. On the morning of May 9, 1928, appellant left Elko.
52 Nev. 235, 252 (1930) State v. White
left Elko. He said he was going to Winnemucca, and that one Austin Cannon was going with
him. He appeared in Rawlings, Wyo., between 3 and 4 o'clock in the morning of May 10,
1928. He left his Packard sedan there in a private garage. He told the owner of the garage that
he was going to Cheyenne to see his brother, and that he would return the following Friday or
Saturday. He never returned. He was later arrested in Chicago on the charge of murder of
Louis Lavell and brought back to Elko. Connis swore to the complaint charging him with the
offense.
In the forepart of June the sheriff went to Rawlings and obtained appellant's car from the
man in whose garage it was left by appellant and brought it to Elko. The rug found in the car
between the seats was not the run that was in the car on the 6th of May. Some bloodstains
appearing on the metal strip over the sill of the back door of the car on the right side were
submitted to an expert and found to be human blood. The foregoing is a statement of the
undisputed facts, or such as the jury would have been justified in finding from the evidence.
The evidence presented by the appellant tended to show that appellant could not have been
seen in front of the Commercial Hotel in company with Lavell, or at the Hesson powder
house on the night of May 6th, between 10:30 and 11 o'clock, as testified to by the state's
witnesses; that he could not have taken the body of Lavell to the Ryan cabin on the night of
May 7th in accordance with the theory of the prosecution; that appellant borrowed the flash
light on the night of May 6th for the purpose of using it in search for some whisky that was
hid in the sagebrush several miles from Elko; that appellant frequently carried a gun in his
car; that appellant had no money when he was arrested in Chicago; that Lavell did not wear
the kind of eye glasses found in the ruins of the fire; that the blood found on the metal strip of
appellant's car came from the bleeding nose of a little boy who was riding in the back seat and
was thrown against the front seat by the sudden stopping of the car; that the
circumstances of appellant and his wife leaving Elko for the east and Ireland did not
indicate flight; that Connis had a motive and the opportunity to do away with Lavell; and
that he acted peculiar and displayed a large roll of bills on the night of Lavell's
disappearance.
52 Nev. 235, 253 (1930) State v. White
front seat by the sudden stopping of the car; that the circumstances of appellant and his wife
leaving Elko for the east and Ireland did not indicate flight; that Connis had a motive and the
opportunity to do away with Lavell; and that he acted peculiar and displayed a large roll of
bills on the night of Lavell's disappearance.
1-3. It is apparent from the verdict that the jury rejected, or considered of little weight, the
evidence presented by appellant and other circumstances relief upon by him as establishing a
defense. The facts established by the evidence presented by the state, or proved, at least to the
extent that the jury were justified in finding them to be true, made a very strong case of
circumstantial evidence indicating the manner of the death of Louis Lavell at the hands of
appellant on the night of May 6, 1928, and that it was felonious to the extent of first degree
murder. The facts established were of sufficient probative force to support the verdict, and
consequently our inquiry can go no further as to the ground urged. Nothing is better settled by
the decisions of this state that that this court is without jurisdiction to disturb a verdict in a
criminal case on the ground that it is contrary to the evidence when there is substantial
evidence to support it. The corpus delicti may be established by circumstantial evidence. State
v. Cardelli, 19 Nev. 319, 10 P. 433.
4. It is stated in appellant's brief that he could have done all the things the state claims he
did and still be absolutely innocent of the crime charged. This may be true, but it is not a
statement of the rule applicable to the evidence in a criminal case. A chain of evidence could
scarcely be made so strong as to exclude the possibility of innocence. If it is sufficient to
exclude every other reasonable hypothesis than that of guilt, it will support a verdict.
The several particular instances in which appellant challenges the evidence for
insufficiency we need not discuss. Some of these are instances of conflicting evidence, and all
go to the probative force of evidence.
52 Nev. 235, 254 (1930) State v. White
Inquiry as to these objections is foreclosed by the verdict of the jury.
It is alleged that the trial court committed reversible error in permitting the complaining
witness, Connis, to testify to the fraudulent scheme whereby money was won and divided
between the witness, Lavell, and appellant. Section 6463 of the Rev. Laws reads:
Every person who, by color, or aid of any trick or sleight-of-hand performance, or by any
fraud or fraudulent scheme, cards, dice, or device, shall win for himself or for another any
money or property, or representative of either, shall be punished by imprisonment in the state
prison for not more than ten years.
5, 6. The contention is that the evidence of the fraudulent scheme with cards was
immaterial; that it showed the commission of a felony in violation of the foregoing statute,
and was prejudicial. If the admission of the evidence were conceded to be error, its prejudicial
effect may be reasonably doubted. Counsel for appellant did not by objection point out that
the evidence tended to provide another crime, nor request the court for an instruction limiting
its purpose for that reason; nor is there anything otherwise in the record showing that the
evidence tended to prove an independent offense. It is therefore quite probable that the jury
were not aware that the acts shown by the evidence had been made a crime by statute. Any
prejudice in the minds of the jurors caused by the moral obliquity of the acts must have been
neutralized by the fact that the complaining witness and Lavell were equally culpable. But, be
the question of prejudice on account of the legal or moral wrong of the card conspiracy as it
may, there was no error in the admission of the evidence concerning it. The evidence was
offered by the state for the purpose of showing motive. The prosecution may always offer
evidence tending to show motive, State v. Larkin, 11 Nev. 314, and the inquiry is often of
great importance, particularly in cases of circumstantial evidence. Any evidence that tends to
show that the defendant had a motive for killing the deceased is always relevant as
rendering more probable the inference that he did kill him."
52 Nev. 235, 255 (1930) State v. White
show that the defendant had a motive for killing the deceased is always relevant as rendering
more probable the inference that he did kill him. Underhill, Cr. Ev. (3d ed.) p. 716.
It may always be proved regardless of any collateral effect it may have in showing, or
tending to show, the commission of another offense by the accused.
Addressing himself to this point, Mr. Wharton, in his work on Criminal Evidence, says;
But in those cases in which the evidence of the crime charged is for the most part or wholly
of a circumstantial character, motive frequently becomes a powerful aid in identifying the
accused, and thus connecting him with the commission of the crime. And where, on the trial
of a criminal action, evidence is offered which is competent proof of the presence of motive
in the mind of the accused, such evidence is not to be rejected because it also shows, or tends
to show, a distinct and different crime. Wharton, Cr. Ev. vol. 1 (10th ed.), p. 145.
It is stated in 8 R.C.L., at pages 201 and 202, that: Whenever mental state, scienter, or
quo animo constitutes an ingredient of the offense charged, evidence is admissible of acts,
conduct or declarations of the accused which tend to establish such knowledge, intention or
motive, notwithstanding the fact that it may disclose a different crime in law.
In the treatment of this phase of criminal evidence in Underhill's Criminal Evidence (3d
ed.), p. 205, it is said: Thus, the fact that the evidence introduced to prove the motive of the
crime for which the accused is on trial points him out as guilty of an independent and totally
dissimilar offense is not enough to bring about its rejection, if it is otherwise competent.
The following statement of the law in this respect is made in 16 C.J. p. 590: Evidence to
show the motive prompting the commission of the crime is relevant and admissible
notwithstanding it also shows the commission by accused of another crime of a similar or
dissimilar character.
52 Nev. 235, 256 (1930) State v. White
The foregoing views of the law in regard to the incidental proof of crimes in a criminal
case are amply supported by the decisions.
In view of all the circumstances of the case, the evidence was admissible under this
well-recognized exception to the general rule.
7-9. It was for the jury to say from a consideration of the entire evidence whether the
killing of the deceased was induced by the desire to rob him. If such a fact was found by the
jury, there was evidence tending to support the conclusion. The evidence concerning the
marked cards, if believed by the jury, established intimate relations between appellant and
deceased in a nefarious plot by the execution of which deceased came into the possession of a
considerable sum of money shortly prior to his disappearance. It tended to show, also,
together with other circumstances, that the possession of this money by the deceased on the
night he was slain was known to appellant, and may have furnished the inducement for the
killing. The weight of it all was for the jury.
Error is assigned to the ruling of the court in permitting witnesses Wellman and Connis to
testify to a statement by Lavell as he was leaving the lobby of the Commercial Hotel on the
night of May 6, 1928. The former said that Lavell said to Connis: I want to see Bob, and
the latter said he said: I am going to meet Bob. It is contended that it was not admissible
because it was not made in the presence of appellant and was not a part of res gestae. On both
occasions of the giving of this testimony, the trial court orally instructed the jury that the
testimony was admitted solely for the purpose of explaining the purpose, motive, or intention
of Louis Lavell in leaving the lobby of the Commercial Hotel, and must be considered solely
in so far as it might explain such intention, purpose, or motive. The ruling was correct. It was
permissible for the state to show by any competent evidence that deceased was last seen in
company with appellant. If deceased intended to meet him at the time of his leaving the
lobby, the declaration was relevant to be considered in determination of the inquiry as to
whether he actually did meet appellant at that time.
52 Nev. 235, 257 (1930) State v. White
declaration was relevant to be considered in determination of the inquiry as to whether he
actually did meet appellant at that time. Appellant was sometimes known as Bob White;
consequently the declaration considered in connection with other circumstances would bear
an inference that deceased had appellant in mind in making the declaration. The declaration
was apparently not the result of premeditated design. Such declarations are regarded as
verbal acts from which the state of mind or intention may be inferred in the same manner as
from appearance, behavior, or actions generally. 16 C.J. 641; Mutual Life Ins. Co. v.
Hillmon, 145 U.S. 285, 12 S. Ct. 909, 36 L. Ed. 706. On this theory generally, rather than on
the theory that such declarations are a part of the res gestae of the main transaction, are they
held admissible when relevant. The reason of their admissibility is quite well stated in the
following statements:
Declarations of a person as to his present mental condition made under circumstances
excluding suspicion may be competent as evidence of his intention at that time. Such
declarations are admitted not altogether under the rule of res gestae or because they are
deemed as strictly a part of the principal transaction in dispute, but because they are regarded
as indicative of the frame of mind of the declarant as to some act growing out of the principal
transaction, and exhibited under such circumstances or conditions as to make it reasonably
certain that it was not the result of a premeditated design to prepare a statement of the fact. In
other words, the declarations are regarded as verbal acts from which the state of mind may be
inferred in the same manner as it may be inferred from the actions of the party generally.
Upon this theory the declarations of a deceased upon his departure to meet the defendant, as
to his destination and purpose are admissible in evidence. 8 Cal. Jur. sec. 188, pp. 90, 91.
In Commonwealth v. Phelps, 209 Mass. 396, 95 N.E. 868, 874, Ann. Cas. 1912b, 566, in
ruling upon a declaration of this character, the court said: Under the defendant's objection
and exception the judge allowed the commonwealth to prove that on his arrival at
Monroe Bridge Haskins [deceased] said: 'Si is at it again.' This was admissible to prove
that Haskins did suspect that the defendant had committed a crime.
52 Nev. 235, 258 (1930) State v. White
defendant's objection and exception the judge allowed the commonwealth to prove that on his
arrival at Monroe Bridge Haskins [deceased] said: Si is at it again.' This was admissible to
prove that Haskins did suspect that the defendant had committed a crime. The judge in his
charge instructed the jury that it could not be used by them to draw any inferences of fact that
any act had been done by the defendant, but only to show the state of mind of Haskins at the
time, with a view to any light it might throw upon his action in connection with his
proceedings in making the arrest. This exception must be overruled.
Declarations of this character are admissible according to the great weight of authority,
from which may also be selected: People v. Fong Sing, 38 Cal. App. 253, 175 P. 911; State v.
Power, 24 Wash. 34, 63 P. 1112, 63 L.R.A. 902; State v. Mortensen, 26 Utah, 312, 73 P. 562,
633; State v. Pearce, 87 Kan. 457, 124 P. 814, Ann. Cas. 1913e, 358; Mutual Life Ins. Co. v.
Hillmon, 145 U.S. 285, 12 S. Ct. 909, 36 L. Ed. 706; 1 Greenleaf on Evidence, sec. 108.
Moreover, there was evidence tending to show that Lavell did meet appellant immediately
after the former left the hotel.
10, 11. It cannot be maintained that there was any error in the court's refusal to admit in
evidence the testimony of certain witnesses for appellant to the effect that shortly before the
killing of Lavell the witness Connis declared that he had his car in soak in Reno for $1,000,
and had to make some money to get it out; and also testimony tending to show that shortly
after the disappearance of Lavell the car was in Elko. It is, of course, always competent for a
defendant to introduce any legitimate evidence tending to show that some other person is
guilty, but the proferred evidence must clearly appear to have such tendency. It must be such
as directly connects the other with the corpus delicti.
The correct rule is, in our opinion, stated by the court in Greenfield v. People, 85 N.Y. 76,
39 Am. Rep.
52 Nev. 235, 259 (1930) State v. White
636, and quoted with approval in State v. Louie Moon, 20 Idaho, 202, 117 P. 757, 758, Ann.
Cas. 1913a, 724. The court said: While evidence tending to show that another party might
have committed the crime would be admissible, before such testimony can be received, there
must be such proof of connection with it, such a train of facts or circumstances, as tend
clearly to point out some one besides the prisoner as the guilty part. Remote acts,
disconnected, and outside of the crime itself, cannot be separately proved for such a purpose.
See, also, 8 R.C.L. p. 185.
Standing alone, the evidence proferred did not tend to connect Connis with the killing, nor
did it tend to incriminate him, taken in connection with any other evidence in the case. There
was nothing in the evidence tending directly to connect Connis with the killing. In the
absence of such incriminating evidence, the evidence proferred by appellant, and the other
circumstances appearing in the record which it is claimed point to the guilt of Connis, are just
as consistent with his innocence. Therefore, the testimony offered as to the declaration of
Connis as to his car was entirely negligible in probative value and inadmissible under the rule
stated. The decisions relied on by appellant as to this contention do not at all resemble the
instant case as to the facts involved.
There was no error in the refusal of the court to permit the witness Connis to testify on
cross-examination as to whether he had his car in soak in Reno for $1,000. It was
immaterial for the reasons already stated in this opinion, and was not proper
cross-examination.
12. Appellant contends that it was the trial court's duty to instruct the jury, limiting the
purpose for which they could consider the testimony of the witness Connis to the effect that a
conspiracy had existed between appellant, Connis, and Lavell to commit a felony with
marked cards, and that the failure of the court to do so was error. We do not think so. If
appellant's counsel thought that an instruction of this kind was proper, it was incumbent on
him to have prepared such an instruction and requested the court to give it.
52 Nev. 235, 260 (1930) State v. White
incumbent on him to have prepared such an instruction and requested the court to give it.
State v. Smith, 10 Nev. 106; State v. Davis, 14 Nev. 407; State v. St. Clair, 16 Nev. 207;
State v. Blaha, 39 Nev. 115, 154 P. 78; State v. Switzer, 38 Nev. 108, 145 P. 925.
We are referred by counsel for appellant to the case of State v. McFarlin, 41 Nev. 486, 172
P. 371, but we do not think it is an authority in support of his contention. That is a case of
embezzlement, and evidence of other shortages than that charged in the information was
admitted upon the trial of the case. While one of the justices used language in his opinion
which seems to indicate that he believed it incumbent upon the court upon its own motion to
instruct the jury limiting the purpose of the evidence as to other shortages, the case does not
hold that it would have been prejudicial error not to so instruct, in the absence of a request for
it. However, such an instruction was highly proper to be given in that case, particularly to
guard against the danger of a conviction for a shortage other than the one charged in the
information. In the instant case there was no danger of appellant being convicted of a fraud
with marked cards.
13. The testimony of the witness Heinrich to the effect that certain hairs found on the
clothing of Lavell were identical to a hair found in one of the stains of blood near the powder
house was properly admitted. The witness was shown to have special knowledge in this
respect, and his opinion was based thereon. A sufficient foundation was laid for the
assumption that the hairs found on Lavell's clothing came from his head. The fact that there
was room for doubt in this regard affected the weight rather than the competency of the
opinion of the expert witness.
14-16. The witness Heinrich gave as his opinion on direct examination that a number of
the bones, including a skull, found in the ruins of the Ryan cabin, were human bones. On
cross-examination the witness stated that he had no professional knowledge of anatomy, and
counsel for appellant moved to strike the testimony of the witness relating to the bones, on
the ground that he was not an expert as to that line of testimony.
52 Nev. 235, 261 (1930) State v. White
the witness relating to the bones, on the ground that he was not an expert as to that line of
testimony. The refusal of the court to grant this motion is assigned as error. The mere fact that
a witness disclaims being an expert as to a particular subject about which he testifies will not
of itself render his opinion inadmissible. The question always is whether he has sufficient
knowledge to enable him to give an opinion as to the matter concerning which he is
questioned, and is always addressed to the sound discretion of the court. Underhill's Criminal
Evidence (3d ed.), sec. 189.
The witness Heinrich was a consulting criminologist, and had followed this profession for
eighteen or nineteen years. He qualified as an expert in his line of work, and counsel for
appellant admitted his qualifications. In pursuing his investigations in criminal matters during
these years, he had come to know something of anatomy by reason of his work. He had seen
skulls which he knew to be human skulls. The weight of his opinion to the effect that the
bones exhibited to him were human bones was for the jury, and there was no misuse of
discretion on the part of the court in retaining the testimony in the record. Moreover, there
was other testimony to amply justify the jury in concluding that the bones found in the ruins
of the Ryan cabin were human bones. This would have cured error in that regard if there had
been any error. State v. Johnny, 29 Nev. 203, 87 P. 3.
17, 18. The court received in evidence the testimony of a witness to the effect that, after
appellant's car had been returned from Wyoming to Elko, he discovered a stain on the metal
strip used for a sill under the back door of his automobile on the right-hand side, which
appeared to be a bloodstain. The metal strip was submitted to Professor Heinrich and Dr.
Victor for an examination. The former testified that the stain was of blood, and the latter that
it was human blood. Brown's testimony was objected to, and it is claimed that no proper
foundation was laid for its admission, in that it was not shown that the car when Brown saw
the stain on the strip was in the same condition as it was when appellant left it in the
private garage in Rawlings, Wyoming.
52 Nev. 235, 262 (1930) State v. White
the stain on the strip was in the same condition as it was when appellant left it in the private
garage in Rawlings, Wyoming. It is true that the foundation laid did not show absolutely that
there had been no change in the condition, but enough was shown to justify the inference that
its condition was unchanged. When this had been done, circumstances which tend to show
that the proof is not conclusive go merely to the weight and not to the admissibility of the
evidence. A prima facie showing is sufficient. Clear, certain and positive proof is not
required. 16 C.J. 619; Underhill's Criminal Evidence (3d ed.), sec. 101, p. 106.
Continuous custody of the car by the witnesses who had such custody was shown by their
testimony from the time it was left by appellant in a private garage in Rawlings, Wyoming,
until Brown took charge of it and discovered the stain on the metal strip.
It is unnecessary to set out this testimony in detail, but it is to the effect that there was no
change in the condition of the car. It does not exclude the possibility of others having access
to the car; but it does show that it was quite probable that the stain did not come upon the
metal strip during the time covered by the testimony laying the foundation. There was,
therefore, no error in the admission of Brown's testimony.
We have considered all of the contentions made by appellant, and find no error. The
accused, in our opinion, received a fair and impartial trial.
As no error appears in the record, the judgment and order appealed from are affirmed, and
the district court is directed to make the proper order for the carrying into effect by the
warden of the state prison the judgment rendered.
On Petition for Rehearing
April 23, 1930.
Per Curiam:
Rehearing denied.
____________
52 Nev. 263, 263 (1930) Brockman v. Ullom
BROCKMAN v. ULLOM
No. 2890
March 7, 1930. 285 P. 485.
1. Appeal and ErrorDocuments Not Made Part of Judgment Roll Proper Can Be
Considered Only when Incorporated in Bill of Exceptions.
Documents which are not a part of judgment roll proper can be considered only when incorporated in
bill of exceptions.
2. Appeal and ErrorIf Bill of Exceptions Can Be Corrected or Amended at All, It Must Be
done by Trial Court.
If bill of exceptions can be corrected or amended at all, it must be done by trial court.
C.J.-CYC. REFERENCES
Appeal and Error4 C.J. sec. 1760, p. 141, n. 3; sec. 1935, p. 315, n. 17.
Appeal from Tenth Judicial District Court, Clark County; W.E. Orr, Judge.
Action by Henrietta L. Brockman against J.M. Ullom. From the judgment, plaintiff
appeals. On plaintiff's application for an order for a diminution of the record pursuant to court
rule 7. Application denied, with leave to apply for order remanding bill of exceptions for
correction and amendment.
Ham & Taylor and Wm. J. Forman, for Appellant:
This court has repeatedly held that the appellant making a motion for diminution of the
record shall have an opportunity of correcting a defective record. We have been unable to find
any case where this court has failed to afford the appellant such an opportunity since the
enactment of Stats. 1923, p. 163, c. 97. In each case that has arisen in this court since the
enactment of this statute, from the case of Shirk v. Palmer, 48 Nev. 449, to the case of
Orleans Hornsilver Mining Company v. Le Champ D'Or French Gold Mining Company, just
recently decided, the right has been afforded the appellant to correct any defect which may
exist in the record.
If this court should hold that respondent can, on this motion, properly raise the objections
to the inclusion of the documents mentioned in the record on appeal, then appellant
submits, under the statutes of this state, the rules of court, and the decisions heretofore
rendered by this court, she is entitled to have such documents considered by this court as
a part of the bill of exceptions.
52 Nev. 263, 264 (1930) Brockman v. Ullom
appeal, then appellant submits, under the statutes of this state, the rules of court, and the
decisions heretofore rendered by this court, she is entitled to have such documents considered
by this court as a part of the bill of exceptions.
We are simply asking the court to allow us to correct clear omissions and inaccuracies in a
bill of exceptions that has already been settled and allowed by the lower court, which was not
the situation in most of the cases cited by respondent.
A.A. Hinman and Cooke & Stoddard, for Respondent:
The affidavits merely go to show that the record as settled and certified over six months
ago is not correct and should now be amended, added to, etc., by this court, by bringing up
papers not included in the original bill of exceptions. In any event, this court has no power to
amend bills of exceptions. The utmost this court can do is to make appropriate orders to the
trial judge. Proposed amendments to bill of exceptions cannot be considered as part of
record on appeal without a certificate by trial court, required by Statutes 1923, chap. 97, sec.
5. (Syll.) Water Co. v. Tonopah Belmont Dev. Co., 49 Nev. 172, 241 P. 1079.
Here, inasmuch as the time has long since expired within which the trial court could have
acted, the decision of this court in the case infra would seem conclusive: We cannot order
the amendment of a bill of exceptions after the time has expired within which such bill of
exceptions should have been settled so as to bring into it evidence not incorporated therein.
Caldwell v. Wedekind Mines Co., 50 Nev. 366; 261 P. 652.
OPINION
By the Court, Coleman, J.:
This case is now before the court upon an application for an order for a diminution of the
record pursuant to rule 7 of this court, so as to bring up an order of September 9, 1929,
extending the time of plaintiff within which to serve and file objections to the allowance
and settlement of the bill of exceptions, notice of intention to move for a new trial, and
memorandum of errors and exceptions to be relied upon on motion for a new trial.
52 Nev. 263, 265 (1930) Brockman v. Ullom
to rule 7 of this court, so as to bring up an order of September 9, 1929, extending the time of
plaintiff within which to serve and file objections to the allowance and settlement of the bill
of exceptions, notice of intention to move for a new trial, and memorandum of errors and
exceptions to be relied upon on motion for a new trial.
In support of the application there is filed an affidavit of one of the attorneys for appellant,
stating that said papers are actually a part of the record in the case, and giving the date of the
filing of each, and copies of said documents certified to by the clerk of the trial court as being
true copies of the originals.
Counsel for respondent object to the application. They call attention to the fact that in their
answering brief on the merits, filed on October 24, 1929, they objected to the consideration
by this court of the evidence in the case because of the fact that the bill of exceptions does not
contain a notice of the intention of the defendant to move for a new trial, and is otherwise
defective.
It was thereafter that the motion now before us was made.
The papers now sought to be brought up are not embraced in the judgment roll proper and
can only be brought into the record by being made a part of the bill of exceptions.
1. It is settled law in this state that documents which are not a part of the judgment roll
proper can be considered only when incorporated in a bill of exceptions. Water Co. v.
Tonopah Belmont Dev. Co., 49 Nev. 172, 241 P. 1079; Bowers v. Charleston Hill Etc., 50
Nev. 99, 251 P. 721, 256 P. 1058.
It is insisted, however, by counsel for appellant that, in view of the well-settled policy of
the law, as expressed in Orleans Hornsilver M. Co. v. Le Champ D'Or French G.M. Co., Ltd.,
52 Nev. 85, 280 P. 887, that cases should be disposed of by this court on their merits, that we
should grant the application. In this connection our attention is called to the order made in
Shirk v. Palmer, 48 Nev. 449, 232 P. 1083, 236 P. 678, 239 P. 1000.
A somewhat different situation is presented in this application than was presented in the
case last mentioned, in that the papers sought to be brought up herein can only be
considered when incorporated in a duly settled bill of exceptions, which this court can in
no way correct or amend.
52 Nev. 263, 266 (1930) Brockman v. Ullom
application than was presented in the case last mentioned, in that the papers sought to be
brought up herein can only be considered when incorporated in a duly settled bill of
exceptions, which this court can in no way correct or amend.
2. If the bill of exceptions can be corrected or amended at all it must be done by the trial
court. Yori v. Cohn, 26 Nev. 228, 65 P. 945, 67 P. 212; Bowers v. Beck et al., 2 Nev. 144;
Elliott App. Proc., sec. 825, citing Harris v. Tomlinson, 130 Ind. 426, 30 N.E. 214; Lefferts v.
State, 49 N.J. Law, 26, 6 A. 521; Martin v. St. Louis, etc., Co., 53 Ark. 250, 13 S.W. 765;
Morse v. Woodworth, 155 Mass. 233, 27 N.E. 1010, 29 N.E. 525, and other cases.
Whether this court would, on application and showing, remand the bill of exceptions to the
trial court for correction and amendment is a question we cannot now decide.
The application is denied, with leave to appellant to apply within fifteen days from service
hereof for an order remanding the bill of exceptions for correction and amendment.
____________
52 Nev. 267, 267 (1930) Brockman v. Ullom
BROCKMAN v. ULLOM
No. 2890
April 5, 1930. 286 P. 417.
1. CourtsRecordsPower to AmendTruth.
Generally, every court of record has inherent authority to amend its records to make them speak the
truth.
2. Appeal and ErrorDispositionMerits.
Cases on appeal to supreme court should be disposed of on merits in view of statute (Rev. Laws, sec.
5358; Stats. 1923, c. 97).
3. Appeal and ErrorBill of ExceptionsRemandCorrectionTruth.
Bill of exceptions may be remanded to district court for correction and amendment to make it speak
the truth under statute (Stats. 1923, c. 97, sec. 5).
4. Appeal and ErrorBill of ExceptionsCorrection by Trial CourtNoticeGood Cause.
Trial court may amend and correct bill of exceptions at any time on notice and showing of good cause
under statute (Rev. Laws, sec. 5084).
C.J.-CYC. REFERENCES
Appeal and Error4 C.J. sec. 1941, p. 320, n. 78; sec. 1944, p. 321, n. 97; sec. 3190, p. 1167, n. 94.
Courts15 C.J. sec. 395, p. 975, n. 10.
Appeal from Tenth Judicial District Court, Clark County; W.E. Orr, Judge.
Action by Henrietta L. Brockman against J.M. Ullom. From the judgment plaintiff
appeals. On application by appellant for order remanding bill of exceptions to district court
for correction and amendment. Application granted.
Ham & Taylor and Wm. J. Forman, for Appellant.
A.A. Hinman and Cooke & Stoddard, for Respondent.
OPINION
By the Court, Coleman, J.:
Pursuant to an order (52 Nev.) heretofore made in this case, counsel for appellant have
applied for an order remanding the bill of exceptions to the district court of the Tenth
judicial district for correction and amendment.
52 Nev. 267, 268 (1930) Brockman v. Ullom
remanding the bill of exceptions to the district court of the Tenth judicial district for
correction and amendment.
It is sought to have the bill of exceptions corrected so as to show that it was settled by the
district judge on the 17th day of September, 1929, instead of on the 17th day of August, 1929,
which appears from the bill of exceptions to have been the date upon which it was settled. It
is also sought to have the bill of exceptions amended so as to incorporate into it the notice of
motion for a new trial, the memorandum of errors and exceptions filed in the case, and an
order extending time.
Counsel for respondent base their objection to the application upon the opinion in Shirk v.
Palmer, 48 Nev. at page 451, 232 P. 1083, 236 P. 678, 239 P. 1000. The opinion mentioned
does not sustain the contention. We held that there was no bill of exceptions in that case. Not
so in this case. There is a bill of exceptions duly settled.
1. As a general proposition of law, needing no statute to authorize it, the rule seems to be
settled without serious question that every court of record has inherent authority to amend its
records so as to make them speak the truth. 15 C.J. 975. This seems equally true as to the
amendment of bills of exceptions. 4 Stand. Ency. of Proc. p. 361. See, also, 3 Ency. Pl. & Pr.
503; Hedlun v. Holy Terror M. Co., 14 S.D. 369, 85 N.W. 861; Thompson v. C., M. & St. P.
Ry. Co., 26 S.D. 298, 128 N.W. 809; McGregor v. Oregon Ry. Co., 50 Or. 527, 93 P. 465, 14
L.R.A. (N.S.) 668; Stockgrowers' Bank v. Gray, 22 Wyo. 482, 144 P. 294; Beckwith v.
Talbot, 2 Colo. 604.
But it is insisted that such an amendment or correction is prohibited by district court rule
45, which reads: No judgment, order, or other judicial act or proceeding, shall be vacated,
amended, modified, or corrected by the court or judge rendering, making, or ordering the
same, unless the party desiring such vacation, amendment, modification, or correction shall
give notice to the adverse party of a motion therefor, within six months after such judgment
was rendered, order made, or action or proceeding taken."
52 Nev. 267, 269 (1930) Brockman v. Ullom
within six months after such judgment was rendered, order made, or action or proceeding
taken.
2, 3. We have grave doubts if this rule was intended to prevent the entry of an order to
make the record speak the truth in any case, and even more serious doubts as to its having
been intended to prevent the correction of a bill of exceptions; but as we view the situation it
is not necessary that we decide this point, for if such were the intention it has been superseded
by statute. We have repeatedly held that it is the policy of the legislature, as manifested by
section 5358, Rev. Laws, and by chapter 97, Stats. 1923, that cases on appeal to this court
should, so far as possible, be disposed of upon their merits. Section 5 of the last-mentioned
act provides that if a record on appeal in this court does not accurately or fully state the
proceedings the court may take such steps and issue such orders, including orders to the lower
court for the certification to this court of such additional records or proceedings as shall be
necessary or proper to correct or complete the record on appeal. This section seems to be
comprehensive enough to meet any situation which may arise calling for the amendment or
correction of a bill of exceptions so as to make it speak the truth.
4. Furthermore, we think that upon notice and a showing of good cause, pursuant to
section 5084, Rev. Laws, the lower court might amend and correct the bill of exceptions at
any time. Sherman v. Southern Pac. Co., 31 Nev. 285, 102 P. 257; 2 Cal. Juris. 293; 4 C.J.
291.
Whether such a notice and showing must be made in this matter in the district court we are
not now called upon to decide.
It is ordered that the bill of exceptions on file herein be returned by the clerk of this court
to the clerk of the Tenth judicial district court in and for Clark County, for correction and
amendment by the court, in its discretion, so as to make it speak the truth in reference to the
matters in question.
____________
52 Nev. 270, 270 (1930) State v. District Court
STATE Ex Rel. MALONE, State Engineer, Et Al. v. DISTRICT COURT OF SIXTH
JUDICIAL DISTRICT OF NEVADA, In and For Humboldt County, Et Al.
No. 2883
March 28, 1930. 286 P. 418.
1. ContemptConstitutional Courts Have Inherent Power to Punish for Contempt.
It is within inherent power of all constitutional courts to punish for contempt any act which tends to
impede, embarrass, or obstruct them, or their officers, in discharge of their duties.
2. ContemptInterference with Officer of Court in Performance of Official Duties
Constitutes Contempt of Court.
It is universal rule that interference with an officer of court in performance of his official duties
constitutes contempt of court.
3. ContemptWhere State Engineer Filed Order of Determination of Water Rights with
Clerk of District Court and Commissioners Were Appointed Who Constructed Dam,
and Thereafter Contemnors Destroyed Dam, District Court Had Jurisdiction of
Contempt Proceedings Against Contemnors.
Where state engineer, pursuant to proceedings theretofore had, filed with clerk of district court his
order of determination of relative rights of water appropriators of certain river stream system and
thereafter water commissioners were appointed pursuant to water law, sec. 52, as amended by Stats.
1915, c. 253, sec. 11, to distribute water in accordance with engineer's order of determination under water
law, sec. 38, as amended by Stats. 1915, pp. 381, 382, sec. 8, and after they had entered upon
performance of their duties and had constructed dam for diversion of water, contemnors, in defiance of
their authority, destroyed dam, district court had jurisdiction of contempt proceedings against contemnors
under water law, sec. 36 1/2, as added by Stats. 1927, c. 192, providing that after filing order of
determination in district court distribution of water shall be under supervision and control of district
court.
4. ContemptAfter Filing of Order of Determination of Water Rights with Clerk of Court by
State Engineer, Water of River System Was in Custodia Legis.
From and after filing of order of determination of water rights with clerk of district court by state
engineer, water of river stream system during irrigation season was in custodia legis under water law, sec.
38, as amended by Stats. 1915, pp. 381, 382, sec. 8, and section 36 1/2, as added by Stats. 1927, c. 192.
C.J.-CYC. REFERENCES
Contempt13 C.J. sec. 26, p. 21, n. 97; sec. 62, p. 46, n. 42.
52 Nev. 270, 271 (1930) State v. District Court
Original proceedings in mandamus by the State, on the relation of George W. Malone, as
State Engineer, and individually, against the District Court of the Sixth Judicial District of the
State of Nevada, in and for the County of Humboldt, Frank T. Dunn, Acting District Judge of
said Court, to compel respondent to assume jurisdiction in a contempt proceeding. Writ
issued.
M.A. Diskin, Attorney-General, and Wm. J. Forman, Deputy Attorney-General, for
Relator.
At the outset we desire to point out that we are not attempting to make the order of
determination of the state engineer the order of the district court, and are not attempting to
confer judicial powers upon the state engineer. Relator only asked in the lower court, and is
here only asking, that the court apply the rule of law that is in force throughout the United
States and that has been passed upon by the supreme court of this state. That rule is that,
where property in a pending action is placed in the custody of the law, any interference with
the court officer or officers in charge of the property in the discharge of their duties is an
interference with the possession of the law itself and is punishable as a contempt of the court
in which the action is pending. This rule is well stated in the case of In Re Reese, 107 Fed.
942, and has been consistently upheld by the United States Supreme Court in the following
cases: Davis v. Gray, 21 L. Ed. 447; Wiswell v. Sampson, 14 L. Ed. 328. There are contained
in volumes 39 A.L.R. at p. 1, and 48 A.L.R. at p. 241, extensive notes covering this point as
far as such actions relate to receivers. As pointed out in the supreme court decisions above
noted, this rule is not applied to cases of receivers alone, but is also applied to sequestrators
and in cases where a trustee in bankruptcy takes possession of the bankrupt's property. See
Moore v. Billings, 80 P. 422. Our own court has passed upon this same question in the case
of State v. Second Judicial District Court, 228 P. 617.
Were the water commissioners, in distributing the waters of the Humboldt River, acting as
officers of the court?
52 Nev. 270, 272 (1930) State v. District Court
court? The statute, sec. 36 1/2 of chap. 140, Stats. 1913, as amended, Stats. 1927, c. 192,
specifically states that said officers shall at all times be deemed to be officers of the court in
distributing water under and pursuant to the order of determination; thus, the legislature itself
has here supplied, in no uncertain language, the first element necessary to bring contemnors
within the rule above stated.
Did the alleged contemnors unlawfully interfere with the water commissioners? Certainly
there can be no question raised but what this element is present. The demurrer filed in the
lower court admitted it interference; the demurrer and motion to discharge the writ, filed to
the petition in this proceeding, admit the interference with the water commissioners in
performing their duties.
The third element necessary to be established is that the Humboldt River stream system
was within the custody of the law within the meaning of that term, as used in the rule stated.
This phrase, custody of the law, or custodia legis, is defined in Rothschild v. Harsbrouck,
65 Fed. 286, as involving the actual dominion over some objecting thing by the court.
Again referring to sec. 36 1/2 of the water law, as amended, we find that the legislature
expressly placed the supervision and control of the distribution of water of streams under
adjudication within the district court. It would be hard to conceive how the legislature could
have used any stronger language in tending to place actual dominion of a stream system
within the hands of the court. And there could have been no object whatever in making the
water commissioners officers of the court in distributing the waters and placing the
supervision and control of such distribution with the court unless it was intended by the
legislature to place the steam system in the custody of the law.
Milton B. Badt, James Dysart, Morley Griswold and Milton J. Reinhart, for Respondents:
Relator maintains that the proceeding resolves itself into three questions, and then
proceeds to answer these three questions in the affirmative.
52 Nev. 270, 273 (1930) State v. District Court
into three questions, and then proceeds to answer these three questions in the affirmative. In
this we take issue.
First, the water commissioners were not acting as officers of the court, for the reason that
the court had made no order in the premises.
Second, as to the interference with the water commissioners, we take it that, for the
purpose of this proceeding, the allegations contained in the petition must be considered as
true. In this connection we must note, however, that the acts of the water commissioners were
being done pursuant to the state engineer's order of determination and not pursuant to any
decree of court.
Third, the Humboldt River stream system cannot be considered in the custody of the law at
the time of the alleged contempt. It is true that section 36 1/2 of the water law provides that,
after the filing of the order of determination in the district court, the distribution of the water
shall be under the supervision and control of the district court, but until that supervision and
control have been exercised no custody has attached. The jurisdiction is there, it is true, but it
has not yet been exercised.
We do not, however, agree that the proposition resolves itself into the answering of those
three questions. Our position is that the question before the court resolves itself into the
query: Did the alleged contemnors do any of the acts defined as a contempt by section 5394
of the Revised Lawsmore particularly (since this is the only section that could apply) did
the alleged contemnors disobey or resist any lawful writ, order, rule, or process issued by the
court or judge at chambers? It is admitted by relator that they did not.
OPINION
By the Court, Coleman, J.:
This is an original proceeding in mandamus to compel the respondent to assume
jurisdiction in a contempt proceeding in which he had refused to proceed on the ground
that he had no jurisdiction.
52 Nev. 270, 274 (1930) State v. District Court
proceeding in which he had refused to proceed on the ground that he had no jurisdiction.
We do not deem it necessary to state the allegations of the petition in detail, as the only
question involved is the interpretation of one section of our water law.
The state engineer, pursuant to proceedings theretofore had, filed with the clerk of the
Sixth judicial district court in and for Humboldt County his order of determination of the
relative rights of the water appropriators of the Humboldt River stream system and its
tributaries.
Thereafter, the honorable George A. Bartlett, district judge, entered upon a hearing of said
matter preliminary to making a decree therein.
Thereafter, one J.A. Miller and one Albert Quill were, pursuant to statute (Water Law sec.
52, as amended by Stats. 1915, p. 382, sec. 11), appointed water commissioners to distribute
the water of said river in accordance with the order of determination of the state engineer.
After they had entered upon the performance of their duties as such water commissioners, and
in pursuance thereof had constructed a dam for the diversion of water, W.W. Whitacre and
Emeterio Plaza, in defiance of their authority, destroyed said dam, whereupon contempt
proceedings were initiated against them. The honorable Frank T. Dunn was called in to hear
the same. Objection was made to his proceeding upon the ground that he was without
jurisdiction in that it was not charged that the contemnors had violated any order of court.
The respondent, being of the opinion that the objection was well founded, declined to proceed
further in the matter.
Section 38 of the water law as amended (Stats. 1915, pp. 381, 382, sec. 8), provides that
from and after the filing of the order of determination, evidence, and transcript with the clerk,
as aforesaid, and during the time the hearing of said order is pending, the water of the stream
system shall be distributed in accordance with the terms of said order of determination.
While no order had been made by the court as to the adjudication of the matter, or as to
the distribution of the waters of said stream system, it is contended by the
attorney-general that the water commissioners were officers of the court, and the action
of the contemnors constituted contempt.
52 Nev. 270, 275 (1930) State v. District Court
adjudication of the matter, or as to the distribution of the waters of said stream system, it is
contended by the attorney-general that the water commissioners were officers of the court,
and the action of the contemnors constituted contempt. In support of this contention, reliance
is had upon section 36 1/2 of the water law, as amended (Stats. 1927, p. 337), which reads:
From and after the filing of the order of determination in the district court the distribution
of water by the state engineer or by any of his assistants or by the water commissioners or
their assistants shall, at all times, be under the supervision and control of the district court,
and said officers and each of them shall, at all times, be deemed to be officers of the court in
distributing water under and pursuant to the order of determination or under and pursuant to
decree of the court.
Counsel for respondent insist that no contempt was charged in the complaint, since there is
no allegation of a violation of any of the provisions of section 5394, Rev. Laws, which
provides that certain acts shall constitute contempt of court.
1. All constitutional courts have inherent power to punish for contempt any act which
tends to impede, embarrass, or obstruct them, or their officers, in the discharge of their duties.
There is no dissent from this rule. The courts are unanimous in so declaring. 13 C.J. 46.
This leads us to inquire what could have been the purpose and intent of the legislature in
thus amending the water law? To our mind it is very clear. There is no room for a difference
of opinion. It means exactly what it says, that is, that from the time of the filing of the order
of determination in the clerk's office the water shall be distributed by those charged with that
responsibility, in accordance with the terms of the order, and that such officials shall be
officers of the court, and that such distribution shall be under the supervision and control of
the court.
Such is the plain language of the statute; it needs no interpretation.
52 Nev. 270, 276 (1930) State v. District Court
no interpretation. If the language was somewhat uncertain, it would be so construed as to give
it effect rather than to nullify it.
The water commissioners having been officers of the court, in the discharge of their
official duties, and having been interfered with in the discharge of those duties, by Whitacre
and Plaza, were the latter guilty of contempt? It may be safely stated as a general rule that any
interference with an officer of the court in the discharge of his official duties constitutes
contempt.
2. The mere bringing of a suit against a receiver without permission of court constitutes
contempt in many jurisdictions, and it is a universal rule that the interference with an officer
of a court in the performance of his official duties constitutes contempt of court.
Calling attention to a pending suit, by a litigant, and discussing it in the presence of the
jurors who may have to try the case, is a contempt of court. Baker v. State, 82 Ga. 776, 9 S.E.
743, 4 L.R.A. 128, 14 Am. St. Rep. 192.
It is contempt of court to intimidate a witness to prevent his appearance and giving
testimony. McCarthy v. State, 89 Tenn. 543, 15 S.W. 736.
It has been held that one who induces a person who has knowledge of a crime to leave the
jurisdiction, even though no charge has been filed and no grand jury impaneled, is guilty of
obstructing justice and hence subject to punishment for contempt. Com. v. Berry, 141 Ky.
477, 133 S.W. 212, 33 L.R.A. (N.S.) 976, Ann. Cas. 1912c, 516.
In Ingles v. McMillan, Judge, 5 Okl. Cr. 130, 113 P. 998, 1003, 45 L.R.A. (N.S.) 511, it
was held that to attempt to converse with or influence a judge with reference to a matter
pending before him is an act of gross contempt, and that parties guilty of it should be made
examples of by all judges, saying that: This is necessary to maintain the dignity of the courts
and to protect the reputation of the judges.
The case of Welter v. Jacobson, 7 N.D. 32, 73 N.W.
52 Nev. 270, 277 (1930) State v. District Court
65, 66 Am. St. Rep. 632, was one in which it was held that it was a contempt of court to
replevy property from a sheriff who held it pursuant to a writ of replevin, since the property
was in custodia legis.
A flood of authorities of a similar character might be cited.
The theory upon which it is held that one who interferes with the possession of a receiver
is in contempt of court is that the possession of the receiver is the possession of the court,
since the receiver is an officer of the court. 23 R.C.L. p. 64.
3. Pursuant to the statute in question the officers whose efforts in the distribution of the
water of the Humboldt River was interfered with were officers of the court, under whose
supervision and control it was being distributed. This being so, if the reasoning in the above
cases is good law, as we think it is, there can be no doubt but that the section of the statute
quoted and the allegations in the complaint are ample to confer jurisdiction upon the
respondent to hear and determine the question of the guilt of the contemnors.
4. Pursuant to the statute quoted, from and after the filing of the order of determination
with the clerk of the court by the state engineer, the water of the Humboldt River stream
system, during the irrigation season, was in custodia legis. Such was clearly the intention of
the statute.
Holding these views, it follows that the writ must issue as prayed.
It is so ordered.
____________
52 Nev. 278, 278 (1930) Chartz v. Cardelli Et. Al.
CHARTZ v. CARDELLI Et Al.
No. 2901
March 29, 1930. 286 P. 125.
1. Appeal and ErrorAppeal Can Only Be Taken in Manner Provided by Statute.
Mode of taking appeal is regulated by statute, and can be taken only as provided thereby.
2. Appeal and ErrorOrder Sustaining Demurrer to Complaint Held Not Appealable.
Under Rev. Laws, sec. 5329, as amended by Stats. 1913, c. 91, order of court sustaining respondent's
demurrer to complaint held not appealable.
C.J.-CYC. REFERENCES
Appeal and Error3 C.J. sec. 3, p. 300, n. 19; sec. 312, p. 481, n. 8.
Appeal from Eighth Judicial District Court, Lyon County; Clark J. Guild, Judge.
Action by Alfred Chartz against Carmelinda Cardelli and others, as sole heirs at law.
Judgment for defendants, and plaintiff appeals. Affirmed.
Alfred Chartz and John M. Chartz, for Appellant.
Wm. M. Kearney and Green & Lunsford, for Respondents.
OPINION
By the Court, Ducker, C.J.:
Respondents moved to dismiss the appeal in this action upon the ground that the order
appealed from is not appealable. The record discloses that the appeal is taken from an order
of the court sustaining respondents' demurrers. It further discloses that no judgment has been
rendered in the case.
1. The mode of taking an appeal is regulated by statute and can be taken only as provided
thereby. Johns-Manville, Inc. v. Lander County, 48 Nev. 244, 229 P. 387, 234 P. 518.
2. Section 5329, Rev. Laws, as amended by Stats. 1913, p. 113, c. 91, does not provide for
an appeal from a decision sustaining a demurrer to a complaint, nor is the right to an
appeal from such a ruling elsewhere given.
52 Nev. 278, 279 (1930) Chartz v. Cardelli Et. Al.
a decision sustaining a demurrer to a complaint, nor is the right to an appeal from such a
ruling elsewhere given. The precise point has been decided by this court in Keyser v. Taylor
et al., 4 Nev. 435. In that case the court said: The statute does not authorize an appeal from
the action of the court simply sustaining a demurrer. There must in such case be a final
judgment before an appeal can be taken.
As the order made in this case is not appealable, the appeal must be dismissed.
It is so ordered.
It is further ordered that the remittitur issue forthwith.
____________
52 Nev. 279, 279 (1930) Pacific Live Stock Co. v. Ellison Ranching Co.
PACIFIC LIVE STOCK CO. v. ELLISON
RANCHING CO. Et Al.
Nos. 2448, 2449
April 2, 1930. 286 P. 120.
1. Appeal and ErrorIn Appealing from Degree Quieting Title in Various Claimants to
Water Rights, Held All Claimants Should Have Been Served with Notice of Appeal
Where lower proprietor brought suit against 45 upper proprietors seeking to determine priority and
appropriative rights to waters in river and tributaries thereof, and decree specified priority of defendants
and quieted titled in them to specified quantity of water, decree was not nullity, in so far as it adjudicated
rights of defendants among themselves, and hence nonappealing defendants, as adverse parties, were
entitled to notice of appeal by other defendants.
2. Water and Water CoursesPurpose of Suit to Quiet Title to Water Rights Is to Decide
Respective Rights of All Parties.
In suit to quiet title to water rights, main purpose is to determine respective rights of all parties to use
of water.
3. Appeal and ErrorAppellate Jurisdiction Is Dependent on Service of Notice of Appeal on
Adverse Party.
Indispensable prerequisite to appellate jurisdiction of supreme court is that notice of appeal be served
on adverse party or his attorney, under Rev. Laws, sec. 5330.
52 Nev. 279, 280 (1930) Pacific Live Stock Co. v. Ellison Ranching Co.
4. Appeal and ErrorEvery Party Whose Interest in Subject Matter is Adverse to Appellant,
or Would Be Affected by Reversal, is Adverse Party Entitled to Notice of Appeal.
Within meaning of Rev. Laws, sec. 5330, adverse party, who is entitled to notice of appeal,
includes every party whose interest in subject matter of appeal is adverse to appellant, or will be affected
by reversal or modification of judgment.
5. StipulationsStipulation by Some of Defendants in Suit Involving Water Rights,
Purporting to Validate Appellate Proceedings by Certain Defendants, Could Not Bind
Others.
Where lower proprietor brought suit against forty-five upper proprietors to determine respective
priorities and appropriative rights to water, and certain defendants, who appealed without serving notice
of appeal on codefendants, obtained stipulation purporting to validate or approve proceedings to perfect
appeal, signed by only eleven of answering defendants, stipulation could not bind defendants not parties
thereto.
6. Appeal and ErrorWhether Appeals Were Perfected in Proper Time and Manner Is to Be
Decided by Supreme Court.
It is right and duty of supreme court to determine whether appeals were perfected in manner and time
required by statute.
7. Appeal and ErrorQuestion Whether Others Should Have Been Parties to Motion for
New Trial Is Not Involved on Motion to Dismiss Appeal from Order Denying New
Trial.
Where motion is made to dismiss appeal from order denying new trial, regardless of merits of
litigation, question of whether other persons should have been made parties to motion for new trial is not
involved.
8. New TrialWho Are Adverse parties to Motions for New Trial Are Determined by Same
Rules as Apply to Appeals.
In determining who are adverse parties to motions for new trial, same rules govern as in case of
appeals.
9. New TrialIn Suit Quieting Title to Water Rights, Failure of Some Defendants To Serve
Notice of Motion for New Trial on Others Was Ground for Affirming Order Denying
Motion.
Where lower proprietor brought suit against forty-five upper proprietors to adjudicate priorities and
appropriative rights in waters, and some of defendants filed motion for new trial, based principally on
ground of insufficiency of evidence, their failure to serve notice of intention to move for new trial on
their codefendants was sufficient reason for affirming order denying the motion.
10. PleadingAmendment to Answer Was Properly Allowed After Decree to Put in Issue
Litigated Question Upon which Evidence Had Been Received Without Objection.
In suit to quiet title to water rights, where one of issues involved tributary character of certain creeks,
testimony on such issue being admitted without objection, and decree adjudging creeks to be tributary not
being complained of, there was no abuse of discretion in allowing amendment to answer
after decree in order to put directly in issue question of tributary character of the
creeks.
52 Nev. 279, 281 (1930) Pacific Live Stock Co. v. Ellison Ranching Co.
no abuse of discretion in allowing amendment to answer after decree in order to put directly in issue
question of tributary character of the creeks.
