Nevada Reports 1948 (65 Nev.) PDF

65 Nev.
1, 1 (1948)
REPORTS OF CASES
DETERMINED BY
THE SUPREME COURT
OF THE
STATE OF NEVADA
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VOLUME 65
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65 Nev. 1, 1 (1948) Kress v. Corey
M.C. KRESS, Appellant, v. GUS D. COREY,
Et Al., Respondents.
No. 3423
January 12, 1948. 189 P.2d 352
1. Supersedeas.
A supersedeas or stay will only be granted on good cause shown and where a proper case for exercise of
court's discretion is made out, except where court is bound to allow the supersedeas or stay as a matter of
right.
2. Appeal and Error.
Generally, a supersedeas or stay should be granted if without it the objects of appeal or writ of error may
be defeated, or if it is reasonably necessary to protect appellant from irreparable or serious injury in case of
reversal, and if it does not appear that appellee will sustain irreparable or disproportionate injury, in case of
affirmance.
An order dissolving an injunction is self-executing, and is not superseded by filing an appeal bond.
A judgment not requiring or permitting the doing of any act will not be superseded, there being nothing
on which the writ can operate in the relief or aid of appellate jurisdiction.
5. Supersedeas.
Supersedeas is usually regarded as injunctive or prohibitive in character rather than corrective, and writ
of supersedeas will not function as a writ of certiorari or writ of mandamus.
6. Supersedeas.
Supersedeas cannot effect revival of or reinstatement of a temporary, prohibitive injunction, once
dissolved.
7. Injunction.
An injunction should be so clear and certain that a party may readily know what he is restrained from
doing and that he must obey it at his peril.
Where preliminary injunction was dissolved, and action for declaratory, injunctive, and other relief with
respect to contract for purchase of business was dismissed, supersedeas would be denied.
9. Motions.
Good reason why motion should not be entertained by supreme court may be advanced as ground in
support of denial of that motion and should not be advanced by motion to dismiss the motion.
10. Action.
The Uniform Declaratory Judgment Act opens the door to adjudication of innumerable complaints and
controversies not theretofore capable of judicial relief and permits the courts to vindicate challenged rights,
clarify and stabilize unsettled legal relations, and remove legal clouds which create insecurity and fear.
Stats.1929, c. 22, sec. 1 et seq.
11. Action.
To obtain declaratory judgment, justiciable controversy must exist between persons whose interests are
adverse, plaintiff must have legally protectible interest in controversy, and issue involved must be ripe for
judicial determination. Stats. 1929, c. 22, sec. 1 et seq.
12. Action.
Complaint, alleging that plaintiffs contracted to purchase restaurant business and unexpired term of lease,
that plaintiffs entered into possession but that lessees had failed further to perform, that lessors threatened
dispossession for breach by lessees of covenant against assignment without lessor's consent, and that
purchase-money note was held by bank as security for indebtedness of lessees, stated cause of action for
declaratory judgment. Stats.1929, c. 22, sec. 1 et seq.
13. Action.
Injunctive relief may properly be coupled with prayer for declaratory judgment, and in a proper case
status quo may be preserved by injunction pendente lite to prevent irreparable injury. Stats.1929, c. 22, sec.
1 et seq.
14. Action.
In action for declaratory relief under complaint alleging that plaintiffs had contracted to purchase
restaurant business and unexpired term of lease, that plaintiffs entered into possession but that lessees had
failed further to perform, that lessors threatened dispossession for breach by lessees of
covenant against assignment without lessor's consent, and that purchase-money
note was held by bank as security for indebtedness of lessees, the lessors, lessees,
and bank were properly joined as defendants.
lessors threatened dispossession for breach by lessees of covenant against assignment without lessor's
consent, and that purchase-money note was held by bank as security for indebtedness of lessees, the
lessors, lessees, and bank were properly joined as defendants. Stats.1929, c. 22, sec. 11; Comp.Laws, sec.
8556.
Appeal from Eighth Judicial District Court, Clark County; George E. Marshall, Judge.
Action by M. C. Kress against Gus D. Corey and others for a declaratory judgment, and
other relief. From a judgment dismissing the complaint, plaintiff appeals. Reversed and case
remanded with instructions.
Morse & Graves, of Las Vegas, for Appellant.
Thruston & McNamee, of Las Vegas, for Gus D. and John D. Corey, Respondents.
Lewis & Hawkins, of Las Vegas, for Arthur C. and Harry C. Pauff, Respondents.
OPINION
By the Court, Badt, J.:
Plaintiff in the court below, M. C. Kress, has appealed to this court from the order and
judgment of the lower court dismissing his complaint for a declaratory judgment, assigning
error, among other things, in the sustaining of the general and special demurrers of the
defendants Gus D. Corey and John D. Corey and of the defendants Arthur C. Pauff and Harry
C. Pauff. Other errors are assigned and will be discussed later. The case is the first one to
reach this court in which there has been brought into question the right of a plaintiff to seek
relief under the uniform declaratory judgment act by reason of the various relationships
existing between the parties as alleged by the plaintiff.1
act by reason of the various relationships existing between the parties as alleged by the
plaintiff.
1

Plaintiff's original complaint, denominated complaint for a declaratory judgment, sought
a declaration of plaintiff's rights and liabilities under an executory written contract set forth as
an exhibit wherein the defendants Corey undertook to sell and the plaintiff and one C. B.
Turner, not named as a party to the action, undertook to buy a going restaurant and cafe
business, the merchandise, personal property and fixtures appertaining thereto and the
unexpired term of the lease of the premises held by defendant Gus D. Corey as assignee of the
original lessee of the defendants Pauff.
Plaintiff prayed for a declaration determining the validity of this contract and the
respective rights of the parties thereto as against the claim of the defendants Pauff that said
contract was in breach of a purported covenant in their lease with defendant Gus Corey,
prohibiting assignment or underletting without the written consent of the lessors.
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1
Uniform Declaratory Judgments Act, Stats.1929, Chap. 22, p. 28. The applicable portions are as follows:
Section 1. Courts of record within their respective jurisdictions shall have power to declare rights, status and
other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to
objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either
affirmative or negative in form and effect; and such declaration shall have the force and effect of a final
judgment or decree.
Sec. 2. Any person interested under a deed, will, written contract or other writings constituting a contract, or
whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract, or franchise,
may have determined any question of construction or validity arising under the instrument, statute, ordinance,
contract or franchise and obtain a declaration of rights, status or other legal relations thereunder.
Sec. 3. A contract may be construed either before or after there has been a breach thereof.
Sec. 5. The enumeration in sections 2, 3 and 4 does not limit or restrict the exercise of the general powers
conferred in section 1 in any proceeding where declaratory relief is sought, in which a
consent of the lessors. Declaration of the rights and liabilities of the parties under the lease
was also sought. Injunctive relief and general equitable relief were also prayed.
Upon application of plaintiff, the district court issued a preliminary injunction, enjoining
the defendants, pendente lite, from interfering with plaintiff's peaceful use and occupation of
the premises in controversy and the personal property located thereon, and restraining the
defendants from negotiating or otherwise hypothecating a certain promissory note in the sum
of $17,442.48, payable at the rate of $1,000 per month, which had been executed by plaintiff
in part payment of the purchase price under the disputed agreement, the note then being in the
possession of defendant bank as security for a certain indebtedness of the Coreys to the
bank.
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judgment or decree will terminate the controversy or remove an uncertainty.
Sec. 6. The court may refuse to render or enter a declaratory judgment or decree where such judgment or
decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.
Sec. 7. All orders, judgments and decrees under this act may be reviewed as other orders, judgments and
decrees.
Sec. 8. Further relief based on a declaratory judgment or decree may be granted whenever necessary or
proper. The application therefor shall be by petition to a court having jurisdiction to grant relief. If the
application be deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights
have been adjudicated by the declaratory judgment or decree, to show cause why further relief should not be
granted forthwith.
Sec. 9. When a proceeding under this act involves the determination of an issue of fact, such issue may be
tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the
court in which the proceeding is pending.
Sec. 10. In any proceeding under this act the court may make such award of costs as may seem equitable
and just.
Sec. 11. When declaratory relief is sought, all persons shall be made parties who have or claim any interest
which would be affected by the declaration, and no declaration shall prejudice the right of persons not parties to
the proceeding. * * *
Sec. 12. This act is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and
insecurity with respect to rights, status and other legal relations; and is to be liberally construed and
administered.
certain indebtedness of the Coreys to the bank. On the same day, the district court made its
order, providing that, pending the further order of the court, the plaintiff should deposit with
the clerk of the court, certain sums falling due each month under the provisions of the
contract of sale between plaintiff and the defendants Corey in lieu of making such payments
to them.
Thereafter, plaintiff having by leave of court filed an amended complaint, the defendants
Corey and the defendants Pauff separately filed their general and special demurrers thereto. In
substance, the demurrer of the defendants Corey was directed to the sufficiency of the
complaint to state a cause of action against them for declaratory or equitable relief or
otherwise, in view of the asserted absence of a justiciable controversy. The Pauff demurrer
averred in addition a misjoinder of parties defendant and a misjoinder of causes of action, in
the absence of a showing of privity of contract between plaintiff and said defendants or
community of interest in any question of fact or law. The defendants Corey also filed their
notice of motion to strike certain portions of the amended complaint and their notice of
motion to dissolve the preliminary injunction and to vacate or set aside or modify the order
directing deposit in court. The defendants Pauff filed their separate notice of motion to
dissolve the preliminary injunction. Defendant First National Bank of Nevada failed to appear
or plead and its default was duly entered. Plaintiff filed a notice of motion to continue in full
force and effect, pendente lite, the preliminary injunction and the order directing the deposit
of moneys with the clerk of the court, which motion the court granted. After hearing, the
court made its order and judgment sustaining the demurrers of the defendants Corey and the
defendants Pauff to plaintiff's amended complaint without leave to amend, dismissing the
action, dissolving the temporary injunction, and releasing the deposits paid into court by
plaintiff.
The amended complaint alleged that on or about March 26, 1940, defendants Arthur C.
Pauff, and Harry C. Pauff, as fee owners of the real property in controversy, entered into a ten
year lease of the premises with one G. C. Christopher, terminating May 1, 1950, and
providing for a rental of $170 per month, this lease being embodied in a written instrument,
pleaded in haec verba as plaintiff's Exhibit A; that plaintiff had never been furnished with
an original or duplicate original of the lease, but only with what purported to be a typewritten
copy of said lease bearing the typewritten signature of said G. C. Christopher but bearing no
signature of the Pauffs whatsoever; that this typewritten copy does not contain as a term or
condition that the lessee shall not let or underlet the whole or any part of said premises, but
that plaintiff has been informed that such term was included in the original lease; that in view
of these facts, plaintiff does not know whether or not this alleged term is in fact one of the
terms of the lease; that on or about December 25, 1940, Christopher made a written
assignment of the lease to defendant Gus D. Corey with the written consent of defendants
Pauff; that, thereafter, defendants Gus D. Corey and John D. Corey entered into possession
and occupation of the demised premises, operating thereon a restaurant and cafe business.
That on April 5, 1943, defendants Corey entered into an instrument in writing with
plaintiff and with defendant C. B. Turner, to whose interest thereunder plaintiff has since
succeeded; that by the terms of this instrument, pleaded in haec verba as plaintiff's Exhibit
B, plaintiff and Turner, as buyers, paid to defendants Corey, as sellers, the sum of $7,000
cash, signed a promissory note in favor of defendants Corey in the sum of $17,442.48,
payable at the rate of $1,000 per month with interest at the rate of 5 percent per annum, and
agreed to pay, on account of defendants Corey, the sum of $1,067.52 to the First Industrial
Loan Company of California, or a total consideration of $25,510; that it was mutually
understood and agreed by the parties to this instrument that the consideration for this
$25,510 paid, and agreed to be paid, by the buyers, consisted solely of the value of the
unexpired term of the lease, and of the value of the restaurant and cafe business being
conducted upon said premises together with such merchandise, furniture, furnishings,
fixtures and equipment as pertained thereto, which it was contemplated that the buyers
would take over as a going concern and operate as such for the full unexpired term of the
lease; that "the entire consideration of $25,510.00 was mutually predicted upon the
mutually assumed fact that the defendants, Gus D.
of California, or a total consideration of $25,510; that it was mutually understood and agreed
by the parties to this instrument that the consideration for this $25,510 paid, and agreed to be
paid, by the buyers, consisted solely of the value of the unexpired term of the lease, and of the
value of the restaurant and cafe business being conducted upon said premises together with
such merchandise, furniture, furnishings, fixtures and equipment as pertained thereto, which
it was contemplated that the buyers would take over as a going concern and operate as such
for the full unexpired term of the lease; that the entire consideration of $25,510.00 was
mutually predicted upon the mutually assumed fact that the defendants, Gus D. Corey and
John D. Corey, could legally contract to sell and plaintiff could legally contract to purchase
the entire unexpired term of said lease and said business as a going concern, and that plaintiff
could legally continue to operate the same as a going business and have legal and peaceful
possession of said premises to and until May 1, 1950 at a rental of $170 per month, being the
unexpired term of the said Gus Corey lease.
That by the further terms of the agreement of April 5, 1943, the sellers undertook to have
the lease of the demised premises assigned to the buyers, but with the further proviso that in
the event that the owners should refuse to consent to such assignment nevertheless, in such
event, it shall not affect, diminish, or nullify this agreement or the terms thereof, but the
sellers shall allow the buyers to occupy the said premises under the terms of said lease
without further consideration to sellers as if buyers were the assignees thereof, provided
buyers pay to said Gus Corey the rentals in amount, time and manner provided for therein,
which sellers agree to pay to the person or persons entitled thereto under said lease; that the
sellers undertook further, within sixty days, to deliver to the escrow holder, defendant First
National Bank of Nevada, a corporation, either the lease of the demised premises
assigned to the buyer, or, in lieu thereof, the affidavit of the sellers that the owners of the
premises refused to consent to an assignment of the lease; that the promissory note
executed by the buyers in part payment of the consideration should be deposited with
defendant corporation for collection, with the proviso that when said note had been paid
in full, defendant corporation, as escrow holder, should deliver to the buyers sellers' bill of
sale, affidavit showing compliance with the Bulk Sales Law, and the assigned lease, or in
lieu thereof, the affidavit of sellers above mentioned; that it was further provided in said
agreement that time should be the essence of the contract, that "the property in the
business, lease and goods sold" should vest in the buyers only upon payment in full of the
purchase price and complete performance by them of all other terms and conditions by
them agreed to be performed, and that should any default be made in said payments or
performance by the buyers of other terms and conditions, the sellers might at their
option, either enforce payment of the entire unpaid balance under said agreement, or
forfeit the interest of buyers under said agreement, reenter upon said premises, and
retain as liquidated damages all sums theretofore paid by buyers under said agreement.
defendant First National Bank of Nevada, a corporation, either the lease of the demised
premises assigned to the buyer, or, in lieu thereof, the affidavit of the sellers that the owners
of the premises refused to consent to an assignment of the lease; that the promissory note
executed by the buyers in part payment of the consideration should be deposited with
defendant corporation for collection, with the proviso that when said note had been paid in
full, defendant corporation, as escrow holder, should deliver to the buyers sellers' bill of sale,
affidavit showing compliance with the Bulk Sales Law, and the assigned lease, or in lieu
thereof, the affidavit of sellers above mentioned; that it was further provided in said
agreement that time should be the essence of the contract, that the property in the business,
lease and goods sold should vest in the buyers only upon payment in full of the purchase
price and complete performance by them of all other terms and conditions by them agreed to
be performed, and that should any default be made in said payments or performance by the
buyers of other terms and conditions, the sellers might at their option, either enforce payment
of the entire unpaid balance under said agreement, or forfeit the interest of buyers under said
agreement, reenter upon said premises, and retain as liquidated damages all sums theretofore
paid by buyers under said agreement.
The amended complaint alleged performance by plaintiff, as well as his continuous
possession and payment of rent; that after the order referred to all payments were deposited
with the clerk of the court, and that he was ready, able and willing to continue to perform.
The amended complaint further alleged breach by the defendant Corey, and/or failure of
consideration thereunder, in the following particulars: that they did not within the time
specified notify the landlords, defendants Pauff, concerning the sales transaction between
themselves and plaintiff, but did, at some later date, make a colorable request upon said
defendants Pauff to consent to an assignment of the lease to plaintiff; that prior to said
request, however, and at times subsequent thereto, defendants Corey asked defendants
Pauff to disregard their formal request for consent to assignment of the lease and to
refuse to give their consent thereto; that to influence the defendants Pauff to withhold
their consent to assignment of the lease, defendants Pauff falsely represented that
plaintiff was irresponsible, was running down the business, and that defendants Corey
would be compelled to repossess said business and premises; that defendants Pauff were
influenced by said representation to withhold their consent to assignment of the lease;
that consequently there has been a partial failure of consideration, consisting of the
reasonable value of eighteen months of the unexpired term of said lease which plaintiff
will lose in the event that plaintiff should be compelled to enter into a new lease with
defendants Pauff, as thereinafter alleged; that the reasonable value thereof, and
plaintiff's damage therein, is the sum of $30,000; that by reason of said actions of
defendants Corey, in breach of their assignment with plaintiff, there has been a failure of
consideration in regard to so much of the agreement of April 5, 1943, as provided that in
the event of refusal of the owners of the demised premises to agree to assignment of the
lease, the sellers, defendants Corey, would nevertheless permit the buyers to occupy said
premises "provided buyers pay to said Gus Corey the rentals, in the time and manner
provided therein, which sellers agree to pay to the person or persons entitled thereto
under said lease"; that the terms and provisions of the agreement of April 5, 1943,
aforesaid, have been rendered impossible of performance by reason of the refusal of the
defendants Pauff to accept such rentals from defendants Corey, and that in consequence
thereof said agreement should be reformed in this regard; that the Coreys refused to
accept the August 1943 rent and
themselves and plaintiff, but did, at some later date, make a colorable request upon said
defendants Pauff to consent to an assignment of the lease to plaintiff; that prior to said
request, however, and at times subsequent thereto, defendants Corey asked defendants Pauff
to disregard their formal request for consent to assignment of the lease and to refuse to give
their consent thereto; that to influence the defendants Pauff to withhold their consent to
assignment of the lease, defendants Pauff falsely represented that plaintiff was irresponsible,
was running down the business, and that defendants Corey would be compelled to repossess
said business and premises; that defendants Pauff were influenced by said representation to
withhold their consent to assignment of the lease; that consequently there has been a partial
failure of consideration, consisting of the reasonable value of eighteen months of the
unexpired term of said lease which plaintiff will lose in the event that plaintiff should be
compelled to enter into a new lease with defendants Pauff, as thereinafter alleged; that the
reasonable value thereof, and plaintiff's damage therein, is the sum of $30,000; that by reason
of said actions of defendants Corey, in breach of their assignment with plaintiff, there has
been a failure of consideration in regard to so much of the agreement of April 5, 1943, as
provided that in the event of refusal of the owners of the demised premises to agree to
assignment of the lease, the sellers, defendants Corey, would nevertheless permit the buyers
to occupy said premises provided buyers pay to said Gus Corey the rentals, in the time and
manner provided therein, which sellers agree to pay to the person or persons entitled thereto
under said lease; that the terms and provisions of the agreement of April 5, 1943, aforesaid,
have been rendered impossible of performance by reason of the refusal of the defendants
Pauff to accept such rentals from defendants Corey, and that in consequence thereof said
agreement should be reformed in this regard; that the Coreys refused to accept the August
1943 rent and instructed plaintiff to send it to the Pauffs, who in turn refused to accept it,
but served the Coreys with a notice of termination of their lease upon the ground that
they had assigned or sublet without the prior written consent of defendants Pauff, in
violation of the lease; that, after receiving said notice of termination from defendants
Pauff, defendants Corey nevertheless demanded that plaintiff pay to them the sum of
$340 as rental upon said premises for the months of August and September and informed
plaintiff that unless said rentals were immediately paid to them they would declare a
forfeiture of their agreement of April 5, 1943; that, pursuant to this demand and threat,
plaintiff paid the Coreys $340, which they kept; that they did not within sixty days deposit
in escrow their affidavit of refusal of defendants Pauff to consent to assignment of the
lease, but did, at some subsequent date unknown to plaintiff, and after their acts and
conduct had influenced defendants Pauff to refuse to give their consent thereto, deposit
said affidavit, in escrow; that by reason of said acts and conduct of defendants Corey, said
affidavit was meaningless and ineffectual.
accept the August 1943 rent and instructed plaintiff to send it to the Pauffs, who in turn
refused to accept it, but served the Coreys with a notice of termination of their lease upon the
ground that they had assigned or sublet without the prior written consent of defendants Pauff,
in violation of the lease; that, after receiving said notice of termination from defendants
Pauff, defendants Corey nevertheless demanded that plaintiff pay to them the sum of $340 as
rental upon said premises for the months of August and September and informed plaintiff that
unless said rentals were immediately paid to them they would declare a forfeiture of their
agreement of April 5, 1943; that, pursuant to this demand and threat, plaintiff paid the Coreys
$340, which they kept; that they did not within sixty days deposit in escrow their affidavit of
refusal of defendants Pauff to consent to assignment of the lease, but did, at some subsequent
date unknown to plaintiff, and after their acts and conduct had influenced defendants Pauff to
refuse to give their consent thereto, deposit said affidavit, in escrow; that by reason of said
acts and conduct of defendants Corey, said affidavit was meaningless and ineffectual.
That at a time subsequent to serving upon defendants Corey their notice of termination of
the lease, to wit, on or about October 4, 1943, defendants Pauff orally offered to enter into a
new lease with plaintiff for a five year term commencing October 1, 1943, at a monthly rental
of $225 per month; that said offer is still subsisting; that plaintiff, although willing to enter
into such new lease with defendants Pauff, cannot safely do so without the determination of
the court that his contract with defendants Corey is no longer valid and binding, inasmuch as
defendants Corey, in the absence of such judicial determination, will attempt to pursue the
remedies of forfeiture and reentry provided in their agreement, and it will become necessary
for plaintiff to contest their right so to do in protracted litigation with the ultimate decision
in doubt; that on October 14, 1943, defendants Pauff served upon plaintiff their three day
notice, demanding that plaintiff surrender to them the immediate possession of said
premises, and notifying plaintiff of their intention, in the event of his failure to do so, to
institute legal proceedings for recovery of possession of the same.
with the ultimate decision in doubt; that on October 14, 1943, defendants Pauff served upon
plaintiff their three day notice, demanding that plaintiff surrender to them the immediate
possession of said premises, and notifying plaintiff of their intention, in the event of his
failure to do so, to institute legal proceedings for recovery of possession of the same.
The amended complaint further alleged that all questions and controversies that have
arisen between the parties to this action * * * can be and should be settled, adjudged and
adjudicated in this one action, and that it is essential to promote the ends of justice that this
entire controversy should be determined in this one proceeding so that the rights and duties of
all parties interested may be finally settled and adjudicated. The amended complaint also
alleged lack of an adequate remedy at law. By reason of the facts alleged, the following relief
was prayed: 1. Continuance of the restraining order pendente lite. 2. Continuance pendente
lite, of the order for payment into court. 3. For an injunction, pendente lite, to restrain
defendants Corey and defendant bank from assigning or otherwise hypothecating the
promissory note executed by plaintiff and Turner. 4. That after hearing upon the merits, the
temporary injunction be made permanent, and that plaintiff be adjudged to be in lawful and
peaceful possession of the premises either under the terms and conditions of the instruments
in writing hereinbefore referred to or under the proposed lease agreement between plaintiff
and defendants Pauff. That the court determine the liability of said plaintiff to the respective
defendants herein, and construe and determine the instruments set forth and described herein,
and terminate the uncertainty and controversy giving rise to the proceedings herein, and
determine all equities and liabilities as between plaintiff and defendants and as among the
defendants themselves. 5. That in the event that total failure of consideration should be
adjudged, that the agreement between plaintiff and defendants Corey should be canceled
and annulled, and that in the event that partial failure of consideration should be
adjudged, the extent thereof should be ascertained and set off against the remaining
indebtedness of plaintiff to defendants Corey, if any. 6. For a money judgment against
defendants Corey in the sum of $25,000. 7. For other and further relief and costs of suit
against such defendant or defendants as may be proper.
that the agreement between plaintiff and defendants Corey should be canceled and annulled,
and that in the event that partial failure of consideration should be adjudged, the extent
thereof should be ascertained and set off against the remaining indebtedness of plaintiff to
defendants Corey, if any. 6. For a money judgment against defendants Corey in the sum of
$25,000. 7. For other and further relief and costs of suit against such defendant or defendants
as may be proper.
The record on appeal discloses sundry additional motions and proceedings attacking the
amended complaint and having to do with the temporary restraining order above referred to.
At one state of the proceedings the defendants Corey served and filed a Notice of Motion to
abate or dismiss the action upon the ground that the dispute controversy or question asserted
in the amended complaint had become moot, for the reason that after the filing of said
amended complaint the said defendants Corey had, as plaintiffs, commenced an action against
Kress and Turner growing out of the matters embraced in the amended complaint, and that
such action was still pending; that the matters alleged in the amended complaint herein were
in any event of a defensive nature, and could be asserted in defense of the said subsequent
action. This motion was thereafter denied by the court, but solely upon the ground that the
same had not been noticed in compliance with the requirements of rule X of the Rules of the
District Court, and without prejudice. The record discloses that the respective demurrers to
the amended complaint were orally argued at length and supported by written briefs. The
record does not disclose any formal opinion or decision by the learned district judge in
support of the orders complained of other than the clerk's minutes from which it appears that
the court ordered that the demurrer of the defendants Corey to the amended complaint be
sustained without leave to amend upon the ground that the amended complaint does not
state facts sufficient to constitute a cause of action against the defendants or either of
them and upon the further grounds that there is a defect or misjoinder of parties in that it
appears that the First National Bank of Nevada, a corporation, has no community of
interest whatever in said litigation, and that joinder of the defendant Arthur C.
does not state facts sufficient to constitute a cause of action against the defendants or either of
them and upon the further grounds that there is a defect or misjoinder of parties in that it
appears that the First National Bank of Nevada, a corporation, has no community of interest
whatever in said litigation, and that joinder of the defendant Arthur C. Pauff and Harry C.
Pauff, if there is a cause of action against either of them, it is upon entirely different grounds,
and that there is a misjoinder by joining said Arthur C. Pauff and Harry C. Pauff * * *. In all
other particulars the demurrer was overruled. The court further ordered that the demurrer of
defendants Pauff upon the grounds that the amended complaint does not state facts sufficient
to constitute a cause of action against them or either of them, is sustained without leave to
amend. The same minutes indicate the court's order made at the same time that all moneys
theretofore deposited with the clerk under the former order be released and returned to the
plaintiff, and that the injunction theretofore issued be dissolved. The same minutes also show
the following: Further Ordered that this action be, and the same is hereby dismissed and the
defendants may have their costs of suit incurred. Notice of these orders was given by quoting
the same in full.
The notice of appeal recites that the appeal is taken from such order and the whole
thereof, and each and every part thereof and thereupon again recites in full the order
complained of.
As there is no appeal from an order sustaining a demurrer, the purported appeal from the
order sustaining the demurrers is hereby dismissed. N.C.L., 1931-1941 Supp., sec. 9385.60.
Counsel's opening brief (apparently in compliance with the requirement of sec. 9385.60,
N.C.L., to the effect that appellant shall in his opening brief state his points and such errors as
he shall rely on) recites: This appeal is taken from the order of the court of August 11, 1944,
sustaining defendants' demurrers to plaintiff's amended complaint without leave to
amend and dismissing plaintiff's action."
August 11, 1944, sustaining defendants' demurrers to plaintiff's amended complaint without
leave to amend and dismissing plaintiff's action. This leaves for the consideration of this
court the appeal from the judgment of dismissal, with consideration, of course, of the error
assigned in the sustaining of the demurrers without leave to amend. The appeal from that part
of the order that dissolves the temporary injunction and releases to the plaintiff the funds
deposited with the clerk under the prior order of the district court, will, accordingly, not
require attention except insofar as it is affected by the order of this court heretofore made
denying the application of the appellant for an order for a writ of supersedeas.
The statement contained in appellant's opening brief to all intents and purposes limits the
appeal to the judgment of dismissal. However, the court made its order denying plaintiff's
application for a writ of supersedeas, upon the stipulation of counsel that an order might be
made and the court's opinion filed later. Such opinion, prepared by Honorable Harry M.
Watson, district judge, commissioned by the Governor to sit with the court in this case by
reason of the disqualification of Honorable Charles Lee Horsey, associate justice, is hereby
adopted by the court in support of the order denying the application for supersedeas.
Opinion on Motion for Supersedeas
As to the Notice of Motion to Dismiss the motion for a writ of supersedeas and the
Demurrer to such motion, it not having been pointed out wherein appellant's Notice of
Motion is in violation of any Supreme Court Rule, or is contrary to precedent, and a motion
to strike a motion being unusual procedure to say the least, they are given consideration as is
the Response, only as they bear upon whether the appellant's motion should or should not be
granted.
It is contended by appellant that the perfecting of the appeal and providing the $300.00
appeal undertaking stays all proceedings in the case, and that the preliminary injunction
issued and later dissolved by the trial court therefore remains in full force and effect,
thereby enjoining the action of Arthur C. and Harry C.
the appeal and providing the $300.00 appeal undertaking stays all proceedings in the case,
and that the preliminary injunction issued and later dissolved by the trial court therefore
remains in full force and effect, thereby enjoining the action of Arthur C. and Harry C. Pauff
against appellant and respondents. In support of this he relies largely on Gottwals v. Rencher,
60 Nev. 35, 92 P.2d 1000, decided in 1939. It would naturally follow, it seems, that appellant
would have the same contention apply to the other cases pending or threatened, which he asks
to be stayed.
The action appealed from was for a declaratory judgment, determining the legality and
effect of, variously; a lease, or leases, agreement of sale, or proposed lease agreement, and
various conduct of various parties, the rights and obligations of the various parties plaintiff
and defendant and each of them, and praying consequential or corrective relief.
By order of the trial court appellant and plaintiff paid to the clerk of the court installments
and ground rents as of the due dates alleged in the complaint for declaratory relief. The court
order provided these payments should be in lieu of payments to be made the Coreys by
agreement of April 5, 1943. The Coreys were likewise restrained from endorsing or assigning
the note in question.
Defendants were enjoined by temporary injunction from doing any act to disturb the
peaceful possession of plaintiff appellant and the conduct of his business at the cafe. This was
dissolved when the demurrers were sustained without leave to amend.
1, 2. The question here to be determined is whether appellant is entitled to writ of
supersedeas as prayed. Except where the court is bound to allow a supersedeas or stay as a
matter of right (as where supersedeas or stay is the subject of express statutory provisions (3
C. J., Appeal and Error, sec. 1397, Page 1274), an order for a supersedeas or stay will only
be granted on good cause shown and where a proper case for exercise of the court's
discretion is made out.' 3 C. J., sec.
for a supersedeas or stay will only be granted on good cause shown and where a proper case
for exercise of the court's discretion is made out.' 3 C. J., sec. 1411, page 1290. Idem: As a
rule a supersedeas or stay should be granted, if the court has the power to grant it, whenever it
appears that without it the object of the appeal or writ of error may be defeated, or that it is
reasonably necessary to protect appellant or plaintiff in error from irreparable or serious
injury in the case of reversal, and it does not appear that appellee or defendant in error will
sustain irreparable or disproportionate injury, in case of affirmance * * * on the other hand, as
a rule, a supersedeas or stay will not be granted * * * unless it appears to be necessary to
prevent irreparable injury or a miscarriage of justice.' [See, also, 4 C.J.S., Appeal and Error,
sec. 636.]
The contention of appellant that the preventive temporary injunction dismissed by the
trial court had the breath of life breathed into its dead lungs, by the mere formality of
providing necessary undertaking for, and perfecting an appeal, does not find support by the
authorities reviewed. In Hicks v. Michael et al., 15 Cal. 107, in an appeal from an order
refusing an injunction, the simple question is presented, whether an appeal from an order of
this character can operate to create an injunction, or prolong a restraining order, until the
ruling of the judge can be reviewed by the appellate court. It is clear that no such effect can
be given to an appeal, even when the most ample bond of indemnity is tendered. Where an
injunction has been refused, there is nothing operative. A stay can only be sought of that
which has an existence, and by its operation is supposed to work injury to appellant. It is
therefore, from the nature of the case, only of orders or judgments which command or permit
some acts to be done, that a stay of proceedings can be had. (Merced Mining Co. v. Fremont,
7 Cal. 130, 132.) Nor can an appeal operate to create an injunction under any
circumstances.
to create an injunction under any circumstances. * * * We think the restraining order expired
by its own limitation; but for the purposes of the argument, we will regard the order as a
temporary injunction and the appeal as being made from an order dissolving the same. The
plaintiff is in no better condition upon this hypothesis. An appeal does not revive an
injunction once dissolved, * * * if the injunction could be revived by the mere act of the party
in filing an appeal, it would be giving to him, not only a power of control over the orders of
the court, but of creating an injunction. (citing Wood v. Dwight, 7 Johns. Ch. N.Y., 295) * *
* Supposing (an appeal) can be sustained, it is impossible that a process that is duly
discharged, and functus officio, can be revived by the mere act of the party. How could this
court undertake to enforce the process and punish contempts of it, in the very face of the
order dissolving it? (citing Hoyt v. Gelston, 13 Johns, N.Y., 139) When a process is once
discharged and dead it is gone forever; and it can never be revived, but by a new exertion of
judicial power.'
3. An order dissolving an injunction is self-executing, and is not superseded by filing an
appeal bond. 32 C.J., Injunctions, sec. 735, n. 18; 43 C.J.S., Injunctions, sec. 255; Manning v.
Poling, 114 Iowa 20, 83 N.W. 985.
4. A judgment not requiring or permitting, the doing of any act will not be superseded,
there being nothing on which the writ can operate in the relief or aid of appellate jurisdiction.
Lickley v. Board of Education of Los Angeles County, 62 Cal.App. 527, 217 P. 133;
Southern Pacific Co. v. Smith, 171 Cal. 8, 151 P. 426; Tyler v. Presley, 72 Cal. 290, 13 P.
856; Erickson v. Municipal Court, 131 Cal.App. 327, 21 P.2d 480. When the judgment is
rendered, and no process is required to be issued for its enforcement, no supersedeas is
allowed. In fact, there is no necessity for such writ. There is nothing to stay or supersede.
To the same effect is, In the Matter of M. O. Graves, 62 Cal.App. 168, 216 p. 386, 387, *
* * The general rule, therefore, is that supersedeas will not issue where the judgment does not
command or permit any act to be done, or where it is not of a nature to be actively and
affirmatively enforced by execution or otherwise.'
5. Nor do we feel that Gottwals v. Rencher, supra, would sustain appellant's contention.
The receiver appointed in the court below made sale as ordered by the court, and filed his
return and account of sale and petitioned for order confirming and approving said sale.
Appellant there moved the court below for an order staying the hearing of return, account and
petition, vacating the order setting said hearing, vacating said sale and for writ of supersedeas,
which motion was denied. The appeal had been perfected before the sale, and notice thereof
given respondents and the receiver through their attorneys, with a demand that they desist
from further acts and proceedings with reference to said sale. Upon this state of facts the
Supreme Court ordered a stay of proceedings for confirmation of sale, and vacated the order
for such hearing, pending the appeal. In that case the order below required the doing of some
act, i.e., that the receiver have the sale confirmed, as required by law. There was something
on which the writ could operate and stay, something to be actively and affirmatively enforced,
unless stayed. We point out that the court did not vacate the sale, as prayed, even though
made after appeal had been perfected, there being nothing with reference to the actual sale
then pending, on which the writ could operate. A writ of supersedeas will not function as a
writ of certiorari or writ of mandamus. The remedy of supersedeas is usually regarded as
injunctive or prohibitive in character and not corrective. Craig v. Stansbury, 37 Cal.App. 668,
174 P. 404.
6. It follows therefore that supersedeas could not function to effect a revival or
reinstatement of a temporary, prohibitive injunction, once dissolved.
function to effect a revival or reinstatement of a temporary, prohibitive injunction, once
dissolved.
7. The contention that the injunction enjoined the bringing of any action against
appellant concerning matters involved in the case appealed is likewise, we think, untenable.
An injunction should be so clear and certain that a party may readily know what he is
restrained from doing and that he must obey it at his peril. 32 C.J., Injunction, sec. 620, p.
369, 43 C.J.S., Injunction, sec. 206; Summers v. Farish, 10 Cal. 347. The restraining order
here makes no reference to litigation, multitudinous, vexatious or otherwise. If the temporary
injunction could be restored, it would therefore have no such effect as contended for by
appellant.
8. We think that Dodge Brothers, Inc. v. General Petroleum Corporation of Nevada, 54
Nev. 245, 10 P.2d 341, 13 P.2d 218; Lovelock Mercantile Co. v. Lovelock Irr. Dist., 51 Nev.
179, 272 P. 1; State v. Ducker, 35 Nev. 214, 127 P. 990; and Silver Peak Mines Co. v.
Second Judicial District Court, 33 Nev. 97, 110 P. 503, Ann.Cas.1913D, 587, clearly
distinguished between preventive and mandatory injunctions, determining that on an appeal
from the temporary mandatory' injunction the appellant is entitled as a matter of right to a
stay of proceedings under the injunction upon the filing of a proper stay bond. See also
Gottwals v. Rencher, supra, deciding that stay bond be required only when necessary to
protect appellee against damages he might sustain by reason of an unsuccessful appeal.
The application for an order for a writ of supersedeas was accordingly denied.
9. We emphasize the opening paragraph of the foregoing opinion of Honorable Harry M.
Watson with reference to the motion of the respondents to dismiss the notice of motion of
appellant for a writ of supersedeas. This court has, on several occasions, condemned the
practice of submitting a motion to dismiss a motion.
With as much propriety, or perchance with greater propriety, could the original movent notice
a motion to dismiss the motion to dismiss the motion. The very statement indicates the
confusion that is bound to ensue. If there is a good reason why a motion should not be
entertained by the court, such reason may be advanced as a ground in support of the denial of
the motion. The confusion is not confined to the mere records of this court, but to the orderly
presentation of oral argument to the court. If a litigant has a right to move to dismiss a
motion, he would presumably have a right to open and close the argument on his motion to
dismiss the motion, and such argument, followed in turn by the arguments on the motion
proper, would seriously affect the orderly and dignified presentation of matters to this court.
Opinion on the Merits
Certain provisions of the Corey-Kress contract amounted substantially to this: The Coreys
would obtain the consent of the Pauffs to the assignment of the lease; but, failing this, the
Coreys nevertheless covenanted for the quiet and peaceable possession by Kress for the
remainder of the term.
Eliminating for the moment all consideration of the subsequent suits brought by the Pauffs
and the Coreys, as indicated in appellant's petition for a writ of supersedeas, and as indicated
by respondents' contention that the subsequent suit by the Coreys made declaratory action
moot, and having in mind only the situation as it appeared to the district court at the time of
the submission of the general and special demurrers to the amended complaint filed by the
respective groups of the defendants, we find the following situation: The Pauffs had served
on the Coreys a notice of termination of lease by reason of a breach of the covenant against
assignment and subletting without written consent. Less than two months later the Pauffs
served on Kress a three day notice to quit "or the undersigned will institute legal
proceedings against you to recover possession of said premises."
a three day notice to quit or the undersigned will institute legal proceedings against you to
recover possession of said premises. Kress tried to pay the current rentals to the Pauffs. They
refused to accept. Kress paid the rentals to the Coreys, who in turn tried to pay the same to the
Pauffs. Again the Pauffs refused to acceptapparently abstaining from any act that would
constitute a waiver of their asserted right to terminate the Pauff-Christopher-Corey lease, or
as a waiver of their asserted right to maintain an appropriate action against Kress pursuant to
the three day notice to quit. Despite this situation the Coreys insisted that Kress continue to
pay the accruing monthly rentals, which he did, and which rentals the Coreys appropriated to
their own use. The Coreys also insisted that Kress pay the accruing monthly payments of
$1,000 and interest under the contract and as evidenced by his promissory note.
There has been much discussion by respondents of the asserted rule that an action for a
declaratory judgment is not a substitute for other and ordinary actions open to a party as a
matter of right, but respondents have not indicated what these actions or defenses would be
under the situation presented by the amended complaint. Let us explore the question as a
whether such other and ordinary actions or defenses were effectively open to him without
resort to the declaratory judgment act for relief. Independently of his contract with the Coreys,
he faced an unlawful detainer action as threatened by the Pauffs. Against such action his
analysis of possible defenses might include. (1) My information is that your lease to Corey
does not contain a covenant against assignment or subletting; therefore, I am safe in my
assignment of the lease. (2) The instrument, under which I am holding, creates only a license
in me to occupy the premises and is therefore not a violation of a covenant against assignment
and subletting. (3) The covenant against assignment and subletting is so unreasonable as not
to be enforceableat least to the extent of terminating the tenancy.
of terminating the tenancy. (4) You have waived the right to enforce this covenant by your
prior consent to the assignment by Christopher to Corey. (5) You are estopped from asserting
this right by impliedly accepting my assignment or subtenancy. (6) The Coreys have put me
in possession of these premises and have given me what amounts to a covenant for peaceful
possession so long as I pay my rentals; therefore, I may call them in to defend against your
action, which you say is a breach of their covenant with you.
But whatever position Kress might be taking as to the foregoing situation, he was
confronted with the very imminent possibility that the threatened action by the Pauffs would
result in a restitution of the premises to them. Was he compelled to await this outcome, and in
the meantime continue to make monthly payments of rental to the Coreys and monthly $1,000
payments to them on his promissory note? Or was he not entitled in some way to effect a
suspension of such payments to the Coreys until it could be judicially determined that such
payments were not on account of a consideration that had materially failed? If entitled to
relief of this nature, how could he accomplish it? In filing his complaint for a declaratory
judgment determining the rights and liabilities of the several parties, is he simply, as asserted
by respondents, asking the advice of the court? The prayer of his complaint is for a temporary
injunction or injunction pendente lite to preserve the status quo, that he be permitted pendente
lite to make his monthly payments into court, that pendente lite the Coreys be restrained from
negotiating the promissory note, and that upon the hearing upon the merits, he be adjudged to
be in the lawful possession of the property, or, otherwise, that the financial situation between
him and the Coreys, including credits for the failure of consideration of the Corey-Kress
contract and including damages suffered by him by reason thereof, be determined.
One more element should probably be first considered. The consideration for the payment
by Kress of $25,510 was the sale of the restaurant business, the delivery of the furniture,
fixtures and supplies and the assignment of the remainder of the term of the Pauff-Corey
lease. That term had eighteen months to run. Trial courts are daily considering far more
difficult questions than the solution of the question of the extent to which the consideration
actually passed from the Coreys to Kress and the extent to which it would have failed if Kress
were dispossessed by the Pauffs. We consider this then a question that the trial court might
well have been able to determine.
If we accept the allegations of the amended complaint as true, then it would appear that no
controversy would have arisen either between the Pauffs and the Coreys (see notice of
cancellation of lease) or between the Pauffs and Kress (see three day notice to quit) or
between the Coreys and Kress (threatened failure of consideration to Kress if he is
dispossessed, and threatened forfeiture of his contract if he fails to make his payments
promptly), if the Pauffs had consented to the assignment from the Coreys to Kress. Kress
would then have been protected in his tenancy to the end of the term, the rentals would have
been paid to the Pauffs, the monthly payments made to the bank for the Coreys and duly
credited on the note, and the bill of sale in due course delivered out of escrow by the bank to
Kressall subject to the exercise by any of the parties of their remedies in case of breach of
the covenants of their contracts. The controversies arose, and the present impasse was
reached, when the Pauffs refused to consent to the assignment. Not only had the Coreys
covenanted to procure such consent (with the alternative heretofore mentioned) and not only
had they failed to obtain it, but, again accepting the allegations of the amended complaint as
true, they wrongfully and by misrepresentation of facts prevailed upon the Pauffs to
withhold it.
misrepresentation of facts prevailed upon the Pauffs to withhold it. It was under these
circumstances that Kress, who had made a $7,000 down payment to the Coreys, met all
covenants for payment of rent, made all accruing $1,000 monthly payments on his note, paid
an obligation of $1,067.52 on behalf of the Coreys as he had agreed, and was ready, able and
willing to continue to perform, asked, not the advice of the court, but a declaration of his
rights and liabilities in the premises and the protection of his rights by injunction, set-off,
reformation of his contract, etc.
The foregoing analysis of the situation appears to us to be essential before laying alongside
of appellant's claims for relief the yardstick of the declaratory judgment act and the
construction placed upon that act under similar or analogous situations by the courts and the
text writers.
10. The State of Nevada adopted the Uniform Declaratory Judgment Act in 1929. It was
first adopted in Tennessee and Wyoming in 1923. Code Tenn.1932, sec. 8835 et seq.,
Comp.St.Wyo.1945, sec. 3-5801 et seq. The federal Declaratory Judgment Act was passed in
1934. 28 U.S.C.A., sec. 400. At the present time only five states in the union have failed to
incorporate such an act into their statute law. For many years prior to the adoption of any such
statutes courts have nonetheless been rendering declaratory judgments, that is, the declaration
of the pre-existing rights of the litigants without any coercive decree, in such cases as quiet
title suits, the construction of wills and the interpretation of deeds, the determination of
marriage relations, the validity of instruments, interpleader suits, etc. Under the Uniform
Declaratory Judgment Act the door has been opened to the adjudication of innumerable
complaints and controversies not theretofore capable of judicial relief, Borchard, Declaratory
Judgments (1934) Preface, and courts may now function to vindicate challenged rights,
clarify and stabilize unsettled legal relations and remove legal clouds which create
insecurity and fear. Id.
11.
legal relations and remove legal clouds which create insecurity and fear. Id.
11. In the many hundreds of cases that have reached the courts of last resort in the various
states (which have not hesitated to draw upon the decisions of the courts of England,
Scotland, Canada, Australia and others) there has naturally been built up a structure of case
law prescribing the conditions and defining the limits under and within which declaratory
relief may be obtained. Appellant and respondents have both cited State ex rel. La Follette v.
Dammann, 220 Wis. 17, 264 N.W. 627, 628, 103 A.L.R. 1089, which, citing Brochard, supra,
crystallized the requirements for declaratory relief as follows:
The requisite precedent facts or conditions which the courts generally hold must exist in
order that declaratory relief may be obtained may be summarized as follows: (1) there must
exist a justiciable controversy; that is to say, a controversy in which a claim of right is
asserted against one who has an interest in contesting it; (2) the controversy must be between
persons whose interests are adverse; (3) the party seeking declaratory relief must have a legal
interest in the controversy, that is to say, a legally protectible interest; and (4) the issue,
involved in the controversy must be ripe for judicial determination. Declaratory Judgments,
Borchard, pp. 26-57.
Respondents insist that none of these conditions have been met by the amended complaint,
while appellant insists that the pleading shows the existence of all of them. With the latter
view we are in accord.
Respondents rely on the La Follette case above cited, and in which relief was denied on
the ground that only the advice of the court was sought, but the case is clearly distinguishable.
The Governor of Wisconsin desired to make various appointments (a) in cases where the
incumbents' terms had expired and they were holding over, (b) in cases where the incumbent
had died and a vacancy existed, {c) in cases where the vacancy occurred before the 1935
session of the legislature but were not filled during that session, {d) in cases where the
vacancy occurred during that session but had not been filled, and {e) in cases where the
vacancy might occur the following year while the legislature was not in session.
vacancy existed, (c) in cases where the vacancy occurred before the 1935 session of the
legislature but were not filled during that session, (d) in cases where the vacancy occurred
during that session but had not been filled, and (e) in cases where the vacancy might occur the
following year while the legislature was not in session. The secretary of state insisted that the
appointments could not be made and that he would not honor the commissions which the
governor was about to issue, nor would he audit or pay the salaries. The court held that
difference of opinion is not enough to make a justiciable controversy, citing Garden City
News v. Hurst, 129 Kan. 365, 282 P. 720, and Williams v. Flood, 124 Kan. 728, 262 P. 563.
It held that as no appointments had been made, there was none who could assert a legally
protectible interest; that no rights had become fixed but were possible future or contingent
rights; that there was no justiciable controversy between the governor and the secretary of
state, and the prospective appointees were not before the court so that their rights could not be
prejudiced by any ruling made and the controversy terminated. We are unable to conclude
that the La Follette case governs the instant one.
The same applies to City and County of Denver v. Lynch, 92 Colo. 102, 18 P.2d 907, 86
A.L.R. 907. As to the thirteen interrogatories propounded, the court held that they were but
remotely connected with the litigation, many of them were abstract and many of them
involved the settlement of mere academic questions.
Respondents rely strongly on Washington-Detroit Theater Co. v. Moore, 249 Mich. 673,
229 N.W. 618, 68 A.L.R. 105, which upheld the constitutionality of the Michigan Declaratory
Judgment Actthe original act having been held unconstitutional by the same court in
Anway v. Grand Rapids Ry. Co., 211 Mich. 592, 179 N.W. 350, 12 A.L.R. 26. The court
recited numerous holdings as to conditions under which declaratory relief would not be
given, stating frankly, however, that the rules and citations were taken from the notes in
12 A.L.R. 52, 19 A.L.R. 1124, and 50 A.L.R. 42, and were not to be taken as advance notice
as to the future position of the court.
would not be given, stating frankly, however, that the rules and citations were taken from the
notes in 12 A.L.R. 52, 19 A.L.R. 1124, and 50 A.L.R. 42, and were not to be taken as
advance notice as to the future position of the court. The purpose of the citations was to
support the court's view that the amended act was constitutional and did not violate accepted
concepts. It is significant that the court sustained the lower court in entertaining jurisdiction
of the complaint for declaratory relief. Plaintiff in that case had a ninety-nine year lease on
defendant's building and claimed the right to demolish it and erect a new one for other than
theater purposes. Defendant denied plaintiff's construction of the lease and threatened to
forfeit it if plaintiff commenced destruction of the building or used it for other than theater
purposes. With these facts appearing from the complaint, the Michigan Supreme Court held
that the Circuit Court had properly refused to dismiss the bill. The plaintiff Theater Company
sought not only a declaration of its rights under the lease but an injunction restraining
defendant from interfering with destruction of the building or attempting to forfeit the lease.
Here appellant sought a declaration of his rights under the two instruments referred to and an
injunction restraining * * * the defendants * * * from interfering with the (his) peaceful
possession, use and freedom of the real property and the improvements thereon * * *. So far
as concerns the defendants Pauff, the ultimate ruling in the case supports appellants view.
Before leaving the Washington-Detroit Theater case it should be noted that Borchard
criticizes the recited conditions mentioned in this dictum and says that the quoted A.L.R.
notes are not sustained by all of the authorities citeda number of the cases not being actions
for a declaratory judgment at all. He also criticizes the limitation, though it applies in most
cases, that the declaration may not be had when the danger "is merely apprehended or
feared," citing the example of the clearing of clouds on title through documents on record
though no claim has been asserted under such documents.
is merely apprehended or feared, citing the example of the clearing of clouds on title
through documents on record though no claim has been asserted under such documents.
Borchard, Declaratory Judgments (1941) 165. In any event, we are satisfied that the limitation
does not apply here where the claims, demands and threats of both groups of defendants have
been alleged.
Respondents also place great reliance on the case of Millard County et al. v. Millard
County Drainage District No. 1 et al., 86 Utah 475, 46 P.2d 423, 425. In that case plaintiff
filed a quit claim title suit against certain named defendants claiming some interest in the
land. Millard County attempted to join as a plaintiff against other defendants claiming
interests in other lands not described, so that not only have we two parallel and independent
suits in the same action in which the only cohesive is the fact that there are law points in
common which will be controlling in both cases, but we have one of the law suits without any
definite subject-matter upon which a judgment can operate. * * * The statute did not intend to
dispense with the necessity of having a particular and specific subject-matter such as a
particular piece of real estate, chattel, person, written instrument, chose in action, debt, estate,
fund, or other definite subject in respect to which the litigation applied or upon or in regard to
which a judgment could operate. Here both the Kress-Corey controversy and the Kress-Pauff
controversy operate upon the same thingthe right to the possession of the cafe property.
The two controversies are more in the nature of those described as being hooked up in
series, in regard to which the same court says: In some cases controversies may also be
hooked up in series. This is when they are so connected as to make it imperative to determine
one as a condition for determining the other. This problem is peculiarly present in the instant
case. See, also, in this regard: Webb-Boone Paving Co. v. State Highway Commission et al.,
1943, 351 Mo. 922, 173 S.W.2d 580; Maryland Casualty Co. v.
Maryland Casualty Co. v. Hubbard, D.C., 1938, 22 F. Supp. 697; Alfred E. Joy Co., Inc. v.
New Amsterdam Casualty Co., 98 Conn. 794, 120 A. 684.
Respondents insist that rather than a present controversy, appellant's amended complaint
simply pleads a fear that certain controversies will or may arise in the future, that they are
remote and contingent and may not be reached by a declaratory suit. In support of this
contention respondent relies upon Nashville Trust Co. v. Dake, 162 Tenn. 356, 36 S.W.2d
905, which approves earlier Tennessee cases to the effect that the statute does not
contemplate declarations upon remote contingencies or abstract or incidental questions. Most
other authorities agree with this principle under the general theory that an actual controversy
must existor at least the ripening seeds of a controversy. In the Nashville Trust Company
case, however, it appears that declaratory relief was sought by a judgment creditor of a
beneficiary of a trust estate for life in order to determine what the rights of such judgment
creditor would be after the decease of the beneficiary. The suit was brought during the
lifetime of the beneficiary who had a life expectancy of over twenty years, and it was under
such situation that the Tennessee court held that a construction or declaration of an issue so
remote should not be made. To like purport is In re Straus' Estate, 307 Pa. 454, 161 A. 547.
During the lifetime of the life tenants of a testamentary trust the executors of the decedent's
estate sought a declaration as to the rights of the remaindermen. It was alleged by the
executors that it was important to determine whether the decedent's interests constituted a
vested remainder so that certain tax liabilities could be determined. The court held, however,
that such determination would have to await the filing of the accounts of the trustees upon the
death of the life tenants. In support of such rule against declaration of future remote and
contingent controversies, respondents also rely upon Mulcahy v. Johnson, 80 Colo. 499, 252
P.
252 P. 816; Gorham v. Gorham, 99 Conn. 187, 121 A. 349, and other cases. We do not
consider them in point, although we may note in passing that in some of these cases the facts
approach closely to cases in which declaratory relief has been awarded in later cases giving a
broader scope and greater liberality to the purposes of the statute.
Respondents say: Appellant would like to continue on with the Corey-Kress contract
except that he fears what defendants Pauffs, the landlords, might do to him if he so continues;
i.e., he fears that if he does so, the Pauffs will carry out what he considers their threat to
remove him from the premises, * * * or, as an alternative, he would like to fail to perform the
unperformed portion of the Corey-Kress contract by retaining the balance of the money that
he owes the Coreys and enter into a new lease contract with defendants Pauff, except that he
fears what the Coreys might do to him for breach of his contract with them if he does so.
This is perhaps not a strained picture of the situation, which is, however, a little more
complicated. The Pauffs' three day notice to quit, with the further notice that legal
proceedings will otherwise be taken, is, however, not accurately characterized as something
which the appellant considers a threat to remove him. Anyone would consider it a threat. It
was not only a threat, it was a definite notice that a dispossessory action would be
commenced, and it was also a definite statutory prerequisite to the bringing of such an action.
It followed the notice by the Pauffs to the Coreys of termination of the tenancy by reason of
the breach of the covenant against assignment and subletting. The fear of what the Coreys
might do was of just as present a controversy as witnessed by the action brought against Kress
by the Coreys, as disclosed by the supersedeas record herein to which both parties have
referred.
The cases are full of examples in which actions for declaratory relief have been entertained
to determine the rights of landlords, lessees and sublessees under various contentions as
to what acts or conditions might constitute a breach of certain covenants of the lease.
the rights of landlords, lessees and sublessees under various contentions as to what acts or
conditions might constitute a breach of certain covenants of the lease. In Levco Theater
Corporation v. Mandy Amusement Corporation, 262 App.Div. 776, 27 N.Y.S.2d 785, a
sublessee was permitted to sue the original lessee for a declaratory judgment upon the
plaintiff's claim that it was entitled to a reduction in rent under its sublease equal to that
obtained by the original lessee from his lessor, the court saying: There is a real issue as to
whether the agreement that the rentals under the two leases should be the same is not to be
read into the sublease. Since plaintiff faces the hazard of losing its lease through dispossess
proceedings if it refuses to pay its original rent, which is still being exacted, the case is a
proper one for a declaratory judgment. In Leibowitz v. Bickford's Lunch System, 241 N.Y.
489, 150 N.E. 525, a sublessee, in order to induce the original lessor to consent to a sublease
from the original lessee to the sublessee, guaranteed the payment of the lessee's rent to the
lessor. The sublessee, as a matter of convenience, paid rental directly to the successor of the
original lessor, from whom the sublessee subsequently demanded a renewal or extension of
the term, under the provisions of a three-party agreement that had been executed. The original
lessor's successor refused but continued to collect the rents from the sublessee. The suit for
declaratory judgment was filed by the sublessee against both the lessor's successor and the
original lessee, and the court rendered a judgment defining the rights of the parties. This
involved the mutual rights and obligations of the defendants as well as those existing between
the plaintiff and the defendants. In Webb-Boone Paving Co. v. State Highway Commission,
351 Mo. 922, 173 S.W.2d 580, 584, the original contractor sued the State Highway
Commission and also the subcontractor for a declaration of the rights of the subcontractor, if
any, against the plaintiff and of the plaintiff, if any, against the Commission.
the Commission. This grew out of the demand of the subcontractor for approximately
$10,000 additional compensation because certain theretofore undisclosed structures had been
encountered in its excavation work. The court reviewed the authorities at some length, and
stated: If, as charged in plaintiff's petition, the rights arise out of an interrelated transaction
and are interdependent, the proceeding under the declaratory judgment Act may settle the
rights of the several parties to the transactions and avoid the necessity of separate suits. * * *
the reasoning is applicable here of cases holding that the Act may be invoked to declare the
rights of an insurer and an insured with respect to whether a policy of insurance protects the
insured against liability to a third person. Like the insurance cases hereinafter mentioned, the
plaintiff in the action sought to determine his rights against the one defendant which were
contingent upon his liability to the other defendant. The court found the case analogous to
Alfred E. Joy, Inc. v. New Amsterdam Casualty Co., 98 Conn. 794, 120 A. 684, abstracting
that case as follows:
Joy Company contracted to paint a Grace Hospital Society building for $10,995. It
subcontracted the painting to one Hawley for $10,000. The subcontract authorized Joy
Company to complete the work under certain contingencies and, in such event, to deduct the
expense incurred from moneys due or to become due Hawley, with Hawley also agreeing to
pay any expense so incurred in excess of moneys due him as well as any liens arising out of
his default. The New Amsterdam Casualty Company entered into a surety bond on behalf of
Hawley to the Joy Company. Hawley defaulted. Joy Company completed the painting. Two
lien claims, aggregating $1,670, were filed. The Hospital Society refused to pay Joy Company
a balance of $1,890 and Hawley and his surety refused to discharge or take action with
respect to the lien claims. Joy Company's action for a declaration of the rights between
itself, Hawley and his surety, the lienors and the Hospital Society was upheld.
action for a declaration of the rights between itself, Hawley and his surety, the lienors and the
Hospital Society was upheld. The declaration of the rights of the Joy Company against the
Hospital Society was contingent upon the declaration of the rights of the lienors, and against
Hawley's surety was contingent upon the rights of said lienors.
In Tolle v. Struve, 124 Cal.App. 263, 12 P.2d 61, 63, defendants Struve had executed a ten
year lease to plaintiffs and covenanted to build a theater and store building on the premises.
Plaintiffs subleased to defendant Clark who entered into a partnership with defendant
Atkinson. The Clark and Atkinson interests thereafter vested in Sutton, the appellant.
Defendants Struve had conveyed to defendants Lavery and Gustin. Thereafter Sutton claimed
the construction to be faulty and the building to be deteriorating and for such reasons
attempted to terminate her tenancy under her sublease. The plaintiffs refused to agree to such
cancellation, but on the same ground attempted to terminate their liability under their original
lease. The owners refused and plaintiffs brought their action for declaratory judgment, joining
as defendants the original lessors and assignees, the present sublessees and the intermediate
sublessees, asking for a construction of the two leases involved and the rights of the parties
thereunder. The court declared the rights of all of the parties, holding them all bound by the
lease and the rentals due between the parties, respectively. Sutton appealed, contending that
there was no justiciable controversy. The court said, adopting the opinion of the trial judge:
I do not believe a pleading fatally defective which states facts from which it is manifest
that there is such a controversy, though the pleading does not label it a controversy, or say, in
so many words that, as to a given issue of law, one party has thrown down the gauntlet. But,
however that may be, it does appear, from the complaint, that the defendants, Clark,
Sonneman, and Sutton became obligated to the plaintiffs upon the sublease; that, having
succeeded to the interests of the rest, the Suttons undertook, under claim of right based
on the alleged condition of the building, to cancel the sublease, and refuse to pay rentals
thereunder and claim no longer to be bound thereby, and that the plaintiffs refuse to
acquiesce in such cancellation.
man, and Sutton became obligated to the plaintiffs upon the sublease; that, having succeeded
to the interests of the rest, the Suttons undertook, under claim of right based on the alleged
condition of the building, to cancel the sublease, and refuse to pay rentals thereunder and
claim no longer to be bound thereby, and that the plaintiffs refuse to acquiesce in such
cancellation. This, I think, is tantamount to saying that the plaintiffs dispute the legal right of
the Suttons to do what they have undertaken to do. It further appears from the complaint that
the plaintiffs, under claim of right based on the alleged condition of the building and the
alleged failure of their lessors to properly maintain it, undertook to cancel the basic lease, and
that Mrs. Lavery and Gustin refused to acquiesce in that cancellation, and claim that the
plaintiffs had no right to terminate the lease. It cannot be gainsaid, therefore, that the
complaint shows an actual controversy between the plaintiffs and Mrs. Lavery and Gustin,
and that the two controversies are very intimately connected together. The complaint,
therefore, does show on its face
that there are actual controversies relating to the legal rights and duties of the respective
parties.'
We are satisfied that appellant is arguing for too narrow a construction of our declaratory
relief statute, and one which, if adopted, would seriously impair a statute which has already
proved, and should hereafter increasingly prove, a valuable enlargement of the judicial power
of our courts. It was a defect of the judicial procedure which developed under the common
law that the doors of the courts were invitingly opened to a plaintiff whose legal rights had
already been violated, but were rigidly closed upon a party who did not wish to violate the
rights of another nor to have his own rights violated, thus compelling him, where a
controversy arose with his fellow, to run the risk of a violation of his fellow's rights or to wait
until the anticipated wrong had been done to himself before an adjudication of their
differences could be obtained.
of their differences could be obtained. Thus was a penalty placed upon the party who wished
to act lawfully and in good faith which the statute providing for declaratory relief has gone far
to remove. We feel that the courts should construe the statute with reasonable liberality so
that, in the language quoted, supra, from Hess v. Country Club Park, [213 Cal. 613, 2 P.2d
782] it may not lose a large part of the value which, upon its enactment was supposed to
attach to it.'
The opinion of Judge Yankwich, in Maryland Casualty Co. v. Hubbard, D.C., 22 F. Supp.
697, 700, has been cited with approval in a great many cases. He held that an insurer issuing a
nonownership public liability policy to an employer whose employee, while operating an
automobile with the consent of an owner protected by a public liability policy containing
omnibus clauses, caused injuries, could maintain a bill for declaratory relief against the
owner's insurer on the theory that the employer's insurer's policy was merely excess coverage,
that the automobile owner's insurer's policy was primary coverage, and that the owner's
insurer had the duty of defending the injured party's action against the alleged employee and
employer, notwithstanding the automobile owner was not a party to such action. Quoting
Borchard, the opinion emphasizes the fact that the trend is to extend the benefit of the
declaratory judgment acts to the interests of parties which are jeoparded or challenged even
before a right of action exists or a cause of action accrues. The cases are collected and
digested, including many of the cases referred to in this opinion, and the learned district judge
agrees with the cases cited to the effect that the benevolent purposes of the statute should not
be thwarted by narrow and technical construction, and that the declaration should be made
whether there be a cause of action or not (other appropriate facts appearing). The court held
that the preventive character of declaratory relief permits the adjudication of the relationship
between the two insurers here and of their conflicting legal interest, when it is necessary
in order to define the plaintiff's obligation to the other defendants * * * {the plaintiff)
may seek only an adjudication of freedom from claim."
two insurers here and of their conflicting legal interest, when it is necessary in order to define
the plaintiff's obligation to the other defendants * * * (the plaintiff) may seek only an
adjudication of freedom from claim. The court conceded a lack of privity and conceded that
the defendant-insurer might not be liable to the plaintiff at the time of filing the complaint. It
becomes unnecessary to cite the numerous insurance cases in which this theory has been
generally upheld. Many of these cases will be found cited in the Maryland Casualty Co. case
and in the case notes therein referred to and in the later cases in which the Maryland Casualty
Co. case has been cited. There is, in our opinion, a complete analogy between the
lessor-lessee-sublessee cases, the liability insurance cases, the
owner-contractor-subcontractor-surety cases, and the instant case.
In a timely article entitled Atrocities of Declaratory Judgments Law by William P. S.
Breese (31 Minnesota Law Review, 575, published in May 1947), the author refers to many
basic misconceptions and misapplications of the declaratory judgment acts as revealed in
recent decisions. These are declared to result from (1) failure to appreciate the declaratory
judgment as an alternative remedy, (2) failure to recognize it as a remedy based on a
justiciable controversy, and (3) failure to recognize it as a remedy sui generis. Numerous
cases are cited in which the author claims that the remedy was erroneously withheld (1)
because another remedy was available, (2) where the coercive effect of other available relief
was believed preferable, (3) where further administrative relief was available, (4) where the
trial court was held not to have abused its discretionary powers in denying relief, (5) where
the court failed to distinguish the declaration asked from a mere advisory opinion, and (6)
where it failed to distinguish justiciable controversies. Although it is to be regretted that the
apparent limitations of the purpose of the article did not permit citation and discussion of
cases denouncing the narrow limits thus placed on the application of the act by these
decisions, and stated only that their failure to understand the basic fundamentals of the
remedy was "despite the learned and repeated efforts of the proponents of the
declaratory judgment to educate and correct the bar and the judiciary" we are in accord
with the view that many of the decisions thus critized gave too narrow and limited
construction to the purposes of the act.
denouncing the narrow limits thus placed on the application of the act by these decisions, and
stated only that their failure to understand the basic fundamentals of the remedy was despite
the learned and repeated efforts of the proponents of the declaratory judgment to educate and
correct the bar and the judiciary we are in accord with the view that many of the decisions
thus critized gave too narrow and limited construction to the purposes of the act. This attitude
on our part is, we think, clear from our adoption and approval of the broader and more liberal
concept found in the cases cited supra. We disavow, however, any intention to correct and
educate those courts that disagree with us, and for whose opinions we have the greatest
respect.
Professor Edwin Brochard, whose 1934 and 1941 editions of his work on Declaratory
Judgments have been quite generally cited by the courts, has in a more recent article said:
The declaration has opened the shutters of the forensic camera much wider (than the limits
of equity jurisdiction) and admits to judicial cognizance an entirely new group of interests,
including aggrieved persons who, being prospective defendants to ordinary actions, were not
theretofore perceived by the law until they were sued. They were not allowed to initiate
proceedings. As already observed, the disquietude and uncertainty of a prospective defendant
and obligor, like an alleged infringer of patents, the covenantors of a building restriction,
lessees equally with lessors, justify judicial relief. The Next Step Beyond EquityThe
Declaratory Action. 13 The University of Chicago Law Review, 145, 159 (Feb. 1946). The
views there expressed are likewise followed in a still more recent article by Mr. Duke Duvall
of the Oklahoma Bar. The Declaratory Action, 21 Tulane Law Review, 559 (June 1947).
Respondents will find reference in these articles to many cases, in addition to the ones
respondents have cited, in which declaratory relief was denied for the same reasons here
urged by respondentsthat there was no justiciable controversy, that the controversy was
not ripe, that other remedies were available, that plaintiff sought simply relief from his
fears, that he was in effect asking only for the advice of the court, that the matter lay in
the discretion of the trial court, that the instruments in question were unambiguous in
their terms and needed no judicial construction, that the declaration was sought on a
remote contingency, that there was a misjoinder of defendants on account of the lack of
privity, that the case would involve the trial of disputed facts, etc.
there was no justiciable controversy, that the controversy was not ripe, that other remedies
were available, that plaintiff sought simply relief from his fears, that he was in effect asking
only for the advice of the court, that the matter lay in the discretion of the trial court, that the
instruments in question were unambiguous in their terms and needed no judicial construction,
that the declaration was sought on a remote contingency, that there was a misjoinder of
defendants on account of the lack of privity, that the case would involve the trial of disputed
facts, etc. Such of those cases as are in point and are opposed to the views we have indicated,
we have decided to reject in favor of the more liberal view.
12. Appellant and respondents both discuss at great length in their briefs questions dealing
with the question of the propriety of the action of the court in dismissing the amended
complaint upon sustaining the general and special demurrers thereto. In our view that the
amended complaint states a cause of action for a declaratory judgment coupled with the other
relief sought (though not necessarily all of it) and that the defendants are properly joined, it
becomes unnecessary to pass on the points raised in such discussion.
13. Both parties likewise discuss at length the action of the court in issuing the original
restraining order. It purported to restrain the defendants pendente lite, but contained
provisions permitting prompt hearing and determination of motions to dissolve or modify it
or keep it in effect. It was comparable to the better practice of issuing a show-cause order why
an injunction pendente lite should not issue and temporarily restraining the defendants
(proper bond having been given) pending the return of the order to show cause. It seems clear,
in any event, that injunctive relief may properly be coupled with a prayer for a declaratory
judgment. If this be so, we see no reason why, under the recognized practices and usages of
equity, and under statutory provisions, the status quo may not in a proper case be
preserved in the meantime to prevent irreparable injury.
statutory provisions, the status quo may not in a proper case be preserved in the meantime to
prevent irreparable injury. So many months have elapsed since the issuance of the restraining
order and the order for deposit of funds in court and since the dismissal of the action and the
order of this court denying a supersedeas; and the appeal being limited, by the assignment of
appellant's brief, to the judgment of dismissal, no ruling by this court appears to be in order
affecting the proceedings had in connection with the injunction pendente lite.
14. A great deal of discussion is had by both parties with reference to the province of
equity practice, and with reference to actions under the Uniform Declaratory Judgment Act,
to award relief to prevent a multiplicity of actions. As we are satisfied that under sec. 11 of
the act, and under the provisions of our civil practice act (N.C.L. sec. 8556, as amended,
Stats.1939, p. 32) all defendants have been properly joined, we do not find it necessary to
determine the applicability to the present action of the equitable remedy of preventing a
multiplicity of actions.
Neither the Coreys nor the Pauffs were prejudiced in making the bank a defendant. As the
holder in escrow of certain documents and as the holder for collection of the note described it
found itself subject to the conflicting demands of the parties and could probably have
interpleaded them and been relieved from further responsibility. Virtually the same effect was
achieved when it refused to answer and permitted its default to be entered. It thus remained
subject to the orders of the court with reference to the disposition of documents still in its
hands.
The parties briefed at length the propriety of that part of the trial court's order sustaining
the demurrer which denied the plaintiff the right to amend. As it is our view that the amended
complaint stated a cause of action, and that it was error to sustain the respective
demurrers, it is unnecessary to pass on this question.
action, and that it was error to sustain the respective demurrers, it is unnecessary to pass on
this question.
That part of the order and judgment appealed from which purports to dismiss the action is
hereby reversed, with costs, and the case is remanded with instructions to overrule the said
demurrers and permit the respective respondents to answer, subject to the right in plaintiff
further to amend his petition if he so desires, and for such further proceedings as may appear
proper in conformity with this opinion.
Eather, C. J., and Watson, District Judge, concur.
At the time of the argument and submission of the above case the Court comprised Taber,
C. J., Ducker, J., and Horsey, J. Horsey, J., being disqualified, the Governor commissioned
Honorable Harry M. Watson, District Judge of the Seventh Judicial District, to sit in his
place. Thereafter, Eather, C. J., was appointed to fill the vacancy caused by the death of
Ducker, J., and Badt, J., was appointed to fill the vacancy caused by the death of Taber, C. J.
Thereafter, by stipulation of the parties, the case was resubmitted to Eather, C. J., Badt, J.,
and Watson, District Judge.
____________
65 Nev. 42, 42 (1948) Nyberg v. Kirby
RUTH NYBERG and RAYMOND NYBERG, her Husband, Appellants, v. JOHN E.
KIRBY, Et Al., Respondents.
No. 3495
January 19, 1948. 188 P.2d 1006.
1. Negligence.
Res ipsa loquitur is applicable only in cases of ordinary negligence and cannot be invoked to establish
gross negligence or willful misconduct.
2. Automobiles.
Automobile guest must establish gross negligence to recover for injuries, whereas passenger need
establish only ordinary negligence and may invoke doctrine of res ipsa loquitur.
3. Automobiles.
Compensation, within statute defining guest as a person who accepts a ride without giving
compensation therefor, may exist if invitee agrees, either expressly or impliedly, to render compensation
of value to, or to confer some tangible benefits upon, operator or owner of motor vehicle and may consist
of services actually rendered or to be rendered, and, if parties so intend and agree, services to be rendered
may be conditional. Comp.Laws, sec. 4439.
4. Automobiles.
Where truck occupant without benefit to herself reluctantly consented to accompany driver to town for
supplies because driver had been ill that morning, the potential services to be rendered by occupant, though
of slight value, constituted an actual present benefit conferred upon driver and truck owners, and hence
occupant was a passenger rather than a guest within guest statute. Comp.Laws, sec. 4439.
Where the material facts were fully developed and undisputed, whether res ipsa loquitur doctrine was
applicable was a question of law which supreme court would answer though lower court had made no
determination thereon, in view of fact that such issue was practically determinative of outcome of case and
without answer by Supreme Court a further appeal would be virtually inevitable, particularly where
determination of appeal required that issue of ordinary negligence be determined and such could properly
be done only by deciding whether res ipsa loquitur doctrine was applicable.
Judgment for defendants could not properly be disturbed if truck driver was not guilty of ordinary
negligence though judgment was reached upon wrong theory that plaintiff was a guest and that driver was
not guilty of gross negligence.
7. Negligence.
Where thing which causes injury, without fault of injured person, is shown to be under
exclusive control of defendant, and injury is such as, in the ordinary course of things,
does not occur if the one having such control uses proper care, the doctrine of "res
ipsa loquitur" is applicable.
person, is shown to be under exclusive control of defendant, and injury is such as, in the ordinary course of
things, does not occur if the one having such control uses proper care, the doctrine of res ipsa loquitur is
applicable.
8. Automobiles.
Where, just before truck swerved from road and overturned, truck was being driven at 50 miles an hour
on a straight, level road in the daytime with nothing to obstruct driver's vision and with no other vehicle
approaching, doctrine of res ipsa loquitur was available to supply presumption, or at least an inference,
of negligence, which was required to be sufficiently rebutted, or at least overcome by substantial evidence
in explanation of cause of accident, before defendants would be entitled to prevail.
9. Automobiles.
Where doctrine of res ipsa loquitur was applicable to overturning of truck and no explanation was offered
by defendants as to cause of driver's losing control and as to why truck swerved and overturned, injured
occupant was entitled to recover for injuries which were proximate result of driver's negligence, it having
been sufficiently established from the evidence, together with application of the res ipsa loquitur doctrine,
that such negligence was proximate cause of the accident.
Appeal from Second Judicial District Court, Washoe County; Wm. McKnight, Judge.
Action by Ruth Nyberg and Raymond Nyberg, her husband, against John E. Kirby and
others for injuries sustained by Ruth Nyberg in an automobile accident. Judgment for
defendants, and plaintiffs appeal. Reversed and cause remanded with directions.
Morgan, Brown & Wells, of Reno, for Appellants.
Morley Griswold and George L. Vargas, both of Reno, for Respondents.
OPINION
By the Court, Horsey, J.:
The parties to this appeal will be designated, for convenience, as plaintiffs and defendants,
respectively, as they were in the lower court.
It is admitted, in the defendant's answer to the amended complaint, that on the 8th day of
July 1944, the plaintiff, Ruth Nyberg, accompanied defendant Harriet Katherine Kirby, riding
in an automobile truck, being driven by said Harriet Katherine Kirby, on a trip from the Wild
Horse Ranch to Elko, Nevada, such trip being made by Mrs. Kirby at the request of her
husband, John E. Kirby, on behalf of himself and the other partners owning and operating
said ranch, and for the purpose of obtaining lumber, tile and other supplies for said ranch.
It is alleged, in paragraph VII of plaintiffs' amended complaint, as follows:
That thereafter, on said day, on the return trip from Elko, Nevada, to said ranch, at a point
on the public highway about twenty-eight miles north of Elko, Nevada, while said Ruth
Nyberg was such passenger in said automobile driven and operated by said Harriet Katherine
Kirby as agent for and acting within the scope of her employment by said partners, the said
Harriet Katherine Kirby negligently and carelessly drove and operated said automobile truck
and failed to properly control the same, and caused and permitted the same to run off said
highway and to overturn several times, thereby causing the injuries hereinafter described.
Defendants, in paragraph III of their answer to the amended complaint, admitted that the
automobile truck turned over at the time and place mentioned in the amended complaint, and
that the plaintiff, Ruth Nyberg, was then in the said automobile truck, and that same was
driven and/or operated by the said Harriet Katherine Kirby, and that said Harriet Katherine
Kirby was the agent and acting for the defendant partners, but denied that said Harriet
Katherine Kirby was employed by the said partners.
Defendants, further in said paragraph III of their answer, and answering particularly the
above-quoted paragraph VII of the amended complaint, have denied that the said Harriet
Katherine Kirby negligently andJor carelessly drove andJor operated said automobile
truck, have denied that she failed to properly control the same, and have denied that she
permitted the said automobile truck to run off the said highway.
paragraph VII of the amended complaint, have denied that the said Harriet Katherine Kirby
negligently and/or carelessly drove and/or operated said automobile truck, have denied that
she failed to properly control the same, and have denied that she permitted the said
automobile truck to run off the said highway.
The defendants have denied, for lack of knowledge or information, the allegations of
paragraph VIII of the amended complaint, alleging in detail the injuries suffered by plaintiff,
Ruth Nyberg, and have denied that she was damaged, as claimed by plaintiffs in said
paragraph VIII, in the sum of $30,000, or any other sum, or at all.
It is admitted by defendants that plaintiffs, Ruth Nyberg and Raymond Nyberg, are wife
and husband; that defendants, John E. Kirby and Harriet Katherine Kirby, are husband and
wife; that defendants, William E. Duffin, George W. Ford and John E. Kirby are, and were at
the time in the amended complaint mentioned, partners, and, as such, were the owners of a
ranch and engaged in the business of ranching, in Elko County, Nevada, under the firm name
and style of Wild Horse Ranch. It is further admitted by the defendants, John E. Kirby,
William E. Duffin and George W. Ford, that said defendants, during all the times mentioned
in the amended complaint, were the owners of a certain Dodge Pickup automobile truck,
Model 1940, Motor No. T10515480, bearing a California license.
Defendants have alleged certain facts which they alleged constituted contributory
negligence on the part of the plaintiff, Ruth Nyberg, but, as the trial court did not find such
defense to have been established by the evidence, we will not enumerate or consider same
further.
In paragraph VI of the amended complaint, it is alleged positively that at the request of
said partners, the plaintiff, Ruth Nyberg, accompanied said Harriet Katherine Kirby as a
passenger in said truck and assisted her in obtaining and loading said supplies and
lumber."
assisted her in obtaining and loading said supplies and lumber. And it is alleged, by way of
recital, in paragraph VII of the amended complaint, that said Ruth Nyberg was a passenger in
said automobile truck when same overturned. (Italics ours.)
Defendants, in paragraph II of their answer to the amended complaint, have denied that
the plaintiff, Ruth Nyberg, at the request of the said partners, or any of them, accompanied the
said Harriet Katherine Kirby as a passenger in said truck, and denied that the said Ruth
Nyberg assisted the said Harriet Katherine Kirby in obtaining and/or loading supplies and/or
lumber on the said truck. (Italics ours.)
In paragraph I of their separate answer to the amended complaint, and as their separate and
second defense thereto, the defendants employed the following language:
That the defendants, at all times denying that the said plaintiff, Ruth Nyberg,
accompanied the said Harriet Katherine Kirby at the request of the defendants, and for the
purpose of assisting her in obtaining and loading supplies and lumber, etc. (Italics ours.)
It is noted that in neither of the two above-mentioned instances do the defendants deny that
the plaintiff, Ruth Nyberg, accompanied the defendant, Harriet Katherine Kirby, at the
request of the said partners, but, in the first instance, the effect of the words employed is to
deny that she accompanied her as a passenger, and the effect of such allegation in the second
instance above mentioned is not to deny that she accompanied Harriet Katherine Kirby at the
request of the defendants, but to deny that she accompanied her at such request and for the
purpose of assisting her in obtaining and loading supplies and lumber.
The defendants, as a further and separate answer to the amended complaint, and as a
further and third defense thereto, have alleged as follows:
I. That the said plaintiff, Ruth Nyberg, accompanied the said Harriet Katherine Kirby as
a guest on said trip, and that the said defendant Harriet Katherine Kirby drove said truck
in a careful manner, and was not grossly negligent, or negligent at all, in the
management, handling and operation of said truck."
the said Harriet Katherine Kirby as a guest on said trip, and that the said defendant Harriet
Katherine Kirby drove said truck in a careful manner, and was not grossly negligent, or
negligent at all, in the management, handling and operation of said truck. (Italics ours.)
And the plaintiffs, by paragraph II of their reply, deny each and every allegation of the
above third and separate defense, thus joining issue upon the two most important issues
involved in the case, to-wit:
1. Was the plaintiff, Ruth Nyberg, a passenger or a guest in the automobile truck at the
time same overturned and she was injured?
2. Was Mrs. Kirby negligent in the manner in which she drove and/or operated the
automobile truck, and/or in failing to properly control the same, and was such negligence, on
her part, the proximate cause of the injuries suffered by Ruth Nyberg?
The issue of negligence involved in the case does not become precise, as to degree, until
the determination of the issue of whether the plaintiff, Ruth Nyberg, was a passenger or a
guest at the time of the accident. The lower court, in that court's decision in the instant case,
specifically held and decided that, upon the basis of the facts established and proven by the
evidence, Ruth Nyberg was a guest, and not a passenger, at the time the automobile truck
overturned, resulting in her injuries. The trial court further held, in accordance with the law as
provided in sec. 4439, N.C.L. 1931-1941 Supp. (our so-called Guest Statute), that,
inasmuch as the plaintiff, Ruth Nyberg, was a guest and not a passenger, to render the
defendants liable for damages for her injuries in such accident, the defendant, Harriet
Katherine Kirby, would have to be proven to have been grossly negligent in guiding or
operating said automobile truck, and/or in failing to properly control the same. And the trial
court further held and decided that, in the absence of any proof of gross negligence, the
plaintiffs could not recover, and thereupon rendered judgment that plaintiffs take nothing
by reason of said action, and that defendants have judgment for their costs.
could not recover, and thereupon rendered judgment that plaintiffs take nothing by reason of
said action, and that defendants have judgment for their costs. A motion was made by
plaintiffs for a new trial, which was heard, and denied by the trial court, on May 27, 1947, on
each of the grounds specified in plaintiffs' notice of intention to move for a new trial. Said
judgment was duly filed on the 13th day of June 1947. It is from such judgment, and the
district court's order denying plaintiffs' motion for a new trial, that plaintiffs have appealed.
The learned trial judge, in his opinion, on pages 12 and 13 thereof (transcript on appeal,
pp. 35, 36), stated:
Having determined that Mrs. Nyberg was a guest and not a passenger, it is next necessary
to ascertain whether gross negligence has been established. Plaintiffs have not attempted to
plead gross negligence, the allegations of their amended complaint simply reading:
That * * * the said Harriet Katherine Kirby negligently and carelessly drove and
operated said automobile truck and failed to properly control the same, and caused and
permitted the same to run off said highway and to overturn several times, thereby causing the
injuries hereinafter described.'
No evidence was offered in support of the alleged ordinary negligence on the part of
Defendant, Harriet Katherine Kirby, Plaintiffs relying entirely upon the doctrine of res ipsa
loquitur. In Shain on Res Ipsa Loquitur, Presumptions and Burden of Proof, the author states
on page 23:
If there is any subject in the vast realm of jurisprudence which holds more of boiling,
bubbling confusion and chaos than the application of the res ipsa loquitur doctrine, it is its
first cousinpresumptions.'
Several authorities are cited in support of plaintiffs' contention that such doctrine is
applicable to this case. Among others is the case of Groton v. Humphrey, No.
No. 63678, decided by this court on February 26, 1941, wherein, after a review of the
authorities, it was held that the facts warranted the inference of negligence, and substantial
damages were awarded the Plaintiff.
It is doubtful whether the facts in the case at bar warrant such an inference and thus make
applicable the doctrine of res ipsa loquitur, even though ordinary negligence only had to be
established. However, it is neither necessary nor proper to decide this question, because the
plaintiffs cannot recover in the absence of proof of gross negligence.
1, 2. If the trial court's conclusion and holding, as a matter of law, that the plaintiff, Ruth
Nyberg, was a guest and not a passenger, was correct, then it clearly follows that that court's
conclusion that the issue as to negligence was whether gross negligence, rather than merely
ordinary negligence, had been proven, was correct; and, in view of the fact that plaintiffs
offered no direct evidence of negligence, but, in lieu thereof, sought to invoke the doctrine,
res ipsa loquitur, which, as the court well stated, citing ample authority, is applicable only in
cases of ordinary negligence, and cannot be invoked to establish gross negligence or willful
misconduct, the trial court was entirely right in holding that gross negligence had not been
established. If, however, the learned trial judge was in error in his conclusion and holding that
plaintiff, Ruth Nyberg, was, at the time of the accident, a guest and not a passenger, then it is
equally clear that the issue as to the element of negligence would be whether or not ordinary,
rather than gross, negligence had been sufficiently established. The trial court, taking the view
that the learned Judge did take as to the question of passenger or guest, was entirely correct
in further stating that it is neither necessary nor proper to decide this question, that is, the
question of ordinary negligence, or whether or not the rule, or doctrine, res ipsa loquitur,
should be applied, as contended for by plaintiffs, in the absence of any direct evidence of
negligence.
direct evidence of negligence. But if the holding and conclusion that the plaintiff, Ruth
Nyberg, was a guest and not a passenger was not correct, such holding is error as to a matter
of law practically fundamental, and inevitably leading to an erroneous result, if the defendant,
Harriet Katherine Kirby, was guilty of ordinary, rather than of gross, negligence. If plaintiff,
Ruth Nyberg, was a passenger and not a guest, the court (quite naturally in consequence of
that court's view) erroneously failed to pass upon the issue of ordinary negligence and the
applicability of the rule, res ipsa loquitur, which, of course, if Mrs. Nyberg was a passenger
and not a guest, would be the proper issue as to the element of negligence.
3. So, it is first incumbent upon us to determine, as best we may, the question whether the
plaintiff, Ruth Nyberg, was a passenger or a guest in the automobile truck in which she was
riding on July 8, 1944, and then being driven by defendant, Harriet Katherine Kirby, about
twenty-eight miles from Elko, Nevada, just prior to and at the time same overturned, and
Ruth Nyberg was injured.
The definition of guest in Nevada Compiled Laws Supp. 1931-1941, sec. 4439, above
referred to, is as follows:
For the purpose of this section the term guest' is hereby defined as being a person who
accepts a ride in any vehicle without giving compensation therefor.
In the California case of Lerma v. Flores, 16 Cal. App.2d 128, 60 P.2d 546, on page 547,
the appellate court (District Court of Appeals, First Dist.), in its opinion, in dealing with the
question of sufficient compensation for transportation to clothe one riding in a vehicle, owned
or operated by another, with the status of a passenger, stated:
Whatever the rule where there is no express agreement to render services in return for
transportation, which appears to have been the fact in the case cited, where it is agreed that
one of the parties shall be carried in consideration of the rendition of services of the kind
here alleged, the benefit conferred was sufficient to support a contract of carriage, and
was compensation excluding the passenger from the operation of section 141 3J4 of the
California Vehicle Act {added by Stats.
where it is agreed that one of the parties shall be carried in consideration of the rendition of
services of the kind here alleged, the benefit conferred was sufficient to support a contract of
carriage, and was compensation excluding the passenger from the operation of section 141
3/4 of the California Vehicle Act (added by Stats. 1929, p. 1580, as amended by Stats.1931,
p. 1693). The consideration may be any benefit conferred or any detriment suffered
(Civ.Code, sec. 1605), and the law will not enter into an inquiry as to its adequacy. Whelan v.
Swain, 132 Cal. 389, 64 P. 560; Rusconi v. California Fruit Exchange, 100 Cal.App. 750,
754, 281 P. 84; Seth v. Lew Hing, 125 Cal.App. 729, 14 P.2d 537, 15 P.2d 190; Marsh v.
Lott, 8 Cal.App. 384, 389, 97 P. 163; Williston, Contracts (2d Ed.) sec. 115. Moreover, where
the consideration agreed has been accepted the acceptance constitutes a waiver of any claim
of inadequacy (Nicholson v. Tarpey, 70 Cal. 608, 12 P. 778); and the rule applies to the
acceptance of services bargained for even though valueless in fact. Peters v. Binnard, 219
Cal. 141, 25 P.2d 834.
The facts of Lerma v. Flores, supra, from which we have just quoted, were as follows: the
plaintiff therein employed the defendant to transport plaintiff's furniture, by motor truck, from
San Lorenzo to Point Reyes, in Marin County, for a consideration of $20. It appears from the
trial court's findings that defendant invited plaintiff to ride upon said truck, and that plaintiff
did ride thereon without paying a tangible consideration therefor, but partly for the
accommodation and benefit of plaintiff and partly for the purpose of guiding the defendant
along the highway and enabling defendant to pursue an economical and short course to his
destination; and the court further finds that plaintiff did assist and guide defendant in said
manner along the highway traversed until the accident, and that defendant stopped his truck
several times along the route to obtain and did thereupon obtain directions from plaintiff.
The court concluded that plaintiff was a passenger and a business invitee of the
defendant, and entered judgment against the latter.
concluded that plaintiff was a passenger and a business invitee of the defendant, and entered
judgment against the latter.
The concluding paragraph of the appellate court's per curiam opinion is as follows:
The facts bring the present case within the rule declared in the following decisions,
namely: Crawford v. Foster, 110 Cal.App. 81, 293 P. 841; Sullivan v. Richardson, 119
Cal.App. 367, 6 P.2d 567; Woodman v. Hemet Union High School Dist., 136 Cal.App. 544,
29 P.2d 257; Riley v. Berkeley Motors, Inc., 1 Cal.App.2d 217, 36 P.2d 398; Haney v.
Takakura, 2 Cal.App.2d 1, 37 p. 2d 170 [38 P.2d 160]; and the conclusion that the plaintiff
was a passenger and not a guest is fairly supported.
The judgment is affirmed.
A comparison of the facts in Lerma v. Flores, supra, with the facts in the instant case
discloses that in the instant case the plaintiff, Ruth Nyberg, had no business whatever to cause
her to take a trip to Elko on the 8th day of July 1944, and that the trip was of no benefit
whatever to her. The transportation was merely incidental, to enable Mrs. Nyberg to carry out
her promise, reluctantly given to defendant, John E. Kirby, at his instance, request and
insistence that she would, in view of Mrs. Kirby's illness early that morning, accompany Mrs.
Kirby on the trip to Elko. The reluctance on the part of Mrs. Nyberg to make the trip was
because she was suffering from a severe case of sunburn, due to her having, in a bathing suit,
done a washing the day before, in the sun. On the other hand, in Lerma v. Flores, supra, the
plaintiff wished to go to Point Reyes, to which place his goods were being transported, and
the defendant invited the plaintiff to go with him on the motor truck, partly for the purpose of
directing the defendant as to the best route to be followed, and the plaintiff accepted the
invitation. In that case, the benefit and consideration was mutual, whilst in the instant case
no benefit whatever passed to Mrs.
benefit and consideration was mutual, whilst in the instant case no benefit whatever passed to
Mrs. Nyberg in compensation for making the trip and for the potential services which it was
undoubtedly contemplated and intended by her and the Kirbys that she would render, should
it become necessary, in assisting Mrs. Kirby on her business mission to Elko on behalf of the
partners, and pertaining to the obtaining of supplies for the Wild Horse Ranch.
In the State of Washington, the law requires more, under the interpretation given their
statute by the courts of that state, than is required by the California and Nevada courts, under
the respective statutes of those states. Under the Washington statute, sec. 1, chap. 18, Laws of
1933, the word payment, instead of compensation, is employed, and the Supreme Court
of that state has held that to constitute one a passenger, rather than a guest, an actual or
potential benefit in a material or business sense resulting or to result to the owner, is
required. (Italics ours.) Fuller v. Tucker, 4 Wash.2d 426, 103 P.2d 1086, 1088. In Nevada, the
word compensation, and not the word payment, is used in the statute, and we have no
decision in which it has been held that such compensation for the transportation must be a
benefit in a material or business sense conferred upon, or to result to, the owner or the
operator of the automobile.
In this state the compensation, as in California, may be any tangible benefit conferred by
the invitee upon the owner or operator of the motor vehicle.
It is clear that in the State of Washington, even though the benefit must be one in a
material or business sense, same may be potential, rather than actual, and may be a benefit
which actually results, or, one which is expected to result to the owner or operator of the car,
from the transportation of the invitee. This is made clear by the Washington decisions. In the
case of Fuller v. Tucker, supra, the Supreme Court of Washington, in its unanimous
opinion by Mr.
v. Tucker, supra, the Supreme Court of Washington, in its unanimous opinion by Mr. Justice
Millard, stated, 4 Wash.2d 426, 103 P.2d on pages 1088, 1089.
The question presented in the case at bar is foreclosed by our opinion in Syverson v.
Berg, supra, [194 Wash. 86, 77 P.2d 382]. In that case we held that, to take a person riding
with another out of the guest classshow payment for such transportation' (Sec. 1, Ch. 18,
Laws of 1933)two requirements are necessary: (1) an actual or potential benefit in a
material or business sense resulting or to result to the owner, and (2) that the transportation
be motivated by the expectation of such benefit. (Italics ours.)
Likewise in the State of California. In the case of Kruzie v. Sanders, Cal.App., 135 P.2d
710, on page 713 (to which we will have occasion to refer hereafter in more detail), it is
stated:
That the compensation to be given for the ride was small and that the services were not
actually rendered because the accident rendered personal performance impossible cannot
affect the issue.
At that point in his opinion, Mr. Justice Marks cited and quoted from the earlier opinion in
Lerma v. Flores, supra, the portion thereof which we have hereinbefore embodied in this
opinion, including the cases therein cited.
We see no reason, in view of the Washington and California authorities, why we should
require more in Nevada, in construing the meaning of the word compensation as used in the
definition of guest in our statute, N.C.L.1931-1941 Supp., sec. 4439, than is required in
construing the meaning of the word payment in the Washington statute; nor why we should
construe the word compensation, in respect to whether or not same may be potential, more
strictly than the words benefits conferred in the California statute (Cal.Civ.Code, sec. 1605)
are construed by the courts of that state, in respect to the question of whether the benefits
conferred" may be potential, as well as actual.
benefits conferred may be potential, as well as actual.
This question is rendered important in the instant case by reason of the fact that the
defendants have emphasized the fact that the plaintiff, Ruth Nyberg, did very little, if
anything, on the trip to Elko, Nevada, from the ranch, or while in Elko, to assist the
defendant, Harriet Katherine Kirby, in carrying out her business mission to Elko, in
pursuance of the business of the ranch and on behalf of the defendant partners. It is not clear
from the testimony in the instant case precisely how much Mrs. Nyberg did to assist Mrs.
Kirby while in Elko. That she accompanied Mrs. Kirby to the lumber dealer's office, or place
of business, to place the order for lumber, tile, etc., and to the hardware store, and to the
grocery store to purchase groceries, is undisputed. Just to what extent she participated in
transacting the business at the grocery store, whether she assisted in selecting the groceries
and the vegetables, or only the vegetables, and whether she actually carried a box of
groceries, or of vegetables, to the automobile truck, or did not do so, does not appear clearly
from the testimony. The Honorable District Judge in his opinion, on pages 2 and 3 (tr. pp. 25,
26), stated:
Mrs. Nyberg voluntarily assisted in selecting the vegetables. The clerk put the groceries
and vegetables in several boxes and carried the boxes to the truck.
And further on, upon said page 3 of the opinion (tr. p. 26), the following is stated
(including a quoted excerpt from the testimony):
Mrs. Nyberg bought nothing for her own personal use on the trip; and, aside from going
to the two stores with Mrs. Kirby and voluntarily assisting in selecting the vegetables, she
rendered no service to Mrs. Kirby. As the latter testified:
Mr. Griswold: Q. Do you know of any assistance that Mrs. Nyberg gave you on this trip
save and except the pleasure of her company with you going in and coming out? A. No, that
was all, but it was a pleasure to have her with me for company.
have her with me for company. That is an unpleasant trip by yourself.
Q. Is it a long trip by yourself? A. Yes.
Mr. Brown: Q. Did she do anything else after she got into town by way of assisting you
to accomplish the purpose you went to town for? A. Not to my recollection, other than going
to places with me.'
On page 30 of the transcript on appeal, Mrs. Nyberg's testimony is, in part, as follows:
A. We went in and selected the groceries ourselves, and we carried part of the groceries
to the car.
* * * * * * *
Q. (By Mr. Griswold): You didn't carry any great big boxes of groceries and put them in
the truck? A. Yes.
Q. You carried out a great big box of groceries? A. Yes, I assisted.
In view of the fact that, in law, it is immaterial, in order to constitute the compensation
making one a passenger, whether the compensation is actual or potential, it makes no
appreciable difference, which we have been able to discern, how much or how little were the
services actually rendered by Mrs. Nyberg to Mrs. Kirby, or, in effect, to the ranch partners,
upon the occasion of, or in connection with, the trip made July 8, 1944, by Mrs. Nyberg to
Elko, in company with Mrs. Kirby.
It is clearly sufficient, under the authorities above cited and considered in detail, and many
more which could be cited, if the invitee making the trip agrees, either expressly or impliedly,
to render compensation of value to, or to confer some tangible benefit upon, the operator or
owner of the motor vehicle employed in the transportation. This may consist of services
actually rendered, or to be rendered. If the parties so intend and agree, the services to be
rendered may be conditional. This is well illustrated by the facts in the instant case. Mrs.
Kirby had, on the early morning of July 8, 1944, been ill with cramps. Mr. Kirby visited the
living quarters of Mr. and Mrs.
of Mr. and Mrs. Nyberg, about six o'clock that morning, and requested some aspirin for Mrs.
Kirby. He then inquired whether Mrs. Nyberg intended to make the trip to Elko with Mrs.
Kirby that morning, which trip had been discussed at the dinner table the evening before.
Mrs. Nyberg said, in effect, that she did not intend to go, but wished to remain at home,
because of her severe sunburn. Mr. Kirby returned in about an hour, stating, in effect, that it
was necessary that his wife make the trip to Elko to obtain the lumber, tile and other supplies
for the ranchthat there was no one else available to go, and that because Mrs. Kirby was, or
so recently had been, ill, he did not wish her to go alone. He urged Mrs. Nyberg to
accompany his wife, and Mrs. Nyberg replied, in effect, that, under those circumstances, she
would go. There is no conflict in the evidence on this point. Mr. Kirby's testimony alone was
sufficient to establish it. He testified with honesty and frankness. The very nature of the
transaction was one in which Mrs. Nyberg could expect no benefit from making the trip, but,
because of the effects of her sunburn the previous day, she would undoubtedly suffer a real
detrimentmuch inconvenience and doubtless some physical suffering, from riding, on a
country road, upon a long journey of about sixty-two miles each way, in an auto truck.
4. The fact, alone, of Mrs. Nyberg accompanying Mrs. Kirby was, under the
circumstances, a real, actual benefit, thereby conferred upon Mrs. Kirby, not primarily or
principally because of the pleasure of having company on the trip, but fundamentally, and in
the main, because it was unsafe, both for personal, humanitarian reasons and from the
standpoint of business prudence, for Mrs. Kirby to make the trip alone. The humanitarian
reasons, it is true, principally concerned Mr. and Mrs Kirby, but indirectly they concerned
also the partners, as no modern business institution, conducted according to humane
standards, would wish a person recently ill to undertake entirely alone a long trip over desert
country largely devoid of human contact or habitation, requiring continuous driving of an
automobile truck, and numerous business transactions in the purchase and transportation
of supplies, without providing assistance to be utilized whenever and to the extent that
subsequent events might render necessary.
trip over desert country largely devoid of human contact or habitation, requiring continuous
driving of an automobile truck, and numerous business transactions in the purchase and
transportation of supplies, without providing assistance to be utilized whenever and to the
extent that subsequent events might render necessary.
The reasons, from the standpoint of business prudence, why it was expedient for Mr.
Kirby, on behalf of himself and his partners, to provide assistance to Mrs. Kirby, for the
purpose of the trip and the business to be transacted, are obvious. Should Mrs. Kirby suffer a
recurrence of cramps in her stomach, so severe that she could not continue the journey, she
would either be stranded upon the desert, or might fortunately succeed in reaching a haven
in some ranch home, or perhaps experience rescue and transportation home by some kind
passing motorist. In either of these events, the business mission to Elko would have been
thwarted, or at least considerably delayed, and the ranch in the meantime left without the
supplies which, from the testimony, it is clear the business undertakings of the ranch and the
sustenance of its employees, imperatively required. So, both from the personal standpoint of
Mr. and Mrs. Kirby, and the business standpoint of the ranch partners, including defendant,
John E. Kirby, it was the wise and prudent course to make arrangements with Mrs. Nyberg to
accompany Mrs. Kirby on the trip, and that is precisely what Mr. Kirby, as one of the partners
and as agent for his copartners, did do.
In the circumstances, the actual benefit conferred by Mrs. Nyberg was in promising to
make the trip, and in doing so. Social amenities and hospitality were only slightly or
incidentally involved, as we view the matter, in the light of the surrounding circumstances.
Neither of these women would have made the trip that day merely for pleasure or
companionship, because Mrs. Kirby had so recently been ill, and no doubt would have much
preferred to have remained at home, as would Mrs.
Mrs. Nyberg, in order to nurse her sunburn. It was purely a business trip.
Mrs. Nyberg's husband was employed at the ranch, and she was residing there. This fact,
the urgency of the circumstances and of Mr. Kirby's request, and Mrs. Nyberg's friendship for
them, overcame her reluctance to go. It was implied and understood, doubtless, by both Mrs.
Nyberg and by Mr. and Mrs. Kirby, that Mrs. Nyberg would render to Mrs. Kirby such
assistance as subsequent events and circumstances thereafter indicated to be necessary. Such
benefits or compensation, in addition to the making of the trip by Mrs. Nyberg, were potential
benefits, in the nature of services to be rendered by Mrs. Nyberg, conditioned upon the
happening of events or the existence of circumstances reasonably requiring their rendition.
Under the law as we conceive it to be, after carefully studying many authorities, we consider
it wholly immaterial that the services which were subsequently actually required were of
slight value. Such conditional services, the rendition of which was undoubtedly
contemplated, at the time the arrangement was made, as being dependent upon the presence
or absence of future necessity, were potential, but the assurance that they would be rendered,
if necessity called, was an actual present benefit conferred upon Mrs. Kirby and the partners,
by the very fact that Mrs. Nyberg was making the trip prepared to assist whenever and to the
extent reasonably required. The plaintiffs, according to the district court's opinion, relied very
much, in that court, upon the reasoning in the California case of Kruzie v. Sanders, supra, and
the Honorable District Judge, in his opinion, has, in distinguishing that case and the instant
case, compared in detail the respective factual situations in the two cases. We will, therefore,
now devote some attention to that case. In 135 P.2d on page 712, in the opinion by Mr.
Justice Marks, it is stated: "The present guest statute was first carefully considered in
Crawford v. Foster, 110 Cal.App.
The present guest statute was first carefully considered in Crawford v. Foster, 110
Cal.App. 81, 293 P. 841, 842, where it was said: We think the meaning of the language used
is that a guest is one who is invited, either directly or by implication, to enjoy the hospitality
of a driver of a car; who accepts such hospitality; and who takes a ride either for his own
pleasure or on his own business, without making any return to or conferring any benefit upon
the driver of the car, other than the mere pleasure of his company. * * *'
The foregoing definition is still approved by the courts of California and has been applied
in many cases. Whether a person riding with the driver of the car is a guest as defined in the
statute, or a passenger depends on the factual situation of each case. The conclusion to be
drawn from the many cases dealing with the subject, in which the rider has been held to be a
passenger and not a guest, may be stated, as applicable to the facts, here as follows: Where
the trip is not solely for the pleasure of the parties and is not an exchange of social amenities,
but is on the business of the driver in the prosecution of which the rider renders or is to render
substantial assistance to the driver, a consideration flows from the rider to the driver which
amounts to compensation for the ride and makes the rider a passenger and not a guest. See
Walker v. Adamson, 9 Cal.2d 287, 70 P.2d 914; Druzanich v. Criley, 19 Cal.2d 439, 122 P.2d
53; Haney v. Takakura, 2 Cal.App.2d 1, 37 P.2d 170, 38 P.2d 160; Boyson v. Porter, 10
Cal.App.2d 431, 52 P.2d 582; Lerma v. Flores, 16 Cal.App.2d 128, 60 P.2d 546; Duclos v.
Tashjian, 32 Cal.App.2d 444, 90 P.2d 140; Carey v. City of Oakland, 44 Cal.App.2d 503, 112
P.2d 714; Bummer v. Liberty Laundry Co., 48 Cal.App.2d 648, 120 P.2d 672; Whittemore v.
Lockheed Aircraft Corp., 51 Cal.App.2d 605, 125 P.2d 531.
Here we find that Mrs. Kruzie had no business of her own to transact in Fresno; that
making the trip required readjustment in employment in the place where she worked; that
she was reluctant to leave her work but finally yielded to the repeated and insistent
urging of Mrs.
required readjustment in employment in the place where she worked; that she was reluctant to
leave her work but finally yielded to the repeated and insistent urging of Mrs. Sanders and
made the trip solely for the purpose of aiding Mrs. Sanders. It is evident that Mrs. Sanders
regarded the presence of Mrs. Kruzie in Fresno as important to her,so important that she
postponed the trip until Mrs. Kruzie could go; that she wanted the advice and assistance of
Mrs. Kruzie in selecting a setting for a ring which was to be a Christmas gift, as well as
special information which Mrs. Kruzie possessed concerning other persons; that Mrs. Sanders
desired to use this information in selecting presents for them.
It seems clear to us that, applying the elements, or factors, of the California Guest statute
as stated in Crawford v. Foster, 110 Cal.App. 81, 293 P. 841, 842, to the facts in the instant
case, Mrs. Nyberg, in the situation and under the circumstances which existed July 8, 1944, in
relation to the trip from the Wild Horse Ranch to Elko could not properly be brought within
the terms of the definition of a guest as thus stated in Crawford v. Foster, supra, had the
accident in the instant case occurred in California. And, in principle, there is no appreciable
difference between the meaning of the status of guest in our statute and that status under the
California statute. Mrs. Nyberg was not invited, either directly or by implication, to enjoy the
hospitality of a driver of a motor vehicle, neither did she accept such hospitality, in the
sense intended by the definition. There was no thought of pleasure or sociability involved in
connection with the trip to Elko, and the transportation, while, of course, essential to the trip,
was purely incidental. The trip was one of necessity, as has been stated, and was in no sense
for Mrs. Nyberg's pleasure or upon her business, but was solely upon the business of the
partnership. And Mrs. Nyberg, as has been shown hereinbefore, did, by her presence, in view
of the existing circumstances, confer a very substantial benefit, other than the mere
pleasure of her company, upon the driver of the automobile truck.
existing circumstances, confer a very substantial benefit, other than the mere pleasure of her
company, upon the driver of the automobile truck.
We shall now consider that portion of the opinion of the learned trial judge wherein he
distinguished and differentiated Kruzie v. Sanders, supra, and the instant case, as follows:
The two cases are similar in that the parties had been friends for some time. In no other
respect is there any similarity. In the cited case, Mrs. Sanders had for nearly a week
repeatedly urged Mrs. Kruzie to accompany her on a trip from Coalinga to Fresno, because
she wanted Mrs. Kruzie's advice in the selection of a ring for her husband and her help in
choosing Christmas presents for three girls who had formerly worked at a cafe operated by
the Kruzies. Although Mrs. Kruzie had no special knowledge of the jewelry business, she had
good taste and she knew the sizes and different things' appropriate as presents for the girls.
Mrs. Kruzie had already done her Christmas shopping and she was making the trip solely for
the purpose of assisting Mrs. Sanders regarding the selection of presents and carrying
packages. Mrs. Sanders regarded the presence of Mrs. Kruzie in Fresno so important to her
that she postponed the trip until Mrs. Kruzie could go.
In that case, the trip was continued for nearly a week until Mrs. Kruzie could go, while
here there was no continuance; there, the trip would not have been taken without Mrs. Kruzie,
while here Mrs. Kirby would have taken the trip even though unaccompanied; there, a special
tangible benefit to the driver was the motivating influence for furnishing the transportation,
while here the transportation was intended and received as a mere gratuity; there, it was
agreed that Mrs. Kruzie would confer a tangible or material benefit upon the driver, while
here there was no agreement that Mrs. Nyberg would confer any benefit upon any
personnot even an incidental one; there, Mrs. Kruzie accompanied the driver for the
express purpose of assisting with her Christmas shopping, while here Mrs.
the driver for the express purpose of assisting with her Christmas shopping, while here Mrs.
Nyberg went along for no purpose other than to give the driver the mere pleasure of her
company; there, Mrs. Kruzie accepted the ride solely for the purpose of performing a
gratuitous service of a substantial nature for the driver, while here nothing more than the
exchange of social amenities and reciprocal hospitalities were involved. It is clear that the
two cases are not similar.
Assuming, without deciding, that Mrs. Nyberg's status as a passenger was sufficiently
alleged in the amended complaint, it is certain that such a status was not established by the
evidence.
In effect, the evidence shows that the trip would have been made regardless of whether
Mrs. Nyberg had accepted the invitation to accompany the driver; that Mrs. Nyberg gave no
cash or its equivalent for the transportation; that she was not requested, nor did she promise,
to perform any service for, confer any benefit upon, or render any assistance to, the driver of
the truck or her principal; and that she performed no such service, conferred no such benefit,
and rendered no such assistance, other than to give the mere pleasure of her company and to
voluntarily assist in selecting the vegetables.
The learned trial judge's statement to the effect that, in no respect other than that the
parties had been friends for some time, is there any similarity in the two cases, we do not
believe is justified by the undisputed facts. In all material respects the two cases are very
similar as to the factual situation existing in each. The fact that in Kruzie v. Sanders, supra,
Mrs. Sanders postponed the trip to Fresno to do her Christmas shopping until Mrs. Kruzie
could go with her, and that there was no postponement of the trip in the instant case, is not
material to show a greater degree of necessity for Mrs. Kruzie making the trip than existed as
to Mrs. Nyberg in the instant case. The Kirby trip to Elko could not be postponed, because
of the urgency of obtaining the supplies for the ranch.
be postponed, because of the urgency of obtaining the supplies for the ranch. The fact that it
could not be postponed until Mrs. Nyberg recoverd from her sunburn added to her burden and
the inconvenience which the trip caused her. She was required to go then, not at her
convenience, as in the case of Mrs. Kruzie. The relative degree of necessity of the services of
Mrs. Nyberg as compared to those of Mrs. Kruzie is readily and directly apparent from the
nature of the respective purposes to be accomplished and the character of the services to be
rendered in the respective cases, rather than indirectly from the fact that in Mrs. Kruzie's
situation the circumstances permitted of postponement. In the instance of Mrs. Kruzie's trip to
Fresno, the purpose was to assist Mrs. Sanders in selecting a setting for a ring, and also to
assist her in selecting appropriate Christmas presents. The benefit to Mrs. Sanders was very
desirable in an aesthetic sense, but was not a benefit required by actual necessity. In Mrs.
Kirby's case, the presence of Mrs. Nyberg, the only person available for the trip, was
absolutely necessary, from the standpoint of health, personal security and business prudence,
in order that in the event Mrs. Kirby suffered a recurrence of her illness she would not be
alone on the desert, with no one to care for her and attend to the business purposes of the trip.
In each of these cases, the woman accompanying the driver of the car did not make the trip
either to serve any business purpose of her own or for her own pleasure, but for that of the
owner or driver of the car. In the case of Mrs. Kruzie, however, the nature of her services was
such as to afford pleasure and satisfaction to her in an aesthetic sense, as well as to Mrs.
Sanders, and, because of that fact, it would be much more consistent, harmonious and
reasonable to attempt to bring the same within the purview of mere social amenities or
hospitality, than to attempt to so classify the service of Mrs.
of Mrs. Nyberg as to the trip to Elko. The grim necessity impelling Mrs. Nyberg's trip to Elko
was, in no sense, aesthetic, under the circumstances; and the purpose of that trip, and Mrs.
Nyberg's sunburned condition, relegated any social amenities or hospitality that might
otherwise have been enjoyed, to a very insignificant role indeed. If Mrs. Kruzie was a
passenger and not a guest under the facts and circumstances of Kruzie v. Sanders, supra (and
the California court held that she was), a fortiori the facts and circumstances of the instant
case abundantly justify the conclusion that Mrs. Nyberg was a passenger and not a guest.
We cannot discern that it is material whether or not Mrs. Sanders, in Kruzie v. Sanders,
supra, or Mrs. Kirby in the instant case, would have taken the trip if unaccompanied. Mrs.
Kirby testified she would have gone alone if Mrs. Nyberg had not accompanied her. Mr.
Kirby was not so certain. He testified in that connection, Yes, I think I would have asked her
to go in. Regardless of whether Mrs. Kirby would have taken the risk of making the trip
alone if Mrs. Nyberg had remained at home, it would have been most imprudent, at least, if
not reckless and foolhardy, for her to have done so, under the then existing circumstances.
We have said enough to disclose that we disagree, also, with the above-quoted conclusions
of the trial court relative to the status of Mrs. Nyberg in connection with the trip to Elko (as to
whether she was a passenger or a guest), which we have not mentioned specifically. For
instance, we feel impelled to disagree with the learned trial judge's conclusion that there,
(meaning in the case of Kruzie v. Sanders, supra,) a special tangible benefit to the driver was
the motivating influence for furnishing the transportation, while here the transportation was a
mere gratuity. According to the learned Judge's reasoning, the act of Mrs. Kruzie and her
promise to assist Mrs. Sanders in selecting a setting for a ring, and in the selection of certain
Christmas presents, was a special tangible benefit to Mrs.
ring, and in the selection of certain Christmas presents, was a special tangible benefit to Mrs.
Sanders, and was the motivating influence for furnishing the transportation, whilst the act of
Mrs. Nyberg in subjecting herself to the annoyance of such a trip as the one to Elko when she
was suffering from severe, and doubtless painful, sunburn, and solely for the purpose of
supplying the need of Mrs. Kirby that Mrs. Nyberg accompany her to care for her and assist
her to the extent necessary to successfully complete the trip, was no benefit at all, and
amounted to not even enough consideration or compensation to compensate for the
transportation (insignificant and incidental in comparison, as we view the matter), but was a
mere gratuity.
That conclusion of the trial court, like the others of similar import which follow it, in the
learned trial judge's opinion and decision, is not in accordance with the facts as proven by the
evidence. Such erroneous conclusions of fact evidently led to the legal determination, or
conclusion of law, that the plaintiff, Ruth Nyberg, when she was injured on the evening of
July 8, 1944, as the result of the automobile accident which then occurred, was a guest and
not a passenger. This legal determination, or conclusion of law, was, in our view, erroneous
and unjustified, from both the standpoint of the evidence adduced at the trial, and the
applicable law, properly construed.
In addition to the authorities hereinbefore cited, we cite the following as pertinent to the
various phases of the subject of the comparative status of guest and passenger: Druzanich
v. Criley, 19 Cal.2d 439, 122 P.2d 53; Fiske et al. v. Wilkie, 67 Cal.App.2d 440, 154 P.2d
725; Huebotter v. Follett, Cal.App., 161 P.2d 481; Melcher v. Adams, 174 Or. 75, 146 P.2d
354; Elliot v. Behner, 146 Kan. 827, 73 P.2d 1116; Van Auker v. Steckley's Hybrid Seed
Corn Co., 143 Neb. 24, 8 N.W.2d 451.
5, 6. As has been, in effect, already stated, the plaintiffs, predicating their contention upon
the theory that the plaintiff, Ruth Nyberg, was a passenger and not a guest, insisted in the
lower court that, in the absence of any direct evidence as to what actually caused the
automobile truck to swerve, get out of control, leave the road and overturn, or how same
happened, the rule res ipsa loquitur, should be applied. The lower court, as hereinbefore
stated, having reached the conclusion that Mrs. Nyberg, at the time of the accident, was a
guest and not a passenger, rightly concluded that, upon that basis, the issue as to negligence
would be gross negligence, rather than ordinary negligence, and that inasmuch as the res ipsa
loquitur rule (if an appropriate factual situation existed otherwise for its application) is
applicable only to supply an inference, or presumption, of ordinary negligence, and never of
gross negligence, declined to decide, or make any findings, as to the applicability of res ipsa
loquitur. This court, however, has reached the opposite conclusion upon the issue of
passenger or guest, and, therefore, it follows that the negligence issue is consequently
determined to be ordinary negligence, and not gross negligence. Ordinarily, the lower court
having made no actual determination upon the question of whether or not the res ipsa loquitur
rule, or doctrine, is applicable (as contended for by plaintiffs), we would, in remanding the
case, request such determination by the lower court, this court being one entirely of appellate,
and not of original, jurisdiction. There are two reasons, however, why we feel impelled to do
otherwise, and ourselves to determine the issue:
1. No new trial being necessary, and the material facts being fully developed and
undisputed, the issue is one of law and not of fact, and we believe the weight of authority
indicates that it is our duty to make such determination in the first instance, and contribute
toward the early conclusion of the litigation, in view of the fact that such issue is practically
determinative of the outcome of the case, and should we fail to determine same, a further
appeal would be virtually inevitable.
issue is practically determinative of the outcome of the case, and should we fail to determine
same, a further appeal would be virtually inevitable. 5 C.J.S., Appeal and Error, sec. 1925; 3
Am.Jur., sec. 1203, pp. 706, 707, and, particularly, the numerous cases cited in footnote 4;
also, sec. 1208, pp. 710, 711.
2. It is absolutely essential, before this court can properly reach a final determination of
this appeal, that the issue of ordinary negligence be determined, and this can be properly done
only by deciding whether the rule, res ipsa loquitur, is applicable, there being no direct
evidence of negligence, and plaintiffs having invoked such rule. The conclusion we have
reached that, as a matter of law, under the established facts the plaintiff, Ruth Nyberg, was a
passenger and not a guest, does not standing alone, entitle plaintiffs to judgment. To so entitle
plaintiffs to judgment, the defendant, Harriet Katherine Kirby, must have breached her duty
of ordinary care, and been guilty of ordinary negligence. If she was not so negligent, or until
her ordinary negligence is established, the judgment for defendants could not properly be
disturbed, even though reached upon the wrong theory that Mrs. Nyberg was a guest and that
Mrs. Kirby was not guilty of gross negligence. It is well settled that a decision right in result
will not be reversed even though the reason stated for it is wrong. This quotation is from 3
Am.Jur., sec. 1008, p. 563. See, also, cases cited in footnote 20. Apparently the attorneys for
both sides of the case entertain the view that this court should determine the question, as they
have extensively and ably briefed same. So, in order to reach as best we may a correct
determination of this appeal as to whether there should be an affirmance or reversal, we must
first determine the issue whether there was ordinary negligence on the part of Mrs. Kirby at
the time of, or just prior to, the accident, and whether or not in connection with the
determination of that issue, the facts and circumstances are such as to justify the application
of the rule, res ipsa loquitur.
application of the rule, res ipsa loquitur.
7. The writer of this opinion has found both an informative and enlightening treatment of
this subject in the textbook entitled, Res Ipsa Loquitur, Presumptions and Burden of Proof
(1945), by Mark Shain, LL.M., a distinguished member of the Massachusetts Bar. The
learned district judge, in his opinion and decision (page 36 of the transcript on appeal) has
cited and quoted from page 23 of said textbook. Mr. Shain, on page 1, of Part I, in stating the
thesis of his valuable book, defines the doctrine of res ipsa loquitur as follows:
The doctrine of Res Ipsa Loquitur is this:
When a thing which causes injury, without fault of the injured person, is shown to be
under the exclusive control of the defendant, and the injury is such as, in the ordinary course
of things, does not occur if the one having such control uses proper care, then the injury arose
from the defendant's want of care.
The learned author, on page 2, has stated:
The phrase Res Ipsa Loquitur means the thing itself speaks.' It will help to clarify the
doctrine and to facilitate its discussion if we put the following questions:
1. What is the thing' which speaks?
2. Where does the thing' speak?
3. When does the thing' speak?
4. Why does the thing' speak?
5. For whom does the thing' speak?
6. To whom does the thing' speak?
7. What does the thing' say?
The answers to the foregoing questions can be found in an analysis of the clear facts in
the case of San Juan Light and Transit Company v. Requena, 1912, 224 U.S. 89, 32 S.Ct.
399, 56 L.Ed. 680.
Mr. Shain, on page 85 of said book, has referred to the application of the doctrine as early
as 1616, in the English case of Roberts v. Trenayne, decided in that year, and reported in
Cro.Jac. 507, 79 Eng.Rep. 433.
In that case (quoting Mr. Shain, from p. 85) it was held that corrupt intent was implied,
because res ipsa loquitur' the agreement in question, itself, provided for usurious interest.
Mr. Shain, on page 20 of Shain on Res Ipsa Loquitur, Presumptions and Burden of Proof,
has stated:
2. Definition of the Term Res Ipsa Loquitur.'
The term Substantive Law,' has just been defined. To determine whether Res Ipsa
Loquitur' is Substantive Law, it is essential that our attention be next focused upon the
definition and nature of the doctrine and principle res ipsa loquitur and the rule or
presumption employed in its application.
Chief Justice Erle's statement in the famous case of Scott v. The London and St.
Katherine Docks Company (3 H. & C. 596, 13 W.R. 410, 11 Jur. (N.S.) 204, 34 L.J. Exch.
220, 13 L.T. 148, 159 Eng.Rep. 665 (1865)), has been universally accepted as an accurate
definition of the doctrine from which the rule results. It will bear emphasis. This is the
language:
There must be reasonable evidence of negligence.
But where the thing is shewn to be under the management of the defendant or his
servants, and the accident is such as in the ordinary course of things does not happen if those
who have the management use proper care, it affords reasonable evidence, in the absence of
explanation by the defendants, that the accident arose from want of care.'
The plaintiff's proof and the application of the doctrine in that particular case resulted in
certain facts having been established, absent an explanation by the defendant:
(1) That the defendant had control of the barrel of flour and the premises when the
accident happened;
(2) That the barrel fell upon the plaintiff while he was on the public sidewalk;
(3) That it injured the plaintiff; "{4) That the defendant negligently permitted the
barrel to fall and injure the plaintiff.
(4) That the defendant negligently permitted the barrel to fall and injure the plaintiff.
It will be observed that the doctrine creates a presumption. The plaintiff produced no
evidence of negligence upon the part of anyone. The accident and the injury were proved, and
also the surrounding circumstances, and negligence of the defendant was presumed by the
court, as a matter of law, as it took judicial notice that, in the ordinary course of things, such
an accident does not happen if the party in control of the instrumentality which caused the
injury had taken due care to prevent it.
Thus the doctrine res ipsa loquitur is given practical effect as an arm of the judicial
function to award justice to whom justice is due, and this is accomplished through a
presumption.
Therefore, the course of our study and inquiry into the nature of the doctrine requires that
attention be focused on its effect as a presumption.
8. In the instant case, the evidence established the fact that just prior to, and at the time of
the accident, the automobile truck was being driven by the defendant, Harriet Katherine
Kirby, on a straight, level road (after passing the Dinner Station); that it was daylight, there
was nothing obstructing her vision, that no automobile or other vehicle was near or
approaching at the time, that there were some chuck holes or bumps in the road, as is
usual in many such roads, but that the road was a pretty good country road. She knew,
generally, that such chuck holes or bumps existed. Mrs. Nyberg testified that Mrs. Kirby
was traveling about fifty miles an hour, which testimony was uncontradicted. Mrs. Kirby
testified she did not know what caused the truck to go off the road. Her testimony as to that
fact was as follows:
A. It was a pretty good road for a country road. I mean it had chuck holes, but not more
than any other road.
Q. You had driven the road before? A. Yes.
Q. Many times? A. Yes, many times.
Q. At the time, and immediately before the accident, is there anything you can tell this
Court as to what happened? A. No, there is not.
Q. Do you know what caused the truck to go off the road? A. No, I do not know.
Q. Did you try to keep it from going off the road? A. Certainly.
Q. When it hit the shoulder, did you try to get it back on the road? A. Naturally, that is
my first instinct.
Q. What happened then? A. I went over.
Q. Were you knocked unconscious? A. No.
Q. Were you injured? A. Quite badly injured. I had a fractured shoulder and pelvis and
ankle and a couple of scratches and bruises.
Q. Was Mrs. Nyberg thrown out of the truck. A. I know she was in the truck, or close to
the truck.
Q. You could not see her? A. No.
Q. You and Mrs. Nyberg were the only two in the truck who were there at that time? A.
That is right.
Q. Any traffic coming toward you? A. No.
Q. Anybody following you? A. No. (Tr. on appeal, pp. 139, 140.)
Mrs. Nyberg testified, in substance, that she felt a bump, struck her head on the side of
the car, and was rendered unconscious. She, too, did not know what caused Mrs. Kirby to
lose control of the car and/or the car to swerve off the road and overturn, causing the injuries
to Mrs. Nyberg, and the injuries to Mrs. Kirby, who, also, was injured.
It may be surmised, and even inferred, from the circumstances, that Mrs. Kirby was
negligent, for the reason that she was traveling fifty miles an hour, even though she knew
there were chuck holes in the road. Traveling at such speed obviously curtailed her
opportunity to see such chuck holes in sufficient time before contacting them to enable her
to lessen the speed of the car and to approach them cautiously and easily, instead of
violently.
car and to approach them cautiously and easily, instead of violently. With such opportunity
lessened because of the speed, and bearing in mind that Mrs. Nyberg testified she felt a
bump, just before her head struck the side of the car, it becomes probable, from these
circumstances, that the car hit one of the chuck holes without Mrs. Kirby having discerned
it before such contact, that the contact was, therefore, violent, and that the effect of same was
to cause the front wheels of the automobile truck to swerve suddenly and with sufficient force
to cause Mrs. Kirby to lose control thereof. The existence of these circumstances of fact
establishes a reasonable basis for the factual inference of negligence. But such evidence alone
will justify a mere evidential inference to support such theory, and by no means establishes
same. Indeed, the bump and loss of control of the car may have been caused by running
over some obstruction recently placed in the road, of the presence of which Mrs. Kirby had no
information (as she did of the chuck holes), such as would enable her to anticipate same; or
the bump and loss of control could have been caused by a tire blowing out, a breaking of
some mechanical part of the car, or other unavoidable cause, for which Mrs. Kirby would not
be responsible. It is clear that the plaintiff, Mrs. Nyberg, in her situation at the time of the
accident, had not the same means of knowing what caused the bump, as did Mrs. Kirby,
who was driving and in a better position, from what in common parlance is known as the
feel of the car, and the watchfulness which devolves upon the driver, to judge what sort of
interference happened which was of sufficient force and effect to wrest control of the car
from her. If the cause was the blowing out of a tire, or some mechanical failure, the owners
of the car (the defendant partners), would probably have had a much better opportunity to
have learned of it subsequently, when they removed the car, or had it removed, than would
Mrs. Nyberg, who, because of her injuries, was soon removed from, and did not revisit the
scene of the accident.
soon removed from, and did not revisit the scene of the accident. The facts and circumstances
clearly indicate that the rule, or doctrine, res ipsa loquitur, should be applied in the instant
case, so that the duty of explanation as to the cause of the accident would devolve upon
those in the better position to know, or determine, such cause. The factual situation in the
instant case comes squarely within the definition, hereinbefore quoted, of such rule, or
doctrine. The thing which caused the injury, namely, the automobile truck, without fault of
the injured (Mrs. Nyberg), was under the exclusive control of the defendant, Harriet
Katherine Kirby, and the injury was such as, in the ordinary course of things, does not occur,
if the one having such control uses proper care; then (res ipsa loquitur) the injury arose from
the defendants' want of care.
In other words, the doctrine, res ipsa loquitur, operates, under the facts and the
circumstances in the instant case, to supply a presumption, or at least an inference, of
negligence, which must be sufficiently rebutted, or at least overcome, by substantial evidence,
before defendants would be entitled to prevail. Mr. Shain, as the result of his exhaustive
research, in tracing, historically, the doctrine and its development, from its first appearance in
the common law of England, early in the Seventeenth Century, until the publication of his
book in 1945, has reached certain definite conclusions, which appear justified by the vast
collection of authorities, both English and American, which he has cited. He has, it is
believed, quite clearly established that under all the English authorities, both early and
modern, and numerous authorities in the United States, the application of the res ipsa loquitur
doctrine means that, given the requisite basis of facts, a pure presumption of negligence
arises, which is a rule of substantive law, and not merely a procedural rule, or rule of
evidence; that, like any other rebuttable presumption, as distinguished from a mere inference
or rule of evidence, it is sufficient, added to the other evidence for plaintiff, to completely
establish a prima facie case on behalf of plaintiff, resulting in the shifting of the burden of
proof to the defendant, and which can be rebutted by defendant by nothing less than a
preponderance of the evidence proving that defendant was not negligent.
added to the other evidence for plaintiff, to completely establish a prima facie case on behalf
of plaintiff, resulting in the shifting of the burden of proof to the defendant, and which can be
rebutted by defendant by nothing less than a preponderance of the evidence proving that
defendant was not negligent.
Much confusion and conflict exists in the later cases in the United States, due, Mr. Shain is
convinced, to the acceptance, by many courts, of what he designates as the Thayer-Wigmore
dogma that the burden of proof never shifts, and Professor Wigmore's phrases, the
burden of going forward, and the risk of nonpersuasion, which lead to the conclusion that
the rule, res ipsa loquitur, is a mere rule of evidence or procedure, or, in other words, a rule of
adjective, rather than substantive, law, resulting merely in an evidential inference, which does
not operate to cause any shifting of the burden of proof, and which, although it must be
rebutted or overcome, may be so dissipated by any substantial contradictory evidence deemed
sufficient to disprove it, or at least of sufficient weight to create a state of evidential
equilibrium.
(The above Thayer-Wigmore reference by Mr. Shain is to the very distinguished Professor
Thayer, formerly Professor of Law at Harvard University, and the late Professor John H.
Wigmore, of Northwestern University, eminent authority on the law of evidence, and author
of Wigmore on Evidence.)
Mr. Shain bitterly assails the opinion of Mr. Justice Pitney, and the result of the decision
by the United States Supreme Court in Sweeney v. Erving, 1913, 228 U.S. 233, 33 S.Ct. 416,
418, 57 L.Ed. 815, Ann.Cas. 1914D, 905. At one point, Mr. Shain, on pages 182-188, in
referring to the many cases following the Thayer and Wigmore theories, stated:
These decisions almost invariably quote others of the same typeespecially Sweeney v.
Erving, which exhibits no indication that Mr. Justice Pitney, who wrote the opinion, had ever
heard of any of the English decisions which have been quoted in this chapter; yet he
dogmatically asserts:
opinion, had ever heard of any of the English decisions which have been quoted in this
chapter; yet he dogmatically asserts:
In our opinion, res ipsa loquitur means that the facts of the occurrence warrant the
inference of negligence, not that they compel such an inference.'
9. While I am frank to state that, in view of his vast research and able presentation, I find
Mr. Shain's reasoning very persuasive, and his conclusions well founded and reasonably
reached, it is unnecessary, in order to reach the proper result in the instant case, to adopt
either of the two conflicting conceptions. The result in the instant case would be the same,
whichever theory is followed, for the reason that no explanation whatever as to the cause of
Mrs. Kirby losing control of the automobile truck, and/or of its swerving and overturning,
resulting in the injuries suffered by Mrs. Nyberg, was offered by the defendants. So, if the
theory most favorable to defendants, namely, that the doctrine res ipsa loquitur means that a
mere inference of negligence arises, and not a presumption causing the shifting of the burden
of proof, be followed, yet, under such theory, applied in the instant case and in the absence of
any evidence on behalf of defendants to disprove or overcome such inference, the plaintiffs
are clearly entitled to judgment.
Ales v. Ryan, 8 Cal.2d 82-99, 64 P.2d 409, 417, is a leading California case which follows
the rule of evidence, or mere inference, theory, as distinguished from the pure
presumption, or rule of substantive law, conception. Under that theory, the application of
the res ipsa loquitur rule to the situation in the instant case, in which there is an entire absence
of evidence, or explanation, to meet or overcome the inference of negligence, or the prima
facie case resulting therefrom, can lead to no result other than judgment for the plaintiffs. The
opinion in that case is, in part, as follows:
The rule is well settled by a multitude of decisions of the appellate courts of this state
to the effect that the inference of negligence which is created by the rule res ipsa loquitur
is in itself evidence which may not be disregarded by the jury and which in the absence of
any other evidence as to negligence, necessitates a verdict in favor of the plaintiff.
the appellate courts of this state to the effect that the inference of negligence which is created
by the rule res ipsa loquitur is in itself evidence which may not be disregarded by the jury and
which in the absence of any other evidence as to negligence, necessitates a verdict in favor of
the plaintiff. It is incumbent on the defendant to rebut the prima facie case so created by
showing that he used the care required of him under the circumstances. The burden is cast
upon the defendant to meet or overcome the prima facie case made against him.
See, also: Druzanich v. Criley, supra, and the many cases cited on the subject, 19 Cal.2d
439, 122 P.2d 53, on page 56; Kruzie v. Sanders, supra; Fiske v. Wilkie, supra.
We quote the following portion of the opinion in Fiske v. Wilkie, supra, by Mr. Justice
White, 67 Cal.App.2d 440, 154 P.2d on page 731:
Experience has taught that certain kinds of automobile accidents rarely happen without
negligence on the part of the driver; that in many, if not most, of such accidents, the driver
alone knows just what happened; and, for that reason, if the driver can not or will not explain
the cause of the accident, those injured in the accident, in order to enforce their remedy, are
entitled to the presumption of the driver's negligence arising under the doctrine of res ipsa
loquitur upon proof that the accident occurred while the automobile was under the exclusive
control of defendant.
From the foregoing it follows that, in our view, the plaintiffs are entitled to judgment. This
necessitates reversal, and remanding the case to the district court to determine and render
judgment in favor of the plaintiffs and against the defendants for such amount of actual
damages as Mrs. Nyberg has suffered, and will continue to suffer, by reason of her injuries,
which were the proximate result of the negligence of defendant, Harriet Katherine Kirby, it
having been sufficiently established from the evidence, together with the application of the
res ipsa loquitur doctrine, that such negligence of said defendant, Harriet Katherine Kirby,
was the proximate cause of the accident which occurred about 2S miles from Elko,
Nevada, on July S, 1944, in that the automobile truck being then and there driven by the
said defendant, Harriet Katherine Kirby, left the road and overturned, causing said
injuries to the plaintiff, Ruth Nyberg.
res ipsa loquitur doctrine, that such negligence of said defendant, Harriet Katherine Kirby,
was the proximate cause of the accident which occurred about 28 miles from Elko, Nevada,
on July 8, 1944, in that the automobile truck being then and there driven by the said
defendant, Harriet Katherine Kirby, left the road and overturned, causing said injuries to the
plaintiff, Ruth Nyberg.
It is the decision of this court that the judgment of the trial court be, and the same is hereby
reversed, and the cause remanded; that the trial court shall, at its convenience, provide for
such additional proceedings as may be necessary to enable that court properly to determine, in
accordance with the evidence and the legal principles properly applicable, the damages which
should be awarded the plaintiffs, to reasonably, fairly and justly compensate for the injuries
suffered by plaintiff, Ruth Nyberg, as the proximate result of such automobile accident; and
that the said trial court, upon determining, finding and adjudging the amount of such
damages, shall render judgment in favor of the plaintiffs for such amount of damages thus
ascertained, found and adjudged to be due, and for their costs and legal disbursements.
Badt, J., concurs.
Eather, C. J, heard the arguments in the above-entitled case, but, because of illness, did not
participate in the preparation or rendition of the foregoing opinion.
On Petition for Rehearing
May 26, 1948. 193 P.2d 850.
1. Automobiles.
Where truck proceeding at 50 miles per hour on straight, level road in daytime with
nothing to obstruct driver's vision and with no other vehicle approaching swerved from
road and overturned, res ipsa loquitur doctrine was applicable to create a presumption,
of negligence which, in absence of explanation as to cause of accident, required
judgment against driver and owners of truck for injuries sustained by passenger.
Where material facts were fully developed and undisputed, whether res ipsa loquitur
doctrine was applicable was a question of law which supreme court would answer,
though lower court had made no determination on the question.
On petition for rehearing. Rehearing denied.
For former opinion, see 65 Nev. 42, 188 P.2d 1006.
Morgan, Brown & Wells, of Reno, for Appellants.
Morley Griswold and George L. Vargas, both of Reno, for Respondents.
Per Curiam:
The court has carefully considered the very well-prepared and exhaustive petition of
respondents for a rehearing, also the reply of appellants thereto, and the legal questions
involved.
1, 2. After such careful consideration and a review of our opinion, we are constrained to
conclude that, in reaching the result we did in the opinion, we determined only questions of
law, and did not add to, alter or modify in any manner the lower court's findings of fact.
Indeed, the facts, to the extent known to the respective parties, were fully developed upon the
trial, and have not been disputed in any important particular. We see no reason to change our
holding that the doctrine of res ipsa loquitur was properly applicable, in view of the facts
proven, to create a presumption or inference of negligence, which, in the absence of
explanation by the respondents, necessarily, as a matter of law, required judgment for the
plaintiffs (appellants). As expressed, in effect, in the opinion (65 Nev. 42, 188 P.2d 1006), the
legal question of res ipsa loquitur was fully briefed, and we thought when the opinion was
rendered, and still believe, that no good purpose would be served by remanding the case to
the District Court for the determination of matters of law, which, it is reasonable to
believe, would have to be ultimately determined by this court.
remanding the case to the District Court for the determination of matters of law, which, it is
reasonable to believe, would have to be ultimately determined by this court. To do so, it
seems to us, would be unnecessarily prolonging the litigation, and adding to its expense to the
parties. Consequently, a rehearing is denied.
____________
65 Nev. 80, 80 (1948) Farnow v. Las Vegas Aerie No. 1213, F.O.E.
HARRY D. FARNOW, Appellant, v. LAS VEGAS AERIE No. 1213, FRATERNAL
ORDER OF EAGLES, by J. I. CRAVENS, A. A. BALLINGER, A. G. BLAD, Trustees,
Respondent.
No. 3492
January 19, 1948. 188 P.2d 615.
Where plaintiff did not appeal from portion of decision adverse to plaintiff, that portion was the law of
the case on defendant's appeal from other portions of the decision.
2. Beneficial Associations.
Statute providing that the term conveyance as used in act shall be construed to embrace every
instrument in writing, except a last will, by which any estate or interest or lands is created, alienated,
assigned, or surrendered, did not require that word conveyance used in constitution of grand lodge of
Fraternal Order of the Eagles be construed as intended to include leases. Comp.Laws, sec. 1546.
A trial court's finding of fact will not be disturbed on appeal if supported by substantial evidence.
In action by local lodge of Fraternal Order of Eagles for restitution of leased premises, on ground that,
when trustees of local lodge executed lease, there was an oral agreement that lease would be a nullity
unless approved by the grand lodge, evidence was insufficient to establish any such oral agreement.
In action by local lodge of Fraternal Order of Eagles for restitution of leased premises on ground that
lease was ultra vires and void because made without approval of the grand lodge, evidence established that
local lodge was estopped from denying its authority to execute the lease.
6. Evidence.
In action for restitution of leased premises, wherein defendant relied on lease whereby he was to pay
$1,000 a month rent if he could obtain a gambling license, but only $500 a month if he did not obtain a
gambling license, admitting evidence that at time of execution of lease defendant orally agreed that if he
did not get a gambling license he would not use upper floor of building, was not a violation of parol
evidence rule.
7. Landlord and Tenant.
Record established that new lease was a renewal of old lease under option contained in old lease, though
lessee agreed to pay twice as much rent for premises if restrictions against gambling on premises were
removed, and if lessee was able to obtain a gambling license, and therefore lessor was not entitled to
prevail in action for restitution, on ground that no extension of term resulted.
Eather, C. J., dissenting.
Appeal from Eighth Judicial District Court, Clark County; Wm. D. Hatton, Presiding
Judge.
Action by the Las Vegas Aerie No. 1213, Fraternal Order of Eagles, by J. I. Cravens, A. A.
Ballinger, and A. G. Blad, trustees, against Harry D. Farnow, for restitution of leased
premises. From a judgment for the plaintiff, the defendant appeals. Judgment reversed and
case remanded with instructions to enter judgment in accordance with opinion.
Leo A. McNamee, of Las Vegas, for Appellant.
Morse & Graves, of Las Vegas, for Respondents.
OPINION
Unfortunately the court is divided in the determination of this appeal. Unfortunately also
the learned Chief Justice, after writing his opinion in the case, was prevented by illness
from further participation in the discussions and conferences concerning the same, or
from rewriting his opinion accordingly, so that his opinion as originally written becomes a
dissenting opinion herein.
Chief Justice, after writing his opinion in the case, was prevented by illness from further
participation in the discussions and conferences concerning the same, or from rewriting his
opinion accordingly, so that his opinion as originally written becomes a dissenting opinion
herein. Such opinion includes the written decision of the learned trial judge (which contains a
brief statement of the facts) and likewise contains a statement of additional facts involved.
Accordingly, in the interest of brevity, recourse will be had to the trial judge's opinion and to
the dissenting opinion for many of these facts, though such method detract from the
continuity and logical sequence of our treatment of the subject matter.
The parties will be referred to as they appeared in the court below. That court treated the
three trustees of Las Vegas Aerie No. 1213, Fraternal Order of Eagles, as the plaintiffs in the
case, although the Aerie itself is named as the plaintiff (by its said trustees), and we shall so
refer to it. While the defendant's objections to the capacity of the plaintiff to sue are not
without their serious aspect, we pass this point without further comment, as we find no
serious prejudice to the defendant in this situation.
In filing its complaint seeking a restitution of the premises the plaintiff first predicated its
cause of action entirely upon the fact that the defendant's 1941 lease had expired, that he had
failed to give notice of his exercise of his option for a renewal or for an extended term in
accordance with the terms of the original lease and that in accordance with the other terms of
the lease his holding at the time of the commencement of the action was a month to month
tenancy only. Plaintiff gave defendant a notice to quit based entirely upon the grounds
mentioned, and later commenced its action based upon such notice and upon the facts therein
stated. It made no mention of the 1945 lease. It is true that plaintiff further alleged that said
1941 lease had not been approved by the Grand Lodge, but did not allege any invalidity or
infirmity in the lease growing out of that fact, nor did it allege that the necessity for such
approval, if any, had been communicated to the defendant.
been approved by the Grand Lodge, but did not allege any invalidity or infirmity in the lease
growing out of that fact, nor did it allege that the necessity for such approval, if any, had been
communicated to the defendant. The defendant answered alleging that he had given due
notice in writing by registered mail of his election to renew and the plaintiff replied,
persisting in its denial. The purpose of such denial is not clear, as the plaintiff had in its files
at all times the actual written notice, given by registered mail, received and receipted for in
ample time as required by the 1941 leasemore than ninety days prior to its expiration. This
was conclusively proved by the evidence, and the trial court so found.
The renewal provision in the 1941 lease was to the effect that the lessee have an option to
hold and enjoy the said premises for an additional term of five years at a monthly rental to be
agreed upon, and that in the absence of such agreement the rental be fixed by three arbitrators,
one to be appointed by each of the parties and those two to appoint a third, provided that in
the exercise of such option the lessee give three months' notice in writing of his exercise of
such option. Defendant's answer, after alleging the exercise of his option and the giving of
written notice thereof, alleged that this was followed by negotiations between the parties
resulting in the new five-year lease of November 28, 1945. Plaintiff's reply admitted the
execution of the new lease, but alleged that the same embraced the entire premises, which
included not only the ground floor embraced in the 1941 lease but also the second floor
comprising the plaintiff's lodge room; that plaintiff had not obtained the consent of the Grand
Lodge to such lease and that the lease was subsequently disapproved, both by the Grand
Lodge and by the local Aerie. Its original complaint had set up as an exhibit section 3 of
Article 33 of the plaintiff's constitution or bylaws providing substantially as follows: No real
estate which is owned or acquired by any subordinate aerie.
is owned or acquired by any subordinate aerie. * * * may be sold, exchanged, conveyed,
mortgaged or encumbered, by deed of trust or otherwise, by such aerie unless the details * * *
of * * * such sale, exchange, mortgage, encumbrance or conveyance be first submitted to the
Grand Officers, and failing such submission, shall be invalid and ineffective for any
purpose. (The entire section is quoted verbatim in the dissenting opinion.) The reply again
refers to this, but does not charge the defendant with the knowledge of it prior to the
execution of the 1945 lease, nor does either the complaint or the reply allege that it was
agreed that the 1945 lease was executed subject to the approval of the Grand Lodge, or that it
was to be ineffective without such approval.
The answer had alleged the continuous payment of rent up to the time of the filing of the
complaint, and the reply denied this. The proof showed that the defendant had made
continuous payment of rent and that although some of the later payments had been refused,
the plaintiff continued to tender the rental under the 1945 lease every month as the same fell
due under the terms of that instrument.
Plaintiff's theory throughout the trial was that in view of section 3 of Article 33 of its
constitution and bylaws above referred to, the 1941 lease to defendant's predecessors, and
which had been assigned to defendant with plaintiff's consent, was entirely void and of no
effect, and that the same applied to the 1945 lease. However, as noted, its notice of
termination of the 1941 lease was based upon the conditions of that lease. The notice
specifically stated: This notice is given pursuant to the provisions of paragraphs 15, 16, 17
and 18 of said lease. Paragraph 15 defined the rights of the lessor in the event of default.
Paragraph 16 defined a holding over. Paragraph 17 negatived a waiver on the part of the
lessor if it failed to reenter upon a breach. Paragraph 18 contained the provisions for renewal.
Nevertheless, the plaintiff insists before this court that the 1941 lease was a nullity by
reason of the constitutional restriction, despite the fact that both parties operated under it for
five years, and despite the fact that the plaintiff relied upon its terms and conditions and upon
an alleged breach of such terms and conditions as the grounds upon which it sought to
repossess the property.
1. Although we shall advert to this later, it should be remarked at this point that the trial
judge definitely found that plaintiff was estopped from denying the validity of the 1941 lease.
Plaintiff has not appealed from such part of the trial court's decision (which appears in the
written decision and in the findings of fact and conclusions of law and elsewhere in the
record), and the same is the law of this case.
At an early stage in the trial the following situation developed: The original lease of 1941
embraced only the ground floor of the premises, which was used as a drugstore. The renewal
lease of 1945 embraced the entire premises, namely, the downstairs drugstore and the second
floor embracing the lodge room and some office rooms. It was then insisted that though the
trustees might have authority to execute a renewal lease of the downstairs premises, they had
no authority to lease the lodge room without the approval of the Grand Officers. (It was
suggested by one of plaintiff's witnesses that the lodge room could not be leased without the
consent of two thirds of the members of the local Aerie, but no attempt was made to prove
any such rule or regulation.) Reliance upon the assertion that the lodge room could not be
leased without the consent of the Grand Officers was in turn based entirely on the said section
3 of Article 33. Yet there is a total absence in that section of any distinction between the
authority of the trustees to rent the lodge room and their authority to rent any other property
belonging to the Lodge.
2. As a matter of fact it is extremely doubtful that the provisions of section 3 of Article
33 apply at all to a lease of any of the local Aerie's property of whatsoever kind or
natureunless possibly such lease conformed to all intents and purposes with a sale or
mortgage of the premises.
the provisions of section 3 of Article 33 apply at all to a lease of any of the local Aerie's
property of whatsoever kind or natureunless possibly such lease conformed to all intents
and purposes with a sale or mortgage of the premises. During the course of the oral argument
counsel were questioned as to this situation, and it was stated that it was considered that
under section 1546 N.C.L. a lease was defined to be a conveyance. Such section provides:
The term conveyance,' as used in this act, shall be construed to embrace every instrument in
writing, except a last will and testament, whatever may be its form, and by whatever name it
may be known in law, by which any estate or interest in lands is created, aliened, assigned or
surrendered. Section 3 of Article 33, as noted, provides that no real estate owned by the
Aerie may be sold, exchanged, conveyed, mortgaged, or encumbered without approval of the
Grand Aerie, and that action without such approval shall be invalid and ineffective. That our
statute quoted above should be used as the sole method of the construction of the Grand
Lodge provision appears to be entirely unwarranted. Indeed a reading of the Grand Lodge
section indicates that its prohibition ran against a sale or mortgage of property. The parties to
the instrument themselves, as well as the Grand Lodge itself, seem to have placed such
construction on the matter for many years. Prior to 1941 the drugstore premises had been
leased to other parties. The upstairs office space had been leased to lawyers and dentists and
was still so leased at the trial of this action. The Grand Aerie had been receiving regular
reports for years which showed the receipt of such rentals, yet no exception was ever taken
and no objection ever made to such leasing of the local Aerie's property by its trustees. The
trial court found that after September 1, 1943, and to November 28, 1945 (the period from the
date of the assignment of the 1941 lease to defendant to the date of the execution of the new
lease), the plaintiff represented to defendant that plaintiff, through its trustees, had full
power and authority to lease its said premises and that defendant relied upon their
conduct, representations and statements and believed the same to be true and not
otherwise, and took the assignment of the original lease and paid a valuable
consideration therefor; and that it was not true that plaintiff informed defendant that the
trustees had no authority to enter into any agreement disposing of the lodge hall on the
second floor prior to the time the November 2S, 1945, lease was signed by the parties;
and that such original lease and option were valid, notwithstanding the lack of approval
by the Grand Lodge.
lease), the plaintiff represented to defendant that plaintiff, through its trustees, had full power
and authority to lease its said premises and that defendant relied upon their conduct,
representations and statements and believed the same to be true and not otherwise, and took
the assignment of the original lease and paid a valuable consideration therefor; and that it was
not true that plaintiff informed defendant that the trustees had no authority to enter into any
agreement disposing of the lodge hall on the second floor prior to the time the November 28,
1945, lease was signed by the parties; and that such original lease and option were valid,
notwithstanding the lack of approval by the Grand Lodge. Such validity of the 1941 lease
included the validity of the renewal covenant therein. In fact, when ruling on the motion for
new trial, the learned trial judge confirmed his decision that both by ratification and estoppel
the original lease was valid and that that included the option (for renewal).
Subject only to a determination as to whether the lease of November 28, 1945, was
executed and delivered conditionally and subject to the performance of a condition precedent,
namely, the obtaining of the approval of the Grand Lodge, virtually every element of estoppel
held by the learned trial court to apply to the 1941 lease likewise applied to the 1945 lease. It
remains, therefore, only to be determined whether an agreement to such condition precedent
was agreed upon. As to this, the trial court made the following finding of fact: That it is a
fact that plaintiff and defendant entered into an agreement November 28, 1945, for the entire
premises. That at the time said agreement was signed, it was agreed by the parties that said
agreement must be approved by the Grand Lodge of said Fraternal Order of Eagles or said
agreement would be a nullity. It also found, as a conclusion of law, the following: That the
new lease for the entire premises was signed subject to the approval of the Grand Lodge and
that this established a condition precedent to the effectiveness of the new lease for the
entire premises which was never fulfilled."
to the approval of the Grand Lodge and that this established a condition precedent to the
effectiveness of the new lease for the entire premises which was never fulfilled.
3. We are unable to agree either with such finding of fact or such conclusion of law.
Respondent insists that we are precluded from investigating this finding by reason of the rule,
to which this court has consistently adhered for many years, to the effect that a finding will
not be disturbed where there is substantial evidence to support it. We renew our adherence to
such rule, but it does not apply in the instant case.
Defendant had occupied the ground floor since September 1, 1943, and through his
predecessors had so occupied it since January 1, 1941. About September 12, 1945, some
eighteen days prior to the date when appellant was required to give notice of his election to
renew, he gave such notice in writing by registered mail. It will be remembered that such
renewal was to be at a rental to be agreed upon by the parties or by arbitration if they failed to
agree. By reason of the notice, a meeting was held to discuss this. Plaintiff's trustees then, for
the first time, notified defendant that they were willing, in the renewal lease, to remove the
restriction of the use of the premises involved (namely, the ground floor of the building) for
drugstore purposes, and therefore expected a considerably higher rental. This grew out of the
fact that plaintiff would probably not require the use of the second floor for its lodge room, as
they were intending to build other quarters. Everyone agreed that this was a matter of great
surprise to appellant, who naturally asked time to consider the matter.
A second meeting was held in which appellant then suggested that with the removal of the
restriction he would expect to use the ground floor for a gambling casino, if he could get a
license, and could use the entire building including the second floor. This in turn was a
surprise to the plaintiff's trustees, who desired to discuss that with their associates.
surprise to the plaintiff's trustees, who desired to discuss that with their associates.
Thereafter a third meeting was held in which it was agreed that the appellant would rent
the entire premises for $1,000 a month for the five-year term subject to his obtaining a
gambling license; that otherwise $500 a month was all that a drugstore could pay for the
ground floor. It was agreed that appellant's attorney, Mr. McNamee, would draw the lease and
present it at a later meeting.
Accordingly, the fourth meeting was held, and appellant appeared with the prepared
written lease and it was gone over by the parties. Only one objectionable feature appeared in
such written lease. That was the provision that in the event a gambling license could not be
obtained, then the $1,000 monthly rental should be reduced to $500. One of the trustees
called attention to the fact that should this occur, then appellant would have not only the first
floor premises but also the second floor premises at only $500 a month. This was apparently
not the intention. This appeared to require a rewriting of the lease as drawn, but appellant
assured them on his word of honor that if they would execute the lease as it stood and that if
he could not get a gambling license, he would not want the second floor. With this
understanding the lease was signed and deliveredeach party keeping an original copy.
During this entire period of negotiations, up to the execution and delivery of the lease on
November 28, 1945, the date of the last meeting, not a single mention had been made of the
necessity for any approval thereof by the Grand Lodge. Appellant and his predecessor had
been in possession for almost five years without any such approval and without any
discussion of the necessity for such approval. If the plaintiff or any of its trustees or officers
knew of such necessity, certainly they never advised appellant. It is true that the Lodge's
secretary, an employee of the appellant, told him, after the lease had been executed and
delivered, that while the trustees could probably lease the downstairs or the store
premises, they had no right to lease their lodge hall or the upstairs or second floor
without a two thirds vote of the members"that they could not lease the lodge room
outthe boys' meeting room, without approval."
had been executed and delivered, that while the trustees could probably lease the downstairs
or the store premises, they had no right to lease their lodge hall or the upstairs or second floor
without a two thirds vote of the membersthat they could not lease the lodge room
outthe boys' meeting room, without approval. As above noted, not only had appellant and
his predecessor been in possession under a written lease for some five years but a predecessor
of such predecessor had likewise leased the premises prior thereto and office space had been
rented to attorneys and dentists, at least some of such tenancies being under written leases,
and all without Grand Lodge approval.
Then appears the only item of testimony upon which could possibly be predicated the
court's conclusion that the approval of the Grand Lodge was a condition precedent to the
effectiveness of the executed and delivered lease.
One of the trustees testified that after he handed the signed lease to appellant he said, If
the Grand Lodge O.K.'s this lease, we will be O.K. This was testified to by Trustee Blad.
The other trustees, Cravens and Ballinger, also testified that they heard it said. Farnow denies
that any such remark was made to him in his hearing. Blad further testified that after he made
this statement, Farnow said, Well, gentlemen, if I don't get my gambling license I will have
no use for the upper floor. Note this response to an assertion made for the first time after
months of negotiation of a condition which could upset all of the negotiations and make a
nullity of the lease which had just been signed and executed. It shows without a doubt that if
the remark was made, the appellant did not hear it, or certainly did not understand its purport.
His response was to reiterate the promise he had made that he would not need the upstairs if
he did not get his gambling license. This is the situation as testified to by the plaintiff's
trustees themselves.
themselves. It is reiterated again and again in the testimony. The trial court understood quite
definitely, as remarked by him, that the lease had been delivered and each party had received
his copy. The basis on which the court permitted the testimony and overruled objections was
clearly stated by him. The court had been discussing the admissibility of parol evidence to
show that there was a condition precedent upon whose performance depended the
effectiveness of the contract. He then proceeded as follows:
Now, upon that theory, I am satisfied with the ruling that was made; and proceeding upon
that theory, allowing the plaintiffs to show, if they can, that there was complete
understanding between these parties that this certain consent had to be had, had to be
obtained, before this lease would become a binding lease upon the parties, notwithstanding
that each party had received an executed copy, I think the authorities that are mentioned in
this memorandum bears that outthat is the theory I am going on on that lease.
Later, when ruling upon a similar objection the court reiterated its understanding. The
learned judge said: * * * It all goes to plaintiff's theory that there was a condition precedent
in the matter of this approval, which condition was agreed upon.
And that complete understanding between the parties as to which the court felt it had to be
satisfied, is held to have been established by a more or less casual remark made after months
of negotiations and which the appellant very patently never even heard.
After the entire meeting between the defendant and trustees had been devoted to a
discussion of the one questionable item, namely, the fact that defendant would not have the
use of the upper floor if he did not get a gambling license and the discussion of a minor point
as to payment of taxes and as to protecting the lessor against liens (which apparently took
only a few moments), here then is what occurred: The lease was signed by Trustee
Cravens, it was signed by Trustee Ballinger and it was signed by the defendant Farnow,
the lessee.
moments), here then is what occurred: The lease was signed by Trustee Cravens, it was
signed by Trustee Ballinger and it was signed by the defendant Farnow, the lessee. Trustee
Blad had been in and out of the room waiting on people. He came into the room and was the
last to sign. Up to this point no mention of the Grand Lodge had been made at any time by
any person. Trustee Blad signed and each party kept a copy of the lease. Then:
Q. Will you state what happened then, Mr. Blad? A. Why, I made the statementI says
Ifgentlemen, if the Grand Lodge O.K.'s this lease, we will be O.K.' Then Mr. Farnow
again made the statement, he said Well, gentlemen, if I don't get my gambling license I will
have no use for the upper floor.'
Q. And when did you make that statement about the Grand Lodge, Mr. Blad? A. That
said evening.
Q. You mean by that, after the lease was signed? A. After the lease was signed. I believe I
signed it and handed it over to Mr. Farnow.
Later Mr. Blad was again asked whether Mr. Farnow had anything to say after Mr. Blad
said If the Grand Lodge O.K.'s this lease, we will be O.K. Mr. Blad replied: No, sir, there
was no discussion whatever about it. That is all he said Gentlemen, if I don't get that
gambling license I will have no use for the upper floor' * * * that was about all that transpired
* * * we then adjourned.
This is repeated again and again. The other two trustees corroborated the testimony of
Trustee Blad, using his identical words. In one or two instances there is a very slight
variation, but the words testified to are almost identical.
Does this then supply the substantial evidence to sustain the finding that at the time the
agreement was signed it was agreed by the parties that said agreement must be approved by
the Grand Lodge of said Fraternal Order of Eagles, or that said agreement would be a
nullity"?
Fraternal Order of Eagles, or that said agreement would be a nullity? Does it measure up
with the trial judge's ruling on the offer of evidence that the offered parol testimony was not
objectionable as tending to vary the terms of the written contract, but was competent, relevant
and material for the purpose of proving that there was complete understanding between
these parties, that this certain consent had to be had, had to be obtained, before this lease
would become a binding lease upon the parties?
4. We are compelled to answer these questions in the negative. We think the ruling of the
learned trial judge in overruling of the objection to the question was correct. The learned trial
judge did not attempt at the time to define the degree of proof that was required, nor do we
find it necessary to do so. It is patent, however, that the minds of these parties never met in an
understanding that this formal, carefully drawn, well considered, much discussed, executed
and delivered lease was to be a nullity unless approved by the Grand Lodge. In passing we
might note that the words used by Trustee Blad, even if Farnow indicated that he heard them,
would not necessarily have had such effect. The plural salutation emphasizes this: If,
gentlemen, if the Grand Lodge O.K.'s this lease, we will be O.K. This might well have
referred to the relation of the trustees to the lodge membership in view of the disagreement
among the members as to whether a lease should be executed and in view of the protest made
by some of the members to the Grand Lodge, later discussed herein. Nor can we agree with
the court's statement in the order denying a new trial with reference to the evidence
concerning the necessity of obtaining Grand Lodge approval: This subject was amply probed
in the testimony. The probing brought forth the one statement of eleven words, which we
have been unable to characterize other than as casual, made by one of the parties, without
testimony or indication that it was heard by the other, and with every indication that it
was not heard.
without testimony or indication that it was heard by the other, and with every indication that it
was not heard.
5. Plaintiff has submitted numerous authorities to support its contention that the acts of
the trustees in executing the 1945 lease without the approval of the Grand Officers were ultra
vires and void. Applied to the 1941 lease, the trial court found against plaintiff on this
contention, found plaintiff estopped from asserting this defense. If plaintiff was thus
estopped, such estoppel applied to the old lease as a whole, including the option for renewal,
and the trial court so held. The continued operation under the old lease for five years only
builds up the more strongly a like estoppel with regard to the new lease. Any attempted
distinction between the leasing of the ground floor only and the leasing of the entire building
including the lodge hall is unconvincing. If section 3 of Article 33 of the constitution of the
Lodge applies at all, it applies to the ground floor as well as the lodge hall. If ultra vires
applies to the lease of the lodge hall, it applies to the lease of the drugstore premises. We
think the trial judge was clearly right in holding that plaintiff was estopped from denying its
authority to execute the 1941 lease as against plaintiff's assertion that it was ultra vires and
void. Plaintiff quotes excerpts from 38 Am.Jur., Mutual Benefit Societies, sec. 33, p. 467, to
the effect that the rules applicable to corporate contracts generally which are ultra vires have
been applied to mutual benefit societies. However, the same well-written article proceeds to
recite many instances in which such societies have been held to be estopped from asserting a
plea of ultra vires when the other party to the contract has in good faith relied upon the
assumption that it actually possessed the power which it pretended to have authority to
exercise.
Respondent insists that an estoppel will not lie against its attack on its 1945 lease, because
appellant did not change his position to his detriment by reason thereof, and cites Farmers
& Merchants Nat.
and cites Farmers & Merchants Nat. Bank of Eureka v. Eureka Land & Stock Co., 56 Nev.
218, 49 P.2d 354, and other cases in support of this well-recognized rule. In that case the
bank had simply taken (from officers it knew to be unauthorized) a corporate mortgage
securing its hitherto unsecured notes. The bank had not changed its position to its detriment.
On the contrary, its position had been improved, and this court properly held that the Eureka
Land and Stock Company was not estopped from denying the authority of its resigned
officers to execute the mortgage. Here, the defendant had obligated himself in writing to the
payment of $30,000 (possibly $60,000) over a period of five years, an obligation which,
under the experience of the 1941 lease, was enforceable to the letter. Other principles of the
law of estoppel are discussed at great length by respondent and many authorities are cited, but
we do not find them in point. As a matter of fact the claimed absence of Grand Lodge
approval of the tenancy under the 1941 lease may well be debated, as the Financial Advisor
of the Grand Lodge, under instructions of the Grand Worthy President, wrote the local
officers on January 21, 1946, that he could not grant permission to lease the lower floor of
this building other than as now rented. The only tenancy then in existence was that of
appellant.
As we have indicated, we doubt that section 3 of Article 33 has any reference to a lease. It
is patently aimed at sales and mortgages. Leasing and renting are simple terms used and
understood by most laymen. The wording of said section 3 indicates that it was drawn by an
attorney, who understood the legal as well as the usual significance of these words, and it
would seem that if it was the intention of the framers of the constitution to prohibit leases of
their premises by local Aeries, it would have been so provided. If we yield to the argument
that it was the intention of the framers of this section that it be construed in accordance with
the Nevada statutory definition, we should then be faced with a situation whereunder the
Grand Aerie in Kansas City, Mo., would be construing documents executed in each of the
forty-eight states by subordinate lodges, in as many different ways.
the Nevada statutory definition, we should then be faced with a situation whereunder the
Grand Aerie in Kansas City, Mo., would be construing documents executed in each of the
forty-eight states by subordinate lodges, in as many different ways. In the absence of any
additional showing, no intention can be found in this section to police and supervise every
transaction by the trustees of local Aeries in renting or leasing rooms, offices, storerooms or
other premises. Although no such showing was made, we may even assume that the Grand
Aerie exercises some supervisory power with respect to the maintaining of a lodge room
essential to transacting the business of the local Aerie and the fostering of the friendly and
fraternal relations of its members and the inculcation of the well-known high principles and
ethics of the order, and that the Grand Aerie would probably refuse to charter a local Aerie in
the first instance without provision for such meeting place. However, at the first meeting
between the defendant and the trustees, held pursuant to defendant's notice of his election to
renew his tenancy, the trustees notified him that they now desired to lease the entire building
as they intended to build a new hall. The continued negotiations and conferences that
followed this for over two months were all predicated on this idea. I told him right from the
start, testifies Trustee Cravens, that we would no longer consider the drugstore as a small
town drugstore
* * * that we were not interested in whether it remained a drugstore or not, but we were going
to build a new home * * *.
6. Appellant contends that it was error for the trial court to admit evidence of the
assurances given by defendant that if he did not get a gambling license he would not use the
upper floor. It is clear, however, that the trustees would not have executed the lease in its
present form unless induced to do so by these assurances, most solemnly made. It would have
resulted in the grossest fraud and injustice to exclude this testimony, and the court
properly admitted it.
the grossest fraud and injustice to exclude this testimony, and the court properly admitted it. It
is elementary that testimony of this kind, given under the circumstances testified to, and
frankly admitted by the defendant, does not fall within the parol evidence rule. Respondent
maintains that this being so, the judgment of restitution of the premises must then be affirmed
for the reason that this court cannot write a new contract between the parties. We do not see
this difficulty, however. If we approve the lease subject to the oral covenant which induced its
execution, respondent is in no position to complain. It insisted throughout the trial, and
continues to insist, and rightly so, that evidence of this inducing promise was properly
admissible. But this evidence was offered, not to destroy the contract, but to establish the fact
that such promise must be enforced.
7. Respondent relies upon the case of Collom v. Roos Bros., 25 Cal.App. 73, 142 P. 858,
and cases of similar import, in support of its contention that the 1945 lease was not a renewal
of the 1941 lease because a number of the terms of the 1941 lease were changed. The
California Supreme Court, however, recognizes the general rule that the new lease may vary
from the old one as to its terms and still be held to constitute a renewal. Many conditions in
the Roos Bros. case (which held the second instrument to be a new lease and not a renewal)
clearly distinguish it from the instant case. Respondent contends, and the learned trial judge
held, that though appellant may have given his notice of exercise of his option, nevertheless
after the conferences started, the parties were diverted from their original purpose of
determining the rental for the extended term and eventually executed an entirely different
contract for different premises, to be used for different purposes. The conclusion is, therefore,
insisted upon that the parties reached no agreement on the rental for the extended term,
appointed no arbitrators to resolve this item, that the negotiations for the renewal
therefore entirely failed and that, therefore, no extension of the term resulted.
extended term, appointed no arbitrators to resolve this item, that the negotiations for the
renewal therefore entirely failed and that, therefore, no extension of the term resulted. This
web of rationalization is too finely spun. When defendant in good faith gave his notice of his
exercise of his option to renew, the rental consideration was the only thing he came to discuss
at the ensuing conference. The trustees demanded greatly increased rental because they were
willing to remove the use restriction, thus permitting greatly increased revenues to the lessee
through operation of the premises as a gambling casino. This in turn brought the suggestion
from defendant that the premises include the second floorone of the main features of this
suggestion being that he could remove the stairway and thereby enlarge the front. The lease of
November 28, 1945, resulted from the negotiations. The pivotal point of all negotiations was
the rental. This could not be destroyed by the mere fact that the plaintiff offered additional
consideration in support of its demand for increased rental.
We must again advert to respondent's insistence that the original lease of 1941 was void
because of the restrictions contained in section 3 of Article 33 of its constitution. Following
some sixty-five pages of citation of authorities and argument, respondent contends: From the
many authorities herein submitted, it is apparent that no lease was ever had between Crone,
defendant's assignor, and the plaintiff. Again we point out that respondent took no exception
to the findings or conclusions of the trial court, which court found that the 1941 lease,
including its option for renewal, was a binding obligation of the parties and that respondent
was estopped from questioning it. It would be difficult to see how the trial court could have
found otherwise. The plaintiff's pleading insisted upon its right to repossess, because the term
of that very 1941 lease had expired, because under the terms of that very lease, defendant's
occupancy was under a month to month tenancy only, and because defendant had failed to
comply with the requirements of that very lease in the matter of his notice of exercise of
his option to renew.
and because defendant had failed to comply with the requirements of that very lease in the
matter of his notice of exercise of his option to renew. Plaintiff in its verified complaint
alleged that defendant's assignors by virtue of said agreement and lease * * * went into
immediate possession of said premises, that they assigned to defendant with the consent
and approval of plaintiff, and that thereafter defendant went into possession pursuant to
said lease and assignment.
In view of our conclusion that there is a total failure of proof to support the finding that the
signed lease of November 28, 1945, was to be ineffective without the approval of the Grand
Lodge, and that the facts support appellant's claim of estoppel, it becomes unnecessary to pass
upon appellant's contention that much self-serving evidence was erroneously admitted by the
trial judge over appellant's objection. This included the constitution and bylaws of the Grand
Lodge governing subordinate lodges, minutes of proceedings of the local lodge, and letters,
telegrams and interviews between members of the plaintiff lodge and officers of the Grand
Lodge. All of these were without the presence or knowledge of the defendant. Whether or not
such evidence was properly admissible, its most interesting significance is its indication that
the first communication from the local lodge to the Grand Lodge in the premises was not a
request by the trustees for an approval of the lease or for an opinion as to the authority of the
local lodge, but was a protest to the Grand Lodge by some of the members of the local Aerie.
Trustee Cravens testifies: * * * as soon as some of the members of the lodge found that we
had signed that kind of a leasethey were opposed to giving up the top floor anywayand
they sent in a wire to the Grand Lodge protesting it. The wire in question was dated
December 10, 1945, twelve days after the lease was signed, and read: Can trustees lease our
lodge meeting hall without consent of members leaving aerie without meeting hall? The
reply was that if the trustees leased the meeting hall "depriving aerie of same," the answer
was definitely no, that there was apparently "some controversy over the matter, that full
details must be forwarded, etc.
meeting hall depriving aerie of same, the answer was definitely no, that there was
apparently some controversy over the matter, that full details must be forwarded, etc. The
record does not disclose that the trustees ever did request the Grand Lodge to approve the
Farnow lease. Farnow testified without objection and without contradiction that he told
Cravens that the latter should know that the agitation was being brought about by certain
members who were very friendly with gambling interests there on the street. These
circumstances all strengthened the plea of estoppel.
We have heretofore noted the entire absence from the plaintiff's pleadings of any
allegation to the effect that plaintiff executed the 1945 lease subject to the Grand Lodge's
approval or that such approval was necessary to its effectiveness or that the parties agreed that
it was to be ineffective unless so approved. Appellant has consistently attacked this situation
throughout the trial and the appeal to this courtby objections to testimony, motion for new
trial, objections to the findings, specifications of error, and in the oral and written arguments.
He insists that the finding of an agreement that the lease was to be a nullity unless approved
by the Grand Lodge was outside the pleadings and that the judgment based on such findings
is therefore without support. Hawkins, District Judge, speaking for this court in Bond v.
Thruston, 60 Nev. 19, 98 P.2d 343, 346, 100 P.2d 74, said: A comparison of the pleadings
with the findings discloses that certain of the findings are on matters outside the issues made
by the pleadings; such findings should be disregarded, and so much of the judgment as is
based thereon held to be void, as against law. Marshall v. Golden Fleece Gold & Silver Min.
Co., 16 Nev. 156; Scossa v. Church, 46 Nev. 254, 205 P. 518, 210 P. 563; Douglas Milling &
Power Co. v. Rickey, 47 Nev. 148, 217 P. 590; Bowers v. Charleston Hill Nat. Mines, Inc.,
50 Nev. 99, 104, 251 P. 721, 256 P. 1058. See, also, 17 C.J.S., Contracts, secs. 548, 549.
A reversal on this ground alone, however, would have required a new trial under amended
pleadings, and we have for this reason emphasized the other elements above discussed.
From what we have said it is apparent that the judgment restoring the premises to the
plaintiff and the order denying defendant's motion for a new trial must be reversed. It does not
appear necessary to order a new trial, as we are satisfied that we must hold that the lease of
November 28, 1945, is in full force and effect, subject to payment of accrued rentals, and
subject to the oral modification of the lease, agreed to by both parties, to the effect that if
appellant is not granted a gambling license, the demised premises include the ground floor
only and do not include the second floor.
The judgment and the order denying appellant's motion for a new trial are hereby reversed,
with costs, and the case is hereby remanded with instructions to enter judgment to the effect
that appellant is rightfully in possession of the premises described in said lease of November
28, 1945, subject to the terms and conditions thereof, and subject further to the payment,
without interest, of all of the accrued back rentals, and subject to the mutually agreed oral
modification of said lease that if appellant is not granted a gambling license, after timely and
bona fide application therefor, the demised premises embrace the ground floor only, and not
the second floor.
Horsey, J., concurs.
Eather, C. J., (dissenting).
I dissent. For the following reasons I think the judgment and order should be affirmed:
This action was instituted by respondent for the restitution of a two-story building
belonging to it in the business district of the City of Las Vegas, Clark County, Nevada, and to
recover rental for the use and occupancy of the ground floor by defendant, since January 1,
1946.
of the ground floor by defendant, since January 1, 1946. Issues were joined and the case was
tried on the merits in the court below, sitting without a jury. Judgment was entered in the
court below awarding plaintiff restitution of its entire premises, including the ground floor,
and awarding the plaintiff judgment for $500 per month rental for the use and occupancy of
the ground floor by defendant, which sum the court below found to be the reasonable value of
the use by defendant of the ground floor of the premises.
The complaint in the action is in the usual form in an action for forcible entry and detainer
under the chapter of the Civil Practice Act relating thereto, the same being sections
9132-9152, N.C.L. 1929.
The appellant in his opening brief specifies twenty-two assignments of error; subdivision 1
of assignment of error No. 6 seeks to question the jurisdiction of this court and will therefore
be determined first. It is as follows: That there is no real person, natural or artificial, as party
plaintiff in this action and that said action should be dismissed. Appellant tendered the same
in the court below as his proposed additional conclusion of law No. 1, and the trial court
refused to adopt the same. In support of said assignment and of appellant's proposed
additional conclusion of law No. 1, he relies in his brief chiefly upon the decision of this
court in the case of Proprietors of Mexican Mill v. Yellow Jacket Silver Min. Co., 4 Nev. 40,
97 Am.Dec. 510. I do not think the case is in point. The complaint in this case specifically
alleges that the trustees named therein and in the caption are the duly constituted Board of
Trustees of the Las Vegas Aerie No. 1213, Fraternal Order of Eagles, and that said trustees
hold in trust the premises involved in this litigation. These allegations were adopted by the
trial court as findings of fact Nos. 1 and 3. The evidence to support the said findings is
uncontradicted in this record, and in addition thereto the trial court found as a fact in finding
No. 19, which, it may be noted, was proposed by appellant: "That plaintiff is an
unincorporated, voluntary association formed for the purpose of uniting fraternally for
mutual benefit, protection, improvement, and association generally, male members of the
Caucasian race of sound body and health, of good moral character, who believe in a
Supreme Being, and who are not less than eighteen nor more than fifty years of age."
was proposed by appellant: That plaintiff is an unincorporated, voluntary association formed
for the purpose of uniting fraternally for mutual benefit, protection, improvement, and
association generally, male members of the Caucasian race of sound body and health, of good
moral character, who believe in a Supreme Being, and who are not less than eighteen nor
more than fifty years of age.
This court held, in the case of Branson v. Industrial Workers of the World, 30 Nev. 270,
95 P. 354, that an action may be instituted by or against a voluntary or unincorporated
organization, where the members comprising the same are numerous, by simply joining as
defendants a few natural persons, members of the organization, sufficient to represent and
protect the interests of the entire membership, and the few may be made plaintiffs or
defendants for all.
I may also cite Liederkranz Singing Soc. of Lancaster v. Germania Turn Verein of
Lancaster, 163 Pa. 265, 29 A. 918, 43 Am.St.Rep. 798. I am of the opinion that the complaint
clearly shows with sufficient certainty the real capacity of the party plaintiff. Owens et al. v.
Dudley, Mayor, et al., 162 Cal. 422, 122 P. 1087. Section 8634, N.C.L. 1929, expressly
provides, among other things, that a plaintiff suing in a representative capacity need not
state the facts constituting such capacity or relation, but may aver the same generally or as a
legal conclusion. Moreover, I may note that in the purported lease set forth by the defendant
in his answer, and under which he claims the right to the possession of the premises involved,
the contracting parties are referred to in the following manner: This lease, made and entered
into this 28th day of November, 1945, by and between Las Vegas Aerie No. 1213, Fraternal
Order of Eagles, acting by and through its duly constituted Board of Trustees, party of the
first part, and Harry D. Farnow, hereinafter called the party of the second part. As I view the
matter, the action was properly instituted by the trustees for the use and benefit of the
local Aerie.
instituted by the trustees for the use and benefit of the local Aerie.
The record in this case does not reveal that the point was raised in the court below in any
manner other than by demurrer interposed by appellant, ground 2 of which alleges: That the
plaintiff does not have legal capacity to sue in that it does not appear that plaintiff is a natural
or artificial entity. It was pointed out by this court in the case of Proprietors of Mexican Mill
v. Yellow Jacket Silver Mining Company, supra; a demurrer for defect of parties plaintiff
or that plaintiff has not legal capacity to sue will not reach the defect contended for by
appellant.
Appellant states in his opening brief the first four assignments of error come under the
same heading and will be discussed together. I likewise so consider and dispose of same.
The question so presented involved chiefly the admissibility of the oral testimony of
certain witnesses at the trial of this action, and whether or not the testimony so offered and
received was within the scope of the pleadings. The written decision of the learned trial judge
who admitted the testimony and who had the benefit of presiding at the trial and hearing the
testimony at first hand, and then decided this case adversely to appellant, was incorporated in
the bill of exceptions, and therefore we have the benefit of his reasoning and views expressed
in said written decision and I believe it states the facts of this litigation clearly and succinctly
and states the substance of appellant's first four assignments of error and decides the same
adversely to appellant, and I think correctly so. I quote the written decision:
This action is brought by Las Vegas Aerie No. 1213, Fraternal Order of Eagles, by its
trustees, against Harry D. Farnow, for the restitution of its two-story building and for rentals.
The plaintiff is a voluntary, unincorporated association. Of the status of such associations, it
is stated in 38 Am.Jur., p. 448, section 7, that they are not partnerships for they do not hold
themselves out as such, their obligations standing on the ground of principal and agent.
out as such, their obligations standing on the ground of principal and agent.
The plaintiff's complaint alleges that on January 7th, 1941, the ground floor of the
premises was leased to one George M. Crone and Boulder Drug Company, a corporation, for
a term of five years, and that Crone and the company, on or about September 1, 1943, with
plaintiff's consent, assigned the lease to defendant; That paragraph 18 of the lease embodies
an option to the lessees to hold and enjoy the premises for an additional term of five years, at
a monthly rental to be agreed upon, upon the giving of notice of the exercise of such option;
that the defendant has never given such notice, but held over under the terms of the lease; that
on February 28th, 1946, plaintiff served defendant with notice of termination of the lease and
demand for possession; that article 33, section 3, of the constitution for subordinate aeries of
the Fraternal Order of Eagles requires that said lease be submitted to the Grand Worthy
President of the order for his approval, and that it has never been so submitted. The defendant
alleges that he gave due notice of the exercise of the option and that subsequently he and the
plaintiff reached an agreement as to the monthly rental for such additional term as set forth in
a new lease, dated November 28th, 1945, copy being attached to the Answer; and that he and
his predecessors paid all rentals required by the original lease, and that he had paid or
tendered all rentals required by the extension of said lease. Defendant also alleges an estoppel
on the part of the plaintiff to deny the due execution of the original lease and the extension
thereof.
The plaintiff, in its pleadings, does not deny the authority of its trustees to negotiate for
and execute on its behalf the original lease and the extension thereof, subject to the approval
of the Grand Worthy President; but it contends that neither the original nor the extension ever
became effective because neither has ever been approved by the Grand Worthy President, and
that, in the absence of such approval, the acts of the trustees in the execution of the lease
and the extension are a nullity.
the absence of such approval, the acts of the trustees in the execution of the lease and the
extension are a nullity.
The complaint, paragraph V, alleges that plaintiff demised and let the ground floor to
Crone and the Drug Company, but alleges that the option was not exercised, and, further, that
the lease was never approved by the Grand Worthy President. The defendant, in his Answer,
Paragraph 3, alleges that the plaintiff and defendant reached an agreement as to the monthly
rental for said additional term, all as set forth in that certain lease dated November 28, 1945, a
copy of which is hereto attached, marked Exhibit 1, and made a part hereof.' In its reply,
paragraph 11, the plaintiff alleges that plaintiff and defendant entered into an agreement,
defendant's Exhibit 1,' and further that the Grand President has not approved the new lease.
At the trial, plaintiff urged that there was a lack of authority on the part of the trustees to bind
the local lodge, and that, especially as to the new lease, no such authority had been given, and
that the local lodge has disapproved of the new lease. Upon the state of the pleadings as
above described, no issue is presented as to the authority of the trustees to act for the local
lodge in negotiating, signing and delivery of the new lease and extension, subject to the
approval of the Grand Worthy President.
As to the validity of the original lease, the court doubts if the authority of the local lodge
to execute the lease is affected by the terms of the constitution for subordinate lodges, where
such terms are unknown to the lessee. But whether known or not, the court takes the view
that, on the evidence, both estoppel and ratification apply to and confirm the validity of the
original lease and option, notwithstanding the lack of approval. The court concludes that the
original lease and option were valid.
The plaintiff contends that there was no complete and unconditional delivery of the new
lease to the defendant. Delivery usually consists of the physical handing over of the
document with the intent that it shall become immediately effective as to the rights
therein set forth.
handing over of the document with the intent that it shall become immediately effective as to
the rights therein set forth. 17 C.J.S., Contracts, sec. 64 (13 C.J., sec. 131); 26 C.J.S., Deeds,
sec. 41 (18 C.J., sec. 95). Relative to the signing, Mr. Farnow testified (deposition, p. 15), So
we proceeded to sign the document and then we shook hands.' Mr. Blad testified (deposition
p. 8), Yes, the night we signed the lease I told him, now if the Grand Lodge O.K.'s this, it
will be all right.' That was after we signed it, yes, sir.' Mr. Ballinger testified (deposition, p.
12), Well, when we signed the contract, Brother Blad spoke if the Grand Lodge O.K.'d the
lease, it would be O.K.That's all I know.' He testified at the trial that Blad's statement was
made after the lease was signed. Mr. Craven testified (deposition, p. 22) that Mr. Blad said
of course you understand that this will have to be O.K.'d by the Grand Lodge.' At the trial, he
testified, in substance, that just as Blad started to hand him the lease, he spoke of the
necessity of approval by the Grand Lodge. The proof shows that the delivery of the signed
lease was substantially concurrent with Blad's statement relative to approval. This established
a condition precedent to the effectiveness of the new lease. The proofs show that this
condition has never been fulfilled. The court therefore concludes that the new lease is
ineffectual either for the commencement of a new term of tenancy or as an agreement upon
the amount of rental for an extension of the original lease on the ground floor, under the
option. Defendant exercised his option by giving due notice thereof to the plaintiff. He met
with the trustees for the purpose of negotiating as to the amount of rental for the extended
term, but they were diverted from that subject and took up the negotiating of terms for the
leasing of the entire building. No agreement was ever arrived at between them as to the
amount of rental for the ground floor, the only part of the building covered by the option.
If the option is still in force, does it give to the defendant a present right of possession
of the ground floor of the premises.
defendant a present right of possession of the ground floor of the premises. Paragraph 9 of the
original lease provides as follows:
9. As soon as said option is exercised, the said parties hereto shall, if they cannot agree
upon the rental for said extended term within five (5) days after notice is given of the exercise
of said option, immediately appoint said board of arbitrators, who shall agree upon and fix the
rental for such extended term prior to the commencement of such extended term, or else said
extended term shall operate.
Time shall be of the essence of this agreement, and each and every part thereof.'
The court can find nothing in the foregoing language, or in paragraph 18 of the lease,
from which it can be inferred that the term of the lease is extended pending the settlement of
the amount of rental under the terms of the option.
The plaintiff is entitled to judgment for the restitution of the premises and for rental
measured by the reasonable value of the use. From the proofs presented, the court takes the
view that $500.00 per month is the reasonable value of the use of the ground floor of the
premises. The plaintiff is entitled to judgment for rental at the rate of $500.00 per month for
the period from January 1, 1946, to the date of judgment; and for costs of suit. Our Supreme
Court has held that the law does not justify the awarding of treble rent. Regan v. King, 39
Nev. 216, 217, 156 P. 688.
I may also note from the record a portion of the testimony of the appellant at the trial of
this case in the court below, in answer to questions by respondent's counsel:
Q. Did you make a statement to them (trustees) at that meeting, that if you didn't get a
gambling license that you wouldn't have any use for the second floor of the building? A. I did
make such a remark. It was brought up by Mr. Cravens (one of the trustees) who thought
that the lease should read that if I didn't get my gambling license that I wouldn't be
permitted to occupy the upper floor for the $500.00 figure.
thought that the lease should read that if I didn't get my gambling license that I wouldn't be
permitted to occupy the upper floor for the $500.00 figure.
Q. Was this at the last meeting? A. I think it was either the last or the next to the last. It
was one of the two, and I told them, Well, that could be put in there but it is going to
necessitate having this rewritten,' and I said, I give you my word that I have no need for the
upper floor if I don't get a gambling license.' Mr. Blad (one of the trustees) said, Well, your
word is good enough for me.' Mr. Cravens said, Well, I suppose after all we have eight
hundred members in our organization and if you break your word we will go ahead and
boycott you,' and I said, I'll stay by my word'.
I believe it is clear from appellant's own testimony that the written instrument was subject
to several conditions before it would become effective, and that further negotiations were
necessary before there was a meeting of the minds as to just what particular portion of the
premises was to be leased, and at what consideration.
I believe the rule to be well established that parol evidence is admissible, not necessarily to
vary the terms of a written instrument, but to establish any condition precedent to the
effectiveness of such written instrument, or to the same effect that there was a conditional
delivery. Wigmore on Evidence, 3d Ed., vol. 10, at p. 7, subdivision 5, and authorities there
cited. We also cite the decision of this court in Allenbach et al., v. Ridenour, et al., 51 Nev.
437, 279 P. 32; and Saunders v. Stewart, 7 Nev. 200.
There is substantial evidence in the record to support the decision of the trial court and to
support the findings of fact and conclusions of law, and as this court has repeatedly held,
findings of fact and conclusions of law based upon substantial evidence will not be disturbed
upon appeal. Cut Rate Drug Co. v. Scott & Gilbert Co., 54 Nev. 407, 20 P.2d 651; Ward v.
Scheeline Banking & Trust Co., 54 Nev. 442, 22 P.2d 358. I am therefore satisfied that the
various assignments of error asserting the lack of evidence to support the findings of fact
and conclusions of law are not well taken.
satisfied that the various assignments of error asserting the lack of evidence to support the
findings of fact and conclusions of law are not well taken.
The appellant contends in his motion for a new trial in the court below, and in various
assignments of error in this court, that the respondent in its reply admits the execution of the
renewal lease and that hence the trial court's conclusion of law that the new lease was signed
subject to the approval of the Grand Lodge is contrary to said admission and outside the
issues. It is alleged in the reply in response to defendant's answer that the plaintiff,
respondent's trustees, informed the defendant, appellant, that they had no authority to enter
into an agreement disposing of its Lodge Hall on the second floor of its building, without
approval of the Grand Lodge, and the restrictive requirements of the bylaws were also
pleaded, and also appear in the bill of particulars which was furnished to the appellant by
respondent, and in which there is set forth the time and place of giving said information to the
appellant. The oral testimony fully supports these allegations.
I take the same view as did the trial court that these pleadings on the part of respondent
sufficiently apprised the appellant of respondent's contention that the second lease was void
and ineffectual due to the lack of approval on the part of the Grand Lodge, and that appellant
had been so informed by respondent in due time, and that the negotiations and actions of the
Local Lodge so far as they pertain to the execution of the second lease, were subject to the
approval of the Grand Lodge. It is conceded that the Grand Lodge refused to approve of the
second lease in question and expressly instructed the Local Lodge to disapprove the same,
which the Local Lodge did by vote of its members.
Appellant assigns as error No. 14 the introduction in evidence of respondent's Exhibit C,
being the constitution for subordinate aeries of 1944, and respondent's Exhibit E
constitution for subordinate aeries of 1939.
The documents were identified by the secretary of the Local Aerie as having been sent him by
the Grand Lodge for government of the Local Lodge, and the secretary testified that said
constitution of 1944 was the constitution under which the Local Lodge conducted its affairs
and was open for examination by any member of the Lodge or by other parties dealing with
the Lodge. The only pertinent part of the document insofar as this case is concerned, is
section 3 of Article 33 thereof which was pleaded in full by respondent in its complaint, and
which section provides:
Article 33.
Section 3. Sale and Disposition of Real Estate.
No real estate which is owned or acquired by any subordinate aerie, or by any person or
body, in trust, constructive or otherwise, for the use of such aerie, may be sold, exchanged,
conveyed, mortgaged or encumbered, by trust deed or otherwise, by such aerie unless the
details of the subject matter thereof together with the pertinent, relevant and material facts
warranting such sale, exchange, mortgage, encumbrance or conveyance of real estate shall
first have been submitted in writing to the Grand Worthy President, for the purpose of
securing the recommendation of the Board of Grand Trustees thereon and the written
approval of the Grand Worthy President, and any action taken by any subordinate Aerie or the
officers thereof, without first securing such approval shall be invalid and ineffective for any
purpose. The proceeds of such sale, exchange, mortgage, encumbrance or conveyance shall
be placed in the proper fund of the Aerie.
Sections 1545, 1546, N.C.L. 1929, provide that a leasehold estate is an interest in real
property, and it was so held by this court in the case of Adams v. Smith, 19 Nev. 259, 272, 9
P. 337, 10 P. 353. I think the restrictive provisions in said section 3, article 33, were made
known to the appellant by the trustees themselves, and therefore conclude that there was in
fact sufficient foundation laid insofar as the said section is concerned.
therefore conclude that there was in fact sufficient foundation laid insofar as the said section
is concerned.
As I am satisfied that the trial court was correct in holding with the principles of estoppel
and ratification, while applying to the original lease did not apply to the renewal lease, I am
unable to concur with the majority opinion that the respondents were estopped from attacking
the validity of the renewal lease. By reason of the constant adherence of this court to the rule
that the findings of the trial court will not be disturbed where there is any substantial evidence
to sustain the same, I am also unable to concur in the conclusion that no condition precedent
was established with reference to the effectiveness of the renewal lease, nor do I find anything
amounting to prejudicial error in any of the other assignments. I am therefore of the opinion
that the judgment and order denying a new trial should be affirmed.
April 14, 1948.
Good cause appearing therefor, it is hereby ordered that respondent's petition for rehearing
be, and the same hereby is, denied.
Horsey, J.: I concur.
Eather, C. J.: I dissent.
____________
65 Nev. 113, 113 (1948) Finley v. Finley
MIRIAM FINLEY, Appellant, v. LARRY FINLEY,
Respondent.
No. 3497
February 2, 1948. 180 P.2d 334.
1. Judgment.
The object of a nunc pro tunc order is to make a record speak the truth concerning acts done, and such
order cannot be made use of nor resorted to to supply omitted action.
2. Judgment.
The power to order entry of judgment nunc pro tunc cannot be used to correct judicial errors or
omissions, nor to change judgment actually rendered to one which the court neither rendered nor intended
to render.
3. Judgment.
A court may amend its order to correct mere clerical errors or omissions at any time and has inherent
power to do so by a nunc pro tunc order, but such order cannot be used to enlarge the judgment as
originally rendered.
4. Judgment.
A judgment varying the rights of the parties as fixed by original decision is void, though the court has
informed counsel of his decision to do so, and no objection is made.
5. Judgment.
Court, in entering a judgment nunc pro tunc, may in its discretion rely on its memory as to what was
actually done and may refresh its memory from any source it deems reliable.
6. Courts.
Parties cannot by consent give court jurisdiction to enter a nunc pro tunc judgment that is beyond the
court's jurisdiction.
7. Courts.
Consent of the parties to entry of a judgment cannot restore original jurisdiction if in fact the court has
lost jurisdiction.
8. Divorce.
Where court entered divorce decree approving a property settlement theretofore made by the parties
which had been admitted in evidence, but did not adopt provisions of the agreement as part of the decree,
court had no power subsequently to enter a nunc pro tunc decree adopting as part of the decree the
provisions of the agreement, though parties consented, since amended decree, by adopting the provisions of
the agreement, gave wife, in addition to her contractual rights then existing, right to invoke contempt
proceedings and rights of a judgment creditor.
9. Courts.
Court rules, when not inconsistent with the Constitution or laws of the state, have the effect of statutes.
10. Divorce.
Court which entered divorce decree on August 1 had jurisdiction to modify the decree on January 6 and
had jurisdiction on May 3 to modify decree of January 6. Rules of the District Court, rule 45.
Appeal from Eighth Judicial District Court, Clark County; Frank McNamee, Judge.
Suit for divorce by Miriam Finley against Larry Finley, wherein a decree was entered in
favor of the plaintiff on August 1, 1946. Thereafter the plaintiff noticed a motion to amend
the divorce decree nunc pro tunc. On January 6, 1947, a nunc pro tunc order was made
amending the divorce decree. From a decree of May 3, 1947, on defendant's motion
modifying the decree of January 6, 1947, the plaintiff appeals. Affirmed.
Harvey Dickerson, of Las Vegas (Clyde D. Souter, of Reno, of counsel), for Appellant.
Jones, Wiener & Jones and D. Francis Horsey, all of Las Vegas, for Respondent.
OPINION
By the Court, Wines, District Judge:
The facts pertinent to this appeal are briefly as follows:
On August 1, 1946, a decree was made and entered in the Eighth Judicial District Court of
the State of Nevada, in and for the County of Clark, in the above-entitled action, granting to
plaintiff an absolute divorce, awarding to her the custody of the minor child the issue of the
marriage, ordering that defendant pay plaintiff a certain monthly sum for the support and
maintenance of the child, and finally, approving a property agreement theretofore made by
the parties which had been admitted into evidence.
theretofore made by the parties which had been admitted into evidence. The matter was tried
by the court without a jury, and upon the complaint of plaintiff and the answer of defendant.
On January 6, 1947, the plaintiff noticed a motion to amend the decree of divorce entered
August 1, 1946, for the 13th day of January, 1947. Plaintiff gave notice that she would move
the court to amend the decree by having the court adopt as a part of the decree the provisions
of the property agreement, and further, that she would move the court that the amended
decree be entered nunc pro tunc as of August 1, 1946. The defendant in writing
acknowledged service of the notice, consented to the hearing of the motion on January 6,
1947, waived time for notice and consented to the amendment of the decree as set out in
plaintiff's motion, using this language: Consents to the amendment of said decree of divorce
as applied for by plaintiff under and by virtue of the afore-mentioned notice of motion to
amend the decree of divorce. Thereupon, the court on the same day made its order granting
leave to amend and on the same day made and entered its Amended Decree of Divorce
reciting in words the provision of the property agreement as its decree in respect to the
maintenance and support of plaintiff and the property rights and relations of the parties,
ordering the parties to carry such provisions and ordering that the amended decree be entered
nunc pro tunc as of August 1, 1946. The original decree of August 1, 1946, had provided It
is further ordered, adjudged and decreed that the property settlement agreement entered into
between plaintiff and defendant on the 4th day of May, 1946, be, and the same is, hereby
approved. The amended decree of January 6, 1947, repeated said order and added, among
other things, the following:
It is further ordered, adjudged and decreed that defendant pay plaintiff until her
remarriage, as and for her support and maintenance, the sum of $1350 per month
commencing on August 4, 1946, and thereafter on the 4th day of each month until and
including April 4, 1947; and, thereafter on the 4th day of each month commencing May 4,
1947, that defendant pay plaintiff as and for her support and maintenance, a sum
equivalent to 36% of his monthly earnings, provided, however, that the monthly
payments commencing May 4, 1947, shall not exceed the sum of $1350 or be less than
the sum of $450; that at the end of each year during the term of the aforesaid agreement,
defendant shall deliver to the plaintiff a statement of his earnings during the preceding
year, said statement to be certified to be correct."
her support and maintenance, the sum of $1350 per month commencing on August 4, 1946,
and thereafter on the 4th day of each month until and including April 4, 1947; and, thereafter
on the 4th day of each month commencing May 4, 1947, that defendant pay plaintiff as and
for her support and maintenance, a sum equivalent to 36% of his monthly earnings, provided,
however, that the monthly payments commencing May 4, 1947, shall not exceed the sum of
$1350 or be less than the sum of $450; that at the end of each year during the term of the
aforesaid agreement, defendant shall deliver to the plaintiff a statement of his earnings during
the preceding year, said statement to be certified to be correct.
On March 26, 1947, the defendant filed in the action a motion and notice of motion
wherein notice was given that the defendant would on the 4th day of April, 1947, move the
court to modify the decree of August 1, 1946, and January 6, 1947, in certain particulars. The
plaintiff was served and appeared specially, after substitution of attorneys, for the purpose of
contesting the jurisdiction of the court to hear and determine the motion noticed by the
defendant. The matter was heard on the point presented by plaintiff and the question was
resolved in favor of the defendant by the court. The plaintiff did not contest the matter on its
merits and the court ruled in favor of the defendant on the motion and entered the decree
denominated Modified Decree of Divorce modifying the decree of January 6, 1947, as
above set forth. Plaintiff has appealed and assigns error in the order overruling her objection
taken to the court's assuming jurisdiction of the motion. Plaintiff in the court below, who is
appellant here, will be hereinafter referred to as plaintiff and the respondent husband as
defendant.
Briefly, the argument of counsel for plaintiff has been that as the decree made January 6,
1947, was entered nunc pro tunc as of August 1, 1946, the same was retrospective in all
respects; that by virtue of Rule XLV of District Courts and Public Act No.
nunc pro tunc as of August 1, 1946, the same was retrospective in all respects; that by virtue
of Rule XLV of District Courts and Public Act No. 56 (being Chapter 162, Public Laws of
Nevada, 1947, Page 531) the district court no longer had jurisdiction since more than six
months had elapsed between August 1, 1946, and the date on which the last motion was
noticed. Plaintiff argues further that if her contention should prevail this case does not come
under the principal enunciated by this court in Aseltine v. District Court, 57 Nev. 269, 62
P.2d 701, as in that case there was held to be an implied reservation of jurisdiction which
does not appear here.
The defendant argues that conceding that a nunc pro tunc order is retrospective as to the
substantive rights of the parties it is not as to third persons or as to the procedural rights of the
parties to the action, and, finally, that if the court rules that the decree made and entered on
January 6, 1947, is retrospective in all respects the case comes under the principle announced
in Aseltine v. District Court.
It will not be necessary to enlarge on the facts stated above by a discussion of the various
decrees for the purpose of deciding whether this case comes under the principle of the
Aseltine case. It has been concluded that the matter should be decided on the first point raised
by counsel, that is to say, whether the order made January 6, 1947, that the decree amending
the decree of August 1, 1946, be entered nunc pro tunc operates to cut off defendant's rights
to move to modify the decree of January 6, 1947.
It should be pointed out here that the decree of January 6, 1947, enlarged upon the original
in at least two respects: By adopting in words the provisions of the property agreement as the
decree of the court the court gave to plaintiff in addition to her contractual rights then existing
the right to invoke contempt proceedings in this state and the rights of a judgment creditor
in this or any other state.
in this state and the rights of a judgment creditor in this or any other state. Nor could
defendant have moved to modify the decree in respect to the provisions made for the plaintiff
before the decree entered on January 6, as there was nothing on which the court could have
acted.
The record in this case has been very carefully examined with a view to finding anything
therein which would sustain the entry of the order nunc pro tunc. The minutes of the court,
the transcript, the original decree and the order granting leave to amend do not support a
finding that the court in amending the decree acted to have the record speak the truth as to
what occurred on August 1, 1946. It appears that the motion made by plaintiff on January 6,
1946, was upon the pleadings and records on file and on that date the minutes of the court,
testimony of plaintiff and the order of the court show that all that plaintiff requested or
received was approval by the court of the agreement made by the parties. Nor in fact was the
motion made to have the record speak the truth as to what occurred on August 1, 1946, but a
motion to amend the decree and have the decree as amended entered nunc pro tunc as of
August 1, 1946.
1, 2. The object and purpose of a nunc pro tunc order is to make a record speak the truth
concerning acts done. Talbot v. Mack, 41 Nev. 245, 255, 169 P. 25. The court there
intimated, and in this is supported by authority, that an order nunc pro tunc cannot be made
use of nor resorted to, to supply omitted action. Power to order the entry of judgment nunc
pro tunc cannot be used for the purpose of correcting judicial errors or omissions of the court.
Nor can this procedure be employed to change the judgment actually rendered to one which
the court neither rendered nor intended to render. Wright v. Curry, 208 Ark. 816, 187 S.W.2d
880; Schroeder v. Superior Court, 73 Cal.App. at 687, 239 P. 65.
And so it was held in Barkelew v. Barkelew, 73 Cal.
App.2d 76, 166 P.2d 57, that an interlocutory divorce decree would not be amended nunc pro
tunc on the theory of correcting a clerical error so as to limit the defendant's obligation to
make one hundred twenty-five dollar monthly payment's for the wife's support to those
months when the wife's income from outside sources was less than one hundred and fifty
dollars per month, where in fact the amendment would change and enlarge the judgment
rather than make the judgment conform to the decision actually rendered; although it was
recognized there that a clerical error in a judgment appearing on the face of the record may be
corrected by nunc pro tunc order and such correction made at any time. It was also pointed
out that a nunc pro tunc order correcting a clerical error in a judgment is to make the
judgment as entered conform to the judicial decision actually made.
It was pointed out in State v. District Court of the Fifth Judicial District, 110 Mont. 36, 98
P.2d 883, that the test of whether a judgment may be amended nunc pro tunc is whether the
change will make the record speak the truth as to what was actually determined or done or
intended to be determined or done by the court or whether it will alter such action or intended
action.
3, 4. A nunc pro tunc order cannot be used to enlarge the judgment as originally rendered,
and a judgment varying the rights of the parties as fixed by the original decision is void
although the court informed counsel of his decision to do so and no objection was made. See
Felton Chemical Company v. Superior Court, 33 Cal.App. 2d 622, 92 P.2d 684. For further
authorities on the function or office of a nunc pro tunc order, see Words and Phrases, Vol. 28,
commencing at page 983. The court may amend to correct mere clerical errors or omissions at
any time and has inherent power to do so. See Silva v. District Court, 57 Nev. 468, 66 P.2d
422, and Annotation in 126 A.L.R. 956. But this power should be distinguished from the
power to amend so as to enlarge or in any manner substantially alter the rights of the
parties under the original order for the first time upon application of the parties to the
action.
enlarge or in any manner substantially alter the rights of the parties under the original order
for the first time upon application of the parties to the action.
5-8. This raises the question as to whether the parties by their consent could give the court
jurisdiction or power to do something which it could not have done without such consent.
While the court has an inherent power to make the record speak the truth as to what was
actually done (Lindsay v. Lindsay, 52 Nev. 26, 280 P. 95, 67 A.L.R. 824) and the court may
in its discretion rely on its memory as to what was actually done and may refresh its memory
from any source it deems reliable (Gottwals v. Rencher, 60 Nev. 35, 47, 56, 92 P.2d 1000, 98
P.2d 481, 126 A.L.R. 1262), nevertheless, the court would not have power to modify its
decree so as to affect the substantial rights of the parties as they existed under the original
order and make such an entry nunc pro tunc. It is my conclusion that the consent of the parties
that the amended decree be entered nunc pro tunc could not give the court jurisdiction to do
so. The power to make such an order and have it entered nunc pro tunc depends on something
having actually happened which was not recorded. The consent of the parties cannot confer
jurisdiction. Jasper v. Jewkes, 50 Nev. 153, 254 P. 698. This principle has been maintained in
this court since the case of Hastings & Company v. Berning Moscow Company, 2 Nev. 93,
where it was held: When a defendant consents to a judgment against himself he must be held
to admit every possible fact consistent with the pleadings which would be necessary to
support the judgment. It may also be held that by consent he waives all errors. But no
defendant can by consent confer power or jurisdiction on a Court to enter an illegal judgment
or judgment beyond the jurisdiction of the Court. And it was held in Maitia v. Allied L. & L.
Company, 49 Nev. 451, 248 P. 893, that a jurisdictional requirement cannot be waived. A
court cannot be governed by a stipulation as to the legal effect of a judgment.
as to the legal effect of a judgment. People v. Traeger, 339 Ill. 356, 171 N.E. 548. Where in
fact there is no basis for such an entry consent will not give the court jurisdiction to do so.
Owen v. Owen, 157 Va. 580, 162 S.E. 46. Nor can consent of the parties restore original
jurisdiction if in fact the court has lost the same. Donner v. Superior Court, 82 Cal.App. 165,
255 P. 272.
It will not be necessary under such a ruling to discuss the question raised by the defendant
as to whether an order made nunc pro tunc operates to cut off the procedural rights of the
parties. For a case on this point see Tresemer v. Gugle, 70 Ohio App. 409, 42 N.E.2d 712. It
is sufficient to hold that the order of the court that the amended decree of January 6, 1947, be
entered nunc pro tunc as of August 1, 1946, was void as an improper exercise of power or
jurisdiction to enter orders nunc pro tunc. There remains only the necessity of fixing the
rights and obligations of the parties as they now exist under the record.
It does not follow that if the court was without power to order that the decree be entered
nunc pro tunc, it was without jurisdiction to act upon plaintiff's motion on January 6, 1947.
The proposition amounts simply to this: That the court had jurisdiction to entertain, by virtue
of District Court Rule XLV, then controlling in such matters, the motion to amend but it did
not have jurisdiction, nor could the parities by consent confer jurisdiction, to the entering of
the amended decree nunc pro tunc.
By virtue of District Court Rule XLV a definite time limit is fixed within which judgments
may be vacated or substantially altered unless the matter is controlled by some other
circumstance. Lauer v. District Court, 62 Nev. 78, 140 P.2d 953; Lindsay v. Lindsay, 52 Nev.
26, 280 P. 95, 67 A.L.R. 824; Crowell v. Second Judicial District Court, 54 Nev. 400, 19
P.2d 635.
9. Court rules when not inconsistent with the constitution or laws of the state have the
effect of statutes.
Lightle v. Ivancovich, 10 Nev. 41; Haley v. Eureka County Bank, 20 Nev. 410, 22 P. 1098.
10. Rule XLV provides: 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 parties 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. Accordingly the court on
January 6, 1947, had jurisdiction to entertain plaintiff's motion. This rule still governed these
matters on March 26 when the last motion was filed in this matter, as Public Act No. 56
(Nev. Stats. 1947, Chap. 162, p. 531) was not approved until March 27, 1947.
Accordingly, it is ordered that the modified decree of divorce made and entered on the 3d
day of May 1947, by the district court be and the same is hereby affirmed. Each party shall
pay his and her own respective costs on appeal.
Eather, C. J., and Badt, J., concur.
Horsey, J., being disqualified, the Governor commissioned Honorable Taylor H. Wines,
District Judge of the Fourth Judicial District, to sit in his place.
April 10, 1948.
Per Curiam:
Rehearing denied.
On Further Petition for Rehearing
August 6, 1948. 196 P.2d 766.
Supreme court would not entertain further petition for rehearing filed by same party
after denial without opinion of original motion for rehearing.
2. Divorce.
Under court rule then in effect, court which entered divorce decree on August 1, 1946,
had jurisdiction to entertain motion to amend such decree noticed within six months after
entry of decree and had jurisdiction to modify amended decree on April 4, 1947, on
motion filed and noticed on March 26, 1947, within six months after entry of amended
decree. Rules of District Court, rule 45.
Petition denied and original opinion supplemented.
Harvey Dickerson, of Las Vegas (Clyde D. Souter, of Reno, of counsel), for Appellant.
OPINION
Per Curiam:
1. We heretofore affirmed the order appealed from (65 Nev. 113, 189 P.2d 334) and,
without opinion, denied appellant's motion for rehearing. Appellant has filed a second or
further petition for rehearing. Such petition we decline to entertain. Trench v. Strong, 4 Nev.
87; Brandon v. West, 29 Nev. 135, 141, 85 P. 449; Ward v. Pittsburg Silver Peak Gold Min.
Co., 39 Nev. 80, 148 P. 345, 153 P. 434, 154 P. 74.
However, counsel for appellant purports to feel that the bench and bar of this state will
read our original opinion as overruling Sweeney v. Sweeney, 42 Nev. 431, 179 P. 638, as
effecting a change in the law of this state, as negativing the advice given by attorneys to
thousands of litigants that in the light of Sweeney v. Sweeney, a decree fixing the amount of
alimony is a permanent decree, unless the court expressly retained jurisdiction by the terms
of its decree {but that) under the decision in the instant case it is believed that that is no
longer the law {and that) it can be anticipated that there will be a deluge of motions to
modify alimony in this state, which will overwhelm the district courts and which will
occupy the time of those courts, not for months, but probably for several years before all
of these motions can be heard and disposed of."
jurisdiction by the terms of its decree (but that) under the decision in the instant case it is
believed that that is no longer the law (and that) it can be anticipated that there will be a
deluge of motions to modify alimony in this state, which will overwhelm the district courts
and which will occupy the time of those courts, not for months, but probably for several years
before all of these motions can be heard and disposed of. It is also asserted that it is
important that the bench and bar should understand that Sweeney v. Sweeney has been
overruled so that clients may be properly advised in the future.
And so, not in entertaining the further petition for rehearing, but to elucidate our former
opinion (if it indeed needs elucidation) and to stem the threatened flood and above all to quiet
the consciences of attorneys who have advised thousands of litigants that the law in this
state is as enunciated in Sweeney v. Sweeney, we have deemed it proper to file this further
opinion.
We agree with the holding in Sweeney v. Sweeney [42 Nev. 431, 179 P. 639]. We agree
with the statement therein: A decree a vinculo is final, and the jurisdiction of the court over
the parties is after the expiration of the term at an end. And again with the statement:
Undoubtedly the rule is that a judgment cannot be set aside, altered or amended after the
term of court at which it was rendered. (It is unnecessary for the purposes of this opinion to
mention exceptions.) We should not be inclined to agree, however, nor would Mr. Justice
Sanders have written the sentences with the omission of the words which we have italicized.
The abolishing of the terms of court and the establishing of rule XLV have heretofore been
discussed.
In the Sweeney case the motion to modify, alter and amend the decree was noticed nearly
three years after the entry of the judgment. In State v. First Nat. Bank, 4 Nev. 358, cited by
Mr. Justice Sanders in the Sweeney case, the court said: "During the term at which a
judgment is rendered, perhaps the court may, even without a statement or affidavits,
upon motion of the party injured, amend or set aside a judgment which is erroneous on
its face, or not founded on a complaint showing a cause of action."
case, the court said: During the term at which a judgment is rendered, perhaps the court may,
even without a statement or affidavits, upon motion of the party injured, amend or set aside a
judgment which is erroneous on its face, or not founded on a complaint showing a cause of
action. The court, through Beatty, C. J., then proceeds to show that the court thereafter lost
jurisdiction because certain supporting papers, required by the statute then in force, were not
filed during the term of court, and referred to Killip v. Empire Mining Co., 2 Nev. 34.
Johnson, J., dissented, and remarked that the rule laid in that case had never received his full
approval. Judge Beatty also wrote the opinion in the Killip case, and held that, although the
court sitting in equity might in a proper case set aside the judgment, the lower court that
rendered it lost jurisdiction when the term of court expired.
In Daniels v. Daniels, 12 Nev. 118, also cited in the Sweeney case, the proceedings to
vacate the judgment were likewise initiated after the expiration of the term. The court said:
If any proceedings were commenced before the termination of the prior term which
continued the jurisdiction of the court over the case, then the record, by proper motion in this
court, should have been corrected so as to show such fact. * * * we must presume * * * that *
* * the judgment (was) set aside and vacated at the subsequent June term, when no proper
steps had been taken during the December term to continue jurisdiction of the court over the
case. * * * It is well settled, upon the soundest policy, that after the adjournment of a term a
court loses all control over its decrees and judgments rendered at such term, unless its
jurisdiction is saved by some proper proceeding instituted within the time allowed by law.
In Lang Syne Gold Min. Co. v. Ross, 20 Nev. 127, 136, 18 P. 358, 19 Am.St.Rep. 337,
also cited in the Sweeney case, a suit in equity to set aside the judgment on the ground of
fraud was held to be proper because the remedy by motion in the main cause was not
available for the reason that the term of the district court at which the judgment was
rendered had expired.
case, a suit in equity to set aside the judgment on the ground of fraud was held to be proper
because the remedy by motion in the main cause was not available for the reason that the term
of the district court at which the judgment was rendered had expired.
In State ex rel. Jones v. Second Judicial Dist. Court, 59 Nev. 460, P.2d 1096, 98 P.2d 342,
the motion to vacate was noticed almost two years after the decree. In Lauer v. District Court,
62 Nev. 78, 140 P.2d 953, the motion to vacate the decree (upon the ground of extrinsic
fraud) was noticed almost 3 1/2 years after the entry of the decree. In Lindsay v. Lindsay, 52
Nev. 26, 280 P. 95, 67 A.L.R. 824, the motion was noticed almost 3 years after the decree. In
Crowell v. District Court, 54 Nev. 400, 19 P.2d 635, the motion was noticed almost 2 years
after the decree. Our rather profuse use of italics appeared necessary under the circumstances.
2. As recited in the court's original opinion, 65 Nev. 113 (180 P.2d 334) there were three
decrees in this case. Decree No. 1 was entered August 1, 1946, and approved a written
agreement of the parties which included provisions for alimony payments but did not in terms
order any specific payments to be made. This decree was entered at the instance of appellant.
Decree No. 2, designated amended decree of divorce (which the court attempted to enter
nunc pro tunc as of August 1, 1946), was made January 6, 1947, and added specific
provisions ordering the defendant husband to make the alimony payments described in the
approved agreement. This decree was likewise entered at the instance of appellant.
Respondent did not oppose either decree. Decree No. 3, designated modified decree of
divorce, was made April 4, 1947, pursuant to notice given March 26, 1947, and fixed the
alimony payments (which theretofore had been established as varying from a minimum of
$450 per month to a maximum of $1,350 per month, depending upon the defendant's income)
at $450 a month upon the showing made on the hearing of respondent's motion.
motion. The amendment contained in decree No. 2 was duly noticed within six months of
decree No. 1, and heard and entered on stipulation of the parties. The modification of decree
No. 2 by the modified decree No. 3 was likewise noticed within six months of decree No.
2both within the limitations of rule XLV.
Appellant insists that rule XLV is simply a limitation and of itself creates no rights. This
may indeed be so. Yet the six months' limitation to notice a motion to modify a judgment as
fixed by rule XLV assumes the well-recognized converse that the court possesses the inherent
power of controlling its own judgment and of vacating, amending or correcting the same, in a
proper case, within the limitationformerly during the term in which rendered. 31 Am.Jur.
272, Judgments, sec. 727; 17 Am.Jur. 360, Divorce and Separation, sec. 431. In Bronson v.
Schulten, 104 U.S. 410, 26 L.Ed. 797, 799, Miller, J., speaking for the United States Supreme
Court, and with all of the justices concurring, said: It is a general rule of law, that all the
judgments, decrees or other orders of the courts, however conclusive in their character, are
under the control of the court which pronounces them during the Term at which they are
rendered or entered of record, and may then be set aside, vacated, modified or annulled by
that court.
Appellant denounces this entire situation as purporting to vest in the district court a
continuing jurisdiction. Indeed, she insists that decree No. 2, the amended decree, could
not have properly been entered unless entered nunc pro tunc and seems to feel that Sweeney
v. Sweeney and the cases cited in the Sweeney opinion substantiate that conclusion. With this
view we are unable to agree.
Eather, C. J., Badt, J., and Wines, District Judge, concur.
____________
65 Nev. 128, 128 (1948) Ex Parte Sullivan
In the Matter of the Application of DANIEL
SULLIVAN For a Writ of Habeas Corpus
No. 3514
February 2, 1948. 189 P.2d 338.
1. Habeas Corpus.
At common law and in the absence of express statutory authorization, there is no appeal from an order or
judgment of the lower court or judge in a habeas corpus proceeding where the party being deprived of his
liberty is held upon criminal process.
2. Evidence.
It is common knowledge that appeals, requiring the preparation of record on appeal, briefs, and time for
hearing, which must necessarily depend upon condition of business in appellate court and involve
consideration by court after such proceeding has been reached, arguments heard, and case submitted,
necessarily cover considerable period of time, usually many months.
3. Statutes.
When legislature adopts a statute of another state, legislature is presumed to have intended to adopt, not
only the statute adopted, but also the construction placed upon such statute by highest court of state from
which it was adopted.
4. Statutes.
Where California law at time of adoption of Nevada habeas corpus statute from a similar statute of
California did not permit an appeal from an order discharging a prisoner in the habeas corpus proceeding,
Nevada legislature was presumed to have intended to adopt into the Nevada law not only the letter of the
California statute so adopted, but also its interpretation by the highest California court. Comp.Laws, sec.
11375-11414.
5. Courts.
Where particular question before court called for application of a broad principle of law, which could
have a number of applications, the statement of court of a further application of same principle to
demonstrate the wide scope of its applicability was not mere dictum when construed in the broader sense.
6. Habeas Corpus.
No appeal lies to the supreme court from an order of the district court or judge in a habeas corpus
proceeding either discharging or refusing to discharge one arrested and held under criminal process for
extradition. Comp.Laws. secs. 11375-11414.
Appeal from Seventh Judicial District Court, White Pine County; Harry M. Watson,
Judge.
Proceeding in the matter of the application of Daniel Sullivan for a writ of habeas corpus
to secure his release from custody under an extradition warrant, opposed by Thomas J.
McLaughlin as sheriff of the County of White Pine. From an order discharging petitioner
from custody and from an order denying sheriff a new trial, sheriff appeals. Appeal
dismissed.
Alan Bible, Attorney General, Geo. P. Annand and Homer Mooney, Deputy Attorneys
General, and C. J. McFadden, District Attorney of White Pine County, for Appellant.
Gray & Horton, of Ely, and Wm. J. Cashill, of Reno, for Respondent.
OPINION
This purports to be an appeal by Thomas J. McLaughlin, as sheriff of the county of White
Pine, State of Nevada, from an order of the presiding judge of the Seventh Judicial District
Court of the State of Nevada, in and for the County of White Pine, discharging one Daniel
Sullivan from the custody of said sheriff, after a hearing duly had upon a writ of habeas
corpus issued out of said court. The appeal also purports to be from an order of said court
denying the said sheriff a new trial.
The said Daniel Sullivan, at the time of the issuance of said writ of habeas corpus, and of
the making of said order of discharge, was being held by the said sheriff, after the said
Sullivan had been arrested pursuant to an extradition warrant issued by the Governor of
the State of Nevada upon the requisition of the Governor of the State of Michigan, for the
return of the said Sullivan to the County of Macomb, in said last-mentioned state, to
answer for a crime alleged to have been committed there by the said Sullivan.
after the said Sullivan had been arrested pursuant to an extradition warrant issued by the
Governor of the State of Nevada upon the requisition of the Governor of the State of
Michigan, for the return of the said Sullivan to the County of Macomb, in said last-mentioned
state, to answer for a crime alleged to have been committed there by the said Sullivan.
The respondent in this proceeding, Daniel Sullivan, has moved this court to dismiss the
appeal of the said sheriff, and the question now before this court is whether, under the
Constitution and laws of the State of Nevada, an appeal to this court lies to review an order of
a district court, or judge, in a habeas corpus proceeding, either discharging a prisoner, or
refusing to discharge him and dismissing his petition.
Our Habeas Corpus Act, N.C.L.1929, vol. 5, secs. 11375-11414, contains no provision
conferring the right of appeal, either upon the petitioner for the writ, or upon the respondent
to whom it is directed. Neither our Constitution, nor our statutes, contain any express
provision for appeal in habeas corpus cases.
The question, then, more precisely stated, is whether, in the absence of a constitutional or
statutory provision expressly conferring the right of appeal, an appeal will lie in a habeas
corpus proceeding at the instance of either the prisoner being held in custody on a criminal
charge, or, on the other hand, on behalf of the officer, or the state, resisting his discharge,
from an order denying the discharge of the prisoner, or from an order discharging him.
Upon this important question, as upon many others in the realm of jurisprudence, we find
the authorities in irreconcilable conflict.
1. The very great weight of authority, however, is to the effect that, in the absence of
express statutory authorization, no appeal will lie to the supreme court from such an order or
judgment of the lower court, or judge, in a habeas corpus proceeding, where the party being
deprived of his liberty is held upon criminal process.
being deprived of his liberty is held upon criminal process. This is also the rule at common
law. 2 Am.Jur. 922, sec. 122, and the cases cited in support of the text; Edmonson v. Ramsey,
122 Miss. 450, 84 So. 455, 10 A.L.R. 385; Baird v. Nagel, 194 Ind. 87, 142 N.E. 9, 30 A.L.R.
1322, and the many cases cited and discussed in the notes; see, also, 29 C.J., p. 183, and the
cases cited in footnote 14; 39 C.J.S., Habeas Corpus, sec. 109.
The courts of a few states have taken the opposite view, notably the Supreme Courts of
Kansas, Wisconsin (in the earlier casesthey have now a statute conferring the right of
appeal on either party), Utah, South Dakota and Washington. The principal Kansas case on
the question appears to be Miller v. Gordon, 93 Kan. 382, 144 p. 274, Ann.Cas.1916D, 502,
which overruled the earlier case of Cook v. Wyatt, 60 Kan. 535, 57 P. 130.
In State ex rel. Durner v. Huegin, 110 Wis. 189, 85 N.W. 1046, 62 L.R.A. 700, the opinion
is ably prepared and deals exhaustively with other questions, but same is of slight importance
upon the question of the right of appeal in habeas corpus proceedings in the absence of
statute, as Wisconsin had theretofore enacted their statute, Statutes of Wisconsin, 1898, sec.
3043, conferring upon either party the right of review by a writ of error. State ex rel. Durner
v. Huegin, however, set out with seeming approval (10 A.L.R. p. 392) the earlier case of
State ex rel. McCaslin v. Smith, 65 Wis. 93, 26 N.W. 258. In the latter case, on pages 258,
259 of 26 N.W., it is stated:
The counsel for the defendant in error, while not admitting that a writ of error lies to
review this decision of the circuit court, declined to argue the question of practice. The
assistant attorney general, however, discussed the question, claiming that a review of the
decision may be had in that manner. He insists that the decision of the circuit court affirming
the order of the commissioner is in the nature of a final judgment, which may be reviewed by
the court on writ of error. In numerous cases this court has reviewed proceedings on
habeas corpus had before commissioners or a judge at chambers on certiorari, but the
precise question now presented has not been decided.
numerous cases this court has reviewed proceedings on habeas corpus had before
commissioners or a judge at chambers on certiorari, but the precise question now presented
has not been decided. There is no express provision made by statute for reviewing such a
decision of the circuit court, but we are inclined to hold that it may be had on a writ of error.
The order made in such a proceeding by the court is in the nature of a final judgment, and the
policy of our constitution and laws is to allow a review of such an adjudication; and it is most
in accord with our rules of practice and the analogies of the law to allow this to be done on
writ of error. So far as the dicta of our decisions bear upon the point, they favor that practice.
See In re Crow, 60 Wis. 349, 19 N.W. 713. It is true there is much authority for holding that a
review of a decision on habeas corpus cannot be had by writ of error without a statute
authorizing it, and the reason given is that the decision is not in the nature of a final
judgment. But there is also much authority the other way. See Yates v. People, 6 Johns.,
N.Y., 337; Ableman v. Booth, 21 How. 506 [16 L.Ed. 169]; and cases cited by Mr. Justice
Breese in his dissenting opinion in Hammond v. People, 32 Ill. 446-457, 83 Am.Dec. 286.
But we shall not further discuss the question, but sustain the writ.
In Utah, the earlier cases of In re Clasby, 3 Utah 183, 1 P. 852, and Mead v. Metcalf, 7
Utah 103, 25 P. 729, set forth, ably and clearly, strong reasons why at least appeal by the state
or by the officer detaining the prisoner should not be sanctioned. The Clasby case is quoted
from at length in the note in 10 A.L.R. pages 393, 394. That case is also referred to in
Wisener v. Burrell, 28 Okl. 546, 118 p. 999, on page 1000, 39 L.R.A., N.S., 755, Ann.Cas.
1912D, 356, on page 358 of the latter, as one of the best-reasoned cases on this question,
and the opinion is extensively quoted.
We will now quote from the other of the earlier Utah cases, Mead v. Metcalf, supra.
cases, Mead v. Metcalf, supra. The opinion in that case, 25 P. 729, 730, is, in part, as follows:
Upon such a hearing the guilt or innocence of the prisoner of the crime charged, or of the
right to reimprison him in consequence of it, cannot be finally determined. The order of his
discharge simply releases him from the particular restraint to which he is subjected. Such a
decision cannot convict him or acquit him of the crime, or determine his imprisonment in
consequence of it. It is not final. Section 9 of the Organic Act of Utah Territory, provides that
writs of error, bills of exceptions, and appeal shall be allowed in all cases from the final
decision of said district courts to the supreme court under such regulations as may be
prescribed by law.' And section 3635, vol. 2, Comp. Laws Utah 1888, provides that an
appeal may be taken to the supreme court from the district court from all final judgments in
an action or special proceeding,' etc. And section 5134 of the same volume provides that
either party in a criminal action may appeal to the supreme court on questions of law alone.'
The order from which the defendant attempted to appeal was not a final judgment within
either of the provisions above quoted; nor did the order of discharge upon the hearing upon
the writ of habeas corpus involve a question of law only; nor did we think an appeal from
such an order within any special provision of the statute. In some of the states the decision of
the court upon such a hearing may be reviewed at the instance of the state when the prisoner
is discharged, as well as at the instance of the prisoner when he is remanded. In others the
appeal is allowed only at the instance of the prisoner when he is remanded, or when the writ
is denied. The right of appeal does not exist in either case without statutory authority. To
entangle the proceeding by writ of habeas corpus with an appeal would deprive it of its
efficacy as a simple and speedy remedy for the wrongs for which it was designed.
designed. In many cases an appeal would be an idle process unless the prisoner could be held
during its pendency; and, if so held, this beneficent and time-honored writ in all such cases
would be thereby deprived of its efficacy as a means of swift relief from oppression by
unlawful imprisonment. In the case of In re Clasby, 3 Utah 183, 1 P. 852, the court held that
neither the defendant named in the writ nor the people have the right to an appeal from an
order discharging a person upon a hearing upon a writ of habeas corpus. To the same effect
are People v. Schuster, 40 Cal. 627; Wyeth v. Richardson, 10 Gray, Mass., 240. We are of the
opinion that an appeal does not lie to this court from an order of the district court discharging
a person from arrest upon a writ of habeas corpus. The motion of the respondent to dismiss
the appeal for want of jurisdiction in this court to hear it is allowed. Appeal dismissed.
But both In re Clasby, supra, and Mead v. Metcalf, supra, are expressly overruled in the
subsequent case of Winnovich v. Emery, 33 Utah 345, 93 P. 988.
In the opinion in the latter case, after treating at length the question of the finality of a
judgment in a habeas corpus proceeding, as to whether it is within the purview of the Utah
statutes as to appeals, and disagreeing with In re Clasby, supra, and Mead v. Metcalf, supra,
upon that question, Mr. Justice Frick, on page 991 of 93 P., stated:
It is argued that, although the language of a constitutional provision or a statute be such
as would authorize or confer the right of appeal generally, in view that the policy of the law
with regard to appeals in habeas corpus proceedings is opposed to the exercise of the right,
therefore appeals in such proceedings should not be permitted by the courts under general
provisions, but only when the right to an appeal is given by a special statute or by
constitutional provision. This argument is based upon the theory that to permit appeals in
habeas corpus proceedings destroys the effectiveness of the remedy; that it may delay
the party in obtaining his liberty, the very thing that by habeas corpus was intended to be
speedily restored to him.
habeas corpus proceedings destroys the effectiveness of the remedy; that it may delay the
party in obtaining his liberty, the very thing that by habeas corpus was intended to be speedily
restored to him. It is urged that, if appeals are permitted, then the judgment of the court
discharging the prisoner must be suspended, and the very purpose of the writ is defeated. This
argument or conclusion, to our minds, assumes that to follow which does not follow. Without
an express statutory provision to that effect an appeal does not of its own force suspend the
judgment in a habeas corpus proceeding. 21 Cyc. pp. 338-341. Even in those states where an
express right of an appeal is given by statute, the courts have held that the taking of an appeal
does not suspend the judgment. State v. Kirkpatrick, 54 Iowa 373, 6 N.W. 588.
But this question is not involved in this case, and we therefore express no opinion upon
it, except to suggest that such a result does not necessarily follow from the allowance of an
appeal, and therefore that it is not a conclusive reason or argument against the allowance of
appeals in such proceedings.
This reasoning is directly contrary to that of not only the earlier Utah cases above
mentioned, but also to that employed in the many cases of other states supporting the majority
rule.
If the prisoner were released on habeas corpus, and the state or the arresting officer
appealed, and the prisoner were permitted to remain at liberty, the result would be as pointed
out in Mead v. Metcalf, suprain many cases an appeal would be an idle process unless the
prisoner could be held during its pendency. This referred to an appeal by the state, or the
public officer acting for the state. And to hold the prisoner pending the appeal, if he had been
ordered discharged, meaning his rearrest and reincarceration or admission to bail would be,
thereby, in effect, suspending the operation of the order of discharge.
2. The learned Justice's assertion in his opinion (on page 992 of 93 P.), referring to the
right of appeal, that it in no way retards the speedy determination of the application, we
find it difficult to support, in the light of experience. It is widely known that appeals,
requiring the preparation of the record on appeal, briefs, and time for hearing, which must
necessarily depend upon the condition of business in the appellate court, and involving
consideration by such court after such proceeding has been reached, arguments heard, and the
case submitted, necessarily covers a considerable period of timeusually many months.
The statement of Zane, C. J., in Mead v. Metcalf, supra, above quoted, that to entangle
the proceeding by a writ of habeas corpus with an appeal would deprive it of its efficacy as a
simple and speedy remedy for the wrongs for which it was designed, seems to the writer of
this opinion to be the more sound and reasonable conception as to the effect of appeal in such
cases.
California is one of the fifteen or more states which, in the absence of statute providing for
appeal or writ of error in habeas corpus cases, follow the common-law rule to the effect that a
judgment or order in a habeas corpus proceeding is not appealable.
Under the federal law, and that prevailing in many states, appeal or writ of error in habeas
corpus cases is provided for by statute.
The condition of the California law as to the right of appeal or writ of error in such cases is
of particular importance in the instant case, for the reason that the Nevada Habeas Corpus
Act, entitled An Act concerning the writ of habeas corpus, approved December 19, 1862,
same being N.C.L.1929, Vol. 5, Secs. 11375-11414, consists of provisions adopted almost
verbatim from like provisions of the California Habeas Corpus Act, enacted in 1850. See In
the Matter of Perkins, 2 Cal. 424.
3. It is a well-settled rule of statutory construction frequently heretofore adhered to by this
court, that when the legislature of a state adopts and makes part of its laws a statute of
another state, the legislature of the adopting state is presumed to have intended to adopt,
not only the letter of the law or statute adopted, but also the construction placed upon
such statute by the highest court of the state from which it was adopted.
when the legislature of a state adopts and makes part of its laws a statute of another state, the
legislature of the adopting state is presumed to have intended to adopt, not only the letter of
the law or statute adopted, but also the construction placed upon such statute by the highest
court of the state from which it was adopted. See Ex parte Skaug, 63 Nev. 101, 164 P.2d 743,
and, particularly, the many Nevada cases cited, on page 108 of 63 Nev., and page 746 of 164
P.2d, in support of such rule.
The Nevada Habeas Corpus Act was enacted, as appears from its title above stated,
December 19, 1862.
The only California case decided by the Supreme Court of that state, interpreting their said
act, prior to the adoption of the provisions of that act by our Legislature in 1862, was a case
entitled In the Matter of Perkins, supra, a proceeding in habeas corpus, decided by the
Supreme Court of California in the October Term, 1852. The decision was unanimous. Two
opinions were writtenone by Mr. Chief Justice Murray, and a concurring opinion by Mr.
Justice Anderson. In the principal opinion it is stated, on page 430 of 2 Cal.:
The act concerning writs of habeas corpus,' passed April 20, 1850, has vested the power
of hearing and determining writs of habeas corpus in the judge of every court of record in the
state; it is a mere chamber proceeding, a summary mode of determining whether a party be
properly held in custody. The final determination is not that of a court, but the simple order of
a judge, and is not appealable from or subject to review. The doctrine of res adjudicata cannot
apply to such determinations. * * *
4. Under the rule hereinbefore mentioned, the Nevada Legislature, when, in 1862, the
provisions of the California Habeas Corpus Act were adopted, was presumed to have adopted
the act as thus construed by the Supreme Court of California. That court having held that
there was no right of appeal, or review, in habeas corpus cases, and the act having been
presumably adopted as so construed, there was not, upon adoption of the act, thereby
conferred any right of appeal, or review, in Nevada, and no such right has ever been since
conferred by the legislature of this state, either by amendment of the original act, or
otherwise.
corpus cases, and the act having been presumably adopted as so construed, there was not,
upon adoption of the act, thereby conferred any right of appeal, or review, in Nevada, and no
such right has ever been since conferred by the legislature of this state, either by amendment
of the original act, or otherwise. The reasons for the construction of the California supreme
court in the Perkins case, supra, are readily apparent from the opinion of Mr. Chief Justice
Murray, above quoted. The conception of that court was that the determination, which might
be by a single justice or judge in a proceeding more or less informal, and which did not
preclude subsequent applications to the same judge, or to other judges or justices, did not
possess the finality or dignity of a formal judgment of a court of record, and that same was
not res adjudicata. And the Nevada legislature, upon adopting that law from California, is,
under the rule, presumed to have adopted that conception or interpretation.
There have been numerous decisions by the district courts of appeal and the Supreme
Court of California since the Perkins case, supra, as to the right of appeal in habeas corpus
cases. They are cited and extensively treated in 13 Cal.Jur., p. 284, sec. 59, which is as
follows:
The supreme court, district courts of appeal and the superior court all have original
jurisdiction for the purpose of granting writs of habeas corpus, and in the exercise of this
power they stand upon an equal plane. It has long been the settled rule that no appeal will lie
from a judgment of a lower court granting or refusing to grant a writ, nor can an erroneous
judgment in this respect be annulled on certiorari. The constitutional amendments conferring
jurisdiction upon the district courts of appeal did not have the effect of changing this rule.
The supreme court after the decision of a district court of appeal in a habeas corpus
proceeding has no power to transfer such proceeding to the supreme court for a hearing
therein; and the constitutional provision for the transfer of a case to the supreme court
when the justices of the district court of appeal are unable to agree has no application to
proceedings for the issuance of the writ; nor has the court which renders a judgment in
such a proceeding power to grant a rehearing therein."
for a hearing therein; and the constitutional provision for the transfer of a case to the supreme
court when the justices of the district court of appeal are unable to agree has no application to
proceedings for the issuance of the writ; nor has the court which renders a judgment in such a
proceeding power to grant a rehearing therein.
Some of the California cases decided since the Perkins case was decided in 1852, and
since our Nevada Habeas Corpus Act was adopted in 1862, are: Matter of Ring, 1865, 28 Cal.
247; People v. Schuster, 1871, 40 Cal. 627; Ex parte White, 1906, 2 Cal.App. 726, 84 P. 242;
In Matter of Hughes, 1911, 159 Cal. 360, 113 P. 684; Ex parte Zany, 1913, 164 Cal. 724, 130
P. 710; France v. Superior Court, et al., 1927, 201 Cal. 122, 255 P. 815, 52 A.L.R. 869.
The opinion by Mr. Presiding Justice Chipman in Ex parte White, supra, is enlightening
and instructive. After quoting from In re Perkins, 2 Cal. 424, the portion of the opinion which
is hereinbefore quoted, and after reviewing other earlier cases, the learned Presiding Justice
then, on page 243 of 84 P., stated:
It is perhaps not far from the truth that the concensus of opinion of the bar and bench of
this state has, for a third of a century, been that there was no appeal allowable from an order
either granting or refusing a discharge on habeas corpus and the practice has conformed to
that view of the law. (Italics added.)
The latter portion of the same opinion, on page 244 of 84 P., is as follows:
In Re Begerow, 136 Cal. 293, 68 P. 773, 56 L.R.A. 528, it was said: The petitioner's
formal discharge upon habeas corpus was determinative therefore of but two things: (1) That
the pending prosecution against him must be dismissed; and (2) that because of said dismissal
he was entitled to his present liberty.' In that case, Begerow applied for a dismissal of the
action under subdivision 2 of section 1382, Pen.Code, and was refused.
refused. Subsequently, he was discharged upon a writ sued out before the Supreme Court. He
was rearrested upon a warrant based upon a complaint charging him with the same crime as
that for which he had been previously arrested. He again applied for a writ to the supreme
court, contending that his discharge upon the former hearing estopped the state from the right
to further prosecute him for the alleged crime. The court in the opinion referred both to
sections 1487 and 1496 of the Penal Code as showing that the discharge under the writ was
not a bar to further prosecution on another information or indictment for the same offense.
This being true, the judgment or order of discharge cannot be held to constitute such final
judgment as would be appealable under any provision of the Code of Civil Procedure, and it
is not claimed that any provision is elsewhere found, either in the habeas corpus act or in the
provisions of the Penal Code for appeal from such order or judgment. We are aware that in
some jurisdictions it has been held that an appeal may be taken or a writ of error sued out and
the habeas corpus proceedings thus be reviewed. But in the great majority of cases this was
allowable under statutory provision, and where not so directly the decisions were more or less
affected by existing statutes. Independent of statutory provisions, the better doctrine is that a
decision in habeas corpus is not of such conclusive character as to support a writ of error, and
that no right of appeal exists. 9 Am. & Eng.Ency. of Law, p. 1072; Church on Habeas
Corpus, sec. 386.
Having in mind the original purpose of the writ, it is difficult for us to perceive the
wisdom or reason upon which statutes are based which allow an appeal in cases where the
prisoner has been discharged or that deny the right altogether of making a second application
to any other court when once remanded. The delay which might and generally would attend
the appeal would in many cases work a denial of the very object of the writ which is to
secure the present discharge of the prisoner, and in most cases the value of this bulwark
of personal liberty would be so impaired as to lose the distinctive character and office
with which it has been clothed ever since King John met the Barons at Runnymeade in
1215, and instead of being the safeguard of human liberty it might become a means of
oppression."
which is to secure the present discharge of the prisoner, and in most cases the value of this
bulwark of personal liberty would be so impaired as to lose the distinctive character and
office with which it has been clothed ever since King John met the Barons at Runnymeade in
1215, and instead of being the safeguard of human liberty it might become a means of
oppression.
In the case of Ex parte Zany, supra, the District Court of Appeal for the Third District,
upon a habeas corpus hearing, ordered Zany discharged. After such decision, there was an
attempted transfer of the proceedings, from such District Court of Appeal to the Supreme
Court of California. Such application was denied. In the able opinion by Mr. Justice
Angellotti, it is stated, on page 710 of 130 P.:
It has always been the law in this state that the decision of any court in a habeas corpus
proceeding, provided the court has jurisdiction, cannot be reviewed by any other court in any
way. The right of appeal has never been given, and no other method for such review has ever
been provided. We are speaking now without regard to the provisions of our Constitution
relative to District Courts of Appeal, which we will consider later. The result has been that,
with reference to such proceedings, the Supreme and superior courts, to each of which was
given the power to issue writs of habeas corpus, stood upon the same plane; neither being
inferior to the other in any other sense than that a superior court, in determining any such
matter, would naturally follow a precedent established by the highest court in the state, if any
such precedent had been established. It, however, had the power to disregard it; and its
determination, whether in accord with the law as laid down by the Supreme Court or not, was
an end of the particular proceeding, and in case of a discharge of the petitioner from custody
was final and conclusive. Such is still the law with relation to the superior court of the state,
as was recently decided by this court in bank; Mr.
bank; Mr. Justice Shaw writing the opinion. See In re Hughes, 159 Cal. 360, 113 P. 684.
Where a petitioner was remanded to custody by a superior court, and the proceeding instituted
in that court was thus terminated, and was no longer a matter pending therein, he could
inaugurate a new proceeding for relief in another court, and can still do so, but is now limited
in the making of a new application, by statutory provision, to a higher court; either the
District Court of Appeal having jurisdiction, or the Supreme Court. Such was the only
remedy afforded by our law to the petitioner when remanded, and, as we have said, a
discharge from custody by a superior court was final and conclusive.
That opinion makes clear that in California, even after the passage of the statute limiting a
new original application (after hearing of the first application and remanding by a superior
court) to hearing in a higher courtthe District Court of Appeal or the Supreme Courtthere
was still no right of appeal, or review, vested in either party. The jurisdiction of the higher
courts, in such cases, was entirely original and never appellate.
The California statute referred to in the same opinion is doubtless the amendment of
section 1475, Penal Code, Stats. 1905, p. 706, c. 544, mentioned by Mr. Presiding Justice
Chipman in Ex parte White, supra, and is set forth on page 243 of 84., P. as follows:
If the writ has been granted by any superior court or judge, and after the hearing thereof
the prisoner has been remanded, he shall not be discharged from custody by the same or any
other superior court or judge, unless upon some ground not existing at the issuing of the
prior writ, or unless upon some point of law not raised at the hearing upon the return of the
prior writ. (Italics added.)
Thus it is clear that successive applications to the same or any other superior court or
judge were prohibited to one remanded by a superior court or judge upon a former
application, with the exceptions stated, but such new original application could be made
to the District Court of Appeal, or to the Supreme Court.
hibited to one remanded by a superior court or judge upon a former application, with the
exceptions stated, but such new original application could be made to the District Court of
Appeal, or to the Supreme Court. There is, in such statute, no provision conferring any right
of appeal whatever,either to a petitioner if remanded, or to the state or officer if the
petitioner has been discharged.
In France v. Superior Court, supra, the Supreme Court of California, in the opinion by Mr.
Justice Curtis, on page 817 of 255 P., reaffirmed or reiterated the principles, enunciated in the
earlier cases of that court, as to the absence of any right of appeal in habeas corpus cases, and
the theory expounded in Ex parte Zany, supra, as to the equal standing of the courts and
justices upon whom original jurisdiction had been conferred in habeas corpus proceedings.
This development of the California law as stated in Ex parte Zany, supra, expressed more
clearly than the cases had theretofore the basis for the adoption of the holding of the absence
of any right of appeal from a lower to a higher court, which since so decided in Re Perkins,
supra, had been the law of California. Such theory is recognized by Mr. Justice Curtis in the
opinion in France v. Superior Court, supra, as the basis for such doctrine, for immediately
after the sentence of his opinion containing the clause, and generally speaking as far as the
power to issue the writ is concerned the Supreme Court, the District Courts of Appeal, and
the superior courts are upon the same plane' (page 817 of 255 P.), he stated the logical
sequence of such theory, as follows:
By this is meant, however, as we understand these decisions, that the decision of any
court in a habeas corpus proceeding, provided the court has jurisdiction, cannot be reviewed
by any other court in any way,' Matter of Zany, supra, [164 Cal. at] page 726, 130 P. 710.
In Nevada, this court has heretofore had no occasion to pass directly upon the question of
the right of appeal to the supreme court from the determination of a district court or
judge in a habeas corpus proceeding. The nearest approach to such question which this
court has been called upon to consider was in the Eureka County Bank Habeas Corpus
Cases, reported in 35 Nev., pages S0-151, 126 P.
to pass directly upon the question of the right of appeal to the supreme court from the
determination of a district court or judge in a habeas corpus proceeding. The nearest approach
to such question which this court has been called upon to consider was in the Eureka County
Bank Habeas Corpus Cases, reported in 35 Nev., pages 80-151, 126 P. 655, 129 P. 308, in
which the question involved was as to the right to a rehearing. This court, 35 Nev., on page
151, 129 P. 308, stated:
Respondents have petitioned for a rehearing. The effect of granting a rehearing would be
to suspend the former order discharging the petitioners. 3 Cyc. 219. This would subject
petitioners to rearrest upon the very charges upon which they have been discharged in
violation of section 29 of the habeas corpus act. Rev.Laws, sec. 6254. Under statutes like
ours, the Supreme Court of California has held that there is no practice in that state allowing
petitions for rehearing in cases of habeas corpus. Ex parte Robinson, 71 Cal. 608, 12 P. 794.
Except where there is statutory provision therefor, an order discharging a prisoner has
generally been held not subject to review. 21 Cyc. 335, et seq. It has been held that to allow a
review of an order of another court made in a habeas corpus case is inconsistent with the
object of the writ. Wyeth v. Richardson, 10 Gray, Mass. 240; Knowlton v. Banker, 72 Me.
202; State v. Miller, 97 N.C. 451, 1 S.E. 776; People v. Schuster, 40 Cal. 627; Grady v.
Superior Court, 64 Cal. 155, 30 P. 613; In re Clasby, 3 Utah 183, 1 P. 852.
The petition for a rehearing is denied.
It is apparent from the language of the court, in its per curiam opinion, that it reached the
conclusion denying the rehearing upon certain definite principles, equally applicable to a
rehearing and to a review by appeal or writ of error. The court mentioned, first, that the
effect of granting a rehearing would be to suspend the former order discharging the
petitioners. This referred to the petition for rehearing by respondent, the sheriff of Eureka
County.
ent, the sheriff of Eureka County. The effect in the instant case, if the right of appeal were
recognized, would be similar, except that the suspension would, in case of appeal, ordinarily
be for a much longer time than in case of a rehearing.
The court next mentioned, as a further effect of granting a rehearing, that: This would
subject petitioners to rearrest upon the very charges upon which they have been discharged in
violation of section 29 of the habeas corpus act. A similar result could ensue in the instant
case, if the right of the state, or Sheriff McLaughlin, to appeal were allowed and the order of
the district court reviewed. Indeed, rearrest of the respondents in the Eureka Bank Cases
would have been justified if the attorney general and the sheriff had, in their discretion,
deemed it necessary (to prevent the prisoners absconding), immediately upon the granting of
a rehearing and the resulting suspension of the writ, without awaiting the result upon
rehearing. So, in the instant case, re-arrest of the respondent during the pendency of the
appeal, were the right of appeal accorded by this court, would depend upon the discretion of
the officers. And the re-arrest, in the absence of the exceptional conditions mentioned in
section 29 of the Habeas Corpus Act (and which are inapplicable to the situation in the instant
case), would be in violation of said section.
Next, the court, in its said opinion, referred to California and the fact of the similarity of
their statutes and ours, and stated that: Under statutes like ours, the Supreme Court of
California has held that there is no practice in that state allowing petitions for rehearing in
cases of habeas corpus. Ex parte Robinson, 71 Cal. 608, 12 P. 794. Whilst the court did not
specifically say that because Nevada had adopted the same provisions, in our Habeas Corpus
Act, as those in the California Habeas Corpus Act, this court was bound to give effect to the
holding of the Supreme Court of California as to the practice in that state; nevertheless,
this court followed such holding as to rehearing, and evidently was guided to its
conclusion by such holding.
as to the practice in that state; nevertheless, this court followed such holding as to rehearing,
and evidently was guided to its conclusion by such holding.
And then, apparently having in mind the primary objective and the nature of the writ, and
the necessity for a speedy and final determination, the court uttered a broader statement,
applicable to the right to rehearing then involved, but none the less sufficiently
comprehensive to include any other legal method of review, such as appeal of a writ of error,
said statement being: Except where there is statutory provision therefor, an order discharging
a prisoner has generally been held not subject to review. (21 Cyc. 335, et seq.) By that
statement, this court recognized and stated with approval, the general holding, which had
followed recognition of the nature, characteristics and objective of the writ, and that
suspension, re-arrest and prolonged proceedings were entirely inconsistent with its
fundamental nature and beneficent purpose. That statement of such general holding was the
same as stating that the weight of authority holds that in the absence of statutory provision
therefor an order so discharging is not subject to review, and by general practice such has
become the rule. By applying that rule, this court reached its determination as to the petition
for rehearing, the matter directly involved in the case then being decided. And the court,
before making its order, stated, further: It has been held that to allow a review of an order of
another court made in a habeas corpus case is inconsistent with the object of the writ. Citing,
among cases from other states, two of the earlier California casesPeople v. Schuster, supra,
and Grady v. Superior Court, 64 Cal. 155, 30 P. 613, and also the Utah case of In re Clasby,
supra.
5, 6. Counsel for appellant have referred, in their brief, to the above statement as obiter
dictum. We think it is more. It was stated to show that, generally, the authorities recognize,
and sustain by their holdings, the true conception of the fundamental nature and
characteristics of the writ as the means of speedy and conclusive relief to one unlawfully
deprived of his liberty.
the true conception of the fundamental nature and characteristics of the writ as the means of
speedy and conclusive relief to one unlawfully deprived of his liberty. It was stated because
clearly illustrative of the breadth of the rule against review in any of its various phases, and
which rule this court was then about to apply. In the particular case then before the court, the
application of the rule, or principle, denying the right of review, prevented rehearing, and led
to the court's denial. The court, by such final sentence of its opinion, above quoted, merely
stated a different and further application of the same rule, or principle, to demonstrate the
wide scope of its applicability, and cited valuable authorities supporting such application,
and, indirectly, the rule itself. Strictly interpreted, it was dictum, because there was no
question of appeal or review of the order of another court then before this court; nevertheless,
it illustrated the broad and practical applicability of the rule of various situations, in
preserving the integrity of the nature and purposes of the writ, and, therefore, served to
strengthen the basis or foundation upon which the court's application of the rule as to
rehearings was predicated. We think, therefore, that, construed in the broader sense, such
statement of the court was more than mere dictum.
We are, in the instant case, called upon to act upon the very situation to which the court
then, by such last sentence, referred, namely, the right to review the order of another court in
a habeas corpus proceeding. The rule or principle, and its basic reasons, then applied by the
court to the situation then before it, namely, the request for a review by rehearing, applies
with equal, if not greater, force to the phase of the subject now before this court, namely, the
right to review by appeal. And the court's statement as to the general holding of courts,
referring to a situation not then before the court but clearly analogous, in principle, to the
matter then being considered, that to allow a review of an order of another court made in a
habeas corpus case is inconsistent with the object of the writ," and its citation of leading
authorities in support of the rule sanctioned by the weight of authority, clearly indicates
what this court would have decided had the question of the right of appeal from an order
of another court been directly involved in that case.
order of another court made in a habeas corpus case is inconsistent with the object of the
writ, and its citation of leading authorities in support of the rule sanctioned by the weight of
authority, clearly indicates what this court would have decided had the question of the right of
appeal from an order of another court been directly involved in that case. This court, as then
constituted, plainly furnished us, by what was stated as to the right of rehearing in the Eureka
Bank Cases, supra, ample indication of its adherence, in principle, to the sounder rule as to
the right of review in habeas corpus proceedings, in whatever form such right might be
asserted. And the same fundamental principle then approved and applied as to the right of
review by rehearing, if applied to the situation in the instant case, leads inevitably to the
conclusion reached in the California cases, and by the great weight of authority, that, in the
absence of statute, there is no right of review by appeal or writ of error, at the instance of
either party, in a habeas corpus proceeding.
In California, the legislature of that state enacted a statute, in 1927, allowing appeal by the
People, in a very limited class of cases. Such statute is section 1506 of the California Penal
Code, and is as follows:
An appeal may be taken to the district court of appeal by the people from a final order of
a superior court made upon the return of a writ of habeas corpus discharging a defendant after
his conviction, in all criminal cases prosecuted by indictment * * *.
Such statute clearly applies only to cases in which a defendant, after conviction of a felony,
has been discharged by final order of a superior court, made upon return of a writ of habeas
corpus. We have no such statute in Nevada, and if we had, same would not be applicable to
the situation in the instant case, in which, before conviction, one charged with a crime in
another state has been arrested and is being held upon an extradition warrant of the Governor
of Nevada, issued by reason of the requisition of the Governor of Michigan.
reason of the requisition of the Governor of Michigan.
We cite, in addition to the citations hereinbefore made, the following cases wherein the
supreme courts of the states of Oklahoma, New Mexico and Wyoming, respectively, have
upheld the majority rule, namely, that in the absence of a statutory provision conferring such
right, no right of appeal lies, at the instance of either party, from the order or judgment of a
court, or the order of a justice or judge thereof, discharging or refusing to discharge a
petitioner in a habeas corpus proceeding, in any case in which the petitioner has been arrested
and is being held under criminal process: Wisener v. Burrell, 28 Okl. 546, 118 P. 999, 34
L.R.A., N.S., 755, Ann.Cas. 1912D, 356; Notestine v. Rogers, 18 N.M. 462, 138 P. 207; and
Brugneaux v. Dankowski, Sheriff (Ex parte Brugneaux), 51 Wyo. 103, 63 P.2d 800.
In Wisener v. Burrell, supra, we will quote from the syllabus (page 999 of 118 P.), as
follows:
An appeal does not lie from an order in habeas corpus, discharging a party held for
extradition for a criminal offense.
In Notestine v. Rogers (N.Mex.), supra, the appellant was the town marshal of the village
of Dexter, in Chaves County, New Mexico. Appellee was arrested and held in custody by
appellant. Appellee made application, to the judge of the Fifth judicial district of the state, for
a writ of habeas corpus, and, upon the hearing, was discharged from the custody of the
marshal. We will now quote from page 207 of the opinion as reported in 138 P., the
following:
From the order made, the town marshal prosecutes this appeal, which appellee has moved
to dismiss, upon the ground that no appeal can be taken from an order made in habeas corpus
proceeding, either discharging or remanding a petitioner.
The prevailing doctrine in the state courts of this country is thus stated in 9 Am. &
Eng.Ency.Pl. & Pr.
1072: Independent of statutory provisions, the best doctrine appears to be that a decision in a
habeas corpus case is not of that final and conclusive character necessary to support a review
by writ of error, and that no right of appeal exists.'
The text is supported by the great weight of authority, as will be seen from an
examination of the case notes appended to the following cases, reported in Ann. Cas., viz.:
Wisener v. Burrell, Ann.Cas. 1912D, 356; Bleakley v. Smart, 11 Ann.Cas. 125; Cormack v.
Marshall, 1 Ann.Cas. 256. And see, also, an extensive case note to the case of Wisener v.
Burrell, 34 L.R.A.,N.S., 775. While the great weight of authority supports the text above
quoted, some courts hold otherwise. The best reasoned case to the contrary which has been
called to our attention is that of Winnovich v. Emery, 33 Utah 345, 93 P. 988; but an
examination of the cases cited by the Utah court in support of its holding will show that
some, but not all, of the cases upon which it relies for support were based upon statutes
granting the right of appeal.
The learned Chief Justice Roberts then, in the opinion, considered the statutory provisions
of that state relative to appeals in civil cases, and found them inapplicable. The concluding
portion of the opinion, on page 208 of 138 P., is as follows:
As was well said by the Criminal Court of Appeals of Oklahoma, in the case of Ex parte
Johnson, 1 Okl.Cr. 414, 98 P. 461: Had it been intended to provide for appeals in habeas
corpus, some appropriate provision would have been made. Its omission affords the best
evidence to the contrary, and, if anything is wanting to remove all doubt, it will be found in
the nature and object of this great writ as a constitutional right; its purpose being to afford a
speedy remedy to a party unjustly accused of the commission of a crime without obstructing
or delaying public justice, both of which objects would be defeated by the delays consequent
upon an appeal.
an appeal. Any other rule would operate practically to subvert the constitutional safeguards
and the fundamental rights of the citizen.'
That the legislature could provide for appeals in such cases is not doubted; but until it
does so in clear and unequivocal language, and under suitable regulations which do not
impair the constitutional provisions governing the right to the writ, the courts will deny such
right.
For the reasons stated, the appeal will be dismissed, and it is so ordered.
In Ex parte Brugneaux (Wyo.), supra, one Brugneaux was arrested by the sheriff of
Sweetwater County, Wyoming, upon the extradition warrant of the Governor of Wyoming,
issued upon the requisition of the Governor of Iowa. The prisoner filed, in the Third District
Court of that State, a petition for a writ of habeas corpus, on October 21, 1935. On October
24, 1935, a hearing was had before that court, and judgment was entered, on that date,
dismissing the petition and remanding the petitioner to the custody of the sheriff. From that
order the petitioner appealed to the supreme court, and, in a very able opinion by Mr. Chief
Justice Blume, concurred in by Mr. Justice Riner and Mr. Justice Kimball, the Supreme Court
of Wyoming expressed adherence to the prevailing, or majority, rule that an appeal, whether
by the prisoner or by the state or public officer holding him, and whether from an order
discharging, or an order refusing to discharge and remanding the prisoner, is not allowable. In
the opinion many authorities are cited which we have cited herein, including the California
case of France et al. v. Superior Court, supra, quoted from at length, and Notestine v. Rogers,
supra. We quote, with our approval, from the opinion on pages 801, 802 of 63 P.2d, the
following:
The cases giving the right of appeal and those denying it are collected in 29 C.J. 183, 184.
The majority of the courts allow an appeal in cases involving the custody of children.
of children. 29 C.J. 185. But the majority, in the absence of a statute, deny the right of appeal
to the state in cases in which the prisoner is discharged on habeas corpus. 29 C.J. 184; 12
R.C.L. 1258; 5 A.L.R. 1156; Edmonson v. Ramsey, 122 Miss. 450, 84 So. 455, 10 A.L.R.
380, 385; [Baird v. Nagel, 194 Ind. 87, 142 N.E. 9], 30 A.L.R. 1324; see [People ex rel.
Mark] v. Toman, 362 Ill. 232, 199 N.E. 124, 102 A.L.R. 382; and we think that, in the
absence of an express statute, the majority of the courts also deny the right of appeal in cases
in which the petition for habeas corpus has been dismissed. 29 C.J. 184; and see also, In re
Simonson, 54 N.D. 164, 209 N.W. 211; State ex rel. v. District Court, 64 N.D. 399, 253
N.W., 744; Thomas v. State, 215 Ala. 1, 109 So. 607; Heisler v. State, 21 Ala.App. 416, 109
So. 124; Proffer v. Stewart, 259 Ky. 445, 82 S.W.2d 468; France et al. v. Superior Court, 201
Cal. 122, 255 P. 815, 817; 52 A.L.R. 869. In the last-cited case, the court stated: In this state
the power to issue the writ of habeas corpus is conferred by the Constitution upon the
Supreme Court and each of the Justices thereof, the District Courts of Appeal and each of the
Justices thereof, and the superior court and generally speaking as far as the power to issue
the writ is concerned the Supreme Court, the District Courts of Appeal, and the superior
courts are upon the same plane. 13 Cal.Jur. 257; Ex parte Zany, 164 Cal. 724, 130 P. 710;
Matter of Hughes, 159 Cal. 360, 113 P. 684. By this is meant, however, as we understand
these decisions, that the decision of any court in a habeas corpus proceeding, provided the
court has jurisdiction, cannot be reviewed by any other court in any way.' Matter of Zany,
supra (164 Cal. 724) page 726, 130 P. 710. The same principle is enunciated in the Hughes
case, supra, although stated in slightly different language.'
We think that we should give our adherence to that rule. The writ of habeas corpus is a
high prerogative common-law writ designed for the purpose of giving a speedy remedy to
one who is unlawfully detained.
speedy remedy to one who is unlawfully detained. 12 R.C.L. 1179. The very purpose of the
writ will be thwarted if an appeal or proceeding in error were allowed, under the laws relating
thereto. This was well pointed out in the case of Notestine v. Rogers, 18 N.M. 462, 138 P.
207. A petitioner in error may delay in bringing his proceeding in error for the period of six
months. A record on appeal need not be filed until seventy days after the entry of the
judgment. Then further delays occur. The right of a prisoner to be liberated cannot,
accordingly, speedily be determined under such proceedings. The crime charged in the case at
bar is comparatively unimportant, and judging from the evidence in the record, it is not
improbable that justice would not be thwarted by delay. But that is not the criterion for the
adoption of a rule. We must take into consideration that prisoners may be charged with
murder, with kidnapping, and other heinous crimes. While the writ of habeas corpus is
designed to secure the liberty of one unlawfully detained, it was never intended to protect
persons guilty of crime, let alone a heinous crime, nor is it intended to give refuge to
criminals in one state who have fled from another, and by the delay give opportunity for the
disappearance of evidence by one method or another to prove the crime.
This court wishes to point out and emphasize that by this opinion the Supreme Court of
Wyoming denied the right of appeal to a prisoner who had been denied discharge, upon a writ
of habeas corpus, by the court below, whose petition had been dismissed and who had been
remanded. It will be noted that, in support of that view, the learned Chief Justice cited Church
on Habeas Corpus, sec. 386, and quoted therefrom at length, upon the point and in support of
the view that appeal does not lie at the instance of one whose petition has been denied; also,
cases upholding that view were cited from North Dakota, Alabama and Kentucky, in addition
to California cases. In the instant case, the question which is before us for decision is
whether the appeal of Sheriff Thomas J.
is before us for decision is whether the appeal of Sheriff Thomas J. McLaughlin, of White
Pine County, from whose custody the petitioner, Daniel Sullivan, had been, by the district
court ordered discharged in the habeas corpus proceeding, shall be dismissed. To reach the
proper determination upon the pending motion to dismiss the appeal of said sheriff, we
believe that the proper approach is to determine first the fundamental question of whether or
not it is the law of the State of Nevada that an appeal will lie to the supreme court from an
order of a district court of this state, or a judge thereof, either discharging or refusing to
discharge from custody a prisoner, before such court upon the return in a habeas corpus
proceeding. After what we believe to have been thorough research and a careful consideration
of the problem, in its various aspects, we are convinced, and as a basis for our decision
herein, declare the law of Nevada, as we interpret and understand it, to be, that no right of
appeal to this court lies from such an order of a district court or judge in a habeas corpus
proceeding, either discharging or refusing to discharge one arrested and held under criminal
process. To summarize our reasons, the following may be stated:
1. There is no statute in Nevada conferring the right of appeal from either an order
discharging or refusing to discharge a prisoner, in a habeas corpus proceeding.
2. The law in California, at the time of the adoption of our Habeas Corpus Statute from the
similar statute of that state, did not permit appeal from such an order in a habeas corpus
proceeding, and, by the well-settled rule of statutory construction hereinbefore stated, our
Legislature is presumed to have intended to adopt into our law not only the letter of the
California statute so adopted, but, also, its interpretations by the highest court of that state,
and we feel bound to follow such rule.
3. To allow an appeal, in cases where a prisoner has been discharged upon habeas
corpus, would, in many cases at least, mean rearresting and holding the accused, in
violation of the express provisions of section 29 of the Nevada Habeas Corpus Act
forbidding same.
been discharged upon habeas corpus, would, in many cases at least, mean rearresting and
holding the accused, in violation of the express provisions of section 29 of the Nevada
Habeas Corpus Act forbidding same.
4. This court, in the Eureka Bank Cases, supra, has expressly decided to adhere to the
fundamental principle that there should be no review, involving as it does in many cases
suspension and rearrest, in habeas corpus cases, and hence no rehearing in the same court;
and the court, in connection with such ruling, indicated, by clear implication at least,
adherence to the majority rule that no review of a final order of another court in habeas
corpus proceedings can be had either by appeal or writ of error. More authorities had passed
upon the appeal phase of the subject than upon the rehearing phase. The basic reasons were
the same in each, for denying review; so, in reaching its conclusion, this court mentioned the
appeal phase of the subject and cited authorities supporting same, thereby approving in
principle the rule that there should be no review of an order of another court, because, for
the reasons before stated, inconsistent with the object of the writ. Now that we are called
upon to decide whether or not there is a right of appeal, our present holding that there is no
such right in Nevada places, for the first time, upon the plane of actual decision that which
this court, in the Eureka Bank Cases, adhered to in principle.
5. We believe the prevailing or majority rule to be the better rule, because same is best
calculated to assure the preservation of two of the most beneficial characteristics of the great
writ of habeas corpus, namely, (1) that the liberty of one unlawfully deprived thereof should
be speedily restored to him, and (2) that such restoration should be final. To accomplish this
beneficent result in the many cases in which the arrest and holding is unlawful, a rule of
general application is required, even though in some cases a prisoner, denied discharge on
habeas corpus, may desire, voluntarily, to forego the right to speedy determination, and
may wish to appeal to a higher court.
forego the right to speedy determination, and may wish to appeal to a higher court. Such a
prisoner, denied appeal, is not deprived, however, of the right to continue to seek his liberty
by a succession of original applications before other courts, justices or judges, until, as many
jurists have said, he has exhausted the judicial power of the state, and such remedy, thus
open to him, in most cases would mean much less delay, even if a number of applications are
made, than would be involved in appellate proceedings. In other words, a petitioner for the
writ, who has been found to be lawfully held, cannot, because dissatisfied with the court's
decision, be permitted to change the fundamental character of the proceeding from a
proceeding of summary character to one involving long delays, lest this beneficent writ,
intended as a shield for the innocent, be converted into a cloak to protect the guilty. As so
well expressed by Mr. Chief Justice Blume in Ex parte Brugneaux, supra:
While the writ of habeas corpus is designed to secure the liberty of one unlawfully
detained, it was never intended to protect persons guilty of crime, let alone a heinous crime,
nor is it intended to give refuge to criminals in one state who have fled from another, and by
the delay give opportunity for the disappearance of evidence by one method or another to
prove the crime.
Having determined, for the foregoing reasons, that in Nevada no appeal lies to this court
from the judgment or order of a district court or judge, either discharging or refusing to
discharge, upon a writ of habeas corpus, a prisoner arrested and being held under criminal
process, it follows that the motion of the respondent to dismiss the appeal in the instant case
should be granted. It is so ordered, and the appeal is dismissed.
____________
65 Nev. 157, 157 (1948) Ex Parte Fitzgerald
In the Matter of the Application of LINCOLN
FITZGERALD For a Writ of Habeas Corpus.
No. 3515
February 2, 1948. 189 P.2d 352.
Appeal from Seventh Judicial District Court, White Pine County; Harry M. Watson,
Judge.
General, and C. J. McFadden, District Attorney of White Pine County, for Appellant.
Gray & Horton, of Ely, and Wm. J. Cashill, of Reno, for Respondent.
OPINION
This case, and the attempted appeal and the motion to dismiss same, is, in all respects,
similar, and a companion case, to case No. 3514 (65 Nev. 128, 189 P.2d 338), entitled, In
the matter of the application of Daniel Sullivan for a writ of habeas corpus, which has this
day been decided, and the opinion filed, and in which the questions involved have been fully
discussed. Reference is made to that opinion for our determination of the similar questions
involved in this appeal. Our determination and decision as to this attempted appeal must
necessarily be the same as in case No. 3514. It follows that the motion of respondent, Lincoln
Fitzgerald, to dismiss the appeal in the instant case should be granted. It is ordered, therefore,
that this appeal be, and the same is hereby dismissed.
____________
65 Nev. 158, 158 (1948) In Re Devincenzi's Estate
In the Matter of the Estate of LAWRENCE DEVINCENZI, Sr. (Also known as L.
DEVINCENZI), Deceased.
FIRST NATIONAL BANK OF NEVADA, Trustee, Appellant, v. IRMA
DEVINCENZI MOSCONI, ETHEL DEVINCENZI HAGGERTY and JEAN
DEVINCENZI (Improperly Named Jean Haggerty), Respondents.
No. 3488
March 3, 1948. 190 P.2d 842.
1. Trusts.
Where testator's heirs were notified of testamentary trustee's proposed sale of trust realty, trust
beneficiaries were not entitled to vacation of sale on ground that heirs were not given opportunity to
purchase realty.
2. Trusts.
A ground of motion to vacate testamentary trustee's sale of realty that trustee had not petitioned for order
of sale need not be considered, as it is based on provision removed from statute.
3. Trusts.
The sections of probate statute, requiring verified reports to court and confirmation of executors' and
administrators' sales of property before title passes, and prescribing conditions for confirmation of such
private sales of realty, apply only to estates in course of administration and to administrators' and executors'
acts and are inapplicable to testamentary trustees' powers and duties after distribution to them. Comp.
Laws, secs. 9882.140, 9882.160, 9882.161.
4. Trusts.
The statute providing that district court shall retain jurisdiction of testamentary trust estate, after final
distribution of testator's estate, for purposes of settling trustee's accounts and distributing residue, strictly
limits such court's probate jurisdiction to purposes recited and does not reserve to it jurisdiction over
trustee's sales of realty. Comp.Laws, sec. 9882.244.
5. Courts.
The proceeding in probate case before district court must be distinct from action at law or suit in equity.
6. Trusts.
A testamentary trustee's sale of trust realty, after final distribution of testator's estate to trustee and
executor's discharge, was not void for noncompliance with probate statute requirements respecting reports
and confirmation of executors' and administrators' sales.
and administrators' sales. Comp.Laws, secs. 9882.140, 9882.160, 9882.161.
The supreme court will not consider on appeal, a point not urged in lower court.
8. Trusts.
Authorization of trustee by trust instrument to invest and reinvest corpus of trust fund impliedly confers
on him power to sell trust realty.
9. Trusts.
Generally, no set form of words is necessary to create power in testamentary trustee to sell trust realty,
but such power may be inferred from general tenor of trust instrument, especially where power is necessary
to carry out trust.
10. Trusts.
In determining whether will gives testamentary trustee implied power to sell trust realty, the guiding star
is testator's intention.
11. Trusts.
A will giving residue of testator's estate to his brother and another as trustees, with directions to hold it in
trust for testator's four children and to invest corpus in sound securities or business property, impliedly
authorized trustees to sell trust realty, which was not business property, as well as personalty.
12. Trusts.
The word fund, in will empowering testamentary trustees to invest corpus of trust fund in securities or
business property, did not restrict power of investment to moneys, but like trust fund and corpus of trust
fund, referred to entire residuary trust estate.
13. Trusts.
A testamentary direction that trustees hold residue of estate in trust for testator's children equally did not
require holding and distribution thereof intact and in kind, hold being used in sense of vesting title and
right to hold or claim possession.
14. Trusts.
Power to sell trust realty, impliedly vested in original testamentary trustees by will directing them or their
successors to hold residue of testator's estate in trust for his children and empowering trustees to invest
corpus of trust fund in securities or business property, passed to successor trustee, in absence of expression
in will of testator's personal trust confidence or reliance in or regard for original trustees.
15. Trusts.
Generally, substitute trustee can exercise power of sale, conferred by terms of trust on named trustee,
unless such power is personal to such trustee because of trustor's expression of trust and confidence in him.
A testamentary trustee, aggrieved by district court's erroneous order, without its probate jurisdiction,
vacating trustee's sale of trust realty, had right to appeal therefrom as against contention that certiorari
was trustee's only remedy. Comp. Laws, sec. 9231.
17. Trusts.
Testamentary trust beneficiaries could seek vacation of trustee's sale of trust realty, after final
distribution of testator's estate and executor's discharge, only in equity court, entirely independently of
administration of estate, and status of suit for such relief as new proceeding could not be changed simply
by entitling it in probate proceeding, attacking validity of sale for, noncompliance with probate code
requirements, or making of order vacating sale by district court sitting in probate, and such order became
final judgment, from which trustee could appeal under statute. Comp.Laws, sec. 9385.60.
Appeal from Second Judicial District Court, Washoe County; A. J. Maestretti, Judge.
In the matter of the estate of Lawrence Devincenzi, Sr., deceased. From an order vacating
and setting aside a sale of realty of the estate by the First National Bank of Nevada, as
substituted trustee under deceased's will, on a motion by Irma Devincenzi Mosconi and
others, the trustee appeals. Reversed.
See, also, 64 Nev. 455, 183 P.2d 831.
Kearney & Adams, of Reno, for Appellant.
McCluskey & Samuelson, of Reno, for Respondents.
Lunsford & Goldwater and Thatcher, Woodburn and Forman, all of Reno, amici curiae.
OPINION
This is an appeal from an order made by the district court vacating and setting aside a sale
made by a testamentary trustee. Such sale had been made some two years after the estate
had been finally distributed to the trustee and the execution discharged.
years after the estate had been finally distributed to the trustee and the execution discharged.
The property, appraised at $10,000, had been sold by the trustee for $32,000. The trustee had
given notice by letter to each of the beneficiaries of the trust, and one of the beneficiaries had
consented thereto. Respondents, comprising three of the beneficiaries, moved the probate
court, by pleadings entitled in the probate matter, for an order setting aside the sale upon
certain specific grounds, namely, (1) that the trustee had not petitioned for an order of sale,
(2) nor had it given the statutory notice of sale, (3) nor had it petitioned for confirmation, (4)
nor had the heirs of the decedent been given an opportunity to purchase.
1

1, 2. The last ground needs no further consideration than a reference to the admitted fact
that the heirs had been notified of the proposed sale. The first ground need not be considered,
as it is apparently based on a provision that was removed from our statute many years ago.
3. The lower court granted the motion and vacated and set aside the sale upon the
grounds stated in the notice."
____________________

1
The record contains the following statement of stipulated facts:
At the hearing on the motion on October 11, 1946, no testimony as presented. It was stipulated that the
property referred to in the motion dated September 28, 1946, which had been transferred by the original trustees
under the will to First National Bank of Nevada as successors trustee, was sold by First National Bank of
Nevada, as trustee, to Consolidated Warehouse Company, a Nevada corporation, by deeds dated September 20,
1946. Said deeds were recorded on September 21, 1946 in Book 188, pages 177 and 179, Records of Washoe
County, Nevada. The sale price paid was $32,000. It was further stipulated that although notice of the intended
sale had been given by the trustee by letter to each of the beneficiaries under the trust, and that one of the
beneficiaries, Lawrence Devincenzi, Jr., had consented thereto, formal notice and petitions claimed by movants
to be required under sections 9882.140, 9882.160, 9882.161 NCL had not been given or filed. It was further
stipulated that the trustee had not petitioned for leave of court to make said sale nor had it petitioned for
confirmation of said sale.
William M. Kearney, Esq., as attorney for the trustee, stated that a report of said sale would be included in
the regular report of the trustee.
notice. It held, in other words, that the provisions of the probate statute governing the
method and manner of sales by executors and administrators applied likewise to sales by
testamentary trustees, after distribution of the estate and discharge of the executors. The
particular sections relied upon are the following:
9882.140. Sales to be Reported and ConfirmedTimeHearing, Setting and Notice.
140. Except as provided by sections 151 and 152 of this act all sales of property must be
reported to the court and confirmed by the court before the title to the property passes. The
report must be verified. Such report and a petition for confirmation of the sale must be made
within thirty days after each sale. The clerk shall set the petition for hearing by the court and
give notice thereof for the period and in the manner required by section 283 of this act, or for
such a period and in such manner as may be ordered by the court.
9882.160. Confirmation of Private Sale of Realty, ConditionsNew Appraisement,
When. 160. No sale of real property at private sale shall be confirmed by the court unless
the court is satisfied that the sum offered represents the fair market value of the property sold,
nor unless such real property has been appraised within one year of the time of such sale. If it
has not been appraised, a new appraisement must be had, as in the case of an original
appraisement of an estate. This may be done at any time before the sale or confirmation
thereof.
9882.161. IdemHearingOrder of Confirmation to be Entered, WhenOrder
Directing Another SaleConduct of Subsequent SaleCourt May Accept Increased Bid.
161. Upon hearing the court must examine into the necessity for the sale, or the advantage,
benefit, and interest of the estate in having the sale made, and must examine the return and
witnesses in relation to the sale; and if it appears to the court that good reason existed for the
sale, that the sale was legally made and fairly conducted, and complied with the
requirements of the previous section, that the sum bid is not disproportionate to the
value, and it does not appear that a sum exceeding such bid at least ten percent may be
obtained, the court shall make an order confirming the sale and directing conveyances to
be executed; otherwise it shall vacate the sale and direct another to be had, of which
notice must be given and the sale in all respects conducted as if no previous sale had
taken place.
made and fairly conducted, and complied with the requirements of the previous section, that
the sum bid is not disproportionate to the value, and it does not appear that a sum exceeding
such bid at least ten percent may be obtained, the court shall make an order confirming the
sale and directing conveyances to be executed; otherwise it shall vacate the sale and direct
another to be had, of which notice must be given and the sale in all respects conducted as if
no previous sale had taken place. But if a written offer of ten percent more in amount than
that named in the return is made to the court by a responsible person, and the bid complies
with all provisions of the law, it is in the discretion of the court to accept such offer and
confirm the sale to such person, or to order a new sale, or to conduct a public auction in open
court.
The case was deemed to be of such importance that we permitted two firms of attorneys,
counsel for certain banks and trust companies interested in the handling of many testamentary
trusts, to file briefs and be heard in oral arguments as amici curiae. Although such amici
curiae, as well as counsel for appellant and respondents, have favored this court with
exhaustive briefs upon the question, we do not deem it necessary to discuss it at length. It is
quite apparent from the sections cited and from numerous other sections of the probate code
that these sections deal with estates in the course of administration and apply to and govern
the acts of administrators and executors, and have no application to the powers and duties of
testamentary trustees after distribution to them.
4. It is insisted that sec. 9882.244, N.C.L., all but the first paragraph whereof was added
as an amendment to our probate statute, Revised Laws 1912, sec. 6073, in 1927, reserved in
the district court express jurisdiction over sales by testamentary trustees. Such section reads
in part as follows:
9882.244. Form of DecreeDistrict Court to Retain Jurisdiction, WhenTrustee May
Pray for Settlement of AccountsReport of Condition of Trust Estate to be Filed. 244.
Retain Jurisdiction, WhenTrustee May Pray for Settlement of AccountsReport of
Condition of Trust Estate to be Filed. 244. In the decree, the court shall name the persons
and the proportion or parts to which each shall be entitled, and such person shall have the
right to demand and recover his or her respective share from the executor or administrator, or
any other person having the same in possession.
Where any trust, life estate or estate for years has been created by or under any will to
continue after distribution the district court shall not lose jurisdiction of the estate by final
distribution, but shall retain jurisdiction thereof for the purpose of the settlement of accounts
under the trusts, life tenancies or estate for years, and the distribution of the residue to those
entitled thereto, which distribution may be upon petition of the trustees, or of his executors or
administrators, or of any party entitled to share in the distribution. And any trustee created by
any will or appointed to execute any trust created by any will, may, from time to time,
pending the execution of his trust, or may, at the termination thereof, render and pray for the
settlement of his accounts as such trustee before the district court in which the will was
probated, and in the manner provided for the settlement of the accounts of executors and
administrators. * * *
We think the limitation of the jurisdiction thus retained is clearly apparent. Concerning
sec. 1699 of the Code of Civil Procedure of California (now sec. 1120 of the Probate Code),
from which our section was taken, it is said in 11B Cal.Jur., paragraph 1323, page 838:
This statute confers on the court of probate a new jurisdiction derived from the statute; it
is not a part of the general probate jurisdiction to administer estates of decedents, but
corresponds to the equity jurisdiction over trusts, which, but for the statute conferring it, the
court of probate would not have.
the court of probate would not have. Practically a portion of the general jurisdiction over
trusts has been reserved to and reposed in the court of probate.
The courts of California have on several occasions held that the jurisdiction was strictly
limited to the purposes recited. See Parkham v. Superior Court, 77 Cal. App. 321, 246 P. 334;
In re Hubbell's Estate, 121 Cal. App. 38, 8 P.2d 530; Johnson v. Superior Court, 77 Cal.App.
599, 247 P. 249. The supreme court of Arizona, whose corresponding statute was likewise
taken from the California statute, has given it the same construction. Bell v. Bell, 44 Ariz.
520, 39 P.2d 629. Other authorities are to the same effect. Many of these authorities were
examined by us when we denied the motion to dismiss the present appeal. 64 Nev. 455, 183
P.2d 831. Such cases, in determining that orders dealing with testamentary trusts after
distribution were appealable, treated such orders sometimes as final judgments or orders in
actions at law or in equity, sometimes as final orders in special proceedings, and sometimes
as final orders in probate. It is clear to us that such matters are in no way incident to the
settlement of the estate, although it is true that they had their source in probate proceedings
over which the probate court had at one time properly exercised jurisdiction and over which it
still retained jurisdiction for the specified purposes mentioned in section 244 of our probate
act.
5. We see no occasion for confusion in the fact that probate jurisdiction is exercised by
the district court, our court of general jurisdiction, nor in the fact that in the exercise of its
probate jurisdiction the district court may necessarily have to pass on sundry questions of law
and equity. The proceeding in a probate case must in its very nature be distinct from an action
at law or a suit in equity. Lucich v. Medin, 3 Nev. 93, 93 Am.Dec. 376. The district court may
indeed have had jurisdiction both of the subject matter and of the parties to the present
proceeding, yet its act in setting aside the trustee's sale have been entirely outside of its
jurisdiction as a probate court.
present proceeding, yet its act in setting aside the trustee's sale have been entirely outside of
its jurisdiction as a probate court.
6. No complaint or petition was in terms addressed to the district court either as a court of
law or sitting in equity. The sole point presented was that the trustee had not followed the
requirements of the code prescribed for executors and administrators. The respondents did not
charge the trustee with bad faith or with selling the property for a price less than its actual
value or with any dishonest or corrupt acts, nor did they assert that the sale was not for the
best interests of all persons interested in the trust, nor even that the trustee did not exercise a
proper judgment or discretion. They simply treated the trustee's sale as a probate sale and
contended that it was void because of lack of compliance with the probate statute
requirements. The district court erroneously accepted this view.
7. Counsel for appellant and amici curiae having submitted to this court their briefs
indicating that the order of the probate court vacating the sale was beyond its jurisdiction and
therefore void, respondents then filed their answering brief in which they refrained in toto
from answering the arguments and authorities cited in such opening briefs and for the first
time raised two additional points, namely, first, that the trust instrument conveyed to the
trustee neither the express nor the implied power to sell the real estate of the trust, and
secondly, that if the trust instrument could be so construed as to contain an implied power of
sale, such implied power vested only in the named trustees and not in the successor trustee. It
would be unnecessary for us to determine either of these points, because the record
affirmatively discloses that neither was raised in the district court. This court has consistently
for a great many years followed the well-established rule that it will not consider on appeal a
point not urged in the lower court. Agricultural Ins. Co. of Watertown, N. Y., v. Biltz, 57
Nev. 370
v. Biltz, 57 Nev. 370, 64 P.2d 1042; and cases therein cited.
The rule was likewise applied by this court where the point was raised for the first time on
appeal by a respondent. Taylor v. Taylor, 58 Nev. 149, 72 P.2d 1105. The rule is not an
arbitrary one, but is one that has its roots in justice and fairness and which is particularly
applicable in the present case in which the intention of the testator as gleaned from the entire
will might have been presented to the district court, as well as his intention not to limit to the
original trustees either the express or implied powers governing the administration of the
trust. However, as the estate is an extensive one
2
and it appears that there may have been
prior sales by the trustee and there may be future sales, we deem it advisable, for the
prevention of further litigation, to give our construction of the will with reference to the two
points raised.
The testator made several bequests and then provided:
I hereby give, devise and bequeath all the rest, residue and remainder of my estate of
which I may die possessed and wherever situated, to my brother, Peter Devincenzi of San
Jose, California, and Angelo Scanavino of Reno, Nevada, as trustees, upon the following
trusts and for the following uses and purposes:
(a) I direct that my said trustees or their successors shall hold the residue of my estate in
trust, in equal shares for my children as follows, to-wit:
Irma Devincenzi Mosconi;
Ethel Devincenzi;
Lawrence Devincenzi, Jr.;
Jean Devincenzi,
until my youngest child, Jean Devincenzi, attains the age of twenty-five years.
____________________

2
The property distributed to the original trustees in the probate court's final decree of distribution included
nine parcels of real estate appraised in the aggregate sum of almost $100,000, besides several thousand dollars
worth of furniture situate on several of these parcels, and some $30,000 worth of secured notes.
(b) I further direct that my trustees shall have full power to operate and conduct any
business which may be distributed to them by the executors of my estate so long as in their
sound judgment it is profitable to operate such business.
(c) I also direct and empower my said trustees to invest and re-invest the corpus of said
trust fund in sound securities or business property and to make loans upon promissory notes
secured by trust deeds or loans upon real estate having a reasonable market value of a sum
double the amount of the loan thereon.
8, 9. Respondents urge that no implied power to sell can be found in this language or
elsewhere in the will, and have referred us to several cases in which authority to invest and
reinvest was held not to confer a power of sale of real estate. We do not deem it necessary to
discuss these cases at length. Some of them involve particular elements from which the court
thought it clear that it was not the testator's intention to confer a power of sale. So far as any
of these cases would tend to hold categorically that the language used can in no event be
interpreted as conferring a power of sale, we are satisfied that they are contrary to the great
weight of authority. Authorization in the trust instrument to invest and reinvest has been
almost uniformly interpreted a simpliedly conferring a power of sale. It is generally agreed
that no set form of words is necessary to create such power, but that the same may be inferred
from the general tenor of the instrument, especially where such power is necessary to carry
out the trust. To reinvest the corpus of the trust or part thereof is said to indicate a change in
the nature of the investment, and where part of the trust estate comprises realty, this in turn
necessitates a sale so that the power is clearly implied as the obvious and common method of
exercising the power to reinvest. No method other than a sale of the realty could accomplish
the testator's design of having the trust invest and reinvest the same in secured notes,
mortgage loans, etc.
secured notes, mortgage loans, etc. Vol. II, Scott on Trusts, 1022 et seq.; 65 C. J. Trusts, sec.
598, P. 733; 54 Am.Jur., Trusts, sec. 442, p. 350; Reinstatement of the Law of Trusts, Vol. I,
paragraph 190; Penn v. Pennsylvania Co. for Insurances, 294 Ky. 271, 171 S.W. 2d 437;
Schloendorn v. Schmidt, 115 Md. 74, 80 A. 309. See, also, annotation in 134 A.L.R. 378,
entitled Implied power of executor or testamentary trustee to sell real property. The
annotator says: In the vast majority of cases in which the question has arisen authority given
by a will to invest' property of the estate, which was comprised at least in part of real
property, has been held to confer a power of sale of such realty upon the executor or trustee.
134 A.L.R. 400. Further citation of authority is unnecessary. Cases holding contra, such as In
re Roscoe's Will, 127 Misc. 773, 216 N.Y.S. 620, relied upon by respondents, are referred to
in the text as being a minority view. See 65 C. J., Trusts, sec. 598, p. 734, n. 93.
10-13. We agree with the contention of respondents that in determining whether the will
contains an implied power to sell the guiding star is the intention of the testator. The
testator left the remainder of his property to form a trust fund which consisted in major part of
certain parcels of real estate. See Note 2. This trust fund the trustees were instructed to invest
and reinvest. The particular parcel, whose sale was vacated in the present instance, was not
business propertythe kind of property in which the trust fund was to be invested. Outside
of the real property, the cash and personal property (not including the secured notes) were
negligible in extent. The trust fund can in no way be made to fit the other provisions of the
will unless it be deemed to include realty as well as personalty. The provisions for monthly
payments to the children, share and share alike, out of the net income, the provisions for
distribution, the directions for investment and reinvestment and the restrictions on the nature
of the investments, all lend themselves to the view that the testator contemplated sales of
the real estate by the trustee to accomplish his purposes.
themselves to the view that the testator contemplated sales of the real estate by the trustee to
accomplish his purposes. We are unable to concur with respondents' view that the use of the
word fund restricted the trustee's power of investment to moneys. The fund or trust
fund or the corpus of the trust fund obviously refers to the entire residuary estate. It has
been often so construed. Kratz v. Slaughter's Ex'rs, 185 Ky. 256, 214 S.W. 878; Carter v.
Mullin, 123 Md. 327, 91 A. 154; Young v. DuBois, 60 Misc. 381, 113 N.Y.S. 456. Nor can
we agree with respondents' theory that the testator's direction to hold the property in trust
indicated that it should be held intact and in kind and be so distributed to the beneficiaries.
We think it clear that the testator's use of the word hold was in the sense commonly used in
deeds, wills, testamentary trusts and other similar instrumentsthat of vesting the title and
the right to hold or claim possession. See 40 C.J., Hold, 406 et seq. The usual habendum and
tenendum clauses in deeds are illustrative of this meaning.
14, 15. As to the second point (raised, we have noted, for the first time on appeal, in the
respondent's answering brief), it is insisted by respondents that if an implied power of sale
can be said to have been conferred upon the original trustees named in the will, such power
did not pass to the successor trustee. We have found without great difficulty that the authority
of the original trustees to sell the realty was impliedly given by the trust instrument. We are as
well satisfied that the power thus vested applied not only to the original trustees but to their
successor. We have carefully considered the arguments of respondents and the cases cited by
them to the effect that when powers granted by the instrument are personal in the named
trustee, they will not apply to a successor trustee not named by the trustor as a person in
whom he reposed particular trust and confidence.
confidence. Such situation has no application here. The testator named his brother and
another person as joint executors, and thereafter left the residue of his estate in trust to be
held by them, as trustees, or their successors. He defined the occasions for and the manner
of appointment of successor trustees. No personal trust, confidence, reliance or regard finds
expression. There was no waiver of bond. The testator specifically directed that my said
trustees or their successors shall hold the residue of my estate in trust * * * for my children
* * *. Neither the purposes of the trust nor the powers specifically and impliedly granted
would indicate that such trust was personal in the named trustees. The provision for the
appointment of an alternate or successor trustee in the event of the death or failure to act on
the part of the named trustees imposes the duty on such successor trustee to act in carrying
out the trust hereinabove specified. The codicil has a similar provision that the named
trustees or their successors continue to make the payments provided. In Restatement of
Trusts, Vol. I, sec. 196, it is stated: The powers conferred upon a trustee can properly be
exercised by his successor, unless it is otherwise provided by the terms of the trust.
3
The
general rule is well recognized that unless the power is personal to the named trustee by
reason of the trustor's expression of trust and confidence in him, a substitute trustee can in
general exercise a power of sale conferred by the terms of the trust. 54 Am.Jur., Trusts, sec.
438, p. 347; 65 C.J., Trusts, sec.
____________________