C.J.-CYC. REFERENCES
Appeal and Error3 C.J. sec. 128, p. 372, n. 53; sec. 1284, p. 1202, n. 62; sec. 1320, p. 1218, n. 9; sec.
1321, p. 1221, n. 16; 4 C.J. sec. 2426, p. 602, n. 33; sec. 2875, p. 905, n. 41.
New Trial46 C.J. sec. 254, P. 290, n. 32.
Stipulations36 Cyc. p. 1293, n. 72.
Waters40 Cyc. p. 729, n. 82.
Appeal from Sixth Judicial District Court, Humboldt County; E.J.L. Taber, Judge.
Suit by the Pacific Live Stock Company against the Ellison Ranching Company, L.J.
Anderson Dunn, and others, in which defendants named filed separate cross-complaints.
From part of the final decree, and from an order denying their motion for a new trial, and also
from an order denying their application and motion to change and modify the findings of
facts, conclusions of law, and the final decree, defendant last named and others appeal. From
an order made after the final decree permitting defendant last named and others to amend
their answers, plaintiff appeals. Appeals dismissed, and orders affirmed.
J.W. Dorsey and W.E. Cashman, for Appellants:
The appellants respectfully submit that the motion for a new trial and the appeal from the
order denying the same, and the appeal from the judgment herein, were made and taken in all
respects as required by law; that the defendants were nonadversary parties as between
themselves, and the judgment is a nullity as respects the rights of the nonappealing
defendants inter sese; that the decree may be reversed as to the appeals and remain in force as
to the nonappealing defendants, and that section 5227 of the Revised Laws as amended
provides for an independent proceeding, an independent record, and an appealable order.
In relation to the motion for a new trial and the appeal from the order denying the same, it
is submitted:
(a) The right of appeal is a valuable right, remedial in character; it must be construed to
effectuate the right, and always granted in doubtful cases.
52 Nev. 279, 282 (1930) Pacific Live Stock Co. v. Ellison Ranching Co.
in character; it must be construed to effectuate the right, and always granted in doubtful cases.
(b) The action being one against several tort feasors, it must be regarded as though each
defendant had been separately sued.
(c) No issues were created by and among the parties except by answer and
cross-complaint, and the only issues in which the appellants were interested were created by
their answers to plaintiff's complaint and their cross-complaints against the plaintiff, and by
their answer to the cross-complaint of, and the cross-complaint against, the defendant Ellison
Ranching Company.
(d) The appellants neither had, nor were they served with, nor did they waive, notice of the
decision.
(e) The filing of the findings of fact and judgment herein on April 11, 1919, constitute the
first and only notice to the appellants of the decision of January 6, 1919, and their notice of
intention to move for a new trial was made within ten days thereafter, to wit, on April 21,
1919, and their appeal from the order overruling their motion for a new trial was taken within
the time and in the manner provided by statute.
(f) The defendants between whom no issues existed were not adverse parties, and the court
had no jurisdiction to adjudicate rights between them.
(g) The only parties necessary to be served were those who appeared to be
adversebetween whom issues had been created at the time the notice of intention to move
for a new trial was filed, and the same parties were the only parties necessary to be served on
appeal from the order denying the motion for a new trial.
(h) The record shows due service of all notice upon the plaintiff and the defendant Ellison
Ranching Company, and also an express stipulation of all other parties that the notice of
intention to move for a new trial and appeal therefrom, and all appeals and proceedings had
been duly taken, and that the notices, motions and appeals were duly perfected.
52 Nev. 279, 283 (1930) Pacific Live Stock Co. v. Ellison Ranching Co.
In relation to the appeal from the judgment, it is submitted:
(a) The only adversary parties on the record or under the issues are the plaintiff and the
defendant Ellison Ranching Company, and the record shows due service of notice of appeal.
(b) By express admission of every other party, except defaulting and dismissed defendants,
all were duly served with notice of appeal. Every step required to vest the lower and this court
with jurisdiction was taken in the manner and within the time provided by the statute.
(c) This was not a statutory proceeding to allot the waters of a stream, but was a suit in
equity with selected and selectable defendants to abate nuisances, in which there were no
issues among the defendants excepting the Ellison Ranching Company, and the court was
without jurisdiction to adjudge the rights of the defendants inter sese, and the decree outside
of the issues is pro tanto a nullity.
As to defaulting, dismissed and disclaiming defendants:
(a) As to a defaulting defendant, having admitted the allegations of the complaint, he
cannot be regarded as an adverse party and cannot be injuriously affected by a reversal of the
judgment.
(b) As to a dismissed defendant, there has been no trial on the merits; he is out of the case,
he stands as though he had not been sued, and there can be no estoppel; he is liable to further
action by the plaintiff whenever a cause of action upon the original subject matter arises, and
he cannot be injuriously affected by a reversal judgment.
(c) As to a disclaiming defendant, there never can be a judgment against him which could
give the plaintiff more than his disclaimer admits.
The decree may be reversed as to appellants and remain in force as to nonappealing
defendants:
(a) The case must be considered and determined as though the defendants between whom
issues existed had been sued separately and the judgment determined issues as between
or among themselves is void.
52 Nev. 279, 284 (1930) Pacific Live Stock Co. v. Ellison Ranching Co.
had been sued separately and the judgment determined issues as between or among
themselves is void.
(b) A reversal of the decree would take effect upon the appellants and upon the appellants
only.
There is no antecedent proceeding from which an appeal could have been taken which
could determine the questions required to be raised by the application to modify the findings.
The order in relation to such an application is a special order, made after final judgment and
dependant upon its own record. Section 5227, Rev. Laws, is a remedial one and must be
liberally construed to effectuate the rights of the party against whom the order is made and to
provide for a reexamination of the merits of the application in this court.
In case No. 2449, the plaintiff contends that sec. 5084 of our Revised Laws does not
expressly authorize an amendment after final judgment. Our answer is that the statute is
remedial in character and should be liberally construed; and there is nothing in the statute
which either expressly or impliedly prohibits an amendment after final judgment.
As there is nothing in the statutes of Nevada prohibiting the amendment, as the section
quoted authorizes amendments without limitation as to time, and as the case was tried upon
the theory that the issue of the tributary character of the streams was clearly presented by the
pleadings, and therefore the plaintiff was not misled or prejudiced, there seems to be no
support for the plaintiff's contention. 31 Cyc. 454; Bradley v. Parker, 34 P. 234, at 236;
Richard v. Hupp (Cal.), 37 P. 920.
Edward F. Treadwell, G.F. Talbot and Joseph Sharp, for Respondent:
All the defendants who filed answers were adverse parties and entitled to service of notice
of motion for new trial and notice of appeal. The defaulting defendants were also entitled to
notice of appeal.
It is provided by section 381 of the civil practice act that notice of intention to move for
new trial must be served upon the adverse party. The same provision is made in section
3SS as to notice of appeal.
52 Nev. 279, 285 (1930) Pacific Live Stock Co. v. Ellison Ranching Co.
is made in section 388 as to notice of appeal. It is well settled that the same rules govern in
determining who is an adverse party to motions for new trial and to appeals. Johnson v.
Phoenix Ins. Co., 146 Cal. 571, 152 Cal. 196; Niles v. Gonzalez, 152 Cal. 90, 155 Cal. 359;
Herriman v. Menzies, 115 Cal. 25.
In this connection, however, one distinction should be noted, namely, that on an appeal
from an order denying a motion for new trial only those who were in fact served with notice
of the motion for new trial need be served with a notice of appeal, and the appeal from the
order denying a new trial cannot be dismissed if those parties were served, although the
motion for new trial was not in fact served upon the requisite parties; the remedy in that case
being to affirm the order denying new trial for failure to serve the proper parties. This seems
to be decided in the cases of Niles v. Gonzalez, supra; Watson v. Sutro, 77 Cal. 609; Bell v.
S.F. Savings Union, 153 Cal. 64; and Estate of Young, 149 Cal. 173.
It might be noted that the supreme court of Idaho reached the opposite conclusion and held
that the matter could be reached by a motion to dismiss the appeal as well as by a motion to
affirm without reference to the merits. Spokane Ranch and Water Co. v. Beatty (Mont.), 96 P.
727. The rule also seems contrary to the decision in Harper v. Hildreth, 99 Cal. 265; and in
Millikin v. Houghton, 75 Cal. 539. In order to avoid this question we have also moved to
affirm the order denying the new trial and the order denying the motion to change the findings
without regard to the merits, for the same reasons.
It is too well-settled to require citation of authorities that the requirement that the notice of
motion for new trial and notice of appeal be served upon the adverse parties is jurisdictional,
and a failure to so serve it is fatal to the right of review. See Decennial Digest under title
Appeal and Error, sec. 327, and cases there cited; Dick v. Bird, 14 Nev. 161.
The general rule as to who are adverse parties is also well-settled, the only difficulty being in
the application of the rule.
52 Nev. 279, 286 (1930) Pacific Live Stock Co. v. Ellison Ranching Co.
of the rule. Senter v. DeBernal, 38 Cal. 637; Terry v. Superior Court, 110 Cal. 85; Johnson v.
Phoenix Ins. Co., 146 Cal. 571; Nelson Bennett Co. v. Twin Falls Land Co., 13 Idaho 762, 92
P. 980; Butte County v. Boydstun, 68 Cal. 189; United States v. Crooks, 116 Cal. 43;
Millikin v. Houghton, 75 Cal. 539; Herriman v. Menzies, 115 Cal. 16, 25; Bowering v.
Adams, 126 Cal. 653; Jones v. Sander (Wash.), 26 P. 224; Spokane Ranch and Water Co. v.
Beatty (Mont.), 96 P. 727; In Re Waters of Chewaucan River, 89 Ore. 659; In Re Silvies
River, 199 Fed. 495, 503; Estate of Young, 149 Cal. 173; Estate of Prendergast, 143 Cal. 135;
Vincent v. Collins, 122 Cal. 387; Kenney v. Parks, 120 Cal. 22; Pac. Mutual Life Ins. Co. v.
Fisher, 106 Cal. 224; Lancaster v. Maxwell, 103 Cal. 67; O'Kane v. Daly, 63 Cal. 317;
Ford-Sanborn Co. v. Braslan Seed Growers Co., 10 Cal. App. 762; Ford v. Cannon, 5 Cal.
App. 185; Koyer v. Benedict, 4 Cal. App. 48.
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 sections
referred to. Senter v. DeBernal, 38 Cal. 637; Bliss v. Grayson, 24 Nev. 422.
The present action is an action to quiet title. In such an action it is well-settled that the
defendant is entitled to have his right in the subject matter of the action determined and his
title thereto quieted, and is not required to file any cross-complaint in order to obtain this
affirmative relief. Wilson v. Madison, 55 Cal. 5; Miller v. Luco, 80 Cal. 257; Mills v.
Fletcher, 100 Cal. 142; Islais etc. Co. v. Allen, 132 Cal. 432; Brooks v. White, 22 Cal. App.
719.
The defendants who answered but made no proof of their own rights at the trial were
adverse parties and entitled to notice. A defendant who has put in an answer need not appear
at the trial. His answer controverts the allegations of the complaint and puts the plaintiff upon
his proof, and although he does not appear at the trial he has a right to have the plaintiff's
rights adjudged in accordance with the evidence, and may review the judgment on
appeal.
52 Nev. 279, 287 (1930) Pacific Live Stock Co. v. Ellison Ranching Co.
rights adjudged in accordance with the evidence, and may review the judgment on appeal. He
is obviously, therefore, a person interested in the judgment and affected by it, and in this case
the judgment being to a certain extent favorable to him, he would be prejudicially affected by
its reversal.
The defaulting defendants were adverse parties and entitled to notice. Nelson Bennett Co.
v. Twin Falls Land Co., 13 Idaho, 762, 92 P. 980; Bowering v. Adams, 126 Cal. 653; In Re
Castle Dome Min. Co., 79 Cal. 246; Koyer v. Benedict, 4 Cal. App. 48.
The stipulation made after the motion for new trial was denied and after the appeal was
served and filed is not effective as a waiver of service of notice of appeal, for the following
reasons:
1. Because service of notice of appeal is jurisdictional and could not be waived. Marx v.
Lewis, 24 Nev. 306; Kirman v. Johnson, 30 Nev. 146.
2. Because the stipulation is not signed by plaintiff or by all of the defendants.
3. Because it was entered into after the time to serve notice of motion for new trial and to
serve notice of appeal had expired.
4. Because it does not purport to waive notice to which the clients of the parties signing it
were entitled, but attempts to declare, contrary to the law and fact, that they were not adverse
parties, and it was not intended as a waiver of notice of an appeal to which their clients were
parties, and which appeal they were in duty bound to defend against, but simply a recital that
they were not necessary parties to the appeal, and because an attorney has no power to
consent to the reversal of the judgment on an appeal to which his client is not a party.
The notice of motion for new trial was also ineffective because not served within the
statutory period after decision. It is well-settled that the time for motion for new trial runs not
from the filing of the formal findings of fact and conclusion of law and entry of judgment, but
runs from the time of the original decision. Cal. State Telegraph Co. v.
52 Nev. 279, 288 (1930) Pacific Live Stock Co. v. Ellison Ranching Co.
Telegraph Co. v. Patterson, 1 Nev. 154; Elder v. Frevert, 18 Nev. 278; Robinson v. Benson,
19 Nev. 331; Robinson v. Kind, 25 Nev. 261; Central Trust Co. v. Homes Mining Co., 30
Nev. 437. We understand that the appellant claims that its time for motion for new trial did
not run because it did not have notice of the decision. That they did receive notice is clear
from the fact that they appeared in court on March 20, 1919, and were heard with respect to
the findings and requested changes in the decision which was on file. The right to notice of
the decision is a right which can be waived, and when acts amounting to a waiver of this right
are present and appear of record, the time within which to move for a new trial starts to run
from the time of such acts. Corbett v. Swift, 6 Nev. 194; Hunter v. Truckee Lodge, 14 Nev.
24; Glock v. Elges, 39 Nev. 415; Hayne on New Trial and Appeal, vol. 1, sec. 19.
A motion for new trial is a prerequisite to an appeal for the purpose of reviewing the
sufficiency of the facts, and there being no motion for new trial the appellants are not entitled
to be heard with respect to any of their assignments regarding the sufficiency of the evidence
to sustain the decision. This rule is well settled. Civ. Pr. Act, sec. 386; Rev. Laws, sec. 5328;
Wolf v. Humboldt County, 36 Nev. 26; Whitmore v. Shiverick, 3 Nev. 288, 303; James v.
Goodenough, 7 Nev. 324, 328; Conley v. Chedic, 7 Nev. 336; Weck v. Reno Traction Co., 38
Nev. 285.
All parties are necessarily adverse to any attempt to review the judgment on the ground of
alleged error of the trial court in considering all of the parties adverse and determining the
rights by its judgment as between the parties defendant. Jones v. Sander (Wash.), 26 P. 224.
The appeal from the order refusing to change and modify the findings and decree should
be dismissed for the same reasons, and for the additional reason that it is not an appealable
order. Sec. 5227, Rev. Laws (Stats. 1915, p. 219, being sec. 285 of the civil practice act);
Schwartz v. Stock, 26 Nev. 128, 143. It is well settled that where an original decision,
order or judgment is itself reviewable on appeal, a party cannot appeal from an order
refusing to set aside or modify that original decision, judgment or order.
52 Nev. 279, 289 (1930) Pacific Live Stock Co. v. Ellison Ranching Co.
settled that where an original decision, order or judgment is itself reviewable on appeal, a
party cannot appeal from an order refusing to set aside or modify that original decision,
judgment or order. This has been decided in a great variety of cases under sec. 963 of the
Code of Civil Procedure of California, which likewise allows an appeal from a special order
made after final judgment. Davis v. Donner, 82 Cal. 35; Estate of Walkerly, 94 Cal. 352;
Harper v. Hildreth, 99 Cal. 265; Tripp v. Santa Rosa Street R.R., 69 Cal. 631; Eureka etc. Ry.
Co. v. McGrath, 74 Cal. 49; Larkin v. Larkin, 76 Cal. 323; Deering v. Richardson-Kimball
Co., 109 Cal. 73; Guardianship of Get Young, 90 Cal. 77; Kent v. Williams, 146 Cal. 3;
Doyle v. Republic Life Ins. Co., 125 Cal. 15; Symons v. Bonnell, 101 Cal. 223.
The correctness of this construction is made clear by the act of 1919, p. 319, amending sec.
403 of the civil practice act, which states that on the failure of the court to make the
modification the party moving shall be entitled to his exceptions. That is, he is not granted
a new right of appeal, but is allowed his exceptions reviewable on appeal from the judgment
or order denying a new trial.
OPINION
By the Court, Sanders, J.:
These appeals concern adjudications of conflicting rights of the parties to the use of the
waters of Quinn River and its tributaries in Humboldt County, which were made many years
ago by Hon. E.J.L. Taber, judge of the Fourth judicial district, acting as judge pro tem. of the
Sixth judicial district. The adjudications were made at the suit of the Pacific Live Stock
Company, a lower proprietor, against upper proprietors of land irrigated from said river and
the tributaries thereof. The decree adjudicates as many as sixth appropriative rights for
irrigation, stock raising, and domestic purposes, with priorities ranging from 1S6S to 1913.
52 Nev. 279, 290 (1930) Pacific Live Stock Co. v. Ellison Ranching Co.
1868 to 1913. The adjudications made in 1919 have governed the rights of the parties, and all,
with the exception of appellants, are presumably satisfied with the adjudications, since none
other than appellants have appealed.
Justice Ducker, now chief justice, being disqualified because of his having been attorney
for certain of the defendants at the inception of the litigation, Hon. George A. Bartlett, judge
of the Second judicial district court, was designated by the Governor to sit in his place and
stead.
The two appeals were heard together. Since appeal No. 2449 is but the outgrowth of an
order made after judgment in case No. 2448, one opinion will suffice.
The case was before us at an earlier stage upon respondent's motions to dismiss and to
affirm certain orders, without reference to the merits of the case. Upon consideration of the
respective motions ably argued and submitted on printed briefs, it was ordered that the
motions stand over for hearing and decision when the case was presented on its merits.
Pacific Live Stock Co. v. Ellison Ranching Co., 45 Nev. 1, 192 P. 262.
No intelligent opinion can be had as to the merits of the motions without a summary of the
facts: In October, 1907, the Pacific Live Stock Company, a corporation, filed its complaint
against as many as forty-five persons, cotenants, and corporations. The declared purpose of
the suit was to quiet plaintiff's title to certain water rights in Quinn River, the plaintiff
claiming an appropriation of 125 cubic feet of water per second with priorities as of the years
1872 and 1901. The complaint, after setting up plaintiff's ownership of certain arid lands
described by their legal subdivisions, proceeded upon the theory that the defendants, for the
statutory period of limitations under claim of right, had diverted the waters of Quinn River
and the tributaries thereof at divers places on said river above the lands of plaintiff, and that a
large portion of the waters so diverted was never returned to the river and was wholly lost to
the plaintiff; that by said diversions plaintiff was deprived of water to which it was legally
entitled; and that, so long as said diversions continued, plaintiff would be unable to
irrigate its lands or to properly or successfully cultivate the same or raise crops thereon.
52 Nev. 279, 291 (1930) Pacific Live Stock Co. v. Ellison Ranching Co.
plaintiff; that by said diversions plaintiff was deprived of water to which it was legally
entitled; and that, so long as said diversions continued, plaintiff would be unable to irrigate its
lands or to properly or successfully cultivate the same or raise crops thereon. It was alleged
that, if the defendants, or any of them, have any right to divert any water from said river or
any of the tributaries thereof, such rights are subsequent and subordinate to plaintiff's alleged
appropriations made by it and its grantors and predecessors in interest. The prayer of the
complaint was that the defendants, and each of them, be required to set forth their claims to
the use of the waters of said river and its tributaries, and that the rights of the plaintiff and the
adverse claims of the defendants be ascertained and determined. The complaint seeks
injunctive relief against the defendants from diverting any of the waters in such manner or to
such extent as to deprive plaintiff of the waters to which it is entitled.
All the defendants answered, except four, who defaulted. In their separate answers, the
defendants denied generally the rights of plaintiff as alleged and set up in themselves certain
water rights in Quinn River and the tributaries thereof, as named in the answers, and sought a
decree quieting their title as against the claims of plaintiff and the world.
Because of changes of title occurring after answers, a number of orders of substitution
were made in the parties defendant. Among others, the Ellison Ranching Company was
substituted as defendant in the place and stead of the Humboldt Cattle Company. Lizzie J.
Anderson Dunn was substituted as defendant in the place and stead of the Anderson Land and
Stock Company, James P. Anderson, Thomas McConnell (executor), Mary M. McConnell,
Thomas McConnell, Charles McConnell, Clara Anderson, and B.F. Anderson. The trustees of
the Anderson Land and Stock Company were also added as defendants.
Lizzie J. Anderson Dunn, as successor in interest of the Anderson and McConnell
interests, filed a cross-complaint against the plaintiff.
52 Nev. 279, 292 (1930) Pacific Live Stock Co. v. Ellison Ranching Co.
cross-complaint against the plaintiff. None of the codefendants, however, were made parties
to this cross-complaint. Lizzie J. Anderson Dunn also filed a cross-complaint against the
defendant Ellison Ranching Company.
The Ellison Ranching Company filed a cross-complaint against the plaintiff and also a
large number of the defendants, including the Anderson and McConnell interests.
The decision of the court was filed on January 6, 1919. No written notice of the decision
was given, but after the decision was filed the attorney for the plaintiff prepared a draft of
findings of fact, conclusions of law, and a decree in accordance with the decision, and
submitted the same to Judge Taber and to the attorneys appearing in the case. Afterward an
informal hearing was had with respect to the proposed findings of fact, conclusions of law,
and the decree, at which time the attorneys for the McConnell-Anderson interests and Lizzie
J. Anderson Dunn made certain objections thereto and suggested certain changes therein.
Thereafter, the same attorneys presented to the court a written argument in support of their
respective objections, claiming, among other things, that certain streams that the court found
to be tributary to Quinn River in its decision should be held not to be tributary, and that
certain acts of the plaintiff disentitled it to the relief granted it by the decision.
Thereafter, on, to wit, April 9, 1919, the court caused to be entered in its findings of facts,
conclusions of law, and a final decree in accordance with the decision therefore made.
On April 21, 1919, the Anderson defendants (appellants) served notice of intention to
move for a new trial. The notice of motion was addressed to and served only on the plaintiff
and the defendant Ellison Ranching Company. This was evidently on the theory that the
plaintiff and the cross-complainant Ellison Ranching Company were the only adverse parties.
On April 26, 1919, appellants served on the plaintiff and the defendant Ellison Ranching
Company a notice of motion for correction of specified defects, errors, and omissions in
the findings, requiring changes therein and in the decree.
52 Nev. 279, 293 (1930) Pacific Live Stock Co. v. Ellison Ranching Co.
and the defendant Ellison Ranching Company a notice of motion for correction of specified
defects, errors, and omissions in the findings, requiring changes therein and in the decree.
On June 25, 1919, the motion to change and modify the findings and the decree, together
with the notice of motion for new trial, came on for hearing, and said motions were on June
27, 1919, denied and overruled.
Thereafter, on July 1, 1919, appellants served notice of appeal from certain parts or
portions of the decree dated April 9, 1919, and from the order denying a new trial dated
January 27, 1919. The one notice of appeal was addressed to the plaintiff and to the
defendants and cross-complainants, and their respective counsel. The notice, however, was
only served upon the plaintiff and the defendant Ellison Ranching Company.
Thereafter, on August 16, 1919, appellants served their notice of appeal from the order
denying the application and motion of appellants to change and modify the findings of fact,
conclusions of law, and the decree, dated June 27, 1919. The notice of appeal from this order
made after judgment was only served upon the plaintiff and the defendant Ellison Ranching
Company.
Thereafter, on August 22, 1919, appellants caused to be filed and incorporated in the
record a document, styled Stipulation in re Appeals. The stipulation reads in part as
follows: It is hereby stipulated, each of the signers hereof appearing and agreeing for the
party or parties represented by him, that the following defendants in the above-entitled cause,
to wit: (Here follows the names of all of the defendants appealing.) Duly perfected their
motion for a new trial herein; and their application to amend, modify, and correct the findings
of fact, conclusions of law and judgment therein; and their appeal from parts of said
judgment, and from the order of said court denying and refusing to grant a new trial herein;
and that the undertaking required by law was executed and filed within the time prescribed by
law. The signatories to the stipulation were attorneys of record for eleven of the answering
defendants.
52 Nev. 279, 294 (1930) Pacific Live Stock Co. v. Ellison Ranching Co.
The notice of appeal from the judgment or decree states, in substance, that appellants
appeal from that portion of the decree which adjudges priorities of right in favor of plaintiff
and against defendants, and from so much thereof as deprives defendants and gives to the
plaintiff the use, or right to use, any of the waters claimed by them in their answers; and
particularly from those parts of the decree which give to the plaintiff, or limit the rights of the
defendants as to the waters, or any thereof, of Twelve Mile creek, Canyon creek, Pole creek,
Spring creek, North Flat creek, South Flat creek and Skull creek, or any of said creeks; and
from those parts which enjoin defendants from using or interfering with the waters, or the
flow of said or any, of said streams; and from those parts or portions of the decree which give
to the plaintiff as against defendants or enjoin defendants from interfering with the flow to the
plaintiff of 16.44 second feet, or any quantity, of the waters of Quinn River; and from those
parts which enjoin said defendants from maintaining any dam, ditch, levee, or other work
which shall prevent the plaintiff from receiving the several amounts, or any quantity, of water
adjudged to it.
It is particularly stated in the notice of appeal that it is the intention of defendants to appeal
from all of those parts of the judgment, and from those parts only, which are in favor of the
plaintiff and against the defendants; which parts of the judgment appealed from are to be
found in paragraphs I, IV, V, VI, VII, IX, XI, XIII, XIV, XVI, and XVII of the decree.
The notice also states that the appeal is taken from the order denying defendants' motion
for new trial, dated on June 27, 1919.
The decision and the decree in detail determine the rights of the parties who had answered,
with the exception of four of the defendants, namely I.B. English, Thomas Scott and Lena
Scott, and Charles Clute. The decree specifies the priority and number of second feet of water
appropriated by each defendant as set forth in a table showing the dates of appropriation, the
priority and the particular stream from which each appropriation was made, the names of
the owners and the acreage irrigated by each appropriation; the name of the stream and
place of appropriation.
52 Nev. 279, 295 (1930) Pacific Live Stock Co. v. Ellison Ranching Co.
and the particular stream from which each appropriation was made, the names of the owners
and the acreage irrigated by each appropriation; the name of the stream and place of
appropriation. It was also decreed that each of the parties are the owners of the flow and use
of the several amounts of water appropriated by them set forth in the decree from the stream
or streams therein named. In the decree the title to each of the parties to the water rights
decreed is quieted. We note that the decree reduces plaintiff's claimed right of 125 second
cubic feet to 30.20 second feet with priorities as of the years 1874, 1887, 1893, and 1901.
In the state of the record as above outlined, counsel for respondent conclude that the
appeals should be dismissed and the respective orders should be affirmed. First, because the
notice of appeals was not served on the adverse parties; second, that the appeal from the order
denying appellants' motion to change the findings and the decree should be dismissed,
because it is not an appealable order; third, that the order denying appellants' motion for new
trial should be affirmed, because the notice of motion was not served on the adverse parties
and was not served within ten days after notice of the decision; fourth, that the order denying
appellants' motion to change and modify the findings and the decree should be affirmed,
because the notice therefor was not served on the adverse parties and because the notice was
not served until after final judgment.
It will be observed that the grounds for the respective motions to dismiss and to affirm are
based primarily upon the alleged failure of appellants to serve their notice of appeals on the
adverse parties. In support of this contention it is argued on behalf of respondent that all the
nonappealing defendants are adverse parties in the sense of the code and were entitled to
notice of appeal. On the other hand, counsel for appellants insist and contend that, under the
issues made by the pleadings, the defendants inter sese were not adverse parties; that the
decree is a nullity as respects the adjudication of the water rights of defendants as among
themselves.
52 Nev. 279, 296 (1930) Pacific Live Stock Co. v. Ellison Ranching Co.
adverse parties; that the decree is a nullity as respects the adjudication of the water rights of
defendants as among themselves.
1, 2. In support of these contentions, it is argued that the suit was one in equity to
determine the order of priority among numerous appropriators of the waters of Quinn River
and the tributaries thereof; that the issues made by the pleadings created a severable and
separate controversy with each defendant, dependent upon separate and independent rights
calling for separate evidence, and that, there being no issues between the defendants, the
plaintiff has no interest in the rights of the nonappealing defendants among themselves.
Therefore the decree, in so far as it adjudicates the rights of the defendants as between
themselves, is a nullity. We are not in accord with these contentions. The plaintiff in its
complaint asserts a right to 125 cubic feet per second of water in Quinn River with priorities
as of the years 1872 and 1901. The complaint assumes that the defendants have rights in the
waters of Quinn River, and the plaintiff seeks a decree defining the rights of all the parties
and establishing the rights of the plaintiff. This, indeed, is the most important object of the
action, the office of the injunction as prayed in the complaint being merely to preserve and
protect the rights of all the parties when so defined. In a suit to quiet title to water rights, such
as this, the main purpose is to determine the respective rights of the parties to the use of the
water. A decree which leaves the controversy between the parties unsettled, unadjudicated,
undetermined, and subject to future litigation, defeats the very purpose for which the action is
brought. 3 Kinney, Water Rights (2d ed.), sec. 1557. In Union M. & M. Co. v. Dangberg
(C.C.), 81 F. 73, 119, Judge Hawley well said: A practical view ought to be taken of all the
conditions, surroundings, and situations. The rights of all parties must be protected by the
decree. The difficulty of enforcing it without the necessity of bringing independent suits
should be avoided, if possible.
52 Nev. 279, 297 (1930) Pacific Live Stock Co. v. Ellison Ranching Co.
Certainty in its terms, positiveness in its requirements, justice in its conclusions, will
materially aid in the accomplishment of such a purpose. The decree here criticized for its
certainty and definiteness with respect to the rights of all the parties to the use of the waters of
Quinn River and its tributaries is not a nullity in so far as it determines in detail those rights.
Because of the intrinsic difficulties in the formation of findings, involving appropriations of
water of the numerous defendants, made the subject of the action with priorities ranging from
1868 to 1913, Judge Taber is to be commended for his decree, certain and definite as to the
parties, the order of priorities, the quantity of water which each defendant is entitled to use,
the places and time of use, leaving no controversy between the parties unsettled and
unadjudicated. There are cases adjudicating the water rights of a stream with its tributaries in
which it is not necessary to bring all the parties interested in the adjudication in this court on
appeal. But this is not such a case. The case here upon trial did not resolve itself into separate
controversies involving some of the parties without involving others.
3, 4. The essential prerequisite condition to give this court jurisdiction of an appeal is that the
notice of appeal must be served upon the adverse party or his attorney. Section 5330,
Revised Laws. Every party whose interest in the subject matter of the appeal is adverse to or
will be affected by the reversal or modification of the decree or judgment is an adverse party
in the sense of the code, and entitled to notice of appeal. This proposition is so well settled as
not to need the citation of authorities. Upon the hearing of the respective motions to dismiss
and affirm, it was declared in the preliminary opinion that the general test for determining
who are adverse parties, within the meaning of the statutes concerning notices of appeal, is
whether or not such parties would be affected by modification or reversal of the decision,
citing authorities to which we now add Kondas v. Washoe County Bank, 50 Nev. 181, 254 P.
52 Nev. 279, 298 (1930) Pacific Live Stock Co. v. Ellison Ranching Co.
254 P. 1080; Wendt v. Eastern Oregon Land Co. (In Re Burnt River Water Rights), 116 Or.
525, 241 P. 988; 2 Cal. Jur. sec. 120, et seq. Counsel concede the rule to be as stated, but
insist that the reversal or modification of the portions of the decree appealed from would not
affect the adjudicated rights of the nonappealing defendants. Therefore, they are not adverse
parties entitled to notice of appeal. The decree fixes the duty of water as between all the
contestants. It quiets the title of all adverse claimants to the use of the water. The reversal or
modification of the parts or portions of the decree appealed from applies to all the
adjudications affecting the use of the water, made the subject of the suit. Its reversal or
modification would necessitate a retrial of the case and throw open to readjudication the
rights of all the contestants. We need not speculate in what respect a reversal or modification
of the decree would affect the nonappealing defendants. It is sufficient to say that upon
appellants' own showing the rights as between them and the plaintiff cannot be determined
without the presence of all the parties interested and not served with notice of appeal. In Re
Burnt River Water Rights, supra.
5, 6. Appellants have attempted to relieve themselves of the situation made by their failure
to give and serve notice of appeal upon all the defendants interested in the subject matter of
the suit by obtaining from the attorneys for certain of the defendants the stipulation as above
set out. Certainly the signatories to this stipulation, representing no more than eleven of the
answering defendants, could not bind those defendants not parties thereto. It is argued that the
stipulation does not attempt to waive notice of appeal, but that it simply admits that what
should have been done to affect the appeal was seasonably and properly done; that it was
obtained for the purpose of showing that every step required to be taken, and in so far as
required to be made, was taken and made within the time and in all respects as required by
law. It is for us to determine whether or not the appeals were perfected in the manner and
time as required bylaw.
52 Nev. 279, 299 (1930) Pacific Live Stock Co. v. Ellison Ranching Co.
appeals were perfected in the manner and time as required bylaw. The stipulation, in our
opinion, does not operate to confer jurisdiction.
7. In its motion to dismiss, the respondent also seeks the affirmance of the order denying
appellants' motion for new trial, without reference to the merits of the case, upon the ground
that the notice of intention to move for new trial was not served on all the adverse parties. On
the former hearing of the respective motions, it was considered that the motion to affirm
could only be determined upon consideration of the appeal itself. It was for this reason we
were largely influenced to order that the motions stand over for hearing until the appeal was
presented upon its merits. A review of the authorities convinces us that we were right in
making the order. The question of whether others should be made parties to a motion for new
trial is not involved in a motion to dismiss an appeal from an order denying the motion.
Adopting the language of Angellotti, J., in Johnson v. Phenix Insurance Company, 146 Cal.
571, 80 P. 719, 720: A failure to serve an adverse party with notice of intention to move for
a new trial may be a reason for denying the motion for a new trial, and for affirming such
order on appeal; but it does not constitute a reason for the dismissal of the appeal upon the
ground that the court has not acquired jurisdiction to hear it. In Re Ryer, 110 Cal. 556, 559,
42 P. 1082. See, also, Barnhart v. Fulkerth, 92 Cal. 155, 28 P. 221. In addition to these
authorities, we cite other decisions collated in notes to section 125 of 2 Cal. Jur. p. 342.
The question, therefore, is whether the failure of appellants to give and serve their notice
of intention to move for a new trial upon their codefendants furnishes sufficient ground for
the affirmance of the order denying the motion. The record discloses that the motion was
based principally upon the ground of the insufficiency of the evidence to support the findings
and the decision, with respect to the adjudication of the conflicting rights between the
plaintiff and the movants.
52 Nev. 279, 300 (1930) Pacific Live Stock Co. v. Ellison Ranching Co.
8, 9. The same rules govern in determining who is an adverse party to motions for new
trial and to appeals. Johnson v. Phenix Insurance Co., supra; Niles v. Gonzalez, 152 Cal. 90,
92 P. 74; Id., 155 Cal. 359, 100 P. 1080; Herriman v. Menzies, 115 Cal. 25, 44 P. 660, 46 P.
730, 35 L.R.A. 318, 56 Am. St. Rep. 81. Being as we are of the opinion that the nonappealing
defendants were adverse parties entitled to notice on appeal, it follows that they were entitled
to notice as adverse parties of the motion for new trial. The codefendants were directly
interested in the result of the motion, and the granting of it to appellants would necessarily
affect their adjudicated relative rights in and to the waters of the river and its tributaries.
Under the circumstances and in the light of the grounds upon which appellants sought a new
trial, we are of the opinion that the denial of the motion furnishes good and sufficient grounds
for the affirmance of the order.
These conclusions render it unnecessary for us to consider and discuss the other grounds
urged for the dismissal of the appeals and the affirmance of the orders.
10. In case No. 2449 the plaintiff and appellant, Pacific Live Stock Company, appeals
from an order made on the 27th of June, 1919, permitting the Anderson defendants to amend
their answers so far as to put directly in issue the question of fact as to the tributary character
of Twelve Mile creek, Pole Creek, Spring creek, North Flat creek, South Flat creek, and Skull
creek as tributaries to Quinn River. The trial court's decision was not based upon the answers,
as amended, and we might hold that the propriety of the order becomes a moot question, but,
since no point is made of this, we, upon careful examination of the pleadings, findings, and
decree, shall affirm the order upon the theory that the plaintiff and appellant has not shown
that it was prejudiced by the amendment as ordered. The amendment in no way affects the
judgment in favor of the plaintiff. The plaintiff is not complaining of the decree, which in
effect adjudges said creeks, and each of them, to be tributaries of Quinn River.
52 Nev. 279, 301 (1930) Pacific Live Stock Co. v. Ellison Ranching Co.
of the decree, which in effect adjudges said creeks, and each of them, to be tributaries of
Quinn River. The testimony in reference to the tributary character of these creeks was
admitted in evidence without objection. In fact it was one of the leading questions in the case,
and the finding that they are tributary in character constitutes one of the principal grounds
urged for the reversal of the order denying a new trial. Under these circumstances, we are of
opinion that the court, in the furtherance of justice, did not abuse its discretion in permitting
the answers to be amended.
We are satisfied that the motions to dismiss the appeal and to affirm the order denying
appellants' motion for a new trial should be sustained, and that the order appealed from in
case No. 2449 should be affirmed.
It is so ordered.
____________
52 Nev. 302, 302 (1930) Schmidt v. Horton Et Al.
SCHMIDT v. HORTON Et Al.
No. 2865
April 5, 1930. 287 P. 274.
1. PartnershipNature of AgreementFacts Pleaded.
Whether agreement is one of partnership must be determined from facts pleaded, despite designation
given to it by pleader.
2. Mines and MineralsPartnershipAcquiring Mining Claims.
Where object of venture in agreement was merely to search for and locate or otherwise acquire
mining claims, there was no mining partnership.
3. Mines and MineralsJoint AdventureActionPleadingComplaint.
Complaint alleging agreement to search for and locate mining claims, and that defendants located
claims but repudiated agreement, stated cause of action based on doctrine of joint adventure.
The complaint alleged that plaintiff and defendants agreed to combine their efforts
and means in prospecting for and locating mining claims and that they should own in equal
shares any mining claims discovered and bear expenses equally, that plaintiff expended in
behalf of partnership $150 or more, and that defendants located mining claims and
fraudulently excluded plaintiff therefrom and from participating in proceeds derived from
sales and denied partnership and refused to make accounting.
4. Appeal and ErrorReviewFindingsEquitySupport in Evidence.
Lower court's finding in equity will not be disturbed on appeal, where there is substantial evidence
supporting it.
5. Mines and MineralsJoint AdventureAgreementSufficiency of Evidence.
Evidence justified finding it was agreed plaintiff was partner on occasion when defendants located
mining claim and that plaintiff contributed towards expedition.
6. Mines and MineralsJoint AdventurePartiesLegal Status.
Where parties agreed plaintiff was partner on occasion when defendants discovered ore, they were
coadventurers in project.
7. Mines and MineralsJoint AdventureAgreementExecution.
Joint adventure agreement relating to mining claims was executed, where reiterated before defendants
commenced trip and plaintiff's property was used on trip.
8. Mines and MineralsJoint AdventureAgreementWithdrawal.
Defendant could not withdraw from joint adventure agreement and still avail himself of fruits of
plaintiff's labor and material furnished.
52 Nev. 302, 303 (1930) Schmidt v. Horton Et Al.
9. Mines and MineralsJoint AdventureAgreementWithdrawalSufficiency of
Evidence.
Evidence did not show defendant effected withdrawal from joint adventure agreement before ore was
discovered by defendants.
10. Mines and MineralsJoint
AdventureAgreementWithdrawalRevocationSufficiency of Evidence.
Evidence supported finding that, when defendant used partnership equipment on trip on which they
discovered ore, defendant rescinded declaration of withdrawal.
11. Mines and MineralsJoint AdventureAgreementAbandonmentSufficiency of
Evidence.
Evidence did not show plaintiff abandoned joint adventure agreement with defendants relating to
location of mining claims.
12. InfantsJoint AdventurersDefense of InfancyException to Rule.
Where three minors made joint adventure agreement relating to locating mining claims, defendants,
after locating claims, could not avoid obligations to plaintiff who performed labor and furnished
equipment; defense of infancy being unavailable.
13. InfantsContractsDisaffirmanceRule Inapplicable.
When reason for rule regarding disaffirmance of contract of infant fails, rule itself is inapplicable.
C.J.-CYC. REFERENCES
Appeal and Error4 C.J. sec. 2870, p. 900, n. 99.
Joint Adventures33 C.J. sec. 91, p. 869, n. 81; sec. 96, p. 871, n. 21.
Mines and Minerals40 C.J. sec. 798, p. 1146, n. 15; sec. 819, p. 1155, n. 63.
Partnership47 C.J. sec. 528, p. 986, n. 99.
Appeal from Fifth Judicial District Court, Nye County; J. Emmett Walsh, Judge.
Action by William E. Schmidt, by Vernie Schmidt as his guardian ad litem, against Frank
E. Horton, Jr., and another, by F.E. Horton, as their guardian ad litem, and others. From a
judgment for plaintiff and an order denying new trial, defendants appeal. Affirmed. (Sanders,
J., dissenting.)
Wm. McKnight and Joseph T. Murphy, for Appellants:
The complaint is fatally defective in that it states facts which only establish, prima facie, a
mere executory agreement between plaintiff and defendants to combine their efforts and
means in prospecting for, discovering and locating mines and mining claims, and that they
should be equal partners in all of such locations and own in equal shares any and all such
mining claims and mines so discovered, or in any manner acquired by either of them," but
wholly fails to state any facts which establish or tend to establish that such agreement
was ever executed or that such partnership was ever launched, created or consummated.
52 Nev. 302, 304 (1930) Schmidt v. Horton Et Al.
discovering and locating mines and mining claims, and that they should be equal partners in
all of such locations and own in equal shares any and all such mining claims and mines so
discovered, or in any manner acquired by either of them, but wholly fails to state any facts
which establish or tend to establish that such agreement was ever executed or that such
partnership was ever launched, created or consummated. At best the complaint merely alleges
an agreement to enter into a partnership. Such an agreement cannot be enforced in a suit in
equity for a dissolution and an accounting. Plaintiff's only remedy is an action at law for
breach of the alleged contract to form the partnership. The relief sought by plaintiff cannot be
obtained on any theory of a partnership agreement. Groves v. Tallman, 8 Nev. 178, 180;
Prince v. Lamb, 128 Cal. 120, 60 P. 689, 691; Madar v. Norman, 13 Ida. 585, 92 P. 572;
Heyer v. Richmond Traction Co., 168 U.S. 471, 18 Sup. Ct. 114, 366, 42 L. Ed. 547, 551;
Powell v. Maguire, 43 Cal. 11, 18; Taylor v. Nelson, 26 Cal. App. 681, 147 P. 1189; 1190;
Wright v. Amann (D.C., Nev.), 192 Fed. 649; Miller v. Walser, 42 Nev. 497, 513, 181 P. 437;
White v. McNeil (Tex.), 294 S.W. 928; Peterson v. Beggs, 26 Cal. App. 760, 148 P. 541,
542; Harper v. Sloan, 177 Cal. 174, 169 P. 1043, 181 P. 775, 777.
The complaint is also fatally defective and cannot be upheld on the theory that it counts on
a grubstake contract, because it does not allege that the mining claims located by defendants
were acquired by means of any grubstake furnished by plaintiff and pursuant to any grubstake
contract. Prince v. Lamb, 128 Cal. 120, 60 P. 689, 691; 40 C.J. p. 1155, sec. 817; Lindley on
Mines (3d ed.), sec. 858, p. 2121.
The complaint is also fatally defective because it seeks an accounting between the alleged
partners but does not seek a dissolution of the alleged partnership. Childers v. Neely, 47 W.
Va. 70, 34 S.E. 828, 81 Am. St. Rep. 777, 784; Nisbet v. Nash, 52 Cal. 540, 550; 18 R.C.L. p.
1204, sec. 109, n. 13.
52 Nev. 302, 305 (1930) Schmidt v. Horton Et Al.
The complaint is also fatally defective because it does not allege that plaintiff contributed
or offered to contribute one-third of all the costs and expenses of the alleged partnership in
the acquisition of the mining claims involved in this action. Murley v. Ennis, 2 Colo. 300, 12
Morr. M. Rep. 360, 365; Soderberg v. Crockett, 17 Nev. 409, 415, 30 P. 826; McLaughlin v.
Thompson, 2 Colo. App. 135, 29 P. 816; Vance v. Blair, 18 Ohio 532, 51 Am. Dec. 467, 468;
McMahon v. Meehan, 2 Alaska, 278.
The plea of infancy of defendants having been properly set up in their answer is a
complete and perfect defense to this action. To render a contract binding the parties must
have the capacity to contract. 13 C.J. 262. The matter is governed by the statute, Rev. Laws,
sec. 431. See, also, 31 C.J. p. 1058, sec. 148; 22 Cyc. pp. 580, 583, 609; 14 R.C.L. p. 223,
sec. 10.
Partnership agreements are voidable at election of infant. 31 C.J. p. 1085, sec. 193, n. 88;
22 Cyc. p. 585; 20 R.C.L. p. 817, sec. 19.
Such agreements may be avoided before the infant reaches his majority. Adams v. Beall,
67 Md. 53, 1 Am. St. Rep. 379, 383; 31 C.J. p. 1067, sec. 164; Elliott on Contracts, sec. 336;
Black on Rescission and Cancellation, sec. 307, p. 776, n. 242.
A plea of infancy in an action based on a contract is an election to avoid. 31 C.J. p. 1068,
sec. 165; 22 Cyc. 613.
Setting up the defense of infancy in a suit by the other party to enforce his rights under the
transaction is a sufficient avoidance. 31 C.J. p. 1021, sec. 70, n. 71; 31 C.J. p. 1029, sec. 87,
n. 89; 14 R.C.L. p. 237, sec. 19, n. 19; Merchants Credit Bureau v. Knorn Akiyama, 64 Utah,
364, 230 P. 1017; Black on Rescission and Cancellation, sec. 304, p. 771, n. 209.
As no partnership capital was employed in the acquisition of the mining claims involved in
this action, the alleged partnership agreement, if proven to exist, is within the statute of
frauds, and void. The materials placed upon the Traynor Ford and the repairs made thereto
by plaintiff became a part of said car by accession, and became the property of defendant
Traynor, the person who admittedly owned the Traynor Ford.
52 Nev. 302, 306 (1930) Schmidt v. Horton Et Al.
thereto by plaintiff became a part of said car by accession, and became the property of
defendant Traynor, the person who admittedly owned the Traynor Ford. 1 C.J. p. 383, sec. 3;
p. 384, sec. 5; 1 R.C.L. p. 118, sec. 5, n. 13; Clarke v. Johnson, 43 Nev. 359, 365, 187 . 510;
Blackwood Tire and Vulcanizing Co. v. Auto Storage Co., 133 Tenn. 515, 182 S.W. 576,
L.R.A. 1916e, 254 and note, Ann. Cas. 1917c, 1168, and note.
The evidence is wholly insufficient to establish any partnership, either for mining purposes
or otherwise, or to establish any joint adventure, or any grubstake or prospecting agreement,
between the plaintiff and the defendants. More proof is requisite to establish a partnership
between the parties themselves than is necessary in actions against alleged partners. Frankel
v. Hillier, 16 N. Dak. 387, 113 N.W. 1067, 15 Ann. Cas. 265, 268; Manville v. Parks, 7 Colo.
128, 2 P. 212, 216; Caley v. Coggswell, 12 Colo. App. 394, 55 P. 939; Chisholm v. Cowles,
42 Ala. 179; 20 R.C.L. p. 847, sec. 52, n. 6.
Evidence to sustain a partnership on the part of a minor must be certain, clear and
unequivocal. Gerkey v. Hampe (Mo. App.), 274 S.W. 510, 516.
The plaintiff in this action is attempting to ingraft a resulting trust by oral evidence upon
property, the title to which stands in the names of the defendants. To establish a resulting
trust by parol, the evidence must be clear, cogent and convincing. The plaintiff is required to
produce more than a bare preponderance of the evidence. He must prove his case by evidence
so clear and certain as to leave no well-founded doubt in the mind of the court to be entitled
to a decree. Mitchell v. O'Neale, 4 Nev. 504, 514; Frederick v. Haas, 5 Nev. 389, 394; Pierce
v. Traver, 13 Nev. 526, 531; Dalton v. Dalton, 14 Nev. 419, 427; Moore v. Crawford, 130
U.S. 122, 9 Sup. Ct. 447, 32 L. Ed. 878, 882; Mayhew v. Burke, 2 Ida. 1056, 29 P. 106, 108;
Rice v. Rigley, 7 Ida. 115, 61 P. 290, 293; Denny v. Holden, 55 Wash. 22, 103 P. 1109; Cisna
v. Mallory (D.C., Wash), S4 Fed. S51, S54; Perry on Trusts {5th ed.), sec.
52 Nev. 302, 307 (1930) Schmidt v. Horton Et Al.
Wash), 84 Fed. 851, 854; Perry on Trusts (5th ed.), sec. 137.
Both defendants gave testimony which clearly shows the nature of all relations between
them and the plaintiff; that they had not entered into any partnership agreements of any kind
with plaintiff; and that they were not partners in any sense of the word. Their testimony is not
self-contradictory; and it is not contradicted except by plaintiff. It is corroborated by every
fact and every circumstance in the case, except in certain particulars by the bare, unsupported,
self-contradictory, unreasonable and improbable testimony of the plaintiff. The court erred
when it disregarded the testimony of defendants, and its decision should not be permitted to
stand. Moore on Facts, sec. 1281, p. 1429.
The acceptance by plaintiff of the offer made by defendants that they would cut him in
on the Death Valley locations they proposed making, if he would furnish gas and oil for the
trip, shows that the prior oral agreement between plaintiff and defendant Horton, if ever made
and if then existing, was abandoned by the plaintiff when he entered into the new
arrangement with both defendants. Johnstone v. Robinson (D.C., Colo.), 16 Fed. 903, 905.
Plaintiff's testimony as to the reasons why the name of defendant Horton was omitted by
plaintiff from the locations made by him on February 20 definitely establishes, not only the
withdrawal of defendant Horton from the alleged partnership, if any partnership ever did
exist, but also that such withdrawal was perfectly satisfactory to and very promptly acted
upon by plaintiff. It is also clear upon the proposition that no partnership existed on February
20.
If a partnership has been established by the evidence, it was dissolved and terminated prior
to the date of the discovery of the rich ore which resulted in the location of the claims here
involved; and the plaintiff cannot recover any interest in any property acquired by the
defendants after such termination.
52 Nev. 302, 308 (1930) Schmidt v. Horton Et Al.
defendants after such termination. There was no time limited for the duration of the alleged
partnership; therefore, the defendants had the absolute and positive right to withdraw at any
time they saw fit, providing such withdrawal took place before the discovery of the claims
here involved. Lind v. Webber, 36 Nev. 623, 630, 134 P. 461, 135 P. 139, 141 P. 458, Ann.