3
The Nevada Uniform Trusts Act, approved March 28, 1941, Stats. 1941, Chap. 136, p. 320, N. C. L. 7718,
30-7718-52, 1931-1941 Supp., has no statutory control over the present question because the act is made by its
terms applicable only to testamentary trusts created by wills or codicils executed after June 1, 1941. Section
7718.38 provides: Unless it is otherwise provided by the trust instrument, or an amendment thereof, or by court
order, all powers of a trustee shall be attached to the office and shall not be personal.
sec. 622, p. 752. In the annotation at 116 A.L.R. 158, on the right of a trustee other than the
person named in the will as such, to execute the power of sale conferred by the will, it is true
that we find listed a number of cases (116 A.L.R. 189) holding that the power did not pass to
the substituted trustee. However, in each of such cases the court was clearly satisfied that the
power conferred was personal and discretionary, and that the named trustees had been chosen
because of the trustor's special confidence in them. Where such distinguishing features do not
appear, the listed cases uniformly are to the effect (116 A.L.R. 187) that the substituted
trustees may execute the power of sale. To discuss the separate cases referred to would
unnecessarily prolong this opinion.
16. Respondents maintain that if the district court lacked jurisdiction to make the order
vacating the sale, certiorari is appellant's only remedy and that the availability of the remedy
by way of certiorari precludes a right of appeal. No authority is cited in support of this
contention, and this court has certainly never applied any such rule, although its converse is
well established. See N.C.L., sec. 9231. The order vacating the sale upon the grounds recited
in the motion was both erroneous and without the jurisdiction of the probate court, and the
aggrieved trustee accordingly had the right of appeal. In re Estate of Forney, Deceased, 44
Nev. 279, 194 P. 331; In re Estate of Foley, 24 Nev. 197, 51 P. 834, 52 P. 649.
17. One other point requires consideration, namely, the nature of this appeal and the
nature of the order or judgment appealed from. As the jurisdiction of the probate court had
terminated (except the special jurisdiction conferred by sec. 9882.244, which we have held
inapplicable), the relief sought by respondents, namely, the vacating and setting aside of the
trustee's sale, could be sought only in a court of equity. Such relief was entirely independent
of the administration of the estate.
entirely independent of the administration of the estate. It was a new proceeding and its status
as such could not be changed by the simple method of entitling it in the probate proceeding.
Parkman v. Superior Court, supra. Nor was its nature changed by the fact that the validity of
the sale was attacked on the ground of failure to comply with the requirements of certain
probate code sections. No more could its face effect be changed by the fact that it was made
by the district court sitting in probate. The order vacating the sale became in all effects a final
judgment appealable under the provisions of section 9385.60, N.C.L. Other points discussed
by counsel for the respective parties and by amici curiae have been considered, but do not
require discussion.
For the reasons hereinabove given, the order appealed from is hereby reversed with costs.
Horsey, J., and Brown, District Judge, concur.
Eather, C. J., being absent by reason of illness, the Governor commissioned Honorable
Merwyn M. Brown, District Judge of the Sixth Judicial District, to sit in this case in his place.
____________
65 Nev. 174, 174 (1948) Kroll v. Nevada Indus. Corp.
ALICE KROLL, Appellant, v. NEVADA
INDUSTRIAL CORPORATION, Respondent.
No. 3500
April 6, 1948. 191 P.2d 889.
1. Automobiles.
Statutes providing for constructive service on nonresident motorist in action following automobile
accident are constitutional if they contain provisions which make it reasonably probable that notice will be
communicated to person to be served, as by requiring mailing of copy of summons and complaint to last
known address.
2. Automobiles.
Act of nonresident in using state highways may be declared to be an agreement to accept service of
summons through designated state official, in suit growing out of such use though, the fact that nonresident
has actual notice of such a suit does not render valid a statute under which the suit is brought, which
permits service of process on state official without providing for notice to nonresident.
3. AutomobilesConstitutional Law.
California statute relating to service of process on nonresident motor vehicle owner using California
highways through agent, by delivery of copy to Director of Motor Vehicles and providing for mailing of
copy to nonresident by registered mail making it reasonably probable that notice will be communicated to
person to be served, is not violative of due process of law. Vehicle Code Cal., sec. 404.
4. Automobiles.
Automobiles are dangerous machines, use of which, under police powers of state, may be regulated with
view to public safety.
5. Automobiles.
State may exclude nonresident from use of its highways until formal appointment of resident agent for
receiving of service of process and use of the highways may be declared to constitute such an appointment.
6. Judgment.
Process of court of one state cannot run into another to give jurisdiction for rendering of a personal
judgment.
7. Automobiles.
Under California statute providing for constructive service of process on nonresident motorist in action
growing out of automobile accident in which motorist was involved while operating his automobile within
the state, constructive process does not run into the other state, but finds the defendant within the state of
the action and there makes service upon him through the agent appointed by his act,
accompanied by due notice to himself. Vehicle Code Cal., sec.
him through the agent appointed by his act, accompanied by due notice to himself. Vehicle Code Cal., sec.
404.
8. Judgment.
Default judgment obtained by motorists in California for injuries sustained in collision in that state with
automobile owned by Nevada corporation, and operated with its consent by its agent, following
constructive service upon defendant under California statute by service of summons on California Motor
Vehicle Director, and mailing copy to defendant by registered mail, was entitled to full faith and credit in
Nevada. Vehicle Code Cal., sec. 404; U.S.C.A.Const., art. 4, sec. 1.
Action by Alice Kroll against Nevada Industrial Corporation upon a default judgment.
From the judgment, plaintiff appeals. Judgment reversed with directions.
Norman H. Samuelson, of Reno, for Appellant.
G. A. Ballard, of Reno, for Respondent.
OPINION
By the Court, Hatton, District Judge:
This case involves the question of whether or not a defendant may be bound by a judgment
in this state, based upon a judgment obtained in another state upon process served on the
defendant in his absence from the latter state. The method of service involved has been
developed in the statutes of a number of states, including the State of Nevada, and grows out
of an effort to bind, with a personal judgment, the out-of-state drivers of automobiles who
may cause damage by their negligent driving in the state of visitation.
The undisputed facts of the case are set forth in the Stipulation and Agreed Statement of
Facts entered into in the lower Court and set forth in the Record on Appeal, as follows:
in the lower Court and set forth in the Record on Appeal, as follows:
It is hereby stipulated between the respective parties hereto by and through the
undersigned, their counsel herein, that the demurrer of defendant to plaintiff's complaint be
and the same hereby is waived and may be deemed overruled, and that defendant's motion to
strike certain portions of the complaint be denied, and that said defendant be permitted to
raise any objections on questions of law arising upon the appended Agreed Statement of Facts
by motion for judgment at or before final submission of this cause.
Agreed Statement of Facts
A. Plaintiff is a resident of the City of Reno, County of Washoe, State of Nevada.
B. Defendant is a corporation organized and existing under and by virtue of the laws of
the State of Nevada and at all times herein mentioned had its office and principal place of
business in the Masonic Building, No. 15 North Virginia Street, Reno, Washoe County,
Nevada. The corporate name of defendant prior to June 29, 1943 was Nevada Industrial Loan
Corporation. Defendant has never applied for nor has it ever obtained a license to do business
in the State of California.
C. The Superior Court of the State of California in and for the County of San Mateo is a
court of general jurisdiction created, organized and existing under and by virtue of the
constitution and laws of the State of California and was such at the time of the entry of the
judgment below referred to.
D. On January 30, 1942, a certain automobile, more particularly described as a 1936
Hudson coupe, owned by defendant, Nevada Industrial Corporation (then known as Nevada
Industrial Loan Corporation) and operated on a public highway in the State of California by
one Sam Berghorst, with the knowledge, permission and consent of the Defendant herein,
collided with an automobile owned by one E. W. Horsman.
E. Thereafter action was commenced by said E. W. Horsman in the Superior Court of the
State of California in and for the County of San Mateo against Sam Berghorst, the driver of
said automobile, and the defendant herein under its then corporate name, Nevada Industrial
Loan Corporation.
F. On March 25, 1942, the attorney for plaintiff caused to be delivered to the Department
of Motor Vehicles of the State of California a copy of the summons and complaint in the
action then pending in the Superior Court of the State of California in and for the County of
San Mateo, together with a fee of $2.00 and requested service on defendant, Nevada
Industrial Corporation under its then corporate name, Nevada Industrial Loan Corporation, to
be made in accordance with Section 404 of the Vehicle Code of the State of California upon
said Nevada Industrial Loan Corporation at 15 North Virginia Street, Reno, Nevada. Further,
on March 25, 1942 a notice of such service and a copy of the summons and complaint in said
action then pending in the Superior Court of the State of California in and for the County of
San Mateo were deposited by the attorney for plaintiff in the United States Post Office in the
City and County of San Francisco, State of California, addressed to said Nevada Industrial
Loan Corporation at 15 North Virginia Street, Reno, Nevada and said notice and copy of the
summons and complaint were sent by registered mail with the postage fully prepaid to said
Nevada Industrial Loan Corporation. There was at that time a regular communication by mail
between said cities of San Francisco, California and Reno, Nevada. Plaintiff complied fully
with the requirements of Section 404 of the Vehicle Code of the State of California below
referred to.
G. The Director of Motor Vehicles of the State of California thereupon mailed to the
defendant herein, under its then corporate name of Nevada Industrial Loan Corporation, the
copy of the summons and complaint delivered to it in the action above referred to then
pending in the Superior Court of the State of California in and for the County of San
Mateo.
plaint delivered to it in the action above referred to then pending in the Superior Court of the
State of California in and for the County of San Mateo.
H. The copies of the summons and complaint above referred to and the notice of service
on the Director of Motor Vehicles were received by defendant in due course of the mails.
I. At the time said service was made as aforesaid there was in force and effect Section
No. 404 of the Vehicle Code of the State of California which reads as follows:
S 404. Service of Process on Nonresident.
(a) Acceptance of rights and privileges or use of highways equivalent to appointment of
director as process attorney. The acceptance by a nonresident of the rights and privileges
conferred upon him by this code or any use of the highways of this State as evidenced by the
operation by himself or agent of a motor vehicle upon the highways of this State or in the
event such nonresident is the owner of a motor vehicle then by the operation of such vehicle
upon the highways of this State by any person with his express or implied permission, is
equivalent to an appointment by such nonresident of the director of his successor in office to
be his true and lawful attorney upon whom may be served all lawful processes in any action
or proceeding against said nonresident operator or nonresident owner growing out of any
accident or collision resulting from the operation of any motor vehicle upon the highways of
this State by himself or agent.
(b) Signification of agreement as to force and validity of process. The acceptance of such
rights and privileges or use of said highways shall be a signification of the agreement of said
nonresident that any such process against him which is served in the manner herein provided
shall be of the same legal force and validity as if served on such nonresident personally in this
State.
(c) Service upon director: How made: Fee: Sufficiency. Service of such process shall be
made by leaving a copy of the summons and complaint with a fee of two dollars for each
nonresident to be so served in the hands of the director or in his office at Sacramento and
such service shall be a sufficient service on said nonresident subject to compliance with
subdivision (d) hereof.
(d) Mailing of notice of service and copy of summons and complaint: Personal service
equivalent to mailing. A notice of such service and a copy of the summons and complaint
shall be forthwith sent by registered mail by the plaintiff or his attorney to said defendant.
Personal service of such notice and a copy of the summons and complaint upon said
defendant wherever found outside this State shall be the equivalent of said mailing.
(e) Proof of mailing: Affidavit and receipt: Proof of personal service: Return: Appending
to summons and filing. Proof of compliance with subsection (d) hereof shall be made in the
event of service by mail by affidavit of the plaintiff or his attorney showing said mailing,
together with the return receipt of the United States post office bearing the signature of said
defendant. Such affidavit and receipt shall be appended to the original summons which shall
be filed with the court from out of which said summons issued within such time as the court
may allow for the return of such summons. In the event of personal service outside this State
such compliance may be proved by the return of any duly constituted public officer, qualified
to serve like process of and in the State or jurisdiction where the defendant is found, showing
such service to have been made. Such return shall be appended to the original summons
which shall be filed as aforesaid.
(f) Continuances. The court in which the action is pending may order such continuances
as may be necessary to afford the defendant reasonable opportunity to defend the action.
necessary to afford the defendant reasonable opportunity to defend the action.
(g) Record of process served upon director. The director shall keep a record of all
process so served upon him which record shall show the day and hour of service.'
J. At no time was personal service of the summons made upon defendant within the State
of California or elsewhere.
K. Defendant failed to appear generally or specially in person or by counsel in said action
in the Superior Court of the State of California in and for the County of San Mateo and
thereupon its default was entered in the suit brought by E. W. Horsman aforesaid and
judgment was entered against it and in favor of the plaintiff on the 1st day of June, 1943 for
the sum of $1171.79 with costs taxed in the sum of $43.00, making a total of $1214.79.
L. No appeal was ever taken by defendant herein from said judgment nor was any motion
made to set aside the said judgment or to open the default of defendant for failure to appear or
answer in the said suit and the time to do any of the aforesaid acts has, under the laws of the
State of California, fully expired. As a result thereof, said judgment has become final and
absolute and now is in full force and effect.
M. Under the laws of the State of California interest is allowable on a judgment at the
rate of seven per centum per annum from the date of the entry thereof.
N. Prior to the commencement of this action, said judgment and all sums due and owing
thereon were duly assigned by E. W. Horsman in writing to the plaintiff herein. Defendant
was given notice in writing of said assignment by Norman H. Samuelson, attorney for
plaintiff, by letter dated June 27, 1945 addressed to it at Room 4, Masonic Building, 15 North
Virginia Street, Reno, Nevada and deposited in a sealed envelope with postage fully prepaid
in the post office at Reno, Nevada.
postage fully prepaid in the post office at Reno, Nevada. Said letter was received by
defendant.
O. No part of said judgment or costs or interest has been paid by defendant Nevada
Industrial Corporation.
It is further stipulated that the court may, upon the foregoing statement of facts, decide
the entire issue either upon briefs of counsel for both sides or upon oral argument or upon
both such briefs and argument and that findings of fact and conclusions of law may be made
and judgment entered accordingly, it being understood that the unsuccessful party may
prosecute an appeal from any judgment entered upon such decision.
It is contended by the defendant that the California judgment is void insofar as it purports
to bind the defendant personally, as its ultimate effect would be to deprive him of his property
without due process of law. In support of this contention the defendant cites and relies chiefly
on the case of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565. The defendant has not contended
that there was any failure on the part of the plaintiff to comply with the provisions of the
California statute relative to service, but, on the contrary, the Agreed Statement of Facts
recites that the plaintiff has complied fully with the requirements of section 404 of the
Vehicle Code of the State of California. The crux of the case therefore lies in the question as
to the validity and effect of that statute.
1, 2. The development of the law on the subject is summarized in the article on
automobiles in 5 American Jurisprudence, section 590, commencing on page 829, as follows:
There are in many states statutes providing for constructive or substituted service of
process on a nonresident motorist in an action growing out of an automobile accident in
which such motorist was involved while operating his automobile in the state. These statutes
usually designate a state official as the proper person to receive service of process.
receive service of process. Such statutes are constitutional provided they contain provisions
which make it reasonably probable that notice will be communicated to the person to be
served as by requiring the mailing of a copy of the summons and complaint to his last known
address. The act of a nonresident in using the highways may properly be declared to be an
agreement to accept service of summons through a designated state official in a suit growing
out of such use. The fact, however, that a nonresident had actual notice of the suit does not
render valid the statute under which the suit was brought, which permitted service of process
on a state official without providing for notice to defendant, or validate the judgment
rendered in accordance with its provisions.
3. In the foregoing text it will be noted that the validity of the judgment depends upon
provisions of the statute which make it reasonably probable that notice will be communicated
to the person to be served. The provisions of the said section 404 in that regard are sufficient
according to the standards indicated in the reported cases on that point.
In the text referred to it will also be noted that the act of a nonresident in using the
highways may properly be declared to be an agreement to accept service of summons through
a designated state official.
4-7. The principles of law above set forth are established by the decision of the Supreme
Court of the United States in the case of Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71
L.Ed. 1091, affirming the decision of the state court, which is reported in 250 Mass. 22, 144
N.E. 760, 35 A.L.R. 945. It was pointed out that automobiles are dangerous machines, the use
of which, under the police powers of the states, may be regulated with a view to the public
safety; that a state may even exclude a nonresident from the use of its highways until the
formal appointment of a resident agent for the receiving of service of process has been made,
and that the use of the highways may be declared to constitute such an appointment.
of the highways may be declared to constitute such an appointment. It is further shown that
this doctrine is not opposed to the doctrine in the case of Pennoyer v. Neff, supra, which
holds that the process of a court of one state cannot run into another to give jurisdiction for
the rendering of a personal judgment. In the class of cases with which we are now dealing,
and under the statutes referred to, the process does not run into the other state, but finds the
defendant within the state of the action and there makes service upon him through the agent
appointed by his act,accompanied by due notice to the defendant himself. Therefore, in the
case of Hess v. Pawloski, above referred to, it was held that due process of law, as referred to
in the 14th Amendment, was satisfied.
8. The California judgment, being valid in California, was entitled to full faith and credit
in the State of Nevada by reason of the provisions of Article IV, section 1 of the constitution
of the United States, popularly known as the full faith and credit clause and reading in part as
follows: Full Faith and Credit shall be given in each State to the public Acts, Records, and
Judicial Proceedings of every other State. Miliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 84
L.Ed. 278, 132 A.L.R. 1357. No reason has been assigned by the respondent, either in its
brief or in its oral argument, why such full faith and credit should not be accorded.
The judgment of the trial court is reversed, with instructions to enter judgment in favor of
the plaintiff as prayed for in her complaint, together with her costs.
Horsey and Badt, JJ., concur.
Eather, C. J., being ill, the Governor designated Hon. W. D. Hatton, Judge of Fifth Judicial
District, to sit in his stead.
____________
65 Nev. 184, 184 (1948) Peck v. Woomack
STANLEY W. PECK, Appellant, v. BURTON V.
WOOMACK, Respondent.
No. 3510
April 20, 1948. 192 P.2d 874.
1. Master and Servant.
In action for injuries sustained by plaintiff who was furnished by hotel lessee through hotel manager as an
assistant to do construction work when injured by a brick which fell from above where workman employed
to do job was working, complaint stated cause of action against lessee on theory of relationship of master
and servant between lessee and workman employed to do job.
2. Licenses.
Under statute prescribing qualifications which State Contractor's Board shall require of applicants for a
contractor's license, an applicant for general contractor's license need not qualify as to competency, skill or
experience in a particular trade or classification within the general scope of the building or construction
trades. Laws 1941, c. 186, art. 2, sec. 2, art. 4, sec. 3.
3. Pleading.
Allegation in amended complaint that one employed to do construction work was not qualified nor
capable nor experienced in bricklaying or construction work was a mere conclusion.
That an owner employing a contractor furnishes the tools, materials and men, indicates a master and
servant relationship but is not conclusive.
5. Licenses.
Where construction job was at most a small one not greatly in excess of the $300 exemption limit
requiring a contractor's license and not involving more than employment of one man, violation if any of the
law requiring a contractor's license would be merely technical not imposing liability on building lessee who
furnished an employee to the contractor for injuries sustained because the contractor's negligence, on the
ground that lessee knew that the contractor was not qualified nor experienced in construction work. Laws
1941, c. 186, art. 3, sec. 8.
6. Licenses.
The statute prohibiting only an independent contractor from undertaking a contract without a license and
making a violation thereof a misdemeanor is penal and must be strictly construed, and under its terms a
contract entered into is not void but at most is merely malum prohibitum. Laws 1941, c. 186, art. 7, sec. 2.
Ordinarily, an employee or servant employed by an independent contractor must look solely to such
contractor for compensation, or damages, if injured as a proximate result of the negligence of contractor.
Where contract is for work which, because of its nature, is inherently dangerous, or requires the use of
dangerous instrumentalities, the independent contractor and the employing owner are both liable for
injuries to servant of independent contractor, upon negligence being proved.
Where building lessee furnished an employee to a contractor engaged in reconstruction of building, when
lessee or its agent became aware of danger to their employee by their observations, disclosing that
contractor was incompetent and negligently handling and laying bricks endangering employee, lessee or its
agent had duty to notify the employee of the danger in continuing to work under the contractor.
10. Evidence.
That an employee will obey the rightful commands or directives of an employer is presumed.
Where lessee and manager allegedly through observation knew contractor was incompetent and was
negligently handling brick, failure of lessee or manager to comply with duty to order plaintiff who was
directed to assist contractor to cease working under the dangerous circumstances would be implied.
12. Contracts.
Where plaintiff was furnished by hotel lessee through hotel manager as an assistant to do construction
work, an implied condition would exist that contractor would use reasonable care to furnish plaintiff a safe
place to work and would not negligently handle bricks above where plaintiff was working and lessee would
not break contract by ordering plaintiff to cease working upon discovery that contractor was incompetent
or negligently handling brick.
In action for injuries sustained by employee of a building lessee who was furnished to a contractor
engaged in reconstruction work on the building, complaint was sufficient to allege a cause of action against
lessee, either under a theory of independent contractor or master and servant, on ground of lessee's
negligence or its agent in failing to warn plaintiff of danger of working under dangerous conditions created
by contractor or failure to order him to stop work after becoming aware of the dangerous conditions
existing.
14. Pleading.
A pleading is double within rule against duplicity where it joins in one and the same count, different
grounds of action of different nature, or of the same nature, to enforce a single right to recovery, or where it
is based on different theories of the defendant's liability.
15. Pleading.
Where alternative averments were each sufficient to state a cause of action, complaint was not subject to
a general demurrer.
16. Statutes.
As the Nevada Civil Practice Act was originally adopted from the California Code of Civil Procedure, the
California cases dealing with procedural questions are entitled to great weight by Nevada courts.
17. Pleading.
In action for injuries sustained by plaintiff who was furnished by a building lessee to a contractor
engaged in reconstruction work on the building, where complaint alleged liability of lessee either under
theory of independent contractor or master and servant relationship, complaint was not subject to general
demurrer because alleging two divergent alternative theories where sufficient facts were alleged to
constitute a cause of action under either of such theories.
18. Pleading.
Where exact relations existing between defendants are not definitely known to any one but themselves,
plaintiff may plead alternative allegations, and like rule applies where pleader has no knowledge as to
which of two sets of facts should be alleged, and the opposite party would be equally liable under either.
19. Pleading.
In action for injuries sustained by plaintiff who was furnished by lessee through its agent as an assistant to
do reconstruction work where it did not appear that plaintiff was present when relationship between lessee
and workman was created, and plaintiff knew nothing of what transpired at that time, or what kind of
relationship was intended, special demurrer to complaint was improperly sustained on ground of
uncertainty because of plaintiff having averred alternative theories of master and servant and of
independent contractor.
20. Principal and Agent.
In action for injuries sustained by plaintiff who was furnished by lessee through its manager as an
assistant to do reconstruction work, allegation that person who had directed plaintiff to assist workman was
manager of hotel, was a sufficient allegation as against demurrer that manager had implied authority to
contract with, or employ workman to do the work, in view of the probable emergency nature of the work.
Comp.Laws, secs. 8621, 8622.
In action for injuries sustained by plaintiff who was furnished by lessee through manager as an assistant
to do reconstruction work, allegation that manager engaged workman to do the job was sufficient to
authorize proof of manager's authority to contract with workman or employ him as servant to do the job.
Comp.Laws, secs. 8621, 8622.
22. Evidence.
A person is presumed to do his duty and to act regularly and within the scope of his authority until the
contrary appears.
Where it is only necessary to aver the act of an agent as the acts of the principal, the general allegation
that the act was done by defendant is an allegation that the agent had authority to act, and likewise where
agency is alleged, the general allegation is sufficient without avering that the agent had authority to act in
the premises.
Action by Stanley W. Peck against Burton V. Woomack for injuries. From an adverse
judgment, plaintiff appeals. Reversed and remanded.
Martin J. Scanlan, of Reno, for Appellant.
Thatcher, Woodburn & Forman, of Reno, for Respondent.
OPINION
In this case the respondent, defendant in the court below, demurred to the amended
complaint of the plaintiff (appellant), upon two grounds, namely, that the plaintiff, in his
amended complaint, failed to state facts sufficient to constitute a cause of action, and that the
allegations of the amended complaint were ambiguous, unintelligible and uncertain. The
demurrer was sustained, and upon the plaintiff deciding to stand upon his amended
complaint, for the purpose of appeal, and declining to amend further, judgment was
entered in favor of defendant and for his costs.
declining to amend further, judgment was entered in favor of defendant and for his costs.
From such judgment the plaintiff has appealed to this court. The parties will be designated
herein as plaintiff and defendant, as they were in the court below.
The sufficiency of the amended complaint being the ultimate question to be determined
upon this appeal, it appears advisable to incorporate same herein. Such amended complaint is
as follows:
The plaintiff by leave of the Court first had files this his amended complaint and for
cause of action alleges:
I. That on the 7th day of January, 1947, and during all the times herein mentioned, the
defendant Burton V. Woomack was the leasee of a certain hotel building known as the
Pioneer Hotel situated and numbered 138 East Commercial Row, in the City of Reno,
Washoe County, Nevada, extending from said Commercial Row southerly and the rear wall
of said hotel building abutting on East Douglas Alley between North Center Street and Lake
Street in said City of Reno, Nevada.
II. That during all the times herein mentioned, one Robert A. Ruble was the agent of
defendant Burton V. Woomack and the manager of the said Pioneer Hotel; that sometime
prior to the 7th day of January, 1947, the said agent engaged the services of defendant
William J. Heffler to install terra cotta flues and reconstruct and encase same within a brick
wall extending from the ground abutting on said East Douglas Alley upwards and above the
roof at the rear of the building occupied by the said Pioneer Hotel.
III. That upon information and belief at the time the said William J. Heffler was
employed to construct said chimney, or alteration work thereon, the defendant Burton V.
Woomack and his agent knew, or should have known, that the defendant William J. Heffler
was not a contractor and was not licensed as such by the Nevada State Board of Contractors
and that defendant William J. Heffler was not qualified nor capable nor experienced in
brick-laying or construction work, and that the said defendant Burton V.
in brick-laying or construction work, and that the said defendant Burton V. Woomack nor his
agent, nor the said William J. Heffler had obtained a permit for said construction or alteration
work from the Inspector of Buildings for the City of Reno, Nevada, nor had said Inspector of
Buildings approved the manner in which brick-laying or construction work was being done at
the time the injuries were sustained by plaintiff; that defendant Burton V. Woomack and his
agent for the reasons herein stated, did not exercise due care in selecting said William J.
Heffler for said construction work.
IV. That during all the times herein mentioned the defendant Burton V. Woomack by and
through his agent and manager had control and supervision over defendant William J. Heffler
and the manner in which said William J. Heffler was performing the construction work
described herein.
V. That at the time plaintiff was employed by the agent of Burton V. Woomack and
which was prior to January 7th 1947, said agent did not inform plaintiff that defendant
William J. Heffler was not a licensed contractor and was unskilled in the laying of brick and
construction work and plaintiff did not know and had no such knowledge of the
incompetence of said William J. Heffler; that the agent of said Burton V. Woomack, in utter
disregard for the safety of plaintiff, employed plaintiff to help and assist defendant William J.
Heffler in mixing mortar and hoisting brick and mortar to said William J. Heffler who was
working on a scaffold suspended from the roof and on the south side of said Pioneer Hotel
building and above where plaintiff was working.
VI. That the said William J. Heffler was an incompetent incapable bricklayer and was not
a licensed and recognized contractor or bricklayer of experience and ability in that line of
work; that the said defendant Burton V. Woomack, and his agent and servants knew, that at
the time the said William J. Heffler was constructing said chimney and encasing the same
with brick, that the said William J.
constructing said chimney and encasing the same with brick, that the said William J. Heffler
was performing such work and the handling and laying of the bricks in a careless, negligent
and unworkmanlike manner that was dangerous and unsafe to the plaintiff who was working
below the scaffold and assisting and helping the said William J. Heffler in the construction of
the brick work encasing said chimney.
VII. That on the 7th day of January 1947, while said defendant William J. Heffler was
laying bricks several feet below the top of said roof and by reason of the carelessness and
negligence of said defendant, William J. Heffler, a number of the bricks which said defendant
William J. Heffler had laid became detached from said chimney or were being removed from
the wall of said building, or were carelessly disposed on the scaffold where said William J.
Heffler was working, and by reason of the carelessness and negligence and unworkmanlike
manner in which the said William J. Heffler was constructing said brick wall encasing and
enclosing said chimney, some of the bricks fell from said wall, or from the scaffold, and one
of which struck the plaintiff on the forehead inflicting a deep, ugly, painful gash and
concussion of the head, knocking plaintiff to the ground and seriously injuring the plaintiff
and which necessitated a delicate and dangerous operation on plaintiff's skull, forehead and
brain, and plaintiff thereby suffered great and grevious pain and injury.
VIII. That at the time plaintiff suffered said injury neither defendant was a subscriber to
nor had accepted the terms of the Nevada Industrial Compensation Law and plaintiff was not
entitled to receive and did not receive any compensation from the Nevada Industrial
Commission by reason of said injuries.
IX. That by reason of said injuries, plaintiff incurred hospital bills in the sum of four
hundred forty-nine and 90/100 ($449.90) dollars.
X. That by reason of said injuries, the plaintiff has been physically disabled and
rendered unable to pursue his work as a laborer or any other kind of work from the 7th
day of January 1947, to and including the 29th day of March 1947, save and except
occasional few hours when plaintiff was able to do light work; that plaintiff lost in wages
approximately five hundred and fifty {$550.00) dollars.
been physically disabled and rendered unable to pursue his work as a laborer or any other
kind of work from the 7th day of January 1947, to and including the 29th day of March 1947,
save and except occasional few hours when plaintiff was able to do light work; that plaintiff
lost in wages approximately five hundred and fifty ($550.00) dollars.
XI. That as a result of the falling of said brick through the carelessness and negligence of
defendants, the plaintiff has suffered injuries, pain and shock to the plaintiff's damage in the
sum of twenty-five thousand ($25,000) dollars.
Wherefore, plaintiff prays for judgment against the said defendants:
1. For the sum of $25,000.00 as damages for injuries suffered by plaintiff;
2. For surgical operation and surgical services in the sum of $2,025.00;
3. For the sum of $449.90 for hospital expenses;
4. For the loss of wages in the sum of $550.00;
5. For plaintiff's costs and disbursements incurred herein.
It is apparent from the allegations of the amended complaint, and particularly from those
of paragraph IV, that the plaintiff's primary theory of the relationship existing between
Woomack, the defendant, and Heffler, who, it is alleged in paragraph II, was engaged to
install terra cotta flues and reconstruct and encase same within a brick wall extending from
the ground abutting on East Douglas Alley upwards and above the roof of the rear of the
building occupied by the Pioneer Hotel, in the City of Reno, Nevada, was that of master and
servant, or employer and employee.
Indeed, the allegations of paragraph IV are of facts, the existence or nonexistence of which
is very generally considered the criterion or indicia in determining whether an employment
relationship between an owner and one engaged by him to do construction work is that of
owner and independent contractor, or owner and mere servant and employee {see 27
Am.Jur. pp.
of owner and independent contractor, or owner and mere servant and employee (see 27
Am.Jur. pp. 485-491).
1. It being definitely and positively alleged in paragraph IV of the amended complaint that
at all the times mentioned therein the defendant Burton V. Woomack, by and through his
agent and manager, had control and supervision over William J. Heffler and the manner in
which the said William J. Heffler was performing the construction work described. Such
allegation, together with all the other allegations of the amended complaint, with the
exception of those in paragraph III relative to the knowledge or imputed knowledge on the
part of Woomack and his agent, Ruble, to the effect that Heffler was not a licensed
contractor, and the first clause in paragraph V, and the first clause in paragraph VI, also
relative to such knowledge or imputed knowledge and the imputation of incompetency as a
bricklayer, were sufficient, in our opinion, to constitute a cause of action upon the theory of
the relationship of master and servant. It is clearly apparent, however, that the plaintiff was
uncertain what the actual relationship was between the defendant, Burton V. Woomack, and
his agent, Robert A. Ruble, on the one hand, and the plaintiff, Stanley W. Peck, on the other,
and it appears fair to infer, from the undisputed facts and surrounding circumstances, that the
plaintiff was not in an equally advantageous position with the defendant, Woomack, and
William J. Heffler in the matter of knowledge of the transaction between Woomack and
Heffler,whether it was an arrangement whereby they intended to, and did, enter into a
contract by which Heffler became an independent contractor, or whether they intended that
what they said and did would serve to establish the mere engagement or employment of
Heffler by Woomack to do a certain job of installation and brick laying, as a servant and
employee.
It is evident that because of plaintiff's lack of certain knowledge as to such relationship,
his attorney, Mr.
Scanlan, felt impelled to include the allegations in paragraphs III, V and VI, above referred to,
alleging that Woomack knew, or should have known, that Heffler (then a defendant) was not
a contractor, was not licensed as such by the Nevada Board of Contractors, and, in effect, that
therefore he must be deemed to have known that Heffler was not qualified nor capable nor
experienced in brick-laying or construction work. This is an allegation that could be relevant
or material only if the relationship was that of owner and independent contractor. It is not
believed by us, however, that knowledge or imputed knowledge merely of the fact that no
license as a brick-laying contractor had been issued to Heffler would justify the imputation
that, because of not having been so licensed as such contractor, he was not qualified nor
capable nor experienced in brick-laying or construction work. It will be noted that the above
words alleging lack of qualifications in bricklaying or construction work follow immediately,
in paragraph III of the amended complaint, the words the defendant Burton V. Woomack
and his agent knew, or should have known, that the defendant William J. Heffler was not a
contractor and was not licensed as such by the Nevada State Board of Contractors and * * * ,
thereby clearly indicating, by the language used, that such lack of qualifications is to be
imputed or inferred from the lack of a license.
The act creating a State Contractors' Board, and providing, among other things, for the
licensing of contractors, is Chap. 186, pp. 442-447, of the Statutes of 1941.
Sec. 3. of article IV of said act prescribes the qualifications which the board shall require
of applicants for a contractor's license, and is as follows: Sec. 3. The board shall require an
applicant to show such a degree of experience and such general knowledge of the building
safety and health laws of the state and of the rudimentary principles of the contracting
business as the board shall deem necessary for the safety and protection of the public."
board shall deem necessary for the safety and protection of the public.
And article VII of said act makes it a misdemeanor to engage in the business or act in the
capacity of a contractor within the state without having a license. Said article reads as
follows:
Sec. 1. It shall be unlawful for any person, firm, copartnership, corporation, association,
or other organization, or any combination of any thereof, to engage in the business or act in
the capacity of a contractor within this state without having a license therefor as herein
provided, unless such person, firm, copartnership, corporation, association, or other
organization, or any combination of any thereof is exempted as provided in this act.
Sec. 2. Any violation of this act shall constitute a misdemeanor.
Sec. 3 of article IV does not prescribe that in order to be entitled to a license a person or
other applicant shall himself be skilled in all classes of the work which, as a contractor, he
wishes to undertake. He may be a general contractor and intend to let subcontracts for
particular classes of the construction work, to those especially qualified to do, or cause to be
done, skillful work of the particular kind or class referred to them.
Sec. 2 of article II of the act prescribes that The term contractor for the purposes of this
act is synonymous with the term builder.' It does not provide that in order to procure a
license an applicant contractor must be classified more specifically or particularly than the
general term builder, nor that a person must qualify as a skillful workman in a particular
trade or calling in order to be entitled to a contractor's license. What the statute requires him
to show is that he possesses such a degree of experience and such general knowledge of the
building safety and health laws of the state and of the rudimentary principles of the
contracting business as the board shall deem necessary for the safety and protection of the
public."
safety and protection of the public. (Emphasis added.)
Analyzing this provision further, it simply means that the applicant for a license must have
experience and knowledge of: (1) the building safety and health laws of the state; (2) the
rudimentary principles of the contracting business; (3) that the experience as to the matters
above mentioned shall be in such degree, and the general knowledge thereof, such as the
board shall deem necessary for the safety and protection of the public.
2. It is, therefore, experience and general knowledge of the rudimentary principles of the
contracting business, not of any particular branch or trade, concerning which the applicant
must be qualified.
Consequently, to issue an applicant a license as a general contractor doesn't require that he
shall qualify as to competency, skill or experience in a particular trade or classification within
the general scope of the building or construction trades.
It is true, however, that by sec. 1 of article IV of the original act of 1941, Stats. 1941, p.
445, the board was directed to investigate and qualify applicants for a contractor's license, and
authorized to issue contractor's licenses to qualified applicants; and by the amendatory act of
1945, Stats. 1945, chap. 184, pp. 296, 297, in sec. 1 thereof, the word shall, which occurs in
sec. 1 of article IV of the original act, was changed to may, and the word classify added
between the words investigate and qualify; also, provision was made for written or oral
examinations. Also, by the said amendatory act of 1945, Stats.1945, p. 296, article III-A was
added after article III of the original act, Stats. 1941, pp. 444, 445, and is as follows:
Article III-A
Classifications
Section 1. The board may adopt rules and regulations necessary to effect the classification
of contractors in a manner consistent with established usage and procedure as found in the
construction business, and may limit the field and scope of the operations of a licensed
contractor to those in which he is classified and qualified to engage.
limit the field and scope of the operations of a licensed contractor to those in which he is
classified and qualified to engage. A licensee may make application for classification and be
classified in more than one classification if the licensee meets the qualifications prescribed by
the board for such additional classification or classifications. No additional application or
license fee shall be charged for qualifying or classifying a licensee in additional
classifications.
Nothing contained in this section shall prohibit a specialty contractor from taking and
executing a contract involving the use of two or more crafts or trades, if the performance of
the work in the crafts or trades, other than in which he is licensed, is incidental and
supplemental to the performance of work in the craft for which the specialty contractor is
licensed.
While the State Contractors' Board, by said added article III-A, was empowered and may
adopt rules and regulations necessary to effect the classification of contractors in a manner
consistent with established usage and procedure as found in the construction business, and
may limit the field and scope of the operations of a licensed contractor to those in which he is
classified and qualified to engage, it is not pleaded in plaintiff's amended complaint, as a
basis for imputing to defendant Woomack and his agent knowledge that Heffler was not
qualified nor capable nor experienced in brick-laying or construction work, that the Board
ever had adopted such rules and regulations implementing the above-quoted provision for
classification, and thereby limiting the scope of the operations in which a licensed contractor
may engage, or that they had provided for such special licensing. But assuming, for the
present purpose, that the board had adopted such regulations, and was fully equipped to and
engaged in issuing such special licenses, after the testing of the applicant's qualifications and
finding them sufficient, no facts are alleged in the amended complaint that Heffler ever
made application for a contractor's license, either general or special, nor are any facts
alleged disclosing that any application by Heffler, for either a license to engage in
brick-laying contracting or any other form of contracting, was ever passed upon by the
board adversely.
in the amended complaint that Heffler ever made application for a contractor's license, either
general or special, nor are any facts alleged disclosing that any application by Heffler, for
either a license to engage in brick-laying contracting or any other form of contracting, was
ever passed upon by the board adversely.
3. The said allegation in the amended complaint that Heffler was not qualified nor
capable nor experienced in brick-laying or construction work appears, therefore, to be a
mere conclusion of the pleader, in the absence of any allegation of foundational fact showing
any rejection of any such application, for any reason of lack of suitable qualifications, or
otherwise. We do not believe the mere failure of one in Heffler's position to make application
for a contractor's license necessarily indicates lack of qualifications. The job was a small one,
the actual work to be done by Heffler with only one assistant, such assistant to be furnished
by Woomack. Facts are not alleged from which it can be determined whether Peck, the
plaintiff, who was the man employed by Woomack's agent, Ruble, on behalf of Woomack, to
assist Heffler on the job, was to be paid by Woomack and was his employee throughout and
his services contributed under the terms of a contract with Heffler, or whether Peck was
Woomack's employee, and, as contended by counsel for defendant, loaned to Heffler and to
be compensated in the first instance by Heffler.
4. In other words, assuming for the moment the independent contractor relationship, there
is nothing in the amended complaint to impel the conclusion that Heffler, under the assumed
contract, was to become an employer of even one man. In the case of small contracts it is not
uncommon for the owner employing a contractor to furnish the tools, materials and man, or
men. While to do so indicates, somewhat, a master and servant relationship, it is by no means
conclusive. See 27 Am.Jur., pp. 493, 494; on page 494 it is stated: "Whether a contractor or
employer furnishes or does not furnish the workmen and appliances by which certain
work is done is not in itself decisive on the question of his independence.
Whether a contractor or employer furnishes or does not furnish the workmen and
appliances by which certain work is done is not in itself decisive on the question of his
independence. * * * However, a contractor may be independent, where he has control of the
doing of the work, although the employer furnishes and pays certain workmen and furnishes
certain appliances and tools for the prosecution of the work.
5. Furthermore, there is no allegation in the amended complaint disclosing that the
aggregate contract price to be paid to Heffler was $300 or more. Unless it was, the contract
would be exempt, under sec. 8 of article III of the said act of 1941, from the application of the
act, and there would have been no duty on the part of the contractor, Heffler, to apply for a
contractor's license. But even if the contract price was $300 or more, and which we must
assume, in support of the amended complaint as against demurrer, it being incumbent upon
the defendant to plead such exemption if it applied, the job was, at most, a small one, not
greatly in excess of the exemption limit and not involving more than the employment of one
man, if any. Under the circumstances, the violation, if any, of the law requiring a contractor's
license would, at most be merely technical, rather than substantial. Under such facts and
circumstances as are disclosed by the amended complaint, it is exceedingly doubtful whether
the defendant, Woomack, if he knew, or should have known, that Heffler was not licensed as
a brick-laying contractor, may properly be deemed to have known that he was not qualified
nor capable nor experienced in brick-laying or construction work.
6, 7. Said statute of 1941, Stats. 1941, pp. 442-447, making violation thereof a
misdemeanor, is penal, and must be strictly construed. It prohibits only an independent
contractor from entering into or undertaking such a contract job without a licensenot the
owner employing or contracting with him.
employing or contracting with him. Under the statute it is not prescribed that the contract
shall be void, and, under the circumstances alleged, the contract, at most, would be malum
prohibitumnot malum in se. And the statute does not provide the additional penalty that
one taking a contract without such license shall be deemed not competent, nor capable, nor
experienced in the work of his trade or calling, nor one employing him shall be deemed to
have known that he was incompetent, incapable or inexperienced. Such imputation would
often be contrary to the facts, and certainly cannot be imposed when the statute does not do
so. We can, therefore, attach little importance to such allegations in the amended complaint
attempting to impute to the defendant, Woomack, or his agent, knowledge that Heffler was so
incompetent and unskilled as a bricklayer that a man placed in the position in which Peck was
placed on the job would be endangered by working with Heffler. Undoubtedly, however, the
said allegation discloses the intent of the pleader to plead in the alternative the contractual
relationship, as well as that of master and servant.
Under the master and servant theory, the allegations above mentioned, in paragraphs III, V,
and VI of the amended complaint, attempting to impute to Woomack or his agent knowledge
of Heffler's lack of qualifications as a brick-laying contractor, because he was nonlicensed
and alleging that he or his agent failed to inform Peck, the plaintiff, of such dangerous
incompetency, and was, therefore, negligent, would be entirely irrelevant, for the reason that,
obviously, if Heffler merely engaged with Woomack or his agent, as a workman bricklayer, to
perform the actual construction work by his own physical labor upon the project described in
paragraph II of the amended complaint, he was not required, in order to be entitled to work as
an individual bricklayer, to become licensed as a contractor.
Still pursuing the theory of contractual relationship, what, if any, other allegations of the
amended complaint alleged facts sufficient, if sufficiently established by the evidence, to
constitute negligence on the part of Woomack or his agent, Ruble, in placing his employee,
Peck, the plaintiff, to work with Heffler on the bricklaying job described in the amended
complaint, or in failing, after Woomack or his agent became aware that Heffler was
performing his work, and was handling the bricks, in a careless, negligent and
unworkmanlike manner on a scaffold above where Peck was working, to warn Peck that it
was unsafe to continue to work below such scaffold where Heffler was working, or in failing
to order or direct Peck to cease working with Heffler under the then existing conditions? It
appears that sufficient facts are alleged in paragraph VI to show, by implication at least,
actionable negligence on the part of Woomack or his agent, Ruble, imputable to Woomack, in
failing to warn Peck of the dangerous situation in which he was working in relation with
Heffler, after Woomack or his agent became possessed of knowledge that Heffler was so
carelessly and negligently handling and laying the bricks, on the scaffold above where Peck
had been assigned to work, that Peck was thereby endangered, or in failing to order Peck to
cease working with Heffler unless the dangerous situation was rectified. It appears clear that
the implication that Woomack or his agent, Ruble, after becoming aware that Heffler was
doing the work in a careless, incompetent, negligent and unworkmanlike manner, failed to
order or direct Peck to cease working in such position of danger with Heffler, is justified.
8. We are fully mindful of the fundamental rule that, ordinarily, an employee or servant
employed by an independent contractor must look solely to such contractor for compensation,
or damages if injured as a proximate result of the negligence of such contractor.
9. To this rule there are exceptions, which have been ably discussed in the briefs of
respective counsel. Notable among such exceptions are:
1. When the contract is for work which, because of its nature or requirements, is inherently
dangerous, or requires the use of dangerous instrumentalities, as, for example, explosives. In
such cases the independent contractor and the employing owner or industrialist both are held
liable, upon negligence being proved.
2. When the owner knows, or should know, that the contractor is so incompetent,
inexperienced or unskilled in the particular kind of work required as to cause it to be
dangerous to men on the particular job to work under his supervision. This exception
contemplates or refers to the duty, if any, owed by an owner or party letting a contract to
workmen employed by and working for the independent contractor,whether because of
employing such an incompetent contractor and thereby contributing to a condition which will
serve as an invitation or opportunity to workmen to enter into employment made dangerous
by the incompetency of the contractor, known to the owner but unknown to the workmen who
will be imperiled by entering into the employment, the owner, or party letting the contract,
becomes liable to a workman suffering injuries as a result of the contractor's negligence. The
authorities are in conflict as to the liability of the owner, or party, employing the contractor,
under such circumstances. See 27 Am.Jur., pp. 507, 508, sec. 28. The liability, according to
the view of most authorities, depends upon whether or not reasonable care, or the care of an
ordinary careful, prudent person, has been exercised by the owner in selecting the contractor.
10. In the instant case, however, we have a situation alleged in which Peck, the plaintiff,
was primarily the employee of Woomack. Even if the theory advanced by defendant that
Peck's services were loaned to Heffler {which there is really nothing in the amended
complaint or the alleged facts and circumstances to indicate) were accepted, he was
employed in the first instance by Woomack or his agent, and did not voluntarily negotiate,
or of his own initiative enter into, any employment with Heffler.
Heffler (which there is really nothing in the amended complaint or the alleged facts and
circumstances to indicate) were accepted, he was employed in the first instance by Woomack
or his agent, and did not voluntarily negotiate, or of his own initiative enter into, any
employment with Heffler. If he had, he would be solely responsible for choosing his
employer and deciding to enter into such employment. The facts as alleged show that Peck
was, at least initially, employed by Woomack or his agent, and by their direction and
instructions was placed in contact with Heffler, and directed to work on the job with Heffler.
Under those circumstances, did the duty of the employer, Woomack, or his agent, end when
they thus placed their employee at work on the job with Heffler? We think not. It was the
duty of Woomack or his agent to employ the care of an ordinarily careful, prudent person to
furnish the employee, Peck, a reasonably safe place to work, whether directly under the
supervision and working for Woomack or his agent, or working for Woomack but
temporarily under the supervision of a contractor employed by Woomack. See 27 Am.Jur. pp.
529, 530, and the many cases cited in footnote 18. In our judgment, it became the duty of
Woomack to warn his employee, Peck, of the danger in which he was placed by working with
Heffler, even if Woomack was originally unaware of Heffler's incompetency or carelessness,
at the time Pack was directed to work for Heffler, by Woomack or his agent, Ruble. When
Woomack or his agent became aware of the danger, by their observations disclosing the fact
that Heffler was incompetent and was carelessly and negligently handling and laying the
bricks and thereby endangering Peck, it then became Woomack's duty, or that of his agent, so
observing the danger, to notify Peck, with reasonable dispatch, of the danger of continuing to
work in the situation and under the conditions in which he then was.
11, 12. It appears that under either theory, that of independent contractor or master and
servant, paragraph VI of the amended complaint alleges facts sufficient to show
negligence on the part of Woomack, by himself or through his agent, Ruble, provided such
agent was duly authorized, and provided they failed to warn Peck of the danger, or failed
to order him to stop working on the job with Heffler, under the dangerous conditions
existing.
independent contractor or master and servant, paragraph VI of the amended complaint alleges
facts sufficient to show negligence on the part of Woomack, by himself or through his agent,
Ruble, provided such agent was duly authorized, and provided they failed to warn Peck of the
danger, or failed to order him to stop working on the job with Heffler, under the dangerous
conditions existing. The failure so to order Peck to cease or desist from working, under the
circumstances and in such position of danger, was clearly implied, because it is presumed an
employee will obey the rightful commands or directives of an employer (31 C.J.S., Evidence,
sec. 150, p. 840), and the fact that Peck continued working with Heffler after Woomack or his
agent became aware of the careless, negligent and unworkmanlike manner in which Heffler
was doing the work is sufficient basis upon which to infer that Woomack or his agent did not
command or direct Peck to cease working under the dangerous conditions then existing.
Assuming the independent contractor theory, Woomack or his agent would have had the
right, and it would have been their duty, to have ordered Peck to quit working with Heffler,
under the circumstances, whether Peck technically was loaned to Heffler and came under
his supervision for the time being, or whether he remained entirely the employee of
Woomack and primarily under his direction, or that of his agent. If Peck's services were
contributed by Woomack or his agent, under the terms of the contract, Woomack would be
responsible to Peck to use reasonable care to furnish him a safe place to work, or to see that
same was furnished by Heffler, and could not rid himself of that responsibility by delegating
his authority to Heffler. Woomack would, under such circumstances, have the right to
withdraw Peck, or order him to cease working with Heffler, and would not thereby be
breaking his contract with Heffler, for in any such contract there would be an implied
condition that Heffler would use reasonable care to furnish Peck a safe place to work, and
would certainly not, himself, negligently and carelessly handle the bricks above where
Peck was working, and subject him to danger of injury.
reasonable care to furnish Peck a safe place to work, and would certainly not, himself,
negligently and carelessly handle the bricks above where Peck was working, and subject him
to danger of injury. A fortiori, if the master and servant theory should be shown to be the
correct theory of the case, Woomack or his agent would have the right to remove one servant
working with another servant, if the latter, through carelessness, subjected the former to the
risk of injury.
13. As we view this case, paragraphs VII, VIII, IX, X and XI would be equally applicable
whether the independent contractor relationship theory or the master and servant theory be
ultimately found to be the correct theory of the case. And, in our view, the words in paragraph
II of the amended complaint, engaged the services, would as properly apply to the
establishment of a contractor relationship as they would to the establishment of the
relationship of master and servant.
Consequently, we find, and hold, that sufficient facts have been alleged in plaintiff's
amended complaint to constitute a cause of action under either of such two of the
above-mentioned theories.
The further questions with which we are now confronted are:
1. Was the amended complaint subject to general demurrer because of the effect of the
alternative pleading?
2. If not, was the amended complaint subject to special demurrer upon the ground of
uncertainty, or may the alternative pleading be justified because of the inequality in the
positions of the respective parties, it being apparent that the facts of the negotiations and of
the transaction which resulted from such negotiations and out of which the relationship of
Woomack and Heffler arose were peculiarly within the knowledge of the defendant,
Woomack or his agent?
3. Was it essential to specifically and expressly allege in the amended complaint that the
acts of Ruble in employing or engaging the services of Heffler and in connection with the
performance of the contract {if there was a contract), or the performance of the work {if
there was not a contract), were within the scope of his authority, or was it sufficient to
show implied authority by alleging that Ruble was the agent of Woomack and was the
manager of the Pioneer Hotel during all of the time mentioned in the amended complaint
{as has been alleged by plaintiff in the instant case)?
employing or engaging the services of Heffler and in connection with the performance of the
contract (if there was a contract), or the performance of the work (if there was not a contract),
were within the scope of his authority, or was it sufficient to show implied authority by
alleging that Ruble was the agent of Woomack and was the manager of the Pioneer Hotel
during all of the time mentioned in the amended complaint (as has been alleged by plaintiff in
the instant case)?
14. The common-law rule against duplicity in pleading is one of the rules tending to
produce singleness or unity of the issues, that the adversary may be apprised, with certainty,
of the theories and issues he is called upon to meet. Illustrative of the application of the rule,
it is stated, in 41 Am.Jur., on page 319, in sec. 44: His pleading is double within this rule
where it joins in one and the same count different grounds of action of different nature, or of
the same nature, to enforce a single right to recovery; or where it is based on different theories
of the defendant's liability.
In support of this statement in the text, cases are cited, in footnotes 12 and 13, from
Georgia, Missouri, West Virginia, Washington, Montana, Texas and Utah.
This rule against duplicity in pleading is the basis for holding the pleading bad, upon
demurrer, where the averments are in the alternative, and the allegations in support of one of
the alternative theories are insufficient to constitute a cause of action upon that theory. See 41
Am.Jur. p. 317, sec. 41, and the cases cited in footnotes 10 and 11.
15. Counsel for defendant in the instant case have argued that the alternative averments
are bad and subject to general demurrer because the averments in support of the independent
contractor theory are, in their view, insufficient to establish liability, and, hence, the entire
pleading must fail. But we have found that the averments under that theory are sufficient, for
reasons which we have stated, to constitute a cause of action.
And we have found likewise as to the averments of the amended complaint properly
applicable to the master and servant theory. It follows, therefore, that the principle applicable
is that stated in said sec. 41, page 317, as follows: Where both alternatives are good in
substance, the pleading is not subject to a general demurrer. (Citing Doyal v. Russell, 183
Ga. 518, 189 S.E. 32). Indeed, where the only effect of such allegation is to make the
pleading uncertain, the remedy is by motion or special demurrer. (Citing cases from
Minnesota, Oklahoma and Georgia.)
The court below merely sustained the demurrer, without specifying whether the ruling was
directed to the general demurrer, the special demurrer, or both.
In volume 1 of Bancroft's Code Pleading, Practice and Remedies (Ten-yr. Supp.), sec. 180,
p. 98, it is stated: Sec. 180. Inconsistency Between Counts.According to some courts,
inconsistency between alternative counts may not be attacked by demurrer since each count
stands on its own allegations, unaffected by those contained in the other counts.
In support of the text, the following California cases are cited: Penziner v. West American
Finance Co., 133 Cal.App. 578, 24 P.2d 501; Little v. Union Oil Co., 73 Cal.App. 612, 238 P.
1066.
In 21 Cal.Jur., p. 108, sec. 69, it is stated: Sec. 69. Defects Not Reached By General
Demurrer.A general demurrerthat is, a demurrer upon the ground that the complaint does
not state facts sufficient to constitute a cause of actiondoes not reach defects made grounds
of special demurrer, such as want of capacity to sue, misjoinder of causes of action,
misjoinder of parties, and unintelligibility, ambiguity or uncertainty.
In support of the text, many cases are cited, in footnote 18.
16. As our Nevada Civil Practice Act was originally adopted from the California Code of
Civil Procedure, the California cases dealing with procedural questions are properly entitled
to great weight by the courts of this state. And in 21 Cal.Jur., p.
properly entitled to great weight by the courts of this state. And in 21 Cal.Jur., p. 126, sec. 81,
it is stated: Of course the judgment rendered will be reversed upon appeal where the
demurrer sustained is general, and the complaint in effect states a cause of action. (Citing
Swain v. Burnette, 76 Cal. 299, 18 P. 394.)
17. In answer to our question No. 1 above, we feel constrained to hold, in accordance with
the California authorities and the great weight of authority elsewhere, that the amended
complaint in the instant case was not subject to general demurrer because two divergent
alternative theories are presented therein, as sufficient facts were alleged to constitute a cause
of action under either of such theories.
To determine whether or not the special demurrer should have been sustained upon the
ground of uncertainty, because of the pleader having indulged in averments supporting
alternative theories different, but not necessarily conflicting, we must bear in mind that the
parties, Peck, the employee or workman, on the one hand, and Woomack or his agent, Ruble,
and Heffler, on the other, were not in an equal position to know the facts as to what transpired
at the time of the business transaction between Woomack, or his said agent, and Heffler,
which resulted in the relationship between Woomack and Heffler, the nature of which is the
subject of the present controversy. There is nothing to show that Peck was present upon that
occasion, and it is unlikely he knew at the time the amended complaint was prepared, or has
known since, any facts or circumstances indicating what then transpired, or what kind of
relationship was intended by the parties, or resulted from their conferences and negotiations,
except what he had been told. Under such circumstances, if compelled to elect between two
possible or probable theories before becoming cognizant of the actual facts, from the
evidence to be adduced at the trial, the plaintiff would be placed at a great disadvantage. His
choice would be merely guesswork on his part, which might well prove fatal to his cause,
however just it may be, if he happened to guess wrong and adopt a theory which, upon
the facts being adduced at the trial, was subsequently shown to be untenable.
merely guesswork on his part, which might well prove fatal to his cause, however just it may
be, if he happened to guess wrong and adopt a theory which, upon the facts being adduced at
the trial, was subsequently shown to be untenable. No great disadvantage to the defendant
appears probable by permitting alternative pleading by the plaintiff under such circumstances.
The defendant, knowing the facts, can readily, in his pleading, adapt himself to the task of
answering the alternative pleading, by denying or moving to strike the allegations pertaining
to the theory which he knows to be incorrect, and by pleading such defenses as he may have
to the allegations pertaining to the correct theory. At the time of the trial it would become
apparent, from the evidence, which of the two theories, if either, was proved sufficiently to
justify a verdict or judgment for the plaintiff. Upon one of the theories being sufficiently
proved to be the correct theory, the averments of the pleading shown to be in accord with that
theory as thus established by the evidence would be accepted, in support of the verdict, or
findings and judgment, and the averments supporting the incorrect theory rejected, as
redundant and as surplusage.
18. In a situation such as that with which we are confronted in the instant case, the rule or
principle which we believe to be the better rule and sustained by the weight of modern
authority is clearly and ably stated by the learned author of the treatise on pleading (from
which we have hereinabove quoted), in 41 Am.Jur., sec. 42, pp. 317, 318, as follows: Sec.
42.Modification Of Rule.The rule against pleadings in the alternative has undergone
considerable modification. In many jurisdictions the controlling practice provisions recognize
or authorize the right of a pleader to aver statements of claim alternatively or hypothetically,
and it seems generally to be recognized that a party who is uncertain as to the grounds of his
claim or defense may state his cause of action or defense in whatever different ways may
be necessary to meet possible proof.
of action or defense in whatever different ways may be necessary to meet possible proof.
Thus, where the exact relations existing between the defendants at the time the cause of
action arose are not definitely known to anyone but themselves, and for this reason the
plaintiff is doubtful about the particular facts which he can establish on the trial, he is allowed
to plead alternative allegations, and a like rule applies where the pleader has no knowledge as
to which of two sets of facts should be alleged, and the opposite party would be equally liable
under either. Of course, an immaterial inconsistency between averments will be disregarded.
In footnote 17 to the text, attention is directed, as showing the modern trend, to rule 8(e)
(2) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, which
provides a party may set forth two or more statements of a claim or defense alternately or
hypothetically, either in one count or defense or in separate counts or defenses.
The following cases are cited, in footnotes 18 and 19, in support of the text of said section
42, pages 317, 318, of 41 Am.Jur.: Culver v. Metropolitan Life Ins. Co., 36 Del. 345, 175 A.
768, citing R.C.L.; Floyd v. Patterson, 72 Tex. 202, 10 S.W. 526, 13 Am.St.Rep. 787;
Annotation 51 L.R.A., N.S., 642; Annotation 50 L.R.A., N.S., 12; Heitzman v. First Nat.
Bank, 83 Colo. 476, 266 P. 213, citing R.C.L. See, also, 49 C.J. pp. 378, 379, and the cases
therein cited.
19. We believe, therefore, that the alternative pleading in the instant case was permissible
under the exception to the general rule, because of very great difference in the situation of the
parties with respect to the degree of knowledge possessed respectively by them as to what
occurred between Woomack or his agent and Heffler, resulting in a certain relationship
between Woomack and Heffler, and as to the nature of that relationship. It follows that the
answer to our second question above propounded is that the special demurrer, upon the
ground of uncertainty by reason of the alternative averments of the amended complaint,
should have been overruled.
propounded is that the special demurrer, upon the ground of uncertainty by reason of the
alternative averments of the amended complaint, should have been overruled.
20. The question remaining for determination is, in substance: Was the plaintiff required
to plead more specifically that the action by Ruble, the alleged agent of Woomack, was
within the scope of Ruble's authority? It is specifically alleged in paragraph II of the amended
complaint that at all the times mentioned in the amended complaint Robert A. Ruble was the
agent of Burton V. Woomack, and the manager of the Pioneer Hotel. The Pioneer Hotel is the
building in connection with which terra cotta flues were to be installed, reconstructed and
encased within a brick wall, by Heffler, either in the capacity of independent contractor, or of
employee. Doubtless, due to the age of the building and its condition, it could well have been
foreseen that a condition of emergency might develop, because of which, in order to prevent
fire, speedy action to install terra cotta flues and to reconstruct same and encase same in a
brick wall (which the arrangement with Heffler contemplated) might suddenly become
necessary. It is reasonable to believe such condition was foreseen by the owner, Woomack,
and that in constituting Ruble his agent, as alleged, and in making him manager of his hotel,
that he intended to confer upon Ruble, as such agent, authority to do whatever might be
reasonably necessary in such an emergency. Besides, such duties and authority are
compatible, we believe, with the usual duties and authority of the manager of a hotel. In fact,
it is our view that Ruble, as the agent of Woomack, bearing in mind the probable emergency
nature of the work, had such authority virtute officii, and that the allegation that Ruble was
the agent of Woomack and manager of his hotel was a sufficient allegation that Ruble had
implied authority, as such manager, to enter into a contract with, or to employ, Heffler to do
the work which it is alleged in the amended complaint he was engaged to do.
alleged in the amended complaint he was engaged to do. The rule is stated in 2 C.J. 643, as
follows: It will be sufficient to bind the principal for acts or contracts of the agent that they
were reasonably necessary to keep the property in good repair or the business a going
concern, or to protect the interests confided to the management of the agent; * * *. See, also,
2 C.J., Agency, sec. 103.
21, 22. In the instant case, besides the allegation in paragraph II of the amended
complaint, above mentioned, that during all the times herein mentioned, one Robert A.
Ruble was the agent of defendant Burton V. Woomack and the manager of the said Pioneer
Hotel, the plaintiff alleged also, in the same paragraph II, that sometime prior to the 7th day
of January, 1947, the said agent engaged the services of defendant William J. Heffler to
install terra cotta flues, etc. There can be no serious doubt that the pleader intended to allege,
and that the allegation fairly conveys the idea, that Ruble, as such agent, engaged the services
of Heffler. If so, he was holding himself out as having the authority to do what he was then
doing, namely, engaging the services of Heffler, and he was purporting to exercise such
authority and act within its scope. This allegation appears sufficient at least to authorize proof
of the agent's authority. A person is presumed to do his duty and to act regularly and within
the scope of his authority, until the contrary appears. Jones on Evidence in Civil Cases, vol. 1,
sec. 48, p. 82; 31 C.J.S., Evidence, sec. 150, p. 840.
This presumption, coupled with the facts alleged in said paragraph II of the amended
complaint, rendered it unnecessary for plaintiff to plead more. The duty of pleading would
thereupon devolve upon the defendant to meet this presumption, by pleading in his answer,
by way of defense, that the agent, Ruble, was not so authorized, or had acted in excess of his
authority, if such be the fact.
We have considered the cases of Stewart v. Lafoe, 194 Ky. 655, 240 S.W. 57; Galveston,
H. & S. A. Ry. Co. v. Henefy, Tex.Civ.App., 99 S.W. 884; and Weatherford, M. W. & N. W.
Ry. Co. v. Crutcher, Tex.Civ.App., 141 S.W. 137, cited by defendant and discussed in his
answering brief.
In Stewart v. Lafoe, supra, facts were not alleged to show that at the time of the accident
the chauffeur was in charge of or operating the car by the authority or with the knowledge of
appellee or within the scope of his employment. He had been previously employed as
chauffeur, but there was no allegation that at the time of the accident he was appellee's
chauffeur, or acting as such. In the instant case it is alleged that at all times mentioned in the
amended complaint Ruble was the agent of Woomack and the manager of the Pioneer Hotel,
and that the said agent engaged the services of Heffler, thus representing that Ruble was then
such agent and acting as such. If the then existing agency had not been alleged in the instant
case, and also action by the agent, of course it could not be presumed that Ruble was acting
within the scope of his employment. The opinion in Stewart v. Lafoe, supra, while reciting,
among other deficiencies, the lack of an allegation that the action of the chauffeur was within
the scope of his employment, does not state that such allegation would have been necessary
had the essential allegations of agency and action as agent been present. So we do not deem
the case in point.
In Galveston, H. & S. A. Ry. Co. v. Henefy, supra [99 S.W. 885], it was alleged that
appellee was acting within the scope of his duties, then other allegations followed which
disclosed that Means, in throwing an alleged piece of ice off of the train and striking appellee
acted beyond the scope of his duties, and this, in effect, refuted the former allegation that he
had acted within the scope of his authority. So it was not a question of the effect of the
absence of an allegation that he acted within the scope of his employment which was
decided but that, it appearing from the latter allegations that he acted beyond the scope
of his duties, it followed, as a matter of substantive law, that plaintiff had no cause of
action.
within the scope of his employment which was decided but that, it appearing from the latter
allegations that he acted beyond the scope of his duties, it followed, as a matter of substantive
law, that plaintiff had no cause of action. Eliminating dicta, the point actually decided was not
similar to the point involved in the instant case.
The other Texas case cited by defendant, namely, Weatherford, M. W. & N. W. Ry. Co. v.
Crutcher, supra, appears to be in point and to hold, in effect, that the failure to allege in the
petition that the servant acted within the scope of his employment rendered the petition
subject to general demurrer. There are many authorities, however, which hold otherwise. The
Texas courts are not entirely consistent in their decisions upon this question. In
Jackson-Foxworth Lumber Co. v. Hutchinson County, Tex.Civ.App., 88 S.W. 412, there is
no allegation that the agent acted within the scope of his authority, or employment, but it was
held, in effect, that where, in an action against a county, the petition alleged that plaintiff
furnished defendant, at the instance and request of the county, acting through a specified
agent, certain materials, for which defendant obligated itself to pay, it stated a cause of action
good against a general demurrer, inasmuch as it authorized proof of the agent's authority.
23. There is some conflict in the authorities, but we believe the better rule is indicated by
the following statement in 2 C.J., pp. 905, 906: Where it is regarded as only necessary to
aver the act of an agent as the act of his principal, without alluding to the fact of agency, a
general allegation that the act was done by defendant is held to be in effect, among other
things, an allegation that the agent had authority to act in the premises. Likewise, where
agency is alleged, a general allegation is sufficient, without averring that the agent had
authority to act in the premises, that being regarded as an averment of a conclusion of law, or
at best an unnecessary repetition of a fact already stated. See, also, the cases cited in
footnotes S7, SS, S9 and 90; 3 C.J.S., Agency, sec.
cases cited in footnotes 87, 88, 89 and 90; 3 C.J.S., Agency, sec. 312.
In Singer Sewing Mach. Co. v. Phipps, 49 Ind.App. 116, 94 N.E. 793, it was held, in
effect, that a complaint need not allege facts peculiarly within defendant's knowledge, such as
the extent of the authority of defendant's agents. In the annotation in footnote 89 of 2 C.J., p.
906, the following is stated in relation to the case of Childress v. Emory, 8 Wheat., U.S., 642,
5 L.Ed. 705: Although it may be technically more accurate to aver that the principal by his
agent, in that behalf duly authorized, committed the act pleaded, yet such an averment is not
indispensable. (Emphasis added.) See, also, 3 C.J.S., Agency, sec. 312.
It is our view that the burden of pleading as to the authority of an agent, its scope and its
extent, should be, as pointed out in the Indiana case of Singer Sewing Mach. Co. v. Phipps,
supra, upon the party presumably possessing superior knowledge in regard thereto. Following
that principle, the soundness and justice of which can scarcely be seriously questioned,
plaintiff should be required to bear the burden of pleading, in the first instance, as to the
authority, and the scope thereof, of plaintiff's agent, and defendant likewise as to the authority
of defendant's agent, and its scope or extent.
We conclude, therefore, that the district court erred in sustaining defendant's demurrer.
The demurrers, both general and special, should have been overruled. This error compels
reversal.
We believe the foregoing determinations and conclusion we have reached conform to the
clear mandate of sections 8621 and 8622, N.C.L.1929, which very clearly command liberality
in the construction of pleadings, and require our courts to disregard errors or defects in the
pleadings or proceedings which do not affect the substantial rights of the parties.
It is our decision and order that the order of the district court sustaining defendant's
demurrer, and that honorable court's judgment against plaintiff and in favor of defendant
for his costs, be, and the same are hereby, reversed, and the cause remanded for such
further proceedings, in accordance herewith, as are requisite and appropriate in the
premises.
honorable court's judgment against plaintiff and in favor of defendant for his costs, be, and
the same are hereby, reversed, and the cause remanded for such further proceedings, in
accordance herewith, as are requisite and appropriate in the premises.
Badt, J., concurs.
Chief Justice Edgar Eather, because of illness, did not participate in the preparation or
rendition of the foregoing opinion.
____________
65 Nev. 215, 215 (1948) Gardella v. Santini
MARY ELIZABETH GARDELLA as the Executrix of the Estate of JOHN QUESTA, also
known as JOHN A. QUESTA, JOHN ADAM QUESTA, and J. A. QUESTA, Deceased,
Appellant, v. JAMES SANTINI, Executor of the Estate of RAEPHEL GAMINARA, also
Known as RAFFAELE GAMINARA, Deceased, Respondent.
No. 3508
May 12, 1948. 193 P.2d 702.
1. Gifts.
Gift inter vivos must be absolute and irrevocable to be valid.
2. Trusts.
Action of donor in giving money to donees, accompanied by statement that he was giving the money to
donees as a gift in the knowledge that he could trust donees, that he could depend on them to care for him
if he should get sick, and that, if he should die, donees would give him a decent burial, created a trust.
3. Trusts.
Where donor gave money to donees with statement that he was giving them the money as a gift, in
knowledge that he could trust them, that he could depend on them to care for him if he got sick and to give
him a decent burial if he should die, and concluding with direction that if there were any money left out of
the gift it should be divided between donees, beneficial enjoyment of the money by donees was postponed
until all expenses including bills of decent burial had been paid regardless of time of vesting of title to
money.
4. Trusts.
Settlor was required to transfer or deliver over all control of and dominion over money, and divest
himself of legal and equitable title thereto, to create a valid trust.
5. GiftsTrusts.
Delivery, either actual or constructive, is required in order to dispose of personal property by gift or in
trust or by gift coupled with a trust.
6. Trusts.
Where donor went with donee to basement of donee's house and selected spot for burial of money, with
the knowledge that house was owned by donees and under their exclusive dominion and control, there was
adequate delivery to donees, to create a valid trust.
7. Gifts.
Trust created by delivery of money, with statement that settlor reposed trust in donees, that the money
was given as a gift in the knowledge that donees would care for settlor, could be coupled with gift inter
vivos, without impairing absolute, unconditional characteristic of such gift and without interfering with
immediate investing in donees of both legal and equitable title to the money.
8. Gifts.
Gift inter vivos, coupled with trust requiring donee to pay to donor's care and support, expenses of illness
and funeral expenses, and whatever is left, if anything, to go to donees beneficially, is valid, and such gift is
not rendered conditional by trust provision nor vesting of donee's property postponed.
9. Gifts.
Where establishment of gift depends upon testimony of interested parties, evidence must be clear and
convincing, especially in absence of written evidence.
10. Gifts.
Evidence was sufficiently clear and convincing to establish gift inter vivos subject to trust provisions,
though the only direct evidence to establish gift was testimony of donees.
Proceeding by James Santini, executor of the estate of Raephel Gaminara, also known as
Raffaele Gaminara, deceased, against Mary Elizabeth Gardella, as executrix of the estate of
John Questa, also known as J. A. Questa and John Adam Questa, deceased, to obtain property
allegedly belonging to petitioner's estate.
From orders in favor of petitioner, the defendant appeals. Reversed.
William S. Boyle, of Reno, for Appellant.
R. S. Flanary, of Sparks, for Respondent.
OPINION
On August 9, 1947, James Santini, as executor of the estate of Raephel Gaminara, also
known as Raffaele Gaminara, deceased, caused to be filed, in Department 2 of the Second
judicial district court of the State of Nevada, in and for the County of Washoe, a petition
alleging, in substance, petitioner's appointment and qualification as executor, his demand
upon John Questa to deliver to him all money and property belonging to the estate, and that
the said Questa refused and neglected to do so, claiming that the property of the estate (sic)
was given him by the decedent.
On August 26, 1947, John Questa answered such petition, denying that he had any money
in his possession belonging to the estate, and alleging affirmatively that the decedent
delivered all his money to John Questa as a gift for him to keep and divide with his sister
(Mary Gardella) with the further instructions that John Questa pay all his hospital and doctor
bills, and funeral bills in the event of sickness and death, and alleging further, that in
pursuance to said gift and instructions, Mr. Questa did place the decedent in a hospital and
pay all bills, and hire the best obtainable medical care and doctors, and the remaining money
he has kept to be divided between himself and sister, and to pay any other bills owing by
decedent.
On August 9, 1947, pursuant to said petition, a citation was issued, citing and requiring
John Questa to appear before the judge of said court, on August 11, 1947, to show cause, if
any, why he should not surrender to James Santini, as such executor, any money or property
of the decedent in his, Questa's possession or under his control, and to answer under oath
concerning same.
The said Questa, with his attorney, William S. Boyle, Esq., duly appeared, pursuant to
such citation, on said 11th day of August, 1947, before said court; also the petitioner, James
Santini, and his attorney, R. S. Flanary, Esq., were then and there present. Good cause
appearing, it was ordered by the court that the hearing be continued until August 26, 1947, at
10:30 A. M.
The hearing was had on August 26 and 27, 1947. James Santini, Eleanor Mortenson and
Catherine Fino testified on behalf of petitioner. John Questa was called by petitioner as an
adverse witness, and testified as such, and was thereafter called and testified on his own
behalf; also Mary Gardella and Dr. Antonio Miniggio were called as witnesses by petitioner,
and testified. After hearing the arguments of respective counsel, the court, the Hon. A. J.
Maestretti, district judge presiding, made the following order:
The court directs John A. Questa, designated in the petition, to deliver to the executor the
residue of the unexpended money, between $11,783.50 and $17,365.00 whatever the sum
may be, to be held by the executor to be disposed of in accordance with the disposition of the
estate.
The record does not disclose that the honorable District Judge stated any reasons for the
order. The order not having been complied with, the court, on the 10th day of September
1947, made a further order, reciting the failure of John Questa to comply with the order * * *
made on August 27, 1947, and to pay to James Santini, the Executor of the above entitled
estate the sum of $5,601.50, which the said John Questa has in cash in his possession," and
ordering "that you, John Questa, do forthwith pay to E. H. Beemer, Clerk of the Second
Judicial District Court of the State of Nevada, the sum of $5,601.50 which has been
adjudged to be the property of the estate of Raephel Gaminara, deceased."
cash in his possession, and ordering that you, John Questa, do forthwith pay to E. H.
Beemer, Clerk of the Second Judicial District Court of the State of Nevada, the sum of
$5,601.50 which has been adjudged to be the property of the estate of Raephel Gaminara,
deceased. It was further ordered, that the said E. H. Beemer, retain said sum in his hands,
pending the due prosecution of any appeal herein from the order of this Court heretofore
made on August 27, 1947.
From the said above described order made August 27, 1947, and from an order dated
September 8, 1947, denying John Questa's motion for a new trial, and from the said
above-described order made September 10, 1947, the said John Questa has appealed to this
court.
Because of the fact that the record on appeal failed to disclose any reason or findings or
conclusions, either factual or as to matters of law, by which this court could determine the
legal basis or bases for said above-mentioned orders, this court, on April 2, 1948, respective
counsel having stipulated their approval, requested the Hon. A. J. Maestretti, said district
judge, to furnish to this court and respective counsel a memorandum or statement in
clarification of his decision and said orders based thereon, and particularly requested him to
answer the following questions:
1. What essential facts involved in such proceeding did the District Court find to have
been sufficiently proved by the evidence?
2. In particular, did the District Court find that the testimony of John Questa and Mary
Gardella, respectively, in relation to a gift of certain money to said Questa and his sister,
Mary Gardella, coupled with a trust to defray the expenses of the last illness, hospitalization,
etc. and the funeral expenses of Raephel Gaminara, also known as Raffaele Gaminara, was
true or untrue, or partly true and partly untrue? If the Court found such testimony to be partly
true and partly untrue, please indicate to what extent the District Judge believed such
testimony, and to what extent he disbelieved same.
believed such testimony, and to what extent he disbelieved same.
3. If the District Judge did believe the testimony of John Questa and Mary Gardella to the
effect that a gift was made to them of such money, please indicate upon what legal conception
or theory did the District Court reach the conclusion that the $5,601.50 involved should be
ordered turned over by John Questa to James Santini, executor of the Gaminara Estate.
1

Pursuant to such request and in compliance therewith, Judge Maestretti, on April 16, 1948,
submitted the following memorandum or statement:
Now comes A. J. Maestretti, District Judge of Department 2 of the Second Judicial
District Court of the State of Nevada, in and for the County of Washoe, who presided at the
hearing of the matter now before the Supreme Court, and pursuant to the request of the said
Supreme Court, the said District Judge submits herewith the requested memorandum or
statement referred to in the order of April 2, 1948, as follows:
Answering the suggested particulars by the number and in the order in which they are
contained in said order: 1. The Court found from the evidence of the various witnesses, to the
satisfaction of the Court, that the money involved in the proceeding was the property of the
deceased and that it was held in trust by John Questa for the benefit of the deceased.
2. The Court finds that the testimony of John Questa and Mary Gardella was insufficient
under the law to create the transaction into a gift.
____________________

1
Judge Maestretti, during such proceedings, indicated the impropriety of attempting to try or determine title
to property in such a proceeding in the absence of formal pleadings and issues, but finally did proceed to the
extent that he made the orders above mentioned and described. When the proceeding came to us on appeal,
therefore, the record, of course, did not contain any such pleadings or disclosure of issues. In the absence of
same and in view of the failure of Judge Maestretti to state any reasons for his decision and said orders resulting
therefrom it became impractical for us to proceed with the preparation of this opinion without requesting further
information and clarification.
create the transaction into a gift. See answer of John Questa on page 18, line 19 of the
transcript in which Questa replied to the question put to him, Why didn't you put that amount
of money in the bank, Mr. Questa?' Because the man didn't trust the banks.' The Court feels
that if the deceased had made a gift of the money to Questa and Gardella, that it wouldn't
have made any difference to him what was done with the money, and the question of his trust
in the banks could not possibly bind Questa or Gardella.
The Court found that Gaminara gave the money to Questa and Gardella for the purpose of
safety as disclosed in the testimony of Gardella when she testified that Gaminara brought the
money to the house and expressed distrust of the banks; and the very language of her
testimony indicates to the Court that he did not give it to them as a gift but that he asked them
to keep it and help bury it in the basement on account of his lack of trust in the bank. See the
testimony of Gardella beginning at line 3, page 67, in which is disclosed the lack of trust in
the banks by Gaminara, and the further fact that beginning at line 20 she states that he
counted it out on the dining room table, and the question arises in the mind of the Court what
reason Gaminara would have for counting it out if he was making a gift to Questa and
Gardella. This question remains unanswered, and further, continuing in the same answer, she
said that Gaminara and John went in the basement and buried it in the basement.
3. The Court did not believe that Gaminara ever made a gift of the money to Questa and
Gardella; if he did, he would not have made the order directing Questa to surrender the
money to the Executor.
Respectfully submitted in compliance with the order heretofore made on April 2, 1948.
We confess it is difficult for us, even in the light of Judge Maestretti's memorandum or
statement, to determine with certainty whether the learned judge disbelieved the testimony
of John Questa and Mary Gardella, or whether he believed such testimony but for legal
reasons considered same insufficient under the law to establish or create a gift.
disbelieved the testimony of John Questa and Mary Gardella, or whether he believed such
testimony but for legal reasons considered same insufficient under the law to establish or
create a gift.
1. Both the answers to our questions 2 and 3 would indicate the latter, and, as a matter of
fairness to appellant, we believe that, in the absence of any statement on the part of Judge
Maestretti that he did not believe said testimony, we should assume that he did believe it, but
did not believe the delivery sufficient, or did not believe that a gift inter vivos, which must be
absolute and irrevocable to be valid, could coexist with a trust created in the same transaction,
or did not believe that, in view of a trust requiring until or beyond the death of the deceased
for its complete fulfillment, and, until then, the subject matter of the gift being contingent and
in an amount unascertained, that there could be any vesting of the donated property until
death, and that then the question of testamentary disposition would defeat it, and that hence,
for some or all of these legal reasons, the Judge considered the evidence insufficient to
establish the essential legal basis for a gift. Judge Maestretti's answers and comments will be
further considered and discussed herein after we have presented essential portions of the
testimony and treated certain questions of law which are more or less involved or may be
deemed to be material.
What are the essential facts as established by the evidence? It is not controverted that the
deceased, Gaminara, who was about 81 years of age when he died, and John Questa and
Questa's sister, Mary Gardella, had been close friends for many years; in fact, Questa's
testimony that Gaminara worked for his, Questa's father when John was one year old was not
disputed. Neither was there any question raised which would tend to depreciate the extent of
the friendship existing between Gaminara, on the one hand, and Questa and Mrs. Gardella, on
the other.
On one occasion, about forty years ago, Gaminara had an operation on his leg, had a
broken blood vessel, was in St. Mary's hospital in San Francisco for a month, then Mrs.
Gardella and her husband took care of him for four years, before he could work. Thereafter he
worked at ranches in California in the summertime, and was with the Gardellas part of the
time in the winter months. Gaminara had saved some money, and after Mrs. Gardella's
husband died and Gaminara was living in a cabin on Bell Street, in Reno, Mrs. Gardella
suggested he not live longer in a cold cabin, but invest his money in a house. He did this, and
Mrs. Gardella helped him plan the house, which he built by his own labor. She took care of
the paving, the sidewalk, curbing, etc., and paid all the bills for him, including those for
water, taxes, and insurance. The testimony of Questa disclosed that he, too, did many things
for Gaminara. After building the house, however, Gaminara did not live in it, but continued to
live in the cabin on Bell Street.
In 1931 Gaminara had $12,000 in one of the Reno banks, and, while he was digging a
trench for the water company, heard the bank was going to fail, and, according to the
testimony of Mrs. Gardella, also Questa, Gaminara withdrew his deposit of $12,000 from the
bank and brought it to the home of Questa and Mrs. Gardella, and said, according to Mrs.
Gardella's testimony (Tr. 67):
I trust you better than a bank,' and he gave it to me and John * * *. He said, Well, I am
not very well' because he always had a pain around his heart. He said: Well, if anything
happens to me, I know you and John will take good care of me, and whatever is left it is a gift
to you and John, and I know you will do the right thing by me.'
It clearly appears, however, from the testimony of Questa, that Gaminara's words
concerning making the gift of the money to Questa and his sister, Mrs.
gift of the money to Questa and his sister, Mrs. Gardella, were spoken in or about February
1944, about thirteen years after the occasion upon which he brought the $12,000 and turned it
over to them. There is nothing in the evidence to show, except, perhaps, an inference from
Mrs. Gardella's testimony above quoted, nor any claim by appellant of, a gift in 1931, or that
Questa and Mrs. Gardella during such period of thirteen years (1931-1944) held the $12,000
otherwise than merely for safekeeping, or that they had any interest in it other than as mere
bailees for Gaminara. The respondent's attorney, Mr. Flanary, also has subscribed to such
interpretation of the testimony. On pages 4 and 5 of respondent's answering brief it is stated:
The only testimony on this point is that of Questa and his sister; both of whom claim the
alleged gift jointly. The evidence is that just before the Nevada Banks closed in 1931
Gaminara drew his money from the bank where it was on deposit and brought it to the Questa
home for safekeeping. At this time he had Twelve Thousand ($12,000.00) Dollars. Later,
some three years before his death, he brought Four Thousand ($4,000.00) Dollars more to put
with it; the money was counted; then Gaminara and Questa went to the wine cellar, Gaminara
pointed out the place where it was to be buried, behind the cellar door, the money was buried
there; neither Questa or Gaminara ever dug it up, or in any way used it, until after Gaminara
was in St. Mary's Hospital in Reno; and then part of it was used to pay decedent's
hospitalization expenses. The remainder, amounting to Five Thousand Six Hundred One
Dollar and Fifty Cents ($5,601.50) is now claimed by Questa and his sister as a gift. They
testify, in substance, that the decedent, at the time the Sixteen Thousand ($16,000.00) Dollars
was buried, gave' the money to them, that out of it they should pay for his last illness and his
funeral, and that they could have the rest.
Neither Mrs. Gardella, in her testimony, nor Judge Maestretti, in his memorandum and
statement, appear to conceive any separation as to time in relation, particularly, to
statements accompanying the turning over of the $12,000 and, thirteen years later, the
$4,000, or the significance of such difference in time in the happenings on each of these
separate occasions, in determining whether or not a valid gift from Gaminara to Questa
and Mrs.
Maestretti, in his memorandum and statement, appear to conceive any separation as to time in
relation, particularly, to statements accompanying the turning over of the $12,000 and,
thirteen years later, the $4,000, or the significance of such difference in time in the
happenings on each of these separate occasions, in determining whether or not a valid gift
from Gaminara to Questa and Mrs. Gardella was made.
These two events or occasions, thirteen years apart, and what occurred upon each of them,
appear more clearly from the testimony of John Questa than elsewhere. John Questa testified,
in part, as follows:
The Witness. I had Twelve Thousand Dollars of his money.
Mr. Flanary. Q. When he came down to live with you some three years ago? A. No, just
wait a minute.
Q. I want to know when you came into this Twelve Thousand? A. For years he let me
have it. I was holding it.
Q. You received it more than three years ago? A. This Twelve Thousand Dollars Yes.
And after he sold his house, he says, I sold my house,' because he used to live in a cabin in
the back of this house, and he used to have fainting spells, and he found himself fainted on
the floor two different times, so he told me, And the reason I sold my house, I want to move
down with you folks and live with you until I die. You have always been nice to me. You are
the only people I ever trusted here in Reno,' And he brought down the other Four Thousand
Dollars, (for?) which he sold the house, and then I went and got the Twelve Thousand
Dollars, and laid it there on the table, and he added the other Four Thousand Dollars with it,
and there he said, I'm making you a gift, to you and your sister, of this money.'
Mr. Flanary. Q. Then I am to understand you had Sixteen Thousand Dollars of Mr.
Gaminara's money about three years ago, is that right? A. Yes, and when he gave us this
moneymade a gift to ushe says, 'Now you people will take care of me.' * * * He said,
'Here is this money.
Now you people will take care of me.' * * * He said, Here is this money. I am going to give
it to you as a gift.' He says, I know I can trust you people, that I can depend on you, that if I
get sick I will be taken properly care of, and if I die, I know you will give me a decent burial,
and if there is any money left out of this gift, divide it up between yourself and your sister.'
Mr. Flanary. Q. What was done with the money after that? A. I kept it in my possession.
Q. And where? A. In the basement, my cellar.
Q. Why didn't you put that amount of money in the bank, Mr. Questa? A. Because the
man didn't trust the banks.
Q. Was he still controlling the Sixteen Thousand and what you did with it at that time? A.
He had given it to me. When a person gives you a gift, they have no more control over it.
Q. Do you have any faith in banks, Mr. Questa, yourself? A. I don't know very much
about them.
Q. Where was the money placed? Was it buried? A. Buried in a can.
Q. Where was it buried? A. In my cellar.
Q. What location? A. By the door there when you enter the cellar, to the right.
Q. So then you did keep the money there from the time it was given to you by Mr.
Gaminara until he passed away or not? Did you keep it in the same place all the time? A. In
the same place until he was taken to the hospital.
Q. That was in September, 46? A. Now wait a minute. Two or three or four days later,
after he was up in the hospital, he told me, Go down in my cabin and you look in a drawer
down there. You will find some money there in a can.' All right. I went down and looked
where he told me, and there was Thirteen Hundred Dollars there, and Fifty-five Dollars in a
purse, I found, and Ten Dollars in silver in a drawer, and then he asked me if I had found it,
and I told him yes, and he said, 'You use it to pay the expenses up here.' And I start using
it.
said, You use it to pay the expenses up here.' And I start using it.
Q. You did pay his expenses at the hospital from time to time? A. I did pay, but that
didn't go very far. I soon started spending some of that gift he had given us, because I think
the man was entitled to good treatment for being a long life friend.
Q. Now after the Sixteen Thousand was placed by you in the cellar, did Mr. Gaminara go
in there and get any of the gift at any time? A. No.
Q. And you say you then started to use the Sixteen Thousand to pay his hospital and
medical expenses? A. Yes.
Q. Can you tell me approximately how much you spent in hospital and medical expenses
from the time he was sick in September, 1946, to the time he died? A. Approximately
between Twelve and Thirteen Thousand Dollars. There is one bill outstanding yet.
2. Upon the occasion when Gaminara brought the $4,000 to Questa's house, and Questa
brought out the $12,000, he had been keeping for Gaminara for thirteen years, and placed it
on the table, and Gaminara placed the $4,000 with it and said (according to Questa's
testimony), Here is this money. I am going to give it to you as a gift, and then proceeded to
state the language expressing trust and confidence, the purposes for which the money was to
be used (as above quoted from the testimony), and, finally, what was to be done with the
remainder of the money, if any remained, was a trust created? We think that there was. The
words used were more than mere precatory words of recommendation, requests or hope; they
were strong expressions of confidence and trust, used because of the importance to Gaminara
of the objectives outlined, namely, proper care if he became ill, and a decent burial if he
should die, and the need of trustworthy persons to accomplish these objectives, and the
assurance that they whom he had selected possessed those qualities. It does not appear
reasonable to believe that Gaminara was willing that these objectives, so vitally
important to him and for which he had the money to pay, should be left merely in the
category of moral obligation.
reasonable to believe that Gaminara was willing that these objectives, so vitally important to
him and for which he had the money to pay, should be left merely in the category of moral
obligation. That he did not so intend, but intended to impose upon Questa and Mrs. Gardella
a trust obligation, is made abundantly clear by Gaminara's language (as testified to by
Questa), and if there is any money left out of this gift, divide it between yourself and your
sister. This plainly implied that Questa and his sister were not to use any money of their gift
until all expenses of Gaminara's proper care, if he became ill, and of his funeral, if he died
during the lifetime of Questa and his sister, had first been paid from the trust fund.
3. Regardless of the time of the vesting of the title to the money which was the subject
matter of the gift, the beneficial enjoyment of same by the donees, Questa and Mrs. Gardella,
was postponed until all such expenses had first been paid, including the expenses of a decent
burial. The context of the words bestowing the gift thus clearly imposed the trust, by the very
limitation of the right to the beneficial enjoyment which the last clause (as above quoted)
expresses.
Many authorities pertaining to the subject of precatory trusts, in its various phases, are
collected in numerous A.L.R. annotations, among which we cite the following: 49 A.L.R. pp.
10-103; 70 A.L.R. pp. 326-334; 107 A.L.R. pp. 896-924. See, also, annotation in 23 A.L.R.
pp. 1500-1550, on subject, Degree or Intensity of Parol Proof Necessary to Establish a
Trust.
We believe it is clearly established that Gaminara intended to establish a trust obligation
coupled with the gift of the $16,000 to Questa and Mrs. Gardella, and they accepted such gift
subject to such obligation.
The honorable district judge so concluded. He so expressed himself on page 1 of his said
memorandum or statement, as follows:
The Court found from the evidence of the various witnesses, to the satisfaction of the
Court, that the money involved in the proceeding was the property of the deceased and
that it was held in trust by John Questa for the benefit of the deceased."
witnesses, to the satisfaction of the Court, that the money involved in the proceeding was the
property of the deceased and that it was held in trust by John Questa for the benefit of the
deceased. (Emphasis added.)
But, as has hereinabove been stated, Judge Maestretti also found that the testimony of
John Questa and Mary Gardella was insufficient under the law to create the transaction into a
gift, and, in order to demonstrate its insufficiency and inconsistency (as he conceived them
to be), the learned jurist quoted the question put to Questa by Mr. Flanary, Why didn't you
put that amount of money in the bank, Mr. Questa? and Questa's answer, Because the man
didn't trust the banks. Then Judge Maestretti commented as follows:
The Court feels that if the deceased had made a gift of the money to Questa and Gardella,
that it wouldn't have made any difference to him what was done with the money, and the
question of his trust in the banks could not possibly bind Questa or Gardella.
It is apparent from the foregoing that Judge Maestretti, even though he found the existence
of a trust in favor of Gaminara, which was ample reason why Gaminara's views as to not
trusting the banks and his wishes that the money be not deposited in a bank should be
respected, also was of the opinion that the effect of the existence of the trust was to preclude
entirely the existence of a gift. This view of the learned judge is further manifested by his
statement on page 2 of his memorandum or statement, as follows:
See the testimony of Gardella beginning at line 3, page 67, in which is disclosed the lack
of trust in the banks by Gaminara, and the further fact that beginning at line 20 she states that
he counted it out on the dining room table, and the question arises in the mind of the Court
what reason Gaminara would have for counting it out if he was making a gift to Questa and
Gardella. This question remains unanswered, and further, continuing in the same answer, she
said that Gaminara and John went in the basement and buried it in the basement."
John went in the basement and buried it in the basement.
And in the sentence immediately preceding that above quoted, Judge Maestretti stated:
and the very language of her testimony indicates to the Court that he did not give it to them
as a gift but that he asked them to keep it and help bury it in the basement on account of his
lack of trust in the bank.
4. It seems to us readily apparent that the expressions of Judge Maestretti indicating that
Questa and Mrs. Gardella were entrusted with the money merely for safekeeping, as they had
been for thirteen years with the $12,000, and that Gaminara did not give up control of and
dominion over the money, are inconsistent, not only with the learned judge's finding that
there was a trust as to such money for the benefit of Gaminara, but also inconsistent with the
declaration of Gaminara at the time, as above fully set forth, which clearly disclosed his
intention to place the management and control of the funds in the hands of Questa and Mrs.
Gardella. He was ill, and for that reason came to live with them, fearing a recurrence of his
fainting spells. He undoubtedly wished to relieve himself of the responsibility, particularly, of
arranging for his care and meeting the expenses thereof should he become more seriously ill,
and of arranging for his funeral and the expenses of same should he die. To create a valid
trust (and Judge Maestretti found a trust was created), it was essential that Gaminara transfer
or deliver over all control of and dominion over the money, and that he divest himself of both
the legal and equitable title thereto. In 54 Am.Jur. sec. 34, p. 45, this essential prerequisite is
stated as follows:
It is essential to the creation of an express trust that the settlor presently and
unequivocally make a disposition of property by which he divests himself of the full legal and
equitable ownership thereof.
5, 6. In order to dispose of personal property by gift, or in trust, or by gift coupled with a
trust, there must, of course, be delivery, either actual or constructive.
or in trust, or by gift coupled with a trust, there must, of course, be delivery, either actual or
constructive. In the instant case it is clear that Gaminara, being desirous of creating a trust,
intended to do all things essential to its creation. He went with Questa to the wine cellar or
basement of Questa's house, and selected the spot for the burial of the money, and, together,
they buried it. Gaminara knew he was placing the money in the cellar of a property he was not
occupying and in which he had no interest, but which was not only owned by Questa and
Mrs. Gardella, but was also under their exclusive dominion and control. The key thereto was
theirs, and was kept in the chiffonier in their living room, and no one had the right to use it
but Questa and Mrs. Gardella. There is no evidence that Gaminara ever requested a key. The
fact that Questa testified he would have given Gaminara some of the money had he requested
it is beside the point. Naturally he would have done that, under the circumstances. But Questa
also testified: he had given it to me. When a person gives you a gift they lose control over
it.
We feel constrained to hold, therefore, that there was adequate delivery to Questa and Mrs.
Gardella of the $16,000, and that, contemporaneously, a trust was completely and validly
created.
Reverting to Judge Maestretti's reference to the testimony of Questa that the man did not
trust the banks, given in response to the question as to why he did not deposit the money in a
bank, and to the Judge's reference to counting the money, as an indication that Questa and
Mrs. Gardella did not receive the money as a gift, it is apparent that the learned judge
believed that this recognition or admission by Questa of Gaminara's continuing interest in the
money was so inconsistent with the proper legal conception of a gift that, in view of such
testimony, any such claim of a gift became entirely untenable; that the unconditional,
unequivocal and absolute character of a gift inter vivos could not be reconciled with the
requirements of a trust, the terms of which would necessarily postpone, at least, the
benecial enjoyment of the gift.
could not be reconciled with the requirements of a trust, the terms of which would necessarily
postpone, at least, the benecial enjoyment of the gift. To state such apparent conception in
perhaps more simple language, Judge Maestretti apparently believed that there could, legally,
be no such thing as a gift coupled with a trust. The judge apparently believed that in order to
constitute a gift, Questa and Mrs. Gardella must be given the money absolutely and
unencumbered with a trust; that if a trust were created, the entire equitable title must be
deemed retained by Gaminara, and the legal title held in trust entirely for his benefit and the
benefit of his estate. The authorities, however, do not sustain the learned judge's conception
in that respect.
2

It is possible, also, that Judge Maestretti, in view of the uncertainty of the extent of future
illnesses of Gaminara and the amounts which the trust provisions might require for their
fulfillment, deemed any remainder which Questa and Mrs. Gardella might be entitled to enjoy
under the gift so contingent and uncertain that same, not being ascertainable with certainty
until after the death of Gaminara, could not vest immediately and could not be permitted to
vest upon death occurring, or thereafter upon the payment of funeral expenses having been
completed, for the reason that to permit the latter would be to allow the disposal of property
after death without the required testamentary disposition. This latter conception was
contended for by the respondent.
7. Fortunately, we have found authorities which make clear, we believe, that a trust
such as was created in the instant case may be coupled with a gift inter vivos, without
impairing the absolute, unconditional characteristics of such a gift, and without
interfering with the immediate vesting in the donee of both the legal and equitable title to
the property which is the subject matter of the gift.
____________________

2
It is clear that if a gift which could be upheld occurred upon the occasion when Gaminara brought the
$4,000 and placed it with the $12,000, on the table, in the presence of Questa and Mrs. Gardella, it was a gift
inter vivos, and not a gift causa mortis. The principal elements of a gift causa mortis are entirely absent. The
donor was not, at the time of the gift, in extremis, the gift was not conditioned upon the occurrence of the donor's
death to become completely effective, but, because of the nature of the express provisions, immediate and
completed effectiveness was indicated. The gift, unlike a gift causa mortis, was irrevocable. For a statement of
the distinguishing features between such different kinds of gifts. see 38 C.J.S., Gifts, sec. 4, pages 782, 783.
make clear, we believe, that a trust such as was created in the instant case may be coupled
with a gift inter vivos, without impairing the absolute, unconditional characteristics of such a
gift, and without interfering with the immediate vesting in the donee of both the legal and
equitable title to the property which is the subject matter of the gift.
The case of Reynolds v. Maust, 142 Pa.Super. 109, 15 A.2d 853, 854, is directly in point.
On July 1, 1929, Mrs. Reynolds said to her son, what you have in your hands belongs to
you and that after she was gone he was to pay her funeral expenses. Since April 18, 1929, he
had had possession of the bonds, and was holding them in trust for his mother. He then
prepared a writing, which Mrs. Reynolds signed with her mark, and delivered to him, same
being as follows:
7-1-29
Walker you sell the two bonds I gave you, pay my funeral expense after I am gone, and
the balance remaining belongs to you.
Lida scolds at me often and has taken my bank book and papers.
her
X Mrs. O. F. Reynolds
mk
Witnesses:
W. J. Reynolds
Myra Reynolds
The son, Walker, died about one month after the death of his mother, who passed away
September 23, 1936, intestate, and, therefore, said son had failed to pay the funeral expenses.
The suit was in equity, by the administrator of the mother's estate against the executrices of
the last will and testament of the son, wherein the plaintiff demanded a return of the bonds or
an accounting of the proceeds and income received therefrom. The following is quoted from
page 854 of 15 A.2d from the opinion by Balridge, J.:
The chancellor also found that the son did not occupy any position of supervision over
his mother's affairs; that the gift made seven years prior to her death was her free and
intelligent act, unaffected by undue influence or fraud of any kind; and that the donee
successfully carried the burden of showing a valid gift inter vivos.
any position of supervision over his mother's affairs; that the gift made seven years prior to
her death was her free and intelligent act, unaffected by undue influence or fraud of any kind;
and that the donee successfully carried the burden of showing a valid gift inter vivos. The bill
was accordingly dismissed. This appeal followed.
The appellant contends that the trust agreement of April 18 retained by the mother was
not superseded by the writing of July 1; that it was not to take effect until after her death, and,
therefore, it was testamentary in character; that at most the alleged gift was subject to a
condition which was never performed in the lifetime of her son. A will is the legal declaration
of one's intentions which are to be performed after his or her death. In re Stinson's Estate, 228
Pa. 475, 477, 77 A. 807, 30 L.R.A.,N.S., 1173, 139 Am.St.Rep. 1014; In re Gibson's Estate,
128 Pa. Super. 44, 48, 193 A. 302. If this writing was not to take effect until after the donor's
death, the appellant's contention is sound. On the other hand, if the paper passed the absolute
ownership of bonds immediately to the son, as the chancellor found, although possession had
been previously transferred to him on April 18, it was not a will but a gift inter vivos.
To make a valid gift inter vivos there must be a clear, satisfactory, and unmistakable
intention of the giver to part with and surrender dominion over the subject of the gift, with an
intention to invest the donee with the right of disposition beyond recall, accompanied by an
irrevocable delivery, actual or constructive.' In re Allshouse's Estate, 304 Pa. 481, 156 A. 69,
96 A.L.R. 379.
The writing of July 1, 1929, does not expressly direct nor does it even indicate that
Walker was to wait until the donor's death to dispose of the bonds. He could have done that
forthwith. * * *
We are in accord with the view taken by the chancellor that the writing of July 1, 1929,
was for the purpose of carrying out the intention of the mother to make a present
unconditional gift to her son, thereby to divest herself of all dominion over the bonds and
invest in him complete control over them.
lor that the writing of July 1, 1929, was for the purpose of carrying out the intention of the
mother to make a present unconditional gift to her son, thereby to divest herself of all
dominion over the bonds and invest in him complete control over them. Not only the writing,
but the oral testimony, which indicates that the mother felt Walker did not receive a fair share
of his father's estate, supports the conclusion that it was the intent of the donor to make an
absolute gift unconditional as to delivery and the vesting of title, imposing a trust or an
obligation upon the part of the donee to pay the donor's funeral expenses. While the son,
owing to his death shortly after that of his mother, did not pay the funeral expenses, they were
paid by his executrices.
The Pennsylvania court thereupon quoted from Corpus Juris and from the New York case
of Podmore v. South Brooklyn Savings Inst., respectively, as follows:
A stipulation that the donee shall pay the donor's debts or funeral expenses out of the
property given does not render the gift invalid.' 28 C.J. 697, 117 [38 C.J.S., Gifts, 93]. It
is stated in Podmore v. South Brooklyn Savings Inst., 48 App.Div. 218, 62 N.Y.S. 961, 963,
as follows: It has been repeatedly held, both in England and in this country, that words of
similar import to those here used, Take these books, and bury me out of them, and what is
left is yours, do not limit or place a condition upon the gift. They simply impose upon the
donee a trust duty to pay the expenses of the donor's funeral. Hills v. Hills, 8 Mees & W. 401;
Bouts v. Ellis, 17 Beav. 121; Blount v. Burrow, 4 Brown, Ch. 72; Clough v. Clough, 117
Mass. 83; Pierce v. (Boston Five Cents Sav.) Bank, 129 Mass. 425 (37 Am.Rep. 371); Curtis
v. (Portland Sav.) Bank, 77 Me. 151 (52 Am.Rep. 750).'
We note that the New York court, in the foregoing opinion, cited English authorities, as
well as those from Maine and Massachusetts, and Mr. Justice Barrett, who wrote the
opinion, emphasized the general acceptance of the doctrine, by his words [4S App.Div.
21S, 62 N.Y.S. 963], "it has been repeatedly held * * *."
S. It seems clear to us that the holding of the Pennsylvania court in Reynolds v. Maust,
supra, and of the English and American authorities above mentioned and cited in said
New York case of Podmore v. South Brooklyn Savings Inst., supra, clearly indicate that
the weight of authority establishes that a gift inter vivos, coupled with a trust requiring
the donee to pay for the donor's care and support, expenses of illness, or illnesses, and
funeral expenses, and whatever is left, if anything, to go to the donee beneficially, is
entirely valid.
wrote the opinion, emphasized the general acceptance of the doctrine, by his words [48
App.Div. 218, 62 N.Y.S. 963], it has been repeatedly held * * *.
8. It seems clear to us that the holding of the Pennsylvania court in Reynolds v. Maust,
supra, and of the English and American authorities above mentioned and cited in said New
York case of Podmore v. South Brooklyn Savings Inst., supra, clearly indicate that the weight
of authority establishes that a gift inter vivos, coupled with a trust requiring the donee to pay
for the donor's care and support, expenses of illness, or illnesses, and funeral expenses, and
whatever is left, if anything, to go to the donee beneficially, is entirely valid. Such a gift is not
by such a trust provision rendered conditional, nor the vesting of the donees' property
postponed. This situation reminds the writer of this opinion of the transfer of property
encumbered by a mortgage. Under the modern conception of a mortgage, that same is, in
equity, a lien, and not a transfer of title to the mortgagee, the owner of the mortgaged property
may, without doubt, convey, as a gift inter vivos, the mortgaged premises, at least in the
absence of a covenant against alienation, and both the legal and equitable title would vest, in
praesenti, unconditionally and irrevocably in the grantee or donee, subject to the mortgage
lien, even though foreclosure may become necessary, and the process of satisfying the
encumbrance might result in depriving, or divesting, the donee of the entire title to the
property.
The authorities very generally, in dealing with the question of the validity of gifts inter
vivos subject to trust provisions of varying kinds in favor of the donor, uphold such gifts and
such accompanying trust provisions if the intent is to make an absolute, unconditional gift in
praesenti, even though the beneficial enjoyment of the gift is postponed until the death of the
donor in order that the donor may continue to enjoy certain benefits, such as interest,
dividends or other income retained by him by virtue of such trust provisions.
retained by him by virtue of such trust provisions. And this kind of gift coupled with such a
trust is upheld upon the theory that the title, both legal and equitable, vests immediately,
absolutely and irrevocably in the donee, irrespective of such trust obligation. The donor is
held thereby to have fully disposed of the property in his lifetime, and same is not, by such
trust provisions, made subject to testamentary disposition, even though such provisions may
ultimately operate, as does a mortgage foreclosure, under certain conditions subsequently to
divest the donor of his title. Such gifts are upheld, in many cases, if it is satisfactorily proven
that the parties intended immediate effect, even though possession is delivered to a third
person for the donee, and not to the donee himself, provided the third person is instructed to
pay the donor certain income and to deliver the possession of the donated property to the
donee upon the death of the donor. Among such cases are: Innes v. Potter, 130 Minn. 320,
153 N.W. 604, 3 A.L.R. 896 (see, particularly, the vast collection of authorities in the
excellent annotation to said case in 3 A.L.R., pp. 902-928); Pyle v. East, 173 Iowa 165, 155
N.W. 283, 3 A.L.R. 885; Wall v. Wall, 30 Miss. 91, 64 Am.Dec. 147. Such being the rule,
even where possession is delivered to a third person and is withheld from the donee until the
donor's death, a fortiori the existence of the trust in the instant case, merely providing for the
expenses of the care, illness and funeral of the donor, should not be permitted to defeat the
gift, where possession has passed immediately to the donees, Questa and Mrs. Gardella, upon
the making of the gift, and not to a third person, and only the beneficial enjoyment was
postponed until death and the completion of the trust.
But were sufficient facts satisfactorily proved by the evidence to establish the gift by
Gaminara to Questa and his sister, Mrs. Gardella?
9. We are fully mindful of the close scrutiny and extreme caution enjoined upon the courts
in cases where the establishment of a gift depends upon the testimony of interested
parties.
the establishment of a gift depends upon the testimony of interested parties. This court has
repeatedly expressed itself to the effect that to establish such a gift, especially in the absence
of written evidence thereof, the evidence must be clear and convincing, and, as stated in some
cases, clear, convincing and satisfactory, or clear, convincing and unequivocal. Su Lee v.
Peck, 49 Nev. 124, 137, 240 P. 435. In Goldsworthy v. Johnson, 45 Nev. 355, 204 P. 505,
Mr. Justice Coleman, in his able and scholarly opinion (in which he was referring to gifts
causa mortis), stated, on page 369 of 45 Nev., page 509 of 204 P.:
It matters not much to us what the rule was under the Grecian and Roman jurisprudence,
and we call attention to the fact that such gifts seem to have been sanctioned by those systems
to show the lack of foundation for the frequent assertion that they are not favored. Because of
the ease with which fraud may be perpetrated, they are closely scrutinized and must be
established by clear, convincing, and satisfactory proof, but when so established the courts
regard them with as much favor as they do a bequest or devise under a will.
10. The fact is that there is no direct evidence to establish the gift involved in the instant
case, other than the testimony of Questa and Mrs. Gardella. We believe it is only fair to bear
in mind, however, that it was only by means of their testimony that the fact that Gaminara
turned over to them the $12,000, in 1931, and the $4,000 in 1944, could be proved. Likewise,
the testimony of Questa was absolutely necessary to establish the trust, the amounts of the
expenditures thereunder and the balance remaining. Questa and Mrs. Gardella, in testifying to
the receipt of them of these substantial sums of money, and Questa in accounting therefor and
showing a balance of more than $5,600, were making admissions against their own interest.
Questa furnished vouchers and rendered an account of all of the transactions, so satisfactorily
that James Santini, the executor of Gaminara's estate and the respondent herein, has not
questioned their correctness.
satisfactorily that James Santini, the executor of Gaminara's estate and the respondent herein,
has not questioned their correctness. Moreover, the evidence is clear and convincing that
Questa and Mrs. Gardella, during the period of more than three years which ensued after the
alleged gift and before Gaminara's death, performed the duties of the trust very faithfully.
They scrupulously kept the funds intact and separate from their own, and did not attempt,
prematurely, to devote any of the money to their own use, but scrupulously observed the
limitations of the trust, deferring any beneficial enjoyment thereof on their part until after
Gaminara's death and the payment of his funeral expenses. Questa and Mrs. Gardella are thus
clearly and convincingly shown to have administered the trust both honestly and with fidelity.
This being true, and it appearing also, as above indicated, that they testified truthfully as to
matters adverse to their own interest, and voluntarily assumed all of the responsibilities of the
trust when no one else knew the facts as to its creation, it is only fair to believe they testified
truthfully as to the gift, even though that particular fact happened to be favorable to their
interest. A person who is honest and faithful is likely to be truthful.
What conflict is there, if any, in the evidence? Is there any substantial evidence disproving
or refuting the alleged gift?
In our view, the only evidence, if it may be considered such, which may plausibly be
claimed as tending to indicate, by inference, that a gift did not occur was Questa's failure, in a
conversation with Santini on July 21, 1947, two days after Gaminara's death, to assert any
claim to the money as a gift. The important portion of Santini's testimony as to that matter is
as follows:
I asked him to come to see me in view of the fact I had been appointed executor of the
will. He said, What do you mean executor of the will?' I said, He drew up a will, and he
wanted me to be the executor.
up a will, and he wanted me to be the executor. I won't be officially until the Court approves
the will.' He said, I wish you had told me this sooner.' I said I couldn't because I couldn't
until the man died. He said, I spent some of my personal money. I bought things with my
personal money when there was a Thousand Dollar bill in the can. I didn't want to break that
for small purposes.' I said, If your expenditures are legitimate, get receipts, and if they are
okay, I am sure the Court will approve them.' He said, Well, that will take two or three days.'
I said, I don't care how long it takes.'
That was the last I saw of him until three or four days later Mr. Boyle called me up and
said, What about this Gaminara deal?' I said, Well, there is a will, and I am the executor.'
And Bill intimated that Mr. Questa was displeased with the will.
We do not know why Questa was reluctant, apparently, on that occasion, to make a claim
to the money as a gift. It may readily be surmised, however, that being a layman and perhaps
not well informed as to legal matters, Questa was confused as to his rights. He knew he had
no formal writing making a gift, and upon being informed that there was a will he was taken
by surprise. He may have formed the impression that perhaps the executor would have the
right to take over the trust money in Questa's hands, regardless of who might ultimately be
determined to be entitled to the money. If so, he was naturally concerned as to the fact that
same would probably interfere with the payment of certain funds he had recently advanced
for Gaminara's needs because he did not want to break a thousand-dollar bill in the can for
small purposes. This being the immediate problem, he mentioned it to Santini. It is not
surprising that he felt prompted to consult his attorney, Mr. Boyle, before making any claim
to the money as a gift, in order to be certain as to his rights. We do not believe that, under the
circumstances, the failure of Questa to make a claim, at that time, to the money is significant,
or can fairly be deemed the basis of an inference that there was no gift.
significant, or can fairly be deemed the basis of an inference that there was no gift. Under a
somewhat similar situation, the Supreme Court of Iowa, in the case of Pyle v. East, supra,
stated as reported on page 890 of 3 A.L.R., 173 Iowa 165, 155 N.W. 286:
The court below laid some stress upon the fact that after the death of Morris, when
Sogard handed the note to East, he handed it back, with the suggestion that he did not wish to
do anything which might cast suspicion upon him, and he preferred to have the paper
surrendered to him by the administrator or by order of court. It is suggested that the act was in
the nature of an admission that he did not claim the note, or did not feel certain of his right in
the matter. We can see no reason for looking on his conduct in this respect as an
impeachment of his defense in this case. That he was not forward or overeager to insist upon
his right is much less suspicious than if he had gone to the other extreme. He was named as
executor of Morris' will, but refused to serve, and the fact that he did so and was willing to
have his claim pass the scrutiny of the administrator and the court was to his credit, rather
than otherwise. Upon the admitted facts the defense to the note was well established, and
defendant should have had judgment for costs.
Also, it was brought out by respondent's attorney that in certain conversations in the
hospital, when Questa was present, and which occurred two days before Gaminara's death,
when, according to Dr. Miniggio's testimony, Gaminara's mental condition was bad, Questa
did not assert his rights as to the gift. In one instance, Gaminara answered Mrs. Mortenson, a
nurse, affirmatively when she asked how much he had loaned Questa. The conceded facts
and circumstances of the case refute any theory of a loan. The greater portion of the money
had, before then, been expended for Gaminara's benefit, and none for Questa's, which latter
admittedly would have been the case had it been a loan.
One cannot have his cake and eat it too. Questa did state to the nurse that such statement
was untrue, but, very properly, did not disturb Gaminara in his condition, by entering into any
controversy with him. In the other instance, on the same day, Miss Fino, one of Gaminara's
nurses and a legatee under the will, told Questa that Gaminara wanted him to bring to the
hospital the balance of his money. Strange indeed, it appears, that Gaminara, had he been in
his right mind, would, at a time when he was desperately ill, have wished to have assumed the
responsibility as to his money and its management, when he wished, three years before, when
not seriously ill, to be relieved of such responsibility! This seems especially true in the
absence of even a scintilla of evidence that the trust was being improperly administered.
Questa merely informed Miss Fino that he had not figured all the expenditures, and did not
know if there was any balance, or, if so, the amount of it. The agitation as to money, and the
activities of certain participants in these conversations in regard thereto, were very improper
and inconsiderate, in view of Gaminara's condition, and the action of Questa in declining to
enter into any controversy in the matter and in not asserting any personal claim to the money
as a gift, in answer to Miss Fino's demand, was, in view of the circumstances, entirely
justifiable and proper.
In the absence of any finding or statement by Judge Maestretti that he disbelieved the
testimony of Questa or Mrs. Gardella, either wholly or in part, and in view of the facts proved
and the surrounding circumstances, we fail to find any conflict in the evidence, or any
substantial evidence disproving or tending to disprove their testimony. To us, the factual
background and the surrounding circumstances are materially corroborative of the claim of
Questa in this case. Gaminara had no relatives in this country. He had emigrated, in early life,
from Italy. He had been employed by Questa's father when Questa was one year old. All
through the years there was strong friendship and close association between Gaminara
and Questa and Mrs.
years there was strong friendship and close association between Gaminara and Questa and
Mrs. Gardella. Mrs. Gardella and her husband had cared for him during a long period, when
he was ill, and both Questa and Mrs. Gardella had assisted him frequently in connection with
his affairs. Gaminara evidenced great trust and confidence in them when he brought the
$12,000 to them for safekeeping. He had, for years before finally coming to live with Questa
and Mrs. Gardella, lived alone in his cabin on Bell Street in Reno. He had been having
fainting spells, and became fearful of living alone and wished to come and live with Questa
and Mrs. Gardella. The reasons were obvious. He needed their care and assistance. It was
then, at the very time he proposed coming to live with them, that he brought the other $4,000
and placed that, also, in their hands. He was then placing himself under their care, knew they
were to provide him a home in a comfortable house on their premises as long as he lived; that
Mrs. Gardella was to cook for him (except breakfast); and that, according to the trust
expressions he employed, they were to see that he was properly cared for if and when he was
ill, and that he was decently buried if he should die during their lifetime. Is it not reasonable
to believe that, when he was asking them to assume those responsibilities, he thought they
were more entitled to his bounty than any one else? He was then turning the money over to
them because he wished to be relieved of responsibility, and felt assured that it would be
properly administered and that his needs would be well served. Is it not reasonable to believe
that, upon the occasion when he was thus requesting much at the hands of Questa and Mrs.
Gardella, he should wish to do something in return for their kindness and generosity? What
he did in bestowing the gift upon them under those circumstances was merely the natural
gratitude of an honest, just and fair-minded person possessing the natural human attribute
which prompts one to reciprocate kindness and generosity.
We are convinced the honorable district judge was in error in his evident conclusion that
as a matter of law the evidence was insufficient to establish or create a gift. We have
hereinbefore particularized as to such error. In consequence of such misconception as to a
matter or matters of law, the learned judge naturally erred in making the said orders from
which appeal has been taken.
It has been properly suggested to us that John Questa has died while this appeal was
pending, and that Mrs. Gardella has been appointed executrix of his last will and testament
and of his estate. We have, therefore, ordered that, as such executrix, Mary Elizabeth
Gardella be substituted as the party appellant in the instant case.
It is our decision and order that the decision of the honorable Second judicial district court
of the State of Nevada, in and for the County of Washoe, Department 2, in the premises, be
reversed; that the said orders appealed from, and each of them, be set aside; and that this
proceeding be remanded to said district court and that said court make such order or orders as
are necessary and appropriate, ordering that E. H. Beemer, Esq., County Clerk of Washoe
County, Nevada, pay to Mary Elizabeth Gardella, as executrix of the last will and testament
and the estate of John Questa, deceased, one half of the sum of $5,601.50 now held by him
under said order made the 10th day of September 1947, and that he pay to Mary Elizabeth
Gardella, personally, the other one half of such sum.
Badt, J., concurs.
Eather, C. J., because of illness, did not participate in the preparation and rendition of the
foregoing opinion.
____________
65 Nev. 245, 245 (1948) Gurley v. Brown
LARRY T. GURLEY, Plaintiff and Appellant, v. JOE BROWN, JOHN DOE, Defendants,
GEORGE SOUTHWORTH, SR., et al., Defendants and Respondents.
No. 3509
May 21, 1948. 193 P.2d 693.
1. States.
The sovereign is immune from suit unless immunity is waived.
2. Municipal Corporations.
Erection and maintenance of city prison are a purely governmental function so that municipality is not
liable to prisoner for injuries caused by improper construction or negligent maintenance.
Immunity from suit does not, unless expressly provided by legislature, attach to municipality in
performance of corporate or proprietary functions.
Although authority to perform a corporate act be permissive and no liability attaches if municipality in
exercise of discretion should conclude not to enter upon such performance, it will nevertheless be liable for
negligent performance of such corporate act once it enters upon performance thereof.
5. Pleading.
Mere use of terms malice and willfulness in complaint against city would not show facts constituting
such malice or willfulness within exception to rule exempting municipal officers from liability for mistake
in judgment in performance of discretionary duties.
Members of Reno city council were not individually liable to person imprisoned in jail for injuries
resulting from improper maintenance, because of failure to perform discretionary act of appointing jail
keeper. Laws 1903, p. 184, as amended.
Action by Larry T. Gurley against Joe Brown and others for injuries to prisoner from
improper maintenance of city jail. From an adverse judgment, plaintiff appeals. Affirmed.
Brown & Wells and Gordon W. Rice, all of Reno, for Appellant.
H. R. Cooke, of Reno, for Respondent Southworth.
Emerson J. Wilson, of Reno, for Respondents Penrose, Knox and Peterson.
William S. Boyle, of Reno, for Respondent Rogers.
F. Kirby Unsworth and Sidney W. Robinson, both of Reno, for Respondent Barrett.
OPINION
Are the individuals comprising the members of the city council of the city of Reno liable
for damages as such individuals for failing to keep the temperature of the city jail above the
freezing point and for failing to appoint a keeper for the jail whose duty it would be to
perform such function, when such failure results in the freezing of a prisoner's feet, and when
the individual members of the council are alleged to have known of the low temperature and
to have acted willfully, unlawfully, maliciously and negligently in their said failure? Note
that the inquiry is directed not to the liability of the municipality or of the city council as
such, nor to the individual members as comprising such council, but to the members of the
council as individuals.
The district court answered this query in the negative and, without opinion, sustained a
general demurrer to plaintiff's complaint. Plaintiff elected to stand upon the complaint and not
to amend, and suffered judgment to be entered in favor of the defendants for costs. From such
judgment the plaintiff appeals.
such judgment the plaintiff appeals. From the complaint the following facts appear:
At the time of filing the complaint defendants Southworth, Penrose, Rogers, Knox and
Peterson were members of the city council of Reno, Washoe County, Nevada. Defendant
Nellie M. Barrett was the administratrix of the estate of William P. Barrett, deceased, a
former councilman who had died subsequently to the acts complained of. Defendants Joe
Brown and John Doe were the arresting officers who arrested and imprisoned the plaintiff. It
is alleged that plaintiff was detained in a vile, loathsome cell, unheated, with the temperature
below freezing point, and with drunken, diseased and unclean people, and was restrained of
his liberty for three days and two nights; that the act of the legislature of the State of Nevada
incorporating the Town of Reno and authorizing the establishment of a city government
therefor and commonly referred to as the city charter (Stats. of Nevada, 1903, page 184, as
amended; 1941 Compiled Charter and Ordinances, City of Reno, Vol. I, page 26) provides:
The city council, among other things, shall have power: * * * To provide and maintain a city
prison, and provide for the guarding, safekeeping, care, feeding, and clothing of the city
prisoners * * *; that pursuant thereto the individual defendants as the duly elected, qualified
and acting city councilmen of the City of Reno did provide such city prison, but willfully,
unlawfully, maliciously and negligently failed and refused to appoint a keeper of said city
prison or personally to provide for the safekeeping, care, feeding and clothing of the city
prisoners on December 15, 16 and 17, 1945, failed to maintain the temperature above the
freezing point and failed to provide a keeper who would see that plaintiff and other prisoners
were properly fed and clothed and given medical attention; that defendants knew all of these
conditions and knew that by reason of the negligent maintenance of the jail several city
prisoners therein confined had died; that plaintiff suffered frozen feet which required
amputation of certain portions of several toes, and would require additional operations
and hospital care and is permanently injured and disabled; that he suffered severe pain
and anguish, was mortified, humiliated and shamed, etc., and was prevented from
attending his lawful pursuits, to his damage in the sum of $50,000.
plaintiff suffered frozen feet which required amputation of certain portions of several toes,
and would require additional operations and hospital care and is permanently injured and
disabled; that he suffered severe pain and anguish, was mortified, humiliated and shamed,
etc., and was prevented from attending his lawful pursuits, to his damage in the sum of
$50,000. Throughout the complaint it is repeatedly alleged that the acts of defendants were
unlawful, malicious and negligent.
Plaintiff in his opening brief states: It is to be remembered that we are not suing the City
of Reno, nor are we suing the board as such, but we are endeavoring to hold the individual
councilmen liable for their negligence. Plaintiff concedes that the statutory provisions for the
construction and maintenance of a jail are permissive and not mandatory, but contends that
once the city council or their predecessors have provided and maintained a city prison, then
it becomes incumbent upon them as a mandatory and clear and absolute duty to provide for
the guarding, safe-keeping, care, feeding and clothing of the city prisoners. Plaintiff repeats
in his reply brief: It is to be remembered we are not suing the municipal corporation or the
Board of City Councilbut the individual councilmen for their personal negligence, and
insists that once having erected the jail and undertaken to maintain it, the duty to provide for
the prisoners therein is a mandatory duty upon each city councilman to see that the care is
proper and does not result in injury to the appellant. Again, in response to the assertion by
respondents of the general rule that in erecting and maintaining a prison a municipal
corporation is exercising a purely governmental function and is therefore not liable to a
person imprisoned therein for injuries sustained by reason of its improper construction or
negligent maintenance, appellant insists: It must be kept in mind that in the case at bar we
are not suing the municipal corporation, but the public officials on the theory of damages
suffered by the negligent acts of the officials in the performance and nonperformance of
ministerial duties."
by the negligent acts of the officials in the performance and nonperformance of ministerial
duties.
The respondents insist that if the municipality is relieved from liability, it would be
inconsistent to hold the officers liable and that it would be an anomalous doctrine that would
exempt the corporation on the grounds of its compulsory agency in behalf of the public
welfare and at the same time affix liability upon its agents for precisely the same acts done
under express authority, and cites authorities from other states in support of this view. They
also insist that to provide for the guarding, safe-keeping and care, feeding and clothing of the
city prisoners is a judicial or discretionary function, and that as no facts are alleged
constituting willfullness, malice, or corruption, no liability arises to a person injured as the
result of the exercise of such powers.
The situation is not free from difficulty. Statutory and charter provisions vary greatly,
distinctions between governmental and corporate functions are sometimes loosely drawn, the
transition from a discretionary function to a ministerial one is often far different from
crossing the white line on the highway, the distinction between acts of misfeasance and
nonfeasance appears often to be a matter of the point of view. Questions of notice,
knowledge, malice, negligence, etc., inject themselves from important angles, and still other
elements are found emphasized in the cases. These elements in turn are subject to further
refinements of pleading, such as the pleading of notice or of knowledge or of malice etc., and
these in turn are subject to further refinements, such as pleading the conclusions of the
pleader in place of the actual facts to be supported by proof from which the conclusions may
be drawn. It is therefore not surprising that we are confronted with a mass of conflicting
decisions and that any attempt to reconcile them leads only to further confusion. Out of this
maze of decisions, principles, rules, interpretations, distinctions etc., there emerge,
however, certain well-recognized, though not universally approved, principles of law.
etc., there emerge, however, certain well-recognized, though not universally approved,
principles of law.
1. The first of these, which appellant frankly concedes, is the immunity of the sovereign
from suit. Rex non potest peccare. Even this has been decried. Angstman, J., in the
concurring portion of his opinion in Coldwater v. State Highway Commission, Mont., 162
P.2d 772, 778, laments: The rule is of long standing that the King can do no wrong. From
that simple statement there grew up the further equally fallacious idea that a state or a nation
can do no wrong and hence may not be sued without their consent. Conceding that the
immunity of the state and its political subdivisions often results in injustice and leaves an
injured person without right of redress, it is too strongly ingrafted in our jurisprudence to be
questioned at this time, except in those cases in which the immunity is waived. The State of
Nevada has never waived such immunity and appellant does not claim that the city of Reno
has waived it.
2. The second rule, almost unanimously accepted, is that the erection and maintenance of
a city prison by a municipal corporation are the exercise of a purely governmental function.
The third rule necessarily follows, namely, that the municipality is not liable to a person
imprisoned therein for injuries suffered by reason of its improper construction or negligent
maintenance. See note in 46 A.L.R. 97, citing authorities from many states as well as from
Canada and Australia. See, also, 43 C.J. 1168, Prisons and Workhouses, sec. 1933. Cases
holding the jailer liable (such as Ratliff v. Stanley, 224 Ky. 819, 7 S.W.2d 230, 61 A.L.R.
566, relied on by appellant) are not in point.
3. The fourth proposition involves no difficulty in itself, namely, that the immunity from
suit, unless expressly provided by the legislature, does not attach to a municipality in the
performance of its corporate or proprietary functions. However, much of the confusion above
referred to grows out of cases in which the liability has been held to attach by reason of
the negligent performance of such function {the most common cases being those of the
negligent construction or maintenance of streets) in which the expressions used by the
various courts have not in terms limited the holdings to such corporate acts.
above referred to grows out of cases in which the liability has been held to attach by reason of
the negligent performance of such function (the most common cases being those of the
negligent construction or maintenance of streets) in which the expressions used by the various
courts have not in terms limited the holdings to such corporate acts. In this state in
McDonough v. Mayor and Aldermen of Virginia City, 6 Nev. 90, whose abbreviated title is
erroneously listed in the official reports as McDonough v. Virginia City, the liability of the
municipality for negligently opening a street or for negligently repairing it (if it has exercised
the permissive power granted by the charter to enter upon such repair) is definitely
recognized. This was followed by Barnes v. City of Carson, 33 Nev. 1, 17, 110 P. 3, in which
a judgment against the municipality was affirmed by this court. The same result followed in
Pardini v. City of Reno, 50 Nev. 392, 263 P. 768, and in City of Las Vegas v. Schultz, 59
Nev. 1, 83 P.2d 1040.
4. Nor does the fifth principle enunciated afford any difficulty, namely, that although the
authority to perform a corporate act be permissive and no liability attach if the municipality in
the exercise of its discretion should conclude not to enter upon such performance, it will
nevertheless be liable for its negligent performance of such corporate act once it enters upon
the performance thereof. McDonough v. Virginia City, supra.
Appellant places his reliance on Doeg v. Cook, 126 Cal. 213, 58 P. 707, 77 Am.St.Rep.
171, from which he quotes extensively. There the defendant town marshal (who was ex
officio road commissioner) and the individuals comprising the board of town trustees were
charged with permitting a railing which guarded an open and dangerous culvert to be
removed and with negligently failing to replace it, whereby the plaintiff fell into it on a dark
night and was injured. Conceding that there was a conflict in authority, the California court
held the individual trustees liable because the performance or nonperformance of the act
involved no question of discretion and because the duty was mandatory, plain, certain
and ministerial, involving merely the execution of a set task.
court held the individual trustees liable because the performance or nonperformance of the act
involved no question of discretion and because the duty was mandatory, plain, certain and
ministerial, involving merely the execution of a set task. The case is distinguishable in several
of its features but it fails as authority for the instant case mainly because it assumes that the
maintaining and repairing of the streets was a corporate duty, and because of the ministerial
nature of the act or omission in question. We have seen that this court, in the cases cited
above, has likewise considered the maintenance of streets a corporate function. The opinion
in Doeg v. Cook did not discuss, or even consider, what the liability of the trustees might be
if engaged in the performance of a governmental function. It is based largely upon a line of
decisions in the State of New York dealing with the liability of the road officials for
negligence in repairing and maintaining public highways, and in none of these cases does it
appear that the official boards or the officials were acting on behalf of the municipality in any
other than a corporate function. The opinion also relies upon the rule as stated in Shear. & R.
Neg.(3d Ed.) sec. 156, reading as follows:
The liability of a public officer to an individual for his negligent acts or omissions in the
discharge of an official duty depends altogether upon the nature of the duty to which the
neglect is alleged. Where his duty is absolute, certain, and imperative, involving merely the
execution of a set task,in other words, is simply ministerial,he is liable in damages to any
one specially injured either by his omitting to perform the task, or by performing it
negligently or unskillfully. On the other hand, where his powers are discretionary, to be
exerted or withheld according to his own judgment as to what is necessary and proper, he is
not liable to any private person for a neglect to exercise those powers, nor for the
consequences of a lawful exercise of them, where no corruption or malice can be imputed,
and he keeps within the scope of his authority."
where no corruption or malice can be imputed, and he keeps within the scope of his
authority.
See, also, 25 Am.Jur. 641, Highways, sec. 348. For the same reason Dillwood v. Riecks,
42 Cal.App. 602, 184 P. 35, is not in point. The damage to the plaintiff there resulted from
the negligent burning of the grass in a city park, whose maintenance was considered to be a
private or corporate function of the city.
5. Article XII of the charter vests in the city council the legislative power of the city,
defines the qualifications of the councilmen, the manner of their election, the legislative
procedure for adoption of ordinances and then proceeds to define its powers, requiring for the
purpose some 30-odd closely printed pages and including the section quoted above.
Subdivision Eighth of section 10j also gives to the city council the power To create any
office that may be deemed necessary for the good government of the city and to employ or
appoint, on its own motion, such person or persons as it may deem expedient or necessary in
any department of the city, who shall thereupon be subject to the supervision and regulation
of the department head thereof. Nowhere in the charter does it appear to be contemplated
that the city council or its individual members should have personal supervision of the city
prison. See Corliss v. Van Duzer, 132 Or. 265, 285 P. 253, 256. Indeed appellant relies most
strongly not on any such individual duty but upon the alleged duty of the council to appoint a
keeper for the city prison and upon the failure of the members of the council individually to
make such appointment. It is asserted that this became their clear, imperative, ministerial duty
upon their having entered into the exercise of their authority under the charter to maintain the
city prison. Respondents, as noted, contend that the appointment of a keeper of the city
prison, by ordinance, resolution or similar action, was a discretionary as distinguished from a
ministerial act and that no liability attaches for any mistake in judgment in the
performance of such discretionary duties.
that no liability attaches for any mistake in judgment in the performance of such discretionary
duties. See, 43 C.J. 713, Municipal Corporations, sec. 1194, and Id. sec. 1198. Exceptions are
noted when the acts complained of are corrupt or in excess of authority or willful and
malicious (Id.), but it is our opinion that the mere use of the terms of malice and willfullness
scattered throughout the complaint do not show facts constituting such malice or willfullness
so as to meet such exception to the rule. 49 C.J. 57, Pleading, sec. 31, and cases cited in
notes 3 and 4. Many authorities acknowledge frankly the difficulty in distinguishing between
discretionary and administrative duties, and point out that the performance of almost any
ministerial act can be said to include the exercise of some discretionary powers.
6. In view of appellant's emphasis of the fact that he is suing neither the city nor the city
council nor the councilmen as such but is suing the members of the city council as individuals
and in view of our conclusion that the maintenance of a city prison is a governmental function
for whose negligent operation neither the municipality nor its governing board would be
liable, at least in the absence of an allegation of facts constituting corruption or malice or
other recognized exception to the rule, the only question before us for determination is
whether such members of the city council are liable as individuals. It is the question posed in
the opening sentence of this opinion. We are satisfied both by reason and authority that they
are not so liable, first, because (having concluded that neither the statute nor any common law
duty contemplated that the individuals personally attend to the heating of the jail, the care of
the prisoners, etc.) the appointment of a keeper was a quasi-judicial or discretionary act and
not a ministerial act and, secondly, because under the circumstances the immunity of the city
from suit extended to the board of councilmen and the individual members could act only as
such board.
In Coldwater v. State Highway Commission, Mont., 162 P.2d 772, the action was against
the State Highway Commission for negligently maintaining a state highway whereby the
plaintiff was injured. Judgment was also sought against the individual members of the
commission and it was claimed, as in the instant case, that, having voluntarily assumed the
obligation of maintaining the highway in question, it was their ministerial duty to keep it in a
reasonable state of repair, to erect warning signs of the particular danger. The court said: The
questions presented are whether the complaint states facts sufficient to establish the liability
of the State Highway Commission, or the individual liability of the members of that
commission. The commission was required by statute to formulate necessary rules and
regulations for the construction, repair, maintenance and marking of state highways, and was
authorized to operate a division of maintenance and was required to erect and maintain such
standard guides and warning signs as appeared necessary. After holding that the carrying out
of its duties by the commission was a discretionary matter, the court held definitely that the
commission was the creation of an agency of the state for the accomplishment of
governmental functions and was acting in a governmental capacity, and that the state's
immunity from suit extended to the commission. The court then said: The remaining
question is whether the complaint states a cause of action against the individual members of
the commission and their sureties * * * Under such circumstances, if the commission itself
cannot be held liable, neither may the individual members thereof, in the absence of
legislative sanction, no showing of actual willful or malicious negligence on their part being
made. See the cases cited in the opinion and the reference to 40 C.J.S., Highways, sec. 251,
P. 285, wherein it is said that statutory duties of county commissioners to keep highways in
repair adhere to them in their official status and do not render them individually liable for
breach thereof.
thereof. It should be noted that the dissenting opinion concurs as to the immunity of the
commission, but dissents from the holding that the members are not individually liable.
In Moye v. McLawhorn, 208 N.C. 812, 182 S.E. 493, 495, the defendants were sued as
county commissioners for their failure to perform their statutory duty to make rules and
regulations for the protecting of prisoners confined in the county jail. Plaintiff had requested
the arresting officer not to place the former in the jail with other prisoners as he knew of their
practice to organize a kangaroo court and to inflict severe and cruel bodily punishment on
newcomers. The defendant commissioners knew of such practice. Plaintiff was nonetheless
imprisoned with the other prisoners and was seriously and permanently injured by them. The
court held, first, that the defendants were not liable in their corporate capacity, and secondly,
that the making of necessary rules to protect the prisoners was a discretionary power. Turning
then to the question of individual liability of the defendants, the court says: Nor will the
action lie against the members of the board as individuals, because there is no averment that
defendants acted or failed to act corruptly or of malice.' * * * In the instant case the
defendants have no power, and therefore no duty, as individuals, to make rules and
regulations prohibiting the organization by prisoners confined in the county jail of Pitt county
of a Kangaroo Court. The power conferred by statute can be exercised by the defendants only
in their corporate capacity, as the board of commissioners of Pitt county * * * The only
question presented by this appeal is whether the defendants are liable to the plaintiffs as
individuals on the facts alleged in the complaint. This question must be answered in the
negative, and for that reason the judgment overruling the demurrer must be reversed. The
demurrer should be sustained.
In Liming v. Holman, 160 A. 32, 33, 10 N.J.Misc. 582, after holding that the negligent
maintenance of a county jail, by reason whereof the plaintiff was injured, was a
governmental function and that in the absence of statutory sanction no private action
accrued to an individual suffering an injury through negligent operation, the court refused
to pass upon the question as "to the improper designation of certain of the defendants as
individuals rather than the corporate body sought to be involved by proper legal title * *
*."
after holding that the negligent maintenance of a county jail, by reason whereof the plaintiff
was injured, was a governmental function and that in the absence of statutory sanction no
private action accrued to an individual suffering an injury through negligent operation, the
court refused to pass upon the question as to the improper designation of certain of the
defendants as individuals rather than the corporate body sought to be involved by proper legal
title * * *.
In Miller v. Ouray Electric Light & Power Co., 18 Colo.App. 131, 70 P. 447, plaintiff's
minor son, while confined at the county jail, was suffocated by a fire that occurred there.
Plaintiff sought to hold the county commissioners individually, alleging their failure to
perform a statutory requirement to examine the jail and determine of its sufficiency and
management. After holding that the duty was a public and governmental one, the court states
that it knows of no authority to the effect that one or more of the county commissioners might
be subjected to an action against him or them individually. To like effect is Monnier v.
Goldbold, 116 La. 165, 40 So. 604, 607, 5 L.R.A.,N.S., 463, 7 Ann.Cas. 768, citing Hydraulic
Press Brick Co. v. School District, 79 Mo.App. 665, and Bassett v. Fish, 75 N.Y. 303, where
it is said that if there is any neglect to exercise the powers of the board it is the neglect of the
body, and not of the individuals composing it. Appellant has cited to us no case in point to
the contrary.
As noted, we have also concluded that the demurrer was properly sustained because we are
satisfied that the matter of appointing a keeper was discretionary in the city council. It is true
that the complaint charges that the members of the city council had knowledge of the
subfreezing temperatures and of the fact that there was no prison keeper or jailer and of the
fact that several prisoners had died in the city prison. It cannot be said, however, that the duty
of appointing a keeper left nothing to the discretion of the board. See 46 C. J. 1036, Officers,
sec.
Officers, sec. 303. The books are replete with cases involving the failure of boards and
officers to perform sundry acts, which nonperformance resulted in damage to the plaintiff, but
where the performance or nonperformance involved discretionary action, and no matter how
unwise their judgment may have turned out, it was held that no liability attached. Appellant
grants the general rule, but insists that the duty to employ a keeper was a plain, mandatory,
ministerial duty. It is clear to us, however, that the adoption of an ordinance, resolution or
order providing for an appointment of a keeper would be based first upon considerations of
the necessity and propriety for such action. If it was decided that a keeper should be
appointed, it would at once be obvious that he could not be on duty twenty-four hours a day.
The question would then arise as to the necessity for the appointment of a day keeper and a
night keeper or for the appointment of three keepers, each working an eight-hour shift. As
plaintiff's chief complaint is the low temperature from which he suffered, the board of
councilmen would have to consider whether the keeper's duties should include such janitorial
services as tending the heating apparatus or such engineering service as maintaining the same
in good condition and repair. Consideration would also have to be given as to whether the
service in question was not being performed by the chief of police or other officers. While it
is alleged that the defendants had knowledge that there was no keeper or jailer, it is obvious
that some authority over the city prison and the prisoners must have been exercised by some
officer or person. No officer or other person in charge of the city prison is named as a
defendant herein. Questions as to feeding and clothing the prisoners are raised by plaintiff's
reliance upon the charter provision referred to. Sanitary conditions are also called into
question. All of these considerations impress upon us most strongly the conclusion that the
matter of appointing or not appointing one or more keepers involved a discretionary duty,
and that the failure to appoint a keeper was at the most an error in the judgment or
discretion of the board in the performance of a public function and for which no liability
attached, in the absence of a sufficient showing of corruption or malice.
discretionary duty, and that the failure to appoint a keeper was at the most an error in the
judgment or discretion of the board in the performance of a public function and for which no
liability attached, in the absence of a sufficient showing of corruption or malice.
Appellant has quoted at great length from the opinion in Ham v. Los Angeles County, 46
Cal.App. 148, 189 P. 462. That case contains a valuable discussion under the headings of
Imperative Functions and Discretionary Functions, for which the bench and bar may feel
indebted to Mr. Justice Sloan of the California District Court of Appeal. We find in that
opinion, however, nothing contrary to the conclusions to which we have come. Ulvestad v.
Dolphin, 152 Wash. 580, 278 P. 681, upon which appellant places reliance, is not in point.
The action was brought against certain arresting officers, the police captain and the chief of
police for false arrest, and is of no assistance here. The same may be said of Clark v. Kelly,
101 W.V. 650, 133 S.E. 365, 46 A.L.R. 799the case being authority for the general rule of
liability for the negligent performance of a ministerial duty under the circumstances recited.
Although not relied upon by appellant, the court has also given long and serious study to
the case of Hale v. Johnston, 140 Tenn. 182, 203 S.W. 949, and the twelve or more later
cases citing the same, including particularly Fernelius v. Pierce, 22 Cal.2d 226, 138 P.2d 12.
In the former case the county commissioners permitted a condition to exist whereunder
prisoners working in chain gangs were brutally beaten and abused. The situation was a
notorious one of which the commissioners knew or by the exercise of ordinary care should
have known. Plaintiff's intestate died as a result of such beatings. A statute required the
county commissioners to see that inmates of the county workhouse were kindly and humanely
treated. The Supreme Court of Tennessee considered that the performance of such duty was a
ministerial act, and held it immaterial whether their negligence was misfeasance or
nonfeasance since they owed an active duty both to the public and to the inmates of the
workhouse to see that the statutory mandate was carried out.
negligence was misfeasance or nonfeasance since they owed an active duty both to the public
and to the inmates of the workhouse to see that the statutory mandate was carried out. It was
said that their failure to perform a positive duty was a positive wrong. But the basis of the
opinion, as we read it, was the failure of the commissioners to exercise ordinary care to see
that plaintiff's intestate was kindly and humanely treated as required by the statute; that such
ordinary care would have prevented the notorious corporal punishment that was a part of the
system of discipline of the workhouse and that had been constantly practiced in the most
brutal ways for many years; that this could have been readily accomplished by the removal of
the bestial and homicidal guards; and that the commissioners could not cast off such duty by
willful negligence. On the other hand, the case is often cited as authority for the rule as
contained in the opinion that where a public official's [140 Tenn. 182, 203 S.W. 953] powers
are discretionary, and to be asserted and withheld according to his judgment, he is not liable
to any private person for a neglect to exercise those powers, nor for the consequences of a
willful exercise of them, where no corruption or malice can be imputed to him, and he keeps
within the scope of his authority. In a number of later Tennessee cases the full import of
Hale v. Johnston was not followed. In Johnson City Board of Education v. Ray, 154 Tenn.
179, 289 S.W. 502, 503, some eight years later, the Supreme Court of Tennessee held that the
board of education as individuals were not liable for the injury to a student caused by the
falling of a negligently attached ladder upon which she was exercising in the gymnasium.
(The ladder was nailed to the girders with twenty penny nails instead of being fastened with
bolts.) The court said:
The Court of Appeals was of the opinion that the members of the board were charged
with the duty of employing an experienced and competent inspector to inspect at reasonable
intervals the gymnasium equipment and that, failing so to do, they were guilty of a
misfeasance, for which they were individually responsible to third persons for injuries
resulting.
misfeasance, for which they were individually responsible to third persons for injuries
resulting. In so holding we are of the opinion that the Court of Appeals committed error.
After quoting the statutory duty of the trustees to manage and control the school and to
prescribe all necessary rules and regulations, etc., the court said:
We have been referred to no statute or ordinance authorizing or enjoining upon the
members of the board of education the employment of an inspector, as suggested above * * *
The only act of negligence involved is that of [not] employing an inspector.
Recognizing Hale v. Johnston as authority for the rule that liability will result from
omitting the performance of a duty that is absolute, certain, imperative and simply ministerial,
the court, however, uses the following language, which is particularly applicable to the
present case:
The plaintiff saw fit to specify the act of negligence in her declaration upon which to
fasten liability upon the individual members of the board, and the Court of Appeals held that
the only act of negligence which was sustained was that charging them with failure to employ
a competent inspector * * * But we are of the opinion that there is nothing in this record to
show that said board was charged absolutely, certainly, and imperatively' with the
employment of an inspector, and hence the injury here complained of cannot be charged to
them.
We are tempted to discuss at some length the many other cases that have cited Hale v.
Johnston, but it would unduly lengthen this opinion to do so. Reference must, however, be
made to the case of Fernelius v. Pierce, 22 Cal.2d 226, 138 P.2d 12, in which the city
manager and chief of police were held liable for the brutal beating and killing of plaintiff's
intestate by certain subordinates whose debased character and brutality were known to the
defendants. The plaintiff referred to a great many prior incidents, giving the precise dates and
the names of the prisoners assaulted by the subordinate officers.
and the names of the prisoners assaulted by the subordinate officers. The recital of such prior
beatings and maimings was astounding. The officers are continually referred to by the court
as killer-officers, and as homicidal officers. The facts in the Hale-Johnston case were
said by the court to be pertinently similar to the case before it. In both cases the responsible
superiors continued to keep in office men of known cruel, brutal, debased, homicidal
tendencies, although charged with complete knowledge thereof. The facts alleged in the
instant case do not bring it within the principle of these cases. Here the plaintiff saw fit not
only to omit joining as a defendant the chief of police, jailer, or other person in charge of the
jail, but he saw fit not to base his cause of action on any negligence of the named defendants
in failing to take steps to remove or otherwise discipline such officers or persons. Despite the
allegation that the defendant councilmen not only failed and refused to appoint a keeper of
said city prison but that they also failed and refused to personally provide for the
safekeeping, care, feeding and clothing of the plaintiff, and also that they personally failed to
maintain the temperature above freezing, it is clear from a careful reading of the complaint
that it is bottomed squarely upon their failure to appoint a keeper. This, as we have held, is a
discretionary act. The charter itself would seem to make it such by authorizing the city
council (not the individual members thereof) to create any office that may be deemed
necessary for the good government of the city and to employ or appoint such persons as it
may deem expedient or necessary in any department of the city. The creation of such offices
and the employment of such persons do not, in our opinion, constitute such incidental
discretionary action as may be involved in many ministerial acts. On the contrary the exercise
of a real discretion seems to be indicated by the words used. The creation of an office and the
determination whether such office is necessary and whether it is necessary for the good
government of the city" all seem to involve duties which may be deemed legislative, quasi
judicial and discretionary in the highest sense of those words.
ment of the city all seem to involve duties which may be deemed legislative, quasi judicial
and discretionary in the highest sense of those words. The right of the board to employ such
person or persons as it may deem expedient or necessary would seem to confirm this view.
The exercise of the discretion of the board was even widened by not limiting the appointment
to those persons it deemed necessary but by permitting the appointment of persons it deemed
expedient in any department of the city.
If in the exercise of such discretion the board had appointed a keeper but the same results
had followed which are complained of by the plaintiff, could it nonetheless be the basis of a
complaint that the board had been negligent in not appointing two keepers? One can readily
see that this would lead to almost absurd conclusions, and which would violate the
distinctions maintained by all of the authorities, without any exception so far as we know,
between the rule as to liability for the performance of a discretionary act (without fraud or
corruption) as distinguished from the performance of a ministerial act. It would eventually
lead to the conclusion that despite the immunity of the governmental agencies redress may be
had virtually in all cases against members of judicial and quasi judicial boards and officers
personally.
Other points have been argued and other cases cited and discussed on both sides. These
have been considered by the court but in view of the conclusions reached it becomes
unnecessary to discuss them. The judgment is affirmed with costs.
Eather, C. J., did not participate in the foregoing case.
July 2, 1948
Per Curiam:
Rehearing denied.
____________
65 Nev. 264, 264 (1948) Murphy v. Murphy
RUTH E. MURPHY, Appellant, v. LAWRENCE E.
MURPHY, Respondent.
No. 3505
May 25, 1948. 193 P.2d 850.
1. Judgment.
District courts have inherent power to set aside judgments procured by extrinsic fraud.
2. Judgment.
Extrinsic fraud exists when unsuccessful party is kept away from court by false promise of compromise
or such conduct as prevents a real trial upon issues involved or any other act or omission which procures
absence of unsuccessful party at trial, and further it consists of fraud of other party to suit which prevents
losing party from knowing about his rights or defenses or from having a fair opportunity of presenting them
upon trial.
3. Divorce.
Trial court is given wide latitude in determination of questions relating to custody of children in divorce
actions.
4. Divorce.
In divorce action by wife, evidence sustained award of custody of children to husband.
5. Divorce.
Whether fraud was committed on trial court by reason of which custody of minor children was awarded
to plaintiff under original divorce decree and whether original decree should be modified to award custody
to defendant were for the trial court on motion to vacate.
Where there is a substantial conflict in the evidence, judgment of trial court will not be disturbed.
Action by Ruth E. Murphy against Lawrence E. Murphy for divorce. From an order setting
aside the original decree in regard to custody of minor children, an order awarding the
custody to defendant and an order denying plaintiff's motion for new trial, plaintiff appeals.
Orders affirmed.
John S. Sinai, of Reno, for Appellant.
J. T. Rutherford and R. K. Wittenberg, both of Reno, for Respondent.
OPINION
By the Court, Brown, District Judge:
This action was commenced in the Second judicial district court of the State of Nevada, in
and for the county of Washoe, by Ruth E. Murphy, plaintiff, against Lawrence E. Murphy,
defendant, on the 31st day of August 1946, by the filing of a verified Complaint, in which the
plaintiff alleged, as the ground for a divorce, extreme cruelty, and that there were two minor
children, John Lawrence Murphy, aged 8 years, and Elizabeth Leontine Murphy, aged 12
years, issue of the marriage. Thereafter, and on September 9th, 1946, an Appearance and
Waiver executed by the defendant, was filed in the action, and on the same day the matter
was heard by the court and a Decree of Divorce was entered in favor of the plaintiff, and the
custody of the two minor children was awarded to the plaintiff. The appellant, plaintiff in the
lower court, has appealed to this court from a judgment and order entered in said district court
on the 10th day of July 1947, as amended, on the 18th day of July 1947, modifying the
Judgment and Decree entered on the 9th day of September 1946, as aforesaid, in respect to
the custody of the two minor children of the parties, and also from an order denying plaintiff's
motion for a new trial, made and entered in the minutes of said trial court on the 4th day of
August 1947. The parties to this appeal will be referred to as they appeared in the court
below.
On the 24th day of January 1947, the defendant filed in the lower court a Notice of Motion
to modify and change the original Decree of Divorce in reference to the custody of the two
minor children, or in the alternative for an order setting aside the original Decree of
Divorce in toto, and permitting the defendant to withdraw his appearance in the action.
the custody of the two minor children, or in the alternative for an order setting aside the
original Decree of Divorce in toto, and permitting the defendant to withdraw his appearance
in the action. This motion was made upon the grounds that the best interests of said children
demanded a full and complete rehearing on the question of their care and custody, and that
the appearance of the defendant was secured on fraudulent misrepresentations and promises
of the plaintiff, and was heard by the court on March 18, 1947. At that time the court made
the following order, to-wit:
It Is Ordered that a hearing on the merits of the Motion, in the interest of the welfare of
the minor children of the parties, in order that the Court may determine whether or not the
decree of the Court entered herein, should be amended, set aside or clarified; that pending
such hearing and determination, the younger of the minor children, shall continue in the
custody of the plaintiff.
Thereafter, and on the 10th day of July 1947, a hearing was had on the merits of the
motion, and the court entered the following Order Modifying Decree, to-wit:
It is ordered, adjudged and decreed, that the decree heretofore entered herein on the 9th
day of September, 1946, be and the same is hereby modified in the following respect:
The portion thereof beginning on line 18, of page two thereof, reading as follows:
That the agreement entered into between the parties, signed by the plaintiff on the 3rd day
of September, 1946, and signed by the defendant on the 5th day of September, 1946, should
be disapproved by the Court, and the plaintiff should be awarded the sole care, custody and
control of the said minor children of the parties, John Lawrence Murphy and Elizabeth
Leontine Murphy, be and the same is hereby stricken, and in lieu thereof, there is hereby
inserted the following:
The court further orders, adjudges and decrees that the defendant is hereby awarded the
care, custody and control of John Lawrence Murphy and Elizabeth Leontine Murphy, the
minor children of the parties hereto, and the court expressly reserves jurisdiction of the
custody and support of the children during their minority.
the defendant is hereby awarded the care, custody and control of John Lawrence Murphy and
Elizabeth Leontine Murphy, the minor children of the parties hereto, and the court expressly
reserves jurisdiction of the custody and support of the children during their minority.
The mother may have the said children with her for two weeks of each year, at a time
during the school vacation, but she must make suitable arrangements for the children to be
transferred from their home to hers and back, and the defendant shall bear one half of the cost
of their transportation.
Thereafter, and on the 18th day of July 1947, an Amended Order Modifying Decree was
entered by the court, which included the entire order made on July 10th, 1947, and added the
following, to-wit:
This order shall become effective on August 20th, 1947, provided, however, that the
plaintiff on or before such date shall transport, John Lawrence Murphy, the minor child the
issue of the above parties, to Cincinnati, Ohio, at her own expense.
One of the minor children, John Lawrence Murphy, is now living with the plaintiff at her
home in Reno, Nevada, and the other minor child, Elizabeth Leontine Murphy, is now living
with her father, the defendant, in Cincinnati, Ohio. Under the Amended Order Modifying
Decree, the child living with the plaintiff in Reno, Nevada, was to be delivered by the
plaintiff to the defendant in Cincinnati, Ohio, on or about the 20th day of August 1947, and at
the time the plaintiff filed her appeal in this court, the said child was and now is in her
custody in Reno, Nevada.
Upon reading the record, it is very apparent that the main question involved in this appeal
revolves around a purported agreement signed by the defendant on September 3d, 1946, and
by the plaintiff on September 5th, 1946, wherein the plaintiff agreed that the defendant was to
have the care, custody, and control of the two minor children. This agreement was never
introduced in evidence at the time of the trial on September 9th, 1946, by the plaintiff,
and the agreement itself was never presented to the trial court for its consideration.
in evidence at the time of the trial on September 9th, 1946, by the plaintiff, and the agreement
itself was never presented to the trial court for its consideration. However, on the 29th of
August 1946, the plaintiff sent the following telegram to the defendant, which was received
by him in Cincinnati, Ohio, on August 30th, 1946, to-wit:
Since you agree to sign will you have Tom or Rich phone or wire attorney here to
represent you? Do this Friday so case can go to Court Saturday. Have already waited two
weeks for your decision with representative here you can be sure your terms have been agreed
to and signed before decree is granted. Signed, Ruth.
The record does not disclose that plaintiff's counsel had any knowledge of this telegram.
At the time of the trial, counsel for the plaintiff asked the following questions with
reference to the Agreement, to-wit:
Q. You and your husband signed an agreement recently whereby the husband is to take
the children giving you the right to have them for two months out of the summer and the right
of visitation? A. Yes.
Q. And you have also deeded him your interest in the home? A. Yes.
Q. He required that of you? A. Yes.
Q. Was that entirely satisfactory to you? A. No.
Q. What was your reason for signing such an agreement? A. Because then he would sign
so that I could have a legal decree in Ohio, and I simply couldn't live with him longer.
Q. He said the decree would be no good in the State of Ohio? A. Yes.
Q. You signed the agreement very reluctantly, didn't you? A. Yes, very.
The judge made the following minute order about 1:30 o'clock P.M. on the 9th day of
September 1946, to-wit: "The Court: Decree to plaintiff on the ground of cruelty, the minor
children to plaintiff."
The Court: Decree to plaintiff on the ground of cruelty, the minor children to plaintiff.
Thereafter, at about 4:30 o'clock in the afternoon, Findings of Fact and Conclusions of
Law and a Decree of Divorce were submitted to the district judge for signature by counsel for
the plaintiff, which were signed and filed on the same day at 4:47 o'clock P.M. In the
Judgment and Decree, in addition to the Decree of Divorce, the following Order was
included:
That the Agreement entered into between the parties, signed by the plaintiff on the 3rd
day of September, 1946, and signed by the defendant on the 5th day of September, 1946, is
disapproved by the Court, and the Court does hereby order, adjudge and decree that plaintiff
shall be and she hereby is awarded the sole care, custody and control of the minor children of
the parties, John Lawrence Murphy and Elizabeth Leontine Murphy.
The defendant had no knowledge of the Judgment awarding the custody of the children to
the plaintiff until about September 13th, 1946. Thereafter, and in November 1946, the
plaintiff while in Cincinnati, Ohio, physically removed the minor child, John Lawrence
Murphy, from there to Reno, Nevada. At the time of the hearing on the Motion to Modify the
Decree in regard to the custody of the minor children on July 10th, 1947, the judge of the
district court and counsel for the plaintiff made the following remarks, to-wit:
The Court: I want to say this, at this time: that the decision of the Court would have been
different if the Court had been confronted with this agreement at the time of the trial of the
case.
Mr. Sinai: Your Honor, may I make a statement in that respect at this time?
At the time of the divorce action, Mrs. Murphy testifiedI had in Court with me a copy
of the agreement, and the transcript of evidence"The Court: I read it and am familiar with
it.
The Court: I read it and am familiar with it.
Mr Sinai: Your Honor recalls that, then I won't need to bother the Court with that. Then,
the witness, having testified as she did, as to the cruelties practiced upon her by the husband,
and from her attitude on the stand, and the fact that the agreement was actually before the
Court at that time
The Court: It was not.
Mr. Sinai: The Court made an order in the decree dis-allowing
The Court: And that, I want to say with respect to that: that the Court signed those
findings and decree as a matter of habit, and the Court, on account of the many
correspondence and papers it has to sign, does not always read all of them, and there are
matters in the findings and decree that are not warranted by the testimony, because the Court
made no order upon the hearing disapproving the agreement.
Mr. Sinai: Well, the transcript
The Court: And the Court didn't read the transcript.
Mr. Sinai: The transcript doesn't show that in so many words, but it was, I respectfully
say this: That it was brought to the attention of the Court. The agreement was in Court at that
time.
The Court: It wasn't brought to the attention of the Court.
Mr. Sinai: At that time, the Court disapproved the agreement, because, as she stated, that
it was not satisfactory to her, and upon that
The Court: The record doesn't show that.
Mr. Sinai: I know it doesn't.
The Court: The record showsThe record does state this: That she signed it reluctantly.
Mr. Sinai: Yes.
The Court: And it was with the thought of the welfare of the children, after hearing her
state that she signed it reluctantly, that the Court made the order that it did.
Mr. Sinai: That is right, so what I mean, what I am attempting to convey to the Court, is
that the Court at the time of the entry of the decree, and at the time of the decision, the oral
decision, in respect to the divorce, was not kept in the dark as to the fact that an agreement
existed between the parties; and the Court will note from the transcript, what I said, You and
your husband signed an agreement recently, whereby the husband is to take the children,
giving you the right to have them for two months out of the summer, and the right of
visitation.
At the time of the hearing on the motion on March 18th, 1947, the agreement was admitted
in evidence over the objection of the plaintiff, but is made no part of the Record of Appeal,
and this court has no opportunity to be advised of the contents of the agreement.
1. District courts have the inherent power to set aside judgments procured by extrinsic
fraud. Lauer v. District Court, 62 Nev. 78, 140 P.2d 953.
Under district court rule XLV, the court has the power to vacate, amend, modify, or correct
a judgment, order, or other official act or proceeding within six months after such judgment
was rendered, order made, or action or proceeding taken, providing the party desiring such
vacation, modification, or correction give notice to the adverse party of a notice of motion
therefor. In this case rule XLV was complied with by the defendant.
2. Extrinsic fraud has been held to exist when the unsuccessful party is kept away from
the court by a false promise of compromise, or such conduct as prevents a real trial upon the
issues involved, or any other act or omission which procures the absence of the unsuccessful
party at the trial. Further, it consists of fraud by the other party to the suit which prevents the
losing party either from knowing about his rights or defenses, or from having a fair
opportunity of presenting them upon the trial. Landon v. Landon, 74 Cal.App.2d 954, 169
P.2d 980; Howard v. Howard, 27 Cal.2d 319, 163 P.2d 439; Stafford v. Stafford, 163 Kan.
162, 1S1 P.2d 491; Rogers v. Mulkey, 63 Cal.App.2d 567, 147 P.2d 62.
P.2d 439; Stafford v. Stafford, 163 Kan. 162, 181 P.2d 491; Rogers v. Mulkey, 63
Cal.App.2d 567, 147 P.2d 62.
In this case the defendant signed an agreement with the plaintiff in regard to the custody of
the minor children and was further assured by the plaintiff in a telegram that the terms of the
agreement would be agreed to and signed before the decree was granted. His appearance and
waiver filed in the action was executed by him relying upon the assurances that the terms of
the agreement would be fulfilled. However, at the time of the trial, the plaintiff repudiated the
agreement, and through her testimony induced the court to award the custody of the minor
children to her, rather than to the defendant in accordance with the provisions of the
agreement.
It is obvious that the district judge never saw the written agreement and had no opportunity
to consider it at the time the original decree was entered. It further appears that at the time the
findings of Fact and Conclusions of Law and the Decree of Divorce were submitted to the
judge for his signature, they were not read by him, but simply signed as a matter of course
upon the assumption that they included only matters contained in the minute order made from
the bench at the time the decree was granted.
3. Here the lower court set aside and vacated that portion of the original decree in regard
to the custody of the minor children. The oral and documentary evidence admitted at the
hearing on the motion is voluminous and conflicting concerning the welfare of the minor
children. Further, conditions concerning both the plaintiff and the defendant materially
changed subsequent to the entry of the original decree. Both the plaintiff and defendant have
each remarriedplaintiff's present husband was formerly the husband of the defendant's
present wife. Also, the record discloses considerable bitterness between the defendant and
plaintiff's relatives in Ohio.
plaintiff's relatives in Ohio. Too often the fate of children, caused solely by the actions of
their parents, is a most regrettable one. Under such circumstances courts are helpless to right
the wrongs done. The lower court is given a wide latitude in the determination of questions
relating to the custody of children. Black v. Black, 48 Nev. 220, 228 P. 889; Elsman v.
Elsman, 54 Nev. 20, 31, 2 P.2d 139, 3 P.2d 1071, 10 P.2d 963.
4. Upon reading the affidavits and other evidence before the district court on the motion
to modify the Decree, we are inclined to feel that had we been trying the facts we might well
have felt that the best interest of the little boy would be better served by awarding his custody
to the mother. However, the evidence is conflicting on this point and there is substantial
evidence to justify the court's order awarding the boy's custody as well as the girl's custody to
the father. This being the case we are in no position to interfere.
5, 6. The questions as to whether or not a fraud was committed upon the court by reason
of which the custody of the minor children was awarded to the plaintiff under the original
Decree of Divorce, and, the modification of the original Decree awarding the custody of the
minor children to the defendant, were those of fact to be determined by the trial court upon
the motion to vacate, modify, and set aside, from all of the evidence and circumstances
presented to it. Following the long-established rule of this court, that where there is a
substantial conflict in the evidence, the judgment of the trial court will not be disturbed, and
in view of the fact that there is abundant evidence in this case to support the orders entered by
the trial judge, those orders should be affirmed. Miller v. Miller, 37 Nev. 257, 142 P. 218.
It follows that the order setting aside that portion of the original decree in regard to the
custody of the minor children as well as the Amended Order Modifying Decree and awarding
the custody of the minor children to the defendant, and the order denying the plaintiff's
motion for a new trial, should be, and is, affirmed.
defendant, and the order denying the plaintiff's motion for a new trial, should be, and is,
affirmed.
Eather, C. J., being ill, the Governor designated Hon. Merwyn H. Brown, Judge of the
Sixth Judicial District, to sit in his place.
July 30, 1948.
John S. Sinai, of Reno, for Appellant.
Per Curiam:
The petition for rehearing is denied.
Plaintiff's counsel, however, seems to feel that the court's discussion of the item of fraud
casts reflection upon him, and that the fraud of plaintiff could be imputed to her counsel.
There should be no danger of such construction of our opinion. Immediately following our
quotation of the plaintiff's telegram to her husband, on the strength of which she apparently
obtained his submission to the jurisdiction of the court, we said: The record does not
disclose that plaintiff's counsel had any knowledge of this telegram. However, we have no
reluctance to giving counsel further assurance. He has been a respected member of the bar of
this state for many years. In sustaining the lower court's modification of the original decree on
both the grounds of extrinsic fraud and the best interests of the minor children, it was not our
intention to impute to plaintiff's attorney any misconduct of any kind.
____________
65 Nev. 275, 275 (1948) Morse Et Al. v. District Court
HAROLD M. MORSE and MADISON B. GRAVES, Doing Business Under the Firm Name
and Style of MORSE & GRAVES, Petitioners, v. THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, In and for the County of Clark, HONORABLE A.
S. HENDERSON, Presiding Judge Thereof, Respondents.
No. 3540
June 23, 1948. 195 P.2d 199.
1. Attorney and Client.
A general retaining attorney's lien upon papers furnished by clients in connection with litigation
commenced on behalf of clients would be destroyed by delivery of the papers in pursuance of court order
entered upon client's motion for substitution of attorneys and for the turning over of the papers to
substituted attorney.
The statutory lien of an attorney upon his client's cause of action which attaches to the judgment and the
proceeds thereof is a special lien or charging lien and is entirely separate, from attorney's retaining
lien which attaches to all papers, books, documents, securities, and money that come to an attorney in
course of professional employment by client without any special contract regarding it. Comp.Laws, sec.
8923.
Attorney's retaining lien, which attaches to all papers, books, documents, securities, and money that
come to an attorney in course of professional employment by client without any special contract regarding
it, depends upon possession, but not the statutory special lien or charging lien which attaches to the
judgment and the proceeds thereof. Comp.Laws, sec. 8923.
The attorney's retaining lien, which attaches to all papers, books, documents, securities, and money that
comes to an attorney in course of professional employment by client without any special contract regarding
it, applies to a general balance for all professional services performed, whether in the action itself or in
prior actions, or in general legal services, and the statutory special lien or charging lien on client's
cause of action which attaches to the judgment and proceeds thereof attaches only to judgment or proceeds
in the particular action only. Comp.Laws, sec. 8923.
The attorney's retaining lien, which attaches to all papers, books, documents, securities, and money that
come to an attorney in course of professional employment by client without any special contract regarding
it, is simply a right to retain papers as against client until attorney is paid in full, and is not enforceable by
judicial proceedings, except as may be accomplished through some incidental proceeding, but the statutory
special lien or charging lien upon client's cause of action which attaches to the judgment and proceeds
thereof may be actively enforced. Comp.Laws, sec. 8923.
The statute giving attorney a lien upon his client's cause of action which attaches to the judgment and
proceeds thereof applies only to a charging lien, and in no way affects the attorney's common-law
retaining lien, which attaches to all papers, books, documents, securities, and money that come to an
attorney in course of professional employment without any special contract regarding it. Comp.Laws, sec.
8923.
Where despite attorney's contract of employment reserving to clients the power and right to dismiss
attorneys, without cause, conditioned only upon payment of reasonable fee for services rendered, clients on
motion to substitute attorneys and for delivery of papers in hands of original attorneys, on which attorneys
claimed a retaining lien for services rendered, injected issues more complicated than value of services by
alleging negligence whereby clients suffered damage, trial court properly refused to hear and determine the
issues in main action.
Where issues raised by client's allegation of misconduct and negligence on part of original attorneys
resulting in damages in excess of fee earned by attorneys before they were substituted for, and for which
services attorneys asserted a general retaining lien against files and papers, could not be heard in summary
proceedings in main action brought by attorneys on behalf of clients, attorneys would be required to deliver
the papers and files upon the client's giving security, in order to prevent delay of main action until suit for
attorney's fees and client's counterclaim for cross-complaint for damages was litigated.
Since the statute does not provide for appeal from order in main action requiring original attorneys for
clients to deliver papers and files in connection with case to substituted attorney, certiorari would lie to
review order.
10. Constitutional Law.
Writ of certiorari issued without notice did not violate due process. Comp.Laws, sec. 9232.
Petition by Harold M. Morse and Madison B. Graves, doing business under the firm name
and style of Morse & Graves, against the Eighth Judicial District Court of the State of
Nevada, in and for the County of Clark, Honorable A. S. Henderson, Presiding Judge thereof,
for relief from an order requiring petitioners to deliver to a substituted attorney sundry papers
which came into petitioners' possession as attorneys for plaintiffs in pending litigation.
Decision in accordance with opinion.
George E. Marshall, of Las Vegas, for Petitioners.
Emilie N. Wanderer, of Las Vegas, for Respondents.
OPINION
The above-named petitioners filed in this court their petition for a writ of certiorari against
the respondent court and the judge thereof, seeking relief from an order made by that court
and alleged to be without or in excess of its jurisdiction ordering them to deliver to a
substituted attorney sundry papers that had come into their possession as attorneys for the
plaintiffs in certain pending litigation. We issued the writ and made it returnable June 1,
1948, on which date the respondents presented a general demurrer and motion to quash the
writ and to dismiss the proceedings, and the matter was argued and submitted on that date
upon the demurrer and motions. Both parties also submitted supporting affidavits. The facts
are as follows:
On July 11, 1947, Fred Delkin, Hattie May Pavlo, and James Delkin entered into a written
contract with Morse & Graves, attorneys at law, whereunder the latter were employed to
prosecute certain claims against Alonzo C.
Delkin, Eugenia Delkin, his wife, and others for a contingent fee of 25% of any money or
property paid, received, collected or recovered, by action, compromise or otherwise, upon or
in satisfaction or in settlement of said claims or any judgment or judgments obtained
thereon. The attorneys agreed to commence the action not later than September 1, 1947, and
diligently to prosecute the same. Paragraph IV of the contract reads as follows: Clients
reserve the right to discharge the attorneys from their employment at any time. In the event of
such discharge, clients will compensate the attorneys for services rendered and expenses
incurred to the date of discharge in a reasonable sum to be determined, if possible, by
agreement between the parties hereto. Petitioners, the attorneys comprising the firm of
attorneys as parties to said contract, filed such complaint December 1, 1947, on behalf of the
said clients and against the said defendants, seeking general equitable relief for breach of a
trust relationship which was alleged to have amounted to a partnership between the parties,
for a dissolution and accounting, for restitution of specific properties and for exemplary
damages and costs. The prayer of the complaint demanded restitution to the plaintiffs of
properties amounting to in excess of $1,240,000 and for $100,000 exemplary damages. The
complaint was verified by one of the plaintiffs. One of the defendants was immediately
served, and on January 15, 1948, all of the defendants appeared by demurrer and motion to
strike, which demurrer and motion are still pending. On April 12, 1948, the plaintiffs in such
action filed in the respondent court their notice of motion to substitute Emilie N. Wanderer as
their attorney in the place and stead of Morse & Graves, which motion was noticed for April
16, 1948. The motion was supported by the affidavit of Hattie May Delkin Pavlo, alleging in
some detail breach of the contract of employment by the attorneys and alleging negligence
and misconduct, and will be referred to in greater detail later.
The motion sought an order releasing the litigation herein of any claim of attorneys lien
which said attorneys may make and for an order directing that said attorneys turn over to the
plaintiffs herein all files, papers, claims, and records now in their possession, in connection
therewith and pertinent thereto. Morse & Graves moved to strike certain portions of the
affidavit. The motions were heard in the respondent court on April 28, 1948, at which time
the attorneys stated to the court that there was no objection to the substitution of attorneys.
The court thereupon entered a minute order that Emilie N. Wanderer be substituted as
attorney for plaintiffs in place of Morse & Graves and such papers that pertain to this suit,
but no private correspondence between the plaintiffs and attorneys Morse & Graves, shall be
delivered to Emilie N. Wanderer within five days from date hereof. The movents did not ask
in their notice of motion and the court did not order that the compensation of the attorneys for
their services to the date of the substitution be determined or paid or otherwise secured and
no evidence was adduced on such issue. The affidavits in the present proceeding show that
the clients asked leave to submit evidence on such issue and to have the compensation
determined, but that the respondents, on objection of the attorneys, refused to hear or
determine such issue. The attorneys thereafter served notice of motion for a rehearing of the
court's orders and although respondents maintain that such motion for rehearing is still
pending and that the attorneys have thus not exhausted their remedies in the respondent court,
we are satisfied from the record now before us that the respondent court in effect denied the
motion for rehearing.
At the time of the hearing of the original motion the attorneys served the clients with copy
of summons and complaint in an action commenced by the attorneys against the clients for
services in the sum of $10,000. Such action is still pending. Following the minute order of
April 2S, 194S, above referred to, the respondent judge signed and filed a written order of
substitution and directing the displaced attorneys to deliver to the substituted attorney
"all files, papers, correspondence and records now in their possession in connection
herewith and pertinent hereto, within five days from the date hereof."
of April 28, 1948, above referred to, the respondent judge signed and filed a written order of
substitution and directing the displaced attorneys to deliver to the substituted attorney all
files, papers, correspondence and records now in their possession in connection herewith and
pertinent hereto, within five days from the date hereof. It will be noted that the terms of the
written order are broader than the terms of the minute order and do not except the
correspondence between the clients and the attorneys.
It may be noted in passing that petitioners assert that for such reason the court was without
jurisdiction to make the order, but assign no reason and submit no authorities in support of
their contention that the greater breadth of the written order over the minute order constituted
an excess of jurisdiction. This court has several times had occasion to consider discrepancies
between a minute order and a formal written order made by the court (see Mortimer Building
and Loan Commissioner v. Pacific States Savings and Loan Company, 62 Nev. 142, 153, 141
P.2d 552, 145 P.2d 733; Silva v. Second Judicial District Court, 57 Nev. 468, 66 P.2d 422),
but while error was assigned it was not claimed that the written order was for that reason
beyond the jurisdiction of the court. In any event the nature of the papers involved in the
present controversy somewhat narrows the inquiry so far as this point is concerned. Counsel
for the respondents, who was likewise the substituted attorney in the respondent court, states
that the clients have no desire to be furnished with the private correspondence between them
and the displaced attorneys. We may conclude from statements made in the oral arguments
and the written memoranda filed by the parties that the papers in question comprise sundry
memoranda, papers and data furnished by the clients to the attorney. These papers are
considered essential by the substituted attorney for the prosecution of the main action.
1. As above noted the petitioners do not object to the order substituting attorneys.
the order substituting attorneys. They maintain, however, that the court was without
jurisdiction to discharge and destroy their attorney's lien upon the papers in their possession.
That the lien would be destroyed by delivery of the papers in compliance with the order
cannot be questioned. (As the main controversy is between the clients and the attorneys
and as the authorities we shall discuss refer to the parties in that manner, we shall in many
cases refer to the plaintiffs in the main litigation as the clients and to the petitioners herein
as the attorneys.)
2-5. The very obvious confusion into which the parties fall as evidenced by the oral
arguments and the written memoranda filed with the court (nothing in the nature of a formal
brief was filed by either party) results from their failure to distinguish clearly between a
general or retaining lien and a special or charging lien. As an example of this confusion both
parties rely upon the case of Berrum v. Georgetta, 60 Nev. 1, 93 P.2d 525, 98 P.2d 479. The
attorneys rely upon this case as laying down the procedure they followed in commencing their
action to recover $10,000 attorney fees from the clients and to foreclose their attorney's lien
in satisfaction of their claim. The respondents rely on the case to show that an independent
action lies for the enforcement of the aforesaid lien. But the aforesaid lien quoted by the
respondents immediately preceding this assertion is the lien provided by sec. 8923 N.C.L.,
giving the attorney a lien upon his client's cause of action which attaches to the judgment,
etc., and the proceeds thereof. This is a special or charging lien and was the kind of lien with
which Mr. Justice Ducker was dealing in Berrum v. Georgetta, supra. It is entirely separate,
distinct and remote from a retaining lien. The lien affected by the lower court's order in the
present case is distinctly a retaining lien. This attaches to all papers, books, documents,
securities and money that come to the attorney in the course of his professional employment
by the client without any special contract regarding it.
client without any special contract regarding it. The charging lien, such as considered in
Berrum v. Georgetta, is a lien on the judgment obtained for the client for the attorney's
services rendered in obtaining it. The former depends upon possession. The latter does not.
The former applies to a general balance for all professional services performed whether in the
action itself or in prior actions or for general legal services. The latter attaches to the
judgment or proceeds for services performed in the particular action only. The former is
passive and not enforceable by proceedings to foreclose, except as may be accomplished
through some incidental proceeding. The latter may be actively enforced as in Berrum v.
Georgetta. The clients contend here that as our statutory lien (N.C.L., sec. 8923) attaches to
the verdict, report, decision, or judgment * * * and the proceeds thereof, the attorneys
have no lien as there is no res to which a lien may attach. This, however, has reference to a
charging lien, with which we are not here concerned.
In 5 Am.Jur. 388 the rule is generally stated as follows:
The general or retaining lien of an attorney is the lien which attaches to papers,
documents, moneys, etc., of his client, connected with the litigation, coming into the
attorney's hands in the course of his employment, and gives the attorney the right to retain
such papers, property, or money until all his costs and charges against his client are paid. This
lien is said to have had its origin partly in custom and partly to prevent circuity of action. It is
a common-law lien founded and depending upon possession; * * * In some states there is an
express statutory provision for a general or retaining lien which supersedes the common-law
one.
6. The last sentence is important with regard to the contention of respondents that the
Nevada statute has abrogated the common-law lien. Our statute reads in part as follows: "* *
* From the commencement of an action, or the service of an answer containing a
counterclaim, the attorney who appears for a party has a lien upon his client's cause of
action or counterclaim which attaches to a verdict, report, decision, or judgment in his
client's favor and the proceeds thereof in whosesoever hands they may come, and cannot
be affected by any settlement between the parties before or after judgment.
* * * From the commencement of an action, or the service of an answer containing a
counterclaim, the attorney who appears for a party has a lien upon his client's cause of action
or counterclaim which attaches to a verdict, report, decision, or judgment in his client's favor
and the proceeds thereof in whosesoever hands they may come, and cannot be affected by any
settlement between the parties before or after judgment. * * * Section 8923, N.C.L.
It will be seen that it applies entirely to a charging lien and in no way affects the attorney's
common-law retaining lien. Lehman, Chief Judge of the Court of Appeals of New York, has
been the author of a number of informative opinions dealing with this situation. In Re
Cooper, 291 N.Y. 255, 52 N.E.2d 421, the case had come up from the appellate division of
the supreme court (265 App.Div. 969, 39 N.Y.S.2d 30) which had affirmed an order of a
special term (32 N.Y.S.2d 158) and the matter was carefully considered, with six other judges
concurring. The court said [291 N.Y. 255, 52 NE2d 424]:
The petitioner has a retaining lien upon the passbook in the savings bank which had been
delivered to her pursuant to her retainer. Her right is not challenged to hold property delivered
to her until her lien is satisfied. A retaining lien is confined to the property in the possession
of the attorney. It is entirely distinct from the lien of an attorney created by statute (Judiciary
Law, Consol.Laws, c. 30, sec. 475), upon his client's cause of action' and which attaches to a
judgment * * * in his client's favor, and the proceeds thereof in whatever hands they may
come.' The statutory lien can be enforced by appropriate order of the court which may direct
that the lien be satisfied out of moneys or property to which the lien attaches though not in the
possession or control of the attorney. A retaining lien cannot be so enforced. Matter of
Heinsheimer, 214 N.Y. 361, 108 N.E. 636, Ann.Cas.1916E, 384; Robinson v. Rogers, 237
N.Y. 467, 143 N.E. 647, 33 A.L.R. 1291."
Rogers, 237 N.Y. 467, 143 N.E. 647, 33 A.L.R. 1291.
In 1 Jones on Liens, 3d Ed., 106, the rule is recited virtually as quoted from American
Jurisprudence, supra, and it is said that an attorney's lien upon papers was recognized as early
as 1734 and was an established rule in 1779. The charging lien described by Lord Mansfield
as quoted by Mr. Justice Ducker in Berrum v. Georgetta is quoted, as it is in almost all of the
cases dealing with the subject. Statutory retaining liens are also dealt with at length, but as
has been noted no retaining lien is provided by statute in this state. It is said at 7 C.J.S.,
Attorney and Client, sec. 210, p. 1141, with citation of numerous authorities, that the right to
maintain an attorney's retaining lien under proper circumstances has never been denied. Such
general or retaining lien attaching to papers, documents, etc., of his client connected with the
litigation and coming into his hands in the course of his employment is maintained simply by
retaining possession until his fees are paid. As noted, it is a passive lien and cannot ordinarily
be actively enforced either at law or in equity. It is simply a right to retain the papers as
against the client until the attorney is paid in full. 5 Am.Jur. 388, 392. It will be noted from
the cases hereafter cited that the only advantage gained by the attorney through such lien is
the possibility of forcing the client to settle because of the embarrassment, inconvenience or
worry caused the client by the attorney's retention of the papers.
In Smyth v. Fidelity and Deposit Company of Maryland, 326 Pa. 391, 192 A. 640, 643,
111 A.L.R. 481, the court said:
Attorney's liens existing at common law are divided into two distinct classesthe general
or retaining' lien, i.e., the right of the attorney to refuse to surrender documents, papers, etc.,
belonging to his client, and the charging lien,' or the right to be paid out of a fund or
judgment which he has been instrumental in recovering for his client. We are here concerned
only with the former.
former. If appellant had an attorney's lien in the present case, it was a retaining lien which
simply gave him a right to hold the stock until he was paid his fee by the client, and it did not
include the power to sell.
The retaining lien may be defined as the right of an attorney at law to retain possession
of such documents, money, or other property of his client coming into his hands by virtue of
the professional relationship, until he has been paid for his services, or until he voluntarily
surrenders possession of the property, with or without payment.' 2 Thornton on Attorneys at
Law, 573, p. 970. Thornton also states, vol. 2, 575, p. 972: The retaining lien is a mere
right to retain the papers or other property on which it exists; and while it attaches to every
species of property belonging to the client, and which has come to the attorney's possession in
the course of his employment, it cannot be actively asserted or enforced.'
In Bulk Oil Transports v. Robins Dry Dock & Repair Co., 2 Cir., 277 F. 25, 31, writ of
certiorari denied 257 U.S. 657, 42 S.Ct. 184, 66 L.Ed. 421, even a right of inspection of
papers held by an attorney as a lien for his fees was denied. The court, after calling attention
to the fact that his lien gave him only a right to retain the papers till his charges were paid and
that his right of retention was valuable only in proportion as the papers were valuable to his
client, said:
The leverage which the possession of the papers affords depends upon how embarrassing
to the client the possession of them by the attorney is. If the client is given the right to inspect
the papers or to compel their production while the lien continues, it certainly impairs the
value of the lien, as it diminishes the embarrassment caused by the attorney's retention of
them, and might make them valueless to the attorney, and the lien nugatory.
Other federal courts have consistently come to the same conclusion (see Webster v. Sweat,
5 Cir., 65 F.2d 109), and the same rule has been applied in most of the state courts in
which the question has been raised.
109), and the same rule has been applied in most of the state courts in which the question has
been raised. See, also, In re Cooper, supra. See, also, the opinion of Lehman, Chief Judge, in
Leviten v. Sandbank, 291 N.Y. 352, 52 N.E.2d 898; also, the cases cited in the annotation at
111 A.L.R. 487.
So well recognized is this right that we pass to the more important question and one which
is not without difficulty and upon which the decisions are not in entire accord. Under what
circumstances and in what manner may a court, in ordering a substitution of attorneys, order
that the documents in the displaced attorney's hands be delivered to the substituted attorney so
that the main litigation may proceed but with due regard to the protection of the rights of the
displaced attorney where his fees have not been paid or determined.
Courts have on many occasions approved a summary determination of the value of the
attorney's fees so that the substitution of attorney's might be made and the fees of the
displaced attorney paid, the attorney's retaining lien discharged, the papers in his possession
returned to the client and the litigation proceed without delay or embarrassment. These,
however, were all cases in which the determination of the fee was subject to such summary
hearing and determination in the main litigation. The clients in the instant case have in effect
enhanced the nuisance value of the attorney's retaining lien by making impossible a summary
determination of the simple issue of the value of the services by injecting more complicated
issues.
In 7 C.J.S. Attorney and Client, sec. 233, p. 1199, it is said that while a retaining lien
cannot be enforced by judicial proceedings brought for that purpose (citing cases) where the
attorney is brought into court upon application of his client, to compel the attorney to turn
over money or papers upon which he claims a lien * * * the court may ascertain the extent of
the lien and enforce it.
enforce it. * * * However, except by consent the question in dispute cannot be determined by
the court in a summary way. Citing the above authority the Appellate Court of Illinois in
Armstrong v. Zounis, 304 Ill.App. 537, 26 N.E.2d 670, ordered the dismissal of a suit to
foreclose an attorney's lien upon the ground that it appeared that the lien claimed was a
retaining lien and not a charging lien.
7. This court has never had occasion to approve such summary hearing nor is it necessary
to determine now whether or not such summary procedure should be had in a proper case.
That it would not have been proper in the instant case is plain. So delicate is the relationship
between attorney and client, so necessary is it that absolute trust and confidence be
unimpaired between them that the client has the power (as distinguished from the right) to
discharge his attorney at any time. 5 Am.Jur. 281, Attorneys at Law, sec. 34, and cases cited.
The contract of employment in the instant case expressly reserved to the clients not only the
power but also the right to dismiss the attorneys, conditioned only upon the payment of a
reasonable fee for services rendered to date. Despite these conditions the clients did not rely
upon their power to dismiss their attorneys nor on their contractural right to dismiss them
without cause, but asserted misconduct and negligence by reason whereof it is alleged that the
clients suffered damage in excess of the amount of any fee earned by the attorneys. Thus it is
claimed by the clients in the present case that in place of commencing the action against the
defendants by September 1, 1947, as agreed, the filing was delayed till December 1; that the
attorneys ignored the clients' frequent requests and instructions to bring the demurrer to the
complaint on for hearing; that they erroneously permitted certain parcels of real property to be
released from the lis pendens; that they thus permitted the defendants to dispose of parcels
that should have been subject to the plaintiffs' equities; that profits to the plaintiffs were
lost in addition; that the attorneys made no progress for a period of nine months; that by
bringing their action for the recovery of their fees they have "unequivocally" expressed an
election for recovery of their fees in that action for the enforcement thereof and to have a
jury determine the same; that they handled the litigation "with absolute negligence"; that
the rights of the plaintiffs were seriously prejudiced, hindered and impaired.
that should have been subject to the plaintiffs' equities; that profits to the plaintiffs were lost
in addition; that the attorneys made no progress for a period of nine months; that by bringing
their action for the recovery of their fees they have unequivocally expressed an election for
recovery of their fees in that action for the enforcement thereof and to have a jury determine
the same; that they handled the litigation with absolute negligence; that the rights of the
plaintiffs were seriously prejudiced, hindered and impaired. The clients cite authorities to
show that it is a breach of the attorney's duty to act inconsistently with the client's express
wishes or to refuse to follow his instructions; that the attorney is not entitled to fees when he
has been remiss in his duty whereby serious damage to the client's cause of action resulted
etc. We have no hesitation in holding that the trial court properly refused to hear and
determine these issues in a summary proceeding in the main action.
8. Does this mean that the main litigation must stand in abeyance while the suit for
attorney fees and the clients' counterclaim or cross complaint for damages are being litigated?
The main litigation might in such case be delayed for months, perhaps years. Such a situation
would be intolerable. Though some authorities have frowned upon the practice of ordering
the attorney to deliver documents or other property of the clients (thus discharging the
attorney's retaining lien) upon giving bond or other security, a case like that presented here
finds no other satisfactory solution.
We are not called upon in this case to consider whether the displaced attorney could be
deprived of his charging lien upon the substitution of other adequate security. Lehman, J., in a
well-considered opinion for the New York Court of Appeals in Robinson v. Rogers, 237 N.Y.
467, 143 N.E. 647, 648, 33 A.L.R. 1291, after reviewing English and New York cases,
concludes that the court has no authority in any event to substitute other security for the
attorney's charging lien. As to retaining liens, however, while deploring the lack of cases
where the court has compelled the delivery of papers by a discharged attorney, before
payment of his fees, upon the giving of security, the court says that "this court has at
least assumed the existence of such power," and cites In re Dunn, 205 N.Y. 39S, 9S N.E.
914, Ann.Cas.1913E, 536.
liens, however, while deploring the lack of cases where the court has compelled the delivery
of papers by a discharged attorney, before payment of his fees, upon the giving of security,
the court says that this court has at least assumed the existence of such power, and cites In
re Dunn, 205 N.Y. 398, 98 N.E. 914, Ann.Cas.1913E, 536. The court proceeds: The
well-established practice of the courts to compel the attorney to deliver up papers or property
under such circumstances in spite of the existence of the attorney's retaining lien thereon does
not, however, even by analogy, lead to the conclusion that the courts have power to destroy a
charging lien on the client's cause of action attaching to the proceeds of judgment or
settlement. It is further said in the Robinson case that probably the English and New York
cases approving an order for the delivery of papers have been based upon the principle that
where the retention of papers by the attorney serves to embarrass a client the attorney should
be required to deliver up the papers upon receiving proper security for his compensation,
because insistence upon his lien under such circumstances is not in accordance with the
standard of conduct which a court may properly require of its officers. In the annotation to
this case at page 1296 of the A.L.R. citation reference is made to a number of cases in which
it was definitely held that on substitution of attorneys delivery of papers could be ordered if
the attorney fees were paid or properly secured. In re Prospect Ave., 85 Hun. 257, 33 N.Y.S.
1013; Curtis v. Richards, 4 Idaho 434, 40 P. 57, 95 Am.St.Rep. 134; In re Dunn, 205 N.Y.
398, 98 N.E. 914, Ann.Cas.1913E, 536. The same has been held to be the rule in the federal
courts. Everett Clarke & Benedict v. Alpha Portland Cement Co., 2 Cir., 225 F. 931, 938, 141
C.C.A. 55, in which case the court said: That a court has power to order an attorney to
deliver up a client's papers upon the client's giving security in a sum sufficient to answer the
attorney's demands is too well established to be called in question. See, also, The Flush, 2
Cir. 277 F.
25. Iowa, South Dakota and other states provide by statute for the releasing of an attorney's
lien upon executing a bond, and cases under such statutes are naturally of no assistance here.
Citing Lord Romilly, Master of the Rolls, In re Galland, L.R. 31 Ch. Div. 296, and Mr.
Justice Chitty in the same case (both of which are cited in many of the state and federal
courts), Mr. Jones in his work on Liens (1 Jones on Liens, 3d Ed., 126) states generally that a
court has jurisdiction to order the delivery of the client's papers upon the payment or the
security in sufficient sum to answer the solicitor's demand, where his retention of the papers
on which he claims a lien would embarrass the client in the prosecution of the pending action.
In California an attorney has no lien upon a judgment rendered in favor of his client as
compensation for his services. 3 Cal.Jur. 682. It has no statute similar to ours providing for a
charging lien. The author further states, id. 683, that in California there is an entire absence of
authority on retaining liens. We mention this in passing in view of comments made by
counsel during the oral argument.
The Supreme Court of Idaho, citing Weeks, Attys. secs. 250, 267, and Meachem, Ag. sec.
856, and the cases referred to by those authorities, holds definitely to the rule of the right of
the court to order a delivery of papers by the displaced attorney upon paying or securing the
fees earned to date. Curtis v. Richards, 4 Idaho 434, 40 P. 57, 95 Am.St.Rep. 134.
9, 10. Respondents contend that certiorari will not lie in the present instance because
petitioners have a right of appeal from the order complained of. Without considering any
other answers to this contention we may note simply that our statute does not provide for any
appeal from such an order. Respondents also contend that our issuance of the original writ
without notice was a violation of due process but cites no authorities in support of this
contention.
in support of this contention. Under our statute the writ may issue upon notice or after hearing
on an order to show cause or without notice (sec. 9232, N.C.L.), and the last of the three
methods named in the statute has been often followed by this court. The authority of the court
to require the respondents in the meantime to desist from further proceedings in the matter to
be reviewed is specifically granted by sec. 9234.
Although the point was not directly raised by respondents either in their written
memorandum or in the oral argument, we were for a time somewhat concerned over the
possibility that the basis of the order complained of was the lower court's construction of
paragraph IV of the retaining contractthat the court might possibly have construed such
paragraph as a waiver of the attorney's lien and an election to look personally to the clients for
payment. Such situation would have raised for consideration the suggestion that an erroneous
construction of the contract would not necessarily have been an act in excess of jurisdiction.
We find nothing in the record, however, to indicate that such a situation arose or that the
court construed the contract as a waiver of the retaining lien. The record indicates that the
court's reasoning was simply that the right of substitution existed and that the substitution
would have been a more or less vain act without providing the substituted attorney with the
necessary data to enable her to continue the litigation. But, as has been seen, this is the very
strength and purpose of an attorney's retaining lien. The court was without jurisdiction to
discharge and destroy such lien without providing for the payment or security for the payment
of the attorney fee secured thereby.
The clients complain bitterly that the tactics of the attorneys have greatly prejudiced the
former's rights, have impeded and retarded the litigation; that two of the plaintiffs are
nonresidents of the state, have been held here for many days at great expense and without
avail, and their situation has been further aggravated by our issuance of the writ.
avail, and their situation has been further aggravated by our issuance of the writ. But this is
the very gist of an attorney's passive retaining lien. The greater the embarrassment caused to
the client, the more effective it becomes. While this may seem harsh, its foundation is sound
and it is too well entrenched in our jurisprudence to be disturbed at this time. The time
consumed in this court has been comparatively short. We issued the writ on May 10, 1948
and made it returnable June 1. We would have been inclined to advance the date to an earlier
return if so requested by respondentsor they could, with our approval, have noticed their
motion to quash for an earlier day. Or they might, in noticing their original motion to the
lower court for an order for the delivery of the papers, have offered to post bond or other
security. Be that as it may, this court has given the matter prompt consideration and action,
looking to the protection of the rights of both the clients and the attorneys.
The disposition of the matter involves no further difficulty. The amount of the claim for
attorney fees is limited by the prayer of the complaint filed by the attorneys to $10,000. The
record indicates negotiation between the parties for a settlement ranging from the offer of the
clients to pay a nuisance value in the sum of $1,000 to an indicated offer of the acceptance
of $9,000. The district court should have no trouble in fixing a proper amount for bond or
other security and in passing on the sufficiency thereof. The petition herein alleges the value
of $1,240,000 for the properties involved in the main litigation. One of the affidavits filed in
this proceeding by the petitioners states that an offer of settlement made by the defendants in
the main litigation is in excess of a sum which would return to the petitioners the sum of
$10,000 in accordance with their 25% contingent retainer. On the other hand the clients allege
that the only offer made was a mere token offer. Accordingly it would seem that the extent of
the recovery in the main action, although presently contingent and possibly problematical,
should not make it difficult for the clients to provide such bond or security as may be fixed
by the court.
the main action, although presently contingent and possibly problematical, should not make it
difficult for the clients to provide such bond or security as may be fixed by the court. The
litigation involving the attorney's claim for fees and the client's cross complaint for damages
could then be tried and determined in an orderly manner.
It is hereby ordered (1) that the part of the minute order of April 28, 1948, and the part of
the formal written order of April 28, 1948, substituting Emilie N. Wanderer for Morse &
Graves as attorney for plaintiffs in said action No. 38772 in said district court be, and the
same hereby is, affirmed; (2) that the remaining parts of said minute order and said formal
written order be, and the same hereby are, modified to provide that Messrs. Morse & Graves
deliver to Emilie N. Wanderer within five days from service of such modified order, upon
delivery of a good and sufficient bond or other security, or upon the delivery of such bond or
security if delivered after such period of five days, all files, papers, pleadings, correspondence
and records, including all papers, documents and records heretofore delivered by said
plaintiffs or any of them to said Morse & Graves, and including contracts (but not the
attorney's copy of the contract of employment), information, data, briefs, title reports, and title
searches now in their possession (except private correspondence between Morse & Graves
and said plaintiff) as pertain to said action No. 38772 pending in said Eighth judicial district
court, entitled Pavlo et al., Plaintiffs, v. Delkin et als., Defendants; (3) that such bond or other
security be conditioned upon the payment by the said plaintiffs to the said Morse & Graves of
such attorney fees as may be awarded to them by a final judgment in action No. 40612
pending in said district court, entitled Morse & Graves, etc., Plaintiffs, v. Pavlo et als.,
Defendants, not exceeding the sum of $10,000, and that such bond or other security be in
such amount or extent and in such form as may be approved by said district court, and to
the sufficiency, form or extent whereof the said Morse & Graves shall be given
opportunity to except, provided, however, that any hearing upon such exceptions be
summarily had to the end that said attorneys may on the one hand be promptly secured in
the payment of their fees, and that the said plaintiffs may on the other hand be enabled
forthwith and without delay or embarrassment to proceed with their main action through
their substituted attorney.
be approved by said district court, and to the sufficiency, form or extent whereof the said
Morse & Graves shall be given opportunity to except, provided, however, that any hearing
upon such exceptions be summarily had to the end that said attorneys may on the one hand be
promptly secured in the payment of their fees, and that the said plaintiffs may on the other
hand be enabled forthwith and without delay or embarrassment to proceed with their main
action through their substituted attorney. Costs are not awarded to either party in this court.
Eather, C. J., because of illness, did not participate in the above case.
____________
65 Nev. 294, 294 (1948) Craig v. Harrah
EDWARD E. CRAIG, Defendent-Appellant, v.
WILLIAM HARRAH, Plaintiff-Respondent.
No. 3541
June 25, 1948. 195 P.2d 688.
1. Attorney and ClientExceptions, Bill of.
If appellant's request to opposing counsel for stipulation for extension of time within which to file bill of
exceptions was made before expiration of time for filing bill and appellant stated good cause for such
extension, compliance with the request would be called for by professional courtesy, unless circumstances
were exceptional, but not legally required. Comp.Laws, secs. 9385.81, 9385.87.
2. Exceptions, Bill of.
Statutory time for filing bill of exceptions is mandatory and jurisdictional, and neither counsel by
stipulation nor court upon ex parte application would have power to extend such time after it had expired.
Comp.Laws, secs. 9385.81, 9385.87.
Time for serving and filing bill of exceptions began to run upon expiration of date of rendition and filing
of final judgment. Comp.Laws, secs. 9385.81, 9385.87.
Upon expiration of statutory time with which to serve and file bill of exceptions, trial judge lost
jurisdiction to extend such time. Comp.Laws, secs. 9385.81, 9385.87.
Engrossed bill of exceptions, consisting of statement or narrative of portions of evidence and
defendant's inferences therefrom, to which was appended merely a certificate of defendant in propria
persona, was insufficient under statute. Comp.Laws, secs. 9385.81, 9385.87.
Reviewing court has no jurisdiction to grant extension of time for filing bill of exceptions on motion
made more than four months after expiration of statutory time allowed for such filing. Comp.Laws, secs.
9385.81, 9385.87.
Time for filing bill of exceptions once but no longer existing cannot be the basis of extension or
enlargement. Comp.Laws, secs. 9385.81, 9385.87.
Defendant who did not serve or file bill of exceptions within time specified by statute waived his right to
bill of exceptions and to have bill considered by reviewing court. Comp.Laws, secs. 9385.81, 9385.86.
Reviewing court could not consider bill of exceptions which was not filed until 47 days after judgment
and 27 days for time of serving and filing had expired, and such bill must be stricken. Comp.Laws, secs.
9385.81, 9385.86.
Trial court's minutes, opinion, and decision cannot be deemed part of bill of exceptions unless there is a
bill of exceptions filed in time and otherwise valid. Comp.Laws, sec. 8829.
After striking of bill of exceptions which was not timely filed appeal remains upon the judgment roll
alone. Comp. Laws, secs. 9385.81, 9385.86.
Trial court's minutes, opinion, and decision, not being embraced within nor properly part of the judgment
roll, nor embraced within valid bill of exceptions, must be stricken. Comp.Laws, sec. 8829.
Appeal from Second Judicial District Court, Washoe County; William McKnight, Judge.
Action by William Harrah against Edward Craig. From a judgment for plaintiff, defendant
appeals. On defendant's motion for extension of time within which to file bill of exceptions
and plaintiff's motion to strike from the record on appeal the minutes of the court, the
opinion and decision, and defendant's bill of exceptions.
from the record on appeal the minutes of the court, the opinion and decision, and defendant's
bill of exceptions. Defendant's motion denied, and plaintiff's motion granted.
Edward E. Craig, of Berkeley, California, in pro. per., for Appellant.
Harlan L. Heward, of Reno, for Respondent.
On Defendant-Appellant's Motion for Extension
of Time Within Which to File Bill of Exceptions.
OPINION
The parties will be designated in this opinion as plaintiff and defendant, as they were in the
lower court.
1. The defendant has made application to this court to extend his time within which to file
bill of exceptions, and has stated as grounds or reasons for such requested extension that
said bill of exceptions has already been filed, but that opposing counsel has refused to
stipulate for extension of time within which to file said bill of exceptions, or that said bill of
exceptions may be filed. The defendant has not stated when he made such request of
counsel, nor whether same was made prior to or after his time had expired, nor has he stated
whether, upon making such request of opposing counsel, he stated to him any good cause or
reason for such extension, and, if so, what such stated cause or reason was. If such request
was made before his time expired, and he stated good cause or reason for the requested
extension, the usual courtesy extended by members of the Bar to opposing counsel would,
ordinarily, suggest compliance, but the law does not require it.
the law does not require it. In other words, the opposing counsel so requested, unless the
circumstances were exceptional, should, and doubtless would, have granted the request, if
timely made, but would not legally be required to do so.
2. If such request were made of opposing counsel after defendant's time had expired, the
granting of such request would have been futile, because, as will hereafter be shown, the
statutory time fixed for the filing of bills of exceptions is mandatory and jurisdictional, and
neither counsel by stipulation nor the court upon an ex parte application would have the
power to extend the time after same had expired.
3. The facts as disclosed by the record are that the judgment from which defendant has
taken his appeal to this court was rendered and filed in the Second judicial district court of the
State of Nevada, in and for the County of Washoe, on January 16, 1948. There was no motion
for a new trial made by the defendant. In the absence of such motion, defendant's time, as
fixed by N.C.L.Supp.1931-1941, sec. 9385.81 same being sec. 31 of the New Trials and
Appeals Act of 1937, Stats. of Nevada 1937, ch. 32, p. 63, within which to serve and file his
bill of exceptions was, as stated in said section, at any time after the filing of the complaint
and not later than twenty (20) days after final judgment * * *. The defendant's time of
twenty (20) days after final judgment commenced to run, therefore, upon the expiration of
January 16, 1948, the date of the rendition and filing of the final judgment, and ended upon
the expiration of February 5, 1948. Defendant's time was not extended by stipulation of the
parties, nor by the district court or judge, nor by any justice of the supreme court, referee, or
judicial official, as provided for by sec. 9385.87, N.C.L.Supp.1931-1941, same being sec. 37
of said New Trials and Appeals Act of 1937. Said section provides for such an extension,
however, only upon good cause shown.
The defendant filed his bill of exceptions on March 4, 1948, in the office of the clerk of
said Second judicial district court, in and for the county of Washoe, which was forty-seven
days after judgment, and twenty-seven days after his time to file same had expired.
The defendant has stated, also, in his affidavit in support of motion for extension of time
to file bill of exceptions, the following:
Affiant further states that he made application to the Honorable Judge McKnight, Judge
of the District Court of the County of Washoe, State of Nevada, in the above entitled matter,
the judge who tried the case, for extension of time within which to file said bill of exceptions,
and that said Hon. Judge McKnight refused to sign the same, or refused to extend the time
aforementioned on the ground that he believed he was without power to do so.
In referring to such application to Judge McKnight, the defendant, in his memorandum
supporting the application for extension of time within which to file bill of exceptions * * *,
has stated the following:
These matters were pointed out to the Hon. Judge McKnight in a letter dated March 17,
1948, and a request was made to have the time for filing the bill of exceptions extended. On
March 22, 1948, in answer to this request Judge McKnight replied that he was without power
to grant such extension. Appellant has since filed an application for a similar order in the
Supreme Court of Nevada.
4. It is clearly apparent from the above statement by defendant, taken in connection with
the record on appeal in the instant case, that his said application to Judge McKnight, by letter
dated March 17, 1948, was at least twelve days subsequent to his belated filing of bill of
exceptions, on March 4, 1948, and at least forty days after the statutory time within which to
serve and file same had expired. Judge McKnight had, upon the expiration of defendant's
statutory time within which to serve and file bill of exceptions, lost jurisdiction to extend
the time, and very properly decided that he was without "power" to grant defendant's
request, and so stated to defendant, in his said letter of March 22d.
which to serve and file bill of exceptions, lost jurisdiction to extend the time, and very
properly decided that he was without power to grant defendant's request, and so stated to
defendant, in his said letter of March 22d.
The mandatory and jurisdictional character, as repeatedly held by this court, of the
statutory time within which bills of exceptions must be served and filed will be more fully
treated further on in this opinion, in considering defendant's pending application to this court
for such an extension.
The defendant's bill of exceptions was in two parts or sections, the first part or section
being denominated defendant's engrossed bill of exceptions, and the second part or section
consisting of the court reporter's transcript of proceedings, same embracing the proceedings
had upon the trial. There was no settlement or allowance of such bill of exceptions at any
time, either upon the stipulation of the parties or by the district court or judge, as required by
said section 31 of the New Trials and Appeals Act of 1937, N.C.L.Supp.1931-1941, sec.
9385.81; consequently, the bill of exceptions is not authenticated by any certificate or
stipulation to the effect that such bill of exceptions is correct, contains the substance of the
proceedings relating to the point or points involved and has been settled and allowed, as
required by said last-mentioned section of the statute. Subdivision (1) of the second paragraph
of said section 31 relieves of the requirement of such settlement and allowance as to the court
reporter's transcript of the proceedings, and provides, in effect, that the court reporter's
certificate thereto may take the place of formal settlement by the court or judge, and of the
certificate provided for in the first paragraph of said section. There appears, however, no
provision of that statute, or any other statute or law, which would relieve defendant, as to the
first part or section of his bill of exceptions, of the requirement of settlement and certification
as provided by the above-quoted provision of the first paragraph of said section 31.
certification as provided by the above-quoted provision of the first paragraph of said section
31.
5. Such first part or section of defendant's bill of exceptions, as before stated, is entitled
defendant's engrossed bill of exceptions, and consists of a statement or narrative of certain
portions of the evidence, and certain inferences drawn and conclusions made therefrom by the
defendant, and has appended thereto merely the certificate of Edward E. Craig, defendant, in
propria persona. This falls far short ot compliance with the essential requirements of said
section 31.
6, 7. The defendant, by his above-mentioned motion, filed June 10, 1948, for an extension
of time within which to file bill of exceptions, and addressed to this court, seeks relief from
us at a time more than four months after the expiration, on February 5, 1948, of his statutory
time of twenty days allowed for that purpose. To be of any avail to defendant, such relief
would necessarily have to relate back to a time prior to the expiration of his statutory time, on
February 5th. This court, obviously, has no jurisdiction to grant such extension to operate
retroactively. The statutory provision fixing the time within which bills of exceptions may be
filed has been repeatedly held to be mandatory and jurisdictional. In the absence of any
extension of time, either by stipulation of the parties or by the court in which the action was
tried, or a judge, referee or judicial official thereof, or a justice of the supreme court, before
the time for filing had expired, any court or judicial officer who, before such expiration of the
statutory time, would have had jurisdiction to entertain such a motion, and, upon good cause
shown, to grant such extension while there was yet time remaining upon which same could
operate, necessarily, because of the mandatory provision of the said statute fixing the time
(said section 31 of the New Trials and Appeals Act of 1937), would have lost jurisdiction and
would have no power to extend such time after the statutory time has expired.
after the statutory time has expired. The statute providing for enlargement or extension of
time within which to file a bill of exceptions, same being section 37 of the New Trials and
Appeals Act of 1937 (N.C.L.Supp. 1931-1941, sec. 9385.87), does not provide for the
creation of a new period of time, in reference to bills of exceptions, but merely the
enlargement or extension of existing time. Obviously, time once, but no longer, existing
cannot be the basis of extension or enlargement. An enlightening treatment and application of
the law on this subject occurs in the case of Baker v. Baker, in the opinion, by Mr. Chief
Justice Taber, on rehearing, 59 Nev. 177, 96 P.2d 200.
That case was a contested divorce action, in which this court made certain money
allowances to the guardian of an insane wife to pay certain of her expenses on appeal to this
court, including the cost of transcribing the court reporter's shorthand notes of the trial in the
lower court, and the cost of preparing a typewritten transcript of the proceedings in that court.
In connection therewith this court, not then knowing that the statutory time for serving and
filing a bill of exceptions in the lower court had expired four days before, on March 4, 1939,
filed its decision, which included the following order directing the district court in the
premises:
Reasonable time after compliance with said order for allowances will be allowed
appellant by the district court for preparing, filing and serving proposed bill of exceptions,
and for taking such other steps as may be required to complete the bringing of her appeal to
this court.
The opinion on rehearing in that case, reported, as aforesaid, in 59 Nev. pages 177-179, 96
P.2d 200, 201, by Mr. Chief Justice Taber, clearly exemplifies the mandatory and
jurisdictional character of the time requirement in regard to filing and serving bills of
exceptions. It discloses that Chief Justice Taber clearly realized the nullity of the order to the
lower court to extend the time for filing and serving a bill of exceptions, made,
unwittingly, after the time had expired.
nullity of the order to the lower court to extend the time for filing and serving a bill of
exceptions, made, unwittingly, after the time had expired. This court, under such
circumstances, felt impelled to set aside its order previously made, which was thus, upon
rehearing, shown to have been made four days too late, and to have been in excess of this
court's jurisdiction, and, therefore, void.
That case is directly in point to the situation with which we are confronted in the instant
case, in considering defendant's motion requesting this court to extend his time within which
to serve and file bill of exceptions, four months after the time has expired, and in effect, to
operate retroactively. If this court had possessed such power, it would not have felt impelled
to set aside its own order in Baker v. Baker, supra, notwithstanding the court was convinced
that Mrs. Baker was entitled to the allowances made, and even suggested that she might
renew her application for further allowances on appeal, if the district court relieved her of her
default, in a proper proceeding brought upon notice, under the statute providing relief from
default upon the ground of mistake, inadvertence or excusable neglect. The opinion on
rehearing is not unduly lengthy, and we will now incorporate same in full herein. Such
opinion is as follows:
In our decision denying respondent's motion to dismiss appeal and granting, in part,
appellant's motion for allowances, 59 Nev. 163, 87 P.2d 800, 805, we included the following
sentence: Reasonable time after compliance with said order for allowances will be allowed
appellant by the district court for preparing, filing and serving proposed bill of exceptions,
and for taking such other steps as may be required to complete the bringing of her appeal to
this court.' Respondent filed a petition for rehearing, which was granted. On the rehearing it
was shown that appellant's time for filing and serving bill of exceptions had been extended
several times by the district court; but had expired, without stipulation for further time, on
February 2Sth, 1939, four days before said decision of this court was filed.
district court; but had expired, without stipulation for further time, on February 28th, 1939,
four days before said decision of this court was filed. It further appears that, after the petition
for rehearing was filed but before it was granted, appellant, in the district court, noticed a
motion for an order relieving her from her default in failing to secure an extension of time
within which to file a bill of exceptions, the motion being based upon the ground that such
failure was the result of mistake, inadvertence and excusable neglect.
It is a jurisdictional requirement that bills of exceptions be filed and served within the
time prescribed by statute, or within such further time as may be given by order of court or
stipulation. Johnson v. Johnson, 54 Nev. 433, 22 P.2d 128; Comstock Phoenix Min. Co. v.
Lazzeri, 55 Nev. 421, 36 P.2d 360. At the time the order of this court was made directing the
district court to allow a reasonable time after compliance with the order for allowances within
which to file and serve proposed bill of exceptions, it was not known to this court that
appellant's time for taking such steps had expired. When respondent's motion to dismiss the
appeal and appellant's motion for allowances were heard and submitted, appellant's time for
filing and serving bill of exceptions had not expired. Respondent could not forsee that it
would be allowed to expire, and that this court would make the order complained of. He was,
therefore, not in a position to attack the order until and except by petition for rehearing.
The order of this court made on March 4th, 1939, directing the district court to allow a
reasonable time after compliance with the order for allowances within which to prepare, file
and serve proposed bill of exceptions, is hereby set aside. The order for allowances made on
the same day is hereby modified by disallowing the $30 item toward the cost of transcribing
the court reporter's shorthand notes of the trial in the lower court, and disallowing further the
item of $65 toward the cost of preparing typewritten transcript of the proceedings in the
lower court for filing in this court.
of preparing typewritten transcript of the proceedings in the lower court for filing in this
court. The allowance of $100 for attorney's fee will remain undisturbed.
If the district court shall decide, or has decided, to relieve appellant from her default in
failing to secure an extension of time beyond February 28th, 1939, within which to file and
serve her bill of exceptions, or if other legal and proper cause be made to appear, she may
renew her application to this court for further allowances on appeal.
For the reasons above stated and plainly appearing from the reasoning of this court in
Baker v. Baker, supra, we are clearly of the opinion that this court is without jurisdiction to
extend, at this time, defendant's time within which to serve and file bill of exceptions, and his
motion for such extension of time must be, and is hereby, denied.
On Plaintiff-Respondent's Motion to Strike.
In this opinion, also, the parties will be designated as plaintiff and defendant, as they were
in the lower court.
The plaintiff has moved to strike from the record on appeal the minutes of the court, and
opinion and decision, and defendant's bill of exceptions. Said motion, as stated in the
notice of motion that same would be, is made and based upon the grounds that said
documents are irrelevant and immaterial upon the appellant's appeal; that they and each of
them are not properly part of the record on appeal in this action; that no motion for a new trial
was at any time made, presented, or decided in the District Court; that the alleged bill of
exceptions was filed on March 4, 1948, long after the time for filing of the same had expired;
that no order extending the time for the filing of the bill of exceptions was ever made by the
District Court nor was time therefor extended by any stipulation.
We shall first dispose of the motion in its relation to the bill of exceptions.
Plaintiff, relying upon Neill v. Mikulich, 57 Nev. 307, 64 P.2d 612, and Snyder v. Garrett,
61 Nev. 85, 115 P.2d 769, has contended, in effect, that upon the authority of those cases the
filing and making of a motion for a new trial is indispensable to any review of the evidence
on an appeal; that no motion for a new trial was made; that, therefore, the documents to
which the motion to strike is addressed (including defendant's bill of exceptions) are what
might be termed fugitive documents.' The first question presented by the assignment of
error in Snyder v. Garrett, supra, as stated by Mr. Justice Ducker in his opinion, on page 87 of
61 Nevada Reports, page 769 of 115 P.2d, was whether the findings are supported by the
evidence. This question is identical with the question arising in the instant case upon
defendant's assignment of error, which, as stated in his bill of exceptions, is: the defendant
here specifies that the findings were not supported by the evidence in that * * *, and, as
stated in his opening brief on page 2, is: that the findings of fact were not supported by the
evidence in that the evidence clearly shows that the checks were given for a gambling
transaction.
The gist of defendant's contention by such assignment apparently is that, as he contends,
the evidence disclosed that the checks evidencing the obligation sued upon were given for a
gambling consideration, or in connection with or in a gambling transaction, and that,
therefore, same was insufficient to justify the findings of fact finding the existence of
indebtedness, or in effect, a bona fide obligation in the amount of the checks.
In other words, in the instant case, as in Snyder v. Garrett, supra, the question presented
and to be determined upon the assignment of error is whether the evidence was sufficient or
insufficient to support the findings.
In Snyder v. Garrett, Mr. Justice Ducker, in the opinion above referred to, on page 91 of 61
Nevada Reports, page 771 of 115 P.2d, after reviewing and citing the earlier Nevada cases
and the contemporaneous California cases, quoted approvingly from Whitmore v.
Shiverick, 3 Nev. 2SS
earlier Nevada cases and the contemporaneous California cases, quoted approvingly from
Whitmore v. Shiverick, 3 Nev. 288, the following:
Our Practice Act was copied almost verbatim from the California Practice Act as it stood
at the time ours was enacted. Under the California code of practice, the Supreme Court of that
State had almost uniformly refused to review the facts of a case unless there had been a
regular statement and motion for new trial.
Further on in the opinion in Snyder v. Garrett, supra, on said page 91 of 61 Nev., page 771
of 115 P.2d, Mr. Justice Ducker stated:
The reason of the long established rule for requiring that a motion for a new trial be
made, and passed upon, before a consideration of the evidence can be had, is, as stated in
Giannotti v. DeBock, 47 Nev. 332, 221 P. 520, that the trial court may first have an
opportunity to rectify an error, if one was made, without subjecting the parties to the expense
and annoyance of an appeal.
And still further on, on pages 91 and 92 of 61 Nev. and on page 771 of 115 P.2d, the
learned Justice, in finally disposing of the appeal in that case, stated:
We agree with the statement in the brief of amici curiae that it may readily be argued that
the legislature has definitely accepted by re-enacting sections 12 and 34, the interpretation
previously placed thereon by this court and clearly intended that there should be no appeal
with review of the evidence unless a motion for a new trial has been made in the trial court.'
We think such argument is most logical and must prevail, as we consider the opinion in
Neill v. Mikulich, supra, of controlling influence.
The defendant, however, has cited the recent case of Monitor Pipe & Steel Co. et al. v.
Flanigan Warehouse Co. et al., 63 Nev. 449, 172 P.2d 846, and we infer that he has done so
to indicate, perhaps, that upon his assignment of error to the effect that the findings of fact
were not supported by the evidence, he could properly contend that the findings of fact were
wholly unsupported by the evidence, and that, therefore, his situation could well be
considered parallel to that in Monitor Pipe & Steel Co. v. Flanigan Warehouse Co., supra,
and that the doctrine of that case, based upon the exceptional factual situation therein,
could be applied in the instant case.
that the findings of fact were wholly unsupported by the evidence, and that, therefore, his
situation could well be considered parallel to that in Monitor Pipe & Steel Co. v. Flanigan
Warehouse Co., supra, and that the doctrine of that case, based upon the exceptional factual
situation therein, could be applied in the instant case.
In that case the appellant maintained, as stated in this court's opinion, by Mr. Chief Justice
Taber, on page 451 of 63 Nevada Reports, and on page 847 of 172 P.2d: that on appeal from
the judgment alone this court may examine the evidence to determine the legal question
whether there is a total failure of proof to support the judgment. * * * Appellant says he has
taken this appeal essentially on the basis that he is questioning the sufficiency of the
judgment in the light of the pleadings in the case and in the light of the issues made by those
pleadings.' It is his contention that the findings of fact and conclusions of law do not conform
to the pleadings and do not settle the issues made by them; nor, he says, do they settle the
most important question of law involved in the case, as pointed out in his opening brief.
At that point in the opinion, Mr. Chief Justice Taber stated further:
Bills of exceptions are sometimes properly stricken on motion as, for example, in Lewis
et al. v. Williams, 61 Nev. 253, 123 P.2d 730, 125 P.2d 305. But whether the bill in the
instant case is superfluous and of no value, as movent contends, and whether anything in it is
useful on this appeal, are questions which we think should be determined on the appeal
proper.
It appears that defendant has not shown or attempted to show or contend that in the instant
case, as in Monitor Pipe & Steel Co. v. Flanigan Warehouse Co., supra, there is a total
failure of proof to support the judgment, or, that the findings of fact and conclusions of law
do not conform to the pleadings, or, that they do not "settle the most important question of
law involved in the case."
not settle the most important question of law involved in the case. Indeed, defendant failed
to appear for the argument in this court upon the motion to strike, and has assigned no reason
why he was unable to be present. He has contended himself with mailing to the clerk of this
court his motion for an extension of time in which to file bill of exceptions, and his affidavit
in support thereof, which, as before stated, is based upon the refusal of opposing counsel to
stipulate for such extension, and on Judge McKnight's declination to grant same upon the
ground that he had no power to do so.
8. As hereinbefore stated, defendant has cited Monitor Pipe & Steel Co. v. Flanigan
Warehouse Co., supra, but it clearly appears that he has failed to show the existence of any of
the extraordinary elements of fact or law, similar to those in that case, which would bring him
within the rule or doctrine therein enunciated. In the present state of the record we would be
justified in holding, pursuant to this court's opinion and decisions in Neill v. Mikulich, supra,
and Snyder v. Garrett, supra, respectively, that in order for us to review the evidence
incorporated in the bill of exceptions, a motion for a new trial and an order of the lower court
denying same were indispensable, and, such motion not having been made, such bill of
exceptions, which contains nothing but evidential matters, should be stricken for that reason.
But it is not necessary to so hold in the instant case, or to pass, now, finally upon that
question, for the reason that, under the clear mandate of our statute, section 36 of the Nevada
New Trials and Appeals Act of 1937, same being sec. 9385.86, N.C.L.Supp.1931-1941, we
are required to hold, in view of the long-settled law of this state, as repeatedly held by this
court, that defendant has waived his right to his bill of exceptions, or to have same considered
by this court, because not served or filed within the time specified by sec. 31 of said New
Trials and Appeals Act of 1937, same being N.C.L.Supp.1931-1941, sec. 9385.81.
In the accompanying opinion in relation to defendant's motion to extend time for filing bill
of exceptions, we have dealt at considerable length with the question of the mandatory and
jurisdictional character of the element of the statutory time of serving and filing, in relation to
bills of exceptions, and have cited authorities.
In McGill v. Lewis, 61 Nev. 28, 111 P.2d 537, 539, Mr. Justice Orr, in dealing with a
motion to strike, on pages 31 and 32 of 61 Nev. and on page 539 of 111 P.2d, stated the law
and cited former decisions of this court, as follows:
The transcript of proceedings intended as a bill of exceptions was served upon respondent
on November 26, 1940, more than twenty days after the entry of judgment and more than
twenty days after the notice of decision on motion for new trial. Appellants failed to comply
with the requirements of section 31 of the New Trials and Appeals Act, Statutes of Nevada
1937, c. 32, p. 63. Section 36 of said Act provides: If a party shall omit or fail to serve and
file his bill of exceptions within the time limited he shall be deemed to have waived his right
thereto.' In a number of decisions this Court has held this requirement to be mandatory, and
that unless a bill of exceptions is served and filed within twenty days, providing the time has
not been extended by stipulation or order of the Court, the bill of exceptions will be stricken
upon proper motion. Markwell v. Gray, 50 Nev. 427, 265 P. 705; Joudas v. Squire, 50 Nev.
42, 249 P. 1068; Water Co. v. Tonopah Belmont Development Co., 49 Nev. 172, 241 P.
1079; McGuire v. Ehrlich, 49 Nev. 319, 245 P. 703; Bowers v. Charleston Hill Nat. Mines,
Inc., 50 Nev. 99, 251 P. 721, 256 P. 1058.
9. In the matter of the bill of exceptions now before us, in the accompanying opinion
dealing with defendant's said motion for extension of time we have pointed out that the
judgment in the instant case was rendered and filed in the lower court on the 16th day of
January, 194S, and, there having been no motion for a new trial, the time within which to
serve and file a bill of exceptions expired upon the expiration of February 5, 194S.
1948, and, there having been no motion for a new trial, the time within which to serve and
file a bill of exceptions expired upon the expiration of February 5, 1948. The bill of
exceptions was not filed until the 4th day of March, 1948, which was forty-seven days after
judgment and twenty-seven days after the time to serve and file same had expired. The bill of
exceptions cannot be considered by us, and, therefore, is redundant and merely surplusage,
and must be stricken. Plaintiff did not raise the question of the failure to settle the bill of
exceptions and to have it properly certified or authenticated, so that question is not properly
before us for determination. The determination thereof would, of course, add nothing to the
result.
The plaintiff has moved to strike, also, as hereinbefore stated, from the record on appeal,
certain minutes of the district court pertaining to the proceedings prior to and upon the trial
and subsequent thereto, in relation to the settlement of the findings; also to strike therefrom
the district judge's opinion and decision.
Section 8829, N.C.L. 1929, provides what shall constitute the judgment roll. The
enumeration in that section does not include the minutes of the lower court, nor the opinion
or decision. It has been repeatedly held by this court that no papers, documents or other things
not thus enumerated in the statute constitute any part of the judgment roll, and that any such
papers, documents or other things not thus enumerated cannot be considered upon appeal,
unless properly embraced within a bill of exceptions. Werner v. Babcock, 34 Nev. 42, 116 P.
357; Johns-Manville, Inc. v. Lander County, 48 Nev. 253, 240 P. 925; Markell v. Gray, 50
Nev. 427, 265 P. 705; Peri v. Jeffers, 53 Nev. 49, 292 P. 1; Brearley v. Arobio, 54 Nev. 382,
12 P.2d 339.
In the situation with which we are confronted in the instant case, neither the minutes
referred to nor the district court's decision and opinion were attempted to be made either part
of the judgment roll or of the bill of exceptions.
be made either part of the judgment roll or of the bill of exceptions. The confines of the
judgment roll are well delineated in the transcript on appeal, and properly designated, and the
same observation may be made as to the bill of exceptions.
10. The minutes referred to and the court's opinion and decision are not placed within the
confines of either the judgment roll or the bill of exceptions, but lie snugly between the two
in the transcript on appeal, which is entitled Record on Appeal. The bill of exceptions, not
having been filed in time, has never been other than a vagrant or fugitive document in the
record. Even if, by extreme liberality in relieving of mistake or inadvertence, the minutes and
the opinion and decision could be deemed part of the bill of exceptions, upon proper
application after due notice and proceedings to that end, for such construction to operate the
first essential would be the existence of a bill of exceptions filed in time and in other respects
valid. Such a bill of exceptions is absent in this case.
In dealing with the question whether an opinion and decision by the lower court is properly
a part of the record on appeal to the supreme court, Mr. Justice Norcross, in Werner v.
Babcock, supra, on page 44 of 34 Nev., on page 358 of 116 P., expressed the law clearly in
the following language:
Such a written opinion does not form any part of the judgment roll, and was never
intended to perform any function, other than an aid to the appellate court in the determination
of the appeal, which must be based, either upon the statement upon appeal, bill of exceptions,
or, where neither such statement or bill is filed, upon the judgment roll alone. Corbett v. Job,
5 Nev. 201; Reno Water Land & Light Co. v. Osburn, 25 Nev. 53, 56 P. 945. (Italics added.)
11. Upon striking the bill of exceptions, as we must, this appeal will remain upon the
judgment roll alone.
In Marlia et al. v. Lockwood, 54 Nev. 403, 20 P.2d 247, Mr. Chief Justice Sanders, in an
opinion concurred in by Justices Ducker and Coleman, stated:
This is an appeal from a judgment upon the judgment roll alone. Counsel for appellants
states that the opinion of the trial court on the merits of the case incorporated in the judgment
roll constitutes the basis of the appeal. This being so, under the decisions of this court the
opinion is no part of the judgment roll, and, unless embodied in a bill of exceptions, it cannot
be looked to to aid the court in the determination of the case upon its merits. Finding no error
in the judgment roll proper, the judgment is affirmed.
12. The minutes of the lower court and that court's opinion and decision, not being
embraced within, nor properly part of, the judgment roll, nor embraced within any valid bill
of exceptions, must be stricken.
It is hereby ordered that the motion of plaintiff to strike said minutes of the court, the
opinion and decision of the district court, and the bill of exceptions filed in the lower
court March 4, 1948, including the portion thereof denominated defendant's engrossed bill
of exceptions, and the court reporter's transcript of the proceedings, and each of them, be,
and is hereby granted. This leaves, as before stated it would do, the appeal pending in this
court upon the judgment roll alone.
The defendant has filed his opening brief upon the merits. The plaintiff is hereby given
thirty days from the date of the filing of this opinion within which to serve and file his
answering brief on the merits, and the defendant is given thirty days from the date of the
filing of such answering brief within which to serve and file his closing or reply brief on the
merits.
Badt, J., concurs.
Eather, C. J., because of illness, did not participate in the preparation or rendition of the
foregoing opinions.
____________
65 Nev. 313, 313 (1948) Dachner v. Union Lead Mining & Smetter Co.
R. H. DACHNER, Doing Business Under the Firm Name and Style of PACIFIC
MACHINERY & ENGINEERING COMPANY, Plaintiff and Respondent, v. UNION LEAD
MINING AND SMELTER COMPANY, a Nevada Corporation, Defendant and Appellant.
No. 3499
June 25, 1948. 195 P.2d 208.
1. Contracts.
Evidence failed to establish that alleged a contract for construction of flotation mill at a mine was ever
brought into existence either as an oral or as a written contract, hence judgment for profits lost by alleged
breach was error.
2. Contracts.
Where complaint sought recovery of a particular item on a quantum meruit basis, finding that plaintiff
was entitled to recover such items by reason of defendant's liability on contract constituted a fatal variance
where existence of contract was not established by evidence, notwithstanding that evidence would have
supported finding if it had been based on quantum meruit.
3. Damages.
In action for breach of contract to build a flotation mill at mine, plaintiff was not entitled to recover from
defendant corporation amount of attorney fees paid as a matter of accommodation for a third party, who
engaged attorneys to draft a new proposed corporate structure for defendant in connection with plan for
financing defendant.
4. Judgment.
Allowance of a greater sum for a particular item than that demanded in complaint was error where
complaint was not amended.
Where pleadings did not support judgment and they could not be amended in supreme court to meet the
situation, a reversal for a new trial was ordered.
Appeal from Second Judicial District Court, Washoe County, A. J. Maestretti, Judge.
Action by R. H. Dachner, doing business under the firm name and style of Pacific
Machinery & Engineering Company, against Union Lead Mining and Smelter Company, to
recover damages for breach of contract.
Judgment for plaintiff, and defendant appeals. Reversed and remanded for a new trial.
William S. Boyle, of Reno, W. E. Baldy, of Carson City, and Robert Emmet Berry, of
Virginia City, for Appellant.
Morgan, Brown & Wells, of Reno, for Respondent.
OPINION
R. H. Dachner, doing business under the name and style of Pacific Machinery &
Engineering Company, obtained judgment in the district court for the sum of $25,462.07
against the defendant, Union Lead Mining and Smelter Company, a Nevada corporation, for
damages growing out of the failure of the defendant to comply with the terms of an alleged
contract under which the plaintiff was to construct a flotation mill for the defendant for the
sum of $100,000. Defendant has appealed from the judgment and from the order denying its
motion for a new trial. The judgment in the sum above mentioned included an item of
$15,000 for lost profit, some $3,000 paid by the plaintiff for engineering services, $500
attorneys' fees paid for services in connection with incorporating a new company to
accomplish the financing of the project, and items of payments for machinery, wages and
sundry expenses, etc. The district court held as a matter of law that the parties had entered
into the contract alleged by the plaintiff, and included in its judgment all items of damage
claimed. If the lower court was correct in holding that a contract existed, we are then
confronted with a number of questions including (1) as to whether there was a breach of the
contract by the defendant, {2) as to whether the plaintiff had first breached his contract,
{3) as to whether such breach, if it existed, excused performance on the part of the
defendant, {4) as to whether the plaintiff's alleged breach was in turn caused by the
failure of the defendant to perform a condition precedent, {5) whether the items found by
the trial court were proper elements of damage under the circumstances, {6) as to the
court's findings of fact with reference to a number of items of damage holding that they
were necessary expenditures of the plaintiff "in pursuance of the obligations placed upon
him by said contract," whereas the complaint pleaded each of such items as a quantum
meruit, {7) the sufficiency of the proof of these elements, and sundry incidental
questions, including many exceptions growing out of the court's rulings on the
admissibility of evidence.
was a breach of the contract by the defendant, (2) as to whether the plaintiff had first breached
his contract, (3) as to whether such breach, if it existed, excused performance on the part of
the defendant, (4) as to whether the plaintiff's alleged breach was in turn caused by the failure
of the defendant to perform a condition precedent, (5) whether the items found by the trial
court were proper elements of damage under the circumstances, (6) as to the court's findings
of fact with reference to a number of items of damage holding that they were necessary
expenditures of the plaintiff in pursuance of the obligations placed upon him by said
contract, whereas the complaint pleaded each of such items as a quantum meruit, (7) the
sufficiency of the proof of these elements, and sundry incidental questions, including many
exceptions growing out of the court's rulings on the admissibility of evidence. On the other
hand, if we determine that the trial court was in error in finding that a contract had been
entered into between the parties but that the plaintiff is nonetheless entitled to relief as to
some of the items within the pleadings and the proofs, many of the questions enumerated will
not require our attention at this time. Thus we turn to a consideration of the facts to determine
the sole question of law first presented, namely, whether the trial court erred in finding that a
contract existed between the parties.
Was there or was there not a contract between the plaintiff and the defendant for the
construction of a mill by the plaintiff for the defendant for the lump sum of $100,000, which
sum, plus an additional $50,000 for the retirement of indebtednesses of the defendant, was to
be provided by the plaintiff and secured by the defendant's mortgage, but which was not to be
paid to the defendant until the defendant had first submitted a certified public accountant's
report showing the details of such aggregate indebtedness? Throughout the trial plaintiff
steadfastly asserted that such a contract existed, that he had proceeded under it in good faith
and was ready, able and willing to perform, was prevented from doing so by defendant's
failure to submit the promised audit, that this was the reason he had never advanced the
$50,000 or the $100,000 to provide the cost of the mill and that the defendant had
subsequently, without right, canceled his contract.
ready, able and willing to perform, was prevented from doing so by defendant's failure to
submit the promised audit, that this was the reason he had never advanced the $50,000 or the
$100,000 to provide the cost of the mill and that the defendant had subsequently, without
right, canceled his contract. Just as steadfastly the defendant maintained throughout the trial
that there never was any contract between the parties, that the matter never got beyond the
stage of negotiations, that the accountant's audit was never required as a prerequisite or
condition precedent and that even under the tentative negotiations, claimed by the plaintiff to
be a contract, plaintiff had entirely failed in his consideration by failing to advance the
$100,000 or the $50,000 or any amount whatsoever. These divergent views were made
manifest throughout the trial, were submitted to the district court at the conclusion of the case
and in the matter of the making of findings and conclusions and on motion for new trial and
were the main subject of contention as raised in the oral arguments before this court and the
lengthy briefs on file. Coupled with this situation is the further angle of the dealings of the
plaintiff with a group of third persons and the dealings of these third persons both with the
plaintiff and the defendantall with reference to the financing of the project by such group of
third persons.
At the conclusion of the testimony and the submission of the case to the district court
before which the case was tried without a jury, the learned district judge announced his
decision from the bench in seventeen lines as follows:
The testimony in this case leads the Court to the conclusion that there was a definite legal
contract between the defendant and the plaintiff to do the things set out, that is: To build the
mill and furnish the additional sum of $50,000 for the retirement of certificates and certain
obligations; And the Court feels that it is reasonable to assume, upon the various documents
that have been submitted, that these were obligations requiring the cooperation of the
company to assist Mr.
submitted, that these were obligations requiring the cooperation of the company to assist Mr.
Dachner in carrying out the terms of the contract, and that this cooperation that was made
necessary by the terms of the various communications was not carried out by the company. It
is therefore the judgment of the court that there was a definite contract between the company
and Mr. Dachner, and that by reason of the violation of the contract, that Mr. Dachner has
been damaged in the sum of $25,467.07 and that he have judgment therefor. (Emphasis
supplied.)
There was no formal written contract between the parties, and none such is claimed. There
were, however, sundry meetings of plaintiff with the officers of the defendant corporation and
with the directors of the defendant corporation and with groups of stockholders of the
defendant corporation held at San Francisco, at Carson City, at Reno, and at the mine. There
were also meetings and conferences between the plaintiff and the third party group. There
were also informal unsigned memoranda made by one or more of the parties as to what had
transpired at some of the conferences and meetings. There was testimony of oral proposals
and counter proposals and testimony seeking to establish one or more oral agreements
between the parties. In addition, there was an exchange of a great deal of correspondence. So
confusing was the record of all of these transactions running through the months of March,
April, and May 1946 and so confusing were the conflicting interpretations of these
transactions as contained in the briefs of counsel that, in an attempt to clarify and concentrate
upon the time and place and circumstances under which the minds of the parties had met or
were claimed to have met upon the contract, one of the justices at the oral argument asked
counsel for the respondent at the close of the latter's argument:
Q. Is it your contention that the contract was made on March 4th? A. Mr. Brown: It is.
Q. And that that was a completed contract? A. Yes.
Q. Then the respective parties knew what their rights and obligations were on March 4th?
A. At the meeting in the office of Mr. Dachner on March 4th, Mr. Dachner understood what
he was to do, and was ready to do it. Under our theory, the meeting of the directors and
stockholders at Carson City on the 10th day of March, 1946, was predicated upon the meeting
in San Francisco on March 4, 1946.
Q. At this meeting various proposals and counter proposals and tentative plans were
made, but your contention is the contract was madeA. March 4, 1946. And, may it please
the Court, the correspondence bears that out. For example, there will be found in the record
this letter referred to by Mr. Boyle, on the 8th of April, I believe it was, wherein he (Dachner)
writes a long letter as to just what power lines he was to put in, reiterates as to the kind of
mill, what the foundations were to be, etc. But prior to that time he had already obligated
himself. We contend that the contract was actually made March 4, 1946, in the office of Mr.
Dachner, in San Francisco, and was ratified by the letter, containing the resolution, of April 5,
1946, and this letter of April 8, 1946, and after March 4th, from that time on, both Dachner
and the defendant corporation were firmly bound, and that the meeting on the 10th of March
was merely complementary.
The plaintiff in his testimony also proceeds to identify the particular meetings,
transactions, etc., upon which he relies as establishing the subsistence of his contract: This
matter of going to these various men, meaning Mr. Blackwood, Mr. Conner and others (these
were the men who were financing the deal) was done on the strength of a contract with Union
Lead Mining & Smelter Co. of April 5th, and later augmented on April 17th. Later he
testified that all matters were to be finally ratified when the Union Lead Co. had complied
with the tenets of their agreement as of March 8th {March 10)."
(March 10). Still later he testified that he was relying upon a letter of April 17th from the
defendant to him. Later he referred to the necessity of the compliance by the defendant with
the conditions that had been agreed upon as of March 10ththe contract that was originally
madethe one which I have always based my whole work and plansthe one adopted by the
Board of Directors on March 10th. Later he testified that he relied upon the gentlemen's
agreement of March 4 with Somers, Blackwood, Thorwaldson, Conner and Peterson, that
later had to be verified and authorized and sanctioned by the Board of Directors at Carson as
of March 10th. Later he testified: I relied upon the orders given to me by the gentlemen
March 4th * * * ratification March 10th * * * correspondence * * * contract of April 5th and
letter of April 7th * * * directors' meeting of March 10th. By the April 7 letter he probably
meant the April 17 letter before mentioned. He also testified: I had a contract from them to
build a mill * * * I am depending upon, first, verbal agreement and contracts that I call from
man to man, between Mr. Somers and his directors, to tell me to prepare plans and
specifications for building a mill. Later on, the written contract which, for all intents and
purposes, was specifically intended to draw up a contract in order to facilitate building the
mill. He then indentifies the written contract to which he referred as the letter of April 5th
hereinafter set forth in full. He then testifies:
Q. And you took that to be an authorization to you? A. Yes Sir.
Q. That is what you took as an authorization to you? A. Yes sir, a contract.
Even making allowance for the confusion and errors in the recital of the actual dates of the
respective meetings, letters and other instruments, and for the error into which a layman
might readily fall in characterizing some particular conference or some particular instrument
as an agreement or a contract, it is still evident that much confusion exists and that a
careful scrutiny and analysis of the record must be made to determine at what point, if at
all, the minds of the parties met.
that much confusion exists and that a careful scrutiny and analysis of the record must be made
to determine at what point, if at all, the minds of the parties met. This involves a
consideration of the various meetings, conferences, proposals, writings, corporate meetings,
correspondence, etc. Although the complaint alleges that the contract was entered into on
about January 1, 1946, neither plaintiff nor his attorney predicates the former's claim on
anything that transpired prior to March 4, 1946, and the court's findings, prepared by
respondent, fix that date as the date of the contract.
On February 28, 1946 Somers had written to Dachner * * * so let me know at once what
it will cost for a flotation mill, say 75 to 100 tons * * *. Dachner replied on March 2, 1946
that he had seen Thorwaldson and Peterson and that they were calling a meeting with
Blackwood Monday (that would be March 2, 1946) at which time they will no doubt come
to some final decisions as to how to proceed on this deal * * * I am getting my figures
together. I have a 4 x 9 rod mill and a 6x5 ball mill, either of which will give you about 100
to 150 tons * * * I am going ahead to work up prices and delivery * * *. On March 4, 1946,
according to the testimony of Dachner, there was a meeting at his office at San Francisco
attended by himself, Somers, Peterson, Blackwood and Thorwaldson. Somers was the
president of the defendant corporation. Although Blackwood was a director, there is nothing
to indicate that he attended in such capacity. In fact it appears throughout the testimony that
he, Peterson and Thorwaldson were part of the group who contemplated financial investment
in the project. At that meeting Dachner explained the three methods for constructing a mill,
namely, (1) where the corporation makes its own plans and then goes out into the open
market to buy the machinery and build the mill; (2) where it hires someone to build the mill
on a cost plus basis; and (3) a turn-key job, under which the contractor agrees to build the
mill for an agreed fixed sum.1 He then testified: "After lengthy discussions each one had
their view expressed, their views, ratherand it was then and there decided that they
would prefer a turn-key job, and I was asked by all parties present to proceed on that
basis, including Mr.
build the mill for an agreed fixed sum.
1
He then testified: After lengthy discussions each
one had their view expressed, their views, ratherand it was then and there decided that they
would prefer a turn-key job, and I was asked by all parties present to proceed on that basis,
including Mr. Somers and Mr. Blackwood. In fact may I add that Mr. Somers was one of the
greatest proponents of a turn-key job because he maintained at that time that they were beset
with so many other problems that had to be done, underground, or the reorganizational
problems, and that he, himself, and others, were beset with many other duties; that they
wanted me to take the responsibility for building the mill.
Q. And did you, thereafterthat is after March 4, 1946, proceed, then, to prepare your
plans, specifications and estimates? A. I did. I had alreadybut I kept on, then, in earnest, of
course. I was invited to the meeting at Carson City, too, at that meeting * * *. It was decided
then in order to facilitate matters and bring the whole project before the Board of Directors
and the stockholders that a meeting should be called at the corporation's office in Carson City
to ratify all of the agreements, verbal agreements, that had been made between Mr.
Thorwaldson and Mr. Somers and myself. It was generally concluded that I had gone so far
with this preparatory work that something official should come out of the corporation's
directorate to make it authentic and with that view a meeting was called on the 4thno, on
the 8th of March. (The meeting was actually held March 10.)
On cross examination when asked when he first found out that he had a turn-key job, he
testified: March 4th was the time when the people that were responsible in this matter and
that were later present at the March 8th {10th) meeting at Carson City, told me that that
should be done."
____________________

1
The 1948 edition of Webster's International Dictionary gives the following definition: Turn-key job. Any
job or contract in which the contractor agrees to complete the work to a certain specified point and to assume all
risk.
(10th) meeting at Carson City, told me that that should be done. Later, on cross examination,
Dachner asked permission to make an explanation and, receiving such permission from the
court, he testified at some length that between the time of the resolutions of the Board of
Directors of March 8th (10th) concerning the change in the name of the corporation and the
new proposed corporate setup and the meeting of April 15th Mr. Somers had complained that
the progress was too slow and that on April 5th Dachner, Thorwaldson and Conners proposed
to raise the $150,000 for the purposes theretofore indicated, proceed to build the mill and let
the corporate reorganization proceed in the meantime, and that Somers then said, according to
Dachner: Let us give you a contract, meaning me (Dachner), and then these men can give
you the money to build the mill and the $50,000, and in order to secure that money we will
give you a first mortgage on our property. We interject this statement made by Dachner at
this point under our discussion of the March 4 meeting, for the statement ascribed by him to
Somers, Let us give you a contract (to build the mill and advance $50,000 to retire
indebtedness) would seem to be at variance with his direct testimony that such a contract
had been made on March 4th, or confirmed on March 10.
The plaintiff also called Blackwood to testify to what transpired at the meeting of March 4
in Dachner's office in San Francisco. He was first asked as to what part Thorwaldson was to
play and he explained that Thorwaldson was to have the sale of the stock and the proposed
corporate setup, and the right to sell stock in California was apparently discussed at some
length. He testified also as to the discussion of the necessity of having an audit made before
any deal could be concluded. When asked if there was any mention made at that meeting with
respect to the building of a mill by Dachner the witness answered: Well, I believe it was
conceded generally that * * * Mr. Dachner was the man that could build this mill for us; he
was familiar with what had to be done, and he had been introduced to various ones of us
by Mr.
with what had to be done, and he had been introduced to various ones of us by Mr. Somers;
and, as I recall it was just understood that he was to build it. Defendant moved to strike this
remark and the court in denying the motion said: He may testify as to his conclusion, based
upon what took place in the discussion among all those people and, if his conclusion is faulty
and not based on the facts, it isn't of any more value than anyone else. But, if the conclusion
is based upon what took place at that time between the persons, then his conclusion is subject
to such weight as it may have relation to the facts. Blackwood further testified that between
the March 4, 1946 meeting in Dachner's office and the May 27, 1946 meeting at Boyle's
office in Reno no change had been made to his knowledge in the status of any pending
agreement except the fact that Thorwaldson had dropped out and that Blackwood and Conner
would finance the propositionwould advance the required $150,000.
Blackwood was finally asked on cross examination if he ever remembered seeing a
contract of any kind in writing pertaining to the payments and the amounts to be paid and
when and where. This followed a reference to the plaintiff's exhibit No. 6 which was a letter
dated April 8, 1946 from plaintiff to defendant offering to build and install a mill for
$100,000 payable in five stipulated payments aggregating that sum. Blackwood replied: I do
not recall seeing the contract, but I have heard about it, and I had heard about it at that time,
or I wouldn't have been writing a check. He was then asked whether he referred to a formal
written contract, a specific contract, or letters that were written from time to time, and he
replied: I am referring to the moral aspect of it. He was then referred to the letter of April 5,
1946 in which the officers of the company notified the plaintiff that the directors had
authorized the officers to enter into a contract, and he indicated that that was what he
considered the contract.
Conner was also called to testify as to what occurred at this meeting.
at this meeting. Most of it was taken up by Thorwaldson's discussion of plans for financing.
Then Conner was asked if there was any discussion of the construction of a mill. He testified:
Yes, a mill was discussed and the selling of stock, or otherwhatever was proposed in
theremoney raised by that proposal was to pay for the mill.
Q. Who was to build that mill, if that were discussed? A. Mr. Dachner.
The foregoing references have to do only with the testimony of the plaintiff's witnesses
and without consideration of any of the denials made by the officers and witnesses of the
defendant. The plaintiff did not call Thorwaldson or Peterson to testify as to what took place
at this or any other meeting. They were not at any time sworn as witnesses in the trial. It is
clear that the plaintiff failed entirely to prove that a contract was entered into between the
parties at the meeting of March 4, 1946.
The asserted contract of April 5, 1946, is evidenced by plaintiff's exhibit No. 5, which is in
the following words:
Exhibit No. 5
2

Union Lead Mining & Smelter Co.
First National Bank Building
Carson City, Nevada
Warren E. Baldy
Sec. and Treas.
April 5, 1946
Pacific Machinery & Supply Co.,
156 Montgomery Street,
San Francisco, California
Gentlemen:
At a special meeting of the Board of Directors of the Union Lead Mining
____________________

2
Although defendant maintains that this letter was written at the insistence of plaintiff so that plaintiff could
have something to show when he returned to California to arrange for the financing with Thorwaldson,
Conners, Peterson and others, we treat the letter under plaintiff's theory that it came from defendant pursuant to
its own judgment and desires and without solicitation or suggestion from plaintiff.
the Union Lead Mining & Smelter Company held this 5th day of April, 1946, at the office of
the Company at Room 7, First National Bank Building, Carson City, Nevada, a resolution
was adopted authorizing the proper officers of the Company to enter into an agreement with
the Pacific Machinery & Supply Company of San Francisco to erect and construct on the
property of the Company a Selective Flotation Mill with a capacity of from 100 to 125 tons
per twenty-four hours at a cost of $100,000 and with the further understanding that the said
Pacific Machinery & Supply Company would advance to the Company the sum of
$50,000.00 for the purpose of retiring certain obligations of the Company. And the Officers
of the Company were further authorized to secure the said total sum of $150,000.00 by
executing a mortgage running to the said Pacific Machinery & Supply Co. covering all the
physical assets of the Union Lead Mining & Smelter Co., including ore in the mine, and the
said $150,000.00 to be repaid out of production at the rate of 20% of the gross returns from
the sale of concentrates.
Respectfully,
Union Lead Mining & Smelter Co.
(Signed) By John H. Somers,
President.
(Signed) By W. E. Baldy,
Secretary.
This is patently not a contract. Consider in this connection the testimony of Dachner in
which he described the nature of the mill to be installed. It took him approximately 800 words
to give only a summation of the items without detail of any kind, to say nothing of the
numerous blueprints that were admitted in evidence and for which the engineers are said to
have been paid over $3,000. It is, as it purports to be, a letter stating that the directors had
authorized the officers to enter into a contract for the construction of a mill. While a few
general terms are outlined, it is so patent that the minds of the parties did not meet on any
contract by virtue of the instrument itself that the same cannot by any stretch of the
imagination be called a contract.
the minds of the parties did not meet on any contract by virtue of the instrument itself that the
same cannot by any stretch of the imagination be called a contract. Nor is it an agreement to
enter into a contract. Such contract would necessarily have provided for items mentioned in
Dachner's summation, including among others, construction of the Galena Creek cofferdam,
pipeline, pump, electrical equipment, transmission line, automatic devices, storage tanks,
pipeline to mill, treatment of product leaving mill, conditioner tanks, flotation cells, filter
material, fire protection system, compressor house, domestic water supply, rebuilding of
crusher plant, installation of grizzly, connection with Symon's cone crusher, jaw crusher,
primary bin, bucket elevator, mantle, increase of crusher capacity, rewiring of electric motors,
magnetic switches, armored cable, rewiring electrical installations, new switches,
construction of 4-mile power line, installation of transformers, primary disconnector, and
distribution panels, etc. It will also be noted that if this instrument is the one on which
plaintiff relies as his written contract, it makes no mention of any requirement that defendant
submit an audit as a condition precedent to plaintiff's advancement of $50,000. It should also
be noted that three days later plaintiff wrote a rather detailed letter outlining what he proposed
to do and when and in what installments the price must be paid. Defendant never accepted the
terms of such proposal. Further, Dachner testified that on April 5, I was practically at the
half-way mark, in the sense of spotting machinery, having tentative plans formulated,
sketches made * * *. And his letter of April 8, 1946, he himself, identifies as a proposal.
Dachner, insisting that he had a written contract, was asked on cross examination, When
did you give it? He replied: Oh, I presented it first, to the gentlemen, Mr. Thorwaldson and
Mr. Blackwood and Mr. Peterson. I believe it was on the March 8th meeting * * *. I had
worked on these plans on the primary work for about a month or more.
about a month or more. (In this the witness must have been in error. It would date the
beginning of his efforts as about the first of February, whereas nothing is claimed before
March 4.) Mr. Somers was always after me for a final figure on the final presentation, the
facts. I said John, as soon as I have it you shall have it.' Now at this meeting we held
immediately after I finished my figures, I called these gentlemen in and says, Here they are,'
and on the same day I sent a copy of it to Mr. Somers.
It subsequently developed that the date referred to was probably April 8 instead of March
8. This tallies with the witness's testimony that he had been working on the matter for about a
month. In any event it seems clear that Somers was waiting for Dachner to submit plans and
estimates. This was definitely done by a letter prepared by Dachner, dated April 8, but which
was misaddressed to a different company in San Francisco and was never received by the
defendant, who first received a copy of such letter in July. Such letter dated April 8, 1946 is
addressed to the directors, the Union Milling and Smelting Co., successors to the Union Lead
Mining and Smelter Co., San Francisco, California, and states in part: In accordance with the
understanding reached some time ago we have compiled the necessary information requisite
to the modernization of the present installation * * * and the machinery necessary for erection
of a milling plant * * *. The letter then lists eight items in some detail as an apparent outline
for the basis for a contract, lists the complete price as $100,000 with a down payment of
$19,000, and four deferred payments. These five payments aggregated $85,000The
balance to be taken out of production based on 20% of the gross value of concentrates sold or
stock in the new company.
The letter comprises two pages of single spaced typewriting. It apparently is the first
information given by plaintiff to defendant of even the general nature of the proposed
installation.
the proposed installation. According to the plaintiff it was handed to the financial group
immediately upon its complete preparation on April 8, 1946, with a copy misaddressed to the
defendant and the original of which the defendant never did see but saw a copy for the first
time the following July. It is also the first communication or advice that purports to outline
the method of paymentone cash payment, four deferred installment payments and a final
payment of $15,000 for which defendant was apparently given an option to pay by taking
20% out of gross proceeds of concentrates or by stock in the new company. It is apparent that
in addition to agreeing to the terms of a detailed contract other important points were left
open for negotiation. This is clear without further elaboration. The only possible logical and
legal conclusion is that the letter of April 8 was simply an offer. It was never accepted.
Conner also testifies to the April 8 (10), 1946 meeting; that the letter of April 5 was
submitted there. Somers was not present.
However, March 10 is also definitely identified in the testimony as a general meeting of
directors and stockholders. At this meeting there were present Somers, the president and
general manager of the defendant, Baldy, secretary-treasurer, Floe, a director, McFarland,
McMillan, Conner and Baldy's secretary. Dachner testifies: It was a general directors and
stockholders meeting and theyvarious propositions that Mr. Thorwaldson presented to
them were discussed and none of them was adopted and I believe the minutes of that meeting
are on file herein evidence. This was the meeting previously referred to by Dachner as
being called pursuant to the San Francisco meeting of March 4th. At that time he says that it
was decided in order to bring the whole project before the board of directors to call a special
meeting at Carson City to ratify all of the agreements, verbal agreements, that had been
made between Mr. Thorwaldson, Mr. Somers and myself.
Something official should come out of the corporation's directorate to make it authenticso a
meeting was called for March 8.
Conner definitely identifies this meeting as being on a Sunday, which would make it
March 10th, and identifies the same persons as being present at Mr. Baldy's office at Carson
City. This also corresponds with the penciled date on Thorwaldson's memo of that meeting.
Conner says that Thorwaldson took up most of the day discussing the new setup and
eventually dictated a proposal to Baldy's secretary. Conner made the penciled notes on
backpersonal notes made later. (They) have nothing to do about this. He says that the
money raised by that proposal was to pay for the mill. The typed memo dictated by
Thorwaldson reads as follows:
We propose to set up a new company and issue new 5% $100.00 par convertible
preferred stock and also $1.00 par common stock on the following basis:
To the holders of the present outstanding 6% Production Certificates, the new convertible
preferred stock for each $100.00 actual cash invested, and 110 shares of new $1.00 par
common for each $250.00 in services rendered as a bonus.
To the stockholders of the Nevada Ore Reduction Co., we propose to issue one share of
new convertible preferred for each $100.00 actually subscribed in the stock of the Nevada
Ore Reduction Co. and a bonus of 20% of new common stock.
To take care of the item listed in the balance sheet of the Union Lead Mining & Smelter
Co. under Deferred Liabilities,' an adjustment be made in each case under which some cash
is to be paid to the creditor or the stockholder and the balance in the new convertible
preferred stock of the new company.
This was signed by nobody, accepted by nobody, was binding on nobody. On the back of
the paper is the following penciled memorandum made by Conner: 1st. auditor's report in its
entirety. Engineering reports, maps, record of smelter returns to property. 2. Change in B of
D {board of directors). 3. Change in management. 4. 30-day irrevocable option with
privilege of unrestricted access to the property and its recordscopy auditor's
reportcopy of all engineer's reportscopy of smelter reports."
maps, record of smelter returns to property. 2. Change in B of D (board of directors). 3.
Change in management. 4. 30-day irrevocable option with privilege of unrestricted access
to the property and its recordscopy auditor's reportcopy of all engineer's reportscopy of
smelter reports.
This is relied on to support Dachner's testimony that the furnishing of the auditor's report
by defendant was a condition precedent to Dachner's payment of $50,000 to pay the
company's debts. It can have no such effect under the circumstances.
Respondent read in evidence the minutes of the directors' meeting held at Carson City,
March 10, 1946. These minutes, however, deal entirely with Thorwaldson's offer to
incorporate a new company for $2,500,000 comprising 5,000 shares of convertible preferred
stock of the par value of $100 per share and 2,000,000 shares of common stock at $1.00 per
share. The new corporation was to take over all of the assets of the old corporation, the old
stockholders were to be taken care of, likewise the holders of the outstanding 6% production
certificates, likewise the stockholders of the Nevada Ore Reduction Company, likewise items
of deferred liabilities. After the formation of such new corporation Thorwaldson was to erect
and construct a 100-ton unit flotation mill or to erect a smelter if that seemed most feasible
and advantageous. The minutes further showed that such offer could not be accepted without
disposing of an ore milling agreement with the Nevada Ore Reduction Company nor could
the appellant corporation bind the stockholders of Nevada Ore Reduction Company or the
production certificate holders, but it was resolved that Thorwaldson's proposal be accepted
subject to the approval and agreement of such other interested parties and subject to certain
adjustment of items included in the deferred liabilities. The minutes made no mention of any
contract with Dachner and did not even mention his name. As heretofore noted Conner, a
witness for plaintiff, was asked if there was any discussion at this meeting about the
construction of the mill.
ness for plaintiff, was asked if there was any discussion at this meeting about the construction
of the mill. He said, yesthat the money raised by Thorwaldson's proposal was to pay for the
mill. He was then asked, Who was to build that mill, if that were discussed? A. Mr.
Dachner. Yet Dachner insisted when testifying that this meeting fixed the conditions that
had been agreed upon in connection with the construction of the mill and with which the
defendant corporation was required to complythe conditions that had been agreed upon as
of March 10ththe contract that was originally madethe one which I have always based
my whole work and plansthe one adopted by the Board of Directors on March 10th. It is
evident that there is nothing in these minutes constituting a contract.
Reno Meeting of May 27, 1946
As testified to by Conner he was present at this meeting, which was also attended by
Somers, McFarland, Dachner and Boyle. The parties were present in Reno at that time over
Thursday, Friday and Saturday, May 26, 27 and 28. At the meeting Boyle prepared a typed
memo as follows:
1st: Books to be experted By C.P.A.
2nd: Corporationall common should be placed in hand of tax expert as to
whether it should be all common or part preferred.
2,500,000 shares par value............................................................................ $1.00
3rd: All people come back on cash basis6% per year for each year payable in
stock. Rule of 2 to 1 prevails as in Sec. 6 hereof.
4th: Dachner, Somers, Boyle to sign checks.
5th: Stock to be sold on cash deal. The parties that come in now shall have a better
standing.
6th. Mr. Dashner and Mr. Conners to be put up $150,000.00 to take stock at 50 a
share, which will be 300,000 shares of stock. (No commission).
Mr. Dascher to have full supervision of construction of mill, and to operate same for 60
days after completion.
John to raise buildingsall materials to be used for re-construction Dascher's
responsibility.
Mr. Dascher's expenses for construction and operation of mill to be allowed for operation
period. ($500.00 a month.)
Re-incorporation of present structure to be determined by Baldy, Boyle and C.P.A.
Legalize in Californiasee to it.
Title search.
Conner testified that it was agreed at that meeting that all of the items above listed would
have to be done before the $50,000 was paid and $100,000 balance raised and turned over for
a mill. This, however, had to do with the relationship of the investors to the defendant
corporation and possibly to Dachner. As to supporting any theory of a contract made at that
meeting between defendant and plaintiff for the construction of a mill by the plaintiff the only
testimony is as follows:
Q. Now, what was the $100,000 to be used for? A. The erection of a flotation plant.
Q. And that was to be done by whom? A. The plant to be built by Mr. Dachner.
Q. Was there any discussion about the mill situation and its progress at that time and
place? A. Mr. Dachner reported progress as to plans, specifications, and stated that he was
ready to go ahead the minute the money was ready, and the money couldn't be ready until the
deal was cleared up.
Conner had theretofore paid $5,000 to Dachner. He repeated again the six things that were
to be done before the $50,000 was to be paid to the company and that the failure to perform
these things was the reason that the $50,000 had never been delivered to the company, that
the witness was always ready to produce it. Blackwood also testified to what transpired at this
meeting. He first testified that no money was to be advanced till compliance with several
requirements, including the auditor's report etc.
first testified that no money was to be advanced till compliance with several requirements,
including the auditor's report etc. Then: My understanding was that the mill was to be built.
Mr. Dachner was to build a mill, continue to get the materials together for the deal * * * I
know that he had been told to build a mill on previous occasions, and to my thinking he was
still instructed to build a mill * * *. But I don't recall whether there were any specific
instructions directed toward him or not at that meeting. He testified that he knew that
between the March 4 meeting and the May 27 meeting Dachner had had engineering plans
drawn, a test and analysis run, had placed orders for a ball mill and classifiers and a great
portion of the machinery that he already had.
Conner and Dachner drove to the mine on July 19, 1946 and met Somers and Blackwood.
Somers and Dachner had a conversation that Conner did not hear, but later they had a meeting
with Mr. Baldy in the latter's office. The deal was again discussed and Dachner and Conner
were asked to put their proposition in writing. They dictated to Mr. Baldy's stenographer, who
later became ill and the notes were not transcribed, so Conner returned to San Francisco and
mailed a proposition, under date of July 23, 1946, which was promptly rejected. Conner also
testified that during all this time, up to the time this proposal was rejected. Somers knew that
Dachner was going ahead with the building of the mill as far as he could. Dachner's testimony
concerning the June and July negotiations only strengthens the conclusion that even at this
late date the parties (the plaintiff and his financial associates on the one hand, and the
defendant on the other) were still negotiating as to the financing, and that the actual
production of the necesssary funds resulting from such financing was essential to the
construction of the mill.
Plaintiff introduced a letter from Somers (plaintiff's exhibit 16), dated March 23, 1946, in
which Somers explained that he had another group ready to finance the company if the
San Francisco financing was not consummated.
explained that he had another group ready to finance the company if the San Francisco
financing was not consummated. In the letter Somers wrote: Again don't get tied up unless
enough is put up to go through and no new Co. now. This one is being reorganized to fit this
picture. At the beginning of the letter he wrote: Your letter received and am glad that you
feel like going ahead. But first be sure that a minimum of $150,000 is pledged before we
start. Otherwise I feel Baldy & Mack won't feel like giving a mtg.
Dachner had testified that he was ready to perform his contract on May 1, 1946. This in
turn was tied in to a wire he had sent Somers April 14, 1946 as follows:
With four thousand in addition to fifteen thousand already received and balance
guaranteed me per my schedule April 8 I can start construction of plant Wednesday May 1st
you to shut down on that day clear buildings of lumber and machinery and turn all your men
over to me until job is completed or released by me. Think with everybody cooperating
transfer can be made in time to supply fifty thousand cash and balance of money for project as
needed. Prefer delaying trip as I can rush job by staying here for present but will come if
imperative.
But Somers replied to this wire the following day rejecting the suggestions and saying:
But one thing sure I don't close down until the mill is fully financed. Money in bank to your
credit. No gamble and no squeeze.
The Letter of April 17, 1946
This is constantly referred to by Dachner as confirming the asserted oral contract to build
the mill and as authorizing such construction. But such interpretation of the letter is entirely
without foundation. The letter is in response to the plan submitted by Attorney M. C.
Crimmins, Jr., of San Francisco for the incorporation of a new company with specified
purposes, capitalization, etc.
etc. Crimmins's firm, it will be remembered, were Thorwaldson's attorneys whose fees in the
matter were advanced by Dachner as an accommodation to Thorwaldson. The April 17 letter
gives six detailed and numbered reasons why the requirements of the Crimmins plan are not
agreeable to us. The letter proceeds: So we now propose the following. A detailed plan is
then outlined in seven separate paragraphs covering proposed amendment of the corporation's
present articles, increase of capital stock, issuance of preferred and common shares, calling in
the old shares, increasing the board of directors, qualifying the corporation in California,
temporarily financing by mortgage the construction of a mill, paying a 10% commission for
raising the money, and optional provisions for discharging the mortgage with corporate stock.
Mr. Crimmins's letter was a proposal. The defendant's letter of April 17 was a rejection and a
counter proposal. The one clear conclusion to be drawn from the letter is that the whole
matter, including the financing of the company and the construction of the mill, was still in
the negotiating stage.
The court in denying a motion made by defendant to strike a certain answer of the witness
Blackwood stated: It is the witness's own method of explaining how he arrived at the
conclusion that there was a contract. After further protest by defendant's counsel the court
said: Just a moment. Maybe I can help you out a little. Taking into consideration the two
letters that have been shown you, and the other meetings and conferences that you testified to,
did you determine from all those things put together that, to your satisfaction, Mr. Dachner
had a contract? Blackwood answered:
I did, Judge.
Mr. Boyle: Well, I object to that on the ground it calls for a conclusion of the witness.
The documents themselves speak for themselves, your Honor. What {construction) he puts
on it doesn't make any difference.
(construction) he puts on it doesn't make any difference. The court has to do that. * * *
The court: The objection is overruled and the motion to strike is denied.
In the 600 page transcript and the 106 exhibits there is naturally a great deal of evidence
that cannot be discussed within the scope of this opinion. We have covered most of the
material evidence relating to the trial court's finding as a matter of law that the parties had
entered into a contract for the construction of the mill. Many letters were received in
evidence, some entirely immaterial and some containing suggestions and propositions by one
party or the other which were in turn either definitely rejected or left without action. A
number of the letters from Somers to Dachner keep insisting that he should not proceed until
the financing is definitely settled. They warn him repeatedly of this.
Throughout the entire situation it becomes manifest that so far as concerns the abortive
attempts of the parties to enter into a contract there were three distinct parties or groups, (1)
the defendant corporation, Union Lead Mining & Smelter Co., (2) Dachner, the alleged
contractor, and (3) the group of people who were financing the project. Any construction of
the mill was inextricably bound to the financing of the cost thereof, which was estimated at
$100,000 and which would also necessitate the furnishing of approximately an additional
$50,000 to pay off certain production certificates and other debts. This was essential because
the production certificates were secured by a deed of trust upon the corporation's property and
the plan involved a first mortgage to secure the repayment of the $100,000 as well as the
$50,000. The three groups were at a constant impasse. Somers, the president and general
manager of the defendant corporation, was constantly importuning Dachner for action, and
such desired action appeared to be the submission of his plans and specifications to indicate
just what he proposed to do for the $100,000 and the submission as to what progress was
being made in making the $150,000 available.
for the $100,000 and the submission as to what progress was being made in making the
$150,000 available. The financial group on the other hand were continually pressing Somers
either directly or through Dachner to submit his audit so that they would know that the
$50,000 to be advanced by them would free the corporation of all claims. Dachner was
likewise pressing Somers for the audit and was also meeting with the financial group to
accomplish the financing. In the course of the negotiitions Thorwaldson, who had pledged
$5,000, dropped out, but Conner and Blackwood had each paid $5,000 to Dachner. Dachner
quite definitely identified himself with the financial group and it appeared quite clearly at
times that the negotiations continued between Dachner and the financial group on the one
hand and the corporation on the other. After testifying that he presented his plans for the mill
to Thornwaldson, Blackwood, Conner and Peterson, Dachner was asked on cross
examination why he presented the plans to them before presenting them to Somers. He
answered:
They were vitally interested because they were
Q. They were vitally interested? Now, to what extent? A. Of giving me the money for it.
Q. In other words, it is not a fact that you looked upon them to finance this matter and to
pay for the construction of the mill? A. Of course. I knew that Mr. Somers had no money.
That is why he came to us.
Appellant attacks plaintiff's complaint and also the court's findings as not being within the
issues made by the pleadings or supported by the evidence. The complaint alleged that on or
about the 1st day of January, 1946 (later amended to reach March 4, 1946) defendant
requested plaintiff to draft plans and install a mill * * *; that pursuant to said request
plaintiff did draft plans, purchase and deliver machinery and material * * * and incurred
expenses at the request of defendant as follows: There are then alleged items of
metallurgical and engineering expense, payments on account of machinery and lumber,
payment of watchman's services for the guarding of the lumber, salaries for engineering
inspection and service, telephone, telegraph and traveling expenses and $15,000 lost
profit, all aggregating the sum of $27,03S.92.
of machinery and lumber, payment of watchman's services for the guarding of the lumber,
salaries for engineering inspection and service, telephone, telegraph and traveling expenses
and $15,000 lost profit, all aggregating the sum of $27,038.92. Upon the submission of the
case the plaintiff voluntarily withdrew his claim for items aggregating $1,576.85, and the
court rendered judgment for the balance, being the full amount claimed by plaintiff,
$25,462.07.
1. It is unnecessary for us to discuss the legal aspects of a situation under which lost
profits are recoverable for a breach of contract, as it is evident from a mere recital of the
testimony that plaintiff and defendant never did enter into an oral contract for the construction
by the former of a mill for the latter. The only testimony that could have supported a finding
that the parties had entered into an oral contract was the testimony of Dachner, Blackwood
and Conner to their respective conclusions that this had been done, although none of them
testified even remotely as to what the terms or conditions of such oral contract were. The trial
court apparently accepted the conclusions of these witnesses. It is just as clear that there was
no written contract. Both the plaintiff and the plaintiff's attorney tied themselves down
definitely to the specific conversations, meetings, letters, memoranda, etc., upon which they
relied for the establishment of such contract. Irrespective of the contradictions and
discrepancies in such claims, a most careful scrutiny of all the evidence offered fails to
establish a contract. The judgment for $15,000 lost profits is accordingly in no way
authorized, justified or substantiated by the evidence.
2. The situation as to plaintiff's right to recover for the other items claimed by him
involves greater difficulty. Astonishing as the situation was, with two men of business
experience and ability such as Somers and Dachner, with their plans and their activities in the
midst of negotiations that arrived nowhere, there were circumstances justifying some of
Dachner's claims to reimbursement.
circumstances justifying some of Dachner's claims to reimbursement. Thus on April 14, 1946
(when Thorwaldson was still working with Dachner and had pledged a $5,000 contribution to
the financing), Somers wrote Thorwaldson complaining of the sidetracking of Dachner's
mortgage deal, but stating: However the machinery is arriving for the mill, and I will arrange
to pay for it just the same as if there was no deal pending. And on April 15 Somers, while
insisting in a letter to Dachner that he would not start the mill with partial financing,
nevertheless wrote: The cells you have here I will pay for and any other machinery
received. In his constant insistence that Dachner submit his plans, Somers knew that
Dachner was employing engineers for the purpose. A designing engineer, Herman A. Ruth, in
the employ of the engineering firm of Hamilton, Beauchamp & Woodworth inspected the
property with Somers' assistance on April 4, 5 and 6, pursuant to which a set of 12 blueprints
for the mill were prepared and submitted to Dachner on April 30. Somers was cognizant of
the purpose of Ruth's visit to the property. Somers furnished Dachner with ore samples for
metallurgical tests. Had a contract been entered into for a turn-key job, such contract might
indeed have provided that the engineering expense be included in the lump sum price. The
complaint alleged that the defendant requested the plaintiff to draft plans and that pursuant
to said request the plaintiff did draft plans. The complaint further alleged that plaintiff had
employed the engineers to draw the plans and to make metallurgical tests, etc., at the special
instance and request of the defendant and that plaintiff had expended $3,879 on this item. The
court's written findings were to the effect that this sum (reduced to $3,229) had been paid by
plaintiff in pursuance of the obligations placed upon him by said contract to build said
flotation mill and in the performance of the same, and that sum was the reasonable value of
said services rendered to plaintiff by reason of the obligations incurred by plaintiff pursuant
to the contract between himself and defendant."
obligations incurred by plaintiff pursuant to the contract between himself and defendant. No
amendment in the pleadings was sought by the plaintiff in this regard. The confusion and
inconsistency between the quantum meruit pleaded by the plaintiff and the liability on
contract found by the court under findings drafted and submitted by the plaintiff and objected
to by the defendant are obvious. If the court had found this item due by reason of the quantum
meruit pleaded by the plaintiff, the finding would be binding upon us as it has substantial
support in the evidence. This applies to a greater or less degree to many of the other items for
machinery, services and expenses. As to items expended by the plaintiff for machinery, these
of course could be items of damage only to the extent that plaintiff was actually damaged
after taking into consideration resales of such machinery or the value of such machinery still
in the plaintiff's possession. Indeed plaintiff testified that, under advice of his attorneys
requiring him to minimize his damage, he had made disposition of a number of such items.
3, 4. At the close of the oral arguments to the trial court plaintiff submitted to the court a
list in condensed form of the items and amounts of the damages claimed. This list was not
introduced in evidence, but appellant's counsel has set it forth in his opening brief and
respondent has taken no exception thereto, so we may assume its accuracy. The total of the
sums is the precise amount for which the court rendered judgment, and the items appear to
coincide with the court's findings. One item included in such list and in the findings and in
the judgment is an item of $500 paid to Messrs. Crimmins, Kent & Draper of San Francisco.
The evidence shows conclusively that the services of these attorneys in drafting a new
proposed corporate structure and the necessary steps to be taken in compliance with the
requirements of the California Corporate Securities Act and of the Federal Securities and
Exchange Commission were rendered on behalf of Thorwaldson, and that Dachner
advanced the attorney fees as an accommodation to Thorwaldson.
65 Nev. 313, 341 (1948) Dachner v. Union L. M. & S. Co.
dered on behalf of Thorwaldson, and that Dachner advanced the attorney fees as an
accommodation to Thorwaldson. The only theory of liability for this item advanced by
respondent is that such legal work was incidental to his alleged contract to build the mill.
This theory we must reject as without reason or foundation. Incidentally it may be mentioned
that the complaint fixes this item in the sum of $327 and was not amended in this respect.
The expense account submitted by the plaintiff was allowed by the court in its entirety.
Some of the items thereof would appear to be in the same category as the attorney fee paid on
behalf of Thorwaldson and not chargeable against the defendant, but it is difficult to extricate
these from Dachner's expenditures in compliance with Somer's constant insistence that
Thorwaldson and his associates or Conner and Blackwood complete and submit their plans
for financing.
5. It is evident from what we have said that the judgment must be reversed and the case
remanded for a new trial, as the pleadings and findings cannot be modified in this court to
meet the situation. It is accordingly ordered that the judgment and the order denying
appellant's motion for new trial be, and the same hereby is, reversed and the case remanded to
the district court for a new trial in accordance with the views herein expressed, and pursuant
to such amendments in the pleadings as may be allowed in the discretion of the court and in
accordance with any terms and conditions it may reasonably impose and whether made before
such new trial or before submission of the cause in order to conform with the proofs. The
appellant will recover its costs on this appeal.
Horsey, J., and Brown, District Judge, concur.
Eather, Chief Justice, being absent on account of illness, the Governor commissioned Hon.
Merwyn H. Brown, of the Sixth Judicial Court, to sit in his stead.
____________
65 Nev. 342, 342 (1948) Harris v. Harris
ANNABELLE HARRIS, Appellant, v. GEORGE
HARRIS, Respondent.
No. 3511
July 28, 1948. 196 P.2d 402.
1. Statutes.
Where statute is taken from another state, it is presumed that it was adopted by the legislature with a
construction given it by the courts of that state before its adoption.
2. Dismissal and Nonsuit.
A court of record, without the aid of statutory authority, possesses the power to dismiss an action because
of plaintiff's failure to prosecute with reasonable diligence.
A court of record has inherent power to dismiss a cross complaint for lack of diligence in its prosecution.
Inherent discretionary power which a court of record possesses to dismiss an action for want of
prosecution remains unimpaired unless it is expressly limited by statute.
Statute relating to dismissal of action for want of prosecution whenever plaintiff has failed for two years
after action is filed to bring such action to trial was not applicable to a dismissal on motion of plaintiff for
failure of defendant to use due diligence in prosecution of cross complaint after reversal of case by
supreme court, where the issues raised upon the cross complaint and answer were completely severable
from the issues upon the original complaint and answer. N.C.L. 1931-1941 Supp., sec. 9932.
Court has mandatory duty under statute to dismiss an action if not brought to trial within three years from
filing of the remittitur. N.C.L. 1931-1941 Supp., sec. 9932.
Mandatory provision of statute requiring court to dismiss an action if not brought to trial within three
years from the filing of the remittitur does not impair or circumscribe the inherent power of the court to
dismiss in a shorter period. N.C.L. 1931-1941 Supp., sec. 9932.
Where motion of plaintiff to dismiss cause for failure of defendant to use due diligence in prosecution of
cross action after reversal of case by supreme court was not embraced by terms of the statute, the trial court
properly resorted to its inherent power to pass on the motion for dismissal. N.C.L. 1931-1941 Supp., sec.
9932.
The only limitation upon the discretionary power of the court to dismiss a cause for delay in its
prosecution is that it must not be abused.
The discretion of court to be exercised, under the circumstances of the particular case, to dismiss a cause
for delay in its prosecution, is a legal discretion, to be exercised in conformity with spirit of the law and in
such a manner as to subserve and not to impede or defeat the ends of substantial justice.
Unless it is made to appear that there has been a gross abuse of discretion on the part of the trial court in
dismissing an action for lack of prosecution, its decision will not be disturbed on appeal.
12. Divorce.
Trial court did not abuse its discretion in granting motion of plaintiff to dismiss divorce action for failure
of defendant to use due diligence in the prosecution of her cross complaint after reversal of the case by the
supreme court. N.C.L. 1931-1941, Supp., sec. 9932.
Divorce action by George Harris against Annabella Harris wherein the defendant filed a
cross complaint. Judgment of dismissal entered on motion of plaintiff for failure of defendant
to use due diligence in the prosecution of her cross complaint after reversal of the case by the
Supreme Court and defendant appeals. Affirmed.
Lewis, Haskins & Cannon, of Las Vegas, for Appellant.
OPINION
By the Court, McKnight, District Judge:
This is an appeal by defendant from a judgment of dismissal, rendered on motion of
plaintiff, for failure of defendant to use due diligence in the prosecution of her cross
action after reversal of the case by the supreme court, and because said cross
complainant "does not intend to proceed with a new trial, * * * and has abandoned the
same and her cause of action on her cross complaint."
dismissal, rendered on motion of plaintiff, for failure of defendant to use due diligence in the
prosecution of her cross action after reversal of the case by the supreme court, and because
said cross complainant does not intend to proceed with a new trial, * * * and has abandoned
the same and her cause of action on her cross complaint.
The record discloses the following facts:
On July 15, 1942, respondent, as plaintiff in the trial court, filed his action for divorce on
the ground of three years separation. Issues were joined upon that question, as well as upon
questions raised in the cross complaint filed by appellant, as defendant and cross complainant
in the trial court, wherein she prayed for separate maintenance on several grounds.
After trial and rendition of a special verdict by a jury on December 13, 1943, the court
entered its decree granting plaintiff a divorce. Upon appeal by defendant on the judgment roll
alone, the judgment was reversed and a new trial ordered. Harris v. Harris, 62 Nev. 473, 153
P.2d 904, 159 P.2d 575. The remittitur of this court reversing the judgment was filed by the
clerk of the trial court on July 10, 1945.
On October 11, 1946, defendant filed a petition in a Massachusetts court, wherein, as a
petitioner, she prayed that respondent, his agents and attorneys, be restrained and enjoined
from further prosecuting this action, and from doing any act in furtherance of such
prosecution, and for the issuance of a mandatory injunction ordering said respondent, his
agents or attorneys, to effect forthwith, a dismissal of this action, and to take such other
action as may be necessary to terminate the said proceedings by means of a nonsuit or
dismissal or other appropriate decree discontinuing or dismissing said proceedings. An
injunction was thereafter granted by the Massachusetts court, enjoining and commanding
respondent, his servants, agents, attorneys and counsellors, to desist and refrain from further
prosecuting his petition for divorce in the State of Nevada * * * and from doing any act in
furtherance of such prosecution."
petition for divorce in the State of Nevada * * * and from doing any act in furtherance of such
prosecution. Service of this injunction was made upon plaintiff in Nevada on November 4,
1946.
Neither party did anything in the Nevada action after the remittitur was filed until March
17, 1947, a period of one year and eight months, when plaintiff served and filed his notice of
motion to dismiss. The motion was addressed to and was granted under the inherent
discretionary power of the trial court.
It is the contention of defendant that the trial court could not properly enter its order of
dismissal before the expiration of two years from July 10, 1945, the date on which the
remittitur was filed. Such contention is based upon the Nevada statute providing for the
dismissal of actions for want of prosecution, on motion of the defendant, or in the discretion
of the court on its own motion, in certain cases, and specifying the time for said dismissals,
and other matters in connection therewith, effective July 1, 1943, section 1 of which reads:
The court may in its discretion dismiss any action for want of prosecution on motion of
the defendant and after due notice to the plaintiff, whenever plaintiff has failed for two years
after action is filed to bring such action to trial. Any action heretofore or hereafter
commenced shall be dismissed by the court in which the same shall have been commenced or
to which it may be transferred on motion of the defendant, after due notice to plaintiff or by
the court upon its own motion, unless such action is brought to trial within five years after the
plaintiff has filed his action, except where the parties have stipulated in writing that the time
may be extended. When, in any action after judgment, a motion for a new trial has been made
and a new trial granted, such action shall be dismissed on motion of defendant after due
notice to plaintiff, or by the court of its own motion, if no appeal has been taken, unless such
action is brought to trial within three years after the entry of the order granting a new trial,
except when the parties have stipulated in writing that the time may be extended.
granting a new trial, except when the parties have stipulated in writing that the time may be
extended. When in an action after judgment, an appeal has been taken and judgment reversed
with cause remanded for a new trial (or when an appeal has been taken from an order granting
a new trial and such order is affirmed on appeal), the action must be dismissed by the trial
court on motion of defendant after due notice to plaintiff, or of its own motion, unless
brought to trial within three years from the date upon which remittitur is filed by the clerk of
the trial court. Stats.1943, p. 231; sec. 9932, N.C.L.1931-1941 Supplement, 1945 Pocket
Part.
This statute is an exact copy of section 583 of the California Code of Civil Procedure, as
amended by Stats.1933, P. 853. Deering's Code of Civil Procedure, 1937 edition; 5 Cal.Jur.
10 year sup., 1944 Revision, p. 255.
1. Since the statute was taken from California, it is presumed that it was adopted by the
legislature with the construction given it by the courts of that state before its adoption.
Kramer v. State, 60 Nev. 262, 275, 108 P.2d 304, Skaug v. Sheehy, 9 Cir., 157 F.2d 714, 715.
Defendant contends that consideration of the act as a whole makes it clear that unless two
years have elapsed subsequent to the filing of the remittitur in the trial court, that court may
not dismiss the action over the objection of either party thereto. This contention, ably
presented by defendant's eminent counsel, is both novel and ingenius, but it is not supported
by either authority or reason.
2. It is settled that a court of record, without the aid of statutory authority, possesses the
power to dismiss an action because of the plaintiff's failure to prosecute with reasonable
diligence. Raine v. Ennor, 39 Nev. 365, 371, 158 P. 133; Romero v. Snyder, 167 Cal. 216,
138 P. 1002, 1003; Hicks v. Bekins Moving & Storage Co., 9 Cir., 115 F.2d 406, 409; Brown
v. Haymore, 43 Ariz. 466, 32 P.2d 1027, 1028; State ex rel. Dawson v. Superior Court, 16
Wash.2d 300, 133 P.2d 2S5, 2S7; St.
Superior Court, 16 Wash.2d 300, 133 P.2d 285, 287; St. Ferdinand Sewer District v. Turner,
Mo.App., 208 S.W.2d 85, 87; Johnson v. Campbell, Tex.Civ.App., 154 S.W.2d 878, 880; 17
Am.Jur., Dismissal and Discontinuance, sec. 57, page 88; 27 C.J.S., Dismissal and Nonsuit,
sec. 65, page 232; Bancroft's Code Practice and Remedies, 10-year supplement, vol. 2, page
1579, sec. 503, note 13.
3. Likewise, a court of record has inherent power to dismiss a cross complaint for lack of
diligence in its prosecution. Seaman v. Superior Court, 183 Cal. 47, 190 P. 441, 442; Fox
Woodsum Lumber Co. v. Janes, 76 Cal.App.2d 748, 173 P.2d 854, 855; National Surety Co.
v. American Savings Bank & Trust Co., 101 Wash. 213, 172 P. 264, 266; Ware v. Jones,
Tex.Com.App., 242 S.W. 1022, 1023; Johnson v. Campbell, supra, Tex.Civ. App., 154
S.W.2d 878, 880; Smock v. Fischel, Tex.Sup., 207 S.W.2d 891, 892; 27 C.J.S., Dismissal
and Nonsuit, sec. 65, page 232, notes 6 and 9; Bancroft's Code Practice and Remedies, vol. 1,
page 764, sec. 509, note 16.
4. This inherent discretionary power which a court of record possesses remains
unimpaired unless it is expressly limited by statute. Craghill v. Ford, 127 Cal.App.661, 16
P.2d 343, 346; Phillips v. Santa Ana Times, 18 Cal.App.2d 280, 63 P.2d 838, 839.
That power is limited only by the provisions of section 9932, N.C.L., above quoted.
Craghill v. Ford, supra, 127 Cal.App. 661, 16 P.2d 343, 346.
5. The statute is not applicable to this case, principally because the issues raised upon the
cross complaint and answer are completely severable from the issues upon the original
complaint and answer, and a plaintiff has no such control over a cross complaint as would
entitle him under the circumstances to ask for its dismissal under the code provision invoked.
Pacific Finance Corporation v. Superior Court, 219 Cal. 179, 25 P.2d 983, 984, 90 A.L.R.
384. See, also, Fox Woodsum Lumber Co. v. Janes, 76 Cal.App.2d 748, 173 P.2d 854, 856.
The first sentence of the statute, upon which defendant relies, stands by itself as conferring
discretionary power upon the court to dismiss any action for want of prosecution whenever
plaintiff has failed for two years after action is filed to bring such action to trial. This power
is not controlled by, nor does it control, nor have any effect whatever upon, the succeeding
mandatory provisions of the statute. See, Jackson v. DeBenedetti, 39 Cal.App.2d 574, 103
P.2d 990, 992; Mercantile Investment Co. v. Superior Court, 218 Cal. 770, 25 P.2d 12, 14;
Allyne v. Murasky, 200 Cal. 661, 254 P. 564, 566.
Neither the first nor the second sentence of the statute has any application to the retrial of
causes. Allyne v. Murasky, supra, 200 Cal. 661, 254 P. 564, 565, 566. See, also, Mercantile
Investment Co., v. Superior Court, 218 Cal. 770, 25 P.2d 12, 14; Krasnow v. Superior Court,
15 Cal. App.2d 141, 59 P.2d 442, 443; City of Los Angeles v. Superior Court, 15 Cal.2d 16,
98 P.2d 207, 209; Craighill v. Ford, supra, 127 Cal.App. 661, 16 P.2d 343, 345.
In Allyne v. Murasky, supra, the court had under consideration the statute which then
contained the first two sentences. In holding that the second sentence was without application
where there had been a trial, though incomplete, it said:
If the five-year limitation was to be held to apply in the case at bar, it would necessarily
follow that the two-year limitation would also apply, and that a trial judge would be
powerless to determine that a delay of less than two years was unreasonable and warranted a
dismissal. We cannot hold that the Legislature has indicated an intention to accomplish such a
result by the enactment of section 583.
In Craighill v. Ford, supra, the court held that after a trial has been commenced and is
continued at the request of the plaintiff to permit him to correct and amplify his bill of
particulars, the inherent power of the trial court to dismiss the action is not suspended for the
period of two years, but remains unimpaired by the first sentence of the statute, and that
a dismissal of the action after the plaintiff's inaction for thirteen months is not an abuse
of such discretion.
for the period of two years, but remains unimpaired by the first sentence of the statute, and
that a dismissal of the action after the plaintiff's inaction for thirteen months is not an abuse
of such discretion.
6. The last sentence of the statute makes its mandatory for the court to dismiss an action if
not brought to trial within three years from the filing of the remittitur. Inderbitzen v. Lane
Hospital, 17 Cal.App.2d 514, 515; Booth v. Los Angeles County, 69 Cal.App.2d 104, 158
P.2d 401, 403.
7. But this mandatory provision does not impair or circumscribe the inherent power of a
court to dismiss in a shorter period. Inderbitzen v. Lane Hospital, supra, 17 Cal.App.2d 103,
61 P.2d 514, 516; Phillips v. Santa Ana Times, 18 Cal.App.2d 280, 63 P.2d 838, 839.
As said in Inderbitzen v. Lane Hospital, supra:
It will be noticed that there is no express provision in the section restricting or limiting
the power of the court to dismiss for want of prosecution after the filing of the remittitur
where the delay has been for a shorter period than is named in the statute where dismissal is
mandatory.
In Phillips v. Santa Ana Times, supra, the court held that the discretionary power inherent
in the trial court to dismiss an action because of the plaintiff's failure to prosecute with
reasonable diligence, was not restricted or limited by the mandatory provision in the third
sentence of the statute. In doing so, it said:
All that is there declared is that the action shall be dismissed unless brought to trial
within a period of three years after entry of the order granting a new trial. There is no
suggestion or intimation that the discretionary power inherent in the court to dismiss for
failure to prosecute is in any respect restricted or limited thereby. Appellant asks us to do
more than indulge in a liberal construction of a statute. In effect, it is contended that we
should extend the statute's operation by implication to a subject which, in the absence of
statutory regulation, was properly within the discretion of the trial court.
statutory regulation, was properly within the discretion of the trial court. Obviously, the
purpose of section 583 is to compel expedition in the trial and disposition of causes. Since
this is true, we find no justification for giving to the plain language of the act a meaning that
would seriously limit the discretionary power that is inherent in the very nature of the court to
control the trial and expeditious disposition of causes presented for its determination.
8. As the present case is not embraced by the terms of the statute, the trial court properly
resorted to its inherent power to pass on the motion for dismissal. Oberkotter v. Spreckels, 64
Cal.App. 470, 221 P. 698,699; Craghill v. Ford, supra, 127 Cal.App. 661, 16 P.2d 343, 346;
Phillips v. Santa Ana Times, supra, 18 Cal.App.2d 280, 63 P.2d 838, 839; Allyne v. Murasky,
supra, 200 Cal. 661, 254 P. 564, 565; Vogel v. Marsh, 122 Cal.App. 748, 10 P.2d 791, 792.
9. The only limitation upon the discretionary power of the court to dismiss a cause for
delay in its prosecution is that it must not be abused. Jackson v. DeBenedetti, supra, 39
Cal.App.2d 574, 103 P.2d 990, 992.
Each particular case presents its own peculiar features, and no ironclad rule can justly be
devised applicable alike to all. First National Bank v. Nason, 115 Cal. 626, 47 P. 595, 596;
Fox Woodsum Lumber Co. v. Janes, supra, 76 Cal.App.2d 748, 173 P.2d 854, 856.
10. The discretion to be exercised, under the circumstances of the particular case, is a
legal discretion, to be exercised in conformity with the spirit of the law and in such a manner
as to subserve and not to impede or defeat the ends of substantial justice. Fox Woodsum
Lumber Co. v. Janes, supra, 76 Cal.App.2d 748, 173 P.2d 854, 856.
11. Unless it is made to appear that there has been a gross abuse of discretion on the part
of the trial court in dismissing an action for lack of prosecution its decision will not be
disturbed on appeal. Raine v. Ennor, supra, 39 Nev. 365, 374
supra, 39 Nev. 365, 374, 158 P. 133; Inderbitzen v. Lane Hospital, supra, 17 Cal.App.2d 103,
61 P.2d 514, 516; Cohn v. Rosenberg, 62 Cal.App.2d 140, 144 P.2d 399, 401; Allyne v.
Murasky, supra, 200 Cal. 661, 254 P. 564, 566; Brown v. Haymore, supra, 43 Ariz. 466, 32
P.2d 1027, 1028; Hicks v. Bekins Moving & Storage Co., supra, 9 Cir., 115 F.2d 406, 409;
Pennsylvania Railroad Co. v. City of Pittsburgh, 335 Pa. 449, 6 A.2d 907, 911; Bancroft's
Code Practice and Remedies, vol. 1, page 758, sec. 506, note 10; and 10-year supplement,
vol. 2, pages 1581, 1582, note 12.
12. As the trial court affirmatively found that a stronger set of facts justifying the exercise
of its discretion could not be imagined, which finding is supported by the record, it follows
that the court did not abuse its discretion in granting the motion.
The judgment appealed from is affirmed.
Badt, J., concurs.
Eather, C. J., being ill and unable to participate in this opinion, the Governor designated
Hon. Wm. McKnight, Judge of the Second Judicial District Court, to sit in his place.
Horsey, J., being disqualified did not participate in the above-entitled case.
October 9, 1948.
Per Curiam:
Rehearing denied.
____________
65 Nev. 352, 352 (1948) Stephens v. First Nat'l Bank
UNA A. STEPHENS, Appellant, v. THE FIRST NATIONAL BANK OF NEVADA,
a Corporation, and AUGUST A. GLANZMANN, as Administrator of the
Estate of PAUL F. GLANZMANN, Deceased, Respondents.
No. 3479
August 10, 1948. 196 P.2d 756.
1. Warehousemen.
The fact that under rental agreement with reference to bank safety-deposit box, either of the parties,
independent of the other, had right of access to box and contents thereof with right to remove all or any
part of contents and to surrender box without consent or knowledge of other or any other person was not
determinative of right of ownership of contents of box.
2. Warehousemen.
Where safety-deposit box in bank was rented to two persons, each was given a key and each had access to
box independently of the other and each placed property in box, instructions by one of the depositors, both
orally and by telegram, to manager of bank advising him not to let anyone enter box did not give bank
manager right to preclude other renter of box from entering box and removing therefrom property therein,
particularly that which belonged to her alone.
3. Warehousemen.
Bank manager cannot prevent either of parties to rented safety-deposit box from entering box and
removing contents therefrom regardless of anything said by other party where rental contract gives each the
unrestricted right to use box, and each of the renters may enter box and remove contents therefrom not only
during lifetime of parties, but, subject to certain restrictions, even after death of one of the parties.
4. United States.
The federal borrowing power includes power to issue in return for money borrowed, obligations of the
United States in any appropriate form such as stocks, bonds, bills or notes. U.S.C.A.Const., art. 1, sec. 8,
cls. 2, 18.
5. Constitutional LawUnited States.
The power given to secretary of treasury to make regulations pertaining to issuance of United States
savings bonds is a properly delegated power. Second Liberty Loan Act, 31 U.S.C.A., sec. 757c;
U.S.C.A.Const., art. 1, sec. 8, cls. 2, 18.
6. United States.
Treasury regulations relative to United States savings bonds are valid and have the force and effect of
federal law.
Second Liberty Loan Act, 31 U.S.C.A., sec. 757c; U.S.C.A. Const., art. 1, sec. 8, cls. 2, 18.
7. United States.
The sale and purchase of United States savings bonds constitutes a contract between federal government
and purchaser thereof which contract embraces the regulations under which bonds are issued. Second
Liberty Loan Act, 31 U.S.C.A., sec. 757c; U.S.C.A.Const., art. 1, sec. 8, cls. 2, 18.
8. United States.
Where decedent purchased United States savings bonds and had inscribed thereon the name of plaintiff as
co-owner and placed bonds in a safety-deposit box to which plaintiff had equal access and made no attempt
to deprive plaintiff of any right to bonds, other than direction to manager of bank in which safety-deposit
box was located not to let anyone into box, plaintiff was a co-owner of bonds, had a property interest
therein, and could not be divested of her interest except in manner provided by treasury regulations.
Second Liberty Loan Act, 31 U.S.C.A., sec. 757c; U.S.C.A.Const., art. 1, sec. 8, cls. 2, 18.
9. United States.
Direction by one of two renters of safety-deposit box to manager of bank in which box was located not to
let anyone enter box did not disclose intent of such renter to deprive other renter of property right in United
States savings bonds of which both renters were co-owners, in absence of any effort to remove bonds from
box and cash them.
10. Evidence.
It is common knowledge that many United States savings bonds were purchased making purchaser a
co-owner with some other designated person named by purchaser.
11. States.
Treasury regulations relative to ownership of United States savings bonds, having the force of federal
law, supersede inconsistent state laws by virtue of supremacy clause of constitution. Second Liberty Loan
Act, 31 U.S.C.A., sec. 757c; U.S.C.A.Const., art. 1, sec. 8, cls. 2, 18; art. 6, cl. 2.
12. States.
Within sphere of powers confided to it, the United States may enter into contracts appropriate to exercise
of those powers and such contracts are governed by federal rather than state law, and when question
concerning federal jurisdiction arises in a state court, state court in determining consequences of the
transaction, must follow federal law.
13. United States.
Where purchaser of United States savings bonds designates a co-owner pursuant to terms of treasury
regulation, upon death of purchaser, proceeds of bonds will be paid to co-owner rather than to
executor or administrator of deceased purchaser notwithstanding the laws of
devolution of property in state of purchaser's domicile.
rather than to executor or administrator of deceased purchaser notwithstanding the laws of devolution of
property in state of purchaser's domicile.
14. United States.
The purchase and registration of United States savings bonds, where a co-owner is named thereon,
creates a contract for benefit of a third party, regardless of whether such co-owner knows or knew of
transaction until after death of purchaser or whether such co-owner ever had possession of such bonds or
whether any delivery thereof was made to him or her, and third party contract is enforcible by co-owner as
third party beneficiary.
Where there is a substantial conflict in the evidence, findings and judgment of trial court will not be
disturbed, but where there is no substantial, or any, conflict in evidence, and it is clear that a wrong
conclusion has been reached, judgment will be reversed.
Appeal from First Judicial District Court, Ormsby County; Clark J. Guild, Judge.
Action by Una E. Stephens against the First National Bank of Nevada and August A.
Glanzmann, as administrator of the estate of Paul F. Glanzmann, deceased, to establish
plaintiff's ownership and right to possession of certain United States savings bonds wherein
defendant bank disclaimed and was dismissed. Judgment for defendant administrator and
plaintiff appeals. Reversed with directions.
See, also, 64 Nev. 292, 182 P.2d 146.
W. T. Mathews, of Carson City, for Appellant.
George L. Sanford and Richard Hanna, both of Carson City, for Respondents.
Miles N. Pike, United States Attorney for the District of Nevada, and Bruce R. Thompson,
Assistant United States Attorney, both of Reno, Amici Curiae.
OPINION
By the Court, Henderson, District Judge:
This is an appeal from a judgment in favor of the defendant, August A. Glanzmann, as
administrator of the estate of Paul F. Glanzmann, deceased, in an action brought by the
appellant, the plaintiff in the court below, claiming to be the owner of and entitled to the
possession of certain United States Registered Savings Bonds of different denominations and
being in the aggregate sum of $5,900. The appeal is also from an order of the court below,
denying plaintiff's application for a new trial. There is little dispute as to the facts in the case.
From the pleadings and the evidence, it appears that beginning with the year 1936 and at
different times thereafter, up to and including the month of December 1941, Paul F.
Glanzmann and Una E. Stephens were residents of Carson City, Ormsby County, State of
Nevada, and during said time the said Paul F. Glanzmann purchased and had issued a series
of United States Registered Savings Bonds. These bonds were purchased with money
belonging to said Paul F. Glanzmann and were issued and registered under the federal act
known as the Second Liberty Loan Act, 31 U.S.C.A. Section 757c and the United States
Treasury Regulations promulgated pursuant to the authority therefor contained in the act. At
the time the said Glanzmann purchased the said bonds, and on each of them, there were
inscribed thereon the names of Mr. Paul F. Glanzmann or Mrs. Una E. Stephens. The records
show these bonds were registered in the Treasury Department of the United States as
aforesaid, and that Paul F. Glanzmann and Mrs. Una E. Stephens were co-owners. The
evidence further shows that some time in October 1935, the said Paul F. Glanzmann and Una
E. Stephens rented from the First National Bank at Carson City, Nevada, a safety-deposit box
known as 25 C and that each of the parties signed the signature card therefor.
parties signed the signature card therefor. When the bonds were purchased by the said Paul F.
Glanzmann, the said bonds were placed in said safety-deposit box in said bank. The rental
agreement evidenced by the signature card shows that said box was held in joint-tenancy with
the right of survivorship. That the said rental agreement was in effect at the time of the death
of Paul F. Glanzmann.
1. The bonds when purchased were placed in said safety-deposit box by Mr. Paul F.
Glanzmann and there is no evidence to indicate he ever removed them from the box. The
rental agreement, insofar as the safety-deposit box is concerned, shows that both of the
parties, independent of the other, had the right of access to the said safety-deposit box and the
contents thereof, with the right to remove all or any part of said contents and to surrender said
box without the consent or knowledge of the other or any other person. But while this was
permitted and both parties had the right of access to said box and the contents thereof, it did
not and does not determine a right of ownership of the contents of said box. Subsequent to the
purchase of said box as aforesaid and the rental of the safety-deposit box as aforesaid and on
April 12th, 1944, the said Paul F. Glanzmann died in a hospital in Reno, Nevada. Apparently
he died intestate. A brother, August A. Glanzmann, one of the defendants and respondent
herein, was appointed administrator of his estate on April 12th, 1944. After Paul F.
Glanzmann died, the plaintiff herein, August A. Glanzmann, administrator of the estate of
Paul F. Glanzmann, attorney George L. Sanford and W. L. Cassinella, manager of the Carson
City branch of the First National Bank of Nevada, entered the safety-deposit box 25 C,
examined the contents of said box and an inventory of the contents was made and a copy of
said inventory was given to August A. Glanzmann, Una E. Stephens, and Mr. Cassinella. At
that time they found in said box, papers, bonds and money belonging to each of the parties
individually and also the bonds in question.
belonging to each of the parties individually and also the bonds in question. Again in July of
1944, the box was opened in the presence of the plaintiff herein, Mrs. Stephens, Attorneys
Sanford and Mathews and certain disposition was made of the contents of the box and
delivery was made to the respective parties of certain bonds, papers and money as agreed
upon and shown by the stipulation agreed upon. The bonds in question were left in the box.
From the inventory of the contents of the box and distribution of the contents thereof, the
evidence shows that besides the bonds in question there were other papers, documents and
property in the said box, some belonging to Mrs. Stephens and some belonging to Paul F.
Glanzmann. Especial note should be taken of the fact that the contents of the safety-deposit
box consisted of property of Mrs. Una E. Stephens and Mr. Paul F. Glanzmann and the bonds
in question.
At the time the safety-deposit box was rented from the said bank, two keys were given to
the respective parties renting the said box and the evidence shows that at all times, Mrs. Una
E. Stephens had in her possession one of the said keys and that the box was opened at the
times mentioned herein, by using the key in her possession.
It appears from the evidence that on April 7, 1944, Paul F. Glanzmann appeared at the
bank and orally advised Mr. Cassinella, manager of the bank, that he didn't want anyone to
enter his safety-deposit box and further it appears that on April 8, 1944, Mr. Cassinella
received a telegram purporting to be from said Paul F. Glanzmann reading:
Do not let anyone in safety-deposit box.
There is no evidence to show the said Paul F. Glanzmann at any time attempted to remove
any of the contents from said box and particularly no attempt was made by him to remove the
bonds in question from the box or to cash them or to change the registration thereof.
The question before the court is, who is the owner and who is entitled to possession of
these certain eleven {11) U. S. Savings Bonds purchased by the said Paul F.
and who is entitled to possession of these certain eleven (11) U. S. Savings Bonds purchased
by the said Paul F. Glanzmann and registered in the names of Mr. Paul F. Glanzmann and
Mrs. Una E. Stephens, as co-owners. The defendant, the First National Bank of Nevada,
disclaimed all interest in the subject matter and the action was dismissed as to said defendant
in this case.
2, 3. At the outset what was the effect of Mr. Paul Glanzmann orally advising Mr.
Cassinella not to let anyone enter his safety-deposit box? What was the effect of the telegram
purporting to be from said Paul F. Glanzmann to said Mr. Cassinella? Can it be said by said
acts of Mr. Paul F. Glanzmann that the plaintiff Mrs. Una E. Stephens, would be precluded
from entering the said safety-deposit box and removing the contents therefrom? Especially
can it be said by said act of Paul F. Glanzmann that said Cassinella had the right to preclude
plaintiff Mrs. Una E. Stephens from entering the said safety-deposit box and removing
therefrom the property therein which belonged to her and to her alone? We think not.
Notwithstanding what Mr. Cassinella did in response to the order of Mr. Glanzmann, both
oral and written, we do not think that either of the parties who rented the safety-deposit box
could be precluded from entering the same and removing the contents therefrom. It must be
conceded that in the usual course of business, many safety-deposit boxes are rented by at least
two individuals, each having a key thereto and each having a right to enter said safety-deposit
box. In the usual course of business, can it be said that when safety-deposit boxes are rented
by two or more persons, with the right as aforesaid, that any one of the parties renting and
having access to said box could by word of mouth or telegram, or any writing addressed to
the manager or some other officer in authority of the bank renting said safety-deposit box,
preclude the other from entering the box? If this were the case, few safety-deposit boxes
would be rented giving another person joint ownership therein, with the right of access to
the box and with a key thereto, not even to husband and wife.
joint ownership therein, with the right of access to the box and with a key thereto, not even to
husband and wife.
In our opinion until the rental agreement expired, either by limitation or by joint action of
both parties renting said safety-deposit box 25C, either party had a right to enter said
safety-deposit box and remove the contents therefrom, not only during the lifetime of the
parties but (subject to certain exceptions not applicable here) even after the death of one of
the said parties.
We do not by this assertion mean to imply that this right given to each of the parties, that
is, the right of access to the box and the removal of any of the contents thereof, would
determine the ownership of the contents of said box.
As before stated, the bonds in question were purchased under the federal act known as the
Second Liberty Loan Act, 31 U.S.C.A. section 757c, and the United States Treasury
Regulations promulgated pursuant to the authority thereof contained in the act. To arrive at a
proper conclusion in this case, it therefore becomes necessary to review and analyze the
federal regulations promulgated thereunder. It cannot be denied that the source of the federal
power to issue United States Savings Bonds and to promulgate regulations governing their
ownership, transfer and payment is found in article one (1), section eight (8), clause two (2)
of the Constitution of the United States, providing: The Congress shall have Power * * * To
borrow Money on the credit of the United States.
And it is further provided in such article of the Constitution, section eight (8), clause
eighteen (18) that Congress shall have power * * * To make all Laws which shall be
necessary and proper for carrying into Execution the foregoing Powers, and all other Powers
vested by this Constitution in the Government of the United States, or in any Department or
Officer thereof.
4. The federal borrowing power, pursuant to the constitutional provision, includes the
power to issue in return for the money borrowed, obligations of the United States in any
appropriate form, stocks, bonds, bills or notes.
constitutional provision, includes the power to issue in return for the money borrowed,
obligations of the United States in any appropriate form, stocks, bonds, bills or notes. Legal
Tender Cases, 110 U.S. 421, 444, 4 S.Ct. 122, 28 L.Ed. 204. Now, in the exercising of the
constitutional power to borrow money on the credit of the United States, Congress enacted
section twenty-two (22) of the Second Liberty Loan or Bond Act, which act entitled the
Secretary of the Treasury, with the approval of the President, to issue from time to time,
through the Postal Service, or otherwise, bonds of the United States to be known as United
States Savings Bonds, and further authorized the Secretary of the Treasury to issue such
Savings Bonds in such form and in such manner and subject to such terms and conditions
consistent with the act as the Secretary of the Treasury from time to time may prescribe. Act
of Sept. 24, 1917, ch. 56, sec 22, as amended by act of Feb. 4, 1935, ch. 5, sec. 6, 49 Stat. 21,
31 U.S.C.A. sec. 757c.
Pursuant to said authority, the Secretary of the Treasury promulgated regulations
governing the issuance, transfer, ownership and payment of United States Savings Bonds.
These regulations, such as pertain to the case at bar, are before this court as plaintiff's
Exhibits E and F. Exhibit E is a compilation of certain United States Treasury
Circulars which were issued from time to time and contain the offering of the respective
series of the United States Savings Bonds covering the time involved in this case.
Exhibit F contains the respective Treasury Regulations issued by the Secretary of the
Treasury with respect to the registration, restrictions and payment of the bonds of all series
during the time involved in this case.
Of the aforesaid regulations there are three of the same pertinent to the issues of this case.
1. Forms of Registration.Subject to the restrictions and exceptions set forth in the next
preceding paragraph the following forms of registration are authorized * * *
paragraph the following forms of registration are authorized * * *
(ii) In the names of two (but not more than two) persons in the alternative as co-owners,
for example, John A. Jones OR Mrs. Ella S. Jones'. No other form of registration
establishing coownership is authorized.
2. Payment or Reissue.A savings bond registered in the names of two persons as
coowners, for example, John A. Jones or Mrs. Mary C. Jones', will be paid or reissued as
follows:
(1) During the lives of both coowners.During the lives of both coowners the bond will
be paid to either coowner upon his separate request without requiring the signature of the
other coowner; and upon payment to either coowner the other person shall cease to have any
interest in the bond.
(2) After the death of one coowner.If either coowner dies without having presented and
surrendered the bond for payment to a Federal Reserve Bank or the Treasury Department, the
surviving coowner will be recognized by the Treasury Department as the sole and absolute
owner of the bond, and payment will be made only to him.
3. Determination of interest as Between Owner and Co-Owner of
Beneficiary.Conflicting claims as to ownership of or interest in a savings bond, as between
the registered owner and the co-owner, or the registered owner and a designated beneficiary
may be determined by valid judicial proceedings, in which case, the bond upon surrender by
the party requesting reissue, may be reissued in the names of the respective parties to the
extent of their respective interests as determined by such proceedings, but only in authorized
denominations. The Treasury can accept no notices of pending judicial proceedings and
cannot undertake to protect the interests of the litigants who do not have possession of the
bonds. (Regulation 315.52, Treasury Circular 530).
5. These Treasury Regulations become a part of the contract, whereby the United States
will pay its obligation to a person or persons named in the bond to receive payment as
provided by the terms of such Treasury Regulations.
contract, whereby the United States will pay its obligation to a person or persons named in the
bond to receive payment as provided by the terms of such Treasury Regulations. The power
given to the Secretary of the Treasury to make such regulations, was and is properly delegated
to the said Treasury Department of the United States by Congress. Hampton v. United States,
276 U.S. 394, 48 S.Ct. 348, 72 L.Ed. 624; Buttfield v. Stranahan, 192 U.S. 470, 472, 24 S.Ct.
349, 48 L.Ed. 525; United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563.
6. Such regulations are valid and have the force and effect of the Federal Law. McCulloch
v. Maryland, 4 Wheat. 316, 4 L.Ed. 579; U.S. v. Birdsall, 233 U.S. 223, 34 S.Ct. 512, 5 L.Ed.
930; U.S. v. Sacks, 257 U.S. 37, 42 S.Ct. 38, 66 L.Ed. 118; and others.
7, 8. The bonds in question are United States Bonds, authorized and issued pursuant to the
federal law and federal regulations. The sale thereof, and purchase thereof, constitute a
contract between the Federal Government and the purchaser thereof. It is our opinion that the
deceased, Glanzmann, in purchasing the said bonds having inscribed thereon the name of Una
E. Stephens as co-owner, entered into a contract with the United States, whereby the payment
or reissue of said bonds as purchased by said Paul F. Glanzmann were issued in conformity
and were to be paid or reissued in conformity with the laws and regulations governing the
sale of said bonds. It is uncontroverted that the bonds were placed in the safety-deposit box
25C, and thereafter no attempt was made by either of the parties, that is, the deceased Paul F.
Glanzmann or Una E. Stephens, to remove the bonds from said safety-deposit box. It is not
and cannot be claimed, that the deceased Paul F. Glanzmann made any attempt to deprive
Mrs. Una E. Stephens of any right to said bonds, by his oral statement or the written telegram
to Mr. Cassinella, manager of the said bank, where the said safety-deposit box was.
In our interpretation of the rules and regulations, it is our opinion that Mrs. Stephens, at
the time of the purchase of the bonds, in the manner in which they were purchased, to wit,
inscribed to the deceased Paul F. Glanzmann and Mrs. Una E. Stephens, as co-owners;
thereupon became a co-owner in the said bonds and had a property interest therein. And she
could be divested thereof only in the manner set forth by said government regulations, that is
by removing the bonds from said safety-deposit box and cashing the same or having the same
reissued.
9. It is our opinion if Glanzmann had intended to deprive Mrs. Stephens of the property
right, which we think she had in said bonds, at the time he orally told Mr. Cassinella not to let
anyone enter the safety-deposit box, that he would have removed the bonds therefrom and
cashed the same. It seems that no such intention was ever manifested by Mr. Paul F.
Glanzmann.
Under the facts hereinabove recited and for the reasons heretofore and hereinafter
appearing it is our opinion that Regulations, sec. 315.52, dealing with conflicting claims as to
ownership of or interest in a savings bond, as between the registered owner and the co-owner,
or the registered owner and a designated beneficiary, do not control the instant case, nor do
we find it necessary to cite examples of controversies which, by reason of their nature, would
be governed by this provision.
10. It does not appear to the court that any controversy over conflicting claims as to the
ownership between the co-owners, or otherwise, ever existed in this case. The bonds in
question were issued pursuant to the provisions of the act and governed by the treasury
regulations hereinabove referred to. Under the said regulations, it is provided if either
co-owner dies without having presented and surrendered the bond for payment, the surviving
co-owner will be recognized as the sole and absolute owner of the bond and payment will be
made only to him. These regulations are reasonable and were adopted for carrying out the
intent of the act of Congress for the purpose of borrowing money.
of Congress for the purpose of borrowing money. The regulations are supplementary and
existed at the time the purchase of the savings bonds in question was made from the treasury
department. This promotes and facilitates the sale and distribution of the bonds by prescribing
such terms and conditions of payment, ownership, and transfer as would make the bonds
attractive securities. It is common knowledge that many bonds issued by the United States,
were purchased making the purchaser a co-owner with some other designated person named
by the purchaser of said bonds. In many instances the co-owner did not know of the existence
of the fact that he was a co-owner of a United States Savings Bond or bonds. Everyone is
aware of the fact that many United States bonds were and are now being bought, by husbands
and fathers, making their wives, sons and daughters co-owners, where even the wife, son and
daughter did not and does not know of the existence of such bonds until after the death of the
husband or father. It was the intent and purpose of many purchasers of bonds of this character
to purchase bonds and make some other party a co-owner so that the co-owner would own
said bonds after the death of the original purchaser. This is one of the reasons why said bonds
became and were and are attractive investments and aided in the sale thereof. For the court to
say now, in this case, that Mrs. Stephens has no right or interest in said bonds, would be to set
aside the intent and purpose of many persons who purchased bonds, as these bonds were
purchased pursuant to the regulations of the treasury department. And to say that after the
death of one co-owner, the administrator of the estate of said deceased co-owner, could claim
said bonds and ask the court to determine the ownership of the bonds, under section 315.52,
as aforesaid, would tend to destroy the power of the United States to sell bonds, particularly
in the State of Nevada.
11. To hold otherwise, would destroy the real purpose and intent of the purchaser to
purchase bonds of the United States, with the intent that a co-owner would become the owner
designated by the purchaser upon his death, and would permit the heirs of the purchaser upon
his decease, or the administrator or executor of his estate to nullify the intent originally
planned by the purchaser of the bonds. It is our opinion that these regulations having the force
of federal law must be held to supersede inconsistent state laws by virtue of the supremacy
clause of the constitution.
Article VI, clause 2, of the constitution provides: This Constitution, and the Laws of the
United States which shall be made in Pursuance thereof; * * * shall be the supreme Law of
the Land; and the Judges in every State shall be bound thereby, Any Thing in the Constitution
or Laws of any State to the Contrary notwithstanding.
The supreme court of the United States has asserted and applied that doctrine of the
supremacy of the federal law in a variety of situations, many of them analogous to the case
here. It has been held in the exercising of the constitutional power to borrow money, the
federal government may not against its will be subjected to burdens imposed by the states.
Farmers & Mechanics Savings Bank v. Minnesota, 232 U.S. 516, 34 S.Ct. 354, 58 L.Ed. 706.
In the Farmers Bank decision, supra, the supreme court, referring to McCulloch v.
Maryland, 4 Wheat. 316, 4 L.Ed. 579, said: The supremacy of the Federal Constitution and
the laws made in pursuance thereof, and the entire independence of the General Government
from any control by the respective States, were the fundamental grounds of the decision. The
principle has never since been departed from, and has often been reasserted and applied. 232
U.S. 516, 521, 34 S.Ct. 354, 355, 58 L.Ed. 706.
If the state laws governing the devolution of personal property are permitted to supersede
or nullify the federal regulations applicable to savings bonds, then the borrowing power of the
United States will be adversely affected, if not destroyed, because of the uncertainty it will
create in the minds of millions of owners of savings bonds in the respective states as to their
rights and interest therein, and because of the consequent elimination of those features of the
bonds which have made them attractive to many persons. Again if the state law governing the
devolution of personal property is permitted to supersede or to nullify the federal regulations
governing savings bonds, then we will have a situation involving laws relative to devolution
of personal property in the forty-eight different states.
Again what would be the situation if the state law was declared to be supreme and the
bonds were purchased in one state, and taken by the co-owner to a different state, or what
would be the situation if the bonds were bought in one state and the co-owner thereafter
resided in a different state?
It seems clear to us that insofar as the regulations of the federal government governing the
sale of bonds is concerned, such regulations must be held to supersede state law.
The form in which the state burden is sought to be imposed is immaterial. The transactions
of the federal government are as free from state regulations as they are from state taxation.
Osborn v. Bank of United States, 9 Wheat. 738, 6 L.Ed. 204; Ohio v. Thomas, 173 U.S. 276,
19 S.Ct. 453, 43 L.Ed. 699; and others.
12. Within the sphere of the powers confided to it, the United States may enter into
contracts appropriate to the exercise of those powers, and such contracts are governed by
federal rather than state law. United States v. Tingey, 5 Pet. 115, 8 L.Ed. 66; Irvine v.
Marshall, 20 How. 558, 15 L.Ed. 994; United States v. Grogan, D.C., 39 F.Supp. 819; and
others.
And when the question concerning federal jurisdiction arises in a state court, it is clear that
the state court, in determining the consequences of the transaction, must follow the federal
law. Garrett v. Moore-McCormack Co. Inc., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239.
Section 22 of the Second Liberty Bond Act, quoted herein and the treasury regulations
promulgated thereunder and having the force and effect of law, form a part of the bond
contract, not only by express reference incorporated in each bond to the act itself, but under
the well-established doctrine that laws effective at the time of the making of a contract enter
into and form a part of it as fully as if they had been expressly referred to or incorporated in
its terms. Farmers and Merchants Bank v. Federal Reserve Bank, 262 U.S. 649, 43 S.Ct. 651,
67 L.Ed. 1157, 30 A.L.R. 635; Northern Pacific Ry. v. Wall, 241 U.S. 87, 36 S.Ct. 493, 60
L.Ed. 905.
The foregoing rule of law is most aptly illustrated in the case of Warren v. United States,
68 Ct.Cl. 634, Certiorari Denied 281 U.S. 739, 50 S.Ct. 346, 74 L.Ed. 1154.
13. The facts in this case are quite fully set out in the appellant's opening brief and wlll
not be restated here. We believe that the holding of the court in said case is pertinent. The
headnote reads: Under the statute authorizing the Secretary of the Treasury to issue
war-savings certificates the Secretary had the power to prescribe the terms and conditions of
their payment, and the Secretary's due regulations with respect thereto had the force and effect
of law. Where the owner of such certificates named the beneficiary thereof, in case of his
death, and the regulations provided for payment to such beneficiary in that event, the refusal
of the Secretary to make payment to the executrix of the owner's estate was in conformity to
the provisions of the contract thus entered into with the owner of the certificates, and the
executrix is not entitled to recover from the United States the money represented by the
certificates, notwithstanding the laws of devolution of property in the State of the
testate's domicile."
represented by the certificates, notwithstanding the laws of devolution of property in the State
of the testate's domicile.
We believe the foregoing is in point with the case at bar.
As stated heretofore in this opinion, Exhibits E and F are before this court as original
exhibits. They constitute the treasury regulations issued by the Secretary of the Treasury
concerning United States Savings Bonds. Exhibit E is made up of various circulars,
beginning, so far as pertinent here, with Circular No. 554 of December 16, 1935, relating to
Series B. Bonds, the first bonds of concern herein. Thereafter from time to time circulars
following No. 554 were issued, describing the bonds and series thereof offered and in most
cases the terms and conditions of purchase. The respective bonds herein were Series B in
October 1936, Series D, May, 1940, Series E, July, 1941, April, 1943, Series G, December,
1941. An examination of Exhibit E discloses the conditions under which these series of
bonds were offered and issued. It will also be noted that said circulars gave notice that such
bonds would be issued and registered pursuant to Treasury Regulations No. 530 and revisions
thereof. Exhibit F is composed of this regulation No. 530 and amendments and revisions
thereafter made beginning with Circular No. 530, dated February 25, 1935, to and including
circular dated June 12, 1944, being sixth amendment to fifth revision of Circular No. 530.
It will be noted that beginning with February 25, 1935, the treasury department treated as
conclusive the ownership and interest in the savings bonds, and so treated the registration in
the names of two persons as co-owners. The treasury department also provided that such
bonds are not transferable and such bonds would be payable to either co-owner without the
signature of the other, and that upon payment to either person the other shall cease to have
any interest in the bonds.
It therefore appears from the treasury regulations that all savings bonds issued shall be
subject to regulations prescribed from time to time by the Secretary of the Treasury and it
further appears that the regulations and circulars issued by the Secretary of the Treasury
contain the notice of issuance and offer of sale of bonds as regulations and restrictions on and
concerning such bonds and are notice to the purchaser of the conditions surrounding the
purchase and registration of such bonds and that the purchaser thereof is bound thereby
particularly as the bonds themselves contain reference to such regulations.
It further appears that the bonds must be registered. The form of registration used must
express the actual ownership and interest in the bonds, which shall be considered as
conclusive of such ownership and interest. Again the Second Liberty Loan Act and the
treasury regulations provide for and sanction contracts for the benefit of third persons, which
contracts are enforceable by such third persons. It has been held that such contracts for the
benefit of the third persons are valid and enforceable. 12 Am.Jur. 825, sec. 277.
The text cites Painter v. Kaiser, 27 Nev. 421, 76 P. 747, 65 L.R.A. 672, 103 Am.St.Rep.
772, 1 Ann.Cas. 765, in support thereof.
In the Painter case this court said, quoting from Miliani v. Tognini, 19 Nev. 133, 134, 7 P.
279: The precise question presented is this: Can a plaintiff maintain an action on a simple
contract to which he is not a party, upon which he was not consulted, and to which he did not
assent, when it contains a provision for his benefit? Besides the statute which provides that
every action shall be prosecuted in the name of the real party in interest, this court has held
in three different cases that the beneficiary named in such a contract may maintain an action
thereon in his own name.' [27 Nev. 431, 76 P. 750.]
Another illuminating case on this point is the Kansas City Life Ins. Co. v. Rainey, 353 Mo.
477, 182 S.W.2d 624, 155 A.L.R. 16S, also Rhorbacker v. Citizens Bldg., Association Co.,
13S Ohio St.
624, 155 A.L.R. 168, also Rhorbacker v. Citizens Bldg., Association Co., 138 Ohio St. 273,
34 N.E.2d 751, 135 A.L.R.988. In this last case the subject matter was a certificate of deposit
in the company payable to the depositor and another named thereon or to the survivor of them
as co-owner. The person named as co-owner had no knowledge of the transaction until after
the death of the depositor. In disposing of a contest over the ownership of the certificate after
the death of the original depositor, the court held that an executed contract arose between the
depositor and the company, creating an immediate joint and equal interest in the certificate in
the depositor and the named person, with attendant incident of survivorship, binding the
company to its terms. Upon the death of the depositor the named person became the owner of
the certificate, entitled to its possession and benefits by virtue of a completed contract.
14. In at least thirteen different states of the United States, many cases have reached the
appellate courts to determine the title and ownership of United States Savings Bonds and in a
majority of cases, the doctrine was and is definitely adopted that the federal law and treasury
regulations, and the contract entered into at the time of the purchase and registration of the
savings bonds govern with respect to the title and ownership of such bonds and where a
contest arose between an administrator or executor of an estate of a deceased owner, and his
or her co-owner or beneficiary, such co-owner or beneficiary was declared the owner of such
bonds irrespective of the state laws governing the devolution of property. The overwhelming
weight of authority supports the proposition that the purchase and registration of the United
States Savings Bonds, where a co-owner is named thereon, creates and constitutes a contract
for the benefit of the third party, regardless of whether such co-owner knows or knew of the
transaction until after the death of the purchaser, or whether such co-owner ever had
possession of such bonds or whether any delivery thereof was made to him or her.
ever had possession of such bonds or whether any delivery thereof was made to him or her.
Suffice it to say that unless the purchaser and owner thereof in his lifetime changed the
purport of the bonds according to the treasury regulations, that upon his death such bonds
became the sole property of the co-owner.
We have before us the lower court's opinion and decision and its findings of fact and
conclusions of law. It seems to us that the court relied upon the telegram from Glanzmann to
the bank not to let anyone in his safety-deposit box, and the court so relying concluded that
the said telegram did in fact deprive the surviving co-owner of all right, title and interest, in
and to said bonds. It appears that the court proceeded further upon the theory that no gift
causa mortis or inter vivos was had, and no delivery of the bonds was made to the co-owner.
The lower court must have set aside the fact that Mrs. Stephen's name was on the bonds, as a
co-owner, and must have ignored entirely the treasury regulations and law under which the
bonds were purchased. In short, the lower court must have ignored and cast aside the
operations of the federal regulations which were, at the time of the purchase of said bonds, a
part of said bonds, and thereby reached a wrong conclusion. There is little or no conflict in
the evidence with respect to the purchase of the bonds, that Mrs. Stephens's name was
inscribed on each bond in question, that each bond was registered in the treasury department
with Mrs. Stephens's name so registered as co-owner all pursuant to the treasury regulations.
There is no evidence that Glanzmann ever attempted to surrender or change the ownership
of any of the said bonds during his lifetime or that he ever intimated to any person that the
bonds were not to go to Mrs. Stephens after his death.
15. It is well-settled law in this state, that if there is a substantial conflict in the evidence,
findings and judgment of the trial court will not be disturbed but in this case there is no
substantial or any conflict in the evidence as to the purchase and registration of the bonds
and the effect thereof with respect to the regulations governing such bonds.
judgment of the trial court will not be disturbed but in this case there is no substantial or any
conflict in the evidence as to the purchase and registration of the bonds and the effect thereof
with respect to the regulations governing such bonds.
The conflict, if any, is in the application of the applicable law to the purchase, registration
and deposit of the bonds. In resolving this conflict, we are of the opinion that the lower court
reached a wrong conclusion and by reason thereof the decision and judgment of the lower
court is erroneous and against the law.
This court in Consolazio v. Summerfield, 54 Nev. 176, 10 P.2d 629, 630, said: The
general rule of this court is that when the evidence is conflicting and there is substantial
evidence to sustain the judgment it will not be disturbed. But there is an exception to the
general rule to the effect that where, upon all the evidence, it is clear that a wrong conclusion
has been reached, the judgment will be reversed.
Entertaining the view that the facts in this case are such, as show the appellant to be the
owner of and entitled to the possession of the bonds in question, it is the order of this court,
that the judgment of the lower court be reversed, with directions to render and cause to be
entered a judgment in favor of the plaintiff herein, in accordance with the prayer of the
complaint.
Chief Justice Edgar Eather, because of illness, did not participate in the preparation and
rendition of the foregoing opinion. The Governor assigned Hon. A. S. Henderson, District
Judge of the Eighth Judicial District, to sit in his place.
____________
65 Nev. 373, 373 (1948) Lagemann v. Lagemann
CORA L. LAGEMANN, Appellant, v. HAROLD B.
LAGEMANN, Respondent.
No. 3526
August 26, 1948. 196 P.2d 1018.
1. Divorce.
In husband's action for divorce on ground of parties' separation without cohabitation for over three years,
defendant, by denying her mental incompetency in supplemental answer and establishing her competency
at trial, waived all defenses of mental incapacity in original answer. N.C.L.1929, sec. 9460, sudb. 8;
N.C.L.1931-1941 Supp., sec. 9467.06.
2. Divorce.
The discretion exercised by trial court in action for divorce on ground of spouses' separation without
cohabitation for over three years depends not so much on comparative rectitude of their conduct as on
probability of their being able to live together in manner for best interests of themselves and society.
N.C.L.1931-1941 Supp., sec. 9467.06.
3. Husband and Wife.
A decree for separate maintenance of wife by husband does not bar his action for divorce on ground of
three years' separation without cohabitation. N.C.L.1931-1941 Supp., sec. 9467.06.
4. Divorce.
In husband's action for divorce from nonresident wife, court's fact findings as to plaintiff's residence,
parties' marriage, their separation for over three years without cohabitation, defendant's mental
competency, and parties' inability to live together for best interests of themselves and society, and
defendant's personal appearance and representation by counsel, justified court's finding that it had
jurisdiction and its decision that plaintiff was entitled to divorce as against contention that there were no
legal findings for plaintiff on fact issues as to his residence, defendant's nonresidence, and cause for
divorce. N.C.L.1931-1941 Supp., sec. 9467.06.
5. Constitutional LawDivorce.
The statute authorizing divorce when spouses have lived apart for three years without cohabitation is not
unconstitutional as impairing obligations of contract. N.C.L.1931-1941 Supp., sec. 9467.06;
U.S.C.A.Const. art. 1, sec. 10.
The statute authorizing divorce on ground of spouses' separation for three years without cohabitation
does not violate full faith and credit clause of federal constitution as applied to action for divorce from wife
previously awarded separate maintenance by decree of court of another state. N.C.L. 1931-1941 Supp., sec.
9467.06; U.S.C.A.Const. art. 4, sec. 1.
7. Constitutional LawDivorce.
The statute authorizing divorce on ground of spouses' separation without cohabitation for three years is
not unconstitutional as depriving nonresident wife of rights arising from marriage relation without due
process of law under decree granting husband divorce on such ground, where wife personally appeared,
was represented by counsel at trial, had every opportunity to present any legal defense, and participated in
all proceedings. N.C.L.1931-1941 Supp., sec. 9467.06; U.S.C.A.Const. Amend. 14, sec. 1.
Appeal from Eighth Judicial District Court, Clark County; A. S. Henderson, Judge.
Action by Harold B. Lagemann against Cora L. Lagemann for divorce and custody of the
parties' minor children. From a judgment for plaintiff and an order denying defendant's
motion for a new trial, defendant appeals. Affirmed.
Bryan & Cory, of Las Vegas, for Appellant.
Ryland G. Taylor, of Las Vegas, for Respondent.
OPINION
By the Court, Brown, District Judge:
This case involves an appeal from a judgment entered on the 19th day of November 1947,
in favor of the plaintiff and against the defendant, in the Eighth judicial district court of the
State of Nevada, in and for the county of Clark, in an action wherein Harold B. Lagemann
was plaintiff, and Cora L. Lagemann was defendant, and from an order entered in said court
and cause on the 28th day of November 1947, denying a motion of the defendant for a new
trial. Under the judgment plaintiff was granted an absolute decree of divorce from the
defendant upon the ground that the parties to the action had lived separate and apart
without cohabitation for a period of more than three years prior to June 6, 1947, under
section 9467.06, N.C.L.Supplement, 1931-1941, being chapter 23, Statutes of Nevada,
1939, page 16, and said plaintiff was awarded the care, custody, and control of the two
minor children, Betty Lou Lagemann and Lila Lee Lagemann, and was required to pay to
the defendant the sum of $45 per month for her support and maintenance until the
further order of the court.
action had lived separate and apart without cohabitation for a period of more than three years
prior to June 6, 1947, under section 9467.06, N.C.L.Supplement, 1931-1941, being chapter
23, Statutes of Nevada, 1939, page 16, and said plaintiff was awarded the care, custody, and
control of the two minor children, Betty Lou Lagemann and Lila Lee Lagemann, and was
required to pay to the defendant the sum of $45 per month for her support and maintenance
until the further order of the court. Jurisdiction was reserved by the district court for the
purpose of making such other orders relative to the care, custody, and control and
maintenance of the minor children, and relative to the support and maintenance of the
defendant, as to the court may from time to time seem just and proper.
The original complaint filed on June 6, 1947, by the plaintiff alleged three years'
separation without cohabitation. Thereafter, an answer was filed by the defendant which
admitted that the parties to the action had lived separate and apart for more than three
consecutive years prior to the commencement of the action, but alleged that the separation
had been without the fault of the defendant; that the separation was without the volition of the
defendant, because the plaintiff refused to receive her as his wife; and that such separation
was occasioned by the order of the county court of Madison County, Illinois, wherein the
defendant was adjudged insane and committed to the Alton State Hospital for the Insane on
June 10, 1937, and by the plaintiff's refusal to receive her upon her release from said hospital.
Eight further separate defenses were alleged in the answer, all of which were demurred to by
the plaintiff, which demurrer was sustained as to all except the third defense, which said
defense alleged that the defendant was adjudged insane by the County Court of Madison
County, Illinois, on June 10, 1937, and ordered confined in the Alton State Hospital for the
Insane; that thereafter, and in 1940, she had improved and was released to the custody of
relatives in Madison County, Illinois, and that since June 10, 1937, the defendant was and
now is incompetent under the adjudication of the County Court of Madison County,
Illinois, made and entered on June 10, 1937.
the custody of relatives in Madison County, Illinois, and that since June 10, 1937, the
defendant was and now is incompetent under the adjudication of the County Court of
Madison County, Illinois, made and entered on June 10, 1937.
A reply was filed to the answer wherein the plaintiff denied that the separation was
occasioned by the order of the County Court of Madison County, Illinois, adjudging the
defendant to be insane, and alleged that after the release of the defendant from the said Alton
State Hospital for the Insane, the plaintiff had every opportunity to resume marital relations
with the defendant, but could not do so with safety to himself and minor children, and that the
defendant on several occasions had threatened to destroy and take the lives of the plaintiff and
the minor children.
Thereafter, a supplemental complaint was filed by the plaintiff wherein insanity was
alleged as an additional ground for divorce, under the provisions of section 9460, subdivision
eight, N.C.L.1929, as amended. To the supplemental complaint the defendant filed an
answer, in which the defendant again alleged the order entered on June 10, 1937, in the
County Court of Madison County, Illinois, adjudging the defendant to be insane, and ordering
her confined in the Alton State Hospital for the Insane, as set out in paragraph II of the
defendant's third separate defense in her original answer. Also, seven additional further and
separate defenses were alleged in the answer to the supplemental complaint. All of these were
demurred to by the plaintiff, which demurrer was sustained as to all defenses except the first
defense. Thereafter, the defendant filed her supplemental answer in which all of the
allegations contained in the original answer, and the answer to the supplemental complaint,
were realleged as paragraph I and in addition paragraph II set forth the following allegation:
"States that she is not insane: and that she was not for a period of more than two years
immediately preceding the commencement of this action insane, within the meaning of
the statutes of the State of Nevada in such cases made and provided; and that she was
not insane at the time of the filing of the supplemental complaint herein."
States that she is not insane: and that she was not for a period of more than two years
immediately preceding the commencement of this action insane, within the meaning of the
statutes of the State of Nevada in such cases made and provided; and that she was not insane
at the time of the filing of the supplemental complaint herein.
A motion to strike was filed by the plaintiff to the supplemental answer, which motion was
granted as to paragraph I, but denied as to paragraph II.
The issues under the pleadings were settled as follows:
Original complaint of plaintiff; the original answer of defendant comprising paragraphs I
to V of the first defense and the third defense comprising paragraphs I and II; the
supplemental complaint of the plaintiff; answer to the supplemental complaint, comprising
paragraphs I and II of the first defense; reply to the answer; and paragraph II of the
supplemental answer.
At the time of the trial no testimony was adduced in support of the supplemental complaint
alleging insanity. The case was tried entirely upon issues made by the complaint alleging
three years' separation without cohabitation, and the answer of the defendant, including
paragraphs I to V of the first defense and paragraphs I and II of the third defense, the reply to
the answer and paragraph II of the defendant's supplemental answer.
At the very outset it should be noted that at the time of the trial the defendant introduced
no evidence whatsoever except the authenticated copy of a judgment made and entered in the
County Court of Madison County, Illinois, on the 30th day of October, A.D. 1947, wherein it
was ordered that the said Cora L. Lagemann be, and she hereby is restored to all civil
rights. The record is absolutely devoid of any evidence to the effect that the defendant was
mentally incapable of returning to and living with the plaintiff as husband and wife after
her release from the Alton State Hospital for the Insane, either during the year 1940 or
1941.
to and living with the plaintiff as husband and wife after her release from the Alton State
Hospital for the Insane, either during the year 1940 or 1941.
The allegation in the answer of the defendant states that she was released in 1940. The
testimony of the plaintiff at the time of the trial was to the effect that the defendant was
released from the Alton State Hospital for the Insane during the year 1941, and that
subsequent thereto she lived with her three sisters in or around Alton, Illinois, as near as a
block and a half and no farther than two and a half to three miles from the home of the
plaintiff; that the defendant came to the home of the plaintiff on numerous occasions
subsequent to 1941 to collect alimony, and that the defendant never at any time even
suggested a resumption of marital relations after her release; and that the defendant was
rational and normal during all of those years.
1. Although the defendant alleged incompetency under the third defense of her original
answer, she expressly denied incompetency under paragraph II of her supplemental answer,
and at the trial established her competency. She therefore waived any and all defenses
contained in her original answer regarding the question of mental incapacity. Further, the
evidence introduced by the plaintiff at the time of the trial clearly proves that the defendant is
now and has been mentally competent since 1940 or 1941, when she was released from the
hospital in Illinois.
The testimony of the plaintiff was that the plaintiff and defendant separated on June 10,
1937, and have continued to live separate and apart without cohabitation ever since said time.
This fact is admitted by the defendant.
The parties will be referred to herein as they were in the lower court.
The Specifications of Error made by the defendant, as the appellant, are as follows:
"Specification of Errors
Specification of Errors
1. The trial court erred in adopting the findings supported by insufficient evidence to
justify the same;
2. The trial court erred in its conclusions that plaintiff was entitled to a decree because of
insufficient evidence to justify such finding, because there were no legal findings that
plaintiff and defendant lived separate and apart, without cohabitation, for three years
immediately preceding the commencement of this action, without fault on the part of the
defendant;
3. The trial Court's judgment and decree granting plaintiff a divorce is not supported by,
but is contrary to the evidence in that it denies the decree of a sister state authorizing the
separation;
4. The Court erred in finding it had jurisdiction to and deciding plaintiff was entitled to a
decree of divorce in the absence of legal findings in favor of plaintiff and against defendant
upon the issues of fact raised by the pleadings as to plaintiff's residence, defendant's
nonresidence and the cause for divorce set forth in his complaint.
As to Specification of Error 1, we are satisfied that the evidence in the record on appeal
fully supports all of the allegations of the plaintiff's complaint.
2. With reference to Specification of Error 2, we feel that it has no merit. This court has
heretofore passed upon the very question in the cases of Herrick v. Herrick, 55 Nev. 59, 25
P.2d 378; George v. George, 56 Nev. 12, 41 P.2d 1059, 97 A.L.R. 983; Jeffers v. Jeffers, 55
Nev. 201, 29 P.2d 351; and Lamb v. Lamb, 57 Nev. 421, 65 P.2d 872.
In the George case, the court held [56 Nev. 12, 41 P.2d 1060]:
It is clear that the discretion which the trial Court is called upon to exercise depends not
so much upon the comparative rectitude of conduct of the spouses as upon the probability of
their being able to live together in such a manner as to be for their best interests and the
best interests of society."
such a manner as to be for their best interests and the best interests of society.
3. Specification of Error 3 involves a decree of separate maintenance made and entered on
the 29th day of December 1944, in the State of Illinois, requiring the plaintiff to pay to the
defendant the sum of $75 per month for her support, which decree was later modified on
October 11, 1945, and January 22, 1947. This decree of separate maintenance was set forth as
a separate defense in the answer, answer to the supplemental complaint, and supplemental
answer of the defendant, which allegation was demurred to by the plaintiff, and the demurrer
was sustained by the district court. That a decree of separate maintenance is not a bar to an
action for divorce upon the ground of three-year separation without cohabitation has been
definitely settled. George v. George, 56 Nev. 12, 41 P.2d 1059, 97 A.L.R. 983; Schuster v.
Schuster, 42 Ariz. 190, 23 P.2d 559.
4. Specification of Error 4 is likewise not supported by the record. The lower court made
the following Findings of Fact:
1. That plaintiff is now and for more than six weeks prior to the commencement of this
action, to-wit: since the 13th day of November, 1946, has been an actual bona fide resident
and domiciliary of the County of Clark, State of Nevada, actually and physically residing and
being domiciled therein during all of said period of time.
2. That plaintiff and defendant intermarried at the City of Alton, State of Illinois, on or
about the 15th day of February, 1930, and they ever since have been and still are husband and
wife.
3. That there are two minor children the issue of said marriage, to-wit: Betty Lou
Lagemann, aged about fifteen (15) years, and Lila Lee Lagemann, aged about eleven (11)
years: that said minor children are now in the custody of the plaintiff, and that it is for the best
interests of said minor children that their care, custody and control be awarded to plaintiff.
4. That there are no property rights of the parties hereto within the State of Nevada to be
adjudicated.
5. That the plaintiff and defendant have lived separate and apart for more than three (3)
successive years last past to-wit: since the 10th day of June, 1937, and immediately preceding
the commencement of this action, without cohabitation.
6. The Court finds upon the allegations and admissions in the pleadings that the
defendant was committed to Alton State Hospital at Alton, Illinois, on the 10th day of June,
1937; that thereafter and on the 10th day of June, 1941, the said defendant was paroled from
the said Alton State Hospital; that said defendant was never re-committed to said Alton State
Hospital and is now and has been for more than three (3) years last past and immediately
preceding the filing of the Complaint herein sane and competent; that the said separation and
omission to cohabit since June 10, 1941, was not the result of the insanity or incompetency of
the defendant; that it is improbable and unlikely that the plaintiff and defendant will be able
to live together in such a manner as to be for their best interests and the best interests of
society.
7. That the defendant required for her support and maintenance a sum which the Court
finds to be the sum of Forty-five Dollars ($45.00) per month; that the plaintiff has the
financial ability to pay the said sum and ought to pay it.
8. That the plaintiff has had the care, custody and control of the two said minor children
since the 10th day of June, 1937, and that said plaintiff is a fit and proper person to have the
care, custody and control of the said minor children subject to the right of reasonable
visitation by the defendant.
Further, although the record discloses that an order for publication of summons was
entered in this action under which the defendant was personally served with summons in the
State of Illinois, she appeared personally in the action by her attorneys, in Las Vegas, and
was represented by counsel at all times during the trial.
in the action by her attorneys, in Las Vegas, and was represented by counsel at all times
during the trial. Therefore, the nonresidence of the defendant is entirely immaterial as she
participated fully in the trial of the action.
5. Among the further and separate defenses alleged by the defendant in her answer,
answer to the supplemental complaint, and supplemental answer, which were demurred to by
the plaintiff, and also attacked by a motion to strike, which demurrers were sustained and
motion to strike granted, were the following constitutional questions:
The defendant contends that section 9467.06, N.C.L. Supplement 1931-1941, being
chapter 23, Statutes of Nevada, 1939, page 16, which reads as follows:
Section 1. Divorce from the bonds of matrimony may be obtained, in addition to the
causes now provided by law and subject to the same procedure and requirements, for the
following cause:
When the husband and wife have lived separate and apart for three consecutive years
without cohabitation the Court may, in its discretion, grant an absolute decree of divorce at
the suit of either party, is unconstitutional for the following reasons:
First: That it is repugnant to the requirements of article 1, section 10, of the constitution of
the United States, in that it is a law impairing the obligation of a contract. In support of this
contention the appellant cites the following cases decided by the Supreme Court of the United
States, to-wit: Dartmouth College Case, Trustees of Dartmouth College v. Woodward, 4
Wheat. 518, 629, 4 L.Ed. 629; Hunt v. Hunt, 131 U.S.Append. clxv, 24 L.Ed. 1109.
Upon a careful analysis of these two cases cited by the defendant, it is apparent that they
hold directly opposite to her contention. In the Hunt case the following statement is made:
In the Dartmouth College Case, 4 Wheat. 629 [4 L.Ed.
629], it was expressly said by Chief Justice Marshall, in delivering the opinion of the court,
that the provision of the Constitution prohibiting States from passing laws impairing the
obligation of contracts Had never been understood to embrace other contracts than those
which respect property or some object of value, and confer rights which may be asserted in a
court of justice. It never has been understood to restrict the general right of the Legislature to
legislate upon the subject of divorces. Those Acts enable some tribunal, not to impair a
marriage contract, but to liberate one of the parties because it has been broken by the other.'
This disposes of the first ground upon which our jurisdiction is invoked in this case. The law
complained of simply provides for divorces in certain cases, after hearing by a court of
competent jurisdiction. Hunt v. Hunt, 131 U.S.Append. clxv, 24 L.Ed. 1109, 1110.
In the case of Tipping v. Tipping, 65 App. D.C. 222, 82 F.2d 828, 830, the court said:
It has been held by the highest authority that marriage is an institution of society, creating
a status which may be regulated and controlled by public law; that legislation affecting the
institution or annulling the relation between the parties is not within the prohibition of the
Constitution of the United States against the impairment of contracts, or against ex post facto
laws. Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654.
We feel that it is well settled by the highest authorities that the Nevada statute under
consideration is not unconstitutional upon the ground hereinabove set forth.
6. Second: That it is repugnant to the requirements of article IV, section 1 of the
constitution of the United States in that full faith and credit is not given to the judicial
proceedings had in the State of Illinois, wherein the defendant was awarded a decree of
separate maintenance. In support of this contention the defendant cites the case of Harding v.
Harding, 198 U.S. 317, 25 S.Ct. 679, 49 L.Ed. 1066.
The issues involved in this action under the three year separation without cohabitation
statute are entirely different from those which were involved in the proceeding in the State of
Illinois. All matters which were or might have been litigated in Illinois were not the basis of
the litigation in Nevada. The cases of Estin v. Estin, 68 S.Ct. 1213, 92 L.Ed. 1561, and
Kreiger v. Kreiger, 68 S.Ct. 1221, 92 L.Ed. 1572, are decisive upon the point that the full
faith and credit clause of the constitution of the United States is not violated by the Nevada
Statute.
7. Third: That it is offensive to the due process of law clause of section 1 of the XIV
amendment to the constitution of the United States, in that the defendant has been deprived of
certain rights arising out of the marriage relation without due process of law. In support of
this contention, the defendant cites the following cases: Dorrance v. Dorrance, 242 Mo. 625,
148 S.W. 94; Hubbard v. Hubbard, 77 Vt. 73, 58 A. 969, 67 L.R.A. 969, 107 Am.St.Rep.
749, 2 Ann.Cas. 315.
This action was not tried as a result of a default after constructive service of summons
upon the defendant, but instead by the personal appearance of the defendant in the action and
represented by counsel at the time of the trial. The defendant had her day in court and had
every opportunity to present any defense which she legally had the right to do, and
participated in all the proceedings. The supreme court of the United States in two recent
decisions held as follows:
It is quite another thing to hold that the vital rights and interests involved in divorce
litigation may be held in suspense pending the scrutiny by courts of sister States of findings of
jurisdictional fact made by a competent court in proceedings conducted in a manner
consistent with the highest requirements of due process and in which the defendant has
participated. (Italics ours.) Sherrer v. Sherrer (Coe v. Coe), 68 S.Ct. 1087, 1093, 1097, 92
L.Ed. 1429.
We have carefully reviewed all of the points raised by the defendant and find that the
contentions made by the defendant in reference to the constitutionality of the Nevada statute
providing a ground for divorce after three years separation without cohabitation, are without
merit.
Also, the judgment and decree made and entered by the district court is fully supported by
the record of the trial.
The judgment and decree, together with the order denying the motion for a new trial are
hereby affirmed.
Eather, C. J., being absent on account of illness, the Governor designated Honorable
Merwyn H. Brown, District Judge of the Sixth Judicial District Court, to sit in his place.
September 23, 1948.
Per Curiam:
Rehearing denied.
____________________
[Reporter's Note: Appeal of the above case to the United States Supreme Court was dismissed by that Court
on March 28, 1949.]
____________
65 Nev. 386, 386 (1948) Olszowy v. Olszowy
AMELIA K. OLSZOWY, Appellant v. RUFIN T.
OLSZOWY, Respondent.
No. 3516
September 24, 1948. 197 P.2d 701.
1. Divorce.
In suit for divorce, allegations of complaint alleging that since marriage of parties, defendant treated
plaintiff with extreme cruelty, entirely mental in nature, were sufficient under statute. N.C.L.1931-1941
Supp., sec. 9467.04
2. Divorce.
Where allegations in husband's suit for divorce on ground of extreme cruelty, were amply sufficient under
statute, fact that husband's bill of particulars furnished on wife's demand, omitted any statement that wife's
alleged acts of cruelty had a detrimental effect on husband's health, did not render complaint insufficient.
N.C.L.1931-1941 Supp., sec. 9467.04.
3. New Trial.
Possible grounds for new trial, which were not relied on in motion for a new trial, were abandoned.
Where an appeal is based on the ground of alleged errors in ruling on evidence, a motion for new trial on
such grounds must be made and determined before the appeal is taken.
Where defendant failed to rely on and urge alleged error in ruling on evidence as a ground for a new trial
in trial court, defendant could not rely on alleged error as ground for reversal in supreme court.
6. Divorce.
Where there is a substantial conflict in evidence in divorce suit, trial court's judgment will not be
disturbed in appeal.
7. Divorce.
Evidence sustained finding that wife was guilty of extreme mental cruelty warranting the granting of
divorce to husband. N.C.L.1931-1941 Supp., sec. 9467.04.
Appeal from Second Judicial District Court, Washoe County; Merwyn H. Brown, Judge.
Suit for divorce by Rufin T. Olszowy against Amelia K. Olszowy. From an adverse
judgment and order, the defendant appeals. Judgment and order affirmed.
John C. Bartlett, of Reno, for Appellant.
OPINION
By the Court, Eather, C. J.:
Respondent, as plaintiff, in the trial court, was granted an absolute divorce from appellant,
as defendant, on the ground of extreme cruelty.
In her appeal appellant contends that:
(1) The trial court erred in permitting respondent over objection, to testify regarding the
effect of appellant's conduct upon his health, when the bill of particulars contained nothing in
that regard.
(2) The court erred in holding the evidence to be sufficient to establish a cause of action on
the ground of extreme cruelty.
(3) The evidence introduced concerning the effect of appellant's conduct upon respondent's
health was insufficient to permit the court to grant a decree of divorce.
The complaint alleges: That since the marriage of the parties, defendant has treated the
plaintiff with extreme cruelty, entirely mental in nature.
1. The allegations of the complaint are amply sufficient to meet the provisions of section
9467.04, 1941 Supplement, Nevada Compiled Laws, 1931-1941, wherein it is provided: In
actions for divorce the complaint of the plaintiff * * * may state the cause or causes for
divorce upon which the party or parties rely, in the words of the statute. * * * Buaas v.
Buaas, 62 Nev. 232, 147 P.2d 495.
The record shows that pursuant to demand respondent furnished a bill of particulars which
alleged facts of cruel treatment but failed to contain any statement of the effect of such acts of
cruelty upon the health of respondent. The appellant made no request for further particulars,
but at the trial, objected to the admission of any evidence on this point.
particulars, but at the trial, objected to the admission of any evidence on this point.
The appellant cites the case of Buaas v. Buaas, supra, and urges that said case is authority
for her contention that the court erred in admitting the evidence introduced concerning the
effect of appellant's conduct upon respondent's health, over the objection of appellant. With
this we do not agree.
In the case of Buaas v. Buaas, supra, we held that the addition of this allegation to an
otherwise good statement of a cause of action stated in the complaint, did not render the
complaint invalid, since the bill of particulars was an amplification of the language of the
statute and to our minds adds to, rather than detracts from, the sufficiency of the allegations to
state a cause of action.
2. In the instant case the question is whether the omission of such a statement, or of other
allegations covering the subject, from a bill of particulars could cause the complaint to be
held insufficient to state a cause of action. We think it cannot have this effect.
The respondent points out that while plaintiff objected to the introduction of evidence
relating to the effect of the conduct on respondent's health, she made no affidavit of surprise
to support a motion for a new trial, nor did she rely upon such a ground for a new trial, and
although appellant gave notice of other grounds in her motion, it is evident that the motion
was based only upon the insufficiency of the evidence to sustain the decision. In this respect
we quote a portion of the decision of the trial court on ruling on the said motion for a new
trial. There being nothing presented to the court with regard to any newly discovered
evidence, the motion was submitted to the court orally upon the ground that the evidence was
insufficient to justify the findings on the part of the court, it was ordered that the motion for a
new trial be, and the same is, denied.
3. By failing to rely upon other possible grounds on her motion for a new trial, she
clearly abandoned them as a basis for relief.
her motion for a new trial, she clearly abandoned them as a basis for relief.
Cases are appealed for the correction of errors. Water Co. of Tonopah v. Tonopah Belmont
Development Co., 50 Nev. 24, 249 P. 565; Truckee River General Electric Co. v. Durham, 38
Nev. 311, 149 P. 61; Giannotti v. De Bock, 47 Nev. 332, 211 P. 520.
4. Where an appeal is based upon the ground of alleged errors in ruling upon the evidence,
a motion for a new trial upon such ground must be made and determined before the appeal is
taken. Water Co. of Tonopah v. Tonopah Belmont Development Co., supra.
5. The appellant having failed to rely upon and urge such possible error as a ground for a
new trial in the trial court, will not be permitted to rely upon it as a ground for reversal in this
court.
We now consider the contention of the appellant that the evidence was insufficient to
sustain the judgment.
6, 7. The testimony was to the effect that shortly after the marriage the defendant, or
appellant, began to complain about the home and the family of respondent; she cried and
complained about his playing in an orchestra; that she continuously complained about these
and other matters; that she threatened to leave respondent if he did not change his work; that
she quarrelled openly with him about his family and threatened on more than one occasion to
destroy herself by taking an overdose of sleeping pills. There is evidence that this conduct
was without justification, and that it impaired the health of respondent. While the evidence
was conflicting it is apparent that there was substantial evidence in the record to support the
decision of the trial court. Therefore, in line with long-established rule of this court where
there is substantial conflict in the evidence the judgment of the trial court will not be
disturbed.
The judgment and order appealed from are affirmed.
____________
65 Nev. 390, 390 (1948) Lorenzi v. Tomiyasu
D. G. LORENZI, KIRK CORNWELL, ORAL TAYLOR and C. D. CHURCHFIELD,
Copartners Doing Business Under the Name of CLARK COUNTY INDUSTRIES,
Appellants, v. NANYU TOMIYASU, HORACE V. COLBERT, HARRIET J. STRICKLER,
U. TOMIYASU, RUPERT O. LANE, and C. A. EDDY, Respondents.
No. 3496
September 27, 1948. 197 P.2d 703.
Mines and Minerals.
Certificate of location of placer mining claim located after July 1, 1941, was not void merely because it
did not contain post-office address of locators. N.C.L.1929, sec. 4133.
Appeal from Fifth Judicial District Court, Nye County; Wm. D. Hatton, Judge.
Action by D. C. Lorenzi and others, co-partners doing business under the name of Clark
County Industries, against Nanyu Tomiyasu and others, to quiet title to placer mining claims,
wherein defendants filed a cross complaint asserting ownership of the land in question. From
that portion of judgment denying plaintiffs any title to all but one of the claims involved and
from order denying their motion for a new trial, plaintiffs appeal. Judgment and order
reversed and cause remanded for a new trial.
Leo A. McNamee, of Las Vegas, and William J. Crowell, of Tonopah, for Appellants.
George Rudiak, of Las Vegas, for Respondents.
OPINION
By the Court, Maestretti, District Judge:
Action by appellants to quiet title to certain placer mining claims located in Nye County,
Nevada, designated as Red Cone Placer Mining Claim, the Red Bird Placer Mining Claim,
the Right Spot Placer Mining Claim, the Nevada Placer Mining Claim, and the Red Cone
Extension Placer Mining Claim, a description of each being set forth and described in
detail in the complaint.
Placer Mining Claim, the Right Spot Placer Mining Claim, the Nevada Placer Mining Claim,
and the Red Cone Extension Placer Mining Claim, a description of each being set forth and
described in detail in the complaint.
Defendants and respondents filed their answer and cross complaint, asserting ownership of
the ground in question, designating the same by the names of Desert Volcano Cone Placer
No. 1, Desert Volcano Cone Placer No. 2, Desert Volcano Cone Placer No. 3, and Desert
Volcano Placer No. 4.
Plaintiffs and appellants replied to the answer and cross complaint denying the claim of
title set out in defendant's and respondent's cross complaint on the ground that the location by
defendants and respondents was invalid in that the ground was not subject to location, and
was at the time in the lawful possession of plaintiffs and appellants.
In support of plaintiffs' and appellants' claim of right of possession of the disputed claims,
plaintiffs offered in evidence the records of location of the said Red Cone, Red Bird, Right
Spot, and the Nevada Placer Mining Claims as they appeared of record in Nye County,
Nevada. Objection to the introduction of said certificates by defendants and respondents on
the ground that they did not contain the post-office address of the locators was sustained by
the court. The certificate of location of the Red Cone Extension Placer was admitted in
evidence by the court.
After the court's rejection of the aforesaid certificates, plaintiffs offered to prove that the
locations of the claims in the respective rejected certificates has been legally made. This offer
was likewise rejected by the court. The court on motion of defendants then granted a nonsuit
as to the Red Cone Placer, the Red Bird Placer, the Right Spot Placer and the Nevada Placer
Mining Claims.
Defendants' offer of proofs in support of their cross complaint was denied upon objection
of plaintiffs.
In its decree the court rendered judgment quieting plaintiffs' title to Red Cone Extension
Placer Mining Claim, but dismissed the action as to Red Cone, the Red Bird, the Right Spot,
and the Nevada Placer Mining Claims, and further decided that neither the plaintiffs nor the
defendants had any title to last-named mining claims, and further that none of the defendants
had any estate or title to the mining claims described in defendant's cross complaint, to-wit:
The Desert Volcano Cone Placer No. 1, Desert Volcano Cone Placer No. 2, Desert Volcano
Cone Placer No. 3, and Desert Volcano Cone Placer No. 4.
In due time plaintiffs filed notice of intention to move for new trial, and later a motion to
set aside a portion of the decision as set forth in the respective motions on file herein. These
were denied, as was plaintiffs' motion for new trial.
The appeal is taken from that portion of the court's judgment denying plaintiffs any title to
the Red Cone, Red Bird, Right Spot and the Nevada Placer Mining Claims, and from the
order denying motion for a new trial.
Plaintiffs claim in their opening brief that there is only one question to be decided on this
appeal, to-wit: Is a certificate of location of a placer mining claim located in Nevada
subsequent to July 1, 1941, void under the law of the State of Nevada if it does not contain
the post-office address of the locator or locators? Respondents, in their answering brief
concede that issue as being the principal issue, but seek to discuss it with two subordinate
headings which they set forth on page 3 of their answering brief. We feel that an answer to
the issue suggested by plaintiffs would make a discussion of the so-called subordinate
headings unnecessary.
Section 4133 N.C.L., relating to location of placer claims makes no requirement as to the
address of the locator of a placer claim. We have no authority under the law to write in an
additional requirement for placer locations.
the law to write in an additional requirement for placer locations.
From the foregoing we feel that the court below erred in rejecting plaintiff's offer in
evidence of the certificate of location of the Red Cone Placer Mining Claim.
It is, therefore, ordered that the judgment and orders appealed from are reversed and the
cause is remanded for new trial.
Eather, C. J., being absent by reason of illness, the Governor commissioned Hon. A. J.
Maestretti, District Judge of the Second Judicial District, to act in his place.
____________
65 Nev. 393, 393 (1948) In Re Moore
In the Matter of the Contested Election of ROBERT T. (BOB) MOORE for the Office of
Commissioner, Third Class, of the City of Las Vegas, Nevada.
WILLIAM PECCOLE, Contestant, v. ROBERT T.
(BOB) MOORE, Contestee.
No. 3535
October 1, 1948. 197 P.2d 858.
1. Elections.
When election count is challenged by general allegations of election officials' misconduct, as in erroneous
counting of votes, ballots themselves constitute the best, primary, and only evidence of correctness of count
and proof of misconduct or error aliunde, as secondary evidence, is not necessary foundation for admission
of ballots as evidence in election contest. N.C.L. 1929, sec. 2506 et seq.
2. Elections.
The 1931 act, amending civil procedure act by adding section declaring disputable presumption that
official duty has been regularly performed, did not so amend election laws or practice and proceedings in
election contests as to render nugatory supreme court's holding that ballots are primary and controlling
evidence of election result when election inspectors' returns are impeached, as such presumption has
always been in effect under common law.
65 Nev. 393, 394 (1948) In Re Moore
been in effect under common law. N.C.L.1929, sec. 2506 et seq.; N.C.L.1931-1941 Supp., sec. 9047.07,
subd. 15.
A change in settled law permitting recount of ballots in election contest based on general allegations of
election officials, misconduct is for legislature, not court, to make. N.C.L. 1929, sec. 2506 et seq.
4. Elections.
A ballot, on which cross was not in square opposite candidate's name, but appeared immediately
following such name between it and square, should have been rejected.
5. Elections.
An election contestant's objections to ballots on which stamped crosses were blurred in many places, due
to overinking from ink pad, and ballots in which one line of cross touched or slightly crossed boundary line
of square, were properly overruled by district court as hypertechnical.
Proceeding by William Peccole to contest the election of Robert T. (Bob) Moore as
Commissioner Third Class of City of Las Vegas. From a judgment for contestee and an order
denying contestant's motion for a new trial, contestant appeals. Reversed and remanded.
Lewis, Hawkins & Cannon and Jones, Wiener and Jones, all of Las Vegas, for
Contestant-Appellant.
George E. Marshall, of Las Vegas, for Contestee-Respondent.
OPINION
In the city election of May 6, 1947, for the city of Las Vegas, Clark County, Nevada, there
were twelve candidates for commissioner, third class, 4-year term, for which office one was
to be elected. Appellant and respondent were two of such twelve contestants.
65 Nev. 393, 395 (1948) In Re Moore
respondent were two of such twelve contestants. According to the election returns, appellant
Peccole received 904 votes and respondent Moore 941a plurality of 37 votes. Appellant
(sometimes herein referred to as plaintiff and sometimes as contestant) commenced a
statutory contest proceeding by filing his Statement of Contest under the provisions of
N.C.L. sec. 2506 et seq. The court below sustained respective demurrers to the original
statement of contest, the amended statement of contest and the second amended statement of
contest, and the matter went to trial on the third amended statement of contest, the contestee's
answer and the contestant's reply.
Contestant alleged that the election officials were guilty of malconduct in that they did
willfully, intentionally, wrongfully and unlawfully reject certain ballots which should have
been counted for contestant and counted certain ballots for contestee despite the fact that they
were illegal for sundry reasons alleged in the allegations. These were lack of watermark,
excessive number of names voted for, impossibility to determine the voter's choice, names,
words, erasures or marks upon the ballots, marks made by pen and ink, made by pencil, or by
using the stamp as a brush or a marker, crosses stamped outside of the square provided, the
use of more than one cross in certain squares, ballots mutilated or disfigured by erasures, etc.,
all of which markings, it was alleged, could be used as identifying marks. It was further
alleged that had the votes been properly accepted, rejected and counted, contestant would
have received the highest number of votes of any candidate for the office at said election.
Specific proof of misconduct was offered as to precinct 9 and as to this precinct, as will
hereafter appear, the trial court permitted the ballots to be opened and counted. The court
refused, however, to permit the ballots in the remaining precincts to be opened and counted
because there had been no proof of misconduct of the officials in such precincts.
65 Nev. 393, 396 (1948) In Re Moore
of the officials in such precincts. (Throughout this opinion we use the term malconduct or
misconduct of officials as including and applying to the erroneous counting or rejecting of
ballots, under the holdings of many cases. No willful wrong on the part of any of the election
officials is anywhere suggested in the case.) Such refusal to open and count the ballots is the
main error assigned in this appeal. The court's ruling was made largely in acceptance of the
theory advanced by contestee that an enactment by our legislature in 1931 to the effect that it
is presumed that official duty has been regularly performed amended our statutory election
contest proceedings and was determinative of the accuracy of the count unless contestant
proved misconduct aliunde.
The point urged upon the lower court, first, upon the respective demurrers to the original
complaint, the first amended complaint and the second amended complaint and, secondly,
upon the question of the admissibility of the ballots in evidence and thirdly, upon the
plaintiff's motion for a new trial, and the point squarely presented to this court, is whether the
1931 amendment in effect made inapplicable the earlier holdings of this court. The act is
chapter 50 of the Statutes of 1931 found at page 59 and entitled An Act to amend an act
entitled An act to regulate proceedings in civil cases in this state and to repeal all other acts
in relation thereto,' approved March 17, 1911, by adding thereto seven new sections to be
numbered and designated sections 558a to 558g, inclusive, defining indirect evidence,
inferences and presumptions, and repealing all acts and parts of acts in conflict herewith.
The act defines and classifies indirect evidence, inferences, conclusive presumptions and
presumptions that may be controverted. Section 558g, N.C.L.1931-1941 Supp., sec. 9047.07,
reads: All other presumptions are satisfactory, if uncontradicted. They are denominated
disputable presumptions, and may be controverted by other evidence. The following are of
that kind: * * * 15.
65 Nev. 393, 397 (1948) In Re Moore
are of that kind: * * * 15. That official duty has been regularly performed * * *
In offering the ballots in evidence (after establishing that the ballots and other election
records were in the same condition as when delivered by the election officials to the city clerk
and by the city clerk to the county clerk) and in answering defendant's objection to such offer,
plaintiff's counsel insisted that under the pleadings in this case, the best evidence of the
correctness of the count of the inspectors, and the commissioners, are the ballots themselves,
by all the authorities in this state. Counsel for the defendant objected to the admission of the
ballots on the ground that the law of the state is that there is a presumption in favor of the
fact that the official duty has been regularly performed * * * There is no testimony the
contestee was deprived of any ballots whatever; there is no testimony that the contestant was
given any ballot, whatever * * * and we object to the offer to accept these ballots on the
ground there has been no showing made that would overcome the law of the state that official
duty has been regularly performed. Counsel for the plaintiff insisted again that this court had
held that the best evidence of what these things are is the ballots themselves. The learned
judge remarked that he had overruled the demurrer to the third amended complaint because
its general allegations were sufficient as to the casting of illegal votes (that is ballots by
illegal voters, in which case the statutory notice was required to be served specifying the
names of the illegal voters, etc.), but that he considered the third amended complaint
insufficient as containing only general conclusions as to malconduct on the part of the
election officials. The court repeated that it had considered the third amended complaint
sufficient as against a general demurrer because it contained specific allegations of
malconduct as to precinct 9, wherefore it was unnecessary then to determine whether
malconduct on the part of the election officials of the precincts other than precinct 9 [had]
been set forth specifically so as to warrant the overruling of the general demurrer on this
ground also."
65 Nev. 393, 398 (1948) In Re Moore
officials of the precincts other than precinct 9 [had] been set forth specifically so as to warrant
the overruling of the general demurrer on this ground also. The court then ruled that except
as to precinct 9 the ballots could not be opened because there is not specific enough
allegation to show malconduct in the election boards of the other precincts. It seems clear
that the specification of error, because the ballots were excluded without prior proof of
specific acts of malconduct, is to all intents and purposes the same specification as to the
holding that the complaint was insufficient in failing to allege specific acts of malconduct.
The alleged erroneous counting of ballots for the defendant and the alleged erroneous refusal
to count ballots for the plaintiff was, as we have seen, deemed by the court to be a mere
conclusion. The court continued, in ruling on the admissibility of the ballots: * * * the only
thing the court does reject in the way of the offer of proof at this time is the ballots
themselves and the other records pertaining to the election now in the hands of the city clerk.
* * * If you have other evidence of malfeasance or misconduct or something and would like
to offer it, I will make my ruling. Plaintiff then again reoffered the counted and rejected
ballots for the various candidates and announced that he had no other evidence.
Before this court, respondent says frankly, with reference to his contention that it is
necessary to allege and prove specific acts of malconduct (actual mistakes in counting the
ballots) before the ballots themselves may be received in evidence, We do not assert that this
has been the rule in the State of Nevada, and we contend most urgently that the law of these
cases has been changed. And again the respondent asserts: We do contend seriously that the
law has changed and therefore, the reported decisions of the Supreme Court of our state to the
contrary, * * * [we] should now adopt the rules that have been promulgated in other states
where the statute designates that official duty has been regularly performed."
65 Nev. 393, 399 (1948) In Re Moore
where the statute designates that official duty has been regularly performed.
1. Respondent could not do otherwise than concede frankly that the rule has been
established in this state, contrary to the rule announced in some other jurisdictions, that when
the election count is challenged by general allegations of misconduct (which we have held to
include the erroneous counting of votes) the ballots themselves constitute the best evidence,
the primary evidence, the only evidence of the correctness of the count, and that proof of
misconduct or error aliunde, as secondary evidence, is not a necessary foundation or basis for
the admission of the ballots. This was definitely settled in Schneider v. Bray, 22 Nev. 272, 39
P. 326, wherein it appears that the precise point was urged and definitely passed upon. There,
as in the present case, the district court had ruled to the effect that it was proper for the
plaintiff to prove that ballots were called and counted for Bray which should have been
called and counted for Schneider, but that he must do this before he would be permitted to
introduce the ballots which the plaintiff had offered for the purpose of proving these alleged
facts. It appears from the briefs printed in the official volume of the Nevada Reports that the
appellant urged that two points were involved: 1. Are the ballots primary or secondary
evidence? 2. What is the proper foundation to lay to make the ballots primary evidence? The
respondent apparently agreed with the issue presented. He said: Appellant urges that, from
this allegation (malconduct in counting votes for Bray which were in reality cast for
Schneider, in sufficient numbers to change the result of the election) and upon his showing
that the ballots had not been tampered with, he has a right to have the ballots opened and
counted, while respondent contends that some showing of fraud must be made before the
court will order the ballots to be produced and counted. The court held through Mr.
65 Nev. 393, 400 (1948) In Re Moore
through Mr. Justice Bonnifield, citing numerous cases, that although the returns of the
inspectors of election are prima facie true, when the returns are impeached, the ballots are
the primary and controlling evidence of the true result. Thus the issue has been definitely
determined and we are not called upon to reconsider the arguments presented or the reasons
and authorities there relied upon by this court. Schneider v. Bray was cited and approved in
Averyt v. Williams, 8 Ariz. 355, 76 P. 463 and in Looney v. County Election Board of
Seminole County, 146 Okl. 207, 293 P. 1056, and the rule applied has been enunciated by
many other authorities. See 18 Am.Jur., Elections, p. 377, sec. 306; 29 C.J.S., Elections,
sec. 249, page 362; Vincent v. Sims, 207 Ind. 47, 191 N.E. 150; Wolff v. Clark, 212 Ky. 435,
279 S.W. 658; Bass v. Leavitt, 11 Cal.App. 582, 105 P. 771, 774. In the last-mentioned case
we find the significant remark: We do not think the case is one where it would have been
possible for either contestant to discover in advance of the trial the ballots which bore
distinguishing marks * * *.
In the later case of Warren v. Wilson, 46 Nev. 272, 285, 210 P. 204, 997, 212 P. 497,
decided in 1923, Mr. Justice Coleman, speaking for this court, said: The entire evidence
consists of ballots cast at the primary election, which are before us; hence there can be no
dispute as to the evidence. The only question for the consideration of the trial court was
whether ballots having certain marks should be counted for the appellant or the respondent.
2. We think that the complete answer to respondent's contention is that the statutory
presumption above quoted as enacted in 1931 has always been in effect in this state under the
common law. In Schneider v. Bray, supra, decided in 1895, it was conceded by the court that
The returns of the inspectors of election are prima facie true, which is but another way of
stating the statutory presumption as applied to elections. In State ex rel.
65 Nev. 393, 401 (1948) In Re Moore
ex rel. Blake v. County Commissioners, 48 Nev. 299, 231 P. 384, 385, decided in 1924,
involving the contest of opposing candidates for assembly from Ormsby County, it was stated
by this court: When public officials have acted, it is a presumption of law that they did their
duty. This is a well established rule. This being so, it cannot be said that the 1931 statute so
amended our election laws or civil practice and proceedings governing election contests as to
render nugatory the effect of the holding of this court in Schneider v. Bray.
1
In addition to
the cases elsewhere cited herein, other election contest appeals reaching this court include
Stinson v. Sweeney, 17 Nev. 309, 30 P. 997; Lynip v. Buckner, 22 Nev. 426, 41 P. 762, 30
L.R.A. 354; State ex rel. McMillan v. Sadler, 25 Nev. 131, 58 P. 284, 59 P. 546, 63 P. 128,
83 Am.St.Rep. 573; and James v. Stern, 44 Nev. 430, 195 P. 1104. Nothing in any of these
cases detracts from the conclusion we have reached. In all of such cases the ballots were
examined and counted and in each such case the judgment of the trial court and the final
action of this court were governed by a determination as to what ballots were valid and
should be counted and what ballots should be rejected. While it is true that it does not appear
in these cases that a consideration of the ballots was objected to in the absence of prior proof
of error or mistake or that the officials had been guilty of malconduct, it is clear from the
nature of the opinions from this court that for the most part the alleged error in counting
or rejecting ballots could hardly have been the subject of any specific allegation of such
malconduct.
____________________