Cas. 1916a, 1202; 40 C.J. p. 1153, sec. 810; p. 1155, sec. 819; Gleeson v. Costello, 15 Ariz.
280, 138 p. 544, 547; Lawrence v. Robinson, 4 Colo. 567, 577.
There is no question but that defendant Horton withdrew from the partnership, or the firm,
or the association, no matter by what name the relationship between the plaintiff and the
defendant be called, on the 17th day of February, 1927. His withdrawal caused a dissolution
of the alleged partnership at that time. Karrick v. Hannaman, 168 U.S. 328, 18 Sup. Ct. Rep.
135, 42 L. Ed. 484, 489; McMahan v. McClernan, 10 W. Va. 419; Fletcher v. Reed, 131
Mass. 312; Seufert v. Gille, 230 Mo. 453, 131 S.W. 102, 31 L.R.A. (N.S.) 471, 484; Webb v.
Butler, 192 Ala. 287, 68 So. 369, Ann. Cas. 1916d, 815, 817; Beaver v. Lewis, 14 Ark. 138;
Ligare v. Peacock, 109 Ill. 94; Eagle v. Bucker, 6 Ohio 295, 12 Morr. M. Rep. 330, 334; 30
Cyc. 650; Note, 69 Am. St. Rep. 411; 20 R.C.L. p. 954, sec. 178; 20 Cal. Jur. p. 795, sec. 94,
n. 16, 17; Burgan v. Lyell, 2 Mich. 102, 55 Am. Dec. 53, 55; Erawshay v. Maule, 1 Swanton's
Ch. 495, 11 Morr. M. Rep. 223, 230; Galligher v. Lockhart, 11 Mont. 109, 27 P. 446, 447;
Chadbourne v. Davis, 9 Colo. 581, 13 P. 721, 722; Gleeson v. Costello, 15 Ariz. 280, 138 P.
545, 547; White v. McNeil (Tex. Civ. App.), 294 S.W. 928, 930.
Brown & Rowson, for Respondent:
If a partnership agreement has been made, property and labor contributed, and the
partnership business commenced and carried on to any extent, there is a partnership. If one of
the partners employs partnership assets he must account to the partnership for the profits.
Abbot v. Smith, 32 P. 845; Reed v. Meagher, 24 P.
52 Nev. 302, 309 (1930) Schmidt v. Horton Et Al.
24 P. 681; Continental M. Co. v. Blibey, 46 P. 634; Sears v. Collins, 12 Morr. Rep. 400.
A prospecting partnership is not governed by the technicalities of the law of commercial
partnerships. 27 Cyc. 757; Costigan on Mines, 482.
An agreement to explore the public domain and discover and locate mining claims for the
joint benefit of all the parties does not fall within the statute of frauds and need not be in
writing. 3 Lindley, 1960, par. 5; 20 R.C.L. 812.
Grubstake or prospecting partnerships are not required to produce that great preponderance
which produces moral certainty and precludes all reasonable doubt. 3 Lindley, 2123, par. 2-3.
A joint adventure may be established by permissible deductions from the testimony and
by the circumstances adduced in proof. 33 C.J. 870, sec. 96.
Our contention is:
(a) That the record is sufficient to establish a mining partnership; also sufficient to
establish joint adventure; also sufficient to establish a grubstake agreement.
(b) That the distinction between these three legal entities is shadowy, unsubstantial and
inconsequential.
(c) That it does not greatly matter as to just what designation is given to the transaction, in
the complaint, so long as the facts are sufficient to invoke the equitable interposition of the
court. Shea v. Nilima, 133 Fed. 209.
The law of infancy is not a defense in this case, for the following reasons:
1. Beneficial contracts are binding. Pinnell v. St. Louis Rwy. Co., 41 A.L.R. 1093, 1098,
col. 1, line 1, citing 1 Parsons on Contracts (9th ed.), bottom of pp. 356-357, sec. 314, and
notes; 3 Page on Contracts, sec. 1587, et seq., and notes pp. 2735-2739.
2. Infancy is no defense to a resulting trust or a constructive trust. When the transaction or
conduct of an infant precipitates a resulting trust, equity will compel the infant to perform.
The relations between joint adventurers, mining partners and grubstakers are fiduciary. The
one who takes title in his own name holds as trustee for his associates.
52 Nev. 302, 310 (1930) Schmidt v. Horton Et Al.
name holds as trustee for his associates. The law of the resulting trust is applicable. 3 Lindley
on Mines, sec. 858; Gamble v. Hanchett, 133 P. 936, 942-944, 947; Botsford v. Van Riper,
33 Nev. 156; Costello v. Scott, 30 Nev. 43; 33 C.J. 851, sec. 36; 14 Cal. Jur. 134; Nordholt v.
Nordholt, 26 P. 599.
3. Contracts which the law could compel are binding. Tiffany, p. 392, par. 1, par. 2;
Barrington v. Clarke, 21 Am. Dec. 432; Elliott v. Horn, 44 Am. Dec. 488; Starr v. Wright, 20
Ohio St. 97; Bridges v. Bidwell, 20 Nev. 185; Trader v. Jarvis, 23 W. Va. 100; Prouty v.
Edgar, 6 Iowa, 353; Sheldon v. Newton, 3 Ohio St. 494.
4. Contracts are binding when there is no reason for protecting infants. 14 Cal. Jur. pp.
122, 125; 31 C.J. p. 1005, sec. 33; Tiffany, p. 391, par. 2.
5. Contracts for necessaries are binding. International Co. v. Connelly, 99 N.E. 722, 42
L.R.A. (N.S.) 1115. Grub, powder, supplies and transportation facilities are necessaries in
the life of a young prospector.
6. The contract in the instant case was affirmed and ratified. Traynor and Horton have
affirmed and still affirm the partnership relation as to themselves. When they ratified in part,
they ratified as to all. 14 R.C.L. p. 247, sec. 25. The sale of the claims by Horton and Traynor,
by their guardians, is a ratification of the partnership contract. 14 R.C.L. p. 248, sec. 27, p.
250, sec. 29, p. 251, sec. 29, n. 2; Tiffany, p. 411, par. 1, lines 1-9, p. 416, par. 1; Perkins v.
Middleton, 166 p. 1109, col. 1, last five lines.
7. The act of Congress, conjunctively with the Nevada statute, has removed the infancy
disability in reference to mining claims on the public domain, and have put infants on a level
with adults in reference to that subject. Sec. 2319, U.S. Rev. Stats., enables a minor to locate
or be included in a location. This section gives the rights to all citizens. Citizens includes
minors. 3 Lindley, sec. 223, 224, 225; Thompson v. Spray, 72 Cal. 528, 14 P. 182. Secs.
1103-1104, Rev. Laws of Nevada, enables minors to convey. The act was construed in
Keyworth v. Nevada Packard Co.,
52 Nev. 302, 311 (1930) Schmidt v. Horton Et Al.
Rev. Laws of Nevada, enables minors to convey. The act was construed in Keyworth v.
Nevada Packard Co., 43 Nev. 428, 186 P. 1110.
OPINION
By the Court, Ducker, C.J.:
This is a suit in equity. The respondent prayed for a decree to have conveyed to him an
undivided one-third interest to all of the mining claims mentioned in his complaint still
remaining unsold, and in lieu thereof, where any had been sold, a one-third interest in the
proceeds therefrom; that a receiver be appointed; and for an accounting.
It is alleged in the complaint: That on or about the 5th day of January, 1927, in
consideration of the mutual advantages to be derived therefrom, plaintiff and defendant,
Frank E. Horton, Jr., promised and agreed to and with each other to combine their efforts and
means in prospecting for, discovering and locating mines and mining claims, and that they
should be equal partners in all of such locations and own in equal shares any and all such
mining claims and mines so discovered, or in any manner acquired by either of them; that
thereafter, on or about the 5th day of February, 1927, the defendant, Leonard Traynor was
admitted by plaintiff and said defendant, Frank E. Horton, Jr., as a member of their said
partnership, and plaintiff and said defendants Frank E. Horton, Jr., and Leonard Traynor
thereupon agreed that thence forward any and all mining claims and mines so discovered,
located, or in any manner acquired by the parties should be held and owned by plaintiff and
said defendants in common, each having, holding and owning an undivided one-third (1/3)
part share and interest therein, and that all of the costs and expenses of said partnership
should be borne equally between plaintiff and said defendants.
52 Nev. 302, 312 (1930) Schmidt v. Horton Et Al.
It is further alleged in the complaint that: Plaintiff performed all of the conditions of the
partnership agreement on his part to be performed, and between the 5th day of January, 1927,
and the 2d of March, 1927, expended in behalf of said partnership and furnished said
partnership with provisions and supplies for the purpose of prospecting and carrying on the
business of said partnership, of the value of One Hundred and Fifty ($150) Dollars or more.
It is further alleged that: Defendants undertook to and did defraud plaintiff of his interest in
said partnership, and that in violation of their agreement with plaintiff, and for the purpose of
cheating and defrauding plaintiff, said defendants, on or about the 4th day of March, 1927,
located under the laws of the United States and of the State of Nevada, certain mining claims
in the Weepah Mining District, County of Esmeralda, State of Nevada, known as Dodger,
Dodger No. 1, Dodger No. 2, Dodger No. 3, Dodger No. 4, Dodger No. 5, Dodger No. 6 and
Dodger No. 7, and Reno, as well as a number of other mining claims in said mining district,
the names of which are unknown to plaintiff, and every since have fraudulently and
dishonestly excluded plaintiff therefrom and from participation in the proceeds derived from
the sale or sales thereof; that plaintiff is informed and believes, and so alleges, that thereafter
defendants sold or agreed to sell under an option agreement the aforementioned group of
mining claims described as the Dodger Group to the Belcher Extension Mining Company, a
corporation, which said sale was without the consent of plaintiff, for the sum of Thirty
Thousand ($30,000) Dollars, or more, whereof the sum of Twenty Thousand ($20,000)
Dollars has been paid to the said defendants, and the sum of Ten Thousand ($10,000) Dollars
is due and payable under the terms of said option of May 10, 1927; and that defendants have
sold, or agreed to sell, others of said mining claims so located and acquired by defendants as
aforesaid, the names of which are to plaintiff unknown, to Weepah Horton Junior Gold Mines
Company; to one Zeb Kendall, and to divers sundry other persons and corporations whose
names are unknown to plaintiff; that defendants deny and repudiate said partnership and
that they refuse to make any statement or accounting of said partnership business,
although they have been heretofore requested by plaintiffs so to do, and although said
partnership relationship continued and was still existing on said 4th day of March, 1927,
and on to wit, the day or days on which said mining claims were located by said
defendants as aforesaid."
52 Nev. 302, 313 (1930) Schmidt v. Horton Et Al.
Mines Company; to one Zeb Kendall, and to divers sundry other persons and corporations
whose names are unknown to plaintiff; that defendants deny and repudiate said partnership
and that they refuse to make any statement or accounting of said partnership business,
although they have been heretofore requested by plaintiffs so to do, and although said
partnership relationship continued and was still existing on said 4th day of March, 1927, and
on to wit, the day or days on which said mining claims were located by said defendants as
aforesaid.
A demurrer to the complaint on several grounds was overruled, and appellants answered.
All allegations concerning the agreement alleged in the complaint were denied in the answer.
The minority of the appellants Frank E. Horton, Jr., and Leonard Traynor at all times
mentioned in the complaint was set up in the answer as a further defense. The case was tried
before the court sitting without a jury, and judgment was rendered in favor of plaintiff,
respondent here. A motion for a new trial was denied. The appeal is from both the judgment
and order.
1, 2. The complaint was assailed as being insufficient on several grounds. The principal
contention in this respect is that the allegations of the complaint show merely an unexecuted
partnership agreement. It is insisted that such an agreement is not enforceable in a suit in
equity, and that respondent's only remedy is an action at law for breach of the alleged contract
to form the partnership. While the complaint designates the agreement as a partnership
agreement, we do not think that its allegations disclose such an agreement. The nature of the
agreement must be determined from the facts pleaded, despite any designation which may be
given to it by the pleader. Shea v. Nilima (C.C.A.), 133 F. 209. The object of the venture in
the agreement pleaded goes no further than to search for, discover, and locate or otherwise
acquire mining claims. Something more is required to establish a mining partnership.
Costello v. Scott, 30 Nev. 43, 93 P. 1, 94 P. 222; Lindley on Mines {2d ed.), vol.
52 Nev. 302, 314 (1930) Schmidt v. Horton Et Al.
on Mines (2d ed.), vol. 2, sec. 858, p. 1565, et seq.
3. We think the complaint states a cause of action based on the doctrine of joint
adventure, as this modern doctrine has been recognized by this and other American courts.
We may say of the complaint in this case, as was said of the complaint in Miller v. Walser, 42
Nev. 497, 181 P. 437, 441, that it states the agreement of the parties; the consideration upon
which it was based; the thing that was to be done in pursuance thereof, namely the acquisition
of the claims and the interest of each in the subject matter of the contract. No further
averment is required to invest the arrangement alleged with all the elements of a joint
adventure.
Other objections were made to the complaint which we have examined and find to be
without merit. The demurrer was properly overruled. Appellants claim the evidence is
insufficient to support the judgment. After a careful consideration of the evidence and law
applicable to the case, we are induced to hold to the contrary.
The mining claims involved, and which respondent seeks to impress with a resulting trust
in his favor for a one-third interest, are known and designated as Dodger, Dodger No. 1,
Dodger No. 2, Dodger No. 3, Dodger No. 4, Dodger No. 5, Dodger No. 6 and Dodger No. 7,
and Reno, a contiguous group situate in Weepah mining district, Esmeralda County, Nevada.
The claims were located by the appellants Frank E. Horton, Jr., and Leonard Traynor on
March 3, 1927, and the discovery of ore which led to the location was made by them on
March 1, 1927. The respondent and the two locators were all minors at the time of the
discovery and when the action was instituted in the court below. The version of the facts and
circumstances given by the respondent and his witnesses is substantially as follows:
On January 1, 1927, respondent and appellants Frank E. Horton, Jr., and Leonard Traynor
were all residents of Tonopah, Nevada. Schmidt was at that time, and for some time past had
been, in the employ of the Western Union Telegraph Company at that place as lineman at a
salary of $150 per month and expenses when out on the line.
52 Nev. 302, 315 (1930) Schmidt v. Horton Et Al.
expenses when out on the line. He was unmarried, was living with his parents and
contributing about $75 per month to the family support. During the month of January of that
year, Schmidt heard of a mining property belonging to a man at Tonopah Junction named
Vandersault. Schmidt discussed the Vandersault property with Traynor, and they agreed to
take a lease on it. They went together to the Vandersault property using the telegraph
company's motor for the journey, and secured some samples. They signed the following
agreement concerning the property:
Tonopah, Nev., Jan. 13, 1927. We, the undersigned, do hereby agree to enter into a
partnership whereby each is to bear an equal portion of the expenses incurred in the
development of the property owned jointly by Harvey B. Vandersault and Hayden Howard.
They do also agree to divide equally any profits that may be derived from the above
mentioned property. [Signed] W.E. Schmidt, F.E. Horton, Jr. Witness, Leon Williamson.
It was several days before returns were received from the samples, and in the meantime
Schmidt and Horton concluded that they would need an automobile if they took a lease on the
mining property. They negotiated with one Dutch Helmick for a Ford car, which they
finally purchased for $20. Schmidt paid the money for the car. This they afterwards called
Dutch Bug. There were no tires or battery on the car. Helmick gave them two tires and a
battery. They told Helmick they had a partnership and needed a car to go out in the hills
prospecting. Helmick asked them to let him know it they found anything that was good so he
could have a chance to go out and locate. Schmidt and Horton worked on the car and got it in
running order. According to Schmidt, it required about four hours of labor on the car to put it
in condition. He estimated the worth of the labor at 75 cents an hour. He also bought and paid
for some material which he used in getting the car in condition to be operated. Horton put 55
cents worth of gas into it at one time. After the car was conditioned it was damaged by
another car running over it.
52 Nev. 302, 316 (1930) Schmidt v. Horton Et Al.
was conditioned it was damaged by another car running over it. This necessitated further
repairs and more material. According to Schmidt, the further repairs required about twenty
hours of labor and material costing $2, which he paid.
Schmidt and Horton were dissatisfied with the result of the assays from the Vandersault
property and abandoned their enterprise as to that property. Horton told Schmidt that he knew
of a property that would beat the Vandersault property all hollow. He referred to a property
near Weepah from which they afterwards took samples and named Eiaura. About the
middle of January they made a trip from Tonopah to see this property. They went in the car
they got from Helmick. Schmidt bought and paid for some lunches and gas and oil for the trip
and borrowed a tube for the car. Horton furnished some blankets. They stayed overnight at
Weepah and took samples from the Eiaura. They did not locate this ground at this time, but
planned to do so later. They returned to Tonopah and had the samples assayed. The result of
these assays pleased them and they talked about it a little. They talked about it to the
appellant Leonard Traynor, who became interested and asked to join their partnership. They
discussed this proposition and Traynor offered to buy in for $100. The proposition was held
in abeyance for a while. Shortly afterwards, on February 4, the respondent Schmidt and the
appellants Horton, Jr., and Traynor made a trip from Tonopah to Death Valley to locate
claims. Traynor furnished his father's Dodge car for the trip. Traynor and Horton furnished
grub and blankets for the trip and Schmidt furnished gas and oil. Horton, Traynor, and
Schmidt located one claim in Death Valley. They did not corner the claim. The claim was
located in the names of Traynor's father, Horton's mother, and Schmidt's mother for the
reason that Schmidt was under the impression that persons under the age of twenty-one could
not locate mining claims. They took samples but lost them on the way back to Tonopah.
When they returned to Tonopah, they decided to do nothing more concerning the claim
located in Death Valley.
52 Nev. 302, 317 (1930) Schmidt v. Horton Et Al.
Tonopah, they decided to do nothing more concerning the claim located in Death Valley.
On February 5 in Tonopah, Horton and Schmidt agreed to allow Traynor into their
partnership in the Eiaura property near Weepah for $100. Traynor did not have $100 and
offered, if they would let him come into the partnership as to the Eiaura property, to tell them
where there was another property in Danville Canyon formerly owned by his father, which
had been allowed to lapse, which they could all three locate in partnership. This was agreed to
by Horton and Schmidt. Horton, Traynor, and Schmidt agreed to be partners in prospecting,
each to pay one-third of the expenses and share one-third of the profits in locating, acquiring,
and selling claims. Traynor, Schmidt, and Horton left Tonopah for Danville Canyon on
February 6. They went in the Dutch Bug. Danville Canyon is about one hundred miles from
Tonopah. Horton and Traynor furnished blankets, cooking utensils, gun, and ammunition,
while Schmidt furnished the grub, gas, oil, and a tube. Schmidt bought grub enough for a
three-day trip and paid $14.65 for it. He paid $2.25 for a tube. He did not remember how
much he paid for the gas and oil but filled the tank up, supplied what oil was needed, and
took oil along. They located four claims in Danville Canyon. Located them in the name of
Horton's mother and Schmidt's mother, as Traynor did not want his father to know he was
jumping his ground. These claims were located in the parents' names for the same reason that
the claims in Death Valley were located in that way. Boundaries of the claims were not
marked, but monuments were erected and location notices posted. They intended to return at
a later date and mark boundaries and do location work if samples proved satisfactory. They
took about twenty samples from the claims. They returned to Tonopah on the 9th of February,
and by the time they got back the Dutch Bug was so badly worn and damaged that it was
completely out of commission. It was hopelessly wrecked and they used it no more.
52 Nev. 302, 318 (1930) Schmidt v. Horton Et Al.
more. The samples from the locations in Danville Canyon were assayed and turned out fairly
well and they decided to go back and corner their claims. As the Dutch Bug was extinct,
they had to plan some other means of transportation. Traynor had a Ford. It needed
conditioning to put it in running order., They started to work on it about February 15, and got
it into condition about the 26th of February. They put in about twenty hours of work on it
during that time. Most of the work was done by Schmidt. Traynor did some; Horton little, if
any. Schmidt's contribution to the reconditioning of the Traynor Ford included twenty hours
of labor at 75 cents an hour, or $15, and also material and supplies worth $28 or $29, and also
gas and oil valued at $3.25. Schmidt's contribution of materials and supplies included two
tires, one battery, 21 feet of electric wiring, clamp for wishbone, a band for transmission, and
some gaskets. The total value of the labor, material, and supplies contributed by Schmidt to
the reconditioning of the Traynor Ford was $48.25. He testified that the aggregate value he
expended for the partnership between the three, in provisions, money given Traynor and
Horton, labor, and supplies, was $155.80. Some of the materials used in reconditioning the
Traynor Ford, as the battery and two tires, had been taken off the Dutch Bug and these had
been paid for by Schmidt. The reconditioning of the car was for the purpose of returning to
Danville Canyon to corner the claims located by Horton, Schmidt, and Traynor. On the 17th
of February when Schmidt and Traynor were working on the car and Horton was standing by,
the former said to Horton that he was not barred from working either. Horton took offense at
this remark and walked away.
Later on that same day Horton told Schmidt that so far as he was concerned the partnership
was off. Still later in the evening Schmidt saw Horton and endeavored to ascertain why he
wished to withdraw from the partnership, but could get no reason from him.
52 Nev. 302, 319 (1930) Schmidt v. Horton Et Al.
him. Schmidt asked him about the expenses he had been to and got no reply. Schmidt did not
at this time or at any other time relinquish or quit Horton of his obligation for the expenses.
Neither at this time, nor at any later time, did Traynor ever withdraw or declare his
withdrawal from the partnership. He and Schmidt agreed to carry it on. On February 20, three
days after Horton had declared himself out of the partnership, Traynor and Schmidt made a
prospecting trip to Weepah in company with one Robert Crumley, in the latter's automobile,
and located three mining claims in the Weepah district in the names of Crumley, Traynor's
father, and Schmidt's mother. At the time this prospecting trip was made, Traynor and
Schmidt thought that Horton had withdrawn from the partnership. On the 28th day of
February, Schmidt learned that Horton and Traynor had planned to go out the next morning
after high grade which Horton had previously claimed to have knowledge of. This was the
first time that Schmidt learned that there had been any change in the plans to use the Traynor
Ford to return to Danville Canyon. Schmidt saw Traynor and Horton on the morning of
March 1 as they were getting ready for the start to Weepah in the Traynor Ford, and according
to Schmidt the following occurred: Horton got in the car and Traynor was on the outside of
the car. I asked Traynor, Do I come in on this? and Traynor said, Yes. I said, Do you
realize you have my tires and tubes, using them on the car?' and he said, Yes.' And they
drove off down the little hill and that's the last I say of them that morning.
Horton and Traynor had some discussion during several miles of this trip, in which
Traynor maintained that Schmidt was entitled to recognition in the venture. During the
afternoon on this day Horton and Traynor made a discovery of some very rich ore in the
neighborhood of Weepah. They returned to Tonopah the next day, and on March 3 left
Tonopah before daylight, returned to Weepah, and located the ground on which the strike
was made.
52 Nev. 302, 320 (1930) Schmidt v. Horton Et Al.
the strike was made. Schmidt was not included as a locator. They located the groups of claims
which are the subject of this controversy.
The news of the strike leaked out in Tonopah after the boys returned with the ore they
found, and soon a typical mining boom was precipitated in that region. Schmidt heard of the
strike shortly after Horton and Traynor returned with the ore, and took them to a show that
evening. He tried to find out where the strike was made, but they would not tell him. He
asked them if he was in on it and Horton would not say anything. Traynor told him not to
worry, that there would be no double crossing. Schmidt made repeated efforts to find out
from Horton and Traynor how he stood in the matter without success, further than what
Traynor told him, that there would be no double crossing.
On March 3, some men of Tonopah who had heard of the strike and were anxious to find
out where it was so they could go out and locate ground got Schmidt out of bed at 4 o'clock in
the morning and asked him to find out for them where the strike was made. Schmidt went to
Traynor's house and awakened him, but Traynor would not tell him where the ore was
discovered. Schmidt at this time again asked Traynor where he stood, and in reply Traynor
said: He couldn't say, not to worry, there wouldn't be any double crossing. Schmidt
testified: I let it go at that and he told me to go back to bed and I did.
To make the trip of Weepah, Horton and Traynor got nine gallons of gas from Leland
Henderson, a garage man of Tonopah. They promised to cut him in on anything they struck,
and he afterwards realized $5,000 on it. Later in the day of March 2, Schmidt met Traynor
and Horton and again asked them whether he was in on the find or not. Traynor again assured
him that there would be no double crossing, but Horton said nothing. On the afternoon of
March 3, Schmidt went to Weepah and stayed overnight. He saw Horton and Traynor there
then. On March 5, he returned to Weepah in company with one Durfee and located two
mining claims.
52 Nev. 302, 321 (1930) Schmidt v. Horton Et Al.
Weepah in company with one Durfee and located two mining claims. He went back to
Weepah again on March 6 with one Emery Marty and located more mining claims.
Schmidt testified that he never relinquished any contractual or partnership interest that he
may have had with Traynor and Horton or from any obligation they owed him; that Traynor
and Horton had no employment and were always broke. He testified that on the occasion
when he saw Horton and Traynor on the eve of their departure for Weepah they both said he
was in on it; that if they had said no, he never would have consented to the use of his material
and equipment on the car; that he did not make them a present of this material and
equipment; that he did not loan it to them; that the change in the plans of going to Weepah
instead of returning to Danville Canyon was agreeable, providing he was in on the new
venture.
4. This testimony was controverted in several respects by the testimony given by Traynor
and Horton, particularly as to any partnership agreement between them. It was controverted
also as to the amount of Schmidt's contribution in labor and material in the reconditioning of
the Traynor Ford and the purpose for which the car was reconditioned. Traynor testified that
it was done with the understanding that Schmidt was to have the privilege of using it in his
employment at the Western Union whenever he (Traynor) was not using it, and not for the
purpose of returning to Danville Canyon to corner or do other work on claims located
pursuant to any partnership. The testimony of respondent was also sharply controverted as to
what was said when Traynor and Horton were getting ready to leave for Weepah on the
morning of March 1. They testified that neither of them said anything about Schmidt being in
with them on any locations that might be made on that trip; that he made no protest as to their
using the car; that he wanted to go, but they refused him; that he offered to put up some
lunches, which they refused.
52 Nev. 302, 322 (1930) Schmidt v. Horton Et Al.
which they refused. The testimony of the parties is in conflict in some other respects.
However, whenever the testimony presented by respondent and his witnesses is controverted
by the testimony of appellants and those testifying in their behalf, the finding of the lower
court in favor of respondent must be accepted as conclusive of the facts found. The conflict in
the testimony of the parties and the contradictions in respondent's testimony, repeatedly
referred to in the briefs of appellants' counsel and in the oral argument in this court, are
beyond our jurisdiction to consider. This is upon the well-settled rule that a finding of the
lower court will not be disturbed on appeal when there is substantial evidence to support it.
This rule is as binding in an equity case as in an action at law. Costello v. Scott, supra.
5. It is apparent from the evidence that the business relation established between Schmidt
and Horton was in its inception limited in its purpose to the Vandersault property. But the
trial court was justified in finding from the testimony of Schmidt that it was thereafter
extended to the Eiaura group of claims near Weepah, the claims in Death Valley, in Danville
Canyon, and the property discovered by Traynor and Horton, Jr., on March 1 near Weepah,
and that Schmidt contributed something in the way of labor and property to each of these
ventures. Moreover, if it were conceded that the testimony is not sufficient to show a
continuing venture of this scope, it is, nevertheless, sufficient to justify the trial court in
finding, as it did find, that on March 1, 1927, it was agreed between Horton, Traynor, and
Schmidt, prior to the departure of the two former for Weepah, that Schmidt was in on the trip
as a partner, and that he contributed towards the expendition in labor and materials on the
automobile used, of the aggregate value of $48.85.
6. From these facts the court reached a right conclusion as to the legal status of the parties,
Schmidt, Horton, and Traynor being coadventurers in the project when the discovery of ore
was made by the two latter on March 1, 1927.
52 Nev. 302, 323 (1930) Schmidt v. Horton Et Al.
when the discovery of ore was made by the two latter on March 1, 1927. The facts bring the
case within the doctrine of joint adventure as recognized in the following decisions of this
court and by the great weight of authority elsewhere: Botsford v. Van Riper, 33 Nev. 156, 110
P. 705; Gamble v. Hanchett, 35 Nev. 319, 133 P. 936; Lind v. Webber, 36 Nev. 623, 134 P.
461, 135 P. 139, 141 P. 458, 50 L.R.A. (N.S.) 1046, Ann. Cas. 1916a, 1202; Miller v. Walser,
42 Nev. 497, 181 P. 437; 33 C.J. 845-847; 3 Lindley on Mines (3d ed.), sec. 858.
7. It is insisted that the agreement was never executed. We cannot agree to this. Schmidt's
testimony taken as true, which we are bound to assume, shows that the mutual promises of
the parties had been exchanged, labor and supplies contributed by Schmidt, and the common
enterprise fairly launched by the activities of the parties in endeavoring to promote its objects.
That Schmidt was not permitted to assist in that on March 1, the day of the strike, was not due
to his fault and was over his protest. Nevertheless, the agreement was reiterated on that
morning and Schmidt's property was actually used in promoting its objects. This constitutes
an execution of the agreement. Miller v. Walser, 42 Nev. 497-511, 181 P. 437.
8, 9. It is insisted that Horton effected his withdrawal from whatever agreement he may
have had with Schmidt prior to March 1 when he took offense at the latter's remark about his
not being barred from working on the Traynor automobile, and declared that he would have
nothing more to do with Schmidt. Counsel for appellants cite a number of authorities to the
effect that where no time is specified in the life of a partnership the partnership can be
terminated at will under equitable restrictions. We do not deny the principle stated, but it does
not fit the facts of this case. Horton could not under any equitable consideration effectually
withdraw from the agreement and still avail himself of the fruits of Schmidt's labor and
material furnished in pursuance of the objects of the agreement.
52 Nev. 302, 324 (1930) Schmidt v. Horton Et Al.
agreement. This the evidence shows that he did without offering to make any adjustment of
Schmidt's contribution to the joint adventure. When Schmidt asked him as to this matter, he
made no reply whatever. The rule in such cases is that a severance of the partnership relation
must be clearly established. Costello v. Scott, 30 Nev. 43, 93 P. 1, 94 P. 222. The evidence
does not have that force. It must also be borne in mind that Traynor attempted no withdrawal
from the agreement. So, even though it were conceded that Horton had effectually withdrawn
prior to the last Weepah expedition, Schmidt's equity in Traynor's share of the discovery
would have been unaffected.
10. The trial court found that when Traynor and Horton used the partnership equipment
on their trip to Weepah on March 1, 1927, Horton rescinded, revoked, and canceled his notice
and declaration of withdrawal from the partnership theretofore made on February 17, 1927.
The evidence supports this finding.
11. There is no merit in the contention that Schmidt abandoned the agreement. On the
contrary, the evidence shows that he manifested a very lively desire to remain in the venture.
His going to the vicinity of the strike on March 5 and 6 and locating claims there is not
evidence of abandonment. It is evidence of nothing more than the urge which caused all the
others to flock to the scene of the new strike and endeavor to secure valuable property by
location. The fact that he did not locate his associates in with him is justified by their action
in seeking to exclude him from a community of interest with them.
12, 13. The answer, as has been stated, sets up the fact of the minority of Traynor and
Horton during all the times mentioned in the complaint, and thereby repudiates generally any
contract which may have been entered into by them with Schmidt, and particularly the
contract on which Schmidt seeks to establish a resulting trust in his favor, as to the mining
claims involved or the proceeds therefrom. They make this contention in their briefs. In this
regard the trial court said: "It is a fact Horton Jr. and Traynor were minors * * * at the
time the discovery was made, and it is likewise a fact Schmidt was also a minor * * * and
is therefore entitled to the same protection by the court as the other two. The enterprise
they engaged in was highly commendable, and Horton Jr. and Traynor reaped the
benefits, but are now making an effort to avoid their obligations.
52 Nev. 302, 325 (1930) Schmidt v. Horton Et Al.
court said: It is a fact Horton Jr. and Traynor were minors * * * at the time the discovery was
made, and it is likewise a fact Schmidt was also a minor * * * and is therefore entitled to the
same protection by the court as the other two. The enterprise they engaged in was highly
commendable, and Horton Jr. and Traynor reaped the benefits, but are now making an effort
to avoid their obligations. This they cannot do in fairness to Schmidt, who performed labor
and furnished equipment, thereby enabling them to use the car to go to Weepah. Schmidt is
entitled to an equal share with his two associates, Horton Jr. and Traynor.
The trial court applied a right principle. Pinnell v. St. Louis-S.F.R. Co. (Mo. Sup.) 263
S.W. 182, 41 A.L.R. 1092; Peers v. McLaughlin, 88 Cal. 294, 26 P. 119, 22 Am. St. Rep.
306; State ex rel. Stempel v. New Orleans et al., 105 La. 768-770, 30 So. 97.
The facts bring the case within an exception to the general rule. The privilege which the
law accords to infants of disaffirming their contracts under certain conditions is for the
purpose of their protection, and in so far as it serves that purpose is a just and necessary rule.
But the privilege ought not in justice to be preserved where, instead of serving as a shield to
one of immature judgment and discretion, it is used as an instrument of oppression. More
particularly is this true where, as in this case, such other was at the time of his contract
himself under the age of majority, and the contract entered into advantageous to all parties. In
other words, the facts show a case where the reason of the rule fails entirely. It is a trite
expression of a principle of universal application that, when the reason of a rule fails, the rule
itself is not applicable. We hold therefore that the defense of infancy is not available in this
case.
Appellants' counsel assigned a number of other errors, including errors claimed in court
rulings on the admission of testimony, most of which were not touched by him in his oral
argument on the hearing in this court. We have not assumed, therefore, that these were
waived by counsel, but have considered them all and find them to be without merit.
52 Nev. 302, 326 (1930) Schmidt v. Horton Et Al.
by counsel, but have considered them all and find them to be without merit.
The judgment and order denying the motion for a new trial are affirmed.
Coleman, J.: I concur.
Sanders, J., dissenting:
Admittedly, this suit is the outgrowth of a mining excitementshort lived, but very
sensational during the few weeks it lasted. The excitement was occasioned by a discovery
made by the defendants of a fabulously rich surface deposit or pocket of gold upon the
property of the Electric Gold Mines Company in the Weepah mining district, Esmeralda
County, Nevada. Upon the strength of the discovery, the defendants, in anticipation of the
rush to follow, staked a large number of mining claims adjacent to and surrounding the place
of discovery for speculative purposes only. At the height of the excitement the defendants
readily disposed of a number of their locations to individuals and corporations. The locations
standing in the name of the defendants and the proceeds derived from the sale of certain of
their locations form the subject of this suit.
The suit was brought for the purpose, among other things, of obtaining a decree
determining that the plaintiff Schmidt is a one-third owner with defendants Horton and
Traynor in the locations standing in the name of the defendants in the Weepah district.
The object of the suit was, among other things, to impress upon said locations, and the
proceeds received from the sale of certain of the locations, a trust in favor of the plaintiff.
The plaintiff sought by his complaint to establish a claim or right to a one-third undivided
interest in all said locations under and by virtue of an agreement entered into between the
parties on the 5th day of February, 1927, to locate mines upon the public domain by their
joint aid, effort, labor, and expense, whereby each was to acquire, by virtue of the act of
location, an equal undivided one-third interest.
52 Nev. 302, 327 (1930) Schmidt v. Horton Et Al.
In order for plaintiff to obtain the relief demanded in his complaint, the burden was upon
him, first, to establish the agreement by clear and satisfactory proof; and, second, to establish
that the agreement had not been annulled in any way, and that it was in full force and effect
when the locations were made. Craw v. Wilson, 22 Nev. 385, 40 P. 1076; Costello v. Scott,
30 Nev. 43, 93 P. 1, 94 P. 222; Lawrence v. Robinson, 4 Colo. 567; Johnstone v. Robinson
(C.C.), 16 F. 903.
Much of the briefs are devoted to the discussion of the nature and character of the
agreement which constitutes the basis of the plaintiff's cause of action. The trial court was of
the opinion that the evidence establishes a joint adventure, grubstake, and partnership
agreement existing between the parties on March 1, 1927, the date of the discovery made by
the defendants at Weepah. In my judgment, the evidence establishes a prospecting partnership
between the parties, not limited as to time or place, to locate mines upon the public domain
by their joint aid, effort, labor, and expense, whereby each was to acquire an equal interest in
all locations wherever made under the agreement. Such an agreement is distinguishable from
a joint adventure, a grubstake contract, or mining partnership. 40 C.J. 1154. But whatever the
name, in order to give to the parties associated an interest in the locations, the association
must have existed at the time the discovery and locations were made.
The important question, therefore, is whether the locations here in controversy were made
under the prospecting partnership. It is well settled that a prospecting partnership without
limit as to the time of its continuance is determinable, subject to equitable restrictions, at the
pleasure of any of the parties. Lind v. Webber, 36 Nev. 623, 134 P. 461, 135 P. 139, 141 P.
458, 50 L.R.A. (N.S.) 1046, Ann. Cas. 1916a, 1202; Lawrence v. Robinson, supra; 40 C.J.
1155.
My dissent from the majority opinion in this case rests upon what I consider to be
erroneous conclusions of law deduced from the trial court's findings of fact relating to the
question of whether or not the locations which form the subject of the suit were made
under the partnership.
52 Nev. 302, 328 (1930) Schmidt v. Horton Et Al.
relating to the question of whether or not the locations which form the subject of the suit were
made under the partnership. The court expressly found as a fact that the defendant Horton
withdrew from the partnership on February 17, 1927. That thereafter, to wit, on February 20,
1927, the plaintiff Schmidt and the defendant Traynor, believing that Horton had withdrawn
from the partnership and acting independently of it, made a trip to the Weepah district in
company with one Crumley in the latter's automobile, where they located six claims, covering
ground that had been examined by Schmidt and Horton prior to Traynor's admission on
February 5, 1927, into the partnership. The trial court, however, concluded from its findings
of fact: First. That Horton's purported and pretended withdrawal from the partnership on
February 17, 1927, was ineffectual, inoperative and of no legal effect. Second. That when
Horton and Traynor used the partnership equipment on their trip to Weepah on March 1,
1927, Horton rescinded, revoked and canceled his notice and declaration of withdrawal
theretofore made on February 17, 1927.
I can conceive of no better proof to show that Horton's withdrawal from the partnership
was not pretended, ineffectual, and of no legal effect than the acts of the parties themselves. It
appears that three days after Horton's withdrawal, Schmidt and Traynor, believing that Horton
was no longer a partner and acting independently of the partnership, located with a third party
a number of claims in the Weepah district. There is no evidence whatever to show that
Horton's withdrawal was subsequently abrogated, other than the uncorroborated and
self-serving declaration of Schmidt as a witness in his own behalf, unless, as concluded by
the learned trial court that Horton's use of partnership equipment on the trip made by
Horton and Traynor to Weepah on March 1, 1927, as a matter of law amounted to an
abrogation of Horton's withdrawal from the partnership made on February 17, 1927, therefore
the discovery and consequent locations in controversy were made under the partnership. I am
not in accord with this conclusion.
52 Nev. 302, 329 (1930) Schmidt v. Horton Et Al.
this conclusion. The expression partnership equipment, as used in the conclusion of law, is
ambiguous and to some extent misleading. If by partnership equipment was meant the
Traynor Bug, the conclusion is clearly erroneous for the reason that the Traynor Bug was
not a partnership asset. It belonged to Traynor. It is true that the Traynor Bug was
reconditioned by placing thereon certain parts taken from the so-called Dutch Bug,
consisting of battery and tires, but these parts were in no sense equipment furnished by the
partnership. On the contrary, Schmidt considered that upon Horton's withdrawal the parts
mentioned became his property under the contract for which he sought an accounting. In my
judgment, Horton's positive and unequivocal withdrawal from the partnership on February
17, 1927, was not abrogated or affected by his use of the Traynor Bug in making the
discovery on March 1, 1927. Such a strained conclusion is not sufficiently strong to impress
the locations standing in the name of Horton and Traynor, or the proceeds from the sale
thereof, with a resulting trust in favor of Schmidt.
The plaintiff having failed to establish that the locations were made under and by virtue of
the partnership agreement, I conclude that the judgment or decree should be reversed, with
directions to dismiss the action.
____________
52 Nev. 330, 330 (1930) Gallio v. Ryan
GALLIO v. RYAN
No. 2853
April 25, 1930. 286 P. 963.
1. Waters and Water CoursesWaste Water.
Surplus water consisting of water running from irrigated ground; water not consumed by irrigation;
water not taken up by irrigated land constitutes waste water.
2. Waters and Water CoursesWaste WaterCapture and UseUserRights.
Waste water is subject to capture and use, but user cannot require continuance of waste.
3. Waters and Water CoursesWaste Water.
One acquiring right to waste water from ditches or laterals does not become vested with control of
ditches or laterals or water therein.
4. Waters and Water CoursesWaste WaterContinuance.
Owner of ditches or laterals from which waste water flows held not required, if acting in good faith, to
continue or maintain conditions causing waste water.
5. Waters and Water CoursesWaste WaterTemporary Right.
Claimant to waste water acquires temporary right only to whatever water escapes which cannot find
way back to source of supply.
6. Waters and Water CoursesWaste
WaterRightAppropriationPrescriptionEstoppelAcquiescence.
No permanent right can be acquired to have discharge of waste water kept up, either by appropriation
or prescription, estoppel or acquiescence.
7. Waters and Water CoursesWaste WaterSupplyMaintenanceRight.
Appropriator of waste water cannot complain that owner of ditches or laterals did not maintain flow
of waste water for appropriation.
8. Waters and Water CoursesAppropriationWaste WaterStatute.
Taking and use of waste water from irrigation system held not statutory appropriation, appropriator
acquiring no such usufruct right entitling him to compel continuation.
C.J.-CYC. REFERENCES
Waste40 Cyc. p. 536, n. 3.
Waters40 Cyc. p. 704, n. 11; p. 718, n. 5.
Appeal from Sixth Judicial District Court, Pershing County; L.O. Hawkins, Judge.
Action by G. Gallio against Margaret Ryan, in which defendant filed a cross-complaint,
and the Nevada Sheba Silver Mining Company, a corporation, was ordered to be made
party to the action.
52 Nev. 330, 331 (1930) Gallio v. Ryan
Silver Mining Company, a corporation, was ordered to be made party to the action. Judgment
by default was rendered against the defendant Nevada Sheba Silver Mining Company, and,
from an order denying her motion for new trial, defendant Margaret Ryan appeals. Judgment
and decree set aside, and case remanded for a new trial. (Ducker, C.J., dissenting.)
Thatcher & Woodburn, for Appellant:
It appears from the undisputed evidence in the case that there is no question of priority
right here involved; that the rights of the defendant are long prior to those of the plaintiff; that
ever since about 1869 the Ryans and their predecessors have diverted all of the waters of Star
Canyon creek and applied them to a beneficial use in the cultivation and irrigation of a
portion of their lands. The defendant should therefore have been decreed the right to use all of
the waters of Star Canyon creek, and she should not have been limited as she was by the
decision of the trial court and by the findings and decree. There is no evidence to dispute the
testimony of the Ryans or Organs as to the necessity of all of the flow of Star Canyon creek to
irrigate their lands. The water law of 1913, which fixes three acre feet as the maximum
allowance for future appropriations is not applicable to vested water rights acquired prior to
that time. Moreover, it should not be held as a basis or a guide to the court in determining the
amount of water necessary for the irrigation of the lands. We know of no tests, and no reports
of the State Engineer, or of any experts in Nevada, which declare or find that three acre feet
of water per acre, direct application, is adequate under all circumstances and to all kinds and
character of land. The contrary is true. This court can take judicial notice that in almost every
irrigated area in Nevada where there has been a decree of a court granted, much more than
three acre feet has been allowed. The trial court's allowance of one-half of an acre foot per
acre for loss in transportation is also contrary to all of the evidence in the cause, which is that
loss in transit varies from 31.2 per cent to 39.1 per cent.
52 Nev. 330, 332 (1930) Gallio v. Ryan
loss in transit varies from 31.2 per cent to 39.1 per cent.
We urge that the trial court erred in finding that the plaintiff had a valid water right or
appropriation to any of the waters of Star Canyon creek for the following reasons:
(a) That the application of plaintiff was for waste and drain waters only.
(b) That under said application and permit the only waters which plaintiff ever used were
drain waters caught where they ran off of the Ryan lands after the use of them by the Ryans
for the irrigation of said lands.
(c) That no diversion was every made by the plaintiff of any of the waters of Star Canyon
creek from said stream or the channel or bed thereof.
We submit that we are not bound by either the application of Gallio or by any order of the
State Engineer unless it appears that a valid appropriation or order was made. Applications
for permit, proofs of application of water to beneficial use, and the granting of permits by the
State Engineer are at the most prima-facie evidence of the declarations or facts required by
the statute to be incorporated therein. Moreover, Gallio's application and his use was only of
waste and drain waters after they had been used for irrigation on the Ryan ranches. He made
no attempt to divert any water from the bed of the stream. We submit this does not constitute
an appropriation of waters under the laws of Nevada. It constitutes at the most a mere
recapture of drain and waste waters which are not subject to appropriation. Kinney on
Irrigation and Water Rights (2d ed.), sec. 661; 1 Wiel (3d ed.), p. 56; Burkhart v. Meiberg, 37
Colo. 187, 86 P. 98; Cardelli v. Comstock Tunnel Co., 26 Nev. 284.
Powell & Brown, for Respondent:
The so-called waste water which plaintiff filed upon is the water diverted by defendant and
her predecessors in interest in excess of the quantity needed by them. By the application and
use of this surplus through the Ryan ditches, through which at all normal times has been
diverted the entire flow of Star Canyon creek, plaintiff has, without objection until the last
two or three years, secured a vested right, subject to the prior right of the defendant, to
the amount of his permit, and such a right which he is entitled to have quieted and
protected by a decree of the court.
52 Nev. 330, 333 (1930) Gallio v. Ryan
through the Ryan ditches, through which at all normal times has been diverted the entire flow
of Star Canyon creek, plaintiff has, without objection until the last two or three years, secured
a vested right, subject to the prior right of the defendant, to the amount of his permit, and
such a right which he is entitled to have quieted and protected by a decree of the court. A
person cannot divert the entire flow of a natural stream through his artificial ditches, provided
the flow is in excess of the amount to which he is entitled, and continue such diversion for
forty years or more and thus prevent a person from appropriating such surplus by tying onto
the ends of his ditches or even diverting such surplus from the ditches; such flow being the
natural flow of the stream and the artificial channels become the natural channel of the stream
after the lapse of such time as we have in this case. Wiel on Water Rights (3d ed.), vol. 1, sec.
60, and cases cited in notes 19 to 21; Hollett v. Davis, 54 Wash, 326, 103 P. 423; Gould on
Waters (3d ed.), sec. 225.
We are confident that a casual reading of plaintiff's application will convince this court, as
it did the trial court, that such application was for the surplus or overflow waters of the creek
which were then unappropriated. It is true that the respondent never made a diversion of
water from the old original channel of Star Canyon creek, for the very cogent reason that no
water had flowed in such old original channel for a period of forty years, and that the natural
channel of Star Canyon creek at that time was the Ryan ditch, into which all of such waters
had been diverted for that long period of time. Nowhere in all his testimony does Mr. Gallio
make any reference or any complaint in regard to the drainage waters from the Ryan fields.
His complaints were wholly directed to the waters which were permitted to break out of the
ditches leading to the Ryan fields, and the waters which were being diverted by the Ryans
from their fields onto the desert lands outside of their ranches; and that is the surplus or
overflow water which Mr.
52 Nev. 330, 334 (1930) Gallio v. Ryan
and that is the surplus or overflow water which Mr. Gallio claimed was being wasted, which
he was endeavoring to appropriate, which the State Engineer had given him a permit to
appropriate, and which he had been appropriating to a beneficial use until the Ryans
succeeded to the ownership of the Organ interests.
Since the Ryan ditch has become the nature channel, the Ryans' points of diversion are
either at the land itself, in which case there would be no loss in transportation, or, at most,
only a quarter of a mile away from the lands to be irrigated, we think it must be conceded that
the trial court has allowed an ample amount of loss in transportation in any case, if appellant's
ditches are properly constructed and reasonably maintained.
Our water laws apply to water rights acquired prior to the enactment thereof as fully as to
those initiated thereafter, and limit every user of water to such an amount as may be
necessary, when reasonably and economically used for irrigation and other beneficial
purposes, and declare it to be the law of this State that when the necessity ceases, or does not
exist, the right to divert ceases. The fact, if it was a fact, that prior to the 1913 law defendant's
predecessors in interest were diverting more water than was necessary, when reasonably and
economically used, and the fact, if such was a fact, that their ditch could carry such excess
amount, gave them no right to continue so to do after the law was enacted.
The legislature has determined, after exhaustive tests and investigations, that 3.57 acre feet
is the maximum amount which can be beneficially used upon lands of any kind or character
whatsoever during the maximum length of irrigation season; that if more than that is used, it
is not beneficial use, and is, therefore, unlawful; and that the maximum should be allowed
only under exceptional conditions and for the maximum length of irrigation season; that, of
course, under ordinary conditions less than the maximum should be allowed.
52 Nev. 330, 335 (1930) Gallio v. Ryan
OPINION
By the Court, Sanders, J.:
In April, 1924, the plaintiff and respondent, G. Gallio, filed a complaint in the court below
against the defendant and appellant, Margaret Ryan. The complaint alleges in substance that
plaintiff is the owner, and in the years 1922 and 1923 was the owner and in possession of the
following described agricultural land situate in Pershing County, Nevada:
The north one-half of section 10, in township 30 north, range 35 east; that said lands,
without irrigation, will not produce crops of any value; that under date of February 8, 1922,
plaintiff received from the state engineer of Nevada a permit based upon his legal application
to appropriate waters of Star Canyon creek to be used in irrigating crops upon the premises
described; that by said permit plaintiff was granted the right to appropriate and use from the
waters of Star Canyon creek, a natural spring and stream in said Pershing County, Nevada,
0.4905 cubic feet of water per second; that plaintiff has in all things complied with the
provisions of said permit and has used all waters obtained by him for beneficial purposes and
for stock watering and domestic purposes, and that there is no water for irrigation of
plaintiff's lands available for sources other than said Star Canyon creek. The complaint
alleged that there has never been any adjudication of the rights of plaintiff and the other
appropriators of Star Canyon creek, and that the only other appropriator is the defendant; that
the defendant is the owner of real estate situate in sections 16 and 28 in township 31 north,
range 35 east, and is also an appropriator of the water of Star Canyon creek; that in normal
years there is sufficient water in said creek to irrigate all of the cultivated lands of both
plaintiff and defendant. The complaint alleged that, in the years of 1922 and 1923, there was
available from the flow of said Star Canyon creek sufficient water to irrigate all cultivated
lands of plaintiff and defendant, and sufficient water to supply the amounts designated in
the plaintiff's certificate of appropriation and the appropriation of the defendant, but that
during said years, in the irrigating seasons thereof, the defendant and her agents and
servants, willfully and with intent to deprive plaintiff of water with which to irrigate the
portions of his lands which he had planted to valuable crops at great expense, did divert
the waters of Star Canyon creek, which belonged to plaintiff and to the use of which
plaintiff was entitled, from the plaintiff and from the plaintiff's lands by causing the same
to escape from the ditches and flow upon uncultivated sagebrush lands in enormous
quantities, thereby preventing plaintiff from receiving his legal share of the water of said
stream, and thereby preventing plaintiff from irrigating his lands and crops; that, by
reason of the wrongful acts of the defendant, plaintiff was not only damaged by the loss
of the seed he had sown and the labor of planting said lands but by loss of the valuable
crops which would have otherwise accrued to him, the value of which cannot be
computed and that the injury inflicted thereby was and is irreparable; that the defendant
threatens to continue so to divert from the plaintiff the waters of Star Canyon creek, to
which he is entitled, and to deprive plaintiff of water to irrigate his lands, and that, unless
restrained by an order of court, the defendant will continue to deprive plaintiff of his
share of the waters of said creek and will continue to use and waste the waters to which
plaintiff is entitled and that plaintiff will lose his valuable crops and that the crops
growing thereon will perish and die, thereby causing plaintiff further irreparable injury;
that the lands of the defendant are so situated that it is possible for the defendant to
divert the water from plaintiff and to prevent the same from reaching plaintiff's lands;
that plaintiff has no plain, speedy or adequate remedy in the ordinary course of law.