1
The 1931 act, N.C.L.Supp.1931-1941, sec. 9047.01 et seq., defines indirect evidence, defines inferences,
defines presumptions, defines conclusive presumptions and lists seven classifications thereof, defines disputable
presumptions and lists forty of that kind. A casual glance at the forty listed disputable presumptions indicates
that many of them, indeed most of them, are, like subdivision 15 (herein invoked by respondent) but statements
of the common law or presumptions well recognized in our jurisprudence. Citation of but the first six of these
will be illustrative: 1. That a person is innocent of a crime or wrong; 2. That an unlawful act was done with an
unlawful intent; 3. That a person intends the ordinary consequences of his voluntary act; 4. That a person takes
ordinary care of his own concerns; 5. That evidence willfully suppressed would be adverse if produced; 6. That
higher evidence would be adverse from inferior being produced, etc.
65 Nev. 393, 402 (1948) In Re Moore
of malconduct, it is clear from the nature of the opinions from this court that for the most part
the alleged error in counting or rejecting ballots could hardly have been the subject of any
specific allegation of such malconduct. While not directly in point on the question here
raised, these cases lend support to our conclusion.
3. The learned district court, in view of the presumption created by the 1931 statute, held,
and respondent insists, that we should be governed by what is claimed to be the better rule as
expounded in the cases of Otjen v. Kerr, 191 Okl. 628, 136 P.2d 411; and In re Cryer, 77 Cal.
App. 605, 247 P. 252. These cases decry what amounts virtually to a right to a recount upon a
general allegation of malconduct. Sweeping allegations of misconduct of election officials in
1,026 precincts in the California case and like allegations affecting 3,690 precincts in the
Oklahoma case were in those cases held to be nothing more than general conclusions. These
cases are well reasoned and we have no criticism to make of them. Their logic indeed is
particularly apt to the situation in this state. Under sec. 1513, Revised Laws of Nevada of
1912, it was provided that if the result of the canvass showed a majority of ten votes or less
for a candidate, the defeated candidate could obtain a recount upon a simple application
stating that he believed that mistakes had occurred. This section was repealed, however, in
1915, Stats. 1915, page 6, whereby the legislature narrowed rather than broadened the right to
a recount and provided for such recount only in case of a tie vote. Although it is asserted that
permitting the ballots to be recounted in an election contest based on the general allegations
of misconduct is contrary to the intention thus evidenced by the legislature, we are
nonetheless bound by the settled law of this state, which has been known to many legislatures
since that law has been established. Nor does it appear from the number of election contests
initiated in this state that such a situation has been abused. It may be that defeated candidates
who might have been disposed to request a simple recount under the former statute are
deterred from the more formal proceeding of an election contest in the district court or in
the supreme court as the case may be.
65 Nev. 393, 403 (1948) In Re Moore
request a simple recount under the former statute are deterred from the more formal
proceeding of an election contest in the district court or in the supreme court as the case may
be. However that may be, if a change in the situation should seem desirable, it is one for the
legislature to make and not the court. We hold that the rule laid down in Schneider v. Bray,
supra, was not changed by the 1931 statute, and that it was error for the district court to reject
the offer of the ballots in evidence.
4, 5. As noted, a showing having been made of erroneous action of the election officials in
the counting of certain ballots in precinct 9, the court permitted an examination of the 183
ballots of that precinct, and the result of that hearing was to change the counting board's
figures96 to 15, a plurality of 81 in favor of contesteeto the court's figures85 to 18, a
plurality of 67 in favor of contestee in precinct 9. The aggregate figures for the 32
precincts941 to 904 in favor of contestee according to the election boardbecame changed
to 930 to 907 in favor of contestee as a result of the court's rulings on contested ballots. The
contestee's aggregate plurality in all precincts was thus reduced from 37 to 23. The contestant
had gained 14 votes as the result of the hearing as to precinct 9. 32 more ballots in precinct 9
had been challenged by contestant, but the court overruled contestant's objections to counting
these ballots for the contestee. Error is assigned as to each such ruling, and these ballots are
now before us as exhibits 3 to 34, inclusive. Appellant contends that all of these should be
rejected because there are distinguishing marks on each one. If 24 or more of them are
rejected the plurality would be in favor of contestant and he would, absent any change in the
other precincts, be entitled to a certificate of election. In the ballot identified as plaintiff's
exhibit 8, the cross is not in the square opposite the candidate's name, but appears
immediately following the name, between the name and the square.
65 Nev. 393, 404 (1948) In Re Moore
square. It should have been rejected. State ex rel. Springmeyer v. Baker and Josephs, 35 Nev.
300, 316, 129 P. 452, 456. As to the remaining 31 ballots, although the specified objections
are couched in varying language, an examination shows that the stamped cross is in many
places blurred, apparently due to overinking from the ink pad. In other cases one line of the
cross touches the boundary line of the square or slightly crosses the line. In each case the
district court properly overruled the objection of the contestant and refused to reject the
ballot. It could not have done otherwise. The objections were hypertechnical. No purpose
would be served by discussing these ballots in detail. This court said in State ex rel.
Springmeyer v. Baker and Josephs, supra: Nearly all the questions involved regarding the
validity of the ballots have been determined in the cases of Dennis v. Caughlin, 22 Nev. [447]
452, 41 P. 768, 29 L.R.A. 731, 58 Am.St.Rep. 761; Sweeney v. Hjul, 23 Nev. 409, 48 P.
1036, 49 P. 169; State ex rel. McMillan v. Sadler, 25 Nev. [131] 163, 58 P. 284, 59 P. 546,
63 P. 128, 83 Am.St.Rep. 573; Lemaire v. Walsh, 27 Nev. 258, 74 P. 801; Strosnider v.
Turner, 29 Nev. 347, 90 P. 581; and Strosnider v. Turner, 30 Nev. 155, 93 P. 502., 133 Am.
St.Rep. 710.
The count of the ballots in precinct 9 will accordingly be altered by not counting exhibit
No. 8 for the contestee. As to the rejection of the other 31 ballots in precinct 9, there was no
error and such orders are approved.
By reason of the erroneous refusal of the court to open and inspect and pass upon the
legality and count of the ballots in the remaining 31 precincts, the judgment and order
denying plaintiff's motion for new trial are hereby reversed, and the case is remanded to the
district court for a new trial.
Each party will pay his own costs in this court.
Eather, C. J., and Horsey, J., concur.
____________
65 Nev. 405, 405 (1948) State v. Blackwell
THE STATE OF NEVADA, Respondent, v. DAVID
BLACKWELL, Appellant.
No. 3521
October 4, 1948. 198 P.2d 280.
1. Criminal Law.
If assignment of case by one district judge to another for purpose of determining degree of the crime and
penalty after defendant had entered plea of guilty to information charging murder was not lawful, second
judge was without jurisdiction to hear the cause and no second jeopardy could have attached by reason of
such hearing. N.C.L.1929, sec. 10066; sec. 10068, as amended by Stats.1947, c. 91; Const. art. 1, sec.
8; Rules of District Court, rule 41.
2. Judges.
Under district court rule, a judge empowered to hear a cause has the power, in his discretion, to request
another judge to assume jurisdiction of such cause. Rules of District Court, rule 41.
3. Criminal Law.
After trial begun before a jury, jury may not be discharged and a second jury called except upon
overruling necessity appearing of record, and a violation of such rule constitutes double jeopardy and
amounts to an acquittal. Const. art. 1, sec, 8.
4. Criminal Law.
The rule that a plea of guilty constitutes jeopardy has its proper application only as against a new charge
for same kind, and not to a continuing proceeding on the one, original charge. Const. art. 1, sec. 8.
5. Criminal Law.
A proceeding for determining degree of crime of murder under statute, on a plea of guilty, is not a trial.
N.C.L. 1929, sec. 10066; sec. 10068, as amended by Stats.1947, c. 91.
6. Criminal Law.
Generally, on trial of an accused, jeopardy does not arise until an issue has been raised by arraignment
and plea. Const. art. 1, sec. 8.
7. Homicide.
The general definition of murder in statute includes both degrees, and the same as at common law it
includes all cases of felonious homicide. N.C.L.1929, sec. 10066; sec. 10068, as amended by Stats.1947, c.
91.
8. Criminal Law.
A trial before a court, sitting without a jury, begins at time of commencement of the taking of testimony.
9. Criminal Law.
Jeopardy in a trial before a judge, without jury, begins at point where presentation of proof
begins.
at point where presentation of proof begins. Const. art. 1, sec. 8.
10. Criminal Law.
Where district judge before whom defendant entered plea of guilty to information charging murder
thereafter assigned case to another district judge before hearing for purpose of determining degree of crime
and penalty commenced, only one jeopardy was incurred by defendant, and such jeopardy arose before
second judge when introduction of proofs on part of state was commenced. N.C.L.1929, sec. 10066; sec.
10068, as amended by Stats.1947, c. 91; Const. art. 1, sec. 8; Rules of District Court, rule 41.
11. Criminal Law.
Upon a plea of guilty of murder, determination of the degree of the crime should be supported by
competent evidence, material and relevant to question of degree, and only such evidence should be
considered in arriving at that determination. N.C.L.1929, sec. 10066; sec. 10068, as amended by
Stats.1947, c. 91.
12. Criminal Law.
Upon plea of guilty of murder, evidence as to prior record of accused may be considered for purpose of
determining penalty. N.C.L.1929, sec. 10066; sec. 10068, as amended by Stats.1947, c. 91.
13. Criminal Law.
Upon plea of guilty of murder, evidence of prior record of accused is admissible on question of degree of
murder if it tends to prove motive and is not too remote in time for that purpose. N.C.L.1929, sec. 10066;
sec. 10068, as amended by Stats.1947, c. 91.
14. Criminal Law.
Where it appeared that prior crimes of defendant testified to in hearing for purpose of determining degree
of crime and penalty after defendant had pleaded guilty to murder occurred during 25-day period which
elapsed between defendant's escape from reformatory and shooting of officer which formed basis of crime
charged, and that such prior crimes contributed to dependant's fear of arrest and punishment and to his
motive for resisting officers, evidence as to such prior crimes was admissible both for purpose of
determining penalty and on question of degree of murder. N.C.L.1929, sec. 10066; sec. 10068, as amended
by Stats.1947, c. 91.
15. Criminal Law.
On plea of guilty to murder, district judge is authorized under statute to hear all of the evidence which is
competent and relevant either to degree of the crime or to the penalty to be imposed, and then to pronounce
his determination as to the degree and penalty. N.C.L.1929, sec. 10066; sec. 10068, as amended by
Stats.1947, c. 91.
16. Criminal Law.
Where admissible evidence received in hearing for purpose of determining degree of crime and penalty,
after defendant had entered plea of guilty to information charging murder, amply justified judgment of
murder of the first degree and the death penalty, admission of evidence of prior offenses, even if improper,
was not prejudicial to defendant. N.C.L. 1929, secs. 10066, 11266; sec. 10068, as amended by Stats.1947,
c. 91.
17. Criminal Law.
Where defendant entered plea of guilty to murder charge on December 22, 1947, and on following day
district judge declared himself disqualified to conduct hearing for purpose of determining degree of crime
and penalty and made order of assignment to another judge on December 26, and the other judge on
December 27, set the hearing for January 5, 1948, at which time hearing was conducted, defendant was not
denied right to speedy trial. N.C.L.1929, secs. 10066, 10654; sec. 10068, as amended by Stats.1947, c.
91.
18. Criminal Law.
Under statute, elapsing of time between judgment and sentence was not required on a hearing by judge
without jury to determine degree of murder and sentence thereon. N.C.L.1929, secs. 10066, 11041; 10068,
as amended by Stats. 1947, c. 91.
Appeal from Second Judicial District Court, Washoe County; Merwyn H. Brown, Judge
Presiding.
David Blackwell was convicted of murder in the first degree and sentenced to death, and
he appeals. Affirmed.
Ernest S. Brown, of Reno, for Appellant.
Alan Bible, Attorney General, Homer Mooney, Assistant Attorney General, and Harold O.
Taber, District Attorney of Washoe County and Grant L. Bowen, Assistant District Attorney
of Washoe County, both of Reno, for Respondent.
OPINION
David Blackwell, defendant below, is the appellant here.
here. He will be referred to herein as the defendant.
The defendant was charged with murder as a codefendant with one Arnold Thomassen, in
an Information filed by the district attorney of Washoe County, Nevada, on December 17,
1947. On December 22, 1947, the defendant Blackwell entered a plea of guilty to the
information, before Honorable Taylor H. Wines, district judge of the Fourth judicial district
of the State of Nevada, sitting as a judge in the Second judicial district. The plea was
accepted and entered of record. The court then informed the defendant that it was necessary,
under the charge against him, that he be tried before the court, without a jury, for the purpose
of determining the degree of the crime. Defendant's counsel requested that the testimony of
certain defense witnesses from without the state be taken that day. The court stated that,
beginning on the following morning, the court would hear the taking of the testimony of the
said witnesses for the purpose of perpetuating such testimony. The court convened on the
following morning, December 23d, and the judge inquired if the defendant had the necessary
affidavits as required on procedure to perpetuate testimony, to which counsel for defendant
replied that they had no such affidavits. The judge then stated that he felt himself to be
disqualified to act in the case except, perhaps, upon the taking of the testimony to be
perpetuated. Defendant's counsel then stated that the defense considered the matter to be
before the court on the merits with respect to determining the degree of the crime and the
penalty, and that the testimony of the witnesses referred to should be taken at that time, and
the hearing then continued to such time as would suit the convenience of the court and
counsel. Argument was then had with respect to the disqualification of the judge, after which,
on the same day, Judge Wines again stated that he deemed himself to be disqualified, and that
he would assign the case to another judge. On December 26, 1947, Judge Wines made an
order declaring his disqualification and assigning the case to Judge Merwyn H.
made an order declaring his disqualification and assigning the case to Judge Merwyn H.
Brown, judge of the Sixth judicial district. To all of the foregoing proceedings the defendant
entered his objections and exceptions. Beginning on January 5, 1948, and over the objection
and exception of defendant, the case was heard before Judge Brown, who found the defendant
guilty of murder of the first degree, and imposed the death penalty.
Our statute, N.C.L., sec. 10066, defines murder as follows: Murder is the unlawful killing
of a human being, with malice aforethought, either express or implied. The unlawful killing
may be effected by any of the various means by which death may be occasioned.
The degrees of murder and the procedure on the trial therefor are set forth in N.C.L., sec.
10068, as amended by the Statutes of Nevada of 1947, c. 91, page 302 as follows: Malice
shall be implied when no considerable provocation appears, or when all the circumstances of
the killing show an abandoned and malignant heart. All murder which shall be perpetrated by
means of poison, or lying in wait, torture, or by any other kind of willful, deliberate, and
premeditated killing, or which shall be committed in the perpetration, or attempt to
perpetrate, any arson, rape, robbery, or burglary, or which shall be committed by a convict in
the state prison serving a sentence of life imprisonment, shall be deemed murder of the first
degree; and all other kinds of murder shall be deemed murder of the second degree; and the
jury before whom any person indicted for murder shall be tried, shall, if they find such person
guilty thereof, designate by their verdict whether it be murder of the first or second degree;
but, if such person shall be convicted on confession in open court, the court shall proceed, by
examination of witnesses, to determine the degree of the crime, and give sentence
accordingly. If the jury shall find the defendant guilty of murder in the first degree, then the
jury by its verdict shall fix the penalty at death or imprisonment in the state prison for life.
or imprisonment in the state prison for life. Upon a plea of guilty the court shall determine the
same; and every person convicted of murder of the second degree shall suffer imprisonment
in the state prison for a term of not less than ten years, and which may be extended to life.
The charge of the crime in the present case, as set forth in the information, reads as
follows: That the said defendants on the 7th day of November, A.D. 1947, or thereabout, and
before the filing of this information, at and within the County of Washoe, State of Nevada,
did wilfully, unlawfully, and feloniously, with malice aforethought, kill one LeRoy Geach, a
human being, by firing bullets from a 38 caliber automatic pistol into the body of said LeRoy
Geach, thereby inflicting mortal wounds upon him, the said LeRoy Geach, from which said
mortal wounds the said LeRoy Geach died within a year and a day after the infliction of said
mortal wounds, to-wit, on the 7th day of November, 1947.
The first assignment of error is set forth in defendant's opening brief as follows: That
Appellant was found guilty of first degree murder and sentenced to death in violation of
Article I, Section 8 of the Constitution of the State of Nevada as he was twice put in jeopardy
for the same offense and was deprived of his life and liberty without due process of law. After
the unauthorized disqualification of Judge Wines and a retrial before Judge Brown, the
Appellant was twice in jeopardy.
1. Defendant urges that Judge Wines was not disqualified, and hence that the assignment
of the case by him to Judge Brown was not authorized by law. It would seem that, if the
assignment of the case was not lawful, then Judge Brown was without jurisdiction to hear the
same and no second jeopardy could have attached by reason of such hearing. 22 C.J.S.,
Criminal Law, sec. 241, p. 375. If that were the situation, it would seem that the second
jeopardy, under defendant's theory, could only attach upon the defendant's being brought
to a hearing, as to the degree of the crime, before a judge empowered to hear the case.
theory, could only attach upon the defendant's being brought to a hearing, as to the degree of
the crime, before a judge empowered to hear the case. There was a change of judges,
however, which change the defendant urges was unlawful and was equivalent to a mistrial on
a trial before a jury, and amounted to an acquittal.
2, 3. The authority to assign the case is furnished by the provisions of rule 41 of the Rules
of the District Court. That rule reads as follows: When any district judge shall have entered
upon the trial or hearing of any cause or proceeding, demurrer or motion, or made any ruling,
order, or decision therein, no other judge shall do any act or thing in or about said cause,
proceeding, demurrer, or motion, unless upon the written request of the judge who shall have
first entered upon the trial or hearing, of said cause, proceeding, demurrer, or motion;
provided, that the judges in any district having more than one judge shall adopt such rules as
they deem necessary to provide for the division and disposal of the business of their district.
Under this rule, where a judge has entered upon the hearing of a cause or proceeding, it is
only upon his written request that any other judge may do any act in or about the said cause.
There arises from the language of the rule the necessary inference that a judge empowered to
hear a cause has the power, in his discretion, to request another judge to assume jurisdiction
of such cause. Such request, in the present case, appears by the assignment on the minutes of
the court. Under the rule mentioned, the judge so assigning a case is not required to state the
reasons therefor. It must be recognized, however, that in any case where such an assignment
would raise a second jeopardy against a defendant, such application of the rule would give
way to the constitutional inhibition. On this appeal and on the views herein expressed, it is
not necessary to determine what the result would have been had the assignment been made to
Judge Brown after the commencement of the hearing.
hearing. The rule is well established that after trial begun before a jury, the jury may not be
discharged and a second jury called except upon overruling necessity appearing of record, and
that a violation of this rule constitutes second jeopardy and amounts to an acquittal. The
defendant urges, from analogy, that the rule must apply where a change of judge is had in the
progress of a hearing before a judge to determine the degree of murder; that is to say, a
mistrial occurs. No precedent dealing with the latter situation has been presented by counsel,
and we have discovered none. We regard the analogy as worthy of consideration.
There is presented, under our statutory provisions relating to murder, a situation which is
seen to differ from the more simple situation where a plea of guilty is entered to an ordinary
charge of crime. Blackstone, in his Commentaries, page 336, stated the rule relating to double
jeopardy as follows: Secondly, the plea of autrefois convict, or a former conviction for the
same identical crime, though no judgment was ever given, or perhaps will be (being
suspended by the benefit of clergy or other causes), is a good plea in bar to an indictment.
And this depends upon the same principle as the former, that no man ought to be twice
brought in danger of his life for one and the same crime.
4. In the primary application of the rule against double jeopardy, the plea of guilty protects
the accused from a subsequent accusation and trial for the same offense. If, through some
failure of procedure, the plea of guilty has not been followed by judgment and sentence, the
accused is nevertheless protected from another trial on the same charge. As against any new
charge for the same offense, he may plead the former conviction. It would seem, however,
that the rule that a plea of guilty constitutes jeopardy has its proper application and force only
as against a new charge for the same crime, and not to a continuing proceeding on the one,
original charge.
Defendant contends that, at the stage of the proceeding when his plea of guilty was entered
before Judge Wines, he was placed in jeopardy before the law with respect to the crime with
which he was charged, and that his subsequent trial or hearing before Judge Brown, as to the
degree and penalty, was a second jeopardy. He contends that, upon his plea of guilty, he stood
convicted of murder as alleged in the information, with the presumption, without further
evidence, that it was murder of the second degree, the burden being on the state to raise the
offense to murder of the first degree, citing Underhill Crim.Ev. 1141, sec. 572. He contends
that at this point Judge Wines stopped the trial, causing what would be, in a trial before a
jury, a mistrial. He urges that the judge presumably having taken his official oath, the position
of the proceedings was analogous to the point where a jury has been empaneled and sworn to
try the cause, that the trial of the issue of degree had been entered upon and that the calling
of another judge could no more be had than the calling of a new jury, upon a jury trial.
5. It has been held by this court, and also in California, that the proceeding for
determining the degree of the crime of murder under our statute on a plea of guilty, is not a
trial. An early expression of this view in California is found in the case of People v. Noll,
1862, 20 Cal. 164. There the court said: The proceeding to determine the degree of the crime
of murder after a plea of guilty is not a trial. No issue was joined on which there could be a
trial.
The case of People v. Noll was referred to by the Supreme Court of the United States in
the case of Hallinger v. Davis, 146 U.S. 314, 13 S.Ct. 105, 106, 36 L.Ed. 986. There the court
said: The statute of California in relation to this subject is in the identical language of the
statute of New Jersey. In People v. Noll [supra], the defendant on arraignment pleaded guilty.
guilty. Thereupon witnesses were examined to ascertain the degree of the crime. The court
found it to be murder in the first degree, and sentenced him accordingly. One of the errors
assigned was that, after the plea of guilty by the defendant, the court did not call a jury to hear
evidence, and determine the degree of guilty. The supreme court held: The proceeding to
determine the degree of the crime of murder after a plea of guilty is not a trial. No issue was
joined upon which there could be a trial.'
The supreme court stated further: While these decisions are not conclusive upon this
court, yet they are entitled to our respectful consideration.
6. In State v. Ceja, 53 Nev. 272, 298 P. 658, 660, 2 P.2d 124, this court, speaking through
Chief Justice Coleman, said that, in determining the degree of murder, there was no issue to
try. It is generally regarded that, on the trial of an accused, jeopardy does not arise until an
issue has been raised by arraignment and plea. In 22 C.J.S., Criminal Law, sec. 247, p. 384, it
is stated that Issue must be joined before jeopardy can attach.
7. In the information in this case, the charge is made in the language of the definition of
murder, omitting the language characterizing murder of the first degree: that is to say, that the
killing was deliberate and premeditated or otherwise within the scope of the higher degree of
the crime.
In the case of State v. Munios, 44 Nev. 353, 195 P. 806, it was stated by this court,
speaking through Mr. Justice Ducker, that the general definition of murder in the statute
includes both degrees, the same as at common law it included all cases of felonious homicide.
It was held that the charge, in the language of the general definition of murder, supported a
verdict of murder of the first degree.
8. Just where did the jeopardy of the defendant begin? In considering this question we will
assume, for the moment, that the proceeding for determining the degree of the defendant's
guilt was an adversary proceeding having some of the characteristics of a trial.
degree of the defendant's guilt was an adversary proceeding having some of the characteristics
of a trial. It is well settled that a trial before a court, sitting without a jury, begins at the time
of the commencement of the taking of testimony. 22 C.J.S., Criminal Law, sec. 241, p. 376,
cases note 69. This did not occur until after the assignment of the case to Judge Brown.
Hence there was no such discontinuance of the hearing as could be deemed comparable to the
discharge of a jury after trial commenced. The change of judges occurred before the hearing
commenced. Hence there was no mistrial.
9. The growth of the doctrine as to double jeopardy and the search for the point in the
proceeding where jeopardy before a jury begins has resulted in the establishing of that point
at the moment where the jury has been sworn to try the cause and a true verdict render. As an
earlier expression puts it, the jury are charged with the deliverance of the accused, and there
jeopardy begins. In trials before a judge, sitting without a jury, the judge, as the defendant
here urges, takes the place of a jury. However, in the settlement of the rule as to when
jeopardy in a trial before a judge begins, the weight of authority, based, it would seem, on
later reasoning and away from the procedure on jury trials, has resulted in the fixing of the
commencement of jeopardy at the point where the presentation of proofs begins. We can see
no reason, based on fairness and justice, to apply a different rule in the present case.
10. Upon the foregoing considerations, we are unable to find sufficient force in the
analogy to justify the finding of a second jeopardy. We are brought to the conclusion that
there was one, and only one, jeopardy incurred by the defendant in the present case, and that
such jeopardy arose upon the hearing before Judge Brown when the introduction of proofs on
the part of state was commenced.
The defendant's second assignment of error is in the following language: That Appellant
was found guilty of first degree murder and sentenced to death in violation of Section 1 of
Amendment XIV of the United States Constitution as he was deprived of life and liberty
without due process of law, and in violation of Article I, Section S of the Nevada
Constitution, when Judge Brown permitted inadmissible and prejudicial testimony to be
admitted over Appellant's objections before the degree of murder was found.
of first degree murder and sentenced to death in violation of Section 1 of Amendment XIV of
the United States Constitution as he was deprived of life and liberty without due process of
law, and in violation of Article I, Section 8 of the Nevada Constitution, when Judge Brown
permitted inadmissible and prejudicial testimony to be admitted over Appellant's objections
before the degree of murder was found. The Appellant was likewise found guilty of first
degree murder in violation of the Amendment V to the Federal Constitution.
Defendant contends that the due process inhibitions of the federal and state constitutions
were violated by the admission in evidence of proofs in relation to the commission by
defendant of certain crimes prior to the murder charge in this case. The proofs objected and
excepted to by defendant are contained in the testimony of the state's witnesses Walter
Ponciano, bartender at the Highway 40 Tavern in Reno, Clayton D. Phillips, chief of the Reno
police department, and Ray Ryan, superintendent of the state reformatory at Monroe,
Washington.
The facts of the case, as brought out at the hearing referred to, are substantially as follows:
At approximately 6:25 p.m. in the afternoon of November 7, 1947, the Highway 40 Tavern,
in Reno, was held up by two armed men who took the money from the cash register and cash
drawer. The robbery was reported to the Reno police department, and a description of the two
men involved in the hold-up was given to the police department. When Detective Sergeants
Eugene Cowan and Daryl Read reported for duty at 10 p.m. that night, Night Captain LeRoy
Geach assigned to them the task of checking the various hotels of Reno for men answering
the description of those who had perpetrated the robbery. Sergeant Read located the men at
the Carlton Hotel. Sergeants Read and Cowan went to the hotel, where they were met by
Sergeant Allen Glass and Captain Geach. The four officers proceeded to the door of the
two-bedroom suite which the men were occupying.
the two-bedroom suite which the men were occupying. Captain Geach knocked on the door,
announced that they were officers, and demanded entrance. The door was opened by Arnold
Thomassen, who had a revolver in his hand. He was disarmed by Read and Cowan, the latter
taking the gun. The defendant Blackwell was lying in a bed in the adjoining room. Captain
Geach entered the latter room through the door connecting the two rooms. Sergeant Cowan
testified, He (Captain Geach) took hold of the covers and he says Come out of there,' and
this man in bed opened fire. Sergeant Glass then stepped in the doorway and cut off my view.
It was all over in a matter of seconds, and Sergeant Glass was shot and took one backward
step and fell, and then I started to shoot with Thomassen's gun. I shot, and he hollered I am
hit, I am through,' and I said Throw down your gun.' Immediately there was a gun throwed
down in the doorway and I went over and picked it up and told Daryl Read to handcuff the
two of them. He handcuffed Blackwell and then Thomassen and went to the desk to get help,
and while he was gone Captain Geach died, and Sergeant Glass was alive. Captain Geach
was shot three times. Sergeant Glass was shot four times.
The court received the testimony of Walter Ponciano, the bartender, as to the robbery of
the Highway 40 Tavern, and the defendant was identified by the witness as being one of the
hold-up men. Clayton D. Phillips, the then acting chief of police of the city of Reno, testified
to a conversation which he had with the defendant on November 20, 1947, at the Washoe
County jail. According to Phillip's testimony, defendant in his statement admitted escaping
from the Monroe State Reformatory, near Everett, Washington, on October 13, 1947; robbing
a theater in Spokane, Washington, where he obtained about $150; robbing a Safeway Store in
Salt Lake City, where he obtained in the neighborhood of $300; another Safeway Store in
Greeley, Colorado, where he obtained in the neighborhood of $1,300; purchasing guns at
a sporting goods store in Butte, Montana; stealing cars to assist himself in his travels;
shooting David Wold in Tacoma, Washington, because he had "ratted" on him; stealing a
Buick sedan in Tacoma, Washington; purchasing a grappling hook, some saw blades and a
rope at the store in Seattle, proceeding to the vicinity of the Monroe State Reformatory,
where he used the grappling hook and rope to go over the wall of the prison, planting a
gun and some ammunition near the brick school of the prison; assisting Thomassen and
Blake in effecting their escape from the prison on November 5, 1947; the robbery of the U
S 40 Tavern, in Reno, Nevada, returning to the hotel, where he and his companions
changed clothes, that he retired around 11 o'clock that evening, that the next thing he
remembered the two officers were standing by his bed and he proceeded to shoot each of
them.
where he obtained in the neighborhood of $1,300; purchasing guns at a sporting goods store
in Butte, Montana; stealing cars to assist himself in his travels; shooting David Wold in
Tacoma, Washington, because he had ratted on him; stealing a Buick sedan in Tacoma,
Washington; purchasing a grappling hook, some saw blades and a rope at the store in Seattle,
proceeding to the vicinity of the Monroe State Reformatory, where he used the grappling
hook and rope to go over the wall of the prison, planting a gun and some ammunition near the
brick school of the prison; assisting Thomassen and Blake in effecting their escape from the
prison on November 5, 1947; the robbery of the U S 40 Tavern, in Reno, Nevada, returning to
the hotel, where he and his companions changed clothes, that he retired around 11 o'clock that
evening, that the next thing he remembered the two officers were standing by his bed and he
proceeded to shoot each of them. The witness sent the information relative to the planted gun
to the superintendent of the Monroe reformatory. On cross-examination by defendant's
counsel, Phillips further testified that defendant told him that previous to his incarceration in
the Monroe reformatory, he had been involved in numerous car thefts and armed robberies,
during one of which he had shot a Tacoma groceryman. Ray Ryan, Superintendent of the
Washington State Reformatory at Monroe, Washington, testified that defendant was an
inmate of the institution, a state prison where men between the ages of 16 and 35 are
incarcerated for felony convictions in the State of Washington; that defendant escaped on
October 13, 1947, from the institution; and that acting on information received from Chief
Phillips, he found a gun buried near the brick school of the institution, together with 49
rounds of ammunition. Defendant did not take the stand, and no witnesses testified in his
behalf.
Defendant contends that, for the determination of the degree of murder and the penalty,
the hearing provided for by the statute involves two distinct steps: first, a trial before the
court to determine the degree; and, second, an inquiry as to suitable penalty.
the degree of murder and the penalty, the hearing provided for by the statute involves two
distinct steps: first, a trial before the court to determine the degree; and, second, an inquiry as
to suitable penalty. Defendant urges that the testimony of Ponciano concerning the hold-up of
Highway 40 Tavern was inadmissible because not related to the charge of murder and not
within any exception to the rule prohibiting evidence of other crimes, and urges that the
testimony of Phillips and Ryan was inadmissible because not related to the charge and
because no corpus delicti with respect to the prior offenses of defendant, as related by them,
was shown.
11-14. In section 10068 of Nevada Compiled Laws, quoted above, it is provided that,
upon a plea of guilty of murder, the court shall proceed to determine the degree of the crime
and shall also determine the penalty. As stated by the Supreme Court of California in the case
of People v. Bellon, 180 Cal. 706, 182 P. 240, the statute requires, at least impliedly, a
judicial determination based on evidence. The determination of the degree of the crime
should be supported by competent evidence, material and relevant to the question of degree,
and only such evidence should be considered in arriving at that determination. In the present
case, the state contends that the testimony given by the witnesses Ponciano, Phillips, and
Ryan, relative to crimes previously committed by the defendant, was competent and relevant
to show the motive and intent of the defendant in shooting Captain Geachthat the motive
and intent were to kill the officer to prevent arrest and punishment for the prior crimes
referred to. The state also urges that the evidence referred to was competent and relevant to
aid the court in determining the penalty. As to its admissibility to determine the penalty, the
rule is well settled that the prior record of the accused may be considered. 3 Wharton
Crim.Proc. (10th Ed.) sec. 1890, p. 320, and cases cited; People v. Popescue, 345 Ill. 142, 177
N.E. 739, 77 A.L.R. 1199.
77 A.L.R. 1199. As to the admissibility of such evidence on the question of the degree of
murder, it is admissible if it tends to prove motive and is not too remote in time for that
purpose. People v. Wheaton, 64 Cal.App. 58, 220 P. 451; People v. Middleton, 65 Cal.App.
175, 223 P. 448; People v. Slater, 199 Cal. 357, 249 P. 177; Copeland v. United States, 55
App.D.C. 106, 2 F.2d 637. The robbery of Highway 40 Tavern was the immediate occasion
of the search for the defendant and his companion, and was the immediate and most potent
cause for the fear of arrest and of the motive to resist and escape. The prior offenses related
by the witnesses would naturally contribute to the defendant's state of mind in that regard,
each prior offense contributing in proportion to its seriousness and nearness in time. Only
twenty-five days had elapsed since the defendant's escape from the Washington Reformatory,
which escape was followed by most of the offenses put in evidence. Some earlier offenses
were shown in the testimony, on cross-examination, of Chief of Police Phillips that He
stated, previous to his incarceration in the Reformatory at Monroe, Washington, he had been
involved in numerous car thefts and armed robberies, during one of which he shot a Tacoma
groceryman. In varying degrees, these prior crimes of the defendant contributed to his fear of
arrest and punishment and to his motive for resisting.
Assuming for the moment that a portion of the evidence as to prior crimes was
incompetent as being too remote to prove the motive of the defendant, we are of the view that
such proof, in the present case, was not prejudicial to the defendant. In the case of People v.
Popescue [345 Ill. 142, 177 N.E. 745], above mentioned, the court, in considering a situation
similar to that presented here, said: Even if it should be assumed that the evidence of the
murder committed by these defendants three hours before they murdered Merrill was
incompetent this was a hearing before the Court without a jury, and the Court is supposed,
as in chancery cases, to disregard all evidence heard except that which is competent and
relevant to the issue.
a jury, and the Court is supposed, as in chancery cases, to disregard all evidence heard except
that which is competent and relevant to the issue. Mix v. People, 116 Ill. 265, 4 N.E. 783;
Gordon v. Reynolds, 114 Ill. 118, 28 N.E. 455; Coffey v. Coffey, 179 Ill. 283, 53 N.E. 590.
Certainly no good reason can be assigned why a judge, often sitting as chancellor in chancery
cases, should part of the time be said to possess legal discernment enough to sift out the
competent and disregard the incompetent evidence but when determining the degree of
punishment in a criminal matter not be able to exercise the same ability.
As stated by the Supreme Court of California in the case of People v. Gilbert, 1943, 22
Cal.2d 522, 140 P.2d 9, 12, A hearing for the determination of the degree of an offense and
the punishment therefor is not a trial in the full technical sense, and is not governed by the
same strict rules of procedure as a trial.
15. While the separation of the hearing into two parts might aid, in some cases, in
preventing a misapplication of the evidence, we are of the view that the statute does not
require the judge to so divide the hearing. Under the statute, the judge is authorized to hear all
of the evidence which is competent and relevant either to the degree of the crime or to the
penalty to be imposed, and then to pronounce his determination as to the degree and the
penalty. If it affirmatively appeared, from the language of the judge's decision, that, in
arriving at this determination on the degree of the crime, he had been influenced by the proofs
as to the prior offenses, the additional problems as to remoteness and as to actual prejudice
would be presented. The language of the judge's decision is as follows:
Upon a review and a study of the evidence in this case and particularly the circumstances
connected with the killing, one thing is outstanding. That is, there was not a fight. There were
no circumstances to provoke this. It was over in a matter of seconds and it was done when
two officers of the law were carrying out their duty.
when two officers of the law were carrying out their duty.
The words that were uttered by this defendant, after the two men had been killed,
impresses the Court. An officer had shot the defendant. He said, I am hit. I am through.' And
that is significant to the Court. It indicates to the Court if he had not been hit he would not
have been through.
Another thing that is significant in this case is the fact that the defendant went to bed with
a gun under the covers. That gun was there, there for a purpose. As I recall the testimony of
Mr. Phillips, he stated this, that at the time that this defendant made his statement to him on
November 20th, the defendant said he went back to the room and he went to bed, and the next
thing he knew there were two officers beside his bed. I do not recall anything with regard to
him being asleep or awakening and seeing the two officers beside his bed. Also, do we find
one shot being fired? No, in this case we have found, by the testimony of Dr. Parsons, that
seven shots were fired and, in the opinion of the Court, this showed the wilful and deliberate
and premeditated murder and, in addition to that, a coldblooded and a ruthless disregard for
life. In fact, it may be referred to as a wholesale slaughter. These men were shot down in the
performance of their duty.
The judge, after confining himself to the facts and circumstances surrounding the murder,
said this showed the wilful and deliberate and premeditated murder and, in addition to that, a
cold-blooded and a ruthless disregard for life. Here is a complete finding of murder of the
first degree. From the language of the judge, strengthened by the presumption as to a proper
application of the evidence, a strong inference arises that the finding, and the determination as
to degree which followed, were based solely on the facts and circumstances surrounding the
murder, the res gestae of the case. The judge then proceeded, as we view it, to the
consideration of the penalty, using the following language:
the consideration of the penalty, using the following language:
It is astounding to this Court, from the testimony which has come in here, how a youth
could have launched on such a determined and deliberate career of crime. Every move that
has been made by this defendant in the last few months, from the time he escaped from the
reformatory until he was arrested, was the commission of a felony, either a robbery or a
shooting. Does this indicate that he has any regard at all for society, for law or order, or for
life and the property of others? To the Court, it shows a complete disregard for all.
It is, therefore, the finding of this Court that this defendant is guilty of murder of the first
degree, and that the murder so committed was wilful, deliberate and premeditated.
The judge then proceeded to the formal pronouncement of judgment and fixing of the
penalty.
If we entertain, for the moment, the view urged by defendant that inadmissible evidence of
prior crimes was considered by the trial judge in arriving at the degree of murder, we are
obliged to apply to the case section 11266 of Nevada Compiled Laws, which is as follows:
No judgment shall be set aside, or new trial granted, in any case on the ground of
misdirection of the jury or the improper admission or rejection of evidence, or for error as to
any matter or pleading or procedure, unless in the opinion of the court to which application is
made, after an examination of the entire case, it shall appear that the error complained of has
resulted in a miscarriage of justice, or has actually prejudiced the defendant, in respect to a
substantial right.
An application of the section referred to was made by this court in the case of the State v.
Skaug, 63 Nev. 59, 161 P.2d 708, 711. In that case, evidence of prior crimes was received.
The case was tried before a jury. This court, speaking through Mr. Justice Ducker, said:
But in view of our statute and the nature and conclusiveness of the evidence, it does not
follow that allowing the jury to consider the other offenses constituted reversible error.
conclusiveness of the evidence, it does not follow that allowing the jury to consider the other
offenses constituted reversible error. The evidence presents a case that calls loudly for the
extreme penalty.
* * * * * * *
An error of the injurious consequences mentioned in the statute must appear affirmatively
to warrant a reversal in any case. State v. Willberg, 45 Nev. 183, 200 P. 475; State v.
Williams, 47 Nev. 279, 220 P. 555; State v. Ramage, 51 Nev. 82, 269 P. 489.
16. The admissible evidence received in the present case and not controverted in anyway
by defendant, amply justified the judgment of murder of the first degree and the death
penalty. We are satisfied that the admission of the evidence of prior offenses was not
prejudicial to any right of the defendant.
17. Defendant's third assignment of error reads as follows: The Appellant was denied his
constitutional right to an early trial by failure of Judge Wines to proceed with the hearing
when Appellant had his witnesses present.
In support of this assignment, defendant relies on section 10654 of Nevada Compiled
Laws, which provides that, in a criminal action the defendant is entitled to a speedy trial.
Defendant's plea of guilty was entered on December 22, 1947. On the following day the
defendant had present in the courtroom certain witnesses to testify in his behalf, and
demanded a hearing on that day. Judge Wines, at that time, declared his disqualification and
stated that the case would be assigned to another judge. On the 26th, the order of assignment
to Judge Brown was made. On the 27th, Judge Brown set the hearing for the determination of
the degree of the crime and the penalty, for January 5, 1948. The hearing was held on January
5th, 6th, and 7th. Under the previous rulings of this court, we are satisfied that the defendant
was not deprived of a speedy trial. State v. Squier, 56 Nev. 386, at page 399, 54 P.2d 227, and
cases there cited. The testimony of the defendant's witnesses referred to could have been
perpetuated, under the provisions of the statute, had the required steps been taken by
defendant for that purpose.
could have been perpetuated, under the provisions of the statute, had the required steps been
taken by defendant for that purpose.
18. Defendant's fourth and last assignment of error is as follows: Judgment was rendered
in less than six hours contrary to Sec. 11041, N.C.L.1929.
Section 11041, Nevada Compiled Laws, relied on by defendant, reads as follows: The
time appointed shall be at least two days after the verdict, if the court intend to remain in
session so long; or, if not, as remote a time as can reasonably be allowed. But in no case shall
judgment be rendered in less than six hours after the verdict.
It has been held in California, under statutes similar to ours, that the elapsing of time
between judgment and sentence is not required on a hearing to determine the degree of
murder and the sentence thereon. People v. Noll, 20 Cal. 164. We follow that rule.
No error appearing in the record, the order of determination of the district court
determining the crime of appellant to be murder in the first degree, and the judgment
appealed from, are affirmed, and the district court is directed to fix the time of and to make
the proper order for the carrying into effect, by the warden of the state prison, of the judgment
rendered.
Eather, C. J., being absent on account of illness, the Governor commissioned Honorable
Wm. D. Hatton, Judge of the Fifth Judicial District, to sit in his place.
December 20, 1948. 200 P.2d 698.
1. Criminal Law.
On plea of not guilty, jeopardy arises only at commencement of trial.
2. Jury.
A hearing to determine degree of murder after plea of guilty thereof is not such a trial as
to accord defendant right to jury.
3. Criminal Law.
A hearing to determine degree of murder after plea of guilty thereof did not deny
defendant established rights under double jeopardy doctrine, but he incurred only one
jeopardy, even if such hearing were a trial in full sense.
4. Judges.
The statute requiring judge to assign case, in which he is disqualified thereunder to
another judge does not preclude judge from assigning case in which he is not
disqualified. N.C.L.1929, sec. 8407.
5. Judges.
A district judge properly stated his reasons for assigning case to another such judge to
determine degree of murder after defendant's plea of guilty thereof, though such
statement was not essential. N.C.L.1929, sec. 8407.
6. Criminal Law.
On hearing to determine degree of murder after defendant's plea of guilty thereof,
evidence of defendant's prior crimes, offered to show his fear of arrest and intent to
resist, was admissible as going to question of motive.
7. Criminal Law.
On hearing to determine degree of murder after defendant's plea of guilty thereof,
defendant's commission of prior offenses, offered to show his fear of arrest and intent to
resist, need not be proved beyond reasonable doubt, but evidence need only tend to prove
his guilt thereof.
On petition for rehearing. Rehearing denied.
For original opinion, see 65 Nev. 405, 198 P.2d 280.
Ernest S. Brown, of Reno, for Appellant.
Alan Bible, Attorney General, Homer Mooney, Assistant Attorney General, and Harold O.
Taber, District Attorney, and Grant L. Bowen, Assistant District Attorney, both of Reno, for
Respondent.
OPINION
1-3. In his petition for rehearing, the defendant contends, as heretofore, that the statutory
hearing to determine the degree of murder was a trial in the general sense, that the trial
commenced on the entering of the defendant's plea of guilty and before the taking of
testimony began, that the defendant's jeopardy arose on the entering of his plea of guilty,
and that the assignment of the case after plea, by Judge Wines to Judge Brown,
constituted a mistrial and an acquittal of the defendant.
sense, that the trial commenced on the entering of the defendant's plea of guilty and before the
taking of testimony began, that the defendant's jeopardy arose on the entering of his plea of
guilty, and that the assignment of the case after plea, by Judge Wines to Judge Brown,
constituted a mistrial and an acquittal of the defendant. The defendant contends, in substance,
that his plea of guilty extended to the charge as of murder only, with an implied denial of
guilt as to murder with deliberation and premeditation, or of the first degree. Upon this theory
of the situation, the plea was, in part, a plea of not guilty as to deliberation and premeditation.
Upon a plea of not guilty, jeopardy arises only at the commencement of the trial. In this case,
we have held that the trial, or hearing commenced with the presentation of evidence, and
not upon the entering of the plea. As held in State v. Ceja, 53 Nev. 272, 298 P. 658, 2 P.2d
124, the hearing is not such a trial as to accord to the defendant the right to a jury. In the
present case, the defendant was not denied the established rights under the doctrine of double
jeopardy. Even if the hearing were a trial in the full sense, which we do not hold, the
defendant incurred only one jeopardy.
4, 5. Under N.C.L. section 8407, a judge must assign a case in which he is disqualified
under the terms of the section. Defendant argues, in substance, that a judge must not assign a
case unless he is so disqualified. We do not believe that defendant's conclusion is a logical
inference from the language of the law. The purpose of the provision is in the furtherance of
justice by preventing a judge who may be biased from conducting a trial. The statute does not
imply that a judge must try all cases which come before him unless he is so disqualified.
Many assignments of cases have been, and currently are, made in accordance with our
interpretation of the rule. Though not essential, it was proper for Judge Wines to state his
reasons for making the assignment.
We adhere to our view as to the portions of the evidence on which the judge relied in
arriving at the degree of the crime and the portions on which he relied on the fixing of the
penalty.
6, 7. The evidence of prior crimes was not offered, in the present case, because of any
similarity between such crimes and the crime charged here, but to show fear of arrest and
intent to resist. It went to the motive. State v. White, 52 Nev. 325, 285 P. 503; State v. Larkin,
11 Nev. 314. The commission of such offenses need not be proved beyond a reasonable
doubt; the evidence need only tend to prove the accused guilty thereof. 22 C.J.S., Criminal
Law, sec. 690, page 1112.
Rehearing denied.
____________
65 Nev. 428, 428 (1948) Canepa v. Durham
LOUIS CANEPA and EVA CANEPA, His Wife, and WILLIAM CANEPA and ESTHER
CANEPA, His Wife, Appellants, v. F. E. DURHAM, Sometimes Known as FRANK
DURHAM, and CORA E. DURHAM, Respondents.
No. 3517
October 11, 1948. 198 P.2d 290.
Supreme court could not substitute its judgment for judgment of trial court in matter of weight to be given
testimony.
2. Vendor and Purchaser.
Evidence justified vendor's rescission of contract for sale of land on ground that purchaser had failed to
perform obligation to pay notes executed as part of purchase price, and had failed to apply for release from
mortgage of land reserved to vendors within time required by contract, and that failure of purchasers was a
substantial and fundamental breach defeating object of vendors in making contract and going to root of
contract.
3. Vendor and Purchaser.
In vendor's action for rescission of contract to sell land, evidence sustained finding that vendor's notice to
purchasers to perform covenants of contracts under which deed had been executed and
delivered to purchasers was reasonable and made time of the essence.
to perform covenants of contracts under which deed had been executed and delivered to purchasers was
reasonable and made time of the essence.
Appeal from Second Judicial District Court, Washoe County; W. D. Hatton, Presiding
Judge.
Action by F. E. Durham, sometimes known as Frank Durham, and Cora E. Durham,
against Louis Canepa and Eva Canepa, his wife, and William Canepa and Esther Canepa, his
wife, for rescission of a contract to sell land and the cancellation of a deed executed
thereunder. From an adverse judgment, defendants appeal. Affirmed.
Withers, Sanford & Horgan, of Reno, for Appellants.
Clyde D. Souter and Clel Georgetta, both of Reno, for Respondents.
OPINION
Defendants have appealed to this court from the judgment of the district court canceling a
deed theretofore executed by the plaintiffs in favor of the defendants and settling the accounts
of the parties growing out of the canceled transaction, and have also appealed from the order
of the district court denying defendant's motion for a new trial. The trial of the case was the
second trial of the actionthe judgment rendered in favor of plaintiffs in the first trial having
been reversed by this court. Canepa v. Durham, 62 Nev. 417, 153 P.2d 899. Petition for
rehearing of the first appeal was denied. 62 Nev. 429, 155 P.2d 1009. When petitioning for a
rehearing on the first appeal the respondents asked that in the event the petition for rehearing
was denied the case be remanded to the lower court for further action and proceedings under
sec.
action and proceedings under sec. 9385.78, N.C.L., 1931-1941 Supp. This petition was
likewise denied. 62 Nev. 429, 155 P.2d 788. Defendants also appealed from the clerk's order
taxing costs, and this court sustained the ruling of the clerk. 62 Nev. 429, 155 P.2d 788. The
appellants filed a further petition for rehearing, which was likewise denied by this court. 62
Nev. 432, 155 P.2d 1009. The first decision of this court on the first appeal (62 Nev. 417, 153
P.2d 899, 904) contained the order: The judgment and order appealed from are reversed.
Plaintiffs were thereupon granted a new trial by the district court. Appellants contended that
the order of reversal finally disposed of the case and that the lower court was thereafter
without authority to grant a new trial and appealed from such order, but this court affirmed
the district court's order granting such new trial. Canepa v. Durham, 63 Nev. 245, 166 P.2d
810. As noted, plaintiffs again prevailed in the second trial, and defendants have again
appealed. The first opinion of this court held in effect that certain essential proofs were so
lacking that the findings and judgment could not be sustained. The present appeal is
concerned largely with the question as to whether such lack of proof was met and overcome
in the second trial to such extent to justify the court's second findings and judgment in favor
of plaintiffs.
The record now before us contains all of the evidence adduced at the second trial as well
as the evidence adduced at the first trial, made a part of the record before the district court by
stipulation and which is also part of the record before this court. Subject to certain changes
and additions by reason of the new evidence adduced at the second trial, a recital of part of
the facts as made by Orr, C. J., speaking for the court on the first appeal, may be resorted to.
Although this unfortunately will result in greatly lengthening this statement of facts, it will
obviate the necessity for searching two volumes of Reports to obtain the same. Judge Orr's
statement of the facts in the first trial {62 Nev. 41S-423
statement of the facts in the first trial (62 Nev. 418-423, 153 P.2d 899) is as follows:
Respondents, Frank E. Durham and Cora Durham, in the spring of 1936, entered into an
agreement to sell to appellants, Louis and Eva Canepa and William and Esther Canepa,
certain real property, consisting of approximately 382 acres, situate about nine miles west of
Reno, on the Verdi Highway. Contemporaneously with said agreement, the Durhams
executed and delivered to the Canepas a deed conveying said land and water rights. At the
time of the sale the Federal Land Bank of Berkeley, California, held trust deeds on the
property as security for an indebtedness in the sum of $17,019.31; also, at the same time, the
respondents were indebted to the United States of America through one of its crop loan
agencies for money borrowed to purchase seed, which was secured by a chattel mortgage on
certain hay located in a barn situate on said ranch. The agreement provided that the Durhams
reserve about twelve acres, which the Canepas agreed to have released from the trust deeds
hereinbefore referred to. The partial release was to be obtained by the appellants and
delivered to the respondents on or before the 1st day of January, 1940, provided that in the
meantime respondents had saved the appellants harmless from the chattel crop mortgage.
Said agreement further provided that appellants pay interest and payments as provided in the
trust deeds to the Federal Land Bank of Berkeley, California. Respondents agreed to pay
general taxes assessed against the twelve acres after January 1, 1936, and to pay their portion
of ditch maintenance, and also Coldron Ditch assessments for water right reserved to said
twelve acres. Appellants executed and delivered to respondents as part of the consideration
two notes, one in the sum of $250, payable on or before November 1, 1936, and one in the
sum of $225, payable on or before November 1, 1937. It was orally agreed between the
parties that the hay located upon the ranch property and covered by the chattel mortgage
was to be left in the barn for a reasonable period of time.
covered by the chattel mortgage was to be left in the barn for a reasonable period of time. The
hay remained in the barn from April 9, 1937, to March 10, 1939, a period of twenty-three
months. Appellants failed to pay the principal or interest on the two notes above mentioned
and failed to secure from the Federal Land Bank of Berkeley, California, a release from the
two deeds of trust of the portion of the ranch reserved by respondents. Respondents, in the
year 1939 and before the expiration of the time fixed in said agreement to secure the release
of the twelve acres, sold said twelve acres to one Belz.
1
Appellants have made the payments
required to be made to the Federal Land Bank of Berkeley, California, under said trust deeds,
each year, and the amount paid by them, together with two checks given by the Highway
Department of the State of Nevada to said bank for certain rights of way, in the sum of
$11,709.57. The actual amount paid by the Capenas is $9,092.37; this includes $2,100 paid at
the time of the consummation of the deal. The indebtedness to said bank has been reduced
from $17,019.31 to $8,558.15.
2
Because of the failure of appellants to obtain the partial
release and to pay the notes when due, respondents, on the 23d day of January, 1942,
addressed the following letter to the appellants:
Verdi, Nevada, Jan. 23rd, 1942
Louis Canepa and William Canepa,
Verdi Highway
Washoe County, Nevada.
Gentlemen:
You entered into a contract with us on April 9, 1936, and agreed to secure a partial release
from the mortgage held by the Federal Land Bank of Berkeley, California, on about twelve
{12) acres of land which we reserved from the sale of our ranch to you.
____________________

1
They quitclaimed it to Belz on the latter's insistence that something be done to take care of his unsecured
advances aggregating $3,500, and agreed that it would be released from the Federal Land Bank mortgage before
January 1, 1940. (Findings, second trial.)

2
This has since been paid in full.
held by the Federal Land Bank of Berkeley, California, on about twelve (12) acres of land
which we reserved from the sale of our ranch to you.
You agreed to obtain the release and deliver it to us on or before January 1, 1940.
This you have failed to do now for a period of two years. We think this is more than a
liberal time, and therefore we notify you that unless within sixty days you complete your
contract by delivering it to us, we shall consider that you have abandoned your contract and
take action against you.
Very truly yours,
Frank E. Durham
Cora E. Durham'
Under the date of January 31, 1942, the appellants answered as follows:
January 31, 1942
Frank E. Durham, and Cora E. Durham,
Verdi, Nevada.
Dear Mr. and Mrs. Durham:
We acknowledge receipt of your letter of January 23d in which you demand partial release
of some twelve acres of land pursuant to agreement signed between us on the 8th day of
April, 1936, stating that unless this release is furnished you, you will consider that we have
abandoned our contract and will take action against us.
May we call your attention to the wording of the agreement referred to, as follows: Said
partial release to be obtained and delivered to the parties of the first part on or before January
1st, 1940, providing in the meantime parties of the first part have saved the parties of the
second part harmless from chattel crop mortgage dated April 2nd, 1935, filed under No. 304,
in the file of Chattel mortgages, records of Washoe County, Nevada.
You will recall that the Government filed a suit against you and against us for the
foreclosure of this mortgage, as a result of which we were put to considerable costs and
expense in the way of attorney fees.
and expense in the way of attorney fees. It is our contention that you have not saved us
harmless from the crop mortgage and until such time as you do, you are not entitled to your
release.
Furthermore, we are being billed for delinquent water assessment charges as follows:
Part right No. 94 in Coldron Ditch,
1934 assessment, delinquent $18.36
1935 assessment, 2nd, delinquent 6.20
1935 assessment, 1st, delinquent 12.40
These charges were due and payable by you prior to the time that we entered into our
agreement with you, and should be paid by you.
It is unfortunate that in our dealings with you we have had so many arguments and
disagreements. We realize that legal action will result in both of us incurring heavy expenses
and that, in the long run, we will both suffer by such action. We therefore submit to you the
following offer to compromise all disputes between us:
1. That we apply for, and give our consent to, the release demanded by you.
2. That you pay us the water assessments mentioned.
3. That we give you, and you in turn give us, a release wherein each of us releases the
other from any and all claims of every nature whatsoever.
4. That you make application to the Federal Land Bank of Berkeley, requesting that you
and Mrs. Durham be relieved from liability on both the Land Bank and the Land Bank
Commissioner loans, No. 22449 and A3983.
We will be glad to proceed along these lines at any time. We do not feel, however, that we
should be called upon to give you this release until all possible arguments between us have
been straightened out and adjusted for all time.
ments between us have been straightened out and adjusted for all time.
Very truly yours,
L. Canepa
W. Canepa'
Thereafter respondents, on the 4th day of March, 1942, again addressed a letter to
appellants, reading as follows:
Louis Canepa and William Canepa, Verdi Highway, Washoe County, Nevada.
Gentlemen:
This will acknowledge your letter of January 31, 1942.
You base your failure to comply with your contract with me and Mrs. Durham upon the
fact that you state that you expended counsel fees in connection with the action which the
United States Government instituted against me, and to which you were made a party because
you testified you had purchased a part of the hay covered by the Federal Chattel Mortgage
from me, but admitted that you had never paid for it. Had you paid for the hay, which you
yourself stated under oath you had received from me, you would never have been involved in
that action.
As a matter of fact, both you and we know that the hay was never sold to you by us, but
that you took it out of the barn without any authority, after having it fully explained to you,
before the ranch was sold to you, that the hay was covered by a Federal Chattel Mortgage,
and that it was not a part of what you bought.
Any counsel fees that you expended, or anything else you have paid in that connection,
was because of your own transgression, and in my opinion it is no excuse whatever for your
failure to carry out your contract.
I wish to repeat to you that unless within the time fixed by my first letter, of January 23,
1942, you comply with your contract, I shall consider that you have abandoned it.
with your contract, I shall consider that you have abandoned it.
Yours truly,
Frank E. Durham
Cora E. Durham'
On August 7, 1942, respondents instituted an action in the district court asking a
rescission of the contract and a cancellation of the deed. * * * On April 30, 1942, and prior to
the commencement of this action, appellants applied to the Federal Farm Loan Bank for the
partial release provided for in the agreement of April 9, 1936. On the 13th day of August,
1942, appellants were advised by the National Farm Loan Association that the release could
not be cleared because it was not signed by said Frank E. and Cora E. Durham. The formal
request signed by appellants was submitted to respondents for their signatures after the
institution of this action.
3

Both parties appear to agree that the former decision of this court fixes and establishes the
law of the case as applied to the facts presented at the first trial. The law of the case as thus
established may accordingly be said to embrace, among others, the following points:
1. The action is one for an equitable rescission and not for a judgment declaring a
forfeiture for any breach of the conditions of the contract.
2. If plaintiffs received the full value of the reserved acreage and have been permitted to
enjoy the benefits of the consideration paid, without interference from the purchaser thereof,
and if their sale of said land to Belz was in no way contingent upon the securing of the release
by the defendants and if the agreement of the defendants to obtain the release was not of the
essence of the contract and if plaintiffs did not sell said lands with the assurance to the
purchaser, Belz, that they would be released from the lien of the deeds of trust on or before
January 1, 1940 and if the Durhams received ample consideration for their land before the
time for obtaining of the release had elapsed and were in no way embarrassed or harmed
or damaged by reason of such failure and if the purchaser Belz was perfectly satisfied to
let the matter ride along until the entire amount secured by the trust deeds was paid by
defendants and the entire property thus automatically released and if plaintiffs
wrongfully withheld their cooperation from the attempt of the defendants in good faith to
obtain the release, then the equities of the case would not entitle them to a rescission.
____________________

3
New evidence on this phase of the question was adduced at the second trial and is hereinafter referred to.
Appellants' application for partial release was made a few days before August 13, 1942.
or before January 1, 1940 and if the Durhams received ample consideration for their land
before the time for obtaining of the release had elapsed and were in no way embarrassed or
harmed or damaged by reason of such failure and if the purchaser Belz was perfectly satisfied
to let the matter ride along until the entire amount secured by the trust deeds was paid by
defendants and the entire property thus automatically released and if plaintiffs wrongfully
withheld their cooperation from the attempt of the defendants in good faith to obtain the
release, then the equities of the case would not entitle them to a rescission.
3. The question of whether or not a rescission shall be granted rests largely in the sound
discretion of the court.
4. A partial failure of performance of a contract will not give ground for its rescission
unless it defeats the very object of the contract or renders that object impossible of
attainment, or unless it concerns a matter of such prime importance that the contract would
not have been made if default in that particular had been expected or contemplated.
5. The purpose of the present action is not to declare a forfeiture, but some of the reasons
given by the authorities why a forfeiture should not be declared apply with equal force against
the granting of a rescission.
6. The mere fact that a conveyance has been made does not prevent rescission and
cancellation of the deed for failure of consideration. The courts, however, are reluctant to
grant this relief even though there is a substantial or total breach of the return promise if any
other compensatory relief is available.
7. If specific damage is proved by the plaintiffs, it is incumbent upon them to show why
the same would not be adequate before they are entitled to the remedy of rescission.
8. A mere showing by the plaintiffs that it is impossible to ascertain the damages
occasioned by the acts of the defendants would not entitle the plaintiffs to the remedy of
rescission if the facts indicate that no such damages resulted.
remedy of rescission if the facts indicate that no such damages resulted.
9. Ordinarily, an action to recover the amount due on a promissory note affords adequate
relief from the promissor's breach of his obligation to pay.
10. This court must sustain a judgment of the trial court if the same is supported by
substantial evidence in the record.
Appellants most earnestly contend that the situation presented to us on this present appeal
is precisely the same as that presented on the first appeal and must result in a reversal as did
the first appeal. Respondents, on the other hand, contend just as earnestly that the new
evidence adduced at the second trial supplied all the elements that were lacking in the first
trial and that the findings and judgment of the district court in a second trial are now amply
sustained by substantial evidence. It remains for us to determine by a careful scrutiny of the
record of the evidence adduced at the second trial, which contention is correct.
The following letter, not in evidence in the first trial, was admitted in evidence:
August 13, 1942
Mr. William Canepa
Rt. 2 Box 204
Reno, Nevada
Loans 22449-A3983 L. & Wm. Canepa
Dear Mr. Canepa:
The other day when you called at the office, you left an application for partial release
signed and asked me to hold it and that you would instruct me as to the time when we should
submit it to the Bank. This release has not been signed by Frank E. and Cora E. Durham,
therefore it will be impossible for me to submit it for clearance.
In addition to the lack of their signatures, you have requested that I hold it. Our regulations
require us to submit these applications for releases upon completion, therefore I am
returning this application to you.
therefore I am returning this application to you. I am asking you to secure the names of Frank
E. and Cora E. Durham and that when you are ready to submit this release, return it to this
office and we will send it to the Bank.
Yours very truly,
Roy G. Bankofier
Secretary-Treasurer
(Emphasis supplied.)
The record indicates that plaintiffs did not know of the existence of this letter at the time
of the first trial. Some attempt was made by defendants to show that the application for partial
release therein referred to had actually been filed by the Canepas on April 30, 1942, the date
of such application, but the trial court was amply justified in concluding that it had been filed
only a few days prior to August 13, 1942. The letter from the Federal Farm Association of
that date says that the application was left at the office, the other day. The 1948 edition of
Webster's New International Dictionary defines this expression as meaning: A recent
unspecified day; formerly, specif.: (1) the second or next day; (2) a day ago. The last
preceding edition of Webster defined it as meaning a day not long ago;usually adverbial;
as, I saw him the other day.
These definitions are indeed the usual connotations of the term. So we may take it that the
application was returned to the Canepas within the course of a day or two or thereabouts after
it was received and was returned for two reasons, first, because it did not have the signatures
of the Durhams and, secondly, because it was against our regulations to hold it pending
further instructions. It was actually not presented to the Durhams by the Canepas for the
signatures of the former until September 19, 1942, after the commencement of the action. Mr.
Chief Justice Orr when writing the former opinion, did not have all of these facts before him
when he stressed the failure of the Durhams to "cooperate" in applying for the partial
release.
cooperate in applying for the partial release. It now appears that the regulations prevented
compliance with the request of the Canepas that the loan association defer forwarding the
application to the Land Bank pending further instructions. (Nor is it explained why, when the
obtaining of the release was already two and one half years overdue, the loan association was
requested to hold it indefinitely without action.) Apparently the same regulations made it
impossible for the loan association to submit it to the Land Bank for clearance without the
Durhams' signatures. The learned district judge in the second trial patently considered the
signing of this application by the Durhams a mere matter of form,
4
and that the release of the
twelve acres from the deeds of trust was the obligation of the Canepas, who would have to
satisfy the Federal Land Bank, by sufficiently reducing the notes by January 1, 1940, that the
bank had ample security without this small tract.
Further testimony adduced during the second trial included the following: Mr. Leo
Schmitt, whose qualifications were admitted, testified in April 1947 that the rental value of
the Canepa or Durham ranch was then 20 percent higher than when fixed as $1,800 a year in
1942.
With reference to the evidence lacking from the record of the first trial and without which
a judgment for rescission was without support and particularly as referred to in several of the
numbered paragraphs, supra, defining the law of the case as fixed by the first decision, we
may note the following testimony.
____________________

4
The Federal Land Bank undoubtedly had some ostensibly good reason (if this seems grudgingly charitable,
so be it) for a regulation making it impossible to release part of the land from its mortgages without the
signatures of its original mortgagors. But in this case it had in advance given its blessing to the plan proposed by
the Durhams and had before it (or would have had before it if the Canepas had pressed their application) the
actual deed from the Durhams to the Canepas and the contract whereunder the Durhams had not merely
consented to the obtaining of the release by the Canepas but, a fortiori, had bound the Canepas by solemn
covenant to obtain the release.
supra, defining the law of the case as fixed by the first decision, we may note the following
testimony. Carl L. Belz, the purchaser of the twelve-acre tract referred to in the former
opinion, was not a witness at the first trial but testified in part as follows at the second
trialputting his testimony in narrative form:
In 1932 the Durhams had a bad yearand he came to me and I let him have $1200. He
had cattle on the place and he needed feed and he was short of hay. From that time on it got
tougher and tougher and he came after some more money and I let him have up to $3500. I
went to him and says, Frank, this thing is running pretty heavy on me here and I'd like to
know where I am standing on this thing. At the time he sold the ranch he told me that he had
had a loan from the Federal Land Bank and on this loan that he was to get title to twelve and
some odd acres of ground down by the river, and he said that he would get title to that
January 1, 1940. He says he has got some money coming on this transaction with the
Canepas, and that he would improve the house. He wanted to live there, as it had been in the
family for so long, that he wanted to live on them twelve acres, that he would fix up this
house, and as soon as he got this money and I says, if you havethe place is going to wreck
down there now, and I'd want to have some security better than that, what I have got. I will try
to get this thing and go down there and live, and get this money and fix up the house,' and in
place of that, why he couldn't get any money and he couldn't go ahead with the deal. So I had
an understanding that when he got the money from the Canepas he was going to fix up the old
house on this twelve or thirteen acres, that he was going to get title to on the first of January,
1940. He told me he had some hay in the barn he was going to sell, that he was going to sell
that and use that money also to help fix up the place. Durham told me that he had a couple of
notes. They were supposed to pay him when he made the transaction, and that was the
money he was going to put into the house for improvements, to live on.
to pay him when he made the transaction, and that was the money he was going to put into
the house for improvements, to live on. After November, 1936, I examined the house to
determine whether any improvements were being made there. There was no improvements
being made. I thereupon saw Durham. He told me he couldn't make those improvements on
that, that Canepa hadn't paid him his money on those notes. This situation continued for some
time after that. In 1939 I went over to Durham. The house was gone to wreck, and the
property was going into weeds and willows and stuff, and I told Mr. Durham, I says,
Something has got to be done and you have got to take care of me here some way and this
has run along a long time.' I threatened him that I would have to start suit with him. He says,
Well don't start suit on me now.' I says, If you don't'I says, well, I will have to do
something. He says, If you don't start suit, I will waive my limitation of time on it in the
trial.' He says, I will wait a little longer. I want to get this title that you agreed to give me.
You haven't delivered me a title or anything else. You have got to give me something to
secure me for my money.' The situation continued after that, and I finally demanded that he
do something, that he give me something and he says, I can't give you a clear title to it, but I
will give you the best title I can give you subject to'that when this here ground would be
cleared up with the Federal Loan Bank, that he would give me a title to the property, that is to
say, when the Federal Land Bank Loan was cleared off that property he would give me a title.
I understood that was January 1, 1940, and upon that representation I took a deed to the
property in payment of the obligation that Durham owed me. The title was not cleared
January 1, 1940 and he could not deliver it to me. I think it was cleared four years afterwards,
somewheres around in there. I don't know for sure when it was. During the time I had that
property after January 1, 1940, I had several offers to sell the property, and I told them the
only kind of a deed that I could give them was a deed like I had.
the property, and I told them the only kind of a deed that I could give them was a deed like I
had. Well, they wouldn't take the property. They wouldn't take it, wouldn't even give me my
money I had in it, out; so I had to keep it and do the best I could with it. The amount of the
offers was lots more than what I was in in the propertylots more than $3500several
thousands of dollars, but I couldn't sell it; they would not take the title the way I had a title, so
I had to just naturally do the best I could with it. I could have cut it up in acre tracts or
two-acre tracts and sold them at a nice profit. The property is located on Highway 40, right on
the turn. It is a very desirable spot and could also be used with a nice filling station on the
corner, and it had nice trees in the rear where a man could put a nice auto court and trailer
camp in there. All of those things were considered by me for the use of this property at one
time or another. I couldn't do anything the way the title was. I couldn't get title to the property,
as the agreement was to me. It is my intention to hold the Durhams for the loss that I suffered
by their failure to deliver good title on January 1, 1940. We never talked about the damages,
the full amount of damages that I would be entitled to. That will have to be done by
arbitration, by appointing somebody to arbitrate it, or else I will have to start suit for
damages. I intended to do that. He has waived his limitation of time in which I can figure I
have a right to sue him.
None of this testimony was before the court at the first trial or in the record on the first
appeal. We may say frankly that this witness' testimony was in our opinion greatly weakened
by his cross examination, and much of his direct testimony above quoted was elicited by
questions of the most leading and suggestive character. However, the weighing of these
considerations is not within the province of this court.
Plaintiff Frank E. Durham testified at the second trial to his marriage to the granddaughter
of Felix O'Neil who got this place in 1S51 or 1S52, to the residence of the family on the
property for many years and to his sentimental attachment to it and to his desire to
reserve "the old home place" if possible if the Federal Land Bank foreclosed.
who got this place in 1851 or 1852, to the residence of the family on the property for many
years and to his sentimental attachment to it and to his desire to reserve the old home place
if possible if the Federal Land Bank foreclosed. He told of the bank's approval of his plan to
sell the rest of the property to some one who would assume the mortgage and of his
subsequently placing the property for sale with this in view. He described the necessity of
getting payment on the two small Canepa notes to devote to repairs on the house and to
release the hay from the crop mortgage so that he could sell the hay and devote the proceeds
to the same purpose, and that these plans were frustrated by the failure of the Canepas to pay
the notes. He then testified in part as follows: I would not have sold my ranch under any
other terms than those I had given to the Bee Hive Reality Company. That plan under which I
authorized the Bee Hive Reality Company to find a purchaser was the very corner stone of my
plan in regard to my saving the home. That was the idea. It was the very corner stone of the
whole plan. The failure of the Canepas to pay the notes as agreed to carry out their contract
just upset my plans and I had to live elsewhere. It had a sentimental value for meit had
been in the family about 85 years. My wife's grandfather was the first one to have it, then her
father, and then I held it, that is, Bates was my father-in-law, and altogether it was in the
family about 85 years, and I always figured that I would reserve that old home place, as we
call it for my old home. I just like the place. I was there a good many years myself and I
wanted to stay there. My wife was born there on that place. The reason I eventually sold it to
Belz was I owed him some money and that is the only way I could get out of it. He wanted his
money and I couldn't do any different, only deed it to him. He threatened to sue me and I
agreed with him to waive the statute of limitations and not hold that against him if he sued me
later. We couldn't agree on any exact amount I am indebted to him, because I was unable to
give him a good title to this property on January 1, 1940.
him, because I was unable to give him a good title to this property on January 1, 1940. I
wouldn't know what it would be, what the damage might be, without it was arbitrated, or
settled by court, something of that kind.
Mrs. Durham's testimony was largely along the same linesthat when they received the
notice of foreclosure they left the same night at twelve o'clock in a blizzard to go to Oakland
to see the Land Bank, to see if they could make the arrangements they planned. This was done
and they came back and authorized the Bee Hive Company to make the saleto get
somebody to take the mortgage over for the main part of the ranch and we reserve the small
twelve acres and the house for our own, to be released. That reservation was very much of
importance because it was the only place we had left for us to go in our old age and we were
getting along in years and we had to have some place, and that was why we made the
reservation. It was the very foundation of making a contract with the
1. Again we note that the testimony of these two witnesses was materially weakened by
the cross examination. Nor does it carry the weight that would be accorded it if the witnesses
had used the language ascribed to them in the place of affirmative answers to leading
questions. But, as noted, this was a matter for the consideration of the trial judge. He had the
Durhams before him as witnesses not only in this trial but in the first trial and we cannot
substitute our judgment for his in the matter of the weight to be given this testimony.
The first opinion referred to the trial court's holding that plaintiffs were at fault in their
failure to pay certain water assessments and their removal of the balance arm from the scales
and to the fact that the trial court did not consider these items of sufficient importance to
justify the default of the defendants. This apparently was still the attitude of the court in
the second trial and would appear to be justified by the insignificant nature of the two
items.
apparently was still the attitude of the court in the second trial and would appear to be
justified by the insignificant nature of the two items. The total water assessments amounted to
$36.96 and were subject to simple adjustment. The value of the balance arm for the scales
appears to have been negligible. There was also sufficient evidence to justify the finding that
the Durhams were not in default in their agreement to hold the Canepas harmless against the
foreclosure of the chattel mortgage on the hay stored in the barn.
In his decision, comprising some 16 pages, the learned trial judge reviewed much of the
testimony and then said:
From the foregoing testimony, the Court takes the view that, because of the failure to
remove lien of the loan, Mr. Belz suffered damages in a material and substantial degree, the
amount of which is uncertain, and that the plaintiffs have been exposed, by the default of the
Defendants, to the hazard of an action for such damages.
The Defendants contend that, by virtue of the sale by the Plaintiffs to Belz, they
voluntarily abandoned their plan to make the 12 acres their home in their declining years,
thereby showing that Plaintiffs entertained no sentimental feeling toward that piece of land.
The evidence shows that there was such a sentimental feeling, that the plan referred to was
made by Plaintiffs, and that the plan was abandoned because of the pressing debt owed by
them to Mr. Belz. * * *
The fact that the Plaintiffs gave up their plan to occupy the place as a home, in order to
pay their debt, does not detract from the fact that the reservation of the 12 acres from the sale
to the Defendants, and the covenant of the Defendants to clear the same from the lien, was a
matter of such prime importance that the contract would not have been made if default in that
particular had been expected or contemplated. The refusal of the Defendants to fulfill their
covenant was, as I view it, willful.
2. The court then concluded that the plaintiffs were entitled to the equitable remedy of
rescission upon an equitable basis and found in detail the items for which defendants were
entitled to credit. All of this was thereafter embodied in formal findings of fact and
conclusions of law upon which the court's judgment and decree were entered. The main
contention of appellants is that such findings are not supported by the new evidence and in
this regard they particularly direct their attack to the trial court's finding No. VII, wherein the
court found as follows:
That the Plaintiffs intended, on the payment of the first note, in November, 1936, to pay
off the crop mortgage, sell the hay and put the remainder of the money into repairs on the
house on the 12 acres with the intention of living in it; and that they intended, on the payment
of the second note, to use the money for further repairs on said house, with the expectation of
living in it.
That for the purpose of discharging their debt of $3,500.00 to Carl Belz, the Plaintiff
were under the necessity of conveying the 12 acres to Belz, upon the representation and
inducement that said 12 acres would be released from the lien of the Deeds of Trust held by
the Federal Land Bank of Berkeley, California, on or before the first day of January, 1940.
That because of the failure of the Defendants, Louis and William Canepa, to perform the
requirements of the contract between Plaintiffs and said Canepas, the said lien of said Deeds
of Trust was not removed on January 1st, 1940, and as a result Plaintiffs were unable to
invest the said Carl Belz with a title to said 12 acres free and clear of the said lien as of
January 1st, 1940, as a result of which said Belz lost a sale of said property at a substantial
profit to himself and was further prevented from sub-dividing said acreage and selling the
same at a substantial profit; that said Belz has threatened Plaintiffs since said time with a suit
to recover damages from them for their failure to deliver a title free and clear of said lien as
of January 1st, 1940, and is still threatening suit, and has been induced not to institute
said suit upon Plaintiffs' promise not to avail themselves of the Statute of Limitations;
that it is impossible to determine the damage which the Plaintiffs will suffer in order to
compensate the said Belz for the failure of the Plaintiffs to deliver title to said 12 acres
clear of said lien as of January 1st, 1940.
and clear of said lien as of January 1st, 1940, and is still threatening suit, and has been
induced not to institute said suit upon Plaintiffs' promise not to avail themselves of the
Statute of Limitations; that it is impossible to determine the damage which the Plaintiffs will
suffer in order to compensate the said Belz for the failure of the Plaintiffs to deliver title to
said 12 acres clear of said lien as of January 1st, 1940.
That since the instant action has been carried through the Supreme Court of the State of
Nevada and returned to this Court for a new trial, the said Belz has conveyed said twelve
acres, with a considerable loss of profit to him, the amount of which, however, can only be
determined by a suit instituted by Belz against the Plaintiffs, as a result of which the damages
owing from the Plaintiffs to said Belz are impossible of calculation in the instant action.
In finding No. VIII the court definitely found that the application by the defendants to the
Federal Land Bank for release of the 12 acres from the mortgages was not made until after the
commencement of this action and between August 7, 1942 and August 13, 1942, and was not
submitted to the plaintiffs for their signatures until September 19, 1942. The court further
found in finding No. V that plaintiffs' notice of January 23, 1942 to the defendants that
defendants must within 60 days obtain the release of the land from the bank's mortgages,
which release was then two years overdue under the terms of the original contract, was a
reasonable requirement and resulted in making time of the essence of the contract, and that
more than reasonable time elapsed between that date and the institution of this action on
August 7, 1942. In finding No. VI the court found generally that the plaintiffs had performed.
In finding No. IV the court found that the due dates of the two notes from defendants to
plaintiffs were arranged to put the plaintiffs in funds to retire the chattel mortgage on the hay
in the barn so that plaintiffs could sell the hay and devote the proceeds to repairs on the
home place, plaintiffs being given the right to store the hay in the barn.
the proceeds to repairs on the home place, plaintiffs being given the right to store the hay in
the barn. The court further found in finding No. XV that the failure of defendant to perform
the several covenants of their contract constitutes so substantial and fundamental breach of
the contract that it defeated the objects of the plaintiffs in making the contract, and a breach
going directly to the very root of the contract. * * * Under finding No. XVIII the court found
that these undertakings on the part of the defendants were so essentially part of the contract
that the failure of the defendants to perform destroyed such an indispensable part of what the
parties intended that the contract would not have been made with that condition omitted.
The court also found that the defendants' denial as well as their two affirmative defenses and
their cross complaint were untrue, except as to the allegations of the sundry expenses and
payments by the defendants hereafter referred to.
In the testimony of Belz and the Durhams, above quoted, is found substantial support of
these findings. Much of the briefs and oral arguments of the appellants is in the nature of an
attack upon the testimony of these witnesses, but under the unbroken rule of this court we
cannot encroach upon the power of the district court to determine the weight and effect to be
given to such evidence.
3. The additional evidence adduced likewise warranted the finding that the notice to
perform given the defendants by plaintiffs was reasonable and made time of the essence. The
reference to this element contained in the former opinion loses its force in light of this new
evidence. 5 Williston on Contracts, 1937 Revised Ed., 4106; 13 C.J. 688, Contracts, sec.
783, 17 C.J.S., Contracts, sec. 504 a (4), p. 1072; 1 Black on Rescission and Cancellation, 2d
Ed., 614; Roberts v. Yaw, 62 Kan. 43, 61 P. 409; Bishop v. Barndt, 43 Cal.App. 149, 184 P.
901; Nuttall v. Holman, 110 Utah 375, 173 P.2d 1015.
The court found the equities to be in favor of the plaintiffs and against the defendants,
adjudged a rescission, and ordered the respondents to reconvey the property to the plaintiffs.
Nevertheless the learned trial judge exercised painstaking care to reimburse the defendants
for every item of expenditure to which they were equitably entitled and which redounded to
the benefit of the plaintiffs. Thus we find that defendants offered evidence as to the value of
improvements installed by them upon the property, including house, barn, garage, fences,
ditches, headgates, out-buildings, removal of rocks, leveling, water system, pump house,
telephone, scales, etc. These items as claimed by defendants aggregated $10,320, and the trial
court allowed defendants $10,000 for the aggregate, as the extent to which the vendible value
of the property had been increased by these improvements. To these the court added an
additional $6,500 for the construction of a milk barn and other improvements made by the
defendants after the institution of the action. They were also credited with all sums actually
paid by them under the contract, including all mortgage payments to the Federal Land Bank,
aggregating $18,735.04, but not including the sums of $2,200 and $417.20 paid by the State
of Nevada for rights of way across the land and which were paid by the state directly to the
bank and credited upon the notes. Defendants were also credited with the minor item of
$36.96 water assessments which were chargeable against the plaintiffs. They were also
credited with $230 for rental of the barn in which the plaintiffs continued to store their hay
after the lapse of one year permitted them without charge under the court's proper
construction of the oral contract covering this item. As correlative items defendants were
credited with $3,609.30 for taxes paid by them, but charged with rental at $1,800 a year to the
end of 1942 and at an increase of 20 percent commencing January 1, 1943. This was done in
the court's reliance upon the testimony of Mr.
of Mr. Leo Schmitt. The court also ordered plaintiffs to cancel and deliver up to defendants
the two promissory notes executed by defendants in favor of plaintiffs in the aggregate sum of
$450. There is substantial evidence to support each item of credit and debt and to support any
rejection of further items of debt or credit claimed by the respective parties.
The court further ordered that for the purpose of providing the necessary mechanics for
the delivery of the deeds, etc. by defendants and the payment of the required sum of money by
plaintiffs, the deliveries be made by the respective parties to the clerk of the court within
thirty days from the date of the judgmentrental payments being computed up to the date of
the delivery of the deed to the clerk. This provides a simple and effective method of carrying
the judgment into effect.
The judgment and order denying defendant's motion for new trial are affirmed with costs.
January 28, 1949. 202 P.2d 286.
Appeal and Error.
Trial court's findings will not be disturbed where there is substantial conflict in
testimony and findings are supported by some substantial evidence, notwithstanding that
supreme court might have found differently on the facts had supreme court been the trier
of the facts.
Eather J., dissenting.
Rehearing denied.
For former opinion see 65 Nev. 428, 198 P.2d 290.
Withers, Sanford & Horgan, of Reno, for Appellants.
Clyde D. Souter and Clel Georgetta, both of Reno, for Respondents.
OPINION
Appellants have filed a petition for rehearing in which they emphasize the fact that in our
former opinion we expressed the view that the testimony, both of Belz and the Durhams, was
much weakened by the cross examination and by the very leading and suggestive form of the
questions by which the testimony was elicited. Appellants' petition for rehearing urges that
the testimony of these witnesses is not entitled to credence and supplies no substantial
evidence in support of the trial court's findings. Numerous opinions of this court have
expressed the view that this court would or might have found differently on the facts had it
been the trier of such facts, but felt itself bound by the well-recognized rule that it would not
intrude upon the province of the trial court in this respect. In Torp v. Clemons, 37 Nev. 474,
477, 142 P. 1115, 1116, the trial court had found that a trust existed by virtue of a deposit of
certain shares of stock. McCarran, J., in an opinion concurred in by the other justices, and in
which petition for rehearing was denied without opinion, said: The testimony, as it is
presented in the record, falls far short of binding conviction to our mind as to the existence of
a trust between Clemons and Overton, but as there is a substantial conflict in the testimony,
and there is some substantial evidence in support of the finding of a trust, the conclusion of
the trial court in this respect, in view of the long-established rule of this court, will not be
disturbed. Paraphrasing the language there used, we may indeed say that the testimony in the
instant case, as it is presented in the record, falls far short of binding conviction to our mind
of the existence of the facts which the former opinion of this court, 62 Nev. 417, 153 P.2d
899, 155 P.2d 788, written by Mr. Justice Orr held to be necessary to a recovery by the
plaintiffs, respondents herein, but as there is substantial conflict in the testimony and there
is some substantial evidence in support of the findings, the conclusion of the trial court in
this respect, in view of the long-established rule of this court, will not be disturbed.
conflict in the testimony and there is some substantial evidence in support of the findings, the
conclusion of the trial court in this respect, in view of the long-established rule of this court,
will not be disturbed. If by our adherence to this rule, a hideous and cruel wrong will be
perpetrated, as asserted by appellants, such wrong grows out of the facts that the trial court
believe the testimony of witnesses asserted by appellants to be unworthy of belief. Had the
trial court refused to believe the testimony of these witnesses (and the standing and
experience of appellant's attorneys through this protracted litigation consuming six years
permit us to assume that their arguments attacking their credibility were earnestly and
efficiently presented to the trial court) appellants would with entire propriety have insisted
upon this same rule by which we are bound.
The petition for rehearing quotes at length from the opinion of Mr. Justice Orr on the
former appeal and insists that we have deviated from the law of the case as there established.
In this regard, however, appellants fall into precisely the same error as the one in which they
attack the testimony of Belz and the Durhams. They ignore the additional evidence adduced
at the second trial or simply characterize such additional evidence as unsubstantial. We are
satisfied that the testimony of respondent Durham and his wife and the witness Belz
constituted substantial evidence. The credence to be given to this testimony was a matter to
be determined entirely by the trial court.
Rehearing denied.
Horsey, C. J., concurs.
Eather, J. (dissenting).
Although I concurred in the opinion filed herein, a review of the facts prompted by a
petition for rehearing leads me to the conclusion that a rehearing should be granted.
While this court may not usurp the functions of a lower court in determining the weight
and credibility to be given witnesses on their testimony, yet we may not close our eyes to
indices which to a great extent disclose that testimony is ventriloquial in character.
lower court in determining the weight and credibility to be given witnesses on their
testimony, yet we may not close our eyes to indices which to a great extent disclose that
testimony is ventriloquial in character.
It is elementary that if the lower court's findings are not supported by substantial evidence
they cannot be sustained.
In the decision filed by this court on the 11th day of October, 1948, it is stated [198 P.2d
290, 297]: We may say frankly that this witness' testimony (referring to the testimony of
Carl L. Belz) was in our opinion greatly weakened by his cross examination, and much of his
direct testimony above quoted was elicited by questions of the most leading and suggestive
character. However, the weighing of these considerations is not within the province of this
court.
Again in referring to the testimony of Mr. and Mrs. Frank E. Durham, the respondents in
the above-entitled case, it is stated: Again we note that the testimony of these two witnesses
was materially weakened by the cross examination. Nor does it carry the weight that would be
accorded it if the witnesses had used the language ascribed to them in the place of affirmative
answers to leading questions. But, as noted, this was a matter for the consideration of the trial
judge. He had the Durhams before him as witnesses not only in this trial but in the first trial
and we cannot substitute our judgment for his in the matter of the weight to be given this
testimony.
In commenting on these statements made in the opinion filed October 11, 1948, I wish to
state that in the case of Canepa v. Durham, 62 Nev. 417, at page 425, 153 P.2d 899, 902, 155
P.2d 788, Judge Orr stated in his opinion as follows: If we could say, after a consideration of
all the evidence in the case, that there is substantial evidence in the record to sustain the said
finding, then under the rule often announced by this court we would be required to sustain the
judgment.
But after a careful consideration of the evidence we can reach no other conclusion than the
Finding XXIX is without support as far as the evidence in this case is concerned.
In the case of Smith v. Goodin, 46 Nev. 229, 232, 206 P. 1067, 1068, this court held that:
The question to be determined is, Is the evidence sufficient to justify the finding and
decision of the court? It is said on behalf of the respondent that the evidence is conflicting,
that there is substantial evidence to support the findings and decision of the court, and hence
the judgment must, under a long line of decisions, be affirmed. The evidence is conflicting,
and there is substantial evidence to support the judgment, and it is true it is a well-recognized
rule in this state that when the evidence is conflicting and there is substantial evidence to
sustain the judgment it will not be disturned; but to this rule, as to nearly all well-established
rules, there is an exception, as well recognized by this court as is the general rule, and as
promptly and surely invoked and applied when applicable. We know of no better statement of
the exception than is found in the language of the court in the case of Watt v. Nevada Central
R. Co., 23 Nev. 154, 44 P. 423, 46 P. 52, 726, 62 Am.St. Rep. 772, where it is said:
Notwithstanding, the well-established rule which has been so often announced by this
and other courts that where there is a substantial conflict in the evidence the appellate court
will not disturb the decision of the court below, there is another rule as well established and
of as binding force, both in actions at law and in equity, addressed to the conscience and
judgment of the court of last resort, which cannot be ignored without doing violence to the
plain principles of common justice in many cases, to wit: If there be no substantial conflict
in the evidence upon any material point and a verdict or decision be against such evidence
upon such point, or where the verdict or decision strikes the mind, at first blush, as
manifestly and palpably contrary to the evidence, the Supreme Court will direct a new
trial."
blush, as manifestly and palpably contrary to the evidence, the Supreme Court will direct a
new trial. Hayne, New Trial and Appeal, sec. 288 * * *, Barnes v. Sabron, 10 Nev. 217.'
When we speak of substantial evidence we refer to something which has probative force.
Evidence in parrot fashion by leading questions resolves itself into submitting to a court,
indirectly by oath of a witness the data and information in the mind of the attorney. Such
information thus received could scarcely be elevated to the dignity of a factual foundation and
be characterized as substantial evidence.
For these reasons, I feel that a rehearing should be ordered in this case and that an order
should be entered accordingly.
____________
65 Nev. 456, 456 (1948) Moody v. Riley
FRANCES M. MOODY, a Single Woman, Appellant,
v. H. A. RILEY, Respondent.
No. 3512
October 18, 1948. 198 P.2d 447.
Vendor and Purchaser.
Where contract provided that balance of purchase price of lot and building was to be paid in January
1947, and that vendor would complete building at his own expense, but that should he fail to do so before
January 1947, purchaser could do so and deduct cost thereof from balance due, and vendor did not notify
purchaser as to whether vendor had completed building and was absent when purchaser sought to inquire
as to whether vendor had completed building, and bad weather prevented purchaser from inspecting lot in
January 1947, purchaser did not have such equitable grounds for failing to tender balance due in January
1947, as would entitle her to recission of contract.
Action to rescind contract for sale of land by Frances M.
65 Nev. 456, 457 (1948) Moody v. Riley
M. Moody, a single woman, against H. A. Riley. From the judgment, the plaintiff appeals.
Affirmed.
Gordon W. Rice, of Reno, for Appellant.
Royal A. Stewart, of Reno, for Respondent.
OPINION
The plaintiff-appellant's complaint sets up a contract alleged to have been made on
September 10, 1936, for the sale by the defendant to plaintiff of a certain lot with a building
thereon. A general demurrer to the complaint was sustained in the court below, and plaintiff
declined to plead further, but permitted judgment to be entered against her and has taken this
appeal.
Plaintiff has undertaken, in her complaint, to allege the substance of the contract involved.
It is alleged that the total purchase price was to be the sum of $6,000, of which $3,000 was
paid on the making of the contract, and the balance of $3,000 was to be paid during the
month of January 1947. The defendant agreed to complete, at his own expense, the building
situated on the lot referred to; and in the event the building was not so completed before
January 1947, the plaintiff had the right to complete the same and deduct the cost thereof
from the balance of the purchase price. The plaintiff alleges that the defendant failed to notify
her whether he had elected to complete the aforesaid building at his own expense or permit
the plaintiff to do so; that during the month of January 1947, plaintiff, after diligent search
and inquiry, was unable to locate the defendant, in Washoe County, for the purpose of
inspecting the building to determine if it had been completed and to carry out her part of the
agreement; that, at divers times since January 1947, plaintiff demanded the conveyance
of the lot referred to and tendered the balance of $3,000, less the cost of completing the
building "if the same had not in fact theretofore been duly completed by the defendant";
that defendant has failed to execute and deliver to plaintiff a conveyance of the lot and
has not repaid to plaintiff the $3,000 originally paid by plaintiff on the contract.
65 Nev. 456, 458 (1948) Moody v. Riley
carry out her part of the agreement; that, at divers times since January 1947, plaintiff
demanded the conveyance of the lot referred to and tendered the balance of $3,000, less the
cost of completing the building if the same had not in fact theretofore been duly completed
by the defendant; that defendant has failed to execute and deliver to plaintiff a conveyance
of the lot and has not repaid to plaintiff the $3,000 originally paid by plaintiff on the contract.
The plaintiff prays judgment for the sum of $3,000, together with her costs, and for such
other relief as the court may deem just, proper and equitable in the premises.
Under the agreement as alleged, the defendant had until January 1, 1947, to complete the
building, and was under no obligation to notify the plaintiff as to his actions in that regard. As
implied from the allegations as to the agreement, the plaintiff had the right, after January 1,
1947, to go upon the premises, inspect the same, complete the building if uncompleted, and
pay or tender the balance of $3,000, less the cost of such completion. If the building had been
completed by the defendant, the plaintiff of course had the right to pay the remainder of the
purchase price and demand a deed. The allegation of plaintiff's general purpose to perform
and that plaintiff was unable to find the defendant is not equivalent to allegations to the effect
that the plaintiff was able and ready to perform, but that the defendant prevented the plaintiff
from inspecting or completing the building and paying the balance of the purchase price. The
allegations made are, of course, not strengthened by the intimation, on the oral argument, that
winter weather prevented an inspection of the property by the plaintiff.
The defendant contends, first, that the alleged tender by the plaintiff came too late. Under
the terms of the contract, as alleged, payment of the balance was to be made during January
1947. As the tenders of plaintiff are alleged to have been made after that month, it is obvious
that such tenders came after the time provided for in the contract.
65 Nev. 456, 459 (1948) Moody v. Riley
obvious that such tenders came after the time provided for in the contract.
Defendant contends, second, that, in the absence of a showing of equitable grounds for
rescission, the plaintiff, being herself in default, cannot rescind. We agree with this statement.
Has the plaintiff alleged equitable grounds for rescission? She urges that the allegations
above mentioned constitute an equitable showing for rescission or at least sufficient excuse
for the delay of tender on her part until after January 1947. The excuses or circumstances
referred to are defendant's failure to notify plaintiff of an election on his part respecting the
completion of the building and his failure to be available in Washoe County during January
1947, to respond to plaintiff's inquiry as to the completion of the building. As stated above,
the defendant was not obligated in either respect; and there are no sufficient other allegations
in the complaint, based on equitable considerations, to move a trial court to grant the remedy
of rescission.
We are of the view that the plaintiff's alleged tender was not sufficient in any event. There
were two and, as we view it, only two permissible methods of payment of the balance, either
of which would have to be made prior to the end of January 1947, unless the delay were
excused on sufficient equitable grounds. Payment of the balance of the purchase price could
have been made or excused by delivery or tender of the sum of $3,000, or said sum less the
cost that might have been incurred by the plaintiff in completing the building. Plaintiff
alleged neither the one nor the other method of payment or tender. If the defendant had
actually prevented the plaintiff from making a proper and timely tender of performance on her
part, then equity would have entertained an application by plaintiff for relief by specific
performance or by rescission.
The plaintiff contends that the completion of payment on her part was not a condition
precedent to the duty of the defendant to deliver to her a deed to the property.
65 Nev. 456, 460 (1948) Moody v. Riley
the defendant to deliver to her a deed to the property. In the case of Irvine v. Hawkins, 20
Nev. 384, 22 P. 240, 241, the defendant sought specific performance of a contract of sale. In
granting such relief, this court said:
Rhue was entitled to receive a deed upon paying the money, and Clark was entitled to the
money upon delivering a deed. The covenants were dependent, and the acts to be performed,
concurrent.
In the case of Mosso v. Lee, 53 Nev. 176, 295 P. 776, the failure of the vendee to make
payments within the times specified in the contract was excused on equitable grounds and the
remedy of specific performance was granted. In that case, reference was made to the
California case of Glock v. Howard & Wilson Colony Co., 123 Cal. 1, 55 P. 713, 717, 43
L.R.A. 199, 69 Am.St.Rep. 17, a case in which the subject of contracts for the sale of real
property is given thorough consideration. In the opinion, the following principles are stated:
It has been said that after the vendee's breach the vendor may agree to a mutual
abandonment and rescission, in which last instance, and in which alone, the vendee in default
would be entitled to a repayment of his money. * * *
But while it is essentially true that in case of a rescission the vendee may demand that he
be restored to his original condition, it does not follow that a vendor who refuses to convey
after such breach by the vendee thereby rescinds. To the contrary, in refusing to convey after
the vendee's default he is not treating the contracts as at an end, but is expressly standing
upon it, and basing his rights upon its terms, covenants, and conditions. * * *
It would be to the last degree unjust and inequitable to allow a vendee, after his default
under such a contract, to put the vendor in default by a mere tender. * * *
The contract is made to depend upon a condition precedent.
65 Nev. 456, 461 (1948) Moody v. Riley
precedent. By its terms no right is to vest in the vendee until certain acts of payment have
been done by him, and a court of equity no more than a court at law will relieve a vendee,
under such circumstances, from the penalties arising from the breach of such condition, in the
absence of an equitable showing to excuse his default.
Although counsel for the plaintiff, on the oral argument, insisted that the allegations and
prayer of the complaint were broad enough to entitle the plaintiff to any equitable relief the
court could afford, it is clear that the complaint is not one in which the plaintiff seeks
equitable relief from her own default. Therefore the cases cited in support of an equitable
cause of that nature are not in point. We are confronted with the fact that plaintiff made a
down payment of $3,000, half of the total agreed consideration, and indeed the entire
consideration if, as a matter of fact, defendant had not completed the building and such
completion would cost $3,000. Under these circumstances, it cannot but appear that sufficient
additional facts might have been pleaded as would appeal to the conscience of the court. This
might well have been clear to the district court and probably was so, as the learned district
judge gave the plaintiff opportunity to amend her complaint. This she refused to do. She
refused or was unable to allege (1) that the building was completed, or (2) that it was not
completed, or (3) that she was unable to ascertain whether or not it had been completed, nor
did she attempt to explain her default, ask to be relieved from its consequences and seek the
remedy of specific performance.
It appearing that the plaintiff's complaint does not show grounds for relief either at law or
in equity, the ruling of the court below sustaining the demurrer and the judgment
subsequently rendered must be affirmed. It is so ordered.
65 Nev. 456, 462 (1948) Moody v. Riley
Eather, C. J., being absent on account of illness, the Governor commissioned Honorable
Wm. D. Hatton, Judge of the Fifth Judicial District, to sit in his place.
February 8, 1949. 202 P.2d 736.
Rehearing granted.
Per Curiam:
In the petition for rehearing, the appellant urges that her complaint states a cause of action
for specific performance. We adhere to the view that the complaint, in its present form, does
not state such, or any, cause of action. A rehearing will be granted, however, for the purpose
of considering whether or not the case should be remanded for the purpose of giving the
appellant an opportunity to apply to the court below for leave to file an amended complaint.
Rehearing granted.
On Rehearing
December 6, 1949.
Where plaintiff declined to amend complaint after sustaining of general demurrer,
supreme court, after affirming judgment sustaining demurrer, would not remand case
for the purpose of giving plaintiff an opportunity to apply to the court below for leave
to file an amended complaint.
Held that cause should not be remanded.
65 Nev. 456, 463 (1948) Moody v. Riley
OPINION
In this cause, a demurrer to the complaint was sustained, judgment for plaintiff was
entered, and defendant appealed. No error appearing in the record, the judgment was
affirmed. A rehearing was granted for the purpose of considering whether or not the cause
should be remanded for the purpose of giving the appellant an opportunity to apply to the
court below for leave to amend her complaint in order to state, if she could, a cause of action
for specific performance.
1. On the argument on rehearing, the appellant acceded to the argument and authorities
presented by respondent to the effect that, if there be no error attributable to the trial court,
this court is without jurisdiction to remand the cause for further proceedings. On the
authorities presented, we conclude that the cause should not be remanded. N.C.L. secs. 8377,
9385.62; 5 C.J.S. 1358, sec. 1872, note 83; People v. Jackson, 24 Cal. 630; Sutter v. City and
County of San Francisco, 36 Cal. 112; O'Hara v. Los Angeles County Flood Control District,
119 Cal.2d 61, 119 P.2d 23.
Horsey, C. J. and Badt, J., concur.
On the original appeal of this cause, the Governor commissioned Hon. Wm. D. Hatton,
Judge of the Fifth Judicial District, to sit in the place of Eather, J., by reason of the latter's
illness. Judge Hatton, accordingly, likewise participated, in place of Justice Eather, in the
rehearing.
____________
65 Nev. 464, 464 (1948) Zeig v. Zeig
EVA ZEIG, Appellant, v. JOSEPH ZEIG,
Respondent
No. 3531
October 25, 1948. 198 P.2d 724.
Everyone who may be materially affected by court action in a legal proceeding is entitled to his day in
court.
2. Divorce.
Where executors of deceased husband were not before court and could not be bound by judgment, and
wife's motion to vacate judgment of divorce from deceased husband had not been set for hearing or its
setting requested, and neither wife nor her attorneys knew motion to vacate was to be considered, and
questions raised by motion were difficult of decision, trial court improperly denied wife's motion to make
executors parties in proceedings by wife to vacate divorce judgment.
The relation of attorney and client, existing between husband and his attorney in action in which wife
obtained a divorce, died upon death of husband after divorce judgment, and service upon husband's
attorney was not a proper service on wife's motion to make executors of deceased husband, parties in
proceedings by wife to vacate divorce judgment.
4. Process.
Manner of service of process established by the legislature is exclusive. N.C.L.1929, secs. 8914-8922.
5. Process.
The statute providing for service upon an attorney, during absence of attorney from his office, to be made
by leaving notice with clerk in office, refers only to service within the territorial jurisdiction of the court in
which litigation is pending, and it does not permit service upon an attorney outside of the state of a notice
required in litigation pending in Nevada. N.C.L.1929, sec. 8916.
Whether to provide for service of process outside of the state is a matter of public policy for the
legislature to determine.
7. Process.
Service of process by leaving at one's office or place of abode in his absence, under conditions prescribed
by statute, is generally deemed constructive service.
8. Process.
Service of process by publication is not valid unless authorized by statute.
65 Nev. 464, 465 (1948) Zeig v. Zeig
9. Process.
Statutes providing for constructive service being in derogation of the common law, should be strictly
construed.
10. Abatement and Revival.
Under statute authorizing substitution of personal representative of a deceased party, where cause of
action survives death, the notice and service required is of the substitution, and not of the motion to
substitute. N.C.L.1929, sec. 8561; Code Civ.Proc.Cal. sec. 385.
Under statute authorizing substitution of personal representative of a deceased party where cause of
action survives death, all that need be shown for substitution is the demise of the party, and the
appointment and qualification of his personal representative. N.C.L.1929, sec. 8561; Code Civ.Proc. Cal.
sec. 385.
Under statute authorizing substitution of personal representative of a deceased party where cause of
action survives death, valid service must be obtained after substitution of the order of substitution, and also
of process in the action or proceeding. N.C.L.1929, sec. 8516; Code Civ.Proc.Cal. sec. 385.
13. Divorce.
Where husband died following obtaining of a divorce by wife, no notice or service of notice was
necessary in matter of wife's motion to substitute executors of husband's estate in place of husband in the
matter of proceedings upon wife's motion to vacate divorce judgment, under statute providing for
substitution of personal representatives of deceased party where cause of action survives death.
N.C.L.1929, sec. 8561; Code Civ.Proc.Cal. sec. 385.
14. Statutes.
Since statute authorizing substitution of personal representative of deceased party, where cause of action
survives death, was adopted from a like provision of the California Code, it would be presumed that
legislature adopted the statute as construed by the highest court of California. N.C.L.1929, sec. 8561; Code
Civ.Proc.Cal. sec. 385.
Action by Eva Zeig against Joseph Zeig, wherein plaintiff was granted a divorce. From
orders denying plaintiff's motion to vacate judgment and decree of divorce, and denying
plaintiff's motion making executors of the estate of defendant parties, plaintiff appeals.
65 Nev. 464, 466 (1948) Zeig v. Zeig
divorce, and denying plaintiff's motion making executors of the estate of defendant parties,
plaintiff appeals. Orders reversed and cause remanded with orders.
Morse & Graves, of Las Vegas, for Appellant.
Louis Wiener, Jr., of Las Vegas, amicus curiae.
David Zenoff, of Las Vegas, amicus curiae.
OPINION
The appellant, Eva Zeig, by her then attorney, William G. Ruymann, Esq., on the 27th day
of February 1947, in the Eighth judicial district court of the State of Nevada, in and for the
county of Clark, filed, as plaintiff therein, a complaint for divorce from her husband, Joseph
Zeig, alleging extreme cruelty (mental in character) as a ground for divorce. She alleged
further, that there were no children the issue of the marriage, that all property rights of the
parties were settled December 19, 1946, by a written agreement which she alleged is
equitable and just and should be by the court ratified and approved. The plaintiff prayed for
a decree of absolute divorce, that the court ratify and approve the property settlement
agreement, that her former name, Eva Slifka, be restored to her, and for general relief. Joseph
Zeig, the defendant husband, by his attorneys, Earl & Earl, entered his appearance in the
action by causing his answer to be filed therein, in which, in paragraph II thereof, he denied
paragraph V of plaintiff's complaint, which latter was the paragraph in which the plaintiff had
alleged extreme cruelty.
The case came on regularly for trial on said 27th day of February 1947.
65 Nev. 464, 467 (1948) Zeig v. Zeig
of February 1947. The plaintiff testified on her own behalf and in support of each of the
allegations of her complaint. Her testimony was satisfactorily corroborated as to her residence
and actual corporeal presence in Clark County, Nevada, for more than six weeks immediately
prior to the filing of her complaint, by witness Joseph Biggs, and the court, finding all the
allegations of the complaint to be true and satisfactorily proven by the evidence, granted the
plaintiff an absolute divorce, and also decreed and ordered that her former name of Eva Slifka
be restored to her. The court further, in the decree, ordered, adjudged and decreed that that
certain property settlement agreement of the parties hereto, of date, December 19th, 1946,
settling their property rights, be, and the same is, hereby by the court ratified and approved
and each of the parties hereto ordered to comply with each of the terms thereof. The plaintiff
had testified, in effect, in reference to the agreement that it was a fair, equitable settlement of
all the property rights of herself and husband.
The record discloses, and it is undisputed, that the defendant, Joseph Zeig, died on or
about March 12, 1947, which was less than two weeks after the date the divorce was granted.
On August 14, 1947, Harold M. Morse, Esq., and Madison B. Graves, Esq., were, with the
consent of William G. Ruymann, Esq., substituted as attorneys for the plaintiff, Eva Zeig, in
said divorce action; and on that date they caused to be filed, in said court and in said action, a
paper entitled, Notice of Motion to set aside and vacate Judgment and Decree, and signed
by Messrs. Morse & Graves, plaintiff's then attorneys. There was filed, also, on the same date,
an affidavit made and signed by Eva Slifka, formerly known as Eva Zeig, such affidavit being
entitled, Affidavit in support of Notice of Motion to set aside and vacate Judgment and
Decree. It appears necessary, in fairness to all the parties, that this affidavit, which, together
with the above-mentioned notice of motion, was filed in said court and in said divorce
action less than six months from the date the judgment and decree of divorce was
entered and when, under district court rule XLV, the district court still had jurisdiction to
vacate, amend, modify or correct such judgment or decree upon legal ground therefor
being established, be set forth in full herein.
65 Nev. 464, 468 (1948) Zeig v. Zeig
above-mentioned notice of motion, was filed in said court and in said divorce action less than
six months from the date the judgment and decree of divorce was entered and when, under
district court rule XLV, the district court still had jurisdiction to vacate, amend, modify or
correct such judgment or decree upon legal ground therefor being established, be set forth in
full herein. Omitting the formal portions of the affidavit, same is as follows:
Eva Slifka, formerly known as Eva Zeig, being first duly sworn on oath, deposes and
says:
1. That she is the plaintiff in the above-entitled action.
2. That on the 27th day of February, 1947, this Honorable Court granted to plaintiff an
absolute decree of divorce from defendant, all of which appears from the records and files of
said action, to which reference is hereby made and which is incorporated herein as if set forth
in haec verba.
3. That plaintiff, not desiring a divorce, had been coerced, threatened, intimidated and
forced by the defendant, his agents and employees, to obtain said divorce; that said coercion,
threats, intimidation and force occurred shortly after plaintiff married defendant on July 25,
1946, and continued to and including the date of the divorce, namely, February 27, 1947.
4. That on or about December 19, 1946, a separation agreement was entered into between
plaintiff and defendant, based upon representations made by defendant to plaintiff that
defendant was worth between $50,000.00 and $75,000.00; that on the basis of these figures
the separation agreement provided for payment to plaintiff of $22,000.00 in installments; that
plaintiff received $13,500.00, and that before the balance was paid to plaintiff the defendant
died, on or about the 12th day of March, 1947; that it appears defendant left an estate of
approximately $400,000.00; and that plaintiff is informed and does believe and upon such
information and belief alleges that as of December 19, 1946, the date the separation
agreement was entered into, defendant was worth approximately $400,000.00 which
information defendant and his attorneys willfully kept from the plaintiff.
65 Nev. 464, 469 (1948) Zeig v. Zeig
and belief alleges that as of December 19, 1946, the date the separation agreement was
entered into, defendant was worth approximately $400,000.00 which information defendant
and his attorneys willfully kept from the plaintiff.
5. That during the time plaintiff was in Nevada establishing her residence for divorce,
defendant caused her to be visited and spoken to by numerous and sundry underworld
characters who warned her not to leave Nevada without a decree of divorce, and threatened
her with bodily harm if she did not procure her divorce.
6. That plaintiff would not have entered into the aforementioned separation agreement,
which is a part of the files of this action, had she known the true worth of defendant.
7. That plaintiff would not have obtained a decree of divorce if she had not been
threatened with bodily harm by defendant and his agents, attorneys and employees.
8. That because of defendant's fraudulent representations said separation agreement was
entered into so that in the event of defendant's demise, plaintiff would not be entitled under
the laws of New York to elect to take a share of his estate.
It may be noted that neither the said notice of motion nor the above-mentioned and quoted
affidavit in support thereof has been served upon the executors of the estate of Joseph Zeig,
deceased.
On November 6, 1947, the law firm of Jones, Wiener & Jones filed in said court a notice
of motion and a petition that Louis Wiener, Jr., be permitted to appear in the said action as
amicus curiae, and to make an oral argument in said cause upon the questions of law therein
involved.
On November 21, 1947, Messrs. Morse & Graves, plaintiff's attorneys, caused to be filed
in said district court a Notice of Motion for the entry of an Order making Raymond
Ochacher and Harry Etra, Executors of the Estate of Joseph Zeig, parties to the above
Proceeding." This notice of motion was addressed to "Raymond Ochacher and Harry Etra,
Executors of the Estate of Joseph Zeig, deceased, and to Jones, Wiener & Jones, Esqs.,
and Etra & Etra, Esqs., and Earl & Earl, Esqs.,
65 Nev. 464, 470 (1948) Zeig v. Zeig
of the Estate of Joseph Zeig, parties to the above Proceeding. This notice of motion was
addressed to Raymond Ochacher and Harry Etra, Executors of the Estate of Joseph Zeig,
deceased, and to Jones, Wiener & Jones, Esqs., and Etra & Etra, Esqs., and Earl & Earl,
Esqs., Attorneys of record, your attorneys, and was supported by the affidavit of Harold M.
Morse. The affidavit of Mr. Morse, omitting the merely formal portions, is as follows:
Harold M. Morse, being first duly sworn on oath, deposes and says:
1. That he is one of the attorneys for the plaintiff in the above entitled action.
2. That he has been informed and does believe, that Joseph Zeig departed this life testate
in New York City, New York; that his will was duly admitted to probate on April 9, 1947, in
the Surrogate's Court of the State of New York, held in and for the County of New York.
3. That Raymond Ochacher and Harry Etra were duly appointed executors for the Estate
of Joseph Zeig, deceased, and that they, and each of them, duly qualified as such and are now
acting as executors of said estate.
4. That Etra & Etra, Esqs., whose office address is 527 Fifth Avenue, Borough of
Manhattan, County, City and State of New York, are the attorneys of record for said
executors, and that said attorneys have employed the legal firm of Jones, Wiener & Jones of
Las Vegas, Nevada, to represent the interests of said estate in the pending motion by the
plaintiff in the above captioned court and cause to set aside and vacate the judgment and
decree of said court made and entered on February 27, 1947.
5. That Louis Wiener, Jr., of the law firm of Jones, Wiener & Jones, Las Vegas, Nevada,
has filed herein a Notice of Motion for permission to appear and argue the motion set forth in
the preceding paragraph as amicus curiae without appearing generally in said action.
65 Nev. 464, 471 (1948) Zeig v. Zeig
6. That upon the death of Joseph Zeig, affiant is informed and believes that all authority
for Earl & Earl, Esqs., of Las Vegas, Nevada, who during the life time of Joseph Zeig had
appeared for him, ceased and terminated; and that therefore the executors of the estate of
Joseph Zeig, deceased, above named, are necessary parties for determination of the pending
motion of the plaintiff herein.
7. That this is a proceeding in rem, and this Honorable Court has jurisdiction of the
subject matter of the entire litigation and of the plaintiff's pending motion herein, and of the
persons of the executors heretofore named.
The said notice of motion to make said executors parties, and the said affidavit in support
thereof, were personally served upon Louis Wiener, Jr., Esq., in Las Vegas, Clark County,
Nevada, on the 14th day of November, 1947, the affidavit of service on said date having been
made by Lucille Thacker. On the 18th day of November 1947, Israel W. Tannenbaum (as
appears from a copy of his affidavit in the bill of exceptions upon this appeal), at No. 527
Fifth Avenue, in the County, City and State of New York, * * * served the foregoing notice of
motion, returnable on December 5, 1947, and a copy of the affidavit of Harold M. Morse,
verified the 13th day of November, 1947, upon Harry Etra, Esq. of the law firm of Etra and
Etra, by leaving copies thereof personally with the said Harry Etra.
On December 4, 1947, the motion of Mr. Wiener for leave to appear as amicus curiae, and
the motion of the plaintiff to make Messrs. Ochacher and Etra, said executors, parties to the
proceeding upon the motion to set aside and vacate the decree, each came on for hearing in
Department 2 of said Eighth judicial district court, the Hon. A. S. Henderson, district judge,
presiding. Mr. Wiener presented his said motion to appear as amicus curiae, testified under
examination by Mr. Graves, and the court ordered that said motion be granted. Mr.
65 Nev. 464, 472 (1948) Zeig v. Zeig
Graves thereupon presented to the court the motion to make said executors, Ochacher and
Etra, parties to said proceeding, and, in support of such motion offered in evidence all the
records, pleadings and files of said divorce action and of said proceeding, including the
affidavit of Harold M. Morse, Esq., in support of said motion. Mr. Wiener then objected, and
Mr. Graves presented his argument in support of his motion, and Mr. Wiener argued in
opposition thereto. The court thereupon ordered the matter submitted on briefs, and, on said
December 4, 1947, plaintiff served and filed Plaintiff's Opening Brief, consisting of less
than two pages, and which contained the following significant statement:
As was pointed out to the Court and counsel, and the Amicus Curiae concurred,
California takes the position that an executor is a necessary party to a proceeding of this type,
and in fact follows such procedure. Plaintiff relies for this proposition on the case of Raps v.
Raps, Cal.App., 119 P.2d 187, a California case.
This is the sole proposition requiring authority at this time inasmuch as in an in rem
proceeding, which is admitted, this Honorable Court has jurisdiction of the subject matter and
of the persons of the executors of said estate. As pointed out in the Raps case supra, said
executors are necessary parties in order for any order of this Court to be binding upon the
estate of Joseph Zeig, deceased.
During the argument this morning the Amicus Curiae went into the merits of the main
motion. We submit that such argument is irrelevant, incompetent and immaterial at this time.
Furthermore, there are no counter affidavits resisting said motion. It is submitted that this
Honorable Court will follow the California Rule and will not be committed to the midwest
rule as expounded by Amicus Curiae. We feel that the Raps case is sound authority for the
granting of said motion.
On December 6, 1947, a brief entitled Defendant's Reply Brief, and signed, Jones,
Wiener & Jones by Louis Wiener, Jr.,
65 Nev. 464, 473 (1948) Zeig v. Zeig
Louis Wiener, Jr., Amicus Curiae, was filed, and served on Messrs. Morse & Graves. This
brief consisted of more than seven pages, and expressed certain legal questions which the
amicus curiae insisted went to the court's jurisdiction. Mr. Wiener contended that the proper
solution of those questions disclosed that the court was without jurisdiction even to make the
order sought by plaintiff, to substitute the New York executors in place and stead of the
deceased defendant.
Plaintiff, on December 12, 1947, by her attorneys, Messrs. Morse & Graves, filed her reply
brief, of slightly more than one page, reiterating that the court should follow the California
doctrine as set forth in Raps v. Raps, Cal.App., 119 P.2d 187, cited in plaintiff's opening
brief, and grant the motion to substitute the executors. In said reply brief, plaintiff's attorneys
answered the discussion as to the merits on the principal motion, and as to the jurisdictional
questions necessarily involved in relation thereto, in one paragraph, which related to the
difference between intrinsic fraud and extrinsic fraud, and contended that the notice of
motion to vacate the decree, and the affidavit in support thereof, set forth, in counsels'
opinion, both intrinsic and extrinsic fraud; the extrinsic fraud relied upon being in
connection with the execution of the property settlement agreement.
The matter being thus submitted upon the briefs, the district court, on December 22, 1947,
rendered its decision, in writing. The concluding paragraph of such decision is as follows:
For the reasons above stated, the notice of motion to set aside and vacate the judgment
and decree of divorce heretofore granted, is denied, and the notice of motion for an entry of
an order making Raymond Ochacher and Harry Etra, executors of the estate of Joseph Zeig,
parties to the above proceeding is also denied.
The plaintiff in the court below has appealed to this court from the two orders embodied in
the foregoing paragraph, plaintiff's {appellant's) assignments of error being as follows:
65 Nev. 464, 474 (1948) Zeig v. Zeig
paragraph, plaintiff's (appellant's) assignments of error being as follows:
Assignment of Error No. 1. The Trial Court erred in denying plaintiff's Motion for entry
of an Order making Raymond Ochacher and Harry Etra, Executors of the Estate of Joseph
Zeig, parties to the proceeding.
Assignment of Error No. 2. The Trial Court erred in denying plaintiff's Motion to Set
Aside and Vacate Judgment and Decree.
Upon the hearing on December 4, 1947, only the motion to make the executors parties was
before the court. It was that motion alone which was presented, argued and submitted. The
making of the executors parties was a necessary prerequisite to plaintiff being able to proceed
with her principal motion. In any action or proceeding, other than a mere ex parte proceeding,
there must be at least two parties before the court for the court to have jurisdiction to proceed.
This first step of substituting the executors was required to be taken, and valid service upon
the substituted executors secured, and their appearance or default entered, before the principal
motion, that is, the motion to vacate and set aside the divorce decree, could be set down for
hearing and argument.
The district court's theory of the matter is readily apparent from the decision. The learned
district judge concluded that because of the death of the defendant and the nonresidence of
both parties at the time of his death, and the absence of any property of the marital
community or of the estate from within the jurisdiction of the court, that the court, upon the
former husband's (defendant's) death, completely lost jurisdiction over the res marital status,
and had no power or authority to modify or vacate the decree, also that the allegations in the
notice of motion to vacate, and the statements in the affidavits of the plaintiff in support
thereof, were not sufficient to constitute extrinsic fraud as a basis for the relief sought.
65 Nev. 464, 475 (1948) Zeig v. Zeig
relief sought. This being the learned district judge's view as to both the important elements of
fact and law involved in the principal motion on its merits, he considered the making of the
executors parties a useless act. The learned district judge's reasoning as to the matter of
making the executors parties clearly appears, repeatedly, in his decision. The following is
quoted from pages 4 and 5 of the decision:
The main question before the court now is the motion to make said executors parties to
this action, but the court, in determining said motion, must take into consideration the effect
thereof, and whether or not the making of said executors parties to the action is of any avail to
the plaintiff in said action. In other words, what would be the use of making the executors of
the estate of the deceased parties to this action, if the court has no jurisdiction to set aside the
decree of divorce, which opinion the court now holds. In the first place, no proper service was
ever made in this case, for from the record it appears that the service was made upon one
Marion Earl, attorney at law at Las Vegas, Nevada, who was the attorney for the defendant in
the original divorce action, but the court is of the opinion that the relation of attorney and
client dies upon the death of the client, and therefore the service made upon Mr. Earl was of
no avail. Again, there is no property within the jurisdiction of this court. Further, it appears to
the court that the court has no jurisdiction to set aside a decree of divorce which would decree
the plaintiff the wife of a dead man.
In plaintiff's brief on plaintiff's motion for entry of an order making the executors parties
to the proceedings, plaintiff submits The sole question at this time is not on the merits of the
motion to vacate the decree, but on the jurisdiction of the court to make such an order and as
to whether or not said executors are necessary parties.' This may be true, but as said
heretofore, what would be the use of making the executors parties to the action if the
court has no jurisdiction on the original motion?
65 Nev. 464, 476 (1948) Zeig v. Zeig
would be the use of making the executors parties to the action if the court has no jurisdiction
on the original motion?
* * * * * * *
And again, the motion of the plaintiff to set aside the decree of divorce is made upon the
grounds of fraud, and fraud alone. All of the fraud, in the opinion of the court, however, is
intrinsic fraud and not extrinsic fraud, and therefore, the court would not have jurisdiction to
set aside the decree of divorce, and it would be of no avail in this proceeding to make the
executors parties defendant to said motion, said executors being nonresidents of this state,
party plaintiff also a nonresident, party defendant deceased, no local attorney of record upon
whom service can be made, and no property located within this state.
1. But, as applied to the situation in the instant proceeding, this practical utility theory
upon which the learned district judge acted is unsafe to follow, and might readily lead to
gravely unjust consequences. It is elementary, under our system of legal procedure, that every
one who may be materially affected by the action of a court in a legal proceeding is entitled to
be heard, or, as ordinarily expressed, entitled to his day in court. If the court did have the
right or jurisdiction to determine without a hearing those important questions of fact and law
favorably to the unrepresented executors of the estate, as was done, as to the element of
extrinsic fraud and as to the question of the effect in the instant case of the death of the
deceased upon the jurisdiction of the court, the court would, equally, have the right and
jurisdiction to decide such questions adversely to the interest of such executors and estate
without their even being served or accorded their day in court.
It is beside the point to say that the court would not have done sothat it was only
because its views were thoroughly favorable to the persons of which the court had no
jurisdiction that it ventured to do so, for in many cases it might become a close question,
under certain conceivable circumstances, whether the results of certain action in a case
would be favorable or unfavorable to an unrepresented person who should have been
made a party, but was not.
65 Nev. 464, 477 (1948) Zeig v. Zeig
court had no jurisdiction that it ventured to do so, for in many cases it might become a close
question, under certain conceivable circumstances, whether the results of certain action in a
case would be favorable or unfavorable to an unrepresented person who should have been
made a party, but was not.
The above indicated questions of extrinsic fraud and the effect of the death of Joseph Zeig
in the still pending divorce action, as such questions appeared or were revealed as being
involved in the instant proceeding, upon the motion to vacate the decree, presented no open
and shut proposition, easy of correct determination. Assuming, for the moment, the question
of the legal sufficiency of the showing of extrinsic fraud to have been properly raised by
executors who have duly appeared and moved to strike, or taken other appropriate action,
plaintiff's attorneys could plausibly, perhaps reasonably, have argued that the fraud alleged as
to concealment by the deceased of his net worth did not become known to the plaintiff until
after the death of her divorced husband, and therefore she could not have revealed same to her
counsel or the court in time to have been of any avail in shaping her course as to whether to
proceed with the divorce action, or as to what, if any, alternative step she should take to
protect her just property and financial rights, in view of her husband's wealth being much
greater than he had represented; and that, therefore, the fraud was clearly extrinsic. Under
such circumstances, the situation would be quite different from that in Jorgensen v.
Jorgensen, Cal.App., 187 P.2d 915, cited in the answering brief of amicus curiae, in which
the plaintiff wife became aware of the fraud or mistake more than a month before the final
decree of divorce, and, hence, could have sought advice from her counsel, and taken such
steps for her protection as might be indicated.
And as to the allegations in the notice of motion to vacate, and the supporting affidavit,
in which latter it is stated by the plaintiff: "5.
65 Nev. 464, 478 (1948) Zeig v. Zeig
vacate, and the supporting affidavit, in which latter it is stated by the plaintiff: 5. That during
the time plaintiff was in Nevada establishing her residence for divorce, defendant caused her
to be visited and spoken to by numerous and sundry underworld characters who warned her
not to leave Nevada without a decree of divorce, and threatened her with bodily harm if she
did not procure her divorce, whilst on its face this would seem to charge intrinsic, rather
than extrinsic, fraud, plaintiff's counsel might plausibly have argued that such situation is not
comparable to Calvert v. Calvert, 61 Nev. 168, 122 P.2d 426, 427, in which the husband
accused of coercion was in Georgiatoo far away to exercise other than constructive
coercion; that in the instant case the situation alleged is very differentthat the persons
threatening plaintiff were underworld characters who visited and spoke to her threateningly,
in Nevada, thus being in a position to carry out their threats of bodily harm if she failed to
obtain a divorce, and that they were characters likely to retaliate viciously if she left Nevada
without a divorce, and that under such extreme circumstances the theory of the protection of
counsel of her own choosing and of the court, as in Calvert v. Calvert, supra, should not be
applied.
On the other hand, if defendant's executors were made parties, opposing counsel could
plausibly, and perhaps reasonably, contend that plaintiff, in her motion papers, should have
definitely alleged or stated when she became aware of the alleged concealment and/or
misrepresentations as to defendant's wealth, and have shown that same was after the divorce
decree was granted, in order to make out a case of extrinsic fraud; or defendant could, of
course, have met the situation factually, by stating by way of counter-affidavit that plaintiff
knew the facts as to defendant's wealth before she executed the agreement, and that nothing
was kept from her and no misrepresentation made.
65 Nev. 464, 479 (1948) Zeig v. Zeig
And as to the matter of coercion, counsel for the executors could either argue that the facts
alleged were not so different from those in Calvert v. Calvert, supra, as to preclude the
application of the rule enunciated in that decision, or, they could have met the situation
factually, if the actual facts justified, by categorically denying the statements of plaintiff as to
coercion, in paragraph 5 of her affidavit.
So much as to the element of extrinsic fraud, without intending to commit ourselves in the
least as to which of those possible contentions of opposing counsel is the more appealing.
Some consideration in detail is presented herein upon the question, due solely to our desire to
illustrate how exceedingly imprudent it is were it legally permissible, to predetermine, ex
parte, without either side knowing that it is to be determined, and ostensibly as an aid in
determining a preliminary and minor matter (whether to make the executors parties), a
question of both fact and law, for instance, the presence or absence of extrinsic fraud, a
question of the greatest importance in proceedings such as are now before us. The services
and assistance of counsel, both in developing the pleadings, or equivalent proceedings, and in
research, presentation and argument, are, it seems to us, indispensable instrumentalities
toward the attainment of justice, and neither time nor notice nor such services should be
dispensed with, except under circumstances of extreme necessitycertainly, not for the
purpose of avoiding what the lower court considered merely a useless act.
Equally difficult of correct determination was, and is, the question of the effect, in the
divorce action and upon the jurisdiction of the court, of the death of the defendant about two
weeks after the divorce was granted and the decree entered. This court has repeatedly held, in
effect, that until the end of the current term (in the early day cases following the common
law) the trial court's jurisdiction, validly acquired, continued for the purpose of such
correction, modification or vacation of the court's judgments and decrees as might be
shown to be required by justice or equity.
65 Nev. 464, 480 (1948) Zeig v. Zeig
court's jurisdiction, validly acquired, continued for the purpose of such correction,
modification or vacation of the court's judgments and decrees as might be shown to be
required by justice or equity. The favored expression in that connection was, remains in the
breast of the court. And when terms of court were abolished, and there was no longer any
period of time which could be properly designated until the end of the term, an equivalent
period of six months was provided by district court rule XLV, for the same purposes. A few
of the numerous Nevada cases in point are: Sweeney v. Sweeney, 42 Nev. 431, 179 P. 638;
Lauer et al. v. Eighth Judicial District Court, 62 Nev. 78, 140 P.2d 953; Schneider v. Second
Judicial District Court, 64 Nev. 26, 176 P.2d 797.
Lauer v. Eighth Judicial District Court, supra, was a case in which the defendant husband
had died subsequent to divorce, but much later thereafter than six months, both parties, at the
time of his death being nonresidents of Nevada, and no property being left by him within the
State of Nevada. The plaintiff in that case made a motion to set aside the decree of divorce,
upon the ground of extrinsic fraud, more than six months after the rendition of the decree.
The plaintiff, Mrs. Adams, claimed she had been coerced and intimidated by her husband, or
by his agents, attorneys and employees, into obtaining a divorce, and that she had been misled
into entering into a property settlement agreement, because of lack of knowledge of herself,
and of her attorneys outside New York, as to the New York law of dower. The facts were, in
many respects, similar to those in the instant case. The gist of this court's holding in that case
was that plaintiff could not, because of the time limitation of rule XLV, proceed by motion at
a time after six months from the date of the decree had elapsed, but pointed out that when
extrinsic fraud was sufficiently alleged the court would still have jurisdiction, in an
independent suit in equity, to purge its records of extrinsic fraud, if same were sufficiently
established.
65 Nev. 464, 481 (1948) Zeig v. Zeig
diction, in an independent suit in equity, to purge its records of extrinsic fraud, if same were
sufficiently established. It was not held in that case that the death of the defendant, or the
absence of property in the state, or nonresidence of the parties, or all of them together, had
operated to deprive the court of jurisdiction, but merely that the plaintiff could not, by reason
of the effect of district court rule XLV, proceed by motion at a time more than six months
after the entry of the judgment and decree.
The difficulty, from a legal standpoint, of correctly determining this question, in view of
the existing situation in the instant proceeding, is further manifested by the fact that the
authorities are, in many instances, in direct conflict. Amici curiae has presented and cited
cases applying what he has designated as the Midwest Rule. These cases are from
Wisconsin, Kansas and Tennessee. The principal cases applying that rule, which, in substance
is, that death of a divorce defendant deprived the court of further jurisdiction to modify or
vacate the judgment or decree of divorce, even for extrinsic fraud, unless there is property
within the state, or one of the parties, at least, was a resident when the death occurred, are:
Moyer v. Koontz, 103 Wis. 22, 79 N.W. 50, 74 Am.St.Rep. 837; Blair v. Blair, 96 Kan. 757,
153 P. 544; and Rose v. Rose, 176 Tenn. 680, 145 S.W.2d 773.
Leading cases applying the other rule (and cited by plaintiff), which, briefly stated, is that
jurisdiction of the court, once legally acquired, of the subject matter and of the parties, does
not cease upon the death of a defendant against whom a divorce is decreed, but, being an
action in rem, the court retains jurisdiction of the res, even though the death of one of the
parties has intervened, and, particularly, jurisdiction of its own records of the action and
proceedings, and to purge such records of extrinsic fraud, if sufficiently established and
timely presented, are: Britton v. Bryson, 216 Cal. 362, 14 P.2d 502, and McGuinness v.
Superior Court, 196 Cal.
65 Nev. 464, 482 (1948) Zeig v. Zeig
presented, are: Britton v. Bryson, 216 Cal. 362, 14 P.2d 502, and McGuinness v. Superior
Court, 196 Cal. 222, 237 P. 42, 40 A.L.R. 1110.
2. Sound judicial discretion clearly indicates the unwisdom and impropriety (even if the
executors in the instant case had been validly served and the court had acquired jurisdiction
of them before rendering its decision) of any indirect, collateral predetermination, in
considering a minor preliminary motion, of a question as important and of such far-reaching
consequences and effect as the difficult question just considered and concerning which such
eminent authorities are in direct conflict. The determination of this question was directly
involved in the proceedings upon the principal motion to vacate the divorce decree, and not
properly before the court, or submitted to the court, upon the motion to make the executors
parties, which latter was the only motion which, under the rules of orderly procedure, was
then before the court. Upon a question involving the difficulties such question involved, no
court should undertake to commit itself in advance of formal setting and opportunity for
preparation and argument, in order that, so far as humanly possible, the court may be aided by
the research and efforts of respective counsel. It was natural, perhaps, in view of the
confusion created by commingling the consideration of these two motions when only the
preliminary, minor motion to make the executors parties was before the court, for the learned
district judge, having undertaken to determine, collaterally and incidentally, the questions
necessarily determinative of the principal motion, to advance a step further and fall into the
error, still more serious, of finally determining, ex parte, the motion to vacate the decree,
before making the executors parties and before valid service upon them, and when they were
not before the court and could not be bound by any judgment rendered. Obviously, the court
could not then make any valid determination of the motion to vacate, for the further reason
that such motion had not been set for hearing, that its setting had not been requested,
that no hearing had been had thereon, and neither the plaintiff nor her attorneys, whose
motion it was, knew it was to be deemed submitted, or to be considered by the court.
65 Nev. 464, 483 (1948) Zeig v. Zeig
further reason that such motion had not been set for hearing, that its setting had not been
requested, that no hearing had been had thereon, and neither the plaintiff nor her attorneys,
whose motion it was, knew it was to be deemed submitted, or to be considered by the court. It
clearly appears that neither side had, properly speaking, their day in court, and that the court
was entirely without jurisdiction to make, and could not under such circumstances make, a
valid determination of the motion to vacate the judgment or decree of divorce, and its attempt
to do so was error. Consequently, the conclusion is inevitable that the district court erred in
denying plaintiff's motion to set aside and vacate the judgment and decree. Appellant's
(plaintiff's) assignment of error No. 2 is, therefore, well taken.
3, 4. Referring to assignment of error No. 1, which is, as above stated, that the trial court
erred in denying plaintiff's motion for entry of an order making Raymond Ochacher and Harry
Etra, executors of the Estate of Joseph Zeig, parties to the proceeding, the learned district
judge has stated in his decision that no proper service was made in this case. He then
discussed the service upon Marion Earl, Esq., attorney for the defendant in the divorce action,
and concluded, rightly we think, that, because of the death of Joseph Zeig such service was
ineffective; but did not comment or pass upon the validity of the service, in New York City,
upon Harry Etra, Esq., of the law firm of Etra & Etra. After a careful study of this phase of
the case, we are convinced that the New York service was also invalid. The service of notices
and papers is provided for by chapter 48 of the Nevada Civil Practice Act, such chapter
consisting of sections 425-433, same being N.C.L.1929, vol. 4, secs. 8914-8922, inclusive. It
is well settled that when the legislature has provided the method and manner of service, same
is exclusive. 39 Am.Jur. sec. 9, p. 237, and cases cited in footnote 4. Sec. 8916, vol. 4, N.C.L.
65 Nev. 464, 484 (1948) Zeig v. Zeig
1929, provides that the service may be personal, by delivery to the party or his attorney, on
whom the service is required to be made, or it may be as follows:
1. If upon an attorney, it may be made during his absence from his office by leaving the
notice or other papers with his clerk therein, * * *.
2. If upon a party, it may be made by leaving the notice or other paper at his residence,
between the hours of eight in the morning and six in the evening, with some person not less
than eighteen years of age; * * *.
5. When the notice is one required in pending litigation, it is obvious that the foregoing
provisions have reference only to service within the territorial jurisdiction of the court in
which the litigation is pending. This is so for several reasons. The provisions relative to
serving the attorney manifestly mean the local or resident attorney who is handling the
litigation, and who is in a position to act therein promptly and with due authority. Even if a
nonresident attorney is employed in the particular litigation, he is, by statute in this state and
in most states, required to have a resident attorney associated with him in order to make a
valid appearance. Furthermore, the provisions of our statute above quoted, N.C.L. 1929, vol.
4, sec. 8916, providing, alternatively, for service upon the party by leaving at his residence or
place of abode in his absence, under certain specified conditions, and for service upon the
attorney by leaving at his office in his absence, under conditions prescribed in the statute, thus
providing a method of constructive service to be followed if serving within the state, would,
necessarily, have to be discarded as to service outside the state, for two reasons:
6. 1. To require detailed provisions such as these to be observed in making service in a
foreign state would be so confusing and cumbersome to those attempting to serve in the
foreign jurisdiction in which the application of such provisions were attempted that same
would be highly impractical. Officers or persons making constructive service, in a particular
state, of papers or process received for that purpose from a sister state or foreign country
would find it practically impossible efficiently to perform the duties that a spirit of comity
prompts them to undertake, if burdened with the duty of acquiring and applying adequate
knowledge of the detailed provisions for service of the many sister states or countries
which such officers serve.
65 Nev. 464, 485 (1948) Zeig v. Zeig
structive service, in a particular state, of papers or process received for that purpose from a
sister state or foreign country would find it practically impossible efficiently to perform the
duties that a spirit of comity prompts them to undertake, if burdened with the duty of
acquiring and applying adequate knowledge of the detailed provisions for service of the many
sister states or countries which such officers serve. In large cities, particularly, such officers
would be seriously confused and handicapped if such detailed statutory provisions of
constructive service, provided for in other states or countries, were required to be followed in
making constructive service. Whether to provide for such outside service or not is, of course,
a matter of public policy for the legislature to determine, but common sense and matters of
practicability may be considered in arriving at what the legislative intention was. It cannot
reasonably be believed that the Nevada legislature, in enacting such provisions, intended
them to be employed in making service outside the state.
7. 2. Service by leaving at one's office or place of abode in his absence, under conditions
prescribed by statute, is generally deemed constructive service. See Bicknell v. Herbert, 20
Haw. 132, Ann.Cas. 1913A, 1186, affirmed in 233 U.S. 70, 34 S.Ct. 562, 58 L.Ed. 854; 42
Am.Jur. sec. 51, p. 42. To construe N.C.L.1929, vol. 4, sec. 8916, to authorize that method of
service outside the state would be to authorize constructive service upon constructive service,
or, at least, service doubly constructive. By analogy, reference may be made to the provisions
of the statute, N.C.L.1929, vol. 4, sec. 8583, relating to constructive service of summons in
lieu of publication, if publication has been ordered. Such provision clearly provides that the
equivalent service out of the state shall be personal, and provides for no alternative or
constructive method, such as leaving at defendant's place of abode. It is not to be lightly
concluded that the legislature, in the case of service of notices and papers outside the state,
would have so far departed from the usual custom and the provisions of similar statutes
as to authorize, in serving outside the state, a manner or method of service which would
make same, not only doubly constructive, but dependent for its validity upon the detailed
provisions of the statutes of the state from which the papers or process were forwarded
for service.
65 Nev. 464, 486 (1948) Zeig v. Zeig
papers outside the state, would have so far departed from the usual custom and the provisions
of similar statutes as to authorize, in serving outside the state, a manner or method of service
which would make same, not only doubly constructive, but dependent for its validity upon the
detailed provisions of the statutes of the state from which the papers or process were
forwarded for service.
8. Another reason why such section 8916 was obviously not intended by the legislature to
authorize service outside the state is the absence of any provision for publication. This court
has held that in order for publication to be effective it must be authorized by statute. State ex
rel. Sparks v. Wildes, 37 Nev. 55, 56, 65, 139 P. 505, 142 P. 627. If the legislature had
intended, by sec. 8916, N.C.L. 1929, vol. 4, to authorize service without the state, we believe
proper deference to outside sovereignties would have impelled a provision for publication,
which would have required, as a foundation, an affidavit for publication stating facts showing
the necessity, because of nonresidence, departure from the state, etc., of such outside service.
42 Am.Jur. pp. 53, 54, citing Piggly-Wiggly Georgia Co. v. May Investing Corp., 189 Ga.
477, 6 S.E.2d 579, 126 A.L.R. 1465.
So, from what our statute, section 8916, contains, as well as from what is omitted from its
provisions, it is sufficiently indicated that such section was not intended by the legislature to
authorize the service of notices and papers outside the state.
9. When we consider, in connection with such indicia, the proper application of the
fundamental principle of statutory construction that statutes in derogation of the common law
should be strictly construed (50 Am. Jur., sec. 402, p. 425), and constructive service being in
derogation of the common law, and there being no expression whatever in the statute
indicating that it is intended to authorize service outside the state, it is clear that by section
8916 the legislature of the State of Nevada did not intend to authorize personal service
outside the state, either upon a party or upon his attorney.
65 Nev. 464, 487 (1948) Zeig v. Zeig
Nevada did not intend to authorize personal service outside the state, either upon a party or
upon his attorney.
We are not so certain, however, as to sections 8918-8920, N.C.L.1929, vol. 4, authorizing
service by telegraph or by mail. As plaintiff's attorneys have pointed out, section 8920, as
amended in 1941, Stats. 1941, p. 6, provides that, * * * if within a given number of days
after such service a right may be exercised, or an act is to be done by the adverse party, the
time within which such right may be exercised or act be done, is extended one day for every
two hundred fifty miles of distance between the place of deposit and the place of address.
Such extension, however, not to exceed twenty days in all. It seems only fair to say that the
language of this section as amended does indicate, by implication, that the legislature
contemplated service by mail beyond the boundaries of this state. This question is not before
us, however, in the instant proceeding (except, generally, as to the construction of said
chapter 48), as the service upon Mr. Etra was not by mail, but upon him personally, in New
York. Hence, we express no opinion upon it, nor do we indicate what our construction of
section 8920 would be if the question of whether or not it authorizes service by mail outside
the state were before us for decision.
For the reasons stated and indicated, we are of the opinion that the attempted service, at
No. 527 Fifth Avenue, in the county, city and State of New York, on the 18th day of
November 1947, of the notice of motion for the entry of an order making Raymond Ochacher
and Harry Etra, executors of the estate of Joseph Zeig, parties to the proceeding, and of the
affidavit of Harold M. Morse, Esq. in support thereof, upon Harry Etra, Esq., of the law firm
of Etra & Etra, by leaving copies thereof personally with the said Harry Etra, was
unauthorized by any law or statute of this state then in force and effect, and was entirely void.
65 Nev. 464, 488 (1948) Zeig v. Zeig
10-13. But was any notice, or service of notice, necessary in the matter of the motion, in
the instant proceeding, to substitute Raymond Ochacher and Harry Etra, as executors of the
estate of Joseph Zeig, deceased, in place and stead of the deceased, in the matter of the
proceedings upon plaintiff's motion to vacate the said divorce judgment and decree? Our
statute, section 62 of chapter 6 of the Nevada Civil Practice Act, being N.C.L.1929, vol. 4,
sec. 8561, was taken from, and is essentially the same as, section 385 of the California Code
of Civil Procedure, which has been repeatedly construed by the courts of California to
authorize such substitution upon an ex parte motion. The notice and service required is not of
the motion to substitute, but of the substitution or the order therefor, after same has occurred.
The motion is authorized in an action in which the cause of action survives, as in an action or
proceeding in rem, and is granted almost as a matter of course, and without any extensive
proceeding. All that has to be shown is the demise of the deceased and the appointment and
qualification of his personal representative, or representatives (executor or executors,
administrator or administrators). The court having jurisdiction of the subject matter of the
action and of the person of the deceased prior to and at the time of his demise merely
substitutes his personal representative, so that the action may proceed to the same extent that
it could have been carried on against the deceased party defendant. Valid service, of course,
must be obtained after substitution, not only of the order substituting the personal
representative, but also of process in the action or proceeding. In the instant case, this would
be service of the notice of motion to vacate the divorce judgment and decree, and of the
supporting affidavit, or affidavits.
The proper doctrine, as we view it, is clearly stated in 1 Cal.Jur., secs. 37, 38, pp. 66-68.
We quote the following from said sec. 37, p. 66: "Sec. 37. Method of Substitution.
65 Nev. 464, 489 (1948) Zeig v. Zeig
Sec. 37. Method of Substitution.The practice is well settled, in case of the death or
disability of a party, for the court to allow the substitution of the personal representative upon
suggestion of the party's death and an ex parte motion showing the appointment and
qualification of the executor or administrator. This has been the uniform practice in this state
from its organization and no inconvenience or injustice seems to have resulted. * * *
The following cases are cited, in footnotes 5 and 6, in support of the text: Campbell v.
West, 93 Cal. 653, 29 P. 219, 645; Kittle v. Bellegarde, 86 Cal. 556, 25 P. 55; Taylor v.
Western Pac. R. Co., 45 Cal. 323; Ex parte Connaway, 178 U.S. 421, 20 S.Ct. 951, 44 L.Ed.
1134, see, also, Rose's U. S. Notes.
14. Our statute having been adopted from the like provision in the California Code of
Civil Procedure, we shall follow the usual rule that the Nevada legislature, in adopting the
statute, is presumed to have intended to adopt the same as construed by the highest court of
California.
We believe, therefore, that the district court should, notwithstanding the absence of valid
service upon the executors of the estate of Joseph Zeig, deceased, of the notice of motion to
substitute, and of the accompanying affidavit, have disregarded altogether the matter of the
failure or defect of service, and treated the attempted service merely as surplusage, and should
have granted the motion of plaintiff and ordered the substitution of the executors, Ochacher
and Etra. Appellant's (plaintiff's) assignment of error No. 1 was, therefore, well taken.
It necessarily follows that the order of the district court denying plaintiff's motion for the
entry of an order making Raymond Ochacher and Harry Etra, executors of the estate of
Joseph Zeig, parties to said proceeding, and that court's order denying plaintiff's motion to set
aside and vacate the said judgment and decree of divorce, are, and each of them is,
reversed, and the cause remanded, and the district court is hereby ordered to make and
enter its order substituting said executors for the deceased in the instant proceeding, and
said district court is further ordered to place such proceeding upon its calendar upon the
request of the attorneys for plaintiff, if and when they have accomplished service upon
said executors of such order of substitution, and of such notice of motion to set aside and
vacate the judgment and decree of divorce and the supporting affidavit, and to provide
for such further proceedings in accordance herewith, as are appropriate in the premises.
65 Nev. 464, 490 (1948) Zeig v. Zeig
divorce, are, and each of them is, reversed, and the cause remanded, and the district court is
hereby ordered to make and enter its order substituting said executors for the deceased in the
instant proceeding, and said district court is further ordered to place such proceeding upon its
calendar upon the request of the attorneys for plaintiff, if and when they have accomplished
service upon said executors of such order of substitution, and of such notice of motion to set
aside and vacate the judgment and decree of divorce and the supporting affidavit, and to
provide for such further proceedings in accordance herewith, as are appropriate in the
premises.
____________
65 Nev. 490, 490 (1948) Clark County v. State
THE COUNTY OF CLARK, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 3486
October 29, 1948. 199 P.2d 137.
1. States.
Act providing that any county in which is situated any water storage and hydroelectric project of the
United States, may commence an action against the state and have determined whether such county is
entitled to any of the money derived from the project and paid to the state by the United States, was a
waiver by the state of its immunity to suit and permitted county to sue in district court for declaration of its
rights in money paid by the United States to the state. Stats. 1943, c. 181; N.C.L.1929, sec. 9440 et seq.;
Boulder Canyon Adjustment Act, 43 U.S.C.A. sec. 618 et seq.
2. Declaratory Judgment.
Where district court in sustaining the state's general demurrer to county's complaint in action for a
declaration of county's rights in money paid by the United States to the state under the Boulder Canyon
Adjustment Act, construed the act and concluded that county did not have rights thereunder claimed by the
county, there was a declaration of the rights of the parties in accordance with the Declaratory Judgment
Act, though judgment rendered was simply one of dismissal. Stats. 1943, c. 181; N.C.L.1929, sec. 9440 et
seq.; Boulder Canyon Adjustment Act, 43 U.S.C.A. sec. 618 et seq.
A party on appeal cannot assume an attitude or adopt a theory inconsistent with or different from that
taken at the hearing below.
4. United States.
Payments by the United States to the state under Boulder Canyon Project Adjustment Act, providing in
effect that the United States would pay $300,000 a year to the state for a certain period, with condition
subsequent that if certain taxes were levied and collected, annual payments by United States would be
reduced in amount of such taxes, were a gift or grant to the state, and Clark County, where part of the
Boulder Dam project was located, was not entitled to portions of such payment, in absence of any
agreement by the state for itself, for Clark County, or for both that no taxes would be levied on the Boulder
Dam project. Stats. 1943, c. 181; Boulder Canyon Adjustment Act, 43 U.S.C.A. sec. 618 et seq.
Appeal from First Judicial District Court, Ormsby County; Clark J. Guild, Judge.
Action by the County of Clark against the State of Nevada for a declaration of the county's
rights in certain sums of money paid by the United States to the State of Nevada under the
Boulder Canyon Project Adjustment Act. From a judgment of dismissal, the plaintiff appeals.
Judgment affirmed.
Robert E. Jones, District Attorney of Clark County, of Las Vegas, and Thatcher,
Woodburn & Forman, of Reno, for Appellant.
Alan Bible, Attorney General, W. T. Mathews, Special Assistant Attorney General, and
George P. Annand, and Homer Mooney, Deputy Attorneys General, for Respondent.
OPINION
Per Curiam:
Appellant county filed action against the State of Nevada on November 24, 1944 for a
declaration of its rights in certain sums of money paid by the United States to the State of
Nevada under the "Boulder Canyon Project Adjustment Act" of the United States Congress
approved July 19, 1940, 43 U.S.C.A. sec.
States to the State of Nevada under the Boulder Canyon Project Adjustment Act of the
United States Congress approved July 19, 1940, 43 U.S.C.A. sec. 618 et seq.
The allegations of the complaint material to this appeal are as follows:
I. The plaintiff, the County of Clark, is one of the counties of the State of Nevada, created
and existing under and by virtue of an Act of the Legislature of the State of Nevada * * *
That said County of Clark is a lawful taxing political subdivision of the State of Nevada.
II. That this action is commenced and maintained by the County of Clark pursuant to
direction and lawful order of the County Commissioners of the County of Clark, and is
commenced and maintained against the State of Nevada under and pursuant to an Act of the
Legislature of the State of Nevada entitled An Act providing that this state may be sued by
any county herein, in which a water storage and hydroelectric project owned by the United
States is situated, for the purpose of determining whether or not such county is entitled to any
part of money derived from said project and paid by the United States to this state pursuant to
any Act of Congress, making an appropriation for the defense of any such suit, and other
matters properly relating thereto,' approved March 24, 1943.
III. That the Colorado River is a large, natural, interstate stream having its principal
headwaters in the state of Wyoming, Colorado and Utah, and flowing in a general
southwesterly direction through the states of Wyoming, Colorado and Utah and along a
common boundary of the States of Arizona and Nevada and along a common boundary of
Arizona and California, and thence through the Republic of Mexico and emptying into the
Gulf of California; also one of the large tributaries of said Colorado River although having its
headwaters in the State of Colorado flows through the State of New Mexico for a very
considerable distance before its confluence with the Colorado River.
its confluence with the Colorado River. That all of the Colorado River within the State of
Nevada from the Arizona line on the north to the California line on the south is a navigable
stream for the purpose of fixing ownership of the banks and bed thereof and that title to the
land below the high water mark thereof is held by the State of Nevada insofar as they lie
within said state. That all of the Colorado River within the State of Nevada lies and is situate
in the County of Clark.
IV. That said Colorado River, as it flows through the State of Nevada and Clark County,
is a great, natural resource of inestimable value to the State and to said county; that as it flows
through said State and County, it is bounded both upon the Nevada and Arizona sides by
walls of great height and of such geological structure as made feasible the erection in and
across said stream of a dam of great height at and in Black Canyon; that the topography of the
county back of said dam and damsite at Black Canyon is such that tremendous quantities of
water, exceeding 20,000,000 acre-feet, can be and are backed up and stored in a great
reservoir capable of providing storage water for the irrigation of approximately 100,000 acres
of land in the State of Nevada, approximately 1,000,000 acres of land in the State of Arizona,
and several times as much in the southern part of the State of California, and in addition
thereto provide water for domestic and industrial purposes to the constantly and rapidly
growing needs of the city and county of Los Angeles and the surrounding territory.
The great height of the dam at Black Canyon, feasible because of the height of the canyon
walls, the great volume of stored water created by the dam and the resultant fall of water have
made possible the generation at Boulder Dam with the generating facilities heretofore
installed of as much as six billion kilowatt hours of electric energy, during an annual period
of operation, which electric energy to a very large extent, has been and is transmitted to the
city and county of Los Angeles and Southern California area for domestic, industrial, and
municipal uses at very low costs.
and is transmitted to the city and county of Los Angeles and Southern California area for
domestic, industrial, and municipal uses at very low costs. That all of these matters were
known to the Secretary of the Interior and to Congress at the time of the selection of Black
Canyon as a site for said dam and said site was so selected by the Secretary of the Interior and
by Congress with the advice of the engineering staff of the Bureau of Reclamation,
experienced in such matters.
V. That thereafter and on December 21, 1928, the Congress of the United States for the
purpose of controlling the floods, improving navigation, and regulating the flow of the
Colorado River, providing for storage and for the delivery of stored water thereof, for the
reclamation of public lands, and other beneficial uses exclusively within the United States,
and for the generation of electric energy as a means of making the project authorized thereby,
commonly known as the Boulder Canyon Project, self-supporting and financially solvent, and
for various other purposes, enacted what is known as the Boulder Canyon Project Act,' and
therein and thereby provided for the construction of a dam in the Colorado River at Black
Canyon in the State of Nevada and Arizona. * * *
That said Act was subsequently amended by the adoption of an Act of Congress known
as the Boulder Canyon Project Adjustment Act' approved July 19, 1940. That each and all of
the conditions precedent to the taking effect of said Boulder Canyon Project Act' and said
Boulder Canyon Project Adjustment Act' have occurred, and said Acts, including the
retroactive provisions thereof, have been in full force and effect ever since June 1, 1937.
VI. That in recognition of the great value of this natural resource to the State of Nevada
and to Clark County, the Congress of the United States by the Boulder Canyon Project Act'
enacted that 18-3/4% of certain excess revenue, as in said Act defined, should be paid to
the State of Nevada, which provision was subsequently amended to provide that in lieu
and in commutation of such percentage payment there should be paid to the State of
Nevada annually the sum of $300,000., subject to certain conditions and provisions as
hereinafter alleged; that in making provision for such payments to the State of Nevada, it
was the intent of Congress that said payments were in lieu of taxes and to compensate
the State of Nevada and its lawful taxing political subdivisions for loss in revenue which
would be occasioned to the State and its lawful taxing political subdivisions by reason of
the ownership of said project by the United States.
certain excess revenue, as in said Act defined, should be paid to the State of Nevada, which
provision was subsequently amended to provide that in lieu and in commutation of such
percentage payment there should be paid to the State of Nevada annually the sum of
$300,000., subject to certain conditions and provisions as hereinafter alleged; that in making
provision for such payments to the State of Nevada, it was the intent of Congress that said
payments were in lieu of taxes and to compensate the State of Nevada and its lawful taxing
political subdivisions for loss in revenue which would be occasioned to the State and its
lawful taxing political subdivisions by reason of the ownership of said project by the United
States.
VII. That in and by said Acts of Congress, the Secretary of the Treasury was authorized to
advance moneys to the Colorado River Dam Fund' to be repaid out of revenue, provided,
however, that before any money be appropriated to the construction of the dam or power plant
or any construction work done or contracted for the Secretary of the Interior should make
provision for revenues by contract for the sale and delivery of electric energy or falling water
for the generation of electric energy adequate in his judgment to insure the payment of all
expenses of operation and the maintenance of said works incurred by the United States and
the repayment within fifty years from the date of the completion of said works of all amounts
advanced to the fund, with interest thereon, as made reimbursable under the provisions of
said Act. That all of said conditions and duties so imposed upon the Secretary of the Interior
have been performed.
That in and by said Boulder Canyon Project Act,' it was provided that if during the
period of amortization of said advances, the Secretary of the Interior should receive revenue
in excess of the amount necessary to meet the periodical payments to the United States, then
after the settlement of such periodical payment he should pay to the State of Nevada
1S-3J4% of such excess revenue.
after the settlement of such periodical payment he should pay to the State of Nevada 18-3/4%
of such excess revenue.
That subsequently and under and by virtue of the provisions of the Boulder Canyon
Project Adjustment Act,' the Secretary of the Interior was authorized and directed to
promulgate charges for a basis of computation thereof for electric energy generated at the
Boulder Dam during the period beginning June 1, 1937 and ending May 31, 1987, and from
the funds so received, together with other net revenue from the project, after meeting certain
charges and costs of operation and maintenance and repayment to the Treasury, with interest,
of advances to the Colorado River Dam Fund' for the project made prior to June 1, 1937 and
such portion of advances made on and after said June 1, 1937, to provide the sum of
$600,000. for each of the years beginning with the year of operation commencing June 1,
1937 and ending May 31, 1938 and continuing annually thereafter until and including the year
of operation ending May 31, 1987, of which said sum $300,000. was required to be paid to
the State of Nevada for each such year of operation aforesaid and a like sum to the State of
Arizona, such payments to be made from revenue received from the Colorado River Dam
Fund.' That said payments so provided to be made to the State of Nevada and to the State of
Arizona were in commutation of the payments provided to be made to the State of Nevada
and Arizona under the provisions of the Boulder Canyon Project Act' and in commutation
and in lieu of the 18-3/4 of the excess revenue provided to be made to said states respectively
under the provisions of said Boulder Canyon Project Act.'
VIII. That under and pursuant to said Boulder Canyon Project Act,' the Secretary of the
Interior of the United States erected a dam at Black Canyon in the Colorado River extending
from Clark County on the Nevada side into the State of Arizona, and thereby created a
storage reservoir of a capacity of not less than 20,000,000 acre-feet of water, a very large
amount of said water storage being situated in the County of Clark, and in connection
therewith erected and installed, both in the State of Arizona and in Clark County, in the
State of Nevada, a large hydroelectric project capable of and which ever since June 1,
1937 has been generating and delivering electric energy adequate, as sold under
agreements between the Secretary of the Interior and the purchasers and allottees, to
insure payments of all expenses of operation and maintenance of said project incurred by
the United States and the repayment within fifty years from the date of the completion of
said works of all amounts advanced to the fund under said Acts of Congress, with interest
thereon, and to provide funds necessary to be paid into the 'Colorado River Dam Fund'
and to pay to each of the States of Nevada and Arizona the sum of $300,000. annually as
in said 'Boulder Canyon Adjustment Act' provided.
created a storage reservoir of a capacity of not less than 20,000,000 acre-feet of water, a very
large amount of said water storage being situated in the County of Clark, and in connection
therewith erected and installed, both in the State of Arizona and in Clark County, in the State
of Nevada, a large hydroelectric project capable of and which ever since June 1, 1937 has
been generating and delivering electric energy adequate, as sold under agreements between
the Secretary of the Interior and the purchasers and allottees, to insure payments of all
expenses of operation and maintenance of said project incurred by the United States and the
repayment within fifty years from the date of the completion of said works of all amounts
advanced to the fund under said Acts of Congress, with interest thereon, and to provide funds
necessary to be paid into the Colorado River Dam Fund' and to pay to each of the States of
Nevada and Arizona the sum of $300,000. annually as in said Boulder Canyon Adjustment
Act' provided.
IX. That it was the intent of Congress, in making provision for said payment to the State
of Nevada of $300,000. annually on and after the year of operation commencing June 1, 1937
and ending May 31, 1938 and until the year of operation ending May 31, 1987, that said
payments were in lieu of taxes and to compensate the State of Nevada and its political
subdivisions and lawful taxing political subdivision in which said project was situate for the
loss in revenue which would be occasioned to the State, its political subdivisions and lawful
taxing political subdivisions, by reason of the ownership of said project by the United States;
that in and by said Act it was specifically provided that should the State of Nevada or its
lawful taxing political subdivisions levy and collect by and under authority of the State of
Nevada or by any lawful taxing political subdivision thereof taxes upon
(i) the project as defined by said Act of Congress;
(ii) the electrical energy generated at Boulder Dam by means of facilities, machinery, or
equipment both owned and operated by the United States, or owned by the United States
and operated under contract with the United States;
by means of facilities, machinery, or equipment both owned and operated by the United
States, or owned by the United States and operated under contract with the United States;
(iii) the privilege of generating or transforming such electrical energy or of use of such
facilities, machinery, or equipment or of falling water for such generation or transforming; or
(iv) the transmission or control of such electrical energy so generated or transformed (as
distinguished from the transmission lines and other physical properties used for such
transmission or control) or the use of such transmission lines or other physical properties for
such transmission or control;
that payment to the State of Nevada shall be reduced by an amount equivalent to such taxes.
It was further provided in said Act that in the event payment to the State of Nevada
should be reduced by reason of the collection of taxes as aforesaid, that adjustment should be
made from time to time with each allottee which should have paid any such taxes by credits
or otherwise for that proportion of the amount of such reductions which the amount of the
payment of such taxes by allottees bears to the total amount of such taxes collected.
X. That since the year 1937, neither the State of Nevada nor the County of Clark, a lawful
taxing political subdivision thereof, has levied or collected any taxes or imposed any license
fees upon (i) the project as defined by said Acts of Congress; (ii) the electrical energy
generated at Boulder Dam by means of facilities, machinery, or equipment both owned and
operated by the United States, or owned by the United States and operated under contract
with the United States, (iii) the privilege of generating or transforming such electrical energy
or of use of such facilities, machinery, or equipment or of falling water for such generation or
transforming; or (iv) the transmission or control of such electrical energy so generated or
transformed {as distinguished from the transmission lines and other physical properties
for such transmission or control) or the use of such transmission lines or other physical
properties for such transmission or control.
electrical energy so generated or transformed (as distinguished from the transmission lines
and other physical properties for such transmission or control) or the use of such transmission
lines or other physical properties for such transmission or control.
That for each operating year, commencing June 1, 1937, and ending May 31, 1938, and
thereafter up to and including the operating year ending May 31, 1943, the Secretary of the
Interior has paid to the State Treasurer and the State of Nevada the sum of $300,000. and an
aggregate of $1,800,000. All of which has been retained by said State Treasurer and the State
of Nevada save and except the sum of $240,000. * * *
That by reason of the deferment of Clark County to levy and collect or impose taxes
against (i) the project; or (ii) the electrical energy generated at Boulder Dam by means of
facilities, machinery, or equipment both owned and operated by the United States, or owned
by the United States and operated under contract with the United States; or (iii) the privilege
of generating or transforming such electrical energy or of use of such facilities, machinery, or
equipment or of falling water for such generation or transforming; or (iv) the transmission or
control of such electrical energy so generated or transformed of such facilities, machinery, or
equipment or of falling water for such generation or transforming; or (v) the transmission or
control of such electrical energy so generated or transformed (as distinguished from the
transmission lines and other physical properties for such transmission or control) or the use of
such transmission lines or other physical properties for such transmission or control; and
because of the retention by the State of Nevada of all of said sums so paid by the Secretary of
the Interior to the State Treasurer of Nevada, the County of Clark has lost and been deprived
of large amounts of revenue and a share and part of the money that has been derived from
said project by virtue of the ownership thereof by the United States and paid to the State of
Nevada by the Secretary of the Interior for the United States pursuant to the Acts of
Congress hereinbefore referred to and described.
States and paid to the State of Nevada by the Secretary of the Interior for the United States
pursuant to the Acts of Congress hereinbefore referred to and described.
XI. That for the year 1938 the tax rate of the State of Nevada levied and collected against
all property, real and personal, in said state, including the net proceeds of mines, except
properties exempt by law from taxation, was $.73, and the county tax rate of the County of
Clark levied and collected against all property, real and personal, in said county, including the
net proceeds of mines, except property exempt by law from taxation was $1.60; similarly, for
the years 1939 to 1944, both inclusive, the tax rates, respectively, of the State of Nevada and
the County of Clark were as follows:
State County
1939 $.58 $1.58
1940 .58 1.82
1941 .695 1.625
1942 .695 1.405
1943 .58 1.10
1944 .58 1.77
That the plaintiff is entitled to that proportion of each of the annual payments of
$300,000. so made to the State Treasurer of the State of Nevada by the Secretary of the
Interior under and pursuant to the Boulder Canyon Project Adjustment Act' as its county tax
rate in each year bears to the aggregate of the state and county tax rate for said year. * * *
Defendant demurred to the complaint upon the grounds (1) that the court has no
jurisdiction of the subject of the action, and (2) that the complaint does not state facts
sufficient to constitute a cause of action. The lower court sustained the demurrer on both
grounds in a written opinion holding that the plaintiff was not entitled to any of the money so
paid to the State of Nevada. Upon the failure of the plaintiff to amend its complaint or
otherwise to plead, the court on motion of defendant entered its judgment of dismissal
from which this appeal is taken.
of defendant entered its judgment of dismissal from which this appeal is taken.
This action is brought pursuant to an act of the Nevada legislature approved March 24,
1943, 1943 Statutes of Nevada, p. 260, which provides: Any county in this state in which is
situated any water storage and hydroelectric project owned by the United States, may
commence an action against the State of Nevada, and have determined by such action,
whether or not such county is entitled to any part of money that may have been derived from
such project and paid to this state by the United States, pursuant to any act of Congress.
1. Appellant earnestly contends that independently of the court's ruling on the general
demurrer it was reversible error to sustain the demurrer on the ground of lack of jurisdiction
in view of the foregoing jurisdictional act. By the act the state waived its immunity to suit and
permitted the county to sue, and likewise definitely vested in the district court jurisdiction of
the subject matter. Had the court dismissed the action solely upon the ground of lack of
jurisdiction or had it sustained the demurrer solely upon this ground, the contention of
appellant would be sound. However, it is clear from a reading of the opinion of the learned
district judge that his conclusion in this respect was simply that to sustain appellant's
contention that the intent of Congress in passing the Boulder Canyon Project Act, 43
U.S.C.A. sec. 617 et seq., and the Boulder Dam Adjustment Act was that the moneys payable
to the state were in lieu of taxes that could have been levied had the project been privately
owned and constructed, the court would have to write back into the act words that had been
deliberately stricken by Congress. The learned district judge further concluded that to do this
would be to indulge in judicial legislation and that the court had no jurisdiction to legislate.
It was in this sense that the district court determined that it had no "jurisdiction."
sense that the district court determined that it had no jurisdiction. Perhaps a more happy
choice of language could have been used in carrying this thought into judgment.
2. In like manner we are able to dispose without too great difficulty of the contention that
inasmuch as the state's jurisdictional act recognized a justiciable controversy, the plaintiff
county had the statutory right to have the court determine by declaratory judgment for or
against plaintiff's contention as to whether or not it was entitled to any of the money paid or
to be paid by the United States to the State of Nevada under the Adjustment Act. School
District No. 19 v. Sheridan County, 130 Kan. 421, 286 P. 230. Rehearing denied 130 Kan.
749, 288 P. 733. If the facts were in dispute this would be true and we might in such event be
inclined to reverse the judgment entered in favor of defendant upon the sustaining of its
general demurrer and remand the cause to the district court with instructions to overrule the
demurrer on both grounds and to proceed to find the facts, adjudging therefrom whether or
not the plaintiff was entitled to receive any of the money paid or to be paid to the defendant
state under the Adjustment Act. However, not only has the plaintiff county refused to amend
its complaint, but also, as stated by counsel for appellant during the course of his oral
argument, the facts are not in dispute. It therefore appears that the plaintiff has had, under the
theory presented by it in the district court, a full and fair determination of its rights by such
court (which is a further conclusive reply to its assignment of error for sustaining the
demurrer for want of jurisdiction) after a full consideration of the undisputed facts alleged in
the complaint. The pertinent facts, as recited in the complaint, appear in the beginning of this
opinion, from which it appears that the gravamen thereof is the allegation that in making
provision for such payments to the State of Nevada, it was the intent of Congress that said
payments were in lieu of taxes to compensate the State of Nevada and its lawful taxing
political subdivisions for loss in revenue which would be occasioned to the state and its
lawful taxing political subdivisions by reason of the ownership of said project by the
United States."
the State of Nevada, it was the intent of Congress that said payments were in lieu of taxes to
compensate the State of Nevada and its lawful taxing political subdivisions for loss in
revenue which would be occasioned to the state and its lawful taxing political subdivisions by
reason of the ownership of said project by the United States. This is emphasized by
successive repetitions of the same allegation. It is clear, therefore, that in refusing to adopt the
plaintiff's construction of the Adjustment Act and in refusing to read into the act the intent of
Congress as contended for by the plaintiff and, in consequence of such refusal, determining
that the complaint did not state a cause of action in the sense that relief could not be given to
plaintiff by a declaratory judgment, the judgment entered in favor of defendant, after plaintiff
elected not to amend, was in effect a declaration of the rights of the parties. It is true that the
judgment appearing in the record simply recites the court's decision, ruling and order
sustaining the demurrer on both grounds, the refusal of the plaintiff to amend, and its election
to stand upon its complaint, and orders, adjudges and decrees that the action be dismissed. It
is true also that our declaratory judgment act of March 4, 1929, Stats.1929, page 28, N.C.L.
sec. 9440 et seq., requires: The declaration may be either affirmative or negative in form and
effect. The statute further provides, however, that Any person * * * whose rights * * * are
affected by a statute * * * may have determined any question of construction * * * arising
under the * * * statute * * * and obtain a declaration of rights, status or other legal relations
thereunder. In sustaining the general demurrer the district court construed the federal statute
in question and concluded that the plaintiff county did not have the rights claimed thereunder,
and although the judgment is simply one of dismissal the record on appeal places before us
the written opinion and decision of the learned district judge comprising some thirty pages
which deals with many problems including the plaintiff's asserted construction and
interpretation of the act in question.
judge comprising some thirty pages which deals with many problems including the plaintiff's
asserted construction and interpretation of the act in question. We thus have before us what
amounts to a declaration of the rights of the parties. In the recent opinion of this court in
Kress v. Corey, 65 Nev. 1, 189 P.2d 352, dealing at length with declaratory judgments, we
noted that appellant and respondents had both discussed at length in their briefs the question
of the propriety of the action of the lower court in dismissing the amended complaint upon
sustaining the general and special demurrers thereto, but there we found it unnecessary to
pass upon the points raised in view of the fact that we held the amended complaint to state a
cause of action not merely for a declaratory judgment but also for the affirmative relief prayed
for. In view of the nature of the record before us, we cannot see in what manner appellant has
been prejudiced by the court's failure to enter a more formal judgment declaring the rights of
the parties, although it may well be that in some cases a mere dismissal of the action without
formal declaration of such rights might prove to be reversible error. Further discussion of this
preliminary point does not appear to be warranted.
As hereinbefore noted plaintiff based its claim to part of the money paid to the State of
Nevada by the United States under the Adjustment Act, upon the theory that it was the
intent of Congress that said payments were in lieu of taxes and to compensate the State of
Nevada and its lawful taxing political subdivisions for loss in revenue which would be
occasioned * * * by reason of the ownership of said project by the United States. Argument
in the lower court was based on such theory alone. On this appeal, however, plaintiff has
changed its theory and states in the reply brief that the payments provided by the Adjustment
Act are not and never were intended to be made to the State of Nevada in lieu of taxes which
could have been levied on the project by the state if it were privately owned."
the project by the state if it were privately owned. Plaintiff goes on to say: It is admitted by
appellant that the theory set forth in the brief filed in this Court is not the same advocated
before the lower court. This admitted change in theory is due to the fact that the attorney in
charge of the case in the lower court is now deceased and that the case has come into the
hands of other counsel who is not in agreement with the theory advocated in the lower court
and who was of the opinion that such theory was not sustained on the face of the Adjustment
Act itself.
Plaintiff states its present theory as follows: The liability of the state to the county is not
founded upon any intent of Congress that the money should be divided between the two but is
founded upon the proposition that the State of Nevada has received for its use and benefit
moneys which are in commutation of taxes upon properties situate in Clark County and that
the State of Nevada is, by pocketing all of the payments, in effect, remitting all taxes upon
those properties by the county. The liability of the state to the county is predicated upon the
fact that the state, through a bilateral contract with the United States, has promised not only
for itself but for Clark County that no taxes of any kind or character will in the future be
levied upon the Boulder Dam Project, upon the electrical energy generated therefrom, or upon
the generation, transmission or control of such energy regardless of the fact that such
properties in the hands of persons other than the United States could be legally taxed. It is
appellant's contention that such being the case the State of Nevada may not constitutionally
exempt from taxes properties situate in Clark County without a consideration to such county
in the form of a share in the payments made under the contract with the United States.
In concluding its final appeal brief plaintiff states:
(a) The payments to the State of Nevada are not in lieu of taxes which the State or its
subdivisions could have levied if Boulder Dam had been privately constructed:
have levied if Boulder Dam had been privately constructed:
(b) The payments under the Adjustment Act are not gifts, grants or donations from the
United States to the State:
(c) In making such payments, it was the intent of Congress to buy off a nuisance value of
state, county and city taxation which would defeat the purpose of Congress to make the
Project self-supporting by the sale of electrical energy therefrom:
(d) Such being the congressional intent, the payments made to the State are in lieu of
taxes on allottees and contractees of the production of the Dam and must be equitably shared
by the State and County.
3. It has long been a rule of this court that a party on appeal cannot assume an attitude or
adopt a theory inconsistent with or different from that taken at the hearing below. Wheeler v.
Hurley, 49 Nev. 70, 236 P. 559; Carroll v. Carroll, 51 Nev. 188, 272 P. 3; Berrum v.
Georgetta, 60 Nev. 1, 93 P.2d 525, 98 P.2d 479; In re Torres Estate, 61 Nev. 156, 120 P.2d
816, 135 A.L.R. 481; Edmonds v. Perry, 62 Nev. 41, 140 P.2d 566; Johnston v. DeLay, 63
Nev. 1, 158 P.2d 547. But plaintiff argues that despite its change in theory it was unnecessary
to amend the complaint, because the complaint contains sufficient facts to state a cause of
action under either theory and that under its newly advanced theory it is entitled to the relief
prayed for. In order to show in any event that plaintiff cannot contend that the lower court's
ruling on demurrer prevented it from having a full and fair determination of its rights by this
court, we deem it necessary to give our opinion with respect to plaintiff's new theory for
relief, but we do so reluctantly because the matter was not presented to the court below.
An offer by the United States and an acceptance by the State of Nevada to pay and receive
said $300,000 annual payments must appear from the allegations of the complaint before the
court, under plaintiff's present bilateral contract theory, would be justified in declaring
the plaintiff county entitled to the relief prayed for.
the complaint before the court, under plaintiff's present bilateral contract theory, would be
justified in declaring the plaintiff county entitled to the relief prayed for. If we disregard as
legal conclusions the allegations that said payments are in lieu of taxes that could have been
levied if the project had been owned by a taxable entity, as plaintiff asks us to do on this
appeal, then the only allegation remaining in the complaint which tends to show the reason
why such annual payments are being made appears in paragraph VI thereof as follows: That
in recognition of the great value of this natural resource to the State of Nevada and to Clark
County, the Congress of the United States * * * enacted * * * that there should be paid to the
State of Nevada annually the sum of $300,000 * * * subject to certain conditions and
provisions as hereinafter alleged. The terms and conditions referred to are found in
paragraph IX of the complaint. Is such an allegation sufficient in itself to show an offer on the
part of the United States to enter into a bilateral contract with the State of Nevada wherein
said state promises in consideration thereof for itself and Clark County that no taxes will be
levied upon the Boulder Dam Project or against the allottees and contractees of the
production of such project, when nothing in the nature of a promise or act on the part of the
State of Nevada as consideration thereof is alleged other than the receipt of such payments by
the State of Nevada as and when made?
4. Nowhere does it appear from the complaint that the State of Nevada promised for itself
or for Clark County or for both that no taxes of any kind or character would be levied upon
the Boulder Dam Project, upon the electrical energy generated therefrom, or upon the
generation, transmission or control of such energy. Plaintiff even admits in its brief that
Congress saw fit to make provision for the payment of $300,000 annually to the State of
Nevada and specifically made deductible from such payments any taxes which might be
levied or collected by the state or its political subdivisions."
or collected by the state or its political subdivisions. We conclude, therefore, that the
complaint on its face contains neither an offer nor an acceptance which could be the basis of
any bilateral contract. The federal government nowise has bound itself by a bilateral contract
to continue these payments for the fifty-year period as provided in said Adjustment Act. In
effect all that the United States says is that it will continue to make such payments annually to
the State of Nevada for a certain period, with a condition subsequent that if certain taxes are
levied and collected, the annual payments will be reduced in the amount of such taxes. There
having been no obligation on the part of the United States to agree to make said payments to
the State of Nevada, but merely a desire on the part of the federal government to recognize
the great value of this natural resource to the State of Nevada and to Clark County, the
payments stand as a gift or grant from the federal government to the state, and as to such the
law is clear that the county is not entitled to receive specific portions thereof. King County v.
Seattle School District, 263 U.S. 361, 44 Sup.Ct. 127, 128, 68 L.Ed. 339.
In the King County case the State of Washington received certain money under a
congressional grant, part of which after it was turned over to the county the school district
sued to recover. The United States Supreme Court in holding that the school district had no
cause of action said: When turned over to the state, the money belongs to it absolutely.
There is no limitation upon the power of the legislature to prescribe how the expenditures
shall be made for the purposes stated, though, by the act of Congress, there is a sacred
obligation imposed on its public faith.' Cooper v. Roberts, 18 How. 173, 181, 182, 15 L.Ed.
338 [341]; Alabama v. Schmidt, 232 U.S. 168, 173, 34 S.Ct. 301, 58 L.Ed. 555 [558]; Mills
County v. Burlington & M. River R. Co. 107 U.S. 557, 566 2 S.Ct. 654, 27 L.Ed. 578 [581];
Hagar v. Reclamation Dist.,
v. Reclamation Dist., 111 U.S. 701, 713, 4 S.Ct. 663, 28 L.Ed. 569 [574]. No trust for the
benefit of appellee is created by the grant. But, assuming the moneys paid over to the state are
charged with a trust that there shall be expended annually one-half for schools and one-half
for roads, the appellee has no right to enforce the trust. Congress alone can inquire into the
manner of its execution by the state. United States v. Louisiana, 127 U.S. 182, 185-192, 8
S.Ct. 1047, 32 L.Ed. 66 [68, 70]; Mills County v. Burlington & M. River R. Co., supra [107
U.S. 557, 566, 2 S.Ct. 654, 27 L.Ed. 578, 581]; [American] Emigrant Co. v. Adams County,
100 U.S. 61, 69, 25 L.Ed. 563 [566]; Barrett v. Brooks, 21 Iowa, 144, 148. See, also, Stearns
v. Minnesota, 179 U.S. 223, 231, 21 S.Ct. 73, 45 L.Ed. 162 [168]. The act does not direct any
division of the money between schools and roads. Its language above quoted indicates an
intention on the part of Congress that the state in its discretion may prescribe by legislation
how the money is to be expended. No distribution to the appellee or any other school district
is required. The public schools and public roads are provided and maintained by the state or
its subdivisions, and the moneys granted by the United States are assets in the hands of the
state to be used for the specified purposes as it deems best.
The payments under the Adjustment Act being gifts to the State of Nevada, it follows that
it was not the intent of either the United States or the State of Nevada in making and
accepting such payments to deprive Clark County of any of its taxing rights.
As to whether the state or county could assess and collect taxes against any of the four
items specified in paragraph IX of the complaint, or in other words, as to whether any of such
items are taxable by the county or state, we express no opinion. But we do say that if any such
items are so taxable, there is nothing in the Project Act or in the Adjustment Act to prevent
the levy and collection of taxes thereon by the county of Clark, and said county's failure
heretofore to seek revenue from such sources if, indeed, such are available to it, cannot
be laid to plaintiff county's reliance upon a bilateral contract which is nonexistent in the
pleadings and nonexistent in fact.
levy and collection of taxes thereon by the county of Clark, and said county's failure
heretofore to seek revenue from such sources if, indeed, such are available to it, cannot be
laid to plaintiff county's reliance upon a bilateral contract which is nonexistent in the
pleadings and nonexistent in fact.
The judgment of the district court is hereby affirmed.
Eather, C. J., Badt, J., and Frank McNamee, District Judge, concur.
Horsey, J., being disqualified, the Governor designated Honorable Frank McNamee, Judge
of the Eighth Judicial District, to sit in his stead.
____________
65 Nev. 510, 510 (1948) State v. Pinson
THE STATE OF NEVADA, on Relation of its Department of Highways, Respondent, v.
VICTOR A. PINSON, Et Al., Appellants.
No. 3546
November 12, 1948. 199 P.2d 631.
Where clerk certified that papers and documents attached to certification were full, true, and correct
copies of original documents, documents purporting to constitute judgment roll were sufficiently certified,
although not named as the judgment roll and not separated from other certified papers. N.C.L. 1931-1941
Supp., sec. 9385.92.
Whether papers or documents constitute judgment roll or whether a particular document or paper was
properly included in judgment roll would be within province of court in which question arose to determine,
in accordance with statute defining judgment roll, and clerk by certifying conclusion that papers or
documents certified constituted judgment roll cannot conclude appellate court. N.C.L.1929, sec. 8829.
Where reporter's transcript of testimony and proceedings was not completed until long after filing and
entering of judgment, bill of exceptions consisting of reporter's transcript could not be certified by
clerk as constituting part of the judgment roll, and failure of clerk to certify transcript
as constituting part of judgment roll was not ground for striking out the transcript of
testimony from transcript on appeal. N.C.L.1931-1941 Supp., secs.
could not be certified by clerk as constituting part of the judgment roll, and failure of clerk to certify
transcript as constituting part of judgment roll was not ground for striking out the transcript of testimony
from transcript on appeal. N.C.L.1931-1941 Supp., secs. 9385.81, 9385.92.
Under statute, reporter's certified transcript of testimony and proceedings was entitled to incorporation in
record on appeal without certification to transcription by clerk as being a correct transcription of reporter's
shorthand notes. N.C.L. 1931-1941 Supp., sec. 9385.81.
Under statute reporter's transcript was not required to be settled and allowed by court, or by stipulation of
parties, before transcript became a part of the record as a bill of exceptions. N.C.L.1931-1941 Supp., sec.
9385.81.
Supreme court could not determine any ground for striking out the record, or portion thereof, which had
not been specifically alleged as such ground, in the notice of motion to strike, or disclosed in the
accompanying papers, even though such ground was suggested upon oral argument, especially where result
of striking out would tend materially to deprive appellants of trial on merits.
The parties on oral argument are confined to issues or matters properly before court.
Cases should be decided in supreme court on their merits where possible.
Minutes of court, and opinion and decision, would be stricken from transcript on appeal, where neither
the minutes, opinion, nor decision, were part of the judgment roll nor of the transcript of proceedings
constituting the only bill of exceptions in the record.
Where transcript of testimony and proceedings certified by reporter was not properly part of judgment
roll, and further certification by court clerk as to correctness of transcript was unnecessary, because
transcript constituted a bill of exceptions as certified by reporter, motion to amend certificate of clerk
certifying the papers and documents in record other than transcript of testimony and proceedings, so as in
effect to include the transcript of testimony and proceedings, would be denied. N.C.L.1931-1941 Supp.,
sec. 9385.81.
Appeal from Sixth Judicial District Court, Humboldt County; Clark J. Guild, Presiding
Judge.
Action by the state, on relation of its Department of Highways, against Victor A. Pinson
and others. From the judgment, defendants appeal. On plaintiff's motion on defendants'
appeal to strike out portion of transcript on appeal, and on defendants' motion to amend
certificate of county clerk certifying to papers and documents included in the record on
appeal. Order in accordance with opinion.
Carville & Carville, of Reno, for Appellants.
Alan Bible, Attorney General, and Geo. P. Annand and Homer Mooney, Deputy Attorneys
General, for Respondents.
OPINION
In this case two motions are before this court, which were argued by respective counsel,
and submitted, on the 8th day of September 1948. The respondent has moved to strike from
the Transcript on Appeal, filed on the 6th day of July 1948, by the appellants, so much
thereof that purports to be the Judgment Roll in said case and so much thereof that purports to
be a transcript of the testimony, minutes of the Court, opinion and decision, or which purports
to be a Bill of Exceptions in said matter.
The appellants have moved to amend the certificate of J. W. Davey, county clerk and ex
officio clerk of the Sixth judicial district court of the State of Nevada, in and for the county of
Humboldt, certifying to twenty-two papers and documents included in the record on appeal,
such proposed amendment being to insert, as line 10, in folio 3, on the second page of said
certificate, the following: 23 Transcript of Evidence; and in line 14, folio 3, after the figures
"4459," and before the word "hereinbefore," the following: including a copy of
proceedings and transcript of testimony taken at the trial of said cause."
folio 3, after the figures 4459, and before the word hereinbefore, the following: including
a copy of proceedings and transcript of testimony taken at the trial of said cause.
The respondent's motion to strike, above mentioned has attached to it the certificate of the
said J. W. Davey, clerk of said court, certifying, among other things, that folios 123, 124 and
125 of the transcript of Record on Appeal, filed herein and certified, correctly records the
minutes of this Court respecting the order denying a new trial in said actions; that no
document purporting to be a Bill of Exceptions was filed in the District Court in this case;
that the Court reporter certified the Transcript of Testimony on two separate trials and
hearings in said matter but did not certify to anything else or to any minutes of Court, or
opinion and decision to the Court, so far as is shown by the files and papers in said case in my
office; that my files further show on file the following Notice of Order and proof of service
thereof, to wit: * * *. There is inserted by the clerk at this point, in haec verba, a certified
copy of the notice of order, the order referred to being the certain order made by the Sixth
judicial district court of the State of Nevada, in and for the county of Humboldt, the Hon.
Clark J. Guild, district judge presiding, on the 3d day of May 1948, denying defendants'
(appellants') motion for a new trial, and a certified copy of the affidavit of mailing, on the 3d
day of May 1948, of a certified copy of the said notice of the order denying the motion for a
new trial, addressed to Messrs. Carville & Carville, attorneys at law, Reno, Nevada, attorneys
for defendants, such affidavit containing the necessary facts to show due notice, to said
attorneys for defendants, of the denial of such motion for a new trial, on said 3d of May 1948.
The grounds of respondent's said motion to strike are stated in the notice of motion as
follows: "1.
1. That the papers purporting to constitute the Judgment Roll are not properly certified
and the so-called Transcript of Testimony is not thereby incorporated in the record on appeal
as a part of the Judgment Roll or at all.
2. That the Transcript of Testimony certified by the court reporter is not a Bill of
Exceptions nor a part of the record on appeal; that the same has not been settled by the Court
or by any stipulation or certificate at all within 20 days after service of written notice of
decision denying new trial or at all; that no extension of the statutory time to propose such
Bill of Exceptions to the trial Court or to settle the same was made or entered within the said
20-day statutory period, or thereafter, or at all.
Referring to ground 1, it appears from the record that the clerk of the Sixth judicial district
court, in certifying to the twenty-two papers and documents to which the certificate is
attached, did not undertake to classify them as to whether or not they constituted the
judgment roll, but certified to them merely as being full, true and correct copies of the
respective originals of which they purported to be copies. In other words, he did not segregate
the papers or documents constituting the judgment roll, and certify to those separately from
the other papers, and attach his certificate that such papers or documents were full, true and
correct copies of the originals, and, also, that such papers, naming them, constituted the
judgment roll, but, instead, he certified, in substance, in his certificate attached to such
twenty-two papers and documents, merely that they were full, true and correct copies of the
original documents. In the latter instance, the language used by the clerk is as follows: and I
further certify that the hereinbefore mentioned Documents consist of 46 typewritten pages,
are full, true and correct copies of the original documents on file and of record in my office in
Suit No. 4459, hereinbefore referred to.
In determining whether this certification is sufficient, as to the judgment roll, the language
of our statute, section 42 of the New Trials and Appeals Act of 1937, same being section
9385.92 of N.C.L.1931-1941 Supp., vol. 2, is significant. Such section is as follows:
9385.92. WHEN JUDGMENT ROLL PART OF BILL OF EXCEPTIONS. 42.
Whenever the judgment roll, or the papers making up the judgment roll, shall be incorporated
in a bill of exceptions, it shall not be necessary to take to the supreme court any separate copy
of the judgment roll, but in all such cases the judgment roll, or the papers making up the
judgment roll, shall be certified by the clerk of the court in which the action or proceeding is
pending, or by the parties or their attorneys. (Emphasis added.)
1, 2. There is no reason why more should be required as to certification in a case in which
the judgment roll is not made part of the bill of exceptions but is incorporated in the record or
transcript upon appeal, as in the instant case. What is desired is sufficient assurance of the
authenticity of the documents, and nothing would be added in that respect by requiring the
clerk, or the parties or their attorneys, in certifying, to state a conclusion of law, namely, that
the papers or documents certified to constitute the judgment roll. Even if such certifying
party, or parties, did so certify, their conclusion would not be binding upon the court, but if
any issue were properly presented involving the question of what papers or documents did or
did not constitute the judgment roll, or whether or not a particular document or paper was
properly included therein, it would be, clearly, the province and the duty of the court having
jurisdiction of the action or proceeding in which the question arose, to determine same, in
accordance with the statute, section 331 of the Nevada Civil Practice Act, same being
N.C.L.1929, vol. 4, section 8829, which specifies precisely what papers constitute the
judgment roll.
roll. So we think the papers purporting to constitute the judgment roll were sufficiently
certified.
The next question posed, as part of ground 1 of respondent's motion to strike, is that the
so-called Transcript of Testimony is not thereby incorporated in the record on appeal, as a
part of the Judgment Roll * * *. (Emphasis added.) This refers, doubtless, to the Transcript
of Testimony and Proceedings, certified by Gloria Germain, the court reporter of the Sixth
judicial district court, and incorporated in the Transcript on Appeal. It is true that such
transcript, certified by the court reporter is not, by the above-mentioned certificate of J. W.
Davey, clerk of the Sixth judicial district court, included with, or as one of, the documents or
papers certified by him, as part of the judgment roll or otherwise, and appellants' pending
motion (perhaps suggested by the ground of respondent's motion being presently considered)
is to include such transcript within said certificate.
3. Our statute, section 31 of the New Trials and Appeals Act of 1937, being N.C.L.Supp.
1931-1941, vol. 2, section 9385.81, in subdivision 1, provides:
A transcript of the proceedings, certified by the court reporter, appointed by the court,
under authority of law, or by agreement of the parties, to be a full, true and correct transcript
thereof may be served and filed, and when so filed shall be and constitute the bill of
exceptions of the proceedings relating to the point or points involved, as therein set forth,
without further stipulation or settlement by the court; provided, however, that on motion duly
noticed, the court may at any time correct any error in such transcript by appropriate
amendment thereto.
And said section 331 of the Civil Practice Act, being N.C.L.1929, vol. 4, section 8829,
providing what papers shall constitute the judgment roll, includes all bills of exceptions
taken and filed. But in the case of Smith v. Lucas, 43 Nev. 348, 186 P. 674, in the opinion
by Mr.
Justice Ducker, it is clearly held that a bill of exceptions, filed after the entry of judgment,
though properly a part of the record on appeal, is no part of the judgment roll. This is
necessarily so, for the reason that the statute, said section 331, provides that Immediately
after entering the judgment, the clerk must attach together and file the following papers,
which constitute the judgment roll: * * *.
In the instant case, the judgment was filed and entered April 10, 1948, and the Transcript
of Testimony and Proceedings was not completed until long thereafter, the court reporter's
certificate thereto being dated May 29, 1948. So, the bill of exceptions, consisting of said
court reporter's transcript above mentioned, could not have been properly certified by the
clerk of the court, as constituting part of the judgment roll, and the failure on his part to so
certify was not error, and same constitutes no ground upon which to strike such Transcript of
Testimony.
4. Is there any basis upon which to strike such Transcript of Testimony because not
incorporated at all by the clerk's said certificate in the record on appeal? The language of
ground 1 of respondent's motion to strike is, as above stated, and the so-called Transcript of
Testimony is not thereby (meaning, by the clerk's certificate) incorporated in the record on
appeal as a part of the Judgment Roll or at all. (Emphasis added.)
It is our view that in order to entitle the said court reporter's transcript of the testimony and
proceedings to incorporation in the record on appeal, it is not essential that same be certified
by the clerk of the court, or by anyone other than the court reporter. Indeed, no other person
could properly certify to the transcription of the court reporter as being a correct transcription
of her shorthand notes. The statute hereinbefore quoted, N.C.L.Supp.1931-1941, vol. 2, sec.
9385.81, contemplates certification by the court reporter only, and provides, in effect, that
when so certified by the duly qualified court reporter, the transcript "may be served and
filed, and when so filed shall be and constitute the bill of exceptions of the proceedings
relating to the point or points involved, as therein set forth, without further stipulation or
settlement by the court; provided, however, that on motion duly notice, the court may at
any time correct any error in such transcript by appropriate amendment thereto."
provides, in effect, that when so certified by the duly qualified court reporter, the transcript
may be served and filed, and when so filed shall be and constitute the bill of exceptions of
the proceedings relating to the point or points involved, as therein set forth, without further
stipulation or settlement by the court; provided, however, that on motion duly notice, the
court may at any time correct any error in such transcript by appropriate amendment thereto.
The legislature, in enacting said statute, obviously recognized certain very material
differences between a court reporter's transcript as a bill of exceptions, and other kinds of
bills of exceptions. The former represents an exact record of precisely what transpired at the
trial or hearing. The latter, made up, in part, by counsel's reproduction of the substance of
the proceedings relating to the point or points involved, and its accuracy and correctness
being dependent upon counsel's ability to perceive and remember correctly what transpired,
and his integrity in reproducing same, the legislature wisely has recognized what human
experience has long shown to be necessary in order to assure the truthfulness and accuracy of
the court's records, and has provided for settlement and allowance, by stipulation or by the
court, as to such other kinds of bills of exceptions.
When the statute, by the provisions quoted above, has, for the obvious reasons
hereinbefore mentioned, accorded such high standing to bills of exceptions certified by court
reporters, as to dispense with the necessity of stipulation by opposing counsel, or of
settlement by the court, the authenticity of the transcript certified by the duly qualified court
reporter is sufficiently assured that no further certification, by the clerk or by anyone else, is
required in order to entitle such transcript to become incorporated in the record on appeal.
The conclusion follows that there is no merit to ground 1 of the alleged grounds advanced
by respondent in support of the motion to strike.
alleged grounds advanced by respondent in support of the motion to strike.
Referring to the second alleged ground for striking the transcript of testimony and
proceedings, it is stated therein that the transcript certified by the court reporter is not a bill of
exceptions nor a part of the record on appeal, and the only facts stated as a reason for that
conclusion is, that the same has not been settled by the court or by any stipulation or
certificate at all within 20 days after service of written notice of decision denying new trial or
at all. (Italics added.)
It is unnecessary to consider the element of time, or when appellant would become in
default for exceeding the time limit for settlement, as it is conceded that no settlement of any
bill of exceptions in the case has occurred at all, and it will not be disputed, we believe, that if
settlement were legally required, the time therefor had expired before the 28th day of July
1948, the date of filing respondent's notice of motion to strike. We readily agree with
respondent that if the said transcript of the proceedings, together with the accompanying
papers and documents in the transcript on appeal, were made up into a bill of exceptions
requiring settlement, that, in the absence of such settlement, such unsettled bill of exceptions
would have no standing in the record. The vital question is, therefor; does the record disclose
the existence of a bill of exceptions which required settlement?
A consideration of our statutes, in connection with some of the decisions of this court, may
serve to disclose the evolution or development of our law as to bills of exceptions of the
various kinds permissible, and of the rules of construction which have been established by
some of our decisions.
Beginning with the supplementary and amendatory act of 1915, section 5 thereof provided,
by suitable provisions containing proper safeguards, that the court reporter's transcription of
the proceedings in any action or special proceeding may, at the option of any party, be
submitted to the court for allowance and settlement, as the bill of exceptions required
under the provisions of the act.
reporter's transcription of the proceedings in any action or special proceeding may, at the
option of any party, be submitted to the court for allowance and settlement, as the bill of
exceptions required under the provisions of the act. (Italics added.) By that act the court
reporter's transcription was made a bill of exceptions conditionally, that is, upon allowance
and settlement as such by the court or judge. Statutes 1915, p. 164.
The act of 1923, Statutes 1923, p. 163, in section 1, after providing for the serving, filing,
certification and allowance and settlement of bills of exceptions, contained the following
sentence:
A transcript of the proceedings certified by the court reporter to be a full, true and correct
transcript thereof may be filed in lieu of such bill of exceptions and when so filed shall be and
constitute the bill of exceptions without further stipulation or settlement by the court;
provided, however, that on motion duly noticed, the court may at any time correct any error in
such transcript by appropriate amendment thereto. (Italics added.)
It is plain that the requirement of allowance and settlement, in the statute of 1915, was
entirely omitted, as to the court reporter's transcript, from the foregoing provisions of the act
of 1923; and that the effect was to dispense with such requirement.
In 1935 a New Trials and Appeals Act was enacted, Stats. 1935, p. 195, and sections 31 to
46, inclusive, thereof dealt with the subject of bills of exceptions. Section 31, subdivision (1)
is, in effect, a reenactment of the 1923 provision permitting the court reporter's certified
transcript to be filed, and providing that when so filed same shall be and constitute the bill of
amendment thereto. To this provision in the said act of 1935, quoted in part above, was
added a provision which was new, that is to say, same was not in the act of 1923 or in any
former act.
quoted in part above, was added a provision which was new, that is to say, same was not in
the act of 1923 or in any former act. Such additional provision was as follows:
The transcript of the proceedings, certified by the court reporter, as herein provided,
together with all other matters, exhibits, motions, papers or orders, required to be
incorporated in a bill of exceptions, when so incorporated in the bill of exceptions, as herein
provided, and when such bill of exceptions has been so settled and allowed, as herein
provided, it shall become a part of the record in such action or special proceeding.
By the New Trials and Appeals Act of 1937, the said acts of 1915, 1923 and 1935 were, in
all essential particulars, repealed, but the provisions of subdivision (1) of section 31 of the act
of 1935, above referred to and quoted in part, were reenacted verbatim and in full, with only
one minor change. Such minor change was merely the omission in the 1937 act of the word
special before the word proceeding, in the last sentence of subdivision (1) of section 31
of the 1935 act. As re-enacted in the said New Trials and Appeals Act of 1937, such
provisions therein, still being numbered subdivision (1) of section 31, and being section
9385.81, N.C.L.1931-1941 Supp., vol. 2, are as follows:
A transcript of the proceedings, certified by the court reporter, appointed by the court,
under authority of law, or by agreement of the parties, to be a full, true and correct transcript
thereof, may be served and filed, and when so filed shall be and constitute the bill of
amendment thereto. The transcript of the proceedings, certified by the court reporter, as
herein provided, together with all other matters, exhibits, motions, papers or orders, required
to be incorporated in a bill of exceptions, when so incorporated in the bill of exceptions,
as herein provided, and when such bill of exceptions has been so settled and allowed, as
herein provided, it shall become a part of the record in such action or proceeding."
orders, required to be incorporated in a bill of exceptions, when so incorporated in the bill of
exceptions, as herein provided, and when such bill of exceptions has been so settled and
allowed, as herein provided, it shall become a part of the record in such action or
proceeding.
Before the 1935 act was approved, March 27th of that year, and containing the last
sentence of said subdivision (1) of section 31, above quoted, such sentence providing for a
new kind of bills of exceptions, to consist of the court reporter's transcript, together with all
other matters, exhibits, motions, papers or orders required to be incorporated in a bill of
exceptions, when so incorporated in the bill of exceptions, and requiring settlement and
allowance, Mr. Justice Coleman, in his opinion filed March 1, 1935, in the case of Picetti v.
Orcio et al., 56 Nev. 1-5, 41 P.2d 289, had approved the theory or conception of counsel for
the appellant in that case, and their action based upon that theory. Such theory was to the
effect that when the counsel for appellant so desired and intended, they could, but need not,
adopt the reporter's transcript of the testimony as constituting the bill of exceptions, but same,
together with other matters thereto attached, if they so intended, might become the bill of
exceptions. In other words, that the appellant, desiring to avail himself of alleged errors not
appearing in the reporter's transcript, might include in a bill of exceptions the necessary
papers, etc., to disclose the additional errors, also the court reporter's transcript. Obviously,
such a bill, containing additional papers, exhibits, etc., which were not part of the court
reporter's transcript (which latter was free from the requirement of settlement), required
settlement the same as all other bills of exceptions, except the reporter's transcript, required.
In the Picetti case the record on appeal consisted of two volumes. Volume 2 contained a
transcript of the testimony, and on pages which followed the certificate of the official court
reporter to the transcript was contained a notice of intention to move for a new trial, the
order denying the motion for a new trial, and the certificate of the trial judge, of date
November 7, 1934, settling the bill of exceptions.
of the official court reporter to the transcript was contained a notice of intention to move for a
new trial, the order denying the motion for a new trial, and the certificate of the trial judge, of
date November 7, 1934, settling the bill of exceptions. The appeal had previously been
dismissed, because filed more than thirty days after the date of the filing of the reporter's
transcript, October 9, 1934; but this court, upon becoming apprised of the facts as to the
necessity of a more comprehensive bill of exceptions, requiring settlement, and that the
certificate of the trial judge settling the bill of exceptions was dated November 7, 1934,
determined that the time for filing the record on appeal should be computed from the latter
date, and that, hence, the filing was made in time and that the appeal should be reinstated.
The reasoning of the opinion in said case clearly exemplifies the principle adhered to in
other cases decided by this court, and which will be mentioned hereinafter, to the effect that
the choice as to the kind of bill of exceptions an appellant shall adopt is entirely a matter of
appellant's own selection and intention, to be determined from his act, or failure to act, in a
certain direction. Mr. Justice Coleman's expressions are enlightening. The following is quoted
from pages 4 and 5 of the opinion as reported in 56 Nev. and from page 290 of 41 P.2d:
The portion of chapter 97, Stats. 1923, above quoted, did nothing more than to give
permission to file a transcript of the testimony in lieu of a bill of exceptions. It did not
contemplate that such a transcript might not be used with other documents or matters to make
up a bill of exceptions to be settled by the trial judge. * * *
In the instant matter it clearly appears that it was not the intention of counsel for
appellant that the transcript of the testimony should constitute the bill of exceptions, but that
the other matter thereto attached should become a part of the bill of exceptions.
exceptions, but that the other matter thereto attached should become a part of the bill of
exceptions.
It appearing that the transcript on appeal was filed within thirty days from the settlement
of the bill of exceptions by the trial judge, it is clear that the appeal should not have been
dismissed.
In the Picetti case, supra, the intention to make up a new or composite bill of exceptions,
requiring settlement, was clearly indicated by the affirmative act of appellant in resorting to
the necessary proceeding to have settlement made. It may be wondered how much this
conception or theory, so clearly expressed by Mr. Justice Coleman, leading to a new kind of a
bill of exceptions, that is, a sort of composite bill consisting of the court reporter's transcript,
not requiring settlement, and other matters, exhibits, motions, papers or orders, which did
require settlement, may have contributed to or influenced the inclusion of the last sentence
(above referred to) in subdivision (1) of section 31 of the Statutes of 1935, enacted March 27,
1935, less than a month after Mr. Justice Coleman's said opinion in the Picetti case was filed,
on March 1, 1935.
At a time when the statute of 1923 was still in effect, and before the act of 1935 with its
provisions for what I have been pleased to call composite bills of exceptions, Mr. Chief
Justice Ducker, in his opinion in the case of State ex rel. Gray v. District Court, 51 Nev. 412,
278 P. 363, in clear, forceful language, emphasized the truly optional character of the right or
privilege conferred upon an appellant in a choice of one of the alternative methods of shaping
his appeal. We believe the same, or similar, freedom of choice applies now, and has applied
since 1935, in relation to choosing the method of perfecting an appealwhether to choose
the method of an enlarged or composite bill of exceptions, or the method of relying solely
upon the court reporter's certified transcript of the proceedings, as the bill of exceptions. Mr.
Chief Justice Ducker, on Page 416 of 51 Nev., page 364 of 278 P., stated: "Section 1 clearly
gives a party the option to file a bill of exceptions which shall contain the substance of the
proceedings relating to the point or points involved, or a transcript of the proceedings
certified by the court reporter as required by the section, which shall constitute the bill of
exceptions.
Section 1 clearly gives a party the option to file a bill of exceptions which shall contain
the substance of the proceedings relating to the point or points involved, or a transcript of the
proceedings certified by the court reporter as required by the section, which shall constitute
the bill of exceptions.
The trial court cannot dictate to a party which one of these two methods he must adopt.
The privilege given to a party to adopt either is very plainly expressed.
And on page 419 of 51 Nev., page 365 of 278 P., the learned and able jurist stated:
Section 1 of the act of 1923 provides that it shall be the duty of the trial judge or court to
settle a bill of exceptions filed within the time prescribed, whenever the method of
embodying in such a bill the substance of the proceedings relating to the point or points
involved is adopted. It is otherwise, when the method of the court reporter's transcript is
chosen, unless on motion duly noticed, as provided in the section. If no motion for correction
is made, the transcript certified by the court reporter and filed in due time becomes the bill of
exceptions by operation of the law without settlement by the court or stipulation of the
parties.
In this connection, we will cite a much later Nevada case, decided by this court in August
1940, more than three years after our statute, section 31 of our New Trials and Appeals Act of
1937, N.C.L. Supp.1931-1941, vol. 2, section 9385.81, became effective, and when the law
was precisely the same as it was when the instant motion to strike was filed, and is today.
That case is Cunningham v. Cunningham, 60 Nev. 191, 194, 102 P.2d 94, 105 P.2d 398, and
the opinion was by Mr. Justice Ducker. We quote, from a portion of the opinion, on page 200
of 60 Nev., pages 401, 402 of 105 P.2d, the following:
She requests the sum of $150 to be used as payment for the transcript of the evidence and
proceedings had upon the trial. In support of the necessity for this item of expense appellant
attached to her affidavit a letter from the stenographer who took down such evidence and
proceedings in shorthand at the trial, in which letter it was estimated that an original
copy of a transcript would cost between $90 and $100, and 2 carbon copies would run
about $90 to $100.
of expense appellant attached to her affidavit a letter from the stenographer who took down
such evidence and proceedings in shorthand at the trial, in which letter it was estimated that
an original copy of a transcript would cost between $90 and $100, and 2 carbon copies would
run about $90 to $100. Respondent objects to the payment of this item. He claims it is
unnecessary in that appellant could adopt the method of preparing a bill of exceptions
containing the substance of the proceedings relating to the points involved, and thus eliminate
the expense of a transcript. He further suggests that he would be willing to agree to an agreed
statement of facts. Neither proposal can deprive appellant of her right of selecting the method
of a certified transcript of the proceedings as her bill of exceptions as provided in Chap. 32,
sec. 31, Stats of 1937, at page 63. An appellant's right to select either method was decided in
State ex rel. Gray v. Second Judicial District Court, 51 Nev. 412, 278 P. 363, and in State ex
rel. Capurro v. District Court, 54 Nev. 371, 17 P.2d 695.
The decision in Anderson v. Snell, upon Motion to Strike Document Styled Transcript in
lieu of Bill of Exceptions,' and reported in 57 Nev. 78, 58 P.2d 1041, 62 P.2d 703, we
believe is directly in point to the motion now before us, and we feel bound to follow it.
Again, the opinion was by our beloved former associate, the learned Mr. Chief Justice
Ducker. In that case, the document sought to be stricken was styled Transcript in Lieu of Bill
of Exceptions. This title would have been more appropriate to the reporter's transcript of the
proceeding at the trial than of the entire document, but it appears doubtless that the appellant
in that case did not desire to make up a bill of exceptions requiring settlement, and, therefore,
did not give the document a title embracive in meaning of all the matters and papers the
document contained, and which would have indicated settlement. The document in question
in Anderson v. Snell, supra, consisted of the judgment roll, a number of other papers, and
what purports to be a transcript of the proceedings of the trial.
roll, a number of other papers, and what purports to be a transcript of the proceedings of the
trial. The latter is certified by the court reporter. (The quotation is from said opinion.) In that
case, the motion to strike was directed to the entire document, whilst in the instant case,
likewise, the transcript on appeal consists of the judgment roll, a number of other papers, and
what purports to be a transcript of the proceedings at the trial, and respondent's motion to
strike is directed, in piecemeal, to different portions of the Transcript on Appeal, and not in
toto to the entire transcript. In both cases it was contended that the effect of the last sentence
of subdivision (1) of section 31 of the New Trials and Appeals Act of 1937, hereinbefore
repeatedly referred to, was to require the court reporter's transcript to be settled and allowed
by the court, notwithstanding the fact that in neither of the cases did the appellant designate
the transcript or record on appeal, or any portion thereof, as a bill of exceptions, nor do any
other act which would indicate any desire or intention to make up an enlarged or composite
transcript including the court reporter's transcript together with the other papers, matters,
exhibits, etc., such as is contemplated by the provisions of said last sentence. The said
sentence contains the phrase, when so incorporated in the bill of exceptions, as herein
provided, and no action whatever by the appellant in either the instant case or in Anderson v.
Snell, supra, indicated any intention to incorporate either the court reporter's transcript or
such other matters, exhibits, motions, papers or orders in any over-all bill of exceptions.
The portion of Mr. Chief Justice Ducker's opinion in Anderson v. Snell, supra, which is
important to the point in the instant case now being considered, is on pages 80, 81 of 57 Nev.,
pages 1041, 1042 of 58 P.2d, and is as follows:
Concisely stated, the grounds of the motion to strike are: (1) That no bill of exceptions
has been taken in the trial court as required by law, and {2) that no bond or undertaking
upon appeal has been served and filed or deposit made of costs as required by law.
the trial court as required by law, and (2) that no bond or undertaking upon appeal has been
served and filed or deposit made of costs as required by law.
Respondent contends that the transcript of proceedings cannot be held to be a bill of
exceptions because it was not settled as such by the judge or court or by stipulation of the
parties as required by section 31 of chapter 90, An Act to provide for and to regulate
proceedings on motions for new trials and on appeal in civil cases, and repealing all acts and
parts of acts in conflict therewith,' approved March 27, 1935. See Stats. 1935, p. 195. Such a
settlement is unnecessary when a transcript of the proceedings is used as the bill of
exceptions. This is shown by the part of subdivision (1) of said section, which reads: (1) A
transcript of the proceedings, certified by the court reporter, appointed by the court, under
authority of law, or by agreement of the parties, to be a full, true and correct transcript
thereof, may be served and filed, and when so filed shall be and constitute the bill of
amendment thereto.'
The foregoing language is clear in meaning and not susceptible of the construction
contended for by respondent. In support of his contention he stresses the latter part of the
subdivision, which reads: The transcript of the proceedings, certified by the court reporter, as
herein provided together with all other matters, exhibits, motions, papers or orders, required
to be incorporated in a bill of exceptions, when so incorporated in the bill of exceptions, as
herein provided, and when such bill of exceptions has been so settled and allowed, as herein
provided, it shall become a part of the record in such action or special proceeding.'
Respondent argues that this language signifies that the transcript of the proceedings, as
well as the other matters mentioned, must be settled and allowed by the court or by
stipulation of the parties before they can become a part of the record as a bill of
exceptions.
the transcript of the proceedings, as well as the other matters mentioned, must be settled and
allowed by the court or by stipulation of the parties before they can become a part of the
record as a bill of exceptions. We do not so interpret the language. It means only that such
other matters not properly a part of the judgment roll must be settled and allowed. We pointed
out in Picetti v. Orcio, 56 Nev. 1, 41 P.2d 289, where chapter 97, Stats. of 1923, containing
language substantially the same as to making a transcript of the proceedings certified by the
court reporter, the bill of exceptions was under consideration, that it was not contemplated
that such a transcript might not be used with other documents or matters to make up a bill of
exceptions to be settled by the trial judge. We say the same as to the statute before us.
5. It is apparent, from his reference thereto, that the learned chief justice was fully mindful
of the doctrine of Picetti v. Orcio, supra, but he very clearly considered same inapplicable to a
situation in which the appellant had indicated no desire or intention, nor performed any act
whatever, to make up such a bill of exceptions, as was contemplated by the sentence in
question. The very fact that appellant had not done so in Anderson v. Snell, supra, and
appellants have not done so in the instant case, substantially differentiates the situation in
those cases from that in Picetti v. Orcio, supra, and makes clear that the respective appellants,
in the exercise of their fundamental right to choose the method of perfecting their appeals,
chose the method of relying upon the court reporter's certified transcript as their sole bills of
exceptions, and were willing to take the risk of the papers, exhibits, motions, etc., which were
included in the record but were not part of the judgment roll and had not been made part of
any bill of exceptions, being subject to be stricken upon proper motion. In view of Anderson
v. Snell, supra, which, we believe, correctly interprets and applies the law, we feel impelled
to deny respondent's motion to strike, insofar as same relates to the "Transcript of the
Testimony" {so designated by respondent), or the "Transcript of Testimony and
Proceedings."
feel impelled to deny respondent's motion to strike, insofar as same relates to the Transcript
of the Testimony (so designated by respondent), or the Transcript of Testimony and
Proceedings.
6-8. In McGill v. Lewis, decided in 1941 and reported in 61 Nev. 28, 111 P.2d 537, 539,
116 P.2d 581, 118 P.2d 702, the appellants relied upon the transcript of proceedings, certified
by the court reporter, as the sole bill of exceptions, even though there were numerous other
matters, exhibits, papers, motions, etc., in the record on appeal. Mr. Justice Orr, in his
opinion, referred to the transcript of proceedings intended as a bill of exceptions. No
motion to strike was made on the ground that same required settlement. It was properly
stricken upon other grounds, expressly alleged. There were numerous documents in the
record in that case, as in the instant case, subject to be stricken because they were no part of
the judgment roll nor of the bill of exceptions, and, certain motions to strike having been
directed specifically to such papers, etc., they were ordered stricken. It is our view, and it
appears very clearly, that we have no right to pass upon or determine any ground for striking
the record, or any portion thereof, which has not been specifically alleged as such a ground, in
the notice of motion to strike, or disclosed or stated in the accompanying papers, even though
some such ground may have been suggested upon the oral arguments in the case. The parties,
in oral arguments, are confined to issues or matters properly before the court, and we can
consider nothing else, and, certainly, cannot give heed to any ground not based upon facts
appearing in the record on appeal or disclosed in the motion papers. 37 Am.Jur., p. 505. We
cannot resort to inference, nor reach out to try to find or discover facts not alleged, stated or
disclosed in the motion papers. Especially is this true when the result of striking the
transcript, containing the evidence and other important parts of the record, would tend
materially to deprive the appellants of trial upon the merits.
of trial upon the merits. In Orleans Hornsilver Min. Co. v. Le Champ D'Or French Gold Min.
Co., 52 Nev. 85, 280 P. 887, it is stated, on page 91 of 52 Nev. and on page 889 of 280 P.:
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.
We adhere, most earnestly, to that policy.
Included in respondent's motion to strike is what respondent has been pleased to describe
as purporting to be a bill of exceptions. We can readily understand respondent's theory, as
conceiving a constructive bill of exceptions which would include all of the record on appeal,
except, possibly, the judgment roll. But, following the reasoning of Anderson v. Snell, supra,
we have rejected that theory. Accordingly, we are at liberty to recognize only one bill of
exceptions as existent in the instant case, namely, the Transcript of the Testimony and
Proceedings, certified by the court reporter. As to that bill of exceptions, styled by respondent
Transcript of Testimony, we have hereinbefore denied the motion to strike.
9. The respondent has, separately and specifically, moved to strike the minutes of the
court and the opinion and decision, and the motion directed to those documents must be
granted, for the reason that neither of them are a part of the judgment roll nor of the transcript
of the proceedings, constituting the only bill of exceptions in the record. It has many times
been held by this court, and is the settled law, that any papers, exhibits or documents, etc., not
properly a part of the judgment roll nor of any valid bill of exceptions in the record on appeal,
must be stricken. Werner v. Babcock, 34 Nev. 42, 116 P. 357; Johns-Manville, Inc., v. Lander
County, 48 Nev. 253, 240 P. 925; Markwell v. Gray, 50 Nev. 427, 265 P. 705; Peri v. Jeffers,
53 Nev. 49, 292 P. 1, 293 P. 25, 298 P. 658; Brearley v. Arobio, 54 Nev.
382, 12 P.2d 339, 19 P.2d 432; McGill v. Lewis, supra; Craig v. Harrah, 65 Nev. 294, 195
P.2d 688.
10. Appellant's motion to insert in the certificate of the clerk of the Sixth judicial district
court, in and for the county of Humboldt, certifying to the papers and documents in the record
other than the Transcript of the Testimony and Proceedings certified by the court reporter,
words descriptive of such Transcript of the Testimony and Proceedings, is denied, for the
reason that same is not properly a part of the judgment roll, as has been hereinbefore
indicated, and further certification as to its correctness is unnecessary, the certification of the
court reporter being sufficient for that purpose.
To recapitulate: this court has decided and ordered, and does hereby decide and order, as
follows: that respondent's motion to strike, insofar as same is directed to the judgment roll,
the Transcript of Testimony (referring to the Transcript of Testimony and Proceedings
certified by the court reporter) and the so-called Bill of Exceptions, be, and is hereby,
denied; that respondent's motion to strike the minutes of the court and the opinion and
decision be, and is hereby, granted; and that the appellants' motion to amend the certificate
of the clerk of said district court, in effect to include therein the Transcript of Testimony and
Proceedings certified by the court reporter, be, and is hereby, denied.
____________
65 Nev. 533, 533 (1948) King v. Board of Regents
RALPH KING, Appellant, v. THE BOARD OF REGENTS of the UNIVERSITY OF
NEVADA, Respondent.
No. 3532
November 17, 1948. 200 P.2d 221.
An order sustaining demurrer to complaint is not appealable.
2. Colleges and Universities.
Continued appropriations by the legislature and allowance of claims for publication of university bulletin
from year to year constituted legislative approval of matters therein reported.
State constitution is limitation of law-making power and legislature is supreme in its field of making the
law so long as it does not contravene some expressed or necessarily implied constitutional limitation.
Matters of policy, convenience, right, justice, hardship, or questions of whether legislation is good or bad
are solely matters for consideration of the legislature and not of the courts.
Courts must proceed with the greatest of caution before declaring a statute unconstitutional.
Every presumption is in favor of constitutionality of statute and every doubt must be resolved in its favor.
The constitution, as a living thing, is to be interpreted in the light of new and changing conditions.
The frame of the government, the grant of legislative power, organization of executive authority and
erection of principal courts of justice create implied limitations on the law-making authority.
In the absence of express constitutional authority, legislature is powerless to add to the constitutional
office duties foreign to that office or to take away duties that naturally belong to it.
10. Statutes.
In construing statute, court must give words such reasonable construction as would carry out intent of the
legislature, if possible.
Under constitution authorizing legislature to establish state university to be controlled by board of regents
whose duties should be prescribed by law, right of regents to control university, in their constitutional,
executive and administrative capacity is exclusive of such right in any other department of the government
save only the right of legislature to prescribe duties and other well-recognized legislative rights. Const.
art. 11, secs. 4, 7.
Statute creating an advisory board of regents entitled to all rights and privileges, including travel and
incidental expenses, of elected regents to be nominated by elected board and appointed by governor, and
providing that the advisory board should not have a determining vote on any matter properly under control
of elected board and that no provision of the statute should be construed to be in derogation of
constitutional authority of the elected board, violates constitutional provision that state university should be
controlled by board of regents and is not justified by constitutional power of legislature to define duties of
the elected board. Stats.1869, p. 134; Stats.1873, p. 166; Stats.1887, c. 37, sec. 3, as amended by
Stats.1945, c. 229; Stats.1947, c. 268; Const. art. 11, secs. 4, 7.
Eather, C. J., dissenting.
Appeal from Third Judicial District Court, Lander County; W. R. Reynolds, Judge.
Action by Ralph King against the Board of Regents of the University of Nevada to enjoin
defendant from nominating an Advisory Board of Regents. From a judgment dismissing the
action and dissolving a temporary restraining order, the plaintiff appeals. Judgment reversed
and case remanded with instructions.
James T. Boyd, D. W. Priest, Oscar Zapf and Brown & Wells all of Reno, for Appellant.
Alan Bible, Attorney General, and George P. Annand and Homer Mooney, Deputy
Attorneys General, for Respondent.
Kendrick Johnson, of Reno, amicus curiae.
OPINION
This appeal presents for our determination the validity of the act of the legislature creating
an advisory board of regents of the Nevada State University. It is chapter 68 of the Statutes of
Nevada of 1947 and, being brief, is herewith set forth in full:
An Act creating an advisory board of regents of the Nevada state university, and other
matters properly relating thereto. [Approved April 1, 1947]
Whereas, There are residents of the State of Nevada who have distinguished themselves
in the business, professional, and cultural life of the State and nation, and whose counsel may
be sought by the elected regents of the University of Nevada in the interests of the University;
now, therefore,
The People of the State of Nevada, represented in Senate and Assembly, do enact as follows:
Section 1. There is hereby created a board to be known as the board of advisory regents
of the University of Nevada. Said board shall consist of not more than seven members. The
term of office of said board shall be four years from the date of appointment, and until their
successors are appointed.
Sec. 2. The advisory board of regents so appointed shall be bona fide residents of the
State of Nevada and shall be appointed by the governor after nomination of such persons to
the governor by the elected board of regents. The appointment of such persons shall not be
valid unless they shall have been nominated by an official act of the elected board of regents.
Sec. 3. The advisory board of regents so appointed shall act in an advisory capacity to the
elected board of regents and shall be entitled to all the rights and privileges, including travel
and incidental expenses, of the elected regents, but shall not have a determining vote on any
matter properly under the control of the elected board of regents.
any matter properly under the control of the elected board of regents.
Sec. 4. No provision of this act shall be construed to be in derogation of the
constitutional authority of the elected board of regents to administer the affairs of the
university.
Sec. 5. This act shall become effective from and after its passage and approval.
The board of regents of the university sought an opinion of the attorney general and
requested an answer to the following three questions: (1) Is the act constitutional? (2) If the
act is constitutional, does it make it mandatory for the regents to make nominations to the
governor? (3) Does the advisory board have a vote in the elected board of regents? The
attorney general answered the first two questions in the affirmative and the third question in
the negative. Thereupon the plaintiff brought this action, as a taxpayer, to enjoin the regents
from nominating the advisory board pursuant to section 2 of the act, claiming that the act
violated constitutional provisions vesting the control of the university in an elected board of
regents. The constitutional provisions involved are as follows:
Art. XI, Sec. 4. The legislature shall provide for the establishment of a state university,
which shall embrace departments for agriculture, mechanic arts and mining, to be controlled
by a board of regents, whose duties shall be prescribed by law.
Art. XI, Sec. 7. The governor, secretary of state, and superintendent of public instruction
shall, for the first four years and until their successors are elected and qualified, constitute a
board of regents, to control and manage the affairs of the university and the funds of the
same, under such regulations as may be provided by law. But the legislature shall at its
regular session next preceding the expiration of the term of office of said board of regents,
provide for the election of a new board of regents, and define their duties.
1. The district court made a preliminary restraining order restraining the regents from
nominating persons for appointment by the governor to membership in the advisory board.
Subsequently the matter was argued, briefed and submitted to the district court whereupon it
entered its order that the demurrer interposed to plaintiff's complaint is sustained upon the
ground that it appears from the face of the complaint that the legislative act complained of is
constitutional * * * that this action is therefore and hereby dismissed; and that the restraining
order heretofore entered is hereby dissolved and the undertaking thereon is hereby
exonerated. The learned district judge filed no opinion giving the reason for his action other
than stated. Plaintiff appealed from the final judgment * * * and from the order sustaining
the demurrer * * * The order sustaining the demurrer is not appealable and the appeal
therefrom is dismissed. There remains the appeal from the judgment of dismissal and from
the judgment dissolving the restraining order. N.C.L. sec. 9385.60. In their written briefs and
in their oral argument counsel for both parties indicated that, irrespective of other points
raised and discussed, it was clear that if the act in question is constitutional the judgment
must be affirmed, but that if it is unconstitutional the judgment must be reversed, with
instructions to enter judgment awarding a permanent injunction as prayed for by plaintiff.
Even without such statement of counsel, we are satisfied that we should not be justified in
attempting to avoid the constitutional question.
Pursuant to the constitutional mandate the legislature passed An Act to provide for the
election of the Board of Regents, to fix their term of office, and prescribe their duties,
Stats.1869, c. 53, p. 134; An Act to locate the state university [at Elko], and to provide for
the control and maintenance of the same, Stats.1873, p. 166; and An Act relating to the
State University and matters properly connected therewith, Stats.1887, c. 37, p. 42.
Additional and amendatory legislation was enacted.
p. 42. Additional and amendatory legislation was enacted. As last amended, Stats.1945, c.
229, p. 448, section 3 of the act relating to the state university recited the powers and duties
of the board of regents as follows: (All emphasis in this opinion has been supplied unless
otherwise noted.) 1. To prescribe rules for their own government and the government of the
university; 2. To prescribe rules for the reports of officers and teachers; 3. To prescribe the
course of study, time and standard of graduation, commencement and duration of terms,
vacations, etc.; 4. To prescribe the textbooks and provide apparatus and furniture for the
students; 5. To appoint a president of the university with certain prescribed qualifications; 6.
To prescribe the duties of the president and fix his salary and the salaries of other teachers; 7.
To require the president to establish and maintain training schools; 8. To control the
expenditures of all moneys appropriated for the support and maintenance of the university
and all moneys received from any source whatsoever; 9. To keep accounts of receipts and
expenditures open to public inspections; 10. To report to the governor biennially a statement
of all their transactions and of all other matters pertaining to the university; 11. To transmit
with such report a copy of the president's biennial report; 12. To revoke diplomas under
certain circumstances; 13. To accept gifts, grants, etc.; and 14. To sell or lease properties of
the university under certain provisions and restrictions.
Although the constitutional direction to the legislature was to prescribe the duties of the
regents, article XI, sec. 4, and the control of the first board was required to be under such
regulations as may be provided by law, it does not appear that the foregoing act, or its
predecessors, fixing the powers and duties of the board of regents has ever been attacked in
this court nor is it attacked now, nor is this mention of the act intended to indicate any
opinion of this court suggesting that any part of section 3 is invalid.
The legislature of 1947 also passed an act, Stats.1947, c. 244, p. 766, requiring all regular
and special meetings of the board of regents to be open to the public. Other acts have been
passed concerning the university but none of them has been questioned in this court, other
than the one now before us.
2. As noted above, the first subdivision of section 3 of the act of the legislature of
February 7, 1887 prescribing the powers and duties of the Board of Regents is to prescribe
rules for their own government, and for the government of the University. The second
subdivision empowers and requires the board of regents to prescribe rules for the reports of
officers and teachers of the University. While the record in this case does not disclose the
precise activities of the board of regents, it is apparent that these rules for their own
government and for the government of the university and for the reports of officers, etc., have
been established by the elected board of regents. The 1948 University of Nevada Bulletin
(which is a part of the official statutory reports of the regents to the governor) conforms in a
general way to university bulletins published by all of the major universities in the country. It
comprises some 367 printed pages. It may be assumed that the bulletin has been published
from year to year in the regular course of the performance of the duties of the regents,
officers, faculty, etc. Continued appropriations by the legislature and allowance of claims for
this publication from year to year may be said to constitute legislative approval of the matters
therein reported. Brooks v. Dewar, 313 U.S. 354, 61 S.Ct. 979, 85 L.Ed. 1399, 1403 (on
certiorari from the United States Supreme Court to the Supreme Court of Nevada, 60 Nev.
219, 106 P.2d 755).
From the 1948 University of Nevada Bulletin we find that the board of regents has vested
the administration of the university in the president, the university faculty, the faculties of the
several colleges, and the deans and directors of the colleges and schools and of the public
service departments.
directors of the colleges and schools and of the public service departments. The president of
the university is its executive head and is chairman of the faculty and ex officio a member of
all committees. It is his duty to secure, through the academic deans, directors of the various
schools and other administrative offices, efficient, orderly and economical administration and
healthful development of the university. The vice president acts in case of the president's
absence or inability to act. The principal administrative officers are academic deans and the
directors of the various schools who have immediate charge of the educational work. They
secure estimates for the expenses of their departments and submit the same to the president.
The academic and social welfare of the students is under the supervision, respectively, of a
dean of women and a dean of men. The university faculty comprise the president, vice
president, deans, librarian, registrar and instructors. Subject to the approval of the president
and the board of regents, the university faculty has legislative jurisdiction in all matters of
government, discipline and educational policy not delegated by it to the separate faculties and
has in matters of educational welfare the right of review of the actions of the several colleges.
The university faculty accomplishes much of its work through standing committees. The
powers and duties of the college faculties, and certain limitations upon their powers and their
relationship, respectively, to the president, the dean and the board of regents are specifically
set forth. It should be noted moreover that there is not only a definite organization of the
university faculty but similar organization of the separate college faculties, which make rules
and regulations, formulate courses of study, entrance and graduation requirements, etc., for
their respective colleges, which become fully effective as governing statutes when supported
by the university faculty, the president and the board of regents. The status of each
"department" as the educational unit in the university is also definitely fixed.
status of each department as the educational unit in the university is also definitely fixed.
For general administrative work the chairman of the department is responsible to the dean of
that college in which the chairman's major work appears.
The foregoing sketch is necessarily brief and is intended only to indicate the governmental
and organization action taken under authority of the general provisions of sec. 7728, N.C.L.,
being section 3 of the act of February 7, 1887, defining the powers and duties of the board
of regents. Other powers and duties fixed by sec. 7728 as set forth, indicating the extent of
the control exercised by the board of regents by virtue of the constitutional grant of power and
the acts of the legislature are of course widespread. The 1948 bulletin indicates a total
enrollment of 2,305 students in the various colleges under about 160 members of the faculty.
Under sec. 7730, N.C.L. the board of regents is required to hold four regular meetings in each
year and may hold special meetings at the call of the chairman of the board. The board elects
its own chairman. The university faculty meets at the call of the president. It is unnecessary to
touch upon the very extensive real estate holdings comprising the campus and the extension
and agricultural units with the attendant administrative and economical problems or the
financial structure or the matter of receipts or disbursements of funds, all of which will be
within the imagination of anyone who has even strolled through the campus of any university.
While at first blush the general organization for the administration of the affairs of the
university may seem somewhat complicated, it appears to follow a rather fixed pattern with
the supreme authority vested in the elected board of regents acting largely through the
president to whom the deans and directors of the various divisions of the university are
responsible. The deans in turn work through the chairman of instructional departments,
through committees of the faculty and through the general faculty, and faculties of the
colleges sitting as legislative bodies.
departments, through committees of the faculty and through the general faculty, and faculties
of the colleges sitting as legislative bodies. This careful gradation of authority and
responsibility results in a central structure which still permits opportunity for individual
initiative on the part of the highly trained men in the several colleges and departments. See
1948 University of Nevada Bulletin for further details.
It is with reference to such a structure with its coordinations, interrelationships and
delicate mechanical adjustments that we must consider the effect of the actions of an advisory
board of regents as contemplated by the act in question.
3-7. Respondent places the entire burden upon the appellant (and we see nothing to
criticize in this) by pointing out well-recognized rules of constructionthat state
constitutions are limitations of the lawmaking power and that the legislature is supreme in its
field of making the law so long as it does not contravene some expressed or necessarily
implied limitation appearing in the constitution itself; that matters of policy or convenience or
right or justice or hardship or questions of whether the legislation is good or bad are solely
matters for consideration of the legislature and not of the courts; that courts must proceed
with the greatest of caution before striking a solemn act of the legislature; that every
presumption is in favor of its constitutionality and every doubt must be resolved in its favor.
It is unnecessary to impress the court anew with these propositions. We have always adhered
to them. But they but lead us to the problem. They do not help to solve it. It is undoubtedly
the duty of courts to uphold statutes passed by the legislature, unless their unconstitutionality
clearly appears, in which case it is equally their duty to declare them null. State v. Arrington,
18 Nev. 412, 4 P. 735, 737. Nor does respondent present to us any case in which this court or
any court in any of the forty-eight states has upheld any act of similar purport, an act
creating an appointive advisory board to an elective office or board created by the
constitution, a board which has all the rights and privileges of the duly elected and
constitutionally authorized board except the right of a "determining" vote.
purport, an act creating an appointive advisory board to an elective office or board created by
the constitution, a board which has all the rights and privileges of the duly elected and
constitutionally authorized board except the right of a determining vote. Even though we
concede the elasticity of the constitution, as a living thing, to be interpreted in the light of
new and changing conditions, even, though we may not condemn legislation simply because
the object or purpose is new (no matter how astonishing or revolutionary) so long as a
constitutional limitation is not violated, the support of such a drastic departure from the usual
conception of the constitutional control vested in a board is undoubtedly weakened by its
total lack of precedent.
8. It is not essential that any given limitation of power be definitely expressed in the
constitution. Every positive direction contains an implication against anything contrary to, or
which would frustrate or disappoint the purpose of that provision. The frame of the
government, the grant of legislative power itself, the organization of the executive authority,
the erection of the principal courts of justice, create implied limitations upon the lawmaking
authority as strong as though a negative was expressed in each instance * * *. 1 Cooley's
Constitutional Limitations, 8th Ed., 177. The rule is here so logically expressed and has been
so long recognized and followed that it may at this time be stated almost as a maxim. State v.
Arrington, 18 Nev. 412, 4 P. 735; State v. Moran, 43 Nev. 150, 182 P. 927. Nor is it
weakened by recognition of the fact that certain executive and judicial powers are often
exercised by the legislature, judicial powers by the executive and certain legislative powers
by the judiciary. Examples of this are so commonly recognized as not to require discussion.
The problem was at the very beginning of this controversy recognized by the opinion of
the attorney general, which is by reference made a part of respondent's brief.
Op.Atty.Gen.1946-1948, p. 269. In answering the query "Does the advisory board [under
the provisions of the act in question] have a vote in the elected board of regents?" the
attorney general held that if the act should be so construed it would be clearly
unconstitutional but that where an act was open to two interpretations, one of which
would render it constitutional and the other unconstitutional, that construction should be
adopted which would save the statute, citing Virginia & Truckee R. Co. v. Henry, S Nev.
165
the query Does the advisory board [under the provisions of the act in question] have a vote
in the elected board of regents? the attorney general held that if the act should be so
construed it would be clearly unconstitutional but that where an act was open to two
interpretations, one of which would render it constitutional and the other unconstitutional,
that construction should be adopted which would save the statute, citing Virginia & Truckee
R. Co. v. Henry, 8 Nev. 165. In advising that the statute would be unconstitutional if it should
be construed as giving the appointed members of the advisory board a vote in the elected
board, the attorney general referred to State v. Torreyson, 21 Nev. 517, 34 p. 870, 874, and
said: The action was a proceeding in quo warranto to try the validity of the attorney general's
claim to act as a member of the regents of the state university, under and by virtue of an act of
the legislature which provided that the governor and attorney general shall be ex officio
members of the board of regents. The court held that under sec. 7 of article XI of the
constitution the office of regent must be filled by an election of the people. The court said:
The word elected, in its ordinary signification, carries with it the idea of a vote, generally
popular, sometimes more restricted, and cannot be held the synonym of any other mode of
filling a position.' The attorney general then quoted the concurring opinion of Bigelow, J., as
follows:
To hold otherwise would be to make the university the football of the legislature. If this
appointment, extending over nearly four years, is valid, there is nothing to prevent the next
legislature, if the composition of the board does not suit them, from making all the other state
officers ex officio regents. There is no reason to suppose that the power, once admitted would
stop with them, but might extend to county officers and to others. But if, in accordance with
the requirements of the constitution, we hold that the regents must be elected by the people,
this places the institution upon a sure and safe foundation, that should eventually lead to
the careful scanning of candidates, and the election of the best men for the positions."
elected by the people, this places the institution upon a sure and safe foundation, that should
eventually lead to the careful scanning of candidates, and the election of the best men for the
positions.
We have no hesitancy in approving that part of the attorney general's opinion that
construes the act as not vesting in the appointed advisory regents the right to a vote in the
elected board of regents. But again this does not solve but only leads us up to our main
problem.
9. In State v. Douglass, 33 Nev. 82, 110 P. 177, 180, involving the validity of an act
providing that the secretary of state be ex officio clerk of the supreme court, a constitutional
office, the court said:
Every constitutional officer derives his power and authority from the Constitution, the
same as the Legislature does, and the Legislature, in the absence of express constitutional
authority, is as powerless to add to a constitutional office duties foreign to that office, as it is
to take away duties that naturally belong to it. The Legislature may do as it sees fit with
offices of its own creation; may consolidate or abolish them; or may enact a statute making an
office of its own creation ex officio to some constitutional office.
The court further said:
It is well settled by the courts that the Legislature, in the absence of special authorization
in the Constitution, is without power to abolish a constitutional office or to change, alter, or
modify its constitutional powers and functions. People v. Bollam, 182 Ill. 528, 54 N.E. 1032;
Koch v. Mayor [, etc., of City of New York] 152 N.Y. 72, 80, 46 N.E. 170; Lloyd v. Smith,
176 Pa. 213, 35 A. 199; Massenburg v. Commissioners, 96 Ga. 614, 23 S.E. 998; Thomas v.
Owens, 4 Md. 189; State v. McDaniel, 19 S.C. 114; Troy v. Wooten, 32 N.C. 377; State v.
Covington, 29 Ohio St. 102; Ford v. [Board of State Harbor] Commissioners, 81 Cal. 19, 22
P. 278; In re Bulger, 45 Cal. 553; Love v. Baehr, supra [47 Cal. 364]; Denver v. Hobart, 10
Nev. 2S, 31
Denver v. Hobart, 10 Nev. 28, 31; 29 Cyc. 1368; Cooley's Constitutional Limitations, (6th
Ed.) pp. 78, 79.
In People v. Bollam, supra, the court said: It is a well-established rule of constitutional
construction that when the Constitution defines the circumstances under which a right may be
exercised, the specification is an implied prohibition against the right of the Legislature to
add to the condition. * * * Section 24 of article 5 of the constitution of 1870 says that an
office is a public position created by the Constitution or law, etc. The Constitution thus
recognizes two classes of officers, one which is created by the Constitution itself, and the
other which is created by statute. Where an office is created by statute, it is wholly within the
control of the Legislature creating it. But when an office is created by the Constitution, it
cannot be enlarged or lessened in scope by any statute, or be filled in any other manner than
the manner directed by the Constitution. People v. Loeffler, 175 Ill. 585, (51 N.E. 785).'
The immediate problem before us is to determine whether the act in question does or does
not change, alter, or modify [the] constitutional powers and functions of the board of
regents created by the constitution. If it does so, then under the well-settled rule approved in
State v. Douglass, supra, we must hold the act invalid.
It is not denied that if the act had simply created an advisory board of regents who shall
be entitled to all the rights and privileges, including travel and incidental expenses, of the
elected regents, to be nominated by the elective board and appointed by the governor, the
attempted creation of such rights in an appointive board would contravene the constitutionally
vested powers of the elective board. Do the so-called saving clauses elsewhere appearing in
the act save it from this taint?
We think it clear that the restriction of the governor's appointive powers, under the act, to
the nominees of the elective board can have no such saving effect.
elective board can have no such saving effect. Indeed the contrary is not urged by respondent.
And if the present act is sound, would it not be just as sound if the legislature repealed the
nominating provision? Or would it not be just as sound if, by its terms, the legislature itself
made the appointments?
10. Is the provision that the appointive regents shall not have a determining vote on any
matter properly under the control of the elected board of regents sufficiently indicative that
the act in question does not in effect change, alter or modify the constitutional powers and
functions of the elected board? Just exactly what the legislature had in mind when it referred
to a determining vote is not clear. Nor is it clear as to what matters would be included in,
and what matters excluded from, matters properly under the control of the elected board of
regents. The use of the terms would naturally indicate that the appointed regents should have
some kind of a vote as distinguished from a determining vote, and that they could have a
determining vote on a matter that was not properly under the control of the elected board of
regents. It has been suggested in the briefs that the appointed board of regents could
probably meet separately as such appointed board and vote upon what advice should be
presented by the appointed board as a whole to the elected board as a whole. Such indeed
might have been the intention of the legislature. It has further been suggested that the
provision that bars a determining vote by the appointed regents on any matter properly under
the control of the elected board of regents simply barred such vote when the elected regents
were performing any of their constitutional functions in their management and control of the
university and intended no distinction whatsoever between matters properly under their
control and matters not properly under their control. Although the choice of words is
undoubtedly an unhappy one, it would be our duty to give the words such reasonable
construction as would carry out the intent of the legislature as we might find it.
such reasonable construction as would carry out the intent of the legislature as we might find
it. For the purpose of our discussion we are willing to assume that the meaning of the
restriction is that whenever any matter within the authority and functions of the elected board
are put to a formal vote only the elected regents may vote thereon and none of the appointed
regents may vote thereon.
There have been established at the University of Nevada by the board of regents a College
of Arts and Science (which includes as a division thereof the School of Education), the
College of Engineering (including the School of Mechanical, Civil and Electrical Engineering
and the Mackay School of Mines), and the College of Agriculture. For the undergraduate
work there are issued degrees of bachelor of arts and bachelor of science. Professional
degrees of mechanical, civil, or electrical engineering may be conferred upon graduates of the
University of Nevada or other universities under certain conditions. Certain curricula lead to
the degrees of master of arts and master of science, but apparently no graduate work is
offered leading to the doctor's degree. The maintenance of this situation, its modification,
change or expansion all lie within the functions of the board of regents. With the growth of
the state, if the history of other colleges may serve as a guide, the college will be greatly
expanded, the curriculum broadened and enriched and graduate schools possibly developed.
We are all familiar with the greatly expanded and broadened curricula and the graduate
schools in our larger universities. The University of Nevada has no graduate school of law or
of medicine. Such schools have not been thought to be warranted in the past, but their
possibility in the future, even if in the far distant future, should not be ignored. We mention
these as some of the larger problems that would have to address themselves to the board of
regents. But without contemplating major changes or additions of this character, constant
problems as applied to the present structure must necessarily present
themselvescourses to be added to or dropped from the curricula in the several colleges,
the personnel of the faculties, the heads of departments, instructors, etc., their functions
and their salaries, the interrelationships of the colleges, schools and departmentsall of
these with a thousand incidents and details must be provided for by the board of regents
in the exercise of the functions of that board.
constant problems as applied to the present structure must necessarily present
themselvescourses to be added to or dropped from the curricula in the several colleges, the
personnel of the faculties, the heads of departments, instructors, etc., their functions and their
salaries, the interrelationships of the colleges, schools and departmentsall of these with a
thousand incidents and details must be provided for by the board of regents in the exercise of
the functions of that board. The more important measures might entail months of
investigation and study.
In all of this the members of the appointed advisory board, with all of the rights and
privileges of the elected board, would participate. They would have the right to attend every
regular and special meeting of the elected board and would be entitled to notice of the time
and place of all meetings to insure their right to attend. They would have a right to participate
in all of the discussions and deliberations. Their arguments could be as extended and their
voices as loud. Only when any question came up to a vote would they be compelled to remain
silent. The final or formal vote of the elected regents would occupy a matter of momentsso
much time as it would take for a calling of ayes and noes from the five members present, or
possibly from the four members or three members present. The investigation of the problem
itself might involve an examination of many witnesses, interviews with the presidents or
members of the faculty of other colleges, comparative studies, examination of data, plans,
documents, etc. In all of this the members of the advisory board would participate under the
act. Everything up to the final vote would be participated in by the constitutional elective
board of five members and the legislatively created appointed advisory board of seven
members. And if the creation of such advisory board of seven members by the legislature is
valid and finds no restraint in the constitutional vesting of control in the elective board,
would not the creation of an advisory board of fourteenor twenty-one or morebe just
as valid?
elective board, would not the creation of an advisory board of fourteenor twenty-one or
morebe just as valid?
Respondent insists that the situation created and presented by the act is simply one in
which the elected regents would at the most be compelled to listen to unwanted advice; that
they are not compelled to heed or to follow such advice; that if this situation is irksome, such
is the fate of all public officers. Respondent suggests that the advice may be in writing and
that the appointed advisory regents may never attend a meeting of the constitutional board.
But it is patent that such suggestion of a possible minimizing of interference is not a logical
defense of the act. The right to be heard runs through all our jurisprudence and through all
the complexities of our government as an important right that carries with it the duty of the
court, tribunal, board or officer to hear, though not necessarily to be convinced. We are of
course most familiar with this in court proceedings. After years of effort it was established in
all administrative bureaus, through the federal administrative procedure act, whose final
recent passage by Congress was largely the result of the efforts of a former chief justice of
this court now serving in the United States Senate. It is recognized in minority representation,
on various boards, in business as well as in government. It is illustrated in many functions of
the general assembly of the United Nations, even though final action may be within the
jurisdiction of the security council alone.
We cannot avoid a consideration of the far-reaching effect of our decision as a precedent
in future cases were we to abdicate our right and our duty to declare this act void if the rights
and privileges thereby accorded to the appointed advisory board change, alter or modify the
constitutional powers and functions of the elected board. State v. Douglass, supra. Thus the
legislature in its wisdom might deem it advisable to provide for the appointment in some
manner of an advisory board to the governor or an advisory board to the secretary of
state or to the state comptroller or to the state treasurer in the exercise of its asserted
constitutional power to determine the duties of those constitutional officers.
legislature in its wisdom might deem it advisable to provide for the appointment in some
manner of an advisory board to the governor or an advisory board to the secretary of state or
to the state comptroller or to the state treasurer in the exercise of its asserted constitutional
power to determine the duties of those constitutional officers. Though in each case the
legislature might provide that the advisory board be without a determining vote and that no
powers were intended to be granted in derogation of the constitutional rights and powers of
the particular officers but that it should otherwise have all of the rights and privileges of that
officer, it would be manifest that such a situation would be contrary to the intention of the
framers of the constitution. The governor in calling for legislation by the legislature or in
vetoing acts passed by the legislature, in making various appointments, in considering
requisitions for writs of extradition, in sitting as a member of the state tax commission, the
board of paroles and pardons, and numerous other boards and in the performance of a
hundred other executive and administrative functions, would be more than irked by having
to listen to unwanted advice. Such a situation would substantially change, alter and modify
his constitutional powers and privileges. Further examples are unnecessary. Nor is the
illustration farfetched, once we open the door to legislation of this nature. It is the more
important that we stress this when considering the insistence of the attorney general, on
behalf of the respondent, that to give regents control of the University does not exclude the
legislature from providing a means for insuring that it shall perform its duties. And in
answer to the contention of appellant that the board of regents would be rendered powerless
to prevent the creation of claims for necessary expense incurred by members of the advisory
board in attending meetings, respondent insists: Even so, nothing in the constitution or laws
of Nevada exempts the elected board from the supervision of the legislature in this
specific respect."
exempts the elected board from the supervision of the legislature in this specific respect.
We are satisfied that the voting restrictions placed on the advisory board do not save the
act.
Appellant places great reliance upon the case of Sterling v. Regents of the University of
Michigan, 110 Mich. 369, 68 N.W. 253, 256, 34 L.R.A. 150, which involved an act of the
Michigan legislature requiring the board of regents of the University of Michigan to establish
a homeopathic medical college at Detroit and to discontinue the existing homeopathic college
maintained as a branch of the university in the city of Ann Arbor, and to transfer the Ann
Arbor branch to Detroit. The supreme court of Michigan said:
Obviously, it was not the intention of the framers of the constitution to take away from
the people the government of this institution. On the contrary, they designed to, and did,
provide for its management and control by a body of eight men elected by the people at large.
They recognized the necessity that it should be in charge of men elected for long terms, and
whose sole official duty it should be to look after its interest, and who should have the
opportunity to investigate its needs, and carefully deliberate and determine what things would
best promote its usefulness for the benefit of the people. Some of the members of the
convention of 1850 referred in the debates to two colleges (one in Virginia and the other in
Massachusetts) which had been failures under the management by the state. It is obvious to
every intelligent and reflecting mind that such an institution would be safer and more certain
of permanent success in the control of such a body than in that of the legislature, composed of
132 members, elected every two years, many of whom would, of necessity, know but little of
its needs, and would have little or no time to intelligently investigate and determine the policy
essential for the success of a great university.
After calling attention to the fact that the legislature could undoubtedly place certain
conditions upon the expenditure of funds appropriated by it for the university, the court
then refers to certain funds belonging to the university at the time of the adoption of the
constitution and which were at that time its sole support.
could undoubtedly place certain conditions upon the expenditure of funds appropriated by it
for the university, the court then refers to certain funds belonging to the university at the time
of the adoption of the constitution and which were at that time its sole support. The Michigan
constitution had vested in the regents the direction and control of all expenditures from such
funds, and the court in vigorous language held that the legislature was without power to
control these expenditures by dictating what departments of learning the regents might
establish and where they should be located. It held that the expenditure of such funds vested
in the regents, in absolute and unqualified terms. The court said. The board of regents and
the legislature derive their power from the same supreme authority, namely, the constitution.
In so far as the powers of each are defined by that instrument, limitations are imposed, and a
direct power conferred upon one necessarily excludes its existence in the other, in the absence
of language showing the contrary intent.
Respondent properly distinguishes this case by calling our attention to the fact that the
Michigan constitution contained no clauses similar to our own providing that the duties of the
regents shall be prescribed by law or that the original interim board should control and
manage the affairs of the University and the funds of the same under such regulations as may
be provided by law. Indeed the supreme court of Michigan points out that the Michigan
constitution, article 13, secs. 1, 9, in creating the office of superintendent of public instruction
and in creating the board of education in each case provided: Their duties shall be prescribed
by law, but did not so provide with reference to the regents of the university. The distinction
of the Michigan case has force, however, only if we conclude that the Nevada act appointing
the advisory board of regents is an exercise of the constitutional power to prescribe the
duties or define the duties of the regents. But it is idle to say that the act does no more
than to prescribe or define the duties of the elected regentscreating, as it does, a new
and additional appointive advisory board with all the rights and privileges of the
constitutional elective board except certain voting rights.
that the act does no more than to prescribe or define the duties of the elected
regentscreating, as it does, a new and additional appointive advisory board with all the
rights and privileges of the constitutional elective board except certain voting rights. If we are
correct in concluding that the defining of duties is one thing, and that the creating of a new
board with equal rights and privileges (with the exception noted) is an entirely different thing,
then the Michigan case (with whose philosophy we are in entire accord) becomes authority of
the highest rank.
Before leaving the case of Sterling v. Regents of the University of Michigan, supra, we
should note that the case was the culmination of many attempts of the Michigan legislature to
direct the control of the university and that in each case the attempts were held to be without
force. The earlier Michigan cases are referred to in the opinion in the Sterling case and
reference is made to the very pertinent discussions contained in those cases, as well as the
later cases of State Board of Agriculture v. State Adm. Board, 226 Mich. 417, 197 N.W. 160,
and State Board of Agriculture v. Fuller, Auditor General, 180 Mich. 349, 147 N.W. 529.
Trapp v. Cook Construction Co., 24 Okl. 850, 105 P. 667, 669, involved the validity of an
Oklahoma statute creating the state board of public affairs with authority to contract for and
erect buildings for the board of agriculture acting as a board of regents for the state
agricultural and mechanical college. The Oklahoma constitution, providing for and creating
the board of agriculture, provided that such board shall have jurisdiction over all matters
affecting animal industry and animal quarantine regulations, and shall be the Board of
Regents of all State Agricultural and Mechanical Colleges, and shall discharge such other
duties * * * or may hereafter be provided by law. Const. art. 6, sec. 31. As in Nevada, the
Oklahoma legislature enacted legislation further defining the duties of the regents.
The regents entered into certain construction work and issued vouchers in payment to the
contractor, but the state auditor refused to draw his warrant upon the state treasurer for the
same for the reason that the vouchers had not been approved by the legislatively created state
board of public affairs. The court said: From the foregoing it will be seen that the conflict
arises out of the question of whether or not the Legislature had the constitutional authority to
pass the act just referred to * * * or whether the designation by the Constitution of the board
of agriculture as the board of regents of this college carried with it irrevocably, so far as the
Legislature was concerned, the power and authority here sought to be exercised to contract
and erect buildings for the state agricultural and mechanical college, and the auditing and
direction of the disposition of all moneys appropriated therefor. The court then discusses the
use of the clause of the constitution providing that the regents shall discharge such other
duties * * * as may be provided by law. The court says: As we view it, additional duties
may be required, but none vested by the Constitution may be taken away by the Legislature.
In this conclusion we find support in the adjudication of a number of courts and authorities,
of which we note the following: Cooley's Constitutional Limitations, 7th Ed., p. 98; State ex
rel. Crawford v. Hastings, 10 Wis. 525; State ex rel. Kennedy v. Brunst, 26 Wis. 412, 7
Am.Rep. 84; Dahnke v. People, 168 Ill. 102, 48 N.E. 137, 39 L.R.A. 197; People [of the State
of New York] ex rel. McEwan v. Keeler, 29 Hun. [N.Y.], 175; People ex rel. Bolton et al. v.
Albertson, 55 N.N. 50; People ex rel. Kingsland v. Bradley, 42 How.Pr., N.Y., 423; People v.
Raymond, 37 N.Y. 428; In re Railroad Commissioners, 15 Neb. 679, 50 N.W. 276; McCabe
et al. v. Mazzuchelli, 13 Wis. 478; State ex rel. Martin v. Doyle, 38 Wis. 92; City of
Watertown v. Robinson, 69 Wis. 230, 34 N.W. 139; State ex rel. Raymer v. Cunningham, 82
Wis. 39, 51 N.W. 1133; State ex rel.
ex rel. Sweet et al. v. Cunningham et al., 88 Wis. 81, 57 N.W. 1119, 59 N.W. 503.
The court then discusses State ex rel. Crawford v. Hastings, cited in the foregoing list, and
quotes from the opinion of the able jurist Chief Justice Dixon as follows:
The question arises whether, under the foregoing provision of the Constitution, the
Legislature have the power to create a second auditor or officer authorized to perform the
same duties, whose concurrence is necessary before the acts of the constitutional auditor shall
take effect. We think they have not, and that the functions of that officer cannot, in whole or
in part, be transferred to, or be exercised concurrently, or otherwise, by any person or officer.
It falls directly within the rule that the express mention of one thing implies the exclusion of
another. Expressio unius est exclusio alterius. This rule applies as forcibly to the construction
of written Constitutions as other instruments, and, if its observance ought in any degree to
depend upon the character or importance of the instrument under consideration, then no other
cases demand so rigid an adherence to it. A Constitution being the paramount law of a state,
designed to separate the powers of government and to define their extent and limit their
exercise by the several departments, as well as to secure and protect private rights, no other
instrument is of equal significance. It has been very properly defined to be a legislative act of
the people themselves in their sovereign capacity, and, when the people have declared by it
that certain powers shall be possessed and duties performed by a particular officer or
department, their exercise and discharge by any other officer or department are forbidden by a
necessary and unavoidable implication. Every positive delegation of power to one officer or
department implies a negation of its exercise by any other officer, department, or person. If it
did not, the whole constitutional fabric might be undermined and destroyed.
destroyed. This result could be as effectually accomplished by the creation of new officers
and departments exercising the same power and jurisdiction as by the direct and formal
abrogation of those now existing, and, although the exercise of this power by the Legislature
is nowhere expressly prohibited, nevertheless they cannot do so. The people having in their
sovereign capacity exerted the power and determined who shall be their auditor, there is
nothing left for the Legislature to act upon. This principle or rule of construing Constitutions
has been often laid down and acted upon by courts.
The similarity of that case to State of Nevada v. Douglass, supra, immediately commands
attention. The Oklahoma opinion then proceeds as follows:
This rule of construction extends to every part of the instrument, and, if a violation of it is
allowed in the case of the auditor, it is difficult to see why it should not be in the case of any
other officer or department. Thus, the Legislature might with equal propriety create new
courts of justice, usurping and exercising the same power and jurisdiction as those established
by the people, and a new executive, to correct the mistakes and control the action of the one
chosen by them. It seems to us clear that the Legislature could do neither, and that so much of
the act under consideration as attempts to transfer to the so-called comptroller the functions
of auditor, and to clothe him with authority to control or reverse the acts of that officer, is
unconstitutional and void.
State ex rel. University of Minnesota v. Chase, State Auditor, 175 Minn. 259, 220 N.W.
951, 954, involved the validity of a legislative act attempting to subject the control of
university finances to the supervision of the statutory commission of administration and
finance. The board of regents was incorporated by the territorial assembly of 1851 with the
right to govern the university. By the state constitution all the rights, immunities,
franchises and endowments so granted were "perpetuated unto" the university.
perpetuated unto the university. M.S.A.Const. art. 8, sec. 4. The court said:
So we find the people of the state, speaking through their Constitution, have invested the
regents with a power of management of which no Legislature may deprive them. That is not
saying that they are the rulers of an independent province or beyond the lawmaking power of
the Legislature. But it does mean that the whole executive power of the University having
been put in the regents by the people, no part of it can be exercised or put elsewhere by the
Legislature. In consequence, so far as L.1925, p. 756, c. 426, attempts to give the commission
any power of supervision or control over university finances, it is in violation of article 8, sec.
4, of the state constitution and therefore inoperative.
The court noted that the original territorial act vested in the regents the power to govern;
that is, the power to control, citing authority for the synonymous use of the two wordsthe
Minnesota regents being given the right to govern and the Nevada regents being given the
right to control. We note again frankly that there was lacking in the Minnesota constitutional
provision the reservation to the legislature of the right to fix the duties of the regents, but as
above noted, encroachment on constitutional functions cannot be justified in the guise of
defining duties, so that the lack of the Nevada clause in the Minnesota constitution does not
weaken the authority of the Minnesota case.
Idaho has been faced with a similar conflict as to the right of the legislature to enter into the
control of the University of Idaho by its board of regents. The Idaho constitution vested in the
board of regents of the University of Idaho the general supervision of the university, and the
control and direction of all the funds of, and appropriations to, the university, under such
regulations as may be prescribed by law. Const. art. 9, sec. 10.
sec. 10. In State ex rel. Black v. State Board of Education, 33 Idaho 415, 196 P. 201, the court
held that such regulations must not be of a character to interfere essentially with the
constitutional discretion of the board, under the authority granted by the constitution. So it
was held that there was no obligation resting upon the board of regents to pay the state
treasurer the proceeds of the sale of property belonging to the university, in the absence of
conditions contained in an appropriation which, by being accepted, raised an implied contract
on the part of such board, and held that such proceeds of sale might be paid directly to the
treasurer of the university. The court held that the board of regents, while functioning within
the scope of its authority, is not subject to the control or supervision of any other branch,
board or department of the state government. Note that the Idaho constitution permitted the
legislature to prescribe regulations, while the Nevada constitution authorized the legislature
to define duties. The further the distinctions between the cases are pointed out the more finely
is the line drawn. In the later Idaho case, Dreps v. Board of Regents of the University of
Idaho, 65 Idaho 88, 139 P.2d 467, 471, payment of salary of a clerk of the board, a niece of
one of the members, was refused on account of the provisions of the Idaho nepotism act. The
action grew out of such refusal of payment and the question presented to the Supreme Court
of Idaho was whether the legislature had the power to make the nepotism act applicable to the
board of regents of the university. The Idaho territorial legislature had created the University
of Idaho and defined the powers of the board of regents and, as in the Minnesota and
Oklahoma cases, the state constitution had perpetuated all of the rights, immunities,
franchises, etc., unto the said university. It was contended that the above-italicized clause in
the Idaho constitution conferred certain lawmaking power on the legislature. The court said:
"It is not believed that the framers of the constitution meant any such thing by using the
words, 'under such regulations as may be prescribed by law,' for the reason that to give
this clause such a construction would contradict and repudiate the terms of the preceding
sentence and likewise impair the authority conferred by the territorial act, which was
made a part of the constitutional charter and declared 'hereby perpetuated.'"
It is not believed that the framers of the constitution meant any such thing by using the
words, under such regulations as may be prescribed by law,' for the reason that to give this
clause such a construction would contradict and repudiate the terms of the preceding sentence
and likewise impair the authority conferred by the territorial act, which was made a part of the
constitutional charter and declared hereby perpetuated.'
The court refers at length to Sterling v. Regents of the University of Michigan, supra, and
State v. Chase, supra, [175 Minn. 259, 220 N.W. 954] in which the court held that the
university in respect to its government was put beyond the power of the Legislature by
paramount law, the right to amend or repeal which exists only in the people themselves. The
court also refers to People v. Barrett, 382 Ill. 321, 46 N.E.2d 951, in which it was held that
the University of Illinois board of regents was not an agency or instrumentality of the state
but a separate, corporate entity, which functions as a public corporation and was therefore
entitled to employ its own counsel and advisor and that such functions were not the duty of
the attorney general. The opinion discusses at some length the freedom of the institution from
legislative control and the Illinois court's opinion appears to have strengthened the Idaho
court's reliance upon the Michigan cases. We mention this case for the reason that counsel
have discussed at some length in their briefs the extent of the public or corporate nature of
respondent, particularly with reference to the applicability of the rules laid down in the
Dartmouth College case. The Trustees of Dartmouth College v. Woodward, 4 Wheat., U.S.
518, 4 L.Ed. 629. We do not find it necessary to discuss this phase of the situation.
It is significant that of all of the authorities cited by both appellant and respondent not one
has been submitted in which a legislative act creating an advisory board to a constitutional
office has been involved. However, in Rich v. Chamberlain, 104 Mich. 436, 62 N.W.
584, 27 L.R.A. 573, there was involved the validity of an act creating an advisory board of
pardons whose duty was to investigate applications of convicts and to report to the governor
the result of investigations with their recommendations in respect to pardons or commutations
or refusal thereof. Upon receiving the result of the examination and the recommendations of
the advisory board the governor may, at his discretion upon such conditions, with such
restrictions and under such limitations as he may deem proper, grant the desired pardon, or
commutation. Pub.Acts 1893, No. 150, sec. 6. The constitutional provision was that the
governor may grant reprieves, commutations and pardons * * * subject to regulations
provided by law, relative to the manner of applying for pardons * * *. Const.1850, art. 5,
sec. 11. The Supreme Court of Michigan, in holding the act to be a violation of the
constitutional vesting of the pardoning power in the governor, said [104 Mich. 436, 62 N.W.
585]:
This section of the constitution, in express terms, lodges the pardoning power with the
governor, and with it the co-ordinate branches of government have nothing to do, except as
the legislature may by law provide how applications may be made, and is entitled to a report
of action taken. * * *
The power conferred by this section of the constitution is practically unrestricted, and the
exercise of executive clemency is a matter of discretion, subject, perhaps, to the remedy by
impeachment in case of flagrant abuse. It cannot, however, be treated as a privilege. It is as
much an official duty as any other act. * * *
It is therefore of the highest importance to the public that this power should be carefully
exercised, and that the fullest responsibility should rest upon the person to whom it is
confided. The office of governor seems to be generally considered the proper one with which
to lodge such responsibility, and the public have the right to insist upon his performance of
the duty.
to insist upon his performance of the duty. Not only is it beyond the power of the legislature
to impose the duty upon others, but it should not in anyway lessen his responsibility to the
public, when he sets aside the judgment of court and jury by opening the doors of a prison to
a convicted felon. If the act in question does this, it should not be sustained. The effect of it is
to establish a sort of tribunal open to convicts, where the question of whether they should be
pardoned or be licensed to go at large may be tried. The conclusion reached,i.e. the
result,accompanied by a recommendation, must be certified to the governor, who then
grants or refuses a pardon, as he may think advisable. * * *
But the vital defect in the act is that it tends to substitute the judgment of the board for
that of the governor. It can be truly said that the opinions of the board need not be
controlling. But the tendency is naturally to offer an opportunity, if not an inducement, to an
overburdened magistrate, to depend upon the judgment of a board in which he has
confidence, and which has made a more careful investigation than he has made, and to act
upon the recommendation of such board, while the public have a right to the fullest exercise
of his own understanding and judgment, which they have signified by their constitution that
they desire. This right should not be thwarted or placed in jeopardy by a law whose natural
result may be expected to contravene the spirit of the constitutional provision.
In conclusion the court said:
As we have already said, the subject is expressly removed from legislative interference,
and we think that the law of 1893, providing for the advisory board, is clearly
unconstitutional.
It is interesting to note, also, that the court remarked with reference to the act under
consideration:
It is however, a significant fact, and one that bears forcibly upon this case, that we have
found no instance where a board has been created by statute, but invariably by
constitutional provisions."
where a board has been created by statute, but invariably by constitutional provisions.
Following this remark the court referred to the constitutional provisions in various states,
including Nevada, in which under the constitution the governor, justices of the supreme court
and the attorney general constitute the board.
Rich v. Chamberlain was cited with approval and quoted at length in Ex parte Ridley, 3
Okl.Cr. 350, 106 P. 549, 26 L.R.A.,N.S., 110, and in Ex parte Bustillos, 26 N.M. 449, 194 P.
886, and in Laird v. Sims, 16 Ariz. 521, 147 P. 738, L.R.A. 1915F, 519 (where the case was
considered at length in the prevailing opinion and in the dissenting opinion, and apparently
approved in both). In State v. Jenkins, 20 Wash. 78, 54 P. 765, the court held that the
governor's pardoning power could not, by a legislative act creating a board of pardons with
power to recommend pardons, be restricted or controlled, since the power granted the
legislature to regulate and restrict did not confer the power to abridge the executive functions.
The constitutional provision there read: The pardoning power shall be vested in the
governor, under such regulations and restrictions as may be prescribed by law. Const. art.
III, sec. 9. The statute required an application for pardon to be made to the board and the
board's recommendations to be made to the governor. These cases are in point only to a
limited extentboth by reason of the varying constitutional provisions and by reason of the
nature of the boards created by the several statutes under attack. There is, however, a distinct
analogy. The foregoing cases consider the legislative appointment of an advisory pardon
board with power only to investigate and recommend, under a constitutional provision
vesting the pardoning power solely in the governor but with a right in the legislature to
provide the manner of making the application, or to regulate, or to regulate and restrict. The
instant case considers the legislative provision for the appointment of an advisory board to
the board of regents {with all rights and privileges of the elected board except the right to
a determining vote) whose advice the constitutional board may or may not take, under
the constitutional vesting of power to control the university in an elected board of regents
whose duties shall be prescribed by law.
considers the legislative provision for the appointment of an advisory board to the board of
regents (with all rights and privileges of the elected board except the right to a determining
vote) whose advice the constitutional board may or may not take, under the constitutional
vesting of power to control the university in an elected board of regents whose duties shall be
prescribed by law.
11. In State v. Arrington, 18 Nev. 412, 4 P. 735, this court held to be unconstitutional an
act of the legislature extending for an additional period of two years the office of county
assessor of Eureka County, for the reason that the constitution required such officers (even
though the office be created by the legislature) to be elected by vote of the people. This case
was relied upon in State v. Moran, 43 Nev. 150, 182 P. 927, in which case this court likewise
struck down an act of the legislature authorizing district judges to suspend sentence on
persons convicted of crime. It based its decision upon the constitutional provision providing
that the governor, justices of the supreme court and attorney general may, upon such
conditions and with such limitations and restrictions as they may think proper, remit fines and
forfeitures, commute punishments and grant pardons, after conviction * * * subject to such
regulations as may be provided by law relative to the manner of applying for pardons. Const.
article V, sec. 14. It is true that the power there reserved to the legislature, namely, to provide
regulations relative to the manner of applying for pardons, differs from the legislative power
to define the duties of the regents. The case is mentioned, however, by way of analogy. The
power vested in the board of pardons by the constitution was held to be exclusive of any
power in any other branch of the government, save only as to the right of the legislature to
provide regulations relative to the manner of applying for pardons. So here the right of the
regents to control the university, in their constitutional executive and administrative
capacity, is exclusive of such right in any other department of the government save only
the right of the legislature to prescribe duties and other well-recognized legislative rights
not here in question.
administrative capacity, is exclusive of such right in any other department of the government
save only the right of the legislature to prescribe duties and other well-recognized legislative
rights not here in question.
Does section 4 of the act save it? Section 4 reads: No provision of this act shall be
construed to be in derogation of the constitutional authority of the elected board of regents to
administer the affairs of the university. While the wording of this section has been criticized
as an attempt to control the action of this court as well as any other court or persons in
construing the act, we are willing for the purpose of this opinion to read section 4 as meaning
that the members of the advisory board are not intended to be given any powers in derogation
of the powers of the elected board. But will that save the act? Let us assume for a moment
that section 3 instead of denying to the advisory board a determining vote, had expressly
given them an equal voting right with the elected board, but section 4 was nevertheless
retained. The entire statute would then reduce itself to an absurdity. Though not to so great a
degree, the conferring of all other rights and privileges * * * of the elected regents on the
advisory regents has a like effect. In other words, if the statute definitely creates powers in the
advisory board in derogation of the constitutional powers of the elected board, clearly in
violation of the constitutional vesting of powers in the latter, can that be cured by a legislative
statement that the statute may not be constructed so to do, or that the statute is not intended to
confer any such power? We think it clear that section 4 cannot have the effect of saving the
statute. It cannot effectively provide that the statute does not accomplish precisely what the
rest of the statute does accomplish.
Both appellant and respondent have referred to the debates of the constitutional convention
to see whether any matters therein appearing would throw any light on the intention of the
framers of the constitution with regard to the extent of the control of the university to be
vested in the board of regents.
regard to the extent of the control of the university to be vested in the board of regents. The
discussion takes up a number of pages, but we think the most significant part appears in the
following: Section 4 of article XI (after there had been eliminated by vote certain restrictions
to white pupils and residents) was submitted in the following language:
The legislature shall provide for the establishment of a state university, which shall be
under the control of a Board of Regents.
Mr. Nourse then stated: I like the general idea of that very much, only I would suggest to
add to it, whose powers and duties shall be prescribed by the Legislature,' and not leave it to
be inferred, perhaps, that they have absolute control. I will vote for it with that addition.
Mr. Crosman stated: I will accept of that, although I think it would rather be inferred.
Mr. Collins later insisted that the section simply provides that the Legislature shall
appoint a Board of Regents, and said Board of Regents shall prescribe rules and regulations
for the State University.
Mr. Crosman again insisted: I want the Legislature simply to provide for the University,
and then let it be under the control and management of the Board of Regents, as provided by
law.
There was further discussion and the section was finally adopted by rejecting the clause
whose powers and duties shall be prescribed by the legislature, and using instead the
clause whose duties shall be prescribed by law. Thus on the one hand the convention
refused to grant powers to the legislature to restrict the powers of the regents but did grant the
legislature the right to prescribe the duties of the regents. Mr. Nourse would have authorized
the legislature to prescribe both the powers and duties of the regents and not leave it to be
inferred perhaps, that they have absolute control. In frankness it must be said that the
recourse to these debates affords scant assistance.
it must be said that the recourse to these debates affords scant assistance. The absolute control
by the regents undoubtedly finds some restriction in the addition of the clause whose duties
shall be prescribed by law. The indication is just as clear, however, that the restriction is
neither so rigid nor so far-reaching as it would have been had it authorized the legislature to
prescribe their powers. Constitutional Debates and Proceedings, 585 et seq. It is interesting to
note, however, that the act of February 7, 1887, An Act relating to the State University and
matters properly connected therewith, provides in section 3 thereof, The powers and duties
of the Board of Regents are as follows: First, etc.
The argument that the legislature has in several instances, commencing with the general
act defining the duties of the regents, passed laws touching upon the control of the university
and that such acts have not been questioned was likewise made in State ex rel. University of
Minnesota v. Chase, 175 Minn. 259, 220 N.W. 951, 957. This was referred to as the argument
of practical construction, to which the court gave special attention and extended discussion
because it had in that case so much factual basis. Reference is made to the very learned
discussion there had and the conclusion there reached that when the inescapable meaning of
the constitution is apparent from the instrument itself it is not then permissible to adopt any
different practical construction of a constitution, however long continued or well established,
or however distinguished its authorship. (The authorship of the legislature.)
While it is urged by appellant that the act is invalid for the further reason that it divides
and clouds responsibility for official acts done in the name of the elected board, that it will
result in buck passing and shoulder shrugging and would discourage men from seeking or
accepting the office of regent, and while these contentions have some measure of appeal, they
go more to the wisdom, judgment and policy of the legislation, in which field the
legislature is supreme.
wisdom, judgment and policy of the legislation, in which field the legislature is supreme.
Indeed so far as anything is presented in this case, no reason is shown why the legislature
could not increase the personnel of the board of regents from five to seven or nine, or any
other number. Nor has any constitutional objection been suggested, in case a large board
should be too unwieldly and impracticable for the holding of numerous meetings for routine
purposes, to the appointment by the regents of an executive committee whose acts would be
subject to approval by the board. In such case, however, the members of the enlarged board
would still, under the constitutional requirement, be elected by the people and responsible to
them. They would not constitute a second and additional board with all the rights and
privileges of the constitutional board and whose existence is sought to be justified (1) by
calling them an advisory board, (2) by depriving them of a determining vote, and (3) by a
recital that the act shall not be construed to be in derogation of the constitutional authority of
the elected board.
It is urged by respondent that the act in question grants to the advisory board rights and
privileges only, and no powers, and thus cannot encroach upon the powers of the elected
board. This distinction is too finely drawn and we are not impressed by it. The terms have
often been held to be synonymous and it has been said that whatever may be the value of the
distinction in ethics, in law it is very shadowy and unsubstantial. See State v. Koch, 33
Mont. 490, 85 P. 272, 274, 8 Ann. Cas. 804; Memphis State Line R. Co. v. Forest Hill
Cemetery Co., 116 Tenn. 400, 94 S.W. 69; Freligh v. Directors of Saugerties, 70 Hun. 589,
24 N.Y.S. 182.
Appellant contends that the creation of the advisory board, with provision for its travel
and incidental expenses, is invalid because said board is not a part of the general school
system of the state and could not legally draw such expenses from university funds. Appellant
also contends that this provision invades the constitutional power of the elected board to
control absolutely the financial affairs of the university, and that it is further invalid
because the statute places no limit upon the amount of travel and incidental expense that
may be incurred and designates no fund from which the same may be drawn and makes
no appropriation therefor.
constitutional power of the elected board to control absolutely the financial affairs of the
university, and that it is further invalid because the statute places no limit upon the amount of
travel and incidental expense that may be incurred and designates no fund from which the
same may be drawn and makes no appropriation therefor. For support of these contentions
appellant relies upon State v. Eggers, 29 Nev. 469, 91 P. 819, 16 L.R.A., N.S., 630; Ingram v.
Colgan, 106 Cal. 113, 118, 38 P. 315, 39 P. 437, 28 L.R.A. 187, 46 Am.St.Rep. 221, and
other authorities and refers to constitutional provisions requiring appropriations to be made
by law before the drawing of funds from the treasury. These contentions are of interest and
not without force but in view of the conclusions reached on other points involved, we do not
find it necessary to pass upon them.
Respondent insists that the unquestioned right of the legislature to appropriate the required
funds for maintaining the university indicates that the elected board of regents was not vested
by the constitution with exclusive and plenary control. However, the two processes are
distinct. The power of the legislature to provide the requisite money and to limit and decrease
the amount considered by the regents to be necessary is entirely a different function from the
administration and control of the university itself.
12. From what we have said it is clear that we are of the opinion that it was the intention
of the framers of the constitution to vest exclusive executive and administrative control of the
university in a board of regents to be elected by the people and that the act creating the
advisory board would change, alter or modify its constitutional powers and functions and
cannot find its justification in the power of the legislature to define the duties of the elected
board.
Accordingly, the complaint of plaintiff, appellant herein, seeking to enjoin the board of
regents from making nominations to the governor for the appointment of members of the
advisory board of regents, based upon the contention that the act in question was void,
stated a cause of action, and the general demurrer thereto should have been overruled.
the contention that the act in question was void, stated a cause of action, and the general
demurrer thereto should have been overruled. No facts are in controversy and the question is
purely one of law. The judgment of the district court dismissing the action and dissolving the
temporary restraining order is reversed and the case is remanded to the district court with
instructions to overrule the defendant's demurrer and to issue, without bond, the permanent
injunction prayed for. Neither party will recover costs in this court.
Eather, C. J., (dissenting):
I regret that I am unable to concur in the conclusion reached by the majority opinion.
Mindful of, and giving consideration to judicial precedents established by this court in
numerous decisions, and being guided by law as thus announced, I am obliged to record my
dissent.
A careful reading of the legislative act, the subject matter of this litigation, convinces me
that by its provisions there is created an advisory board denuded of any right to vote on
university affairs and possessing only the right to give counsel and advice to elected regents.
The provisions of the act creating the advisory board do not usurp or transgress any authority
or power vested in the elected board, nor do they confer any such authority upon the advisory
board. Its provisions expressly disavow such intention. Nowhere within the four corners of
this statute is there any provision making it the duty of the elected board of regents to accept
or be bound by the counsel and advice offered by the advisory board. They are at liberty to
accept or reject it at their pleasure and discretion.
If, as the majority opinion concludes, and upon this point alone I concur, the advisory
board has no vote, then the law as I construe its provisions does not make it the mandatory
duty of the elected board to request advice or counsel from the advisory board, or if advice
is offered, no legal mandate requires its acceptance.
advice or counsel from the advisory board, or if advice is offered, no legal mandate requires
its acceptance. This being true, wherein does the act encroach upon the domain vested in the
elected board?
In my opinion, therefore, with this premise established as a correct construction of the act,
how can one cogently conclude that any provision of the act changes, alters or modifies the
constitutional powers and functions of the elected board of regents?
I am not unmindful that under the act the advisory board is entitled to all rights and
privileges of the elected board. Such rights and privileges are restricted, however, to acting
in an advisory capacity. The act by its provisions plainly indicates what the legislature had in
mind in drafting and enacting this law, to wit: furnishing the University of Nevada, by way of
counsel and advice, the assistance obtainable from residents of the state who have
distinguished themselves in the business, professional, and cultural life of the State and
nation. All residents of Nevada are justly proud of their University. It is the earnest desire of
all citizens that it continue to maintain its high standard among the colleges and universities
of the United States. The people of Nevada, through its legislature apparently felt the need of
furnishing to the elected regents a source of knowledge and experience that would be
available, and at their command if desired. To supply such assistance the instant act became a
law.
That the board thus created is purely advisory to elected regents is clearly demonstrated by
the provisions of the act. The title of the act indicates that the proposed legislation creates an
advisory board of regents.
The whereas clearly discloses in the qualifications required by those to be appointed,
that the board thus to be created is purely advisory. Observe the language used, after stating
the type of resident to be appointed, it concludes, and whose counsel may be sought, by the
elected board of regents; not whose counsel shall be offered, not whose counsel must be
followed, but whose counsel may be sought by the elected board of regents.
offered, not whose counsel must be followed, but whose counsel may be sought by the
elected board of regents. (Emphasis added.)
Section 1 of the act creates the board and designates the board thus created the board of
advisory regents.
Section 2 prescribes the qualifications and manner of selection of members.
Section 3 enumerates the duties and specifically restricts the voting right of members of
the advisory board. It is the provisions of this section, upon which is bottomed the legal
conclusion that the legislature has thereby encroached upon the constitutional provisions
vesting power in the elected board of regents. This because it is asserted the section grants to
the advisory board all the rights and privileges * * * of the elected regents.
To reach this pronouncement, emphasis is placed only on the isolated phrases all the
rights and privileges, and the related clauses are excluded. It is a cardinal rule of statutory
construction that courts have no authority to eliminate language used in a statute * * * but
are bound to give effect, where possible, to all the language used. Heywood v. Nye County,
36 Nev. 568, 137 P. 515.
Section 3 of the act as well as the title, the whereas, and other sections must be considered
together to correctly gather the legislative intent.
Section 3 reads:
The advisory board of regents so appointed shall act in an advisory capacity to the elected
board of regents and shall be entitled to all the rights and privileges, including travel and
incidental expenses, of the elected regents, but shall not have a determining vote on any
matter properly under the control of the elected board of regents.
Section 4 reads:
No provision of this act shall be construed to be in derogation of the constitutional
authority of the elected board of regents to administer the affairs of the university."
board of regents to administer the affairs of the university.
By section 3 we have a statement in no ambiguous language that the advisory board shall
act in an advisory capacity to the elected board. Giving effect to this language which
immediately precedes the words shall be entitled to all rights and privileges and being
mindful of the court's duty to give the statute a fair and liberal construction, I am justified in
concluding, that when their action in the first instance is restricted to acting in an advisory
capacity, that it is in such capacity they shall be entitled to all rights and privileges of
elected regents.
The construction placed upon this section by the majority opinion recognizes that by its
wording the board is to act in an advisory capacity, yet, by the language shall be entitled to
all rights and privileges the legislature thereby changed the status of board members from
advisory capacity to regency capacity. This construction would make the title of the act
not sufficiently broad to give notice of the purpose of the proposed legislation and embracing
matters not covered by the title, in violation of art. IV, sec. 17 of the constitution of the State
of Nevada. The title of the act refers only to creating an advisory board and not a board
with powers to actually function as regents, as determined by the majority opinion.
We have then a legislative act susceptible of two divergent constructions, one which
invalidates the law; the other sustains it as valid. Under these conditions I apply the
recognized rule of statutory construction, namely:
In construing a statute to give effect to the intent or purpose of the legislature, the object
of the statute must be kept in mind, and such construction placed upon it as will if possible,
effect its purpose, and render it valid. * * * To this end it should be given a reasonable or
liberal construction; and if susceptible of more than one construction, it must be given that
which will best effect its purpose rather than one which would defeat it, even though such
construction is not within the strict literal interpretation of the statute."
construction, it must be given that which will best effect its purpose rather than one which
would defeat it, even though such construction is not within the strict literal interpretation of
the statute. 59 C.J. sec. 571, page 961, citing State v. Martin, 31 Nev. 493, 103 P. 840; and
State v. Eggers, 36 Nev. 372, 136 P. 100.
It is also to be noted that this court in construing the act must examine the legislative intent
in enacting the law. The legislative intent in enacting statutes must control, and rules of
construction are but aids in ascertaining such intent. State v. Ducker, 35 Nev. 214, 127 P.
990. The wording of the act establishes beyond cavil that the intent was to have available to
the elected board of regents a committee, or board, members who have distinguished
themselves in the business, professional, and cultural life and therefore possessing the
necessary qualifications to give counsel to the regents if same was sought.
The legislature, realizing the possible limitations on their legal right to act under the
constitution, and out of an abundance of caution, added section 4 to the act. The wording of
this section may be inapt and could have been more clearly and definitely stated, yet it is the
court's duty to give to it the meaning intended, if the same can be ascertained to a reasonable
certainty. I am impressed with the conclusion that section 4 contains a declaration by the
legislature that in enacting the law and creating the advisory board, no constitutional authority
of the elected board of regents was thereby intended to be, or was in any manner or to any
degree invaded or impaired. That therefore in any court proceeding that might be instituted
challenging its legality, the legislature declared by section 4 the intent to confine the activities
of the created board within constitutional limits. The mere fact the board created under the
law would have the right to attend all meetings and participate in all discussions, and this
perchance in a loud voice, or that the members might be increased to twenty or thirty,
presents no constitutional objection, but purely one of legislative policy about which this
court is not concerned.
to twenty or thirty, presents no constitutional objection, but purely one of legislative policy
about which this court is not concerned. That the legislature might in future deem it advisable
to provide an advisory board for the governor or other state officer is beside the question.
The policy, wisdom, or expediency of a law is within the exclusive theater of legislative
action. It is a forbidden sphere for the judiciary, which courts cannot invade, even under
pressure of constant importunity. In re McKay's Estate, 43 Nev. 114, 184 P. 305, 309.
Again in the case of Magee v. Whitacre, 60 Nev. 202, 208, 96 P.2d 201, 106 P.2d 751, it is
noted; [The Supreme Court is] not authorized to enter into a determination of the
constitutionality of a statute on a supposed or hypothetical case which might arise
thereunder.
As I view this act I am unable to conclude that its provisions violate art. XI, sec. 4, or art.
XI, sec. 7 of the constitution. Both sections recognize and direct legislative activity in
connection with the duties of the board of regents. The constitutional provisions are not
self-executing. For the last sixty years the legislature, acting under the constitutional mandate
has enacted law regulating the details of control of the university by the board of regents.
By statutes 1887, c. 37, p. 42, the legislature defined the powers and duties of the board of
regents. These included, among other things, the appointment of a president of the university.
However, this power was expressly limited by prescribing the qualifications of the appointee.
Section 12 of the act provides that all expenses incurred shall be passed upon by the state
board of examiners. By statute 1913, c. 259, p. 402, the legislature again regulated the affairs
of the university.
Statutes 1945 change the qualifications required of an appointee to the post of president,
and made other changes authorizing regents to sell or lease university property, subject to
approval of the governor {who is not a regent).
property, subject to approval of the governor (who is not a regent). Chapter 167, Statutes
1945, the legislature asserted authority over the regents as to free tuitions. By statutes
approved March 5, 1869, page 134, the legislature prohibited members of the board from
being interested in contracts or expenditures created by the board. Statutes 1915, c. 204, p.
314, empowered the board of regents to establish emeritus positions at the university. Statutes
1915, c. 9, p. 10, authorized the regents to receive grants from the United States.
Statutes 1895, c. 43, p. 40, created an honorary board of visitors of Nevada state
university. This board was required to meet annually at the university, inspect the buildings
and equipment, inquire into the actual state of the discipline, instruction, police
administration, and report same to the governor.
By sec. 7736, N.C.L.1929, the state superintendent of public instruction must visit the
university every three months, inquire into its condition and management and report to the
board of regents, with such suggestions as he may deem proper.
Are not these several legislative enactments but legislative construction of the
constitutional mandate given to them under art. XI, sec. 4, and art. XI, sec. 7? And as a
practical construction are they to be set aside unless clearly incompatible with the provisions
thereof?
Where a doubt may exist as to the proper construction to be placed on a constitutional or
statutory provision, courts will give weight to the construction placed thereon by other
co-ordinate branches of government. State v. Brodigan, 35 Nev. 35, 126 P. 680, 682;
Seaborn v. Wingfield, 56 Nev. 260, 48 P.2d 881.
Again in the case of United States v. Curtis-Wright Export Corporation, 299 U.S. 304,
328, 57 S.Ct. 216, 225, 81 L.Ed. 255 the supreme court stated: In Field v. Clark, 143 U.S.
649, 691, 12 S.Ct. 495, 504, 36 L.Ed. 294, this court declared that the practical construction
of the constitution, as given by so many acts of congress, and embracing almost the entire
period of our national existence, should not be overruled, unless upon a conviction that
such legislation was clearly incompatible with the supreme law of the land.' The rule is
one which has been stated and applied many times by this court.
constitution, as given by so many acts of congress, and embracing almost the entire period of
our national existence, should not be overruled, unless upon a conviction that such
legislation was clearly incompatible with the supreme law of the land.' The rule is one which
has been stated and applied many times by this court. As examples, see Ames v. State of
Kansas, 111 U.S. 449, 469, 4 S.Ct. 437, 28 L.Ed. 482; McCullouch v. Maryland, 4 Wheat.
316, 401, 4 L.Ed. 579; Downes v. Bidwell, 182 U.S. 244, 286, 21 S.Ct. 770, 45 L.Ed. 1088.
These several statutes by which the legislature has construed and enacted laws under the
constitutional mandate pertaining to the university and board of regents have never been
challenged, but acquiesced in by all. The legislative act under consideration no more offends
the constitution, than the act creating a board of visitors for the university, or the act directing
the superintendent of public instruction to visit the university and submit recommendations to
the board of regents.
While the validity of these several statutes has not been challenged by court action, their
provisions have been obeyed by those required to function thereunder for more than sixty
years. A strict construction of the applicable constitutional provisions and the legislative
authority thereby conferred, would lead to serious consequences.
The language of this court in the case of Worthington v. District Court, 37 Nev. 212, 142
P. 230, L.R.A.1916A, 696, Ann.Cas.1916E, 1097, seems appropriate to this subject matter.
The court stated:
That a statute has for years been enforced by the courts, without its constitutionality being
challenged, may be considered as a recognition of its constitutionality, and courts will seldom
entertain questions of the constitutionality of a statute recognized as valid in the jurisdiction
of rights, and when the invalidity of the statute would lead to serious consequences.
For the reasons above set forth it is my opinion that the judgment of the lower court
dismissing the action should be affirmed. In reaching this conclusion I am actuated for the
above reasons and by the rule of statutory construction announced and adhered to by this
court on many occasions, to-wit:
Every presumption is in favor of the validity of a statute, and a statute will always be
sustained if there be any reasonable doubt of its unconstitutionality. State v. Lincoln County,
60 Nev. 401, 111 P.2d 528.
____________
65 Nev. 578, 578 (1948) Parascandolo v. Christensen
FRANK P. PARASCANDOLO and NELLIE M. PARASCANDOLO, Husband and Wife, v.
MARY BLANCHE CHRISTENSEN and PIONEER TITLE INSURANCE AND TRUST
COMPANY, a Corporation, Respondents.
No. 3534
November 23, 1948. 199 P.2d 629.
Supreme court would not disturb decree for specific performance of contract for purchase of realty on
ground that vendor's water right was not conveyed, where record did not disclose whether water right was
specifically conveyed by deed deposited in escrow and complaint seeking rescission and cancellation of
contract did not complain that a proper deed had not been deposited or that vendor had not conveyed the
water right.
2. Cancellation of Instruments.
Where complaint seeking rescission and cancellation of contract for purchase of realty made no issue as
to fairness of agreed price to be paid, evidence of value of the realty was properly excluded.
On appeal from decree for specific performance of contract for purchase of realty, supreme court could
not say that agreed price was exorbitant where record contained no evidence relating to fair value of the
realty to be conveyed.
4. Cancellation of Instruments.
Where plaintiffs failed to satisfy trial court that they were entitled to rescission and cancellation of written
contract for purchase of realty and written contracts and all surrounding facts were before trial
court, court was bound to render a judgment which would award complete relief and
finally dispose of litigation and properly decreed specific performance of contract,
even though there were defects in answer as constituting a cross complaint for
specific performance.
facts were before trial court, court was bound to render a judgment which would award complete relief and
finally dispose of litigation and properly decreed specific performance of contract, even though there were
defects in answer as constituting a cross complaint for specific performance.
5. Equity.
Where equity court obtains jurisdiction of a controversy on any ground and for any purpose, it will retain
jurisdiction for the purpose of administering complete relief.
Action by Frank P. Parascandolo and wife against Mary Blanche Christensen and another
for rescission and cancellation of a contract for purchase of realty, wherein named defendant
sought specific performance of contract. From judgment and decree for specific performance
of contract and from order denying a new trial, plaintiffs appeal. Judgment and decree and
order affirmed.
Lewis, Hawkins & Cannon, of Las Vegas, for Appellants.
C. D. Breeze, of Las Vegas, for Respondent Mary Blanche Christensen.
OPINION
This case involves an appeal from a judgment and decree for specific performance of a
contract for the purchase of real property in favor of defendants and against the plaintiffs, and
from an order denying a motion of the plaintiffs for a new trial.
The plaintiffs and appellants brought an action in the Eighth judicial district court of the
State of Nevada, in and for the county of Clark, against the defendants for the rescission
and cancellation of a contract for the purchase of a tract of ground in the city of Las
Vegas, from the defendant, Mary Blanche Christensen, and as grounds for rescission and
cancellation alleged certain misrepresentations on the part of said defendant, inducing
plaintiffs to enter into said contract, and also that she had agreed to include the furniture
in the little house on the premises in the sale, and had then removed the furniture before
giving possession.
and for the county of Clark, against the defendants for the rescission and cancellation of a
contract for the purchase of a tract of ground in the city of Las Vegas, from the defendant,
Mary Blanche Christensen, and as grounds for rescission and cancellation alleged certain
misrepresentations on the part of said defendant, inducing plaintiffs to enter into said
contract, and also that she had agreed to include the furniture in the little house on the
premises in the sale, and had then removed the furniture before giving possession. The
defendant, Pioneer Title Insurance and Trust Company, was merely the escrow holder and did
not participate in the litigation at all. It will be referred to in this opinion as Title Company.
The defendant by answer denied all the allegations of plaintiffs relating to
misrepresentation on her part, and that she had agreed to include the furniture in the sale,
recited the negotiations leading up to the making of a preliminary contract of sale, and
making of the final or escrow contract, attached copies of both contracts to the answer as
exhibits, and prayed that plaintiffs take nothing by reason of their complaint, that the court
direct the title company to distribute the sum of $2,500 deposited by plaintiffs, issue to
plaintiffs a certificate of title insurance, record defendant's deed to plaintiffs and plaintiffs'
trust deed securing the payment of the balance of the purchase price in the sum of $2,750 in
installments of $40 per month with interest, and deliver to defendant plaintiffs' promissory
note for said balance, and that the court direct plaintiffs to pay to defendants all payments
which had accrued by virtue of said promissory note and trust deed up to the date of
judgment.
The court found that defendant did not influence plaintiffs to enter into the contract of sale
by any false or fraudulent misrepresentations regarding her property, and did not make any
particular effort to sell her property to the plaintiffs but on the contrary the plaintiffs were the
ones eager to consummate the deal after inspection and examination of the premises for
themselves; that the contract of sale does not mention the furniture nor the water right at
all, and that the defendant has delivered to the plaintiffs the premises sold with the
improvements, excepting a piece of pipe and an electric fan which had been connected to
the desert cooler in the house on said premises.
were the ones eager to consummate the deal after inspection and examination of the premises
for themselves; that the contract of sale does not mention the furniture nor the water right at
all, and that the defendant has delivered to the plaintiffs the premises sold with the
improvements, excepting a piece of pipe and an electric fan which had been connected to the
desert cooler in the house on said premises.
The court entered its judgment and decree to the effect that the title company record the
instruments, distribute the deposit of $2,500, deliver the note to defendant, issue its certificate
of title insurance, all in accordance with the escrow instructions and contract; that defendant
recover from plaintiffs interest on the sum of $2,186.95 at the rate of seven percent per
annum from November 18, 1946, until said sum be paid over to defendant by the title
company, that being the balance of the deposit of $2,500, to which defendant was found by
the court to be entitled on said date; and that plaintiffs forthwith pay to defendant a sufficient
sum to bring their agreed payments of $40 per month on principal and interest on their
promissory note, up to date, in accordance with the terms of said note. The court's decision
awarded costs to plaintiffs, apparently to compensate them for the little piece of pipe and
electric fan, which the court found was included in the sale, but not delivered. However,
plaintiffs failed to file their memorandum of costs within the time allowed by law, and
accordingly the judgment and decree did not include costs to plaintiffs.
Plaintiffs do not seriously contend that there is not substantial evidence to support the
judgment, and expressly recognize the familiar rule that the supreme court will not disturb a
judgment rendered on conflicting evidence where there is sufficient evidence to support the
judgment, unless upon the whole case it is clear that the trial court reached the wrong
conclusion.
1. On appeal the plaintiffs contend that the court ought not to have decreed specific
performance; that the pleadings and evidence are not sufficient to support such a decree.
ought not to have decreed specific performance; that the pleadings and evidence are not
sufficient to support such a decree. They mention the water right and complain that
defendant, although she admits in her answer that plaintiffs were to have whatever water she
had, has not conveyed or offered to convey the water right. It is not mentioned in either one of
the agreements, copies of which are in the record. There is no evidence in the record
regarding the terms of the conveyance from defendant to plaintiffs deposited with the Title
Company, and accordingly this court has no way of knowing whether the water is specifically
conveyed or not. In their complaint, plaintiffs do not complain that a proper deed was not
deposited, nor that the defendant has not conveyed the water; their complaint, with reference
to the water, is that defendant represented that she had more water than she had, not that they
did not get what she had.
2, 3. Plaintiffs further contend that inadequacy of consideration will bar specific
performance. Again, plaintiffs by their complaint did not make an issue of the fairness of the
agreed price to be paid by them, and accordingly evidence of value was properly excluded,
and there is no evidence in the record relating to the fair value of the land agreed to be
conveyed. The court therefore cannot say that the agreed price was exorbitant.
4. The trial court had both parties before it as well as both written contracts and all of the
surrounding facts and circumstances and was in a position to render a judgment and decree
which would award complete relief and finally dispose of the litigation, and it was its duty to
do so, even though there be some defects in the answer as constituting a cross complaint for
specific performance. 19 American Jurisprudence, p. 126, sec. 127.
5. This court, in Seaborn v. First Judicial District Court, 55 Nev. 206, 222, 29 P.2d 500,
505, expressed the general rule as follows: "The general rule is that, if a court of equity
obtain jurisdiction of a controversy on any ground and for any purpose, it will retain
jurisdiction for the purpose of administering complete relief."
The general rule is that, if a court of equity obtain jurisdiction of a controversy on any
ground and for any purpose, it will retain jurisdiction for the purpose of administering
complete relief.
In the case of Dellamonica v. Lyon County Bank, etc., 58 Nev. 307, 311, 78 P.2d 89, 90,
this court quoted with approval from the opinion in the case of Smith v. Keener, 51 S.D. 124,
212 N.W. 498, 499, as follows:
We have never understood that the maxim, He who seeks equity must do equity,' was a
rule of pleading. When a party invokes the aid of equity, he subjects himself to the imposition
of such terms as established quitable principles require (Story, Eq.Juris. 14th Ed. 72), but it
is not always essential that he plead them.
In a late case decided by the supreme court of Kansas, it was held to be reversible error for
a trial court not to dispose of all the rights of the parties in an equity case. Hultz v. Taylor,
163 Kan. 180, 181 P.2d 515.
We can see nothing improper in requiring plaintiffs to perform their contract, they having
failed to satisfy the court that they ought to be excused from such performance and be
permitted to cancel and rescind their agreement.
The trial court having properly discharged its obligation to render a judgment and decree
which affords complete relief and finally disposes of the litigation, and no error appearing,
the judgment and decree and the order appealed from are affirmed.
____________
65 Nev. 584, 584 (1948) State v. Teeter
THE STATE OF NEVADA, Respondent, v.
FREDRICK WILLIAM TEETER, Appellant
No. 3501
December 1, 1948. 200 P.2d 657.
1. Habeas Corpus.
Where court or magistrate wrongfully denies bail and defendant is in custody, usual procedure is by
original application to another court or magistrate, including supreme court or any justice thereof, for writ
of habeas corpus.
2. Habeas Corpus.
An appeal cannot be taken to supreme court from denial of bail by lower court or magistrate in habeas
corpus proceeding, but an original application for writ of habeas corpus can be made to another court or
magistrate, even to supreme court or justice thereof, notwithstanding denial by another court or magistrate
of former original application.
3. Criminal Law.
Order denying defendant's motion for bail was order in intermediate proceeding forming part of record
so as to be reviewable under statute on appeal from judgment of conviction. N.C.L.1929, sec. 11087.
4. Bail.
Under constitution, the only cases in which, before conviction, bail is not a matter of right is in capital
cases in which the proof is evident or the presumption great. Const. art. 1, sec. 7.
5. Bail.
The prosecution's witnesses can testify in court or before magistrate on application for bail, but they must
not divulge what they testified to before grand jury unless under exceptional showing of good reason
therefor or for purposes of impeachment. Const. art. 1, sec. 7.
6. Bail.
On application for bail in prosecution for capital offense, court or magistrate does not weigh evidence in
detail, and will refuse bail if all evidence tends to indicate guilt of capital offense or if evidence is
substantially conflicting, but will grant bail if competent admissible evidence is not materially in conflict
and points toward accident and not intentional premeditated homicide sufficient to justify first degree
murder conviction. Const. art. 1, sec. 7.
7. Bail.
Under constitutional provision that all persons shall be bailable by sufficient sureties unless for capital
offenses when proof is evident or presumption great, defendant accused of capital offense has burden of
proof on his application for bail. Const. art. 1, sec. 7.
8. Bail.
On application for bail by defendant charged with first degree murder, whether district attorney had any
evidence which would tend to support first degree murder charge was a proper subject of inquiry. Const.
art. 1, sec. 7.
9. BailCriminal Law.
The denial of bail to defendant prosecuted by information on charge of first degree murder on ground that
information gave rise to presumption of sufficient evidence and without determining from the competent
evidence whether the proof was evident or the presumption great was error which substantially affected
validity of judgment convicting defendant of second degree murder by curtailing defendant's opportunity to
prepare properly for trial, and by subjecting defendant, who was clearly entitled to bail, to risk of
unfavorable impression on jurors arising out of his appearing for trlal as prisoner in custody of officers, and
by creating impression on jurors that proof was evident and presumption great of his guilt. Const. art. 1,
sec. 7.
10. Bail.
Whether proof of capital offense is evident or presumption great within constitutional provision
prohibiting bail for capital offense when proof is evident or presumption great must be determined upon
competent evidence complying with such rules of evidence as have general judicial sanction. Const. art.
1, sec. 7.
11. Bail.
After conviction, admission to bail is discretionary with court or magistrate hearing such application.
Const. art. 1, sec. 7.
12. BailCriminal Law.
Where defendant is accused of first degree murder and judgment of conviction of second degree murder
is reversed and new trial ordered, parties are in same condition as if no trial had been had, and fact of
conviction of lesser degree of crime does not operate as acquittal of higher degree, and allowance of future
application for bail rests in sound legal discretion of court or magistrate, who must give due consideration
to fact that at former trial the conviction was only in second degree, and who must deny bail if state offers
sufficient evidence to establish satisfactorily that proof is evident or presumption great that defendant is
guilty of first degree murder. N.C.L.1929, sec. 11030; Const. art. 1, sec. 7.
13. Criminal Law.
The denial of motion of defendant accused of first degree murder for change of venue to county other
than that in which crime was alleged to have been committed was not abuse of discretion, notwithstanding
public rumor, common notoriety and statements in public press connecting defendant with other crimes
committed in county, where fair and impartial jury was obtained.
crimes committed in county, where fair and impartial jury was obtained. N.C.L.1929, sec. 10948.
14. Criminal Law.
The granting on morning of trial of motion to add names of certain witnesses to first degree murder
information was not error where defendant's attorney was apprised of names of additional witnesses at least
three days before trial. N.C.L. 1929, sec. 11328.
15. Jury.
The denial of defendant's challenge for cause of juror was error where newspaper articles which had been
published concerning the homicide had given rise to much rumor and gossip and preconceived opinion
entertained by juror was more than a qualified opinion and juror would have considerable difficulty in
deciding case wholly on the evidence and the law. N.C.L. 1929, sec. 10948.
16. Criminal Law.
Testimony connecting defendant accused of murder with jewelry store robbery was inadmissible as
evidence of another offense for which defendant was not on trial in absence of showing that testimony
tended to show intent, motive or that the two offenses were part of a general scheme or plan or were part of
res gestae, and the error in admitting testimony was not cured by trial court's admonition to jury to
disregard testimony, where there had been widespread publicity connecting defendant with robbery.
17. Criminal Law.
The corpus delicti of a crime means the body or substance of the crime charged and usually includes
the act and the criminal agency of the act.
18. Homicide.
The corpus delicti of a homicide consists of death as the result and the criminal agency of another as
the means, and is established by showing that deceased died from effects of wound and that wound was
unlawfully inflicted and that defendant was implicated in the crime.
19. Criminal Law.
In homicide prosecution, admission of testimony of police officer that officer asked defendant what had
happened and that defendant replied that a man had been shot and that defendant said that it was an
accident in response to officer's question as to who shot the man, if erroneous on ground that corpus delicti
had not been sufficiently established, was not prejudicial error, since defendant's statement did not disclose
that defendant did the shooting.
20. Criminal Law.
In homicide prosecution, admission of testimony of police sergeant as to extrajudicial statement made by
defendant to sergeant was not error, as against contention that corpus delicti had not been established, in
view of evidence that wound was not self-inflicted but was produced by criminal agency of another
and that gun was found in defendant's home and was identified as belonging to
defendant and that defendant was found in house in which shooting occurred.
agency of another and that gun was found in defendant's home and was identified as belonging to
defendant and that defendant was found in house in which shooting occurred.
21. Criminal Law.
In determining whether declaration is admissible as a dying declaration, opinion testimony of layman,
who has had full opportunity to observe injured person, his symptoms, words, expression and exclamations,
as to general physical condition, and his opinion as to whether injured person believed death to be
imminent or impending is admissible.
22. Criminal Law.
The refusal to permit police captain who observed patient's condition for three and one-half hours while
physicians and nurses were working with patient and who testified as to patient's exclamations of pain,
shortness of breath, groaning, twitching, weakness of voice and nature of patient's wounds in back and
front, to state whether patient believed at time of making declaration that death was impending was
reversible error.
23. Homicide.
Examination to lay foundation for admission of declaration as dying declaration should be conducted
out of presence of jury.
24. Homicide.
Where trial court on fourth day of murder trial repeatedly sustained objections to questions of
defendant's counsel seeking to establish foundation for admission of declaration as dying declaration
without indicating what kind of foundation would satisfy, and declaration was important to the defense,
trial court should have granted request of defendant's counsel for recess to consult the authorities.
25. Homicide.
A declaration is admissible as dying declaration if declarant believes when he makes declaration that
he is in extremis or that death is impending and if there is reasonable assurance of truthfulness of
declaration.
26. Homicide.
A declarant need not expressly state that he knows or believes that he is going to die or that death is
certain or near and neither his physician or anyone else must state to him that he will probably die as result
of his wounds for declarant to entertain a belief that death is impending so as to make his declaration
admissible as dying declaration, but it is sufficient if his wounds are of such a nature that the usual or
probable effect upon average person so injured would be mortal and if such probable mortal effect is not
hidden but is realized by declarant.
27. Homicide.
A declaration is admissible as dying declaration upon trial court's determination that prima facie case
has been made that declaration was made when declarant was in extremis and fully conscious of his
condition, but the ultimate fact and the weight, credence, and significance to be
given to declaration when admitted is for jury.
and fully conscious of his condition, but the ultimate fact and the weight, credence, and significance to be
given to declaration when admitted is for jury.
28. Homicide.
A statement which was made when declarant was in critical condition and was suffering from wound of
bullet which had gone through his chest and who was in extreme shock from injury and hemorrhage and
who had difficulty in breathing and who was groaning and gasping and weak of voice and whose arms were
twitching, was made when declarant was in extremis, and hence declaration was admissible as dying
declaration.
29. Homicide.
A dying declaration that declarant was shot accidentally was not inadmissible as expression of opinion
where declaration was positively stated as a fact and was predicated upon actual knowledge obtained as
direct result of observation through declarant's senses.
30. Criminal Law.
At all stages of the proceedings, defendant is presumed innocent until proved guilty beyond reasonable
doubt by competent, relevant, and material evidence.
31. Criminal Law.
Only such evidence, direct or circumstantial, or both, meeting the legal requirements, and such
reasonable, legitimate inferences as may legally be drawn therefrom can properly be considered in
determining defendant's guilt or innocence, and mere conclusions based on supposition, assumption,
conjecture or imagination and not upon competent, legal and sufficient evidence cannot be permitted to
assume the role of legitimate factual inferences in determining guilt or innocence.
32. Criminal Law.
The latitude allowed attorneys in argument cannot be abused to extent of permitting conjectural or
speculative opinions of attorneys to take place of sound, legitimate inferences, reasonably drawn from
evidence of actual facts.
33. Criminal Law.
District attorney's argument expressly or impliedly characterizing defendant accused of murder as
hoodlum was improper where basis for district attorney's conclusion that defendant was hoodlum was
conjectural and not legal inference based on fact.
34. Homicide.
Instruction referring illustratively to a situation in which the unlawful act which would constitute murder
in the second degree is one in which an assault with a deadly weapon occurs but in which there is no actual
intent to kill was not error where instruction embodied state's theory of case and was upon hypothesis that
evidence established such theory and defendant's counsel did not except to instruction or
submit instruction explaining meaning of "unlawful act" in connection with use of
deadly weapon.
and defendant's counsel did not except to instruction or submit instruction explaining meaning of unlawful
act in connection with use of deadly weapon.
35. Criminal Law.
All of the law of the case need not be included in one instruction.
36. Criminal Law.
Counsel for defendant must prepare and submit instructions applying particularly to and properly stating
defendant's theory of the case.
37. Criminal Law.
The supreme court will not reverse for insufficiency of evidence to sustain verdict or judgment if there is
any conflict in the evidence, or any substantial evidence to support such verdict and judgment.
McKnight, District Judge, dissenting.
Fredrick William Teeter was convicted for second degree murder. From the judgment of
conviction and the order denying his motion for a new trial, he appeals. Judgment and order
reversed and new trial granted.
Thruston, Salter & Bonner, of Las Vegas, for Appellant.
General, Robert E. Jones, District Attorney, and Harry E. Claiborne, Deputy District
Attorney, both of Las Vegas, for Respondent.
OPINION
On the 28th day of February 1947, the defendant Fredrick William Teeter, was, by the
verdict of the jury duly sworn and impaneled upon his trial in Department 2 of the Eighth
judicial district court of the State of Nevada, in and for the county of Clark, to try the issue
of his guilt or innocence, convicted of the crime of murder of the second degree.
of the Eighth judicial district court of the State of Nevada, in and for the county of Clark, to
try the issue of his guilt or innocence, convicted of the crime of murder of the second degree.
On March 3, 1947, the time set for pronouncing judgment, the court, after hearing and
denying a motion in arrest of judgment and a motion for a new trial, presented and argued by
John W. Bonner, Esq., attorney for the defendant, pronounced judgment adjudging the
defendant, Fredrick William Teeter, guilty of murder in the second degree, and that he be
punished by imprisonment in the State Prison of the State of Nevada for the term of not less
than ten (10) years and which may extend to life. From such judgment of conviction and the
order denying his motion for a new trial the defendant has appealed to this court. In this
opinion the parties will be usually designated as plaintiff and defendant, as they were in the
court below.
The defendant, upon this appeal, has presented eleven assignments of error, which have
been fully argued and briefed by the respective counsel. We will consider them in the order in
which they appear in appellant's opening brief.
1. The first of such assignments is: The Court erred in denying defendant's motion for
bail. In considering the case, it has been a matter of serious concern whether at this stage of
the case we have the right, upon the appeal from the judgment, to consider this question of
the denial of bail. It is most unusual to wait until a determination of the right to bail would be
unavailing, insofar as bail before conviction is concerned, and then to raise the question upon
the appeal, upon the theory that the alleged wrongful denial of bail goes to the validity of the
judgment. When bail has been wrongfully denied by a court or magistrate, and the defendant
is in custody, the usual procedure is by an original application to another court or magistrate,
including the supreme court or any justice thereof, for a writ of habeas corpus.
habeas corpus. This is usually done very soon after the first denial.
2. In Nevada there is no appeal to this court from the denial of bail by a lower court or
magistrate in a habeas corpus proceeding, but in many states allowing such appeals they are
numerous. But in this state an original application for a writ of habeas corpus may be made to
another court or magistrate, even to this court or a justice thereof, notwithstanding the denial,
by another court or magistrate, of a former original application.
In some states a defendant, in custody, claiming he is unlawfully restrained of his liberty,
may appeal directly to the supreme court from an order denying a motion for bail, but we
have no provision for such an appeal in this state.
The question as to the right of the supreme court, upon appeal from the judgment, to
consider such an assignment as that in the instant case, that bail has been erroneously denied,
depends upon the construction of section 11087, vol. 5, N.C.L.1929, which is as follows:
11087. Intermediate Order Or Proceeding May Be Reviewed On Appeal. 439. Upon
the appeal, any decision of the court in an intermediate order or proceeding, forming part of
the record, may be reviewed.
This provision, at the time of its adoption, was taken from a like provision (in all
essentials, identical) of the California Penal Code, sec. 1259.
The California provision has been amended, making it very clear that in a criminal case
every kind of intermediate order which affected the substantial rights of the defendant may be
reviewed upon the appeal. Said sec. 1259, as amended, reads as follows:
1259. (Questions reviewable upon appeal by defendant: Necessity for exception or
objection.) Upon an appeal taken by the defendant, the appellate court may, without
exception having been taken in the trial court, review any question of law involved in any
ruling, order, instruction or thing whatsoever said or done at the trial or prior to or after
judgment, which thing was said or done after objection made in and considered by the
lower court, and which affected the substantial rights of the defendant.
ruling, order, instruction or thing whatsoever said or done at the trial or prior to or after
judgment, which thing was said or done after objection made in and considered by the lower
court, and which affected the substantial rights of the defendant. The appellate court may also
review any instruction given, refused or modified, even though no objection was made thereto
in the lower court, if the substantial rights of the defendant were affected thereby. (Enacted
1872; Am.Stats.1909, p. 1088; Stats.1939, p. 2801.)
It appears clear that the amendment in California merely clarified the inherent meaning of
said provision, and that our Nevada sec. 11087, taken from it in its original form, means
substantially the same as the California provision thus clarifiedthat such all-embracive
character is inherent in its provisions.
In California almost every conceivable kind of an order made in a criminal action or
proceeding after the filing of an indictment or information has been held subject to be
reviewed upon appeal from the judgment. Among such orders held reviewable, upon the
appeal proper, are: Order refusing to grant continuance, order denying motion to set aside
indictment, and order denying right to file application for probation.
As to the latter, the California District Court of Appeal for the Second district, division 1,
in People v. Jones, 87 Cal.App. 482, 262 P. 361, 367, in the opinion by Mr. Justice pro tem.
Shaw, analyzed the above-quoted sec. 1259 of the penal code, and, after quoting same, stated
its conditions or requirements, in order that the appellate court may review a ruling of the trial
court, as follows:
Under this provision, five conditions must be complied with in order that the appellate
court may review a ruling of the trial court: (1) An appeal taken in open court; (2) a question
of law involved in the ruling; (3) a ruling at the trial or prior to or after judgment (not
including orders which are directly appealable); (4) objection made in and considered by the
lower court before the ruling {except in case of an instruction); {5) a ruling or order which
affected the substantial rights of the defendant."
before the ruling (except in case of an instruction); (5) a ruling or order which affected the
substantial rights of the defendant.
Applying this test to the proceedings had in the lower court before Judge Henderson, upon
the motion by defendant for bail, in order to determine whether the defendant has the right of
review by this court upon the pending appeal under our sec. 11087, vol. 5, N.C.L. 1929,
adopted originally from said sec. 1259 of the California penal code, we find that all the
requirements and conditions thus stated in People v. Jones, supra, existed in the instant case.
In the case of State v. Waterman, 36 Idaho 259, 210 P. 208, the defendant, in appealing
from the judgment of conviction, assigned as error the refusal of the trial court to admit him
to bail pending the appeal. The court did not pass upon the question of whether the lower
court abused its discretion in denying the application for bail, for the reason that in the record
as presented there was no showing as to the reason upon which bail was denied by the lower
court. The Supreme Court of Idaho, however, considered or reviewed the matter upon the
appeal proper, and Mr. Justice Dunn, in the opinion (on page 272 of 36 Idaho, page 212 of
210 P.), stated:
Appellant complains of the refusal of the trial court to admit him to bail pending this
appeal. In cases of this character the admission of defendant to bail after conviction is a
matter of discretion with the trial court. C.S. sec. 9096; In re Schriber, 19 Idaho 531, 114 P.
29, 37 L.R.A.,N.S., 693. Unless there is good reason for refusing bail, a defendant sentenced
to imprisonment ought not to be compelled to submit to imprisonment while he is
prosecuting an appeal in good faith. In this case the record does not show for what reason the
court refused to admit appellant to bail, and on the record as it is presented here we are unable
to hold that such refusal was an abuse of discretion.
Gillis v. Commonwealth, 202 Ky. 821, 261 S.W. 591, is a case in which the defendant
had been convicted of murder, and appealed from the judgment.
is a case in which the defendant had been convicted of murder, and appealed from the
judgment. The lower court had refused, upon an application before trial, to hear defendant's
motion for bail. The court of appeals, upon the appeal from the judgment considered such
refusal, and under the circumstances of the case, determined the refusal to hear the
application, was error, and such error was one of the errors for which the judgment of
conviction was reversed. In view of the reasoning of the Kentucky appellate court, it is
believed that if a hearing had been had and bail denied in the lower court, the court of
appeals, under the facts and circumstances of that case, would have deemed such denial an
abuse of discretion, and as clearly a ground for reversal as was the denial of the hearing. In
that court's view, the gist of the injury to defendant was the lack of opportunity, for the proper
preparation of his defense. As reported on page 593 of said 261 S.W., Hobson, C., in his
opinion, stated:
In view of the fact that the defendant had been confined in jail ever since the killing 14
miles from the scene of the homicide, and that he had no opportunity to prepare his defense,
as shown by the affidavit of his attorneys accompanying his affidavit on the motion for a
continuance, we are clearly of opinion that the defendant had not had a reasonable
opportunity to prepare and present his defense. The court had refused to hear his motion for
bail. The right to bail is a constitutional right, and the exercise of this right in cases of this
sort is often essential to the proper preparation of the defendant's case. Counsel should have a
reasonable time and opportunity to get his bearings, to look over the ground and study the
case in its various aspects, and in all cases where it is possible a hearing on the question of
bail should not be denied.
3. In the instant case, we decide and hold that the order of the district court denying the
defendant's motion for bail was an order in an intermediate proceedingproperly forming
a part of the record, and that such order comes within the language, intent and spirit of
sec.
motion for bail was an order in an intermediate proceedingproperly forming a part of the
record, and that such order comes within the language, intent and spirit of sec. 11087, vol. 5,
N.C.L.1929, and may be reviewed upon this appeal from the judgment.
Bearing in mind that the instant case, at the time of the hearing of the application for bail,
was a capital case, in which murder was charged and in which, upon the basis of the
information, a verdict of first degree murder could have been found by the trial jury, did the
lower court commit error in denying the defendant's application for bail? Our constitutional
provision relative to the right to bail of one charged with crime is as follows (sec. 7 of art. I of
the constitution of Nevada, N.C.L.1929, vol. 1, sec. 28):
All persons shall be bailable by sufficient sureties, unless for capital offenses when the
proof is evident or the presumption great.
4. The foregoing provision of our constitution, and similar or identical provisions in the
constitutions of nearly all of the states comprising the United States of America, are very
generally held to guarantee bail as a matter of right in all cases before convictions, unless
(except) in capital offenses when the proof is evident or the presumption great. It is clear that
the only cases in which, before conviction, bail is not a matter of right is in a special class of
capital cases, namely, those in which the proof is evident or the presumption great.
Conversely, in all capital cases in which the proof of guilt is not evident and the presumption
thereof is not great, bail is, constitutionally a matter of right.
There is a great diversity in the views of the courts of last resort of the various states in
regard to the method to be employed in determining the right to bail. To what extent, in
capital cases, the available evidence of prosecution witnesses and other witnesses, or
documentary evidence, may be employed in proceedings before a court or a magistrate to
admit to bail, and to what, if any, extent presumption, either conclusive or merely prima
facie, shall be given effect, are the questions concerning which the major differences in
the authorities have arisen.
before a court or a magistrate to admit to bail, and to what, if any, extent presumption, either
conclusive or merely prima facie, shall be given effect, are the questions concerning which
the major differences in the authorities have arisen.
Much of the conflict and confusion of the cases in the United States is due to the fact that
the courts of many states have followed the doctrine reached in the earlier English cases
under the common law, to the effect that a conclusive presumption of guilt arose upon an
indictment for murder, which continued as to all preliminary proceedings until such
presumption gave way to, or was superseded by, the presumption of innocence.
In Lord Mohun's Case, 1 Salk. 104, it was stated:
If a man be found guilty of murder by the coroner's inquest, we sometimes bail him,
because the coroner proceeds upon depositions taken in writing which we may look into;
otherwise, if a man be found guilty by a grand jury, the court cannot take notice of their
evidence, which they, by their oath, are bound to conceal.
It is also true that the English courts, when a defendant charged by complaint before a
magistrate for the crime of murder was bound over upon the basis of evidence furnished in
the form of depositions, would, upon application for bail, inquire into the sufficiency of the
evidence, because same was available. See the Colorado case of In re Losasso, 15 Colo. 163,
24 P. 1080, 10 L.R.A. 847, in which, in the able and scholarly opinion of Mr. Chief Justice
Helm, the English law and some of the English cases and many of the earlier American
decisions are discussed. Also, we cite the valuable and comprehensive note in 39
L.R.A.,N.S., pages 752-785; also 6 Am.Jur. pp. 55-73; and 8 C.J.S., Bail, sec. 34, pages
53-63, upon the general subject of right to bail in capital offenses.
It is apparent from the English cases that the reason for the English rule, was that the
requirement of secrecy as to grand jury proceedings, was so far-reaching that witnesses before
a grand jury could not testify upon the same subject before any other tribunal.
testify upon the same subject before any other tribunal. Such requirement has never prevailed
to any considerable extent in the United States. Indeed, in many states the minutes of grand
jury proceedings must be kept in writing and are available, upon a proper showing, for
legitimate use in other tribunals or courts. 6 Am.Jur. 71, 72.
5. And in many states, including Nevada, the names of witnesses known to the district
attorney at the time of filing the indictment or information are required, by statute, to be
endorsed thereon by the district attorney or his deputy. This provision includes, of course, the
names of the witnesses who have testified before the grand jury. They are, with rare
exception, known to the district attorney, who is the officer authorized by statute to examine
witnesses before the grand jury. The purpose of such provision is apparent. It is primarily for
the purpose of informing the defendant (after his arrest, and the indictment or information is
no longer secret, as it has been before), and his counsel, of the witnesses for the prosecution,
in order that he may have fair opportunity to prepare his defense. The identity of the
prosecution's witnesses thus becoming public knowledge, they are entirely free to testify in
court or before a magistrate upon an application for bail, but they must not, of course, divulge
what they testified to before the grand jury, unless under an exceptional showing of good
reason therefor, or for purposes of impeachment.
Despite the absence of reason therefor, the authorities of some states still adhere, to a
greater or lesser extent to the old English theory of artificial legal presumptionsome to the
extent of recognizing the presumption as conclusive in first degree murder cases, unless
special or extraordinary circumstances exist (which exception was recognized at common
law), whilst the authorities of other states recognize the presumption only to the extent of
making it prima facie and rebuttable. Still other states open the door freely to a fair inquiry or
investigation into the actual facts and circumstances of the particular case, in order that
the determination of the decisive question of whether the proof is evident or the
presumption great may be predicated upon truth and fact, rather than wholly or in part
upon artificial legal presumption.
investigation into the actual facts and circumstances of the particular case, in order that the
determination of the decisive question of whether the proof is evident or the presumption
great may be predicated upon truth and fact, rather than wholly or in part upon artificial legal
presumption.
For a scholarly treatment of the subject, in which the authorities of the various states are
differentiated, and grouped generally as above stated, see State v. Koester, 1931, 5
W.W.Harr., Del., 258, 162 A. 513, cited by plaintiff. We do not agree with counsel for the
state, however, in their conclusion that Nevada properly falls in either the first, or, at the
most, the second, class of jurisdiction as classified in State v. Koester, supra (respondent's
brief, p. 20), or that the opinion in Ex parte Nagel, 41 Nev. 86, 167 P. 689, properly
construed, justifies that interpretation. That case will be considered hereinafter.
The last vestige of reason for allowing an indictment to have the effect of a presumption,
either conclusive or prima facie, in Nevada was removed by the adoption in this state, in
1913, of the system of prosecution by information. While prosecution by indictment still
exists, it is not frequently employed. Under the information system, instead of the solemn,
collective action of a body of seventeen persons (twelve of whom were necessary to indict),
reported with considerable formality to the court, and based upon the secret testimony of
witnesses solemnly sworn before the grand jury, that system requires little formality. The
details of the manner in which the district attorney, or his deputy shall conduct their
investigations are not prescribed, but the final action in determining the filing of the
information is that of one official, the district attorney, and there is no longer any solemn,
collective action of a tribunal, predicated only upon sworn testimony of witnesses examined
before them, and representing the composite judgment of at least twelve qualified grand
jurors.
At this point it is proper to call attention to a case, Ford v. Dilley, 174 Iowa 243, 156 N.W.
513-535, in which the able and exhaustive opinion of Mr.
Ford v. Dilley, 174 Iowa 243, 156 N.W. 513-535, in which the able and exhaustive opinion of
Mr. Justice Salinger evidences prodigious and scholarly research to an unusual degree. We
quote from the opinion, 156 N.W. on page 520, the following:
The rule has no support by cases that affirm it, and affirm also that bail is the rule and
denial of it the exception. And it seems undeniable that under such Constitutions as ours bail
is the rule; denying it the exception. This being so, no sound argument can be made for the
claim that the general rules governing the proof of exceptions shall not obtain here.
It can have no real support by cases which recognize that the rule rests wholly on the
inability to get the evidence before the grand jury, recognize that all this is no longer true, and
admit having statutes substantially like Code, 5277, and then affirm the rule. See People v.
Tinder, 19 Cal. 539, 81 Am.Dec. 77; Hyler's Case [People v. Hyler], 2 Parker Cr.R., N.Y.,
570.
* * * * * * *
There is no support for the rule by cases which, though they themselves point out the
changes that have occurred, draw only one conclusion therefrom, to wit: That, though all of
the reason for the presumption is gone, half of the presumption survives. They follow up a
concession that the foundation for making the indictment evidence is wholly destroyed, with
making the indictment just enough evidence to call for rebuttalrequire something to be
rebutted which upon their concession should no longer be evidence.
Consideration will now be given to the Nevada cases which have dealt with the right to
bail in capital cases. In Ex parte Isbell, 11 Nev. 295, a justice of the peace of Nye County,
Nevada, had committed one W. D. Isbell, charged with the crime of murder. The grand jury
thereafter impaneled had failed to indict him after examining the charge, and the district
court, under the appropriate statute had, upon sufficient cause having been shown, ordered
the case resubmitted and the defendant held to the next grand jury.
defendant held to the next grand jury. His discharge upon habeas corpus was sought. While
Mr. Justice Hawley found that the petition did not state sufficient facts to show that the action
of the district court constituted an abuse of discretion, and, hence, that there was no basis for
the discharge of the petitioner, he did not indicate that under the Nevada law any conclusive,
or prima facie, presumption of guilt arose from the commitment. On the contrary, the learned
justice stated, in effect, that upon such an application the court's discretion is, at all times, to
be exercised with sound judgment upon a full consideration of the facts and circumstances of
each particular case. (Emphasis added.)
In Ex parte Finlen, 20 Nev. 141, 18 P. 827, Mr. Chief Justice Leonard rendered an able
opinion which was the unanimous opinion of the court. In that case one Finlen had been
indicted by the grand jury of Storey County, Nevada, for the crime of murder in the first
degree. He applied to the Hon. Richard Rising, district judge, for a writ of habeas corpus, for
the purpose of being admitted to bail, which was denied by said district judge, and the
alternative writ dismissed and the prisoner remanded, for the reason, among others, that the
indictment found by the grand jury made the proof evident, and the presumption great, that
the offense charged therein had been committed. A few days after such dismissal and
remand, Finlen applied to Mr. Chief Justice Leonard for the issuance of a writ of habeas
corpus. One of the grounds for the dismissal of the temporary or alternative writ, presented by
the attorney general, was, Second, because an indictment for murder raises so great a
presumption of the guilt of the defendant as to deprive him of the right to bail, and the finding
of the grand jury cannot be reviewed on an application for bail, or its effect, in creating such
presumption, be repelled by testimony as to his guilt or innocence. The opinion reviews at
considerable length and in detail the law and the authorities relating to the subject.
subject. A careful reading of the opinion clearly discloses the fact that the learned chief
justice did not look with favor upon the presumption theory. He argued at great length to the
opposite effect. At one point, on page 147 of 20 Nev. and on page 830 of 18 P. he was critical
of Mr. Chief Justice Field's treatment, in People v. Tinder, 19 Cal. 547, of the decision in
Lumm's case (Lumm v. State, 3 Ind. 293, 294), and in that connection stated:
No person appreciates and admires the judicial ability of Justice Field more than myself.
But it seems to me that he failed to give satisfactory answer to the arguments in Lumm's
Case, whether they were entirely sound or not. And it should be remarked, in this connection,
that Mr. Justice Sutherland's statement that the indictment must be taken as conclusive upon
the degree of crime' is pure dictum, because Tayloe had not been indicted, and the court, upon
his application for bail, did examine the depositions taken before the coroner. Besides, in
Tinder's Case, it is admitted that, under special and extraordinary circumstances' in
applications for bail, courts or judges may look beyond the indictment. Why except such
cases if the indictment precludes all inquiry? Every judge and lawyer of experience knows it
is common practice, in cases of homicide, to indict for murder in the first degree. So common
is it that the presumption spoken of by Justice Field, that the indictment charges the true
crime, is at least greatly shaken.
Chief Justice Leonard made many other statements in his opinion in Ex parte Finlen,
supra, which preclude any conception on the part of this court that he intended to endorse the
presumption theory to any extent whatsoever. And the learned justice considered all of the
evidence, which he stated he had examined with great care, but would not run the risk of
doing injury to the defendant or the state by commenting upon the evidence * * *. On the
same page, just above the sentence above quoted, Justice Leonard stated: "Such was the case
presented to me at the hearing upon this application, and upon which I granted leave to
present the oral testimony of all the witnesses examined before the grand jury, and any
others the district attorney might suggest, touching the allegations of the amended
petition, to the end that the defendant might show, if he could, that all the evidence in the
case showed that, under the statute referred to, he was not guilty of a capital crime."
Such was the case presented to me at the hearing upon this application, and upon which I
granted leave to present the oral testimony of all the witnesses examined before the grand
jury, and any others the district attorney might suggest, touching the allegations of the
amended petition, to the end that the defendant might show, if he could, that all the evidence
in the case showed that, under the statute referred to, he was not guilty of a capital crime.
(Emphasis added.)
In Ex parte Nagel, supra, the defendant, Nagel, was held on a commitment issued out of
the justice's court of Rawhide Township, to answer to the charge of murder. Nagel applied to
this court for admission to bail, and relied entirely upon the transcript of the proceedings
before the committing magistrate in Rawhide Township. Mr. Chief Justice McCarran, in his
opinion, stated (on page 87 of 41 Nev., page 689 of 167 P.):
Petitioner relies entirely upon this transcript, and contends that this transcript discloses a
lack of evident proof and the absence of great presumption. In view of the fact that defendant
must appear for trial before a jury in the district court, it might be improper for this tribunal to
pass in detail upon the weight or conclusiveness of the evidence as set forth in the record of
the committing magistrate. Any comment which we may deem necessary to make here is not
to be regarded as passing upon the conclusiveness of the evidence as it is before us in the
record.
Further on in the opinion, Mr. Chief Justice McCarran stated the following (on pages 88,
89, of 41 Nev., pages 689, 690 of 167 P.):
As to whether or not there is evident proof or great presumption of a capital offense
having been committed by petitioner, it will suffice, we think, to apply the rule and reason
laid down in this court by Mr. Chief Justice Leonard in the case of Ex parte Finlen, 20 Nev.
141, at page 151, 18 P. 827, at page 832. There the learned justice quoted approvingly from
the review of Judge Cowen's opinion in the case of People v. McLeod, 1 Hill, N.Y., 377, 37
Am.Dec. 328, as follows: "'The true rule upon the subject of bail or discharge after
indictment for murder undoubtedly is for the judge to refuse to bail or discharge upon any
affidavit or proof that is susceptible of being controverted on the other side.'
The true rule upon the subject of bail or discharge after indictment for murder
undoubtedly is for the judge to refuse to bail or discharge upon any affidavit or proof that is
susceptible of being controverted on the other side.'
Later in the opinion, Mr. Chief Justice Leonard stated the rule which we deem most
applicable here as follows:
If the question of a defendant's guilt of a capital offense hinges upon a fact involved in
doubt, as if the existence of a fact on which his guilt or innocence of the offense charged in
the indictment depends may from the evidence be found one way or the other, then bail
should be refused.'
Referring to Mr. Chief Justice Leonard's said quotation (on page 151 of 20 Nev., page 832
of 18 P.) from People v. McLeod, 1 Hill, N.Y. 377, 37 Am.Dec. 328, Mr. Chief Justice
Leonard quoted much more from People v. McLeod than the above sentence quoted by him
and requoted by Mr. Chief Justice McCarran. The next sentence quoted by Mr. Chief Justice
Leonard from this New York opinion by Tallmadge, J., in People v. McLeod, supra,
following the clause that is susceptible of being controverted on the other side, is as
follows: When, however, the prisoner's evidence is of that positive and certain character that
it cannot be gainsaid,' then the prisoner is entitled to be bailed or discharged; * * *.
And referring to Mr. Chief Justice McCarran's further quotation, as above stated, from Mr.
Chief Justice Leonard's opinion, which is introduced with the statement, Later in the
opinion, Mr. Chief Justice Leonard stated the rule which we deem most applicable here as
follows, and referring again to that part of the Leonard opinion, on page 152 of 20 Nev.,
pages 832, 833 of 18 P., the expressions in the sentences immediately following the one
quoted by Mr. Chief Justice McCarran are significant. Immediately after the words then bail
should be refused, Mr. Chief Justice Leonard stated further (on page 152 of 20 Nev., page
S33 of 1S P.): "But if his guilt of a capital offense depends upon a fact that is admitted by
the state not to exist, or if its non-existence is shown by all the evidence in the case; or if
he is innocent of a capital offense upon a certain state of facts, and those facts are
admitted, or if all the evidence in the case proves them to be true,then the accused is
entitled to bail.
833 of 18 P.): But if his guilt of a capital offense depends upon a fact that is admitted by the
state not to exist, or if its non-existence is shown by all the evidence in the case; or if he is
innocent of a capital offense upon a certain state of facts, and those facts are admitted, or if
all the evidence in the case proves them to be true,then the accused is entitled to bail. Nor
does it matter that the grand jury, by finding the indictment presumably has passed upon the
fact on which the prisoner's guilt of a capital offense depends, in whole or part, and has
found against him thereon. (Emphasis added.)
6, 7. From the statement first above quoted from Mr. Chief Justice McCarran's opinion, it
is apparent he believed it not sound judicial policy for the court or magistrate, in passing upon
an application for bail, to pass in detail upon the weight or conclusiveness of the evidence,
if same was in conflict, nor to make extended comment thereon, which detailed consideration
might unduly influence the proceedings in, or the outcome of, the trial. In the Nagel case,
however, Mr. Chief Justice McCarran carefully passed upon the evidence presented, which
was embodied in the transcript, having first warned, in the language above quoted, that Any
comment which we may deem necessary to make here is not to be regarded as passing upon
the conclusiveness of the evidence as it is before us in the record. Mr. Chief Justice
McCarran found a purported statement of the defendant standing in the record
uncontradicted, together with other evidence tending to connect petitioner with the death of
the deceased, sufficient to warrant this court in saying that the proof is sufficiently evident
and the presumption is sufficiently great to bring the case within the inhibition of section 7 of
article 1 of the constitution, denying bail in capital offenses. We agree with Mr. Chief
Justice McCarran that upon an application for bail, the court or magistrate should not
undertake to weigh the evidence in detail. If all of the evidence presented, as in the Nagel
case, tends to indicate guilt of a capital offense, bail should be refused; likewise, if there is
substantial conflict in the evidence.
likewise, if there is substantial conflict in the evidence. On the other hand, it seems perfectly
clear, from a careful study of all of the cases of this court which have passed upon the
question of the right to bail under said constitutional provisions, that if competent, admissible
evidence presented to the court or magistrate upon the application for bail is not materially in
conflict, but points, as in the instant case the testimony at the coroner's inquest indicated,
towards an accident, and not an intentional, premeditated homicide sufficient to justify
conviction of first-degree murder, the defendant should be admitted to bail. Such a state of
the record, instead of establishing, even prima facie, that the proof is evident or the
presumption great, establishes the contrary, and satisfies the burden of proof properly
devolving upon the prisoner, as the moving party in the application for bail. We believe the
expressions of this court in the past justify the conclusion that, whilst, in considering
applications for bail the policy of this court has been not, prematurely, to undertake a detailed
analysis of the weight of the evidence lest the trial court or jury might be improperly
influenced, if from all the evidence presented, without substantial conflict, it appears clear
and obvious that a capital offense has not been committed, the letter and spirit of sec. 7 of art.
I of the Constitution of Nevada requires, and the court or magistrate considering such
application should so hold, that the defendant should be admitted to bail.
Now considering, on the merits, the district court's denial of bail to defendant, Teeter, the
facts, as disclosed by the record, are substantially as follows:
8. No preliminary hearing was held. The defendant waived it (his counsel saying upon the
request, but we say upon the suggestion, of the deputy district attorney), in order that a
more competent court or judge pass upon the proposed application for bail. This was agreed
to by both parties. And, there having been no preliminary hearing, the only transcript or
record containing the evidence in written form was the transcript of the coroner's inquest
proceedings.
of the coroner's inquest proceedings. Such transcript was used by the defendant in making his
motion for bail, and its use consented to by the deputy district attorney. Mr. Bonner, attorney
for the defendant, did not formally offer the transcript in evidence, but suggested using a
copy, to which no objection was made. The court inquired if Mr. Bonner couldn't use it in
your argument without the necessity of me reading it; and, upon Mr. Bonner's suggesting
that he believed the court should read it, the court asked for the copy then saying: You may
proceed. Mr. Bonner thereupon called Mr. Claiborne, deputy district attorney, as a witness,
for the purpose, as he stated it, of showing whether or not the district attorney's office has
any evidence which would tend to support the charge of first-degree murder. That was a
proper subject of inquiry. Even in the states still indulging a presumption of guilt from the
fact of indictment in capital cases, the acknowledgment of the prosecuting attorney that he did
not have sufficient evidence of first-degree murder to warrant conviction in that degree was
sufficient to authorize admission to bail, though not technically constituting one of the special
or extraordinary reasons or circumstances, as understood at common law, for admission to
bail, notwithstanding such presumption. See statement of Field, C. J., in People v. Tinder, 19
Cal. 539, on page 549, 81 Am.Dec. 77; Ex parte Finlen, supra.
9. But Judge Henderson in the instant case expressed the view, I don't think the district
attorney has to disclose evidence at this time, not on this kind of a motion. Mr. Bonner
insisted he wasn't going to ask him for his evidence, and said further, I was merely
intending to ask him if he had evidence of that nature.
The Court: Of what nature?
By Mr. Bonner: Evidence sufficient to constitute the crime of first-degree murder, any
evidence that will tend to prove it.
The Court: He is entitled to that. The information calls for a trial for the crime of murder,
so he must have or they wouldn't very well prepare and file an information charging
murder.
or they wouldn't very well prepare and file an information charging murder.
By Mr. Claiborne, Deputy District Attorney: The presumption is, Your Honor, that the
filing of the complaintthe man is charged with first-degree murder, and the presumption is
that we had sufficient evidence at the time for the District Attorney to file a complaint.
By the Court: I think so. That is the presumption.
By Mr. Bonner: I don't think it is, Your Honor.
By the Court: It is rebuttable. You can rebut it. The presumption, as it stands before this
Court, is that he was charged with murder and there is sufficient evidence to bring the
defendant to trial for murder.
Then, after further colloquy between the respective counsel and the court as to whether the
deputy district attorney would consent to bail, and whether, if he did so, it would make any
difference as far as the court was concerned, the court thereupon said to Mr. Bonner: I think
you should make your motion and submit your argument, and Mr. Bonner proceeded with
his argument. There had been no formal offer or admission of the transcript in evidence, nor
any formal renewal by Mr. Bonner of the objection to certain evidence, which he had made
before the coroner at the inquest; but, as before stated, the court had read the evidence in the
transcript, and presumably Mr. Bonner's objection which appeared therein were observed by
the court. As the argument proceeded, Mr. Bonner strongly urged his client's right to
bailarguing, in effect, that there was no competent evidence in the transcript upon which
could be predicated a conclusion that the proof of first-degree murder was evident, or the
presumption of guilt thereof great, and stressed, particularly, Captain Irick's testimony that the
deceased had stated to him that the shooting was accidental. But the court then referred to the
testimony of the lady, and indicated reliance upon it. Mr. Bonner, thereupon, pointed out to
the court that she did not testifythat the coroner sustained his objection to her testimony
because she was the common-law wife of the defendant.
of the defendant. The court thereupon insisted that common-law marriages are not recognized
in Nevada, but changed his mind and ruled differently at the trial in regard to Mrs. Teeter's
evidence. Mr. Bonner pointed out that the coroner had, over his objection, allowed Sergeant
Handlon to read into evidence at the inquest an unsworn statement by Mrs. Teeter, the same
common-law wife (which statement the court was then considering in connection with the
application for bail), and that the same was objectionable as being hearsay. Mr. Bonner
strongly urged his contention, but the court took the view, in substance and effect, that Mr.
Bonner, by having the court read the testimony, had waived all objections to it, or any part
thereof. Mr. Bonner stated that the evidence was incompetent, and that he had not thought the
court would consider immaterial testimony, and urged the court to disregard the
incompetent evidence, and, inasmuch as all the competent evidence tended to establish that
the shooting of the deceased was an accident, the defendant was entitled to his constitutional
right of bail. Judge Henderson persisted in his view, and denied bail. This was error.
10. In England, there being no written constitution and bail not being a matter of
constitutional right, but dependent upon statute, or the rules or practices of courts, the
indulgence in presumptions upon the basis of an indictment or other criminal charge could
more reasonably be deemed permissible than in the states of our American union. In most of
these, including Nevada, as has been elsewhere stated, the right to bail is commanded by the
constitution, and hence is an absolute constitutional right, even in capital cases, unless the
proof is evident or the presumption of guilt great. This exception, permitting bail to be
denied, is based entirely upon the factual proposition of whether or not the proof is evident or
the presumption of guilt, arising from the evidential proof, is great. If the constitutional
framers had intended that bail be denied upon a criminal charge merely upon the basis of an
indictment found by a grand jury or an information filed by a prosecuting attorney,
instead of upon a basis of actual facts, namely, evident proof of guilt, they would have so
stated.
merely upon the basis of an indictment found by a grand jury or an information filed by a
prosecuting attorney, instead of upon a basis of actual facts, namely, evident proof of guilt,
they would have so stated. This basis of fact upon which the right, or the absence of the right,
to bail depends, should, of course, be determined, as any other important fact is determined,
by sound evidential principles or rules, which means upon competent evidence complying
with such rules of evidence as have general judicial sanction.
The writer of this opinion has been much concerned with the question of the effect of the
erroneous denial of bail in the instant case, and has determined that it does substantially affect
the validity of the judgment. To what extent it affects the judgment, or whether standing
alone it would require a reversal thereof, it is unnecessary to determine. It so affects the
judgment, we believe, for the following reasons:
1. It operated to curtail and restrict, as counsel for defendant has urged, the opportunity of
defendant to prepare properly for trial.
2. A defendant, if he appears for trial as a prisoner in the custody of officers, is in a less
favorable position than a defendant on bail. He is not only handicapped by embarrassment
and humiliation, but there is some probability, at least, that that sort of appearance may make
an unfavorable impression upon the jurors, to which risk one clearly entitled to bail, as was
defendant here, should not be required to be subjected, until his guilt has been proved.
3. There is also the probability that denial of bail, published in the newspapers as was done
in the instant case, may make upon the public mind generally an impression that the state's
case against defendant is strong, or bail would have been allowedthat is, that the proof
must be evident and the presumption great of his guiltand that such impression may
infiltrate into the mental consciousness of jurors.
11, 12. There is nothing we can do to aid the defendant toward favorable consideration of
any future application for bail. After conviction, under our statute, admission to bail is entirely
discretionary with the court or magistrate hearing such application. Furthermore, we have no
means of knowing what evidence may be offered by the state in opposition to a new
application.
In addition, under our law, upon the reversal of a judgment of conviction of murder in the
second degree and of the order denying a new trial, the fact of such conviction of the lesser
degree of the crime does not operate as an acquittal of the higher degree, as it would in
Louisiana, Florida and some other states. Under our statute, N.C.L.1929, vol. 5, sec. 11030, if
we should order a new trial and remand for that purpose, such action places the parties in the
same condition as if no trial had been had. Consequently upon a future application for bail, if
the state should offer sufficient evidence to establish satisfactorily that the proof is evident or
the presumption great that the defendant is guilty of first-degree murder, he would not be
entitled to bail; or if the state did not show sufficiently the proof to be evident or the
presumption great, the fact remains that after conviction of second-degree murder the
allowance of bail would be a matter entirely in the discretion of the court or magistrate to
whom such application is made. Such discretion, however, should be a sound, legal
discretion, and the court or magistrate, upon such application, should give due consideration
(according to many authorities) to the fact that at the former trial the conviction was only in
the second degree.
The second assignment of error is: That the trial Court erred in denying appellant's
motion for a change of venue.
13. While from the standpoint of idealistic perfection it would have been better in the
instant case, perhaps, as it would doubtless have been in many cases tried in the counties
where other crimes have occurred, and in which the defendant is accused, to a greater or
lesser degree, of participation in, or connection with, some crime other than that with
which he is charged, if the trial could be far removed from the scene of the crime, where
there have been newspaper articles and rumors concerning it, or concerning some other
crime which has been committed and with which the defendant is suspected of having
some connection.
lesser degree, of participation in, or connection with, some crime other than that with which
he is charged, if the trial could be far removed from the scene of the crime, where there have
been newspaper articles and rumors concerning it, or concerning some other crime which has
been committed and with which the defendant is suspected of having some connection.
Nevertheless, we do not believe the record in the instant case shows an abuse of discretion on
the part of the district court in denying a change of venue. Our statute, N.C.L. 1929, vol. 5,
sec. 10948, provides that no person shall be disqualified as a juror by reason of having
formed or expressed an opinion upon the matter or cause to be submitted to such jury,
founded upon public rumor, statements in public press, or common notoriety, provided it
appears to the court, upon his declaration, under oath or otherwise, that he can and will,
notwithstanding such an opinion, act impartially and fairly upon the matters submitted to
him. If jurors are not necessarily disqualified because of qualified opinions formed as the
result of public rumor, statements in the public press, or common notoriety, it is difficult to
perceive how, otherwise than by possible prejudice of jurors, a defendant could be injured by
being tried in the county in which the crime is alleged to have been committed, as it is the
jurors who play a decisive role in the case. The trial court was correct, I believe, in declining
to grant a change of venue until the practical test, that is, whether or not a fair and impartial
jury could be had, was applied by the actual examination of jurors on their voir dire. This was
done, and it is believed a fair and impartial jury was obtained. The defendant had been, by the
court, given the right to renew his motion for a change of venue after determination of such
test. The jurors selected apparently were satisfactory to the defendant, or doubtless he would
have renewed the motion. Assignment of error No. 2 appears to be without merit.
14. The third assignment of error is that: The Court erred in granting the motion to add
names of certain witnesses to the information."
Court erred in granting the motion to add names of certain witnesses to the information. The
motion was filed February 20, 1947, and on the morning of the trial, February 24, 1947, the
court granted the motion, and the names of the witnesses submitted were added and endorsed
upon the information. In the notice of motion it was stated that the names of such additional
witnesses were not known to the district attorney at the time of filing the information, and
were not all discovered until February 13, 1947. Under the applicable statute, sec. 11328, vol.
5, N.C.L.1929, the names of witnesses known to the district attorney at the time of filing the
information shall be endorsed thereon, and the names of such other witnesses as may become
known to him thereafter and before the trial shall be endorsed upon the information at such
time as the court may, by rule otherwise prescribe. The defendant's attorney having been
apprised of the names of the additional witnesses at least three days before trial, such notice
conformed to the law, as expounded in State v. Monahan, 50 Nev. 27, 249 P. 566, cited by
both the appellant and the respondent. In that case, the motion to add certain names of
witnesses was made the morning of the commencement of the trial, and the court granted the
motion, but also ordered a continuance of the trial for three days, thus disclosing that the trial
court in the Monahan case, and this court in approving such action on appeal, considered
three days before trial a reasonable time to enable the defendant and his attorney, or attorneys,
properly to prepare for his defense after knowing of the additional witnesses. In the Monahan
case, the court, on page 35 of 50 Nev., page 569 of 249 P., stated:
Upon motion of the defendant, the case was continued for a period of three days to enable
the defendant to prepare to meet the testimony of the additional witnesses. If any prejudice
resulted from the indorsement, it was cured by the granting of the defendant's motion for a
continuance. The weight of authority is to the effect that under statutes such as ours the
indorsement of names of witnesses upon an information is largely a matter of discretion
with the court; and, in the absence of a showing of abuse, or that some substantial injury
has resulted to the accused, an order permitting such indorsement, even after the trial
has commenced, does not constitute of itself reversible error.
to the effect that under statutes such as ours the indorsement of names of witnesses upon an
information is largely a matter of discretion with the court; and, in the absence of a showing
of abuse, or that some substantial injury has resulted to the accused, an order permitting such
indorsement, even after the trial has commenced, does not constitute of itself reversible error.
16 Corpus Juris, p. 796, 2027.
No merit appears in assignment of error No. 3.
Assignment of error No. 4, that the court erred in denying defendant's challenge for cause
of juror Marva Ray Johnson, appears to have been well taken. From Marva Ray Johnson's
answers to certain of the questions upon her examination as a juror, it appears that the
preconceived opinion she entertained was more than a qualified opinion. Some of her
answers indicated that she could put aside such opinion and decide the case solely upon the
evidence and the law as instructed by the court, while other answers on her part indicated that
she would have considerable difficulty in doing so. A few of the questions asked and answers
of this prospective juror on voir dire will suffice, and were as follows:
Q. Could you do that? Would you lay aside this opinion which you have now, and
proceed on this presumption of innocence? A. (Mrs. Johnson) I would if the evidence changes
it, I guess. (Emphasis added.)
The Court Q.: If you were in the position of the defendant being tried by twelve men and
women of the same frame of mind as you are now, would you be willing to have twelve men
and women try you if the case was reversed? By the witness: Well I don't think now I would
want them to hear the case.
In answer to a further question to the same effect, but better formulated and more detailed,
she answered, No, sir. Mrs. Johnson said, also, that her opinion went to the guilt or
innocence of the defendant, and that it would require evidence to remove such opinion.
15. This court believes that in any case it is highly desirable to have fair and impartial
jurors, and to this end, in view of the newspaper articles which had been published
concerning the case, and the prevalence of much rumor and gossip concerning it, in Clark
County, that the court and counsel for the state should have been scrupulously careful in
selecting the jurors, and that no juror whose answers indicated he or she may have come
in contact with such articles or remarks and had formed an opinion, or opinions, which it
would be difficult for him or her to put aside, should have been passed for cause.
desirable to have fair and impartial jurors, and to this end, in view of the newspaper articles
which had been published concerning the case, and the prevalence of much rumor and gossip
concerning it, in Clark County, that the court and counsel for the state should have been
scrupulously careful in selecting the jurors, and that no juror whose answers indicated he or
she may have come in contact with such articles or remarks and had formed an opinion, or
opinions, which it would be difficult for him or her to put aside, should have been passed for
cause. The court's action in passing Mrs. Johnson for cause in spite of the objection of the
defense necessitated that the defendant use one of his peremptory challenges in excusing her.
We have no means of knowing whether or not the defendant later needed this challenge for
use in excusing some other juror, although the fact that he used all of his peremptory
challenges would indicate that he may have been dissatisfied with some juror whom he was
unable to challenge. It appears that the fourth assignment of error has merit.
The fifth assignment of error is that: The Court erred in allowing the State to examine
witness Bernard J. Handlon in such a manner that evidence which tended to show appellant
committed the separate and distinct crime of robbery was brought before the jury. This
assignment has merit. The record clearly shows that the district attorney, in examining Police
Sergeant Handlon, framed his questions in a very general manner, as to what the witness
found at the house of the defendant in a second examination of the premises, in which the
sergeant participated, on the night following the day of the homicide. The defendant's
attorney objected to the form of the questionthat they were entirely too broad, furnishing no
indication as to what they related. Shortly after such objection, the record shows the
following:
By Mr. Bonner: If Your Honor please, I see what they are leading up to, and it is
absolutely improper. I am going to object to that form of examination. It is going to bring in
something prejudicial.
By the Court: There is nothing before the Court now.
Mr. Bonner: Yes, but there will be no chance for me to object the way he is bringing it
out.
By the Court: You can move to strike. There is nothing before the Court. He said he made
a search later that night. Proceed and ask the next question.
By Mr. Claiborne: Q. What was the result of this search, Sergeant?
By Mr. Bonner: Object to that as being irrelevant and immaterial.
By the Court: I think it is too broad. Objection sustained as to the form of the question, as
to what the results were. What he found and what the results were are two different things.
Then, after a question as to whether the sergeant found anything relative to the case, and
the sustaining of an objection by Mr. Bonner that same called for a conclusion and was
leading, and a question asking for the search, to which an objection was sustained, the
following occurred:
By Mr. Claiborne: What did you find as a result of your search?
By Mr. Bonner: Object to that, if Your Honor please, because what he found would have
no bearing on this case.
By the Court: Objection overruled. It may or may not have. You may move to strike if it
doesn't. A. We found a large amount of stolen jewelry from the armed robbery of the Jerry
Jerram Store.
By Mr. Bonner: That is absolutely prejudicial to the jury, and I move it be stricken.
By the Court: It may be stricken. The jury is admonished not to give any heed as to the
word stolen,' or as to what he found in that relation.
By Mr. Bonner: I knew he was trying to get something improper before the jury.
By Mr. Claiborne: I object to that inference that we are trying to
By the Court: The Court has ruled. It may be stricken, and the jury is admonished not to
pay any attention as to that statement made by the witness as to finding jewelry in the
premises.
stricken, and the jury is admonished not to pay any attention as to that statement made by the
witness as to finding jewelry in the premises. The Court had no way of knowing what the
answer would be until it was made. The jury is admonished not to pay any attention to that
testimony.
16. To anyone familiar with the background of the case and the surrounding
circumstances, to the extent that the presiding judge must have been by the time the
above-mentioned stage of the proceedings was reached, it seems apparent that the court,
while not knowing in advance precisely what the witness' answer would be, must have known
in a general sense, particularly after the insistent warning of counsel for the defendant, or at
least surmised, that the answers so energetically sought by the deputy district attorney would
probably relate to finding the stolen jewelry from the armed robbery of the Jerry Jerram store.
In view of the newspaper articles which had been published, indicating some connection of
the defendant with such robbery, and the denial of a change of venue sought by the defendant
because of his alleged fear, and that of his attorneys, that in the public mind and in the minds
of possible jurors an impression had been made that defendant was a participant in the
robbery itself or the loot obtained therefrom, both the court and the prosecuting attorneys
should have been scrupulously careful to exclude from the trial and from the minds of the
jurors any and all evidence relating, in any degree, to such robbery, in order to assure the
defendant the fair and impartial trial guaranteed to every defendant by the constitution of this
state. The deputy district attorney certainly must have known what answer his question would
elicit from Sergeant Handlon, and had no right whatever to ask the question which was asked.
It is too well settled to require the citation of authority that even if the prosecutor knew that
the defendant had connection, as an accessory after the fact or otherwise, with the jewelry
store robbery, same would constitute evidence of an offense other than that for which the
defendant was on trial, and was inadmissible in view of the then state of the record, and
highly prejudicial to the defendant.
the jewelry store robbery, same would constitute evidence of an offense other than that for
which the defendant was on trial, and was inadmissible in view of the then state of the record,
and highly prejudicial to the defendant. State v. McFarlin, 41 Nev. 486, 172 P. 371. Unless a
proper foundation is laid showing such testimony tends to show intent, motive, or that the
several offenses are part of a general plan or scheme, or that they are part of the res gestae,
such testimony is not admissible. State v. Salgado, 38 Nev. 64, 145 P. 919, 150 P. 764; State
v. White, 52 Nev. 235, 285 P. 503.
The court, when warned by counsel for the defendant, could readily have avoided error by
calling the respective counsel into conference and inquiring as to what evidence the state
sought to elicit by the question. It would then have become instantly apparent that the
objection to the question should be sustained. Mr. Bonner was right in stating in his opening
brief, on pages 16 and 17, the following:
Even though appellant's motion to strike the said evidence was granted appellant suffered
prejudicial injury to his case by allowing the said statements to go to the jury.
A careful examination of the said transcript of said witness will disclose that the state
attorney knowing of course that the witness would so testify deliberately framed his questions
in the manner he did to get this prejudicial matter before the jury. Even though appellant
constantly called the court's attention to the improper mode of examining said witness the
court allowed him to continue until the damage had been done.
The error in allowing such answer and the damaging evidence to be heard by the jury was
not cured, in my opinion, by admonishing the jury to disregard it. The human mind is not so
constituted that an impression once made can be totally obliterated, in the minds of all jurors,
by an instruction to disregard it. I believe the error was prejudicial, especially so in view of
the widespread publicity tending to connect the defendant with the robbery.
error was prejudicial, especially so in view of the widespread publicity tending to connect the
defendant with the robbery.
17, 18. The sixth assignment of error is that: The Court erred in allowing Capt. Sam Irick
to testify as to certain extra judicial statements allegedly made by appellant over latter's
objection. Such objection being predicated upon the contention that the extrajudicial
statements to which such sixth assignment of error is directed were admitted over defendant's
objection, at a time when the corpus delicti had not been sufficiently established. For the
definition and essential elements of the corpus delicti, reference is made to Wharton's
Criminal Evidence, eleventh edition, vol. 1, sec. 208, p. 230, from which the following is
quoted:
Sec. 208. Definition; Essential Elements. The corpus delicti of a crime means the body or
the substance of the crime charged. It usually includes two elements: (1) The act; (2) the
criminal agency of the act. In homicide, it consists of death as the result and the criminal
agency of another as the means. To the corpus delicti, in this sense, it is requisite, first, that it
be shown that the deceased died from the effects of a wound; second, that the wound was
unlawfully inflicted, and that the defendant was implicated in the crime.
The extrajudicial statement made by defendant to Capt. Irick and admitted in evidence,
and to which assignment of error No. 6 is directed, was as follows:
I then asked Freddie Teeter what had happened, and he had told me a man had been shot,
and I said, Who shot him?' He said, It was an accident.'
At the time the foregoing statement was admitted, the testimony had proceeded only to the
point that Dr. Sylvain and Dr. Cherry had been examined, and a portion of Capt. Irick's
testimony had been taken. From the testimony of the two physicians it was definitely
established that Mr. Linabury, suffering from a gunshot wound, had been brought to the Las
Vegas hospital, was treated there for three days by Dr. Sylvain, and was then removed to the
Clark County hospital and there treated by Dr.
then removed to the Clark County hospital and there treated by Dr. Cherry for about two
days, whereupon he died, and that his death was caused by such gunshot wound. But the only
evidence that the wound was not self-inflicted, but was caused by the criminal agency of
another, was the opinion of Dr. Cherry that the hole made by the bullet in the front part of the
chest appeared to be a little larger than the one in the back. At another point in his
testimony, the doctor, in answer to a question by the district attorney as to whether he had an
opinion as to which wound on Howard Linabury represented the entrance wound of the bullet
and which wound represented the exit of the bullet, stated:
A. I didn't see this patient immediately after he was shot. It was several days before he
was transferred to the Clark County General Hospital, and as near as I could determine, there
was a possibility that it was the hole in the back which was what I would consider mainly a
clean cut hole, and the hole in frontthe skin maybe had a slight tendency to being stretched
or torn a slight amount, which would lead me to believe that the exit of the bullet was in
front. (Emphasis added.)
On cross-examination, Dr. Cherry stated, among other things, that:
It was difficult to state the difference in size. If any, the one in front possibly was slightly
larger than the hole in back, but as I stated, it was several days after this man was shot when
he was referred to me. * * * The reason I stated that possibly the bullet wound might have
entered from the back was that the bullet wound in front on his chest had the appearance of
being a little larger, which you get with an exit of a bullet. To state this exactly, that it entered
the back and came out the chest, is difficult to state because of the lapse of time since the man
was shot.
Q. (By Mr. Bonner): As a matter of fact, then, Doctor, it could have entered from the
chest as from the back, actually, as far as you positively know? A. I could not state that it did
not enter from the chest.
After further questions, Dr. Cherry stated:
A. As I stated before, my reason for having the opinion that it could have entered the back
and came out the front was because the front hole appeared to be a little larger than the one in
the back.
Dr. Cherry's testimony constituted some evidence that the bullet probably entered in the
back, but it is clear he was, by no means, certain. His opinion was based solely upon the fact
that the front hole appeared to be a little larger.
19. If the bullet entered in the back, it is improbable that the injured man shot himself.
This idea is stressed by counsel for the state, and is sound. The extrajudicial statement, while
disclosing that the defendant had some knowledge of the shooting (his said statement to Capt.
Irick being to the effect that a man had been shot), did not disclose that he, Teeter, did the
shooting. In reply to Capt. Irick's question, Who shot him? the defendant answered, It was
an accident. It would seem, therefore, that although the sufficiency of the foundation was
questionable, the admission of said statement, if erroneous, did not constitute prejudicial
error.
The seventh assignment of error is that:
The Court erred in allowing Bernard J. Handlon to testify as to certain extra-judicial
statements of appellant and overruled the latter's objections. As to this assignment, it may be
stated that before the statement by the defendant to Sergeant Handlon was admitted the
relevant evidence in the record consisted of not only the testimony of Doctors Sylvain and
Cherry, but that of Capt. Irick, Johnnie Teeter and Lee Taylor. Johnnie Teeter had testified, in
substance, that he was sleeping in the bedroom, and Linabury awakened him and exclaimed,
I am shot. It appears that this exclamation indicated shocked surprise and desire for
assistance. In view of the fact that these men were close friends, it would seem reasonable
that if Linabury had shot himself he would have expected the result, and if he changed his
mind and desired help, that he would have said something to indicate to his friend, Johnnie
Teeter, that he had attempted suicide.
had attempted suicide. This is corroborative of the testimony of Dr. Cherry, which tended to
establish that Linabury was shot in the back, and the circumstantial inference resulting
therefrom that he did not shoot himself. The evidence indicated strongly the probability that
the wound was not self-inflicted, but was produced by the criminal agency of another. Upon
Johnnie Teeter having testified as above indicated, then the prior testimony of Capt. Irick that
he found the gun on a coffee table in front of a davenport in the living room at the home of
the defendant, upon Irick's visit on the afternoon of the shooting, became important in the
further establishment of the corpus delicti, in that the gun was subsequently identified as
belonging to the defendant. That certain elements of the corpus delicti may be strengthened or
corroborated by later testimony, see: Wharton's Criminal Evidence, eleventh edition, vol. 1,
sec. 210, p. 235; Carl v. State, 125 Ala. 89, 28 So. 505; Holland v. State, 39 Fla. 178, 22 So.
298.
Furthermore, the testimony of Lee Taylor, who was called from the hospital and came with
the ambulance shortly before the arrival of Capt. Irick, to the effect that the only persons
present at the Teeter home when he arrived were Freddie Teeter and his wife, that Freddie
Teeter was in the front room, and there was a lady in the room where the injured man was
lying who was subsequently identified to the witness as Florence Teeter, tended to connect
the defendant, circumstantially, with the shooting, as did the testimony of Capt. Irick as to the
same persons being present when he arrived at the Teeter home shortly after Taylor, and on
the afternoon of, and shortly after, the shooting. Capt. Irick testified that Fred Teeter had met
him at the front door, and Teeter's wife later entered the room hilariously and tried to grab the
gun, but the captain pushed her back and took possession of it.
20. It is clear that, prior to the admission in evidence of the extrajudicial statement made
by the defendant to Sergeant Handlon the corpus delicti had been sufficiently established.
The eighth assignment of error is that: The Court erred in refusing to allow Capt. Sam
Irick to testify as to dying declaration made by deceased. The respondent has conceded in its
brief that the dying declaration concerning which Capt. Irick would have testified if permitted
by the court was the statement made to Capt. Irick by the deceased, Linabury, at the Las
Vegas hospital at approximately five o'clock in the evening of November 24, 1946, the date
upon which Linabury was shot, and which was testified to at the coroner's inquest by Capt.
Irick, on December 11, 1946. The pertinent portion of Capt. Irick's testimony upon that point
is as follows:
I asked Mr. Linabury what had happened and he said there had been an accidentthat he
was shot accidentally. Then upon examination, I found a bullet wound in the center of the
upper part of the chest the same as Dr. Sylvain testified.
On cross-examination, Capt. Irick testified that present at the conversation, and at the time
the foregoing statement was made, were: Dr. Sylvain and two nurses assisting him, whose
names the captain did not have, that those were the only ones presentthat Sergeant Handlon
had proceeded to the home. Asked by Mr. Jones, district attorney, What did Mr. Linabury
say? Capt. Irick answered: He told me that there had been an accident and that he had been
accidentally shot. Defendant's attorney, at the trial, called Capt. Irick as a defense witness,
and made an earnest and persistent effort to have the foregoing statement of the deceased,
Linabury, admitted in evidence as a dying declaration. Mr. Bonner endeavored to lay the
proper foundation. Repeated objections were made by Mr. Claiborne, deputy district attorney,
to Mr. Bonner's questions, and, almost invariably, they were sustained. Some of the rulings
were correct, but the court repeatedly sustained objections to questions of defendant's counsel
upon the ground that no sufficient foundation had been laid, and, at the end of that phase of
the case, that no foundation had been laid.
been laid. The court, at no stage of the proceedings, pointed out wherein the foundation was
insufficient, whether because the court deemed the opinion of expert witnesses, for instance
physicians, as to Mr. Linabury's physical condition or as to the fact of whether or not death
was impending, to be the only evidence competent as to such facts, or whether for some other
reason the court deemed the foundation insufficient. At one point, after Mr. Bonner had
argued earnestly that the dying declaration was very pertinent to defendant, that he believed
the court should consider the testimony of Doctors Sylvain and Cherry and of this witness
(meaning Capt. Irick), in considering whether or not the dying declaration could be
introduced, and that he would like very much an opportunity to present it, the court stated:
This witnessthere is nothing before the court. That is all. There is nothing before the
court. There is a way to do it. That isn't before the court now.
But the court here, as elsewhere, failed, upon this matter which, it may be readily
perceived, was of vital importance to the defense, to indicate the way to do it, or what sort
of evidence the court deemed essential as a predicate for the admission of the dying
declaration.
Shortly before the court indulged in the foregoing expressions, and after the witness had
testified as to Mr. Linabury's shortness of breath and that he had difficulty in breathing, and
after the witness had testified he had made a rather minute and detailed investigation of the
deceased's person for three and a half hours, and that the doctors during that time had given
the patient intravenous injections, had examined him with a fluoroscope, taken him upstairs,
and then put him under oxygen, the witness was asked by Mr. Bonner, What appeared to be
his general condition at that time, from your observation? (emphasis added), and the
question was objected to by the district attorney upon the ground that it called for a
conclusion of the witness, and no sufficient foundation laid without specifying in what
respect, and the court ruled, merely: "Objection sustained."
what respect, and the court ruled, merely: Objection sustained. And soon thereafter Mr.
Bonner again asked, What was his condition at that particular time? and Mr. Jones again
objected, as calling for a conclusion and no sufficient foundation having been laid for it,
and the court thereupon ruled: Objection sustained. Then Mr. Bonner asked:
Would you say whether or not the deceased had a feeling he was going to die?
By Mr. Jones: We object to that, if Your Honor please. No sufficient foundation laid, and
calling for a conclusion of the witness.
By the Court: Objection sustained.
Then followed what has already been related above, as to Mr. Bonner urging the
consideration of the court, due to the importance of the evidence to his client, and the court's
expressions, There is nothing before the court. There is a way to do it. * * * Thereupon Mr.
Bonner further tried to lay a foundation satisfactory to the court. Capt. Irick, the witness,
thereupon testified that Mr. Linabury, in his presence, made expressions of pain and
suffering, by his voice and the twitching of his arms, that he was groaning, that deceased
made no statement that he held out any hope of recovery. This question by Mr. Bonner
followed:
From your observation of his actions, his statements, the groans, and his exclamations of
pain, would you say that he had an impending fear of death at that time?
By Mr. Jones: We object to that as calling for a conclusion of the witness.
By the Court: Objection sustained.
21. The question, of course, called for an opinion or conclusion. The question was, and is,
whether or not such opinion by a layman, a captain of police, who had observed Linabury's
condition for three and a half hours while the doctors and nurses were working with the
patient, and who had testified in detail as to exclamations of pain, shortness of breath,
groaning, twitching, his weakness of voice, the nature of his wounds in back and front, etc.,
was competent to say whether or not Linabury believed death was impending.
and front, etc., was competent to say whether or not Linabury believed death was impending.
The authorities appear to justify the admission of the opinion testimony of a layman who has
had full opportunity to observe, and has observed, the injured person, his symptoms, words,
expressions and exclamations, as to the general physical condition, and his opinion as to
whether the injured person believed death to be imminent or impending. See People v.
Sanchez, 24 Cal. 17, referred to in Warton's Criminal Evidence, eleventh edition, vol. 1, sec.
563, page 922, footnote 1, wherein it is stated:
That hope had fled, and an injured person had not the slightest expectation of recovery,
may be shown by any circumstances of the case taken together, such as the character of his
wounds, his suffering and pain, the opinion of the surgeon and other attendants as to his
condition * * *. (Emphasis added.)
In State v. Elliott, 45 Iowa 486, referred to in said vol. 1 of Wharton's Criminal Evidence,
sec. 504, page 928, in footnote 5, it is stated:
The circumstances under which the declarations were made are to be proved to the judge,
and he will hear all things that the deceased has said relative to his situation and will inquire
into the state of illness in which he was; the opinions of medical and other persons as to this
state, and whether they were made known to the deceased * * *, citing the following English
cases: Rex v. Van Butchell, 3 Car. & P. 629, 172 Eng. Reprint, 576 Hullock, B.; Rex v.
Spilsbury, 7 Car. & P. 187, 173 Eng.Reprint, 82 (Coleridge, J.). (Emphasis added.)
22. It was error to sustain the objections and not to permit Capt. Irick to testify as to the
general condition of Linabury and to state his opinion as to whether or not Linabury believed,
at the time of making the declaration in question, that death was impending.
23. Furthermore, according to the weight of authority, it was error for the court to permit
the examination in laying the predicate for admission of the declaration to be conducted in
the presence of the jury.
to be conducted in the presence of the jury. The deputy district attorney, Mr. Claiborne,
suggested to the court, early in the examination of Capt. Irick, that the jury be excused until
such time as the laying of the foundation had been completed and the court had ruled as to the
admissibility or inadmissibility of the declaration. This rule is to prevent the jury being
influenced by the declaration, if found not admissible, and, also, to prevent undue prejudice
against the defendant caused by an adverse ruling of the court when admissibility is being
determined. See Wharton's Criminal Evidence, eleventh edition, vol. 1, sec. 564, pages 924,
925, particularly the cases cited in the footnotes.
After the court's rulings repeatedly sustained the objections without indicating what kind
of foundation would satisfy, Mr. Bonner requested a recess, stating:
This witness is very valuable to our case. I would like to examine more authorities to
bring out the evidence, which Your Honor feels is necessary. I don't know what it is. It
requires a little research.
Mr. Jones objected to any recess, upon the ground of the recess the day before to
accommodate counsel for defendant. The court then called attention to the recess of the day
previous, for the purpose of allowing Mr. Bonner to prepare for the defense, on the ground
that the prosecution stopped rather suddenly. I thought it was only fair. I don't think you
should have any more recess. You will proceed.
By Mr. Bonner: Is the Court still of the opinion that insufficient foundation is laid for a
declaration?
By the Court: I don't think any foundation has been laid for a declaration. (Still not
indicating in what respect, or why.)
24. Here was defendant's counsel seeking a recess to consult authorities before final
disposition of one of the most important elements or questions involved in the defense of his
client, namely, the admission of a declaration which, if competent and believed true by the
jury, might have a decisive effect in the case. In view of the prior rulings of the court,
repeatedly holding the foundation established by the defense insufficient, and excluding
important portions of Capt.
prior rulings of the court, repeatedly holding the foundation established by the defense
insufficient, and excluding important portions of Capt. Irick's testimony (with which we do
not agree, as will be hereinafter disclosed), counsel for defendant doubtless was taken by
surprise. The recess was requested on the fourth day of a trial in a case in which the defendant
was charged with murder, which might involve the death penalty. Such cases, in many places
and courts, require weekssometimes monthsfor trial. We see no reason for such haste.
What is said in Wharton's Criminal Evidence, eleventh edition, vol. 1, sec. 564, p. 928, in
relation to allowing a defendant time to test the competency of a dying declaration against
him, is equally applicable to the situation of a defendant desiring to show the competency of a
dying declaration in his favor. The learned author there stated:
The argument of inconvenience and prolongation of trial has no place in a homicide
charge. It is the solemn duty, devolving upon the entire tribunal, to hear with patience and
deliberation, and to decide dispassionately and impartially, without regarding the length of
time that may be required to do justice.
25, 26. Now consideration will be given to the question of what is a sufficient predicate or
foundation for the admission of a dying declaration. The principal essential is the belief by
the declarant, when he makes the declaration, that he is in extremis, or that death is
impending. In the matter of such a declaration caution must be employed to be certain, so far
as possible, in the absence of the solemnity and sanctity of an oath and the valuable test of
cross-examination, that there is reasonable assurance of the truthfulness of the declaration. In
view of necessity in many cases, when other evidence is unavailable or uncertain as to
important facts, such declarations have been admitted in evidence, provided there is the
consciousness and firm belief in the mind of the declarant that death is inevitable and
impending, and that he must soon be face to face with that Divine Power to whom he owes
his existence, and whom most persons in some form or manner, regardless of religious
sect, denomination or creed, or of race or nationality, recognize as loving truth and
abhorring falsehood.
Power to whom he owes his existence, and whom most persons in some form or manner,
regardless of religious sect, denomination or creed, or of race or nationality, recognize as
loving truth and abhorring falsehood. What foundation is required, therefore, to render such a
declaration admissible? How can courts, employing such prudent caution as sound discretion
dictates, be assured that the declarant, when making his statement or declaration, believed
that death was near? The authorities, very generally, hold that for a court properly to conclude
that the declarant making the statement believed death was impending, it is not necessary for
the declarant to state to anyone, expressly, that he knows or believes he is going to die, or that
death is certain or near, or to indulge in any like expression; nor is it deemed essential that his
physician, or anyone else, state to the injured person that he will probably die as a result of his
wounds, or that they employ any similar expression. It is sufficient if the wounds are of such
a nature that the usual or probable effect upon the average person so injured would be mortal;
and that such probable mortal effect is not hidden, but, from experience in like cases, it may
be reasonably concluded that such probable effect has revealed itself upon the human
consciousness of the wounded person, so that he knows, or strongly believes, that death
impends. Wharton's Criminal Evidence, eleventh edition, sec. 530, pp. 852-854, and the many
cases cited.
What did Dr. Sylvain find or believe as to Mr. Linabury's condition on the day he was
brought to the Las Vegas hospital? It was on that evening that Linabury made the declaration
in question to Capt. Irick. Dr. Sylvain, asked, as a witness, what Linabury's condition was
when he was brought to the hospital (about 4 p.m., November 24, 1946, the doctor had
testified), answered:
This individual was in a critical condition, at the time that I saw him. He was suffering
from a penetrating wound of the chest. His clothes were saturated with blood.
blood. He was in extreme shock from injury and hemorrhage.
Other parts of the doctor's testimony disclosed that the bullet had penetrated Linabury's
body, with its point of entrance on the right side of the back part of the chest, and the point of
exit being in the front part of the chest at about the level of the third rib, or vice versa. Capt.
Irick testified Linabury was very short of breath, and called attention to his difficulty in
breathingthat he was groaning; that he was gaspingvery short gasps of breath, very
gasping, also that his voice was weak and that he could barely talk, and that his arms were
twitching. The said witness testified that he saw bullet holes in the front and the back. Dr.
Cherry, who attended Linabury the last two days of his life, commenced his services nearly
three days after the declaration in question was made, and, consequently, his testimony is not
as important as that of Dr. Sylvain, or that of Capt. Irick, but very corroborative of the mortal
character of Linabury's injury, and the probability that the injured man himself, at all times
after the wound was inflicted, so realized. Linabury was brought to the Clark County hospital
about 4:30 p.m., on November 27, 1946, and Dr. Cherry examined him at that time. Asked by
Mr. Jones what he then found Linabury's condition to be, the doctor stated:
The man apparently was in shock. His condition was very unfavorable, and the pulse was
rapid and weak. I also found he was suffering from a gunshot wound, which Dr. Sylvain had
previously explained to me * * *. There was a bullet wound that entered the right side of the
chest, passing completely through the right side of the chest. This man was having difficulty
breathing and was running considerable temperature.
Further on in his testimony, Dr. Cherry stated that we gave him large doses of penicillin,
he had glucose solution, he had plasma, and later he was under an oxygen tent. And that he
died while in the Clark County hospital, at 4:30 p.m.,
County hospital, at 4:30 p.m., November 29, 1946. This was almost exactly five days from
the time he was injured, at about 4 p.m., November 24, 1946.
Reference is now made to the very able and scholarly opinion of Mr. Justice McCarran in
State v. Scott, 37 Nev. 412, 142 P. 1053. On pages 429, 430, of 37 Nev., page 1059 of 142 P.,
the learned justice stated:
The question whether the alleged dying declarations were made under such circumstances
as to render them admissible in evidence was in the first instance to be determined by the
court upon the preliminary proof or predicate for their admission. All that was required to let
the statements go to the jury was the making of a prima facie case that the utterances were
made by the declarant when he was in extremis, and when he was fully conscious of that
condition. However this may be, the ultimate facts and the weight, credence, and significance
to be given to the statement when admitted is for the jury, and it is error to remove this
question from their consideration. People v. Thomson, 145 Cal. 717, 79 P. 435; State v.
Hendricks, 172 Mo. 654, 73 S.W. 194; 21 Cyc. 987.
27, 28. Many other authorities have held that it is for the court, and not for the jury,
definitely to determine the fact of whether or not the declarant made the declaration when in
extremis, or when he was conscious of impending death. In Wharton's Criminal Evidence,
eleventh edition, vol. 1, sec. 564, p. 924, it is stated: The relevancy and admissibility of
dying declarations are questions solely for the court, citing cases from Kansas, Missouri,
Texas, Kentucky, and Mississippi. We are bound, however, by the majority decision in State
v. Scott, supra, and shall adhere to that doctrine. Applying that doctrine to the facts in the
instant case, no hesitancy is felt in saying, and holding, that it was sufficiently established by
the evidence that the statement of Linabury to Capt. Irick, and which was not admitted by the
trial court, was made by the declarant when he was in extremis, and when he was fully
conscious of that condition."
when he was in extremis, and when he was fully conscious of that condition. (The quoted
words are from the able opinion of Mr. Justice McCarran.)
The one remaining objection to the admission of the dying declaration is that it is
inadmissible because, as is contended, it is the expression of deceased's opinion that the
shooting was accidental, and was not the statement of a fact. The rule is stated in Wharton's
Criminal Evidence, eleventh edition, vol. 1, sec. 538, pp. 869, 870, as follows:
Sec. 538.When Statement Favorable to Accused. Mere expressions of opinion are not
admissible, even though they are in favor of the accused. Hence, where the declarant stated
that the wound was an accident, or that the accused did not intend to hurt him, or that it was
declarant's fault, or that accused was crazy, it was expression of opinion, and inadmissible.
But some courts have made an exception to the rule that declarations of the deceased are
admissible only when they relate to facts, and not to mere matters of opinion, and have held
declarations of opinion admissible where they are favorable to the accused, and explain the
conduct or motives of the deceased, or show his feelings or belief.
In sec. 553, pp. 905, 906, of the same volume, is the following:
It is said in an English case (citing Rex v. Scaife, 1 Moody & R. 551, 174 Eng.Reprint,
190, 2 Lewin, C.C. 150, 168 Eng.Reprint, 110) that a declaration in favor of the accused must
ever be taken as more likely to be true, as it is not probable that one would make a statement
favorable to the person who has inflicted a mortal injury upon him; but rather the contrary.
The general rule that dying declarations speak only to the facts, and not to matters of opinion,
has been relaxed where the opinion expressed by the deceased was favorable to the accused,
in explanation of the conduct of the deceased, and hence the declaration that the accused
would not have struck the deceased if the latter had not provoked him is competent, as also
the direct declaration by the deceased showing that the killing was done by another
person."
him is competent, as also the direct declaration by the deceased showing that the killing was
done by another person.
In support of the rule that the rules of evidence are not to be so rigorously applied when
the fact satisfactorily appears that the declaration favors the accused, see: Haney v. Com., 5
Ky.Law Rep, 203; State v. Ashworth, 50 La.Ann. 94, 23 So. 270.
A test frequently applied, and which goes to the nature of the opinion itself, to determine
its admissibility, is stated in House v. State, 94 Miss. 107, 48 So. 3, 5, 21 L.R.A., N.S., 840,
as follows:
To us the true and proper test as to admissibility is whether the statement is the direct
result of observation through the declarant's senses, or comes from a course of reasoning from
collateral facts. If the former, it is admissible; if the latter, it is inadmissible.
This test is referred to in respondent's answering brief, p. 59, and 40 C.J.S., Homicide, sec.
299, p. 1278, is cited.
29. A statement that defendant shot for nothing has been held inadmissible, as clearly
an expression of opinion based upon collateral facts. Collins v. Com., 12 Bush, Ky., 271. He
shot me just because he could has been held a mere expression of opinion. Cavanaugh v.
Com., 172 Ky. 799, 190 S.W. 123, 128. Likewise, the statement by a declaration that
defendant and others had met him down there to kill him without a cause, and just had it
made up with each other to do so. Norwood v. State, 11 Ala.App. 30, 65 So. 851. In State v.
Wright, 112 Iowa 436, 84 N.W. 541, it was held that the statement of deceased that he did not
believe the defendant intended to shoot him was inadmissible because clearly the opinion, as
was the statement that declarant thought the defendant was crazy. Also, in State v. Finley, 245
Mo. 465, 150 S.W. 1051, a statement of deceased that he was to blame in bringing on the
difficulty was held properly stricken from his dying declaration, on the ground that it was a
mere opinion, the deceased not having recited the acts which he did in bringing on the
difficulty.
deceased not having recited the acts which he did in bringing on the difficulty. These
illustrative cases are collected in the footnotes to sec. 541 of Wharton's Criminal Evidence,
eleventh edition, vol. 1, p. 880, and many more cases are referred to in connection with said
sec. 541. But all of the above-stated expressions, either because qualified by the language
employed, or because not related directly to the act of killing, were clearly predicated upon
collateral facts, and were not admissible for that reason. In the instant case, Linabury's
declaration was positively stated as a fact, and was to the effect that he was shot accidentally,
or that it was an accident. The language used clearly implies that the statement was predicated
upon actual knowledge, obtained as a direct result of observation through declarant's senses.
And from all the evidence that appears in the record as to that matter, which is the testimony
of the defendant to the effect that the deceased had partly turned, and he, defendant, was
looking directly at the deceased's face, that conclusion is substantiated.
In Commonwealth v. Matthews, 89 Ky. 287, 12 S.W. 333, on page 334, the court's
reasoning on the two major questions involved, which are the same as those confronting us in
the instant case, is so closely akin to my own, that I feel constrained to quote from said
opinion the following:
The accused was allowed, over the objection of the commonwealth, to prove, as a dying
declaration, what the injured party said after the shooting as to the circumstances of it. It is
urged that the proper foundation was not laid for its introduction, and that the statement was
in itself incompetent. It was proven that about 15 minutes after he was shot the deceased,
when lying upon the ground bleeding and suffering, said that he hoped he would live long
enough to take the gun home, and that he died in about 20 minutes. The witness says that he
did not say whether he believed he would die or recover, and that he (the witness) did not
know whether he was conscious or not when he made the statement.
It is well settled that a statement, to be admissible as a dying declaration, must be made when
the party is in extremis, and has given up all hope of this life; but whether this be so or not
may be determined, not only by what he may say, but by his evident danger, and all the
surrounding circumstances. The injured party need not, in express words, declare that he
knows he is about to die, or make use of equivalent language. Peoples v. Com., 88 Ky. 174,
10 S.W. 642. Tested by this rule, we think the statement in this instance was made under a
sense of impending death, and that what the injured party then said also shows he was
conscious, not only of it, but of what he was saying as to the transaction. The statement, in
substance, was that he and the accused were playing, and that it was an accident. To be
competent as a dying declaration, the statement must not only relate to the immediate
circumstances of the transaction resulting in the injury, but it must detail facts, and not the
opinion of the declarant. In our opinion, the statement in this instance conforms to this rule. It
is unlike the case where the injured party declared that he had been killed for nothing. This
was purely his opinion and inference. Here the injured man said that he and the accused were
engaged in play, and that the shooting was an accident. This, in our opinion, was the
statement of a fact, more than the giving of an opinion, and the court properly permitted it to
be proven.
We cite, also, as pertaining to the subject generally, Hollywood v. State, 19 Wyo. 493, 120
P. 471, 122 P. 588, Ann.Cas. 1913E, 218, and particularly the note on the subject,
Admissibility of opinion of declarant as dying declaration, appended thereto, pages
228-230; Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917; State v. Roberts,
28 Nev. 350, 82 P. 100; State v. Hennessy, 29 Nev. 320, 90 P. 221, 13 Ann.Cas. 1122; State
v. Hunter, 48 Nev. 358, 232 P. 778, 235 P. 645.
It is the opinion of this court that, in the instant case, the testimony of Capt.
the testimony of Capt. Irick as to the surrounding circumstances of the dying declaration,
offered in the attempt to lay the foundation for the admission of same, and the statement to
him by the deceased constituting such declaration, were of great importance to the defendant
in his defense, and that their exclusion from evidence was unjust to the defendant, and
constituted reversible error.
Appellant's assignment of error No. 9 is that: The Court erred in refusing to instruct the
jury to disregard improper statements of the District Attorney and his deputy in their
arguments. The statements of the district attorney and his deputy most complained of were
those in which the defendant was characterized, expressly or by implication, as a hoodlum.
The statements of the district attorney containing such designation are as follows:
Now, who are these people involved in this affair? There is Johnnie Teeter, Don Howard
Linabury, and Mr. and Mrs. Teeter. They all came out here from Detroit. They all worked in a
gambling hall. It is admitted that they consorted and knew Joe Lark, who is now serving time
for robbing a jewelry store. Teeter admits he knew Lark before and got him his job over to the
Pioneer Club as a shill. We know this about the defendant, and I think about his associates in
that house, including the deceased, Linabury. They came here from Detroit. They were
working in a gambling hall. They were friends and consorting with a known robber. In
addition to that, we know that the defendant, Teeter, had in his house and that he used a
loaded revolver. I think that makes the whole lot of them hoodlums. As long as I am District
Attorney of this county, I will do everything in my power to keep these out of the state,
hoodlums from coming in here, committing acts of violence, killing each other.
Objection was made by Mr. Bonner that the above was improper argument, unjust, and
error.
was improper argument, unjust, and error. The court thereupon stated: He has a right to draw
his own conclusions. Mr. Bonner replied: That is improper; then the court said: I don't
think it is. Let the record show.
By Mr. Bonner: Let the record show I make exception and I ask the Court and jury to
disregard it.
By the Court: I will not instruct the jury.
By Mr. Bonner: I take an exception to the remark.
By the Court: Exception may be noted.
Thereupon Mr. Jones said:
If Your Honor please, as long as I am a public official in this county, I will do everything
in my power to keep hoodlums of the ilk of this defendant out of this county, and if I can get
the cooperation of the citizenry, I will make it unpopular to commit such crimes.
Mr. Bonner then objected to referring to other crimes, and the court stated that the district
attorney had the right to draw conclusions in argument. Mr. Bonner replied to the court: He
doesn't have the right to comment on other crimes. There are no other crimes showing;
whereupon, Mr. Jones stated:
I am not trying this defendant with any other crime than what he is charged with before
this court. That there might be no mistake, I think there is nothing in this record that he was
definitely indicated or implicated in the Jerry Jerram robbery. I don't say he was. I do say,
however, and it is my conclusion and opinion from the evidence that he knew that
immediately after
By Mr. Bonner: I object to any reference to that robbery as not in issue, not in evidence.
By Mr. Jones: After it was committed, had been committed, and who committed it.
By the Court: That is in the evidence.
By Mr. Jones: The defendant himself brought it into the evidence. * * *
The district attorney was in error, at that point, in stating that the defendant brought the
jewelry robbery, or the fact of any knowledge thereof by the defendant immediately after
it was committed, into the evidence.
or the fact of any knowledge thereof by the defendant immediately after it was committed,
into the evidence. The record clearly shows that, except for the conversation between the
defendant and the deceased on Sunday, November 24, 1946, the day of the homicide, in
connection with which the defendant testified, in effect, that Linabury, upon the defendant's
inquiring where he got certain jewelry displayed upon that occasion, told him Joe Lark gave it
to him, and that it all came about from a key which he, Linabury, had given to Joe Lark, the
key to defendant's front door, and that he came to defendant's house, unbeknowing to
defendant, the day of the holdup, after Linabury's giving him the defendant's key, got
defendant's gun out of its drawer, and went and held up Jerry Jerram's storethe defendant
had not brought in any evidence relating to such robbery, or to the visit of Joe Lark to
defendant's house on Thursday, November 21, 1946, the day of the hold-up, nor the fact of
Joe Lark bringing certain sacks to defendant's home. Evidence to that visit of Joe Lark, and
what occurred there between Lark and the defendant, was first brought into the evidence by
the district attorney in cross-examination of the defendant. Defendant's attorney objected as
soon as that line of questioning began, but immediately thereafter withdrew his objection. I
can only surmise that he did so because he feared the effect on the jury of the answer of
Sergeant Handlon earlier in the case, and which had been stricken and the jury admonished to
disregard it. Defendant's attorney, in view of that situation, may have thought it better to
permit his client to state fully what occurred between defendant and Lark on the day of the
robbery, lest the jurors might believe the defendant was implicated in the robbery, or became
implicated, through Lark, upon the occasion of Lark's visit to defendant, in the fruits of the
robbery. In any event, the defendant denied positively, in his testimony, that he saw any
jewelry in the bags or sacks which Lark had with him in defendant's house at the time of
said visit, which was shortly after the robbery occurred.
with him in defendant's house at the time of said visit, which was shortly after the robbery
occurred. The record, in that connection, discloses the following:
Q. (By Mr. Jones): Did he have some jewelry with him at that time? A. I don't know. I
didn't see it.
Q. Didn't you tell Joe Lark to put that stuff in your bag and get out of here?' A. No, sir, I
told him to take his bags and get out. He had some bags on the kitchen table.
Q. Was he perspiring and shaking at that time? A. Yes, he was. (Reporter's transcript, p.
213.)
* * * * * * *
Q. Did you notice at that time two maroon colored watch boxes, one ivory velvet ring
box, and one small maroon box in the room? A. If you will permit me
Q. Did you or did you not see that stuff? A. No.
Q. Did you see two brown paper bags approximately half full in the house at that time?
A. I saw two brown paper bags. (Reporter's transcript, p. 214.)
* * * * * * *
Q. As a matter of fact, Mr. Teeter, at the time you had this conversation with Linabury,
the deceased, in your house about three-thirty the day of this shooting, November 24, 1946,
you had known for three days at that time about the Jerry Jerram jewelry robbery, had you
not? A. It was read in the newspapers, but as far as knowing who did it, I didn't know.
Q. You didn't know Joe LarkA. I had no idea or I would have called the police.
It seems proper to state at this point that there is no evidence whatever in the record which
justified the inference or conclusion indulged by the district attorney to the effect that the
defendant knew immediately after the robbery was committed that it had been committed and
who committed it. There was no evidence upon that phase of the case other than the
defendant's testimony.
The mere fact that Joe Lark brought bags or sacks into defendant's house, even if they
appeared to contain something, affords no basis for an inference that the defendant looked
into the bags or sacks, even if they were open or partly open, in the absence of any
evidence, direct or circumstantial, that he did so, or was standing or sitting in such a
position as would have enabled him to have looked into them, and in the absence of any
admission on his part that he did so, and the defendant having positively testified that he
did not see what was in the bags or sacks.
defendant looked into the bags or sacks, even if they were open or partly open, in the absence
of any evidence, direct or circumstantial, that he did so, or was standing or sitting in such a
position as would have enabled him to have looked into them, and in the absence of any
admission on his part that he did so, and the defendant having positively testified that he did
not see what was in the bags or sacks. It appears reasonable to believe that one in Joe Lark's
situation, having shortly before committed a robbery, would have had the bags closed, to
prevent detection of the crime. Neither was there any evidence which would justify the
inference that when Joe Lark departed, at the defendant's command, he left the bags,
containing the jewelry, in defendant's house, and that defendant, if he had not learned of the
robbery by seeing the jewelry while Joe Lark was present, possibly learned of it soon after
Lark left, by inspecting the bags, and that, so learning of it, he failed to report it to the police.
Again, there is as much, or more, reason to infer, if any inference upon that fact is proper at
all, that, because Joe Lark was ordered by defendant to take the bags and get out, he probably
obeyed to the extent of taking the bags with him. One circumstance indicating such a
presumption would be that a man who had gone to the extreme of committing robbery, with
its attendant risks, to obtain the jewelry, would probably not walk away and leave it, unless
forced to do so. On the other hand, it could have been that Joe Lark was so frightened that the
police would find him with the loot that he might have abandoned it and left same in
defendant's house, even though ordered by defendant to take it with him. But the basis for
such an inference is no more substantial, if as much so, as the opposite inference above
mentioned. It is not believed, therefore, that an inference either way is justified, from the
evidence. So, considering all possible inferences, where in the record is there any evidential
basis for the inference or conclusion of the district attorney that Teeter knew immediately
after the robbery that it had been committed, and who committed it?
been committed, and who committed it? And yet such inference or conclusion is the only
justification the district attorney expressed when objection was made by defendant's counsel
by calling the defendant a hoodlum, and request made to the court to admonish the jury to
disregard such characterization, and which the court declined to do.
Mr. Claiborne, deputy district attorney, evidently upon the basis of a similar conclusion or
inference on his part, in the closing argument, stated:
Now, isn't that a little inconsistent? Here is a man he knew as his friend, he had worked
with him, who used to come to his house, we will say occasionally, Mr. Bonner, for breakfast,
and all of a sudden the defendant Freddie Teeter comes into the house and can give as his
only reason for telling him to leave that he had no business there, but he saw those sacks. I
submit to you ladies and gentlemen my opinion of that. He knew then and there that Joe Lark
had committed a robbery, and he had the loot, the jewelry, in those sacks, and he told him to
leave. (Emphasis added.)
Mr. Bonner then objected, that is not a fair or reasonable inference. Mr. Claiborne
replied: That is my conclusion; then Mr. Bonner said: He is not supposed to give
conclusions on anything which might cast a reflection on another crime. I move the jury be
instructed to disregard that statement as being prejudicial; whereupon the court stated: He
has a right to draw conclusions, and Mr. Bonner commented: Not unless it is a fair
inference from the testimony, and the court then made its ruling: Objection overruled.
After considerable further argument, Mr. Claiborne made an impassioned, emotional
appeal to the jury, a portion of which, together with the defendant's objections and the court's
remarks, was as follows:
I want to call your attention to, and I am glad Mr. Bonner brought it uphe said we have
just fought a war for democracy in order that an innocent man would not be tried for crimes
he did not commit. I don't know whether Mr.
know whether Mr. Bonner participated in this war or not, this last war. I did, five years of it. I
am glad he mentioned that we had fought a war for democracy, and when I say that, I speak
of thousands of soldier boys all over this country, millions of them, so to speak. We fought a
war to rid the country, the whole world of international hoodlums, and those who would
violate the international code of man and mankind. Having participated in what I thought then
was that mission, and still believe so, I appreciate those words, and I am trying to do today,
Mr. Bonner, the very same thing which you say we did, but I am trying to bring it home to
Las Vegas, and as a young man admitted to this Bar, I give you my solemn oath before you
and God that I will do my part to rid Las Vegas of the community hoodlums, and I will do
everything I can
By Mr. Bonner: Just a minute
By the Court: Sit down. He can make that argument, if he wants to.
By Mr. Bonner: He cannot call that man a hoodlum.
By Mr. Claiborne: I didn't call him a hoodlum.
By the Court: He is not calling anybody a hoodlum. He says it is his duty to rid the
community of hoodlums.
By Mr. Claiborne: And to prosecute to the full extent of the law those who would violate
the laws of our state and of our community.
I have no disposition to believe or to state that either Mr. Jones or Mr. Claiborne did not
feel morally justified in making the arguments they respectively made. And if evidence of all
that actually occurred upon the occasion of Joe Lark's visit to the defendant, and thereafter,
and upon the occasion of the visit of the deceased, Joe Linabury, on the day of the homicide,
to the defendant's home, including all the conversation that actually took place between the
deceased and the defendant, were in the record before us, it might then be shown that all of
the statements in such arguments were legally justifiable and proper. But that is mere
conjecture, as no such record is before us.
30-32. A defendant is, at all stages of the proceedings in a case in which he is charged
with a criminal offense, presumed to be innocent until he is proved guilty, by competent,
relevant and material evidence, beyond a reasonable doubt. Only such evidence, direct or
circumstantial, or both, meeting the legal requirements, and such reasonable, legitimate
inferences as may legally be drawn therefrom, can properly be considered by a trial court or
jury in determining a defendant's guilt or innocence of the crime charged. Mere conclusions
based on supposition, assumption, conjecture or imagination, and not upon competent, legal
and sufficient evidence, cannot, with proper regard for truth or justice, be permitted to assume
the role of legitimate factual inferences in the determination of guilt or innocence. While
much latitude is frequently allowed attorneys in argument, same cannot be allowed to be
abused to the extent of permitting conjectural or speculative opinions of counsel to take the
place of sound, legitimate inferences, reasonably drawn from evidence of actual facts.
In the instant case, speaking solely from the record, it appears that counsel for the state
expressed a conjectural conclusion that, because certain bags or sacks were later proved to
have contained jewelry, the defendant must have become aware of their contents at some time
during the short period when Joe Lark had them on the table in defendant's home, when there
is no evidence to show that they were opened or closed, or whether or not the defendant was
in a position to see in them, if open, or whether or not he actually looked in them, and upon
such purely conjectural basis, created solely by counsel, counsel proceeded to the conclusion
that defendant was a hoodlum. How counsel reached this conclusion is again left to
conjecture, but we may surmise that he meant to convey the idea that defendant was a
hoodlum because he did not report to the police the robbery which, evidently, the district
attorney assumed that defendant knew of, or because, perhaps, he may have become
aware the jewelry was in the sacks, and, if so, may have conceived the cunning idea or
scheme of professing righteous indignation, and driving Joe Lark away, supposing that
Joe Lark would so fear the police finding him with the loot that he would not take it with
hima hypocritical form of indirect highjacking.
police the robbery which, evidently, the district attorney assumed that defendant knew of, or
because, perhaps, he may have become aware the jewelry was in the sacks, and, if so, may
have conceived the cunning idea or scheme of professing righteous indignation, and driving
Joe Lark away, supposing that Joe Lark would so fear the police finding him with the loot
that he would not take it with hima hypocritical form of indirect highjacking. That these
various imaginary theories, based upon counsel's conjectural conclusion that defendant knew
what was in the sacks, are possible, serves to make clear the danger of permitting such
conjectural conclusions of the district attorney, or his deputy, in argument, to take the place of
legitimate inferences based upon facts.
Hoodlum is an opprobrious term, defined in Webster's New International Dictionary,
second edition, as a young rowdy. In the public mind, the term hoodlum is associated
with gangster, because young rowdies, or hoodlums, often operate collectively, in groups or
gangs. Mr. Jones conveyed the gang idea further by using the plural in that respect. He said,
as hereinbefore quoted:
They came here from Detroit. They were working in a gambling hall. They were friends
and consorting with a known robber. In addition to that, we know that the defendant, Teeter,
had in his house and that he used a loaded revolver. I think that makes the whole lot of them
hoodlums. As long as I am District Attorney of this county, I will do everything in my power
to keep these out of the state, hoodlums from coming in here, committing acts of violence,
killing each other. (Emphasis added.)
The average citizen dreads the idea of gangs of hoodlums or gangsters becoming
established in his community. Citizens read of such gangs and their criminal depredations
in the larger cities, and fear that such things may happen in their communities; and when
citizens who happen to be jurors are invited by public officials in whom they have
confidence, such as a district attorney, or his deputy, to join in a crusade to rid the
community of such undesirable elements, they are likely, as good citizens, to respond.
such things may happen in their communities; and when citizens who happen to be jurors are
invited by public officials in whom they have confidence, such as a district attorney, or his
deputy, to join in a crusade to rid the community of such undesirable elements, they are
likely, as good citizens, to respond. This may easily lead jurors under such circumstances,
especially under the influence of impassioned eloquence, to forget the limitations of their
duties as jurors, and, instead of determining the guilt or innocence of the defendant solely
upon the facts as proved by the evidence and the law as instructed by the court, they may,
under the influence of such argument, forget the weakness of the evidence in the particular
case and convict the defendant upon general principles, or for the benefit of the
community.
Repeatedly, in the past, this court has had occasion to consider the propriety of argument
of prosecuting attorneys under somewhat similar circumstances as in the instant case. We cite
State v. Rodriguez, 31 Nev. 342, 102 P. 863. In that case Mr. Justice Sweeney, in his opinion,
on page 346 of 31 Nev., on page 864 of 102 p., stated:
I do not think it is stating it too strongly to say that, once such a charge is made against a
man, if believed to be true, it would be difficult to find any jury in this state which would not
be so prejudiced as to bring in a verdict of conviction against an accused, no matter on what
charge he was being tried, believing that in so doing that on general principles they would be
in a measure justified in not having strictly adhered to the evidence and instruction of the
court.
Considering the character of the case made against the defendant, the seriousness of these
charges, unsupported by the evidence, and the fact that they were made before the jury in the
closing argument when counsel for defendant had no opportunity to criticise or reply to them,
and considering the remarks coming from an officer of the court clothed with authority to
speak for the state, and a public officer whom juries have a right to regard as
unprejudiced, impartial, and nonpartisan, and bent only on seeing justice done and the
law vindicated in accordance with the rules of law, we cannot say that the mere objection
of counsel for defendant, and admonishment of the court to the jury to disregard the
statement of the district attorney, were sufficient to remove from the minds of the jury
the poison and prejudice already sown against the defendant by the district attorney.
speak for the state, and a public officer whom juries have a right to regard as unprejudiced,
impartial, and nonpartisan, and bent only on seeing justice done and the law vindicated in
accordance with the rules of law, we cannot say that the mere objection of counsel for
defendant, and admonishment of the court to the jury to disregard the statement of the district
attorney, were sufficient to remove from the minds of the jury the poison and prejudice
already sown against the defendant by the district attorney.
We cannot escape the conclusion that the fair and impartial trial to which the defendant
was entitled was prejudiced by the remarks of the district attorney, and that the remarks were
well calculated to influence the jury in the present case. People v. Bowers, 79 Cal. 415, 21 P.
752; People v. Treat, 77 Mich. 348, 43 N.W. 983; State v. Ulrich, 110 Mo. 350, 19 S.W. 656;
Holder v. State, 58 Ark. 473, 25 S.W. 279; State v. Irwin, 9 Idaho 35, 71 P. 608, 60 L.R.A.
716, citing with approval [Holder v. State], 58 Ark. 473, 25 S.W. 279; Gutzman v. Clancy,
114 Wis. 589, 90 N.W. 1081, 58 L.R.A. 744; Prewitt-Spurr Mfg. Co. v. Woodall, 115 Tenn.
605, 90 S.W. 623; Ivey v. State, 113 Ga. 1062, 39 S.E. 423, 54 L.R.A. 959; Wilson v.
Territory, 9 Okl. 331, 60 P. 112; State v. Balch, 31 Kan. 465, 2 P. 609.
Prosecuting attorneys, unfortunately, too often forget in their zeal to secure convictions,
that they have a duty to perform equally as sacred to the accused as to the state they are
employed to represent, and that is to see that the accused has the fair and impartial trial
guaranteed every person by our Constitution, no matter how lowly he may be, or degrading
the character of the offense charged, and that it is equally as reprehensible for prosecuting
attorneys to violate their oath as an attorney and officer of the court in this respect, as they are
censurable if they allow the guilty to escape the trial and punishment provided by law. It is
their duty to use all fair, honorable, and lawful means to secure the conviction of those who
may be indicted, but, in so doing, they should also see that nothing but competent
evidence is submitted to the jury, and, above all things, should not in their actions before
or statements to a jury make prejudicial and improper statements which they know would
not be admissible otherwise.
they should also see that nothing but competent evidence is submitted to the jury, and, above
all things, should not in their actions before or statements to a jury make prejudicial and
improper statements which they know would not be admissible otherwise. It seems to be a
peculiar trait and ambition of some prosecuting attorneys, carried away through misguided
zeal, to overprove their case when a conviction is otherwise certain, and to exert their skill
and ingenuity in seeing how far they can trespass on the verge of error, and, generally in so
doing, trespass upon the rights of the accused, thus causing the necessity of courts of last
resort to reverse causes and order new trials, to the expense and detriment of the
commonwealth and all concerned.
See, also: State v. Petty, 32 Nev. 384, 108 P. 934, Ann.Cas.1912D, 223; State v. Cyty, 50
Nev. 256, 256 P. 793, 52 A.L.R. 1015. It is believed appropriate, in the discussion of this
assignment of error No. 9, to quote the following from the excellent opinion of the late Mr.
Justice Coleman, in State v. Cyty, supra, on page 259 of 50 Nev. page 794 of 256 P.:
Such misconduct is due to a variety of causessometimes to inexperience of the district
attorney, sometimes to his vaulting ambition, sometimes to the fact that he is innocently
carried away by the exuberance of his own misguided zeal, and sometimes to the bias or
prejudice of special counselbut whatever contributes to such an abuse of a great power, it is
the duty of the court, unsolicited, to reprimand instantly such misconduct, and it is the part of
a fairminded prosecutor, when reminded of his indiscretion, to do all in his power to right the
wrong done, remembering that he is the representative of the sovereign people of the state,
who seek only the administration of justice.
There is no excuse for such misconduct in any kind of a case. If the state has a strong case
it is not necessary, and if it has a close case such misconduct is gross injustice to the
defendant. Furthermore, prosecutors should remember that such misconduct often leads to the
expense of burdensome retrials, which can be a serious reflection upon their regard for
the welfare of the taxpayer."
expense of burdensome retrials, which can be a serious reflection upon their regard for the
welfare of the taxpayer.
33. The trial court, in overruling defendant's objections to improper portions of the
arguments of the district attorney and his deputy, and in refusing, from time to time, to
admonish the jurors to disregard such improper argument, committed prejudicial error.
Experience clearly shows that improper argument of the kind indulged in this case has a
tendency to prevent a defendant from having such a fair and impartial trial as is guaranteed by
the constitution of this state. It is unnecessary to decide whether such error in permitting
improper arguments of counsel, or the other errors hereinbefore mentioned, with the
exception of those relative to the exclusion of the dying declaration, would, if standing alone,
constitute reversible error. As above indicated, the exclusion of the dying declaration did
constitute reversible error, and, upon the basis of that error, together with the other errors
hereinbefore mentioned, reversal is clearly indicated.
34-36. Assignment of error No. 10 has been considered and found without merit. The
instruction No. 17 complained of is one usually given in murder cases, and refers,
illustratively, to a situation in which the unlawful act which would constitute murder in the
second degree is one in which an assault with a deadly weapon occurs, but in which there is
no actual intent to kill. Not all of the law of the case is required to be included in one
instruction. Instruction No. 17 embodies the state's theory of the case, and is upon the
hypothesis that the evidence establishes such theory. It usually devolves upon counsel for
defendant to prepare and submit instructions applying particularly to, and properly stating,
defendant's theory of the case. Counsel for defendant did not except to Instruction No. 17, nor
does it appear that he submitted an instruction explaining the meaning of unlawful act in
connection with the use of a deadly weapon.
37. Referring to assignment No. 11, it is our view that a new trial should have been
granted upon the second ground only, as such ground is stated in the notice of motion, to-wit:
That the Court has erred in the decision of questions of law arising during the course of the
trial. We could not reverse upon the third ground of the motion, namely, the failure of the
trial court to grant a new trial upon the ground that the verdict is contrary to the law and the
evidence, as it cannot reasonably be concluded that there was no substantial evidence to
support the verdict of the jury. See State v. McKay, 63 Nev. 118, on page 154, 165 P.2d 389,
on page 405, 167 P.2d 476, and the many cases therein cited, upon the point that this court
will not reverse for insufficiency of the evidence to sustain the verdict or judgment if there is
any conflict in the evidence, or any substantial evidence to support such verdict and
judgment.
It is ordered that the judgment and order appealed from be, and are hereby, reversed, and
that a new trial be, and is hereby, granted, and that the custody of defendant, Fredrick William
Teeter, be transferred from Richard Sheehy, warden of the Nevada state prison, to Glen C.
Jones, sheriff of Clark County, Nevada, to be held by the latter until and during such new
trial, and until the further appropriate order, judgment or commitment of the trial court, unless
sooner admitted to bail by a court, justice, judge or other magistrate having jurisdiction so to
do.
Badt, J., concurring:
I concur in the order of reversal for the reason that the dying declaration was improperly
excluded. As to the knowledge and belief of the declarant that he was in extremis and as to
whether he was in position to testify to the facts and circumstances of the shooting, see the
foregoing opinion of Mr. Justice Horsey. As to the objection made that the declaration of the
decedent, the victim of the shooting, that there had been an accident, that he had been
shot accidentally, was a statement of opinion and simply the conclusion of the witness, I
am satisfied that under the factual situation appearing, the declaration must be
considered a statement of fact. If the declarant's statement that it was an accident had
been the result of his reasoning from collateral facts and conditions, such as that the
defendant was of kindly disposition, that he would not do such a thing, that he was a
friend of declarant, that there was no cause or reason for the defendant to shoot him,
etc., then the statement would properly be classified as opinion or conclusion.
the victim of the shooting, that there had been an accident, that he had been shot accidentally,
was a statement of opinion and simply the conclusion of the witness, I am satisfied that under
the factual situation appearing, the declaration must be considered a statement of fact. If the
declarant's statement that it was an accident had been the result of his reasoning from
collateral facts and conditions, such as that the defendant was of kindly disposition, that he
would not do such a thing, that he was a friend of declarant, that there was no cause or reason
for the defendant to shoot him, etc., then the statement would properly be classified as
opinion or conclusion. It did not purport to be such under the circumstances and cannot be so
considered. The fine line between a statement of ultimate fact and a conclusion of law is often
hard to draw. Testimony as to ownership is technically a conclusion, yet it is readily admitted,
although some authorities hold otherwise. Many of the simplest facts recited in everyday
conversation, if subjected to fine analysis, are found to be conclusions. As to the present
question, one illustration will convey my meaning. A person standing at the head of a
stairway observes two persons descending below him. A woman is descending the stairs
followed by a man a few steps above her. The woman falls and is killed. There being no
question as to any intentional act on her part, one of two factual possibilities remains, either
she fell accidentally or the man behind pushed her. Many probative facts may enter into each
possibility. Direct testimony that the man pushed her would seem to be the testimony of a
fact, yet technically this itself is a conclusion. The same observation applies to testimony that
she fell accidentally. Language is not, under all circumstances and to all people, a perfect
vehicle to carry some particular fact. Sometimes a technical conclusion is simply a
shorthand rendering of the facts. See cases gathered in annotation to State v. Meyer, 65
N.J.L. 237, 47 A. 486, 86 Am.St.Rep. 650 et seq.
et seq. In any event, where the facts governing the admissibility of the dying declaration are in
dispute it is the law of this state (State v. Scott, 37 Nev. 412, 142 P. 1053, despite the
vigorous dissenting opinion of Mr. Chief Justice Talbot) that those facts be submitted to the
jury and not be determined preliminarily by the court. The prevailing opinion by Mr. Justice
McCarran in the case cited can be read in no other way and is decisive of the point unless we
choose to reverse it.
McKnight, District Judge (dissenting):
Defendant was convicted of murder in the second degree, and has appealed from the
judgment and from the order denying a new trial. He has assigned eleven alleged errors, on
which he relies for a reversal, as follows:
1. The court erred in denying defendant's motion for bail.
2. The court erred in denying defendant's motion for change of venue.
3. The court erred in granting the motion to add names of certain witnesses to the
information.
4. The court erred in denying defendant's challenge for cause of juror Marva Ray Johnson.
5. The court erred in allowing the State to examine witness Bernard J. Handlon in such a
manner that evidence which tended to show defendant committed the separate and distinct
crime of robbery was brought before the jury.
6. The court erred in allowing Capt. Sam Irick to testify as to certain extrajudicial
statements allegedly made by defendant over latter's objection.
7. The court erred in allowing Bernard J. Handlon to testify as to certain extrajudicial
statements of defendant, and overruling the latter's objections.
8. The court erred in refusing to allow Capt. Sam Irick to testify as to dying declaration
made by deceased.
9. The court erred in refusing to instruct the jury to disregard improper statements of the
district attorney and his deputy in their arguments.
10. The court erred in giving instruction No. 17.
11. The court erred in denying the motion for a new trial.
All of these assignments of alleged errors have been considered in their numerical order in
the prevailing opinion, and the majority of this court has held that assignments Nos. 2, 3, 6, 7,
and 10 are without merit. With this conclusion I agree. I do not agree, however, with the
disposition by the majority of this court of the other assignments of alleged error. These will
now be considered.
The first assignment, that the court erred in denying defendant's motion for bail before
conviction, cannot now be determined by this court, for two reasons: (1) because defendant's
only remedy was by habeas corpus, and (2) because any legal question involved in this
assignment is moot.
The statute providing for the review of an intermediate order or proceeding upon appeal
from the final judgment in a criminal case, sec. 11087, N.C.L.1929, upon which the majority
bases the right of this court to determine, upon appeal from the judgment, whether or not bail
before conviction has been erroneously denied, is similar to section 398 of the old Civil
Practice Act, sec. 5340, Rev.Laws 1912, sec. 8887, N.C.L.1929.
In construing the latter section, this court correctly held that an order from which a direct
appeal could be taken was not within its purview, and that upon appeal from a final judgment,
an intermediate order which was itself made the subject of a direct appeal, could not be
reviewed. Maitia v. Allied Land & Live Stock Co., 49 Nev. 451, 248 P. 893.
It is true there is no statute providing for a direct appeal from an order denying bail in
criminal cases. There are, however, statutory provisions expressly providing that all questions
regarding the want of bail in criminal cases may be disposed of in habeas corpus proceedings.
Secs. 11397-11399, N.C.L.1929.
That the writ of habeas corpus is an appropriate and proper remedy in aid of bail has
been repeatedly recognized by this court.
proper remedy in aid of bail has been repeatedly recognized by this court. Ex parte Isbell, 11
Nev. 295; Ex parte Finlen, 20 Nev. 141, 18 P. 827; Ex parte Douglas, 25 Nev. 425, 62 P. 49;
Ex parte Nagel, 41 Nev. 86, 167 P. 689; Ex parte Jagles and Varnes, 44 Nev. 370, 195 P. 808;
Ex parte Malley, 50 Nev. 248, 256 P. 512, 515, 53 A.L.R. 395.
There is no difference in principle between a statute which provides for a direct appeal
from an intermediate order and a statute which, in effect, provides that an intermediate order
may be reviewed in habeas corpus proceedings, in that each provides an exclusive remedy for
review of the specified intermediate order, and thus prevents the review of such an order on
appeal from the final judgment. See Maitia v. Allied Land & Live Stock Co., supra, 49 Nev.
451, 462, 248 P. 893; State v. Cohen, 45 Nev. 266, 201 P. 1027, 18 A.L.R. 864, and note; Ex
parte Stegman, 112 N.J.Eq. 72, 163 A. 422, 426.
In Ex parte Stegman, supra, the petitioners in habeas corpus proceedings alleged that the
lower court had denied an application to reduce bail, which, as originally fixed, was excessive
and in violation of their constitutional rights. In granting the writ admitting petitioners to bail,
under statutory provisions practically the same as in Nevada, the court of chancery said:
The remedy of a prisoner who is entitled to bail in cases in which the bail asked is
excessive or who is denied bail is by habeas corpus, and that is his only remedy, and his right
to invoke it is absolute, and the duty cast upon the court not only to grant the writ but to admit
to bail is mandatory. Italics supplied.
As to the second reason, it cannot be denied that the legal question involved in this
assignment is moot. In fact, it is so stated in the prevailing opinion, in these words:
It is most unusual to wait until a determination of the right to bail would be unavailing,
insofar as bail before conviction is concerned, and then to raise the question upon the appeal,
upon the theory that the alleged wrongful denial of bail goes to the validity of the
judgment."
alleged wrongful denial of bail goes to the validity of the judgment. See, also, State v.
Cohen, supra, 45 Nev. 266, 201 P. 1027, 18 A.L.R. 864, and note; St. Pierre v. United States,
319 U.S. 41, 63 S.Ct. 910, 911, 87 L.Ed. 1199, and note.
In St. Pierre v. United States, supra, the appellant had been sentenced to a term of
imprisonment for criminal contempt in refusing to answer a question asked him before a
grand jury. His application for bail made to the district court and to the circuit court of
appeals was refused; and he did not apply for a stay or a supersedeas. The case not having
been brought to the supreme court until after appellant's sentence had been served, that court
said:
We are of opinion that the case is moot because, after petitioner's service of his sentence
and its expiration, there was no longer a subject matter on which the judgment of this Court
could operate. A federal court is without power to decide moot questions or to give advisory
opinions which cannot affect the rights of the litigants in the case before it. (Citing cases.)
The sentence cannot be enlarged by this Court's judgment, and reversal of the judgment
below cannot operate to undo what has been done or restore to petitioner the penalty of the
term of imprisonment which he has served.
Our supreme court has repeatedly refused to give opinions on moot questions or abstract
propositions. State v. McCullough, 20 Nev. 154, 18 P. 756; Haley v. Eureka County Bank, 21
Nev. 127, 26 P. 64, 12 L.R.A. 815; Wedekind v. Bell, 26 Nev. 395, 412, 69 P. 612, 99
Am.St.Rep. 704; State v. Pray, 30 Nev. 206, 219, 220, 94 P. 218, 220; Foster v. Jones, 35
Nev. 248, 128 P. 986; Pacific Livestock Co. v. Mason Valley Mines Co., 39 Nev. 105, 111,
153 P. 431, 433; Earl v. Morrison, 39 Nev. 120, 154 P. 75; Ex parte Ming, 42 Nev. 472, 496,
181 P. 319, 6 A.L.R. 1216; Ex parte Moriarity, 44 Nev. 164, 173, 191 P. 360; Edwards v.
City of Reno, 45 Nev. 135, 143, 198 P. 1090, 1092; State v. Cohen, supra, 45 Nev. 266, 201
P.
201 P. 1027, 18 A.L.R. 864; City of Reno v. Second Judicial District Court, 58 Nev. 325, 78
P.2d 101; Morrow v. Morrow, 62 Nev. 492, 496, 156 P.2d 827.
It has even held that after a case had been argued and submitted for its decision and
judgment, such case could and should be disposed of by dismissal without opinion when it
appeared that the parties to the suit had settled it between themselves. Wedekind v. Bell,
supra, 26 Nev. 395, 412, 69 P. 612, 614, 99 Am.St.Rep. 704.
In State v. Pray, supra, in City of Reno v. Second Judicial District Court, supra, and in
Morrow v. Morrow, supra, this court quoted with approval from Mills v. Green, 159 U.S.
651, 16 S.Ct. 132, 133, 40 L.Ed. 293, the rule universally recognized:
The duty of this court, as of every other judicial tribunal, is to decide actual controversies
by a judgment which can be carried into effect, and not to give opinions upon moot questions
or abstract propositions, or to declare principles or rules of law which cannot affect the matter
in issue in the case before it.
Do the facts in this case afford any reason, cause, provocation, justification or excuse for
this court now holding that it will give opinions on moot questions or abstract propositions,
contrary to the rule announced in all of the earlier Nevada decisions where the question
arose? I think not.
The fourth assignment is, that the court erred in denying defendant's challenge for cause of
juror Marva Ray Johnson.
The juror was asked: You would require evidence before you would have an open mind?
In other words, you would have to hear some evidence before you would feel that you were
fair and impartial? and she replied: I would feel that I was more fair after hearing the
evidence than I do now. Defendant's attorney thereupon interposed a challenge in the
following words: I believe, if Your Honor please, that is one of the grounds.
The challenge was not specific, in that it specified no ground upon which it was based, as
expressly required by sec. 10948, N.C.L.1929. It was, therefore, insufficient and properly
overruled. State v. Squaires, 2 Nev. 226, 230; State v. Raymond, 11 Nev. 98, 106; State v.
Vaughan, 22 Nev. 285, 296, 39 P. 733; State v. Simas, 25 Nev. 432, 449, 62 P. 242; State v.
Salgado, 38 Nev. 64, 70, 145 P. 919, 150 P. 764; State v. Milosovich, 42 Nev. 263, 269, 175
P. 139; State v. Lewis, 50 Nev. 212, 224, 255 P. 1002.
Moreover, had a specific challenge in this case been made, it should have been overruled,
because the examination, taken as a whole, disclosed that the juror had not formed or
expressed an unqualified opinion or belief in regard to the guilt or innocence of the defendant.
Sec. 10946, N.C.L.1929; State v. Raymond, supra, 11 Nev. 98, 107; State v. Williams, 28
Nev. 395, 407, 82 P. 353; State v. Milosovich, supra, 42 Nev. 263, 269, 175 P. 139; State v.
Lewis, supra, 50 Nev. 212, 228, 255 P. 1002.
The fifth assignment of error is, in effect, that the court erred in admitting testimony which
tended to show that defendant had committed the separate and distinct crime of robbery.
Bernard J. Handlon, a detective sergeant of the Las Vegas police department, testified that
he aided in the search of the home of defendant on the night of November 24, 1946, the date
of the homicide, and that, as a result of said search, they found a large amount of stolen
jewelry from the armed robbery of the Jerry Jeram Store.
Upon motion of defendant's counsel that the answer be stricken, the court said:
It may be stricken. The jury is admonished not to give any heed as to the word stolen,' or
as to what he found in that relation. * * * It may be stricken, and the jury is admonished not to
pay any attention as to any statements made by the witness as to finding jewelry in the
premises. The Court had no way of knowing what the answer would be until it was made.
knowing what the answer would be until it was made. The jury is admonished not to pay any
attention to that testimony.
The court thereafter gave an instruction reading as follows:
The Jury is instructed that all evidence which has been ruled upon by the Court as being
inadmissible should be disregarded by you.
The defendant took the stand in his own behalf, and, in response to questions propounded
by his attorney, testified that deceased had brought jewelry in that didn't belong there, that
deceased told him that Joe Lark had got the jewelry from the Jerry Jerram holdup; that he
stated to deceased: Is that a nice thing to do, to bring that stuff in my place, in my house
* * * I should turn you over to the police for bringing that stuff in my place.
In State v. Skaug, 63 Nev. 59, 64, 161 P.2d 708, 710, 163 P.2d 130, this court said:
It is well settled that evidence that accused has committed another crime independent of
and unconnected with the one for which he is on trial, is inadmissible. The rule has well
established exceptions and both have received the attention of this court in a number of cases.
State v. McMahon, 17 Nev. 365, 30 P. 1000; State v. Vaughan, 22 Nev. 285, 39 P. 733; State
v. Roberts, 28 Nev. 350, 82 P. 100; State v. McFarlin, 41 Nev. 486, 172 P. 371; State v.
Monahan, 50 Nev. 27, 249 P. 566; State v. Hall, 54 Nev. 213, 13 P.2d 624; State v. Behiter,
55 Nev. 236, 29 P.2d 1000. See, also, State v. Salgado, 38 Nev. 64, 76, 145 P. 919, 150 P.
764; State v. Cerfoglio, 46 Nev. 332, 338, 205 P. 791, 213 P. 102, 27 A.L.R. 848; State v.
White, 52 Nev. 235, 254, 285 P. 503; State v. Lindsay, 63 Nev. 40, 41, 161 P.2d 351.
It is not necessary to determine whether the rule just mentioned, or any of the
well-established exceptions thereto, apply to this case. If, as held in the prevailing opinion,
the admission of the testimony constituted error, which, in my opinion, is extremely
doubtful, such error was cured and rendered harmless:
error, which, in my opinion, is extremely doubtful, such error was cured and rendered
harmless:
1. By the action of the court in promptly striking the testimony from the record and
admonishing the jury to disregard it. State v. Urie, 35 Nev. 268, 274, 129 P. 305; 24 C.J.S.,
Criminal Law, sec. 1915e (1).
2. By the action of the court in later instructing the jury to disregard it. State v. Urie, supra,
35 Nev. 268, 274, 129 P. 305; 24 C.J.S., Criminal Law, sec. 1915e (2).
3. By the establishment of equivalent facts by the testimony of defendant when examined
as witness in his own behalf. State v. O'Keefe, 23 Nev. 127, 133, 43 P. 918, 62 Am.St.Rep.
768; State v. Johnny, 29 Nev. 203, 219, 87 P. 3; State v. Williams, 31 Nev. 360, 367, 102 P.
974; State v. Urie, supra, 35 Nev. 268, 274, 129 P. 305; State v. Bachman, 41 Nev. 197, 207,
168 P. 733; State v. Behiter, 55 Nev. 236, 253, 29 P.2d 1000; Skidmore v. State, 59 Nev. 320,
331, 92 P.2d 979.
The eighth assignment is, that the court erred in refusing to allow Capt. Sam Irick to testify
as to dying declaration made by deceased.
Had objections to the questions not been sustained, the witness would have testified that,
in a conversation with the deceased in the hospital, approximately two hours after deceased
was shot:
I asked Mr. Linabury what had happened and he said there had been an accidentthat he
was shot accidentally.
That this statement of deceased was not admissible as a dying declaration, even though it
be assumed that it was made by the declarant when he was in extremis, and when he was
fully conscious of that condition, is, in my opinion, too plain to admit of argument.
However, as the majority of this court has held that its exclusion from evidence was unjust
to the defendant, and constituted reversible error, it is necessary to carefully consider the
matter.
The admissibility of dying declarations is, in the first instance, a question of law to be
determined by the court on the preliminary proof or predicate for their admission.
instance, a question of law to be determined by the court on the preliminary proof or predicate
for their admission. State v. Hennessy, 29 Nev. 320, 334, 90 P. 221, 13 Ann.Cas. 1122; State
v. Scott, 37 Nev. 412, 425, 426, 427, 429, 430, 142 P. 1053; Wigmore on Evidence, 2d Ed.,
vol. 3, page 185, sec. 1451; Nichols, Applied Evidence, vol. 2, page 1843, sec. 100, note 12;
Chamberlayne, Trial Evidence, 2d Ed., page 742, sec. 791; Underhill's Criminal Evidence,
4th Ed., page 393, sec. 212, note 55; 4 Encyc. of Evidence, page 947; 26 Am.Jur., Homicide,
sec. 414; 40 C.J.S., Homicide, sec. 295d, p. 1268, note 8 Ann.Cas. 541.
But, after the declarations have been admitted in evidence, the weight and credibility to be
given them are matters exclusively for the jury. State v. Scott, supra, 37 Nev. 412, 426, 427,
142 P. 1053; State v. Watts, 52 Nev. 453, 472, 290 P. 732; Wigmore on Evidence, 2d Ed.,
vol. 3, page 186, sec. 1451 (b); Nichols, Applied Evidence, vol. 2, page 1844, sec. 101;
Chamberlayne, Trial Evidence, 2d Ed., page 748, sec. 798; 26 Am.Jur., Homicide, secs. 414
and 425; 40 C.J.S., Homicide, sec. 295d, pp. 1269, 1270, Note 8 Ann.Cas. 541.
Dying declarations are only competent as to facts which the witness might testify to if
living. People v. Alexander, 161 Mich. 645, 126 N.W. 837, 21 Ann.Cas. 150, 151;
Hollywood v. State, 19 Wyo. 493, 120 P. 471, 122 P. 588, Ann.Cas. 1913E, 218, 223; State
v. Wilks, 278 Mo. 481, 213 S.W. 118, 120; Marshall v. State, 219 Ala. 83, 121 So. 72, 63
A.L.R. 560, 564; 40 C.J.S., Homicide, sec. 303a, page 1281, notes 26-28; sec. 298, page
1274, note 48; Underhill's Criminal Evidence, 4th ed., sec. 217, page 404, note 98; Jones on
Evidence, 4th ed., vol. 1, page 615, sec. 334, note 16; Chamberlayne, Trial Evidence, 2d Ed.,
page 746, sec. 797; 26 Am.Jur., Homicide, sec. 393, page 430; Wharton Criminal Evidence,
11th ed., vol. 1, page 900, sec. 548.
The same rules which govern the admissibility of evidence, if the deceased were placed on
the witness stand to testify, will be applied to his dying declaration, when offered for
admission; and the character of evidence which would be excluded, if presented by a
witness on the stand, must be excluded if presented as his dying declaration.
when offered for admission; and the character of evidence which would be excluded, if
presented by a witness on the stand, must be excluded if presented as his dying declaration.
Coots v. Commonwealth, 295 Ky. 637, 175 S.W.2d 139, 140.
If Linabury had been sworn as a witness, it would not have been competent for him to
have testified that there had been an accidentthat he was shot accidentally, because these
statements were mere declarations of his opinion. State v. Ross, 32 La.Ann. 854, 856; Stone
v. Denny, 4 Metc., Mass., 151, 164; Abbott on Facts, 5th ed., sec. 44; 5 Encyc. of Evidence,
page 659, note 86, page 670, note 13, page 686, note 61.
See, also, State v. Wright, 112 Iowa 436, 84 N.W. 541, 544, where the court held that the
statement by the deceased that he did not believe defendant intended to shoot him is an
opinion merely, and would not be received from a living witness.
A mere expression of opinion by a dying man is not admissible as a dying declaration.
Jones v. State, 52 Ark. 345, 347, 12 S.W. 704; Berry v. State, 63 Ark. 382, 38 S.W. 1038;
State v. Wilks, supra, 278 Mo. 481, 213 S.W. 118, 120; Roberts v. Commonwealth, 301 Ky.
294, 191 S.W.2d 242, 243; Marshall v. State, 219 Ala. 83, 121 So. 72, 63 A.L.R. 560, 566;
Note Ann.Cas.1913E, 228; Note 63 A.L.R. 567; Wharton's Criminal Evidence, 11th ed., vol.
1, page 863, sec. 535; 4 Encyc. of Evidence, page 993; 40 C.J.S., Homicide, sec. 299a, page
1277, note 70.
It is immaterial whether the fact that the declaration is a mere opinion appears from the
statement itself, or from other undisputed evidence, showing that it was impossible for the
declarant to have known the fact stated. Jones v. State, supra, 52 Ark. 345, 12 S.W. 704;
Berry v. State, supra, 63 Ark. 382, 38 S.W. 1038; State v. Wilks, supra, 278 Mo. 481, 213
S.W. 118, 120; Note Ann.Cas. 1913E, 228; 4 Encyc. of Evidence, page 993; 40 C.J.S.,
Homicide, sec. 299a, pages 1277, 1278, note 74.
But what constitutes an opinion and what constitutes a statement of fact is a matter upon
which the courts "are decidedly not in harmony."
are decidedly not in harmony. State v. Strawther, 342 Mo. 618, 116 S.W.2d 133, 120
A.L.R. 583, 589; Note 25 A.L.R. 1376; Wharton's Criminal Evidence, 11th ed., vol. 1, page
866, sec. 536; 26 Am.Jur., Homicide, sec. 395, page 431, note 6.
For the purpose of determining that question, it is proper to take into consideration not
only the statement itself, but the surrounding circumstances. State v. Strawther, supra, 342
Mo. 618, 116 S.W.2d 133, 120 A.L.R. 583, 589; 26 Am.Jur., Homicide, sec. 395, pages 431,
432, note 11.
The true and proper test as to admissibility is whether the statement is the direct result of
observation through the declarant's senses, or comes from a source of reasoning from
collateral facts. If the former, it is admissible; if the latter it is inadmissible. House v. State,
94 Miss. 107, 48 So. 3, 21 L.R.A.,N.S., 840, 843; Hollywood v. State, supra, 19 Wyo. 493,
120 P. 471, 475, 122 P. 588, Ann.Cas.1913E, 218, 222; Wharton's Criminal Evidence, 11th
ed., vol. 1, sec. 536, page 868, note 10; 40 C.J.S., Homicide, sec. 299a, page 1278, note 76.
It certainly cannot be said that the deceased's statement that there had been an
accidentthat he was shot accidentally, was the direct result of observation through the
declarant's senses, for three reasons:
1. According to testimony introduced by the prosecution, deceased was shot in the back
which made it physically impossible for him to have observed the defendant, or the gun, or
any other thing to his rear.
That defendant shot Linabury in the back is thus established, provided such testimony is
true, by his statement to Detective Bruce Thomas Woofter on the evening of November 24,
1946, the date of the shooting, in the Las Vegas detective bureau office, that he shot him in
the back; by his statement to Detective Sergeant Bernard J. Handlon, about 3:45 o'clock p.m.,
November 29, 1946, in defendant's residence, that it sure looked tough because he had sure
shot Mr. Linabury in the back; by his statement to Captain of Detectives O. L.
Slark, about 4 o'clock p.m., November 29, 1946, in the city police department, that It looks
tough because I shot him in the back; and by the fact that the hole in the back was clean cut,
while the hole in the chest was slightly larger, with the skin slightly stretched or torn, and the
opinion by Dr. J. C. Cherry that the exit of the bullet was in front.
That the deceased was shot in the back is also indicated by the fact, testified to by
Detective Sergeant Bernard J. Handlon and not denied by defendant, that on November 29,
1946, in the room of the dwelling where deceased was shot, defendant voluntarily stated:
Mr. Linabury was walking toward the bedroom, preparing to go through the door from
the kitchen to the bedroom, with his back to him, when he turned his head slightly with a
sneer on his face, and at that time the gun went off.
That deceased was shot in the back is further indicated by the course of the bullet.
The bullet passed entirely through the body. The wound in the front was on the right side
of the chest in the middle of the sternum or breastbone, at about the level of the third rib,
while the wound in the back was at about the same level, just below the right shoulder blade
and between it and the spine.
2. If, instead of having been shot in the back, as indicated by the foregoing testimony, thus
making it physically impossible for the deceased to have seen the defendant or the gun, the
deceased had been looking directly at defendant, he could not have observed anything upon
which to base his expressed opinion.
Edward G. Cupit, who qualified as an expert on firearms, testified that the lethal weapon
was a Colt 32.20 single action revolver; that it could not be fired by pulling the trigger unless
it was cocked; that to cock the revolver, it was necessary to push back the hammer; that it
could also be fired by holding the trigger back with one hand and pushing back the hammer
with the other hand, commonly called fanning a gun; that about eight o'clock on the date
of the shooting, he asked the defendant how he had cut the middle finger on his left hand,
which was then bleeding, and the defendant "answered that he was fanning the gun with
his left hand, that it was an old side-wheeler."
about eight o'clock on the date of the shooting, he asked the defendant how he had cut the
middle finger on his left hand, which was then bleeding, and the defendant answered that he
was fanning the gun with his left hand, that it was an old side-wheeler.
Luther Horner, identification officer of the Las Vegas police department, testified that he
was present on the date of the homicide and heard Edward G. Cupit ask defendant how he
had injured the middle finger of his left hand, and heard the defendant state that the gun was
an old side-wheeler, and that he was fanning it with his left hand.
The defendant testified, in effect, that after an unfriendly discussion with deceased about
the bringing of stolen jewelry by deceased into the home of defendant, where deceased also
resided, he asked deceased to leave his house, get his clothes, and get out; that deceased just
sat and leered at him; that he went into the bedroom and secured his gun; that upon returning,
with the gun in his right hand, he told deceased to get his clothes together and get out of his
place; that deceased kind of hesitated for a minute, then rose, and started toward the bedroom;
that defendant, with the gun in his hand, followed deceased, watching him; that deceased
started into the bedroom, and suddenly the gun went off; that deceased was opening the
bedroom door, and had turned, started to turn around towards defendant, and had gotten far
enough around that defendant could see his whole face, before the gun went off; that he
followed the deceased until the latter reached the door of the bedroom and was about to enter;
that the gun went off while he was walking along, watching the deceased; that the second
finger of his left hand was cut rather deep by the firing of the gun; that he did not make any
statement to Edward G. Cupit about fanning the gun.
It is established by this testimony that, at and immediately before deceased was shot,
defendant was walking towards deceased, watching him, holding a loaded gun pointed at
deceased in his right hand and pushing the hammer thereof back with his left.
gun pointed at deceased in his right hand and pushing the hammer thereof back with his left.
Nothing else could have been possibly seen by deceased, even though he had been looking
directly at defendant. Such testimony affords no basis whatever for an opinion that the
shooting was accidental.
3. The defendant was engaged in an unlawful act.
It is clearly established in this case that at the time deceased was shot, defendant was in the
commission of an act inhibited and declared to be unlawful by statutethat of aiming a
loaded revolver at a human being. Sec 10292, N.C.L.1929.
It is also provided by statute that excusable homicide by misadventure, is when a person is
doing a lawful act, without any intention of killing, yet unfortunately kills another. Sec.
10082, N.C.L.1929.
The words misadventure, as used in this statute, means accident. 26 Am.Jur.,
Homicide, sec.106; Ballantine, law dictionary, page 821.
The words homicide by misadventure, as used in this statute, means the accidental
killing of another, when the slayer is doing a lawful act, without any intention of killing, yet
unfortunately does so. State v. Blackburn, 7 Pennewill, Del. 479, 75 A. 536, 539;
Commonwealth v. Gill, 120 Pa. Super. 22, 182 A. 103, 105; Commonwealth v. Flax, 331 Pa.
145, 200 A. 632, 637; State v. Goodwin, 189 La. 443, 179 So. 591, 602; Note 3 L.R.A.,N.S.,
1153.
As the defendant was engaged in an unlawful act, but for which the deceased would not
have been shot, the homicide cannot be attributed to an accident. Hollywood v. State, supra,
19 Wyo. 493, 120 P. 471, 122 P. 588, Ann.Cas. 1913E, 218, 226; Jabich v. People, 58 Colo.
175, 143 P. 1092, 1094; Note 3 L.R.A.,N.S., 1156.
If it can possibly be assumed, under any conceivable theory, that Linabury actually
believed that there had been an accidentthat he was shot accidentally,he should have
stated the facts, or at least some of them, in support of his belief. Instead, not a single fact
upon which the opinion was predicated was disclosed.
which the opinion was predicated was disclosed. He failed to show any circumstances, acts or
conduct from which such a belief could be inferred. Linabury may have been mistaken as to
the facts. His conclusions upon which he based his opinion may have been erroneous. The
reasons for his belief may have been unsound. What to his mind justified his opinion may not
have been any justification at all. The facts connected with the homicide, which prompted
deceased to state his opinion, would have been admissible, but not mere matters of opinion or
belief based upon them. Kearney v. State, 101 Ga. 803, 29 S.E. 127, 65 Am.St.Rep. 344, 345;
Ogletree v. State, 115 Ga. 835, 42 S.E. 255; Gray v. State, 12 Ga.App. 634, 77 S.E. 916;
Young v. State, 70 Ark. 156, 66 S.W. 658; Mann v. Commonwealth, 215 Ky. 731, 286 S.W.
1044; Skelley v. State, 64 Okl.Cr. 112, 77 P.2d 1162, 1178; Id., 65 Okl.Cr. 54, 82 P.2d 843; 4
Encyc. of Evidence, page 994, notes 76, 78; 26 Am.Jur., Homicide, sec. 395, page 432, note
1; Wharton's Criminal Evidence, 11th ed., vol. 1, sec. 538, note 17.
The case of Commonwealth v. Matthews, 89 Ky. 287, 12 S.W. 333, 11 Ky.Law Rep. 505,
so strongly relied upon in the majority opinion, is not in point so far as concerns the question
whether the declaration of the deceased in this case was one of fact or opinion. There, the
statement of deceased, in substance, was that he and the accused were playing, and that it was
an accident. In other words, the statement that the shooting was an accident was accompanied
by the statement of fact that the parties were engaged in play. Without the inclusion of such
statement of fact, the statement that the shooting was an accident would not have been
admitted. This, in effect, was so held in the later Kentucky case of Mann v. Commonwealth,
supra, 215 Ky. 731, 286 S.W. 1044, 1045, where a judgment of conviction was reversed
because the trial court admitted in evidence the following dying declaration claimed to have
been made by deceased: "Alton Mann shot me; it was not an accident; it was only a
waylay."
deceased: Alton Mann shot me; it was not an accident; it was only a waylay. In doing so,
the appellate court said:
While a few of the courts take a contrary view, the great weight of authority, and the rule
prevailing in this state, is to the effect that mere conclusions or expressions of opinion on the
part of the declarant are not admissible as dying declarations. * * * Here the declarant did not
undertake to describe the situation of the parties, or to state any facts leading up to, or
connected with, the homicide, and we are constrained to hold that the statement that it was
not an accident but it was only a waylay was a mere conclusion and should not have been
admitted. It is true that we held in Commonwealth v. Matthews, 89 Ky. 287, 12 S.W. 333, 11
Ky.Law Rep. 505, that a dying statement by the deceased that he and the accused had been
engaged in play, and that the shooting was an accident was admissible, but there the statement
that the shooting was an accident was accompanied by the statement of fact that the parties
were engaged in play, and the rule excluding opinions or conclusions is not so strictly
enforced where the declaration is favorable to the defendant. * * * On another trial the court
will admit only the statement, Alton Mann shot me.' See, also, Stewart v. Commonwealth,
235 Ky. 670, 32 S.W.2d 29, 33.
Moreover, the minority view adopted in Louisiana and Kentucky (State v. Ashworth, 50
La.Ann. 94, 23 So. 270, 273, and Haney v. Commonwealth, 5 Ky.Law Rep. 203, and other
Kentucky cases), and cited in the majority opinion herein, that the rule excluding opinions or
conclusions is not so strictly enforced where the declaration is favorable to the accused, is
not sound, and should not be adopted as the rule in Nevada. Sims v. State, 98 Tex.Cr. R. 101,
263 S.W. 289, 290; Wharton's Criminal Evidence, 11th ed., vol. 1, sec. 538.
As said in Sims v. State, supra: "We so seriously doubt the soundness of the
announcement as to be unwilling to ingraft it upon our system of procedure.
We so seriously doubt the soundness of the announcement as to be unwilling to ingraft it
upon our system of procedure. One accused of crime in this state is now given the
presumption of innocence, the benefit of reasonable doubt, the right of appeal, and complaint
of all rulings thought to be adverse; and in the absence of some stronger showing of authority
or reason for adopting the rule suggested, we must respectfully decline to give it our
approval.
It is clear that the court did not err in refusing to admit the offered testimony.
The ninth assignment, that the court erred in refusing to instruct the jury to disregard
improper statements of the district attorney, and his deputy, in their arguments, does not, in
my opinion, require much discussion.
Whether remarks of the prosecuting attorney in argument amount to reversible error,
depends somewhat upon the whole record. State v. Clancy, 38 Nev. 181, 184, 147 P. 449.
A very careful reading of the entire record in this case fails to disclose that either the
district attorney, or his deputy, claimed that the defendant was guilty of any offense other than
that on which he was being tried, or that either of them made any statement not warranted by
the testimony. It is true that the defendant was referred to as a hoodlum, but the
characterization finds support in the testimony.
A hoodlum is a young rowdy. State v. Palmer, 206 Minn. 185, 288 N.W. 160, 164.
A rowdy is one who engages in rows, or noisy quarrels, or rough behavior; a ruffianly
fellow; a rough. Webster's New International Dictionary, 2d ed.
It is unnecessary to refer to the testimony of defendant, other than that hereinbefore set
forth and that stated in the prevailing opinion, to show that defendant was admittedly one
who engaged in rough behavior.
The cases of State v. Rodriguez, 31 Nev. 342, 102 P. 863; State v. Petty, 32 Nev. 384, 108
P. 934, Ann.Cas. 1912D, 223, and State v. Cyty, 50 Nev. 256, 256 P. 793, 52 A.L.R. 1015,
relied upon in the majority opinion, are not in point.
52 A.L.R. 1015, relied upon in the majority opinion, are not in point.
In the Rodriguez case, the district attorney charged in his argument that the defendant was
a macque, which was unwarranted by any evidence introduced; in the Petty case, the
district attorney stated that the defendant knew that an endeavor to establish an alibi would be
futile, and also knew that a legitimate defense of insanity would not avail him anything, when
there was nothing in the evidence tending to establish the existence of such facts, and in the
Cyty case, the district attorney, without any testimony warranting such conclusions, used the
following language in his closing argument: As he told me today in talking to me, he gloried
in the fact that he would use a gun. He indicated that he would use a gun at the slightest
provocation.
In argument a district attorney is entitled to state to the jury any fact or facts which the
evidence tends to establish, or any legitimate inference which may be drawn from such
evidence. State v. Robison, 54 Nev. 56, 71, 6 P.2d 433. See, also, State v. King, 35 Nev. 153,
157, 126 P. 880; State v. Lewis, 59 Nev. 262, 274, 91 P.2d 820.
The eleventh assignment, that the court erred in denying the motion for a new trial, is
disposed of, so far as the law is concerned, by what has heretofore been said, and so far as the
facts are concerned, by the statement in the prevailing opinion herein, that it cannot
reasonably be concluded that there was no substantial evidence to support the verdict of the
jury.
As the record fails to disclose any prejudicial error, the judgment and the order denying a
new trial should be affirmed.
Eather, C. J., being ill and unable to participate in the consideration of this case, the
Governor designated Hon. Wm. McKnight, Judge of the Second Judicial District Court, to sit
in his place.
____________
65 Nev. 668, 668 (1948) State v. Fitch
THE STATE OF NEVADA, Respondent, v. RICHARD
COOPER FITCH, Appellant
No. 3504
December 20, 1948. 200 P.2d 991.
1. Criminal Law.
Under constitutional provision limiting supreme court to questions of law, supreme court will not disturb
verdict although there may be conflict in evidence if there is substantial evidence to support verdict.
Const. art. 6, sec. 4.
2. Criminal Law.
A defendant asserting on appeal that evidence was insufficient to justify conviction must show that there
is not sufficient, or any substantial, evidence to sustain verdict or that one element of crime has not been
proved.
3. Criminal Law.
The jury can disbelieve defendant and accept evidence offered by state.
4. Homicide.
Evidence was sufficient to show that killing by defendant of his wife's paramour was premeditated and
deliberate and with malice aforethought and did not occur in self-defense and struggle, warranting
conviction for first-degree murder.
5. Criminal Law.
The jury is bound only by rules announced in instructions of court in determining to whom to give
credibility.
6. Homicide.
In determining whether there was credible evidence that defendant killed deceased, jury could consider
not only what happened at time of shooting but what occurred before and after and statements made by
defendant before and after the shooting.
7. Witnesses.
The range of cross-examination should be limited to subject matter inquired into on direct examination.
8. Witnesses.
The extent of cross-examination attacking personal trustworthiness of witness must be controlled by trial
judge using his sound discretion, although the cross-examiner will be permitted to test witness' motives,
interests and animus and value of evidence for accuracy.
9. Witnesses.
The cross-examiner can show any facts which show bias, interest or similar feelings which may color
witness' testimony.
10. Witnesses.
In prosecution against defendant for murdering his wife's paramour, cross-examination of defendant and
wife disclosing that they went through a form of marriage in Mexico while wife was married to the
first husband and had three children before wife procured divorce from first husband,
after which defendant and wife were married, was not error.
65 Nev. 668, 669 (1948) State v. Fitch
wife was married to the first husband and had three children before wife procured divorce from first
husband, after which defendant and wife were married, was not error.
11. Criminal Law.
In ruling on admissibility and effect of evidence and validity of objections thereto, trial court can state
purpose for which evidence is offered or admitted, and his comments addressed to counsel and not to jury
assigning reason for ruling and not purporting to invade jury's right to pass on facts and not being unfair or
prejudicial are not error.
12. Criminal Law.
Trial court's comment, in ruling on objection to letter offered during cross examination, that letter went to
witness' credibility was merely comment to counsel assigning reason for ruling and was not error as
instruction to jury.
13. Criminal Law.
Deputy district attorney's argument that deceased was a veteran and that defendant accused of murdering
deceased was not a veteran was disapproved but was not prejudicial error where facts commented on were
a part of the record and were admitted without restrictions and objection was taken to comment but no
instruction was requested.
14. Criminal Law.
Instruction that determination and design to kill necessary to constitute first-degree murder may be
distinctly formed in mind at any moment before or at time shot was fired was not error as ignoring
possibility that defendant, who had expressed intention to kill deceased, may have abandoned such
intention at time shot was fired, in view of other instructions.
15. Criminal Law.
Instructions must be read as a whole and each instruction must be considered in connection with all other
instructions.
16. Homicide.
An intent to kill must be found to exist and the killing must have been perpetrated in execution of such
design or intent in order to constitute murder in the first degree.
17. Criminal Law.
Every crime or public offense must be a union or joint operation of fact and intention.
18. Criminal Law.
Where from the entire charge it clearly appears that jury could not be mislead by language objected to,
judgment will not be disturbed.
19. Criminal Law.
Instruction that, killing being proved, burden of proving circumstances of mitigation or that justify or
excuse homicide will devolve on accused unless proof of prosecution sufficiently manifests that crime
committed amounts only to murder in second degree or to manslaughter, or that accused was justified or
excused in committing homicide, was not error as permitting jury to return verdict of
guilty without ever having reached conclusion that killing was committed by accused,
where possibility that jury could have had in mind some other killing or some other
defendant was remote.
65 Nev. 668, 670 (1948) State v. Fitch
or excused in committing homicide, was not error as permitting jury to return verdict of guilty without ever
having reached conclusion that killing was committed by accused, where possibility that jury could have
had in mind some other killing or some other defendant was remote. N.C.L. 1929, sec. 10081.
20. Criminal Law.
An instruction relating to weight to be given to evidence of defendant was error in view of statute
forbidding any instruction relating exclusively to defendant's testimony, but was not prejudicial, where
evidence was sufficient to sustain verdict and any injury resulting to defendant was remote inasmuch as
defense did not depend entirely on defendant's own testimony. N.C.L.1929, secs. 10959, 11266; Const.
art. 6, sec. 12.
Appeal from Eighth Judicial District Court, Clark County; A. S. Henderson, Judge
Presiding.
Richard Cooper Fitch was convicted for first-degree murder. From the verdict of the jury,
the judgment and order pronounced in conformity therewith and order denying motion of
defendant for new trial and order denying motion for defendant for arrest of judgment, the
defendant appeals. Judgment, verdict and orders affirmed.
E. P. Carville and F. Morgan Anglim, both of Reno, for Appellant.
General and Robert E. Jones, District Attorney, of Las Vegas, for Respondent.
OPINION
By the Court, Wines, District Judge:
After the trial of the above-entitled action in the Eighth judicial district court, in and for
the State of Nevada, county of Clark, the jury returned a verdict and found the defendant
guilty of murder in the first degree, and fixed the penalty at life imprisonment.
65 Nev. 668, 671 (1948) State v. Fitch
and fixed the penalty at life imprisonment. Thereafter within the time, limited by law, a
motion for a new trial was made and denied, and the defendant has appealed to this court
from the verdict of the jury, the judgment and order of the district court pronounced in
conformity therewith and order of the district court denying the motion of the defendant for a
new trial, also the order denying the motion of the defendant for arrest of judgment. The
record does not show that a motion for arrest of judgment was made by appellant.
The defendant has set out six assignments of error, and as each will be dealt with
separately, it will not be necessary to list them at this point.
As the first assignment is that the verdict of the jury is against the weight of evidence,
disposition of this point necessitates setting out the facts in some detail.
A summary, in narrative form, of the state's case in chief, the defense and the rebuttal,
offers a convenient form for stating the contention intelligibly, and we proceed to this, noting
here that whenever possible we shall avoid repetition of facts not disputed.
On November 18, 1946, taking the two children who were then residing at home, Simone
Fitch left Sherman Oaks, California, where she had been living with her husband, the
appellant in this case. She was accompanied by John Weer and driven by him in his car, a
black Ford V-8 sedan. She left a note for the appellant which read as follows: Dick, I have
left you. I could not any longer stand your brutality as well. No one knew where I will go or
for how long. I have sold few things to keep me going for awhile anyway. Best Luck.
Simone.
Simone Fitch and John Weer drove first to Mojave, California, and from there they went
to Las Vegas, Nevada, where they stayed overnight, registering at a hotel as man and wife.
The next day they removed to Carver Park, Nevada, near Las Vegas, rented an apartment on
West Lincoln Street, being apartment 6-C in a federal housing project. The children were
entered in school under the name of Weer, and John Weer and Simone Fitch continued to
live there as man and wife until November 30, 1946.
65 Nev. 668, 672 (1948) State v. Fitch
school under the name of Weer, and John Weer and Simone Fitch continued to live there as
man and wife until November 30, 1946.
On the evening of November 18, 1946, the appellant returned home from his employment
at a moving picture studio and discovered the note left by Simone Fitch. Very shortly after the
departure of Simone Fitch the appellant learned that she had not left alone but in the company
of Jack Weer, although he did not discover where Simone Fitch and Jack Weer had gone
until about November 29, 1946. In the interval he made numerous inquiries concerning Jack
Weer and as to his whereabouts and after learning where John Weer had been living in
California, broke into his cabin and there obtained sufficient information to enable him to
discover the whereabouts of Simone Fitch and Jack Weer. In addition to making inquiry
concerning Jack Weer, the appellant in numerous conversations had with Leonard Reed, Mr.
Jean Meunier and Mrs. Jean Meunier, discussed Jack Weer and threatened on many occasions
to kill him. This threat was often made in the most vile terms. After the appellant acquired a
knowledge of whom Simone Fitch had left with appellant stated that he would hunt him
down as a fugitive and kill him. To each of the persons above named appellant made the
statement that he could kill Jack Weer and escape punishment under the Unwritten Law,
and was admonished by each of these persons not to attempt this. Leonard Reed gave as his
reason the fact that Simone Fitch had been as aggressive in establishing the relationship with
Weer as Weer himself. He was told by Mr. Jean Meunier that he did not think the Unwritten
Law applied, and by Mrs. Jean Meunier that it would lead to disgrace for himself and his
family, that the law would not apply; further that the appellant himself had been guilty of
intruding on the marriage of Simone Fitch and her previous husband, J. K. Freeman, and that
perhaps Simone Fitch was justified in leaving him because of his acts of cruelty to her and
the children.
65 Nev. 668, 673 (1948) State v. Fitch
him because of his acts of cruelty to her and the children. Mrs. Jean Meunier, on the witness
stand, related a number of instances when she had seen acts of cruelty by appellant toward his
wife and children.
As above stated the appellant discovered on or about November 29, 1946, the whereabouts
of Simone Fitch and John Weer and on that night asked for and received, two letters which he
had left with Mrs. Jean Meunier to be forwarded to his wife, and on that night stated that they
(Mr. and Mrs. Meunier) would see his name and Simone Fitch's name in the headlines.
On November 30, 1946, appellant left Sherman Oaks, California, by automobile and drove
to Las Vegas, Nevada, and among the various items carried in the car was a .45 calibre Colt
revolver. On the way into Las Vegas appellant picked up two hitchhikers and somewhere on
the road the gun was fired from the moving automobile for the purpose of discovering if it
would work. After they had reached Las Vegas the two hitchhikers left appellant and he then
picked up another hitchhiker who directed him to Carver Park, which is near Las Vegas.
After reaching Carver Park appellant drove out to the desert and changed his clothes. He
then returned and began searching for the apartment in which John Weer and Simone Fitch
were living. At about the hour of 6 or 6:30 o'clock p.m., the appellant reached the apartment
in which they were living. He broke the glass in the front door with the gun, stepped into the
room with the gun in one hand, and a raincoat over his arm. Thereafter a struggle occurred
and during the struggle three shots were discharged from the gun which appellant carried. The
gun which the appellant was carrying would only fire three times without reloading. The
appellant, his wife and John Weer were the only persons present in the room at the time of the
shooting, and each of these persons suffered wounds in the struggle.
65 Nev. 668, 674 (1948) State v. Fitch
An autopsy of the deceased (John Weer) showed a bullet wound about 4 below his left
nipple on the left side of the chest, and the bullet had ranged downward making its exit at
above the right ilium. The wound on the left side of the chest bore evidence of powder burn.
There was a second bullet wound approximately 1/2 below the lobe of the right ear, and the
bullet traveled in an upward direction making its exit at about 2 in front of the lobe of the
left ear. Distinct marks of powder burn appeared at the entrance of the wound on the right
side of the head. This bullet severed a jugular vein causing severe hemorrhage which resulted
in death within a few minutes. The left jaw had been fractured by this bullet and the third
molar was missing from the left jaw.
Examination of Simone Fitch showed that a bullet had entered over the right tibia,
approximately 5 below the knee, passed through the tibia ranging downward and exiting
about 4 below. An X-ray examination showed a multiple fracture of the right tibia. On the
left forearm of Simone Fitch there was a laceration approximately 3/4 in length. This wound
had the appearance of a tear, and directly underneath there was a small puncture wound from
which a tooth was later extracted. When this tooth was extracted it was found to be a third
molar. There was no evidence of powder burn around either of these wounds.
When appellant was examined it was determined that he had a laceration on the inside of
the upper right leg 9 above the knee and on the right kneecap. Both of these wounds gave the
appearance of powder or bullet burns. There was a puncture wound between the second and
third metatarsal of the right foot and thereafter a bullet was removed from this wound.
The room in which this affray occurred was disarranged. A small table radio was found on
the floor, some broken dishes and food were also found on the floor and a chair was broken.
There was a large pool of blood toward the center of the room and a heater having an enamel
finish was chipped.
65 Nev. 668, 675 (1948) State v. Fitch
having an enamel finish was chipped. One bullet was found in the corner of the room on the
floor, one was found in appellant's foot and the other had punctured the wall and was found in
the closet of the next apartment, which immediately adjoined apartment 6-C.
At about this time of the evening Mr. Russell, who lived in the next apartment in which
the bullet was found, heard the muffled sound of shots, and shortly afterwards heard a woman
screaming and heard a man's voice say ForSake, shut up I am going to kill you. At about
the same time the deceased, John Weer, came to their front door and fell on the doorstep
where he died. Mr. Russell immediately ran for help and as he stepped over Weer's body he
glanced in the direction of apartment 6-C and saw a man in a dark suit wrestling with a
woman who was holleringLet me go, let me go.
When the officers arrived Weer was dead, Simone Fitch had been placed on the couch in
the room in which the shooting had occurred and a tourniquet had been applied to her leg by
the appellant. Fitch was standing in the room and was immediately arrested. When asked if he
was the man that had done the shooting he stated I am. As the officers were searching him
and began to put handcuffs on appellant he stated: You need not worry. I won't cause you
any trouble. I have already done what I come up here to do.
Later the appellant was questioned by Coroner Dohrenwend and stated that his name was
Richard Cooper Fitch, that he resided at 15035 Sutton Street, Sherman Oaks, California. He
was asked what he was doing here; i.e., Las Vegas, and the coroner pointed to the deceased
lying in the doorway of apartment 6-B and asked appellant: Do you realize you have taken a
man's life? The appellant replied: The hell with him. I accomplished my purpose. I think I
killedshot him twice. He then went on to tell about his wife's having left his home with
Jack Weer and told the officers that he had three children, two who were living with Simone
Fitch at Carver Park and the third was in New York with the grandparents.
65 Nev. 668, 676 (1948) State v. Fitch
living with Simone Fitch at Carver Park and the third was in New York with the
grandparents.
The clothing worn by the appellant, Simone Fitch and the deceased were examined closely
for tears or indications of close combat, and none of the garments appeared to have been torn,
nor any of the buttons wrenched off as a result of a struggle. The tattoo marks caused by
powder burn on the deceased were examined closely and tests made by an experienced officer
who gave his opinion as to the approximate distance from which the gun which had made the
tattoo marks had been fired.
It was his opinion that the gun was some distance from the deceased when the bullet
causing the chest wound was discharged, and that the gun was held at a closer range when the
bullet was discharged which caused the wound in deceased's head. It was his opinion that
because of the nature of Simone Fitch's wound, she was facing the appellant with her right leg
directly opposite the right leg of the appellant when the bullet was fired which caused the
wound to her leg, and that when the bullet was fired which caused the wound in the head of
the deceased, the deceased was either in a kneeling, lying or crouching position and that
Simone Fitch's arm was around deceased's neck.
The appellant made a statement some eight hours after the shooting which conflicts with
the statements made to the officers and coroner.
The story of the defense conflicts with that of the state on three main issues of facts. In
chronological order they arethe attitude of the appellant toward the deceased prior to
coming to Las Vegas, the manner in which the shooting occurred, and the statements made by
appellant after the shooting had occurred.
The testimony of the appellant was to the effect that upon finding that Simone Fitch had
left him, he became extremely worried as to her whereabouts and welfare, and the welfare of
his children. That when he learned she had been accompanied by John Weer, his worry was
increased, and he became frantic about her welfare, the situation in which she had placed
herself and the children, and that he very much wanted his family back home.
65 Nev. 668, 677 (1948) State v. Fitch
increased, and he became frantic about her welfare, the situation in which she had placed
herself and the children, and that he very much wanted his family back home.
Moved by these emotions, he threatened to kill John Weer on one occasion. He explained
that the relations between him and his wife and family were not as depicted by the witness
Mrs. Meunier, adding that Mrs. Meunier and his wife were very close friends and that she
resented his efforts to get his wife away from the community in which Mrs. Meunier lived.
He stated that Mrs. Jean Meunier had distorted the facts in disclosing the various acts of
cruelty allegedly inflicted by him on his family, and he characterized these incidents as the
usual family quarrels.
He testified that when he left Sherman Oaks, California, it was his intent to see Simone
Fitch and John Weer and to persuade his family to return to him; he stated the gun was
brought along by chance, and explained that the gun was discharged on the way to Las Vegas,
not for the purpose of determining its efficiency but because the hitch-hikers had become
interested in it. When he reached Carver Park he went to the desert in order to dress more
properly for an interview with his wife; that he was able to locate the place in which John
Weer and his wife were living by the car, and that when he first saw Simone Fitch through the
window she was alone in the apartment, that immediately thereafter John Weer appeared and
put his arm around Mrs. Fitch and placed his hand on her bare abdomen. That he immediately
went to the door, knocked on the door and someone asked: Who is there? That he was
afraid that Simone Fitch and John Weer would leave by a rear door so, using the gun which
he was carrying in his hand as a hammer, he grasped it by the barrel, he broke the glass in the
door and stepped into the room; that he was surprised because he had pictured John Weer as
being a man of an altogether different appearance. There was a moment when nothing was
said and then John Weer and Simone Fitch rushed at him while he was still holding the gun
in the manner he had used it for breaking the glass in the door; that a struggle for
possession of the gun occurred, during which struggle the gun was discharged three
times; that he did not know how he or any of the other persons were wounded; that he
was afraid that John Weer would turn the gun on him; that when the firing ceased Jack
Weer, who had been on the floor, got up and said that he was getting out of there; that
Simone Fitch, who was lying on the floor crying, was picked up by him, placed on the
couch, and he immediately applied a tourniquet and he sat down, began talking to her,
and took out the letter which he had written her while in California and read it to her.
65 Nev. 668, 678 (1948) State v. Fitch
John Weer and Simone Fitch rushed at him while he was still holding the gun in the manner
he had used it for breaking the glass in the door; that a struggle for possession of the gun
occurred, during which struggle the gun was discharged three times; that he did not know
how he or any of the other persons were wounded; that he was afraid that John Weer would
turn the gun on him; that when the firing ceased Jack Weer, who had been on the floor, got up
and said that he was getting out of there; that Simone Fitch, who was lying on the floor
crying, was picked up by him, placed on the couch, and he immediately applied a tourniquet
and he sat down, began talking to her, and took out the letter which he had written her while
in California and read it to her.
In this letter he said that he had perhaps been an unworthy husband and parent and begged
that Simone Fitch forgive him and return to him; he promised that he would treat her better.
The letter had the effect of reconciling the appellant and Simone Fitch, so he prepared a drink
for her and they were discussing their relations when the officers arrived. He denied making
the statements to the effect that he had accomplished his purpose in coming to Las Vegas; and
stated that he explained to them that the shooting had occurred because John Weer had taken
his wife, and that a fight resulted over the gun and that he did not know how Weer had been
killed.
He admitted that when he had first met Simone Fitch she was married to J. K. Freeman
and that they lived together as man and wife some eight years prior to the divorce secured by
Mr. Freeman; that all of the children were born prior to the marriage of appellant and Simone
Fitch in Los Angeles, California, in 1945. That they had gone through a form of ceremony in
Mexico in 1935 and thereafter considered themselves man and wife, and were prevented from
legalizing their relationship because of J. K. Freeman's refusal to divorce Simone Fitch.
65 Nev. 668, 679 (1948) State v. Fitch
The appellant's wife was called to testify on behalf of the appellant and corroborated his
story as to what had occurred at apartment 6-C in Carver Park, and their relations since they
had met. A statement admittedly made by Simone Fitch some seven or eight hours after the
shooting contradicted her testimony on the witness stand.
The pertinent portions of the statement read as follows: Around 7:00 Dick knocked on the
door and nobody said anything and all of a sudden he broke through the window. Had a
feeling it was him, he had a gun in his hand, he said he came to kill you to Jack. He pointed
the gun at Jack, I tried to push the gun down and it seemed that Jack went around the heater
and tried to get away. Dick followed him, I heard a shot, Jack fell on the floor. I tried to push
Dick with his gun but he got near Jack's neck and shot, he was bleeding terrible after he was
shot the first time. I went down on the floor with him and I put my leg over him and then
Dick shot him in the neck. Somehow Jack managed to get up and went next door to call for
help. Dick picked me up and put me on the couch the police arrived.
The testimony of Simone Fitch was also greatly impeached by a letter written to Mrs. Jean
Meunier after the shooting and while the witness was in the hospital.
The appellant called two witnesses who testified that the reputation of appellant for peace
and quiet was good; and the state called two witnesses who testified that the appellant's
reputation for peace and quiet in the community of Sherman Oaks, California, was bad.
The appellant asserts that the evidence was insufficient to justify the conviction, but in his
argument he insists that we accept his version of the facts as to what occurred before and after
the shooting as being the more reasonable, and if we were to do this, and also accept his
versions of the shooting the verdict could not be justified.
1. This issue cannot be determined, however, by a choice of the more reasonable of the
two theories.
65 Nev. 668, 680 (1948) State v. Fitch
choice of the more reasonable of the two theories. By the constitution, art. VI, sec. 4, this
court is limited to questions of law and accordingly it is well settled that this court will not
disturb a verdict although there may be a conflict such as occurs here, if there is substantial
evidence to support the same. State v. Robison, 54 Nev. 56, 6 P.2d 433; State v. Beyers, 58
Nev. 125, 71 P.2d 1044; State v. Boyle, 49 Nev. 386, 248 P. 48; State v. Millain, 3 Nev. 409;
State v. Mills, 12 Nev. 403.
2, 3. To carry the burden on such an assignment the appellant must meet his proposition and
show that there is not sufficient, or any substantial, evidence to sustain the verdict, or that one
element of the crime has not been proved. In considering this we have kept in mind that the
jury has a right to disbelieve the defendant and accept the evidence offered by the state. State
v. Soares, 53 Nev. 235, 296 P. 1081.
4. We are satisfied that there was sufficient evidence that the killing was premeditated and
deliberate and with malice aforethought. The deceased had gone away with appellant's wife
and it became appellant's declared design to hunt him out and kill him. In the execution of his
avowed purpose, he discovered the whereabouts of deceased and his wife and arming himself
with a weapon, which he tested, he sought out the deceased. He then broke into the house
where the deceased was living in order to secure the advantage of surprise.
On the next proposition, namely, was the appellant able to carry his design into effect, the
appellant contends first that there is not proof that he killed deceased and secondly, that if he
did it was by chance and in a struggle for possession of the gun which the deceased might
have turned against him.
5, 6. As a part of this argument the appellant points out that only two persons survived the
struggle and their testimony is proof of what occurred there, that in the nature of things this
testimony has not been contradicted and cannot be, and should, therefore, have been
accepted by the jury.
65 Nev. 668, 681 (1948) State v. Fitch
been accepted by the jury. This ignores the principle that the jury is bound only by the rules
announced in the instructions of the court in determining to whom to give credibility and
overlooks the fact that the testimony of both appellant and Simone Fitch was quite
conclusively impeached. It assumes there was no credible evidence that the appellant killed
the deceased. In determining this the jury had the right to consider not only what happened at
the time of the shooting, but what occurred before and after, and statements made by the
defendant both before and after the crime.
While the appellant insists that there was a terrific struggle between the three persons, the
condition of their clothing does not bear him out, nor do the position and nature of the
wounds. That the appellant's chief concern was in defending himself is not borne out by the
testimony of the witness Russell. Nor has the appellant, in line with his theory of self-defense
and struggle, explained why it was necessary or even likely that the deceased should be shot
twice when either of the wounds would have disabled him from further combat. The jury had
a right to disbelieve the appellant's testimony that it was not his intention to kill the deceased
but to persuade his wife to return to him; that he carried the gun only for protection; that the
shooting was the result of the struggle precipitated by the deceased and Simone Fitch's
misunderstanding of his attitude and that that is the way he explained it to the officers when
they arrived.
Assignment of error No. 2 is stated as follows: The trial court committed prejudicial and
reversible error (a) by the admission of certain evidence; and (b) by certain comments made
in the presence of the jury.
The evidence of which the appellant complains became a part of the record in this manner:
The appellant on direct examination was asked when he had married Simone Fitch and
answered that they married in 1935. He was then asked if there were any children the issue
of the marriage, and he replied that there were three, naming the children.
65 Nev. 668, 682 (1948) State v. Fitch
children the issue of the marriage, and he replied that there were three, naming the children.
On cross-examination questions were asked which elicited the additional information on the
subject that appellant and Simone Fitch went through a form of marriage in Mexico in 1935,
while Simone Fitch was in fact married to J. K. Freeman; that three children were born to
appellant and Simone Fitch and that the parties remarried after the birth of all three children
in 1945, and after a decree of divorce had been entered against Simone Fitch in 1943.
On direct examination of Simone Fitch she was asked if she was the wife of the appellant
and answered in the affirmative. The state cross-examined this witness concerning her
relations with the appellant and brought out the same facts elicited on cross-examination of
appellant.
To the cross-examination of both witnesses on this point the appellant took exception on
the grounds that it was improper cross-examination; that the evidence was immaterial as not
tending to prove any of the issues of the case and now argues it was prejudicial to appellant
since it put him in a bad light with the jury and prevented the jury from considering the issues
impartially.
7. This court has heretofore enunciated the rule of the subject and held that the range of
cross-examination should be limited to the subject matter inquired into on direct examination.
Buckley v. Buckley, 12 Nev. 423; Nash v. McNamara, 30 Nev. 114, 93 P. 405, 16
L.R.A.,N.S., 168, 133 Am.St.Rep. 694; State v. Boyle, 49 Nev. 386, 248 P. 48.
In the last case this court observed that the theory justifying cross-examination is that a
witness on his direct examination discloses but a part of the facts necessary to a proper
evaluation of the testimony. The facts suppressed are of two kinds: (a) The remaining and
unqualified circumstances of the subject of the testimony as known by the witness; and (b)
the facts which diminish and impeach the personal trustworthiness of the witness."
65 Nev. 668, 683 (1948) State v. Fitch
which diminish and impeach the personal trustworthiness of the witness.
8. It is apparent, and this court has so stated, that the extent of cross-examination
attacking the personal trustworthiness of the witness must be controlled by the trial judge
using his sound discretion. The cross-examiner must, however, be permitted to test the
witness' motives, interests and animus and the value of his evidence for accuracy. State v.
Clarke, 48 Nev. 134, 228 P. 582.
9, 10. Cross-examination for this purpose must inevitably develop facts which have
nothing to do with the issues of the case and tending to impeach the character or testimony of
the witness, or it fails. Courts have begun to question the wisdom of permitting this sort of
cross-examination along lines obviously designed to bring out facts derogatory to the witness
but of no value in determining the credibility of his testimony. But if we are to settle the point
in favor of appellant we would be ignoring the rule that, within the limits of the exercise of a
sound discretion, this must be controlled by the court, as well as the rule which permits the
cross-examiner to show any facts which show bias, interest or similar feelings which may
color his testimony. We find no error.
In addition to this point the appellant, in assignment of error No. 2 takes exception to
comment of the court made in the presence of the jury.
The facts on which this assignment is based are that while the witness Simone Fitch was
being cross-examined she admitted authorship of a letter which was offered by the state, and
over objection of appellant, admitted in evidence. Later in her testimony the same facts were
disclosed concerning a second letter which the state then offered in evidence. An objection
was made by appellant on the grounds of immateriality, irrelevancy, incompetency and that it
was improper cross-examination. The objection was sustained with remark by the court that
there was only one sentence which might be pertinent."
65 Nev. 668, 684 (1948) State v. Fitch
might be pertinent. The state then asked the court to consider authority to the effect that bias,
relationship or interest of the witness might be shown to affect credibility. The court agreed
with counsel that such was the rule and stated that there was nothing in the proffered letter
which went to the credibility of the witness. The district attorney then gave his opinion that
the letter showed the true feelings of the witness as contrasted with her explanation on the
witness stand. The court then said: The first letter did, but this letter shows conclusions of
what she is going to do in the future, objection sustained to this letter.
The appellant insists that this was improper comment amounting to prejudicial error, since
it invaded the province of the jury by advising the jury that the first letter would impeach the
witness' testimony.
In the case of State v. Lewis, 50 Nev. 212, 233, 255 P. 1002, 1009, the court had before it
an assignment of this nature. The facts in that case were that during the course of the
examination of a witness an objection was taken by the defendants that the evidence offered
was not a part of the state's case in chief, and not in rebuttal of anything offered in defense by
the defendants. In overruling the objection the court stated: I think it is.
This court ruled that the assignment was not well taken and pointed out it was no more
than a comment made to counsel assigning a reason for the ruling and that it was not intended
as comment to, or an instruction for, the jury.
11. The general rule is that remarks made by the trial court, while ruling on the
admissibility and effect of evidence and validity of the objections thereto, are not erroneous,
provided they are not unfair and prejudicial to the accused. Nor is it wrong for the court to
state the purpose for which evidence is offered or admitted. People v. Eley, 121 Cal.App. 53,
8 P.2d 885; Johnson v. State, 33 Ariz. 354, 264 P. 1083; State v. Inich, 55 Mont.
65 Nev. 668, 685 (1948) State v. Fitch
Inich, 55 Mont. 1, 173 P. 230; Cole v. State, 41 Ariz. 1, 15 P.2d 238.
12. The fact that the comment is not addressed to the jury, nor intended for the jury,
greatly reduces its asserted prejudicial effect. That is not to say that a trial judge might, under
the guise of comment to counsel, comment on the evidence, as extreme caution must be
exercised by him. But if it amounts to no more than a comment to counsel assigning a reason
for a ruling and does not purport to invade the jury's right to pass on the facts, and is not
unfair or prejudicial, there is no error. No objection was taken by counsel for the appellant,
nor was the court asked to instruct the jury to disregard the remarks made by the court. We,
therefore, see nothing in this assignment which would distinguish it from the case discussed
above, nor any reason for now holding differently.
Assignment of error No. 3 is that the court committed prejudicial error in allowing the
state to make an improper appeal to the passions of the jury in the summation of the case.
More specifically, the deputy district attorney made reference to the fact that deceased was a
veteran of the last war; had served his country and by so doing had given to the appellant
freedom to work and provide for his family and * * * to roam the streets without serving a
day in the United States Army. Counsel for appellant interposed an objection at that point,
counsel argued briefly concerning the record and the court ordered that the objection be noted
and directed counsel for the state to continue his argument. An instruction to disregard the
argument was not requested by appellant and no further reference was made to these facts by
counsel. It appears that appellant's counsel on cross-examination of Leonard Reed brought
out that the deceased was a veteran, after Leonard Reed had testified that he did not know
deceased prior to his discharge from the service, on direct examination. The state on
cross-examination of appellant asked him if he had ever been in the service and received a
negative answer.
65 Nev. 668, 686 (1948) State v. Fitch
appellant asked him if he had ever been in the service and received a negative answer. While,
as above stated, no specific instruction was requested and refused at that time, the court did
instruct that the jury could not act upon the expressions and statements of counsel nor act
upon prejudice, bias or sympathy.
In a case involving similar circumstances, that is to say, the facts commented on were a
part of the record, admitted without restrictions and objections taken to the comment but no
instruction requested, this court held it was not prejudicial error. State v. Boyle, 49 Nev. 386,
402, 248 P. 48.
13. Citing the case of State v. Hunter, 48 Nev. 358, 232 P. 778, 235 P. 645, the court also
ruled that under such circumstances it is necessary that a request be made at the time to the
court to instruct the jury to disregard such remarks and unless such request is made this court
will not hear the complaint. It should perhaps be added that though the court in that case
stated that counsel has a right to discuss facts which are a part of the record and to draw any
fair inference from them, we do not think that rule applies in this case. We do not find
prejudicial error but we should be neglecting our duties if we did not express our disapproval
of such conduct. We characterize such as conduct unbecoming an officer of the court. It is an
obligation of counsel and more specifically counsel for the state, to refrain from taking
advantage of such a circumstance, unless his argument is of aid to the jury in deciding the
issues. If our criticism seems harsh, we need only to remind counsel of the consequences of
such unjustifiable argument under slightly different circumstances.
Assignment of error No. 4 is that the court committed reversible error in giving
instructions Nos. 9, 11 and 12 to the jury.
Instruction No. 9
The Court instructs the jury that, while the law requires that the killing, in order to
constitute murder in the first degree, shall be wilful, premeditated and deliberate, still it
does not require that the wilful intent, premeditation or deliberation shall exist for any
prescribed length of time before the crime was committed; it is sufficient that there was a
determination and a design to kill, distinctly formed in the mind at any moment before or
at the time the shot was fired.
65 Nev. 668, 687 (1948) State v. Fitch
in the first degree, shall be wilful, premeditated and deliberate, still it does not require that the
wilful intent, premeditation or deliberation shall exist for any prescribed length of time before
the crime was committed; it is sufficient that there was a determination and a design to kill,
distinctly formed in the mind at any moment before or at the time the shot was fired. And in
this case, if the jury believes from the evidence, beyond a reasonable doubt, that the defendant
shot and killed the deceased, as charged, and that at the time, or before the shot was fired, the
defendant had formed in his mind, a wilful premeditated and deliberate design or purpose to
take the life of the deceased, and that the shot was fired in furtherance of that design or
purpose, and without any justifiable cause or legal excuse therefor, as explained in these
instructions, then the jury should find the defendant guilty of murder in the first degree.
The language to which appellant takes exception is that portion of the instruction
underlined above.
The appellant insists * * * that the use of the disjunctive or' destroyed the validity of that
essential element of the crime of murder in the first degree, that the homicide must be
committed in furtherance of a design to kill. He adds that the prejudicial effect is intensified
by the use of the words * * * it is sufficient. As a practical matter it is asserted that the
thought conveyed to the jury is that if they find that an intent to kill existed, at any time
before the actual killing, in the mind of appellant, a verdict of first degree murder would be
justified thereby ignoring the possibility that the intent to kill may have once existed but
actually did not at the time the fatal shot was fired. This, it is argued, is extremely prejudicial
in view of the fact that appellant had admitted an expression of an intent to kill the deceased.
14, 15. We do not think that the facts or authorities support the appellant's argument. It is
first of all required that the instructions be read as a whole. State v. Pritchard, 15 Nev. 74;
State v. Cushing, 61 Nev. 132, 120 P.2d 20S; State v. Loveless, 62 Nev. 312
65 Nev. 668, 688 (1948) State v. Fitch
v. Pritchard, 15 Nev. 74; State v. Cushing, 61 Nev. 132, 120 P.2d 208; State v. Loveless, 62
Nev. 312, 150 P.2d 1015.
Secondly, each instruction must be considered in connection with all other instructions.
State v. Loveless, supra.
In observing the first rule, it is immediately apparent that the implication which appellant
reads into the instruction is removed by the following language in the instruction. If the jury
believes from the evidence, beyond a reasonable doubt that the defendant shot and killed the
deceased, as charged, and that at the time or before the shot was fired the defendant had
formed in his mind a wilful, premeditated and deliberate design or purpose to take the life of
the deceased, and that the shot was fired in furtherance of that design or purpose * * *.
16. By this language the jury was informed that the intent to kill must be found to exist
and that the killing was perpetrated in execution of such design or intent in order to constitute
murder in the first degree. This court has heretofore discussed and approved the instruction.
State v. Acosta, 49 Nev. 184, 190, 242 P. 316.
Instruction No. 11 reads as follows: It is not essential that the wilful intent, premeditation
or deliberation, shall exist in the mind of the slayer for any considerable length of time before
the actual perpetration of the crime. It is sufficient if there was a fixed design or
determination to maliciously kill, distinctly framed in the mind of such slayer before the
striking of the fatal blow or the inflicting of any other cause of death.
It is again pointed out in connection with this instruction that it ignores the requirement
that the act which is fatal to the deceased must be executed in furtherance of a fixed design or
determination to maliciously kill the deceased. The appellant has remarked that this
instruction is a repetition of the first part of instruction 9 but has not argued on that
proposition.
17. The instruction does omit the element that the killing was perpetrated in execution of
a fixed design, or determination, to maliciously kill distinctly framed in the mind of the
slayer.
65 Nev. 668, 689 (1948) State v. Fitch
killing was perpetrated in execution of a fixed design, or determination, to maliciously kill
distinctly framed in the mind of the slayer. The jury was instructed again and again, however,
that the crime of murder in the first degree consists not only of the unlawful intent to kill, but
the actual execution of the unlawful intent by an act which produces death. We have already
pointed out that this element was properly framed in Instruction 9, and in Instruction 10 the
jury was instructed that any kind of wilful, deliberate and premeditated killing shall be
deemed murder of the first degree. The requirement that the killing must be done in the
execution of the fixed and unlawful design to kill is reiterated in instruction No. 15. Again in
instruction No. 16 we find this language * * * if a person has actually with malice
aforethought formed the unlawful purpose to kill and has premeditated and deliberated upon
it before he performs the act and then performs it in furtherance of said felonious design he is
guilty of murder of the first degree. Language which fully stated the element appears in
instruction No. 20 and in instruction No. 27. The elementary rule, that every crime or public
offense must be a union or joint operation of act and intention is stated. We have already
observed that all of the instructions should be read and understood in connection with each of
the others, and in fact the jury was so instructed by the court.
18. We summarize our holding on this point as followswhere, from the entire charge it
clearly appears that the jury could not be misled by the language objected to, the judgment
will not be disturbed. State v. Marks, 15 Nev. 33; State v. Donovan, 10 Nev. 36; State v.
Raymond, 11 Nev. 98.
Appellant takes exception to given instruction No. 12 on the ground that it so misled the jury
as to the law that prejudicial error resulted. The instruction given is in the exact language of
section 10081, N.C.L.1929: The killing being proved, the burden of proving circumstances
of mitigation, or that justify or excuse the homicide, will devolve upon the accused, unless
the proof on the part of the prosecution sufficiently manifests that the crime committed
amounts only to murder in the second degree or to manslaughter, or that the accused was
justified or excused in committing the homicide."
65 Nev. 668, 690 (1948) State v. Fitch
homicide, will devolve upon the accused, unless the proof on the part of the prosecution
sufficiently manifests that the crime committed amounts only to murder in the second degree
or to manslaughter, or that the accused was justified or excused in committing the homicide.
This instruction the appellant contends does not meet the requirements that an instruction
must not be misleading, or confuse a jury; that it is misleading because the jury is told that the
prosecution having proved the killing of the deceased, and the identity of the deceased, and
the fact that the deceased's death was due to gunshot wounds, the burden of proving
mitigation or justification falls on the accused. As the burden of proving mitigation or
justification falls on the defendant only after the prosecution has proved that the killing was
done by the accused, it is argued that it is entirely possible that the jury could have returned a
verdict in this case without ever having reached the conclusion that the killing was committed
by the accused.
It is obvious that the statutory manner of expressing the principle to the jury could under a
different set of facts be misleading.
19. On the other hand, we can see no consequence of the error which would compel
reversal, considering all of the circumstances of this case. In a case involving more than one
defendant or the death of more than one person, or in a case in which the identity of the
alleged slayer or persons involved is not certain, this instruction could conceivably so mislead
the jury as to result in prejudicial error. The possibility that the jury in this case may have had
in mind some other killing or some other defendant is so remote that we cannot permit it to
control our holding on the point. See sec. 11266 N.C.L.1929; People v. McClure, 148 Cal.
418, 83 P. 437.
The following instruction was given by the court: Instruction No. 37. You are instructed
that the defendant is a competent witness in his own behalf, and that in considering the
weight and effect to be given to the evidence of the defendant, while you may consider his
manner, and the probability of his statements taken in connection with all the evidence in
the case, and if convincing and carrying with it a belief in its truth, act upon it.
65 Nev. 668, 691 (1948) State v. Fitch
the evidence of the defendant, while you may consider his manner, and the probability of his
statements taken in connection with all the evidence in the case, and if convincing and
carrying with it a belief in its truth, act upon it. If not you have the right to reject it.
The instruction as offered by the appellant included this additional sentence: And, in
judging of the defendant who has testified before you, you are in duty bound to presume that
he has spoken the truth and, unless that presumption has been legally repelled, his evidence is
entitled to full credit. The court struck this sentence and gave the instruction. The state urges
that we give some consideration to the question whether the appellant can now be heard to
complain of the instruction since it was given at his request. The appellant argues in reply that
the instruction, as given, was not the instruction requested. In support of his assignment of
error No. 5 he contends that as the statute, section 10959, N.C.L.1929, forbidding any
instruction relating exclusively to the testimony of the defendant or particularly directing the
attention of the jury to defendant's testimony, statutes 1915, 191, was later in time than
section 11266, N.C.L.1929, providing that no judgment shall be set aside or any new trial
granted for misdirection of the jury unless, after an examination of the entire case there
appears to be a miscarriage of justice or the defendant has been actually prejudiced in respect
to a substantial right, section 10959 should control and that the prohibition is unqualified.
We are aware that while this instruction in varying forms was accorded judicial approval
in Nevada, State v. Johnny, 29 Nev. 203, 87 P. 3, and in California, that the legislature
enacted the present statute in 1915, and long before that the California supreme court
reversed its previous holding and held it error to give such an instruction. That court gave as
its reason the constitutional provision forbidding comment by the trial judge on the facts and
the fact that the only logical purpose the instruction could have, would be the
disparagement of the defendant's testimony.
65 Nev. 668, 692 (1948) State v. Fitch
the instruction could have, would be the disparagement of the defendant's testimony. People
v. Van Ewan, 111 Cal. 144, 43 P. 520; People v. Boren, 139 Cal. 210, 72 P. 899. We should
be inclined to consider the question from this point of view (Article VI, section 12, Nevada
constitution), together with the appellant's argument, except that the point appellant now
urges has been before this court before and decided adversely to the appellant. State v.
Williams, 47 Nev. 279, 220 P. 555, 556.
This court, on that occasion, had this to say concerning the proposition.
It is clear that the court erred in giving the instruction. * * * But, notwithstanding the
error committed, it does not necessarily follow that the judgment should be reversed, for it is
expressly provided in Section 7469 of the Revised Laws * * *. It would indeed be remarkable
for the Legislature to have intended, in the face of the general statute providing that no
judgment should be reversed for the misdirection of the jury which resulted in no miscarriage
of justice or actual prejudice to the defendant, that the giving of an erroneous instruction in
the particular in question should necessarily result in a reversal of the judgment, regardless of
whether the defendant was prejudiced or there was a miscarriage of justice. * * *
Section 7160, of Rev.Laws, is a general statute meant to apply to every case in which the
trial court misdirects a jury; hence the inquiry in the instant case is: Does it appear that the
error complained of resulted in a miscarriage of justice, or actually prejudice the defendant in
respect to a substantial right?
20. There is no escaping the conclusion that the giving of such an instruction is error and
now our inquiry must be directed to whether the misdirection of the jury, after an examination
of the entire case, has resulted in a miscarriage of justice, or has actually prejudiced the
appellant in respect to a substantial right. We have heretofore extensively reviewed the
evidence in the case and have reached the conclusion that there was sufficient evidence to
sustain the verdict.
65 Nev. 668, 693 (1948) State v. Fitch
and have reached the conclusion that there was sufficient evidence to sustain the verdict. We
give as a more compelling reason for holding against the appellant, that the injury which may
have resulted to appellant appears remote in view of the fact that his defense did not depend
entirely upon his own testimony. We are unable to assess prejudice, except on the basis that
this instruction may have caused the jury to disbelieve the appellant. We cannot say that the
jury disbelieved the appellant because of this instruction as we cannot conceive that his
defense was tested by his testimony alone, without having in mind that the witness Simone
Fitch corroborated his testimony on many crucial points.
As the sixth assignment of error is that the trial court erred in not granting a new trial and
as no other assignment than those above discussed have been specified here in support of this
assignment we find it unnecessary to discuss the sixth assignment.
Accordingly, the judgment, the verdict and the orders appealed from should be affirmed.
Horsey, J., having disqualified himself, the Governor designated Hon. Taylor H. Wines,
Judge of the Fourth Judicial District, to sit in his place.
____________
65 Nev. 694, 694 (1948) Southward v. Foy
JOAN J. SOUTHWARD, Appellant, v. JOHN BERNARD FOY, Executor of the Last Will of
George Morland Southward, Deceased, Respondent.
No. 3539
December 21, 1948. 201 P.2d 302.
1. Evidence.
In action for value of a corporate bond loaned by plaintiff to defendant's testator to be used by testator as
security for a loan, plaintiff's production of receipt for bond executed by testator constituted prima facie
evidence of plaintiff's ownership of bond and of failure of testator to return bond or pay the value.
2. Limitation of Actions.
Where plaintiff loaned a corporate bond to defendant's testator to be used as security by testator for a
loan, limitations would not begin to run against plaintiff's cause of action for proceeds of bond received by
defendant when bond was redeemed by corporation, until a demand and refusal was made by plaintiff, if
made within a reasonable time, regardless of whether loan was a bailment, or if gist of action was
conversion, or if plaintiff's cause of action was based upon written contract of parties. N.C.L.1929, secs.
8524, 8527.
Plaintiff as lender of a corporate bond to defendant's testator to be used by testator as security for a loan,
could not by plaintiff's own action in withholding a demand, create a situation whereunder plaintiff would
never be barred by limitations from maintaining action for bond or proceeds received by testator when
corporation redeemed bond. N.C.L. 1929, secs. 8524, 8527.
The statute of limitations does not run against a resulting trust in favor or the trustee because the trustee's
possession is deemed in law the possession of the cestui que trust.
The statute of limitations does not run against a trust until it has been openly disavowed by the trustee
insisting on an adverse right and interest, unequivocally made known to the cestui que trust.
Where plaintiff married defendant's testator after loaning testator a corporate bond to be used by testator
as security for a loan, cause of action in favor of plaintiff for proceeds of redeemed bond accrued, so as to
start the running of statute of limitations against plaintiff, when testator failed to return proceeds to plaintiff
when corporation redeemed bond.
Where plaintiff married defendant's testator after loaning testator a corporate bond to be used by testator
as security for a loan, plaintiff had duty to make a demand within a reasonable time for proceeds of bond
after testator failed to pay to plaintiff proceeds received when corporation redeemed bond, although cause
of action did not arise until a demand and refusal, and a demand made after termination of plaintiff's
subsequent divorce action and between four to six years after redemption was not within a reasonable time.
Appeal from Second Judicial District Court, Washoe County; Merwyn H. Brown, Judge
Presiding.
Action by Joan J. Southward against John Bernard Foy, executor of the last will of George
Morland Southward, deceased, for value of a corporate bond loaned by plaintiff to deceased
to be used by deceased as security for a loan. From an adverse judgment, plaintiff appeals.
Affirmed.
H. R. Cooke, of Reno, for Appellant.
Thomas F. Ryan, of Reno, for Respondent.
OPINION
By the Court, Badt, J:
On June 3, 1926 Joan J. Warren loaned to George M. Southward, among other securities, a
$1,000 United States Steel Corporation 5% bond to be used as security for a loan. Over
twenty years later, on January 3, 1947, she filed suit against Southward's executor for the
value of the bond. In the meantime a number of incidents intervened. About a month after the
loan Joan Warren and George M. Southward intermarried. The United States Steel
Corporation called the bond for redemption on November 1, 1929 and the bond was
surrendered for redemption (by whom it does not appear) at some time between November
1, 1929 and February 5, 1931, and was redeemed by the payment to an undisclosed
person of the sum of $1,100.
at some time between November 1, 1929 and February 5, 1931, and was redeemed by the
payment to an undisclosed person of the sum of $1,100. On May 8, 1935, some nine years
after the marriage of Joan Warren and George Southward, she sued him for divorce on the
ground of his willful desertion of her, and on the following day Southward filed in said
divorce action a waiver and appearance stipulating that the court might render such
judgment as might be just and equitable in the premises, and on May 14, 1935 an absolute
decree of divorce was filed dissolving the bonds of matrimony between the parties
whereunder each of them was forever released from the obligations thereof. On May 24,
1946 Southward died, and in July, John Bernard Foy, respondent herein, was appointed
executor of his will. In due course appellant filed her claim for the value of the bond against
the executor, which claim was rejected, and the filing of the complaint followed.
The evidence adduced was brief. Upon identification of Southward's signature plaintiff
was permitted to introduce, over defendant's objection, the original receipt for the bond,
which read as follows:
Reno, Nevada, June 31926
Received from Joan J. Warren the following bonds
One U. S. Steel Corporation No. 113792 5%1000.00
One Chicago Ry Co. bond No. 643 5%1000.00
One Chicago Ry Co. bond No. 644 5%1000.00
One Wabash Railroad Co. bond No. 11970 5%1000.00
Above bonds are property of Joan J. Warren and are loaned to me to be used as security
for a loan.
Geo M. Southward
Plaintiff's complaint admitted that Southward had, prior to his death, returned the two
Chicago Ry. company bonds, and plaintiff voluntarily dismissed as to the Wabash Railroad
company's bond, which had become worthless, so that the action involved only the United
States Steel Corporation bond. Plaintiff also introduced the deposition of an officer of the
United States Steel Corporation showing the redemption of the bond as above recited, and
rested. Counsel for plaintiff at this time remarked to the court: "I might say in this
connection that the plaintiff at this time is a very sick woman, and I couldn't have her
here, even if she could testify; and in view of the Dead Man Rule, I don't think there is
anything she could say that could be admitted, so I didn't arrange to have her here.
time remarked to the court: I might say in this connection that the plaintiff at this time is a
very sick woman, and I couldn't have her here, even if she could testify; and in view of the
Dead Man Rule, I don't think there is anything she could say that could be admitted, so I
didn't arrange to have her here. I make that explanation as to her absence. Other facts above
recited were admitted by the pleadings.
The trial court ordered the matter submitted on briefs and thereafter filed a written opinion
and decision rejecting plaintiff's claim that the transaction was a bailment that created a
continuing trust (whereunder it was asserted that a repudiation thereof, brought to the
knowledge of the trustor, was essential to the commencement of the running of the statute of
limitations) and held that the failure of Southward either to return the bond or the redemption
proceeds thereof to his bailor constituted a conversion and was in violation of the express
purpose of the bailment. Therefore, the bailment ceased between 1929 and 1932, and a cause
of action in favor of the plaintiff accrued, and that the action was barred by limitations. The
trial court further held that even if it could be assumed that the purposes of the bailment could
have continued until the divorce action, it then became the duty of the plaintiff to make a
demand within a reasonable time and that such reasonable time was before the termination of
the divorce action; that she was guilty of unreasonable delay and should have made her
demand at the time of the commencement of the divorce action.
1. The respective positions of the parties with reference to the law involved appear to be
the same in this court as described by the learned district judge. Both sides have argued and
briefed their positions at great length and with much care and skill. Respondent insists that
appellant did not make out a cause of action under any theory of her case; that even assuming
proof of delivery of the bond from the receipt admitted in evidence, there was no proof that
the bond had not been returned; that the proof that the bond had been called, redeemed
and cremated by United States Steel between November 1929 and February 1931 was
entirely lacking as to the identity of the person who had surrendered it and received the
money; that such person might as well have been the plaintiff as the defendant's testator.
evidence, there was no proof that the bond had not been returned; that the proof that the bond
had been called, redeemed and cremated by United States Steel between November 1929 and
February 1931 was entirely lacking as to the identity of the person who had surrendered it and
received the money; that such person might as well have been the plaintiff as the defendant's
testator. After careful consideration, however, we are satisfied that plaintiff's production of
the receipt constituted sufficient prima facie evidence of her ownership of the bond and of the
failure of defendant's testator to return the same or pay the value thereof. Potoker v. Klein,
105 N.J.L. 183, 143 A. 375; 48 C.J. 687, Payment, sec. 189. The rebuttable presumption of
nonpayment arising from the obligee's possession of the written obligation has been applied
to bills and notes, bonds, mortgages, and receipts for money deposited. See cases cited in
footnote id.
1