52 Nev. 330, 336 (1930) Gallio v. Ryan
sufficient water to supply the amounts designated in the plaintiff's certificate of appropriation
and the appropriation of the defendant, but that during said years, in the irrigating seasons
thereof, the defendant and her agents and servants, willfully and with intent to deprive
plaintiff of water with which to irrigate the portions of his lands which he had planted to
valuable crops at great expense, did divert the waters of Star Canyon creek, which belonged
to plaintiff and to the use of which plaintiff was entitled, from the plaintiff and from the
plaintiff's lands by causing the same to escape from the ditches and flow upon uncultivated
sagebrush lands in enormous quantities, thereby preventing plaintiff from receiving his legal
share of the water of said stream, and thereby preventing plaintiff from irrigating his lands
and crops; that, by reason of the wrongful acts of the defendant, plaintiff was not only
damaged by the loss of the seed he had sown and the labor of planting said lands but by loss
of the valuable crops which would have otherwise accrued to him, the value of which cannot
be computed and that the injury inflicted thereby was and is irreparable; that the defendant
threatens to continue so to divert from the plaintiff the waters of Star Canyon creek, to which
he is entitled, and to deprive plaintiff of water to irrigate his lands, and that, unless restrained
by an order of court, the defendant will continue to deprive plaintiff of his share of the waters
of said creek and will continue to use and waste the waters to which plaintiff is entitled and
that plaintiff will lose his valuable crops and that the crops growing thereon will perish and
die, thereby causing plaintiff further irreparable injury; that the lands of the defendant are so
situated that it is possible for the defendant to divert the water from plaintiff and to prevent
the same from reaching plaintiff's lands; that plaintiff has no plain, speedy or adequate
remedy in the ordinary course of law. Wherefore, plaintiff prayed judgment for the sum of
$2,000 as damages, and that the defendant and her agents and servants be, during the
pendency of this action, enjoined from taking the waters of Star Canyon creek to which
plaintiff is entitled, or from causing or permitting the same or any part thereof to flow
upon uncultivated or sagebrush lands, and to require the defendant to cease wasting
waters of said creek and to keep her ditches in a good state of repair so that the waters of
said creek will not be wasted and allowed to flow upon waste lands during the irrigation
season, to the damage of the plaintiff; that upon final hearing, said injunction be made
perpetual and that upon the trial the court determine the rights and relative rights of the
plaintiff and defendant to the use of the waters of said creek, fixing and establishing by
decree the date of priority, quantity, duty, name, and place of use, and such other matters
as may be material for a complete determination of the relative rights of the parties to the
use of the waters of said creek, and that the defendant be restrained from in anywise
interfering with the plaintiff's enjoyment and use of his rights as determined by such
adjudication and decree.
52 Nev. 330, 337 (1930) Gallio v. Ryan
the pendency of this action, enjoined from taking the waters of Star Canyon creek to which
plaintiff is entitled, or from causing or permitting the same or any part thereof to flow upon
uncultivated or sagebrush lands, and to require the defendant to cease wasting waters of said
creek and to keep her ditches in a good state of repair so that the waters of said creek will not
be wasted and allowed to flow upon waste lands during the irrigation season, to the damage
of the plaintiff; that upon final hearing, said injunction be made perpetual and that upon the
trial the court determine the rights and relative rights of the plaintiff and defendant to the use
of the waters of said creek, fixing and establishing by decree the date of priority, quantity,
duty, name, and place of use, and such other matters as may be material for a complete
determination of the relative rights of the parties to the use of the waters of said creek, and
that the defendant be restrained from in anywise interfering with the plaintiff's enjoyment and
use of his rights as determined by such adjudication and decree.
The defendant interposed a demurrer to the complaint which was overruled. Thereafter,
the defendant filed her answer in which she denied, upon information and belief, the
allegations of the complaint with respect to the plaintiff's appropriative right to the use of
0.4905 cubic feet per second of the water of Star Canyon creek, and specifically denied that
the plaintiff was legally entitled to the use of any of the waters of said creek. She denied that
the only other appropriators of the waters of said creek were the plaintiff and the defendant,
and in this connection alleged that the Nevada Sheba Silver Mining Company, a corporation,
is an appropriator of waters of said creek, the exact nature and extent of which was unknown.
She admitted her ownership of the lands described in the complaint and her appropriation of
the waters thereof, and denied that in the years 1922 and 1923 there was available from the
flow of said creek sufficient waters to irrigate all the cultivated lands of the parties, and
denied that in said years the defendant, willfully, and with intent to deprive plaintiff of the
waters of said creek with which to irrigate his crops, diverted and wasted the waters
thereof which belonged to the plaintiff.
52 Nev. 330, 338 (1930) Gallio v. Ryan
defendant, willfully, and with intent to deprive plaintiff of the waters of said creek with which
to irrigate his crops, diverted and wasted the waters thereof which belonged to the plaintiff.
She admitted that she did divert the waters of said creek, under and by virtue of her prior
appropriation and claim to all the waters of said creek, through her ditches to, in, and upon
her lands for the irrigation thereof. For further answer and by way of cross-complaint the
defendant alleged in substance that she and her predecessors in interest, since the year 1862,
have been, and that the defendant now is, the owner and in possession and entitled to the
possession of about 720 acres, more or less, situate, lying and being in sections 10, 16, and
28, in township 31 north, range 35 east, in the county of Pershing, State of Nevada, and that
for many years last past and long prior to any right or claim of the plaintiff, the defendant, by
and through her predecessors in interest, was, and is now, in possession and entitled to the
possession of certain portions of section 15, township 31 north, range 35 east, as the lessee
thereof. She alleged that these lands are arid in character and can be made productive only by
means of irrigation, and that ever since on or about the year 1862, the defendant and her
predecessors in interest have, during the irrigating season of each year, diverted from said
Star Canyon creek all of the waters flowing therein, and have conducted the same by means
of ditches and canals to, in, and upon parts and portions of her lands described, and that she
used the same for the irrigation of about 300 acres thereof. She alleged that said lands had
been cultivated by the application of said waters thereon and that there has been grown
thereon during said times valuable crops of hay, grain, and other produce; that the defendant
is the owner and in possession and entitled to the possession, as an appropriator thereof, of all
the waters flowing or to flow in said Star Canyon creek. She alleged that plaintiff claims
some right, title, claim, or interest of, in, and to the waters of said Star Canyon creek adverse
to the defendant and cross-complainant; that each and every right, claim, and demand of
said plaintiff of, in, and to the waters of said Star Canyon creek was and is pretended and
fictitious and subordinate to the rights and claims of the defendant and
cross-complainant, and that the same constitutes a cloud upon the title of the defendant,
of, in, and to the waters of said Star Canyon creek and the right of the defendant to use
the same.
52 Nev. 330, 339 (1930) Gallio v. Ryan
each and every right, claim, and demand of said plaintiff of, in, and to the waters of said Star
Canyon creek was and is pretended and fictitious and subordinate to the rights and claims of
the defendant and cross-complainant, and that the same constitutes a cloud upon the title of
the defendant, of, in, and to the waters of said Star Canyon creek and the right of the
defendant to use the same. Wherefore, defendant demanded judgment and decree that
plaintiff take nothing by his complaint and that the same be dismissed; that the title of the
defendant in and to the waters of said Star Canyon creek be quieted and be confirmed in the
defendant, and that plaintiff be adjudged and decreed to have no right, title, claim, interest, or
demand therein or thereto.
The plaintiff made reply to the answer and cross-complaint of the defendant and prayed
that judgment be entered as prayed in his original complaint.
Upon the issues made, the plaintiff's application or motion for an injunction pendente lite
came on for hearing before the late Judge J.A. Callahan. After a full hearing, the motion was
denied.
Upon the hearing it was ordered that the Nevada Sheba Silver Mining Company, a
corporation, be made a party to the action. Thereafter, process was duly issued and served
upon said corporation, and, it having failed to appear and answer the summons within the
time prescribed by law, its default was entered. Judgment upon said order of default was
incorporated in the final judgment or decree.
The case came on for trial upon its merits before Judge L.O. Hawkins without a jury. Upon
the submission of the case for decision, Judge Hawkins considered that in the then condition
of the record that no final decree could be entered with respect to the amount of water
reasonably and economically used for the irrigation of the defendant's lands, and reopened the
case for further evidence upon that question. Thereafter, the testimony of witnesses, both
expert and lay, was taken upon the question as to the amount of water necessary for the
irrigation of the defendant's lands from her ditches.
52 Nev. 330, 340 (1930) Gallio v. Ryan
necessary for the irrigation of the defendant's lands from her ditches.
The defendant, being dissatisfied with the court's decision, filed a motion for new trial.
The case is now before us upon the defendant's appeal from the order denying her motion for
new trial.
When not mentioned by name the parties will be designated here as plaintiff and
defendant.
The appeal from the order denying defendant's motion for new trial divides itself into two
parts. The first part concerns the legal sufficiency of the evidence to establish plaintiff's
statutory appropriation of not to exceed 0.4905 of a cubic foot of water per second flowing in
Star Canyon creek, a natural water course on the public domain, within a period of use for
irrigation and domestic purposes from April 1 to August 1 of each year, with a priority of
appropriation as of March 25, 1914.
Part two concerns the sufficiency of the evidence to support the findings of fact and
conclusions of law adduced therefrom adjudging to the defendant and cross-complainant,
Margaret Ryan, vested rights with priorities as of the year 1862 to the use of 358.75 acre feet
and 232.3 acre feet at the fixed points of diversion for the irrigation of the defendant's Santa
Clara ranch situate in sections 16 and 15, and 3 1/2 feet per acre for the irrigation of 158.6
acres of land situate within section 28 and designated defendant's Star Creek ranch or Home
ranch.
The issue made by the complaint and answer as to whether the defendant in the years 1922
and 1923, willfully, and with intent to deprive plaintiff of the water to which he was legally
entitled, diverted enormous quantities thereof from her ditches to his injury and damage in the
sum of $2,000 is eliminated in the case by the court's decision, in which it was held that the
plaintiff utterly failed to establish these allegations of his complaint.
Counsel for Margaret Ryan challenge the legality and validity of the plaintiff's
adjudicated statutory appropriation of 0.4905 cubic feet per second of water flowing in
Star Canyon creek, or to any of the waters thereof, under and by virtue of his certificate of
appropriation.
52 Nev. 330, 341 (1930) Gallio v. Ryan
validity of the plaintiff's adjudicated statutory appropriation of 0.4905 cubic feet per second
of water flowing in Star Canyon creek, or to any of the waters thereof, under and by virtue of
his certificate of appropriation. It is insisted in argument in the first place that the water
appropriated was waste water and therefore not subject to appropriation under our so-called
water code. On the other hand, the learned trial court decided that the water appropriated by
the plaintiff was surplus water flowing in defendant's ditches, which, by lapse of time, had
come to be regarded as equivalent to a natural water course and the plaintiff, having
constructed his ditches so as to intercept the artificial channel, or the natural depressions
through which the water escaped therefrom, had brought himself within an exception of the
court's own creation to our statutory law of appropriation and that plaintiff was entitled to
have such rights, as he acquired by the construction of his ditches, quieted and protected by
law.
These respective contentions necessitate a review of the evidence, a summary of which
stated in narrative form must suffice. Star Canyon creek, as its name implies, has its source in
Star Canyon in the Humboldt range of mountains. It is a small stream, variable in its flow
depending primarily upon the melting of snow and the fall of rain in our mountains and
foothills. If left unobstructed, it would flow easterly from its source for a distance of a few
miles and then spread and disappear upon the public domain in the valley below, called
Buena Vista. The only persons who claim the right to the use of the waters of said creek are
the plaintiff and defendant, who claim no riparian rights, and who base their claim to the use
of the waters of said creek solely upon the doctrine of appropriation which prevails in this
state, both by statute and court decision.
A map of a hydrographic survey made by court order of the lands irrigated from Star
Canyon creek shows that the defendant's lands are irrigated from waters flowing in several
ditches constructed by the defendant and her predecessors in interest to divert the waters
of said creek to, in, and upon her two ranches.
52 Nev. 330, 342 (1930) Gallio v. Ryan
and her predecessors in interest to divert the waters of said creek to, in, and upon her two
ranches. The original ditch was constructed by the defendant's earliest predecessors in
interest, W.C. Gregg and Joseph Organ, in 1862 and 1889. The original ditch runs in a
southeasterly direction from its original intake at a point in Star Canyon for a distance of
about four miles and is used to irrigate defendant's Star Creek ranch. One other ditch,
constructed by defendant in 1918, with an intake a short distance above the intake of the
original, runs in a southeasterly direction for a distance of about three and one-half miles,
which serves to irrigate the lands embraced within defendant's Santa Clara ranch. The
defendant acquired lands through mesne conveyances between 1862 and 1918, her immediate
predecessor being Peter Organ, a son of Joseph Organ.
In 1910, G. Gallio, the plaintiff, made a homestead entry upon the north 1/2 of section 10
in township 30 north, range 35 east, in Pershing County. According to the cultural maps in
evidence he had, at the time of the commencement of this suit, under cultivation about 35
acres, and Margaret Ryan had under cultivation about 269 acres. In 1913, Gallio, in order to
obtain water for the irrigation of his land being brought under cultivation, ran two ditches
along the easterly and southerly boundary of the defendant's Santa Clara ranch and another
ditch along the easterly boundary of the defendant's Star Creek ranch. According to his own
testimony and his avowed declarations made in his application for a permit to use the waters
of Star Canyon creek, he constructed said ditches to collect the drain or waste waters from the
defendant's lands irrigated by laterals from her main ditches to, in, and upon the cultivated
areas thereof. The waters collected by the several ditches ran into a ditch constructed by the
plaintiff at a point a short distance below the defendant's ranches, continuing on down
through the valley for a distance of about four miles to the plaintiff's ranch.
52 Nev. 330, 343 (1930) Gallio v. Ryan
In March, 1914, the plaintiff made application to the state engineer for permit to
appropriate 3.2 of the overflow water not used of Star Canyon creek, with a point of diversion
from its source at the SW 1/4 of NE 1/4 of SE 1/4 of section 3, township 30 north, range 35
east. The land to be irrigated being the north 1/2 of section 10, township 30 north, range 35
east. The point of diversion was at the point of intersection of sections 3 and 10.
Upon his proof of application, dated September 28, 1921, for permit, the point of diversion
was changed to the SE 1/4, SW 1/4, section 27, township 31 north, range 35 east. The reason
assigned by the plaintiff for the change was that the waters of Star Canyon creek were
flowing any and every place over the valley on account of the flat condition of the land. The
plaintiff stated in his proof that there was not any regularly defined channel so a ditch had to
be dug for many miles, which was done to confine the waters of the creek to one regular line
to save any waste.
During the irrigating season of the years 1920 and 1921, the plaintiff complained to the
defendant and to her agents that the water flowing in her ditches was being wasted and
diverted in enormous quantities upon uncultivated sagebrush land and from plaintiff and his
land, thereby depriving plaintiff of water to which he was legally entitled. As a result of this
controversy it seems that this action was instituted.
The fact that the plaintiff ran the ditches as he did along the easterly and southerly sides of
the irrigated area of defendant's lands is of itself sufficient evidence to show that the ditches
were constructed for the purpose of collecting drain or waste waters caused by the defendant's
irrigation system.
Waste water, says Mr. Kenney, may be defined to be such water as escapes from the
works or appliances of appropriators without being used; or, such water as escapes from an
appropriator's lands after he has made all the beneficial use thereof that is possible and which
cannot be returned into the natural stream from which it was originally taken." Kinney on
Irrigation {2d ed.), sec.
52 Nev. 330, 344 (1930) Gallio v. Ryan
it was originally taken. Kinney on Irrigation (2d ed.), sec. 661.
1, 2. Where surplus water is made up from water running off from ground which has
been irrigated; water not consumed by the process of irrigation; water which the land irrigated
will not take up; is waste water. It is subject to capture and use, but that is the limit and extent
of the right. The user cannot impose upon the owner permitting the waste or escape of the
water to cause it to be wasted or to require the continuance of its flow. Wedgeworth v.
Wedgeworth, 20 Ariz. 518, 181 P. 952.
3, 4. The plaintiff, by his cause of action, sought to prevent, by an injunction, the
defendant from diverting the water from her ditches to, in, and upon uncultivated sagebrush
land, to which plaintiff alleged he was legally entitled under and by virtue of his certificate of
appropriation. Where one has acquired the right to waste water from the ditches or laterals of
another, he does not thereby become vested with any control of any such ditches or laterals,
or the water flowing therein, nor is the owner of such ditches required to continue or maintain
conditions so as to supply the appropriation of waste water at any time or in any quantity,
when acting in good faith. Wedgworth v. Wedgworth, supra; Stepp v. Williams, 52 Cal. App.
237, 198 P. 661; Green Valley Ditch Co. v. Schneider, 50 Colo. 606, 115 P. 705; Mabee v.
Platte Land Co., 17 Colo. App. 476, 68 P. 1058; Popham v. Holloron (Mont.), 275 P. 1099;
Brosnan v. Boggs, 101 Or. 477, 198 P. 890; Garns v. Rollins, 41 Utah, 260, 125 P. 867, Ann.
Cas. 1915c, 1159.
5, 6. These authorities are all to the effect that a claimant to waste water acquires a
temporary right only to whatever water escapes from the works or lands of others, and which
cannot find its way back to its source of supply; that such a use of the water does not carry
with it the right to any specific quantity of water; nor the right to interfere with the water
flowing in the ditches or works of others lawfully appropriating it. Kinney on Water Rights
(2d ed.), sec. 661.
52 Nev. 330, 345 (1930) Gallio v. Ryan
The author states that the authorities hold that while the water so denominated as waste water
may be used after it escapes, no permanent right can be acquired to have the discharge kept
up, either by appropriation or a right by prescription, estoppel, or acquiescence in its use
while it is escaping, and that, too, even though expensive ditches or works were constructed
for the purpose of utilizing such waste water, unless some other element enters into the
condition of affairs, other than the mere use of the water.
The only element that enters into the situation, as disclosed by this record other than the
mere use of the water in controversy, is plaintiff's certificate of appropriation. The
documentary proof of his appropriation in evidence shows that the water applied for was
surplus or overflow water from Star Canyon creek not used on the Peter Organ ranch; water
going to waste; water that had been partially used.
7. Counsel for plaintiff insist in argument that the plaintiff was not concerned about the
drainage of water from the Ryan fields; that all his complaint was directed to the loss or
wastage of water from defendant's Santa Clara ditch and its diversion from her Santa Clara
field to and upon sagebrush land outside of the boundary of her ranch. This is the substance
of his cause of action. Since the plaintiff, Gallio, was not vested with any control of the
defendant's ditches or laterals, or the water flowing therein, plaintiff was in no position to
complain that the defendant did not continue or maintain the flow of water so as to supply his
appropriation of water permitted to waste or escape at any time or in any quantity from the
defendant's ditch.
8. His taking and use of the water made up from the defendant's irrigation system did not
constitute an appropriation as that term is used in our statutes, as he acquired no such usufruct
right in the water as to entitle him to compel the continuation of the condition furnishing him
with water. Popham v. Holloron, supra. His taking and use of such water did not impose upon
the owner of the ditch permitting the waste or escape of the water to cause it to be wasted
or to require the continuance of its flow {Wedgworth v. Wedgworth, supra), or prevent
the owner of the land from draining it in such manner as to cut off the flow from the
plaintiff. Garns v. Rollins, supra.
52 Nev. 330, 346 (1930) Gallio v. Ryan
of the water to cause it to be wasted or to require the continuance of its flow (Wedgworth v.
Wedgworth, supra), or prevent the owner of the land from draining it in such manner as to cut
off the flow from the plaintiff. Garns v. Rollins, supra.
The learned trial court's decision upon this phase of the case was to the effect that there
was no doubt as to the law that a vested right as against the person permitting waste water to
escape from his land could not be acquired by the person using the same, and if the case at
bar was a case solely of that kind, plaintiff could have no relief whatever. The court, however,
was of the opinion that the 3.2 second feet of water as applied for in the plaintiff's application
filed with the state engineer was surplus water and not waste. That it was surplus water
is true, but being surplus water made up from water flowing off from the defendant's
irrigated lands and water not consumed by the defendant's process of irrigation, it was waste
water that did not and could not find its way back to Star Canyon creek from which it was
lawfully taken by the defendant.
From the inception of the trial of the case, counsel for the defendant took the position that
to make a valid appropriation of water it must be diverted from a natural water course or
natural body of water, and that since plaintiff's ditch did not take out from the natural channel
or bed of Star Canyon creek, he had not made a valid diversion, an essential step to be taken
in the appropriation of water. The trial court was of the opinion that, like practically all
principles in the law, there are exceptions to the rule that the diversion must be from a natural
water course or body of water. Upon this exception the court decided, found, and adjudged as
follows: That, by reason of the fact that all the waters of Star Canyon Creek have, for more
than forty years last past, been diverted by the defendant, Margaret Ryan and her predecessors
in interest, at all seasons of the year, through the Organ Main Ditch, the said Organ Main
Ditch has, during all of said time, been, and now is, the natural stream or channel of said
Star Canyon Creek for all purposes, including the place from which an appropriation can
be made."
52 Nev. 330, 347 (1930) Gallio v. Ryan
and now is, the natural stream or channel of said Star Canyon Creek for all purposes,
including the place from which an appropriation can be made.
In support of this principle of law the court in its decision cited and relied upon Wiel on
Water Rights (3d ed.), sec. 60, and cases cited in notes 19 to 21, and in its decision quoted
extensively from several of the cases cited. Conceding for the purposes of the argument that it
is an established principle that, by lapse of time, an artificial water course may come to be
regarded as equivalent to a natural one, the very authority cited, Wiel on Water Rights, holds
that the rule rests upon a quasi dedication of the artificial condition to the public, and the
essence of it is the growth of a community dependent upon the artificial condition. Where no
such community interest, says the author, has been created, and the question is solely between
a single individual and the original creator of the artificial water course or condition, the rule
has no application. So, in this case, where the question is one solely between the plaintiff and
the defendant, the creator of the artificial condition, the rule invoked in inapplicable.
In the statutes of 1917, chapter 190, sec. 1 (amending Laws 1913, c. 140, section 8)
thereof, it is provided: Rights to the use of water shall be limited and restricted to so much
thereof as may be necessary, when reasonably and economically used for irrigation and other
beneficial purposes, irrespective of the carrying capacity of the ditch; and all the balance of
the water not so appropriated shall be allowed to flow in the natural stream from which such
ditch draws its supply of water, and shall not be considered as having been appropriated
thereby.
* * *
From the evidence we are of opinion that no valid or legal appropriation was made by
plaintiff of the waters of Star Canyon creek; it is therefore unnecessary for us to determine
whether or not the evidence is sufficient to show that the defendant diverted, through her
ditches, more water from Star Canyon creek than necessary for the irrigation of her lands
when reasonably and economically used, or what amount of water not so appropriated by
her should be allowed to flow in the natural stream, from which her ditches drew their
supply of water.
52 Nev. 330, 348 (1930) Gallio v. Ryan
necessary for the irrigation of her lands when reasonably and economically used, or what
amount of water not so appropriated by her should be allowed to flow in the natural stream,
from which her ditches drew their supply of water. The judgment and decree are set aside,
and the case is remanded for a new trial.
Coleman, Jr., concurring:
I concur. In my opinion the facts of this case do not bring it within the principles laid down
by Mr. Wiel or any of the cases cited in support of the contention pertaining to a situation
growing out of the diversion of the entire flow of water from a natural stream.
I concur in the order of reversal for the further reason that the trial court, in my opinion,
erred in entering a decree awarding to the plaintiff the amount of water designated for the
entire irrigation season.
Peter Organ testified that his people bought the ranch in 1869, and that he lived upon it
continuously thereafter until he sold to the defendant in 1918, and that for many years
antecedent to plaintiff's advent in the country he had appropriated all of the water of Star
Canyon creek for irrigation purposes, and that as a rule there was not enough water in the
creek in the months of July and August to irrigate his lands. He further testified that he had
had under cultivation for years all of the land cultivated by the defendant after she purchased
it. He did admit, however, that for a period all of the land was not cultivated or irrigated by
him. Nonuser of water, once appropriated, does not per se constitute abandonment.
Abandonment must be proven, and there is no contention that there was an abandonment.
John Ryan and Ed Ryan, sons of the defendant, also testified that no land had been
cultivated by the defendant except what had been under cultivation by Organ, and that during
the months of July and August there was not enough water in the stream to irrigate their
crops.
The testimony of J.A. Miller, an engineer, and others, shows that the water is highest in
April and May, and that it decreases in volume very rapidly as the summer season
advances.
52 Nev. 330, 349 (1930) Gallio v. Ryan
shows that the water is highest in April and May, and that it decreases in volume very rapidly
as the summer season advances. There is no conflict of the testimony, as I read it, to the effect
that there is not enough water in the stream in July and August to irrigate the cultivated lands
of the defendant.
I think it is true that there is a larger volume of water in the stream in April and May, and
possibly during a portion of June, than the defendant can economically use, but the waste
water from defendant's ranches during those months did not form a natural stream, or any
other kind of a stream, until plaintiff ran some ditches about the year 1913, or thereafter, to
catch this water.
I can see no theory upon which the judgment and decree can be affirmed.
Ducker, C.J., dissenting:
I dissent. The majority ruling, in my opinion, ignores the force of the findings of the trial
court. It is also wrong in deciding that the respondent made no valid appropriation of any of
the waters of Star Canyon creek. Among other things the court found in substance that
respondent applied to the state engineer for permission to divert and use surplus waters of
Star Canyon creek, and was thereafter granted a certificate of appropriation giving him the
right to divert and use, in the irrigation of the lands described in his answer and for domestic
and stock watering purposes, 0.4905 second feet of the surplus and unappropriated waters of
Star Canyon creek; that the waters diverted by respondent were surplus and unappropriated
waters of said stream; that the total seasonal flow of Star Canyon creek in normal and
abnormally wet years is more than sufficient to satisfy the rights of both appellant and
respondent in and to the use of the waters thereof; that the Organ main ditch now constitutes,
and for more than forty years last past has constituted, the natural stream and channel of said
Star Canyon creek for all purposes, including the place from which an appropriation can be
made.
52 Nev. 330, 350 (1930) Gallio v. Ryan
There is ample evidence to support these findings and they ought, therefore, under a
well-settled rule to bar this court from holding that the waters of Star Canyon creek, filed
upon and diverted by respondent, were waste waters in which he could acquire no right by
appropriation.
The right of the trial court to find from the evidence that the Organ main ditch became the
natural channel and stream for all purposes is supported by both reason and authority. Hollett
v. Davis, 54 Wash. 326, 103 P. 423; Wiel on Water Rights (3d ed.), vol. 1, sec. 60, and cases
cited in notes 19 and 21; Gould on Waters (3d ed.), sec. 225. The reasoning of Judge L.O.
Hawkins, the trial judge, upon this phase of the case is most persuasive. He said:
Defendant (appellant) has cited authority to the effect that to make a valid appropriation
of water it must be diverted from a natural water course or natural body of water, and that
since plaintiff's (respondent's) ditch does not take out from the natural channel of Star Canyon
Creek, he has not made a valid diversion. However, like practically all principles in law there
are exceptions to the rule that the diversion must be from a natural water course or body of
water.
If the law were as contended for by defendant there could never be any valid
appropriation of water from Star Canyon Creek below the Ryan Dam therein, the evidence
showing that for more than forty years no water has run in the old channel of Star Canyon
Creek below that dam, except in times of extremely high waters when for a short time some
water would break over the solid dam of the defendant. By the building of this solid dam in
the Creek more than forty years ago and its maintenance to the present time, the channel of
said creek has been changed from its original location, and by the continual use of the Ryan
ditch below said dam for the entire flow of the stream in and out of irrigation season, winter
and summer, the artificial ditch has become the natural channel for all purposes of
appropriation as well as for other purposes.
52 Nev. 330, 351 (1930) Gallio v. Ryan
And the so-called waste water which plaintiff filed upon has evidently been the water
diverted by defendant and her predecessors in interest in excess of the quantity needed by
them. By the application and use of this surplus through the Ryan ditches, through which at
all normal times has been diverted the entire flow of Star Canyon Creek, plaintiff has, without
objection, until the last two or three years, secured a vested right, subject to the prior right of
the defendant, to the amount of his certificate, and such a right which he is entitled to have
quieted and protected by a decree of this court. A person cannot divert the entire flow of a
natural stream through his artificial ditches, provided the flow is in excess of the amount to
which he is entitled, continue such diversion for forty years or more and thus prevent a person
from appropriating such surplus by tying on to the ends of his ditches or even diverting such
surplus from the ditches themselves; such flow being the natural flow of the stream and the
artificial channels become the natural channel of the stream after a lapse of such time as we
have in this case. In support of this principle of law we cite and rely upon Wiel on Water
Rights (3d ed.), vol. 1, sec. 60 and cases cited in notes 19 to 21. Then too, such seems so
clearly to be equity and justice that if there were no cases to support the right of plaintiff to
file upon such surplus waters so diverted by defendant the decision in this case should
establish such to be the law.
Respondent made his application to the state engineer, received his certificate of
appropriation, cultivated his lands, and otherwise used the waters diverted by him for
domestic and stock watering purposes, with reference to the changed condition of the stream.
Equity ought, therefore, to estop appellant from asserting that this changed condition of the
stream brought about by her predecessors in interest and maintained by them and her over a
long period of time operates to defeat respondent's right of appropriation.
I do not think the fact that respondent's ditches make no direct connection with appellant's
main ditch, ought to be permitted to defeat the former's appropriation.
52 Nev. 330, 352 (1930) Gallio v. Ryan
ought to be permitted to defeat the former's appropriation. His ditches have been so
constructed as to collect the surplus waters coming from appellant's lands. They collect such
waters when the same are not diverted by appellant to lands entitled to no service of water.
Respondent's ditches divert the surplus and unappropriated waters of Star Canyon creek just
as effectually as if his ditches pierced the bank of the creek above appellant's dam or the bank
of her ditch below the dam. To hold to the contrary is to give more heed to the form of an
appropriation than to its substance. Equity dislikes a discrimination of this kind.
If appellant considers the continual flowing of surplus waters over her lands to
respondent's intercepting ditches injurious to the land, she may remedy this by permitting his
quota to come down the former channel of the creek, for the evidence shows that his ditches
are so constructed as to intercept and collect any waters that may come down this course.
The decree should be affirmed.
____________
52 Nev. 353, 353 (1930) D'Errico v. D'Errico
D'ERRICO v. D'ERRICO
No. 2824
April 26, 1930. 287 P. 445.
1. DivorceSupplemental ComplaintRes JudicataError.
Granting divorce upon subsequently occurring facts alleged by supplemental complaint, after
sustaining res judicata defense to original complaint, was error.
The evidence showed that, after issues were joined in husband's divorce action, he
went to state of former marital domicile, where wife did various acts which were
subsequently made basis of supplemental complaint. The trial court found that cause of
action alleged in original complaint had been adjudicated by foreign decree, but
granted divorce on basis of cause of action set out in supplemental complaint, which
substantially alleged that acts therein complained of were merely continuation of wife's
general attitude during 15 years.
Appeal from Second Judicial District Court, Washoe County; Geo. A. Bartlett, Judge.
On rehearing. Former opinion adhered to, judgment below reversed, and cause
remanded. (For former opinion, see 51 Nev. 363, 276 P. 530. See, also, 51 Nev. 76, 269 P.
26.)
Brown & Belford and Walter M. Kennedy, for Appellant:
Respondent contends that the court erred in holding that a supplemental complaint cannot
set forth a new cause of action, and that if a cause of action is not made out by the proof
under the complaint, the supplemental complaint must also fail. The authorities cited by the
court and the more recent California cases are in complete accord with this decision. Imperial
Land Co. v. Imperial Irrigation District (Cal.), 160 P. 116; Miles v. Bybe (Cal.), 211 P. 251;
Bancroft's Code Pleading, vol. 1, sec. 458.
Samuel Platt, for Respondent:
It is seriously urged that irrespective of what may have been determined concerning the
original complaint, the supplemental complaint properly set forth a separate and distinct
cause of action, in accordance with well founded principles of law, and that the trial court
was amply justified from the evidence in entering a decree in favor of the respondent.
52 Nev. 353, 354 (1930) D'Errico v. D'Errico
the supplemental complaint properly set forth a separate and distinct cause of action, in
accordance with well founded principles of law, and that the trial court was amply justified
from the evidence in entering a decree in favor of the respondent. There is ample authority in
this jurisdiction for filing a supplemental complaint, even though the cause of action stated in
the original complaint may have been rendered impotent through a plea of res adjudicata and
even though it may have been filed as a separate and distinct pleading in itself. Sec. 5076,
Rev. Laws of Nev.; Valensin v. Valensin, 73 Cal. 106, 109, 14 P. 397; Randall v. Randall
(Cal.), 264 P. 751.
Even the Maryland court, with all its strictness toward the application of technical
equitable rules, has held that a supplemental bill having been once received without objection
there is in effect a waiver of such objection as might be pertinently made. Feigley v. Feigley,
7 Maryland, 560.
OPINION
By the Court, Sanders, J.:
In 1898, Joseph D'Errico intermarried with Maria T. D'Errico. The parties were residents
of Cleveland, Ohio, and this was the marital domicile during all the time they lived together
as man and wife. In 1925, the husband filed a petition for a divorce in the court of common
pleas in and for Cuyahoga County, Ohio, alleging therein various acts of marital misconduct
and cruelties on the part of the defendant of such nature and character as to force the plaintiff
to withdraw from the marital relation and live separate and apart from the defendant since
April 27, 1925. The defendant answered the complaint in which she specifically denied the
various forms of cruelties alleged in the petition and alleged, among other things, that the
plaintiff had on, to wit, April 27, 1925, deserted the defendant without just cause and without
fault on her part, and prayed that the petition of plaintiff be dismissed and that she be granted
a decree as allowed and provided under the statutes of Ohio against the plaintiff for
alimony or separate maintenance.
52 Nev. 353, 355 (1930) D'Errico v. D'Errico
granted a decree as allowed and provided under the statutes of Ohio against the plaintiff for
alimony or separate maintenance.
The Ohio court in its decree found the issues joined in favor of the defendant, denied
plaintiff's petition for divorce, and awarded the defendant separate maintenance in the form of
alimony.
Thereafter the plaintiff left Cleveland, Ohio, and came to Reno, Washoe County, Nevada.
Having resided there for the statutory period of three months, on, to wit, January 25, 1927, he
filed a complaint in the court below against his wife, residing in Ohio, for divorce. The
complaint alleged various acts of cruelty, the same as those charged against her in his petition
for divorce in the Ohio court, upon which he predicated a cause of action for constructive
desertion occurring on April 27, 1925. In response to process, the defendant answered the
complaint and, after denying the various acts of cruelties specified therein, she set up the
judgment role in the Ohio court and alleged that by the judgment of the Ohio court the
plaintiff was estopped and barred from alleging, proving, or attempting to prove any of the
matters set out in his complaint. The answer also alleged that on the 27th day of April, 1925,
the plaintiff willfully and wrongfully deserted and abandoned the defendant without fault on
her part, and that such desertion had continued up to the present time and that, by the
judgment of the Ohio suit, plaintiff was estopped and precluded from alleging, proving, or
attempting to prove that he had not so deserted and abandoned the defendant. The plaintiff for
reply denied the allegations of the answer and the legal effect of the Ohio decree as a defense
or bar to his action and reiterated and reaffirmed all the allegations of his complaint, without
specifically repeating them, and prayed that his complaint be granted.
No steps were taken by either party to have the case set for trial. While the case was at
issue, the plaintiff left Reno, Nevada, and returned to Cleveland, Ohio, where the defendant
resided.
52 Nev. 353, 356 (1930) D'Errico v. D'Errico
In September, 1927, the plaintiff returned to Reno and filed a supplemental complaint in
the Nevada action, specifying therein that while engaged in business temporarily in the city of
Cleveland, Ohio, with the intention of returning to Reno, he was harassed, harangued, and
annoyed by the defendant, which caused him serious humiliation and embarrassment, mental
pain, anguish, and suffering. This general allegation was followed by statements of various
acts of cruelty visited by the defendant upon the plaintiff while in Cleveland. The
supplemental complaint concludes with the averment that said acts and attitude as alleged
therein were and are but a continuation of the general attitude of the defendant during
practically fifteen years of the period of time during which he lived with the defendant.
Wherefore, the plaintiff prayed the relief demanded in both complaints.
For answer to the supplemental complaint, the defendant specifically denied all its
allegations, and for defense and by way of recrimination alleged that the plaintiff on April 27,
1925, in the city of Cleveland, wrongfully, willfully, and without just cause deserted and
abandoned the defendant against her will, and without her consent, and continued to so desert
and abandon the defendant without her fault for a period of more than one year. Wherefore,
she prayed that the plaintiff take nothing by his action and that said action be dismissed.
The plaintiff made reply to the defendant's answer to his supplemental complaint, and
prayed that the relief demanded in his original and supplemental complaint be granted.
The case came on for trial to the court without a jury. After a full hearing, the court made
and caused to be entered its findings of fact and conclusions of law, from which findings it
appears that the court found, quoting its language: That the affirmative defenses of res
adjudicata, estoppel and bar addressed to the cause of action alleged in plaintiff's complaint
are sustained by the evidence.
The court further found that the allegations contained in the plaintiff's supplemental
complaint were true, and in so finding followed closely its allegations.
52 Nev. 353, 357 (1930) D'Errico v. D'Errico
in the plaintiff's supplemental complaint were true, and in so finding followed closely its
allegations. Thereupon, plaintiff was granted a decree of divorce, and the parties were
restored to their original status of unmarried persons.
The defendant appealed from the judgment and from an order denying her motion for new
trial.
Upon the former hearing, in the leading opinion, it was held in substance that where, in an
action for divorce, the court found that the defendant's plea of res adjudicata, based upon a
foreign judgment, interposed to the original complaint, was established by evidence, a decree
based on misconduct or cruelties committed after filing of the original complaint could not be
sustained, since a new cause of action arising after institution of the original suit could not be
prosecuted by a supplemental bill, particularly where it was alleged in the supplemental bill
that the defendant's subsequent conduct was but a continuation of the general attitude of the
defendant toward the plaintiff during practically fifteen years of the period of time during
which they lived together as husband and wife. D'Errico v. D'Errico, 51 Nev. 363, 276 P. 530.
Thereafter, and within the time prescribed by rule of court, the plaintiff filed a petition for
rehearing asserting that a rehearing should be granted: First, for the reason that the ground
upon which the judgment of a reversal was made to turn was not presented or argued. Second,
for the reason that the cause of action stated in the original complaint was eliminated from the
case by the court's express finding that the defendant's plea of res adjudicata based upon the
Ohio judgment was sustained by the judgment. Third, that the decree in plaintiff's favor was
based solely upon the issue joined on the supplemental complaint. Fourth, that the decision
rendered is not the law of the case as made by the pleadings and findings. A rehearing was
granted to afford counsel an opportunity to argue these questions.
Upon reexamination of the authorities, I am convinced that the former holding was
correct in every particular.
52 Nev. 353, 358 (1930) D'Errico v. D'Errico
that the former holding was correct in every particular. At the outset I concede that in a proper
case under our statute the court may permit a supplemental complaint alleging misconduct
occurring after the filing of the original complaint in a divorce action. But I do not concede
that a plaintiff is permitted to set up in a supplemental complaint subsequently occurring facts
upon which a decree of divorce might be granted without reference to the original complaint.
This is exactly what the learned trial court did in this case. It fund that the defendant's plea of
res adjudicata, based upon the Ohio decree, interposed as a defense to the original complaint,
was sustained by the evidence, and, without reference to the original complaint, granted
plaintiff a divorce upon subsequently occurring facts set up in his supplemental complaint.
This was error. 19 C.J. 119, sec. 311.
If, as it is argued by counsel for plaintiff on rehearing, the case was tried upon the theory
that the supplemental complaint stated a new and independent cause of action, which, without
reference to the original complaint, entitled plaintiff to a divorce, then my associates are
correct in holding that, it appearing that both parties are guilty of matrimonial offenses
constituting grounds for divorce, neither are entitled to the relief prayed. Blankenship v.
Blankenship, 51 Nev. 356, 276 P. 9.
I prefer, however, that my decision rest upon the proposition that the acts of matrimonial
misconduct occurring in Ohio while the case was at issue in Nevada were alleged by way of
supplemental complaint advisedly and in aid of the original complaint. In this I am supported
by the allegations of the supplemental bill itself, wherein it is alleged in substance that the
acts complained of therein were and are but a continuation of the general attitude of the
defendant during practically fifteen years of the period of time during which they lived
together. I am clearly of opinion that the defeat of the original complaint carried with it the
supplemental complaint.
I have examined the California case cited and relied upon by the learned counsel for
plaintiff {Randall v. Randall, 203 Cal.
52 Nev. 353, 359 (1930) D'Errico v. D'Errico
upon by the learned counsel for plaintiff (Randall v. Randall, 203 Cal. 462, 264 P. 751), but
do not consider it to be in point.
Entertaining these views, the judgment appealed from and the order denying defendant's
motion for new trial must against be reversed, and the cause remanded.
It is so ordered.
Ducker, C.J.: I concur in the order.
Coleman, J., concurring in the order of reversal:
In view of the fact that the cause of action pleaded in the original complaint is barred by
the Ohio decree, I concur in the conclusion reached that the plaintiff cannot set up, by
supplemental complaint, acts of cruelty alleged to have been committed after the filing of said
original complaint.
I further concur in the order of reversal upon authority of the opinion in Blankenship v.
Blankenship, 51 Nev. 356, 276 P. 9.
____________
52 Nev. 360, 360 (1930) Simmick v. Florio Et Al.
SIMMICK v. FLORIO Et Al.
No. 2415
April 30, 1930. 287 P. 447.
1. AnimalsStatuteGrazingDamagesActionComplaintSufficiency.
Complaint in action to recover damages, pursuant to statute, for herding live stock within mile of bona
fide home or ranch, held sufficient (Stats. 1917, c. 81).
Complaint alleged, in substance, that plaintiff was owner of real estate and ranch
house; that defendants were owners of certain bands of sheep ranging in county; that
defendants, without plaintiff's consent, unlawfully and wrongfully herded and grazed
their sheep within one mile of bona fide home and ranch house of plaintiff and within
500 feet, more or less; that such lands were not owned by defendants; that there was not
a public highway upon such lands; and that in so herding sheep defendants negligently
destroyed one of plaintiff's main irrigation ditches.
Appeal from Third Judicial District Court, Eureka County; Peter Breen, Judge.
Action by Fred W. Simmick against Angelo Florio and another. From a judgment for
plaintiff, and from an order denying motion for new trial, defendants appeal. Affirmed.
McCarran & Mashburn, for Appellants:
There can be no successful contention that this is not an action in trespass. That being true,
the cause must be reversed, because nowhere within the pleadings, and especially nowhere
within the complaint in this action, is there any allegation of possession or right of possession
in the plaintiff.
The court will notice that in the judgment rendered by the trial court exemplary damages
are imposed against appellants, as defendants therein. Nowhere in the pleadings is there a
demand for exemplary damages. It is a fundamental rule of pleading that a judgment is void
which is in excess of that prayed for in the action.
We most respectfully contend that the evidence in this case will not support the
judgment of the trial court.
52 Nev. 360, 361 (1930) Simmick v. Florio Et Al.
this case will not support the judgment of the trial court. This court of review must, in
viewing the pleadings, take cognizance of the fact that no damage is alleged by the
plaintiff-respondent herein, either actual or exemplary, by reason of the appellants' sheep
having been within one mile of the house of respondent. Moreover, there is no testimony or
evidence of any damages accruing to the plaintiff by reason of sheep of the appellants being
within one mile of the respondent's house. We maintain the law to be that unless there is
some element of malice or gross negligence or circumstance of aggravation, that the measure
of damages in an action of this kind is the measure of compensation for the loss sustained,
and nothing more. 13 Cyc, p. 108. This principle of law is true even though exemplary
damages are awarded by statute. McDonald v. Montana Wood Company, 43 Am. St. Rep.
616; Michigan Land Company v. Deer Lake Company, 1 Am. St. Rep. 419.
Carey Van Fleet, for Respondent:
This action was brought under a statute (Stats. 1917, p. 124, Rev. Laws, vol. 3, p. 2845)
and was plead in the words of the statute. The statute has never been declared
unconstitutional and gives the judge or jury power to impose exemplary damages where
elements of wantonness or willful violation of the statute are present. Those elements are
present here, because defendants not only violated the statute in driving their sheep within the
prohibited district but they wantonly destroyed plaintiff's ditches. The trial court found
elements of malice, and this court will not disturb the finding. Forrester v. So. Pac. Co., 36
Nev. 248, 134 P. 735; Burrus v. N.C.O., 38 Nev. 156, 145 P. 926.
The complaint is sufficient if plead under the statute. 3 C.J. 146, sec. 460, last par.
There is a sufficient allegation of exemplary damage in plaintiff's complaint. But if
sufficient facts are stated it is not necessary to make an express demand. Exemplary
Damages, 17 C.J. 1005, sec. 309-310; Lauria v. Dupont, 241 Fed.
52 Nev. 360, 362 (1930) Simmick v. Florio Et Al.
Dupont, 241 Fed. 687; Waite v. San Fernando Pub. Co., 178 Cal. 303. But it is too late to
raise this question on appeal. Avakian v. Noble, 121 Cal. 216.
As to the sufficiency of the evidence, there is sufficient conflict in the evidence to prevent
this court from disturbing the judgment of the trial court.
OPINION
By the Court, Coleman, J.:
The record on appeal in this case was filed on September 2, 1919. Pursuant to numerous
stipulations the filing of briefs was long deferred, appellants' opening brief having been filed
September 30, 1922, and the answering brief of respondents not having been filed until July
2, 1929, to which no reply brief was ever filed. The case was recently ordered submitted upon
the two briefs mentioned.
This is an action to recover both actual and exemplary damages pursuant to chapter 81,
Stats. 1917, which makes it unlawful for any person owning or having charge of live stock to
drive or herd, or to permit the same to be herded or driven, on the lands or possessory claims
of other persons, or to herd the same or to permit the same to be herded within one mile of a
bona fide home or ranch house, except when herded or grazed upon the land of the person so
herding or grazing, or driven along a public highway.
The trial court found that the defendants had been guilty of violating the statute in question
as charged in the complaint, and rendered judgment in favor of the plaintiff for both actual
and exemplary damages.
The appeal is from both the judgment and the order denying the motion for a new trial.
Three grounds are urged as reasons why a reversal should be ordered: (1) That the
evidence is insufficient to justify the trial court in rendering judgment in favor of the plaintiff;
(2) that the judgment is without the scope of the allegations of the complaint; and (3) that
there is no allegation in the complaint that the plaintiff was the owner of the property on
which the trespass is alleged to have been committed.
52 Nev. 360, 363 (1930) Simmick v. Florio Et Al.
there is no allegation in the complaint that the plaintiff was the owner of the property on
which the trespass is alleged to have been committed.
We will consider first the second point urged. The complaint alleges that the plaintiff is the
owner of certain real estate situated in Eureka County, Nevada, and the ranch house and home
thereon; that he is the owner of a water right on Sheep creek, from which he irrigates the land
described, through ditches owned by him; that the defendants are the owners of certain bands
of sheep which range in Eureka County, and on certain days the defendants, without the
consent of the plaintiff, unlawfully and wrongfully herded and grazed 1,000 sheep, more or
less, belonging to defendants, within one mile of the bona fide home and ranch house of the
plaintiff, and within 500 feet, more or less, of said home and ranch house of the plaintiff, and
that the lands upon which said sheep were so herded and grazed were not owned by the
defendants, or either of them, and that there was not a public highway upon said lands upon
which said sheep were so herded and grazed; that in so herding said sheep the defendants
destroyed one of the main ditches owned by the plaintiff, which was used to conduct the
water from Sheep creek upon the lands owned by plaintiff, aforementioned; that said
destruction of said ditch was wanton, unlawful, and grossly negligent on the part of the
defendants.
In the opening brief filed by counsel for appellant herein the case is not discussed upon the
theory that the action was instituted and prosecuted pursuant to the statute mentioned above,
but upon the theory that it is an action in trespass, as appears from the following quotation in
their brief: There can be no successful contention that this is not an action in trespass. That
being true, the cause must be reversed because nowhere within the pleadings, and especially
nowhere within the complaint in this action, is there any allegation of possession or right of
possession in the plaintiff. * * *
The answering brief of counsel for respondent points out that the suit was instituted
pursuant to the statute mentioned; that the allegations of the complaint bring the case
squarely within the statute, and that the evidence supports the allegations of the
complaint and the judgment.
52 Nev. 360, 364 (1930) Simmick v. Florio Et Al.
out that the suit was instituted pursuant to the statute mentioned; that the allegations of the
complaint bring the case squarely within the statute, and that the evidence supports the
allegations of the complaint and the judgment. Counsel for appellants filed no reply to this
brief, which we take is a confession that the judgment and order must be affirmed. However,
we have carefully examined the record. It is clear that the complaint alleges a cause of action
under the statute mentioned. The evidence, even that of the defendants, supports the
complaint, the findings, and judgment.
No error appearing, it is ordered that the judgment and order appealed from be affirmed.
____________
52 Nev. 364, 364 (1930) Dodge Bros., Inc. v. Williams Estate Co.
DODGE BROS., Inc. v. WILLIAMS ESTATE CO.
No. 2886
April 30, 1930. 287 P. 282.
1. Reformation of InstrumentsContractMutual MistakeFraudPleading.
Contract cannot be reformed except for mutual mistake in wording, or fraud by opposite party, as
pleaded.
2. Reformation of InstrumentsContract for SaleMutual MistakeFraudFailure to
Plead.
Without mutual mistake or fraud pleaded in answer to complaint for specific performance of contract
for sale of land, defense for reformation of instrument held without merit.
3. Specific PerformanceIncomplete and Indefinite Contract.
Specific performance will not be decreed when contract is incomplete, uncertain, or indefinite.
4. Specific PerformanceContractConstructionAmbiguity.
In determining whether contract is ambiguous as regards right to specific performance, appellate court
must construe it in light of situation existing at contract's execution, according language common
acceptation.