2, 3. Appellant relies squarely upon the proposition that the situation indicates a
continuing trust, and until the repudiation thereof by the trustee and knowledge of such
repudiation brought to the trustor the statute of limitations does not commence to run against
the latter; that the rule thus asserted is equally applicable if we call the situation a bailment
and that it is equally true if the gist of the action is, as determined by the learned trial judge,
the conversion of the bond by the defendant's testator, as the latter had come legally into
possession. Appellant further insists that the situation is precisely the same if the plaintiff's
cause of action is based upon the written contract of the parties. In any of such cases, it is
asserted by appellant, a demand and refusal became essential to the accrual of plaintiff's
cause of action so that the statute of limitations would not commence to run until such
demand and refusal.2 Many authorities are cited by appellant in support of the foregoing
contentions, and we are disposed to agree that they are good law.
____________________

1
Authorities considered by the court, discussing exceptions to the general rule that payment is an affirmative
defense to be pleaded and proved by the defendant included Potoker v. Klein, cited above; Brenton Bros. &
Leach v. Hill, 197 Iowa 125, 196 N.W. 947; Cochran v. Reich, 91 Hun. 440, 36 N.Y.S. 233; and Sullivan v.
Hobbs, 19 Ala.App. 465, 98 So. 307. Even if applicable, they give way to the presumption discussed in the text.
cause of action so that the statute of limitations would not commence to run until such
demand and refusal.
2
Many authorities are cited by appellant in support of the foregoing
contentions, and we are disposed to agree that they are good law. They are, however, not
conclusive upon the point submitted for our determination. The trial court was of the
opinion, in view of all the evidence in this case, that the plaintiff certainly failed to make a
demand within a reasonable length of time * * * [and] that a reasonable, diligent and prudent
person, in the position of the plaintiff, should have made a demand for the return of the bond
or the proceeds from redemption at the time of the divorce action. We are in accord with the
view that plaintiff could not, by her own action in withholding a demand, create a situation
whereunder she would never be barred by limitations.
3
Respondent relies upon the rule laid
down in Wright v. Paine, 62 Ala. 340, 34 Am.Rep. 24; Codman v. Rogers, 10 Pick. 112, 27
Mass. 112, and similar cases. In the former case the court said:
When a demand is essential, as a condition precedent to an action, it must be made in a
reasonable time. The party bound to make it, can not postpone it indefinitely, and by his
procrastination keep alive claims that would otherwise become dormant, and grow stale, the
enforcement of which would be offensive to the policy of the law and dangerous to the rights
of his adversary.
The court then explains the results that would ensue were a plaintiff permitted to delay his
demand indefinitely:
It would be a dangerous precedent; it would endanger the estates of the dead; it would
render the rights of the living uncertain and insecure; it would open the door for the
introduction of stale claims, which it has been well said, have often more of cruelty than
justice in them; and it would be violative of the policy of the statute of limitations, and
defeat the purposes it was intended to accomplish, if without an explanation of the long
delay in making demand, and the unwarrantable delay in bringing suit, after the fruitless
demand, until Winston was dead, the statute was held not a bar."
____________________

2
Appellant's brief contends, in its discussion of the issues (1) that the transaction was a continuing trust, (2)
that it was a bailment, (3) that it rose out of Southward's breach of the written contract.