5. Specific PerformanceContract for SaleSubjection to OptionAmbiguity.
Contract for sale of real estate, providing it was subject to option to another, held not ambiguous, so
at to preclude decree for specific performance.
C.J.-CYC. REFERENCES
Reformation of Instruments34 Cyc. p. 974, n. 49; p. 975, n. 53; p. 978, n. 85.
Specific Performance36 Cyc. p. 587, n. 75; p. 588, n. 76; p. 590, n. 78.
52 Nev. 364, 365 (1930) Dodge Bros., Inc. v. Williams Estate Co.
Appeal from Eighth Judicial District Court, Churchill County; Clark J. Guild, Judge.
Suit by Dodge Brothers, Inc., against the Williams Estate Company. From an adverse
decree, defendant appeals. Affirmed.
Cooke & Stoddard, for Appellant:
The contract which plaintiff seeks to specifically perform is uncertain and ambiguous, in
that it cannot be determined therefrom whether plaintiff had the right to purchase a portion of
the lot and if so what the purchase price of such portion was agreed upon; it cannot be
determined therefrom whether the plaintiff was entitled to receive the difference between the
$12,000 specified in its contract and the $16,000 specified in the Downs option if Downs
exercised his option to purchase the entire lot. The words subject to the Downs option, etc.,
are ambiguous and subject to different interpretations in view of the contents of the Downs
option.
If an agreement when reduced to writing fails to correctly express the intention of the
parties, the agreement will be reformed by equity to conform to such intention. 23 R.C.L.
326; Hausbrandt v. Hofler, 117 Ia. 103, 90 N.W. 494, 94 Am. St. Rep. 289; Philippine Sugar
E.C. Co. v. Philippine, 62 L. Ed. 1180; Pomeroy's Eq. Juris., vol. 2, pp. 1722-1723, sec. 845,
pp. 1731-1734, sec. 849, p. 1761, sec. 860; Gross Construction Co. v. Hales (Okla.), 129 P.
28; Hazard v. Warner (Wash.), 211 P. 732, 31 A.L.R. 381.
It will be noted from the allegations of defendant's amended answer that the agreement
was that if Downs exercised his option then defendant would not be obligated to convey the
premises.
Equity will not decree specific performance of a contract if it appears that defendant would
not have entered into the contract had it not been for mistake. It is alleged in the amended
answer that defendant refused to execute the contract as prepared, and that plaintiff then
inserted the words in question and assured defendant that it would be released from any
obligation to deliver a deed for said premises if Downs exercised his option.
52 Nev. 364, 366 (1930) Dodge Bros., Inc. v. Williams Estate Co.
defendant that it would be released from any obligation to deliver a deed for said premises if
Downs exercised his option. It may well be said, then, that the mistake which plaintiff now
seeks to profit by was procured by itself. It is, we think, well established that under such
circumstances specific performance will be denied in a court of equity. R.C.L. vol. 25, p. 241,
sec. 44, and authorities cited; 26 Am. & Eng. Enc. of Law (2d ed.), p. 68; Rudisill v.
Whitener (N.C.), 15 L.R.A. (N.S.) 81; Barnett v. Kunkle, 256 Fed. 644.
Andrew L. Haight, for Respondent:
To afford grounds for the reformation of a contract it must be established; first, that the
writing fails to express the real agreement, and, secondly, that such failure was due either to a
mutual mistake or to a mistake on the part of one of the parties coupled with fraud or
inequitable conduct on the part of the other. 23 R.C.L. 320; 34 Cyc. 907.
We can find nothing in the answer which would indicate a mistake on the part of both of
the parties, or of either of them. So far as the answer indicates, Mrs. Keddie, who signed the
contract, knew full well the ordinary meaning and the legal effect of the terms employed, and
did not rely upon any statement and assurance on the part of the plaintiff. Neither is it
claimed that the defendant would not have entered into the agreement if she had known that
the contract would be construed according to the ordinary meaning and accepted legal effect
of the terms employed and which the plaintiff is now attempting to assert. But, assuming that
there was a mistake or misunderstanding of some sort on the part of the defendant, then such
mistake is not ground for reformation, because it is not pleaded that there was any fraud or
inequitable conduct on the part of the plaintiff. 34 Cyc. 921.
The power of equity to reform written instruments is an extraordinary one and its exercise
must be carefully guarded and granted only in a clear case. 34 Cyc. 904. See, also, 34 Cyc.
971, 972; Pomeroy's Equitable Remedies, par.
52 Nev. 364, 367 (1930) Dodge Bros., Inc. v. Williams Estate Co.
Remedies, par. 682; Rankin v. New England and Nevada Silver Mining Co., 4 Nev. 83.
The matter, then, is resolved purely into one of construing the contract according to its terms.
The word subject,' when used as an intransitive verb, means to become subservient to';
and as a transitive verb it means to cause to become subject or subordinate.' Bryne v. Drain
(Calif.), 60 P. 433.
In the following cases, the words subject to have been construed to mean charged
with: Re Hammond's Estate (Pa.), 46 Atl. 935; Walker v. Goodsill, 54 Mo. App. 631;
Bredell v. Fairgounds Co. (Mo.), 69 S.W. 635.
As to the contention of counsel that the contract between the parties is uncertain and
ambiguous in that it cannot be determined therefrom whether plaintiff had the right to
purchase a portion of the lot, and if so what the purchase price of such portion was agreed
upon, see Layne v. Johnson, 22 W. Va. 151.
The fairness of a contract, in general, is to be judged as of the date of the contract. The
happening of subsequent events injurious to defendant which may reasonably be supposed to
have been in the contemplation of the parties as events possible to happen is not a defense.
36 Cyc. 616.
We feel that the plaintiff is entitled to a specific performance of its contract. so far as we can
judge from the pleadings and from the argument of counsel, there is no attempt to claim that
the transaction was inequitable in its inception or that anything has occurred to render it
unfair, harsh or unjust. 36 Cyc. 550; Magee v. McManus (Cal.), 12 P. 452; 25 R.C.L. 217; 25
R.C.L. 205; Schroeder v. Gemeinder, 10 Nev. 355.
OPINION
By the Court, Coleman, J.:
This suit was instituted to compel the specific performance of a contract of sale of real
estate.
52 Nev. 364, 368 (1930) Dodge Bros., Inc. v. Williams Estate Co.
The complaint, aside from the formal matter set out, alleges that the defendant on January
22, 1929, entered into an agreement of sale of a tract of land in Fallon, Nevada, having a
frontage of 100 feet on Main Street and running back along Center Street 190 feet, for the
sum of $12,000, $2,000 of which was paid at the time of the execution of the agreement of
sale, the balance of $10,000 to be paid fifteen days after the furnishing of an abstract of title
to the land, showing the same to be free and clear of incumbrances, the abstract to be
furnished forthwith.
The complaint also alleges that the contract of purchase was subject to an option to Art
Downs, which expired January 27, 1929; that in due time Downs exercised his option to
purchase a rectangular portion of the tract in question, fronting 50 feet on Main Street and
100 feet on Center Street, paying therefore $8,250.
The complaint further avers that plaintiff was at all times ready and willing to pay the
purchase money to the defendant upon the terms set forth in the agreement, and that it has
demanded performance on the part of the defendant, but that said defendant repudiated said
agreement and tendered to the plaintiff the $2,000 paid to it.
The answer denies that the defendant repudiated the agreement of sale; admits tendering to
plaintiff the $2,000, as averred; admits that it failed and refused to furnish an abstract of title
to the property or to perform the agreement in any manner whatsoever.
The answer avers that simultaneously with the execution and delivery of the agreement of
sale pleaded in the complaint that the plaintiff altered and modified said agreement by
inserting therein the words: This Agreement is subject to an option granted to Art Downs
which expires January 27, 1929; that the words so inserted were and are ambiguous and
susceptible of different interpretations, and that the words were inserted after defendant
refused to sign said agreement as it was worded without being so altered, and said words
were inserted by plaintiff and accepted by defendant upon plaintiff's statement and
assurance that by so altering said agreement it would release defendant from any
obligation or duty to deliver a deed to plaintiff for said premises in the event said Downs
exercised his said option, and that any construction or meaning given to said ambiguous
words other than as hereinabove stated, as the agreed intent and understanding of the
parties, would make the contract and agreement ineffective in that the defendant could
not perform the terms and conditions thereof to be performed by it in the event of said
Downs exercising his option, or in the event of said Downs electing to purchase the
remaining portion of said lot 1 as now sought by plaintiff by reason of the matters and
things hereinafter alleged.
52 Nev. 364, 369 (1930) Dodge Bros., Inc. v. Williams Estate Co.
defendant upon plaintiff's statement and assurance that by so altering said agreement it would
release defendant from any obligation or duty to deliver a deed to plaintiff for said premises
in the event said Downs exercised his said option, and that any construction or meaning given
to said ambiguous words other than as hereinabove stated, as the agreed intent and
understanding of the parties, would make the contract and agreement ineffective in that the
defendant could not perform the terms and conditions thereof to be performed by it in the
event of said Downs exercising his option, or in the event of said Downs electing to purchase
the remaining portion of said lot 1 as now sought by plaintiff by reason of the matters and
things hereinafter alleged.
The answer further alleges that Downs had an option to purchase the rectangular piece
mentioned or the whole tract for $16,000, on terms, or for $15,000 cash; that the portion of
the tract remaining after the exercise by Downs of his option is of the value of $7,000.
The defendant pleaded as a further defense a lease granted Art Downs on March 31, 1925,
for a term of five years, upon a portion of the land described, wherein it is stipulated that in
case the defendant should receive during the term of said lease a bona fide offer for said tract
of land, that the defendant would give said Downs the first privilege of purchasing said
premises upon the same terms, of which notice was given to the plaintiff simultaneously with
the execution of said agreement of sale, whereupon plaintiff agreed with defendant to alter
and modify said contract of purchase then prepared to the extent that if Downs should
exercise his option the defendant would be under no obligation to convey said premises to the
plaintiff, and pursuant to such agreement altered and modified said contract by inserting said
ambiguous words herein above set forth.
Upon the filing of the answer a motion was made by the plaintiff for a judgment and
decree in its favor upon the pleadings. After the argument of said motion, in due time, the
court entered an order sustaining the same, and thereafter entered a formal decree of
specific performance to the effect that the agreement of sale be specifically performed;
that defendant furnish to the plaintiff an abstract of title to said tract of land, after
excluding the rectangular tract purchased by Downs; that the attorneys for the plaintiff
have fifteen days in which to examine the same, and, if said land be found to be free and
clear of incumbrance, that the defendant execute and deliver to plaintiff a good and
sufficient deed of warranty of title to said premises, and that upon the delivery thereof
that the plaintiff pay to the defendant the sum of $10,000, less the sum of $S,250 paid to
it by Art Downs for the rectangular portion of said tract.
52 Nev. 364, 370 (1930) Dodge Bros., Inc. v. Williams Estate Co.
in due time, the court entered an order sustaining the same, and thereafter entered a formal
decree of specific performance to the effect that the agreement of sale be specifically
performed; that defendant furnish to the plaintiff an abstract of title to said tract of land, after
excluding the rectangular tract purchased by Downs; that the attorneys for the plaintiff have
fifteen days in which to examine the same, and, if said land be found to be free and clear of
incumbrance, that the defendant execute and deliver to plaintiff a good and sufficient deed of
warranty of title to said premises, and that upon the delivery thereof that the plaintiff pay to
the defendant the sum of $10,000, less the sum of $8,250 paid to it by Art Downs for the
rectangular portion of said tract.
From the decree, the defendant has appealed.
The case turns chiefly upon that portion of the first defense sought to be pleaded, which
we have quoted.
Counsel for defendant argues in his brief upon the theory that the defense is one for
reformation of an agreement, and further that the stipulation in the agreement of sale that it is
subject to Downs' option is too ambiguous to be enforced.
1. It is a well-recognized rule that there can be no reformation of a contract unless there
was a mutual mistake in the wording of the contract, or fraud on the part of the opposite
party, and that such mistake, or fraud, as the case may be, is pleaded.
This rule has been recognized by this court and is settled law. Gage v. Phillips, 21 Nev.
150, 26 P. 60, 37 Am. St. Rep. 494; 34 Cyc. 974, et seq.
2. Neither mutual mistake nor fraud are pleaded in the answer in this case, hence this
phase of the case may be dismissed without further consideration.
Is the agreement in question so ambiguous as to render it incapable of enforcement?
3. There is not better established principle of equity jurisprudence than that specific
performance will not be decreed when the contract is incomplete, uncertain or indefinite. 25
R.C.L. p. 218; 36 Cyc. p. 587; 6 Pom.
52 Nev. 364, 371 (1930) Dodge Bros., Inc. v. Williams Estate Co.
Eq. Jur., sec. 764; Van Dyke v. Norfolk S.R. Co., 112 Va. 835, 72 S.E. 659.
As to the principle stated, there is no dispute.
Is the contract in question so uncertain that the intentions of the parties cannot be
sufficiently ascertained to enable a court of equity to carry it into effect? Unless it is, the
decree must be affirmed.
The only portion of the agreement in question which it is contended is ambiguous is the
provision: This agreement is subject to an option granted to Art Downs which expires
January 27, 1929.
4. In determining whether or not this provision is ambiguous, we must construe it in the
light of the situation existing at the time the contract was executed, and not in the light of
subsequent developments, and in so doing we must construe the language used in accordance
with its common acceptation.
The burden of defendant's argument turns upon the contention that, if the decree appealed
from is affirmed, plaintiff will get for $3,750 property worth $8,250, hence the parties could
not have intended any such result as would follow from the affirmance of the decree. True,
the argument is not thus expressed, but such is the effect of it.
Counsel seem to loose sight of the difference between the results which might flow from
the option to Downs and the force of the agreement of sale. The option did not bind Downs to
pay anything, whereas a cash payment of $2,000 was received as a result of the sale
agreement, and a binding obligation assumed to pay $10,000 more, even if the property
became of nominal value the next minute after the contract was signed. In the light of this
situation, we fail to appreciate the force of counsel's argument. Giving to the words in
question their usual meaning as of the time they were used, uninfluenced by subsequent
developments, we think it is clear that the words were incorporated into the contract for the
sole purpose of protecting the defendant from any liability which might grow out of the
option held by Downs.
52 Nev. 364, 372 (1930) Dodge Bros., Inc. v. Williams Estate Co.
The contract between the parties required the defendant to forthwith deliver to the plaintiff
an abstract of title. Had it done so, showing the property clear of incumbrance, the plaintiff
could have demanded a deed to the entire property, on tendering of the balance of the
purchase price, to which it would have been entitled, and received a deed therefor, subject to
the option agreement held by Downs.
5. The language in question was clearly used in the sense that the sale was burdened or
charged with the option, that vendor was selling all the interest it had in the land subject to
Downs' privilege to purchase. This is clearly the intention as well as the equity of the
situation.
In Coffey v. Superior Court, 147 Cal. 535, 82 P. 75, it was held that to be subject to is
to become subservient to or subordinate to.
It is ordered that the decree be affirmed.
____________
52 Nev. 372, 372 (1930) Markwell v. Downs Et Al.
MARKWELL v. DOWNS Et Al.
No. 2888
May 5, 1930. 287 P. 272
1. Executors and AdministratorsTrusteeViolation of TrustTrust
PropertyValueRecoveryComplaintSufficiency.
Complaint in action against administrators of trustee to recover value of trust property conveyed in
violation of trust with interest held insufficient.
Complaint alleged, in substance, that trustee in violation of trust conveyed property,
and that plaintiff beneficiary never received any consideration whatever for
conveyance, and that conveyance was made without her knowledge and consent.
Complaint further alleged trustee's death and appointment of executors and
beneficiary's filing of verified claim against estate for value of trust property
fraudulently conveyed, with interest. Verified claim recited that claim was filed to
protect beneficiary's rights against trustee's estate if pending action to recover property
was determined adversely to claimant. Complaint failed to allege that such action had
been determined adversely to claimant.
52 Nev. 372, 373 (1930) Markwell v. Downs Et Al.
2. Election of RemediesTrusteeViolation of TrustTransfer of PropertyRemedy.
Beneficiary of trust, having elected to hold trustee personally responsible for unauthorized transfer,
cannot thereafter follow trust property, and vice versa.
C.J.-CYC. REFERENCES
Trusts39 Cyc. p. 535, n. 9.
Appeal from Eighth Judicial District Court, Churchill County; Clark J. Guild, Judge.
Action by Margaret Markwell against Art L. Downs and another, as administrators with
the will annexed of the estate of Fred M. Wightman, deceased, substituted in place of H.L.
Nichols, also deceased. From an order and a judgment dismissing action, plaintiff appeals.
Affirmed.
G. Gunzendorfer, for Appellant:
But one question is involved in this appeal, namely, does the complaint state a cause of
action? The lower court in its written ruling on the demurrer sustained the same on the first
ground specified, viz, that the complaint does not state sufficient facts, inasmuch as it fails to
set out the trust with particularity.
That ground being a general demurrer, admitted as true the facts pleaded. Van Doren v.
Tjader, 1 Nev. 380; Levy v. Ryland, 32 Nev. 460, 469.
The truth of the facts pleaded being conceded, do these facts, taken as a whole, state
enough to be proof against the attack of a general demurrer? Plaintiff insists that they do.
As against a general demurrer, the complaint, even if scant as to the trust, is good.
Griffiths v. Henderson, 49 Cal. 566.
A general charge or statement of matters of fact is sufficient; it is unnecessary to charge
minutely all the circumstances which conduce to prove the general charge. Dunn v. Johnson
(N.C.), 20 S.E. 390, 391.
A complaint need not set out fully all its details; it is sufficient to allege the case generally
and prove the same in detail at the trial.
52 Nev. 372, 374 (1930) Markwell v. Downs Et Al.
same in detail at the trial. Logan v. Berkshire Assn., 18 N.Y. Sup. 164.
Facts relied on to show the creation of a trust in favor of plaintiff need not be more
distinctly alleged than the facts relied on in other civil actions. Both v. Oakland Savings Bank
(Cal.), 54 P. 370; Bassick Mfg. Co. v. Davis (Colo.), 17 P. 294; Swenson v. Swenson (S.D.),
97 N.W. 845.
See, also, Coney v. Horne (Ga.), 20 S.E. 213; Naber v. Brundage (Tex.), 273 S.W. 609;
Tolon v. Johnson (Okla.), 230 P. 865.
The complaint must be considered as a whole, particularly in the face of a general
demurrer. Thus considered, it musters sufficient facts to meet the challenge of such a
demurrer. Bernard v. Metropolis L. Co., 40 Nev. 89; Lewis v. Mohr (Ala.), 11 So. 765.
Plaintiff's claim, as filed in the Wightman estate, is made by proper reference a part of the
complaint (Savings Bank v. Burns, 38 P. 102). Hence, to attack the character of the claim it
was necessary for defendants to demur to it specially. They cannot question it under a general
demurrer.
The fact of the pendency of another or former action, the nature of which is not shown by
the complaint, nor that if and when finally determined would be res judicata, is not a bar to
this action for damages. Moreover, this point cannot be made under either a general or special
demurrer, for nothing appears upon the face of the complaint or claim which reveals any
election of a remedy or that such remedy has been exhausted and has definitely determined
for all time the rights of plaintiff.
Andrew L. Haight, for Respondent:
This action is based upon a claim presented to, and rejected by, the executor of the
Wightman estate. The statute (sec. 5965, Rev. Laws) clearly contemplates that no claim may
be filed unless the same is justly due at the time of fling or that the amount claimed as
actually owing and the due date can be definitely ascertained and stated.
52 Nev. 372, 375 (1930) Markwell v. Downs Et Al.
and stated. In this case the claim as filed admits and shows upon its face that the present
appellant then had an action pending to recover the specific property claimed to have been
conveyed to Wightman as her trustee, and that she would have no claim for damages against
Wightman unless the then pending action should be finally decided against her. It is not even
recited in the complaint that the litigation to recover the specific property had been decided
adversely to her or otherwise, and therefore the complaint shows upon its face that she has no
cause of action against Wightman or his administrators. This conclusion is not based upon the
demurrable ground that there is another action pending between the same parties covering the
same subject matter, but rather upon the ground above stated, namely, that the complaint
actually shows that the plaintiff cannot maintain the present action, because her complaint at
best is founded upon a contingency which is not shown to have occurred.
The claim filed (and consequently the complaint) also shows clearly upon its face that the
appellant elected her remedy, if any she had, against Wightman at the time of the filing of the
former action. In other words, she chose to pursue the trust property rather than to hold
Wightman personally responsible. 39 Cyc. 535.
OPINION
By the Court, Ducker, C.J.:
1. This is an appeal from an order and judgment of the district court dismissing the action.
The court had sustained respondents' demurrer to the complaint, and appellant had declined to
amend. While there were other grounds of objection designated in the demurrer, there is but
one question presented for determination, and that is as to whether a cause of action is stated
in the complaint. The allegations of the complaint which need to be mentioned are as follows:
"That on the 23rd day of March, 1917, plaintiff {appellant here) and her now deceased
husband, Paris T.
52 Nev. 372, 376 (1930) Markwell v. Downs Et Al.
That on the 23rd day of March, 1917, plaintiff (appellant here) and her now deceased
husband, Paris T. Markwell, were the owners of certain lands and premises and water rights
situate in the County of Churchill, State of Nevada, which lands and premises are described
as follows, to wit: * * *
That pursuant to an agreement made and entered into between this plaintiff and her said
husband, Paris T. Markwell, and said Fred M. Wightman, a deed of conveyance of said land
and premises was, on the 23rd day of March, 1917, made to said Fred M. Wightman in trust
to and for the use and benefit of this plaintiff; that said Fred M. Wightman held the mere legal
title to said lands and premises and water rights under said deed, and that this plaintiff was at
the date of the making and delivery of said deed to Fred M. Wightman, to-wit: on the 23rd
day of March, 1917, and at all times thereafter continued to be the sole and real and beneficial
owner thereof; that on or about the 14th day of April, 1926, said Fred M. Wightman, in
violation of said trust and his duty thereunder and of said agreement, as aforesaid, without
notice to plaintiff and without her knowledge or consent and without any authority or right so
to do, granted, bargained, sold and conveyed the said lands and premises together with the
water rights thereof and the improvements thereon to Gray, Reid & Co., a corporation, which
corporation thereupon entered into possession thereof and has since held said lands and
premises, water rights and improvements; that plaintiff was not paid and has never been paid
nor has she ever received any sum of money or other consideration whatever for her said
property, conveyed as aforesaid by said Fred M. Wightman to said corporation; that the actual
value or worth of said lands and premises together with the water rights thereof and the
improvements thereon was on the said 14th day of April, 1926, and at all times since has been
and now is the sum of $15,000.
Then follows allegations as to the death of Fred M. Wightman on or about the 25th of
September, 1927, and the appointment of one H.L. Nichols on the Sth day of November,
1927, as the executor of his last will and testament, the publication of notice to creditors
of the estate of said deceased, the filing of a verified claim against said estate by
appellant for $15,000, the alleged value of said lands, water rights, and improvements,
and for interest on said sum in the amount of $1,925, and the subsequent rejection of
said claim by the executor.
52 Nev. 372, 377 (1930) Markwell v. Downs Et Al.
the appointment of one H.L. Nichols on the 8th day of November, 1927, as the executor of
his last will and testament, the publication of notice to creditors of the estate of said deceased,
the filing of a verified claim against said estate by appellant for $15,000, the alleged value of
said lands, water rights, and improvements, and for interest on said sum in the amount of
$1,925, and the subsequent rejection of said claim by the executor.
While several points are advanced by respondent against the sufficiency of the complaint,
we think that one is decisive thereof, and we will therefore not discuss the others.
A copy of said verified claim is by reference made a part of the complaint. In this claim
appears the following statements, to sit: That at the time of the death of said Fred M.
Wightman, said deceased, an action was pending and is now pending brought by this claimant
against said Fred M. Wightman and others to establish said trust and to annul said deed of
conveyance, made as aforesaid by said Fred M. Wightman, said deceased, to Gray, Reid &
Co., a corporation, and to recover said lands and premises, water rights and improvements,
with damages and costs as well as for an accounting of the profits derived from said lands and
premises; that said action was brought in the district court of the Eighth Judicial District of
the State of Nevada, in and for the County of Churchill; and that at this time said action is on
appeal to and pending in the supreme court of the State of Nevada; that this claimant presents
this claim to the executor of the last will and testament of said Fred M. Wightman, said
deceased, in order to preserve her rights and demands and claims against said Fred M.
Wightman, said deceased, and his estate, for the value of the lands and premises and water
rights and improvements conveyed by said Fred M. Wightman, said deceased, to said Gray,
Reid & Co., a corporation, as aforesaid, in violation and disregard of his duty as trustee of
and for claimant in respect of said lands and premises, water rights and improvements, as
aforesaid, should said above mentioned action be finally decided and determined
adversely to claimant."
52 Nev. 372, 378 (1930) Markwell v. Downs Et Al.
water rights and improvements, as aforesaid, should said above mentioned action be finally
decided and determined adversely to claimant. (The italics are ours.)
It thus appears from this part of the complaint that appellant's claim is dependent upon the
action mentioned therein being decided adversely to her. She has no claim unless such action
is so determined; consequently it was essential to the statement of facts sufficient to
constitute a cause of action in the present case to negative a decision favorable to her in the
action brought by her against Wightman and the others to establish a trust, to annul said deed
of conveyance, and to recover the lands, water rights, and improvements.
The complaint nowhere alleges such a decision and is thus vitally defective. Appellant
cannot recover the property and also its value.
2. In view of the circumstances of this case, we deem it not inappropriate to propound this
query: Can the appellant, having elected to pursue the property in the event of failing in that
suit, maintain an action to recover its value? On this tentative joint we cite the following
statement of principle: Where he (cestui que trust) has elected to hold the trustee personally
responsible for an improper investment, he cannot afterward follow the trust property into the
investment; and on the other hand, if he elects to pursue the trust property, he cannot
afterward hold the trustee personally responsible. 39 Cyc. 535.
The judgment of the district court is affirmed.
____________
52 Nev. 379, 379 (1930) State v. District Court
STATE Ex Rel. ELSMAN v. SECOND JUDICIAL DISTRICT COURT, In and for Washoe
County, Department 2, Et Al.
No. 2903
May 14, 1930. 287 P. 957.
1. Appeal and Error.
Order granting or refusing change of place of trial is appealable order (Rev. Laws, sec. 5329, subd. 4,
as amended by Stats. 1913, c. 91).
Civil practice act, sec. 387 (Rev. Laws, sec. 5329), as amended by Stats. 1913, c. 91,
provides that if order granting or refusing motion to change place of trial is not directly
appealed from within 60 days there shall be no appeal therefrom on appeal from
judgment or otherwise, and on demand or motion court shall make order staying trial of
action until time to appeal from order has lapsed, or, if appeal from order is taken, until
appeal be legally determined.
2. Judges.
At common law, bias and prejudice of judge would not disqualify or incapacitate him to try case.
3. Venue.
Bias and prejudice of judge is not ground for change of venue unless expressly made so by statute.
4. Judges.
Under statute providing court may on motion change place of trial in specified cases, phrase place of
trial does not mean judge or court, but refers solely to change in venue or place of trial (Rev. Laws, sec.
5015).
5. Statutes.
Repeal of statute is either express or implied.
6. Statutes.
Implied repeal of statute takes place when new law contains provisions contrary to those of former
law without expressly repealing same.
7. Venue.
Under act providing for change of place of trial omitting prior statutory provisions relating to
disqualification of judge, bias and prejudice of judge held no ground for change of venue (Rev. Laws,
sec. 5015, subd. 2; Civil Practice Act, sec. 73).
Rev. Laws, sec. 5015, subd. 2, provides court may on motion change place of trial
when county designated is not proper one; when impartial trial cannot be had therein;
and when convenience of witnesses and ends of justice would be promoted. Civil
practice act, sec. 73, providing that court may on motion change place of trial in
certain specified cases, omitted provisions of prior statutes relating to
changing place of trial for disqualification of judge because of certain
facts, one of which is bias or prejudice.
52 Nev. 379, 380 (1930) State v. District Court
motion change place of trial in certain specified cases, omitted provisions of prior
statutes relating to changing place of trial for disqualification of judge because of
certain facts, one of which is bias or prejudice.
8. Action.
Refusing to stay trial or hearing of motions until time to appeal from order refusing change of place of
trial for bias and prejudice of judge held within judge's jurisdiction (Civil Practice Act, sec. 73; Rev.
Laws, sec. 5329, subd. 4, as amended by Stats. 1913, c. 91).
C.J.-CYC. REFERENCES
Actions1 C.J. sec. 417, p. 1161, n. 52.
Appeal and Error3 C.J. sec. 294, p. 473, n. 23.
Judges33 C.J. sec. 129, p. 989, n. 100; sec. 150, P. 999, n. 25.
Statutes36 Cyc. p. 1071, n. 24; p. 1074, n. 37.
Venue40 Cyc. p. 133, n. 98.
Original proceeding in prohibition by the State, on the relation of Beatrice J. Elsman,
against the Second Judicial District Court of the State of Nevada, in and for the County of
Washoe, Department 2 thereof, Hon. George A. Bartlett, Presiding Judge, and another, to
prohibit the trial of an action until the time to appeal from the order refusing to change place
of trial shall have lapsed. Writ denied, and proceeding dismissed.
Cooke & Stoddard, Samuel Platt, and Harwood & Diskin, for Petitioner:
It is plain from the statute (Rev. Laws, sec. 5015) that if a litigant in a cause has reason to
believe that an impartial trial cannot be had within the forum in which the parties are in trial,
then the court may, on motion, change the place of trial. It seems also plain that such a
motion need not necessarily be made before the trial or at the inception thereof or at any
particular stage of the proceedings.
Stats. 1913, p. 113, provide, among other things, that an order changing, or refusing to
change, the place of trial is an appealable order. And, therefore, if, as the record in this case
shows, an appeal has already been taken, then certainly the appellant is entitled to a full, fair
and adequate consideration and determination of her said appeal. 3 C.J. 319, sec. 33; 3 C.J.
1279; Pierson v. McCahill, 23 Cal. 249; Ricketson v. Compton, 23 Cal. 636, 649; Davis v.
Spieden, 10 D.C. 2S3; Simpson v. Com., 104 S.W. 269; Hale & Norcross Silver Min. Co. et
al. v. Fox et al., 54 P.
52 Nev. 379, 381 (1930) State v. District Court
Pierson v. McCahill, 23 Cal. 249; Ricketson v. Compton, 23 Cal. 636, 649; Davis v. Spieden,
10 D.C. 283; Simpson v. Com., 104 S.W. 269; Hale & Norcross Silver Min. Co. et al. v. Fox
et al., 54 P. 270.
In the matter at bar the only question involved is as to whether the petitioner shall be
granted her statutory right of a stay of proceeding until she shall have perfected and submitted
her appeal and had it determined. All other questions are involved within the appeal proper
and should be considered upon the merits of the appeal. Giannopulos v. Chachas, 50 Nev.
269.
The Fourteenth Amendment to the United States Constitution, and sec. 8, art. 1, Nevada
constitution, are guaranties that no person shall be deprived of life, liberty, or property,
without due process of law. The Fourteenth Amendment to the United States Constitution is a
prohibition on all state agencies and a guaranty that no law and no court decision in any state
shall be upheld where its effect would be to deny due process. The due process guaranties in
the state constitution are self-executing and need no legislative aid to put them into effect.
In giving effect to rights secured by organic law, courts should consider the substance of
things and should not be controlled by mere matters of form or of technical procedure.
Haynes v. State (Fla.), 72 So. 180.
The fact that the Nevada constitution does not contain an express declaration guaranteeing
in so many words that justice would be administered without sale, denial, prejudice, etc., is
immaterial. The very preamble to the federal constitution adopted in 1787 provides that
among the purposes of its adoption was to establish justice. to have justice administered
impartially, without prejudice, etc., was an existing right of the people of Nevada, based on
the genius and spirit of our government and institutions, and the Nevada constitution, article
1, sec. 20, provides: This enumeration of rights shall not be construed to impair or deny
others retained by the people.
52 Nev. 379, 382 (1930) State v. District Court
Remedies for prohibited evils need not be provided for by any express language in the
written law. Dodson v. McCurnin (Ia.), 160 N.W. 927; L.R.A. 1917c, pp. 1085-1087.
The laws guarantee a fair and impartial trial, and the obligation to protect these rights
devolves upon the courts and no court when called upon to act can shirk or evade the
responsibility cast upon it by law. Wilson v. State (Neb.), 128 N W. 38-42; Kentucky Journal
Co. v. Caines (Ky.), 110 S.W. 268.
Due course of law means a fair trial. Hanson v. Krehbiel (Kan.), 75 P. 1041.
Due process of law requirement is for impartial tribunals, as primal necessity, such as
protecting jury box against prejudiced jurors, and providing for change of venue for prejudice
of judge. Commr's v. Smith (Ill.), 84 N.E. 376; 16 L.R.A. (N.S.) 292-295.
The state has full control over the procedure in its courts, subject only to the qualification
that such procedure must not work a denial of fundamental rights. Brown v. New Jersey, 175
U.S. 175, 44 L. Ed. 119.
The constitutional provisions relative to due process according to the law of the land,
etc., are but different modes of expressing the fundamental right of man to a fair and impartial
trial. Ex Parte Nelson (Mo.), 157 S.W. 794. See, also, Tumey v. Ohio, 273 U.S. 509, 71 L.Ed.
749.
Had it been the intent of our legislature to limit the guaranty of an impartial trial to only
cases where a jury was actually called, and to apply the test of impartiality only to jurors, the
legislature could have easily expressed such intent by adding but one word, making the
statute read: When there is reason to believe that an impartial jury trial cannot be had.
The word trial is not limited to cases where a jury may be in attendance. Every judicial
examination of an issue between parties, whether the issues be of law or fact, is a trial. 38
Cyc. 1267.
The word trial is of very broad and comprehensive meaning. The hearing of a motion for
a new trial is a "trial."
52 Nev. 379, 383 (1930) State v. District Court
a trial. Keating v. Keating (Cal.), 147 P. 974; Finn v. Spagnoli (Cal.), 7 P. 746. These cases
are also to the effect that such hearings are trials on which a motion for change of venue
will lie for bias and prejudice of the judge. See, also, Tregambo v. Commance Mng., 57 Cal.
501; Watts v. Billings etc., Co. (Mont.), 253 P. 260; Goldtree v. Spreckels (Cal.), 67 P. 1091.
We contend, therefore, that the impartial trial provided for and guaranteed by Rev. Laws
of Nev., sec. 5015, refers to trials according to the well understood and well settled meaning
of the word trial, i.e., whether with or without a jury.
The Oklahoma constitution provided that justice should be administered without prejudice.
There was no statute disqualifying a judge upon that ground, but the supreme court held that a
change of venue was nevertheless necessary, and said: The legislature, neither by neglect to
act nor by legislation, can nullify a mandatory provision of the constitution, for it cannot be
maintained that a judge who is biased or prejudiced in a case on trial before him can
administer justice without prejudice. Ex Parte Ellis, 105 P. 184-187.
Admittedly the aim of the statute is to secure to the litigant an impartial trial.
Impartiality is defined as freedom from bias, prejudice, passion, etc. 31 C.J. 253; 4 Words
and Phr. 3418. Impartial is defined as unprejudiced.
Prejudice is defined as prejudging, preconceived opinion, bias, leaning toward one side
of the question from outside considerations, a bias on the part of the judge which interferes
with fairness of judgment. 6 Words and Phr. 5501; Webster's Dict.; 31 Cyc. 1161.
The guaranty of an impartial trial, therefore, is exactly the same as a guaranty of a trial
without prejudice.
See Day v. Day (Idaho), 86 P. 531, 533, 535; Bell v. Bell (Idaho), 111 P. 1074; State v.
Brown, 103 P. 762-767; Ex Parte Ellis, 105 P. 185; Rea v. State, 105 P. 384-385; Ex Parte
Owens, 258 P. 759; State v. Martin, 256 P. 681, 690, 691; Dennison v. Christopher, 200 P.
52 Nev. 379, 384 (1930) State v. District Court
P. 783; Mosus v. Julian (N.H.), 84 Am. Dec. 114, 115, 118, 121, 122; United States v. Yount
(D.C. Pa.), 267 Fed. 861-863; Stahl v. Board of Supervisors (Ia.), 175 N.W. 772, 11 A.L.R.
185-191; State v. Board of Education (Wash.), 52 P. 317, 40 L.R.A. 320, 67 Am. St. Rep.
706, 713, 714; 15 R.C.L. 539, sec. 27.
Allen v. Reilly, 15 Nev. 452, when analyzed is no authority against petitioner's contention
here. True, a motion was there made by defendant for change of venue on the ground he
could not have a fair and impartial trial before the trial judge, because he and defendant were
bitter personal enemies. The motion was supported by defendant's affidavit setting out those
facts, which were denied by the judge. In the instant case there is no denial by the trial judge
of the facts and no denial of the bias and prejudice. Further, the Allen v. Reilly case was an
action at law, where defendant not only had the absolute right to a trial by jury, but a jury
actually attended and brought in a verdict. This court stressed the point that in such cases,
where a right to a jury trial is obtainable, the bias of the judge is not important, saying: This
is especially true when a jury finds the facts. How different in a case such as the instant case,
where no jury can be had, and the judge is the sole trier of the facts, as well as the law. See,
also, Eureka Bank Cases, 35 Nev. 80, 146 to 150; 126 P. 655-677.
Where, as in the instant case, there is no jury to find the facts, where the judge against
whom the prejudice is established is the trier of the facts, whose finding upon the facts where
the evidence is conflicting is practically binding and conclusive and hence his errors as to
such findings of fact may not be corrected on appeal, we submit the language of this court
in the Eureka Bank Cases, supra, is tantamount to holding that actual prejudice of such trial
judge is cause for a change of venue or a change of judge.
We freely concede that the authorities are by no means in harmony upon the point that bias
and prejudice based upon animosity of a judge towards, or friendship for, a litigant was at
common law a ground for recusing such judge.
52 Nev. 379, 385 (1930) State v. District Court
litigant was at common law a ground for recusing such judge. But if such prejudice or bias of
a judge were, at common law, sufficient to recuse, then it is a ground in Nevada for a change
of venue or change of judge, because Rev. Laws, sec. 5447, provides that the common law so
far as not repugnant to or in conflict with our constitution or laws shall be the rule of decision
in all courts of this state. In support of the proposition that bias and prejudice of a judge
arising from ill feeling, etc., was ground at common law for recusing such judge, we cite
Allan v. Allan (Ariz.), 185 P. 539-541; Oakley v. Aspinwall, 3 N.Y. 547; Massie v. Com.
(Ky.), 20 S.W. 704; Bryce v. Burke (Ala.), 55 So. 635; Moses v. Julian (N.H.), 84 Am. Dec.
114; Conklin v. Crosby (Ariz.), 239 P. 506; 15 R.C.L. 539, sec. 27; Ex Parte Cornwell (Ala.),
39 So. 354.
The English courts consistently hold that a judge must not sit where bias or prejudice is
shown because of friendship or personal animosity between judge and party. Queen v. Meyer,
1 Q.B.D. 173 (1875); Regina v. Rand L.R., 1 Q.B. 230 (1866); Queen v. Farrant, 20 Q.B.D.
58 (1887); Frome United Breweries Co. v. Bath, A.C. 586 (1926); King v. Sussex Justices, 1
K.B. 256 (1924).
L.D. Summerfield, and Thatcher & Woodburn, for Respondents:
In this case there is no disqualification, and the change of venue statute is not applicable.
Whether a judge is disqualified or not depends upon the statute of the particular state. 33
C.J. 989.
Legislation on the subject in Nevada, as well as the decision of the Supreme Court of
Nevada, both show conclusively as a matter of law that a trial judge is not disqualified for
bias or prejudice.
The statutes of this state do not make bias and prejudice on the part of a trial judge
grounds for disqualification. And at a time when the statutes of this state were in the same
condition as now exists, to wit, without any express enactment disqualifying a judge for bias
or prejudice, the supreme court of this state, in the case of Allen v. Reilly, 15 Nev. 452
52 Nev. 379, 386 (1930) State v. District Court
or prejudice, the supreme court of this state, in the case of Allen v. Reilly, 15 Nev. 452, held
that bias and prejudice were not grounds for disqualification.
Even if bias and prejudice had been express statutory grounds for disqualification, the
motion and affidavit of the defendant would not have been sufficient for that purpose. Table
Mountain Mining Co. v. Wallers Defeat Co., 4 Nev. 218; 31 C.J. 1001; Boreing v. Wilson,
128 Ky. 570-590, 108 S.W. 914, 33 Ky. L. 14.
From the enactments on change of venue, it will be observed that in 1895 the legislature
passed an act providing for the disqualification of judges for bias and prejudice, and that this
act was repealed at the next session of the legislature in 1897. It will further be observed that
when this legislation was enacted the grounds of bias and prejudice were incorporated in the
change of venue statute and not in the act relating to the disqualification of judges. When this
was repealed by the legislature it was a clear indication of the legislative policy of this state
that it was the intention of the legislature that bias and prejudice on the part of a trial judge
should not be a ground for change of venue.
The result, therefore, is plain and unmistakable that in this state bias and prejudice are not
grounds either for disqualification of a judge or change of venue. This is clearly demonstrated
(a) in the decision of this court in Allen v. Reilly, supra, (b) from such grounds not being set
forth in the statute on disqualification of judges, and (c) by reason of the fact that this ground
was in 1895 expressly included in the change of venue statute and expressly repealed in 1897,
the entire subdivision fourth of the statute, touching on the disqualification of judges, being
eliminated and not included at all in the existing enactment.
Statutes of Nevada, 1913, p. 113, and sub. 4 thereof, refers only to a change of place of
trial. This is a separate and distinct matter from the disqualification of a judge, which is
covered by Stats. 1927, p. 108. No stay is provided in case a judge refuses to disqualify
himself, and that error must be reached on appeal from the official judgment.
52 Nev. 379, 387 (1930) State v. District Court
himself, and that error must be reached on appeal from the official judgment.
Furthermore, we contend that the present hearing is not a trial. Trial within the
contemplation of the statute means the proceedings from the filing of the complaint to the
entry of judgment. The word does not mean new trial and it does not mean motions for orders
made after judgment. Stewart v. Stewart, 62 N.E. 1023; McDermott v. Hallick, 69 P. 335, at
337. Also compare the code provisions, set forth and referred to in the latter case, with our
code provisions relative to motions and orders, Rev. Laws, secs. 5362-5366.
Inasmuch as the trial court had discretion to determine whether the motion was made in
time, a writ of prohibition should not issue. Wolcott v. Wells, 21 Nev. 47, 24 P. 367, 37 Am.
St. Rep. 478, 9 L.R.A. 59; Arrascada v. District Court, 44 Nev. 37, 189 P. 621; Metcalfe v.
District Court, 51 Nev. 253, 274 P. 5; 33 C.J. 1013; 22 R.C.L. 24.
OPINION
By the Court, Sanders, J.:
This is an original proceeding in prohibition. The proceeding is the outgrowth of a very
bitter contest between divorced parents over the custody of the only issue of their marriage, a
child of tender years.
Upon the filing of the petition for the writ with the clerk of this court, the respondents,
through their attorneys, requested that the writ be not issued until they were given an
opportunity to be heard. The request was granted. Thereafter, the application or petition for
the writ came on for hearing informally in open court. Upon consideration of the arguments,
an order was made directing an alternative writ to issue and that the respondents show cause
before this court on the day fixed in the order why the writ should not be made absolute. On
the day fixed for return, the respondents appeared and filed an answer to the petition and, in
addition thereto, filed a full and complete transcript of the proceedings had in the matter
to be reviewed and determined.
52 Nev. 379, 388 (1930) State v. District Court
addition thereto, filed a full and complete transcript of the proceedings had in the matter to be
reviewed and determined. Thereupon the question of making the writ absolute was fully
argued and submitted for decision upon the petition, answer, and return and upon extended
briefs.
The facts, omitting details, are substantially as follows:
In 1926 Ralph Elsman filed a suit in the respondent court against Beatrice Elsman, his
wife, for divorce. On January 4, 1927, Beatrice Elsman was granted a divorce from Ralph
Elsman, the plaintiff, upon her answer and cross-complaint. By the terms of the decree the
sole care, custody, and control of the minor child of the parties, Ralph Elsman, Jr., was
awarded to the plaintiff, the father, subject to the right of the defendant and
cross-complainant, the mother, to have the possession of the child in Washoe County,
Nevada, and not elsewhere, at the times and places specified in detail in the decree of divorce,
not material to be stated here.
By the terms of the decree, jurisdiction was expressly reserved to the court to modify that
portion of the decree and order with respect to the custody and possession of the child, Ralph
Elsman, Jr., for cause.
Shortly after divorce, Ralph Elsman intermarried with Florence Diehl Elsman and they are
now husband and wife.
On March 31, 1928, Ralph Elsman filed in the case entitled Ralph Elsman, Plaintiff, v.
Beatrice Elsman, Defendant, a notice of motion and motion to change, modify, and amend
that portion of the decree rendered and entered therein relative to the custody and possession
of Ralph Elsman, Jr. On May 2, 1928, the respondent judge, Hon. George A. Bartlett, who
presided in the divorce action, made and caused to be entered an order changing and
modifying the decree so as to read substantially as follows: That the sole care, custody and
control of the minor child, of the parties, Ralph Elsman, Jr., is hereby awarded to the
plaintiff, and that he continue to have the same so long as the best interests of said minor
child are subserved thereby.
52 Nev. 379, 389 (1930) State v. District Court
plaintiff, and that he continue to have the same so long as the best interests of said minor
child are subserved thereby. That during the time that said child is in the sole care, custody
and control of the plaintiff and within the County of Washoe, State of Nevada, the defendant
may visit the said child at the home of the plaintiff at Franktown, Washoe County, Nevada,
and not elsewhere, unless otherwise mutually agreed by and between the plaintiff and the
defendant, during one hour of each day of one calendar month in each and every year, said
month to be designated by the defendant and thirty days' notice thereof given to the plaintiff;
and that the above entitled court may, if necessary, reasonable and proper on application,
require the plaintiff to have the said minor child in Washoe County, Nevada, during said
period of one calendar month in each and every year.
Thereafter, on November 4, 1929, Ralph Elsman filed in said court and cause a notice of
motion and motion for a further change of the decree so as to read as follows: That the sole
care, custody and control of the minor child of the parties, Ralph Elsman, Jr., is hereby
awarded jointly to the plaintiff and to his wife, Florence Diehl Elsman, and to the survivor of
them; subject to the further order of the Court.
Thereafter, Beatrice Elsman entered her appearance and filed her reply in defense, and on
February 4, 1930, filed in said court and cause a notice of motion and motion asking that the
decree of divorce relative to the custody and possession of her child, Ralph Elsman, Jr., be
changed so as to read as follows: That the sole care, custody and control of the minor child
of the parties, to-wit, Ralph Elsman, Jr., is hereby awarded to the defendant, the mother,
Beatrice J. Elsman, and that she continue to have the same so long as the best interests of said
minor child are subserved thereby.
The two motions were consolidated and came on for hearing before Hon. George A.
Bartlett, presiding judge, on February 6, 1930; the first movant, Ralph Elsman, being given
the opening. The hearing of the motion of Ralph Elsman occupied the time of the court
continuously, except for certain intervals, from February 6 to February 2S, 1930.
52 Nev. 379, 390 (1930) State v. District Court
Ralph Elsman occupied the time of the court continuously, except for certain intervals, from
February 6 to February 28, 1930.
In the midst of the hearing of the plaintiff's motion and when the evidence in support
thereof in chief had practically been concluded, Beatrice Elsman, the opposing movant, on, to
wit, February 24, 1930, filed in said court and cause a notice of motion and motion, supported
by her own affidavit attached to, exhibited with, and made a part thereof, in which she prayed
and sought an order changing the place of trial of said motions or that another judge be called
in to hear and try the same, for the reasons and upon the grounds stated in her affidavit,
which, omitting details, may be summarized as follows:
That Judge Bartlett, judge presiding, has been, and now is, upon terms of such close
intimacy with and friendship for the plaintiff and his present wife that the affiant verily
believes and states that she cannot have a fair and impartial trial of the pending issues; that,
during the period of several years last preceding, Judge Bartlett had been a frequent visitor
and guest at the home of the plaintiff in Franktown, Washoe County, Nevada; that a room
was set apart in said Elsman home for the use of Judge Bartlett on the occasions of his
frequent visits of such frequent occurrence that such room had come to be designated by the
servants and members of the household as Judge Bartlett's Room; that Judge Bartlett was
and still is a welcome guest at said Elsman home, and during said period Judge Bartlett made
frequent visits to the plaintiff's home for horseback riding exercises; that, during the pendency
of the hearing of the respective motions and within several years last past, the plaintiff has
been a frequent visitor at the home of Judge Bartlett; that, owing to and as a result of the
close association aforesaid, Judge Bartlett has unconsciously absorbed at least a portion of the
ill feeling and resentment then and now entertained by said Ralph Elsman and his present
wife toward the defendant; and that as a result of said judge unconsciously sharing with the
plaintiff and his wife the feeling, belief, and conviction held by plaintiff and his wife, as
expressed by the plaintiff in his affidavit and testimony given upon the hearing herein, the
defendant sold her right as a mother to have the custody of her child and that she had in
fact utilized, and by her proceedings herein is now endeavoring to further utilize, said
child as a means of coercing money from the plaintiff.
52 Nev. 379, 391 (1930) State v. District Court
as a result of said judge unconsciously sharing with the plaintiff and his wife the feeling,
belief, and conviction held by plaintiff and his wife, as expressed by the plaintiff in his
affidavit and testimony given upon the hearing herein, the defendant sold her right as a
mother to have the custody of her child and that she had in fact utilized, and by her
proceedings herein is now endeavoring to further utilize, said child as a means of coercing
money from the plaintiff.
In her affidavit, it is further stated that on or about January 4, 1929, at the solicitation and
request of plaintiff, consented to only in part by the defendant, certain records in the divorce
action of Elsman v. Elsman, in the legal custody of the clerk of the respondent court, were
ordered by Judge Bartlett, over the protest of said clerk, to be withdrawn so that certain
matters therein contained of a scandalous nature and derogatory to the moral character of the
plaintiff would not be retained upon the public records; that said records so withdrawn were
subsequently destroyed.
In her affidavit she states that all the foregoing facts only recently came to the knowledge
of affiant or her counsel of the destruction of the documents, files, and papers in said divorce
action, except in the manner stated in the notice of motion; that the facts with reference to the
alleged intimacy existing between Judge Bartlett, Ralph Elsman, and his wife, were first
learned by defendant and her counsel on or about February 15, 1930. Affiant further states
that her motion for a change of place of trial was not earlier filed or presented, because of
herself and counsel being engaged in the trial and hearing of the respective motions, and that
her motion for change of place of trial was filed and presented as soon as she and her counsel
had obtained knowledge of certain matters respecting the bias and prejudice of the trial judge
toward affiant.
Because of the foregoing facts, affiant prayed that a change of the place of the trial of said
motions be ordered, or that a mistrial be declared, and another judge be called in to hear and
try the respective motions.
52 Nev. 379, 392 (1930) State v. District Court
judge be called in to hear and try the respective motions.
The time for hearing of the motion for a change of place of trial or to call in another judge
was shortened by court order and came on for hearing on February 25, 1930. The attorneys
for Ralph Elsman objected to the hearing or consideration of the motion upon two grounds, to
wit: First, that the motion was not timely made; and, second, that it did not state facts
sufficient to warrant the granting of the same in any event.