3
Stat. of Lim., N.C.L. sec. 8524, six years on cause of action founded on instrument in writing; four years on
liability on obligation not founded on written instrument; three years for detention of personal property; N.C.L.
sec. 8527, in actions not otherwise provided for, four years after the cause of action shall have accrued.
living uncertain and insecure; it would open the door for the introduction of stale claims,
which it has been well said, have often more of cruelty than justice in them; and it would be
violative of the policy of the statute of limitations, and defeat the purposes it was intended to
accomplish, if without an explanation of the long delay in making demand, and the
unwarrantable delay in bringing suit, after the fruitless demand, until Winston was dead, the
statute was held not a bar.
Virtually the same thing was said in Codman v. Rogers, supra, where the plaintiff waited
seventeen years before demanding an accounting. His equitable remedy was held to be barred
by his laches.
Appellant cites the case of Reizenstein v. Marquardt, 75 Iowa 294, 39 N.W. 506, 1 L.R.A.
318, 9 Am.St.Rep. 477, as holding that such rule applies only in cases of contract and not in
cases of tort. We do not read the case as holding precisely this, and think that the case was
properly decided under its facts. The principle of requiring a demand to be made in a
reasonable time and under the facts and circumstances of each case, as hereinafter more fully
discussed, and without restriction to cases in contract, is recognized in the cases cited in the
annotation to this case appearing at page 319 of 1 L.R.A.
In Shaw v. Silloway, 145 Mass. 503, 14 N.E. 783, 786, the court says that the question as
to whether a court of law can properly lay down a general rule that where a demand is
necessary; as preliminary to the bringing of an action, such demand must be made within a
reasonable time, had been decided in the negative in a number of jurisdictions but had never
been determined in Massachusetts. Referring to Codman v. Rogers, cited in the last preceding
Iowa case, the court said that it was a case in equity, and the doctrine declared was merely
the ordinary doctrine of laches in equity. In the Shaw case the defendant borrowed money
from the plaintiff, executed his note therefor, and executed an additional instrument reciting
the receipt of the proceeds of the note and consigning to the plaintiff certain personal
property as security for the payment of the note and of certain other contracts.
note and consigning to the plaintiff certain personal property as security for the payment of
the note and of certain other contracts. The property was not delivered, but the instrument
contained a promise to deliver it to the plaintiff on demand. The court said: It is not a just or
reasonable construction of such agreement to hold that a demand may be made upon it at any
time, however remote, and although the debt to be secured has become barred by the statute
of limitations. Otherwise, the claim might continue open forever. It is not to be supposed that
such was the intention of the parties. It is true that no cause of action accrues until a demand,
and that therefore the statute of limitations does not begin to run till such demand. But our
decision rests on the ground that the contract, by implication, requires a demand within the
time of the continuance of legal liability upon the debt, and that a demand after the expiration
of that time is too late. It will be noted that the reason for the decision did not rest upon the
determination of the general question. Under its reasoning, however, it might well have done
so. Shaw v. Silloway has become a leading case on the subject and has been cited on
numerous occasions.
Whitehurst v. Duffy, 181 Va. 637, 26 S.E.2d 101, 103, cites Shaw v. Silloway, supra, with
approval but considers generally the proposition that where some condition precedent to the
right of action exists, whether it is a demand and refusal or some other act or contingency, the
cause of action does not accrue nor does the statute of limitations begin to run until that
condition is performed, citing 34 Am.Jur. 95, Limitations of Actions, sec. 116. The court
says, however:
This principle is, however, subject to the well-recognized exception that if the only act
necessary to perfect the plaintiff's cause of action is one to be performed by the plaintiff, and
he is under no restraint or disability in the performance of such act, he cannot indefinitely
suspend the statute of limitations by delaying performance of that act. It is not the policy of
the law to permit a party against whom the statute runs to defeat its operation by
neglecting to do an act which devolves upon him in order to perfect his remedy against
another.' 34 Am.Jur.,
law to permit a party against whom the statute runs to defeat its operation by neglecting to do
an act which devolves upon him in order to perfect his remedy against another.' 34 Am.Jur.,
Limitations of Actions, sec. 116, p. 96. See, also, 6 Williston on Contracts, Rev.Ed., sec.
2041, pp. 5718, 5719; 37 C.J., Limitations of Actions, sec. 324, pp. 953, 954.
Later the court discusses in some detail the two conflicting rules of law prevailing in the
Unites States as to when the cause of action accrues for the purpose of setting the statute of
limitations in motion. One view is that this period commences as soon as the creditor, by his
own act and in spite of the debtor, can make the demand payable. The leading case in
support of this theory is cited as Palmer v. Palmer, 36 Mich. 487, 24 Am.Rep. 605, and is
said to prevail likewise in Maine and Pennsylvania, from which jurisdictions several cases are
cited. The court says, however, that this view is not in accord with the weight of authority,
and refers to the annotation in 136 Am.St.Rep. 469, which characterizes the
Michigan-Maine-Pennsylvania rule as the extreme doctrine, which characterization
corresponds with a similar statement in 6 Williston on Contracts, Rev. Ed., sec. 2041, p.
5718Mr. Williston stating that the correct rule is laid down in Campbell v. Whoriskey, 170
Mass. 63, 48 N.E. 1070, 1072. That case discusses with approval Codman v. Rogers
discussed in connection with Shaw v. Silloway, supra, and notes that in the last-mentioned
case the decision was put upon the construction of the contract in reference to the time when
a demand under it was to be made. The Massachusetts court goes on to say:
We are of opinion that the true principle is that the time when the demand must be made
depends upon the construction to be put upon the contract in each case. If the contract
requires a demand without language referring to the time when the demand is to be made, it is
as if the words within a reasonable time' were found in it. What is a reasonable time is a
question of law, to be determined with reference to the nature of the contract and the
probable intention of the parties as indicated by it.
law, to be determined with reference to the nature of the contract and the probable intention
of the parties as indicated by it. Where there is nothing to indicate an expectation that a
demand is to be made quickly, or that there is to be delay in making it, we are of opinion that
the time limited for bringing such an action after the cause of action accrues should ordinarily
be treated as the time within which a demand must be made. See Jameson v. Jameson, 72
Mo. 640, and cases above cited. Such a rule seems fairly to apply the principles and analogies
of the statute of limitations to the contract of the parties, and it is in accordance with the
weight of authority in this commonwealth and elsewhere.
In Whitney v. Cheshire R. Co., 210 Mass. 263, 96 N.E. 676, 679, in which a grantor of a
right of way to the railroad was given the right to demand the construction of a canal for his
benefit across the right of way and in which the request for performance was delayed for
thirty-eight years, although he was not limited in time by his contract, the court cited with
approval Codman v. Rogers, supra, Campbell v. Whoriskey, supra, Shaw v. Silloway, supra,
and concludes: The plaintiff has been guilty of such unreasonable delay in making his
request for performance and bringing his bill that no relief ought now to be given to him in
equity. It is to be noted that the bill in that case was for specific performance of the railroad
company's covenant. But while it was thus cognizable in equity by reason of the nature of the
remedy sought, it grew out of contract and the contract itself contained no time limitation
against the exercise of the right.
Wehrle v. Mercantile National Bank, 221 Mass. 585, 109 N.E. 367, was an action to
recover twenty-six shares of stock of the defendant bank which had been deposited as security
for an indebtedness, which indebtedness had long since been settled. The indebtedness was
paid in 1885. The pledgor's assignee died in 1890 and no other assignee of the pledgor's estate
was appointed until 1912. In that year plaintiff was appointed as such assignee and filed suit
for the recovery of the stock in 1913, some twenty-eight years after the payment of the
debt for which the stock had been deposited as collateral.
assignee and filed suit for the recovery of the stock in 1913, some twenty-eight years after the
payment of the debt for which the stock had been deposited as collateral. The plaintiff
recognized the rule that where a demand is necessary to fix the legal rights of a party and give
a complete cause of action, the demand ordinarily must be made within the time limited for
bringing an action at law (Whitney v. Cheshire R.Co., 210 Mass. 263, 96 N.E. 676), but
contended that such rule is confined in its operation to cases where an executory contract
calls for the performance of some act upon demand. The court said, however [221 Mass. 585
109 N.E. 368]: * * * the rule is general in its scope and applies commonly where no
fiduciary relation exists. * * * The lapse of 28 years without any excuse other than appears
upon the face of this bill is fatal to the maintenance of this suit. There is nothing to indicate
fault on the part of the defendants in this respect or any conduct by deception or otherwise to
prevent seasonable action by the plaintiff. It is not the province even of equity to afford relief
against the natural consequences of such protracted slumber upon the rights of the character
here alleged. (Citing cases.)
In Cobb v. Wallace, 5 Cold, Tenn., 539, 98 Am.Dec. 435, a case decided in 1868 but cited
in many of the cases referred to, supra, and in which the written contract in question consisted
simply of a receipt for a barge loaded with coal with an agreement to pay $3 per day therefor
until returned, the court said:
In cases of bailment, where the contract is indefinite as to the time of its continuance, the
bailee has not the arbitrary and exclusive right to determine at what time it shall terminate. If
the bailment is for an explicitly declared purpose, it terminates whenever that purpose is
accomplished. If the time be not fixed by agreement, or by the nature of the object to be
accomplished, then the bailee must return the property whenever called upon, after a
reasonable time; and what time is reasonable must be determined by the circumstances of
each particular case: 2 Parsons on Contracts, 128, 129.
4, 5. Appellant cites Levy v. Ryland, 32 Nev. 460, 109 P. 905, as holding that the statute
of limitations does not run against a resulting trust in favor of the trustee because the trustee's
possession is deemed in law the possession of the cestui que trust, and also in support of the
rule that the statute does not run against a trust till it has been openly disavowed by the
trustees, insisting on an adverse right and interest, clearly and unequivocally made known to
the cestui que trust. These general rules are not disputed although in the case itself Norcross,
C. J., dissented on the ground that the trustee had, as a matter of fact, openly repudiated the
trust by delivering to the trustor a deed for a half interest in only a part of the land in which he
had agreed to convey a half interest. In the opinion of Judge Norcross the trustor could not
avail himself of the claim that he did not read the deed until after the statute had run.
Stephens v. Crawford, 209 App.Div. 142, 205 N.Y.S. 39, is relied upon by appellant. The
case was one in which the plaintiff sued for breach of the contract of bailment instead of
relying upon the conversion, and the court relied upon the rule stated in 25 Cyc. 1094 as
follows:
A bailor's right of action against his bailee accrues at the time of the latter's breach of
duty under the contract of bailment, and the statute of limitations then begins to run. Unless
the term of the bailment is limited, no lapse of time bars the bailor's right to the property, and
his right of action does not accrue, and the statute does not begin to run, until denial of the
bailment and conversion of the property by the bailee or some one claiming under him. To set
the statute in motion there must be some act of the bailee inconsistent with the bailment, and
changing the nature of his holding, such as a refusal to deliver on demand.
This, however, does not touch upon the rule above discussed to the effect that where the
cause of action does not arise until a demand and refusal and it is within the plaintiff's power
to make such demand, the statute will commence to run after the lapse of a reasonable time to
be determined by the nature of the contract and the circumstances surrounding it.
time to be determined by the nature of the contract and the circumstances surrounding it.
A case of much interest but to which time permits only a brief reference is Thompson v.
Whitaker Iron Co., 41 W.Va. 574, 23 S.E. 795, 796, in which one hundred tons of iron were
delivered in 1880 to the defendant who refused to accept it because it did not comply with the
terms of plaintiff's contract. Defendant wrote plaintiff, however, that it might remain on
defendant's premises without expense to plaintiff and would be well cared for. No further
correspondence took place till 1892 when plaintiff inquired about the iron and later demanded
delivery or that defendant account for its proceeds. The court held that the situation created a
bailment; that no title had vested; that it was not an express trust nor a simple or passive trust,
the trustee being a mere passive depository with possession only and no property except such
as rests in a bailee under the law of bailment, a mere depositum without reward. The court
said: In a sense, a bailment is a trust, but not such as is cognizable in equity, but is a subject
of common-law jurisdiction. The court then discusses the situation from the point of view of
bailment, of conversion, of trust and of fraud, and applies the rule of the necessity of demand
and suit within a reasonable time. The oft-quoted statement of Justice Swayne is quoted by
the court and will bear repeating:
Statutes of limitation are vital to the welfare of society, and are favored in law. They are
found and approved in all systems of enlightened jurisprudence. They promote repose by
giving security and stability to human affairs. Important policy lies at their foundation. They
stimulate to activity, and punish negligence. While time is constantly destroying the evidence
of rights, they supply its place by a presumption which renders proof unnecessary. Mere
delay, extending to the limit prescribed, is itself a conclusive bar. The bane and antidote go
together.
It will be seen from the foregoing authorities
4
that the learned district judge, in holding
that the cause of action growing out of the conversion was barred by the statute of limitations
and further that there was an unreasonable delay on the part of the plaintiff in asserting her
rights or in making a demand, particularly with reference to her divorce action, was properly
guided by the rules enunciated, whether we consider the matter from the angle of the
conversion or under appellant's theory of bailment or appellant's theory of trust or appellant's
theory of contract. To make this more understandable, it is necessary to consider both the
express and implied rights and obligations of the parties under the contract or receipt which is
the sole evidence of plaintiff's rights.
Following the receipt for the bonds is the statement, as noted: Above bonds are property
of Joan J. Warren and are loaned to me to be used as security for a loan. First the title of
appellant is acknowledged. On the other hand, the acceptance of the receipt is an
acknowledgment of Southward's rightful possession for the purpose indicated. When used
as security for a loan such use necessarily implied delivery as a pledge or collateral
security. It implied that Southward would deliver the same as security for the payment of a
promissory note or other written obligation. This in turn implied that Southward's loan from
his lender would necessarily be for a termwhether thirty days, sixty days, six months, a year
or longer. It implied that he would in due course repay such loan, redeem the bonds and
return them to appellant. There is nothing to imply that he might use the bonds for a series of
____________________

4
Respondent has cited a number of other cases holding that demand, when necessary to
establish a cause of action, must be made within a reasonable time, and we are in accord with
the reasoning and conclusions of these authorities. They include: Quigley v. W. N. Macqueen
& Co., 321 Ill. 124, 151 N.E. 487; McCormick v. McCormick, 140 Kan. 38, 33 P.2d 942;
Gossard v. Gassard, 10 Cir., 149 F.2d 111; Thomas v. Pacific Beach Co., 115 Cal. 136, 46 P.
899. See, also, White v. Sheldon, 4 Nev. 280. successive loans.
successive loans. The receipt certainly recognized the possibility that Southward might find it
impossible to pay off the loan and redeem and return the bonds; that Southward's lender
might be compelled, on failure of Southward to pay his note when due, to realize upon the
security. The receipt or contract in question may be said to permit the further implication that
if such loss of the bonds through action of Southward's lender occurred, Southward would
pay the value thereof to appellant. Such implication is justified by the clear recital that the
delivery was a loan, which negatives the thought of a gift or the conclusion that Southward's
loss of the bonds through sale thereof by his lender would absolve him from further liability
to appellant. The further implication may be clearly drawn that Southward would not sell the
bonds and appropriate to himself the proceeds of such sale. His use was limited to the
purpose of securing a loan. Through all of the specified and implied rights and liabilities of
Southward as above recited, runs the further implication that the contemplated acts occur
within a reasonable time. Applying these expressed and implied provisions to the situation,
we find the following: Plaintiff lent the bonds to defendant's testator in 1926. She married
him a month later. Sometime in the approximate calendar year of 1930 U. S. Steel
Corporation redeemed the bond for $1,100, paid presumably to Southward or his assignee or
pledgee. Southward deserted plaintiff in 1933, up to which time they had apparently lived
together as man and wife. She divorced him in 1935, upon his voluntary submission to the
jurisdiction of the court. He died in 1946, in which year she filed her claim against his estate.
In view of this situation it is not strange that plaintiff felt impelled to make sundry allegations
in her original and amended complaintthat under the agreement said bonds were to be
later returned to plaintiff on demand, or, that said deceased would pay plaintiff on demand the
face value of any bonds not so returned; * * * that no demand for return of said bonds or for
payment has been made; * * * that no demand was made by plaintiff upon the deceased
during his lifetime for the return of said bonds or for payment of the value thereof by
reason of the fact that plaintiff was informed and believed said deceased was unable to
make return thereof and was wholly without means to pay the value of same."
return of said bonds or for payment has been made; * * * that no demand was made by
plaintiff upon the deceased during his lifetime for the return of said bonds or for payment of
the value thereof by reason of the fact that plaintiff was informed and believed said deceased
was unable to make return thereof and was wholly without means to pay the value of same.
And in her reply (defendant's answer having pleaded limitations, laches and estoppel) she
alleged that for some time prior to and on June 3, 1926 plaintiff and said George M.
Southward were engaged to be married to each other; that the facts alleged * * * constituted
said decedent a trustee * * * and that in his lifetime said decedent never repudiated said trust
and no demand was ever made upon [him]; also that he was absent from the state for periods
aggregating more than eight years. As to which, if any, of these allegations were proved, we
refer to our earlier statement of the complete case made by plaintiff.
6, 7. Both under the rule of law fixing a reasonable time for demand and suit and the rule
of equity barring relief on account of her laches, we are satisfied that the judgment of the
district court was correct. As to the defense of estoppel we do not find it necessary to
comment, except in the relation such equitable defense bears to the defense of laches. In this
regard, however, see Walker v. Walker, 41 Nev. 4, 164 P. 653, 169 P. 459.
The judgment and the order denying plaintiff's motion for a new trial are hereby affirmed
with costs.
____________
65 Nev. 710, 710 (1948) Wolford v. Wolford
ETHEL M. WOLFORD, Appellant, v. ALBERT
WOLFORD, Respondent
No. 3550
December 22, 1948. 200 P.2d 988.
1. Marriage.
In annulment action, court can determine ownership of property acquired by parties after marriage.
N.C.L.1929, sec. 4069.
2. Marriage.
An action for annulment is in nature of equitable action, and court can decree partition if parties have
requested a partition.
3. Divorce.
A partition can be made in divorce action.
4. Marriage.
Where husband in wife's divorce action filed cross complaint for annulment and for his share of property,
and judgment granted annulment and undivided one-half of realty to husband, husband was not barred from
thereafter obtaining partition of realty by reason of his failure to ask for partition in annulment action, since
right to partition was not germane to nor implied in the first action. N.C.L.1929, sec. 8604.
5. Judgment.
The general rule that judgment on merits rendered in former suit between same parties on same cause of
action by court of competent jurisdiction operates as bar not only as to every matter which was offered and
received to sustain or defeat claim, but as to every other matter which might, with propriety, have been
litigated and determined in the action, does not mean that prior judgment is conclusive of matters not in
issue or adjudicated and which were not implied in or essentially connected with actual issues in case,
although they may affect ultimate rights of parties and might have been presented in former action.
Finding which is sustained by sufficient evidence is conclusive on appeal.
7. Partition.
Every tenant in common who has right to present enjoyment of property or proceeds thereof is entitled to
demand a partition of the property as a matter of right, and convenience or inconvenience of parties is not
to be considered. N.C.L.1929, sec. 9074.
Where husband was awarded undivided one-half interest in realty in prior action in which marriage was
annulled, and husband was thereafter granted a partition of the realty, wife who was represented by counsel
and who was given ample opportunity to be heard was not denied equal protection of the
law and her property was not taken without due process.
opportunity to be heard was not denied equal protection of the law and her property was not taken without
due process.
9. Partition.
A husband who was awarded undivided one-half interest in real property on annulment of marriage was
entitled to partition by sale, where property consisted of a single lot in a city with a house covering most of
the lot and the house consisted of three rooms and a bath and could not be physically divided without great
prejudice to husband.
Appeal from Fourth Judicial District Court, Elko County; Taylor H. Wines, Judge.
Action for partition of realty by Albert Wolford against Ethel M. Wolford. From the
judgment, the defendant appeals. Affirmed.
Orville R. Wilson, of Elko, and D. H. Oliver, of Salt Lake City, Utah, for Appellant.
George F. Wright, of Elko, for Respondent.
OPINION
Respondent, as plaintiff in the trial court, was granted a partition of real property and the
property was ordered to be sold through referees pursuant to the laws pertaining to
executions. Plaintiff and defendant were co-owners, as tenants in common, of said property.
In her appeal, appellant contends:
(1) That prior to this action, plaintiff was awarded an annulment of his marriage to
defendant and was awarded an undivided one-half interest in the real property acquired by the
parties during their marriage, with the defendant owning the other one-half interest. The court
did not partition the property. Appellant contends that this is res adjudicata and plaintiff is
barred from a subsequent action for partition.
(2) That appellant was denied equal protection of the law.
(3) Appellant's property was taken without due process of law.
(4) The evidence is insufficient to sustain the judgment of the trial court.
There were two actions between these parties. The first action was brought by Ethel M.
Wolford against Albert Wolford to secure a divorce, wherein she alleged there was no
community property. She obtained a divorce by reason of the default of her husband in not
making an appearance. Then the decree of divorce was set aside by reason of the fraud of the
wife. Thereupon, the husband filed an answer and cross complaint for divorce and asked for a
division of certain community property. Pursuant to the stipulation of the parties, the husband
filed an amended cross complaint, wherein he alleged that he was married at the time he
entered into the marriage ceremony with Ethel M. Wolford, although at that time he thought
his wife was dead. Mr. Wolford, in his amended cross complaint, also alleged that since the
marriage of the plaintiff and defendant, they had jointly acquired one lot with a house thereon
and household furnishings therein, and Mr. Wolford asked that he be awarded an annulment
and that he be awarded one-half of the real and personal property.
Ethel M. Wolford denied that the parties had jointly acquired the property or that there was
community property, but joined in the request that an annulment be granted.
After a trial before the court, wherein both parties were present and represented by
counsel, the trial court granted an annulment and one-half of the real property to Mr. Wolford
and the other one-half of the real property and all of the personal property was awarded to
Mrs. Ethel M. Wolford. Findings of fact and conclusions of law were filed and the judgment
entered thereupon, which granted the annulment and provided as follows:
It is further ordered, adjudged and decreed that said Albert Wolford be and he is hereby
awarded an undivided one-half interest in and to the hereinafter described property and
said Ethel M.
Albert Wolford be and he is hereby awarded an undivided one-half interest in and to the
hereinafter described property and said Ethel M. Wolford be and she is hereby awarded an
undivided one-half interest in and to the hereinafter described property. (Then followed a
description of the property.)
Neither party asked for a partition of the property and the issue of partition, or right of
partition, was never presented in the first action. Neither party appealed from that judgment.
Sometime thereafter, Albert Wolford, the plaintiff herein, commenced the second action
against Ethel M. Wolford, alleging that each of the parties hereto were the owners, in equal
shares, as tenants in common, of a certain lot and building thereon (being the same property
described in the first judgment), and asked for a partition of the property; that said property
could not be divided by physical division without great prejudice to plaintiff, and asked that
said partition be made by sale of the property.
The defendant in her answer admitted that the parties were the joint owners of the
property, but denied that plaintiff was entitled to a partition of the property.
Defendant and appellant contends that the former judgment is a bar to partition, since Mr.
Wolford had failed to ask for a partition, and relies upon section 8604 of the Nevada
Compiled Laws 1929, which provides as follows:
If the defendant omit to set up a counterclaim in the cases mentioned in the first
subdivision of the next preceding section, neither he nor his assignee can afterward maintain
an action against the plaintiff therefor.
1. In the first action, the court had jurisdiction to determine the ownership of the property
acquired by the parties after the marriage. Sec. 4069, N.C.L.1929; Schneider v. Schneider,
183 Cal. 335, 191 P. 533, 11 A.L.R. 1386; In re Van Alstine, 21 Wash. 194, 57 P. 348;
Buckley v. Buckley, 50 Wash. 213, 96 P. 1079, 126 Am.St.Rep. 900.
2, 3. Some states have statutes providing that in the event of an annulment, the court
can, wherever necessary, partition the property.
event of an annulment, the court can, wherever necessary, partition the property. (California
Civil Code, sec. 147, 1941.) Nevada does not have a similar statute nor other statutory law
permitting partition in an action for an annulment. However, an action for annulment is in the
nature of an equitable action and the court would have jurisdiction to decree a partition if the
parties had requested a partition. A partition can be made in a divorce action, Lundgren v.
Lundgren, Utah, 184 P.2d 670, and Huneke v. Huneke, 12 Cal.App. 199, 107 P. 131, and
there is no reason why a partition cannot be granted in an annulment action if it were
requested by either party.
4. In the first action, Albert Wolford filed a cross complaint for annulment and asked for
his share of the property. Therefore, he cannot be charged with failure to file a counterclaim
or cross complaint. The question remains: Is Wolford now barred from having a partition of
the property by his failure to ask for partition in the annulment action? We think not.
5. A judgment on the merits, rendered in a former suit between the same parties on the
same cause of action, by a court of competent jurisdiction, operates as a bar not only as to
every matter which was offered and received to sustain or defeat the claim, but as to every
other matter which might, with propriety, have been litigated and determined in that action.
50 C.J.S., Judgments, sec. 657, page 102; Lang v. Lang, 182 Cal. 765, 190 P. 181.
The general rule does not mean that the prior judgment is conclusive of matters not in
issue or adjudicated, and which were not implied in, or essentially connected with, the actual
issues in the case, although they may affect the ultimate rights of the parties and might have
been presented in the former action. 50 C.J.S., Judgments, sec. 657, page 103 n. 19; Lang v.
Lang, supra; Troy v. Troy, 72 Cal.App. 757, 238 P. 143.
In the first action, the issue or right to partition was not presented and was never
determined. The court fixed the rights of the parties in and to the property acquired after
marriage by determining that the parties were tenants in common.
fixed the rights of the parties in and to the property acquired after marriage by determining
that the parties were tenants in common. The court was not required to fix all of the rights of
the parties that belong to a tenant in common. The necessity for partition may not have
existed in the first action. After the judgment of annulment, the parties then could make their
own agreement concerning the management, control, enjoyment and division of the property.
If the parties could not agree concerning these matters, then either party had the right, in a
subsequent action, to have a partition of the property.
The right to partition was not germane to nor implied in the first action. Neither party then
sought a partition. Therefore, the first action is not a bar to a subsequent suit for partition. The
right to a partition is one of the rights of a tenant in common. Thompson on Real Property,
sec. 1981, vol. 4, page 493; 40 Am. Juris. page 5 and page 22; Willard v. Willard, 145 U.S.
116, 12 S.Ct. 818, 36 L.Ed. 644; sec. 9074, Nev.Comp. Laws 1929.
The plaintiff, in the present action, is not disputing his title or rights given him in the first
action, but rather as asserting one of his rights as a tenant in common, namely, his right to a
partition.
6. The trial judge in the action on partition found that at the time of the commencement of
the action, plaintiff and defendant were each the owners of an undivided one-half interest in
the property and that the right to or the issue of partition had never been determined prior to
this last action. There is sufficient evidence to sustain that finding and it is conclusive on this
court on appeal. Nelson v. Smith, 42 Nev. 302, 176 P. 261, 178 P. 625; Thompson v.
Tonopah Lumber Co., 37 Nev. 183, 141 P. 69.
The appellant in the oral argument before this court contended that there was insufficient
evidence to show that the plaintiff had a right to partition.
7. Every tenant in common that has the right to the present enjoyment of the property,
or the proceeds thereof, is entitled to demand a partition of the property as a matter of
right.
present enjoyment of the property, or the proceeds thereof, is entitled to demand a partition of
the property as a matter of right. The convenience or inconvenience of the parties is not to be
considered. Thompson on Real Property, vol. 4, page 493, sec. 1981. Section 9074,
Nev.Comp.Laws 1929, provided as follows:
When several persons hold and are in possession of real property, as joint tenants or as
tenants in common, in which one or more of them have an estate of inheritance or for life, or
lives, or for years, an action may be brought by one or more of such persons for a partial
partition thereof according to the respective rights of the persons interested therein, and for a
sale of such property or a part of it, if it appear that a partition cannot be made without great
prejudice to the owners.
8. The appellant has contended that she was denied equal protection of the law and her
property was taken without due process of law. She has not cited any case to sustain her
position, nor has she pointed out wherein she was denied these rights. She commenced the
first action and proper notice of the trial was given. She was represented by counsel and given
ample opportunity to be heard. In the second action, she was properly served, filed an answer,
was present at the trial and represented by counsel. She was not denied equal protection of the
law and her property was not taken without due process. The requisites of due process are due
notice and an opportunity to be heard. King Tonopah Mining Co. v. Lynch, D.C., 232 F. 486;
Vineyard Land & Stock Co. v. District Court, 42 Nev. 1, 171 P. 166. These requirements
were fully met.
9. The evidence was sufficient to warrant the trial court in decreeing that partition be
granted and the property sold. The property consisted of a single lot in a city, with the house
covering most of the lot. The house consisted of three rooms and a bath, and could not be
physically divided without great prejudice to the plaintiff. In such a case, the trial court was
warranted in decreeing that the partition be granted by a sale of the property.
in decreeing that the partition be granted by a sale of the property.
The judgment appealed from is affirmed.
____________
65 Nev. 717, 717 (1948) Peardon v. Peardon
ROSE M. PEARDON, Appellant, v. ROSWELL C.
PEARDON, Respondent.
No. 3522
December 22, 1948. 201 P.2d 309.
Under both common law and equitable standards, in any transaction by the husband with his wife
whereby the husband seeks to obtain the wife's property for himself without adequate consideration to her,
no duress, coercion, undue influence, imposition or overreaching will be tolerated.
Where husband obtains property of his wife without adequate consideration, a presumption of invalidity
of the transaction arises which can only be overcome by clear evidence of good faith, of full knowledge
and of independent consent and action.
Finding of trial court contrary to undisputed evidence in favor of wife's contention as to date of execution
of an assignment of property from husband to wife, would not be held to be error where court in making
the finding merely followed the pleadings and proposed findings prepared by wife's attorney.
4. Army and Navy.
A naval officer could continue to own interest in a partnership which he owned prior to entering naval
service, provided he refrained entirely from all activities in connection with any business, the partnership
may have had with the navy or other governmental agency, either on behalf of the partnership or on behalf
of the government. 29 Stat. 361.
5. Evidence.
The supreme court can take judicial notice of the official acts of the head of an executive department or
agency of the federal government of general public interest.
6. Evidence.
In determining whether naval officer could retain his ownership of an interest in a partnership after his
entry into naval service, although partnership engaged in business negotiations with the navy while he
was in naval service, supreme court could take judicial notice of orders and rulings of
the judge advocate of the navy and of the opinions of the attorney general of the
United States.
with the navy while he was in naval service, supreme court could take judicial notice of orders and rulings
of the judge advocate of the navy and of the opinions of the attorney general of the United States. 29 Stat.
361.
7. Army and Navy.
Under ruling of judge advocate of the navy making unlawful the employment of an officer of the naval
reserve while upon active duty, by employer furnishing naval supplies or war materials to government, and
under statute upon which ruling is based, holding of any position of active management of a firm or
company, even that of president or director, constitutes employment, but a naval officer can continue to
hold stock or other interest in company which he owned prior to entering naval service, if he refrains from
all activities and connection with business, company has with government or governmental agency. 29 Stat.
361.
A conveyance or a transfer of property to a wife by a husband is presumed to be intended as an absolute
gift to wife.
The presumption that an absolute gift is intended where husband transfers property to his wife, can be
overcome, especially in courts of equity, only by clear and convincing evidence.
10. Evidence.
Testimony of husband as to what others thought was purpose of husband in assigning property to wife,
was inadmissible as a conclusion in action involving issue of whether assignment was absolute or whether
wife was to hold title in trust for husband.
11. Evidence.
Statement of husband that property was assigned by him to wife in trust was a conclusion inadmissible in
evidence in action involving issue of whether assignment was absolute or whether wife was to hold title in
trust for husband.
Evidence established that an assignment to wife of husband's interest in partnership was an absolute gift
to wife subject only to agreement for husband to receive portion of income, and to husband's right of
succession should wife die during term of partnership, and was not in trust with wife to reconvey to
husband as soon as husband was permitted to own the interest, which as a naval officer husband
erroneously believed himself disqualified to own because of partnership transactions with the navy, so that
wife had no duty to reconvey to husband upon termination of husband's supposed disqualification.
13. Pleading.
Where a plaintiff alleges that plaintiff and defendant intermarried on a specified date and at a specified
time, and defendant merely denies the allegation generally without reaching
specifically any fact alleged, the denial is objectionable as being a "negative
pregnant."
defendant merely denies the allegation generally without reaching specifically any fact alleged, the denial is
objectionable as being a negative pregnant.
Where wife testified as to incidents allegedly occurring immediately preceding execution by her of an
assignment of property to husband, husband's answer to testimony of wife relative to the incidents relied
upon by wife to constitute duress, coercion, and undue influence, that the wife's testimony was untrue, but
not denying wife's testimony as to any specific incident, did not sustain finding that no duress or coercion
had been exercised, under the influence of which, wife executed the assignment.
15. Evidence.
Substantial evidence means something of substance and relevant consequence, and not vague,
uncertain, or irrelevant matter, not carrying the quality of proof or having fitness to induce conviction.
Where wife without consideration assigned to husband property which had been previously assigned to
her by husband, finding that assignment to husband was freely and voluntarily made without exercise by
husband of undue influence, could not be made without any effort on part of husband to affirmatively prove
the absence of undue influence and that wife's act was free and voluntary.
17. Contracts.
Where there is no coercion amounting to duress, but a transaction is the result of a moral, social or
domestic force exerted upon a party, controlling the free action of his will and preventing any true consent,
equity may relieve against transaction on the ground of undue influence even though there may be no
invalidity at law.
18. Contracts.
Where an antecedent fiduciary relation exists between parties to a transaction, court of equity will
presume confidence placed and influence exerted, but the confidence and influence necessary to authorize
relief against the transaction must be proved by satisfactory extrinsic evidence where there is no fiduciary
relation between the parties.
19. Contracts, Deeds, Gifts, Wills.
The doctrine of equity concerning undue influence reaches every case and grants relief where influence is
acquired and abused, or where confidence is reposed and betrayed, and is specially active and searching in
dealing with gifts, but is applied when necessary to conveyances, contracts executory and executed, and
wills.
In action involving validity of an assignment without consideration by wife to husband of part of income
from a partnership interest previously assigned by husband to wife, evidence established that the
assignment was not fair and equitable to wife because income tax was entirely
payable by wife with husband's income being tax free, and failed to overcome
presumption of invalidity.
evidence established that the assignment was not fair and equitable to wife because income tax was entirely
payable by wife with husband's income being tax free, and failed to overcome presumption of invalidity.
Divorce action by Roswell C. Peardon against Rose M. Peardon, wherein defendant cross
complained. From an order denying defendant's motion for a new trial, defendant appeals.
Order reversed and cause remanded.
Samuel Platt, of Reno, for Appellant.
Brown & Belford, of Reno, for Respondent.
OPINION
On June 6, 1945, the plaintiff, Roswell C. Peardon, respondent herein, commenced an
action for divorce from the defendant, appellant herein, Rose M. Peardon, upon the alleged
ground of desertion. The complaint contained the allegations that there were no children the
issue of the marriage, and that there were no property rights of the parties to be adjudicated in
the action. The parties will be designated hereinafter as plaintiff and defendant, as they were
in the lower court.
On August 4, 1945, the plaintiff caused to be filed and served an amended complaint, and
in a second alleged cause of action, as an additional ground of divorce, he alleged that the
defendant had treated him with extreme cruelty. In the amended complaint it was again
alleged that there were no property rights to be adjudicated in the action.
On September 24, 1945, the defendant, by her attorneys, Messrs. Platt & Sinai, filed her
answer and cross complaint, in which she denied, among other allegations, the allegations of
paragraph IV of the complaint, alleging that there were no property rights of the parties to be
adjudicated in the action. She denied, also, the allegation of desertion in plaintiff's complaint,
and in her cross complaint alleged as a ground for divorce that the plaintiff had treated her
with extreme cruelty.
In paragraphs V, VI and VII of her cross complaint, the defendant wife alleged, fully, facts
and circumstances concerning the property rights of the parties, and all material allegations in
said paragraphs V, VI, and VII are denied in the plaintiff's answer to the cross complaint,
which answer was filed October 18, 1945.
In order to present a clear picture of the transaction between the parties concerning which
there is controversy as to matters of fact and law, it seems advisable to incorporate herein said
paragraphs V, VI, and VII of the cross complaint, defendant's prayer for relief following such
allegations, and the exhibits A and B thereto attached. Said paragraphs, prayer and
exhibits are as follows:
V. That on or about the first day of May, 1941, in the City and State of New York, the
said plaintiff, Roswell C. Peardon, transferred, assigned, made over and conveyed to the said
defendant and cross-complainant, Rose M. Peardon, all of his right, title and interest in and to
certain inventions and improvements in connection with the detection of and protection
against submarines and torpedoes, together with his interest in a certain agreement dated
April 22, 1940, executed between him, the said plaintiff, Arthur B. Chapman, and Herbert M.
Laford, a copy of which said transfer and assignment is attached hereto, made part hereof and
marked Exhibit A.'
That at the time of said transfer and assignment, the said plaintiff owned a one-third (1/3)
partnership interest in and to said inventions and improvements.
interest in and to said inventions and improvements. That said partnership interest at said
time, and ever since, is and has been known under the trade name of Navigation Instrument
Company.' That one of the moving considerations for said assignment and transfer as stated
by plaintiff was that defendant had been through hell and that she was a peach.'
That it was understood and agreed between plaintiff and defendant, that the plaintiff
should share to the extent of twenty-five (25%) per cent of the net profits earned and
distributed from and out of said one-third (1/3) interest, and that each of the parties should
assume and pay all income and other taxes, Federal and State, levied, assessed or due or
owing on his and her respective proportionate interests and earnings as aforesaid. That
plaintiff has not paid any part or portion of said taxes, nor has he paid or reimbursed
defendant for any part or portion thereof.
That later, on or about the 21st day of September, 1943, by duress, coercion, undue
influence, fraud, personal abuse, threats and force inflicted by plaintiff upon defendant and
cross-complainant, immediately prior to the signing of the contract hereinafter referred to,
and for a long and continuous period of time prior thereto, the parties entered into an
agreement whereby the said defendant transferred to plaintiff one-half (1/2) of all profits,
bonuses, or other distributions derived from the stock of the Navigation Instrument
Company registered in her name,' a copy of which said agreement is attached hereto, made a
part hereof, and marked Exhibit B.' That on the day preceding the signing of the agreement
by defendant, and while the parties were in their apartment, the plaintiff demanded of
defendant that she return to him her interest in Navigation Instrument Company. The
defendant was sitting on a couch and the plaintiff stood over her loudly and harshly repeating
his demands, shouting at and abusing her, and when she attempted to get up, pushed her
down and spit in her face.
face. This course of conduct continued for hours; and defendant, tired, aching, exhausted and
fearing for her safety agreed to turn over a half-interest and to sign the agreement, which she
subsequently did, much against her will, judgment and independent volition. That plaintiff
never suggested to defendant that she seek independent professional or other advice as to the
form or substance of the agreement, and she had no technical knowledge of its legal force and
effect. Plaintiff's conduct, as aforesaid, was a continuation and culmination of similar
previous abusive treatment prior thereto, and over a long period of time, which added to her
fears for her own personal safety unless she submitted to plaintiff's will and demands, and
which said abusive treatment continued subsequent thereto. The following are but a few
examples of such conduct and treatment:
In June, prior to the execution of the agreement, at Louisville, Kentucky, following a
wedding of defendant's niece, and a party at the home of Mr. and Mrs. T. Harmetts, plaintiff,
by word and act, became so abusive toward defendant, that her sister was forced to intervene.
Later, in the same year, plaintiff literally wrecked their New York apartment, and
defendant was so fearful of bodily violence that she summoned plaintiff's attorney.
Upon another occasion, plaintiff yelled and shouted, called defendant's mother A
God-damned d---- son-of-a bitch' and violently struck defendant.
From August 23 to August 28th, plaintiff was constantly drunk, repeatedly called
defendant vile and approbrious names and spat upon her. From September 6th to 11th
plaintiff repeatedly called defendant vile names and called her a s-- b-- and a thief in public.
On October 22nd, while the parties were motoring, plaintiff said to defendant, this is one
night you won't get home alive.' "During the month of November, plaintiff left a service
revolver and a small revolver and ammunition about the apartment, causing defendant
much anxiety and fear.
During the month of November, plaintiff left a service revolver and a small revolver and
ammunition about the apartment, causing defendant much anxiety and fear.
On November 9th, plaintiff came home awoke defendant in the middle of the night, told
her that to show her how much he hated defendant, he was going to urinate on her (which he
attempted). While defendant was defending herself, plaintiff punched her arm until it was
black and blue.
VI. That said above agreement of date on or about September 21, 1943, (Exhibit B') was
so signed and executed by defendant, under and by the duress, coercion, undue influence,
fraud, personal abuse, threats and force inflicted by plaintiff upon defendant, while the parties
were occupying the fiduciary relation of husband and wife. That said agreement, ever since
said date was, ever since has been, and is now, void, and of no legal force and effect.
VII. That defendant is informed and believes, and upon information and belief states the
fact to be, that plaintiff has been paid, and has received and collected the approximate sum
and amount of Thirty-six Thousand One Hundred and Seventy-three Dollars and Thirty-three
Cents ($36,173.33), based upon the agreement (Exhibit B') so wrongfully obtained and of no
legal force and effect, and has wrongfully deprived defendant and withheld from her the sum
of Twenty-six Thousand Seven Hundred Ninety-eight Dollars and Fourteen Cents
($26,798.14) to which she was and is justly entitled under the agreement dated May 1, 1941
(Exhibit A'), and the private understanding between the parties, as hereinabove alleged.
Defendant and cross-complainant further alleges that from and out of the first revenues
received by her representing her seventy-five (75%) partnership interest with plaintiff,
(Exhibit A' and said agreement), she purchased a farm at Green Lane, Pennsylvania, which
she voluntarily placed in the name of both parties hereto, and which now so stands of
record.
she voluntarily placed in the name of both parties hereto, and which now so stands of record.
That the approximate market value of said property is more than Six Thousand Three
Hundred Dollars ($6,300.00).
Wherefore, defendant and cross-complainant prays that the plaintiff take nothing by said
action, and that the defendant and cross-complainant be granted a decree of divorce from the
plaintiff forever dissolving the bonds of matrimony now and heretofore existing between the
above named defendant and plaintiff, and that each be restored to their original status of
unmarried persons.
That the agreement dated on or about September 21, 1943, (Exhibit B attached to said
Answer and Cross-Complaint) be rescinded and canceled, and ordered, adjudged and decreed
to have been null and void at the time of its signing and execution and at all times since, and
now is, null and void and of no legal force and effect.
That it be ordered, adjudged and decreed that the agreement dated May 1, 1941, (Exhibit
A' attached to Answer and Cross-Complaint), together with the mutual oral understanding
between the parties, was, and is now, in full force and effect.
That the plaintiff be ordered to pay the defendant and cross-complainant the sum of
Twenty-six Thousand Seven Hundred Ninety-eight Dollars and Fourteen Cents ($26,798.14),
or such other sum or amount as the Court may find from the evidence is and has been
wrongfully, unjustly and illegally paid to the plaintiff and withheld from the defendant and
cross-complainant.
That the plaintiff be ordered and directed to set over, transfer and assign all of his
twenty-five (25%) percent right, title and interest in and to the agreement dated May 1, 1941
as and for maintenance and support for the defendant and cross-complainant.
That the Court forthwith issue its restraining order forever enjoining and restraining the
above named plaintiff from requesting, demanding, or receiving from the Navigation
Instrument Company, its successors, assigns or associates, or the
defendantcross-complainant herein, any further sums, monies, revenues, profits,
dividends, or net earnings from and out of the partnership relation referred to in 'Exhibit
A' attached to the Answer and Cross-Complaint.
the Navigation Instrument Company, its successors, assigns or associates, or the
defendantcross-complainant herein, any further sums, monies, revenues, profits, dividends,
or net earnings from and out of the partnership relation referred to in Exhibit A' attached to
the Answer and Cross-Complaint.
For such other and further relief as the Court may find meet and proper in the premises.
Exhibit A
I, Roswell C. Peardon, hereby transfer, assign, make over and convey to Rose M.
Peardon, residing at No. 227 East 57th Street, New York City, all my right, title and interest
in and to certain inventions and improvements originated by me in connection with the
detection of and protection against submarines and torpedoes, together with any interest in a
certain agreement dated April 22, 1940, executed between Arthur B. Chapman, Herbert M.
Laford and myself. Dated, New York City, May 1st, 1941.
In presence of:
Julian D. Rosenberg
Roswell C. Peardon (L.S.)
Exhibit B
Agreement
This agreement made thisday of September A. D. 1943 by and between Rose M.
Peardon and Roswell C. Peardon
Whereas, Rose M. Peardon is the owner of certain shares of stock of the Navigation
Instrument Company, Newark, New Jersey, a partnership, now therefore in consideration of
the sum of One Dollar and other good and valuable considerations receipt whereof is hereby
acknowledged, it is agreed
(1) That Rose M. Peardon hereby transfers one-half of all profits, bonuses, or other
distributions derived from the stock of the Navigation Instrument Company registered in her
name, and the Navigation Instrument Company is hereby authorized and directed to make
payment of the same directly to Roswell C.
Company is hereby authorized and directed to make payment of the same directly to Roswell
C. Peardon.
(2) That this assignment shall be irrevocable, and one-half of the stock now registered in
the name of Rose M. Peardon shall be and continue to be chargeable with the payments as
above set forth.
(3) It is understood and agreed that Roswell C. Peardon will pay all taxes, both Federal and
local on his one-half share.
In Witness Whereof, the parties have hereunto set their hands and seals the day and date
above mentioned. A. Sproul, Jr.
Rose M. Peardon (seal)
Ros. Cameron Peardon (seal)
Roswell C. Peardon
It may be noted that the determination of the relative rights and interests of the parties in a
one-third interest in Navigation Instrument Company and, particularly, in the income and
profits derived from such interest, depends upon the proper interpretation of exhibits A and
B, and their effect.
Stated briefly, the contention of the defendant wife is that, by virtue of exhibit A, which
is the transfer and assignment to her by the plaintiff husband of all his right, title and interest,
which amounted to a one-third interest, in and to certain inventions and improvements
originated by him in connection with the detection of and protection against submarines and
torpedoes, together with his interest in a certain agreement dated April 22, 1940, between
himself and Arthur B. Chapman and Herbert. M. Laford, the plaintiff husband intended to,
and did, make an absolute gift to her of all of said one-third interest, subject to an
understanding between them, reached through correspondence between the plaintiff husband
and Julian D. Rosenberg, the attorney who prepared the said instrument and who was a friend
of both parties and acting for them mutually, that the plaintiff husband was to have the use
and benefit of 25% of the income and profits to be derived from such one-third interest.
that the plaintiff husband was to have the use and benefit of 25% of the income and profits to
be derived from such one-third interest.
On the other hand, the plaintiff husband contended that because of his position as a naval
officer he had become disqualified, under certain naval regulations, to own or hold his
interest in Navigation Instrument Company, which company was negotiating, or intending to
negotiate, through the Electro Protective Corporation, to sell such detection instruments or
devices to certain governmental departments or agenciesperhaps to the navy department,
with which the plaintiff was directly connected, as a lieutenant commander in the navy; and
that, therefore, his intention was to transfer, by exhibit A, to the defendant wife such
interest in trust, merely, retaining the full beneficial title in himself.
It is readily apparent that the question of which of these claims or contentions is correct is
the most vital point in the case, for its determination not only establishes the effect of the
original transfer (Ex. A) from the husband to the wife, but very materially affects the
questions of the validity or invalidity, and the effect, of exhibit B, which is a purported
reassignment back to the husband by the wife of one-half of all profits, bonuses, or other
distributions derived from the stock of the Navigation Instrument Company registered in her
name. If the transfer from the husband to the wife was, as he contends, in trust merely, then
the effect to be given to the element of duress, coercion and undue influence, alleged by said
wife in her cross complaint and testified to by her, in detail, at the trial, but denied by the
husband, and if such element were established by the evidence would under the proper
application of legal and equitable principles, be quite different from the effect properly to be
attributed to such duress, coercion or undue influence, if the husband were, by such
reassignment, obtaining, without consideration, a property interest belonging beneficially to
his wife. The distinction is referred to on page 15 of plaintiff's brief, as follows:
distinction is referred to on page 15 of plaintiff's brief, as follows:
While we emphatically deny the story of the wife as to the circumstances of the
reassignment it is difficult to see how she was prejudiced, whatever those circumstances may
have been. The finding of the lower court, based upon ample evidence, was that the property
transferred to defendant by such assignment was in fact transferred to her in trust with the
definite understanding by both parties that the same would be re-assigned to plaintiff as soon
as he was permitted to own the same.' (Tr. Vol. I, p. 33, lines 11 et seq.) In making the
reassignment the wife did only what she was required to do in equity and good conscience.
We believe it was that theory which caused the lower court to find that the reassignment
by the wife to the husband (Ex. B) was executed by defendant freely and voluntarily and
without duress, coercion, undue influence, fraud, personal abuse, threats or force of any kind
or character, rather than that the court intended to find from the evidence the absence of
duress, coercion, undue influence, etc. The learned district judge, having found the existence
of a trust in favor of plaintiff husband, doubtless then applied the theory of the plaintiff as
stated also in plaintiff's proposed additional findings, to the effect that the duress, coercion or
undue influence, even if established, could be disregarded, as the wife, in view of her duty
under the trust, would be deemed to be acting from the standpoint of her duty to return the
property, and not because of the effect upon her of such duress, coercion or undue influence.
The next sentence of the lower court's findings, immediately following the sentence referring
to duress, coercion, etc., above mentioned, so indicates, and is as follows:
That said agreement was executed by reason of the fact that plaintiff's disability to hold
the property therein mentioned had been terminated and that under the terms of the trust
hereinbefore mentioned it was the duty of defendant to reassign said property to plaintiff.
The learned trial judge may have felt further justified in disregarding such element of
duress, coercion and undue influence because, as disclosed by the evidence, the acts of abuse,
demands and physical violence testified to by the wife, if same occurred, took place on the
night before the wife actually signed exhibit B.
If, however, the trial court had not found the existence of a trust in favor of the husband as
beneficiary, but had found the existence of an absolute gift from the husband to the wife,
then, as contended by the wife's attorneys, her rights would have to be determined by entirely
different standards, because as will be pointed out more fully hereinafter, the relation of
husband and wife is one involving the highest trust and confidence. At common law, and
under the rules and principles of equity as evolved by the chancery courts of England during a
very early period in the history of Anglo-Saxon jurisprudence, the husband was classified as
the superior or dominant personality in the relationship of husband and wife, and she as the
weaker, more dependent and more confiding personality. In transactions with his wife,
particularly those whereby he obtained benefits and she suffered detriment, as is the case
where by means of the transaction the husband obtained property belonging to the wife
without adequate consideration, the husband's position was treated as being similar to that of
a guardian in a transaction whereby he obtained the property of his ward, or in which a parent
realized advantages or benefits in transactions concerning his child's property, or in which an
attorney benefited unduly in transactions with a client. Because of the great difference in the
relative positions of such persons, the chancellors presiding in equity courts when the rules
and principles of equity were being formulated and developed, clearly realized the necessity
of the closest scrutiny of such transactions in order to prevent the influence of the one in the
stronger and more predominant position being employed to perpetrate an imposition or an
unjust and inequitable result upon the one in the weaker position.
In the case of Crawford v. Crawford, 24 Nev. 410, 56 P. 94, 96, decided by this court in
1899, under the peculiar situation existing in that case the court found it was unnecessary to
decide whether, by our statute (then Gen.Stats. 517, now sec. 3373, N.C.L.1929, vol. 2), the
legislature intended to adopt the rule of the common law in this class of cases, under which
the husband was recognized as the superior party in the relation of husband and wife. In that
case the husband, under the facts and circumstances therein involved, claimed that the wife
was in the superior position, and that she had taken an unjust advantage of him. And Mr.
Justice Massey, in the opinion, because he wished to determine the husband's contention
entirely on the merits, apparently took the view that a hard and fast holding of strict
adherence to the common law as to the force and effect of that statute, might preclude a fair
determination on the merits of the husband's contention. The learned justice did state,
however, that our statute regulating the domestic affairs in respect to the community
property recognizes the superiority of the husband in this relation.
The common law, particularly as developed and applied under modern conditions
prevailing in the states of the American Union having the common law as the basis of their
jurisprudence, permits the wife to be the superior and dominant factor under facts and
circumstances justifying such characterization. We feel no hesitancy in stating that had Mr.
Justice Massey been writing his opinion now, under conditions generally prevailing, instead
of in 1899, we believe he would have felt entirely justified in declaring that the legislature, by
such statute, intended fully to adopt the common-law rule of the superiority of the husband,
generally, in transactions between spouses. In doing so, he would have recognized that with
the very general emancipation of women, not only as to the rights of citizenship but in many
respects relative to domestic and business affairs and transactions, the common law, under the
more modern conception and development, possesses sufficient flexibility to permit, under
such general rule, the relative positions of husband and wife to be readily
interchangeable, so that the one or the other may be recognized, in a particular
relationship, as the dominant party or as the dependent party, depending upon the actual
facts and circumstances in the particular case.
sufficient flexibility to permit, under such general rule, the relative positions of husband and
wife to be readily interchangeable, so that the one or the other may be recognized, in a
particular relationship, as the dominant party or as the dependent party, depending upon the
actual facts and circumstances in the particular case.
1. Under both common law and equitable standards, in any transaction by the husband
with the wife whereby the husband seeks to obtain the wife's property for himself without
adequate consideration to her, no duress, coercion, undue influence, imposition or
overreaching will be tolerated. Assuming for the moment, in the instant case, that there was
no trust and that the lower court's finding to the effect that there was such a trust was error,
the acts of physical and mental duress, coercion and undue influence, to which the defendant
testified the plaintiff resorted, were sufficient, if sufficiently proved, to vitiate the
reassignment (Ex. B).
2. Furthermore, if it be correctly found that there was no trust, and that the husband was
obtaining, by the reassignment, a 25% greater interest in the income and profits from the
one-third interest in Navigation Instrument Company than the 25% thereof to which the wife
had agreed, in connection with his transfer of all his interest to her by virtue of the original
assignment (Ex. A), and was paying no consideration for the additional 25%, then and in
that event the burden of proof would shift to the husband, and the rule which is applied very
generally by courts possessing equitable powers would be applicable in such situation, and
would require him to prove, affirmatively, that the instrument of reassignment (Ex. B) was
executed without undue influence, and that it was entered into freely and voluntarily, also that
it was well understood by the wife, and was fair and equitable to her. As stated in Pomeroy's
Equity Jurisprudence, vol. 2, third edition, sec. 957, page 1750: The transaction is not
necessarily voidable, it may be valid; but a presumption of its invalidity arises, which can
only be overcome, if at all, by clear evidence of good faith, of full knowledge, and of
independent consent and action."
of good faith, of full knowledge, and of independent consent and action.
The trial court, upon having found that there was a trust, did not apply the equitable
presumption above mentioned, in determining the validity of the reassignment (Ex. B) by
the wife to the husband, nor did the court require him to prove affirmatively, by competent
evidence, the absence of undue influence arising from the very relationship of husband and
wife. To accomplish the required independent consent and action on her part in such a
transaction, she must have independent counsel and advice, which operates to prevent the
unimpeded and natural effect of the dominant influence of the husband. Only then does her
action become free and voluntary and sufficiently understood within the meaning of equity,
and the terms of the transaction must be such as to operate fairly and equitably, in respect to
the wife's interest, and the burden of showing these elements of good faith, which must be
established to remove the presumption of undue influence and invalidity, presumed from the
very relationship itself, is upon the husband.
As a result of the trial in the instant case, the defendant wife was awarded a divorce upon
the grounds of extreme cruelty. Some of the acts of cruelty testified to at the trial were stated
to have occurred on the night before the wife signed exhibit B, which, she alleged, was
executed under duress, coercion, etc., but, as above pointed out, the learned trial judge, while
finding such cruelty to have been proven as a ground for divorce, failed to find that the
reassignment (Ex. B) from the wife to the husband was by reason of it, but he did find,
affirmatively, as before stated, that same was executed because, by reason of the trust, it was
the wife's duty to make such reassignment upon the termination of the husband's disability,
and that such reassignment was executed by defendant freely and voluntarily and without
duress, coercion, undue influence, fraud, personal abuse, threats or force of any kind or
character. If there was not a trust, the husband, in order to be entitled to a finding that
the reassignment {Ex. "B") was "executed freely and voluntarily" must have proved that
the wife was provided by her husband with, or afforded the opportunity for, independent
legal advice, and, as before stated, that the transaction was fair and equitable.
there was not a trust, the husband, in order to be entitled to a finding that the reassignment
(Ex. B) was executed freely and voluntarily must have proved that the wife was provided
by her husband with, or afforded the opportunity for, independent legal advice, and, as before
stated, that the transaction was fair and equitable.
In due time, after the trial had been completed, the wife's attorneys, Messrs. Platt & Sinai,
proposed to the court, and served upon opposing counsel, findings and conclusions
embodying the theory that an absolute gift from the husband to the wife, by virtue of the
original assignment (Ex. A) had been sufficiently proved, and that the reassignment (Ex.
B) from the wife to the husband, because obtained under duress, coercion, etc., and in the
absence of evidence on the part of plaintiff disproving undue influence and establishing the
fairness and good faith of the plaintiff husband in obtaining the reassignment (Ex. B), same
was void. The plaintiff by his attorney, Mr. Belford, duly filed objections to the proposed
findings and conclusions, and a request for additions to and modifications thereof. Such
proposed additions conformed to plaintiff's theory of the existence of a trust, and consequent
validity of the reassignment (Ex. B). Such proposed additions to and modifications of the
findings and conclusions were as follows:
That the assignment bearing date the 1st day of May, 1941, copy of which is attached to
defendant's Answer and Cross-Complaint as Exhibit A' thereto, was made by reason of the
fact that plaintiff, as a then commissioned officer in the United States Navy, was not
permitted to hold an interest in the devices and agreement therein mentioned.
That the property transferred to defendant by said assignment was in fact transferred to
her in trust with the definite understanding by both parties that the same would be reassigned
to plaintiff as soon as he was permitted to own the same.
That the agreement executed on the 21st day of September, 1943, copy of which is
attached to defendant's Answer and Cross-Complaint as Exhibit 'B' thereto, was executed
by defendant freely and voluntarily and without duress, coercion, undue influence, fraud,
personal abuse, threats or force of any kind or character.
September, 1943, copy of which is attached to defendant's Answer and Cross-Complaint as
Exhibit B' thereto, was executed by defendant freely and voluntarily and without duress,
coercion, undue influence, fraud, personal abuse, threats or force of any kind or character.
That said agreement was so executed by reason of the fact that plaintiff's disability to hold the
property therein mentioned had terminated and that under the terms of the trust hereinabove
mentioned it was the duty of defendant to reassign said property to plaintiff.
That under said last mentioned agreement plaintiff received $16,111.40 and $1,021.22 by
checks bearing date the 14th day of October, 1943, and $13,770.23 and $2,065.70 by checks
bearing date the 11th day of August, 1944.
That all said checks were signed by defendant and the two other members of the
partnership doing business as Navigation Instrument Company.
Those additional findings and modifications were duly objected to by the counsel for the
defendant, but the objections were overruled, and such additional findings were adopted by
the court and incorporated in the Finally Engrossed Findings of Fact and Conclusions of
Law.
The defendant wife by her attorney, has appealed to this court from the order denying her
motion for a new trial, made on the following three grounds stated in her notice of intention
to move for a new trial: (1) The insufficiency of the evidence to justify the decision of the
court; (2) That the decision is against the law; (3) Errors in law occurring at the trial and
excepted to by the defendant. Numerous assignments, or specifications, of error to the
findings and conclusions of law by the court below have been interposed by the defendant,
and they will now be considered, and the questions thereby raised determined.
Specifications of error (1) and (2) are, in effect, that: The court erred in holding that the
assignment from the husband to the wife was made on or about May 1st, 1941 in the city
and state of New York and in failing to find that said assignment was made on or about
June 3rd, 1942 in the city of Philadelphia and state of Pennsylvania."
the husband to the wife was made on or about May 1st, 1941 in the city and state of New
York and in failing to find that said assignment was made on or about June 3rd, 1942 in the
city of Philadelphia and state of Pennsylvania.
3. There is no doubt from the evidence that the date May 1, 1941, which the original
assignment (Ex. A) bears was not the date upon which the assignment was executed. Mr.
Rosenberg, in his deposition, testified clearly that the said assignment was dated back, in
order that it might appear to have been made prior to Commander Peardon's entering into the
navy. Commander Peardon did not controvert this. We do not believe, however, the
specifications of error should be sustained. Both in the wife's cross complaint and in the
proposed findings prepared by her attorneys, the date of the original assignment (Ex. A)
was given as May 1, 1941, and, although this was doubtless inadvertent, at least such
statement in the proposed findings, it would not be fair to the lower court to find such error to
be that of the court, when the court, in finding such date, merely followed the pleadings and
the date in the proposed findings as prepared by defendant's attorneys.
Specification of error (3) is in effect, that: The court erred in finding that when the
assignment from the husband to the wife was made, the husband, as a naval officer was not
permitted to hold an interest in the device and agreement therein mentioned.
4-6. The federal statutes mentioned in defendant's briefs, and the orders of the judge
advocate general of the navy and the opinions of the attorney general of the United States,
referred to in said briefs, have been studied by us, and we are of the opinion that Commander
Peardon did not, by reason of his position in the navy, become disqualified to own an interest
in Navigation Instrument Company, provided that, during his period of active naval duty, he
did not participate in any business negotiations or dealings which his company had with the
navy, or any other government agency, either on behalf of his firm or on behalf of the
government.
on behalf of his firm or on behalf of the government. The plaintiff's attorney has raised some
question as to the right of defendant to rely upon, and this court's right to consider, orders and
rulings of the judge advocate of the navy and the opinions of the attorney general of the
United States, unless same had been proven or admitted in evidence at the trial. The law,
however, does not sustain such contention. We believe we have the right to take judicial
notice of the official acts of the head of an executive department or agency of the
government, of general public interest. 20 Am.Jur. sec. 44, p. 67. The foregoing conclusion as
to disqualification is in accord with the opinion of Attorney General Biddle rendered April
23, 1942, in a case of a member of a law firm who had become a naval officer, and which
firm practiced extensively before the United States Patent Office. The plaintiff, in his
testimony, referred to a ruling by the judge advocate handed down in 1940, which, he
believed, disqualified him to hold such an interest. On November 26, 1940, the following
ruling was made by the judge advocate of the navy (CMO 2-1940, p. 209):
If an officer of the Naval Reserve, while on active duty, should contemporaneously be
employed in any capacity by a person or company furnishing naval supplies or war materials
to the Government, naval appropriations would not be available for his pay and such
employment would not be lawful.
7. This ruling is doubtless based on the federal act of June 10, 1896, 29 Stat. 361, making
unlawful employment of a naval officer, while on active duty, by a firm or company
furnishing naval supplies or war materials to the government, and providing that naval
appropriations would not be available for his pay. This ruling and the act of June 10, 1896,
upon which it was based, made employment of such person by such a firm or company
unlawful, and it has been held that holding any position of active management of a firm or
company, even that of president or a director, constitutes "employment" under the act,
and is unlawful.
even that of president or a director, constitutes employment under the act, and is unlawful.
But no ruling or opinion has held, so far as we have been able to ascertain, that a naval officer
cannot continue to hold stock or other interest, in a corporation or partnership, which he
owned prior to entering the naval service, provided he refrains entirely from all activities in
connection with any business his company may have with the government, or any
governmental agency. Commander Peardon could not continue to serve as a director of the
company, but he could lawfully continue to own his interest. We must, therefore, hold
defendant's specification of error (3) well taken, as a matter of law. This does not mean,
however, that this court does not believe that Commander Peardon believed, when he made
the assignment (Ex. A) to his wife, June 3, 1942, that he was not permitted to hold such
interest. He had been advised by Mr. Rosenberg to that effect, also that it was unethical for
him to continue to hold such interest while he was an officer in the navy, and we believe he
was sincere in deciding, for that reason and for an additional reason, to make the assignment
(Ex. A) to Mrs. Peardon. Plaintiff's attorney has ably argued that an assignment made under
such belief would have the same effect as though actually required. This is true, and if the
finding had been that the assignment was made by reason of such belief, rather than by reason
of an actual and legal disqualification, we would not be required to sustain this specification
of error.
We cannot discern, however, how this question of the original and perhaps the primary
motive or reason or purpose of the assignment (Ex. A) is of any great importance upon
what counsel for defendant has called the pivotal question in the case, namely: Was the
transfer of the husband to the wife (Ex. A) an assignment to her in trust, made to her solely
because the husband believed that due to being an officer in the navy he was not permitted to
hold such an interest in a company dealing with the government, and with the intention of
retaining the equitable title in himself, or was it, on the other hand, an absolute gift to
her, regardless of any other reason he may have had for wishing to divest himself of the
ownership, or the appearance of ownership, of such interest?
dealing with the government, and with the intention of retaining the equitable title in himself,
or was it, on the other hand, an absolute gift to her, regardless of any other reason he may
have had for wishing to divest himself of the ownership, or the appearance of ownership, of
such interest? It seems perfectly clear that it would not be unreasonable to conclude, if the
evidence so warranted, that a husband, being impelled by what he conceived to be a legal or
ethical duty to divest himself of ownership in certain property, might readily decide to part
with his ownership fully and completely. Especially would this be likely to be so if the
conveyance or transfer was to be to someone near and dear to him, and to whom he had
reason to feel an obligation of gratitude. Indeed, in the instant case Commander and Mrs.
Peardon had been husband and wife for a long time, about nineteen years, when the
assignment (Ex. A) from him to her was made. They had a married daughter, Patricia. And,
as the testimony of both Commander and Mrs. Rosenberg, in their depositions, disclosed,
Mrs. Peardon had made many sacrifices for her husband, and been subjected to much ill
treatment from him, due to his excessive drinking and ill temper when under the influence of
liquor. And Commander Peardon expressed himself, shortly before the transfer was made, to
the effect that his wife had been a wonderful wife to him, and he wished her to have the
interest in the partnership. A review of the testimony and the correspondence relating to this
transaction, at this point, is essential to a correct determination of whether or not the lower
court erred in the following finding, to which defendant has assigned error:
That the property transferred to defendant by said assignment was in fact transferred to
her in trust with the definite understanding by both parties that the same would be re-assigned
to plaintiff as soon as he was permitted to own the same.
The following is, in substance and effect, a portion of Mrs.
Mrs. Rosenberg's testimony, as same appears in her deposition:
There was an occasion in the summer (the witness did not remember whether it was in
1942), when Mr. Peardon came over to consult about a business matter with Mrs. Peardon.
They were sitting in the terrace garden, and Ros (Commander Peardon) came over with
another man, Mr. Chapman. It was on a Sunday. The witness thought Mrs. Peardon was there,
witness' husband (Commander Julian Rosenberg, an attorney) and herself.
Q. And you were sitting around on your terrace? A. Yes, we were sitting in our terrace
and we had a drink and Ros said Teddy was so wonderful and he was interested in this
Navigation thing and she had been such a wonderful wife and he felt the least he could do
was to give her his share in this Navigation Instrument Co. which I knew of very little except
he said that she stood for so much and had been working and was self-supporting and had
gone without money and he felt he wanted to give this business to her for compensation for
the years she had done without.
It is shown by other portions of the testimony that the Peardons and the Rosenbergs had
been intimate friends for many years, and frequently visited back and forth, and that on
numerous occasions Mrs. Rosenberg had been called in and appealed to, sometimes by Mr.
Peardon, and sometimes by Mrs. Peardon, to try to settle differences which had arisen
because of his bad treatment of his wife, and his ill temper when he had been drinking
intoxicants. Mrs. Rosenberg accomplished reconciliation between them on several such
occasions.
The testimony, in part, of Commander Julian Rosenberg, in his deposition, was, in
substance, as follows:
That witness is a lawyer by profession; that over the course of years he had represented
Commander Peardon in a lot of little things; that he knew Commander Peardon had been
working, for sometime previous to the spring of 1942, on a torpedo protection device.
Sometime in May 1942, he telephoned Mr.
time in May 1942, he telephoned Mr. Rosenberg and said he was coming over with Art
Chapman. Witness thought that before that Commander Peardon had shown witness a draft of
some arrangement which was being made, which had been drawn up by Chapman's lawyer,
and he wanted witness to go over it; and on one Sunday Peardon arranged for Chapman to
come over to Rosenberg's house. It was sometime in May. The persons he remembered being
at his house on that occasion were: Toby (Mrs. Rosenberg), Ros (Commander Peardon),
Teddy (Mrs. Peardon), Art Chapman, and himself. Asked what was said by Commander
Peardon to witness and to Mrs. Rosenberg, in the living room or on the adjoining terrace,
Commander Rosenberg replied:
I know that at that time Ros was in very good humor, and was very enthusiastic about this
invention and he said that he wanted to arrange this thing, he wanted Teddy to have it. He
spoke of the years, the tough years they had and wanted Teddy to have this thing and he
wanted it drawn up right so that she would be protected. There had been a very short
partnership agreement between Laford, Chapman and Ros, where each had one-third. It was
just an agreement. I don't think they had adopted the name of the company at that time and he
wanted tofirst he wanted his one-third assigned to Teddy. He wanted me to take care of the
matter for them. * * * I know finally when Chapman arrived there were some pleasantries and
we sat out in the roof garden and then Chapman and Ros and I went down to the dining room.
That lasted a few hours. There were two contracts to be drawn. One was a partnership
agreement for Teddy, between Teddy, Laford and Art Chapman under the name of the
Navigation Instrument Company and there was another agreement between the Navigation
Instrument Company and the Electro Protective Corporation which was controlled and owned
by Art Chapman.
Q. Did you draw the necessary papers? A. There were several drafts, yes, and they were
ironed out between Art's counsel and myself * * *.
between Art's counsel and myself * * *. I submitted copies of them to Ros for his approval.
There was some correspondence. I forwarded them to Philadelphia. I received several letters
from him (Commander Peardon).
The witness was then shown a paper dated June 1, 1942, and testified he received that
letter. He stated he knew the hand writing of Commander Peardon, and identified the
signature at the end of the letter as Commander Peardon's signature. The said letter was then
offered and admitted in evidence and marked Defendant's Exhibit 1, and is as follows:
United States Navy Yard
Philadelphia, Pa.
Naval Aircraft Factory
June 1, 1942.
Dear Julian.
I have just read over the papers in re Instrument Co. Three things struck me which I will
talk to you about the next time I see you. 1. I see no practical reason why; inasmuch as this co
is simply a holder of Patents & idea and not a manufacturing Co. why it is necessary to not
have all parties sign checks. except when waived because of a trip or some other emergency.
The checking Acct need not be active. a check to cover petty expenses once a month is all
that is required. And where dividends are checked out.
If it is your opinion that it is not ethical for me to be in the business I am willing to abide
by your advise. However I desire to have some understanding with regard to the fundsI am
not contemplating any divorce.I don't know any blonds.I don't like them. But I want
some money for my use without having to ask for it. I certainly think that 30% is as you
agreed and as Ted understood not so asking too much. As a matter of fact, I know no men
who wh would give over as much. When you consider the expenses that I have been put to
since last fall and the hellish time Ive been thru. A little relief xxxxxxxxxxx is not a bad idea.
So please lets understand the idea and if youll fix the business up that way its L.K. with me. I
will see you about it this week end.
It was as always so good to see you both.
Sincerely
Ros.
The witness was then asked if he wrote Commander Peardon a letter in answer to
defendant's exhibit 1, and answered that he did, and was shown a paper dated June 2, 1942,
and asked if that was a carbon copy of that letter, and answered: That's a carbon copy of the
letter I wrote to Ros in answer to the letter, Defendant's Exhibit 1. The said carbon copy of
the letter dated June 2, 1942, was then offered, admitted in evidence and marked Defendant's
Exhibit 2, and is as follows:
June 2, 1942
Lt. Commander Roswell C. Peardon
U.S.Navy Yard
Philadelphia, Penna.
Re: Navigation Instrument Co.
Dear Ros:
Art Chapman called me up and is anxious to get these agreements executed so that we
may go ahead, I received your letter this morning. Frankly I see no reason why another week
should go by without this matter being ironed out. Dealing with your three matters;
(1) The checking account. Paragraph Third provides that the partnership shall designate
the signatories to all checks leaving the matter subject to control. Art is willing that Ted sign
all checks. There is no problem or need for me redraft these agreements for a fourth time
inasmuch as all our points have been incorporated.
(2) I am glad that you are abiding by my advice re Teddy's appearing as the interested
party in dealing with the government. Remember it was you who suggested this in the first
place. I called Ted and it was her recollection that you originally wanted 25% not 30%.
30%. That is also my recollection. I think she will give you a written agreement re the 25%, if
you want it. Again frankly I feel that it would be preferable to have such an adjustment rest
on oral and complete understanding between man and wife. That such a matter should be the
occasion for haggling and bickering passes my comprehension. Why Art should be held up by
internal dissension between you and Ted is another puzzle. Of course the deal is yours and
Ted doesn't come in except in the utterly minor capacity as your wife. There should be no
question of meum and teum. Settle it somehow, I really ought not to figure in so intimate a
matter. Please let us stop bitching' up this matter with irrelevant bed chamber wrangles
which ought not exist. Let us get on with the main business. If there is any substantial
insufficiency in these agreements, I am ready to do them over. But I am justified in not
wanting to fight mere tempermental objections. I want to work for the Navigation Instrument
Co., and do not seek to represent the Metropolitan Opera Company. Straighten this out with
Teddy and execute the assignment. Sometimes I have to kick you in the stern sheets for the
good of your soul.
And so to the head! My best.
The witness then testified that Commander Peardon executed the original assignment (Ex.
A), and sent it back under cover of a note, on the stationary of the Naval Aircraft Factory,
and that it was received by the witness, Mr. Rosenberg. The undated note referred to was
offered, admitted in evidence and marked Defendant's Exhibit 3, and is as follows:
U. S. Navy Yard
Philadelphia, Pa.
Dear Julian:
Enclosed is assignment. You may sign it as a witness. There is no one here to do so.
Sincerely
Ros.
Upon cross-examination by Mr. Smith, Commander Peardon's attorney, Commander
Rosenberg testified, in part, as follows:
Q. Please note the date, it says, New York City, May 1, 1941.' A. I have noted it.
Q. Did you date it? A. I did.
Q. Then, this transaction according to this assignment occurred in 1941? A. It was dated
back.
Q. What was the reason for the dating of it back? A. One of the reasons for dating it back
was the fact that Ros had gone into the Navy and he himself had raised some point as to
whether being in the Navy, whether the thing should be in his name.
Q. As a matter of fact, that was the sole reason, was it not, the original discussion that
you had with him, in respect of an assignment of his interest in this partnership, was his
statement to you that he understood that there was a Navy rule or regulation to the effect that
no naval officer could be engaged in business in any firm that was in any way doing business
with the Navy Department? A. Did you say sole reason? No.
Q. That was one of the reasons? A. It was a consideration.
Q. And it was a very great consideration? A. I would say a consideration.
* * * * * * *
Q. And there isn't any doubt that one of the considerations for the assignment was the fact
that Commander Peardon was made aware of a Navy regulation that might jeopardize his
position with the Navy? A. It was one point that he raised.
Q. And was it your suggestion or someone else's suggestion that the assignment be made
to Rose so as to avoid difficulty with the Navy Department? A. Ros himself suggested that in
part but that wasn't the whole story.
* * * * * * *
Q. And as a result of the meeting that was held at your home at that time, Ros Peardon
conveyed his interest in the partnership of 1940 to Rose and a new partnership known as
the Navigation Instrument Company was set up? A. I wouldn't say immediately as a result
because he left the meeting.
your home at that time, Ros Peardon conveyed his interest in the partnership of 1940 to Rose
and a new partnership known as the Navigation Instrument Company was set up? A. I
wouldn't say immediately as a result because he left the meeting. When he left the meeting it
was understood that he was going to do so but he later raised some objections to doing it.
Q. As a result of all of this transactionA. All the circumstances together lead to that but
I want to be strictly accurate.
* * * * * * *
Q. What did you mean in your letter of June 2, 1942 when you make this statement, I am
glad that you are abiding by my advice re Teddy's appearing as the interested party in dealing
with the government'? A. What did I mean by that? If you take the letter as a whole, what I
meant by the whole thing was this, he himself was the one who spoke about what he wanted
to do for Teddy. In the beginning he approached it in a double-barrelled way. He did raise the
point of the Navy but he also wanted to take care of Teddy. The picture was one, here, the
family had all these stormy troubles and years when Teddy had to work and Pat had to work
and now they had high hopes, Ros was always a man who was going to hit the jackpot and
now that the jackpot was going to come he was going to do something for Teddy and also at
the same time he did raise this point about the Government. Then later he didn't want to go
ahead with the assignment and as you see from the letter, I had more or less to get him to
change his point of view and then he wanted to know how much he was going to get back and
frankly I wanted to get on with the agreement and at that time, as you can see, I was trying to
make peace and hammer them into line, both of them, so I said come across with the
assignment and let us get on with this job.
If, as the trial court found, the property transferred to defendant by said assignment was in
fact transferred to her in trust with the definite understanding by both parties that the
same would be re-assigned to plaintiff," and if the reassignment {Ex. "B") was, as the
court further found, "so executed by reason of the fact that plaintiff's disability to hold
the property therein mentioned had terminated and that under the terms of the trust
hereinabove mentioned it was the duty of the defendant to re-assign said property to
plaintiff, why is there no expression in such instrument mentioning, or at all indicating, a
trust? Said instrument {Ex. "B") was made more than fifteen months after the original
assignment {Ex.
to her in trust with the definite understanding by both parties that the same would be
re-assigned to plaintiff, and if the reassignment (Ex. B) was, as the court further found,
so executed by reason of the fact that plaintiff's disability to hold the property therein
mentioned had terminated and that under the terms of the trust hereinabove mentioned it was
the duty of the defendant to re-assign said property to plaintiff, why is there no expression in
such instrument mentioning, or at all indicating, a trust? Said instrument (Ex. B) was made
more than fifteen months after the original assignment (Ex. A) transferring Peardon's
interest to the defendant wife, and recited that Rose M. Peardon is the owner of certain
shares of stock of the Navigation Instrument Company, Newark, New Jersey, a partnership *
* *. (Italics added.) By the instrument's clear recognition of her ownership, and with no
mention of a trust or of its termination, and its further provision transferring to her husband
one-half of all profits, bonuses, or other distributions derived from the stock of the
Navigation Instrument Company registered in her name, no inference whatever can be drawn
therefrom that Mrs. Peardon was the holder of merely the legal title in trust for her husband.
If same were placed in trust, why not the stock itself, in its entirety, transferred back, for such
stock was the equivalent of the one-third interest Commander Peardon had conveyed to her
by exhibit A, and if in trust and the trust were terminated, he would, of course, have been
entitled to the entire interest which he had placed in trust, or at least to its equivalent? Instead,
the agreement or reassignment (Ex. B) from the wife to the husband, by the effect of its
terms, left Mrs. Peardon still the owner of the legal title to all of the stock, and the equitable
owner of one-half of all profits, bonuses or other distributions derived from the stock. This
instrument did not, in our opinion, change the ownership of the Peardon interest in the
partnership in the slightest, but did add 25% in the profits, bonuses, etc. to the 25% which
the husband was entitled to by reason of the original understanding with his wife,
reached through his correspondence with Mr. Rosenberg, and upon the basis of which he
executed the original assignment {Ex. "A") to her. The instrument {Ex. "B") bearing no
indication of a trust or of its termination, or that it was a reconveyance of trust property
to the husband, and a gift back by him to the wife of one-half of the income and profits, is
corroborative of the clear inferences of Commander Peardon's letter of June 1, 1942
{defendant's Ex. 1), contending for 30% and his execution of the original assignment {Ex.
"A") almost immediately after Mr.
did add 25% in the profits, bonuses, etc. to the 25% which the husband was entitled to by
reason of the original understanding with his wife, reached through his correspondence with
Mr. Rosenberg, and upon the basis of which he executed the original assignment (Ex. A) to
her. The instrument (Ex. B) bearing no indication of a trust or of its termination, or that it
was a reconveyance of trust property to the husband, and a gift back by him to the wife of
one-half of the income and profits, is corroborative of the clear inferences of Commander
Peardon's letter of June 1, 1942 (defendant's Ex. 1), contending for 30% and his execution of
the original assignment (Ex. A) almost immediately after Mr. Rosenberg's letter of June 2,
1942, to him, in reply, insisting that the understanding as to the husband's interest was 25%,
which together point strongly to the conclusion that Commander Peardon then intended to
make an absolute gift to his wife of his entire interest in the partnership, except that he was to
receive from her 25% of the income and profits to be derived from such one-third interest.
And it is also corroborative of the testimony of both Mrs. Rosenberg and Commander
Rosenberg, detailing the statements by Commander Peardon of his intention to transfer the
property to his wife, not only because of what he believed to be the requirements of the navy
rules and regulations, but, also, that in so doing he might make a gift to her because of what
she had done for him and the sacrifices she had made.
Certain expressions in Commander Peardon's letter of June 1, 1942, are significant. These
expressions are:
If it is your opinion that it is not ethical for me to be in the business I am willing to abide
by your advise. However I desire to have some understanding with regard to the fundsI am
not contemplating any divorce.I don't know any blonds.I don't like them. But I want
some money for my use without having to ask for it. I certainly think 30% is as you agreed
and as Ted understood not asking too much. As a matter of fact, I know no men who would
give over as much."
fact, I know no men who would give over as much. (Emphasis added.)
This, reasonably interpreted, means he did not wish to be in the business at all, because, in
Commander Rosenberg's opinion, it was not ethical, but that he did want 30% of the funds, he
didn't think 30% was asking too much, and he knew no men who would give over as much as
he was giving,all in excess of such 30%. In the absence of clear evidence to that effect, no
court would have the right to say that Commander Peardon was merely pretending to get out
of the business; that he was placing the interest in his wife's name merely to appear not to be
in the business, which would have been a fraudulent evasion of the regulations, had they been
as he believed them to be. Restatement of Trusts, sec. 4444, comment d, vol. II, p. 1360.
Equity could not have recognized such a trust, even had the parties intended to establish it.
8, 9. Some consideration will be given to the well-established presumption that a
conveyance or transfer of property to a wife by a husband is intended as an absolute gift to
her, and that such presumption, while a disputable presumption, can be overcome, especially
in courts of equity, only by clear and convincing evidence. The case of Andreas v. Andreas,
84 N.J.Eq. 375, 94 A. 415, a New Jersey equity case, is enlightening upon the question of
whether a particular transaction between husband and wife is a gift or a trust, the effect of the
presumption that it is a gift, and as to what degree of evidence is required to rebut such
presumption. In that case the facts, briefly stated, were:
The husband, Wendell Andreas, owned a tract of land in Bergen County, New Jersey,
purchased by him in 1889, and before his marriage to Hattie Andreas. Several years later, in
1911, the portion of the land in question was conveyed by the husband to a third party, James
A. Van Valen, and by him and his wife conveyed to the defendant. The husband claimed a
trust in his favor. The factual situation in that case, and the actual principles applied therein,
are so similar to the situation in the instant case and to the principles which we feel must
be applied here, that we feel constrained to quote at length from the opinion. On pages
416 and 417 of 94 A., it is stated:
principles applied therein, are so similar to the situation in the instant case and to the
principles which we feel must be applied here, that we feel constrained to quote at length
from the opinion. On pages 416 and 417 of 94 A., it is stated:
The premises in dispute extend along the public highway. The original tract was assessed
to the husband as owner. He says that, in order to reduce the valuation for taxation purposes,
he set apart the portion of it lying along the public highway, and had the same conveyed to his
wife, in order that the whole tract might be assessed thereafter in two plots instead of one,
hoping thereby to effect a reduction in the total ratable value of the whole tract. It is clear that
the husband had some conversation with the tax assessor as to the manner in which, and for
the amount for which the land should be assessed. The year before the conveyance was made
to the wife he succeeded in having the frontage assessed in the name of the wife, although she
did not then own it, separately from the remainder of the tract, which was assessed in his
name. He at that time did not deem it necessary to make a deed, but after some conversation
with the assessor it was thought advisable that the land along the highway should be
conveyed to the wife, and this was done by the deeds above mentioned. At the time of the
conveyance there was no special agreement, either oral or written, by which the wife was
bound to hold the title as trustee for the husband, nor was there any agreement on her part to
reconvey the same to him. His allegation is that in pursuance of an understanding' to that
effect, and without any intention of settlement of the property upon his wife, he proceeded to
have the deeds in question prepared and executed, and he now files his bill to impress upon
the said lands a resulting trust, upon the theory that he, having paid the original purchase
price for the land, and having conveyed the same to his wife without consideration, a trust
results in his favor which it is the duty of this court to recognize and enforce.
It is the well-settled rule in this state that where a husband transfers either real or personal
property to his wife, it will be presumed that the conveyance and transfer were intended to be
by way of voluntary settlement upon her. This, however, is a rebuttable presumption, and the
deed having once been made and delivered by which title is vested in her, the burden of proof
is on him to establish a different result. And it may be said at this point that where there is
conflicting evidence as to a husband's object in making a conveyance of lands to his wife, the
ordinary presumption that it is intended as a provision or settlement for her benefit is not
rebuttable. Linker v. Linker, 32 N.J.Eq. 174. Therefore if on balancing of the testimony it
should be found that the husband has not met the burden of proof, his application to the court
must fail. The proceeding must be judged by what took place at the time of the execution and
delivery of the deeds, and not by circumstances which occurred afterwards. At this point the
evidence of the husband and wife are diametrically opposed. The husband alleges that his
only idea was to save the expenditure of a large sum of money for taxes; that he and his wife
had discussed the matter, and that it was agreed between them that the course which was
subsequently taken should be adopted. The wife says, in relation to that transaction:
He brought a deed home and said, See what I have done for you to-day, and I looked at
it and I said, What is Van Valen's name doing on my deed? and he said, Well in Jersey it
is not legal for a man to deed property directly to his wife, so I had to do it through a third
person, so there would never be any trouble about it, and he said, Now you look it over and
take care of it; you have got me just as much tied up as I have always had Ackerman; you
own the 11 best acres of the farm.'
And she likewise says that on one or two other occasions in conversations between them
the land in dispute was referred to by him as her property.
dispute was referred to by him as her property. I do not see how a resulting trust can arise out
of these circumstances. A resulting trust is entirely inconsistent with the evidence in the case.
A resulting trust is one that arises by implication of law; as, where a man pays the purchase
price of lands and has the deed made in the name of a strangerthere a trust results in favor
of the real purchaseror where a conveyance is made in trust, and trusts are never declared,
or fail to take effect, there and in that case a resulting trust arises, likewise by implication of
law. But I do not find in this case any circumstances which can lead to such a result, even
taking account of the evidence of the complainant only and leaving out of view the evidence
of the defendant. On the one hand is the deed, properly executed, with due observance of all
the forms thrown about such instruments to prevent fraud or imposition; on the other hand is
the husband alleging that he did not mean to convey the property to his wife irrevocably, with
not a scrap of writing to satisfy the somewhat meager requirements of the statute of frauds.
The situation has been illustrated in this state by a long line of cases, only two or three of
which shall be cited. To go no further back than 1882 we find the point much discussed in the
case of Lister v. Lister, 35 N.J.Eq. 49, affirmed on appeal in 37 N.J.Eq. 331, Le Gendre v.
Goodridge, 46 N.J.Eq. 419, 19 A. 543, Fretz v. Roth, in the Court of Errors and Appeals 70
N.J.Eq. 764, 64 A. 152, and in the very recent case of Down v. Down, 80 N.J.Eq. 68, 82 A.
322, where Vice Chancellor Leaming has collected and commented on all the important cases
on the subject in this state.
In my opinion therefore, the conveyances must stand as valid instruments, and are
unassailable on the part of the husband on the grounds laid in the bill.
The defendant claims also that, even though the decision might be against her on the
point of a resulting trust, still the complainant has acted in such a manner toward the
subject-matter of the suit as to preclude him from having any relief.
from having any relief. He testifies that the deeds were made in order to divide the large plot
into two tracts so as to obtain a reduction of taxes. If this is true, or if we consider his
allegations along in relation to it, he must fail in his suit because of the principle laid down in
the case of Slocum v. Wooley, 43 N.J.Eq. 451, 11 A. 264. There the complainant conveyed
lands to his father-in-law, who died possessed of the same, in order that the father-in-law
might oppose the opening of a street through the lands. This he afterwards did successfully,
and there was in evidence his parol promise to reconvey the land to the complainant. That
transaction was held to be void as against public policy, upon the ground that the court will
not aid in enforcement of any contract which has for its object the defeat of a public
enterprise, and that the complainant could not recover the lands from the heirs at law of the
deceased grantee. The case seems to be directly in point.
I will therefore advise a decree dismissing the complainant's bill.
This case was reviewed in the highest court of New Jersey, the court of errors and appeals,
on appeal from the court of chancery, and the chancellor's opinion, above quoted, and the
conclusions reached by him were approved. The opinion of the court of errors and appeals, as
reported in 85 N.J.Eq. 210, 96 A. 39, on page 40, is as follows:
The bill in this case was filed by the husband against his wife to compel her to convey
him a tract of land which originally was owned by him, and which he had deeded to her
through one Van Valen as a conduit. His claim was that the premises were conveyed to the
wife under conditions which created a resulting trust in his favor, and that she refused to
execute that trust. The contention of the wife was that the conveyance was intended to be by
way of a voluntary settlement upon her. The learned Vice Chancellor before whom the case
was heard, after a consideration of all the testimony, concluded that the complainant had
failed to rebut the presumption of a gift in favor of the wife by proof of the convincing
character required in such a case.
presumption of a gift in favor of the wife by proof of the convincing character required in
such a case. We concur in the conclusion thus reached, and are satisfied with the opinion of
the Vice Chancellor upon this point. This being so, we find it unnecessary to consider the
other question discussed by him, namely, whether, if the proofs submitted by the complainant
had been sufficient to establish a resulting trust, his purpose in creating it (to induce the tax
assessor to cut down the assessed valuation of certain lands held by him of which the locus in
quo was a part) was so contrary to public policy as to justify a court of equity in refusing its
aid in enforcing the trust.
The decree appealed from will be affirmed.
In Schouler on Marriage, Divorce, Separation and Domestic Relations (sixth edition),
section 554, page 566, under the paragraph heading, Presumptions; Husband's Gift to Wife,
the following statement occurs:
Where a husband causes title to his land to be taken in his wife's name he is presumed to
intend a gift to her (81), even though his original intent was to defraud creditors (82).
In footnote 81, supporting the long-settled and well-established general rule as to the
presumption of a gift when a husband causes title to be taken in his wife's name, is a vast
collection of authorities, to which we now refer.
Further on in the same section 554, on pages 567, 568, it is stated, in regard to the degree
of evidence required to rebut such presumption, that:
The presumption may be rebutted, and the husband has the burden of proof. The rebuttal
evidence may be oral, and must be clear and convincing. Therefore, if the evidence is
conflicting the presumption prevails. (Emphasis added.)
In support of this statement, the case of Andreas v. Andreas, supra, is cited by Mr.
Schouler. This means, of course, if applied to the instant case, that even if the claim of
Commander Peardon, that his transfer of the partnership interest to his wife was in trust,
had been supported by a preponderance of the evidence, but there was some substantial
evidence in favor of the wife's claim of an absolute gift, still he could not prevail under the
rule, as, in that event, there would be conflict in the evidence, and the evidence would not
be so clear and convincing as to rebut the presumption.
partnership interest to his wife was in trust, had been supported by a preponderance of the
evidence, but there was some substantial evidence in favor of the wife's claim of an absolute
gift, still he could not prevail under the rule, as, in that event, there would be conflict in the
evidence, and the evidence would not be so clear and convincing as to rebut the presumption.
The plaintiff's counsel, in his brief, has pointed out that certain authorities cited by
defendant's counsel related only to cases involving what might be termed typical instances
of resulting trusts. The typical resulting trust, it is true, is one in which the husband pays the
purchase price of land, and causes the conveyance to be made, at the time of the transaction,
directly to his wife, by the vendor. In such a case he has never been vested with the title. But
that a resulting trust may be created, if the parties so intend, even though the facts and
circumstances are different from such typical pattern, is demonstrated by the reasoning in
Andreas v. Andreas, supra, and in many other cases. In the Andreas case, the conveyance was
not by the vendor to the wife at the time the husband purchased the land, but by the husband
himself, indirectly through Van Valen, to his wife, and about twenty-two years after he had
purchased the property. And there is no difference, we believe, in the application of the said
presumption, whether the property be real or personal.
Was there, in the instant case, that clear and convincing evidence of a trust in favor of the
husband, Commander Peardon, which equity requires in order to rebut the presumption that
the transfer to the wife, Mrs. Peardon, absolute in form, was a gift to her of the husband's
one-third interest in Navigation Instrument Company, save and except as to the 25% interest
in the income and profits therefrom, which the wife recognizes to have been agreed and
understood? The following is the only evidence in the record, on the part of the husband, as to
that question. Commander Peardon testified as to that matter as follows: "Q.
Q. During the time that he was acting for you and at the time this agreement was
executed, was it understood by all parties this was simply to comply with Navy regulations?
A. That is it exactly.
Q. And it was given to Mrs. Peardon in trust pending your termination of naval service?
A. Yes.
10. As has hereinbefore been pointed out, it would not negative the fact that an absolute
gift was made to the wife, that there was another reason, legal or ethical, which prompted or
impelled Commander Peardon to divest himself of the interest which he conveyed to his wife.
It is sufficient, and entirely consistent with such primary and perhaps impelling purpose, that
at some time prior to the transfer he decided to make an absolute gift to his wife, and intended
so to do by virtue of the assignment (Ex. A). As has been above stated or implied, it would
have been the honest thing to do, if he believed it unethical and illegal for him to continue to
own the interest in question.
Referring to the first of the above-quoted questions asked Commander Peardon, which
was very leading, and his answer, That is it exactly, he thus stated, in substance and effect,
that during the time he (Mr. Rosenberg) was acting for me and at the time this agreement
was executed it was understood by all parties this was simply to comply with Navy
regulations. (Emphasis added.) By the word simply, doubtless the meaning of solely was
intended by counsel for plaintiff. The words alone, solely and merely are recognized
synonyms of the word simply. (Webster's New International Dictionary, p. 2342.) The
witness, of course, could have applied another recognized meaning to the word simply, and
answered upon that basic understanding. That other meaning is absolutely or without
qualification. It would seem that, in view of the fact that Commander Peardon, in his
testimony, did not take issue with or contradict the testimony of Commander Rosenberg, or
Mrs.
Commander Rosenberg, or Mrs. Rosenberg, in any particular relating to what was said or
written by Commander Peardon in relation to the transfer of his interest to his wife, even
though he carefully studied Commander Rosenberg's testimony during a court recess
overnight, and did question other portions of his testimony, and perhaps doubted Mrs.
Rosenberg's testimony in regard to certain details of alleged acts of cruelty, the
last-mentioned meaning of the word simply, to-wit, absolutely or without qualification,
would be more in conformity to truthfulness. So taken, his statement, That was it exactly,
might well be true, as doubtless all persons understood that Commander Peardon believed he
was conveying the interest in order to comply with what he thought were navy regulations or
ethical requirements. By applying such meaning, the witness' testimony did not at all refute or
negative the idea of a gift to his wife as the result of the method of compliance, with such
believed regulation, finally decided upon by him. And being a conclusion, merely, as to what
others understood, it was clearly incompetent as evidence.
Applying to the word simply the meaning solely or merely, doubtless intended in
asking the question, in order to make it appear that the parties understood there was no other
purpose than to comply with such regulations, and thereby refute the contention that there
was a gift, the answer was merely a conclusion of the witness, and was, therefore, entirely
incompetent as evidence, and entitled to no weight, for two reasons: (1) the witness could
only surmise or speculate as to what the understanding of parties other than himself was;
(2) the conclusion reached to the effect that all parties so understood was a conclusion of
fact, which, in truth, was entirely unjustified, because refuted by the testimony of all those
coming within the scope of the meaning of the words all parties. Certainly, from the
testimony of Commander Rosenberg it could not be concluded that he "understood" there
was a transfer "solely" to comply with navy regulations, and that same was, therefore, a
trust, and not a gift.
testimony of Commander Rosenberg it could not be concluded that he understood there
was a transfer solely to comply with navy regulations, and that same was, therefore, a trust,
and not a gift. Nor could such conclusion be justified by the testimony of either Mrs.
Rosenberg or Mrs. Peardon.
Referring now to the remaining question, above quoted, asked the plaintiff by his attorney,
and his answer thereto, same meant that the witness affirmed the correctness of the statement
embodied in the question, to the effect that the interest of the husband was given to the wife
in trust pending his termination of naval service.
11. This was, purely and entirely, a conclusion of law, and incompetent, for two reasons:
(1) because the overwhelming weight of the evidence refuted such a conclusion, and it was
entirely without factual foundation; (2) for the reason that it was solely for the court to
determine, judicially from the evidence, whether or not the interest conveyed was given or
transferred to Mrs. Peardon in trust.
The incompetency of such a conclusion is elementary in the law of evidence. 20 American
Jurisprudence, sections 771, 772, pages 643-645; 32 Corpus Juris Secundum, Evidence, sec.
453, page 91, also sec. 469, pages 109-111. Reference is made, particularly, to the statement
on page 111, section 469, of the latter text, as follows: One cannot testify that he is the
owner of property where his ownership is the issue of the case. In support of that statement
there is cited, in footnote 1, the following cases: Downs v. Brandon, 49 Ga.App. 198, 174
S.E. 647; Servel v. Corbett, 49 Idaho 536, 290 P. 200. See, also, 22 Corpus Juris, page 534,
section 619, footnote 80; 32 C.J.S., Evidence, sec. 469. In such footnote is the following:
(a) Equitable Title.It is not competent to ask a witness to state where the equitable title
to land is, if he knows. Tillman v. Bomar, 134 Ga. 660, 68 S.E. 504.
To allow Commander Peardon, in the instant case, to state that the property interest was
given by him to Mrs. Peardon in trust, is equivalent to allowing him to state that he is the
owner of the equitable title, and that she is the owner of the legal title. That was permitting
the witness to state a conclusion of law, and also, his conclusion as to the principal matter in
controversy in this case.
If the lower court had disregarded, as incompetent, the above-stated testimony of
Commander Peardon, there was no evidence whatever remaining in the case from which a
conclusion could be drawn that there was a trust, and, by which the presumption of a gift to
Mrs. Peardon could be rebutted. There was not only the clear inference from Commander
Peardon's letter of June 1, 1942, the replying letter by Mr. Rosenberg, and Commander
Peardon's action in executing the assignment (Ex. A), which plainly proved that he was
making an absolute gift to his wife, but there was, also, in the reassignment agreement dated
September 17, 1943 (Ex. B) the recital of her ownership of all the stock representing the
partnership interest, and no mention therein of a trust. In further support of the wife's position
in this case, we have the presumption that an absolute gift was made to Mrs. Peardon by her
husband, which has already been pointed out herein, and which has not been rebutted by any
competent evidence whatever.
12. Under the equitable rule as to such presumption, as such rule has been elucidated and
explained in many authorities, and concerning which we have no doubt, if there had been a
conflict in the evidence on the point in question, such conflict would not be sufficient to deny
the gift unless the evidence of a trust was clear and convincing. But in the absence of
substantial evidence on behalf of the husband in support of a trust, and when there is no
competent evidence at all in support of such trust theory, or in refutation of the proposition
that by such transfer or assignment {Ex. "A") an absolute gift was made by the husband to
the wife, save and except that it was understood she was to pay to him from time to time,
as she received same, 25% of the income and profits from the partnership interest, the
finding by the court to the effect that the transfer from the husband to the wife, by said
assignment, was "in trust, with the definite understanding by both parties that the same
would be re-assigned to plaintiff as soon as he was permitted to own the same,"
constituted error as to a matter of law.
It follows from the foregoing treatment of the subject of whether or not there was a gift
to the wife from the husband by virtue of the assignment {Ex. "A") and the conclusion,
which, after the most careful consideration, we have been constrained to reach, that the
lower court's failure to find that said assignment was an absolute gift to the wife for her
benefit, subject only to the agreement to pay to the husband 25% of her net income from
the partnership and the husband's right of succession to her interest should she die
during the term of the partnership, also constituted error as to a matter of law.
such transfer or assignment (Ex. A) an absolute gift was made by the husband to the wife,
save and except that it was understood she was to pay to him from time to time, as she
received same, 25% of the income and profits from the partnership interest, the finding by the
court to the effect that the transfer from the husband to the wife, by said assignment, was in
trust, with the definite understanding by both parties that the same would be re-assigned to
plaintiff as soon as he was permitted to own the same, constituted error as to a matter of law.
It follows from the foregoing treatment of the subject of whether or not there was a gift to
the wife from the husband by virtue of the assignment (Ex. A) and the conclusion, which,
after the most careful consideration, we have been constrained to reach, that the lower court's
failure to find that said assignment was an absolute gift to the wife for her benefit, subject
only to the agreement to pay to the husband 25% of her net income from the partnership and
the husband's right of succession to her interest should she die during the term of the
partnership, also constituted error as to a matter of law. In the second sentence of the fourth
subparagraph of paragraph V of the court's findings of fact, on page 3 thereof, occurs the
following:
That said agreement was so executed by reason of the fact that plaintiff's disability to
hold the property therein mentioned had terminated and that under the terms of the trust
hereinabove mentioned it was the duty of the defendant to reassign said property to plaintiff.
This finding is erroneous as to matters of law, in two particulars:
1. We are convinced, from a careful study of the federal statutes and of the orders and
rulings of the judge advocate of the navy, and of the opinions of the attorney general of the
United States, that: (a) there was no disability, at the time the assignment (Ex. A) from the
husband to the wife was made, depriving him of his right to own and hold his interest in the
partnership, hence there could be no termination of such nonexistent disability; {b) neither
was there any change in the applicable laws, rules or regulations between June 3, 1942,
the date of the original assignment {Ex. "A"), and the reassignment, or agreement, of
September 21, 1943 {Ex.
hence there could be no termination of such nonexistent disability; (b) neither was there any
change in the applicable laws, rules or regulations between June 3, 1942, the date of the
original assignment (Ex. A), and the reassignment, or agreement, of September 21, 1943
(Ex. B).
2. In view of our holding that there was no trust relationship created by, or in connection
with, the transfer or assignment made June 3, 1942 (Ex. A), by Commander Peardon to
Mrs. Peardon, we find that it did not become the duty of defendant to reassign said property
to the plaintiff under the terms of any trust.
From the foregoing treatment herein of the nature and effect of the transaction which
culminated in and was evidenced by the assignment by the husband to the wife of his interest
in the partnership, with the exceptions above mentioned, and the conclusion we have reached
that the transaction resulted in an absolute gift of such interest to the wife, with the
exceptions hereinbefore pointed out, and that there was no transfer in trust, as claimed by the
husband, it necessarily follows that defendant wife's specifications of errors numbered (5),
(6), (7) and (8) have merit and were well taken.
As previously pointed out, we do believe that the trial court meant to find that in fact there
was no duress, coercion, undue influence, fraud, personal abuse, threats or any force of any
kind or character employed by the husband toward the wife, or inflicted upon her on the
night before she executed the reassignment or agreement which was executed on the 21st day
of September 1943 (Ex. B). Having upheld the theory and plaintiff's contention of the
creation of a trust, in the husband's favor, by the assignment made June 3, 1942 (Ex. A), the
trial court concluded, in effect that the said reassignment was actuated or induced by reason
of the consciousness of the wife of her duty to reassign upon the termination of the trust, and
that, therefore, the same was not executed by reason of duress, coercion, etc., but was
executed by the wife freely and voluntarily,that such duress, coercion, etc., if any there
were, might be disregarded, as the wife was giving up only what belonged to the husband
by reason of the trust; at least, that is our impression of the lower court's reasoning upon
that phase of the case.
But be that as it may, the language of the learned district judge in the fourth
subparagraph of paragraph V of the findings of fact, on page 3 {of our copy), may be
construed as finding that duress, coercion, undue influence, fraud, personal abuse,
threats or force of any kind or character on the part of the husband toward the wife in
connection with or shortly prior to the execution of said agreement or reassignment {Ex.
"B") were entirely absentnot merely that they did not materially operate to bring about
the result.
that such duress, coercion, etc., if any there were, might be disregarded, as the wife was
giving up only what belonged to the husband by reason of the trust; at least, that is our
impression of the lower court's reasoning upon that phase of the case.
But be that as it may, the language of the learned district judge in the fourth subparagraph
of paragraph V of the findings of fact, on page 3 (of our copy), may be construed as finding
that duress, coercion, undue influence, fraud, personal abuse, threats or force of any kind or
character on the part of the husband toward the wife in connection with or shortly prior to the
execution of said agreement or reassignment (Ex. B) were entirely absentnot merely that
they did not materially operate to bring about the result. We believe, therefore, that it is our
duty to determine the matter definitely.
The defendant, Rose Peardon, testified in considerable detail as to what occurred on the
evening, or night, of September 20, 1943, the date immediately prior to the execution of the
agreement. She testified, among other things, to the effect that her husband demanded of her
that she return the interest in Navigation Instrument Company, which he had previously given
her; that the defendant was sitting on a couch, and that the plaintiff stood over her loudly and
harshly repeating his demand, shouting at and abusing her, and, when she attempted to get up,
pushed her down hard and spat in her face; that this course of conduct continued for hours,
and that the defendant, tired, aching and exhausted, and fearing for her safety, agreed to turn
over a half interest to him and to sign the agreement, which she did do on the following day.
She testified further, in effect, that the agreement was not signed by her freely and
voluntarily, but much against her independent consent, will and volition, and that it was
signed by her because and as the result of duress, coercion, undue influence, personal abuse,
threats and force inflicted upon her by plaintiff.
The following is the husband's only testimony in refutation of the wife's testimony in detail
as to the duress, coercion, undue influence and mistreatment of her by her husband shortly
prior to the execution of the said agreement or reassignment {Ex. "B"). His attorney asked
him: "You heard the testimony of Mrs. Peardon as to the incidents immediately preceding
the signing of the agreement as to your treatment of her, duress, and so forth and so on;
is that true?"; and he answered as follows: "That is not true."
coercion, undue influence and mistreatment of her by her husband shortly prior to the
execution of the said agreement or reassignment (Ex. B). His attorney asked him: You
heard the testimony of Mrs. Peardon as to the incidents immediately preceding the signing of
the agreement as to your treatment of her, duress, and so forth and so on; is that true?; and
he answered as follows: That is not true. He does not refer to any alleged fact in her
testimony, and meet it with any fact showing that the true fact is different from that she has
stated; in other words, he does not meet fact with fact, but with mere general denial, or
assertion of untruth. Furthermore, the answer is entirely too ambiguous, vague and uncertain
to have any evidential value. It may mean either that all of her testimony concerning his
treatment of her, duress, etc. and so on is untrue, or that a substantial portion of it is untrue,
or that there is at least some difference as to a few of the details as to certain incidents or
occurrences; that same, as impressed upon his memory are somewhat different from
defendant's remembrance and narrative of same.
It will be noted that Mr. Belford's said question addressed to Commander Peardon was
directed to the testimony of Mrs. Peardon as to the incidents immediately preceding the
signing of the agreement. Manifestly, this referred to all of her testimony as to each and all
of such incidents. Commander Peardon's general negative answer, that is not true, does not
reach any specific portion of such testimony. She had testified, among other things, that he
demanded that she sign the paper reassigning to him the interest in Navigation Instrument
Company which he had previously given her, that the defendant was sitting on a couch and
that the plaintiff stood over her loudly and harshly repeating his demand, shouting at and
abusing her, and that when she attempted to get up, pushed her down hard and spat upon her.
Can it be said that when the plaintiff answered his attorney's very broad and general question
referring to her entire testimony, his answer being, that is not true," that the witness meant
by such answer to deny, for instance, that he had demanded that she sign the paper?
true, that the witness meant by such answer to deny, for instance, that he had demanded that
she sign the paper? Obviously, it cannot be so concluded; nor even can it be said with any
certainty that he meant to say her testimony as to such demand was untrue. The same may be
said as to her testimony as to each of the other incidents.
Without being amenable to perjury, the husband could deny, as he did do, her testimony
taken as a whole, if his memory as to a single one of such incidents was not essentially the
same as hers, or even if, through faulty memory, he did not remember all the details of one or
more of the incidents to be precisely as she had stated in her testimony.
13. This sort of nonspecific denial is valueless as evidence, for reasons similar to the rule
of pleading which holds pleading by way of a negative pregnant objectionable because
ambiguous and uncertain. For instance, if a plaintiff alleged that plaintiff and defendant
intermarried on November 10, 1947, at Philadelphia, Pennsylvania, and defendant merely
denies the allegation generally, it cannot be determined whether he does so merely because he
deems the date or the place erroneously alleged, or he means to deny that any marriage at all
occurred. When these facts are alleged conjunctively, the defendant, in answering, if, for
instance, merely the wrong date was alleged, could truthfully deny the entire allegation that
they intermarried November 10, 1947, at Philadelphia, Pennsylvania, because they did not
intermarry at Philadelphia on the date alleged. Such a denial, without reaching specifically
any fact alleged, is considered so fraught or pregnant with the admission of the existence of
the facts not actually intended to be denied, that it is called negative pregnant.
14. Upon similar reasoning, the statement in evidence of Commander Peardon, referring
to his wife's testimony as to the incidents immediately preceding the signing of the
agreement as to his treatment of her, duress, etc., "and so forth and so on," is fraught
with admissions that his wife's testimony is essentially true, or he would have denied
same specifically as to the facts which did not occur, and would not have contented
himself with a negative statement merely asserting the untruthfulness of her testimony.
As such negative statement on the husband's part may and should, in the absence of any
specific statement by him, be deemed to refer only to Mrs. Peardon's description or
narrative of the incidents in her testimony, and not to any essential facts such testimony
cannot be deemed substantial evidence, in support of the finding of the lower court as to
the absence of duress, coercion, etc., if that court intended the finding in question to go to
that extent. Nor was such mere general assertion by the husband of the untruthfulness of
the wife's testimony as to the incidents of duress, etc., sufficient to create any conflict in
the evidence.
etc., and so forth and so on, is fraught with admissions that his wife's testimony is
essentially true, or he would have denied same specifically as to the facts which did not
occur, and would not have contented himself with a negative statement merely asserting the
untruthfulness of her testimony. As such negative statement on the husband's part may and
should, in the absence of any specific statement by him, be deemed to refer only to Mrs.
Peardon's description or narrative of the incidents in her testimony, and not to any essential
facts such testimony cannot be deemed substantial evidence, in support of the finding of the
lower court as to the absence of duress, coercion, etc., if that court intended the finding in
question to go to that extent. Nor was such mere general assertion by the husband of the
untruthfulness of the wife's testimony as to the incidents of duress, etc., sufficient to create
any conflict in the evidence.
15. As to the correct meaning of the term substantial evidence, see vol. 40, Words and
Phrases, perm., ed., pages 499-501, and cases cited therein. In Minahan v. Grand Truck
Western Ry. Co., 6 Cir., 138 F. 37, 46, Judge Severns indicated what is meant by substantial
evidence, in these words:
Something of substance and relevant consequence, and not vague, uncertain, or irrelevant
matter not carrying the quality of proof' or having fitness to induce conviction.
See, particularly, Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739, 752; Morton v.
Mooney, 97 Mont. 1, 33 P.2d 262; Wentworth v. Baker, 101 Mont. 226, 53 P.2d 440; State v.
Gregory, 339 Mo. 133, 96 S.W.2d 47, 51, 52; In re Koprowski, 48 Wyo. 334, 46 P.2d 61, 64;
Thompson v. Virginia Mason Hospital, 152 Wash. 297, 277 P. 691, 692; Grand Trunk R. Co.
of Canada v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485.
The foregoing authorities, and reason, compel the conclusion that the lower court's finding
that the agreement or reassignment {Ex. "B") was executed freely and voluntarily and
without duress, coercion, etc.,
or reassignment (Ex. B) was executed freely and voluntarily and without duress, coercion,
etc., constituted error as a matter of law, there being no substantial evidence to support it.
16-19. The said finding of the trial court was also erroneous in other respects. There could
properly be no finding that the wife's assignment to the husband of one-half of her right, title
and interest to the income, profits and distribution of the one-third interest in Navigation
Instrument Company, which had previously been assigned to her by the husband, was freely
and voluntarily made and without undue influence, without any effort on the part of the
husband, or any evidence offered by him, to prove affirmatively the absence of undue
influence, and that the wife's act was free and voluntary. As has been hereinbefore stated, in a
transaction between husband and wife whereby she conveyed to him her property without
consideration, and it is not shown that he is not the dominant, superior personality in
influence and power, the burden of proof shifts, and, by a long-settled equitable doctrine, the
burden is placed upon the husband to prove the voluntary character of the wife's act in parting
with her property. As Mr. Pomeroy has stated, in section 951, on pp. 1734-1739, of vol. 2,
third edition, Pomeroy's Equity Jurisprudence:
Where there is no coercion amounting to duress, but a transaction is the result of a moral,
social, or domestic force exerted upon a party, controlling the free action of his will and
preventing any true consent, equity may relieve against the transaction, on the ground of
undue influence, even though there may be no invalidity at law. In the vast majority of
instances, undue influence naturally has a field to work upon in the condition or
circumstances of the person influenced, which render him peculiarly susceptible and
yielding,his dependent or fiduciary relation toward the one exerting the influence, his
mental or physical weakness, his pecuniary necessities, his ignorance, lack of advice, and the
like.
like. All these circumstances, however, are incidental, and not essential. Where an antecedent
fiduciary relation exists, a court of equity will presume confidence placed and influence
exerted; where there is no such fiduciary relation, the confidence and influence must be
proved by satisfactory extrinsic evidence; the rules of equity and the remedies which it
bestows are exactly the same in each of these two cases. The doctrine of equity concerning
undue influence is very broad, and is based upon principles of the highest morality. It reaches
every case, and grants relief where influence is acquired and abused, or where confidence is
reposed and betrayed.' It is specially active and searching in dealing with gifts, but is applied,
when necessary, to conveyances, contracts executory and executed, and wills.
The application of the doctrine to transactions between husbands and wives is stated in
section 963, page 1781, of the same volume, and numerous authorities are cited in footnote
5(e).
In Harraway v. Harraway, 136 Ala. 499, 34 So. 836, it is stated in the syllabus:
1. In action to set aside for undue influence a deed from complainant to her deceased
husband for a recited consideration of $1, it appeared that it was prepared by him and
executed by her at his request and in his presence, and the evidence tended strongly to show
that she executed it only after much pressure. It also appeared that he had managed her
financial interests and had been her agent for many years, standing in that relation at the date
of the deed. Held not to show that the conveyance was fair and equitable, or that it was
executed by complainant of her own volition, free from the influence of her husband and
agent.
* * * * * * *
5. The burden of showing that an exchange of land between a husband and wife on a suit
by the wife to set it aside, was just, fair, and equitable, was on defendants.
Because of the presumption arising from the very relationship itself and the superior
position of the husband as to the ability to exercise undue influence to bring about a property
advantage to himself, equity requires that in a property transaction between husband and wife,
in order to assure the free exercise of the wife's will and consent and the voluntary character
of her act, she must be provided with independent legal counsel and advice in relation to the
advisability and the fairness to her of the transaction. Reference is now made to a Missouri
case, Sims v. Sims, 101 Mo.App. 407, 74 S.W. 449, on pages 451 and 452, dealing
extensively with these equitable principles, and in which quotations from Story's Equity
Jurisprudence, section 251, and from 2 Pomeroy's Equity Jurisprudence, section 951, appear.
Also, on said page 452, of 74 S.W., apt quotation is made from Farmer's Executor v. Farmer,
39 N.J.Eq. 211, where it was said:
A wife may bestow her property, by gift, on her husband or she may make a contract with
him which will be upheld in equity, but the courts always examine such transactions with an
anxious watchfulness and dread of undue influence. (Emphasis added.)
It is further said in the opinion in Farmer's Executor v. Farmer, supra:
Where a contract is made by parties holding confidential relations * * * the burden, if the
contract is assailed, rests on the stronger party to show that no advantage was taken,
otherwise fraud will be presumed.
See, also, Cheuvront v. Cheuvront et al., 54 W.Va. 171, 46 S.E. 233.
The reasoning and excellent presentation and explanation of these equitable principles, by
the Supreme Court of Pennsylvania in Lochinger v. Hanlon, 1943, 348 Pa. 29, 33 A.2d 1,
cited in defendant's brief and extensively quoted therein, is very impressive. Also, the
extensive collection of authorities in the opinion in that case is valuable. Counsel for plaintiff,
in plaintiff's (respondent's) brief in the instant case, have cautioned against engrafting the
law of Pennsylvania upon the laws of Nevada.
against engrafting the law of Pennsylvania upon the laws of Nevada. Whilst our law and
equity in this state, due to our youthfulness as a state, has not found so frequent and elaborate
expression as that of Pennsylvania, we entertain no doubt that the equitable principles so ably
expounded in Lochinger v. Hanlon, supra, and in many other authorities of Pennsylvania and
of other common law states are the same as those of Nevada, or vice versa. Also, the opinion
in the Delaware Chancery case of Peyton v. Willman C. Peyton Corporation, 23 Del.Ch. 321,
322, 7 A.2d 737, 123 A.L.R. 1482, is able and impressive.
In the instant case, Commander Peardon, as before stated, did nothing to remove or rebut
the presumption of undue influence or invalidity which equity attaches to the transaction
which resulted in the agreement or assignment executed September 21, 1943 (Ex. B) by
Mrs. Peardon. The said instrument, the evidence discloses, was drawn by Commander Bond,
a lawyer and associate of Commander Peardon in the naval service, and there was no
consultation between the wife and Commander Bond prior to the execution of the instrument.
The wife was furnished no attorney to advise her as to the transaction, nor was it even
suggested to her that she take time and procure the services of an attorney, and his counsel
and advice. In the absence of this, the presumption of undue influence and invalidity was not
overcome or rebutted, and the trial court erred as to a matter of law in its finding that the
execution was free and voluntary and without undue influence, entirely irrespective of
whether or not there was, as a matter of actual fact, duress, coercion or undue influence on the
part of the husband. Doubtless, the learned trial judge's conception and finding that a trust
existed in favor of the husband accounts for his failure to take into consideration and apply
these equitable principles which have existed since the early dawn of Anglo-Saxon
jurisprudence.
The remaining equitable requirement as to such a transaction between husband and
wife, which we shall discuss in this opinion, is: Was the agreement or reassignment dated
September 21, 1943, {Ex. "B") fair and equitable to Mrs.
transaction between husband and wife, which we shall discuss in this opinion, is: Was the
agreement or reassignment dated September 21, 1943, (Ex. B) fair and equitable to Mrs.
Peardon? To determine that question properly, we must take into consideration how the
agreement has operated and what, in actual practice and application, has been its result or
effect. It has been noted above that although Commander Peardon, upon the trial and in his
brief, has claimed and urged the existence of a trust as the result of the transaction
culminating in the original assignment from him to his wife, he did not assert any such theory
or contention, nor cause Commander Bond to do so, in shaping the transaction resulting in the
reassignment from Mrs. Peardon to him (Ex. B), nor in the said instrument itself. As has
been pointed out, that instrument acknowledged her ownership of all the stock (as the
partnership interest was described in the said instrument), and left her still owning the same.
Indeed, it would have, most likely, worked out better for her had the instrument provided for
a transfer of one-half of the stock, or of the partnership interest which it represented and
which was the source of the income and profits, instead of the provision, which the
instrument did contain, for the assignment or transfer of one-half of all profits, bonuses or
other distributions derived from the stock of the Navigation Instrument Company registered
in her name; for the Internal Revenue Department, in determining the income tax liability of
Mrs. Peardon and Commander Peardon, respectively, found, in effect, that for the reason that
she was the owner of the entire one-third partnership interest from which all their income and
profits were derived, she was liable for the entire tax, and he was not liable for any of it.
Whether or not Commander Bond or Commander Peardon anticipated just such a result by
reason of the provisions of the agreement or reassignment (Ex. B) we cannot know from
the record; but the result has been that Commander Peardon, for the taxable years 1942-1946
has received, or there is distributable to him, under the present judgment, after deduction
of $15,000 established by the lower court to reimburse the wife for taxes for which she
was liable upon the husband's interest, the total sum of $79,490.S3.
there is distributable to him, under the present judgment, after deduction of $15,000
established by the lower court to reimburse the wife for taxes for which she was liable upon
the husband's interest, the total sum of $79,490.83. This amount is entirely tax-free income to
him. For the same period of time, the wife has received no tax-free income, but on the
contrary, after applying all the income she has received from her interest in Navigation
Instrument Company to taxes, has suffered a deficit in the amount of $1,397.10. The
computations from which these figures were taken were made, according to the affidavit of
Robert P. Weil, Esq. (filed in support of defendant's motion to amend her notice of intention
to move for a new trial and for an order vacating, annulling and setting aside the order
theretofore made denying her motion for a new trial) by Peat, Marwick & Mitchell Company,
accountants, and their correctness has not been assailed by the plaintiff. The trial court, in that
court's judgment and decree filed August 1, 1946, did provide that the plaintiff and the
defendant should each pay all taxes, federal, state and local, on their respective one-half
share interest in Navigation Instrument Company, a partnership, and did provide further as
follows: that out of the moneys now owing to or to become due Roswell C. Peardon from
said partnership, the sum of Fifteen Thousand ($15,000) Dollars will be withheld to cover any
possible taxes that may be paid by or assessed against Rose M. Peardon on the interest of
Roswell C. Peardon; that Roswell C. Peardon will not draw, or attempt to draw, any part of
said Fifteen Thousand ($15,000.00) Dollars until such time as the tax liability of said parties
is finally settled and adjudicated. Such sum of $15,000 has been far insufficient, for, as
shown by the computation of said accountants and stated in the said affidavit of Mr. Weil, the
total of the amounts of taxes that are chargeable to Mrs. Peardon upon income, profits, or
distributions to Mr. Peardon realized by him from one-half of the said one-third partnership
interest in Navigation Instrument Company is the sum of $57,097.5S.
said one-third partnership interest in Navigation Instrument Company is the sum of
$57,097.58. The computations are part of the record on appeal in case No. 3529, now pending
in this court.
The evidence in the instant case discloses that on or about October 14, 1943, and less than
one month after the wife made the reassignment (Ex. B), she obtained checks from
Navigation Instrument Company for her husband's one-half (according to the reassignment)
and her one-half of the distribution then due, and called to see Commander Peardon at the
officer's club in Philadelphia. The checks required Mrs. Peardon's signature as a director, and
before signing and delivering Commander Peardon's checks she tried to prevail upon him to
make some provision for his share of the income taxes, for which she had been advised she
would be liable. The evidence discloses that Commander Peardon, who had been drinking,
treated his wife most cruelly and shamefully upon that occasion. They started to drive home,
and, on Broad Street in Philadelphia, a busy thoroughfare, he threw her handbag, containing
the checks, into the street. She asked him to stop, and as she was getting out of the car he
placed his foot upon the accelerator and started the car suddenly, which caused her to fall into
the street. After she recovered the handbag containing the checks and started walking, he
drove alongside, had her get in the car, and drove her home. That night she called
Commander Bond to obtain advice as to the taxes, and he informed her it was his opinion that
Commander Peardon would be liable for one-half the taxes, but this was later proved to be
erroneous advice, for when Attorney Smith, Bond's former law partner, prepared the returns
for both the husband and the wife, and the taxes for each were remitted, Mrs. Peardon was
notified by the Internal Revenue Department of a deficiency which she must pay, because of
being liable for the entire tax upon the said partnership interest, and was ordered to return to
Commander Peardon the amount of the taxes that his attorney had remitted on account of the
one-half interest he had received from the net income, profits and distributions by virtue
of such agreement and reassignment {Ex. "B") made by Mrs.
ted on account of the one-half interest he had received from the net income, profits and
distributions by virtue of such agreement and reassignment (Ex. B) made by Mrs. Peardon
to him on September 21, 1943.
20. It is clear, therefore, from the facts, that in its practical operation and effect the said
agreement or reassignment (Ex. B) has not been fair and equitable to the wife; hence, in
that respect, as well as in his failure to remove the presumption of undue influence and to
show that it was freely and voluntarily entered into, after independent legal advice, and was
well understood by the wife, the plaintiff failed to overcome or rebut, as to such transaction
and instrument, the presumption of invalidity. It is our conclusion, after most careful
consideration, that the validity of the said instrument was not established as required by the
law and by equity, and that the trial court's failure to find said agreement and reassignment
void under the existing facts and circumstances constituted error as to a matter of law.
From the foregoing discussion and conclusions we have reached, it follows that
assignments or specifications of error (9) and (10) have merit and are well taken.
As to specification of error (11), we are of the opinion that whether or not, in granting the
divorce for the husband's extreme cruelty, the wife should have been awarded all of the
interest of the husband in Navigation Instrument Company (as her attorney contends) was
entirely within the discretion of the trial judge, and we do not deem it incumbent upon us to
interfere with the exercise of that discretion.
By reason of the errors of the lower court in the matters of law hereinbefore set forth, we
are compelled, in order that justice and equity may prevail as to the rights and obligations of
these parties, to reverse the order denying the defendant's motion for a new trial. It is hereby
ordered, therefore, that said order made and entered October 8, 1946, in the Second judicial
district court of the State of Nevada, in and for the county of Washoe, department 1, denying
defendant's motion for a new trial be, and is hereby reversed, and the cause ordered
remanded for further proceedings.
a new trial be, and is hereby reversed, and the cause ordered remanded for further
proceedings. We see no good reason to subject the parties to the burden and expense of a new
trial. In lieu of a new trial, it is ordered that further proceedings be had in the court below,
sufficient and suitable to carry out the findings and conclusions reached by us and decided
herein. To that end, the lower court's findings of fact and conclusions of law, dated August 1,
1946, should be modified as follows:
Commencing with the phrase, that the assignment bearing date the 1st day of May 1941,
same being line 5, page 3, of said findings, as appears upon the copy thereof in the record on
appeal, said phrase and all the remainder of said page 3 and all of page 4, to the end of the
findings and conclusions of the said court, should be stricken, and there be substituted
therefor paragraph V (except the first sentence or clause thereof, commencing with the
phrase, that on or about the 1st day of May 1941, in the City and State of New York, and
ending with the name Herbert M. Laford, which is already in the court's findings), and
paragraph VI of the defendant's proposed findings of fact, and, also, all of defendant's
proposed conclusions of law, both contained in the document entitled Proposed Findings of
Fact and Conclusions of Law, filed in the district court December 20, 1945. There should be
included, also, further findings and conclusions suitable to require the repayment by the
plaintiff to the defendant of all distributive amounts which shall be proved to have been
received from Navigation Instrument Company representing income or profits derived from
any portion of the one-third partnership interest originally held by him, in excess of 25% of
such income, profits and distributions derived from such one-third partnership interest in
Navigation Instrument Company, and such amounts should be ascertained in said further
proceedings, and, if proved, included in the judgment. Also, the defendant should recover
judgment for such amounts as the proof establishes she has been required to pay in taxes,
federal, state and local, by reason of, or upon, such 25% interest of the plaintiff.
lishes she has been required to pay in taxes, federal, state and local, by reason of, or upon,
such 25% interest of the plaintiff.
Upon such further proceedings, suitable provision should also be made, if practicable, to
require or authorize the deduction from the plaintiff's share of income, profits and
distributions hereafter derived from such partnership interest, before same are paid to him, his
proper portion of the taxes thereon.
____________
ROSE M. PEARDON, Appellant, v. ROSWELL
C. PEARDON, Respondent
No. 3529
December 22, 1948. 201 P.2d 337.
Appeal and Error.
Where supreme court determined that an assignment without consideration by wife to husband of part
of income from a partnership interest previously assigned by husband to wife was invalid, and provided
for readjustments as to distribution of income to husband and wife, and of income taxes which wife had
been required to pay because she had been the owner of entire interest, questions of law involved on
appeal from order denying wife's motion for leave to file amended notice of intention to move for a new
trial by including additional ground of newly discovered evidence relative to great disparity between
taxes paid by husband and wife, and from order denying motion for order vacating order denying order
for a new trial, became moot, and would not be decided.
Divorce action by Roswell C. Peardon against Rose M. Peardon, wherein defendant
cross-complained. From an order denying defendant's motion for leave to file an amended
notice of intention to move for a new trial, and denying motion for an order vacating order
denying motion for a new trial, defendant appeals. Judgment in accordance with opinion.
Samuel Platt, of Reno, for Appellant.
Brown & Belford, of Reno, for Respondent.
OPINION
This appeal is from the special order made after judgment and entered in the minutes of
the Second judicial district court of the State of Nevada, in and for the county of Washoe,
department 1, on July 31, 1947, denying defendant's motion for leave to file an amended
notice of intention to move for a new trial, by including the additional ground of newly
discovered evidence, and her motion for an order vacating and setting aside the order denying
the motion for a new trial. The motion for a new trial was heard by the district court on
August 8, 1946, and denied on October 8, 1946. The above-mentioned motion for leave to
file an amended notice of intention to move for a new trial was filed on December 31, 1946.
In support of such motion for leave to amend on the ground of newly discovered evidence,
certain facts and circumstances are stated in detail in the affidavit of Robert P. Weil, Esq.,
and in the affidavit of Rose M. Peardon, the defendant and appellant, which disclose that at
the time of the hearing of the motion for a new trial, on August 8, 1946, and at the time same
was denied, on October 8, 1946, the figures showing the great disparity existing between the
amount of taxes Mrs. Peardon had paid and would have to pay on account of Commander
Peardon's interest, and the amount of $15,000, which, by the court's decree, Commander
Peardon had been required to pay for that purpose, had not become available to Mrs. Peardon.
Two reasons are shown by Mr. Weil's affidavit for the unavailability until a later time of the
necessary computations:
1. The proceedings in renegotiation of contracts between the Maritime Commission Board
and the Electro Protective Corporation, upon which the amounts of payments to Navigation
Instrument Company, and, in turn, to the Peardons, because of their interest in the latter
company, depended, were still pending when the motion for a new trial was heard, and
also when same was decided.
company, depended, were still pending when the motion for a new trial was heard, and also
when same was decided. The renegotiation conferences did not result in the preparing by the
government of a renegotiation agreement until October 1946. The proposed agreement was
not signed by Mrs. Peardon and Messrs. Chapman and Laford until October 17, 1946. It was
thereafter executed by the government, and a copy thereof sent to Mr. Weil, attorney for Mrs.
Peardon, December 13, 1946.
2. Not until she received a letter dated November 18, 1946, was Mrs. Peardon advised of
the basis on which, giving effect to the renegotiation agreement, the Electro Protective
Corporation was prepared to settle with Navigation Instrument Company, the Electro offer
conveyed by said letter being $355,811.94. It appears that these figures were being considered
by Mr. Weil and by Messrs. Peat, Marwick, Mitchell & Co., accountants, on Mrs. Peardon's
behalf, up to the date of Mr. Weil's affidavit, December 20, 1946.
The motion to amend by inserting newly discovered evidence as a fourth ground for a new
trial was filed December 31, 1946, as aforesaid, which appears to have been as early a date as
there was any reasonable certainty as to the figures.
The figures further disclose, according to Mrs. Peardon's affidavit, that for the years 1942
to and including 1946 the aggregate of taxes paid and payable by her on Navigation income
distributed and distributable to Commander Peardon was $57,097.58, instead of $15,000 as
provided by the district court. It was also shown that, due to the Internal Revenue Department
having decided that Mrs. Peardon was liable for the entire tax, the distribution of income
according to the district court's findings, conclusions and decree would result in Commander
Peardon receiving during or for said period, 1942-1946, $79,490.83 entirely free of income
tax liability, and in Mrs. Peardon suffering a deficit of $1,397.10, after payment of the income
taxes charged, and chargeable, to her.
Mrs. Peardon, in her affidavit dated the 19th of December 1946, in support of her motion
to amend, etc., prayed in the alternative, that if the court is of the opinion that the evidence
would not change the result on any new trial, so that the original division of 75% to me and
25% to the plaintiff, after taxes, would be reinstated, I pray that the court resettle the decree
by increasing the amount of the reserve from $15,000.00 to $60,000.00. I pray for this
alternative relief. (Emphasis added.)
It appears that these facts, clearly disclosed, as to net income after taxes, and the great
inequality which, in actual operation, had resulted from the district court's findings,
conclusions and decree in the divorce action, indicated clearly that the equities in the
defendant's favor called loudly for her relief. But, on July 31, 1947, the district court filed its
written opinion denying the motion to amend the notice of intention to move for a new trial
and to vacate and set aside the former order denying a new trial. The learned trial judge, who
also had presided at the hearing upon said motion to amend, etc., in his opinion denied relief
principally on technical grounds. This appeal from said order denying said motion to amend
and to vacate and set aside, followed.
In the appeal in case No. 3522, the effect of our opinion and decision, filed
contemporaneously herewith, 65 Nev. 717, 201 P.2d 309, is to restore the parties to the
position they were in, as to property rights, by virtue of and under the assignment of the
husband to the wife, dated May 1, 1941, (Ex. A, a copy of which is attached to defendant's
answer and cross-complaint) of all his right title and interest in and to certain inventions and
improvements originated by him in connection with the detection of and protection against
submarines and torpedoes, together with his interest in a certain agreement dated April 22,
1946, executed between Arthur B. Chapman, Herbert M. Laford and himself, entirely
unaffected by the reassignment (Ex. B, a copy of which is also attached to said answer and
cross-complaint) by the wife to the husband, dated September 21, 1943, which later we have,
by said opinion and decision in said case No.
we have, by said opinion and decision in said case No. 3522, found to be void.
In defendant's (appellant's) brief, in which the arguments as to both appeals are presented,
defendant's attorney has prayed, in the alternative, for relief by reversal of the order denying
the defendant's motion to amend her notice of intention to move for a new trial. It is manifest
that both in the lower court and in this court the defendant's principal objective was that the
reassignment of September 21, 1943 (Ex. B) be adjudged to be void, leaving her in the
position in which she was placed by the force and effect of the assignment to her, executed by
her husband, June 3, 1942 (Ex. A). Should we see our way clear to grant the alternative
relief prayed for, by reversing the order denying the motion to amend and to vacate the order
denying the motion for a new trial, without action upon the principal appeal in case No. 3522,
the maximum relief possible would be to permit the defendant to file the amended notice of
intention with the additional ground of newly discovered evidence included therein, and to
order the setting aside and vacating of the order denying a new trial, and a renewal of the
hearing, or a new hearing, upon such motion to amend, etc., with the result problematical.
The learned district judge, having already, in ruling upon the original motion for a new trial,
definitely passed upon the alleged errors in matters of law pertaining to the district court's
findings and conclusions, would, most likely, decline to change his views and former decision
in that respect, and if he felt he had any jurisdiction and was willing to grant any relief, he
would probably feel constrained to grant only the alternative prayed for, of ordering the
plaintiff to pay an additional amount to cover his fair share of the taxes, which might be
deemed, by the courts of other states, unenforceable outside the State of Nevada. So, any
effective relief as to the inequitable situation of the defendant in the respect above mentioned,
by a reversal in case No. 3529, would, for the reasons above stated, be uncertain and
problematical, and the proceedings in the lower court involved would, necessarily, require
considerable time.
problematical, and the proceedings in the lower court involved would, necessarily, require
considerable time. We have felt that, under the circumstances, and especially the existing
situation, the defendant is entitled to have us decide the questions she has raised upon her
principal appeal from the order denying her motion for a new trial, and we are confident that
by so doing the maximum of relief to which she is justly and equitably entitled would be
assured to her with certainty and a minimum of delay. We have, accordingly, and
contemporaneously herewith, rendered and filed our opinion and decision in case No. 3522.
If, for instance, we determined that there is reversible error in this case, No. 3529, and
decided to reverse such order and to remand the case for further proceedings as to the motion
to amend, etc., and if the lower court granted a new trial, same would involve a
reconsideration, if the learned district judge were so inclined, of the validity of the
reassignment by the wife to the husband, executed September 21, 1943 (Ex. B), the validity
of which has already been determined and decided by us in our companion opinion and
decision in case No. 3522. To remand, under the circumstances, would, of course, be entirely
inconsistent with our final determination of said question and of other questions involved
therein, and different from and inconsistent with the proceedings in the lower court ordered
by our said decision in case No. 3522, to implement same and make it effective. This could
only lead to complications and confusion. We are confident, from his use of the phrase in the
alternative in his brief, that no such result was contemplated by the attorney for defendant
and appellant, and that he filed and perfected the second appeal merely to seek an alternative
remedy in the event that we should decide that we could not grant the major relief sought by
the principal appeal in case No. 3522.
We have, therefore, determined and decided, and now hold, that the principal objectives
involved upon the appeal in case No. 3529 having been provided for by our opinion and
decision in case No.
opinion and decision in case No. 3522, including provisions for a readjustment as to
distributions of income from Navigation Instrument Company, and of taxes as between the
respective parties, the appeal in said case No. 3529 has become, in all essential particulars,
moot, and it is, therefore, entirely unnecessary for this court to determine or decide the
questions or matters of law involved upon the appeal in said case No. 3529.
____________
65 Nev. 781, 781 (1948) Brockbank v. District Court
L. T. BROCKBANK, Jr., Relator, v. SECOND JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE, HON. A. J.
MAESTRETTI, Judge in Department No. 2 Thereof, and J. B. LaGUE, Respondents.
No. 3563
December 22, 1948. 201 P.2d 299.
1. Process.
Where order for service of summons on nonresident was not signed by district judge when it was
tendered to him for signature, no jurisdiction over the nonresident was acquired. N.C.L.1931-1941 Supp.
sec. 8582.
2. Action.
Leave of court is not required to take the first step in an action of filing of a complaint and issuance of a
summons. N.C.L.1929, sec. 8573.
3. Process.
Faithful observance of statute is essential for constructive or substituted service. N.C.L.1931-1941 Supp.
sec. 8582.
4. Appearance.
Where nonresident's motion to quash service of summons on him declared specifically that he appeared
especially and only for purpose of the motion, and he attacked jurisdiction of district court to try the suit,
there was no general appearance by nonresident that would constitute waiver of defect in summons.
N.C.L.1931-1941 Supp. sec. 8582.
5. Prohibition.
Where trial court refused to quash summons though it was defective and trial court had no jurisdiction to
proceed against nonresident, nonresident was entitled to a writ of prohibition to prohibit the trial court from
proceeding with the action.
Original prohibition proceeding by L. T. Brockbank, Jr., relator, against the Second
Judicial District Court of the State of Nevada, in and for the County of Washoe, Hon. A. J.
Maestretti, Judge in Department No. 2 thereof, from determining any matter in an action by J.
B. LaGue against the relator. Writ of prohibition made permanent.
H. R. Cooke, of Reno, for Relator.
M. J. Scanlan, of Reno, and C. Lester Zahniser, of Sparks, for Respondents.
OPINION
The petition filed November 22, 1948 recites that the district court is about to set down for
hearing a suit against him, No. 118865, department 2, enter a default and give a judgment
clouding his title to mining claims, all without jurisdiction and in the absence of compliance
with the Nevada law respecting the constructive service of summons.
Respondents' return filed December 3, 1948 does not deny intention to proceed as charged,
but contends that the omission charged is not fatal to jurisdiction over the person of
petitioner; that the defect was waived by a general appearance and that a plain, speedy and
adequate remedy at law is open to petitioner in the ordinary course of procedure in the suit.
Petitioner, on December 7, 1948, filed a pleading in the nature of a general demurrer to the
respondents' return.
Inasmuch as there is no dispute as to the facts considered controlling, and the question is a
narrow one of law, our decision will be directed to a solution of the legal issue without
segregating the demurrer for an express ruling.
issue without segregating the demurrer for an express ruling.
From the petition and return we find the following situation to exist:
The action by J. B. LaGue against L. T. Brockbank, Jr. seeks to require specific
performance of an alleged contract for the sale of mining claims and to order their sale and
conveyance to plaintiff by defendant, or if he fails to do so, that the clerk of the court be
directed to execute and deliver such a conveyance.
The complaint was verified May 18, 1948 and filed July 17, 1948. An alias summons was
issued July 30, 1948 and was returned and filed August 13, 1948, with an affidavit alleging
service by delivery to defendant in New York City August 10, 1948. There is no record of the
original summons as, ordinarily, there should be to authorize the alias.
On August 3, 1948, an affidavit for the service of summons, verified May 5, 1948, was
filed in the district court, together with the tender and filing of an order complete except for
the date in August 1948, and except for the signature of the district judge or an attestation by
the clerk that it was made by the court or any minute order directing that the order of service
be granted.
On November 16, 1948, the district court heard and denied a motion by the defendant,
appearing specially for that purpose only, to quash and set aside the alleged and pretended
service of summons * * *
The written decision of the court on the motion indicates that there was an issue of fact as
to whether process was actually served on defendant by delivering to him personally in New
York a copy of the summons with a certified copy of the complaint annexed. The decision,
however, was based on a finding that while the order for service of summons filed August 3,
1948, was not signed, there was a substantial compliance with the law, and the omission did
not prevent a valid service of summons under the law relating to constructive or substituted
service.
The district judge in his opinion frankly admitted that by the record it was true that the
court made no order for the publication of summons. The decision stated, however, that
there is a general presumption of law that those things required to be done by persons
charged with an obligation to perform them are deemed to have been done.
The decision also analyzed another controversial matter. The affidavit for the service of
summons was filed August 3, 1948, but it was made and verified May 5, 1948, at a time
when, contrary to its recital, no complaint was then on file and no summons was then issued
or outstanding. The district court found that the affidavit was such as to require action, and
action was presumed although no action was in fact taken.
Assuming (but not deciding) that some action was required, we find no basis for a
conjecture as to what the nature of such action should be, favorable or otherwise.
In keeping with the theory of the district court in its decision on the motion to quash, the
return of the respondent to this court sets out:
1. That a copy of the summons and complaint was actually delivered to defendant in New
York (on August 10, 1948), and thereby jurisdiction over the person of defendant was
acquired.
2. That defendant suffered no irreparable injury by reason of the fact that the affidavit for
service and the order for service was not filed until three months lacking two days after the
affidavit was made.
3. That the defendant suffered no irreparable injury by reason of the failure of the court to
sign the order for service of summons.
4. That the petition in this court attacking the sufficiency of the affidavit for service of
summons, is equivalent to a general demurrer and constitutes a general appearance by
defendant (in the case of the lower court).
5. That the petitioner had a remedy at law by way of a special demurrer to the jurisdiction
of the court below over the person of defendant.
6. That the defendant has (will have) a remedy at law by appeal after judgment in the
lower court.
The gravamen of the petition is that the order for service of summons was filed in said
cause (August 3, 1948) but was never signed or authorized by the judge of said court.
Reference is made to the decision denying defendant's motion to quash the service of
summons in which the district judge admits the order was never signed but asserts
nevertheless, it should be deemed authorized.
1. Although the issues of law are not clearly tendered and joined by the pleadings in this
court, we consider one circumstance determinative of the matter before us, and establishing
that the court below has not now and never had any jurisdiction over the defendant in the suit.
That circumstance is the admitted failure of the district judge to sign the order tendered to
him for signature. All the other circumstances appearing before us are unnecessary for
determination in the presence of the primary and fatal omission of an indispensable step in
the inception of jurisdiction over defendant.
We do not determine whether under any circumstances the plaintiff can obtain an
enforceable personal judgment in the absence of personal service within this state or general
appearance. See Nahas v. Nahas, 59 Nev. 220, at page 225, 90 P.2d 223, 92 P.2d 718.
2. We do not determine that the court below is barred from considering any application
that may be made upon a valid summons for an order for the service thereof, either in this or
subsequent suit. The first step in any action is the filing of the complaint and the issuance of
summons. Sec. 8573, N.C.L.1929. No leave of court is needed to take that step.
3. However, for constructive or substituted service of summons faithful observance of the
statute is essential. 1929 N.C.L.1941 Supp., sec. 8582.
In Coffin v. Bell, 22 Nev. 169, at page 183, 37 P. 240, 241, 58 Am.St.Rep. 738, Justice
Bigelow said: Where constructive service of summons is relied upon to sustain a
judgment, a strict compliance with the provisions of the statutes is required {citing
cases); otherwise the court obtains no jurisdiction over the defendant * * *."
constructive service of summons is relied upon to sustain a judgment, a strict compliance
with the provisions of the statutes is required (citing cases); otherwise the court obtains no
jurisdiction over the defendant * * *.
This principle is stated also in Perry v. District Court, 42 Nev. 284, at pages 291 and 293,
174 P. 1058, 1060, wherein it is said: * * * for statutes providing for service of summons by
publication, whether in a court of record or in a justice court, are in derogation of the
common law, and must be strictly construed in order to give the court jurisdiction over the
person of the defendant.
The case of Little v. Currie, 5 Nev. 90, is also cited in Perry v. District Court, 42 Nev. at
pages 291, 174 P. 1058, as authority for similar statement: The statutory provision for
acquiring jurisdiction over a defendant by any other than personal service must be strictly
pursued; * * *.
Respondent suggests that by a species of voluntary appearance the defendant in the case
accepted jurisdiction of the court over his person (or over the subject matter if considered an
action in rem).
4. Without rejecting the authorities relied on by respondent we find the defendant in the
case at bar did not enter a general appearance but his action at all times was a resistance to
and a rejection of the asserted jurisdiction of the court in the pretended compliance with the
statutes governing the service of process.
Defendant's motion to quash declared specifically that he appeared specially and only for
the purpose of the motion. He appeared attacking and not asserting or admitting the
jurisdiction of the district court to hear, try or determine the suit in which he was named
defendant.
5. Concluding as we do that the trial court has not and never had jurisdiction over the
person of relator and has no jurisdiction to proceed against him in the case below at this time,
the alternative writ of prohibition heretofore issued, is made permanent. Nothing herein shall
prohibit said court or any judge thereof from determining any matter hereafter presented
to it or him for the purpose of acquiring jurisdiction over the defendant in the pending suit
or any subsequent suit against him.
shall prohibit said court or any judge thereof from determining any matter hereafter presented
to it or him for the purpose of acquiring jurisdiction over the defendant in the pending suit or
any subsequent suit against him.
It is so ordered.
____________
65 Nev. 787, 787 (1948) Memorandum Decision
MEMORANDUM DECISION
Richard Carl Heinen v. Francis Rowley Heinen
No. 3490 (See 64 Nev. 527)
On Petition For Rehearing
July 6, 1948.
Per Curiam:
Rehearing denied.
____________
In Memoriam
____________
John A. Sanders
65 Nev. 789, 789 (1948) Memorial to John A. Sanders
IN THE SUPREME COURT OF THE
STATE OF NEVADA
In the Matter of the Death }
of Honorable John A. Sanders }
Order

In respect to the memory of the late Honorable John A. Sanders, who served for many
years as a Justice and Chief Justice of this Court and who departed this life on the 14th day of
August 1948, it is hereby ordered that George L. Sanford, H. R. Cooke, William Woodburn,
Sr., A. L. Haight, J. M. McNamara, L. O. Hawkins and C. J. McFadden be, and they are
hereby appointed as a committee to draft and present to this Court suitable resolutions
expressing the high esteem in which he was universally held, and the sorrow of the members
of the State Bar of Nevada because of his passing.
Done at Carson City, Nevada, this 16th day of August 1948.
Edgar Eather,
Chief Justice
Milton B. Badt,
Associate Justice
To the Honorable the Supreme Court of the State of Nevada:
Your committee appointed to prepare and present resolutions on the life and public
service of the late Honorable John Adams Sanders begs leave to submit the following:
Judge J. A. Sanders was born in Virginia on October 16, 1866, and died at Reno,
Nevada, on August 14, 1948. He attended the public schools of Virginia, and graduated, at
the age of eighteen, from Emory and Henry College, and he then attended the University of
Virginia Law School, in 1889-1890. He was admitted to the Virginia Bar in 1890.
In 1900 he moved to Spokane, Washington, where he practiced until 1904, when he
removed to southern Nevada.
65 Nev. 789, 790 (1954) Memorial to John A. Sanders
Nevada. In 1910 he was elected District Attorney of Nye County, and was reelected in 1912
and 1914. In 1916 he was elected an Associate Justice of the Supreme Court of Nevada, and
reelected in 1922, and again in 1928.
Judge Sanders' father was a Confederate soldier in the war between the States, serving
as a captain in the 45th Virginia Regiment. A lifelong and ardent Democrat, Judge Sanders
was, throughout his residence in Nevada, a power in the political activities of the State. An
orator of more than average ability, he was, prior to his elevation to the Bench, always in
demand in the political campaigns.
He had a personality and mind that fitted him for judicial service. While on the Bench
he rendered many opinions that for sound reasoning evidence special ability as well as
exhaustive legal research, and stamped him as an able lawyer and judge. The State is indebted
to him for his valuable contributions to its legal history.
A daughter, Mrs. Lucile Ahrens, of Detroit, Michigan, survives.
Dated October 7, 1948
George L. Sanford, A. L. Haight,
Chairman. J. M. McNamara
H. R. Cooke, L. O. Hawkins,
Wm. Woodburn, C. J. McFadden.
The foregoing resolution was adopted by the Court, and ordered spread upon its
minutes and published in the next volume of the Nevada Reports.
____________

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