The objections stated were fully argued and upon argument were submitted to Judge
Bartlett for ruling and decision. Thereupon Judge Bartlett announced his decision and ruling
from the bench. A transcript of the stenographic report made of the court's ruling is
incorporated in the record, from which it appears that the court stated, in substance, that he
hardly deemed it proper to make a reply to the personal matters suggested in the arguments of
counsel, but he felt that he should state that he had enjoyed the hospitality of Mr. Elsman's
home occasionally, once in connection with a visit to Washoe Lake to look over the East
ditch thereof in connection with certain contested water rights pending in his court, and three
or four other times he had ridden horseback in company with Mr. Elsman, and when these
proceedings are done, he hoped to have the pleasure of riding with Mr. Elsman again. By way
of argument, he stated that he had enjoyed the hospitality of certain counsel of record in the
case; that he did not feel or consider that either of counsel felt that a social obligation should
be repayed by a judicial favor. He gave expression to his views on the personal side of the
grounds of the motion to indicate to the parties that what happens on the other side of his
court is one thing; what happens when I am on this side of my court, facing lawyers and
litigants, is an entirely different thing. He stated that he was not called upon to decide upon
personal matters, but only to decide upon the law as he sees it; that the motion made for a
change of venue at the close of the moving party's case, after three weeks taking of
testimony and counsel for the moving party announced the close on the opening, then the
movant, Beatrice Elsman, filed her motion for a change of venue.
52 Nev. 379, 393 (1930) State v. District Court
sees it; that the motion made for a change of venue at the close of the moving party's case,
after three weeks taking of testimony and counsel for the moving party announced the close
on the opening, then the movant, Beatrice Elsman, filed her motion for a change of venue. In
conclusion the court said: It is then ordered, Miss Clerk, that the objection made by plaintiff
to the consideration of defendant's motion for a change of venue, based upon the grounds set
forth in the motion, be, and the said objection is sustained upon both grounds suggested by
counsel for plaintiff; that it has been untimely made, that the facts supporting the motion
made by Mrs. Beatrice Elsman are not sufficient, even taken as true, to justify the granting of
a change of venue or calling in another judge. You may enter your exception.
Thereupon Beatrice Elsman moved the court for an order staying the trial of the action
until the time to appeal, from the order refusing to change the place of trial, shall have lapsed,
as provided in section 4 of the Statutes of 1913, at page 113, c. 91, amending section 387 of
the civil practice act (Rev. Laws, sec. 5329), relative to appeals from an order granting or
refusing to grant a motion to change the place of trial of an action. On, to wit, February 25,
1930, Judge Bartlett declined and refused to make an order for stay as aforesaid and ordered
the parties to proceed with the hearing of their respective motions.
Thereafter, on, to wit, February 27, 1930, Beatrice Elsman filed her petition in this court
for a writ of prohibition, with the result that a preliminary rule in prohibition issued, which,
upon the foregoing statement of facts, it is now sought to make absolute.
Regard being had to the briefs of able counsel, and to the positions assumed and the
arguments made therein, it is conceded that the merits or demerits of the petitioner's demand
for a change of venue upon the ground of the bias and prejudice of the respondent judge is not
involved in this proceeding and is not proposed for consideration. In short, it is insisted on
behalf of petitioner that she, having moved the trial court for a change of venue and her
motion having been denied, she, relying upon her plain statutory right, comes to this
court to safeguard and secure that right by the issuance from this court of a peremptory
writ of prohibition, prohibiting the respondent judge from proceeding with the trial of the
case until the time to appeal from the order denying petitioner's motion for a change of
venue shall have lapsed.
52 Nev. 379, 394 (1930) State v. District Court
petitioner that she, having moved the trial court for a change of venue and her motion having
been denied, she, relying upon her plain statutory right, comes to this court to safeguard and
secure that right by the issuance from this court of a peremptory writ of prohibition,
prohibiting the respondent judge from proceeding with the trial of the case until the time to
appeal from the order denying petitioner's motion for a change of venue shall have lapsed.
1. An order granting or refusing a change of place of trial is an appealable order. Stats.
1913, p. 113, c. 91. Section 4 of the statute provides as follows: If an order granting or
refusing to grant a motion to change the place of trial of an action is not directly appealed
from within the said sixty days, there shall be no appeal therefrom on appeal from the
judgment in the case or otherwise, and on demand or motion of either party to an action the
court or judge making the order changing or refusing to change the place of trial of an action
shall make an order staying the trial of the action until the time to appeal from such order
changing or refusing to change, shall have lapsed; or if an appeal from such order is taken
until such appeal shall, in the appellant court, or in some other manner, be legally
determined.
It is contended on behalf of the petitioner that, under the terms of the statute, it became and
was the mandatory duty of the respondent judge to order a stay of the trial of the respective
motions pending before him in the case of Elsman v. Elsman until the time to appeal from the
order refusing a change had elapsed. By this contention counsel assume that an order refusing
a change of venue upon the ground of the bias or prejudice of the judge is an appealable order
within the meaning of the statute. If this assumption be held to be erroneous, it follows that
the preliminary rule of prohibition issued herein should not be made absolute.
The question involves the construction, interpretation, and the application of the local law
relating to change of venue or place of trial. If any distinction is to be drawn at all in the law
between the phrase "venue" and "place of trial," it is a purely arbitrary one.
52 Nev. 379, 395 (1930) State v. District Court
is to be drawn at all in the law between the phrase venue and place of trial, it is a purely
arbitrary one. In this opinion the two phrases will be used as convenience suggests.
Nevada has no constitutional provisions relating to change of venue, other than that the
legislature shall not pass local or special laws providing for changing the venue in civil and
criminal cases. Section 20, art. 4, of the Constitution.
2. At common law the bias and prejudice of the judge would not disqualify or incapacitate
him to try a case. Allen v. Reilly, 15 Nev. 452; McCauley v. Weller, 12 Cal. 500; People v.
Williams, 24 Cal. 31; Bulwer, etc., Co. v. Standard, etc., Co., 83 Cal. 613, 23 P. 1109; In Re
Davis' Estate, 11 Mont. 1, 27 P. 342.
3. According to the decided weight of authority, the bias and prejudice of the judge is not
a ground for change of venue, unless expressly made so by statute. Allen v. Reilly, supra;
Hyatt on Trials, secs. 185-380.
In the note to the annotated case of Day v. Day, 10 Ann. Cas. 265 (12 Idaho, 556, 85 P.
531), authorities in support of the proposition that the bias and prejudice of the judge is not a
ground for change of venue, unless expressly made so by statute, are cited from the states of
California, Colorado, Illinois, Indiana, Iowa, Kansas, Maryland, Michigan, Minnesota,
Mississippi, Missouri, Montana, Nevada (Allen v. Reilly, supra), Pennsylvania, and Texas. In
the annotator's introductory statement to the note, it is said that the rule laid down in the
reported case (Day v. Day) that a party to an action is entitled to a change of venue on account
of the bias or prejudice of the trial judge, though there is no statutory provision expressly
stating such ground, is against the decided weight of authority in both civil and criminal
actions. It is so stated in 27 R.C.L. 810, sec. 30. Consequently, as the right to a change of
venue is purely statutory, unless it be invoked upon the terms and in the manner provided in
the statute, it does not exist at all.
Counsel for petitioner take the position that an application for a change of venue, based
upon an affidavit alleging the bias or prejudice of the trial judge, is to deprive the judge of
further power to proceed in the case, except to make a proper order transferring the case
to another judge.
52 Nev. 379, 396 (1930) State v. District Court
alleging the bias or prejudice of the trial judge, is to deprive the judge of further power to
proceed in the case, except to make a proper order transferring the case to another judge.
In support of this contention counsel cite and rely upon the provisions contained in section
5015 of the Revised Laws of Nevada, particularly subdivision 2 thereof, which section
provides, inter alia, as follows:
The court may, on motion, change the place of trial in the following cases:
1. When the county designated in the complaint is not the proper county.
2. When there is reason to relieve that an impartial trial cannot be had therein.
3. When the convenience of the witnesses and the ends of justice would be promoted by
the change.
In Re Davis' Estate, supra, following Allen v. Reilly, supra, the Montana court held that
bias or prejudice of the presiding judge is not a legal ground upon which a change of venue
may be granted in a civil action, there being no statute expressly disqualifying a judge on that
ground. It will be observed from the reported case that the same arguments were advanced
there as here, that, in the construction of subdivision 2 of section 5015, principles of common
justice should prevail, and that subdivision 2 is broad enough in scope and intent to include
cases of bias and prejudice of the trial judge as a ground for change of the place of trial, or to
call in another judge. It is insisted that any other construction would be tantamount to saying
that a party shall try his case before a judge, notwithstanding he is so biased and prejudiced
against him that a fair and impartial trial cannot be had. In response to the argument, the
Montana court held that a statute authorizing a change of venue when there is reason to
believe that a fair and impartial trial cannot be had does not include authority for the change
for the bias or prejudice of the judge. It was argued in that case, as is argued here, that when
there is reason to believe that an impartial trial cannot be had because of the bias or
prejudice of the judge it became and was the duty of the respondent judge, under
subdivision 2 of the statute, to order a change of venue.
52 Nev. 379, 397 (1930) State v. District Court
or prejudice of the judge it became and was the duty of the respondent judge, under
subdivision 2 of the statute, to order a change of venue.
4. It must be apparent to the most casual investigator that changes of venue relate solely to
changes of the place of trial and in no logical sense to a mere change of judges. Therefore, in
the true sense in which we are here compelled to consider the statute, the phrase place of
trial as used therein does not mean the judge or the court. It is a misnomer to speak of a
proceeding to change the trial judge in a case as a change of venue, which means a change in
the place of trial. State ex rel. McAllister v. Slate, 278 Mo. 570, 214 S.W. 85, 8 A.L.R.
1226.
In most jurisdictions the bias and prejudice of the judge is expressly made by statute a
ground for a change of venue, but not so in Nevada.
A brief recourse to the history of the law supports the view that subdivision 2, neither by
interpretation or construction, includes cases of bias or prejudice of the judge as a ground for
a change of place of trial. Little or no distinction is made between disqualification and bias or
prejudice; but they are by no means the same thing, and the distinction is recognized in the
legislation upon the subject in Nevada. The first legislation on the subject of the
disqualification of judges occurred in 1865. Stats. 1865, p. 116, c. 19, sec. 45. This statute
was amended in 1907 to read as follows: A judge shall not act as such in an action or
proceeding to which he is a party, or in which he is interested. Second, when he is related to
either party by consanguinity or affinity within the third degree. Third, when he has been
attorney or counsel for either party in the action or proceeding. Fourth, when he is related to
any attorney or counselor, for either of the parties, by consanguinity or affinity within the
fourth degree. Stats. 1907, p. 25, c. 11.
The statute was again amended in 1927 by adding thereto certain provisos, not material to
be stated.
The statute relating to change of venue up to the year 1S95 provided that such a change
could be had, first, when the county designated in the complaint was not the proper
county; second, when there was reason to believe that an impartial trial could not be had
therein; third, when the convenience of witnesses and the ends of justice would be
promoted by the change; and, fourth, when for any cause a judge was disqualified from
acting in the action.
52 Nev. 379, 398 (1930) State v. District Court
1895 provided that such a change could be had, first, when the county designated in the
complaint was not the proper county; second, when there was reason to believe that an
impartial trial could not be had therein; third, when the convenience of witnesses and the ends
of justice would be promoted by the change; and, fourth, when for any cause a judge was
disqualified from acting in the action. In 1895 the statute was amended to read as follows:
When from any cause the judge is disqualified from acting in the action, except in any case
when it shall appear by the affidavit of either party to the action, at any time before trial, that
said party cannot, by reason of the interest, bias or prejudice of the judge have a fair and
impartial trial, in which case the judge so designated in said affidavit shall not further preside
in the case, but instead of ordering a change of place of trial to another county, may invite
another judge to preside in, hear and decide said case. Stats. 1895, p. 64, c. 70.
In 1897 subdivision 4 of the statute quoted was made to read as follows: When from any
cause the judge is disqualified from acting in the action. When the place of trial is changed,
all other proceedings shall be had in the county to which the place of trial is changed; unless
otherwise provided by consent of the parties in writing duly filed, or by order of the court,
and the papers shall be filed, or transferred, accordingly. Stats. 1897, p. 87, c. 73.
Section 73 of our present civil practice act adopted and approved by legislative enactment
in 1912 provides, inter alia, as follows:
The court may, on motion, change the place of trial in the following cases:
1. When the county designated in the complaint is not the proper county.
2. When there is reason to believe that an impartial trial cannot be had therein.
3. When the convenience of the witnesses and the ends of justice would be promoted by
the change. * * * 5-7.
52 Nev. 379, 399 (1930) State v. District Court
5-7. It is well settled that the repeal of a statute is either express or implied. An implied
repeal takes place when a new law contains provisions contrary to those of the former law,
without expressly repealing the same. It will be observed that the present civil practice act, as
adopted and approved in 1912, relating to change of venue, omits from its provisions those
contained in the prior statutes relating to the disqualification of a judge because of his
interest, bias, or prejudice as a ground for change of place of trial or to invite in another judge
to preside where the judge is disqualified. The omission from the present practice act of the
prior provisions relating to the disqualification of judges evinces the legislative intention that
the disqualification, bias, and prejudice of a judge should not be a ground for change of
venue.
8. From the review of the authorities, the legislative history of the statute, and the statute
itself, the deduction is clear that where, as in this state, there is no statute which authorizes a
change of the place of trial for the bias or prejudice of the judge, we are compelled to
conclude that the respondent court in refusing to make an order staying the trial or hearing of
the motions in the case of Elsman v. Elsman, until the time to appeal from the order refusing
a change of place of trial had elapsed, acted within and not in excess of its jurisdiction.
It follows, therefore, that the petition for the writ should be denied and the proceeding
dismissed.
It is so ordered.
____________
52 Nev. 400, 400 (1930) Johnson v. Local Union No. 971
JOHNSON v. INTERNATIONAL OF THE UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA, Local Union No. 971, Et Al.
No. 2877
May 21, 1930. 288 P. 170.
1. Trade Unions.
Written charge against expelled member of brotherhood of carpenters and joiners held not to charge
offense under constitution of association as required thereby.
The constitution of the association provided that any member who endeavored to
create dissension among members should be expelled. The written charge against the
expelled member was as follows: The following is the statement made by D.E.J. in the
presence of C.V. and C.W. Why in hell don't they change the name of the S. of a B. of
an organization from the United Brotherhood of Carpenters and Joiners of America to
the Contractors and Petty Politicians Associationand, although such language was
scandalous and reprehensible, it did not necessarily charge member with endeavoring
to create dissension.
2. Trade Unions.
Failure to afford member trial as guaranteed by association's constitution and laws rendered expulsion
proceedings void.
3. Trade Unions.
Where expulsion proceedings are not conducted in compliance with organization's requirements or
are contrary to law and fundamental principles of justice, aggrieved member may apply at once to courts.
4. Trade Unions.
Court of equity will reinstate member where association in expelling him acted unfairly or beyond its
powers and not in accordance with law of land.
C.J.-CYC. REFERENCES
Associations5 C.J. sec. 82, p. 1358, n. 36.
Labor Unions24 Cyc. p. 827, n. 8, 15.
Appeal from Second Judicial District Court, Washoe County; Geo. A. Bartlett, Judge.
Suit by Daniel E. Johnson against the International of the United Brotherhood of
Carpenters and Joiners of America, Local Union No. 971, of the United Brotherhood of
Carpenters and Joiners of America, and others.
52 Nev. 400, 401 (1930) Johnson v. Local Union No. 971
From a judgment dismissing the suit, plaintiff appeals. Reversed, with instructions.
Frame & Raffeto, for Appellant:
The right to labor it is said is an absolute right that cannot be taken away, even by the
legislature. It is property in the highest sense, and is a right and immunity belonging to the
individual and clearly falls within the protection of the due process of law clause of the 14th
Amendment of the Constitution of the United States, which guarantees to the individual that
life, liberty and property rights and immunities of the individual cannot be taken without due
process of law. This, as we understand, means reasonable notice, an opportunity to be heard
and a trial. R.C.L. sec. 3, p. 414; Erdman v. Mitchell, 207 Pa. St. 79; Purvis v. Local No. 500
United Brotherhood, 12 L.R.A.; Goldfield Consolidated Mines Co. v. Goldfield Miners
Union No. 220, 159 Fed. 500; Branson v. I.W.W., 30 Nev. 270.
It is essential to the validity of a proceeding by a labor union for the expulsion of one of its
members, which expulsion prevents the member from following his employment and earning
a livelihood, that the laws of the organization providing for such action are in compliance
with the requirements of due process of law and are fully complied with; that is to say, that
the constitution and laws of the organization must provide for written charges to be preferred,
reasonable notice thereof be given to the accused, and an opportunity to appear and defend be
given. If the laws of the organization do not contain these requirements, reasonable notice of
the charges be not given, no reasonable opportunity afforded to be heard, nor a fair and
impartial trial accorded, the proceeding is a nullity. 24 Cyc. sec. 2, p. 827; Lysaght v. St.
Louis Co-op. Ass'n., 55 Mo. App. 538; Cotton Jammers Ass'n. v. Taylor, 56 S.W. 553;
People v. N.Y. Beneficial Society, 3 Hun. (N.Y.) 361; Brennan v. United Hatters, 9 L.R.A.
255; Schneider v. Local Union No. 96, 5 L.R.A. 896.
52 Nev. 400, 402 (1930) Johnson v. Local Union No. 971
The requirements of the constitution and by-laws providing for written charges specifying
the offense and the section of the constitution alleged to be violated, and the service of a copy
of the charges and notice of hearing and a hearing in accordance with the provisions of the
constitution and by-laws must be strictly followed. 24 Cyc. sec. 2, p. 827; People v. Mutual
Protective Union, 23 N.E. 129; Weiss v. Mut. Musical Protective Union, 42 Atl. 118;
Dingwall v. Amalgamated Ass'n. of Street Railway Employees of America, 88 P. 597.
The illegal expulsion of a member from a labor organization entitles him to recover
damages, both actual and punitory, in addition to the right to be reinstated; and this is
especially true where the object of the organization is lawful and the civil right interfered with
or destroyed and which results in damages. 24 Cyc. sec. 3, p. 827; Brennan v. United Hatters,
9 L.R.A. 255; Schneider v. Local Union No. 96, 5 L.R.A. 896.
Appellant did not as a matter of law or in fact waive any of the procedure provided by the
constitution and by-laws of the organization, or the right to a trial, or enter a plea of guilty.
On the contrary, appellant expressly demanded a trial and that the laws of the organization be
followed. In the face of this expressed demand there could be no implied waiver.
For the reasons above stated the act of local union No. 971 in assuming jurisdiction and
proceeding to expel appellant from the organization and forever debarring him from
membership therein was ultra vires and void, without color of authority, and a mere
usurpation of the power of a trial committee, which is the legally constituted judicial body
vested with power to investigate charges against a member, to hear evidence and return
written findings as to whether the accused is guilty. Sec. 55, subdivisions F and G of the
constitution of the organization.
The expulsion of appellant being illegal, arbitrary and void, appellant was not compelled
to proceed further, but might immediately resort to the courts for redress.
52 Nev. 400, 403 (1930) Johnson v. Local Union No. 971
This is true for three reasons: First, such illegal procedure, which amounted to no
procedure at all, was not within the contemplation of the constitution of the organization
providing for the trial of accused members for alleged offenses. Appellant's redress within the
organization only related to those things done in the exercise of its jurisdiction under the
constitution. Second, the act of expulsion being without jurisdiction and void, the same
amounted to no judgment at all. Third, there is no plain, complete or adequate remedy
provided in such cases. There is no provision for the stay of proceedings pending an appeal.
The judgment of expulsion became effective immediately, and for damages and other
resultants from the illegal act, which amounted simple to a tort, no adequate remedy is
provided within the organization. The judgment being a mere nullity, amounted to no
judgment at all. Dalton v. Libby, 9 Nev. 129.
Where the expulsion of a member is fair upon its face, the laws of the organization complied
with, and appears reasonable, the courts will not interfere; however, when the expulsion is
illegal and the substantial requirements of the organization not complied with, he may be
restored to membership without resorting to the remedies provided by the laws of the
organization. People v. Mutual Musical Protective Ass'n., 23 N.E. 129. Especially is this so
where the conditions are so burdensome as to practically amount to a denial of relief. 24 Cyc.
p. 827; Corregan v. Hay, 94 N.Y. App. Div. 71; Weiss v. Musical Mutual Protective Ass'n.,
69 Am. St. Rep. 820.
Appellant did exhaust every available remedy within the organization. He appealed to the
general president, which appeal was denied. He then appealed to the executive board through
the Building Trades Council of Reno, Nevada, which forwarded his appeal to the executive
board, together with the earnest solicitation under the seal of the Building Trades Council to
investigate the case and to correct the wrong done appellant. No action has even been taken
by the executive board, and this appeal resulted in futile correspondence without any
attempt to grant relief, and reached no decision which might be appealed from, if indeed
it was necessary to wait perhaps four years to present an appeal to the general
convention.
52 Nev. 400, 404 (1930) Johnson v. Local Union No. 971
and this appeal resulted in futile correspondence without any attempt to grant relief, and
reached no decision which might be appealed from, if indeed it was necessary to wait perhaps
four years to present an appeal to the general convention. Such a remedy is obviously so
inadequate where a member is reduced to poverty as to be a denial of relief. Schneider v.
Local Union No. 90, 5 L.R.A. 896.
Thatcher & Woodburn, for Respondents:
The plaintiff, according to the undisputed testimony, admitted that the charges against him
were in part true. He did not state, either at the meeting of the local, at which he was expelled,
or in court, how much of the charges was true and how much was false. The rule is, we think,
that members of a labor union cannot complain of the failure to give them a hearing before a
grievance committee, or similar body, to which they are entitled under the constitution and
by-laws, where they do not deny that they are guilty of the charge made against them. Monroe
v. Colored Screwmen's Benevolent Ass'n., 66 So. 260.
The appellant did not exhaust his rights and remedies within the organization and therefore
cannot appeal to the courts. The record shows that the appellant after his expulsion appealed
to William H. Hutchison, general president, under right given him by the constitution and
by-laws of the organization. This appeal was denied. There was open to him the right to take
two further appeals if he so desired, as follows: (1) To the general executive board of the
organization, and (2) a final appeal to the general convention of the order. No such appeals
were taken by him. There was correspondence by the local labor council with various
organizations, seeking to intervene in his behalf, but none of these constituted an appeal by
him to either the general executive board or to the general convention. The constitution and
laws provide that a member must exhaust the remedies allowed by the constitution and laws
of the United Brotherhood before taking his case to the civil court."
52 Nev. 400, 405 (1930) Johnson v. Local Union No. 971
United Brotherhood before taking his case to the civil court. The rule is well settled that
where the constitution of a labor union provides for an appeal to the general executive board,
or other body of the organization, whose decision should be final unless reversed by the
general assembly, the court will not interfere until all remedies have been exhausted within
the organization. Local Union No. 1006 v. Brotherhood of Painters, D. and P. etc., 149 N.Y.
Sup. 1025; Beasly v. Chicago Journeyman's, etc. Association, 44 Ill. App. 278; Burns v.
Bricklayers Benevolent, etc. Union, 14 N.Y. Sup. 361; Raych v. Hadida, 130 N.Y. Sup. 346;
Harris v. Detroit T. Union 18, 144 Mich. 422, 108 N.W. 362; Moody v. Farrington, 227 Ill.
App. 40; Shinsky v. Tracey, 226 Mass. 21, 114 N.E. 957, L.R.A. 1917c, 1053; Bossert v.
Dhuy, 221 N.Y. 342, 117 N.E. 582, Ann. Cas. 1918d, 661; Simons v. Berry, 208 N.Y. Sup.
204; Drayzen v. Curby, 158 N.Y. Sup. 507; Pratt v. Amalgamated Association of Street and
Electric Railway Employees of America, 50 Utah, 472, 167 P. 830; Nyland v. United
Brotherhood of Carpenters and Joiners of America, Local No. 1960, 156 La. 604, 100 So.
733.
The fact that hardship may be suffered during the period of time required to take the
appeal provided for by the union's constitution and by-laws will not warrant interference by a
court. Greenwood v. Building Trades Council of Sacramento, 233 P. 823.
OPINION
By the Court, Coleman, J.:
On and some time prior to September 13, 1926, the plaintiff was a member of local union
No. 971, a subordinate of the International of the United Brotherhood of Carpenters and
Joiners of America, an unincorporated benefit society. At a meeting held on the date
mentioned, a motion was adopted by said local expelling plaintiff from membership therein.
This suit was instituted to enjoin defendants from excluding plaintiff from membership in
said organization, for damages, and for general equitable relief.
52 Nev. 400, 406 (1930) Johnson v. Local Union No. 971
excluding plaintiff from membership in said organization, for damages, and for general
equitable relief.
The complaint alleges, inter alia, that plaintiff was willfully, wrongfully, and maliciously
expelled from defendant organization, and that no written charges were filed against him; that
he was not given a trial as guaranteed by the constitution and laws of the organization; and
alleged that he had exhausted all remedies available to him within the organization.
The complaint pleads section 55 of the constitution and laws of the defendant
organization, which provides that charges alleging an offense must be made in writing and
must specify the offense or offenses charged and the section violated, and must be signed by
the member making the charge; that the charges must be read at the meeting and lay over
until the next meeting; that the member charged must be notified and furnished a copy of the
charges by registered mail; that all charges must be referred to a trial committee; that the
accused shall be allowed until the next regular meeting to appear and reply; that the chairman
of the committee shall summon the accused in writing, together with the witnesses for and
against him.
The constitution and laws also provide that any member having a grievance may appeal to
the general president for redress, subject to a further appeal to the general executive board
and a final appeal to the general convention. It also provides that a member must exhaust his
resources allowed by the constitution and laws within the organization before taking his case
to the civil courts.
The defendants answered, denying, inter alia, the material allegations of the complaint
alleging that no written charges were filed against the plaintiff and that he was wrongfully,
willfully, and maliciously expelled from defendant organization without written charges
having been filed against him. The answer admits that no trial was given the plaintiff, but
alleges that he pleaded guilty to the charges which had theretofore been preferred.
52 Nev. 400, 407 (1930) Johnson v. Local Union No. 971
Upon the trial, a judgment was entered dismissing the suit at the cost of plaintiff, upon the
ground that he had not exhausted his remedies within the defendant organization.
1. The evidence, though conflicting on that point, shows that a written charge was
presented against the defendant on September 13, 1926, as follows:
The following is the statement made by D.E. Johnson in the presence of Chas. Varney
and Chas. Warner.
Why in hell don't they change the name of the S. of a B. of an organization from the
United Brotherhood of Carpenters and Joiners of America to the Contractors and Petty
Politicians Association. [Signed] Chas. H. Varney.
After the charge was read, the defendant stated that a part of the matter stated was true and
that a part of it was false, and demanded a trial as provided in the laws of the organization.
The chairman of the local held that the plaintiff had pleaded guilty and that no trial was
necessary.
The minutes of the local, as corrected, read: Motion by Brother C.H. Varney that Brother
D.E. Johnson be expelled for trying to create dissension and working against the harmony of
the United Brotherhood.
The motion was adopted, and Johnson was requested to leave the hall. Thereafter Johnson
took an appeal to the general president, who dismissed the appeal on the ground that the local
acted for the best interest of the membership; but he took no further appeal.
Section 54, par. B, of the constitution, provides: Any officer or member who endeavors to
create dissension among the members or works against the interest and harmony of the
United Brotherhood * * * shall be expelled. * * *
Paragraph B, sec. 55, of the constitution and laws of defendant organization, is as follows:
All charges must be made in writing, and must specify the offense or offenses, and the
Section of the Constitution and Laws of the United Brotherhood so violated, and be signed by
the member or members making such charges.
52 Nev. 400, 408 (1930) Johnson v. Local Union No. 971
The charge fails utterly to comply with this requirement. It does not specify any offense;
neither does it specify the section of the constitution and laws alleged to have been violated.
To constitute an offense, it must specifically charge that he was guilty of some act or acts
prohibited by some law of the organization.
Assuming that it was the intent to charge Johnson with violation of section 54, par. B, an
endeavor to create dissension is an essential element of the offense to be embraced in the
charge. This element is not embraced in the charge against Johnson; hence he was not
charged with the offense of endeavoring to create dissension among the members. While the
language Johnson is charged with using is scandalous and reprehensible, it does not
necessarily charge him with endeavoring to create dissension. We appreciate that courts
should not be anxious to require such charges to be strictly technical, but they should convey
to the accused a knowledge of the charge made against him. This was no doubt the purpose of
providing that the charge should refer to the section upon which the charge is based.
As the charge did not contain an essential element of an offense, Johnson might have
admitted the truth of everything contained therein unreservedly, and still not plead guilty to
violating a law of the organization.
2, 3. But, if we were to concede that the written charge alleged an offense, the judgment
would have to be reversed, for the reason that there was no plea of guilty, nor a trial. It is
clear that Johnson never intended to plead guilty, for the reason that he demanded at the time
a trial as guaranteed by the constitution and laws. The failure to afford Johnson this privilege
renders the proceedings absolutely null and void. In Wachtel v. Noah Widows' & Orphans'
Soc., 84 N.Y. 28, 38 Am. Rep. 478, it is said: It is well settled that an association whose
members become entitled to privileges or rights of property therein cannot exercise its power
of expulsion without notice to the person charged, or without giving him an opportunity to be
heard.
While there seem to be some authorities which hold that, whether an expulsion be void
or irregular, the aggrieved party must exhaust his remedies within the offending body,
the great weight of authority is to the effect that, where the proceedings resulting in
suspension, expulsion, or other penalty, are not conducted in compliance with the
requirements of the organization itself, or are contrary to law and the fundamental
principles of justice, the aggrieved member may apply at once to the civil courts for relief.
52 Nev. 400, 409 (1930) Johnson v. Local Union No. 971
that, whether an expulsion be void or irregular, the aggrieved party must exhaust his remedies
within the offending body, the great weight of authority is to the effect that, where the
proceedings resulting in suspension, expulsion, or other penalty, are not conducted in
compliance with the requirements of the organization itself, or are contrary to law and the
fundamental principles of justice, the aggrieved member may apply at once to the civil courts
for relief.
In Otto v. Journeymen Tailors' Protective & Benev. Union, 75 Cal. 308, 17 P. 217, 219, 7
Am. St. Rep. 156, the court, in a concise, terse opinion, held that one who had paid his dues
and assessments, and who was entitled to participate in the benefit feature of the association,
had property rights involved, which, if violated, entitled him to the protection of the courts.
We quote from the opinion: * * * In the matter of expulsion the society acts in a quasi
judicial character, and, so far as it confines itself to the exercise of the powers vested in it,
and in good faith pursues the methods prescribed by its laws, such laws not being in violation
of the laws of the land, or any inalienable right of the member, its sentence is conclusive, like
that of a judicial tribunal. Com. v. [Pike Beneficial] Society, 8 Watts & S. [Pa.] 250; Burt v.
Lodge, 44 Mich. 208; [Id., 66 Mich. 85], 33 N.W. 13; Robinson v. Lodge, 86 Ill. 598. The
courts will, however, decide whether the ground for expulsion is well taken. Hirs. Frat. &
Soc. 55; [Savannah] Cotton Exchange v. State, 54 Ga. 668. It has been held in reference to
the expulsion of members from societies of this character, that the courts have no right to
interfere with the decisions of the societies, except in the following cases: First. If the
decision arrived at was contrary to natural justice, such as the member complained of not
having an opportunity to explain misconduct. Secondly. If the rules of the club have not been
observed. Thirdly. If the action of the club was malicious and not bona fide.' Hirs. Frat. &
Soc. 56; Dawkins v. Antrobus, 44 Law T. 557; Lambert v. Addison, 46 Law T. 20.
The conclusion of the court was that the plaintiff did not have a fair trial by the
defendant and that the plaintiff should be reinstated.
52 Nev. 400, 410 (1930) Johnson v. Local Union No. 971
did not have a fair trial by the defendant and that the plaintiff should be reinstated.
4. The general rule applicable to cases of suspension or expulsion by organizations of the
character of the defendant is correctly stated in 5 C.J. pp. 1358, 1359, as follows:
In the matter of the suspension or expulsion of a member, the association acts in a quasi
judicial capacity, and where the society, fairly and in good faith, acts within its powers, and
in accordance with its laws and the law of the land, its decision, like that of a judicial
tribunal, is conclusive as against a collateral attack. * * *
Conversely, a court of equity will reinstate a member, where the association, in
suspending or expelling him, acted unfairly or in bad faith, or beyond its powers, and not in
accordance with its laws or the law of the land, such relief being granted by way of a decree
annulling the wrongful suspension or expulsion, adjudging the member to be entitled to the
rights and privileges of membership, and directing his restoration or reinstatement, or
enjoining the association from depriving him of such rights and privileges or interfering
therewith. Accordingly, the court may inquire into the power and jurisdiction of the
association to suspend or expel the member, the reasonableness and propriety of the
suspension or expulsion and the grounds thereof, and the regularity of the proceedings. * * *
Before applying to a court of equity for reinstatement, a disfranchised member must as a
rule exhaust all remedies available to him under the laws of the association. But this rules
does not apply where the association, in suspending or expelling the member, acted entirely
without jurisdiction, it has been held, or where the remedy provided by the laws of the society
is not available to the member, or there is an extremely remote possibility of its proving
effective; and the rule is of course inapplicable where no remedy is afforded by the laws of
the association.
It is said in Bacon, Benefit Societies (3d ed.), sec. 107, that: "* * * It is, however, well
settled that: 'If the action of the lodge be a usurpation, or without notice or authority, it
cannot affect the legal rights or change the legal status of any one.
52 Nev. 400, 411 (1930) Johnson v. Local Union No. 971
that: * * * It is, however, well settled that: If the action of the lodge be a usurpation, or
without notice or authority, it cannot affect the legal rights or change the legal status of any
one. The obligation to appeal is not imposed when the judgment is void for want of
jurisdiction. It may be likened to a judgment rendered by a court which has no jurisdiction of
the subject-matter or of the person. No appeal or writ of error is necessary to get rid of such a
judgment. It is void in all courts and places, and the duty of an expelled member to exhaust,
by appeals or otherwise, all the remedies within the organization arises only where the
association is acting strictly within the scope of its powers.'
Such is the law as recognized by all authorities in England and by a great weight of
authority in the United States. Sustaining the view stated, we mention some of the authorities.
Wayman v. Perseverance Lodge, 1 K.B. (Eng.) 677, 116 L.T.N.S. 14, 86 L.J.K.B. 243; Innes
v. Wylie, 1 Car. & K. 257 (Eng.); State ex rel. Circoira v. Corgiat, 50 Wash. 95, 96 P. 689;
Fales v. Musicians' Pro. Ass'n., 40 R.I. 34, 99 A. 823; Venezia v. Italian, etc., 74 N.J. Law,
433, 65 A. 898; Most Wor. United Grand Lodge v. Lee, 128 Md. 42, 96 A. 872, Ann. Cas.
1918e, 1174; Rueb v. Rehder, 24 N.M. 534, 174 P. 992; Pratt v. Amalgamated, etc., 50 Utah,
472, 167 P. 830; Black & White Smiths' Soc. v. Vandyke, 2 Whart. (Pa.) 309, 30 Am. Dec.
263; Stevens v. Minneapolis F.D.R. Ass'n., 124 Minn. 381, 145 N.W. 35, 50 L.R.A. (N.S.)
1018; Hall v. Supreme Lodge, etc. (D.C.) 24 F. 450; Com. ex rel. v. Pike Ben. Soc., 8 Watts
& S. (Pa.) 251; Supreme Lodge, K. of P. v. Eskholme, 59 N.J. Law, 255, 35 A. 1055, 59 Am.
St. Rep. 609.
The learned author and jurist, Seymour D. Thompson, in referring to the authorities
holding that one must first exhaust his remedies within the organization, in Mulroy v. Knights
of Honor, 28 Mo. App. 463, said: But all the cases which so hold either expressly state, or
tacitly assume, that, in the action which the society took, and against which relief was sought,
it acted within the scope of its powers, and in prosecuting their inquiries into the propriety
of the action of such societies in the expulsion of members, or in the disposition of
property, or otherwise, courts have in general proceeded no further than to inquire
whether the judicatory provided by the laws of the society, which acted, had jurisdiction
in the particular case."
52 Nev. 400, 412 (1930) Johnson v. Local Union No. 971
within the scope of its powers, and in prosecuting their inquiries into the propriety of the
action of such societies in the expulsion of members, or in the disposition of property, or
otherwise, courts have in general proceeded no further than to inquire whether the judicatory
provided by the laws of the society, which acted, had jurisdiction in the particular case.
Entertaining the views expressed, it follows that the judgment and order appealed from
must be reversed, with instructions to the trial court to proceed in accordance with the views
herein expressed.
It is so ordered.
Ducker, C.J., I concur.
Sanders, J. (concurring):
This is an appeal from a judgment of dismissal of the plaintiff's action and from an order
denying plaintiff's motion for new trial.
The compliant sets up two causes of action, each predicated upon the fact of the plaintiff's
expulsion from local union 971, a component part of the United Brotherhood of Carpenters
and Joiners of America, consisting of a large number of local unions and members subject to
its constitution and laws, made a part of the record in this case.
I approach the questions involved in the spirit that courts do not interfere with the actions
of voluntary associations, as to controversies between their members as to the method and
manner in which the rights of membership may be maintained and continued. It is only upon
the clearest kind of showing, either that the constitution and rules are violated by the
decisions of the tribunal within the organization, or that the remedies provided for appeal
from or the review of the decisions of their own constituted tribunals are nonexistent or
unreasonable, should courts permit their jurisdiction to be invoked. In other words, the
constitution, laws, and regulations of the brotherhood are in the nature of a contract between
its members, and they, as well as the brotherhood, are bound thereby; that the courts are not
disposed to interfere with the internal management of such associations; that the
expulsion of a member, if for cause within the tribunal of the association by which it is
pronounced, after notice and an opportunity to be heard and a trial conducted in
accordance with the constitution, laws, and regulations of the association, is conclusive
upon the civil courts.
52 Nev. 400, 413 (1930) Johnson v. Local Union No. 971
not disposed to interfere with the internal management of such associations; that the
expulsion of a member, if for cause within the tribunal of the association by which it is
pronounced, after notice and an opportunity to be heard and a trial conducted in accordance
with the constitution, laws, and regulations of the association, is conclusive upon the civil
courts. Oakes Organized Labor and Industrial Conflicts, sec. 61, and cases cited.
The plaintiff by his first cause of action seeks to recover from local union No. 971 and its
codefendants the sum of $100,000 actual damages and, in addition thereto, the sum of
$100,000 punitive damages for his alleged willful, wrongful, unlawful, and malicious
expulsion from local union No. 971. By his second cause of action the plaintiff seeks
reinstatement as a member of local union No. 971 because of his alleged wrongful and
unlawful expulsion through an injunction in equity without any claim for damages. No
demurrer was interposed. Upon issues joined, the case was tried to the court without a jury. It
appears that, after a full hearing, the court made and caused to be entered its findings of fact
and conclusions of law upon which it was adjudged and ordered that the plaintiff's actions be
dismissed. The judgment, of course, necessitates a review of the findings and conclusions of
law upon which it was rendered and entered. The court, among other of its findings, found as
follows:
That under the constitution and by-laws of Local Union 971 the plaintiff was afforded the
right to appeal from the ruling of Local Union 971 to the International of the United
Brotherhood of Carpenters and Joiners of America.
That the plaintiff accepted the ruling of Local Union 971 and did not exhaust and has not
exhausted the remedies afforded to plaintiff as a member of Local Union 971 under the
constitution and by-laws of that organization.
From these findings the court deduced the following conclusions of law: "That the
plaintiff is not entitled to the remedy demanded in his complaint.
52 Nev. 400, 414 (1930) Johnson v. Local Union No. 971
That the plaintiff is not entitled to the remedy demanded in his complaint.
That this action should be dismissed with costs to the defendants.
Subject to qualifications, it is a general rule that one seeking to set aside the decisions of a
union tribunal must first exhaust his remedy in the organization before appealing to the
courts, since members of such association, having voluntarily constituted tribunals to adjust
their differences, should not be permitted to resort to the courts of justice to set side the
illegal awards of such tribunals as long as there is another body which has power to adjust the
sentence and which has not been appealed to. Oakes Organized Labor and Industrial
Conflicts, sec. 63; Martin on Modern Law of Labor Unions, sec. 317.
The constitution and laws of the United Brotherhood contains this provision: That a
member must exhaust his resources allowed by the constitution and laws of the United
Brotherhood before taking his case to the civil courts.
This provision conforms to the rule above stated, and is, in my judgment, sufficiently
broad in scope and intent to include any case, whatever be the nature or character of the
grievance, or whether the case be one at law or in equity. The constitution and laws do not,
however, provide a penalty for resorting to civil courts before exhausting all the resources
allowed by the constitution and laws of the brotherhood.
The necessity of first exhausting the remedies in the organization before appeal to the
courts is subject to the qualification that, when the act complained of is void for want of
authority or jurisdiction, the obligation to take an appeal from the judgment of the tribunal of
last resort within the organization does not exist. Local No. 7 of Bricklayers', etc., Union v.
Bowen (D.C.) 278 F. 271; Oakes Organized Labor and Industrial Conflicts, sec. 63.
The constitution and laws of the United Brotherhood provides an elaborate and
well-conceived scheme, which may be called a code of procedure for the trial of charges
against members by members.
52 Nev. 400, 415 (1930) Johnson v. Local Union No. 971
which may be called a code of procedure for the trial of charges against members by
members. The answer of the defendants admits that the plaintiff was not tried in accordance
with the laws of the organization. Being deprived of his constitutional right to be heard and
tried in the manner as provided in the constitution and laws of the United Brotherhood, it
follows that the procedure for the expulsion of plaintiff from local union 971 was without
legal effect. Oakes Organized Labor and Industrial Conflicts, sec. 16, p. 26.
It is insisted in argument that the plaintiff, having accepted the ruling of local union 971
and not having exhausted the remedies afforded him by the constitution and laws of the
United Brotherhood, particularly the right of appeal, his action was premature and was
correctly dismissed. My answer to this contention is that the plaintiff's expulsion was not
conducted to judgment in accordance with the constitution and laws of the organization. As
above stated, the weight of authority is in favor of the position that the obligation to take the
appeal allowed by the constitution and laws of the organization does not exist when the
judgment is void for want of authority or jurisdiction.
There is another phase of the findings of facts which deserves brief discussion. Stress is
made in the findings of the plaintiff's admission of the truth of part of the charge preferred
against him. Certainly, before his summary expulsion upon motion, he was entitled under the
constitution and laws of the organization to be heard and tried. The court found, however, in
substance, that local union 971 had full and complete power and jurisdiction to determine
whether or not the charge to which the plaintiff pleaded guilty was sufficient grounds for his
expulsion from said local. This is true, but subject to the qualification that its power and
jurisdiction be exercised and conducted in the manner provided by the laws and rules of the
United Brotherhood of which local union 971 is subordinate.
I am not in accord with the conclusion reached by my associates that the charge preferred
against the plaintiff was not sufficient under the constitution and laws of the United
Brotherhood to justify his expulsion from membership in local union 971, and in that it
does not expressly refer to the particular provision of the constitution and laws violated.
52 Nev. 400, 416 (1930) Johnson v. Local Union No. 971
plaintiff was not sufficient under the constitution and laws of the United Brotherhood to
justify his expulsion from membership in local union 971, and in that it does not expressly
refer to the particular provision of the constitution and laws violated.
A charge against a member of a voluntary association for breech of its laws is sufficiently
specific when it apprises the member of the nature of the charge and enables him to prepare
his defense. Levy v. Magnolia Lodge, I.O.O.F., 110 Cal. 297, 42 P. 887. By the clear,
unmistakable, and unequivocal language of the charge, the accused could not possible be
mistaken as to its nature. The record shows that he demanded a trial upon the charge, thus
showing that he was acquainted with the particular provision of the laws relating to penalties.
It is true the charge does not expressly refer to the particular provision of the law violated, but
it does so by clear implication, which in a case of this kind is sufficient. 3 Cal. Jur. 352.
In the present condition of the record, and particularly in view of the fact that the plaintiff
by his complaint seeks to recover both actual and punitive damages and reinstatement in
equity because of his claimed illegal expulsion, I am of the opinion that the case should be
remanded and tried in accordance with the settled rules of procedure and principles of law
applicable to cases of this kind.
I concur in the order of reversal of the judgment solely upon the ground that the trial court
gave a wrong reason for the dismissal of the action.
____________
52 Nev. 417, 417 (1930) Thorne Et Al. v. Lampros
THORNE Et Al. v. LAMPROS
No. 2848
June 5, 1930. 288 P. 601.
1. Automobiles.
Automobile driver is liable for injuries received by guest through driver's negligence.
2. Automobile.
Automobile driver owes guest duty to operate machine with reasonable care.
3. Automobile.
Evidence held to warrant court's finding that driver of automobile, which turned over, injuring guest,
after passing car ahead, did not exercise due care.
The injured guest testified that driver drove past other car at about 45 miles per hour
and lost control of car, that it struck soft dirt off pavement, swung back across pavement,
and turned over, and that she screamed to him to shut off gas, as they were passing, while
occupants of other car testified that he drove past it at between 35 and 45 miles an hour,
so close that they were forced off highway to avert crash, and that he drove off pavement
into soft mud, turned sharply to left, and attempted to turn again toward right when car
turned over.
4. Automobiles.
Injured guest's testimony that automobile driver told her, before accident, that something had gone
wrong with steering wheel and that he had had car in garage, held not to show contributory negligence in
accepting his invitation to ride.
C.J.-CYC. REFERENCES
Motor Vehicles42 C.J. sec. 804, p. 1055, n. 36; p. 1056, n. 43; sec. 1044, p. 1233, n. 27; sec. 1046, p.
1238, n. 49.
Appeal from Second Judicial District Court, Washoe County; Geo. A. Bartlett, Judge.
Action by Edith Thorne and husband against Louis Lampros. From a judgment for plaintiff
and an order denying a motion for a new trial, defendant appeals. Affirmed.
Thatcher & Woodburn, for Appellant:
The plaintiff, Edith Thorne, was injured while riding as an invited guest in an automobile
operated by the defendant, Louis Lampros. Under such circumstances it is well established
that the driver of an automobile is required to exercise only slight care as to an invited guest
and will be liable only for gross negligence.
52 Nev. 417, 418 (1930) Thorne Et Al. v. Lampros
guest and will be liable only for gross negligence. Blood v. Austin (Wash.), 270 P. 103;
Kloppfenstein v. Eads et al. (Wash.), 254 P. 854; Saxe v. Terry (Wash.), 250 P. 27; Harris v.
Reid (Ga.), 117 S.E. 256; Epps v. Parish (Ga.), 106 S.E. 297; Bertelli v. Tronconi (Mass.),
162 N.E. 168; Flynn v. Lewis (Mass.), 121 N.E. 493; Burke v. Cooke (Mass.), 141 N.E. 585;
Marcinowski v. Sanders (Mass.), 147 N.E. 275; Pepper v. Morrill, 24 Fed. (2d) 320.
Gross negligence has been described as: An utter disregard of the dictates of prudence
amounting to complete neglect of the safety of the guest. Manning v. Simpson (Mass.), 159
N.E. 440. And again: Gross negligence is a degree of neglect much greater than ordinary
neglect. It is neglect of greater culpability than neglect of due care respecting the rights of
others. Marcinowski v. Sanders, supra.
There is no evidence to show that the defendant knew of the condition of the road off the
highway, and the finding of the trial court to that effect is unsupported.
In view of the facts how can it be held that the defendant showed an utter disregard of the
dictates of prudence and completely neglected the safety of his guest, or, in other words, that
he was grossly negligent?
On the contrary, we respectfully urge that the evidence discloses that the injury was due to
the condition of the car, of which plaintiff was aware, and to the condition of the road just off
the concrete pavement, of which the defendant was not aware; in other words, that the
plaintiff assumed any risks attendant upon riding as the invited guest of the defendant.
It has been held that the operator of an automobile owes an invited guest no duty of prior
inspection and that the guest takes the automobile and driver as he finds them. Marple v.
Haddad (W. Va.), 138 S.E. 113. And again: The host does not guarantee to the guest a sound
automobile. Cleary v. Eckhart (Wis.), 210 N.W. 267. See, also, O'Shea v. Lavoy (Wis.), 185
N.W. 525.
52 Nev. 417, 419 (1930) Thorne Et Al. v. Lampros
An automobile driver is not liable in the absence of negligence for injuries to a guest
sustained in an accident due to a dangerous condition of the street, of which he had no
previous knowledge. Jacobs v. Jacobs (La.), 74 So. 992.
John S. Sinai, for Respondents:
We do not believe that the appellant is basing this appeal upon a sound premise. His
theory of the law evidently is that gross negligence must be proven before plaintiff may
recover. This is not the majority rule of the law, nor is it the law in the State of Nevada. On
the contrary, all plaintiff need to have proven was merely negligence, as is more particularly
emphasized by the following authorities: 20 A.L.R. 1014; 42 C.J. 1055, par. 804.
Under the heading Minority Rule we find the following: In some jurisdictions it is held
that gross negligence must be shown in order to hold the owner or operator of an automobile
liable for an injury to an invited guest. 20 A.L.R. 2018. The cases cited by counsel come
under the minority rule.
In support of our contention that only ordinary, and not necessarily gross, negligence is
required to be shown before the plaintiff may prevail in the case, we respectfully submit the
following authorities: Ryan et al. v. Snyder (Wyo.), 211 P. 482; Liston v. Reynolds, 223 P.
508; Rogers v. Price, 230 P. 1047; Perkins v. Galloway, 73 So. 956; Jacobs v. Jacobs, 74 So.
997; Fitzjarrell v. Boyd, 91 Atl. 547; Dickerson v. Connecticut Company et al., 118 Atl. 518.
The only authority in the State of Nevada touching upon the matter of the duty which a
driver owes to his guest supports the majority rule above stated. We have reference to the
case of Nicora v. Cerveri, 49 Nev. 261, wherein this court held: These circumstances tended
to show that when the accident occurred, appellant was not exercising ordinary care in
managing his automobile. A further examination of the case discloses that this court has
unequivocally held that negligence alone on the part of the driver is sufficient to warrant a
judgment in favor of the guest.
52 Nev. 417, 420 (1930) Thorne Et Al. v. Lampros
on the part of the driver is sufficient to warrant a judgment in favor of the guest.
The lower court, however, deemed the negligence of appellant to be gross, and we believe
there is ample testimony to support this conclusion. Carlson v. Leonard, 200 P. 41.
OPINION
By the Court, Ducker, C.J.:
Plaintiffs brought this action to recover damages for injuries alleged to have been caused
by reason of the careless and negligent driving of an automobile, by defendant, in which the
plaintiff Mrs. Edith Thorne was riding as an invited guest of defendant. The defendant denied
all allegations imputing negligence. The case was tried before the court without a jury. The
court found that the defendant was grossly negligent in operating the automobile at the time
of the accident as the result of which Mrs. Thorne sustained serious and permanent injuries,
and entered judgment in her favor for $11,764.75. Defendant has appealed from the judgment
and order denying his motion for a new trial.
The defendant is the son-in-law of the plaintiff Mrs. Thorne, having married her daughter
since the accident. The accident occurred on December 11, 1927, on the state highway
between Reno and Lawton Springs. The automobile was driven by defendant. He was
traveling toward Reno, and when a short distance east of Lawton Springs passed an
automobile going in the same direction. Immediately after passing the car defendant's
automobile swerved to the right of the highway and back to the left and turned over. Mrs.
Thorne was seriously injured.
The facts of the case were established by the plaintiffs. Defendant did not testify in his
own behalf or produce any witnesses or evidence in his defense. He contends that as Mrs.
Thorne was an invited guest he owed her only slight care in the operation of his
automobile, and that she cannot recover unless the evidence shows that he was guilty of
gross or wanton negligence.
52 Nev. 417, 421 (1930) Thorne Et Al. v. Lampros
owed her only slight care in the operation of his automobile, and that she cannot recover
unless the evidence shows that he was guilty of gross or wanton negligence. He contends that
the evidence did not warrant the court in finding negligence of this degree.
1. It is well established that the driver of an automobile is liable for injuries received by a
guest through the driver's negligence. We so held in Nicora v. Cerveri, 49 Nev. 261, 244 P.
897, and upon evidence which tended to show that when the accident occurred the appellant
was not exercising ordinary care in managing his automobile.
2. The question presented here, that the law exacts from the operator of an automobile a
lesser degree of care for the protection of a guest than ordinary and reasonable care, was not
raised in the former case. This rule, which appellant seeks to have adopted, is the rule in some
jurisdictions, but the cases so holding are relatively few to the many holding the driver to a
higher degree of care.
The rule is established by the great weight of authority that the operator of an automobile
who invites another to ride with him owes his guest the duty to operate his machine with
reasonable care. Galloway v. Perkins, 198 Ala. 658, 73 So. 956; Central Copper Co. v.
Kelfisch (Ariz.), 270 P. 629; Spring v. McCabe, 53 Cal. App. 330, 200 P. 41; Warput v.
Reading Coal Co., 250 Ill. App. 450; Board v. Klusmeier, 158 Ky. 153, 164 S.W. 319, 50
L.R.A. (N.S.) 1100; Fitzjarrell v. Boyd, 123 Md. 497, 91 A. 547; Roy v. Kirn, 208 Mich. 571,
175 N.W. 475; Avery v. Thompson, 117 Me. 120, 103 A. 4, L.R.A. 1918d, 205, Ann. Cas.
1918e, 1122; Bauer v. Griess, 105 Neb. 381, 181 N.W. 156; Mackenzie v. Oakley, 94 N.J.
Law, 66, 108 A. 771; Patnode v. Foote, 153 App. Div. 494, 138 N.Y.S. 221; Stewart v. Houk,
127 Or. 589, 271 P. 998, 272 P. 893, 61 A.L.R. 1236; Tennessee C.R. Co. v. Vanhoy, 143
Tenn. 312, 226 S.W. 225. Babbit Motor Vehicles (3d ed.), 1598; Berry on Automobiles (6th
ed.), sec. 692; 42 C.J. p. 1055, note 36; Huddy on Automobiles (8th ed.), sec. 802.
52 Nev. 417, 422 (1930) Thorne Et Al. v. Lampros
We are disposed to accept the prevailing view which to us seems to sanction a juster rule
than that the owner or operator of an automobile merely owes to his guest the duty of
refraining from wanton, intentional, or willful misconduct. When * * * a person rightfully
entrusts his person to the care of the owner of a vehicle, without any voice as to how the
vehicle shall be operated, the owner owes to him the duty of exercising ordinary care for his
safety. Warput v. Reading Coal Co., supra.
The duty which the owner or operator of an automobile is charged by law with exercising
toward an invited guest is clearly and accurately expressed by the court in Perkins v.
Galloway, 194 Ala. 265, 69 So. 875, 877, L.R.A. 1916e, 1190, in the following language:
The express or implied duty of the owner and driver to the occupant of the car is to exercise
reasonable care in its operation not to unreasonably expose to danger and injury the occupant
by increasing the hazard of that method of travel. He must exercise the care and diligence
which a man of reasonable prudence, engaged in like business, would exercise for his own
protection and the protection of is family and propertya care which must be reasonably
commensurate with the nature and hazards attending this particular mode of travel.
As we hold that the exercise of ordinary and reasonable care is the measure of defendant's
duty in this case, we need not determine whether the evidence warranted the trial court in
finding him grossly negligent. It is amply sufficient to show want of ordinary care.
3. As previously stated, there was no denial of the testimony of plaintiff's witnesses. It
was admitted in the answer that Mrs. Thorne had no part in the driving or operating of the
automobile or any control over the operating or driving of the same. Mrs. Thorne testified
that the defendant invited her to ride with him in his automobile on the afternoon of
December 11, 1927, and that the accident occurred on the highway near Lawtons as they were
returning to Reno just after defendant had driven past a car traveling in the same direction.
52 Nev. 417, 423 (1930) Thorne Et Al. v. Lampros
direction. Her testimony as to the circumstances immediately surrounding the accident was
substantially that defendant drove past the other car at a speed which she judged to be about
45 miles per hour; that when he got past he lost control of his automobile and the wheels of
the machine struck the soft dirt off the pavement; that the automobile then swung back across
the pavement and turned over; that there was snow on the ground off the pavement and the
ground was soft and wet. She testified further that as they were passing she thought he was
going to hit the other car and screamed at him, Oh, Mr. Lampros, shut off the gas, but that
the car went faster all the time. Her version of the way in which the accident happened is
substantially corroborated by two witnesses who were in the other car. Victor Partipilo, one
of these witnesses, testified that defendant's automobile was going between 35 and 45 miles
an hour when it passed the automobile in which he and his family were riding. Partipilo
related the circumstances as follows:
He tried to pass us and he blew his horn and we got off the road as much as possible and
he passedhe tried to pass; just as he tried to pass he made for our car, you see, he was
within a foot of our car, coming hitting us, so the boy that was driving the car seen that he
was getting the wheel close and we got off the road on the second attempt that he made. The
road that he got on was very soft, was muddy, had been raining it looked to me like
afterwards, I got off and looked where he tried to pass, and his hind wheel sank right into the
soft dirt. And then he made for the road again, and just in about forty-five per cent angle, cut
right straight acrosslooked like he was going off on the other side of the road. He didn't do
that. Just as he got on the other side of the road he must have turned his wheel to bring the car
back on the road, and he came back on, then the next I seen he tipped upside down. * * *
After we saw his car that he start to zigzag off the road and on the road, why we got off the
road, half way off the road; our car was half off the road and half on the concrete.
52 Nev. 417, 424 (1930) Thorne Et Al. v. Lampros
concrete. * * * Well, he was coming to pass us. He made the pass, took a short turn and we
saw his car almost going to hit the front end of our car and we got off the road. Then he went
on this way, cut right in front of us, and he made this angle on the turn to get back on the
road, then his car tipped over. * * * As I understand it he zigzagged into the mud, then turned
sharply to the right, and on that turn turned over.
Q. What happened to the car when it turned over? A. Pretty well smashed up. All his
lights and fenders, and the people that were in the car, they were all on the highway there. The
car went back on its wheels again and all the passengers were on the highway.
He was asked on cross-examination if either car hit the other, and answered: No, we
didn't hit at all. I hit the fence. That is where we stopped. My wheels hit the fence and
stopped.
The witness described the circumstances in rather broken language, but the substance of
the testimony seems to be that defendant passed this car driving at a speed of between 35 and
45 miles an hour and passed within about a foot of their car; so close that they were forced off
the highway and against a fence in order to avert a crash; that defendant, on passing, cut his
car across to the right so that the wheels went off the pavement into the soft mud; that he then
turned sharply to the left across the pavement, attempted to turn it back again toward the
right, when the car turned over.
The witness is corroborated by Louis Pierotti, who was driving the car that defendant
passed. Pierotti testified that defendant was driving around 40 miles an hour when he passed;
that he passed just as they were coming out of a curve; that the road on the sides was soft and
muddy; that he thought defendant was going to bump him when he passed, and witness drove
into the fence and stopped; that when defendant passed he swerved into the middle of the
road, went off to the right side, and made a sharp turn to the left and tipped over.
52 Nev. 417, 425 (1930) Thorne Et Al. v. Lampros
The foregoing undisputed testimony is amply sufficient to have warranted the trial court in
finding that the defendant was not exercising that due care in the management of his
automobile which the situation demanded when the accident happened.
4. It is contended that plaintiff's testimony shows that Mrs. Thorne was guilty of
contributory negligence, but there is nothing in this contention. It is based upon that part of
Mrs. Throne's testimony in which she stated that before the accident defendant told her that
something had gone wrong with the steering gear and he had had the car in the garage. It is
argued that this testimony shows that she knew that the steering gear was in a defective and
dangerous condition when she accepted defendant's invitation to ride with him. We do not
think it has any tendency to prove such knowledge. Some objections are made in appellant's
briefs as to the ruling of the trial court during the progress of the trial. We find no merit in
them.
The judgment is affirmed.
____________
52 Nev. 426, 426 (1930) Mexican Dam and Ditch Co. v. District Court
MEXICAN DAM AND DITCH CO. Et. Al. v. DISTRICT COURT OF FIRST JUDICIAL
DISTRICT, in And for Ormsby County, Et Al.
No. 2867
July 1, 1930. 289 P. 393.
1. Waters and Water Courses.
Court held without jurisdiction to adjudicate relative rights of water users until after publication of
notice of newspaper in each county in which stream system was located (Stats. 1915, c. 253, sec. 4).
2. Waters and Water Courses.
State engineer may initiate on his own accord proceedings to adjudicate relative rights of
appropriators of water on particular stream system (Stats. 1913, c. 140, sec. 18).
3. Statutes.
Certain sections of statute respecting water rights may be void without rendering entire act void
(Stats. 1903, c. 4).
4. Waters and Water Courses.
Legislature had authority to enact statute respecting water rights (Stats. 1913, c. 140, sec. 21).
Under such statute, the state engineer considered certain maps and data respecting
relative rights of appropriators of water on Carson River stream system.
C.J.-CYC. REFERENCES
Statutes36 Cyc. p. 976, n. 27.
Waters40 Cyc. p. 703, n. 91; p. 730, n. 88; p. 732, n. 12.
Original proceeding in prohibition by the Mexican Dam and Ditch Company and others
against the District Court of the First Judicial District of the State of Nevada, in and for the
County of Ormsby, and another. Writ issued.
Cantwell & Springmeyer and Wm. M. Kearney, for Petitioners:
The fact appears from the so-called affidavit of compliance with jurisdictional requisites
that the state engineer did not comply with sec. 34 of the water law, as amended (Stats. 1915,
p. 380), in giving notice. No mention whatever appears of the notice having been published in
Churchill County, Nevada, where two weekly or semiweekly newspapers are regularly
published. This omission is fatally defective as to jurisdiction, as was said in the case of In
Re Hegarty Estate {Nev.),
52 Nev. 426, 427 (1930) Mexican Dam and Ditch Co. v. District Court
omission is fatally defective as to jurisdiction, as was said in the case of In Re Hegarty Estate
(Nev.), 199 P. 81, 222 P. 793.
The state engineer is a statutory officer whose duties and powers are limited and
prescribed by the statute which brings the department into existence. French v. Edwards, 20
L. Ed. 703; Ex Parte Farrell, 92 P. 787; Bandler v. Hill, 146 N.Y.S. 103; In Re Water Rights
in the Humboldt River Stream System, 246 P. 692-4.
The water law is a special statutory procedure. It seems to be settled law that a special
statutory procedure must be strictly followed to be effectual in its results. Imperial Land Co.
v. Imperial Irrigation Dist., 161 P. 115; Mackenzie v. Douglas County, 159 P. 627.
In the present case the affidavit of compliance with jurisdictional requisites shows that
the state engineer considered the Chandler findings void, yet he failed to initiate the required
statutory proceeding in the manner provided by law, but on the contrary starts with a notice to
the effect that he will use and consider certain maps and data that are in his office in arriving
at his order of determination. None of the procedure provided by sections 18, 19, 20 and 21 of
the water law were carried out. The fundamental entry of the order provided in sec. 18 to
legally initiate the proceeding, and the notices provided in sec. 19, were entirely omitted.
Nowhere in sec. 88a, relied on by defendants, is there any authority to dispense with these
fundamental and jurisdictional requisites; it provides only a means of using data obtained
otherwise than by starting at the bottom and making new surveys.
The pleadings conclusively show that no independent investigation was ever made by the
state engineer in accordance with the terms of the statute in determining the rights on the
Carson River stream system. It appears conclusively that the order of determination upon
which the defendants seek to act is based, in large part, upon so-called Chandler Findings
which were made in 1904 and 1905 under a statute which subsequently was declared
unconstitutional, and which is entirely different from the statute under which these
proceedings now are taken.
52 Nev. 426, 428 (1930) Mexican Dam and Ditch Co. v. District Court
entirely different from the statute under which these proceedings now are taken.
M.A. Diskin, Attorney-General, and Wm. J. Forman, Deputy Attorney-General, for
Defendants:
It is true that sections 18 and 19 of the water law of this state provide that an adjudication
may be instituted by petition of a water user or by an order of the state engineer. There are,
however, other means by which such an adjudication may be initiated under the present water
law. In cases where maps, surveys, evidence and data are now filed with the state engineer
from an adjudication started under one of the former water acts, under sec., 88a of the water
law it is provided that the state engineer may give notice that he intends to consider these
maps, data and evidence and make a final order of determination based upon such evidence
and data and file it with the court. Under sec. 88b he may simply file with the court the data
and evidence presented under the former water act.
Sec. 88a has been held constitutional by the federal court in the case of Bergman v.
Kearney, 241 Fed. 884.
It will be noted that the order by the state engineer, in the ordinary adjudication suit, under
sec. 88a is taken care of by a notice to the parties that he will consider the evidence and data
on file in his office. Both are notices to the water user that the proceeding is to be considered
by the state engineer, and one is as effectual as the other in notifying the parties of such
proceeding.
OPINION
By the Court, Coleman, J.:
This is an original proceeding in prohibition to restrain the respondent court from
adjudicating the relative rights of appropriators of water upon the Carson River stream
system.
52 Nev. 426, 429 (1930) Mexican Dam and Ditch Co. v. District Court
The grounds relied upon to sustain the contention that the respondent is without
jurisdiction are: (1) That no petition was ever filed with the state engineer by the water
appropriators of the stream system requesting proceedings be instituted by that officer to have
the water rights of such stream system determined. (2) In brief, that the state engineer did not
make observations, maps, gather data, and otherwise comply with the law, but relied upon
data obtained by A.E. Chandler, who acted as and gathered such information pursuant to a
void law. (3) That the state engineer, on April 10, 1920, mailed notice to various parties of his
intention to determine the rights of the appropriators of water upon said stream system, but
that all of the then and present owners of lands and water rights along and upon said stream
system were not so notified. (4) That the said state engineer did not include the entire Carson
River stream system within the State of Nevada in his order of determination, and did not
determine all of the existing rights in said stream system. And (5) that the United States of
America, on May 11, 1925, and long prior to the institution of this proceeding in the
respondent court, initiated proceedings in the District Court of the United States for the
District of Nevada against the petitioners and all other users of and claimants to the waters of
the Carson River stream system, to adjudicate, establish, and fix the relative rights of all
parties and persons in and to the waters of said Carson River and its tributaries.
Upon the filing and reading of the petition, it was ordered that an alternative writ issue
herein. In due time the respondent appeared, by the Attorney-General, and filed his return,
wherein it is set forth that the Carson River has it origin in Alpine County, Cal., and flows
through Douglas, Ormsby, and Lyon Counties, Nevada, and into Churchill County, Nevada,
where its waters which are not used for irrigation disappear in the Carson Sink. It then sets
forth the various steps taken by various state engineers preliminary to an adjudication of the
relative rights of the water users along said stream system, alleging, among other things,
that due notice had been given the water users thereon and that the state engineer had
made an order of determination of such relative rights and caused a copy thereof to be
filed with the county clerk of Ormsby County, Nevada, who is ex officio clerk of the
district court of the First judicial district court of Nevada, in and for Ormsby County.
52 Nev. 426, 430 (1930) Mexican Dam and Ditch Co. v. District Court
users along said stream system, alleging, among other things, that due notice had been given
the water users thereon and that the state engineer had made an order of determination of such
relative rights and caused a copy thereof to be filed with the county clerk of Ormsby County,
Nevada, who is ex officio clerk of the district court of the First judicial district court of
Nevada, in and for Ormsby County. It is further alleged that thereafter Glenn F. Engle, deputy
state engineer, filed in said cause in said clerk's office an affidavit of jurisdictional requisites,
a copy of which, marked Exhibit A, is made a part of such return and filed therewith.
Other matters are set forth in the return, which it is not necessary to here refer to.
1. It is clear that the writ must issue as prayed. Section 34 of the water law, as amended
(Stats. 1915, c. 253, p. 380), points out the procedure necessary to the obtaining of
jurisdiction of the parties by the district court, subsequent to the filing of the Order of
Determination with the county clerk. One of the necessary steps is the publication in some
newspaper of general circulation, published in each county in which the stream system or any
part thereof is located. It does not appear that this was done, in that no publication was ever
had in such a paper published in Churchill County. Until this is done the district court cannot
acquire jurisdiction to hear the matter and to enter a decree adjudicating the relative rights of
all of the water users on the Carson River stream system.
2. There is no merit in the contention that no petition was presented to the state engineer
signed by one or more water users, requesting that the rights of the users of the stream system
be determined. The state engineer initiated the proceeding on his own accord, as he is
expressly authorized by section 18, Stats. 1913, c. 140, to do.
Nor is there merit in the contention that the state engineer used maps and data procured by
State Engineer Chandler pursuant to the Act of 1903 (Stats. 1903, c. 4, p. 24).
52 Nev. 426, 431 (1930) Mexican Dam and Ditch Co. v. District Court
It is said that this act was declared unconstitutional and void by this court. We have not
been cited to the case so holding, and know of none.
3. The act mentioned was expressly repealed by the act of 1907 (Stats. 1907, c. 18, p. 30),
but the maps were made by the state engineer pursuant to its authority, prior to its repeal.
Whether certain sections of the act were void under authority of Ormsby County v. Kearney,
37 Nev. 314, 142 P. 803, we need not determine, for certain sections might have been void
and others be valid.
4. However, the state engineer considered the maps and data in question pursuant to
statute (Stats. 1913, c. 140, sec. 21) which the legislature had authority to enact. 12 C.J. 982;
Cooley's Const. Lim. (6th ed.) 450.
In view of the conclusion we have reached, we do not deem it necessary to consider the
other points suggested.
In view of the failure to publish notice as pointed out, it is ordered that the writ issue as
prayed.
____________
52 Nev. 432, 432 (1930) Bailey Et Al. v. Gates
BAILEY Et Al. v. GATES
No. 2869
August 5, 1930. 290 P. 411.
1. Wills.
No valid order for probate of will can be entered without giving notice of hearing to heirs (Rev. Laws,
secs. 5860, 5866).
Revised Laws, sec. 5860, provides, inter alia, that a petition for probate by the
executor or executrix should set forth the facts necessary to give the court jurisdiction
and, when known, the names, ages and residences of the heirs and devisees of
deceased. Section 5866 provides for the publication of notice by the clerk of the filing
of the petition and the object thereof, and designating a time for proving the will.
2. Pleading.
Allegation in petition for revocation of probate, stating that no notice was given, held insufficient
because conclusion (Rev. Laws, secs. 5860, 5866).
The complaint averred, inter alia, that no notice whatsoever was given to plaintiffs,
either actual, constructive or otherwise, of said hearing [on the petition to probate said
will] and that it was not until long after the admission of the will to probate that
plaintiffs, * * * heard of said proceedings.
3. Wills.
Petition for probate must state names, etc., of deceased's heirs and devisees only if known to
petitioner (Rev. Laws, sec. 5860).
Appeal from Second Judicial District Court, Washoe County, Thomas F. Moran, Judge.
Proceeding by Helen Bailey and others against May Frances Gates, Executrix of the Estate
of Alexander Pollock Deceased, and May Frances Gates, Devisee. Judgment for the
defendant, and plaintiffs appeal. Affirmed.
Frame & Raffetto, for Appellants:
Inasmuch as the names of the appellants were not included anywhere in the record of the
proceedings and no reference whatsoever made to them by citation, notice or otherwise, and
not being named as absent heirs and an attorney appointed by the court to represent them,
there was no semblance of notice of any kind given to appellants such as is contemplated
by law.
52 Nev. 432, 433 (1930) Bailey Et Al. v. Gates
represent them, there was no semblance of notice of any kind given to appellants such as is
contemplated by law. The right of inheritance, it must be conceded, is a right in the nature of
a property right, and such an immunity as falls within the protection of the Fourteenth
Amendment of the Constitution of the United States and the provisions of the constitution of
this state, guaranteeing to every citizen that no person shall be deprived of life, liberty or
property without due process of law. It is said that every person holds his rights, immunities
and property under this protection. As we understand, the substance of this right is that the
proceeding must be in accordance with the procedure established in the jurisdiction, which
must, in the very nature of things, afford a day in court, an opportunity to be heard and a
hearing before judgment, which implies the right to notice thereof. Perhaps the best
exposition of this subject is that contained in the Dartmouth College case, and which has
generally been adopted by text-writers and judges. It will be seen that these principles were
recognized as early as 1728. See Due Process of Law by Rodney L. Mott, pages 111-113.
Attention is called to section 5899, Rev. Laws of Nevada, 1912. Among other things
provided for, the petition shall state the names of the heirs, if known, and providing further
that, upon the hearing, proof may supply the omission of the declaration of certain
jurisdictional facts. It is apparent that the above section of the statute contemplated that notice
be given of the proceedings to all heirs who were known, and also to any that might be
unknown, by reference to residence, description, etc. Sections 5009 and 5030, Rev. Laws,
provide how unknown heirs shall be described and how notice shall be given. It cannot be
denied, unless the requirements of due process of law are nullified and held for naught, that
notice in some form likely to give notice to the parties must be given, and that the same lies at
the very foundation of any legal proceeding.
52 Nev. 432, 434 (1930) Bailey Et Al. v. Gates
For the reasons pointed out, we respectfully submit that it was error for the trial court to
sustain defendant's demurrer, and likewise error to render judgment on said order in favor of
defendants.
Melvin E. Jepson, for Respondent:
Appellants' statement that no attorney was appointed by the court to represent them in the
probate proceedings is erroneous, although the record of that appointment is not before this
tribunal.
In the Dartmouth College case, adverted to by appellants to sustain their argument, it
appears that the question of notice was not before the court, and that no decision with respect
thereto was made.
It is contended in counsel's argument that section 5899, Rev. Laws, required that the
petition should state the names of the heirs, if known. It is not averred in the complaint that
the appellants or their whereabouts were known to the respondent, the court of probate or any
other person or persons, and it must be presumed that if such knowledge were a fact,
averment to that effect would be found in the complaint herein. Mr. Cooley has defined a
presumption to be that conclusion of law which credits the ordinary, the probable, that which
is likely to have happened, or occurred, and when applied to human conduct, assumes that
all persons do what is right and proper, until the contrary be shown; and as pertaining to
official acts and conduct of officers relating thereto, is heightened to a degree that only a
strong accusation, supported by convincing proof to the contrary, will prevail. This applies
with all its force, especially in the absence of any averment to the contrary, to the question of
notice as mentioned in the complaint and appellants' brief. It will be noted that counsel does
not charge that notice was not given, nor does he charge that the notice given did not comply
in every respect with the provisions of our statute (sec. 5866, Rev. Laws) pertaining thereto.
Since there is this special provision for summoning parties in probate proceedings, sections
5009 and 5030 of Rev. laws, having reference to civil causes wherein plaintiffs and
defendants are parties, are forceless.
52 Nev. 432, 435 (1930) Bailey Et Al. v. Gates
reference to civil causes wherein plaintiffs and defendants are parties, are forceless.
With reference to the omission of the appellants' names from the petition, we cite the
following cases: Nicholson v. Leatham (Cal.), 153 P. 965; Knowles v. Kasiska (Ida.), 268 P.
3; Krohn v. Hirsch (Wash.), 142 P. 647; Murray v. Superior Court (Cal.), 278 P. 1033.
It is stated in the complaint that no notice whatsoever was given plaintiffs, either actual,
constructive or otherwise. This is a conclusion, and falls short of an averment that the clerk
did not publish the notice, as enjoined upon him by sec. 5866, Rev. Laws. There is no
averment of fraud on the part of anyone with reference to the giving of notice, or, for that
matter, with the probate of the will. The fraud averred being that in procuring the will to be
made. It must be presumed that that method provided by statute for probate courts acquiring
jurisdiction of persons was followed and that all the duties relative thereto were performed,
since there is no averment in the complaint to the contrary. Bancroft's Probate Practice, sec.
40.
OPINION
By the Court, Coleman, J.:
This is a proceeding to set aside an order admitting a will to probate. The complaint
alleges that Alexander Pollock died in Washoe County, Nevada, on September 18, 1925,
leaving as heirs at law certain brothers and sisters and the plaintiffs, who are children of
William Pollock, a deceased brother; that Alexander Pollock left no wife, children, mother or
father surviving him; that deceased left an estate of the approximate value of $80,000; that he
left a purported will in which he bequeathed his entire estate to May Frances Gates; that in
due time a petition for the admission of said will to probate was filed in the proper court, but
that said petition did not state the names, ages and places of residence of these plaintiffs.
52 Nev. 432, 436 (1930) Bailey Et Al. v. Gates
of residence of these plaintiffs. The complaint further avers that no notice whatsoever was
given to plaintiffs, either actual, constructive or otherwise, of said hearing (meaning the
hearing on the petition to probate said will) and that it was not until long after the admission
of said will to probate that plaintiffs, who were at the time nonresidents of the State of
Nevada, and residents of the State of Massachusetts, heard of said proceedings. The
complaint also avers that at the time of making of said so-called will by the deceased he was
of unsound mind and that the execution of the same was the result of undue influence. The
complaint contains certain other allegations not necessary here to mention.
To the said complaint a general demurrer was filed on the grounds that the same does not
state sufficient facts to constitute a cause of action. This demurrer was sustained and, the
plaintiffs electing not to amend, judgment was entered in favor of the defendants, from which
an appeal was taken.
Two points are urged as grounds for reversal: First, that the petition for the probate of the
will of the deceased did not state the names, ages and residences of the plaintiffs; and,
second, that the complaint herein alleges that no notice was given to plaintiffs of the hearing
upon said petition, both being urged as jurisdictional defects in said probate proceedings.
1. Considering the last point first, it is clear that no valid order can be entered for the
probate of a will without the giving of notice to the heirs. In Re Hegarty's Estate, 45 Nev.
145, 199 P. 81.
Section 5860, Rev. Laws, relative to the probate of wills, provides, inter alia, that any
person named as executor or executrix in a will, who accepts the trust, may present to the
district court a petition for the probating thereof, setting forth in such petition the facts
necessary to give the court jurisdiction, and, when known, the names, ages and residence of
the heirs and devisees of the deceased. Section 5866 provides that, when such petition is filed
with the clerk of the court, such clerk shall publish 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.
52 Nev. 432, 437 (1930) Bailey Et Al. v. Gates
clerk of the court, such clerk shall publish 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.
2. Is there sufficient allegation in the complaint of the failure to give notice? We have
quoted the allegation of the complaint which is the basis of the contention that no notice was
given.
We think there is an utter failure to allege that no notice was given. The so-called
allegation is a naked conclusion. As said in 14 Ency. Pl. & Pr. at page 1071: In averring
notice, the usual rule prevails that facts, and not conclusions of law, should be pleaded. A
general averment that the defendant had notice is not sufficient.
The same reasoning applies to a general averment that a party was not given notice.
In Klovdahl v. Town of Springfield (Ore.), 158 P. 668, wherein the court had under
consideration the allegation that notice was not given as required by the town charter, citing
many authorities to support its conclusion, it said: Good pleading requires that, instead of
saying that notice was not given as required by the charter of said town,' the facts relating to
that matter be averred, leaving the court to draw the legal conclusion of whether or not the
requirements of the charter have been fulfilled.
See, also, McDaniel v. Thomas, 162 Ga. 592, 133 S.E. 624; Stephenson v. Supreme
Council, etc., 127 Fed. 379; Peo. v. Banks, 272 Ill. 502, 112 N.E. 269; Rapelye v. Bailey
(Conn.), 8 Am. Dec. 199; Lawson et al. v. Townes, 2 Ala. 373; Heitkemper v. Schmeer
(Ore.), 275 P. 55.
3. As to the contention that the petition praying for the probate of the will did not state the
names, ages and residence of the heirs and devisees of the deceased, we need only say that the
statute requires this to be done when this information is known to the petitioner.
52 Nev. 432, 438 (1930) Bailey Et Al. v. Gates
this to be done when this information is known to the petitioner. So far as appears, the
petition states the names, ages and residence of all known heirs.
Other points are made not suggested by the record, which we think it unnecessary to
consider.
For the reasons given the judgment is affirmed.
Ducker, C.J.: I concur.
Sanders, J. (concurring):
This is not a suit to contest a will after probate, but one to revoke the probate of a will
upon the complaint of certain nonresident heirs of the testator, upon the ground that the court
was without jurisdiction of the parties plaintiff, in that the petition filed for the probate of the
will in question did not expressly mention the plaintiffs as known or unknown heirs; that
plaintiffs had no notice, actual, constructive or otherwise of the probate proceedings; that they
did not learn of the decree admitting the will to probate until a long time thereafter, they
being nonresidents of Nevada and residents of the State of Massachusetts. The complaint
further alleges that the plaintiffs being without notice and situated as they were, they were
deprived of their property without due process of law. The complaint also alleges that the
plaintiffs held valid and subsistent objections to the admission of the will to probate, in that at
the time of its execution the testator, Alexander Pollock, was of unsound mind and incapable
of making testamentary disposition of his property; that May Frances Gates, the sole
beneficiary of the will well knowing the mental condition of the testator, fraudulently took
advantage thereof, and induced and compelled him to execute the purported will, and that the
will was made and executed under her domination and direction.
The probate of a will by a court having jurisdiction thereof is considered as conclusive as
to its due execution and validity, and is also conclusive that the testator was of sound and
disposing mind when he executed the will, and was not acting under duress, menace, fraud or
undue influence.
52 Nev. 432, 439 (1930) Bailey Et Al. v. Gates
or undue influence. Tracy v. Muir, 151 Cal. 363, 90 P. 832, 121 Am. St. Rep. 117; State v.
McGlynn, 20 Cal. 233, 81 Am. Dec. 118; Woerner Am. Law of Administration (3d ed.), 767,
28 R.C.L. 377. It is conceded, however, by these authorities that the power to revoke exists in
the court itself in all cases where the court acted without jurisdiction, without notice where
the statute requires notice, or in disregard of some statutory requirement so that the decree or
judgment rendered is void.
It is contended in support of the allegations of the complaint that the failure of the petition
for the probate of the will to give the names and residence of the heirs of the testator deprived
the court of jurisdiction to admit the will to probate. Sec. 5860, Revised Laws. This
contention is untenable. The jurisdiction of the court to admit a will to probate cannot
depend upon either the petitioner acting in good faith or bad faith in omitting the names of the
heirs from the petition. Nicholson v. Leathem, 28 Cal. App. 597, 153 P. 965, 155 P. 98. This
decision is predicated upon a statute similar to that of ours relating to a petition for probate.
Sec. 5860, Revised Laws.
Though the complaint alleges that plaintiffs had no notice, actual, constructive or
otherwise, of the probate proceedings, it is admitted in argument that notice for the hearing of
the petition was published by the clerk of the court, as provided in section 5866, Revised
Laws, quoted in the opinion of Justice Coleman.
There seems to be no doubt that when the notice of the presentation for probate is made by
publication, and conforms to the requirements of the statute, no other or further notice is
required to give the court jurisdiction for the purpose. In Re Kelly (Neb.), 172 N.W. 758, 175
N.W. 653; Re Sieker, 89 Neb. 216, 131 N.W. 204, 35 L.R.A. (N.S.) 1058, and cases cited in
note entitled Right to probate will on service of notice by publication.
The contention that the parties plaintiff were deprived of their property without due
process of law is also untenable.
52 Nev. 432, 440 (1930) Bailey Et Al. v. Gates
untenable. A notice of application for the probate of a will, given by publication for a period
of ten days, as provided by statute, does not operate, as to a nonresident heir having no actual
notice and so situated as not to be able to receive the notice in time to appear and contest the
probate on the original hearing, to deprive him of his property without due process of law.
Tracy v. Muir, supra.
I am of the opinion that the complaint herein fails to state a cause of action for the
revocation of the probate of the will of the testator, Alexander Pollock, deceased.
____________
52 Nev. 440, 440 (1930) Walker Brothers Bankers v. Janney
WALKER BROTHERS BANKERS v. JANNEY
No. 2882
August 5, 1930. 290 P. 413.
1. Bills and Notes.
Burden was on maker of note to establish defense of failure of consideration by clear preponderance
of evidence.
2. Bills and Notes.
Evidence, although conflicting, held insufficient to sustain burden on maker of establishing
contemporaneous oral agreement as consideration for note, as regards defense of failure of consideration.
Defendant pleaded failure of consideration. He was indorser of a corporation's note
and claimed that when he executed his own note in lieu of the corporation's note he
entered into a contemporaneous oral agreement with plaintiff that plaintiff would
cooperate with him in financing a certain mining corporation. Defendant's testimony
was vague and uncertain as to the terms of this agreement and was flatly contradicted
by plaintiff's witness and by other corroborating circumstances.
Appeal from Tenth Judicial District Court, Lincoln County, E.P. Carville, Judge presiding.
Suit by Walker Brothers Bankers, a corporation, against John Janney, in which defendant
pleaded a counterclaim. Verdict and judgment for defendant, and from the verdict and
judgment and an order denying plaintiff's motion for a new trial plaintiff appeals. Reversed.
52 Nev. 440, 441 (1930) Walker Brothers Bankers v. Janney
A.L. Scott and James Ingebretsen, for Appellant:
The defendant set up as a defense a claimed contemporaneous oral agreement which he
alleged to be the sole consideration for the execution and delivery of the note. It may be
admitted that evidence of such contemporaneous oral agreement is admissible as against
parties not in due course to show what the consideration was or that the instrument was
delivered subject to a condition. Martineau v. Hansen, 155 P. 432.
But, of course, under the negotiable instruments law every negotiable instrument is
deemed prima facie to have been issued and given for a valuable consideration; and every
person whose signature appears thereon is deemed prima facie to have become a party thereto
for value, and this value in law is only required to be such consideration as is sufficient to
support a simple contract. Any benefit, profit or advantage to the promisor, or any loss,
detriment or inconvenience to the promisee is sufficient to support the agreement contained in
such instrument. Miller v. Swanton, 140 Cal. 249, 73 P. 698; Placer County Bank v. Freeman,
58 P. 388. See, also, 8 C.J. sec. 347, Bills and Notes, and the following sections.
It is admitted by Janney in this case that the two prior notes upon which his signature
occurred and upon which he was liable were marked paid and returned to him, if not at the
time of the signing of the note in suit, then a short time thereafter. Certainly there was a
benefit here to the defendant, for it is admitted in the evidence that an extension of time was
given him to pay the note in suit, and whereas the prior notes bore interest at the rate of 7%
per annum, on the note in question it was reduced to 4%. Certainly there was a detriment to
the plaintiff, for it not only lost its legal right to the additional amount of interest, but gave an
extension of time for a period of one year.
Considerable time was consumed and considerable effort made by Mr. Janney's attorney to
establish the fact by the evidence that Mr. Janney personally received no money as a result
of the execution of the note in suit, but certainly this is immaterial.
52 Nev. 440, 442 (1930) Walker Brothers Bankers v. Janney
received no money as a result of the execution of the note in suit, but certainly this is
immaterial. It is not necessary that the consideration should pass to the promisor or that he
should be benefited thereby. Harris v. Harris, 80 Ill. App. 310, 54 N.E. 180; Polhemus v.
Prudential Realty Corporation, 67 Atl. 303; Dixy v. Perry Exchange Bank, 92 P. 150; Wright
v. McKitrick, 43 P. 977.
A debt already incurred for which there is money due by the contracting party is sufficient
consideration (Emery v. Lowe, 73 P. 981), and it is expressly provided by the negotiable
instruments law that an antecedent or preexisting debt constitutes value and is deemed such
whether the instrument is payable on demand or at a future time. The existing debt may
already be represented by the maker's own bill or note, and the surrender of such instrument
will be a good consideration for the new obligation, and this is so although the old note is not
surrendered. 8 C.J., Bills and Notes, sec. 352, et seq.
The consideration is equally good where the maker's liability on the original paper was in a
different capacity, such as an endorsement or comaker, or surety or acceptor. Stanley v.
McElrath, 25 P. 16, 10 L.R.A. 545.
This is exactly the situation which we have before us. It is uncontradicted throughout the
evidence that John Janney's signature appeared upon the prior notes in an amount which, with
interest, was exactly equal to the amount in which the new note was drawn. He admits that
the prior notes were later returned to him. It is clear that if the surrender and/or cancellation
of the prior notes formed any portion of the consideration for the execution of the new one,
defendant is liable upon the note in suit.
The defendant says that this is not the case; that the sole consideration for the execution of
the note in suit was the promise of one E.O. Howard, an officer of the plaintiff, that the
plaintiff would cooperate with him in financing and promoting the development of the Pioche
Mines Company. Of course, such an agreement, if made by Mr.
52 Nev. 440, 443 (1930) Walker Brothers Bankers v. Janney
if made by Mr. Howard as alleged, would be void so far as the plaintiff is concerned, because
it is beyond the corporate capacity and is ultra vires of the bank. It is admitted there was never
any effort made on the part of the bank to recognize or to attempt to comply with any such a
pretended agreement.
Consideration for the note being presumed, the burden was cast upon Mr. Janney to
disprove that consideration; in other words, to establish his claimed contemporaneous oral
contract by the greater weight of the evidence and to establish it with that definiteness and
precision of terms such as is required for the existence of any contract. There must have been
an offer made with the intention that it should create legal relations, definite and determinate
in its terms, which must have constituted the sole consideration for the note, and that offer
must have been unconditionally accepted.
In order that an offer may be made binding by acceptance, it must be made in
contemplation of legal consequences. A mere statement of an intention, made in the course of
a conversation, will not constitute a binding promise though acted upon by the party to whom
it is made. Anson on Contracts, p. 46.
A declaration of fact which does not clearly imply a promise cannot be the basis of a
contract even if the adversary party has assented thereto or has acted thereon. Page on
Contracts, vol. 1, p. 95.
Statements which show a desire for the success of the party to whom they are made, in
transactions upon which he is about to enter, do not amount to offers in consideration of his
entering upon such transaction. Murphy v. City of Yonkers, 213 N.Y. 124, and annotation in
L.R.A. 1915f, 595. This is exactly the case at bar. It is clear from the evidence that all Mr.
Howard did, if anything, was to express a hope or extend an offer of good will to the
defendant.
F.E. Wadsworth, for Respondent:
There were certain facts tending to corroborate the defendant's testimony and which
presented unusual features, evidently not explained by plaintiff to the satisfaction of the
jury, as follows:
52 Nev. 440, 444 (1930) Walker Brothers Bankers v. Janney
features, evidently not explained by plaintiff to the satisfaction of the jury, as follows:
1. The note given in the circumstances testified to was given bearing 4% interest, instead
of the usual rate of interest.
2. The note on maturity was not paid, was not sued on, and no demand for payment was
made for over five years after the maturity of the note.
3. No demand for payment was every proved to have been made between 1920 and 1926.
4. The agreement given by the bank according to the testimony of the defendant was
admittedly breached by the bank, if made, so as to avoid the testimony of certain witnesses in
the form of depositions testifying as to the bank's actions in violation of its agreement to
cooperate, thus confronting the jury with the inconsistency between the depositions sought to
be excluded and the breach of the agreement to cooperate, admitted by plaintiff, on the one
hand, and the friendship and kindly feeling testified to on the other hand, as the explanation
offered by plaintiff of the reason for the 4% rate of interest on the note and the delay in
bringing the suit.
5. Evasive and contradictory statements were made in plaintiff's testimony, tending to
show defect in memory, and otherwise unsatisfactory testimony was offered by plaintiff.
There was a direct conflict in the testimony, between the statement of the defendant and
the statement of the plaintiff as to the consideration for the note. According to the plaintiff the
new note was solely given in consideration of the old notes, and according to the defendant
the old notes were no part of the consideration, but the sole reason for giving the note sued
on, as a means of working out the payment of the old notes, was the agreement of the bank to
cooperate with the defendant in his efforts to finance the Pioche Mines Company.
However, plaintiff has given substantial corroboration to defendant's contention, in the
following respects: 1. Mr. Howard admitted that the prior notes were not in a satisfactory
bankable condition and that he wished defendant to put them in a satisfactory bankable
condition by giving his own personal note.
52 Nev. 440, 445 (1930) Walker Brothers Bankers v. Janney
1. Mr. Howard admitted that the prior notes were not in a satisfactory bankable condition
and that he wished defendant to put them in a satisfactory bankable condition by giving his
own personal note.
2. Mr. Howard admitted that satisfactory bankable condition meant the execution of the
note by defendant alone.
3. Mr. Howard never contradicted defendant's statement that he told Mr. Howard, at the
time of the conversation which led up to the execution of the note, that he never received any
of the proceeds of the old notes, and that the moneys had been advanced to the makers before
he had endorsed them. And this is especially significant since Mr. Howard denied other
statements made at this conference, for example, that he promised to cooperate as claimed by
defendant.
And in these circumstances defendant asked for an agreement to cooperate, as a condition
precedent to and consideration for his personally assuming the whole obligation to pay. There
was no question of the defendant seeking an extension of time, but, on the contrary, plaintiff
by its own statement and implied admissions was anxious to fix a prior doubtful liability on a
responsible party, and in exchange therefor was willing to extend defendant the bank's good
will in enabling defendant to put himself in position to pay.
As tending somewhat to contradict Mr. Howard's statement that the note sued on was
merely a renewal of previous notes and that there was no collateral agreement, there was an
endorsement written in Mr. Howard's handwriting on the back of the note: Renewed this
11th day of May, 1920. E.O. Howard. This endorsement was not entered until May 11,
whereas the note sued on was given on April 19. If this note had been a renewal of the old
note the renewal would have been written on April 19, in the ordinary course of events. A
self-serving declaration coming at a substantially later date had perhaps more a tendency to
contradict than to substantiate the theory of a simple renewal note.
52 Nev. 440, 446 (1930) Walker Brothers Bankers v. Janney
On the other hand the answer of Mr. Janney, the defendant, to the direct question: Was
the renewal at least part of the consideration for the new note? was most definite when he
answered: Not at all.
The jury in its verdict had to accept the statement of the plaintiff, through the testimony of
E.O. Howard, its president, or else it had to accept the testimony of Mr. Janney. The jury
resolved this question by a verdict in favor of the defendant, and later a motion to set aside
the verdict as contrary to the evidence was denied by the trial court. When there is a conflict
of evidence the court will not disturb a verdict of a jury nor a finding by a judge where there
is substantial evidence to sustain it. Meadow Valley v. Dodds, 6 Nev. 216; Anderson v.
Feutsch, 31 Nev. 501; Wiggins v. Pradere, 32 Nev. 183; Phillpotts v. Blasdel, 8 Nev. 61;
Winter v. Fulstone, 20 Nev. 260; Longworth v. Coleman, 18 Nev. 440; Simpson v. Williams,
18 Nev. 432; Sacalaris v. E. & P.R. Co., 18 Nev. 155.
OPINION
By the Court, Ducker, C.J.:
This is an action on a promissory note which reads as follows:
$4751.00. Salt Lake City, Utah,
April 19, 1920.
One year after date, for value received, I promise to pay to Walker Brothers Bankers, at
Salt Lake City, Utah, or order, Forty Seven Hundred Fifty One Dollars with interest at the rate
of four (4) per cent per annum, from date until paid, both before and after judgment, interest
payable monthly. And I hereby agree, that in case this note is collected after maturity by an
attorney, either with or without suit, to pay Five Hundred Dollars attorney's fee.
[Signed] John Janney.
The parties will be designated as in the lower court. In his answer defendant admits the
execution of the note, but alleges that there was a failure of consideration.
52 Nev. 440, 447 (1930) Walker Brothers Bankers v. Janney
note, but alleges that there was a failure of consideration. In this connection a
contemporaneous oral agreement is set up to the following effect: Prior to the date of the note
certain Nevada corporations were indebted to plaintiff in the sum of $4,751. These
corporations were then insolvent and unable to meet said obligation. One E.O. Howard, as
cashier and agent of plaintiff and in its behalf, agreed with defendant that if he would execute
and deliver said note in lieu of said indebtedness of said corporation, in consideration thereof
plaintiff would cooperate with the defendant in financing the Pioche Mines Company, a
corporation. It is alleged in the answer that defendant relied upon the promise and agreement
of the plaintiff and would not otherwise have executed the note. Matters are set out in the
answer to show a violation by plaintiff of the alleged agreement.
A counterclaim was set up, but as no evidence was introduced in support thereof it needs
no further mention.
The agreement pleaded in the answer was denied in plaintiff's reply and was alleged
therein to be ultra vires of said plaintiff bank, against public policy and void.
The case was tried before a jury which returned a verdict for defendant. Plaintiff's motion
for a new trial was denied. This appeal is taken from an order denying its motion for a new
trial and from the verdict and judgment.
1, 2. There is but one question to be determined. Is the evidence sufficient to establish the
contemporaneous agreement claimed by defendant? We are of the opinion that it is not. The
lower court concluded that the evidence on this issue was conflicting, and for this reason
denied the motion for a new trial. The defendant takes the same view. While the evidence is
conflicting as to the agreement asserted, it is not of that substantial kind to foreclose the
reversal of the judgment for insufficiency of evidence. Taken in its entirety the evidence in
this case brings it squarely within the facts and ruling of Smith v. Goodin, 46 Nev. 229
52 Nev. 440, 448 (1930) Walker Brothers Bankers v. Janney
within the facts and ruling of Smith v. Goodin, 46 Nev. 229, wherein we reversed the
judgment, notwithstanding there was evidence to support it. In Smith v. Goodin, plaintiff's
judgment recovered in the lower court rested on the testimony of one witness, which was
flatly contradicted by the testimony of the defendant and which latter testimony was so
corroborated by other circumstances in evidence as to make it clear that on the whole
evidence a wrong conclusion had been reached. This is the situation here. The verdict of the
jury rests upon the testimony of the defendant Janney. He testified to the making of the
agreement with one E.O. Howard, vice president of the plaintiff bank. The latter testified that
no such agreement was entered into, and his testimony is borne out by the circumstances to
such an extent as to indicate clearly that the verdict finds no reasonable basis in the evidence.
On the trial of the case plaintiff introduced in evidence the note sued on; proved that it was
the holder thereof; that the note was unpaid, and rested its case. Whereupon the defendant,
John Janney, took the stand as a witness in his own behalf. He admitted the execution of the
note, and his version of the transaction which resulted in the agreement claimed is
substantially that said E.O. Howard, then vice president of the plaintiff bank, met him on the
street in Salt Lake City and requested him to come to the bank and see him, which he did on
April 19, 1920. Howard produced two notes which he had on his desk, one of which was
made by the Bullion Transportation Company and endorsed by the defendant, and one P.B.
Locker, as guarantors. The other note was signed by defendant and P.B. Locker. There was no
mention made by Howard of the latter note. Howard had the former note right in front of him
and said: John, what are you going to do about the bull con note? Defendant testified that
he made this reply to him: I said to himMr. Howard, I can see how those notes can be
made good. I am a big holder of stock of the Pioche Mines Company and if I can finance the
Pioche Mines Companyput that company on its feetthe effect of those two notes would
be very small.
52 Nev. 440, 449 (1930) Walker Brothers Bankers v. Janney
company on its feetthe effect of those two notes would be very small. If you will
cooperateyour bankin financing that company, I am ready right nowready to finance
the company and I will personally assume all those obligations,' and Mr. Howard said to me:
Will you make your personal note?' and I said, Yes.' Then he said, all rightmake it a four
per cent note.' So I in that conversation committed myself to go to work and finance the
Pioche Mines Companyputting this business on its feet. I said, Then I will be in a position
to assume those obligations,' and I agreed to do so. * * * I said to Mr. Howard: Mr. Howard,
you know that I didn't get any money on either note'personally I got no money and I
reminded him further of the fact that the bank had loaned the money before I signed the note.
The foregoing is all the testimony there is having any tendency to establish an agreement.
It will be observed that it is most indefinite. No specific terms or conditions are stated. The
most that the testimony tends to establish is that in consideration of the execution of the note
by defendant, plaintiff was to cooperate in financing the Pioche Mines Company. How it was
to cooperate, either by furnishing money or otherwise, does not appear.
Mr. E.O. Howard testified for plaintiff. In regard to the transaction with the defendant in
the office of the bank at Salt Lake City, he denied that he was asked by the defendant to
cooperate in financing the Pioche Mines Company, or that he agreed to do so. He testified
that at the time of this meeting and conversation, defendant was indebted to the bank; that
this indebtedness was evidenced by two notes long past due, one of which was given for
$3,500 and the other for $536.64; that the former had been given in lieu of two notes for
money advanced to two companies in which defendant was interested, the Bullion
Transportation Company and the Nevada Phoenix Mining Company; that the money was
loaned to these companies on the endorsement of one P.B. Locker and defendant; that when
the notes became due and the companies were unable to pay them, the bank took in
settlement the note for $3,500 signed by P.B. Locker and defendant; that the other note
which defendant had given to the bank for $536.64 was for accrued interest; that these
two notes were on his desk before him at the time of his conversation with defendant.
52 Nev. 440, 450 (1930) Walker Brothers Bankers v. Janney
that when the notes became due and the companies were unable to pay them, the bank took in
settlement the note for $3,500 signed by P.B. Locker and defendant; that the other note which
defendant had given to the bank for $536.64 was for accrued interest; that these two notes
were on his desk before him at the time of his conversation with defendant. Howard testified
also that he discussed the indebtedness with defendant and asked him if he could take care of
it. His version of what was said and done is that defendant said: I will pay the note but I
must have time.' I replied that we would be glad to give him a reasonable time, that I knew he
was engaged in operations that would take time to work out, but that I wanted to get the note
in proper bankable shape. I voluntarily made a reduction in the accumulated interest and told
him I would give him a year's time, which I thought would be sufficient at least to make a
partial payment, which he agreed to do. I told him I would take his note at a very low rate of
interest, namely, 4 per cent, and give him a year's time to pay it. That was the substance of the
conversation. It was agreed tothe note was prepared, he executed the note, and the note is
now Exhibit A' here and is the matter at issue.
Howard also testified that the amount of the note sued on was arrived at by taking the
$3,500 note and the note of $536.64, together with accrued interest on the former note up to
the date of April 20, 1920. This testimony shows a valid consideration for the note in
question. In this respect it is undisputed, for the defendant does not deny his liability as a
guarantor on the former notes. He admitted that after the transaction at the bank that the note
for $3,500 was returned to him. This note is in evidence and across its face, signed by E.O.
Howard, president, is the following endorsement: Renewal of this note accepted this date,
May 11, 1920. On the back of the $3,500 note appears this endorsement: $536.64 int. due
@ 7 per cent to Apr. 19 which Howard testified was in his own handwriting. The
following memorandum also appears on the back of the note: April 19, 1920 $4,751 one
year at 4 per cent" which defendant admitted was in his handwriting.
52 Nev. 440, 451 (1930) Walker Brothers Bankers v. Janney
$4,751 one year at 4 per cent which defendant admitted was in his handwriting. These are
circumstances tending to support Howard's testimony.
As to the consideration of the note in question, other circumstances bearing on the issue
and against defendant's testimony are three letters introduced in evidence by plaintiff, two of
which were written by defendant to Howard and one written by the latter to the defendant. In
a letter written from Pasadena, California, to Howard at Salt Lake City and dated June 13-21,
the defendant wrote as follows: It was about a year ago I was in Salt Lake City and you
asked me for a 12 mos. note to cover an old account. I didn't feel at the time that I could pull
things around in time to pay, but you seemed to wish it and I am now not in a position to do
anything but pay interest. I will ask you to send me a renewal 12 mos. note for signature, and
the amount of interest. I do not expect to be able to pay the note in toto in 12 months but I do
expect to be able to make a substantial payment then if I get back my strength to normal,
which I am glad to say I am doing slowing but steadily. To this Howard answered in a letter
of date June 26, 1921, as follows: I am very glad indeed to receive your letter of the 13th,
but sorry to know that you have been ill and in the hospital. Too much work, I am afraid.
Your note in our favor for $4,751 dated April 19, 1920, was given for one year at 4 per cent.
The interest to April 19, is $224.87. Please send us a check for this amount, and we will then
renew the old note for another year. In addition to the above there will be due 96 cents for
revenue stamps on the old note, making a total of $225.83. In reply to this defendant wrote
from Pasadena in letter dated Sept. 21, 21. My dear Mr. Howard: I have been detained in
California much longer than I expected. The matter of attending to some teeth took a pretty
bad turn with me resulting in an operation on my jaw to dig out a dead root, and not being
able to eat solid food was a backset coming just when it did. I was getting on my feet fast
when this happened. I am therefore not able to return to work as soon as I expected and will
be compelled to ask your indulgence in sending the check I had expected to send you in
my last letter.
52 Nev. 440, 452 (1930) Walker Brothers Bankers v. Janney
work as soon as I expected and will be compelled to ask your indulgence in sending the check
I had expected to send you in my last letter. * * *
These letters support Mr. Howard's version of the transactions in the office of the bank
when defendant executed the note in question. They clearly relate to that note. In the first
letter written a little over a year after that transaction defendant is seeking an extension of
time in which to pay. He asks for a renewal of 12 months and promises to pay the interest. In
Howard's reply a renewal of the old note for one year is promised on condition that defendant
send a check for the year's interest. Defendant fails to do this for the reason given in his reply.
In neither letter is any mention made of any agreement. Defendant is promising to pay
without reference to any obligation on the part of the bank to cooperate in financing the
Pioche Mines Company, of which defendant is president. This is, to say the least, a singular
omission on the part of a man of business where a large sum on money is involved. The
defendant offered no explanation of this significant circumstance, except that he intended to
pay the note in question. If he intended to pay he was evidencing no interest in the condition
upon which, under his contention, his promise to pay was given.
The evidence on the whole indicates plainly that the verdict is wrong. The burden was on
the defendant to establish his defense of failure of consideration by a clear preponderance of
the evidence. The burden cannot reasonably be said to be supported by defendant's testimony
as to an agreement of an indefinite nature stated in the face of the ample evidence to the
contrary found in the record. This case must be distinguished from the case of Dixon v.
Miller, 43 Nev. 280, 184 P. 926. In that case the testimony of respondent tended to show very
definite terms for the note in question, and the testimony of the appellant was not supported
by other evidence as in this case.
The judgment is reversed.
____________
52 Nev. 453, 453 (1930) State v. Watts
STATE v. WATTS
No. 2899
August 6, 1930. 290 P. 732.
1. Homicide.
In prosecution for murder, declarations of deceased held properly admitted in evidence as dying
declarations.
2. Homicide.
Dying declarations are open to impeachment on any ground and by any means which law regards as
legitimate to employ to impeach living witness and discredit his testimony.
3. Homicide.
Weight to be given dying declarations admitted in evidence is matter exclusively for jury.
4. Homicide.
Weight and sufficiency of evidence in homicide cases, as in other criminal proceedings, are questions
for jury.
5. Criminal Law.
Verdict of jury in criminal case must not be disturbed on appeal if there is evidence to support it.
6. Criminal Law.
Evidence cannot be weighed by supreme court if there is substantial evidence to support verdict
(Const. art. 6, sec. 4; Rev. Laws, 7287).
7. Criminal Law.
Defendant may not be convicted on mere suspicion or on evidence which leaves question of criminal
agency conjectural.
8. Homicide.
Evidence in prosecution for murder in first degree held sufficient to sustain conviction.
9. Criminal Law.
Instruction, in prosecution for murder in first degree, relating to expert testimony, held not erroneous
for reason that by it court pointed out certain testimony and instructed as to its weight.
The instruction was to the effect that while jury was not bound by the testimony of
expert witnesses, in considering such testimony, the professional standard and
experience of the expert witnesses should be taken into consideration; that the opinions
of experts were to be considered in connection with all other evidence; and that jury
was not to act on opinions of experts to the exclusion of other testimony, but were to
apply the same rules to the testimony of experts that were applicable to other witnesses
in determining its weight.
Appeal from Sixth Judicial District Court, Humboldt County; L.O. Hawkins, Judge.
52 Nev. 453, 454 (1930) State v. Watts
Rosa Watts was convicted of murder in the first degree, with the penalty fixed at life
imprisonment, and she appeals. Affirmed.
J.W. Dignan, for Appellant:
Appellant assigns first as error on this appeal the insufficiency of the evidence to support
the verdict of the jury.
There is in the record hundreds of pages of testimony in the form of circumstantial
evidence introduced for the purpose of proving that Glenn A. Trousdale, the deceased
codefendant, actually committed the alleged crime charged in the indictment, and practically
all of the evidence in the case is directed to the point and for the purpose of proving the guilt
of Glenn A. Trousdale. We find not a scintilla of evidence, either direct or circumstantial,
tending to prove anything against the appellant in connection with this alleged crime, saving
and excepting the admitted fact that the appellant was present at the time and place of the
commission thereof, and the deceased's answer to one question in each of the dying
declarations of date July 27 and August 9, 1929, in which deceased stated that at the time he
received the mortal wound this appellant was lying on or across his knees, holding him. And
even this statement is flatly contradicted by deceased himself, not once but more than once, as
shown by the record; and on its face and under all of the circumstances it clearly appears to be
improbable as well as false and impossible, and even if admitted and conceded by this
appellant it would not be sufficient, standing alone and unaided by any other evidence of facts
or circumstances, to support a conviction of the appellant. If circumstances which are
inconsistent with each other will not warrant a conviction (12 Cyc. 488-489), what must be
said of direct evidence which is inconsistent and in conflict? Not conflicts between the
witnesses for the state and the defendant, but conflicts in the state's own proof. All of the
evidence and all of the circumstances corroborate and support the conclusion as to the
innocence of the defendant.
52 Nev. 453, 455 (1930) State v. Watts
and all of the circumstances corroborate and support the conclusion as to the innocence of the
defendant. See Jones v. State, 90 Ala. 628; State v. Diebolt (Kan.), 37 P. 992; Hinsely v.
United States (Okla.), 98 P. 363; State v. Newton (Wash.), 81 P. 1002; Bartelle v. United
States (Okla.), 100 P. 45; Backman v. People (Colo.), 9 P. 42.
The court erred in admitting in evidence the alleged dying declarations of the deceased,
appearing in the record as state's exhibits Nos. 10 and 11. Defendant contested the
introduction in evidence of these alleged dying declarations, upon the grounds and for the
reasons that deceased was incompetent and unable from his lack of mental capacity to be a
witness at the time of the making of the said declarations. In offering them in evidence, the
burden was upon the state to prove by a preponderance of the evidence that the declarant was
of sound mind and mentally competent to be a witness at the time of the making of the
declarations. If deceased was incompetent, and by this we mean in such a condition mentally
as a result of his injuries that he would have been unable to appear as a witness at the very
time of the making of the declarations, then his extra-judicial statements should have been
rejected. It is conceded, of course, that deceased at all times, from the time of his injury to the
time of his death, was suffering from a serious injury to his brain. We submit that the
existence of this condition alone was sufficient to raise in the mind of any unbiased person a
serious doubt as to the mental capacity of the deceased at any time after the brain injury. Each
of the three witnesses for the state who were present at the time of the making of the alleged
dying declarations gave as his opinion that deceased was mentally competent at the time of
the making of the declarations. But this evidence was sharply contradicted by the surrounding
circumstances, by the witnesses themselves upon their cross-examination, by the context of
the dying declarations themselves, and by the evidence of physicians testifying on behalf of
the defendant, as well as the statements of facts upon which the state's witnesses based
their opinions as to the competency of the deceased at the time of the making of the
declarations.
52 Nev. 453, 456 (1930) State v. Watts
by the evidence of physicians testifying on behalf of the defendant, as well as the statements
of facts upon which the state's witnesses based their opinions as to the competency of the
deceased at the time of the making of the declarations. We submit that the statements
themselves furnish quite conclusive evidence of the incompetency of the deceased at the time
they were made. The form of the preliminary questions is leading and suggestive of the
answers desired, and the answers themselves demonstrate the condition of a
semiconsciousness, in the giving of the simple answers of yes and no, as suggested by the
questions asked, and not one answer accompanied by any sort of explanation. Then, after
these few preliminary questions, about fifteen short questions are asked, all in leading and
suggestive form, and short, incomplete, inconsistent, contradictory and implausible answers
given by deceased, containing very slight, if any, explanations or narrative of the happenings
at the time of the shooting.
The court erred in restricting the cross-examination of the witness Brown, and in making
the following order relative thereto, of its own motion and not in response to any objection,
during the course of an otherwise proper cross-examination of the witness: Mr. Dignan, at
this time, so you may not consider the court as taking you by surprise, I want you to finish the
cross-examination of this witness by 4:30. It is 4:10. I am going to put an end to this
sometime. To which order of the court the defendant duly excepted.
The court erred in its instructions to the jury and particularly in the giving of instruction
No. 28, wherein the court instructed upon the weight of the evidence. It is error for the court
to single out certain testimony in the case and to instruct the jury that this testimony is
entitled to very great weight or little weight, or to otherwise instruct as to its weight. 12 Cyc.
597; People v. Amaya (Cal.), 66 P. 794; People v. Grimes (Cal.), 64 P. 101; State v. Pepo
(Mont.), 59 P. 721.
52 Nev. 453, 457 (1930) State v. Watts
The court erred in overruling defendant's motion for a new trial, upon the grounds stated in
the motion, and particularly upon the grounds of the insufficiency of the evidence to support
the verdict. The trial court, on the motion for a new trial, refused to weigh the evidence and to
pass upon this ground of the motion. As we view the law, this position taken by the trial court
is not only a plain abuse of the court's discretion, but a positive refusal on the part of the trial
court to perform a duty enjoined upon him by the laws of the State of Nevada. In support of
this statement we rely on the following authorities: Piel v. People (Colo.), 119 P. 687-690;
Hogan et al. v. Bailey (Okla.), 110 P. 890, 892; People v. Mock Yick Gar (Cal.), 111 P. 1039;
People v. Knutte (Cal.), 44 P. 166; People v. Chew Wing Gow (Cal.), 52 P. 657.
The court erred in overruling defendant's motion for a new trial upon the grounds and for
the reason that the jury received evidence out of court. This assignment is based upon the
proceedings directing a view of the premises and the conduct of the jury upon such view. In
pursuance of the order, the jury visited the premises where the alleged crime was committed,
in charge of the officer appointed by the court, and, after viewing all of the said premises
specified in the order of the court, the jury proceeded to make independent investigations in
the neighborhood, in which they both viewed and investigated premises not specified in the
court's order for the view. Plainly, by these investigations the jurors determined for
themselves, independent of any sworn testimony in the case, what conditions existed at the
time of the alleged shooting. People v. Conkling (Cal.), 44 P. 314; State v. Lopez, 15 Nev.
407; 16 R.C.L. sec. 115, p. 304; State v. Perry (N.C.), 61 Am. St. Rep. 683; Shultz v. Bowers
(Minn.), 47 Am. St. Rep. 630; Peppercorn v. Black River Falls (Wis.), 47 Am. St. Rep. 818.
We respectfully submit that by reason of the errors the verdict and judgment in this cause
should be vacated and set aside, and this cause remanded for a dismissal or a new trial.
52 Nev. 453, 458 (1930) State v. Watts
Merwyn H. Brown, District Attorney, M.A. Diskin, Attorney-General, and Wm. J. Forman,
Deputy Attorney-General, for the State:
The appellant was charged in the lower court with aiding and abetting one Glenn A.
Trousdale in the murder of one Rollin Watts. It was, therefore, incumbent upon the state to
establish: First, that Glenn A. Trousdale murdered Rollin Watts, and, second, that appellant
aided and abetted in the commission of the crime. It is the purpose of respondent to here point
out as briefly as possible how the evidence conclusively establishes the charge made against
appellant.
The circumstances all point to the fact that Rollin Watts was shot by someone other than
himself. The evidence showed that the bullet hole was in the top of his head, practically on
the middle line of his skull and on a line drawn from ear to ear. Professor Heinrichs testified
that there were no powder burns on the sheets or pillow cases of the bed on which the
deceased was found, that in his opinion the deceased had been shot while lying in bed, and
that the window directly back of the head of the bed was open. A pistol was found along side
of the bed and a portion of the bullet was found on the sill of the screen porch near the foot of
the bed. There was also a mark near the ceiling of the screen porch above the foot of the bed,
showing that this portion of the bullet had struck this spot and dropped to the sill. There were
no powder burns on the body of the deceased. The absence of powder burns, the flight of the
bullet, and deceased's apparent position in bed are plainly indicative that the fatal shot was
fired by someone else at a short distance from the deceased, and that this person was probably
in the next room and fired through the window at the head of the deceased's bed.
The evidence further shows that just prior to the shooting neighbors heard two men and a
woman talking in loud tones, heard one man's voice say Let me go, or Let go, and that
the shot followed soon afterwards. This evidence would indicate that there was some other
man in the Watts's home just prior to the shooting, that Mrs.
52 Nev. 453, 459 (1930) State v. Watts
man in the Watts's home just prior to the shooting, that Mrs. Watts was awake at the time,
and that one of the men was being held just prior to the shot being fired. Immediately after the
firing of the shot a woman's voice was heard saying: Why did you do it? Noises were heard
in the rear of the Watts residence, which sounded as if someone were crawling over the shed
in the back. Shortly thereafter Mrs. Watts emerged from the rear of her home and hesitated
for a short time before going to the home of the doctor, near by. This evidence would indicate
that the third person left the Watts home immediately after the shooting and escaped by
crawling over the shed in the back of the house, and Mrs. Watts's conduct in hesitating before
going for a doctor would indicate that she was giving this person an opportunity to escape
before she summoned aid for her wounded husband.
The evidence further shows that although Mr. and Mrs. Watts had only been married a
short space of time they had agreed to get a divorce. That at about 3:25 on the morning of the
shooting a neighbor of the Trousdales heard someone leave the Trousdale home and walk in
the direction of the Watts home. That shortly after the shooting Mrs. Watts desired to
telephone to Glenn A. Trousdale, and that after her husband was taken to the hospital and the
doctors had performed an operation she went immediately to Trousdale's home. These facts
alone present strongly a chain of circumstances against Mrs. Watts and Trousdale.
However, the exact events which happened in the Watts home at the time of the shooting
are not left to speculation. Watts did not die immediately, but lived for several months and
was able to and did make a dying statement in which he told of awakening that morning and
seeing Trousdale enter his room, approach his bed and pick up a pistol near the head of the
bed, on the floor; that Mrs. Watts held him while this was gong on; that Trousdale went in the
front door of the house, into the bedroom adjoining, and shot Watts by firing through the
window that was at the head of Watts's bed; that while the shooting took place Mrs.
52 Nev. 453, 460 (1930) State v. Watts
the shooting took place Mrs. Watts was lying on Watts's knees, holding him. These facts
establish beyond any doubt that the shooting was done by Trousdale, and that Mrs. Watts
throughout aided him in the killing.
This court has laid down the rule that it will uphold the verdict of the jury where there is
any substantial evidence to support it. State v. Hunter, 48 Nev. 367; State v. Buralli, 27 Nev.
41.
In the case of People v. Ammya, 66 P. 794, it was held that a dying declaration, wherein the
deceased pointed out the man who committed the murder, was alone sufficient to sustain the
verdict of the jury. In the case at bar the record contains not only the dying declaration of the
deceased, but also a strong chain of circumstances, all pointing to the truth of his assertions.
The testimony of S.G. Lamb, Dr. C.E. Swezy, the attending physician, Nora Forde, Lillie
Gates and Merwyn H. Brown showed that the deceased was rational, sane, understood what
was said to him, and was competent at the time he made the two dying statements. These
witnesses had ample opportunity to see the deceased and to tell from his actions and words
the condition of his mind at the time. The testimony of Dr. E.D. Giroux, on behalf of
defendant, was based on observations made after the death of the deceased, and he stated:
My opinion is that the man could not have been mentally clear, but a positive opinion I
could not give unless I had applied further tests and been more in contact with the patient.
Under this testimony the statements of deceased were clearly admissible, and it was for the
jury to take into consideration the testimony of the witnesses as to the deceased's mental
condition at the time the statements were made. State v. Davis, 46 S.E. 722.
The fact that the declarations were made in answer to questions did not affect their
validity. State v. Foot You, 32 P. 1032; Sparks v. State, 171 P. 1182.
The course and extent of cross-examination is within the discretion of the trial court.
Immaterial testimony and repetition after the field has been covered may be stopped by the
court of its own motion.
52 Nev. 453, 461 (1930) State v. Watts
stopped by the court of its own motion. State v. McConville, 209 P. 987; Hopkins v. State,
130 P. 1101; Gallatin v. Corning I.M. Co., 126 P. 864; First National Bank v. Shank, 128 P.
56; People v. Tou Jue, 225 P. 759; Reynolds v. Pacific Car Co., 134 P. 512; State v. Haggard,
134 P. 514; Wirth v. Richter, 126 P. 987; Van Wyk v. People, 99 P. 1009; State v. Ross, 94
P. 270; People v. Smith, 98 P. 546; People v. Sichofsky, 208 P. 340; State v. Allen, 160 P.
795; State v. Mox Mox, 152 P. 802.
There was no error in the court's giving instruction No. 28, and appellant cannot at this
time complain of it for several reasons. First, no objection was made by the appellant in the
trial court to the giving of this instruction; and this court has held in the case of State v.
Cudney, 47 Nev. 224, that: Where no objection was interposed to an instruction and no
advantage being taken of it on appeal, it will not be examined. Secondly, the effect of this
instruction was to limit, if anything, the effect of the expert testimony offered by the state.
The instruction would thus, even if it had been erroneous, be an error which reacted to the
advantage of appellant and not to her detriment. A misdirection to the jury by the trial court
must, of course, prejudice the defendant. Sec. 7469, Rev. Laws; State v. Willberg, 45 Nev.
183. However, the giving of the instruction could not have been error in any event, for it is a
proper instruction. State v. Jukich, 49 Nev. 217; Epps v. State, 1 N.W. 499; State v. Malloy,
78 S.E. 995.
In this state, by reason of the provisions of sec. 7197, Rev. Laws of 1912, the jury is made
the sole judges of the facts. To construe the statute governing motions for new trial so as to
place the judge of the court in the position of a thirteenth juror would be directly contrary to
the provisions of this section. The following cases show the later trend of authority upon this
point: People v. Breacker, 20 Cal. App. 205, 127 P. 666; People v. Bonzani, 141 P. 1062;
People v. Mallicoat, 149 P. 1000.
A view of the premises is not taking evidence in the case.
52 Nev. 453, 462 (1930) State v. Watts
case. It is a means provided by statute to enable the jury more satisfactorily to weigh the
evidence given in court. State v. Hartley, 22 Nev. 342; State v. Clarke, 48 Nev. 134.
OPINION
By the Court, Sanders, J.:
In September, 1929, Rosa Watts was charged in an information filed in the court below
with shooting and killing Rollin Watts, nicknamed Doc Watts, her husband, in
Winnemucca, Humboldt County, Nevada, on the 18th day of June, 1929. Although the proof
shows the accused to have been an accessory to the homicide, she was informed against as a
principal because the distinction between principal and accessory is abrogated by statute.
Section 7071, Revised Laws.
After an extended trial the jury returned this verdict:
We, the jury in the above-entitled case, do find the defendant, Rosa Watts, guilty of
murder in the first degree, and do hereby fix the penalty at life imprisonment.
Thereafter, the accused filed her notice of intention to move for a new trial. Subsequently,
the motion was denied and overruled. Thereupon, judgment was pronounced upon the verdict
and the accused was sentenced to confinement in state prison for life. Thereafter, the accused
perfected her appeal to this court from the judgment and from the order denying and
overruling her motion for new trial.
The first and principal ground alleged for the reversal of the order denying the motion for
new trial is the insufficiency of the evidence to support the verdict.
The record is voluminous and to set out, or even attempt to review the testimony of the
numerous witnesses in detail, would extend this opinion to an unreasonable length.
Therefore, a summary of the facts and circumstances attendant upon and surrounding the
alleged homicide stated in narrative form must suffice.
The record discloses that Rosa Watts and Glenn A. Trousdale intermarried in the year
1914. Their marital domicile for the greater part of their married life was in Winnemucca,
Humboldt County, Nevada, where they purchased a home situate on the corner of West
First Street and Aiken Street.
52 Nev. 453, 463 (1930) State v. Watts
domicile for the greater part of their married life was in Winnemucca, Humboldt County,
Nevada, where they purchased a home situate on the corner of West First Street and Aiken
Street. In the rear of the residence were six cabins owned and rented by them.
On May 4, 1929, Rosa Trousdale was divorced from her husband. At the time of the
divorce the spouses entered into a property settlement, whereby the husband was to receive
certain personal property and the wife a deed to their real estate upon the payment to the
husband of $2,500, payable in monthly installments of $60 per month. The contract and deed
to the property was placed in escrow in the First National Bank in Winnemucca. A few days
thereafter the divorced husband and wife, together with Rollin Watts, went to the First
National Bank and Rollin Watts then and there paid Glenn A. Trousdale the sum of $2,500,
in full of the property contract settlement, and Rosa Trousdale received the deed then in
escrow and had it placed upon record.
On the 11th day of May, 1929, Rosa Trousdale intermarried with Rollin Watts.
On the morning of June 18, 1929, at or about 3:30 o'clock a.m., Rollin Watts was found on
the front porch of his residence in a bed occupied by him and his wife with a bullet hole in the
top of his head, practically on the middle line of the skull and in line with a line drawn from
ear to ear. He was removed to the county hospital in Winnemucca, where he died on the 14th
of August, 1929, from the effects of the wound received on June 18, 1929.
Caledonia Swezy, a witness for the state, testified that on the night of June 18, 1929, she
was awakened by loud and angry voices, men's voices and a woman's voice; that she heard a
pleading voice say: Let go, or Let me go; that she heard a shot and a groan or moan; that
she heard a woman say: Why did you do it? several times, and also exclaim: Oh, Doc.
The witness testified that after hearing the shot she saw Rosa Watts come out of the back
door of the Watts residence and stand as if hesitating in the back yard and then turn as if
going back into the house, and then come out of the back on First Street and go across
the street to the Swezy residence and call Doctor Swezy for aid.
52 Nev. 453, 464 (1930) State v. Watts
and then turn as if going back into the house, and then come out of the back on First Street
and go across the street to the Swezy residence and call Doctor Swezy for aid.
Doctor Swezy, a witness for the state, testified that when he arrived at the Watts residence
he found Rollin Watts lying on the bed on the front porch; that Rosa Watts at the time said to
him that Rollin had attempted to commit suicide. He further testified that when he came upon
the porch Rosa Watts went over to the bed and said: You did it yourself, Rollin. Tell him
you did it yourself, didn't you. The witness testified that he found a .38 caliber Iver Johnson
pistol lying beside the bed near the head of the bed.
Frank Diehl, a witness for the state, testified that he lived in the Bergwin cabin in the rear
of the Watts residence; that on the morning of the 18th of June he heard what sounded to him
to be two men and a woman in an argument and that within a short time he heard a shot and
then heard a woman say: Oh, my God, why did you do that? and that within a short time he
heard a noise as if someone was crawling over a fence or shed in the rear of the Watts
residence.
E.L. Bogart, a witness for the state, testified that he was sleeping in cabin No. 5 in the rear
of the Watts residence on the morning of the 18th and that he was awakened by a noise, and
that within a short time he saw Rosa Watts cross the street from the rear gate to the Swezy
residence, and that a few minutes before seeing Rosa Watts crossing First Street he heard a
scraping noise like someone drawing themselves up over a shed or fence in the rear of the
Watts residence about twenty feet from where he was sleeping, which sounded to him as if
someone was crawling over the back coal shed.
Mrs. Laura Campbell, a witness for the state, testified that on the morning of June 18th,
about 3:25 a.m., she heard someone close the door of the residence of Mrs. Ella Trousdale,
the mother of Glen A. Trousdale, where the latter was living at the time, and she heard the
front screen door slam and someone walk to the front gate and someone walk down in
front of her house, which was in the direction of the Watts residence.
52 Nev. 453, 465 (1930) State v. Watts
the front screen door slam and someone walk to the front gate and someone walk down in
front of her house, which was in the direction of the Watts residence.
In the forenoon of June 18th Erling Prout, deputy sheriff visited the Watts residence to
make an investigation of the shooting, where he was met by Rosa Watts who, in response to
questions put to her by the witness Prout, stated that Doc had shot himself, meaning the
deceased, and upon further inquiry she produced the gun from a dresser drawer and gave it to
the witness. The gun contained four loaded shells and one empty shell. She stated to the
witness that Doc took the gun to bed with him; that there was someone prowling around the
night before and Doc said he was going to take the gun to bed to protect him. On another
occasion at the Watts residence Rosa Watts stated to the witness Prout that Doc was out
riding in the afternoon and in the evening that they both went riding after supper and got back
about half past eight; that Doc went to bed somewhere around nine o'clock and she a little
while afterwards; that they talked a bit and that she went to sleep and she never woke up until
the shot woke her up in the morning. She stated that when the shot woke her up she jumped
out of bed, looked around, saw the blood on Doc and that she ran to the telephone, and
could not get any answer and then went out the front door and beat it across the street to get
Doctor Swezy. She said she got the doctor and the doctor came over and afterwards Mr.
Spinner and Mrs. Spinner and Mrs. Swezy came over and that Doc was taken to the
hospital.
On cross-examination the witness Prout stated that he visited Rollin Watts at the hospital
on the 19th and went there very nearly every day to see him. The first conversation the
witness had with the deceased was on the 20th. On the 20th the witness visited Watts in
response to a message delivered over the 'phone by the nurse that Watts wanted to talk to him.
The conversation between them was substantially as follows: "Doc, do you know who I am.
A. Yes.
52 Nev. 453, 466 (1930) State v. Watts
Doc, do you know who I am. A. Yes.
Q. I am here to help you. If there is anything possible for me to do let me know. Doc, did
you shoot yourself? A. No.
Q. Do you know who did shoot? A. Yes.
Q. Who was it, Doc? A. Glenn Trousdale.
Q. Did you see him? A. Yes.
Q. Where was Glenn? A. _____. Ice water.
Q. Did Rose shoot you? A. No.
This conversation was transcribed by the district attorney and was admitted in evidence on
the request of counsel for the defendant.
About the hour of seven o'clock on the evening of the 20th District Attorney Brown,
Doctor Swezy and the witness Prout visited Watts. The witness Prout testified that on this
visit he wrote out some questions and asked them to Doc, to which questions Doc wrote
his answers. The questions and answers were as follows:
Q. Who shot you Doc? A. Glen Trousdale.
Q. Did you see him? A. I did.
Q. Did you ask for mercy? A. I did, yes.
Q. What room was he in when shot? The answer to this question is an unintelligible
scrawl.
Q. Do you realize you are seriously ill? A. Yes.
Q. Where was Rose? A. In answer to this question Watts wrote an answer in his own
handwritingthree plain and one unintelligible word as follows: In bed o-r-e-n-t-o-r-e back.
It is read by counsel for the accused as intended to mean, In bed over in back.'
Q. Where you in bed when shot? A. Yes.
The witness testified that Watts was quite weak, and when he made an attempt to answer
the last question he laid the pencil down. The paper which contained the questions and
answers was admitted in evidence upon the request of the counsel for the defendant on the
cross-examination of the witness Prout.
The witness stated that on the 22d he had a telephone call from the nurse at the hospital
stating to him over the 'phone that she was ordered out of the room and that the witness,
together with the district attorney, went to the hospital, where they found Rosa Watts in
Rollin Watts's room; that Mrs.
52 Nev. 453, 467 (1930) State v. Watts
that the witness, together with the district attorney, went to the hospital, where they found
Rosa Watts in Rollin Watts's room; that Mrs. Watts tore up some writing that she had made
upon a paper and that the district attorney asked what it was on the paper and she mumbled
something that the witness did not understand. The district attorney asked for the paper, but
she kept tearing it up and that the witness lead her out of the room into the hall and in so
doing she turned around to get her hat and she stepped over and dropped the paper into the
toilet. The district attorney reached down and got the paper and she got her hat and came
down with the witness to the sheriff's office.
Thereafter Rosa Watts and Glenn A. Trousdale were charged with the crime of assault
with intent to kill and were placed under arrest on the evening of the 20th.
On July 18, 1929, Watts had recovered sufficiently so that he was able to be brought
before the grand jury. A few days later he became worse and gradually began to sink. On July
27, 1929, a statement from him was taken which was reduced to writing, consisting of
questions and answers propounded to him by the district attorney and signed by the deceased,
and was introduced and admitted in evidence on behalf of the state as a dying declaration.
The statement reads as follows:
Brown: Good morning, Doc, how do you feel today? A. No good.
Brown: Do you think you are getting better?
Watts: No, I am worse.
Brown: Do you feel that you are going to get well?
Watts: No, I do not.
Brown: Do you feel that you are going to die?
Watts: Yes, I do.
Brown: If you feel that you are not going to get well, would you like to make a statement
of the circumstances connected with the shooting?
Watts: Yes.
Dr. Swezy: Yes, Doc, you are in a serious condition, and it does not look like you would
recover.
Watts: I know it.
52 Nev. 453, 468 (1930) State v. Watts
Brown: In making this statement do you make it realizing that you are failing in health,
and that you are about to die?
Watts: I do, yes.
Brown: Do you make this statement freely and voluntarily?
Watts: Yes, I do.
Winnemucca, Nevada,
Time, 10:50 a.m. July 27, 1929.
Humboldt County Hospital.
I, Rollin Watts hereby make this statement with regard to the gunshot wound that I
received on the morning of June 18th, 1929, realizing that I am failing in health and that I am
about to die, and I do so freely and voluntarily.
Do you know who shot you, Rollin?
Yes.
Who did shoot you?
Glenn Trousdale.
Did you see Glenn Trousdale that morning?
Yes, I did.
How did he come in the house?
He came in the front porch screen door.
Did you hear him?
Yes, I heard a noise, I heard him unlock the door.
What did you see?
I looked over the curtain and saw him come to my bed on the porch.
When he came to your bed what did he do then?
He reached down and picked up the pistol at the head of the bed on the floor.
Where did he go then after he picked up the pistol?
He went in the front door into the front room and then I heard him go into the bedroom
behind me.
What happened then?
I heard a shot, I was shot then.
When you were shot, Rollin, how was the window behind you.
It was up, open.
Where was Rosa when you were shot?
She was in bed, laying on my knees holding me.
52 Nev. 453, 469 (1930) State v. Watts
Did you take the pistol to bed with you the night before when you went to bed?
Yes, I got it from the dresser in the bedroom and put it under the bed at the head of the
bed on the floor on the porch.
Is that the pistol that Glenn picked up and took with him when he went into the bedroom?
Yes.
Why didn't you get the pistol?
Because Rosa was laying on my knees, holding me.
Did you try to get the pistol?
Yes.
If she had not been laying on your knees could you have gotten the pistol?
Yes, I could.
I have made the above statement realizing that I will not get well and in face of
impending death.
The above statement is a true and correct statement of the circumstances at the time I was
shot.
Rollin Watts.
Witnesses:
Chas. E. Swezy, M.D.
S.G. Lamb.
Nora Forde, R.N.
Merwyn H. Brown.
Brown: Can you sign this statement now Doc?
Watts: Yes, I will try.
Brown: Now, Doc, before signing this statement, do you do so realizing that you will not
get well and in face of impending death?
Watts: Yes, I do.
Brown: Is this statement a true and correct statement of the circumstances at the time you
were shot?
Thereafter, Watts continued to grow worse and on certain days was unconscious. On the
afternoon of August 9, 1929, a second statement was taken in which Watts verified and
confirmed the first statement as a whole. This statement was also introduced and admitted in
evidence as a dying declaration. The statement follows: "Winnemucca, Nevada,
52 Nev. 453, 470 (1930) State v. Watts
Winnemucca, Nevada,
4:45 p.m. August 9, 1929.
Q. How are you today, Doc? A. Bad.
Do you still feel that you are going to die? A. Yes.
Do you remember making a statement about two weeks ago in regard to your gunshot
wound? A. Yes.
Would you like to make a statement again, now Doc? A. Yes.
Q. Do you make this statement realizing that you are dying and that will not get well? A.
Yes.
Q. Do you make this statement freely and voluntarily? A. Yes.
Q. I will read you the statement you made then and will you tell me if it is your own
statement now and true and correct? A. Yes.
The statement, as previously made was then read to Watts and affirmed by him as being a
true and correct statement of the circumstances at the time he was shot.
Referring to the nature of the wound as relating to the question of suicide, Doctor Swezy
testified that on the morning of the 18th of June, about the hour of four o'clock he made a
superficial examination of the deceased. He found a bullet hole in the top of the head of the
deceased and the frontal part of the forehead swollen, a broken bone under the skin but the
skin was not perforated. Afterwards he found another hole after he was taken to the hospital.
On his examination at the hospital the witness stated that he found no powder marks, powder
burns or scorches. Witness stated that the wound was on the summit of the head on a line
drawn from one ear to the other. The entrance was a trifle to the right, then at left over on the
middle line and then down an inch and a quarter to the front, and a trifle to the right was a
little opening with a little tab of scalp hanging to it. The witness testified that he made an
incision of about four inches right along over the top of the head and retracted the tissues so
that he could explore the condition and take out the small pieces of bone and any tissues or
anything that might have to come out.
52 Nev. 453, 471 (1930) State v. Watts
The witness testified that after the death of the deceased he performed an autopsy upon his
body and that as the result of the investigation he found that the bullet had gone through the
right lobe of the brain. In one place it touched over on the left lobe a little and that in the
opinion of the witness the cause of the death was infectious meningitis caused by the
introduction of an infection caused by a bullet wound in the top of the head of the deceased.
Professor Edward O. Heinrich, an expert witness on the part of the state, examined the
pistol and shells in it, which was found beside the bed. He also examined the pillow and
lower sheet covering the bed. He testified that he failed to find any evidence of powder marks
or burns upon any of the bedclothing in evidence. He further testified that the bullet removed
from the head of Watts and the portion found on the sill of the screen porch was a .38 caliber
S. & W. bullet and exactly like the loaded bullets found in the pistol, and that the bullet had
been fired from a pistol of the same type as the one found beside the bed. He testified that
from an examination of the blood stains on the pillow slip and pillow, the sheet and corner of
the sheet and the windowpane back of the bed and the bullet marks found near the ceiling at
the foot of the bed where the other portion of the bullet had hit, and the nature of the wound,
it was his opinion that Watts was lying on the pillow at the time he was shot and further that
the window at the rear of the bed was open about eight inches.
Glenn A. Trousdale died on the 25th day of September, 1929. After a preliminary
examination on that date, to wit, September 25, 1929, an information was filed against Rosa
Watts charging her with murder in the first degree.
1. The record discloses that when the state offered in evidence the two dying declarations
of the deceased, counsel for the defendant objected to their admission in evidence upon the
ground that no proper foundation had been made, in that the testimony did not show that the
purported statements were dying declarations or that the statements were honestly or fairly
taken, and there was no evidence to show that the statements were taken when the
deceased believed, or knew, or thought that he was going to die, and that he had
abandoned every hope of recovery, and further that the statements were not the
statements of Rollin Watts, or that he was conscious of the fact or any of the facts
attempted to be set out in the alleged dying statements.
52 Nev. 453, 472 (1930) State v. Watts
there was no evidence to show that the statements were taken when the deceased believed, or
knew, or thought that he was going to die, and that he had abandoned every hope of recovery,
and further that the statements were not the statements of Rollin Watts, or that he was
conscious of the fact or any of the facts attempted to be set out in the alleged dying
statements. In support of this objection, counsel on both sides were privileged to introduce
testimony of witnesses in the presence of the jury. Upon the conclusion of the testimony, the
declarations of the deceased were admitted in evidence as dying declarations. We find no
error in their admission.
It is argued that the dying declarations of the deceased were insufficient to warrant or
sustain the conviction of the defendant, because of the contradictory, conflicting and
inconsistent statements of the declarant. In support of this contention it is pointed out that the
deceased in his dying declarations stated in substance that at the time of the shooting the
defendant was in bed lying on his knees holding him, and that he did not get the gun because
the defendant was lying on his knees holding him. Whereas, in his prior statements made to
the witness Prout, the declarant stated that at the time of the shooting Rosa was in bed over
back, meaning that she was lying in bed back of the deceased at the time of the shooting.
2, 3. We are in accord with the rule established by the great weight of authority that dying
declarations are open to impeachment upon any ground and by any means which the law
regards as legitimate to employ to impeach a living witness and discredit his testimony.
Liddell v. State, 16 A.L.R. 405, note. But it is equally well settled that, if dying declarations
have been admitted in evidence, the weight to be given them is a matter exclusively for the
jury. 3 Wigmore on Evidence (2d ed.), sec. 1446. It is the duty of the jury to weigh all the
declarations and to determine which, if either, is to be believed. They are the judge of the
credit as in the case of all other testimony by all the circumstances attendant upon and
surrounding the declarations.
52 Nev. 453, 473 (1930) State v. Watts
of all other testimony by all the circumstances attendant upon and surrounding the
declarations.
It was the contention of the defendant throughout the trial that the deceased shot himself
with suicidal intent. As a witness in her own behalf, she, in detail, gave her reasons for so
testifying from the acts, conduct, health and the mental condition of the deceased at the time
of the shooting, and his previous threats to commit suicide because of the consciousness of
his wrong done in breaking up the home of the Trousdales. Her testimony in this regard,
however, was not persuasive.
Further, the evidence of the nature of the wound as related to the question of suicide tends
to refute the testimony of the defendant that the deceased shot himself. It was for the jury to
consider and determine the question.
4, 5, 6. Counsel for the defendant also contend that, aside from the conflict in the
evidence and the utter incredibility of the dying declarations and the inherent improbability
that the wife of the deceased aided and abetted in the shooting that resulted in her husband's
death, the jury's determination of the defendant's guilt is not conclusive upon this court and
the judgment should be reversed. The answer to this question is that the weight and
sufficiency of the evidence in homicide cases as in other criminal proceedings are questions
for the jury and their verdict shall not be disturbed on appeal if there is evidence to support
the verdict. Under our constitution, article 6, section 4, and Revised Laws, section 7287,
evidence cannot be weighed by this court if there is substantial evidence to support the
verdict. State v. Boyle, 49 Nev. 386, 248 P. 48.
7, 8. We agree with counsel for the defendant that one may not be convicted upon mere
suspicion or upon evidence which leaves the question of criminal agency conjectural, if not
reasonably doubtful, but from all the evidence we are justified in disposing of the main
contention of the defendant, that the evidence is of such character that the jury could say from
it that in their judgment no reasonable doubt of the defendant's guilt existed.
52 Nev. 453, 474 (1930) State v. Watts
their judgment no reasonable doubt of the defendant's guilt existed.
9. It is contended that the court erred in instructing the jury (instruction No. 28) relating to
expert testimony, which reads as follows:
While you are not bound by the testimony of expert witnesses, still, in considering such
testimony, the professional standard and experience of such witnesses must be taken into
consideration in arriving at a verdict; and you should consider the character, the capacity, the
skill, the opportunities for observation, the state of mind of the expert, the nature of the case
and all its developed facts. The opinions of experts are to be considered by you in connection
with all other evidence in the case. You are not to act upon them to the exclusion of other
testimony. You are to apply the same rules to the testimony of experts that are applicable to
other witnesses in determining its weight. Taking into consideration the opinions of experts
and giving them just weight, you are to determine for yourselves from the whole evidence
whether the defendant is guilty as she stands charged beyond a reasonable doubt.
It is contended that the instruction is erroneous, for the reason that by it the court pointed
out certain testimony in the case and instructed as to its weight. The instruction is not
erroneous. Epps v. State (Ind.), 1 N.E. 491; State v. Malloy (S.C.), 78 S.E. 995. The court
could properly instruct as to the testimony of expert witnesses so as to inform the jury that
they should not disregard such testimony merely because given by experts. The instruction
does not tell the jury to give little or great weight to the opinion of the experts but to give
them just weight. This is in effect telling the jury to give the opinions such weight as they
may deem them entitled to, be it little or great or of no weight whatever.
We have examined and considered the other alleged assignments of error and find them to
be without merit.
The judgment and order appealed from are affirmed.
____________
52 Nev. 475, 475 (1930) Memorandum Decisions
MEMORANDUM DECISIONS
____________
GERLACH LIVE STOCK CO. Et Al. v. LAXALT
No. 2792 (See 52 Nev. 191)
On Petitions for Rehearing
July 2, 1930.
Per Curiam:
Rehearing granted.
____________
MARKWELL v. DOWNS Et Al.
No. 2888 (See 52 Nev. 372)
On Petition for Rehearing
September 5, 1930.
Per Curiam:
Rehearing denied.
____________
STOCKGROWERS AND RANCHERS BANK OF
RENO v. MILISICH Et Ux
No. 2767 (See 52 Nev. 178)
On Petition for Rehearing
September 5, 1930.
Ducker, C.J.:
Appellant filed a petition for rehearing and in addition filed what is designated
Appellant's Closing Brief on Petition for Rehearing. Respondents filed a brief in reply to
this. These briefs were filed without leave and in contravention of rule XV of this court which
prescribes that no other argument shall be heard on a motion for a rehearing except such as
may be contained in the petition therefor and the reply to said petition. In Rickey v. Douglas,
45 Nev. 341, we ruled that no other argument was permissible. We are always desirous of a
full argument on an application for a rehearing but are not disposed to permit such argument
to proceed to the extent of ignoring or violating prescribed rules of procedure.
52 Nev. 475, 476 (1930) Memorandum Decisions
argument to proceed to the extent of ignoring or violating prescribed rules of procedure. If a
practice of this kind is indulged, the rule will ultimately become more honored in the breach
than in the observance. We must, therefore, discourage it, and while respondents' brief was
perhaps justified by the filing of appellant's, we will order both to be stricken.
After a careful consideration of the case in connection with appellant's petition for a
rehearing, we are impelled to deny it. Appellant practically admits that the judgment is
unassailable in part. It is contended in the petition that the law of gifts inter vivos, as declared
in the majority opinion, applied to the testimony of the husband and wife, will justify the
judgment for the latter only to the extent of $8,000, this being her separate property interest in
the O'Sullivan notes and mortgages. The basis of this claim, if we correctly understand
appellant's contention, is in the assumption that as to the balance of the money and liberty
bonds advanced by Thora to Steve for the O'Sullivan notes and mortgages, the evidence does
not show delivery into that exclusive dominion and control of the donee which we held is
essential to complete gifts inter vivos. We think the evidence tends to show this. It shows
also, without dispute, that Steve never exercised any control over any of the moneys, bonds or
thrift stamps claimed as gifts, which in part formed the consideration for the assignment of
the O';Sullivan notes and mortgages in question. As to the Liberty bonds which the testimony
shows he gave to his wife, and the notes and mortgages kept in the safety deposit box, it is
true he had access to them and therefore had the opportunity to take possession of them. But
he never did; and we are unwilling to say as a matter of law that the mere fact that he was not
powerless to gain control of the gifts claimed will militate against their delivery as such. The
test of delivery in such cases is not the physical inability of the donor to exercise control over
the gifts alleged, but the presence of such facts as show the donee has the legal right to
exercise exclusive dominion and control.
52 Nev. 475, 477 (1930) Memorandum Decisions
donee has the legal right to exercise exclusive dominion and control. Hynes v. White (Cal.
App.), 1990 P. 836; In Re Boole's Estate (Wash), 219 P.4. In the latter case the court quoted
from one of its former decisions as follows:
Again it is said that Mrs. Hubbard did not assume absolute control over the bonds until
after her husband's death. But the evidence is that she put them in the place where valuables
of this sort were usually kept, whether the individual property of either of them or the
community property of both. The fact that Mr. Hubbard may have had access to the place of
deposit does not argue that the property was not hers or was not under her dominion or
control.
The same may be said in this case. The fact that prior to June, 1920, Steve had access to
the safety deposit box where the Liberty bonds were kept, does not furnish a basis for an
inference that there was not a prior delivery.
It is insisted that the jury found that only $1,000 of the loan of $5,000 evidenced by the
O'Sullivan note of February 8, 1919, by its terms made payable to both Steve and his wife,
Thora, was advanced from her separate estate, and that there is no evidence of any delivery of
the $4,000, which both testified he gave her to make up the balance of the loan of $5,000.
Both contentions are without merit. It is true that in two of their answers to interrogatories the
jury said that $1,000 of this loan was advanced from her separate funds and none from the
community funds. If the jury believed that Steve gave her $4,000, which he said he did by
telling her to draw her check for that amount on the mutual checking account, they were
correct in saying that no part of the loan of $5,000 was advanced from the community funds,
and in error in saying that only $1,000 was advanced from her separate funds. That the jury so
believed, and were in error as to the $1,000, are, we think, borne out by the following
interrogatory and answer:
Q. Did Mrs. Milisich pay $5,000 out for the second O'Sullivan note and mortgage out of
the moneys given her by her husband as her own separate property" A.
52 Nev. 475, 478 (1930) Memorandum Decisions
O'Sullivan note and mortgage out of the moneys given her by her husband as her own
separate property A. Yes.
There is ample evidence showing the gift of $4,000 to Mrs. Milisich to make the $5,000
loan to the O'Sullivans. On this phase of the case Steve testified as follows:
Mr. O'Sullivan asked her for $5,000 loan, and a second mortgage, and she spoke to me in
the evening and I said, You could take that mortgage.' I said, Have you any money in the
bank?' She said, I have some but not enough to take up the note.' I said, I will give you
$4,000 to be yours. Tomorrow morning you can go to the bank and draw a check against my
account for $4,000not any more.'
He testified that at the time, February, 1919, he owed no money and had a bank balance of
$10,000.
Mrs. Milisich corroborates her husband in this respect. She further testified that she drew
$1,000 from her savings account and placed it in the joint checking account, and on February
8, 1919, drew a check on the latter account for $5,000. When Mrs. Milisich checked the
$4,000 out of the bank as Steve had authorized her to do, we can conceive of nothing else
necessary to effectuate the gift.
The petition for a rehearing is denied, and it is further ordered that the briefs filed in
contravention of the rule be stricken from the files.
Coleman, J., concurring:
I concur in the order denying the petition for the reason which I gave when the case was
first disposed of.
I also concur in the order striking the briefs filed upon the application for a rehearing for
the reason given by the Chief Justice.
Sanders, J.: I dissent.
____________ SCHMIDT v. HORTON Et.
52 Nev. 475, 479 (1930) Memorandum Decisions
SCHMIDT v. HORTON Et. Al.
No. 2865 (See 52 Nev. 302)
On Petition for Rehearing
September 5, 1930.
Ducker, C.J.:
Counsel for appellants is to be commended for the industrious and earnest efforts he has
made in the petition for a rehearing to enforce the points relied on by him for a reversal of this
case. He has with much ability practically reargued every point discussed by him in his briefs
and oral argument on the hearing in this court, and has elaborated the same with additional
authorities. We have considered the question of a rehearing with the care which the
importance of the case deserves, but find nothing warranting a formal reconsideration. There
is substantial evidence tending to establish the facts found by the trial court. If we were so
inclined we have no jurisdiction to substitute for these facts those claimed by appellants to be
the legitimate product of the evidence.
The facts found disclose a joint adventure, as this modern legal entity has been recognized
by this court and the courts and authorities of other jurisdictions. Counsel for appellant
dispute this and stoutly assert that the most the evidence reveals in the way of a contract is an
unexecuted partnership agreement. We are satisfied with our opinion in this regard and see no
useful purpose to be gained by again discussing it. Suffice to say that when several persons
enter into an agreement, as was done in this case, to search for and locate mining property,
furnish themselves with the means to do so and actually search for and locate such property,
we can see nothing else essential to launch the enterprise. The object of the venture is fully
consummated. If Schmidt's testimony is true he was a party to such an agreement, furnished
material and labor to promote its objects, was ready and willing to go in company with
Traynor and Horton on the successful venture on the morning of March 1, and was only
prevented from actual participation in the rich discovery by their objection to his going
with them.
52 Nev. 475, 480 (1930) Memorandum Decisions
only prevented from actual participation in the rich discovery by their objection to his going
with them. How can it be said, then, that he was only a party to an unexecuted agreement?
We think the contention is not supported by reason.
It is again asserted that Horton withdrew from the partnership agreement prior to the
discovery. The undisputed evidence is of sufficient force to show as a matter of law that his
withdrawal was ineffectual. It was but an angry gesture unaccompanied by any
reimbursement to Schmidt as to his labor and material in advancing the partnership objects,
which was necessary to make his declared withdrawal effective. He was amenable to this
equitable restriction.
Furthermore, Horton revoked his declaration and intention of withdrawal when, in
company with Traynor, he used the partnership equipment on March 1. The undisputed
evidence shows the use of such equipment on the trip which proved so fortunate to the
adventurers. Besides, there is the finding of the court supported by Schmidt's testimony to the
effect that on the morning of March 1 it was agreed between the three that the former was
included in the venture. Consequently, the judgment would be supported by this finding and
evidence, even though Horton had formerly effectually withdrawn from the agreement.
Nothing has been advanced by petitioner which causes us to doubt the correctness of our
ruling that the defense of infancy is not available in this case. As stated in Pinnell v. St. Louis
S. F. F. Co. (Mo. Sup.), 263 S. W. 182; 41 A. L. R. 1092:
It is a distinctive principle in the law of contracts, supported by reason and numerous
precedents, that an infant's contracts when beneficial to him will be held to be binding.
There is no reason discernible for taking this case out of that category. The rule does
justice to both parties. The contract in this case was beneficial to all concerned. There is
present no element of disparity between an adult and a minor. They were all on an equal
footing in this respect.
52 Nev. 475, 481 (1930) Memorandum Decisions
equal footing in this respect. There is no hint in the evidence of unfairness or fraud practiced
on Horton and he was not overreached in any way. A just regard for the equitable rights of his
coadventurers therefore estops him from repudiating his contract with Schmidt. To suffer him
to do so would be permitting him to convert the privilege of infancy into an instrument of
injustice.
Coleman, J.: I concur.
Sander, J.: I dissent.
____________

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